HomeMy WebLinkAbout598ORDINANCE NO. 598
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE, COUNTY OF LOS ANGELES, CALIFORNIA, APPROVING
A DEVELOPMENT AGREEMENT AND RELATED NEGATIVE
DECLARATION FOR THE REPLACEMENT OF FOUR EXISTING
BILLBOARDS WITH FOUR NEW LARGER BILLBOARDS AT 13130
LOS ANGELES STREET
A. RECITALS
(i) California Government Code Sections 65864 et seq. ("Development
Agreement Law") authorizes cities to enter into binding development agreements with
persons having a legal or equitable interest in real property for the development of such
property, all for the purpose of strengthening the public planning process, encouraging
private participation and comprehensive planning and identifying the economic costs of
such development.
(ii) Attached to this Ordinance, Marked Exhibit "A" and incorporated herein by
reference, is a Development Agreement, which hereinafter is referred to as "the
Development Agreement."
(iii) Clear Channel Outdoor Inc., hereinafter in this Ordinance referred to as
"Developer", has a leasehold interest to that certain portion of real property generally
located on the west perimeter of the 336 -acre Cal Mat/Vulcan Materials/Durbin Mining
Pit east of the San Gabriel River (1-605) Freeway, between Ramona Boulevard and
Lower Azusa Canyon Road/Los Angeles Street ("Billboard Site"), legally described
within the Development Agreement, and situated on the real property in the City of
Irwindale, County of Los Angeles, California, specifically located at 13130 Los Angeles
Street, as described within the Development Agreement (the "Site"). Developer wishes
to replace four (4) existing poster advertising structures with a total of eight (8) faces
with four (4) larger bulletin advertising structures with a total of eight. Calmat Properties
Co., dba Vulcan Materials Company, Western Division ("Vulcan") is the owner of legal
and/or equitable interest in the Site and thus qualify to enter into this Agreement in
accordance with Development Agreement Law.
(iv) The Site is located within the City's M-2 Zone (Heavy Manufacturing) and
designated by the Land Use Designation of the General Plan as Industrial.
(v) On January 5, 2006, the Planning Commission of the City, at a duly
noticed hearing to consider the approval of this Agreement and related environmental
analysis, adopted Resolution No.463(05) recommending approval of this Agreement
i and certification of Negative Declaration No. 8-05 ND to the City Council.
Ordinance No. 598
Page 1
(vi) City finds and determines that all actions required of City precedent to
approval of this Agreement by Ordinance No. 572 of the City Council have been duly
and regularly taken.
(vii) All legal prerequisites to the adoption of this Ordinance have occurred.
B. ORDINANCE
NOW, THEREFORE, the City Council of the City of Irwindale hereby does ordain
as follows:
(i) In all respects as set forth in the Recitals, Part A of this Ordinance.
(a) The City Council of the City of Irwindale, based on the Initial Study
and Negative Declaration No. 8-05 ND, which have been prepared in compliance with the
provisions of the California Environmental Quality Act of 1970, as amended, and the
Guidelines promulgated thereunder pursuant to Section 15061 (b) (3) of Division 6 of Title
14 of the California Code of Regulations, hereby determines that this proposal will not
have a significant impact on the environment.
(b) The City Council hereby specifically finds and determines that,
based upon the findings set forth below, and changes and alterations which have been
incorporated into and conditioned upon the Project, no significant adverse environmental
effects will occur.
(c) The City Council hereby specifically finds and determines that,
having considered the record as a whole, there is no evidence that the Project
contemplated by the Development Agreement, and as conditioned, will not have a
potential for an adverse impact on wildlife resources or the habitat upon which the wildlife
depends. Based upon substantial evidence presented in the record before this Council,
this Council rebuts the presumption of adverse effect contained in Subsection 753.5 (d) of
Title 14, California Code of Regulations. Notwithstanding the provisions of this paragraph,
the Applicant shall pay all fees required for the filing of a Notice of Determination and any
fees imposed by the California Department of Fish and Game prior to the issuance of
building permits.
(ii) The City Council has found that this Agreement is in the best public
interest of the City and its residents, adopting this Agreement constitutes a present
exercise of the City's police power, and this Agreement is consistent with the City's
General Plan. This Agreement and the proposed Project will achieve a number of City
objectives including removing blight and revitalizing and reutilizing the Sites and the
immediate vicinity, assuring that redevelopment within the Irwindale Community
Redevelopment Agency's Industrial Development Project area is not hampered by the
presence of billboards by assuring that the Billboard on the Site is removed upon
commencement of any development thereon, and by enhancing commercial uses in the
area surrounding the Site and providing for the maintenance of the Billboard and of the
Billboard Site for the term of the Development Agreement.
Ordinance No. 598
Page 2
(iii) It is expressly found that the public necessity, general welfare and good
zoning practice require the approval of the Development Agreement.
(iv) This City Council hereby approves the Development Agreement attached
hereto as Exhibit "A."
(v) The City Council hereby authorizes and directs the Mayor and the City
Clerk to execute the Development Agreement on behalf of the City of Irwindale forthwith
upon adoption of this Ordinance.
(vi) The City Clerk shall certify to the passage of this Ordinance and shall
cause the same to be published and/or posted at the designated locations in the City of
Irwindale.
PASSED, APPROVED, and ADOPTED this 7t" day of February 2006.
ATTEST:
e
L' a J. Kirdbrol, CMC
e�puty City Clerk
& - /J Z/11 =Z
Julian A. Miranda, Mayor
Ordinance No. 598
Page 3
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES } ss.
CITY OF IRWINDALE }
I, Linda J. Kimbro, Deputy City Clerk of the City of Irwindale, do hereby certify that the
foregoing Ordinance No. 598 was duly introduced at a regular meeting of the Irwindale
City Council held on the 17th day of January 2006, and was duly approved and adopted
on second reading at its regular meeting held on the 7th day of February 2006, by the
following vote of the Council:
AYES: Councilmembers: Breceda, Fuentes, Tapia, Ortiz, Mayor Miranda
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ABSTAIN: Councilmembers: None
L a` J. Kimb MC
Deputy City Clerk
AFFIDAVIT OF POSTING
I, Linda J. Kimbro, Deputy City Clerk, certify that I caused a copy of Ordinance No. 598 adopted by the City Council of the
City of Irwindale at its regular meeting held February 7, 2006 to be posted at the City Hall, Library, and Post Office on February 8,
006. 1
,
LiJ. K - imbrol OMC Dated: February 8, 2006
MCity CleW
Ordinance No. 598
Page 4
Recording Requested by And
When Recorded Return to:
City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Clerk
EXHIBIT "A"
ORDINANCE NO. 598
JUL 2 6 20M
RECEIVED
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LOS ANFELES COUNTY REGISTRAR - RECORDER
[Exempt From Recording Fee Per Gov. Code §6103]
DEVELOPMENT AGREEMENT NO. 1-05
This Development Agreement (hereinafter "Agreement") is entered into this 7h day of
February, 2006, (hereinafter the "Effective Date") by and between the CITY OF IRWINDALE
(hereinafter "City"), CLEAR CHANNEL OUTDOOR, INC., a Delaware corporation
("hereinafter "Developer"), and CALMAT CO., a Delaware corporation dba VULCAN
MATERIALS COMPANY, WESTERN DIVISION ("Vulcan" or "Owner").
RECITALS
A. California Government Code Sections 65864, et seq., ("Development Agreement
Law") authorizes cities to enter into binding development agreements with persons having a
legal or equitable interest in real property for the development of such property, all for the
purposes of strengthening the public planning process, encouraging private participation and
comprehensive planning and identifying the economic costs of such development.
B. Developer has a leasehold interest to that certain portion of real property located
south of Los Angeles Street, north of Ramona Boulevard, along the easterly line of the 605
Freeway ("Billboard Sites"), and situated on the real property in the City of Irwindale, County of
Los Angeles, California, commonly known as the Durbin Pit, as more specifically described in
Exhibit "A, " attached hereto and incorporated herein ("Site"). The Billboard Sites are depicted
at Exhibit "C". Developer wishes to -eliminate four (4) existing, 35' tall, "poster" skze freeway -
oriented billboards with a total of eight (8) faces (each face measuring 12' x 25') and replace
them with four (4) proposed, 38' tall, "bulletin" size freeway -oriented billboards with a total of
eight (8) faces (each face measuring 14' x 48'). Owner is the owner of legal and/or equitable
interests in the Site and thus qualifies to enter into this Agreement in accordance with
Development Agreement Law.
C. The Site is located within the City's M-2 Zone (Heavy Manufacturing) and
designated by the 1973 General Plan as Industrial.
D. Developer and City agree that a development agreement should be approved and
adopted for this Site in order to memorialize the property expectations of City and Developer as
more particularly described herein.
E. On January 5, 2006, the Planning Commission of the City, at a duly noticed
hearing to consider the approval of this Agreement, adopted Resolution No. 463(05)
Development Areement o. 1-05
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recommending approval of this Agreement to the City Council and adopting a Negative
Declaration for the Project, as defined below.
F. The City Council has found that this Agreement is in the best public interest of
the City and its residents, adopting this Agreement constitutes a present exercise of the City's
police power, and this Agreement is consistent with the City's General Plan. This Agreement
and the proposed Project (as hereinafter defined) will achieve a number of City objectives
including revitalizing and reutilizing the Billboard Sites and their immediate vicinity, assuring
that redevelopment within the Irwindale Community Redevelopment Agency's Industrial
Development Project area is not hampered by the presence of billboards by assuring that the
Billboards on the Site may be removed upon expiration of the Term or commencement of any
development thereon, which conflicts with the Billboards, and enhancing commercial uses in the
area surrounding the Site by controlling the duration of the Billboards on the Billboard Sites.
G. City finds and determines that all actions required of City precedent to approval
of this Agreement by Ordinance No. 598 of the City Council have been duly and regularly taken.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
- 1.1 Definitions. This Agreement uses a number of terms having specific meanings, as
defined below. These specially defined terms are distinguished by having the initial letter
.capitalized, when used in the Agreement. The defined terms include the following:
1.1.1 "Agreement" means this Development Agreement and all attachments and
exhibits hereto.
1.1.2 "Agency" means the Irwindale Community Redevelopment Agency, a
California public body, corporate and politic.
1.1.3 "Billboard" means either, at Developer's option, an Existing Billboard or a
New Billboard consistent with the Development Approvals and this Agreement,
including the Scope of Development attached hereto as Exhibit "B ".
1.1.4 "Billboard Sites" means those portions of the Site where the New
Billboards shall be located, including any immediately surrounding areas used by
Developer in connection with its use and maintenance of the New Billboards. The
Billboard Sites are depicted at Exhibit "C" hereto.
1.1.5 "City" means the City of Irwindale, a California municipal corporation.
1. 1.6 "City Council" means the City Council of the City.
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1. 1.7 ".Developer" means Clear Channel Outdoor, Inc., a Delaware corporation
duly existing and operating, and its successors and assigns, doing business at 19320
Harborgate Way, Los Angeles, California 90501.
1.1.8 "Development" means the removal of four Existing Billboards on the Site
and installation of four New Billboards on the Site and the undergrounding of all utilities
from SCE electrical source to New Billboards therefore, which shall constitute the entire
Project.
1.1.9 "Development Approvals" means the approved Development, based on the
recommended approval by the Planning Commission on January 5, 2006, pursuant to
Resolution No. 463(05) and approval of the City Council by Ordinance No. 598 on
February 7, 2006, as further described at Section 3.3 herein.
1.1.10 "Effective Date" means the date inserted into the preamble of this
Agreement after this Agreement has been approved by ordinance of the City Council and
signed by the Developer and City.
1.1.11 "Existing Billboards" mean the four Billboards currently on the Billboard
Sites, facing the 605 freeway and owned by Developer as of the Effective Date of this
Agreement, which shall be replaced pursuant and subject to the terms of this Agreement.
The four Existing Billboards each contain two outdoor advertising display "faces"
measuring 12 feet x 25 feet, and are spaced at approximately 500 -foot intervals. The
Existing Billboards measure 35 feet in height.
1.1.12 "Land Use Regulations" means all ordinances, resolutions, codes, rules,
regulations and official policies of City, including, but not limited to, the City's General
Plan, Municipal Code and Zoning Code and including all development impact fees,
which govern development and use of the Billboard Sites, including, without limitation,
the permitted use of land, the density or intensity of use, subdivision requirements, the
maximum height and size of the New Billboards, the provisions for reservation or
dedication of land for public purposes, and the design, improvement and construction
standards and specifications applicable to the Development of the Billboard Sites, subject
to the terms of this Agreement. Land Use Regulations shall also include NPDES
regulations and approvals from the California Department of Transportation Outdoor
Advertising Division, to the extent applicable.
1.1.13 "Lease" means that certain lease agreement executed by and between
Patrick Media Group, Inc. and CalMat Properties Co., predecessors in interest of
Developer and Owner, respectively, on or about September 14, 1994, as amended and as
may be extended, for the lease of the Billboard Sites to Developer.
1.1.14 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a
deed of trust or any other security -device, a lender or. each of their respective successors
and assigns.
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1.1.15 "New Billboards" mean the four New, larger Billboards to be constructed
on the Billboard Sites, after the Existing Billboards have been removed, pursuant to the
specifications included in the Scope of Development. The four New Billboards may each
contain two outdoor advertising display "faces" measuring 14 feet x 48 feet, and shall be
spaced at approximately 500 -foot intervals. The New Billboards shall measure 38' feet
in height.
1.1.16 "Owner" means CALMAT CO., a Delaware corporation dba VULCAN
MATERIALS COMPANY, WESTERN DIVISION ("Vulcan") the owner of the Site.
1.1.17 "Project" means the replacement of the four Existing Billboards with four
New Billboards and the undergrounding of all utilities consistent with the Development
Approvals and this Agreement, including the Scope of Development, Schedule of
Performance and all conditions of approval and consistent with the approval from the
California Department of Transportation Outdoor Advertising Division.
1.1.18 "Reservation of Authority" means the rights and authority excepted from
the assurances and rights provided to Developer under this Agreement and reserved to
City under Section 3.6 of this Agreement.
1.1.19 "Site" means that certain real property located in the City of Irwindale, as
more specifically described on Exhibit "A " attached hereto and incorporated herein.
1.1.20 "Schedule of Performance" means the Schedule of Performance attached.
hereto as Exhibit "D " and incorporated herein.
1.1.21. "Scope of Development" means the Scope of Development attached
hereto as Exhibit "B " and incorporated herein.
1.1.22 "Subsequent Land Use Regulations" means any Land Use Regulations
effective after the Effective Date of this Agreement (whether adopted prior to or after the
Effective Date of this Agreement) which govern development and use of the Billboard
Sites:
1.1.23 "Term" shall mean the period of time from the Effective Date until the
termination of this Agreement as provided in Section 2.4, unless earlier terminated as
provided in this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement: Exhibit "A" (Legal Description of Site), Exhibit "B" (Scope of
Development), Exhibit "C" (Site Plan and Elevations) and Exhibit "D" (Schedule of
Performance).
2. GENERAL PROVISIONS.
2.1 Binding Effect of agreement. From and following the Effective Date, actions
by the City, Developer and Owner with respect to the Development of the Billboard Sites,
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including actions by the City on applications for Subsequent Development Approvals affecting
the Billboard Sites, shall be subject to the terms and provisions of this Agreement, provided,
however, that nothing in this Agreement shall be deemed or construed (i) to modify or amend the
Lease or any of Owner's or Developer's obligations thereunder, or to bind or restrict Owner with
respect to its ownership or operation of the Site except as expressly set forth herein with respect
to the Billboard Sites, or (ii) to impose any obligation whatsoever on Owner, including without
limitation any obligation with respect to the Billboards, the Billboard Sites, the Development or
the Project, except as expressly set forth in this Agreement.
2.2 Interest in Site. City, Owner and Developer acknowledge and agree that Owner
has a legal or equitable interest in the Site and thus is qualified to enter into and be a party to this
Agreement under the Development Agreement Law. Owner, or its nominee(s) or successor(s) or
assign(s), shall maintain its legal or equitable ownership in the Site for the entire Term of this
Agreement. Additionally, prior to the execution of this Agreement, Developer shall provide the
City with a copy of the Lease which demonstrates that Developer has a leasehold interest in the
Billboard Sites, which interest shall be maintained for the entire Term of this Agreement. If
Developer's leasehold interest is prematurely terminated by Owner then Developer shall have no
further obligations under this Agreement, except as provided under Section 4.1.
2.3 No Assignment. Developer may only assign or otherwise transfer this
Agreement, or its interest in the Billboard Sites or any part of its interest in the Billboard Sites, to
any other person, firm, or entity, upon presentation to the City of an assignment and assumption
agreement in a form reasonably acceptable to the City Attorney and receipt of the City's written
approval of such assignment or transfer by the City Manager; provided, however, that Developer
may, from time to time and one or more times, assign this Agreement, or the Lease, to one or
more persons or entities without City approval, but with written notice to the City, as long as
Clear Channel Outdoor, Inc., a Delaware corporation, or entities owned or controlled by it have.
and maintain at least a twenty percent (25%) ownership interest in such entities who are the
assignees or transferees. Any security posted by Developer may be substituted by the assignee
or transferee. After a transfer or assignment as permitted by this Section, the City shall look
solely to such assignee or transferee for compliance with the provisions of this Agreement which
have been assigned or transferred.
2.4 Term of Agreement. Unless earlier terminated as provided in this Agreement,
this Agreement shall continue in full force and effect until the earlier of (i) ten (10) years after
the Effective Date of this Agreement, or (ii) thirty (30) days after the City notifies Developer in
writing that a prospective developer of the Site has submitted to the City either a Grading Plan
application or application under the Subdivision Map Act (Government Code §§ 66410, et seq.,
and Irwindale Municipal Code Title 16, as such provisions may be amended) for any
development on the Site for, including but not limited to, commercial, industrial, recreational, or
residential uses, which the City, in its discretion, finds conflicts with the Billboards, or (iii) the
expiration or earlier termination or "Partial Termination" of the Lease (as defined in the Lease)
that applies to the Site. In such case, Developer shall completely remove the Billboards within
the times and as provided under Section 4.1 herein. Within thirty (30) days after the expiration
or termination of this Agreement, the parties shall execute a written cancellation of this
Agreement which shall be recorded with the County Recorder pursuant to Section 9.1 below.
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2.5 Processing Fee. Within ten days of the execution of this Agreement, Developer
shall provide City with a cash payment (`-`Processing Fee") in the amount of Twenty -Five
Thousand Dollars ($25,000). The Processing Fee shall be in the form of a non-refundable
cashier's check, wire transfer, or other instrument approved by the City's Finance Director. The
City shall retain and use the Processing Fee, or any part thereof, for any public purpose within
the City's discretion. Upon submission of its application for the entitlements provided under this
Agreement, Developer deposited $3,000 toward the payment of the Processing Fee. Developer
shall deposit $22,000 within five (5) days of approval by the City Council of this Agreement.
The Processing Fee shall be separate from all business license fees (due by Developer to City
annually), and one time plan check fee and building permit fee and any other fees imposed by
Los Angeles County.
2.6 Development Fee. Developer shall provide City with a monthly cash payment in
the amount of One Thousand Seven Hundred Fifty Dollars ($1,750.00) ("Development Fee") per
Billboard per month, payable one month in advance and delivered to the City's Finance Director,
during the Term. Therefore, the total monthly Development Fee per month for the first year
shall be Seven Thousand Dollars ($7,000). The Development Fee shall be increased by three
percent (3%) each year on the anniversary of the execution of this Agreement.
2.7 City's Use of the Billboards. Developer shall provide City with the use of one
face on each of the four Billboards on the Property for one (1) month each year during the Tenn,
at no cost to City for displays aimed at promoting the Agency, City, their facilities, programs,
development projects or other attributes, local businesses, or other local entities. The parties
agree that City shall have the use of the Billboards in the months of March, June, September, and
December for each year during the term, provided the parties may consent in writing to revise
such months in any given year of the term. The display shall be planned and designed at City's
sole cost, yet produced and installed at the Billboards at Developer's sole cost, in cooperation
with the Agency or City. Agency or City shall have sole discretion to approve the display.
2.8 Prohibited Use. Developer acknowledges and agrees that Developer shall not
utilize any of the display faces on the Billboards to advertise "gentlemen's clubs,." adult
entertainment businesses, sexually oriented materials, or use sexually oriented images or
language.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to and during the Term of this Agreement, Developer
shall have the right to develop the Billboard Sites in accordance with, and to the extent of, the
Development Approvals, the Land Use Regulations, and this Agreement, provided that (i)
nothing in this Agreement shall be deemed to modify or amend the Lease, and (ii) Developer
shall have no greater rights or interest in the Site than was expressly set forth in the Lease.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided
under the terms of this Agreement, the rules, regulations and official policies governing
permitted uses of the Billboard Sites, the density and intensity of use of the Billboard Sites, the
maximum height and size of proposed structures, and the design, improvement and construction.
standards and specifications applicable to Development of the Site, and the development impact
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fees imposed on the Development of the Site, shall be as set forth in the Land Use Regulations
which are in full force and effect as of the Effective Date of this Agreement, subject to the terms
of this Agreement.
3.3 Development Approvals. Developer shall, at its own expense and before
commencement of, demolition, construction, rehabilitation, restoration, revitalization, or
development of any buildings, structures, or other work of improvement upon the Billboard
Sites, secure or cause to be secured all necessary Development Approvals, which shall include
any and all permits and approvals which may be required by City or any other governmental
agency or utility affected by such construction, development or work to be performed by
Developer pursuant to the Scope of Development, including but not limited to, necessary
building permits and all approvals required under the California Environmental Quality Act
("CEQA"). Not by way of limiting the foregoing, in developing and constructing the Project,
Developer shall comply with all (1) applicable development standards in City's Municipal Code,
(2) necessary NPDES requirements pertaining to the Project, (3) all building codes and, if
applicable, (4) landscaping requirements, except as may be permitted through approved
variances and modifications. Developer shall not be obligated to commence demolition or
construction if any such permit is not issued despite good faith effort by Developer and this
Agreement shall be null and void. Developer shall pay all normal and customary fees and
charges applicable to such permits, and any fees and charges hereafter imposed by City or
Agency in connection with the Development which are standard for and uniformly applied to
similar projects in the City. Nothing contained in this Agreement shall be deemed to impose any
obligation on Owner with respect to the Development Approvals or the Project.
3.4 Timing of Development; Scope of Development, Developer shall commence
the Project within the time set forth in the Schedule of Performance, attached hereto as Exhibit
"D. " "Commencement" of the Project is defined herein as commencement of construction or
improvements under the building permit for the construction of the New Billboards on the
Billboard Sites as soon as possible following removal of the Existing Billboards. In the event
that Developer fails to meet the schedule for Commencement of the Project, and after
compliance with Section 5.4, either party hereto may terminate this Agreement by delivering
written notice to the other party, and, in the event of such termination, neither party shall have
any further obligation hereunder. However, if circumstances within the scope of Section 9.10
delay the commencement or completion of the Project it would not constitute grounds for any
termination rights found within this Development Agreement. Notwithstanding the above,
Developer shall, at all times, comply with all other obligations set forth in this Agreement
regarding the construction or improvement of Billboards on the Site. Developer shall also
maintain the Billboards at all times during the Term in accordance with the maintenance
provisions set forth in Section 3, the Scope of Development, attached as Exhibit "B" herein.
The purpose of this Agreement is to set forth the rules and regulations applicable to the
Project and Developer's replacement of the Existing Billboards with four New Billboards, which
shall be accomplished in accordance with (i) this Agreement, including the Scope of
Development which sets forth a description of the Project and the Schedule of Performance, and
(ii) the Lease.
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3.5 Changes and Amendments. Developer may determine that changes to the
Development Approvals are appropriate and desirable. In the event Developer makes such a
determination, Developer may apply in writing for an amendment to the Development Approvals
to effectuate such change(s), provided Developer has obtained Owner's prior written consent to
any such change(s). The Parties acknowledge that City shall be permitted to use its sole and
absolute discretion in deciding whether to approve or deny any such amendment request;
provided, however, that in exercising the foregoing discretion, the City shall not apply a standard
different than that used in evaluating requests of other developers. Accordingly, under no
circumstance shall City . be obligated in any manner to approve. any amendment to the
Development Approvals. The City Manager shall be authorized to approve any non -substantive
amendment to the Development Approvals without processing an amendment to this Agreement.
All other amendments shall require the approval of the City Council. The parties acknowledge
that any extension of the Term for no more than twelve (12) months total is a non -substantive
change, which the City Manager, in his or her sole discretion, may approve in writing.
3.6 Reservation of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other
provision of this Agreement, the following Subsequent Land Use Regulations shall apply
to the Development of the Billboard Sites:
(a) Processing fees and charges of every kind and nature imposed by
City to cover the estimated actual costs to City of processing applications for
Subsequent Development Approvals or for monitoring compliance with any
Subsequent Development Approvals granted or issued.
(b) Procedural regulations consistent with this Agreement relating to
hearing bodies, petitions, applications, notices, findings, records, hearing, reports,
recommendations, appeals and any other matter of procedure.
(c) Changes adopted by the International Conference of Building
Officials, or other similar body, as part of the then most current versions of the
Uniform Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform
Mechanical Code, or National Electrical Code, as adopted by City as Subsequent
Land Use Regulations, if adopted prior to the issuance of a building permit for
development of the New Billboards on the Billboard Sites.
(d) Regulations that may be in conflict with the Development
Approvals or this Agreement, but which are materially necessary to protect the
public health, safety, and welfare.
(e) Regulations that are not in conflict with the Development
Approvals or this Agreement.
(f) Regulations that are in conflict with the Development Approvals or
this Agreement, provided Developer has given written consent to the application
of such regulations to Development of the Billboard Sites.
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(g) Federal, State, County, and multi jurisdictional laws and
regulations which City is required to enforce as against the Billboard Sites or the
Development of the Billboard Sites.
3.6.2 Future Discretion of City. This Agreement shall not prevent City from
denying or conditionally approving any application for a Subsequent Development
Approval on the basis of the Land Use Regulations.
3.6.3 Modification or Suspension by Federal, State, County, or Multi -
Jurisdictional Law. In the event that federal, State, County, or multi jurisdictional laws or
regulations, enacted after the Effective Date of this Agreement, 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
federal, State, County, or multi jurisdictional laws or regulations, and 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
provision impractical to enforce.
3.7 Regulation by Other Public Agencies. It is acknowledged by the parties that
other public agencies not subject to control by City may possess authority to regulate aspects of
the Development of the Billboard Sites as contemplated herein, and this Agreement does not
limit the authority of such other public agencies. Developer acknowledges and represents that, in
addition to the Land Use Regulations, Developer shall, at all times, comply with all applicable
federal, State and local laws and regulations applicable to the Existing Billboards, New
Billboards and Billboard Sites. To the extent such other public agencies preclude development
or maintenance of the Project, Developer shall not be further obligated under this Agreement
except as provided in Section 4.1.
3.8 Public Improvements. Notwithstanding any provision herein to the contrary, the
City shall retain the right to condition any subsequent Development Approvals to require
Developer to pay any required development fees, and/or to construct the required public
infrastructure ("Exactions") at such time as City shall determine subject to the following
conditions.
3.8.1 The payment or construction must be to alleviate an impact caused by the
Project or be ofbenefit to the Project; and
3.8.2 The timing of the Exaction should be reasonably related to the
development of the Project and said public improvements shall be phased to be
commensurate with the logical progression of the Project development as well as the
reasonable needs of the public.
3.8.3 When Developer is required by this Agreement and/or the Development
Approvals to construct any public works facilities which will be dedicated to the City or
any other public agency upon completion, Developer shall perform such work in the
same manner and subject to the same construction standards as would be applicable to the
City or such other public agency should it have undertaken such construction work.
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3.9 Fees, Taxes and Assessments. During the Term of this Agreement, the City shall
not, without the prior written consent of Developer, impose any additional fees, taxes or
assessments on all or any portion of the Project, except such fees, taxes and assessments as are
described in or required by this Development Agreement and/or the Development Approvals.
However, this Development Agreement shall not prohibit the application. of fees, taxes or
assessments as follows:
3.9.1 Developer shall be obligated to pay those fees, taxes or City assessments
which exist as the Effective Date or are included in the Development Approvals and any
increases in same, as provided herein;
3.9.2 Developer shall be obligated to pay any fees or taxes, and increases
thereof, imposed on a City-wide basis such as business license fees or taxes, sales or use
taxes, utility taxes, and mining taxes;
3.9.3 Developer shall be obligated to pay all fees applicable to a permit
application as charged by City at the time such application is filed by Developer;
3.9.4 Developer shall be obligated to pay any future fees or assessments
imposed on an area -wide basis, (such landscape and lighting assessments and community
services assessments) provided that Developer reserves its right to protest the
establishment or amount of any such fees or assessments through the method prescribed
by law;
. 3.9.5 Developer shall be obligated to pay any fees imposed pursuant to any
assessment district established in an area which includes the Project otherwise proposed
or consented to by Developer;
3.9.6 Developer shall be obligated to pay any future fees or assessments
imposed as a condition of a Development Approval, even it if such Development
Approval is processed and approved after the Effective Date; and
3.9.7 Developer shall be obligated to pay any fees imposed pursuant to any
Uniform Code.
4. REMOVAL OF BILLBOARDS
4.1 Removal by Developer. Upon the termination of this Agreement, as set forth at
Section 6.2.4, and within ninety (90) days of any notice of termination provided under this
Agreement or within such earlier time as otherwise provided in the Lease, Developer shall, at its
sole cost and expense, completely remove the New Billboards, including, but not limited to, any
structure or facility erected or maintained as part of or in relation to the New Billboards, from the
Billboard Sites. Removal of the New Billboards shall be in accordance with any applicable
federal, State, or local regulations, including regulations of the City, and in accordance with the
Lease. Developer shall, at its sole cost and expense, secure any required permit to remove and
properly transport the New Billboards from the Billboard Sites, and not store any portion of the
removed New Billboards on the Billboard Sites or any other location within the City, except as
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permitted under the then -applicable laws. Developer hereby waives any rights it may have under
federal, State or local laws or other regulations of any kind whatsoever, including, but not limited
to, the California Outdoor Advertising Act (Cal. Business and Professions Code §§ 5200, et
seq.), to challenge the requirement of this Agreement that Developer remove the New Billboards
pursuant to the terms of this Agreement..
4.2 . City's Right to Removal. Should Developer fail to remove the (1) Existing
Billboards within the times and provisions included in the Schedule of Performance or (2) New
Billboards within the times and provisions of Section 4.1, City shall be entitled to remove the
Billboards and dispose of same and exercise its rights under Section 4.3 below to be reimbursed
for such removal. Developer acknowledges and agrees that the City's removal of the Billboards
in accordance this Section 4.2 may occur immediately and City shall not be required to comply
with Section 5.4 or provide any further notice to Developer upon Developer's failure to comply
with Section 4.1 or the Schedule of Performance. Any such removal of the Billboards by City
shall not entitle Developer to any damages of any kind whatsoever against the City provided
such removal was authorized, and Developer hereby releases the City, its officers, employees,
agents or contractors from any claims or liabilities, as defined at Section 7.2.1 below, for any
action by the City, its officers, employees, agents or contractors in removing the Billboards. City
acknowledges that its rights to enter the Site and remove the Billboards are subject to the
execution of a permit to enter in form reasonably acceptable to Owner, as described in Section
5.3 below.
4.3 Bond Requirement. Within the time set forth in the Schedule of Performance,
Developer shall secure, and shall maintain throughout the Term, a performance or surety bond
("Bond") .to guarantee and assure the timely and complete performance of its duties under
Section 4.1, in an amount not less than Seven Thousand Five Hundred and 00/100 Dollars
($7,500.00) per Billboard, for a total bond of Thirty Thousand and 00/100 ($30,000.00) fully
prepaid and renewable for each year of the Term. Developer shall ensure that the bonding
company provides the City with notice of non -renewal within ten (10) days prior to its receipt of
any notice of non -renewal. The Bond shall name the City as obligee and provide at least thirty
(30) days prior notice of any cancellation. Developer shall procure the Bond from underwriters
approved by the City Manager, licensed in California, rated not less than "A-7" by A.M. Best
Company, Inc. The form of the Bond and the surety are subject to the approval of City's Risk
Manager and the City Attorney. A condition of the Bond shall be such that if Developer shall
well and truly perform its obligations under Section 4.1, then the obligation of the Bond shall -
terminate and be void; otherwise it shall remain in full force and effect. City shall execute and
deliver to Developer or Developer's surety company, promptly upon Developer's completion of
Developer's obligations under Section 4.1, such certificates or other documents as either of them
may reasonably request for the purpose of terminating and canceling the Bond by no later than
thirty (30) days after Contractor's completion of its obligations under Section 41.
Should City be required to exercise its rights under Section 4.2 due to Developer's failure to
comply with Section 4.1, or should Developer fail to pay all costs and expenses of removal of the
Billboards as set forth in Section 4.1, City shall be entitled to draw upon the Bond to pay any
expenses incurred by City in exercising its rights under Section 4.2. Developer further
acknowledges and agrees that, should the amount of the Bond be insufficient to pay for all
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services required to disassemble, remove and transport the Billboards in accordance with Section
4.1, Developer shall pay City any difference within no more than 10 days following City's
delivery of an estimate or an invoice demanding payment for such additional costs.
5. REVIEW FOR COMPLIANCE.
5.1 Annual Review. The City Council shall review this Agreement annually, on or
before the anniversary of the Effective Date, to ascertain the good faith compliance by Developer
with the terms of the Agreement ("Annual Review"). However, no failure on the part of City to
conduct or complete an Annual Review as provided herein shall have any impact on the validity
of this Agreement. Developer shall cooperate with the City in the conduct of such any Annual
Review.
5.2 Special Review. The City Council may, in its sole and absolute discretion, order
a special review of compliance with this Agreement at any time at City's sole cost ("Special
Review"). Developer shall cooperate with the City in the conduct of such any Special Review.
5.3 City Rights of Access. Subject to the City's execution of a permit to enter in
form reasonably acceptable to Owner, the City, its officers, employees, agents and contractors,
shall have the right, at their sole risk and expense, to enter the Billboard Sites at all reasonable
times with as little interference as possible for the purpose of conducting the review under this
Section 5, inspection, construction, reconstruction, relocation, maintenance, repair or service of
any public improvements or public facilities located on the Billboard Sites, or to perform any
rights of the City under Section 4.2 above. Any damage or injury to the Site, or to the Billboard
Sites or to the improvements constructed thereon resulting from such entry shall be promptly
repaired at the sole expense of the City. Notwithstanding the foregoing, or any other provision in
this Agreement (including without limitation Section 4.2 above), the City shall have no right
whatsoever to enter the Site unless and until the City executes and delivers to Owner a permit to
enter in form reasonably acceptable to Owner (except that this provision is not intended to
interfere with the City's police powers to address any nuisance, dangerous condition, or other
condition pursuant to the City's ordinances).
5.4 Procedure. Each party shall have a reasonable opportunity to assert matters
which it believes have not been undertaken in accordance with the Agreement, to explain the
basis for such assertion, and to receive from the other party a justification of its position on such
matters. If, on the basis of the parties' review of any terms of the Agreement, either party
concludes that the other party has not complied in good faith with the terms of the Agreement,
then such party may issue a written "Notice of Non -Compliance" specifying the grounds
therefore and all facts demonstrating such non-compliance. The City shall deliver to Owner a
copy of any Notice of Non -Compliance at the same time such Notice of Non -Compliance is
issued to Developer. The party receiving a Notice of Non -Compliance shall have thirty (30)
days to cure or remedy the non-compliance identified in the Notice of Non -Compliance, or if
such cure or remedy is not reasonably capable of being cured or remedied within such thirty (30)
days period, to commence to cure or remedy the non-compliance and to diligently and in good
faith prosecute such cure or remedy to completion. If the party receiving the Notice of Non -
Compliance does not believe it is out of compliance and contests the Notice, it shall do so by
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responding in writing to said Notice within thirty (30) days after receipt of the Notice. If the
response to the Notice of Non -Compliance has not been received in the offices of the party
alleging the non-compliance within the prescribed time period, the Notice of Non -Compliance
shall be conclusively presumed to be valid. If a Notice of Non -Compliance is contested, the
parties shall, for a period of not less than fifteen (15) days following receipt of the response, seek
to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice. In the event
that a cure or remedy is not timely effected or, if the Notice is contested and the parties are not
able to arrive at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15)
day period, the party alleging the non-compliance may thereupon pursue the remedies provided
in Section 6. Neither party hereto shall be deemed in breach if the reason for non-compliance is
due to a "force majeure" as defined in, and subject to the provisions of, Section 9.10.
5.5 Certificate of Agreement Compliance. If, at the conclusion of an Annual
Review or a Special Review, Developer is found to be in compliance with this Agreement, City
shall, upon request by Developer, issue a Certificate of Agreement Compliance ("Certificate") to
Developer stating that, after the most recent Annual Review or Special Review, and based upon
the information known or made known to the City Manager and City Council, that (1) this
Agreement remains in effect and (2) Developer is in compliance. The Certificate, whether issued
after an Annual Review or Special Review, shall be in recordable form and shall contain
information necessary to communicate constructive record notice of the finding of compliance.
.Developer may record the Certificate with the County Recorder. Additionally, Developer may,
at any time, request from the City a Certificate stating, in addition to the foregoing, which
obligations under this Agreement have been fully satisfied with respect to the Billboard Sites.
6. . DEFAULT AND REMEDIES.
6.1 Specific Performance Available. The parties acknowledge and agree that, other
than termination of this Agreement pursuant to Section 6.2, specific performance is the only
remedy available for the enforcement of this Agreement and knowingly, intelligently, and
willingly waive any and all other remedies otherwise available in law or equity. Accordingly,
and not by way of limitation, and except as otherwise provided in this Agreement, neither
Developer nor City shall be entitled to any money damages from the other party by reason of any
default under this Agreement, other than for back due Development Fees or other fees and
charges required to be paid under this Agreement. Further, Developer shall not bring an action
against City nor obtain any judgment for damages for a regulatory taking, inverse condemnation,
unreasonable exactions, reduction in value of property, delay in undertaking any action, or
asserting any other liability for any matter or for any cause which existed or which the Developer
knew of or should have known of prior to the time of entering this Agreement, Developer's sole
remedies being as specifically provided above. Developer acknowledges that such remedies are
adequate to- protect Developer's interest hereunder and the waiver made herein is made in
consideration of the obligations assumed by the City hereunder. The Developer's waiver of the
right to recover monetary damages shall not apply to any damages or injuries to a third party
caused by the City's sole negligence. Notwithstanding the foregoing or any other provision in
this Agreement, nothing contained herein shall be deemed to limit any of Owner's rights or
remedies against Developer for any default or breach by Developer under the Lease.
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6.2 Termination of Agreement.
6.2.1 Termination of Agreement for Material Default of Developer. City, in its
discretion, may terminate this Agreement for any material failure of Developer to
perform any material duty or obligation of Developer hereunder or to comply in good
faith with the terms of this Agreement (hereinafter referred to as "default" or "breach");
provided, however, City may terminate this Agreement pursuant to this Section only after
following the procedure set forth in Section 5.4. In the event of a termination by City
under this Section 6.2.1, Developer acknowledges and agrees that City may retain all
fees, including the Processing Fee and the Development Fee, Developer has paid to City
prior to the date of such termination.
6.2.2 Termination of Agreement for Material Default of City. Developer, in its
discretion, may terminate this Agreement for any material failure of City to perform any
material duty or obligation of City hereunder or to comply in good faith with the term of
this Agreement; provided, however, Developer may terminate this Agreement pursuant to
this Section only after following the procedure set forth in Section 5.4. In addition,
Developer may terminate this Agreement if, despite Developer's good faith efforts, it is
unable to secure the necessary permits and/or compliance with requirements under laws
necessary to effectuate the Project. In the event of a termination by Developer under this
Section 6.2.2, Developer acknowledges and agrees that City may retain all fees, including
the Processing Fee and the Development Fee, Developer has paid to City prior to the date
of such termination.
6.2.3 Rights and Duties Following Termination. Upon the termination of this
Agreement, no party shall have any further right or obligation hereunder except with
respect to (i) any obligations to have been performed prior to said termination, (ii) any
default in the performance of the provisions of this Agreement which has occurred prior
to said termination, (iii) Developer's obligation to remove the Billboards pursuant to
Section 4.1 or (iv) any continuing obligations to indemnify other parties.
6.2.4 Termination of Agreement Upon Commencement of Development of Site.
Notwithstanding any other provision of this Agreement to the contrary, Developer agrees
that this Agreement shall automatically terminate as set forth at Section 2.4, 30 days after
the City notifies Developer that a prospective developer of the Site has submitted. either a
Grading Plan application or application under the Subdivision Map Act to the City, which
prospective development the City finds, in its sole discretion, will conflict with the
presence of the Billboards, at which time Developer shall remove the Billboards from the
Billboard Sites in accordance with Section 4.1 herein.
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xo.. 7. INSURANCE, INDEMNIFICATION AND WAIVERS.
7.1 Insurance.
7.1.1 Types of Insurance.
(a) Liability Insurance. Beginning on the Effective Date hereof and
until completion of the Term, Developer shall, at its sole cost and expense, keep
or cause to be kept in force for the mutual benefit of City, as additional insured,
and Developer comprehensive broad form general liability insurance against
claims and liability for personal injury or death arising from the matters
Developer has agreed to indemnify City hereunder with respect to its use,
occupancy, disuse or condition of the Site, improvements or adjoining areas or
ways, 'affected by such use of the Site or for property damage, providing
protection of a least One Million Dollars ($1,000,000) for bodily injury or death
to any one person, at least Two Million Dollars ($2,000,000) for any one accident
or occurrence, and at least One Million Dollars ($1,000,000) for property damage,
which limits shall be subject to such increases in amount as City may reasonably
require from time to time.
(b) Worker's Compensation. Developer shall also furnish or cause to
be furnished to City evidence. reasonably satisfactory to it that any contractor with
whom Developer has contracted for the performance of any work for which
Developer is responsible hereunder carries worker's compensation insurance as
required by law.
(c) Insurance Policy Form, Sufficiency, Content and Insurer. All
insurance required by express provisions hereof shall be carried only by
responsible insurance companies licensed to do business by California, rated "A"
or better in the most recent edition of Best Rating Guide, The Key Rating Guide
or in the Federal Register, and only if they are of a financial category Class VIII
or better. All such policies shall be non -assignable and shall contain language, to
the extent obtainable, to the effect that (i) the insurer waives the right of
subrogation against City and against City's agents and representatives except as
provided in this Section; (ii) the policies are primary and noncontributing with
any insurance that may be carried by City, but only with respect to the liabilities
assumed by Developer under this agreement; and (iii) the policies cannot be
canceled or materially changed except after thirty (30) days' written notice by the
insurer to City or City's designated representative. Developer shall furnish City
with certificates evidencing the insurance. City shall be named as an additional
insured on all liability policies of insurance required to be procured by the terms
of this Agreement. In the event the City's Risk Manager determines that the use,
activities or condition of the Site, improvements or adjoining areas or ways,
affected by the use of the Site under this Agreement creates an increased or
decreased risk of loss to the City, Developer agrees that the minimum limits of the
insurance policies required by this Section may be changed accordingly upon
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receipt of written notice from the City's Risk Manager; provided that Developer
shall have the right to appeal a determination of increased coverage to the City
Council of City within ten (10) days of receipt of notice from the City's Risk
Manager.
7.1.2 Failure to Maintain Insurance and Proof of Compliance. Developer shall
deliver to City, in the manner required for notices, copies of certificates of all insurance
policies required of each policy within the following time limits:
(1) For insurance required above, within thirty (3 0) days after the
Effective Date or consistent with the requirements of Exhibit "D" (Schedule of
Performance), Item No. 8.
(2) For any renewal or replacement of a policy already in existence, at
least ten (10) days before the expiration or termination of the existing policy or at
least ten (10) days after receipt of such renewal or replacement policy.
If Developer fails or refuses to procure or maintain insurance as required hereby or fails
or refuses to furnish City with required proof that the insurance has been procured and is in force
and paid for, after complying with the requirements of Section 5.4, the City may view such
failure or refusal shall be a default hereunder.
7.2 Indemnification.
7.2.1 General. Developer shall indemnify the City and Owner, and their
respective officers, employees, and agents against, and will hold and save them and each
of them harmless from, any and all actions, suits, claims, damages to persons or property,
losses, costs, penalties, 'obligations, errors, omissions, or liabilities (herein "claims or
liabilities") that may be asserted or claimed by any person, firm, or entity arising out of or
in connection with the work, operations, or activities of Developer, its agents, employees,
subcontractors, or invitees, hereunder, upon the Site, whether or not there is current
passive or active negligence on the part of the City or Owner or any of their respective
officers, agents,or employees, and in connection therewith:
(a) Developer will defend any action or actions filed in connection
with any of said claims or liabilities and will pay all costs and expenses, including
legal costs and attorneys' fees incurred in connection therewith.
(b) Developer will promptly pay any judgment rendered against the
City or Owner or their respective officers, agents, or employees for any such
claims or liabilities arising out of or in connection with such work, operations, or
activities of the Developer hereunder, and Developer agrees to save and hold the
City and Owner and their respective officers, agents, and employees harmless
therefrom.
(c) In the event the City or Owner or any of their respective officers,
agents, or employees is made a party to any action or proceeding filed or
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prosecuted against it . for such damages or other claims arising out of or in
connection with the operation or activities of Developer hereunder, Developer
agrees to pay the City, its officers, agents, or employees, and Developer also
agrees to pay Owner, its officers, agents, or employees, as applicable, any and all
reasonable costs and expenses incurred by the City or Owner or any of their
respective officers, agents, or employees in such action or proceeding, including
by not limited to legal costs including attorneys' fees.
7.2.2 Exceptions. The foregoing indemnity shall not include claims or liabilities
arising from the sole or gross negligence or willful misconduct of the City, its officers,
agents, or employees, who are directly responsible for the City.
7.2.3 Additional Coverage. Without limiting the generality of the foregoing,
Developer's indemnity obligation shall include any liability arising by reason of.
(1) Any claim made by any occupant, subtenant, assignee, employee,
agent, visitor, invitee, or user of any portion of the Site;
(2) Any accident or other occurrence in or on the Site causing injury to
any person or property whatsoever;
(3) Any failure of Developer to comply with performance of all of the
provisions of this Agreement;
(4) Developer's failure to prevent any employee or any invitee or any
other person from entering upon or remaining in any place upon the Site which is
not safe and does not comply with all laws pertaining thereto as they may now or
hereafter exist;
(5) Any harm, delays, injuries or other damages incurred by any party
as a result of any subsurface conditions on the site, including but not limited to,
the presence of buried debris, hazardous materials, hydrocarbons, or any form of
soil contamination.
(a) Loss and Damage. Except as set forth below, City shall not be
liable for any damage to property of Developer, Owner or of others located on the
Site, nor for the loss of or damage to any property of Developer, Owner or others
by theft or otherwise. Except as set forth below, City shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, steam, gas,
electricity, water, rain, dampness or leaks from any part of the Site or from the
pipes or plumbing, or from the street, or from any environmental or soil
contamination or hazard, or from any other latent or patent defect in the soil,
subsurface or physical condition of the Site, or by any other cause of whatsoever
nature. The foregoing two (2) sentences shall not apply (i) to the extent City or its
agents, employees, subcontractors, invitees or representatives causes such injury
or damage when accessing the Site, or (ii) to the extent covered in any permit to
enter executed by the City.
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(b) Period of Indemnification. The obligations for indemnity under
this Section 7.2 shall begin upon the Effective Date and shall survive termination
of Development Agreement.
7.3 Waiver of Subrogation. Developer agrees that it shall not make any claim
against, or seek to recover from City or its agents, servants, or employees, for any loss or damage
to Developer or to any person or property relating to this Project, except as specifically provided
hereunder.
8. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit Developer or
Owner, in any manner, at Developer's or Owner's sole discretion, from encumbering the Site or
any portion thereof or any improvement thereon by any mortgage, deed of trust or other security
device securing financing with respect to the Site. City acknowledges that the lenders providing
such financing may require certain Agreement interpretations and modifications and City agrees
upon request, from time to time, to meet with Developer or Owner and representatives of such
lenders to negotiate in good faith any such request for interpretation or modification. Subject to
compliance with applicable laws, City will not unreasonably withhold its consent to any such
requested interpretation or modification provided City determines such interpretation or
modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the
Site shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this
Agreement shall_ defeat, render invalid, diminish or impair the lien of any
mortgage on the Site made in good faith and for value, unless otherwise required
by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Site, or any part thereof, which Mortgagee has submitted a request in writing to
the City in the manner specified herein for giving notices, shall be entitled to
receive written notification from City of any default by Developer in the
performance of Developer's obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee requesting a
copy of any notice of default given to Developer under the terms of this
Agreement, City shall make a good faith effort to provide a copy of that notice to
the Mortgagee within ten (1.0) days of sending the notice of default to Developer.
The Mortgagee shall have the right, but not the obligation, to cure the default
during the period that is the longer of (i) the remaining cure period allowed such
party under this Agreement, or (ii) sixty (60) days.
(d) Any Mortgagee who comes into possession of the Site, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of
such foreclosure, shall take the Site, or part thereof, subject to the terms of this
Agreement. Notwithstanding any other provision of this Agreement to the �-
contrary, no Mortgagee shall have an obligation or duty under this Agreement to
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perform any of Developer's obligations or other affirmative covenants of
Developer hereunder, or to guarantee such performance; except that (i) to the
extent that any covenant to be performed by Developer is a condition precedent to
the performance of a covenant by City, the performance thereof shall continue to
be a condition precedent to City's performance hereunder, and (ii) in the event any
Mortgagee seeks to develop or use any portion of the Site acquired by such
Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such
Mortgagee shall strictly comply with all of the terms, conditions and requirements
of this Agreement and the Development Approvals applicable to the Site or such
part thereof so acquired by the Mortgagee.
9. MISCELLANEOUS PROVISIONS.
9.1 Recordation of Agreement. This Agreement shall be recorded with the County
Recorder by the City Clerk within 10 days of execution, as required by Government Code
Section 65868.5. Amendments approved by the parties, and any cancellation, shall be similarly
recorded.
9.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties with respect to the subject matter set forth herein, and
there are no oral or written representations, understandings or ancillary covenants, undertakings
or agreements which are not contained or expressly referred to herein. No testimony or evidence
of any such representations, understandings or covenants shall be admissible in any proceeding
of any kind or nature to interpret or determine the terms or conditions of this Agreement.
9.3 Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, then this Agreement shall terminate in its
entirety, unless the parties otherwise agree in writing, which agreement shall not be unreasonably
withheld.
9.4 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of
California. This Agreement shall be construed as a whole according to its fair language and
common meaning, to achieve the objectives and purposes of the parties hereto. The rule of
construction, to the effect that ambiguities are to be resolved against the drafting party or in favor
of the non -drafting party, shall not be employed in interpreting this Agreement, all parties having
been represented by counsel in.the negotiation and preparation hereof.
9.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
9.6 Singular and Plural. As used herein, the singular of any word includes the
plural.
9.7 Time of Essence. Time is of the essence in the performance of the provisions of
,.... this Agreement as to which time is an element.
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9.8 Waiver. Failure of a party to insist upon the strict performance of any of the ,.
provisions of this Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
9.9 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit for the parties and their successors and assigns. No other person shall
have any right of action based upon any provision of this Agreement.
9.10 Force Maj eure. Neither party shall be deemed to be in default where failure or
delay in performance of any of its obligations under this Agreement is caused by earthquakes,
other acts of God, fires, wars, terrorism, riots or similar hostilities, strikes and other labor
difficulties beyond the party's control (including the party's employment force), government
regulations, court actions (such as restraining orders or injunctions), or other causes beyond the
party's reasonable control. If any such events shall occur, the term of this Agreement and the
time for performance shall be extended for the duration of each such event, provided that the
term of this Agreement shall not be extended under any circumstances for more than five (5)
years.
9.11 Mutual Covenants. The covenants contained herein are mutual covenants and
also constitute conditions to the concurrent or subsequent performance by the party benefited
thereby of the covenants to be performed hereunder by such benefited party.
9.12 Counterparts. This Agreement may be executed by the parties in counterparts,
which counterparts shall be construed together and have the same affect as if all of the parties
had executed the same instrument.
9.13 Litigation. Any action at law or in equity arising under this Agreement or
brought by any party hereto for the purpose of enforcing, construing or determining the validity
of any provision of this Agreement shall be filed and tried in the Superior Court of the County of
Los Angeles, State of California, or such other appropriate court in said county. Service of
process on City shall be made in accordance with California law. Service of process on
Developer shall be made in any manner permitted by California law and shall be effective
whether served inside or outside California. In the event of any action between City and
Developer seeking enforcement of any of the terms and conditions to this Agreement, the
prevailing party in such action shall be awarded, in addition to such relief to which such party is
entitled under this Agreement, its reasonable litigation costs and expenses, including without
limitation its expert witness fees and reasonable attorneys' fees.
9.14 Covenant Not To Sue. The parties to this Agreement, and each of them, agree
that this Agreement and each term hereof is legal, valid, binding, and enforceable. The parties to
this Agreement, and each of them, hereby covenant and agree that each of them will not
commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding
against any other party to this Agreement, in law or in equity, or based on an allegation, or assert
in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable,
provided, however, that notwithstanding the foregoing or any other provision in this Agreement, -.•
the covenant not to commence, maintain or prosecute any claim shall not apply with respect to
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an Owner's rights under the Lease, and nothing contained herein shall be deemed to limit any of
Owner's rights or remedies against Developer for any default or breach by Developer under the
Lease.
9.15 Project as a Private Undertaking. It is specifically understood and agreed by
and between the parties hereto that the Development of the Project is a private Development, that
neither party is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between City and Developer is that of a government entity
regulating the Development of private property, on the one hand, and the holder of a legal or
equitable interest in such property on the other hand. City agrees that by its approval of, and
entering into, this Agreement, that it is not taking any action which would transform this private
Development into a "public work" project, and that nothing herein shall be interpreted to convey
upon Developer any benefit which would transform Developer's private project into a public
work project, it being understood that this Agreement is entered into by City and Developer upon
the exchange of consideration described in this Agreement, including the Recitals to this
Agreement which are incorporated into this Agreement and made a part hereof, and that City is
receiving by and through this Agreement the full measure of benefit in exchange for the burdens
placed on Developer by this Agreement, including but not limited Developer's obligation to
provide any public improvement set forth in the Scope of Development.
9.16 Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. -Upon the request of either party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement.
9.17 Eminent Domain. No provision of this Agreement shall be construed to limit or
restrict the exercise by City of its power of eminent domain.
9.18 Amendments in Writing/Cooperation. This Agreement may be amended only
by written consent of both parties specifically approving the amendment and in accordance with
the Government Code provisions for the amendment of Development Agreements. The parties
shall cooperate in good faith with respect to any amendment proposed in order to clarify the
intent and application of this Agreement, and shall treat any such proposal on its own merits, and
not as a basis for the introduction of unrelated matters. Minor, non -material modifications may
be approved by the City Manager upon approval by the City Attorney.
9.19 Corporate Authority. The person(s) executing this Agreement on behalf of each
of the parties hereto represent and warrant that (i) such party, if not an individual, is duly
organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on
behalf of said party, (iii) by so executing this Agreement such party is formally bound to the
21
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01005/0018/40720.07
provisions of this Agreement, and (iv) the entering into this Agreement does - not violate any
provision of any other agreement to which such party is bound.
9.20 Notices. All notices under this Agreement shall be effective when delivered by
(i) personal delivery, or (ii) reputable same-day or overnight courier or messenger service, (iii)
overnight United States Postal Service Express Mail, postage prepaid, or (iv) by United States
Postal Service mail, registered or certified, postage prepaid; and addressed to the respective
parties as set forth below or as to such other address as the parties may from time to time
designate in writing:
To City: City of Irwindale
5050 North Irwindale Avenue
Irwindale, CA 91706
Attn: City Clerk
With Copy to: Aleshire & Wynder, LLP
18881 Von Karman Ave., #400
Irvine, CA 92612
Attn: Fred Galante, Esq.
To Developer: CLEAR CHANNEL OUTDOOR, INC.
19320 Harborgate Way
Los Angeles, California 90501
Attn: Real Estate Manager
With Copy to: CLEAR CHANNEL OUTDOOR, INC.
2850 E. Camelback Road, Suite 300
Phoenix, Arizona 85016
Attn: Martin Felli / Debra Sirower
To Owner: CALMAT CO., dba
VULCAN MATERIALS COMPANY,
WESTERN DIVISION
3200 San Fernando Road
Los Angeles, CA 90065
Attn: Legal Department
9.21 Nonliability of City Officials. No officer, official, member, employee, agent, or
representatives of City shall be liable for any amounts due hereunder, and no judgment or
execution thereon entered in any action hereon shall be personally enforced against any such
officer, official, member, employee, agent, or representative.
9.22 No Brokers. City and Developer represent and warrant to the other that neither
has employed any broker and/or finder to represent its interest in this transaction. Each party
agrees to indemnify and hold the other free and harmless from and against any and all liability,
loss, cost, or expense (including court costs and reasonable attorneys' fees) in any manner
connected with a claim asserted by any individual or entity for any commission or finder's fee in
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connection with this Agreement or arising out of agreements by the indemnifying party to pay
any commission or finder's fee.
9.23 No Amendment of Lease. Nothing contained in this Agreement shall be deemed
to amend or modify any of the terms or provisions of the Lease. Nothing contained in this
Agreement shall constitute or be deemed to constitute a limit on any of Developer's obligations
under the Lease, or any of Owner's rights or remedies against Developer under the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year
first set forth above.
City: CITY OF IRWINDALE
By
jayo4rZ::::Z
ATTE
By
Clerk
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01005/0018/40720.07
Owner: CALMAT CO., a Delaware
corporation dba VULC&MATELS
COMPANY,WESTER
By:
[end of signatures] .
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. STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
%
On , 2006, before me,
-r personally known to me or roved o me on the basis
personally appeared �1� �-ra»m p Y ( p
of satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her authorized capacity, and that by her
signature on the instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
Witness my hand and official seal.
BARBARA DARE Notary Public
Commission # 1470082
*,.m -Notary Public - California � [SEAL]
Loa Angeles County
My Comm. Expires Feb 16, 2008
STATE OF CALIFORNIA )
ss
COUNTY OF LOS ANGELES
On Avp',l 27 , 2006, before me,
personally appeared s, {�►6g �'� personally known to me (or prove to me on e bass
of satisfactory evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
Witness my hand and official seal.
[SEAL]BARBARA DARE
"�- Commission # 1470082
Z , •� S Notary Public - California
+ Los Angeles County
4*
' My Comm. Expires Feb 16, 2008
JILM—
Development Agreement No. 1-05
01005/001814020.07
Notary Public
25
ACKNOWLEDGEMENT
State of CALIFORNIA
)ss.
County of LOS ANGELES
On June 19, 2006 before me, Karen Shields Clark, Notary Public, personally
appeared Brian W. Ferris and Jeffrey L. McCormick personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature• .
My Commission Number is 1447934.
My Commission Expires October 28, 2007.
KAREN SHIELDS CLARK
_ Commission # 1447934
Notary Public - California
Los Angeles County
My Comm. Expkes Oct 28,200
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On 2006, before me, A h I rn bf`� r4,0f-OJ ► 1� C,
personally appeared 14 4n A o fq . r Ad -4- personally known to me
m„4-:_111i111.11rg') to be the person whose name issubscribed to the within instrument
and
acknowledged to me that the executed the same in authorized capacity, and that by
signature on the instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
Witness my hand and official seal.
tom► J. 10MBo
Gomn�aion #-16! 174b
H0ftXV Pie - Caf 0MIC
�►CQt1N�l. AIOW �4.
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES ' )
r
��ary Public
[SEAL]
On , 2006, before me,
personally appeared personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
Witness my hand and official seal.
[SEAL]
Development Agreement No. 1-05
oiOMOOM40720.07
Notary Public
25
Those portions of land lying within the City of Irwindale, County -of Los Angeles, State of
California, being that portion of Parcel 23 of Parcel Map 16600, as per. map filed. in book 1.842
pages 83 through 91 of Parcel Maps, in the office of the County Recorder of said County,
described as a whole as follows:
A strip of land, 50 feet in width, lying southerly. southeasterly, and easterly of the west line of
said Parcel 23. The most northerly point of said west line being a point on the north line of said
Parcel 23, said line shown as having a bearing of "N88°58'53"E" on said Parcel Map. The most
southerly point of said west line being a point on the south line of said Parcel 23; said line shown
as having a bearing of "N80103'59"W" on said Parcel Map.
The no lines of said strip of land to be lengthened or shortened so as to terminate in the
north line of said Parcel 23 of said Parcel Map, said line shown as having a bearing of
"N88°58'53"E" on said Parcel Map. The southerly lines of said strip of land to be lengthened or
shortened so as to terminate' in the south line of said Parcel 23 of said Parcel Map, said line
shown as having a bearing of "N80°03'59"W" on said Parcel Map.
Containing 5.409 acres of land, more or less
Subject to conditions, covenants, rights, restrictions, easements, licenses, permits, leases -and -
rights -of -way of record, if any
All as shown on EXHIBIT" A-,. attached hereto and by this reference made a part hereof.
Prepared by me or under my direction:
, rN
p�
Alan D. Frank, PLS 7172
Expires 12/31/2007
a: o
EXP.12-37-07
ani
Y
4?F CAL'
EXHIBIT B
SCOPE OF DEVELOPMENT
Developer and City agree that the Development shall be undertaken in accordance with the terms
of the Agreement, which include the following:
1. The Project. Developer shall replace the four Existing Billboards on the Site with four
New Billboards in accordance with the terms of this Agreement. The Existing Billboards consist
of four (4), 35' tall, "poster" size freeway -oriented billboards with a total of eight (8) faces (each
face measuring 12' x 25') and replace them with the New Billboards. The New Billboards
consist of four (4), 38' tall, "bulletin" size freeway -oriented billboards with a total of eight (8)
faces (each face measuring 14' x 48') and shall be spaced at approximately 500 -foot intervals.
All utilities necessary for the New Billboards shall be undergrounded and the Billboard Sites
shall be maintained in accordance with the conditions at Paragraph 3 below.
2. Building Fees. Developer shall pay all applicable City building fees, as described at
Section 2.5 of this Agreement, at the time that a building permit is issued for the installation of
the New Billboards on the Billboard Sites.
3. Maintenance Agreement. Developer, for itself and its successors and assigns, hereby
covenants and agrees to be responsible for the following:
(a) Maintenance and repair of the Billboards, including but not limited
to, the displays installed upon the Billboards, and all related on-site
improvements, easements, rights: -of -way and, if applicable, landscaping thereon,
at its sole cost and expense, including, without limitation, buildings, poles,
lighting, signs and walls, in good repair, free of rubbish, debris and other hazards
to persons using the same, and in accordance with all applicable laws, rules,
ordinances and regulations of all federal, State, and local bodies and agencies
having jurisdiction over the Site. Such maintenance and repair shall include, but
not be limited to, the following: (i) sweeping and trash removal; (ii) the care and
replacement of all shrubbery, plantings, and other landscaping in a healthy
condition; (iii) the ongoing maintenance by the Developer of the access road to
the billboards to minimize` dust; and (iv) the repair, replacement and repainting of
the Billboard structures and displays as necessary to maintain the Billboards in
good condition and repair.
(b) Maintenance of the Billboard Sites in such a manner as to avoid
the reasonable determination of a duly authorized official of the City that a public
nuisance has been created by the absence of adequate maintenance such as to be
detrimental to the public health, safety or general welfare or that such a condition
of deterioration or disrepair causes appreciable harm or is materially detrimental
to property or improvements within one thousand (1,000) feet of the Billboard
Sites.
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i
4. Other Rights of City. In the event of any violation or threatened violation of any of the
provisions of this Exhibit `B," then in addition to, but not in lieu of, any of the rights or
remedies the City may have to enforce the provisions of this Agreement, the City shall have the
right, after complying with Section 5.4 of this Agreement, (i) to enforce the provisions hereof
by undertaking any maintenance or repairs required by Developer under Paragraph 3 above
(subject to the execution of a permit to enter in form reasonably acceptable to Owner) and
charging Developer for any costs incurred in performing same, and (ii) to withhold or revoke,
after giving written notice of said violation, any building permits, occupancy permits,
certificates of occupancy, business licenses and similar matters or approvals pertaining to the
Billboard Sites or any part thereof or interests therein as to the violating person or one
threatening violation.
5. No City Liability. The granting of a right of enforcement to the City does not create a
mandatory duty on the part of the City to enforce any provision of this Agreement. The failure
of the City to enforce this Agreement shall not give rise to a cause of action on the part of any
person. No officer or employee of the City shall be personally liable to the Developer, its
successors, transferees or assigns, for any default or breach by the City under this Agreement.
6. Conditions of Approval. The following additional conditions shall apply to the
installation of the New Billboards, which New Billboards shall conform to all applicable
provisions of the Irwindale Municipal Code (IMC) and the following conditions, in a manner
subject to the approval of the Director of Planning:
(a) A building permit will be required, structural calculations shall e
prepared by a licensed civil engineer and approved by the City Engineer.
(b) The four New Billboards shall be located in the same portion of the
Site as the four Existing Billboards, and shall be of the dimensions described in
Section 1, above.
(c) The size of the sign faces of each New Billboard shall not exceed a
maximum area of 850 square feet and shall not to exceed a maximum height of 38
feet, and shall be spaced at intervals that are no less than 500' as depicted in the
Site Plan and Elevations at Exhibit "C" approved by the City as part of the
Development Approvals.
(d) Plans and specifications for the proposed removal of the Existing
Billboards and the installation of the New Billboards, including plans for the
undergrounding of all utilities, shall be submitted to Owner and to the City
Planning and Building Departments for plan check and approval prior to the
issuance of building permits.
(e) Prior to the approval of the final inspection, all applicable
conditions of approval and all mandatory improvements shall be completed to the
reasonable satisfaction of the City and Owner.
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(f) Developer shall maintain the Billboard Sites and use thereof in full ...W..,,
compliance with all codes, standards, policies and regulations imposed by the
City, County, State or federal agencies with jurisdiction over the facilities.
(g) Developer shall, at all time, comply with the approval for the New
Billboards from the California Department of Transportation Outdoor Advertising
Division and shall maintain acceptable clearance between proposed billboards and
Southern California Edison distribution lines.
(h) The Developer shall pay any and all fees due to any public agency
prior to the final issuance of the building permits.
(i) The activities proposed in this Agreement shall be operated
completely upon the Billboard Sites and shall not use or encroach on any public
right-of-way.
0) Developer shall- ensure that all access to the Existing and New
Billboards is kept restricted to the general public to the extent permitted under
local laws.
(k) Developer shall maintain all existing landscaping, including an
automatic irrigation system, within 250 feet of the Existing and New Billboards,
in good form throughout the Term of this Agreement. In addition to its
maintenance requirements under Paragraph 3 above, if any portion of the
landscape provided for the Billboard Sites becomes in need of replacement, the
Developer shall ensure that the replacement is accomplished within fourteen (14)
days of notification by the City, unless such time is extended by the City's
Planning Director if Developer shows unusual circumstances requiring more time
to accomplish such replacement. Developer or Owner may trim such landscaping
so as not to block the Billboards.
(1) Developer shall underground all utilities installed in connection
with the New Billboards.
(m) Developer shall comply with all necessary NPDES requirements
pertaining to the proposed use, to the extent applicable.
(n) All graffiti shall be adequately and completely removed or painted
over within 48 hours of such graffiti being affixed on any structure or fence at the
Billboard Sites.
Development Agreement No. 1-05
01005/0018140720.07
MI
EXHIBIT C
DEPICTION OF BILLBOARD SITES
[see following page]
C-1
01005/0018/40720A
01005/0018/40720.07
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EXHIBIT D
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE
TIME FOR
REFERENCE
PERFORMANCE
1. Developer executes and delivers
February 1, 2006
Recitals
Agreement to City
2. City's Planning Commission holds
January 5, 2006
Recitals
public hearing and recommends
approval of Agreement and
Conditions of Approval
3. City's City Council holds hearings
Within 60 days of item no.
Recitals
to approve Agreement and first and
2 above
second reading of Ordinance
5. Developer to provide copy of Lease
Completed
2.2
and CalTrans approval to City
6. Developer prepares and submits to
Within 120 days of the
3.4
City working drawings and
approval by City of this
specifications and City commences
Agreement
approval process
7. City to approve construction
drawings and specifications
Within 30 days from their
submittal by Applicant
3.4
8. Developer to submit proof of
Prior to commencing any
7.1.2
insurance to City
inspections and work on
the Project
9. Developer to submit proof of bond
Before approval by City
4.3
to City
of this Agreement
10. Developer to obtain all necessary
Within 30 days of plan
3.4
permits and commence the
check approval by City
replacement of the Billboards
11. Developer to complete the
Billboard replacement work
Within 12 months of the
date of execution of this
3.4
Agreement by City
D-1
0 1 005/00 1 8/40720v3
01005/0018/40720.07
It is understood that this Schedule of Performance is subject to all of the terms and
conditions of the text of the Agreement. The summary of the items of performance in this
Schedule of Performance is not intended to supersede or modify the more complete description
in the text; in the event of any conflict or inconsistency between this Schedule of Performance
and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performancemay be altered or amended
only by written agreement signed by both the Developer and the City. Notwithstanding any
extension of the Term in the manner described in, and subject to the provisions of, Section 3.5,
the City Manager shall have the authority to approve extensions of time set forth in this Schedule
of Performance without action of the City Council not to exceed a cumulative total of 180 days.
D-2
01005/0018/407200
01005/0018/40720.07