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HomeMy WebLinkAbout771ORDINANCE NO. 771 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE APPROVING DEVELOPMENT AGREEMENT NO. 01-2022 BETWEEN CITY OF IRWINDALE AND KBS HOLDCO LLC, DBA REGENCY OUTDOOR ADVERTISING, TO ALLOW FOR THE DIGITAL CONVERSION OF AN EXISTING STATIC BILLBOARD LOCATED AT THE INTERSECTION OF THE 1-605 (NORTHBOUND) AND THE 1-210 (EASTBOUND) FREEWAYS (APN: 8533-009-014) IN THE M-2 (HEAVY MANUFACTURING) ZONE SUBJECT TO THE 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 A. RECITALS. WHEREAS, Andrew Goodman, on behalf of KBS Holdco, LLC, dba Regency Outdoor Advertising (the "Applicant"), has made a request for approval of a Development Agreement (Exhibit A) to allow the conversion of an existing static billboard into a digital display billboard along Interstate 210 (1-210) Freeway just east of the intersection with Interstate 605 (1-605) Freeway in Irwindale, APN: 8533-009-014 ("Subject Property"). The proposed Development Agreement allows the applicant to either keep the parallel panel configuration or to rearrange the panel configuration into a W" shaped panel configuration. If structurally feasible, the digital billboard panels will be placed on the existing support structure, otherwise, the existing structure will be demolished and a new support structure will be installed. Any new support structure will not increase the height of the existing structure. The digital billboard will have a total height of 85 feet from the ground and will stand no more than 65 feet above the freeway grade, due to a grade difference; and WHEREAS, the Subject Property is zoned M-2 (Heavy Manufacturing). Per Irwindale Municipal Code (IMC). section 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, pursuant to the authority and criteria contained in 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 Categorically Exempt from the provisions of CEQA pursuant to Section 15303 (Class 3; New Construction or Conversion of Small Structures) and no further review is required. Also, the City has determined that this project will not have, either individually or cumulatively, an adverse impact on fish and wildlife resources. Subject to approval of the project by the City Council based on a recommendation by the Planning Commission, a Notice of Exemption will be filed with the office of the Registrar- Recorder/County Clerk, County of Los Angeles; and WHEREAS, on June 21, 2023, the Planning Commission conducted a duly noticed Ordinance No. 771 Page 1 public hearing, at which time they received a presentation from staff; opened the public hearing and heard testimony from the Applicant and the public; closed the public hearing; and discussed the Proposed Project; and, after discussion and consideration of substantial evidence including the testimony, staff report, and all attachments thereto, approved and adopted Resolution No. 818(22) recommending that the City Council approve Development Agreement No. 01-2022; and WHEREAS, on July 12, 2023, 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 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. 01-2022, and WHEREAS, on July 26, 2023, the City Council duly approved and adopted on second reading, Ordinance No. 711; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council finds that all of the facts set forth in Recitals, Part A, of this Ordinance are true and correct, and incorporated herein by this reference. SECTION 2. The City Council finds as follows: a. Development Agreement No. 01-2022 is consistent with the provisions of the Development Agreement statutes, at Government Code section 65867.5. b. The proposed digital billboard conversion per Development Agreement No. 01-- 2022 is consistent with the General Plan, including the General Plan Land Use and Economic Development policies in the Community Development Element. These policies provide for comprehensive land use planning to preserve the overall mix of land uses and development in the community, which includes digital billboards, and provides for the pursuit and promotion of economic development to provide revenue to the City. c. Development Agreement No. 01--2022 contains a provision for annual review of Developer's compliance with its terms, is limited in duration for thirty (30) years following final permit approvals unless duly extended following negotiations between the City and KBS Holdco, LLC, dba Regency Outdoor Advertising, and specifies the permitted use of the site related to the billboards and provisions for City access to the site when necessary. Ordinance No. 771 Page 2 d. The project, as proposed, is exempt from the provisions of the California Environmental Quality Act (CEQA), pursuant to 15303 (Class 3; New Construction or Conversion of Small Structures), SECTION 3. Based upon substantial evidence presented to this City Council during the public hearing conducted with regard to the Application and set forth herein above, this City Council hereby approves Development Agreement No. 01-2022, attached hereto and by this reference incorporated herein. The Development Agreement is necessary to protect the public health, safety and general welfare and is reasonable and proper in accordance with the intent and purposes of Title 17 of the Irwindale Municipal Code. Therefore, the City Council hereby approves Development Agreement No. 01-2022 and authorizes its execution and all actions necessary to comply with its terms. SECTION 4. The City Council hereby authorizes and directs the Mayor, Chief Deputy City Clerk to execute this Ordinance on behalf of the City of Irwindale forthwith upon its adoption. SECTION 5. The Chief Deputy City Clerk Shall: a. Certify to the adoption of this Ordinance and shall cause the same to be published and/or posted at the designated locations in the City of Irwindale; and b. Forthwith transmit a certified copy of this Ordinance, by certified mail to the Applicant at the address of record set forth in the Application. PASSED, APPROVED, AND ADOPTED this 26th day of July 2023. l i� H. Manuel Ortiz, Mayor ATTEST: M. Nieto, MMC Deputy City Clerk Ordinance No. 771 Page 3 STATE OF CALIFORNIA } COUNTY OF LOS ANGELES } ss. CITY OF IRWINDALE } 1, Laura M. Nieto, Chief Deputy City Clerk of the City of Irwindale, do hereby certify that the foregoing Ordinance No. 771 was duly introduced by the City Council of the City of Irwindale, at a regular meeting held on the 12t" day of July 2023, and was duly approved and adopted on second reading at its regular meeting held on the 26th day of July 2023, by the following vote of the Council: AYES: Councilmembers: Ambriz, Breceda, Burrola, Garcia, Mayor Ortiz NOES: Councilmembers: None ABSENT: Councilmembers: None ABSTAIN: Councilmembers: None amv� ivi. rvieio, ivuviu Deputy City Clerk Ordinance No. 771 Page 4 Recording Requested by And When Recorded Return To: CITY OF IRWINDALE 5050 N. Irwindale Avenue Irwindale, CA 91707 Attn: City Clerk [Exempt from Recording Fee Per Gov. Code § 6103 DEVELOPMENT AGREEMENT NO. 01-2022 This Development Agreement (the "Agreement") is entered into this 26th day of July, 2023 (the "Effective Date"), by and between the City of Irwindale, California municipal corporation (the "City"), and KBS Holdco, LLC, a California limited liability company dba Regency Outdoor Advertising (the "Developer"). RECITALS A. California Government Code Sections 65864 of 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 is owner of the Out of Home Advertising Display, a lawfully permitted double -sided printed billboard ("Printed Billboard Structure") and real property, located adjacent to the 210 Freeway in the City of Irwindale, Assessor Parcel Number Numbers 8533--009-014, as more specifically described in Exhibit A and depicted at Exhibit C, attached hereto and incorporated herein (the "Site"), upon which it seeks to install a new lawfully permitted double -sided 14 x 48 or larger foot digital outdoor advertising billboard which is oriented toward the east and west bound 210 Freeway. C. Pursuant to the terms of this Agreement, Developer seeks to replace the Printed Billboard Structure with one double-faced digital billboard (such digital billboard is referred to herein as the "Landmark Message Center"), having a Back to Back or V- shaped design with one face oriented towards westbound traffic and the other face oriented toward eastbound bound traffic off the 210 Freeway, using either the same billboard structure or a new billboard foundation and pole structure in generally the same location where the Printed Billboard Structure is currently located. The Landmark Ordinance No. 771 Page 5 Message Center will have two faces, of approximately 14 feet by 48 feet, or approximately 672 square feet (each referred to individually herein as a "Digital Display Face"). The Landmark Message Center will be supported by a single post. D. As owner of the Site, Developer has a legal and/or equitable interest in the Site and thus qualifies to enter into this Agreement in accordance with Development Agreement Law. E. In exchange for the City approvals sought by Developer for installation of the Landmark Message Center as provided herein, Developer has offered to: 1. Pay to the City an annual Development Fee as defined and provided in Section 2.5 below, for the cost to the City to mitigate the impact of the installation of the Landmark Message Center; and 2. Provide advertising time on the Landmark Message Center on a space - available basis to the City for public service, civic causes, or emergency notifications at the discretion of the Irwindale Chief of Police. F. The Site is zoned M-2 and designated by the General Plan land use map as Industrial/Business Park. G. Developer and the City agree that a development agreement should be approved and adopted to memorialize the property expectations of the City and Developer, as more particularly described herein. H. On June 21, 2023, at a duly noticed public hearing, the Planning Commission adopted Resolution No. 818(23), recommending approval of this Agreement including development of the Landmark Message Center as proposed in this Agreement, Ordinance No. 771 to the City Council and the filing of a Notice of Exemption pursuant to Section 15061(b)(3) of the California Environmental Quality Act ("CEQA") Guidelines. 1. On July 12, 2023, the City Council of the City, at a duly noticed hearing to consider the approval of this Agreement including development of the Landmark Message Center as proposed in this Agreement, considered the proposal, heard testimony, and introduced Ordinance No. 771 and the filing of a Notice of Exemption pursuant to Section 15061(b)(3) of the CEQA Guidelines.. 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 Development (as hereinafter defined) will achieve a number of City objectives, including utilizing the Site for a revenue -generating use. Upon any termination of the Term (as defined below) of this Agreement, Developer will remove the digital displays if an extension of this Agreement is not negotiated with City and shall have the right with City approval to convert the Landmark Message Center to a printed billboard with two facings. Ordinance No. 771 Page 6 K. On July 26, 2023, the City Council held the second reading on, and adopted Ordinance No. 771, thereby approving this Agreement. L. The City finds and determines that all actions required of the City precedent to approval of this Agreement by Ordinance No.771 of the City Council have been duly and regularly taken. M. The purpose of this Agreement is to set forth the rules and regulations applicable to the Development, which shall be accomplished in accordance with this Agreement, including the Scope of Development (Exhibit B) which sets forth a description of the Development and the Schedule of Performance (Exhibit D). 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 are hereby acknowledged, the parties agree as follows: 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: 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. 1.1.3 "City Council" means the City Council of the City of Irwindale. 1.1.4 "Developer" means KBS Holdco LLC, California limited liability company, duly existing and operating, and its successors and assigns, doing business as Regency Outdoor Advertising at 9201 Sunset Blvd, West Hollywood, CA 90069. 1.1.6 "Development" means the installation, operation, improvement, replacement, upgrade, and maintenance of the Landmark Message Center on the Site and the undergrounding of all utilities from Southern California Edison's electrical source or an electrical source located elsewhere on Developer's property (e.g., from an electrical panel on a building situated on Developer's property) to the Landmark Message Center and all appurtenances thereto and all modifications and improvements placed by it, or with its authority, upon the 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. The Developer is and shall remain the owner of the Development as Ordinance No. 771 Page 7 a trade fixture and Developer is the owner of all of the sign permits to the Development 1.1.6 "Development Approvals" means any and all permits or approvals necessary to carry out and complete the Development, including, but not limited to Ordinance No. 771, and as further described in Section 3.3 herein. 1.1.7 "Development Fee" shall have the definition given in Section 2.5 of this Agreement. 1.1.8 "Digital Display Face" shall have the meaning ascribed in the Recitals above. 1.1.9 "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 this Agreement is signed by Developer and the City. 1.1.10 "Fee Commencement Date" shall have the definition given in Section 2.5 of this Agreement. 1.1.11 "Final Permits" shall mean the final approval from the applicable governmental authorities and all required third party approvals, after the expiration of all applicable appeal periods, for any and all required permits to maintain and operate the Landmark Message Center as contemplated under this Agreement. . 1.1.12 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of the City, including, but not limited to, the City's General Plan, Municipal Code and Zoning Code, which govern development and use of the Site, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of the Landmark Message Center, 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 the federal National Pollutant Discharge Elimination System ("NPDES") regulations and approvals from the California Department of Transportation Outdoor Advertising Division, to the extent applicable. 1.1.13 "Landmark Message Center" shall have the meaning ascribed in the Recitals above. 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. 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. Ordinance No. 771 Page 8 1.1.17 "Site" refers to the site described in Recital B and more specifically described an depicted on Exhibit A and Exhibit C attached hereto and incorporated herein. 1.1.18 "Subsequent Development Approvals" means any Development Approvals issued subsequent to the Effective Date in connection with development of the Development, which shall include, without limitation, any changes to the Development Approvals. 1.1.19 "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 Site. 1.1.20 "Term" shall have the meaning provided in Section 2.3, unless earlier terminated as provided in this Agreement. 1.1.21 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 (the Site and Landmark Message Center pictorial), 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 Development, including actions by the City on applications for Subsequent Development Approvals affecting the Site, shall be subject to the terms and provisions of this Agreement. 2.2 Interest in Site. The City and Developer acknowledge and agree that Developer 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. 2.3 Term of Agreement. Unless earlier terminated as provided in this Agreement, the term of this Agreement shall commence on the Effective Date and continue in full force and effect until the earlier of; (i) 30 years after the Fee Commencement Date; or (ii) the permanent removal of the Landmark Message Center constructed pursuant to the terms hereof, other than its removal for repair or replacement, or (iii) if one digital face is removed permanently and replaced with a static face, then this Agreement shall remain in effect for the remaining digital face ("Term"). If only one Digital Display Face is permanently removed from the Landmark Message Center and replaced with a printed billboard, the then -current Development Fee will be reduced by fifty percent (50%) and the Agreement will remain in full force and effect as to the remaining Digital Display Face. In such case, the replacement of one digital face with a static face shall require an amendment to this Agreement. 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 Ordinance No. 771 Page 9 below. If no extension or renewal of this Agreement is agreed to following its termination, then the digital displays shall come down but the static displays may remain. 2.4 Processing Fee. Developer has paid to City a processing fee ("Processing Fee") in the total amount of $16,857.60, which includes (1) the Development Agreement application fee of $2,000.00 (2) Environmental Documentation fee of $250.00; (3) Development Agreement deposit of $10,000.00, as an initial deposit for the City Attorney costs of preparation (4) Public Hearing Notices deposit of $800.00; (5) a Noticing fee of $120.00; and (6) a 28% Administrative and Overhead fee of $3,687.60. 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 and processing of Project Development Approvals at a rate not to exceed $400.00 per hour, 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), a 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 fees 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. 2.5 Development Fee. The potential impacts including. those based on aesthetics of the Development on the City and surrounding community are difficult to identify and calculate. Developer and the City agree that an annual development fee paid by Developer to the City would adequately mitigate all such potential 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 and street lighting. To that end, Developer and City agree that Developer shall pay an annual development fee paid per Digital Display Face to the City ("Development Fee") which 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 $35,000 per Digital Display Face, increased by twelve and one half percent (12.5%) at the 6tn 11tn 16tn 215t and 26tn payments ("Development Fee"). For ease of reference, the Development Fees shall equal the following amounts during the Term: Payment Number Fee per Digital Display Face Fee for Landmark Message Center Develo meat 1 through 5 $35,000 $70,000 6 through 10 $39,375 $78,750 11 through 15 $44,297 $88,594 16 through 20 $49,834 $99,668 21 through 25 $56, 063 $112,126 26 through 30 $63,071 $126,142 Ordinance No. 771 Page 10 The first Development Fee payment for the Project shall be due no later than one (1) year after the Landmark Message Center becomes fully operational or within thirty (30) days after Developer receives any "income from the use of the Landmark Message Center, whichever occurs first ("Fee Commencement Date"). On the one year anniversary of the Fee Commencement Date, Developer shall make the second Development Fee payment and then annually thereafter in accordance with the above pay schedule. Developer shall notify City within five (5) days after the Landmark Message Center becomes fully operational or within five (5) days of its receipt of any income received from use of the Landmark Message Center, whichever occurs first, for the purpose of determining the Fee Commencement Date. 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. 2.5.1 Late Payment (a) Penalty. The City may notify the Developer if the Development Fee is not received within ten (10) business days after the due date ("Late Notice"), there shall be no penalty if payment is made within ten (10) business days following the Late Notice. The date of the Late Notice shall mean the date that it is received by the Developer after it has been placed by the City in the U.S. Mail, certified mail with return receipt. Failure to sign the return receipt shall not affect the date Late Notice is given. If City does not issue a Late Notice, penalties will begin to accrue if payment is not made within thirty (30) calendar days of the Due Date. Late payment penalties shall be calculated as follows: 5% of the Development Fee due and payable for the current year shall be added to the Development Fee for that year for failure to make the full payment within ten (10) business days of the Late Notice. As an example, the Development Fee for Year 5 is $70,000. A 5% penalty would result in a total amount due of $73,500 ($70,000 + $3,500). Thereafter, for each additional ten (10) calendar days that the full Development Fee is not paid, including the penalty, the Developer shall incur an additional penalty of 5% of that year's Development Fee, for a maximum penalty of 15% of that year's Development Fee. (b) Termination. Notwithstanding anything to the contrary in Article 6 of this Agreement, failure by Developer to pay the Development Fee to the City within thirty (30) days following the due date of each year during the Term of this Agreement is considered a material breach of this Agreement, and if not paid in Ordinance No. 771 Page 11 full to the City, including all late penalties, within ten (10) business days after written notice to Developer of such material breach, City may begin termination proceedings in accordance with Article 6 of Agreement. 2.6 Prohibited Use. Developer shall not utilize any of the displays on the Landmark Message Center 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 outdoor advertising structures by any duly adopted and valid City ordinance. 2.7 Community Benefits. Developer shall also provide free of charge to City on a space -available basis, advertising space on the Landmark Message Center. Such advertising space shall only be made available for the use of City -related events or agencies, and shall be provided regardless of availability for emergency notifications at the discretion of the Chief of Police. City will be responsible for creating the design of any displays, subject to review and approval of a suggested copy from City by Developer, with such Developer approval not to be unreasonably withheld, conditioned or delayed. Developer agrees to install, at no cost to the City, an unlit City emblem (the "City Logo") on the sign column of each Digital Display Face prior to project final. Said logo shall be provided to the Developer by the City, as further detailed in Exhibit B attached hereto. 2.8 Discount Advertising. Developer shall offer a twenty percent (20%) discount off its applicable rates for display of advertising on the Development to any business that is a member of the Irwindale Chamber of Commerce. 2.9 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 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) Developer 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. 2.10 Purpose. The purpose of this Agreement is to set forth the rules and regulations applicable to the Development, which shall be accomplished in accordance with this Agreement, including the Scope of Development (Exhibit B) which sets forth a Ordinance No. 771 Page 12 description of the Development and the Schedule of Performance (Exhibit D). 3. DEVELOPMENT AND IMPLEMENTATION OF THE DEVELOPMENT. 3.1 Rights to Develop, Subject to and during the Term of this Agreement, Developer shall have the right to develop, operate and maintain the Site in accordance with, and to the extent of, the Development Approvals, the Land Use Regulations, and this Agreement, provided that nothing in this Agreement shall be deemed to modify or amend any of the pre-existing Land Use Regulations, as more particularly set forth in Section 3.2 below. 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 Site, the density and intensity of use of the Site, the maximum height and size of proposed structures on the Site, and the design, improvement and construction standards and specifications applicable to 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 or development of any structures or other work of improvement upon the Site, secure or cause to be secured any applicable Development Approvals, which shall include and 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 Development, Developer shall comply with all: (1) applicable development standards in the City's Municipal Code, (2) applicable NPDES requirements pertaining to the Development, and (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 the City in connection with the Development which are standard and uniformly -applied to similar projects in the City.Nothing herein relieves the City from its contractual duty to issue all municipal building permits that are associated with the Development if Developer is in compliance with the terms of this Agreement. 3.4 Timing of Development; Scope of Development. Developer shall comply with all time requirements set forth in the Schedule of Performance, attached hereto as Exhibit D. Developer shall convert the Printed Billboard Structure to the Landmark Message Center and such Landmark Message Center and both Digital Display Faces shall be fully operational not later than one (1) year after the issuance of Final Permits for the Landmark Message Center, or two (2) years after the Effective Date, whichever occurs first. If the Landmark Message Center is not fully operational within such time, and after compliance with Section 5.4, City may terminate this Agreement and shall have no Ordinance No. 771 Page 13 further obligation hereunder. However, City may allow for extensions of time for the conversions based on Developer's showing, and City's finding, of good cause for such delay, which extension shall be confirmed in writing by City to Developer. However, if circumstances within the scope of Section 9.10 delay the commencement or completion of the Development, then such delays shall 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 or improvement of the Landmark Message Center. Developer shall also maintain the Landmark Message Center at all times during the Term in accordance with the maintenance provisions set forth in Section 3 of the Scope of Development, attached as Exhibit B herein. 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). The parties acknowledge that the 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 reasonable discretion, the City shall not apply a standard different than that used in evaluating requests of other developers, developing the same or similar development as that contemplated under this Agreement. Accordingly, under no circumstance shall the City be obligated in any manner to approve any amendment to the Development Approvals, however approvals will not be unreasonably withheld provided that Devleoper has complied with all requirements then and effect and consistent with the requirements of any other similar developments. The City Manager shall be authorized to approve any non -substantive amendment to the Development Approvals without processing an amendment to this Agreement. 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. All other amendments shall require the approval of the City Council. No approvals or amendment is necessary for Developer to upgrade the digital displays 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 Approvals. 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: (a) Processing fees and charges of every kind and nature imposed by the City to cover the estimated actual costs to the City of processing applications for Subsequent Development Approvals. Ordinance No. 771 Page 14 (b) Procedural regulations consistent with this Agreement relating to hearing bodies, petitions, applications, notices, findings, records, hearings, 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 to the City. (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 the City as Subsequent Land Use Regulations, if adopted prior to the issuance of a building permit for development of the Landmark Message Center. 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 to the City. (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 the Development. (f) Applicable federal, state, county and multi -jurisdictional laws and regulations which the City is required to enforce against the Site or the Development, and that do not have an exception for existing signs or legal nonconforming uses. 3.6.2 Future Discretion of the City. This Agreement shall not prevent the 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 to the City. 3.7 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not subject to control by the City may possess authority to regulate aspects of the Development as contemplated herein, and this Agreement does Ordinance No. 771 Page 15 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 Development and the Site and that do not have an exception for a legal nonconforming use including but not limited to the Outdoor Advertising Act (Bus. & Prof. Code, Section 5200 et. seq.). To the extent such other public agencies preclude development or maintenance of the Development and 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, Developer may terminate this Agreement upon ninety (90) days prior written notice to the City. 3.8 Conflicts Between Subsequent Land Use Regulations and Agreement. If any Subsequent Land Use Regulations prevents or precludes compliance with one or more provisions of this Agreement, then the provisions of this Agreement may, to the extent feasible, be modified as may be necessary to comply with such Subsequent Land Use Regulations. Immediately after enactment or promulgation of any such new Subsequent Land Use Regulations, City and Developer shall meet and confer in good faith to determine the feasibility of any such modification based on the effect such modification would have on the purposes and intent of this Agreement. If any Subsequent Land Use Regulations is passed prohibiting new or existing billboards, the City shall reasonably cooperate with Developer in any effort to find a resolution to bring this Agreement into compliance and preserve all the rights and benefits enjoyed by Developer. Developer and City shall have the right but are not obligated, to challenge the new Subsequent Land Use Regulations preventing compliance with the terms of this Agreement, and in the event such challenge is successful, this Agreement shall remain unmodified and in full force and effect. The City shall not directly or indirectly interfere with Developer's performance under the terms of this Agreement, and shall take no unreasonable action to delay, impede or restrict Developer's performance under the terms of this Agreement. 3.9 Public Improvements. Notwithstanding any provision herein to the contrary, the City shall retain the right to condition any Subsequent Development Approvals to requireDeveloper to pay subsequently required development fees, and/or construct certain subsequently required public infrastructure ("Exactions") at such time as the City shall determine, subject to the following conditions. 3.9.1 The payment or construction must be to alleviate an impact caused by the Development or be of benefit to the Development; and 3.9.2 The timing of the Exaction should be reasonably related to the development of the Development, and said public improvements shall be phased to be commensurate with the logical progression of the development of the Development, as well as the reasonable needs of the public. 3.9.3 It is understood, however, that if the there is a material increase in Ordinance No. 771 Page 16 cost to Developer, or such action by the City otherwise materially impacts Developer or its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice to the City. 3.10 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 Development, 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 or Developer directly, including the following: 3.10.1 Developer shall be obligated to pay those fees, taxes or City assessments that existed as of the Effective Date and relate to the Landmark Message Center or are included in the Development Approvals; 3.10.2 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; 3.10.3 Developer shall be obligated to pay all fees applicable to a permit application as charged by the City at the time such application is filed by Developer; 3.10.4 Developer shall be obligated to pay any fees imposed pursuant to any Uniform Code that existed when the permit application is filed by Developer or that exists when Developer applies for any Subsequent Development Approval. 3.11 Changes. Notwithstanding anything to the contrary herein, if there is a change is such fees as compared to those fees in effect as of the Effective Date, or if any additional fees are charged and such additional or increased fees materially change Developer's costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice to the City. 4. REMOVAL OF DIGITAL DISPLAY FACES 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 Display Faces shall be removed and said displays may be converted back to printed displays upon Developer's determination, subject to obtaining any required permits, for example, electrical or similar permits. Should City be required to enforce the terms of this Agreement and removal of the Digital Display Faces, Developer shall reimburse City its reasonable City staff, consultant, and attorneys' fees and costs incurred in securing such removal. 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 Landmark Message Center. Should such a breach occur, City may only require removal of the Digital Display Faces within ninety (90) days of City's notice to Developer Ordinance No. 771 Page 17 of such breach and Developer may convert said displays back to printed displays upon Developer's determination, subject to obtaining any required permits, for example, electrical or similar permits. 4.3 Relocation. The Development approved under this section and after the Development is installed and/or becomes nonconforming may be relocated by mutual agreement between the display owner and the City on whatever terms are agreeable to both parties under the authority of California Business and Professions Code section 5412. "Relocation" as used in this section, includes removal of an advertising structure and construction of a new advertising structure to substitute for the advertising structure removed. The purpose of this subsection is to allow the City to continue to develop in a planned manner without expenditure of public funds while allowing the continued maintenance of private investment and a medium of public communication established in outdoor advertising. 5. REVIEW FOR COMPLIANCE. 5.1 Annual Review. The City Council shall have the right to review this Agreement annually at the Developer's sole cost, on or before the anniversary of the Effective Date, to ascertain the good faith compliance by Developer with the terms of this Agreement ("Annual Review"). However, no failure on the part of the City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement. Upon receipt of written request from the City, Developer shall cooperate with the City in the conduct of such an Annual Review and provide the following information and documentation to the City at least thirty (30) days before the anniversary of the Effective Date: (1) description of all complaints from Caltrans or the City regarding the Landmark Message Center, (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(q), herein, (4) status and amount of all payment obligations to the City required under this Agreement for the year in question and cumulatively for the entire Term of the Agreement, (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 2.6 have been displayed during the preceding year of the Term and a description of the duration of such displays. 6.2 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 the 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 a form reasonably acceptable to Developer, the City and its officers, employees, agents and contractors shall have the right, at their sole risk and expense, to enter the Site Ordinance No. 771 Page 18 without interfering with any railroad or other right-of-way, and at all reasonable times with as little interference as possible, for the purpose of conducting the review under this Article 5, inspection, construction, reconstruction, relocation, maintenance, repair or service of any public improvements or public facilities located on the Site, 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 9201 Sunset Blvd., West Hollywood, CA 90069 (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 Site 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) to the contrary, the City shall have no right whatsoever to eater the Site unless and until the City executes and delivers to Developer a permit to enter in a form reasonably acceptable to Developer (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); provided Develpoper shall not unreasonably delay the approval of the permit to enter. Notwithstanding anything to the contrary herein, in no event will the City's representatives ever climb up the pole of the Landmark Message Center 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 this 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 this Agreement, either party concludes that the other party has not complied in good faith with the terms of this Agreement, then such party may issue a written "Notice of Non - Compliance" specifying the grounds therefor 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, but if such cure or remedy is not reasonably capable of being cured or remedied within such thirty (30) day period, then the party receiving a Notice of Non -Compliance shall commence to cure or remedy the non-compliance within such thirty (30) day period and thereafter 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 of Non -Compliance, it shall do so by responding in writing to said Notice of Non -Compliance within thirty (30) days after receipt of the Notice of Non - Compliance. If the response to the Notice of Non -Compliance has not been received in the office of the party alleging the non-compliance within the prescribed time period and the cure or remedy is not timely completed, the Notice of Non -Compliance shall be conclusively presumed to be valid and then either party can seek a judicial determination of all legal or equitable claims allaged and remedies sought. 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 of Non -Compliance. If the Notice of Non -Compliance 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 Ordinance No. 771 Page 19 may thereupon pursue the remedies provided in Article 6. Neither party hereto shall be deemed in breach if the reason for noncompliance is due to "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, the City shall, upon request by Developer, issue a written confirmation ("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 the 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 specific obligations under this Agreement have been fully satisfied with respect to the Site and City shall respond within Ten (10) days of receipt of the request. If the City fails to respond to a Developer's request pursuant to this Section 4.5, the Developer is presumed to be in compliance with this Agreement or any obligation that is the subject of the Developer's request. 6. DEFAULT AND REMEDIES. 6.1 Termination of Agreement, 6.1.1 Termination of Agreement for Material Default of Developer. The 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, the City may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 5.4. In the event of a termination by the City under this Section 6.1.1, Developer acknowledges and agrees that the City may retain all fees accrued up to the date of the termination, including the Processing Fee and 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 Landmark Message Center to one foot below grade unless otherwise required in the City's Municipal Code 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 andfor compliance with requirements under laws necessary to effectuate the Development. In the event of a termination by Developer under this Section 6.1.2, Developer acknowledges and agrees that City may retain all Ordinance No. 771 Page 20 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 Landmark Message Center 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, niether 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 Landmark Message Center pursuant to Section 4.1, or (iv) any continuing obligations to indemnify, defend and hold harmless the other party. 6.1.4 No Damages. Notwithstanding anything else in this Agreement to the contrary, Developer acknowledges that the City would not have entered into this Agreement had it been exposed to damage claims from Developer for any breach hereof. As such, the parties agree that in no event shall Developer be entitled to recover damages of any kind whatsoever against City or any of its officials, officers, agents or employees for breach of this Agreement. 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 liabilities covered by the indemnification provisions of Section 7.2. Developer has agreed to indemnify the 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 at least Two Million Dollars ($2,000,000) for any one accident or occurrence for bodily injury or death and property damage. Developer shall also furnish or cause to be furnished to the 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 the 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 Ordinance No. 771 Page 21 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 the City and against the 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 the 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 the City or the City's designated representative as expeditiously as the insurance company agrees to provide such notice. Developer shall furnish the City with certificates and endorsements evidencing the insurance required in this Section 7.1. 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 the City, in the manner required for notices, copies of certificates and endorsements of all insurance policies required of each policy within the following time limits: (a) For insurance required above, within seven (7) days after the Effective Date or consistent with the requirements of Exhibit © (Schedule of Performance), Item No. 5, whichever is earlier. (b) The City can request to see updated copies of the current certificates and endorsements of all insurance policies required at any time. If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish the City with required proof that the insurance has been procured and is in force and paid for, the City, after complying with the requirements of Section 5.4, may view such failure or refusal to be a default hereunder. 7.2 indemnification. 7.2.1 General. Developer shall indemnify the City, and its 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, contractors, 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 approving this Agreement. The City will promptly notify Developer 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 reasonable legal costs and attorneys' fees Ordinance No. 771 Page 22 incurred in connection therewith (b) Developer will promptly pay any judgment rendered against the City or its officers, agents, or employees for any such claims or liabilities arising out of or in connection with such work, operations, or activities of Developer hereunder, and Developer agrees to save and hold the City and its 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, or 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, defense, and hold harmless obligations shall include any liability arising by reason of: (a) Any accident or other occurrence in or on the Site causing injury to any person or property whatsoever caused by Developer, its agents, employees, contractors, subcontractors, or invitees; (b) Any failure of Developer to comply with performance of any of the provisions of this Agreement; (c) Any harm, delays, injuries or other damages incurred by any party as a result of any subsurface conditions on the Site caused by Developer, its agents, employees, contractors, subcontractors, or invitees, including but not limited to, the presence of buried debris, hazardous materials, hydrocarbons, or any form of soil contamination. 7.2.4 Loss and Damage. Except as set forth below, the City shall not be liable for any damage to property of Developer or others located on the Site, nor for the loss of or damage to any property of Developeror others by theft or otherwise. Except as set forth below, the 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 the City or its agents, employees, subcontractors, invitees or representatives causes such injury or damage when accessing the Site, or to the extent they cause any damage to any improvements thereon, or (ii) under the circumstances set forth in Section 6.2.2 above. 7.2.5 Period of Indemnification. The obligations to indemnify, defend, and hold harmless under this Section 7.2 shall begin upon the Effective Date and shall survive expiration or sooner termination of this Agreement. 7.3 Waiver of Subrogation. Developer and the City mutually agree that neither Ordinance No. 771 Page 23 shall make any claim against, nor seek to recover from the other or its agents, servants, or employees, for any loss or damage to Developer or the City or to any person or property relating to this Agreement, except as specifically provided hereunder, which include but is not limited to a claim or liability to the extent arising from the sole negligence or willful misconduct of the City, itsofficers, 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 or the Development, by any mortgage, deed of trust or other security device securing financing with respect to the Site. The City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and the City agrees upon request, from time to time, to meet with Developer and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. Subject to compliance with applicable laws, the City will not unreasonably withhold its consent to any such requested interpretation or modification, provided the 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 Development 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 Development 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 the City of any default by Developer in the performance of Developer's obligations under this Agreement. (c) If the City timely receives a request from a Mortgagee requesting a copy of any Notice of Non -Compliance given to Developer under the terms of this Agreement, the City shall make a good faith effort to provide a copy of that Notice of Non -Compliance to the Mortgagee within ten (10) days of sending the Notice of Non -Compliance to Developer. The Mortgagee shall have the right, but not the obligation, to cure the non- compliance during the period that is the longer of (i) the remaining cure period allowed Developer under this Agreement, or (ii) sixty (60) days. (d) Any Mortgagee who comes into possession of the Development or 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 Development or 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 perform any of Developer's obligations or other affirmative covenants of Developer Ordinance No. 771 Page 24 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 the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Development or 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 Development or the Site or such park 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 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 Development 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 Ordinance No. 771 Page 25 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 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 of the parties and their respective successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 9.10 Force Majeure. Notwithstanding any provision to 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 party'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 then 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 beyond the date it would have otherwise expired, 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 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 the 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 the City and Developer seeking enforcement of any of the terms and Ordinance No. 771 Page 26 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 Development as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the Development 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 the 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 private property on the other hand. The 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" development, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer's private development into a public work project, it being understood that this Agreement is entered into by the 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 the 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 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 the 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 Ordinance No. 771 Page 27 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 on behalf of the City by the City Manager upon reasonable 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 to such other address as either party may from time to time designate in writing by providing notice to the other party: To the City: City of Irwindale 5050 N. Irwindale Ave. Irwindale, CA 91706 Attn: Julian A. Miranda, City Manager With Copy to: Aleshire & Wynder, LLP 18881 Von Karman Ave., #1700 Irvine, CA 92612 Attn: Adrian R. Guerra, City Attorney If to Developer: KBS Holdco, LLC, dba Regency Outdoor Advertising 9201 Sunset Blvd West Hollywood, CA 90069 Attn: Philip Berardi 9.21 Nonliability of City Officials. No officer, official, member, employee, agent, or representatives of the 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. The City and Developer each represent and warrant to the other that it has not 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 Ordinance No. 771 Page 28 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. ATTEST: Laura M. Nieto, MMC, Chief Deputy City Clerk APPROVED AS TO FORM: In Adrian R. Guerra, City Attorney CITY OF IRWINDALE H. Manuel Ortiz, Mayor KBS HOLDCO, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY DBA REGENCY OUTDOOR ADVERTISING An Name: Title: Ordinance No. 771 Page 29 By: _. Name: Title: [End of signatures] STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) On , 2023, before me, a Notary Public, personally appeared who 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 helshelthey executed the same in his/her/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) On 2023, before me, _, a Notary Public, personally appeared , who 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 helshelthey executed the same in his/her/their authorized capacity(ies), and that by his/herltheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Ordinance No. 771 Page 30 I certify under PENALTY of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public [SEAL] Ordinance No. 771 Page 31 EXHIBIT A LEGAL DESCRIPTION OF SITE Real property in the City of Irwindale, County of Los Angeles, State of California, described as follows: THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN TT IE CITY of IFtlA INDALE, IN THE COUNTY OF LOS A GELES, STATR of CALIFORNIA, AND IS DESC;RISED AS FOLLOWS: THOSE PORTIONS OF THOSE PARCELS OF LAND IN SECTION 3.2, TOWNSHIP 1 NORTH, RANGE 10 WEST, Of THE SUBDIVISION OF THE RANCHO A+'ZUSA DE DUARTE, IN THE CITY OF IRWINDA4LE, COUNTY OF LOS ANGELES, STATE OF CALIFt71= NI& AS PER MAP RECORDED IN BooK fir, PAGES 80 TO S2 IN-Cl USl > OF MISCELLANEOUS REC4MDS, IN THE OFFICE OF THE COUNTY R'ECctFiD =,i:OF SAID COUNTY, AC QUIFRE13 BY THE STATE QF C4I. WOFRNIA 13Y (14JITCLAIM I3I5ED $57 09 RECORDED IN ISOO C D4656. PAGE L2o, OF OFFICIAL HF—CORDS, IN SAIL) OFFICE, BY PARCI_L 0 OF THE FILL ORDER CW CONDEMNATION FILED IN ' SUPERIOR COURT CASE NO. $89802, IN: AND FOR SAID CroI.JNry. A CsERTIFIBD COPY OF SAID FINAL ORDER 6EENG RECORDED IN BOOKD3863, PAGI= sEI OF SAIt3 OFFICIAL RECORDS-, AND QY PARCEL IL CA 1A OF THE FINAR-EFL. 6F , 0__0_[DEMNA-n0N FILET} IN SUPERIOR COURT CASE WO. +353340, IN AND FOR SPJD COONTY, A CERTIFIED COPY OF LAST SAID. FINA IL ORDER BEING RECORDED IN BOOK 03K1 T, PAGE 442 OF SAID OFFICIAL RECORDS, DESCRIBED AS AM WHOLE AS FOLLOWS, BEOINN1NG AT THE SOUTHWESTERLY CORNER Of THE LAND SCE ACQUIRED BY QUITCLAIM DEED 13570 . THENCE AITC31~+1G THE WESTERLY L1NF OF SAID LAND N 0' 10 2Tw, 106.63 FEET To A CURVE CONOAt SOUTHERLY AND HAVENO .A RADIUS OF 2,000.00 FEET, THENCE FROI1++[ A TANQENT D ARING N Seep 2:3' IV E, EASTERL'! ALON0 SAID CURVE THROUGH AN ANGLE OF 1W 00' D8", AN ARC DISTANCE .OF NN33.3CI-FEET TO THE NORTHWESTEE-RI-Y CUKVE0 LINE OF THAT CERTAIN EASEMENT OF ACCESS FOR RAtLRC SPUR TRACK PURPOSES, 20,00 FEE'T'o tDE, AS DESCRIBED IN THE EXCEPTION FROM SAID PARCEL II,A; THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY CURVED LINS TO THE WESTERLY LINE OF THE LAND DESCRIBED IN SAID PARCEL IA; THENCE SOUTHERLY ALONG 'LAST SAID WESTERLY UNIE TO THE NORTHERLY LIFE OF THAT 60-FOOT-WIDE STRIP OF LAND SHOWN AS ATCHISON, TOP.EKA. AND SANTA FE RAILWAY COMPANY' ON MAP OF TRACT NO. 13436, RECORDED IN 1300H 294, PACES 20 AND 21, of P4WS, IN SAID OFFICE: THENCE V E$TERLY ALONG SAIL NORTH ERL.Y LINE TO THE POINT -OF SEOINN1N.G, ALSO SUWLC`I` ` 0 T145- E=XCEP IGX AND IOSERVATION THEREFROM, ALL OIL., MINERALS, NATURAL GAS, AND OTHER HYDROCARBONS BY WHATSOEVER NA161E KNOWN THAT C,JIAY ®E WITHIN OR UNDER: THE HEREIN CONVEYED PARCEL OF LAND, AND THE R4GHTS THERETO, TOGETHER WITH CERTAIN OTHER CONDITIONS, AS EXCEF-FED AND RESERVED IN QtIITC:LAdM DEED B5709 RECORDED IN 1300K 04555, PAGE 126, OF SAID OFFICIAL RECORDS. APN; 9633-009-014 A-1 Development Agreement 01--2022 Ordinance No. 771 EXHIBIT B SCOPE OF DEVELOPMENT Developer and the City agree that the Development shall be undertaken in accordance with the terms of the Agreement, which include the following: 1. The Development. This Agreement allows for conversion of one Printed Billboard Structure to one Landmark Message Center in accordance with the terms of this Agreement. The existing Printed Billboard Structure has double -sided printed displays. The Landmark Message Center is a billboard with Digital Display Faces that uses digital technology to change the messages on the sign faces electronically. This type of display shall not contain video, animation, movement, flashing, or the appearance of movement. The Digital Display Faces contain messages that are static for eight (8) seconds at a time and then change to the next message. To this end, Developer shall replace the existing Printed Billboard Structure with a 14 x 48 foot double -sided Back to Back or V-display Landmark Message Center, with Digital Display Faces facing east and west, at the same general location as the existing Printed Billboard Structure. Before the issuance of final inspection of the Final Permits, Developer shall underground all utilities necessary for the Landmark Message Center and the Site shall be maintained in accordance with the conditions at Paragraph 3 below. Developer shall operate and maintain the Landmark Message Center on the Site 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 Landmark Message Center 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-two (672) 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, 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 and from which the advertising display is to be viewed; or 2) the finished grade of the base of the sign. Developer shall underground all utilities necessary for the Landmark Message Center. The Landmark Message Center shall be constructed in the location shown therefor on Exhibit C. In addition, Developer agrees to install, at no cost to the City, an unlit City emblem (the "City Logo") on the sign column of the Landmark Message Center. 2. ProcessingFees. Developer shall pay all applicable City Processing Fees, as described in Section 2.4 of this Agreement, prior to the time that a building permit is issued for the installation of the Landmark Message Center on the Site. 3. Building Fees. Developer shall pay all applicable City building fees at the time that a building permit is issued for the installation of the Landmark Message Center. As Development Agreement 01-2022 Ordinance No. 771 4. Maintenance and Access. Developer, for itself and its successors and assigns, hereby covenants and agrees to be responsible for the following: (a) Maintenance and repair of the Landmark Message Center (where authorized pursuant to the Agreement, and including but not limited to, the Digital Display Faces installed thereon, and all related on -site improvements and, if applicable, easements and rights -of -way, at its sole cost and expense), including, without limitation, landscaping, poles, lighting, signs and walls (as they relate to the Development) 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 Development; (ii) the care and replacement of all shrubbery, plantings, and other landscaping or the painted backing in a healthy condition if damaged by the Development; (iii) the ongoing maintenance by Developer of any access road to the Landmark Message Center to minimize dust caused by the Development; (iv) the repair, replacement and repainting of the Landmark Message Center's structures and displays as necessary to maintain such outdoor advertising structure in good condition and repair; and (v) the adequate and complete removal or painting over of all graffiti within 48 hours of notice of such graffiti being affixed on the Landmark Message Center. In addition, Developer has the explicit right to change the Light Emitting Diode ("LED") displays from time to time as determined necessary in Developer's sole discretion, subject to obtaining any required permits. (b) Maintenance of the Landmark Message Center and surrounding portion of the Site 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 Development 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 Site. (c) Developer shall reasonably coordinate with any neighboring property owners who share utilities or access roads to their separate respective outdoor advertising structure. The City may designate alternative access for planning purposes so long as such alternative access allows Developer to access its outdoor advertising structure and related utilities. 5. Other Rights of the 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 the Agreement, the City shall have the right, after complying with Section 5.4 of the 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 until compliance by the Developer, after giving written notice of said violation, any building permits, occupancy 2 permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Development or any part thereof or interests therein as to the violating person or one threatening violation. 6. 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 the Agreement. The failure of the City to enforce the 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 Developer, its successors, transferees or assigns, for any default or breach by the City under the Agreement. 7. Conditions of Approval. The following additional conditions shall apply to the installation of the Landmark Message Center and, where stated, landscaping adjacent to Landmark Message Center, which outdoor advertising structure and landscaping or painted backing adjacent to the outdoor advertising structure, respectively, shall conform to all applicable provisions of the Development Approvals, the City's Municipal Code, including but not limited to the Outdoor Advertising provisions of Section 17.72.030, and the following conditions, in a manner subject to the approval of the Community Development Director or his or her designee: (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. (a) Building Permit. A building permit from the Building and Safety Division will be required, and 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. (b) Plans. The use and improvements authorized by this Agreement shall conform to the plans as finally approved by the City (date stamped ) 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. (c) The Landmark Message Center shall be located in the portion of the Site shown on Exhibit C, and shall be of the dimensions described in Section 1, above. (d) Digital Display Face Dimensions. The size of each Digital Display Face of the Landmark Message Center shall not exceed a maximum area of 672 square feet, with no more than 128 total feet of extensions or borders, and the Landmark Message Center shall not exceed a maximum height of 65 feet, as measured per Section AN Development Agreement 01-2022 Ordinance No. 771 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 Landmark Message Center, 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. Per the requirements of the County of Los Angeles Building and Safety Division, serving as the City's contract building department, the building plans must contain the following items to be submitted for plan check, as such requirements may be revised before final approval of such plans: (1) Site Plan: Lot size, locations and dimensions of property lines, adjacent streets, setbacks from property lines, locations of other structures, easements, north arrow, scale, contoursldrainage pattern. (2) General Notes: Applicable codes, occupancy classification, type of construction, allowable area analysis, and occupant load analysis, description of work, material specifications. (3) Exterior Elevations: Wall covering material, plate and building heights, finish grade lines, veneers. (4) Foundation Plan: Locations of all new footings, anchor bolt and hold- down schedules, complete foundation details. (5) Framing Plan: Size, spacing, and span of all floor and ceiling joists, roof rafters, valleys and hips, beams and headers. All lateral force resisting elements, including shear wall locations and schedule, and diaphragm construction specifications. (6) Structural Analysis: Calculations shall be provided to substantiate the structural plans where new structural elements are proposed or existing structural elements are altered. The structural calculations shall address both vertical and lateral forces, and shall be wet stamped and signed by a licensed engineer or architect registered in the state of California. (7) Schedules: exterior/interior finish. (8) Details: Complete framing and foundation details for all new structural elements, complete accessible path of travel details, required fire rated assembly details. (f) 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. (g) Developer shall maintain the Landmark Message Center and use thereof in full compliance with all applicable codes, standards, policies and regulations 0 imposed by the City, county, state and federal agencies , unless the Development is exempted as a legal nonconforming use. (h) Caltrans Approvals. Developer shall, at all times, comply with the approval for the Landmark Message Center from the California Department of Transportation Outdoor Advertising Division that may be necessary in order to allow for the construction and installation of the Landmark Message Center pursuant to the California Outdoor Advertising Act, and shall maintain acceptable clearance between the Landmark Message Center and utility distribution lines, include those of Southern California Edison. (i) Fees. Developer shall pay any and all applicable fees due to any public agency prior to the final issuance of the applicable building or electrical permits. 0) Use Within Site. The activities proposed in the Agreement shall be conducted completely upon the Site and shall not use or encroach on any public right-of- way. (k) Access Roads. Developer shall ensure that all access to the Landmark Message Center is kept restricted to the general public to the extent permitted under local laws and by the Development Approvals. (1) Landscaping. If any portion of the landscaping or painted backing installed adjacent to the Landmark Message Center is damaged by the Development or becomes damaged, unhealthy or otherwise in need of replacement, as determined by the City's Community Development Department Director or his or her designee, 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 his or her designee if Developer shows unusual circumstances requiring more time to accomplish such replacement. Developer may trim such landscaping so as not to block the Landmark Message Center or with the reasonable consent of the City's Community Development Director, the Developer at the Developer's own cost, may remove and relocate any landscaping. (m) Utilities. Developer shall be required to install all utilities underground in connection with the Landmark Message Center. Developer shall coordinate its work with the requirements of Southern California Edison to achieve the undergrounding of all utilities. (n) All onsite equipment used in the operation of the digital display billboard shall be screened from sight and maintained for aesthetic and safety purposes. (o) Developer shall comply with all necessary federal National Pollutant Discharge Elimination System (NPDES) requirements pertaining to the proposed use, to the extent applicable. Development Agreement 01-2022 Ordinance No. 771 (p) All graffiti shall be adequately and completely removed or painted over within 48 hours of notice to Developer of such graffiti being affixed on the Development. (q) Prior to final sign off of the building permit for the Landmark Message Center, the applicable landscaping or painted backing shall be installed at the Site. (r) 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 reducing such maximum light level standard given the lighting environment upon request by the City's Development Services Director or designee, the obligation to have automatic dimming capabilities, as well as prodding the City's Develpoment Services Director or his or her 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 Development Services Director or designee, Developer shall dim the display to meet these guidelines and further perform a brightness measurement of the display using OAAA standards, or such lower level given the lighting environment, and provide the 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 concluded that the light standards were exceeded. (s) Public Works: NPDES. Developer shall comply with all necessary NPDES requirements pertaining to the proposed use, to the extent applicable. ROW. Separate permits are required for all work within the public right-of- way. Developer shall be responsible for all fees for the necessary permits and construction inspections for work within the public -right-of-way. C FY141RIT ('_ SITE AND LANDMARK MESSAGE CENTER PICTORIAL C-7 Development Agreement No. 01-2022 Ordinance No. 771 r7A I N N O N O EXHIBIT D SCHEDULE OF PERFORMANCE ITEM OF PERFORMANCE TIME FOR PERFORMANCE REFERENCE 1. Effective Date of this 30 days following City 1.1.9 Agreement. Council's second reading of Ordinance. 2. Developer prepares and submits Within 180 days of the Ex. B(6)(e) to City working drawings, Effective Date specifications, and engineering for the Landmark Message Center; City commences approval process. 3. Developer to provide copy of Prior to commencing any Ex. B(6)(h) Caltrans approval to City. inspections and work on the Development. 4. Developer to submit proof of Prior to commencing any 7.1.2 insurance to City. inspections and work on the Development. 5. The Landmark Message Center Not later than one (1) year 3A shall be fully operational. after the issuance of Final Permits for the Landmark Message Center, or two (2) years after the Effective Date, whichever occurs first. 6. Developer pays City first Within 1 year after the 2.5 installment of Development Fee Landmark Message Center if Developer receives Final becomes fully operational or Permits. within 30 days after Developer receives any income from the use of the Landmark Message Center, whichever occurs first. 7. Developer pays City second Upon each anniversary date 2.5 installment and subsequent of the Fee Commencement ES Development Agreement No. 01-2022 Ordinance No. 771 17 ITEM OF PERFORMANCE TIME FOR PERFORMANCE REFERENCE annual installments of the Date, as defined in Section Development Fee if Developer 2.5 of this Agreement, for the receives Final Permits. Landmark Message Center. 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 Developer and the City. Notwithstanding any extension of the Term in the manner described in, and subject to the provisions of Section 3.5 of the Agreement, 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. 2