HomeMy WebLinkAbout775ORDINANCE NO. 775
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE APPROVING
DEVELOPMENT AGREEMENT NO. 01-2020 BETWEEN CITY OF IRWINDALE AND
RIVERGRADE HOLDING LLC TO ALLOW FOR THE DIGITAL CONVERSION OF AN
EXISTING STATIC BILLBOARD LOCATED AT 4800 RIVERGRADE ROAD (APN:
8535-020-04518535-020-047, 8535-020-048) 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 (CEQA)
PURSUANT TO CEQA GUIDELINES SECTION 15302 (CLASS 2; REPLACEMENT
AND RECONSTRUCTION)
WHEREAS, Andrew Goodman, on behalf of Rivergrade Holding LLC (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 located
at 4800 Rivergrade Road in Irwindale, APNs: 8535-020-045, 8535-020-047, 8535-020-
048 ("Subject Property"). The proposed billboard conversion will consist of two (2), 14'-0"
x 48'-0" digital panels arranged in a W" shaped panel configuration having both the north -
facing and south -facing panels facing both directions of the 1-605 Freeway. The proposed
digital billboard is proposed to have the same height and face area as the existing static
billboard it will be replacing. The proposed billboard will have a total height of 52-4.8",
falling below the 65-foot maximum height; 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 15302 (Class 2; Replacement and Reconstruction) 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- RecorderlCounty Clerk,
County of Los Angeles; and
WHEREAS, on January 17, 2024, the Planning Commission conducted a duly
noticed 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; discussed the Proposed Project; and, after discussion and consideration of
substantial evidence including the testimony, staff report, and all attachments thereto,
Ordinance No, 775
Page 1
approved and adopted Resolution No. 821(24) recommending that the City Council
approve Development Agreement No. 01-2020; and
WHEREAS, on February 14, 2024, the project was scheduled before the City
Council as a duly noticed public hearing, at which time they received the presentation
from Staff, recommendation from the Planning Commission, testimony from the Applicant;
heard public testimony; closed the public hearing; and, after discussion of the project,
conducted a first reading of this Ordinance approving Development Agreement No. 01-
2020; and
WHEREAS, on February 28, 2024, the City Council duly approved and adopted
on second reading, Ordinance No. 775; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have
occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE DOES
HEREBY 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. Based upon substantial evidence and testimony taken from the record as a
whole, and received at the public hearing, both oral and written, including the
recommendation of the Planning Commission, staff report, and all
attachments thereto, all of which shall constitute the entire record of the
matter, the City Council hereby finds that the proposed billboard conversion
and Development Agreement No. 01-2020 complies with the General
Standards imposed by Section 17.72.050 of the Irwindale Municipal Code.
b. The proposed digital billboard conversion per Development Agreement No. 01-
2020 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. 01-2020 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 Rivergrade Holding LLC and specifies the
Ordinance No. 775
Page 2
permitted use of the site related to the billboards and provisions for City access
to the site when necessary.
d. The City Council, on behalf of the City of Irwindale, as the head Agency, has
analyzed the project and has determined that the Project is Categorically
Exempt from the provisions of CEQA pursuant to Section 15302 (Class 2;
Replacement and Reconstruction) and no further review is required. Also, this
project will not have, either individually or cumulatively, an adverse impact on
fish and wildlife resources.
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. 01-2020, attached
hereto as Exhibit A 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. 01-2020 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 28t" day of February 2024.
Albert F. Ambriz, Mayor
Ordinance No. 775
Page 3 of 4
ATTEST:
Laura M. Nieto, MMC
Chijf,,beputy City Clerk
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES } ss.
CITY OF IRWINDALE }
I, Laura M. Nieto, Chief Deputy City Clerk of the City of Irwindale, do hereby certify that
the foregoing Ordinance No. 775 was duly introduced by the City Council of the City of
Irwindale, at a regular meeting held on the 14th day of February 2024, and was duly
approved and adopted on second reading at its regular meeting held on the 28th day of
February 2024, by the following vote of the Council:
AYES: Councilmembers: Breceda, Burrola, Garcia, Ortiz, Mayor Ambriz
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ABSTAIN: Councilmembers: None
i
Laura M. Niem, iviiviu
Chief Deputy City Clerk
AFFIDAVIT OF POSTING
I, Laura M. Nieto, Chief Deputy City Clerk, certify that I caused a copy of Ordinance No. 775, adopted by the City Council of the City of Irwindale at its regular
meeting held February 28, 2024 to be posted at the City Hall, Library, and Post Office on March 4, 2024.
Dated: March 4, 2024
M. Nieto, MMC
Deputy City Clerk
Ordinance No. 775
Page 4
Recording Requested by And
When Recorded Return to:
CITY OF IRWINDALE
5050 N. Irwindale
Ave. Irwindale, CA
91706 Attn: City
Clerk
EXHIBIT A
[Exempt From Recording Fee Per Gov. Code §6103]
DEVELOPMENT AGREEMENT NO. 01-2020
This Development Agreement ("Agreement") is entered into this_day of
, 2024 ("Effective Date") by and between the CITY OF IRWINDALE, a
California municipal corporation ("City") and RIVERGRADE HOLDING, LLC, a California
limited liability company ("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 the grantee of that certain Grant of Easement for Billboard Sign
and Access granting Developer an exclusive easement over a certain portion of real
property, as further described below (such easement is referred to herein as the
"Billboard Sign Easement Site"), which real property is located adjacent to the west side
of the 605 Freeway and immediately east of Rivergrade Road in the City of Irwindale, at
4800 Rivergrade Road, Assessor Parcel Numbers 8535-020-045, 8535-020-047 and
8535-020-048, and as more specifically described in Exhibit "A-1 ", attached hereto and
incorporated herein (such real property is referred to herein as the "Real Property Site").
Grantee's easement rights and obligations with regards to the Billboard Sign Easement
Site have been modified or otherwise clarified through that certain First Amendment to
Grant of Easement for Billboard Sign and Access, recorded October 10, 2023 with the
County Recorder's Office, having document number 20230687730.
C. The Billboard Sign Easement Site, which lies within the borders of the Real
Property Site, is specifically described in Exhibit "A-2" and depicted in Exhibit "A-3",
attached hereto and incorporated herein and improved with one (1) existing lawfully -
permitted double- sided printed billboard (such printed billboard is referred to herein as
the "Printed Billboard Structure").
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D. 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 "Digital Billboard Structure"), having a V-shaped design with
one face oriented towards southbound traffic and the other face oriented toward
northbound traffic on the 605 Freeway, using a new billboard foundation and pole structure
in generally the same location where the Printed Billboard Structure is currently located.
The Digital Billboard Structure will have two faces of approximately 14 feet by 48 feet, or
approximately 675 square feet (each referred to individually herein as a "Digital Display Face").
The Digital Billboard Structure will be supported by a single post.
E. Luos Investment LLC, a California limited liability company, owns the Real
Property Site. Luo Investment, LLC has represented and warranted that is it the owner of
the Real Property Site and that Rivergrade Holding LLC has (1) a valid current easement
interest in the Billboard Sign Easement Site, (2) the exclusive, perpetual and irrevocable
right to replace and modify (and all activities reasonably necessary in connection
therewith) the Printed Billboard Structure, and (3) provided Luo Investment, LLC with
notice of the replacement Digital Billboard Structure including a detailed description of the
proposed Project. Developer, as the easement holder to the Billboard Sign Easement Site
upon which the Printed Billboard Structure is located, has a legal andfor equitable interest
in the Billboard Sign Easement Site and, thus, qualifies to enter into this Agreement in
accordance with Development Agreement Law.
F. Developer is currently subject to an April 1, 2003 Billboard Lease
Agreement, as assigned, with Regency Outdoor Advertising, Inc. and Clear Channel
Outdoor, Inc. for the lease of each display face on the Printed Billboard Structure, which
lease is on a month -to -month term and Developer, in its discretion intends to terminate such
lease to allow for the Project and negotiate a new lease with an operator of Developer's choice
to utilize such Digital Billboard Structure and Digital Display Faces in pursuit of the
approvals secured through this Agreement.
G. In exchange for the approvals sought to install the Digital Billboard
Structure, Developer has offered to:
1. Pay to the City an annual Development Fee, as defined and provided
in Section 2.6 below, for the cost to the City to mitigate the impact of the installation of the
Digital Billboard Structure; and
2. Provide advertising time on the Digital Billboard Structure on a
space- available basis to the City for public service and civic causes.
H. The Billboard Sign Easement Site is located within the City's M-2 Heavy
Manufacturing Zone and designated by the General Plan land use map as
Commercial/Industrial.
I. Developer and City agree that a development agreement should be
approved and adopted to memorialize the property expectations of City and Developer
as more particularly described herein.
Ordinance No. 775
Page 6
J. On January 17, 2024, the Planning Commission of the City, adopted
Resolution No. 821(24) recommending approval of this Agreement and Ordinance No.
775 to the City Council and the filing of a Notice of Exemption pursuant to the provisions
of the California Environmental Quality Act ("CEQA").
K. . On February 14, 2024, the City Council of the City, at a duly noticed hearing
to consider the approval of this Agreement, considered the proposal, heard testimony, and
introduced Ordinance No. 775, and authorized the adoption of a Notice of Exemption
pursuant to Section 15302 of the CEQA Guidelines (Class 2 exemption for replacement
or reconstruction of existing structures and facilities).
L. The City Council has found that this Agreement is in the best interest of the
City and its residents, adopting this Agreement constitutes a prudent exercise of the City's
police power, and this Agreement is consistent with the City's General Plan. This
Agreement and the proposed Project (as hereinafter, defined) will achieve several City
objectives. Upon expiration or any termination of this Agreement, City and Developer shall
be subject to Section 4.1 and Section4.2 with respect to various rights and obligations to
convert the Digital Billboard Structure back to a printed billboard with two facings, subject
to obtaining any required permits.
M. On March 13, 2024, the City Council held the second reading of
Ordinance No. 775, thereby approving this Agreement.
N. City finds and determines that all actions required of City precedent to
approval of this Agreement by Ordinance No. 775 of the City Council have been duly and
regularly taken.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual
covenants hereinafter contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having specific
meanings, as defined below. These specially defined terms are distinguished by having
the initial letter capitalized, when used in the Agreement. In addition to the terms defined
in the Recitals above, the defined terms include the following:
1.1.1 "Agreement" means this Development Agreement and all
attachments and exhibits hereto.
1.1.2 "Billboard Sign Easement Site" shall have the meaning ascribed in
the Recitals above.
1.1.3 "City" means the City of Irwindale, a California municipal corporation
and charter city.
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1.1.4 "City Council" means the City Council of the City.
Ordinance No. 775
Page 8
1.1.5 "Developer" means Rivergrade Holding LLC, a California limited
liability company, duly existing and operating, and its successors and assigns,
doing business at 9454 Wilshire Boulevard, Suite 201, Beverly Hills, CA 90212.
1.1.6 "Development Approvals" means any and all permits or approvals
necessary to carry out and complete the Project, including, but not limited to
Ordinance No. 775, 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 Billboard Structure" shall have the meaning ascribed in the
recitals above.
1.1.9 "Digital Display Face" shall have the meaning ascribed in the recitals
above.
1.1.10 "Effective Date" means the date inserted into the preamble of this
Agreement, which is 30 days following approval of this Agreement by ordinance of
the City Council, provided the Agreement is signed by the Developer and City.
1.1.11 "Fee Commencement Date" shall have the definition given in Section
2.6 of this Agreement.
1.1.12 "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 Digital Billboard Structure as contemplated under this Agreement.
1.1.13 "Land Use Regulations" means all ordinances, resolutions, codes,
rules, regulations and official policies of City, including, but not limited to, the City's
General Plan, Municipal Code, and Zoning Code, which govern development and
use of the Billboard Sign Easement Site, including, without limitation, the permitted
use of land, the density or intensity of use, subdivision requirements, the maximum
height and size of the Digital Billboard Structure and the design, improvement and
construction standards and specifications applicable to the development of the
Billboard Sign Easement Site which are in full force and effect as of the Effective
Date of this Agreement, subject to the terms of this Agreement. Land Use
Regulations shall also include National Pollutant Discharge Elimination System
("NPDES") regulations and approvals from the California Department of
Transportation Outdoor Advertising Division, to the extent applicable.
1.1.14 "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 "Owner" means the fee simple owner of the Real Property Site
encumbered by and subject to Developer's exclusive grant of easement to the
Billboard Sign Easement Site at a specific time. As of the Effective Date, Luos
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Investment, LLC is the Owner.
1.1.16 "Project" means the removal of the Printed Billboard Structure and
installation, operation, improvement, replacement, upgrade, and maintenance of
the Digital Billboard Structure on the Billboard Sign Easement Site, all in
accordance with the Development Approvals and this Agreement, including the
Scope of Development attached hereto as Exhibit "B", Schedule of Performance
attached hereto as Exhibit "D", and all conditions of approval, and consistent with
the approval from the California Department of Transportation Outdoor Advertising
Division.
1.1.17 "Real Property Site" shall have the meaning ascribed in the Recitals above.
1.1.18 "Schedule of Performance" means the Schedule of Performance
attached hereto as Exhibit "D" and incorporated herein.
1.1.19 "Scope of Development" means the Scope of Development attached
hereto as Exhibit "B" and incorporated herein.
1.1.20 "Subsequent Development Approvals" means all Development
Approvals issued subsequent to the Effective Date in connection with development
of the Project, which shall include, without limitation, any changes to the
Development Approvals.
1.1.21 "Subsequent Land Use Regulations" means any Land Use
Regulations effective after the Effective Date of this Agreement (whether adopted
prior to or after the Effective Date of this Agreement) which govern development
and use of the Billboard Sign Easement Site.
1.1.22 "Term" shall have the meaning provided in Section 2.4, unless earlier
terminated as provided in this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference
made a part of, this Agreement: Exhibit "AW1" (Legal Description of Real Property Site),
Exhibit A-2 (Legal Description of Billboard Sign Easement Site ), Exhibit "A-Y (Depiction
of Billboard Sign Easement Site), Exhibit `B" (Scope of Development), Exhibit "C"
(Billboard Sign Easement Site Plan and Elevations), and Exhibit "D" (Schedule of
Performance).
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. From and following the Effective Date,
actions by the City and Developer with respect to the Project, including actions by the City
on applications for Subsequent Development Approvals affecting the Billboard Sign
Easement Site, shall be subject to the terms and provisions of this Agreement.
2.2 Interest in Billboard Sign Easement Site. Developer represents to City
that Developer has a legal and/or equitable interest in the Billboard Sign Easement Site
and thus is qualified to enter and be a party to this Agreement under the Development
Ordinance No. 775
Page 10
Agreement Law.
2.3 Assignment. Developer may assign or otherwise transfer this Agreement,
or any part of this Agreement, to any other entity, upon presentation to the City of an
assignment and assumption agreement in a form reasonably acceptable to the City
Attorney and the City's written approval of such assignment or transfer by the City
Manager, which shall not be unreasonably withheld if the assignee is able to demonstrate
sufficient financial assets and experience in undertaking the obligations under this
Agreement. However, Developer may, from 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.
2.4 Term of Agreement. Unless earlier terminated as provided in this
Agreement, this Agreement shall continue in full force and effect until the earlier of: (i)
thirty (30) years after the Fee Commencement Date; or (ii) the permanent removal of both
Digital Display Faces constructed pursuant to the terms hereof ("Term"). If only one Digital
Display Face is permanently removed from the Digital Billboard Structure 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. Within thirty (30) days after the expiration or termination of this Agreement,
the parties shall execute a written cancellation of this Agreement which shall be recorded
with the County Recorder pursuant to Section 9.1 below. If no extension of this Agreement
is agreed to, then the Digital Display Faces shall be removed within the times and as set
forth under Section 4 below.
2.5 Processing Fee. Developer has paid to City a processing fee ("Processing
Fee") in the total amount of $13,526,20, which included (1) the Agreement application fee
of$2,000.00; (2) Environmental Documentation fee of $250.00; (3) Agreement fee of $10,000.00,
as an initial deposit for the City Attorney costs of preparation (4) Public Hearing Notices deposit
of $350.00, which did not include the actual cost of ads, (5) a Noticing fee of $12.00, representing
$2.00 per parcel times the number of parcels that received public hearing notices; and (6) a 35%
Administrative and Overhead fee of $914.20. 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
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 thirty (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.
2.6 Development Fee. The potential aesthetic impacts of the Project on City
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and surrounding community are discussed in the CEQA documents prepared as part of
the review process of this Agreement. The parties agree an annual fee paid by Developer
to City would adequately mitigate those aesthetic impacts, because that fee will provide
City resources to install and maintain other aesthetic improvements throughout the
community, including, but not limited to, landscaping, street medians, signs in public
parks, street sweeping, street signs and street lighting. To that end, Developer and City
agree that an annual development fee paid per Digital Display Face by Developer to City
would adequately mitigate all such potential impacts. The parties therefore agree, 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 11t" 16t" 21St and 26th 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 Digital
Billboard
Structure (Project)
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
The first Development Fee payment for the Project shall be due no later than one
(1) year after the Digital Billboard Structure becomes fully operational or within thirty (30)
days after Developer receives any income from the use of the Digital Billboard Structure,
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 Digital Billboard Structure becomes fully operational
or within five (5) days of its receipt of any income received from use of the Digital Billboard
Structure, 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.
2.6.1 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");
Ordinance No. 775
Page 12
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 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.
2.7 Community Benefits. Developer shall also provide free of charge to City,
or any city approved nonprofit entity, on a space -available basis, advertising space on the
Digital Billboard Structure. Such advertising space shall only be made available for the use
of City -related events or agencies. 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 Billboard Structure. Said logo shall be provided to the
Developer by the City, as further detailed in "Exhibit B" attached hereto.
2.8 Prohibited Use. Developer shall not utilize any of the displays on the Digital
Billboard Structure to advertise tobacco, marijuana, hashish, "gentlemen's clubs," adult
entertainment businesses, sexually oriented materials, or use sexually oriented images or
language, including, but not limited to, ads such as "Adult Con", vulgar or obscene images
or language, or as may be prohibited by any City ordinance existing as of the Effective
Date of this Agreement or as may be amended or implemented from time -to -time after
the Effective Date and equally- applicable to all digital displays by any duly adopted and
valid City ordinance.
3. DEVELOPMENT AND IMPLEMENTATION OF THE PROJECT.
3.1 Rights to Develop Project on the Billboard Sign Easement Site. Subject
to and during the Term of this Agreement, Developer shall develop, maintain, and operate
the Project on the Billboard Sign Easement Site in accordance with, and to the extent of,
the Development Approvals, the Land Use Regulations, and this Agreement.
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3.2 Effect of Agreement on Land Use Regulations. Except as otherwise
provided under the terms of this Agreement, the rules, regulations and official policies
governing permitted uses of the Billboard Sign Easement Site, the density and intensity
of use of the Billboard Sign Easement Site, the maximum height and size of the proposed
Digital Display Face, and the design, improvement and construction standards and
specifications applicable to development of the Project shall be as set forth in the Land
Use Regulations, as such term is defined in Section 1.1.13, 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 Billboard Sign Easement Site, secure or cause to be
secured all necessary Development Approvals, which shall include any and all permits
and approvals which may be required by City or any other governmental agency or utility
affected by such construction, development or work to be performed by Developer
pursuant to the Scope of Development, including but not limited to, necessary building
permits and all approvals required under the California Environmental Quality Act
("CEQA"). Not by way of limiting the foregoing, in developing and constructing the
Project, Developer shall comply with all (1) applicable development standards in City's
Municipal Code, (2) applicable NPDES requirements pertaining to the Project, 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 City in connection with the Project which
are standard and uniformly applied to similar projects in the City.
3.4 Timing of Project; Scope of Development. Developer shall comply with
all time requirements set forth in the Schedule of Performance, attached hereto as Exhibit
"D". Developer shall remove the Printed Billboard Structure and install a Digital Billboard
Structure and such Digital Billboard Structure and both Digital Display Faces shall be fully
operational not later than one (1) year after the issuance of Final Permits for the Digital
Billboard Structure, or two (2) years after the Effective Date, whichever occurs first. If the
Digital Billboard Structure is not fully operational within such time, and after compliance
with Section 5.4, City may terminate this Agreement and shall have no 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.
If circumstances within the scope of Section 9.10 delay the commencement or
completion of the Project, it would not constitute grounds for any termination rights found
within this Agreement. In such case, the timeline to commence or complete the relevant
task shall be extended in the manner set forth at Section 9.10. Notwithstanding the above,
Developer shall, at all times, comply with all other obligations set forth in this Agreement
regarding the construction of the Project on the Billboard Sign Easement Site. Developer
shall also maintain the Digital Billboard Structure at all times during the Term in
accordance with the maintenance provisions set forth in Section 3 of the Scope of
Development, attached hereto as Exhibit "B".
Ordinance No. 775
Page 14
The purpose of this Agreement is to set forth the rules and regulations applicable
to the Project, which shall be accomplished in accordance with this Agreement, including
the Scope of Development (Exhibit "B") which sets forth a description of the Project and
the Schedule of Performance (Exhibit "D").
3.5 Changes and Amendments. Developer may determine that changes to
the Development Approvals are appropriate and desirable. In the event Developer makes
such a determination, Developer may apply in writing for an amendment to the
Development Approvals to effectuate such change(s). The parties acknowledge that City
shall be permitted to use its inherent land use authority in deciding whether to approve or
deny any such amendment request; provided, however, that in exercising the foregoing
the City shall use reasonable discretion and shall not apply a standard different than that
used in evaluating requests of other developers. Accordingly, under no circumstance shall
City be obligated in any manner to approve any amendment to the Development
Approvals. The City Manager shall be authorized to approve any non -substantive
amendment to the Development Approvals without processing an amendment to this
Agreement. All other amendments shall require the approval of the City Council. The
parties acknowledge that any extension of the Term for no more than twenty-four (24)
months total is an example of a non -substantive change, which the City Manager, in his
or her reasonable discretion, may approve in writing. Nothing herein shall cause
Developer to be in default if it upgrades the Digital Billboard Structure installed pursuant
to this Agreement during the term of this Agreement to incorporate newer technology;
provided Developer shall secure all applicable ministerial permits to do so and such
upgrade is consistent with the dimensions and standards for the displays, as provided under this
Agreement, Land Use Regulations and Subsequent Land Use Regulations.
3.6 Reservation of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other
provision of this Agreement, the following Subsequent Land Use Regulations shall
apply to the development of the Project:
(a) Processing fees and charges of every kind and nature imposed by
City to cover the estimated actual costs to City of processing applications for
Subsequent Development Approvals.
(b) Procedural regulations consistent with this Agreement relating to
hearing bodies, petitions, applications, notices, findings, records, hearing, reports,
recommendations, appeals and any other matter of procedure. Notwithstanding
the foregoing, if such change materially changes Developer's costs or otherwise
materially impacts its performance hereunder, Developer may terminate this
Agreement upon ninety
(90) days prior written notice.
(c) Changes adopted by the International Conference of Building
Officials, or other similar body, as part of the then most current versions of the
Uniform Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform
Mechanical Code, or National Electrical Code, as adopted by City as Subsequent
Land Use Regulations, if adopted prior to the issuance of a building permit for
development of the Digital Billboard Structure. Notwithstanding the foregoing, if
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such change materially changes Developer's costs or otherwise materially impacts
its performance hereunder, Developer may terminate this Agreement upon ninety
(90) days prior written notice.
(d) Regulations that are not in conflict with the Development Approvals
or this Agreement.
(e) Regulations that are in conflict with the Development Approvals or
this Agreement, provided Developer has given written consent to the application
of such regulations to development of the Project.
(f) Applicable Federal, State, County, and multi jurisdictional laws and
regulations which City is required to enforce as against the Billboard Sign
Easement Site or the development of the Project and that do not have an exception
for existing signs or legal nonconforming uses.
3.6.2 Future Discretion of City. This Agreement shall not prevent City from
denying or conditionally approving any application for a Subsequent Development
Approval on the basis of the Land Use Regulations.
3.6.3 Modification or Suspension by Federal, State, County, or Multi -
Jurisdictional Law. In the event that applicable federal, State, County, or multi -
jurisdictional laws or regulations, enacted after the Effective Date of this
Agreement, prevent or preclude compliance with one or more of the provisions of this
Agreement, and there is no exception for the legal nonconforming use, such provisions of
this Agreement shall be modified or suspended as may be necessary to comply with such
federal, State, County, or multi -jurisdictional laws or regulations, and this Agreement shall
remain in full force and effect to the extent it is not inconsistent with such laws or
regulations and to the extent such laws or regulations do not render such remaining
provision impractical to enforce. Notwithstanding the foregoing, if such change materially
changes Developer's costs or otherwise materially impacts its performance hereunder,
Developer may terminate this Agreement upon ninety (90) days prior written notice.
3.7 Regulation by Other Public Agencies. It is acknowledged by the parties
that other public agencies not subject to control by City may possess authority to regulate
aspects of the development of the Project as contemplated herein, and this Agreement
does not limit the authority of such other public agencies. Developer acknowledges and
represents that, in addition to the Land Use Regulations, Developer shall, at all times,
comply with all applicable federal, State and local laws and regulations applicable to the
Digital Billboard Structure and the Billboard Sign Easement Site that do not have an
exception for a legal nonconforming use. To the extent such other public agencies
preclude development or maintenance of the Project and that do not have an exception for
a legal nonconforming use, Developer shall not be further obligated under this Agreement
except as provided in Section 4.1. Notwithstanding the foregoing, if such action by another
public agency materially changes Developer's costs or otherwise materially impacts its
performance hereunder, Developer may terminate this Agreement upon ninety (90) days
prior written notice.
Ordinance No. 775
Page 16
3.8 Public Improvements. Notwithstanding any provision herein to the
contrary, the City shall retain the right to condition any Subsequent Development
Approvals to require Developer to pay any required development fees, and/or to construct
the required public infrastructure ("Exactions") at such time as City shall determine
subject to the following conditions.
3.8.1 The payment or construction must be to alleviate an impact caused
by the Project or be of benefit to the Project; and
3.8.2 The timing of the Exaction should be reasonably related to the
development of the Project and said public improvements shall be phased to be
commensurate with the logical progression of the Project development as well as
the reasonable needs of the public.
3.8.3 It being understood, however, that if there is a material increase in
cost to Developer or such action by City otherwise materially impacts Developer's
performance hereunder, Developer may terminate this Agreement upon ninety
(90) days prior written notice.
3.9 Fees, Taxes and Assessments. During the Term of this Agreement, the
City shall not, without the prior written consent of Developer, impose any additional fees,
taxes or assessments on all or any portion of the Project, except such fees, taxes and
assessments as are described in or required by this Agreement and/or the Development
Approvals. However, this Agreement shall not prohibit the application of fees, taxes or
assessments upon the Billboard Sign Easement Site or Developer, including the following:
3.9.1 Developer shall be obligated to pay those fees, taxes or City
assessments and any increases in same which exist as of the Effective Date or
are included in the Development Approvals;
3.9.2 Developer shall be obligated to pay any fees or taxes, and increases
thereof, imposed on a City-wide basis such as, but not limited to, business license
fees or taxes or utility taxes;
3.9.3 Developer shall be obligated to pay all fees applicable to a permit
application as charged by City at the time such application is filed by Developer;
3.9.4 Developer shall be obligated to pay any fees imposed pursuant to
any Uniform Code that existed when the application is filed by the Developer or
that exists when the Developer applies for any Subsequent Development
Approval.
3.10 Notwithstanding anything to the contrary herein, if there is a change in such
fees as of the full execution hereof or any additional fees are charged and such additional
or increased fees materially change Developer's costs or otherwise materially impacts its
performance hereunder, Developer may terminate this Agreement upon ninety (90) days
prior written notice.
4. REMOVAL OF DIGITAL DISPLAY FACES
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4.1 Removal Upon Expiration. 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
shall be converted to printed displays within ninety (90) days following expiration of the
Term, subject to obtaining any required permits. I n the event Developer should fail to
remove the Digital Display Faces and convert to a static billboard within ninety (90) days
after the effective date of termination and City is required to enforce the terms of this
Agreement and conversion of the Digital Display Faces to a printed billboard, City will
have the right to convert the Digital Billboard Structure to a printed billboard at Developer's
cost, and Developer shall reimburse City its reasonable City staff, consultant, and
attorneys' fees and costs incurred in securing such conversion. Developer's obligations
and City's rights under this Section 4.1 shall expressly survive expiration of this Agreement.
4.2 Removal Upon Termination. Should this Agreement be terminated for any
reason, City and Developer shall cause a termination agreement or memorialization of
the termination (in the event the Agreement has already been terminated pursuant to
Section 6.1), to be recorded with the County Recorder's Office. Upon termination,
Developer shall remove the Digital Display Faces and convert said displays to printed
displays within ninety (90) days from the effective date of termination, , subject to obtaining
any required permits. City will have the right to convert the Digital Billboard Structure to a
printed billboard at Developer's cost, and Developer shall reimburse City its reasonable
City staff, consultant, and attorneys' fees and costs incurred in securing such conversion,
in the event Developer should fail to remove the Digital Display Faces and convert to a
static billboard within ninety (90) days after the effective date of termination. Developer's
obligations and City's rights under this Section 4.2 shall expressly survive termination of
this Agreement.
5. REVIEW FOR COMPLIANCE.
5.1 Annual Review. The City Council shall have the right to review this
Agreement annually at 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 the
Agreement ("Annual Review"). However, no failure on the part of City to conduct or
complete an Annual Review as provided herein shall have any impact on the validity of
this Agreement. 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 Digital Billboard Structure, (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 Digital Billboard
Structure, as required in Section 6(m) of the conditions at Exhibit "B", 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 anyway 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
Ordinance No. 775
Page 18
be addressed per the requirements of Exhibit "B", and
(8) whether any City messages per Section 2.8 have been displayed during the preceding
year of the Term and a description of the duration of such displays.
5.2 Special Review. The City Council may, in its sole and absolute discretion,
order a special review of compliance with this Agreement at any time at City's sole cost
("Special Review"). Developer shall cooperate with the City in the conduct of any such
Special Review.
5.3 Intentionally Omitted.
5.4 Procedure. Each party shall have a reasonable opportunity to assert
matters which it believes have not been undertaken in accordance with the Agreement, to
explain the basis for such assertion, and to receive from the other party a justification of
its position on such matters. If, on the basis of the parties' review of any terms of the
Agreement, either party concludes that the other party has not complied in good faith with
the terms of the Agreement, then such party may issue a written "Notice of Non -
Compliance" or "Notice" 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,
or if such cure or remedy is not reasonably capable of being cured or remedied within such
thirty (30) days period, to commence to cure or remedy the non-compliance and to
diligently and in good faith prosecute such cure or remedy to completion. If the party
receiving the Notice of Non -Compliance does not believe it is out of compliance and
contests the Notice, it shall do so by responding in writing to said Notice within thirty (30)
days after receipt of the Notice. If the response to the Notice of Non -Compliance is not
delivered to the party alleging the non-compliance within the prescribed time period, the
Notice of Non -Compliance shall be conclusively presumed to be valid. If a Notice of Non -
Compliance is contested, the parties shall, for a period of not less than fifteen (15) days
following receipt of the response, seek to arrive at a mutually acceptable resolution of the
matter(s) occasioning the Notice. If a cure or remedy is not timely effected or, if the Notice
is contested and the parties are not able to arrive at a mutually acceptable resolution of
the matter(s) by the end of the fifteen (15) day period, the party alleging the non-compliance may
thereupon pursue the remedies provided in Section 6. Neither party hereto shall be deemed in
breach if the reason for non-compliance is due to a "force majeure" as defined in, and subject to the
provisions of, Section 9.10.
5.5 Certificate of Agreement Compliance. If, at the conclusion of an Annual
Review or a Special Review, Developer is found to be in compliance with this Agreement,
City shall, upon request by Developer, issue a Certificate of Agreement Compliance
("Certificate") to Developer stating that, after the most recent Annual Review or Special
Review, and based upon the information known or made known to the City Manager and
City Council, that (1) this Agreement remains in effect and (2) Developer is in compliance.
The Certificate, whether issued after an Annual Review or Special Review, shall be in
recordable form and shall contain information necessary to communicate constructive
record notice of the finding of compliance. Developer may record the Certificate with the
County Recorder. Additionally, Developer may, at any time, request from the City a
Certificate stating, in addition to the foregoing, which obligations under this Agreement
have been fully satisfied with respect to the Billboard Sign Easement Site.
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6. DEFAULT AND REMEDIES.
6.1 Termination of Agreement.
6.1.1 Termination of Agreement for Material Default of Developer. City, in
its discretion, may terminate this Agreement for any material failure of Developer
to perform any material duty or obligation of Developer hereunder or to comply in
good faith with the terms of this Agreement (hereinafter referred to as "default" or
"breach"); provided, however, City may terminate this Agreement pursuant to this
Section only after following the procedure set forth in Section 5.4. In the event of a
termination by City under this Section 6.1.1, Developer acknowledges and agrees
that City may retain all fees accrued up to the date of the termination, including the
Processing Fee and the Development Fee paid up to the date of termination, and
Developer shall pay the prorated amount of the Development Fee within sixty (60)
days after the date of termination and removal of the Digital Display Faces 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 Development Approvals,
including the Final Permits and/or compliance with requirements under laws
necessary to effectuate the Project. In the event of a termination by Developer
under this Section 6.1.2, Developer acknowledges and agrees that City may retain
all fees, including the Processing Fee and the Development Fee paid up to the date
of termination, and Developer shall pay the prorated amount of the Development
Fee within sixty (60) days after the date of termination and removal of the Digital
Display Faces that equates to the percentage of time elapsed in the year of the Term
at the time of termination.
6.1.3 Termination of Agreement Economic Infeasibility of Developer.
Developer, in its discretion, may terminate this Agreement upon ninety (90) days
prior written notice if, pursuant to Section 7.2.1, Developer is required to defend,
pay judgment, or settle by payment of funds any action or actions filed in
connection with claims or liabilities for which Developer is required to save and
hold the City and its officers, agents, and employees harmless, and Developer
determines it is no longer economically feasible to operate the Digital Billboard
Structure or a printed billboard with two facings on the Billboard Sign Easement
Site, provided Developer's obligations under Section 7.2.1. shall survive any such
termination under this Section 6.1.3. Developer acknowledges and agrees that City
may retain all fees, including the Processing Fee and the Development Fee paid
up to the date of termination, and Developer shall pay the prorated amount of the
Development Fee within sixty (60) days after the date of termination that equates
Ordinance No. 775
Page 20
to the percentage of time elapsed in the year of the Term at the time of termination.
6.1.4 Rights and Duties Following Expiration and Termination. Upon the
expiration or sooner termination of this Agreement, neither 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 obligations under Section 4.1 and Section 4.2, and (iv) any
continuing obligations to indemnify, defend and hold harmless the other party under
Section 7.2.
6.1.5 No Damages. Notwithstanding anything else in this Agreement to the
contrary, Developer acknowledges that the City would not have entered 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 forbreach of this Agreement.
7. INSURANCE, INDEMNIFICATION ANDWAIVERS.
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, comprehensive broad form general liability insurance
against claims and liabilities covered by the indemnification provisions of
Section 7.2. Developer has agreed to indemnify City hereunder with respect
to its use, occupancy, disuse or condition of the Billboard Sign Easement
Site, improvements or adjoining areas or ways, affected by such use of the
Billboard Sign Easement 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 City evidence that any contractors
with whom Developer has contracted for the performance of any work for
which Developer is responsible maintains the same coverage required of
Developer.
(b) Worker's Compensation. Developer shall also furnish or
cause to be furnished to City evidence that any contractor with whom
Developer has contracted for the performance of any work for which
Developer is responsible hereunder carries worker's compensation
insurance as required by law.
(c) Insurance Policy Form, Sufficiency, Content, and Insurer. All
insurance required by express provisions hereof shall be carried only by
responsible insurance companies qualified to do business by California with
an AM Best Rating of no less than "A". All such policies shall be non -
assignable and shall contain language, to the extent obtainable, to the effect
21
that (i) the insurer waives the right of subrogation against City and against
City's agents and representatives except as provided in this Section; (ii) the
policies are primary and noncontributing with any insurance that may be
carried by City, but only with respect to the liabilities assumed by Developer
under this agreement; and (iii) the policies cannot be canceled or materially
changed except after written notice by the insurer to City or City's
designated representative as expeditiously as insurance company agrees
to provide notice. Developer shall furnish City with certificates 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 City, in the manner required for notices, copies of certificates
and endorsements of all insurance policies required of each policy within
thefollowing time limits:
(1) For insurance required above, within seven (7) days after the
Effective Date or consistent with the requirements of Exhibit "D" (Schedule
of Performance), Item No. 4.
(2) The City may 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 City with required proof that the insurance has
been procured and is in force and paid for, after complying with the requirements of
Section 5A, the City 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
Billboard Sign Easement 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 and if circumstances warrant, settle any
action or actions filed in connection with any of said claims or liabilities
covered by the indemnification provisions herein and will pay all reasonable
Ordinance No. 775
Page 22
costs and expenses, including legal costs and attorneys' fees incurred in
connection therewith.
(b) Developer will promptly pay any judgment rendered against
the City or its officers, agents, or employees for any such claims or liabilities
arising out of or in connection with such work, operations, or activities of the
Developer hereunder, and Developer agrees to save and hold the City and
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 Billboard Sign
Easement 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 Billboard Sign
Easement 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, City shall not be liable
for any damage to property of Developer or others located on the Billboard Sign
Easement Site, nor for the loss of or damage to any property of Developer, or
others by theft or otherwise. Except as set forth below, City shall not be liable for
any injury or damage to persons or property resulting from fire, explosion, steam,
gas, electricity, water, rain, dampness or leaks from any part of the Billboard Sign
Easement 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 Billboard Sign Easement
Site, or by any other cause of whatsoever nature. The foregoing two (2) sentences
shall not apply (i) to the extent City or its agents, employees, subcontractors,
invitees or representatives causes such injury or damage or to the extent they
cause any damage to any improvements thereon, including by condemnation,
whether with or without the exercise of eminent domain, temporarily or permanently, or
(ii) to the extent covered in any permit to enter executed by the City. Nothing in this Section
7.2.4 allows the City or any government authorities to condemn all or any part of the
Billboard Sign Easement Site or the Digital Billboard Structure, whether with or without the
exercise of eminent domain, without the payment of just compensation, and as further set
forth in Section 9.17 herein.
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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 City each agrees that it shall not
make any claim against, or seek to recover from the other or its agents, servants, or
employees, for any loss or damage to it or to any person or property relating to this Project,
except as specifically provided hereunder which include but is not limited to, a claim or
liability arising from the sole negligence or willful misconduct of the City, its officers,
agents, or employees, who are directly responsible for the City.
8. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit Developer,
in any manner, at Developer's sole discretion, from encumbering the Billboard Sign
Easement Site or any portion thereof or any improvement thereon by any mortgage, deed
of trust or other security device securing financing with respect to the Billboard Sign
Easement Site. City acknowledges that the lenders providing such financing may require
certain Agreement interpretations and modifications and City agrees upon request, from
time to time, to meet with Developer and representatives of such lenders to negotiate in
good faith any such request for interpretation or modification. Subject to compliance with
applicable laws, City will not unreasonably withhold its consent to any such requested
interpretation or modification provided City determines such interpretation or modification
is consistent with the intent and purposes of this Agreement. Any Mortgagee of the
Billboard Sign Easement Site shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any
mortgage on the Project, the Digital Billboard Structure, or the Billboard Sign
Easement Site made in good faith and for value, unless otherwise required
by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering
the Project, the Digital Billboard Structure, or the Billboard Sign Easement
Site, or any part thereof, which Mortgagee has submitted a request in writing
to the City in the manner specified herein for giving notices, shall be entitled
to receive written notification from City of any default by Developer in the
performance of Developer's obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee requesting a
copy of any notice of default given to Developer under the terms of this
Agreement, City shall make a good faith effort to provide a copy of that
notice to the Mortgagee within ten (10) days of sending the notice of default
to Developer. The Mortgagee shall have the right, but not the obligation, to cure
the default during the period that is the longer of (i) the remaining cure period
allowed Developer under this Agreement, or (ii) sixty (60) days.
ordinance No. 775
Page 24
(d) Any Mortgagee who comes into possession of the Project, the
Digital Billboard Structure, or the Billboard Sign Easement Site, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in
lieu of such foreclosure, shall take the Project, the Digital Billboard
Structure, or the Billboard Sign Easement Site, or part thereof, subject to
the terms of this Agreement. Notwithstanding any other provision of this
Agreement to the contrary, no Mortgagee shall have an obligation or duty
under this Agreement to perform any of Developer's obligations or other
affirmative covenants of Developer hereunder, or to guarantee such
performance; except that (i) to the extent that any covenant to be performed
by Developer is a condition precedent to the performance of a covenant by
City, the performance thereof shall continue to be a condition precedent to
City's performance hereunder, and (ii) in the event any Mortgagee seeks to
develop or use any portion of the Project, the Digital Billboard Structure, or
the Billboard Sign Easement Site acquired by such Mortgagee by
foreclosure, deed of trust, or deed in lieu of foreclosure, such Mortgagee
shall strictly comply with all of the terms, conditions and requirements of this
Agreement and the Development Approvals applicable to the Project, the
Digital Billboard Structure, or the Billboard Sign Easement Site or such part
thereof so acquired by the Mortgagee.
9. MISCELLANEOUS PROVISIONS.
9.1 Recordation of Agreement. This Agreement shall be recorded with the
County Recorder by the City Clerk within ten (10) days of execution, as required by
Government Code Section 65868.5. Amendments approved by the parties, and any
cancellation, shall be similarly recorded.
9.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties with respect to the subject matter set forth
herein, and there are no oral or written representations, understandings or ancillary
covenants, undertakings or agreements which are not contained or expressly referred to
herein. No testimony or evidence of any such representations, understandings or
covenants shall be admissible in any proceeding of any kind or nature to interpret or
determine the terms or conditions of this Agreement.
9.3 Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, then that term, provision, covenant or
condition of this Agreement shall be stricken and the remaining portion of this Agreement
shall remain valid and enforceable if that stricken term, provision, covenant or condition
is not material to the main purpose of this Agreement, which is to allow the Project to be
permitted and operated and to provide the Development Fee to the City; otherwise, this
Agreement shall terminate in its entirety, unless the parties otherwise agree in writing,
which agreement shall not be unreasonably withheld.
9.4 Interpretation and Governing Law. This Agreement and any dispute
arising hereunder shall be governed and interpreted in accordance with the laws of the
State of California. This Agreement shall be construed as a whole according to its fair
language and common meaning, to achieve the objectives and purposes of the parties
25
hereto. The rule of construction, to the effect that ambiguities are to be resolved against the
drafting party or in favor of the non -drafting party, shall not be employed in interpreting this
Agreement, all parties having been represented by counsel in the negotiation and preparation
hereof.
9.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
9.6 Singular and Plural. As used herein, the singular of any word includes the plural.
9.7 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
9.8 Waiver. Failure of a party to insist upon the strict performance of any of the
provisions of this Agreement by the other 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, as well as their successors and assigns.
No other person shall have any right of action based upon any provision of this
Agreement.
9.10 Force Majeure. Notwithstanding the contrary herein, neither party shall be
deemed to be in default where failure or delay in performance of any of its obligations under
this Agreement is caused by earthquakes, other acts of God, fires, rains, winds, wars,
pandemics, 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 and the time for performance shall be extended
for the duration of each such event, provided that the term of this Agreement shall not be
extended under any circumstances for more than five (5) years and further provided that
if such delay is longer than six (6) months, Developer may terminate this Agreement upon
written notice to City and City shall return to Developer any portion of the Development
Fee paid for any period after the effective date of such termination.
9.11 Mutual Covenants. The covenants contained herein are mutual covenants
and also constitute conditions to the concurrent or subsequent performance by the party
benefited thereby of the covenants to be performed hereunder by such benefited party.
9.12 Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the same effect
as if all 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
Ordinance No. 775
Page 26
validity of any provision of this Agreement shall be filed and tried in the Superior Court of
the County of Los Angeles, State of California, or such other appropriate court in said
county. Service of process on City shall be made in accordance with California law.
Service of process on Developer shall be made in any manner permitted by California law
and shall be effective whether served inside or outside California. In the event of any
action between City and Developer seeking enforcement of any of the terms and conditions
to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief
to which such party is entitled under this Agreement, its reasonable litigation costs and expenses,
including without limitation its expert witness fees and reasonable attorneys' fees.
9.14 Covenant Not To Sue. The parties to this Agreement, and each of them,
agree that this Agreement and each term hereof is legal, valid, binding, and enforceable.
The parties to this Agreement, and each of them, hereby covenant and agree that each
of them will not commence, maintain, or prosecute any claim, demand, cause of action,
suit, or other proceeding against any other party to this Agreement, in law or in equity,
which is based on an allegation, or assert in any such action, that this Agreement or any
term hereof is void, invalid, or unenforceable.
9.15 Project as a Private Undertaking. It is specifically understood and agreed
by and between the parties hereto that the development of the Project is a private activity,
that neither party is acting as the agent of the other in any respect hereunder, and that
each party is an independent contracting entity with respect to the terms, covenants and
conditions contained in this Agreement. No partnership, joint venture or other association
of any kind is formed by this Agreement. The only relationship between City and
Developer is that of a government entity regulating the development of private property,
on the one hand, and the holder of a legal or equitable interest in such property on the
other hand. City agrees that by its approval of, and entering into, this Agreement, that it
is not taking any action which would transform this private Project into a "public work"
project, and that nothing herein shall be interpreted to convey upon Developer any benefit
which would transform Developer's private project into a public work project, it being
understood that this Agreement is entered into by City and Developer upon the exchange
of consideration described in this Agreement, including the Recitals to this Agreement
which are incorporated into this Agreement and made a part hereof, and that City is
receiving by and through this Agreement the full measure of benefit in exchange for the
burdens placed on Developer by this Agreement.
9.16 Further Actions and Instruments. Each of the parties shall cooperate with
and provide reasonable assistance to the other to the extent contemplated hereunder in
the performance of all obligations under this Agreement and the satisfaction of the
conditions of this Agreement. Upon the request of either party at any time, the other party
shall promptly execute, with acknowledgment or affidavit if reasonably required, and file
or record such required instruments and writings and take any actions as may be
reasonably necessary under the terms of this Agreement to carry out the intent and to
fulfill the provisions of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement.
9.17 Eminent Domain. No provision of this Agreement shall be construed to limit
or restrict the exercise by City of its power of eminent domain or Developer's right to seek
and collect just compensation or any other remedy available to it.
27
9.18 Amendments in Writing/Cooperation. This Agreement may be amended
only by written consent of both parties specifically approving the amendment and in
accordance with the Government Code provisions for the amendment of development
agreements. The parties shall cooperate in good faith with respect to any amendment
proposed in order to clarify the intent and application of this Agreement and shall treat
any such proposal on its own merits, and not as a basis for the introduction of unrelated
matters. Minor, non -material modifications may be
approved by the City Manager upon approval by the City Attorney.
9.19 Corporate Authority. The person(s) executing this Agreement on behalf of
each of the parties hereto represent and warrant that (i) such party, if not an individual, is
duly organized and existing, (ii) they are duly authorized to execute and deliver this
Agreement on behalf of said party, (iii) by so executing this Agreement such party is
formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other agreement to which such party is
bound.
9.20 Notices. All notices under this Agreement shall be effective when delivered
by United States Postal Service mail, registered or certified, postage prepaid return receipt
requested; and addressed to the respective parties as set forth below or as to such other
address as the parties may from time to time designate in writing by providing notice to
the other party:
Original To City: City of Irwindale
5050 N. Irwindale
Ave. Irwindale, CA
91706 Attn: City
Manager
With Copy to: Aleshire & Wynder, LLP
1 Park Plaza, Suite 1000
Irvine, CA 92614
Attn: Adrian R. Guerra, City Attorney
To Developer: Rivergrade Holding,
LLC 9454 Wilshire
Boulevard,
Suite 201
Beverly Hills, CA 90212
Attn: Caspar Chou, Managing Member
With Copy to:
Ordinance No. 775
Page 28
Tepper & Associates,
APC 9454 Wilshire
Boulevard,
Suite 201
Beverly Hills, CA
90212 Attn: Foster
Tepper
9.21 Nonliability of City Officials. No officer, official, member, employee,
agent, or representatives of City shall be liable for any amounts due hereunder, and no
judgment or execution thereon entered in any action hereon shall be personally enforced
against any such officer, official, member, employee, agent, or representative.
9.22 No Brokers. City and Developer represent and warrant to the other that
neither has employed any broker and/or finder to represent its interest in this transaction.
Each party agrees to indemnify and hold the other free and harmless from and against
any and all liability, loss, cost, or expense (including court costs and reasonable attorneys'
fees) in any manner connected with a claim asserted by any individual or entity for any
commission or finder's fee in connection with this Agreement or arising out of agreements
by the indemnifying party to pay any commission or finder's fee.
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first set forth above.
ATTEST:
Laura Nieto, Chief Deputy City Clerk
APPROVED AS TO FORM:
go
Adrian R. Guerra, City Attorney
Ordinance No. 775
Page 30
CITY OF IRWINDALE
in
Albert F. Ambriz, Mayor
RIVERGRADE HOLDING,
LLC
By:
Name: Caspar Chou
Title: Manager:
By:_
Narne:
Title:
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES }
On 2024, 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 he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted executed the instrument.
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 Signature
(Seal)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On , 2024, 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 he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted executed the instrument.
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 Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On 2024, 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 he/shelthey executed the same in his/her/their
authorized capacity(ies), and that by hislherltheir 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 Signature
(Seal)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On 2024, 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 he/shelthey executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted executed the instrument.
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.
Ordinance No. 775
Page 32
Notary Signature (Seal)
EXHIBIT A-1
LEGAL DESCRIPTION OF REAL PROPERTY SITE
Real property in the City of Irwindale, County of Los Angeles, State of California,
described as follows
PARCEL 3:
A STRIP OF LAND WITHIN LOT 4 OF FRACTIONAL SECTION 12, TOWNSHIP 1 SOUTH, RANGE 11 WEST,
SAN BERNARDINO MERIDIAN, IN THE CITY OF IRWINDALE, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICIAL FLAT OF SAID LAND FILED IN THE DISTRICT LAND OFFICE,
DESCRIBED AS FOLLOWS:
THE SOUTHEASTERLY 35.00 FEET OF RIVERGRADE ROAD, AS DESCRIBED IN PARCEL A OF THE LAND
DESIGNATED AS PARCEL NO. 1-11 IN THE SUPERIOR COURT OF LOS ANGELES COUNTY, CASE NO.
602687, NOTICE OF THE PENDENCY OF SAID ACTION WAS RECORDED ON AUGUST 11, 1952, AS
INSTRUMENT NO. 2031, IN BOOK 39577, PAGE 345 OF OFFICIAL RECORDS IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
SAID STRIP TO TERMINATE NORTHEASTERLY IN THE EAST LIME OF SAID LOT 4 AND SOUTHWESTERLY
IN THE SOUTH LINE OF SAID LOT 4.
PARCEL 4:
THAT PORTION OF LOT 4 IN SECTION 12, TOWNSHIP 1 SOUTH, RANGE 11 WEST, SAN BERNARDINO
MERIDIAN, IN THE CITY OF IRWINDALE, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND FILED IN
THE DISTRICT LAND OFFICE JANUARY 7, 1868 DESCRIBED AS FOLLOWS -
BEGINNING ATTHE SOUTHEAST CORNER OF SAID LOT 4;
THENCE ALONG THE EASTERLY LINE OF SAID LOT 4, TO THE SOUTHEASTERLY LINE OF RIVERGRADE
ROAD, AS DESCRIBED IN PARCEL A OF THE LAND DESIGNATED AS PARCEL 1 -1i IN THE SUPERIOR
COURT OF LOS ANGELES COUNTY, CASE NO. 602687, NOTICE OF THE PENDENCY OF SAID ACTION
WAS RECORDED ON AUGUST 11, 1952 AS INSTRUKIEI T NO. 2031, IN BOOK 39577, PAGE 345 OF
OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY;
THENCE SOUTHWESTERLY ALONG SAID RIVERGRADE ROAD TO THE SOUTHERLY LINE OF SAID LOT 4;
THENCE EASTERLY ALONG SAID SOUTHERLY LIME TO THE POINT OF BEGINNING,
EXCEPT THEREFROM THAT PORTION OF SAID LAND DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 4;
THENCE ALONG THE EASTERLY LINE OF SAID LOT 4 NORTH 00' 26! 40" WEST 297.76 FEET TO A POINT
IN A NON -TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 2000.00 FEET, A
RADIAL LINE TO SAID POINT BEARS SOUTH 83` 2T OW EAST;
THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH AN ANGLE OF 10° 08' 23" AN ARC DISTANCE
OF 353.94 FEET TO THE SOUTHERLY LINE OF SAID LOT 4;
THENCE ALONG SAID SOUTHERLY LINE NORTH 89` 00' 14" EAST 187.65 FEET TO THE POINT OF
BEGINNING_
A-1-1
PARCEL 5:
PARCEL 2, AS SHOWN ON THE PARCEL MAP NO. 23240 FILED IN BOOK 257 PAGES 34 AND 35 OF
PARCEL (MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND AS MODIFIED BY
THAT CERTIFICATE OF CORRECTION RECORDED FEBRUARY 16, 1993 AS INSTRUMENT No. 93-291037,
OF OFFICIAL RECORDS.
EXCEPT THEREFROM ALL MINERALS, OILS, OASES, AND OTHER HYDROCARBONS BY WHATSOEVER
NAME KNOWN THAT MAY BE WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED
WITHOUT, HOWEVER, THE RIGHT TO DRILL, DIG OR MINE THROUGH THE SURFACE OF THE UPPER 500
FEET THEREOF, AS RESERVED BY THE STATE OF CALIFORNIA IN DEED RECORDED ,DINE 27, 1972 A5
INSTRUMENT NO, 3793,OF OFFICIAL RECORDS.
APNs: 8535-020-045, 8535-020-047 and 8535-020-048
Ordinance No. 775
Page 2
EXHIBIT A--2
LEGAL DESCRIPTION OF BILLBOARD SIGN EASEMENT
SITE
Ordinance No. 775
Page 2
LEGAL DESCRIPTION
BILLBOARD SIGN PARCEL
THAT PORTION OF LOT 4 IN FRACT90NAL SECTION 12, TOWNSHIP 1 SOUTH
RANGE Il WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF IRWINDALE,
COUNTY OF LOS_AiwNGELEI�, ST,5.TE OF GAUPORNIA, AOCOREAN(ZI TO THE.
OFFICIAL, PLAT Clw SAID LAND FILED rN THS DISTRICT LA140 {OFFICE JANUARY 7,
15513 DES(:R25EL AS FOLLOWS;
BEGINNING AT THE SC" VTHSAST CORNER OF SAID LOT 4; 711ENCE ALONG TH5
SOUTHERLY LINE OF $AJ 0 LOT 4 SOUTH 800 013' 1-4' WEST 197.65 FEET To A
POJK'T IN A NON -TANGENT CURVE CQNCAVS NORTHWeSTERLY HMflNG A
RADIUS OF 2,000 FEF:M TO WHICM POINT A RADIAL LINE 135ARS SOUTH 630 18'
45" VVF-ST; THENQE NORTHEASTERLY 11,12 FSST ALONG SAID GCSRVE
THROUGH A CENTRAL ANOL> OF 00 19' 67" TO Tf4G `rkUr= POINT OF BECMNNIN(l ;
THENCE NORTH 530F 4& 28' WSST 53,67 FEET; THENCE fJc,)RTH 331 04' 33` EAST
54-51 FEET; THENCE SOUTH 65° 05' top EAST aa.04 FI=ET TO A POINT IN A NON -
TANGENT CURVE CONCAVE NoRTHWESTER'LY HAVING A RADIUS OF 2,01aO
FEET; TO WHION POINT, A RADIAL LINE BEARS SOUTH 556 14l 92" FAST. THENCE
S0U7HWE;3 TELLY o5,96 FEEL ALONG SAID CURVE THROUGH A CENTRAL
ANOI E- OF 1° $V 10v TO THE TRUE POINT OF BEGINNING.
COKTAINING 3,583 $QUAKE FFET, MORE OR LESS.
nesarlpflort pn4pared by;
APR1L -, 3,20.
Setrlir IVI. KYiK Date
R.V.E. Na, 30567
A-3-1
rx�. �-ati�ncs
ZZ
EXHIBIT A-3
DEPICTION OF BILLBOARD SIGN EASEMENT SITE
v
a
�I
A
N
6,5157.50 SQ. M
0.08 ACRES
Ordinance No. 775
Page 4
aiy ,
L.
95
Tan�27.98
L=1'35'10'
�I i fli: R2000.00
T.P.
1 S89`00'14" W 157,55'
�/ t_t t p
y S.E. CORNER LOT 4
EXHIBIT 'Ei' T.1 S, R',11LW OF'THE
oN 12
Im-all nkil1
SCOPE OF DEVELOPMENT
Developer and City agree that the Project shall be undertaken in accordance with
the terms of the Agreement, which include the following:
1. The Pr_ oject. This Agreement allows for demolition of one Printed Billboard
Structure and installation of one Digital Billboard Structure. The existing Printed Billboard
Structure has double -sided printed displays. A Digital Billboard Structure, as further
defined in this Agreement, 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 V-display or back-to-back
Digital Billboard Structure, with Digital Display Faces facing north and south, at the same
general location as the existing Printed Billboard Structure. Developer shall operate and
maintain the Digital Billboard Structure on the Billboard Sign Easement 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 Digital Billboard Structure shall comply with Section 17.72.050, General
Standards, of the Irwindale Municipal Code. Specifically, the area of the sign face shall
not exceed six hundred seventy-five (675) square feet, excluding border, trim, cutouts
and other special advertising features or additions and base or apron supports and other
structural members. The building height may not exceed sixty-five (65) feet, exclusive of
cutouts or special additions, measured from the higher of either: 1) the finished grade of
the roadway adjacent to the lot on which the structure is located (the 605 Freeway) 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 Digital Billboard
Structure, The Digital Billboard Structure shall be constructed in the location shown
therefor on Exhibits "A-2 and A-3". 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 Digital Billboard
Structure.
2 Processing Fees. Developer shall pay all applicable City Processing Fees,
as described in Section 2.5 of this Agreement, prior to the time that a building permit is
issued forthe installation of the Digital Billboard Structure on the Billboard Sign Easement
Site.
3. 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 Digital Billboard Structure, including
but not limited to, the Digital Display Faces installed thereon, and all related on -site
improvements, easements, rights -of -way and, if applicable, at its sole cost and
expense, including, without limitation, poles, lighting, signs and walls, in good
B-5
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 Billboard
Sign Easement Site unless those federal, State, and local bodies have an exception for a
legal nonconforming use. Such maintenance and repair shall include, but not be limited to,
the following: (i) sweeping and trash removal related to the Project; (ii) the ongoing
maintenance by the Developer of any access road to the Digital Billboard Structure to
minimize dust caused by the Project; (iii) the adequate and complete removal or painting
over of all graffiti within 48 hours of notice of such graffiti being affixed on the Digital
Billboard Structure; and (iv) the repair, replacement and repainting of the Digital Billboard
Structure and Digital Display Faces as necessary to maintain such Digital Billboard
Structure in good condition and repair. 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 Billboard Sign Easement 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 Project such as to be detrimental to the public health, safety or general
welfare or that such a condition of deterioration or disrepair causes appreciable
harm or is materially detrimental to property or improvements within three hundred
(300) feet of the Billboard Sign Easement Site.
4 Other Rights of Cit . In the event of any violation or threatened violation of
any of the provisions of this Exhibit "B, ,F1 then in addition to, but not in lieu of, any of the
rights or remedies the City may have to enforce the provisions of this Agreement, the City
shall have the right, after complying with Section 5.4 of this Agreement, (i) to enforce the
provisions hereof by undertaking any maintenance or repairs required by Developer under
Section 3 of this Exhibit "B" and charging Developer for any actual maintenance costs
incurred in performing same, and (ii) to withhold or revoke, after giving written notice of
said violation, any building permits, occupancy permits, certificates of occupancy,
business licenses and similar matters or approvals pertaining to the Billboard Sign
Easement Site or any part thereof or interests therein as to the violating person or one
threatening violation.
5. No City Liability. The granting of a right of enforcement to the City does not
create a mandatory duty on the part of the City to enforce any provision of this Agreement.
The failure of the City to enforce this Agreement shall not give rise to a cause of action
on the part of any person. No officer or employee of the City shall be personally liable to
the Developer, its successors, transferees, or assigns, for any default or breach by the
City under this Agreement.
b. Conditions of Approval. The following additional conditions shall apply to
the installation of the Digital Billboard Structure and shall conform to all applicable
provisions of the Irwindale Municipal Code ("W"), including but not limited to the Outdoor
Advertising provisions of the IMC at Section 17.72.030, and the following conditions, in a
manner subject to the approval of the Community Development Director or designee:
Ordinance No. 775
Page 6
(a) Conditions to be met before Final Permits. Prior to the issuance of a
business license, occupancy permit, final inspection by the Community
Development Department, and Final Permits, all applicable conditions of approval
(except those involving construction permits) shall be completed to the reasonable
satisfaction of the City.
(b) Building Permit. A building permit from the Building and Safety
Division will be required, structural calculations shall be prepared by a licensed
civil engineer and approved by the City Building Official. All construction shall be
in compliance with the Irwindale Building Code and all applicable regulations
including Caltrans Advertising Department.
(c) Plans. The use and improvements authorized by this Agreement
shall conform to the plans as finally approved by the City (date stamped )
as conditioned herein, and any appreciable modification of the plans or mode of
operation, as determined by the Director of Community Development, shall require
the prior approval of the Planning Commission.
(d) Digital Display Face dimensions. The size of each Digital Display
Face shall not exceed a maximum area of 675 square feet, with no more than 128
total feet of extensions or borders, and the Digital Billboard Structure shall not
exceed a maximum height of 65 feet, as measured per Section 17.72.050
standards, including all extensions, and shall be consistent with the Elevations at
Exhibit "C" approved by the City as park of the Development Approvals.
(e) Plan Check. Plans and specifications for the proposed installation of
the Digital Billboard Structure, 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, contours/drainage 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
B-7
resisting elements, including shear wall locations and schedule, and
diaphragm construction specifications.
Ordinance No. 778
Page 8
(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} Compliance with applicable law. Developer shall maintain the
Billboard Sign Easement Site and use thereof in full compliance with all applicable
and duly adopted codes, standards, policies, and regulations imposed by the City,
County, State, and federal agencies, unless the Project or Digital Billboard
Structure is exempted as a legal nonconforming use.
(g) Caltrans approvals. Developer shall, at all times, comply with the
approval for the Digital Billboard Structure from the California Department of
Transportation Outdoor Advertising Division ("Caltrans") that may be necessary in
order to allow for the construction and installation of the Digital Billboard Structure
pursuant to the California Outdoor Advertising Act and shall maintain acceptable
clearance between the Digital Billboard Structure and utility distribution lines.
(h) Fees. The Developer shall pay any and all applicable fees due to any
public agency prior to the issuance of the Development Approvals and Final
Permits.
(i) Use within Billboard Sign Easement Site. The activities proposed in
this Agreement shall be conducted completely upon the Billboard Sign Easement
Site and shall not use or encroach on any public right-of-way.
0) Access Roads. Developer shall ensure that all access to the Digital
Billboard Structure is kept restricted from the general public to the extent permitted
under local laws.
(k) Landscapinq. If any portion of the landscape or artwork installed
adjacent to the Digital Billboard Structure is damaged by the Project and becomes
damaged, or otherwise in need of replacement, as determined by the City's
Community Development Department Director or designee, the Developer shall
ensure that the replacement is accomplished within fourteen (14) days of
notification by the City, unless such time is extended by the City's Community
Development Director or designee if Developer shows unusual circumstances
requiring more time to accomplish such replacement. Developer may trim such
landscaping so as not to block the Digital Display Faces.
(1) Utilities. Developer shall be required to install all utilities underground
RUN
in connection with the Digital Billboard Structure. To this end, City shall cooperate
with the applicable utility provider's requirement upon Developer to upgrade
Developer's current electrical service to the Digital Billboard Structure.
Ordinance No. 775
Page 10
(rn) Light/Glare. Developer shall comply with State law regarding the
limitation of light or glare or such other standards as adopted by the Outdoor
Advertising Association of America, Inc. ("OAAA"), including but not limited to, the
0.3 foot-candles limitation over ambient light levels and ensuring additional
flexibility in further reducing such maximum light level standard given the lighting
environment upon request by the City's Development Services Director or
designee, the obligation to have automatic dimming capabilities, as well as
providing the City's Development Services Director or designee with a designated
Developer employee's phone number and/or email address for emergencies or
complaints that will be monitored 24 hours a day/7 days per week. Upon any
reasonable complaint by the City's Development Services Director or its designee,
Developer shall perform a brightness measurement of the display using OAAA
standards, or such lower level given the lighting environment, and provide City with
the results of same within five (5) business 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.
(n) Public Works:
(t) NPDES. Developer shall comply with all necessary NPDES
requirements pertaining to the proposed use, to the extent applicable.
(2) Separate permits are required for all work performed within the
public right -of way. Developer shall be responsible for all fees for the
necessary permits and construction inspections for work performed within
the public -right-of-way,
to
EXHIBIT C
BILLBOARD SIGN EASEMENT SITE PLAN AND
ELEVATIONS
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EXHIBIT D
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE
Effective Date of this Agreement.
Developer prepares andsubmits
to City working drawings,
specifications, and engineering
for the Digital Billboard
Structure; City commences
approval process.
Developer to submit proofof
insurance to City.
The Digital Billboard Structure
shall be fully operational.
Developer pays City first
installment of Development Fee if
Developer receives Final Permits.
Developer pays City second
through final installments of
Development Fee ifDeveloper
receives Final Permits for the
Digital Billboard Structure.
Ordinance No. 775
Page 4
TIME FOR
PERFORMANCE
30 days following Council's
second reading of Ordinance.
Within 180 days of the Effective
Date.
Prior to commencing any
inspections and work on the
Project.
Not later than one (1) year after
the issuance of Final Permits for
the Digital Billboard Structure,
or two (2) years after the
Effective Date, whichever
occurs first.
Within 1 year after the Digital
Billboard Structure becomes
fully operational or within 30
days after Developer receives
any income from the use of the
Digital Billboard Structure,
whichever occurs first.
Upon each anniversary date of
the Fee Commencement Date,
as defined in Section 2.6 of this
Agreement, for the Digital
Billboard Structure.
REFERENCE
1.1.10
Ex. B(6)(e)
7.1.2
3.4
2.6
2.6
It is understood that this Schedule of Performance is subject to all the terms and
conditions of the text of the Agreement. The summary of the items of performance in this
Schedule of Performance is not intended to supersede or modify the more complete
description in the text; in the event of any conflict or inconsistency between this Schedule
of Performance and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or
amended only by written agreement signed by both the Developer and the City.
Notwithstanding any extension of the Term in the manner described in, and subject to the
provisions of, Section 3.5, the City Manager shall have the authority to approve
extensions of time set forth in this Schedule of Performance without action of the City
Council not to exceed a cumulative total of 180 days.
D-2