HomeMy WebLinkAbout705ORDINANCE NO. 705
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPROVING DEVELOPMENT AGREEMENT NO. 01-2015
BETWEEN CITY OF IRWINDALE AND MT. OLIVE STORAGE, LLC, TO
ALLOW THE INSTALLATION OF A V -SHAPED, TWO -PANEL, DIGITAL
DISPLAY BILLBOARD AT THE SOUTH POINT OF PROPERTY
LOCATED AT 2500 E. CENTRAL AVENUE (APN 8604-018 002)
CURRENTLY OCCUPIED BY THE MT. OLIVE SELF -STORAGE
FACILITY EAST OF THE 1-605 FREEWAY AND NORTH OF THE 1-210
FREEWAY IN THE M-2 (HEAVY MANUFACTURING) ZONE SUBJECT
TO CONDITIONS AS SET FORTH HEREIN AND MAKING FINDINGS IN
SUPPORT THEREOF; AND FINDING THE PROJECT EXEMPT FROM
THE PROVISIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY
ACT
WHEREAS, John Bea, on behalf of Mt. Olive Storage, LLC, 2500 E. Central
Avenue, Irwindale, CA 91706, the Applicant, has made a request for approval of a
Development Agreement (Attachment 1) to allow the installation of a V-shaped, two
panel, digital display billboard to replace a previously existing static billboard. The
proposed billboard will consist of two 14'x48' digital panels in a V-shape design facing
east and west bound traffic just north of the 1-210 Freeway and east of the 1-605
Freeway. The billboard will be located at the same location as the previous billboard
and at the same height. The digital panels are proposed on a single pole structure at a
total height of 70 feet from the ground but no higher than the maximum allowed height
of 65 feet as measured from the higher finished grade of the adjacent freeway from
which the advertising display is to be viewed; and
WHEREAS, The Subject Property is zoned M-2 (Heavy Manufacturing). Per
Irwindale Municipal Code (IMC) Subsection 17.72.030, the repair, replacement, or new
installation of a static or digital billboard requires the approval of a Development
Agreement with appropriate standards and public benefits to be negotiated with the
City and complying with all other standards imposed by the IMC; and
WHEREAS, In accordance with the California Environmental Quality Act (CEQA)
of 1970, as amended, and the City of Irwindale environmental guidelines, the City, as
the Lead Agency, has analyzed the project and has determined that the Project is
exempt from the provisions of CEQA pursuant to Section 15061 (b) (3), which states
that the activity is covered by the general rule that CEQA applies only to projects that
have the potential for causing a significant effect on the environment. Where it can be
seen with certainty that there is no possibility that the activity in question may have a
significant effect on the environment, the activity is NOT subject to CEQA. In this case,
a prior static billboard existed at the same location for approximately 30 years and was
removed to make way for the new sign. As such, no further review is required. Further,
the City has determined this project will not have, either individually or cumulatively, an
01005.0005/307086.1 Ordinance No. 705
; Page 1 of 5
adverse impact on fish and wildlife resources in that the billboard is proposed within an
existing paved area. A Notice of Exemption was prepared and will be filed with the
County Clerk pending City Council action following the Planning Commission's
recommendation; and
WHEREAS, On July 20, 2016, the Planning Commission conducted a duly
noticed public hearing, at which time they received input from staff, the City Attorney,
and the Applicant; heard public testimony; discussed the Proposed Project; closed the
public hearing; and, after discussion, approved Resolution No. 683(16) recommending
that the City Council approve Development Agreement No. 01-2015; and
WHEREAS, On August 10, 2016, the project was scheduled before the City
Council as a duly noticed public hearing, at which time they received input from staff,
the City Attorney, and the Applicant; heard public testimony; discussed the Proposed
Project; closed the public hearing; and, after discussion, conducted a first reading of this
Ordinance approving Development Agreement No. 01-2015; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have
occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City Council finds that the above recitals are true and correct
and are incorporated herein by this reference.
SECTION 2. The City Council finds as follows:
Development Agreement Findings:
a. Development Agreement No. 01-2015 is consistent with the provisions of the
Development Agreement statutes, at Government Code sections 65864 et seq.
b. The proposed digital billboard per Development Agreement No. 01-2015 is
consistent with the General Plan and M-2 Zoning designation.
c. Development Agreement No. 01-2015 contains provision for annual review of
Developer's compliance with its terms, is limited in duration for twenty (20) years
following final permit approvals unless duly extended following negotiations between the
City and Mt. Olive Storage, LLC, and specifies the permitted use of the site related to
the billboard and provisions for City access to the site when necessary.
d. Approval of Development Agreement No. 01-2015 is exempt from the
provisions of CEQA pursuant to Section 15061 (b) (3) of the CEQA Guidelines, as
further described above.
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Ordinance No. 705
Page 2 of 5
SECTION 3. In light of the above findings and further testimony and
documentation provided at the public hearing to consider approval of the project
described in Development Agreement No. 01-2015, the City Council hereby approves
Development Agreement No. 01-2015 and authorizes its execution and all actions
necessary to comply with its terms.
SECTION 4. The City Council hereby authorizes and directs the Mayor and the
City Clerk to execute this Ordinance on behalf of the City of Irwindale forthwith upon its
adoption.
SECTION 5. The Deputy City Clerk shall certify as 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 ADOPTE-b,,this 24th day of August, 2016.
Breceda, Mayor
ATTEST:
wwam'mo)
a ra M. Nieto, CMC
D puty City Clerk
01005.00051307086.1
Ordinance No. 705
Page 3 of 5
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES )ss.
CITY OF IRWINDALE }
I, Laura M. Nieto, Deputy City Clerk of the City of Irwindale, do hereby certify that the
foregoing Ordinance No. 705 was duly introduced at a special meeting of the Irwindale
City Council held on the 10th day of August 2016, and was duly approved and adopted
on second reading at its regular meeting held on the 24th day of August 2016, by the
following vote of the Council:
AYES: Councilmembers: Ambriz, Burrola, Ortiz, Mayor Breceda
NOES: Councilmembers: None
ABSENT: Councilmembers: Garcia
ABSTAIN: Councilmembers: None
AFFIDAVIT OF POSTING
I, Laura M. Nieto, Deputy City Clerk, certify that I caused a copy of Ordinance No. 705,
adopted by the City Council of the City of Irwindale at its regular meeting held August
24, 16, to be posted at the City Hall, Library, and Post Office on August 25, 2016.
67
ura M. Nieto, CMC
puty City Clerk
01005.0005/307086.1
Ordinance No. 705
Page 4 of 5
Recording Requested by And
When Recorded Return to:
CITY OF IRWINDALE
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Clerk
[Exempt From Recording Fee Per Gov. Code §61031
DEVELOPMENT AGREEMENT NO. 01-2015
This Development Agreement ("Agreement") is entered into this 24t1' day of August
2016, ("Effective Date") by and between the CITY OF IRWINDALE, a California municipal
corporation ("City") and Mount Olive Storage LLC, a California limited liability company
("Developer").
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 owns that certain portion of real property, located adjacent to north
side of the 210 Freeway, approximately 850 feet east of the 605 Freeway, in the City of
Irwindale, Assessor Parcel Number 8604-018-002, as more specifically described in Exhibit "A"
and partially depicted in Exhibit "C", attached hereto and incorporated herein ("Mount Olive
Site").
C. Pursuant to the terms of this Agreement, Developer seeks to install two
illuminated L.E.D. displays ("Digital Displays") in a v -shape design oriented towards east and
westbound traffic on the 210 Freeway on the Mount Olive Site at the same location where a
double -sided billboard was previously located and removed in April of 2015.
D. Developer owns the Mount Olive Site and, thus, qualifies to enter into this
Agreement in accordance with Development Agreement Law.
E. In exchange for the approvals sought to install the Digital Displays, Developer
has offered to:
1. Pay to the City an annual Development Fee, as defined and provided in
Section 2.6 below, for the cost to the City to mitigate the impact of the installation of the digital
sign panels on the Billboards; and
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Development Agreement — Ordinance No. 705
2. Provide advertising time on the Digital Displays on a space available basis
to the City for public service and civic causes.
F. The Mount Olive Site is located within the City's M-2, Heavy Manufacturing
Zone, designated by the General Plan as IndustrialBusiness Park, and subject to Conditional Use
Permit 15-04 (2006).
G. Developer and City agree that a development agreement should be approved and
adopted to memorialize the property expectations of City and Developer as more particularly
described herein.
H. On July 20, 2016, the Planning Commission of the City, at a duly noticed hearing
to consider the approval of this Agreement, adopted Resolution No. 683(16) recommending
approval of this Agreement to the City Council and the filing of a Notice of Exemption pursuant
to the provisions of the California Environmental Quality Act ("CEQA").
L On August 10, 2016, the City Council of the City, at a duly noticed hearing to
consider the approval of this Agreement, considered the proposal, heard testimony, and
introduced Ordinance No. 705.
J. 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.
Developer will remove the digital displays if an extension of this Agreement is not negotiated
with City and shall have the right to convert the Digital Display to a static billboard with two
facings.
K. On August 24, 2016, the City Council held the second reading of Ordinance No.
705, thereby approving this Agreement.
L. City finds and determines that all actions required of City precedent to approval
of this Agreement by Ordinance No.705 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. In addition to the terms defined in the Recitals above,
the defined terms include the following:
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Development Agreement — Ordinance No. 705
1.1.1 "Agreement" means this Development Agreement and all attachments and
exhibits hereto.
1.1.2 "City" means the City of Irwindale, a California municipal corporation
and charter city.
1.1.3 "City Council" means the City Council of the City.
1.1.4 "Developer" means Mount Olive Storage LLC, a California limited
liability company duly existing and operating, and its successors and assigns, doing
business at 2500 E. Central Avenue, Irwindale, CA 91706.
1.1.5 "Digital Displays" shall have the meaning ascribed in the Recitals above.
1.1.6 "Development Approvals" means the approved Development, based on
the recommended approval by the Planning Commission and approval of the City
Council, as further described at Recital I and Section 3.3 herein.
1.1.7 "Effective Date" means the date inserted into the preamble of this
Agreement, which is 30 days following approval of this Agreement by ordinance of the
City Council, provided the Agreement is signed by the Developer and City.
1.1.8 "Final Permits" shall have the meaning set forth at Section 2.6.
1.1.9 "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, Zoning Code, and Conditional Use Permit 15-04 (2006), which
govern development and use of the Sites, including, without limitation, the permitted use
of land, the density or intensity of use, subdivision requirements, the maximum height
and size of the Digital Displays and the design, improvement and construction standards
and specifications applicable to the Development of the Site which are in full force and
effect as of the Effective Date of this Agreement, subject to the terms of this Agreement.
Land Use Regulations shall also include National Pollutant Discharge Elimination
System ("NPDES") regulations and approvals from the California Department of
Transportation Outdoor Advertising Division, to the extent applicable.
1.1.10 "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.
1.1.11 "Mount Olive Site" shall have the meaning ascribed in the Recitals above.
1.1.12 "Owner" or "Owners" mean the individual or collective owners,
respectively, of the Sites. Specifically, Developer is the current owner of the Mount
Olive Site.
1.1.13 "Project" means the installation, operation and maintenance of the 70 -foot
tall (65 feet maximum from freeway grade), 14 x 48 foot double -sided V-shape Digital
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Development Agreement— Ordinance No. 705
Displays on the Mount Olive Site, all in accordance with the Development Approvals and
this Agreement, including the Scope of Development attached hereto as Exhibit `B",
Schedule of Performance attached hereto as Exhibit "D" and all conditions of approval
and consistent with the approval from the California Department of Transportation
Outdoor Advertising Division.
1.1.14 "Site" refers to the Mount Olive Site, as such site is more specifically
described on Exhibit "A" and depicted on Exhibit "C" attached hereto and incorporated
herein.
1.1.15 "Schedule of Performance" means the Schedule of Performance attached
hereto as Exhibit "D" and incorporated herein.
1.1.16 "Scope of Development" means the Scope of Development attached
hereto as Exhibit `B" and incorporated herein.
1.1.17 "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.
1.1.18 "Term" shall have the meaning 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 Sites), Exhibit `B" (Scope of
Developments), 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 and Developer with respect to the Project, including actions by the City on
applications for Subsequent Development Approvals affecting the Sites, shall be subject to the
terms and provisions of this Agreement.
2.2 Interest in Site. Developer represents to City that Developer has a 100%
ownership interest in the Site and thus is qualified to enter into and be a party to this Agreement
under the Development Agreement Law. Additionally, prior to the execution of this Agreement,
Developer has provided the City with documentation to the City's satisfaction which
demonstrates that Developer holds 100% ownership interest in the Site.
2.3 Assignment. Developer may assign or otherwise transfer this Agreement, or any
part of this Agreement, to any other entity, upon presentation to the City of an assignment and
assumption agreement in a form reasonably acceptable to the City Attorney and the City's
written approval of such assignment or transfer by the City Manager, which shall not be
unreasonably withheld if the assignee is able to demonstrate sufficient financial assets and
experience in undertaking the obligations under this Agreement. However, Developer may, from
01005.0005/264455.6 4
Development Agreement — Ordinance No. 705
time to time and one or more times, assign this Agreement, to another entity without City
approval, but with written notice to the City, as long as (1) Property Owner has and maintains at
least a twenty-five percent (25%) ownership interest in the assignee(s) or transferee(s); and (2)
any assignee(s) or transferee(s) executes an assumption agreement assuming all of Developer's
duties and obligations hereunder to the extent of the interest assigned or transferred. 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) twenty (20) years
after the date Developer receives Final Permits, as defined in Section 2.6 below; (ii) this
Agreement is terminated per Section 6. 1, or; (iii) the permanent removal of the Digital Displays
constructed pursuant to the terms hereof. If one face of the Digital Displays is removed
permanently and which Digital Display may, at Developer's sole discretion, be replaced with a
static face, the then -current Development Fee will be reduced by one half (1/2) and the
Agreement will remain in full force and effect for the second digital face. 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. If no extension of this Agreement is agreed to, then the Digital Displays shall
be removed within the times and as set forth under Section 4 below.
2.5 Processing Fee. Upon submission of its application for the approvals granted by
this Agreement, Developer has paid to City a processing ("Processing Fee") in the amount of
Three Thousand Six Hundred Sixty Six and 001/00 Dollars ($3,666.00), which includes (1) the
Development Agreement fee of $3,000 as an initial deposit for the City Attorney costs of
preparation, (2) Environmental Documentation fee of $250; (3) Public Hearing Notices deposit
of $350, which does not include the actual cost of ads, and (4) a Noticing fee of $66,
representing $2 per parcel times the number of parcels to receive public hearing notices. The
City shall retain and use the Processing Fee, or any part thereof, for any public purpose within
the City's discretion. In addition to the Processing Fee, any additional City Attorney fees
incurred by City in the preparation and negotiation of the Development Agreement, not to
exceed $10,000 plus the actual amount of the costs of the Public Hearing Notice ads, shall be
Developer's responsibility to pay. The Processing Fee shall be separate from all fees which are
standard and uniformly applied to similar projects in the City, including, but not limited to,
business license fees (due by Developer to City annually), one time plan check fee and building
permit fee and any other fees imposed by the City as may be applicable. Additionally, within 30
days of the City providing Developer with a final invoice of legal fees (subject to the above cap)
or incurred by City related to the negotiation and preparation of this Agreement and Public
Hearing Notice ads, Developer shall pay City any outstanding balance of such fees.
2.6 Development Fee. The potential aesthetic impacts of the Project on City and
surrounding community are discussed in the CEQA documents prepared as part the review
process of this Agreement. The Parties agree an annual fee paid by Property Owner to City
would adequately mitigate those aesthetic impacts, because that fee will provide City resources
to install and maintain other aesthetic improvements throughout the community, including, but
not limited to, landscaping, street medians, signs in public parks, street sweeping, street signs
01005.0005/264455.6 5
Development Agreement— Ordinance No. 705
and street lighting. To that end, Developer and City agree that an annual development fee paid
by Developer to City would adequately mitigate all such potential impacts. The parties therefore
agree that, subject to the obligations of Section 2.7 below, Developer shall pay an annual
development fee to City of Sixty Thousand Dollars ($60,000.00) per year (representing $30,000
per Digital Display) thereafter to be adjusted yearly by the change in the price level of the
Bureau of Labor Statistics Producer Price Index for the prior year, increased annually in
proportion to the cumulative increase during the preceding twelve (12) month period (ending
ninety (90) days before the relevant anniversary date to allow for a lag in reporting) in the
Consumer Price Index published by the Bureau of Labor Statistics of the U.S. Department of
Labor for Urban Wage Earners and Clerical Workers, Los Angeles -Riverside -Orange County,
California (1982-84=100) "All Items", or any successor index thereto.
This pay schedule reflects the Development Fee for the operation of two (2) Digital
Display units. The Development Fee shall be paid annually, with the first installment due no later
than one (1) year after Developer receives final approval to construct the Digital Display from
the applicable governmental authorities for any and all required permits to maintain and operate
the Digital Displays as contemplated under this Agreement ("Final Permits"). Developer shall
notify City within five (5) days of its receipt of any income received from use of the Digital
Displays and of all Final Permits for the purpose of determining the date annual payments of the
Development Fee shall commence. Nothing herein relieves the City from its contractual duty to
issue all municipal building permits that are associated with the Project if Developer is in
compliance with the terms of this Agreement. In compliance with the provisions of Government
Code section 65865(e), City shall maintain the Development Fee, it receives pursuant to this
Agreement and other similar agreements in a separate capital facilities account to be expended
for the purpose of enhancing and/or improving the aesthetics of the community within the City
of Irwindale, such as through new street signs, street lighting, increased landscaping, heightened
landscape maintenance, removal of code violations that impact the aesthetics of the community,
and other related aesthetic uses.
2.7 Community Benefits. Developer shall also provide free of charge to City on a
space -available basis, advertising space on the Digital Displays. Such advertising space shall
only be made available for the use of City -related events or agencies. In no event shall the City
make the advertising space available to any competitor of Developer or any third party without
the express, written consent of Developer. City will be responsible for creating the design of any
displays, subject to review and approval of a suggested copy from City by Developer. City will
provide any display in electronic format at no cost to the Developer.
2.8 Prohibited Use. Developer shall not utilize any of the displays on the Billboard
to advertise tobacco, marijuana, hashish, "gentlemen's clubs," adult entertainment businesses,
sexually oriented materials, or use sexually oriented images or language, including, but not
limited to, ads such as "Adult Con", vulgar or obscene images or language, or as may be
prohibited by any City ordinance existing as of the Effective Date of this Agreement or as may
be amended or implemented from time -to -time after the Effective Date and equally -applicable to
all digital displays by any duly and valid city ordinance.
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Development Agreement— Ordinance No, 705
3. DEVELOPMENT AND IMPLEMENTATION OF THE PROJECT.
3.1 Rights to Develop Digital Displays on the Sites. Subject to and during the Term
of this Agreement, Developer shall develop the Project on the Sites in accordance with, and to
the extent of, the Development Approvals, the Land Use Regulations, and this Agreement.
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 Sites, the density and intensity of use of the such Sites, the maximum
height and size of proposed structures, and the design, and improvement and construction
standards and specifications applicable to development of the Project shall be as set forth in the
Land Use Regulations, as such term is defined in Section 1.1.9, 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 or development of any structures or other work of
improvement upon the 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) applicable NPDES requirements pertaining to the Project, (3) all applicable
building codes, except as may be permitted through approved variances and modifications.
Developer shall pay all normal and customary fees and charges applicable to such permits, and
any fees and charges hereafter imposed by City in connection with the Project which are
standard and uniformly -applied to similar projects in the City.
3.4 Timing of Project; 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 Digital Displays on the Sites
as soon as possible following Developer's receipt of Development Approvals. 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 Agreement. In such case, the timeline to commence or complete the
relevant task shall be extended in the manner set forth at Section 9.10. Notwithstanding the
above, Developer shall, at all times, comply with all other obligations set forth in this Agreement
regarding the construction of the Project on the Sites, Developer shall also maintain the Digital
Displays 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.
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Development Agreement — Ordinance No. 705
The purpose of this Agreement is to set forth the rules and regulations applicable to the
Project, which shall be accomplished in accordance with this Agreement, including the Scope of
Development (Exhibit `B") which sets forth a description of the Project and the Schedule of
Performance (Exhibit "D").
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 that the City may request written consent from Owner if
the modification is deemed material. The Parties acknowledge that City shall be permitted to use
its inherent land use authority in deciding whether to approve or deny any such amendment
request; provided, however, that in exercising the foregoing the City shall use reasonable
discretion and 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 twenty-four
(24) months total is an example of a non -substantive change, which the City Manager, in his or
her reasonable discretion, may approve in writing. Nothing herein shall cause Developer to be in
default if it upgrades the digital display installed pursuant to this Agreement during the term of
this Agreement to incorporate newer technology; provided Developer shall secure all applicable
ministerial permits to do so and such upgrade is consistent with the dimensions and standards for
the displays, as provided under this Agreement, Land Use Regulations and Subsequent Land Use
Regulations
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 Project:
(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.
(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. Notwithstanding the
foregoing, if such change materially changes Developer's costs or otherwise materially
impacts its performance hereunder, Developer may terminate this Agreement upon ninety
(90) days prior written notice.
(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
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Development Agreement — Ordinance No. 705
adopted prior to the issuance of a building permit for development of the Digital
Displays. Notwithstanding the foregoing, if such change materially changes Developer's
costs or otherwise materially impacts its performance hereunder, developer may
terminate this Agreement upon ninety (90) days prior written notice.
(d) Regulations that are not in conflict with the Development Approvals or
this Agreement.
(e) 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 Project.
(f) Applicable Federal, State, County, and multi jurisdictional laws and
regulations which City is required to enforce as against the Sites or the development of
the Project and that do not have an exception for existing signs or legal nonconforming
uses.
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 applicable 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,
and there is no exception for the legal nonconforming use, 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. Notwithstanding the foregoing, if such change
materially changes Developer's costs or otherwise materially impacts its performance
hereunder, Developer may terminate this Agreement upon ninety (90) days prior written
notice.
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 Project 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 Digital Displays and the Site that do not
have an exception for a legal nonconforming use. To the extent such other public agencies
preclude development or maintenance of the Project and that do not have an exception for a legal
nonconforming use, Developer shall not be further obligated under this Agreement except as
provided in Section 4.1. Notwithstanding the`foregoing, if such action by another public agency
materially changes Developer's costs or otherwise materially impacts its performance hereunder,
01005.0005/264455.6 9
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Developer may terminate this Agreement upon ninety (90) days prior written notice or request a
change or amendment pursuant to Paragraph 3.5, ante.
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 of benefit 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 It being understood, however, that if the there is a material increase in cost
to Developer or such action by City otherwise materially impacts developer's its
performance hereunder, Developer may terminate this Agreement upon ninety (90) days
prior written notice
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 Agreement and/or the Development Approvals. However, this
Agreement shall not prohibit the application of fees, taxes or assessments upon the Site and not
the Digital Displays or Developer, including the following:
3.9.1 Developer shall be obligated to pay those fees, taxes or City assessments
and any increases in same which exist as the Effective Date or are included in the
Development Approvals;
3.9.2 Developer shall be obligated to pay any fees or taxes, and increases
thereof, imposed on a City-wide basis such as, but not limited to, business license fees or
taxes or utility 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 fees imposed pursuant to any
Uniform Code that existed when the application is filed by the Developer or that exists
when the Developer applies for any Subsequent Development Approval.
3.10 Notwithstanding anything to the contrary herein, if there is a change is such fees
to those charges as of the full execution hereof or any additional fees are charged and such
additional or increased fees materially change Developer's costs or otherwise materially impacts
01005.0005/264455.6 10
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its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior
written notice.
4. REMOVAL OF DIGITAL DISPLAYS
4.1 Removal by Developer. Developer has the right to negotiate an extension of the
Term as an amendment to this Agreement. If the extension of the Term is not granted by the
City, the Digital Displays will be removed and both displays may be converted back to static
displays. Should City be required to enforce the terms of this Agreement and removal of the
Digital Displays, Developer shall reimburse City its reasonable city staff, consultant and City
Attorney costs incurred in securing such removal; provided, however, that the right to recover
such costs and fees is reciprocal, pursuant to Sec. 1717, California Civil Code. Notwithstanding
the foregoing, within the term of this Agreement, as may be duly extended per the terms herein,
Developer reserves the right, in Developer's sole and absolute discretion, to replace the Digital
Displays with other digital displays that conform to the requirements of this Agreement, to
upgrade the digital displays, or to permanently remove one or both of the Digital Displays.
4.2 City's Right to Removal. Provided Developer is not in material breach hereof
past any applicable notice and cure period, City will not have the right to remove the Digital
Displays. Should such a breach occur, City may only require removal of the Digital Displays
within ninety (90) days of City's notice to Developer of such breach.
5. REVIEW FOR COMPLIANCE.
5.1 Annual Review. The City Council shall review this Agreement annually at city's
sole cost, on or before the anniversary of the Term, 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 and provide the following information and documentation to the City at least
thirty (30) days before the anniversary of the Term: (1) description of all complaints from
Caltrans or the City regarding the Digital Displays or Billboards, (2) description of all
complaints from the public regarding the display unrelated to any content of the message
displayed, (3) any updates to Developer's contact information related to complaints concerning
the billboards, as required in the conditions at Exhibit "B", Section 6 herein, (4) status and
amount of all payment obligations to the City required under this Agreement for the year in
question and cumulatively beginning from the Commencement of the Project herein, (5) any
easement or lease changes that could in any way materially impact the City or the obligations
under this Agreement, (6) any utility changes that could in any way materially impact the City or
the obligations under this Agreement, (7) any maintenance issues addressed or needing to be
addressed per the requirements of Exhibit `B", and (8) whether any City messages per Section
2.8 have been displayed during the preceding year of the Term and a description of the duration
of such displays.
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.
01005.0005/264455.6 11
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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 Sites at all reasonable times with
as little interference as possible for the purpose of assuring compliance with this Agreement,
conducting the review under this Section 5, as well as inspection, construction, reconstruction,
relocation, maintenance, repair or service of any public improvements or public facilities located
on the Sites, or to perform any rights of the City under Section 4.2 above. Prior to any such
entry by City, City will deliver Developer twenty-four (24) hour written notice of its intention to
enter. This notice shall be delivered to Developer's office at 1500 Crestfield Drive, Duarte, CA
91010 (which serves as the mailing address for Developer's address identified in Section 1.1.4),
during business hours. Any damage or injury to the 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).
Notwithstanding anything to the contrary herein, in no event will City representatives ever climb
up the pole of the sign during any inspection.
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 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 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 parry 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
01005.0005/264455.6 12
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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 Sites.
6. DEFAULT AND
6.1 Termination of Agreement.
6. 1.1 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 6.1.1, Developer acknowledges and agrees that City may retain all fees
accrued up to the date of the termination, including the Processing Fee and the
Development Fee paid up to the date of termination, and Developer shall pay the prorated
amount of the Development Fee within sixty (60) days after the date of termination and
removal of the Digital Displays that equates to the percentage of time elapsed in the year
of the Term at the time of termination.
6.1.2 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 6.1.2, Developer acknowledges and agrees that City may retain all fees, including
the Processing Fee and the Development Fee paid up to the date of termination, and
Developer shall pay the prorated amount of the Development Fee within sixty (60) days
after the date of termination and removal of the Digital Displays that equates to the
percentage of time elapsed in the year of the Term at the time of termination.
6.1.3 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 Digital Displays pursuant
to Section 41 or (iv) any continuing obligations to indemnify other parties.
01005.0005/264455.6 13
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7. INSURANCE, INDEMNIFICATION AND WAIVERS.
7.1 Insurance.
7.1.1 Types oflnsuranee
(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 liabilities covered by the indemnification provisions of section 7.2.
Developer has agreed to indemnify City hereunder to the extent of the liability
insurance coverage 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. Developer shall also furnish or cause
to be furnished to City evidence that any contractors with whom Developer has
contracted for the performance of any work for which Developer is responsible
maintains the same coverage required of Developer.
(b) Worker's Compensation. Developer shall also furnish or cause to
be furnished to City evidence 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 qualified to do business by California with an
AM Best Rating of no less than "A". 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 written notice by
the insurer to City or City's designated representative as expeditiously as
insurance company agrees to provide notice. 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.
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:
01005.0005/264455.6 14
Development Agreement — Ordinance No. 705
(1) For insurance required above, within seven (7) days after the
Effective Date or consistent with the requirements of Exhibit "D" (Schedule of
Performance), Item No. 8.
(2) The City can request to see updated copies of the current
certificates of all insurance policies required. The City reserves the right to obtain
copies of the entire insurance policy, including endorsements.
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 or to attack, set aside,
void or annul, any approval of the City, its advisory agencies, appeal boards, or
legislative body concerning this Agreement and related Resolutions or Ordinance No,
705. The City will promptly notify the permittee of any such claim, action, or proceeding
against the City and will cooperate fully in the defense. To this end,
(a) Developer will defend any action or actions filed in connection
with any of said claims or liabilities covered by the indemnification provisions
herein and will pay all costs and expenses, including legal costs and attorneys'
fees incurred in connection therewith, which attorneys will be the attorneys hired
by the insurance company where insurance coverage applies.
(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.
7.2.2 Exceptions. The foregoing indemnity shall not include claims or liabilities
arising from the sole 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:
01005.0005264455.6 15
Development Agreement — Ordinance No. 705
(1) Any accident or other occurrence in or on the Site causing injury
to any person or property whatsoever caused by Developer;
(2) Any failure of Developer to comply with performance of all of the
provisions of this Agreement;
(3) Any harm, delays, injuries or other damages incurred by any party
as a result of any subsurface conditions on the site caused solely by Developer,
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, Owners or of others located on
the Site, nor for the loss of or damage to any property of Developer, Owners 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 or entering the Site or to the extent they cause any
damage to any improvements thereon, or (ii) to the extent covered in any permit
to enter executed by the City.
(b) Period of Indemnification. The obligations for indemnity under
this Section 7.2 shall begin upon the Effective Date and shall survive termination
of this Agreement.
7.3 Waiver of Subrogation. Developer and City each agrees that it shall not make
any claim against, or seek to recover from the other or its agents, servants, or employees, for any
loss or damage to it or to any person or property relating to this Project, except as specifically
provided hereunder which include but is not limited to, a claim or liability arising from the sole
negligence or willful misconduct of the City, its officers, agents, or employees, who are directly
responsible for the City.
8. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit Developer, in any
manner, at Developer'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
01005.0005/264455.6 16
Development Agreement — Ordinance No. 705
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 Project or 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
Project or 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 (10) 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 Project or 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 Project or 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 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 Project or 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 Project or 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 ten (10) days of execution, as required by Government Code
Section 65868.5. Amendments approved by the parties, and any cancellation, shall be similarly
recorded.
01005.00051264455.6 17
Development Agreement — ordinance No. 705
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 that term, provision, covenant or
condition of this Agreement shall be stricken and the remaining portion of this Agreement shall
remain valid and enforceable if that stricken term, provision, covenant or condition is not
material to the main purpose of this agreement, which is to allow the Project to be permitted and
operated and to provide the Development Fee to the City; otherwise, 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.
9.8 Waiver. Failure of a party to insist upon the strict performance of any of the
provisions of this Agreement by the other parry, or the failure by a parry to exercise its rights
upon the default of the other party, shall not constitute a waiver of such parry'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 the Owners, as well as their successors and
assigns. No other person shall have any right of action based upon any provision of this
Agreement.
9.10 Force Majeure. Notwithstanding the contrary herein, 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, rains, winds, wars, terrorism, riots
or similar hostilities, strikes and other labor difficulties beyond the party's control (including the
01005.0005/264455.6 18
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parry's employment force), government actions and regulations (other than those of the City),
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 and
further provided that if such delay is longer than six (6) months, Developer may terminate this
Agreement upon written notice to City and City shall return to developer any portion of the
Development fee paid for any period after the effective date of such termination..
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 effect 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, which is based on an allegation, or
assert in any such action, that this Agreement or any term hereof is void, invalid, or
unenforceable.
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 activity, 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
Project into a "public work" project, and that nothing herein shall be interpreted to convey upon
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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.
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 aclmowledgment 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 or Developer's right to seek and
collect just compensation or any other remedy available to it.
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
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
United States Postal Service mail, registered or certified, postage prepaid return receipt
requested; 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 by providing notice to the other party:
To City: City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Manager
01005.0005/264455.6 20
Development Agreement — Ordinance No. 705
With Copy to: Aleshire & Wynder, LLP
18881 Von Karman Ave., #1700
Irvine, CA 92612
Attn: Fred Galante, Esq.
To Developer: Mt. Olive Storage, LLC
John Bea
1500 Crestfield Drive
Duarte, CA 91010
With Copy To: Carlos Bea
2727 Pierce St.
San Francisco, CA 94123
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.
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 connection with
this Agreement or arising out of agreements by the indemnifying party to pay any commission or
finder's fee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year
first set forth above.
City: CITY OF IRWINDALE
Mark A. Breceda, Mayor
ATTEST:
By
City Clerk
APPROVED AS TO FORM:
By
City Attorney
01005.0005/264455.6 21
Development Agreement — Ordinance No. 705
Developer: MT. OLIVE STORAGE, A
CALIFORNIA LIMITED
LIABILITY COMPANY
[end of signatures]
01005.0005/264455.6 22
Development Agreement — Ordinance No. 705
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On 2016, 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 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.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss
COUNTY OF LOS ANGELES )
On 2016, 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.
Notary Public
[SEAL]
01005.0005264455.6 23
Development Agreement — Ordinance No. 705
EXHIBIT "A"
LEGAL DESCRIPTION OF SITES
Mount Olive Site:
Development Agreement— Ordinance No. 667 A-1
EXHIBIT B
SCOPE OF DEVELOPMENT
Developer and City agree that the Project shall be undertaken in accordance with the terms of the
Agreement, which include the following:
1. The Project. The use authorized by this Agreement allows for the replacement of an a
formerly existing on-site advertising pole sign (`Billboard") with 2 outdoor advertising sign
faces as Digital Displays. The former Billboard was a double -sided static display. A Digital
Display, as further defined in this Agreement, as an off-site sign face that uses digital technology
to change the static messages on the sign electronically. This type of display shall not contain
video, animation, movement, flashing or the appearance of movement. The Digital Display only,
contains only messages that are static for eight (8) seconds at a time and then change to the next
message. To this end, Developer shall replace a former double -sided static display Billboard
with a 14 x 48 foot double -sided V -display Digital Display Billboard, facing East and West, 850
feet East of Interstate 605 freeway in the City of Irwindale. Developer shall operate and maintain
the Digital Displays on the Sites in accordance with the Development Approvals and this
Agreement and all conditions of approval and consistent with the approval from the California
Department of Transportation Outdoor Advertising Division. The former Billboard consisted of
a 12 x 48 foot double -sided static display billboard that was freeway -oriented having a single
support column and which will be replaced with Digital Displays pursuant to the terms of this
Agreement. The Digital Display shall comply with Section 17.72.050, General Standards, of the
Irwindale Municipal Code. Specifically, the area of the sign face shall not exceed six hundred
seventy-five (675) square feet, excluding border, trim, cutouts and other special advertising
features or additions and base or apron supports and other structural members. The building
height may not exceed sixty-five (65) feet or, exclusive of cutouts or special additions, measured
from the higher of either: 1) The finished grade of the roadway adjacent to the lot on which the
structure is located (the 210 Freeway) and from which the advertising display is to be viewed; or
2) The finished grade of the base of the sign. Developer shall install underground all utilities
necessary for the Digital Displays. The Digital Displays shall be constructed in the location
shown therefor on Exhibit "C."
The existing Mt. Olive Storage on -premises advertising (allowing only the display of the
business on-site) sign consists of a 10 x 15 foot double sided static sign and will remain in place
22 feet from the Digital Display.
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 Digital Displays on the Sites.
3. Maintenance and Access. Developer, for itself and its successors and assigns, hereby
covenants and agrees to be responsible for the following:
Development Agreement— ordinance No. 705 B-1
(a) Maintenance and repair of the Digital Displays, including but not
limited to, the displays installed thereon, and all related on-site improvements,
easements, rights-of-way and, if applicable, at its sole cost and expense,
including, without limitation, poles, lighting, signs and walls, in good repair, free
of graffiti, 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
unless those federal, State, and local bodies have an exception for a legal
nonconforming use. Such maintenance and repair shall include, but not be limited
to, the following: (i) sweeping and trash removal related to the Project; (ii) the
ongoing maintenance by the Developer of any access road to the Digital Displays
to minimize dust caused by the Project; (iii) the adequate and complete removal
or painting over of all graffiti within 48 hours of notice of such graffiti being
affixed on the Digital Displays; and (iv) the repair, replacement and repainting of
the structures and displays as necessary to maintain such Digital Displays in good
condition and repair.
(b) Maintenance of the 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 of the Project
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 three hundred (300)
feet of the Sites.
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 and
charging Developer for any actual maintenance 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 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 Digital Displays and shall conform to all applicable provisions of the Irwindale
Municipal Code (IMC), including but not limited to the Outdoor Advertising provisions of the
IMC at Section 17.72.030, and the following conditions, in a manner subject to the approval of
the Community Development Director or designee:
Development Agreement—Ordinance No. 705 B-2
(a) Conditions to be met before Final Permits. Prior to the issuance of
a business license, occupancy permit, final inspection by the Community
Development Department, and Final Permits, all applicable conditions of
approval (except those involving construction permits) shall be completed to the
reasonable satisfaction of the City.
(b) Building Permit. A building permit from the Building and Safety
Division will be required, structural calculations shall be prepared by a licensed
civil engineer and approved by the City Building Official. All construction shall
be in compliance with the Irwindale Building Code and all applicable regulations
including Caltrans Advertising Department.
(c) Plans. The use and improvements authorized by this Agreement
shall conform to the plans as finally approved by the City (date stamped July 20,
2016) as conditioned herein, and any appreciable modification of the plans or
mode of operation, as determined by the Director of Community Development,
shall require the prior approval of the Planning Commission.
(d) Digital Display dimensions. The size of each sign display of
Digital Displays shall not exceed a maximum area of 675 square feet, with no
more than 128 total feet of extensions or borders, and shall not to exceed a
maximum height of 65 feet, as measured per Section 17.72.050 standards,
including all extensions, and shall be consistent with the Elevations at Exhibit
"C" approved by the City as part of the Development Approvals.
(e) Plan Check. Plans and specifications for the proposed installation
of the Digital Displays, including plans for all utilities, shall be submitted to the
City Community Development and Building Departments for plan check and
approval prior to the issuance of building permits.
(f) Compliance with applicable law. Developer shall maintain the
Sites and use thereof in full compliance with all applicable codes, standards,
policies and regulations imposed by the City, County, State or federal agencies by
any dully and valid city, county or state ordinance with jurisdiction over the
facilities, unless the Project is exempted as a legal nonconforming use.
(g) Developer shall, at all time, comply with the approval for the
Digital Displays from the California Department of Transportation Outdoor
Advertising Division and shall maintain acceptable clearance between the Digital
Displays and utility distribution lines.
(h) Fees. The Developer shall pay any and all applicable fees due to
any public agency prior to the final issuance of the building permits.
(i) Use within Sites. The activities proposed in this Agreement shall
be conducted completely upon the respective Site and shall not use or encroach on
any public right-of-way.
Development Agreement— Ordinance No. 705 B-3
(j) Access Roads. Developer shall ensure that all access to the Digital
Displays is kept restricted to from the general public to the extent permitted under
local laws.
(k) Landscaping. If any portion of the landscape or artwork installed
adjacent to the Digital Displays is damaged by the Project and becomes damaged,
or otherwise in need of replacement, as determined by the City's Community
Development Department Director or designee, 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 Community Development
Director or designee 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) Utilities. Developer shall be required to install all utilities
underground in connection with the Digital Displays. To this end, City shall
cooperate with the applicable utility provider's requirement upon Developer to
upgrade Developer's current electrical service to the Billboards.
(m) Light/Glare. Developer shall comply with State law regarding the
limitation of light or glare or such other standards as adopted by the Outdoor
Advertising Association of America, Inc. (OAAA), including but not limited to,
the 0.3 foot-candles limitation over ambient light levels and ensuring additional
flexibility in further reducing such maximum light level standard given the
lighting environment upon request by the City's Planning Officer, the obligation
to have automatic diming capabilities, as well as providing the City's Planning
Officer or designee with a designated Developer employee's phone number
and/or email address for emergencies or complaints that will be monitored 24
hours a day/7 days per week. Upon any reasonable complaint by the City's
Planning Officer or designee, Developer shall perform a brightness measurement
of the display using OAAA standards, or such lower level given the lighting
environment, and provide City with the results of same within 5 days of the City's
complaint. Developer shall dim the display to the appropriate setting immediately
upon the conclusion of any such measurement that concluding that the light
standards were exceeded.
(n) Public Works:
(1) NPDES. Developer shall comply with all necessary
NPDES requirements pertaining to the proposed use, to the extent
applicable.
(2) Separate permits are required for all work within the public
right-of-way. The applicant shall be responsible for all fees for the
necessary permits and construction inspections for work within the public -
right -of -way.
Development Agreement— Ordinance No. 705 B-4
EXHIBIT C
DEPICTION OF SITES
[See following pages]
01005.0005/264455.6 RK Development Agreement —Ordinance No. 667
C-1
EXHIBIT D
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE
TIME FOR
REFERENCE
PERFORMANCE
1. Developer to provide proof of
At least 20 days before
2.2
100% ownership to the
Planning Commission hearing
satisfaction of the City.
2. City's Planning Commission
July 20, 2016
Recitals
holds public hearing and
recommends approval of
Agreement and Conditions of
Approval
3. City's City Council holds
August 10, 2016 (1" Reading);
Recitals
hearings to approve Agreement
August 24, 2016 (2nd Reading)
and first and second reading of
provided Developer has fully
Ordinance
executed the Agreement
4. Effective Date of this Agreement.
30 days following Council's
N/A
second reading of Ordinance, or
September 26, 2016.
5. Developer prepares and submits
Within 120 days of the
3.4
to City working drawings
Council's second reading of the
specifications and engineering,
Ordinance approving this
City commences approval
Agreement
process.
6. Developer to provide copy of
Prior to the City's issuance of
1.1.13
Caltrans preliminary approval to
all necessary permits per No. 7
City
below
7. City to approve all construction,
Within 30 days of City's receipt
3.3, 3.4
engineering drawings and
of Applicant's construction
specifications with a plan check
drawings and specifications
approval and issue all necessary
addressing all of City's
permits, including but not limited
comments
to, a building permit.
8. Developer to submit proof of
Prior to commencing any
7.1.2
insurance to City
inspections and work on the
Project
01005.0005/264455.6 RK D-1
FITEM OF PERFORMANCE
TIME FOR
PERFORMANCE
REFERENCE
9. Developer pays City first
Within 1 year of Developer
2.6
installment of Development Fee if
receiving Final Permits
Developer receives Final Permits
10. Developer pays City second
Beginning within 2 years of
2.6
through twentieth installments of
Developer receiving Final
Development Fee if Developer
Permits, and ending 20 years
receives Final Permits
thereafter. Each payment
occurring at the end of each
year of the Term.
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 Performance may 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.
Development Agreement— ordinance No. 705 D-2