HomeMy Public PortalAbout18-1813 - Development Agreement No. 14-17 with Outfront Media, LLC at 22022 Recreation RoadORDINANCE NO. 18-1813
AN UNCODIFIED ORDINANCE OF THE CITY OF CARSON, CALIFORNIA, APPROVING
DEVELOPMENT AGREEMENT NO. 14-17 BETWEEN THE CITY OF CARSON AND
OUTFRONT MEDIA, LLC, TO INSTALL ONE 75 -FOOT -HIGH OUTDOOR ADVERTISING SIGN
("DIGITAL BILLBOARD") ALONG A PORTION OF THE 1-405 FREEWAY CORRIDOR, ZONED
COMMERCIAL AUTOMOTIVE (CA), LOCATED AT 22022 RECREATION ROAD (APN 7328-
001-021).
THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA, HEREBY FINDS, RESOLVES AND ORDERS AS
FOLLOWS:
Section 1. An application for a development agreement (Agreement), pursuant to
Government Code Sections 65864 through 65869.5 of the City of Carson, was duly filed by the applicant,
Outfront Media, LLC. ("Outfront"), with respect to the real property located at 22020 Recreation Road
(APN 7328-001-021). The applicant proposes a 75 -foot -high outdoor advertising sign ('digital billboard")
to replace an existing static billboard at the subject property.
Section 2. The City Council held a public hearing on the Agreement on September
4, 2018 at 6:00 P.M. at City Hall in the Helen Kawagoe Council Chambers, 701 East Carson Street,
Carson, California. A notice of the time, place and purpose of the aforesaid meetings were duly given.
Section 3. The proposed project was reviewed under the requirements of the
California Environmental Quality Act (CEQA). The proposed Development Agreement is categorically
exempt from the provisions of the California Environmental Quality Act (CEO.A) pursuant to Section
15303 regarding new construction or conversion of small structures.
Section 4. Evidence, both written and oral, was duly presented to and considered
by the City Council at the aforesaid meeting.
Section S. The City Council finds that:
a) The Development Agreement provides for a Site which is
located within an area suitable for the proposed use and is in conformance the General
Plan and the Commercial Automotive (CA) zoning district.
b) The Development Agreement provides for a public convenience
through significant monetary benefits which will contribute indirectly to programs and
services designed to provide for the health, safety and welfare of the public, thereby
exhibiting good land use practices.
C) The proposed Development Agreement will not be detrimental
to the public's health, safety and general welfare, nor will it adversely affect the orderly
development or property values for the subject property or areas surrounding it.
ORDINANCE NO. 18-1813
Page 1 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
d) The Development Agreement is in compliance with the
procedures established by City Council Resolution No. 90-050 as required by Government
Code, Section 65865(c).
e) The Development Agreement in Section 5 provides for an
annual review to ensure good faith compliance with the terms of the Agreement, as
required in Section 65865.1 of the Government Code.
f) The Development Agreement specifies the duration of the
agreement in Section 2.4, the Processing Fee in Section 2.5; the Development Fee in
Section 2.6 and the Community Benefits in Section 2.7.
g) The Development Agreement includes conditions, terms,
restrictions and requirements for development of the property in Section 3 and as
permitted in Section 65865.2 of the Government Code.
h) The Development Agreement contains provisions in Section 4
for removal of the billboard upon the termination the Agreement.
i) The Development Agreement provides for amendment or
cancellation in whole or in part, by mutual consent of the parties to the agreement or
their successors in interest as required in Section 65868 of the Government Code.
j) The Development Agreement is in the best public interest of the
City and its residents and that this Agreement will achieve a number of City objectives
including utilizing the Billboard Site for a revenue -generating use and removing City
Oriented billboard(s).
Section 6. The Agreement provides for recovery of the city's costs and complies
with the Statue with respect to all fees and costs provided under the Agreement.
Section 7. The Development Agreement is in compliance with the procedures
established by City Council Resolution No. 90-050 and the City Council finds that the Agreement:
a) Is consistent with the General Plan and any applicable specific plan;
b) is in conformity with public convenience and good land use practices;
C) Will not be detrimental to the health, safety and general welfare;
d) Will not adversely affect the orderly development of property or the
preservation of property values;
e) Is consistent with the provisions of Government Code Sections 65864 through
65869.5.
Section S. The Development Agreement is attached as Exhibit "A".
ORDINANCE NO. 18-1813
Page 2 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
J
Section 9. Agreement is on file in the office of the Community Development
Department and is hereby incorporated herein by reference.
Section 10. Based on the aforementioned findings, the City Council approves the
Agreement and authorizes its execution and all action necessary to comply with its terms.
Section 11. The Ordinance No. 18-1813 is approved for introduction and first
reading on September 4, 2018 and adoption at the second hearing on September 18, 2018.
Section 12. The City Clerk shall certify to the adoption of this Ordinance and shall
transmit copies of the same to the applicant. The City Clerk shall publish the adopted Ordinance
pursuant to California Government Code 36933 within fifteen days of its adoption.
Section 13. The Ordinance shall become effective thirty (30) days after the second
reading approval date, or if a referendum petition is filed (a) and fails to qualify for an election,
the date the City Clerk certifies the disqualification of the referendum petition, or (b) if an
election is held regarding the ordinance approving this Agreement, the date the election results
are declared approving the Ordinance.
PASSED, APPROVED and ADOPTED this 1$1h day of September, 2018.
APPROVED AS TO FORM:
CITY OF CARSON:
rffllu1*19
Donesia Gause-Aldana, MMC, City Clerk
ORDINANCE NO. 18-1813
Page 3 of 46
396330.6
Development Agreement —Ordinance No. 18-1813
STATE OF CALIFORNIA j
COUNTY OF LOS ANGELES
CITY OF CARSON j
I, Donesia Gause-Aldana, City Clerk of the City of Carson, California, hereby attest to and certify that the
' foregoing ordinance, being Ordinance 18-1813 passed first reading on the 41h day of September, 2018,
adopted by the Carson City Council at its meeting held on the 181h day of September, 2018, by the
following roll call vote:
AYES: COUNCIL MEMBERS: Robles, Hilton, Santarina, Davis—Holmes, Hicks
NOES: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
Donesia Gause-AI ana, MMC, City Clerk
ORDINANCE NO. 18-1813
Page 4 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
Recording Requested by and
When Recorded Return to:
CITY OF CARSON
701 East Carson Street
Carson, CA 90745
Attn: City Clerk
[Exempt From Recording Fee Per Gov. Code §61031
DEVELOPMENT AGREEMENT NO. 14-17
This Development Agreement (hereinafter "Agreement") is entered into this 4th day of
September, 2018, (hereinafter the "Effective Date") by and between the CITY OF CARSON, a
general law city & municipal corporation (hereinafter "City") and OUTFRONT MEDIA, LLC,
a Delaware limited liability company (hereinafter "Developer"). City and Developer may be
referred to, individually or collectively, as "Party" or "Parties."
RECITALS
A. California Government Code Sections 65864, et seq., ("Development
Agreement Law") authorizes cities to enter into binding development agreements with
persons having a legal or equitable interest in real property for the development of such
property, all for the purposes of strengthening the public planning process, encouraging
private participation and comprehensive planning and identifying the economic costs of
such development.
B. The California Outdoor Advertising Act (Bus. & Prof. Code §§ 5200 et
seq.), including Sections 5412, 5443, and 5443.5, empower cities and sign owners to
enter into billboard -related agreements on whatever terms are agreeable to such
parties.
C. Developer holds a leasehold interest in a portion of that certain real
property located at 22020 Recreation Road in the City of Carson, California, which is
owned by Car Pros Kia of Carson ("Property Owner") , Assessor Parcel Number 7328-
001-021, (the "Property").
D. Developer's leasehold interest is for that certain portion of the real
property owned by the Property Owner, located at 22020 Recreation Road as more
specifically described in Exhibit "A" and depicted at Exhibit "A-1," attached hereto and
incorporated herein (the "Site"), upon which Developer currently owns and operates an
existing static billboard (the "Existing Billboard").
E. Pursuant to the above-described settlement, Developer now wishes
to remove the Existing Billboard and replace it with an outdoor advertising sign as
depicted in Exhibit "A-2," attached hereto and incorporated herein, including, without
limitation, digital display facings (also referred to hereunder as "displays"), supporting
structures, service ladders, underground utilities, fixture connections, electrical supply
ORDINANCE NO. 18-1813 (Exhibit A)
Page 5 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
and connections, panels, signs, lights, electronics, copy and any additional equipment,
appurtenances, and accessories that are necessary to display outdoor advertising
content on the sign (collectively, the "New Digital Billboard").
F. This Agreement is entered into by the parties pursuant to the
relocation provisions of the California Outdoor Advertising Act, and pursuant to a
settlement agreement between Developer, City, and Recreation Road, LLC.
G. In exchange for the approvals sought to erect the New Digital
Billboard, Developer has offered to:
1. Pay to the City an initial development fee and an annual
development fee as set forth in Section 2.6 for the right to the installation, operation,
maintenance, servicing, improvement, illumination, repair, and reconstruction
(collectively, "operation") of the New Digital Billboard; and
2. Provide free of charge to City, on a space available basis,
advertising space for public service announcements for city -sponsored, noncommercial
civic events on the New Digital Billboard, subject to Developer's advertising standards
and procedures), and offer a 10% discount off of its applicable rate card fees for the
displays on the New Digital Billboard to any business that has its principal place of
business in Carson and is a member in good standing of the Carson Chamber of
Commerce, as set forth in Sections 2.7.1 and 2.7.2.
H. 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.
1. On August 14, 2018, the Planning Commission of the City of Carson,
at a duly noticed hearing to consider the approval of this Agreement, adopted
Resolution No. 18-108 recommending approval of this Agreement to the City Council
and found the Project, as defined below, categorically exempt from the provisions of the
California Environmental Quality Act ("CEQA") pursuant to Sections 15203 and 15303
regarding new construction or conversion of small structures.
J. On September 4, 2018, the City Council, at a duly noticed hearing to
consider the approval of this Agreement, considered the proposal, and heard testimony
relating to this Agreement.
K. The City Council has found that this Agreement is in the best public
interest of the City and its residents; that Development contemplated under this
Agreement is compatible with the uses authorized in and the regulations prescribed for
the zoned district in which the Site is located; that this Agreement is not detrimental to
the health, safety, environmental quality, and general welfare of the community; that this
Agreement will not adversely affect the orderly development of property or the
preservation of property values; that adopting this Agreement constitutes a present
exercise of the City's police power; and that this Agreement is consistent with the City's
ORDINANCE NO. 18-1813 (Exhibit A)
Page 6 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
General Plan. This Agreement and the proposed Project (as hereinafter defined) will
achieve a number of City objectives including the addition of an aesthetically pleasing
billboard in conformance with current billboard standards. At the end of the term of this
Agreement, Developer will remove the New Digital Billboard if an extension of this
Agreement is not negotiated with City.
L. On September 4, 2018, the City Council introduced for a first reading
of Ordinance No. 17-1813, thereby approving this Agreement.
M. On September 18, 2018, the City Council held the second reading of
Ordinance No. 18-1813.
N. City finds and determines that all actions required of City precedent to
approval of this Agreement by Ordinance No. 18-1813 of the City Council have been
duly and regularly takers.
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 "City" means the City of Carson, a California municipal corporation.
1.1.3 "City Council' means the City Council of the City.
1.1.4 "Commencement Date" the date that the New Digital Billboard
becomes operational, i.e., the date construction of the New Digital Billboard has
been completed, final inspection by the City has occurred, and the sign is
capable of displaying advertising copy electronically and is connected to a
permanent power source. City will provide to Developer a Notice of
Commencement Date.
1.1.5 "Developer" means OUTFRONT MEDIA, LLC, a Delaware limited
liability company
ORDINANCE NO. 18-1813 (Exhibit A)
Page 7 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
1.1.6 "Development" means the installation of the New Digital Billboard
on the Site and undergrounding of all utilities from Southern California Edison's
electrical source to the New Digital Billboard.
1.2 "Development Fee" shall have the meaning provided in Section 2.6.
1.2.1 "Development Approvals" means the approved Development,
based on the approval of the City Council by Ordinance No. 18-1813 on
September 4, 2018, as further described at Section 3.3 herein, and any and all
approvals, permits, agreements, and/or entitlements required by the California
Department of Transportation ("Caltrans") and any other governmental or other
required approvals, permits, agreements, and/or entitlements.
1.2.2 "Effective Date" means the date inserted into the preamble of this
Agreement, which is the effective date of the City Council ordinance approving
this Agreement, provided the Agreement is signed by the Developer.
1.2.3 "Flat Fee Commencement Date" means date 90 days after the
Commencement Date.
1.2.4 "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 New Digital Billboard Site, including, without
limitation, the permitted use of land, the density or intensity of use, subdivision
requirements, the maximum height and size of the New Digital Billboard, the
provisions for reservation or dedication of land for public purposes, and the
design, improvement and construction standards and specifications applicable to
the Development of the New Billboard 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 NPDES regulations and approvals from
the California Department of Transportation Outdoor Advertising Division, to the
extent applicable.
1.2.5 "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.
1.2.6 "Notice of Commencement Date" means a written notice from the
City that notifies Developer that the New Digital Billboard is operational. The
Notice of Commencement Date will include the Commencement Date and a
schedule of payment for the annual Development Fee.
1.2.7 "Project" means the installation, including installing any new and
moving all existing utilities underground, and operation of the Development, all in
accordance with the Development Approvals and this Agreement, including the
Scope of Development attached hereto as Exhibit "D", Schedule of Performance
ORDINANCE NO. 18-1813 (Exhibit A)
Page 8 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
attached hereto as Exhibit "C" and all conditions of approval and consistent with
the approval from the California Department of Transportation Outdoor
Advertising Division.
1.2.8 "Reimbursement Agreement" refers to the reimbursement
agreement between Developer and City executed on January 10, 2018.
1.2.9 "Site" refers to the property at 22020 Recreation Road, as more
specifically described in Exhibit "A," and depicted at Exhibit "A-1" attached hereto
and incorporated herein.
1.2.10 "Schedule of Performance" means the Schedule of Performance
attached hereto as Exhibit "C" and incorporated herein.
1.2.11 "Scope of Development" means the Scope of Development
attached hereto as Exhibit "D" and incorporated herein.
1.2.12 "Subsequent Development Approvals" means any approvals
requested by Developer after the Project is fully completed but during the term of
the Agreement and related to the New Digital Billboard.
1.2.13 "Subsequent Land Use
Regulations adopted after the Effective
development and use of the Site.
Regulations" means any Land Use
Date of this Agreement which govern
1.2.14 "Term" shall have the meaning provided in Section 2.4, unless
earlier terminated as provided in this Agreement.
1.3 Exhibits. The following documents are attached to, and by this reference
made a part of, this Agreement:
Exhibit "A" (Legal Description of Site)
Exhibit "A-1" (Depiction of Site)
Exhibit "A-2" (New Digital Billboard Conceptual Rendering)
Exhibit "B" (Letter of Authorization from Property Owner)
Exhibit "C" (Schedule of Performance)
Exhibit "D" (Scope of Development)
Exhibit "E" (Developer's Production Specification Sheet)
2. GENERAL PROVISIONS.
ORDINANCE NO. 18-1813 (Exhibit A)
Page 9 of 46
396330.8
Oevelopment Agreement - Ordinance No. 18-1813
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 such Site, shall
be subject to the terms and provisions of this Agreement.
2.2 Interest in Site. City and Developer acknowledge and agree that
Developer has a legal or equitable interest in the Site and thus is qualified to enter into
and be a party to this Agreement under the Development Agreement Law and the
Carson Municipal Code. Developer shall maintain its interest in the Site for the entire
Term of this Agreement, except to the extent Developer is permitted to assign its
interest in the Site and this Agreement. If Developer's interest in the Site is prematurely
terminated and Developer is not contesting such termination, then Developer shall have
no further obligations or rights under this Agreement and this Agreement shall
terminate, except as provided under Section 4.1. During such time period that
Developer is contesting the termination of its interest for the Site, this Agreement shall
remain in full force and effect.
2.3 No Assignment. Developer may only assign or otherwise transfer this
Agreement, or its interest in the Site, to any other person, firm, or entity, upon
presentation to the City of an assignment and assumption agreement in a form
reasonably acceptable to the City Attorney and receipt of the City's written approval of
such assignment or transfer by the City Manager; provided, however, that Developer
may, from time to time and one or more times, assign its interest in this Agreement, or
in the Site, to one or more persons or entities without City approval, but with written
notice to the City, as long as Developer either assigns this Agreement to a financial
institution that finances Developer's Development of the New Digital Billboard or as long
as Developer, or entities owned or controlled by it have and maintain at least a twenty-
five percent (25%) ownership interest in such entities who are the assignees or
transferees, or as long as the transfer is as a result of a sale of Developer and/or its
assets, including the rights granted under this Agreement, to a publicly -traded company
or an entity having a net worth that is substantially similar to, or greater than,
Developer's net worth prior to such assignment or at the time of execution of this
Agreement, which net worth is subject to verification by the City; and further provided
that any assignee executes an assumption agreement assuming all of Developer's
duties and obligations hereunder. Any security posted by Developer may be substituted
by the assignee or transferee. After a transfer or assignment as permitted by this
Section, the City shall look solely to such assignee or transferee for compliance with the
provisions of this Agreement which have been assigned or transferred.
2.4 Term of Agreement.
U2.4.1 Unless earlier terminated as provided in this Agreement, this
Agreement shall continue in full force and effect until the earlier of (i) 20 years
after the Commencement Date, as defined in Section 1.1.4, (ii) the expiration or
earlier termination of Developer's interest in the Site per Section 6.1, or (iii) the
permanent removal of the New Digital Billboard pursuant to the terms hereof. At
ORDINANCE NO. 18-1813 (Exhibit A)
Page 10 of 45
396330.8
Development Agreement —Ordinance No. 18-1813
the occurrence of the earliest of (i), (ii), or (iii), above, Developer shall completely
remove the New Digital Billboard to 4 inches below grade within the times and as
provided under Section 4.1. Notwithstanding the above, the expiration of the term
of this Agreement shall toll for any amounts of time during the term that the New
Digital Billboard is not operational due to a Force Majeure Event, as set forth in
Section 9.10.
2.4.2 Notwithstanding the foregoing, City and Developer agree to
negotiate in good faith for an extension of the Term of the Agreement, and may
extend the term of this Agreement pursuant to mutual agreement in writing upon
terms acceptable to both parties. Developer shall notify the City in writing of its
intent to negotiate an extension no later than 180 days prior to the expiration of
the Term. Within 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. Following
termination or the expiration of the term, and provided no extension of this
Agreement is agreed to, then the digital displays upon the New Digital Billboard
shall be removed, as set forth in Section 4.1.
2.5 Deposit.
2.5.1 Developer has deposited $25,000.00 with the City a non-refundable
deposit (the "Deposit") pursuant to the January 10, 2018 Reimbursement
Agreement. The City shall draw down on the Deposit for permit processing fees
for all required permits related to the New Digital Billboard, and to reimburse the
City for all reasonable attorney fees related to the drafting of this Agreement. The
Deposit will be replenished in accordance with the Reimbursement Agreement.
The Deposit does not include the cost of permits or any other fees that may be
required by non -City agencies, including but not limited to permit fees due to
Caltrans. City will return any unused portion of the Deposit in accordance with
the Reimbursement Agreement.
2.5.2 In the event that an amendment to the Agreement becomes
necessary or desirable during the Term of the Agreement, Developer will provide
a deposit of $10,000 to cover City's reasonable attorney fees and generally
applicable permit processing fees that may be required for the amendment. This
deposit will be replenished in full whenever the balance falls below $2,500.
Within 15 days of the effective date of the amendment, City will return to
Developer any unused portion of the deposit.
2.6 Development Fee. The potential impacts of the Development on the City
and surrounding community are difficult to identify and calculate. Developer and City
agree that an annual development fee paid by Developer to City would adequately
mitigate all such potential impacts. The parties therefore agree that Developer shall pay
a development fee to the City on an annual basis for the duration of the Term. The
parties therefore agree that Developer shall pay an annual Development Fee.
ORDINANCE NO. 18-1813 (Exhibit A)
Page 11 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
2.6.1 Calculation of annual Development Fee. The Development Fee will
be the greater of the Flat Fee or the Gross Receipts Fee, calculated as follows:
(a) Flat Fee: The Development Fee will be an annual
amount to City equal to $100,000 for the first through fifth years of
the Term of this Agreement, $110,000 for the sixth through tenth
years of the Term, and $115,000 through the balance of the Term
of this Agreement for the eleventh through fifteenth years of the
Term of this Agreement, The Development Fee, for ease of
reference purposes, shall equal the following amounts during the
Term:
Year 1
$100,000
Year 11
$115,000
Year 2
$100,000
Year 12
$115,000
Year 3
$100,000
Year 13
$115,000
Year 4
$100,000
Year 14
$115,000
Year 5
$100,000
Year 15
$115,000
Year 6
$110,000
Year 16
$115,000
Year 7
$110,000
Year 17
$115,000
Year S 1
$110,000
Year 18
$115,000
Year 9
$110,000
Year 19
$115,000
Year 10 1$110,000
Year 20
$115,000
(b) Gross Receipts Fee: Six percent (6%) of Developer's
annual gross advertising revenue in a given Term year (i.e., the
calendar years occurring after the Commencement Date or
between anniversaries of the Commencement Date during the
Term). Annual gross advertising revenue shall mean all moneys
that Developer receives relating to the New Digital Billboard, which
includes but is not limited to the sale of advertising space on the
New Digital Billboard, grants, and contributions of any kind
whatsoever, prior to any deductions whatsoever, including but not
limited to taxes, costs, and fees.
2.6.2 Payment Schedule:
(a) The Year 1 Flat Fee shall be due on the Flat Fee
Commencement Date.
(b) Thereafter, Developer shall pay the Flat Fee on the
anniversary of the Commencement Date.
ORDINANCE NO. 18-1813 (Exhibit A)
Page 12 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
(c) The Gross Receipts Fee, to the extent it is greater
than the Flat Fee for a given Term year and thus due, shall be paid
on the anniversary of the Flat Fee Commencement date occurring
in the following Term year. By the anniversary of the Flat Fee
Commencement Date, Developer will also provide an accounting
statement for the preceding year.
(d) By way of illustration, under the terms of Section
2.6.2(a) -(c), Developer shall pay $100,000 on the fifth anniversary
of the Commencement Date and, by the fifth anniversary of the Flat
Fee Commencement date, Developer shall pay any balance due on
the Gross Receipts Fee amount received by Developer between
the fourth and fifth anniversaries of the Commencement Date, if
applicable.
2.6.3 Late Payment.
(a) Penalty. The City may notify the Developer if the
Development Fee is not received within 10 days after the Due Date
("Late Notice") and there shall be no penalty if payment is made
within 10 days of the Late Notice. The date of the notice shall mean
the date that the notice is placed in the U.S. Mail, certified mail with
return receipt. Failure to sign the return receipt shall not affect the
date the notice is given.
(b) Late payment penalties shall be calculated as follows:
10% of the Flat Fee due that year shall be added to the
Development Fee for failure to make the full payment within 10
days of the Late Notice. By way of illustration, the Flat Fee for Year
10 is $110,000. A 10% penalty would result in a total amount due of
$121,000 ($110,000 + $11,000).
(c) Termination. Failure by Developer to pay the Development
Fee to the City within three months of the Flat Fee payment deadline in
any given 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 10 days after written notice to Developer of such
material breach, City may begin termination proceedings in accordance
with Section 6, Termination and Default.
2.6.4 City's Right to Audit Develo er. With prior written notice of not less
than 20 business days, the City has the right to audit Developer's sign gross
revenue related to this Agreement, at Developer's office, on normal workdays
between 9:00 a.m. and 4:00 p.m. once a year. If the statement of total gross
advertising revenue previously provided to City shall be found to be inaccurate
for prior years of the Term, then and in that event, there shall be an adjustment
and one party shall pay the other on demand such sums as may be necessary to
ORDINANCE NO. 18-1813 (Exhibit A)
Page 13 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
settle in the full accurate amount of said percentage rental that should have been
paid to City for the period or periods covered by such inaccurate statement or
statements. If the audit discloses an underpayment of greater than 5% with
respect to the amount of total gross advertising revenue reported by Developer
for the period or periods of said report, then the Developer shall, within 10
business days, pay to City the cost of the audit; otherwise, the cost of such audit
shall be paid by City, plus 10% interest on the amount underpaid, but the
application of the said interest is limited to 1 year before the time any
underpayment should have been paid to the City.
During City audits, the City shall be entitled to review proof of cash
receipts and proof of performance verifying all associated revenues are
documented and posted to the Developer's financial statements. The City
agrees that all information it reviews in exercising its right to audit Developer's
gross revenue from operation of the New Digital Billboard, including without
limitation the foregoing materials, is confidential and proprietary, and contains
trade secrets, and that the City will not disclose this information to third parties
unless required to by court order.
2.6.5 City Discretion. The Parties understand, and expressly agree,
that this Agreement does not waive or limit the City's exercise of its police
powers as defined by law (which police powers the Parties acknowledge and
agree cannot be contractually waived) to issue such permit(s) that are otherwise
necessary for the Development of the New Digital Billboard.
2.7 Community Benefits. Developer shall also provide the following
community benefits during the entire Term of this Agreement, for as long as the New
Digital Billboard is operated with digital display faces:
2.7.1 City's Display Time on New Digital Billboard. Developer shall
also provide advertising space free of charge to City on a space -available basis
for public service announcements of noncommercial city -sponsored civic events
("City Messages"). City will be responsible for appropriate artwork for the digital
displays pursuant to art specifications as specified by Developer from time to
time. The City shall notify Developer 45 days prior to the requested display date
and the display of City advertising copy is subject to the following conditions and
parameters: all advertising copy must be submitted to Developer at least 5
business days before the Developer -approved display date and will be subject to
Developer's standard advertising policies, which allow Developer, in its sole
discretion, to approve or disapprove copy and remove copy once posted or
displayed, provided such policies are consistent with the display of public service
messages as well as those restrictions described in Section 2.8. The Developer
shall make good faith efforts to display the City Messages on the date requested
by the City, though Developer ultimate retains the discretion to select a display
date. City Messages may only display third -party names or logos of City event
sponsors when those logos are part of the City Message; such logos may not be
ORDINANCE NO. 18-1813 (Exhibit A)
Page 14 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
prominently displayed. Advertising space for City Messages may not be sold or
exchanged for consideration of any kind to a non-govemmental third party.
The City shall indemnify, defend, and hold harmless Developer for, from, and
against, any claims, costs (including, but not limited to, court costs and
reasonable attorneys' fees), losses, actions or liabilities arising from or in
connection with any third party allegation that any portion of any City Message
provided by the City infringes or violates the rights, including, but not limited to,
copyright, trademark, trade secret or any similar right, of any third party. This
indemnity shall not include Developer's lost profits or consequential damages or
any similar right.
2.7.2 Discount Advertising. Developer shall offer a 10% discount off of
its applicable rate card fees for the display of advertising on the New Digital
Billboard to any business that has its principal place of business in the City of
Carson and is a member in good standing of the Carson Chamber of Commerce.
2.8 Prohibited Use. Developer shall not utilize any of the displays on the New
Digital Billboard to advertise smoking substances or paraphernalia, including but not
limited tobacco, marijuana, etc., "gentlemen's clubs," or other related sexually explicit or
overly sexually -suggestive messages, or as may be prohibited by any City ordinance
existing as of the Effective Date of this Agreement.
3. DEVELOPMENT AND IMPLEMENTATION OF THE PROJECT.
3.1 Rights to Develop Site. Subject to and during the Term of this
Agreement, Developer shall have the vested right to develop the Site and construct and
operate the Project in accordance with, and to the extent of, the Development
Approvals, the Land Use Regulations, and this Agreement.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise
provided under the terms of this Agreement, the rules, regulations and official policies
governing permitted uses of the Site, the density and intensity of use of the such Site,
the maximum size of proposed New Digital Billboard structure, and the design, and
improvement and construction standards and specifications applicable to Development
of the Site shall be as set forth in the Land Use Regulations, as such term is defined in
Section 1.2.4, which are in full force and effect as of the Effective Date of this
Agreement, subject to the terms of this Agreement. The New Digital Billboard structure
exceeds the maximum height permitted and requires a variance, which will be reviewed
in conjunction with the approval process for this Development Agreement.
3.3 Development Approvals. Developer shall, at its own expense and before
commencement of construction or development of any structures or other work of
improvement upon the 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
ORDINANCE NO. 18-1813 (Exhibit A)
Page 15 of 46
396330.8
Development Agreement — Ordinance Na. 18-1813
Development, including but not limited to, necessary building permits and all approvals
required under the California Environmental Quality Act ("CEQA") and by Caltrans. Not
by way of limiting the foregoing, in developing and constructing the Project, Developer
shall comply with all (1) applicable development standards in City's Municipal Code, (2)
applicable NPDES requirements pertaining to the Project, (3) all applicable building
codes, except as may be permitted through approved variances and modifications.
Developer shall pay all normal and customary fees and charges applicable to such
permits, and any fees and charges hereafter imposed by City in connection with the
Development which are standard and uniformly -applied to similar projects in the City.
3.4 Timing of Development; Scope of Development. Developer shall
commence the Project within the time set forth in the Schedule of Performance,
attached hereto as Exhibit "C." "Commencement" of the Project is defined herein as
commencement of construction or improvements under the building permit for the
Project within 180 days following Developer's receipt of Development Approvals. In the
event that Developer fails to meet the schedule for Commencement of the Project, and
after compliance with Section 5.4, either party hereto may terminate this Agreement by
delivering written notice to the other party, and, in the event of such termination, neither
party shall have any further obligation hereunder. However, if circumstances within the
scope of Section 9.10 delay the commencement or completion of the Project, it would
not constitute grounds for any termination rights found within this Development
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 Project. Developer shall also maintain the New Digital Billboard at all
times during the Term in accordance with the maintenance provisions set forth in
Paragraph 3 of the Scope of Development, attached as Exhibit "D" herein.
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 "D"), which sets forth a description of the
Project and the Schedule of Performance (Exhibit "C").
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 reasonable discretion in deciding whether to approve
or deny any such amendment request; provided, however, that in exercising the
foregoing discretion, the City shall not apply a standard different than that used in
evaluating requests of other developers. Accordingly, under no circumstance shall City
be obligated in any manner to approve any amendment to the Development Approvals.
The City Manager shall be authorized to approve any non -substantive amendment to
the Development Approvals without City Council approval. 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 -
ORDINANCE NO. 18-1813 (Exhibit A)
Page 16 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
substantive change, which the City Manager, in his or her sole discretion, may approve
in writing. Nothing herein shall cause Developer to be in default or require the parties to
modify this Agreement if Developer upgrades or replaces the digital display installed
pursuant to this Agreement during the term of this Agreement to incorporate newer
technology; provided Developer shall secure all applicable ministerial permits to do so
and such upgrade is consistent with the dimensions and standards for the displays, as
provided under this Agreement, Land Use Regulations, and Subsequent Land Use
Regulations.
3.6 Reservation of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any
other provision of this Agreement, the following Subsequent Land Use
Regulations shall apply to the Development:
(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 submitted by Developer.
(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 60 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 the
initial development of the New Digital Billboard. Notwithstanding the foregoing, if
such change materially changes Developer's costs or otherwise materially
impacts its performance hereunder, Developer may terminate this Agreement
upon 30 days prior written notice. Moreover, the City Agrees that Subsequent
Land Use Regulations enacted after a building permit issues for the initial
development of the New Digital Billboard shall not apply to the extent Developer
undertakes repair, reconstruction, or customary maintenance of the New Digital
Billboard.
(d) Regulations that are in conflict with the Development Approvals or
this Agreement, provided Developer has given written consent to the application
of such regulations to the Project.
(e) Applicable Federal, State, and multi jurisdictional laws and
regulations which City is required to enforce as against the Site or the
Development of the Site and that do not have an exception for (1) existing signs,
ORDINANCE NO. 18-1813 (Exhibit A)
Page 17 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
or (2) legal nonconforming uses, or (3) signs governed by an agreement entered
into pursuant to Sections 5412, 5443, and 5443.5 of the California Outdoor
Advertising Act which were in existence in the City before the approval of this
Agreement. Notwithstanding the foregoing, if such regulations materially change
Developer's costs or otherwise materially impact its performance hereunder,
Developer may terminate this Agreement upon 60 days prior written notice.
3.6.2 Future Discretion of City. This Agreement shall not prevent City
J 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, or Multi -Jurisdictional
Caw. 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, 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 60 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 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
New Digital Billboard 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 30 days prior written notice.
3.8 Public Improvements. Notwithstanding any provision to the contrary, the
City shall retain the right to condition any Subsequent Development Approvals (except
any approvals in connection with Developer's upgrading or replacement of the digital
panel(s)) 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; provided that none of the following shall
be applicable to the Project as set forth in this Agreement.
ORDINANCE NO. 18-2813 (Exhibit A)
Page 18 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
3.8.1 The payment or construction must be to alleviate an impact caused
by the Project, and share a substantial nexus to and be roughly proportional to
the aforesaid impact, or be of benefit to the Project as a result of such
Subsequent Development Approvals; and
3.8.2 The timing of the Exaction should be reasonably related to the
development of the Project as a result of such Subsequent Development
Approvals and said public improvements shall be phased to be commensurate
with the logical progression of the Project as a result of such subsequent
Development Approvals as well as the reasonable needs of the public as a result
thereof.
3.8.3 It being understood, however, that if the there is a material increase
in cost to Developer or such action by City otherwise materially impacts
developer's performance hereunder, Developer may terminate this Agreement
upon 30 days prior written notice.
3.8.4 Nothing in this Agreement shall be construed as a waiver by the
Developer of its constitutional rights under state or federal law.
3.9 Fees, Taxes, and Assessments. During the Term of this Agreement, the
City shall not, without the prior written consent of Developer, impose any additional
fees, taxes or assessments on all or any portion of the Project, except such fees, taxes
and assessments as are described in or required by this Development Agreement
and/or the Development Approvals. However, this Development Agreement shall not
prohibit the application of fees, taxes or assessments upon the Site only and not the
New Digital Billboard or Developer directly as follows:
3.9.1 Developer shall be obligated to pay those fees, taxes, or City
assessments and any increases in same which exist and are effective as the
Effective Date or are included in the Development Approvals;
3.9.2 Developer shall be obligated to pay any fees or taxes, and
increases thereof, imposed on a City-wide basis such as, but not limited to,
business license fees or taxes or utility taxes;
3.9.3 Developer shall be obligated to pay all fees applicable to a permit
application as charged by City at the time such application is filed by Developer;
and
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 to
fees, costs, or charges after the full execution hereof, or any additional fees, costs, or
ORDINANCE NO. 18-1813 (Exhibit A)
Page 19 of 45
396330.8
Development Agreement —Ordinance No. 18-1813
charges are charged, and such additional or increased fees, costs or charges materially
change Developer's costs or otherwise materially impact its performance hereunder,
Developer may terminate this Agreement upon 60 days prior written notice.
4. REMOVAL OF BILLBOARDS
4.1 Removal by Developer. Developer has the right to negotiate an
extension of the Term as an amendment to this Agreement. If the extension of the Term
is not granted by the City the digital displays on the New Digital Billboard digital display
facings will be removed and both displays may be converted back to static displays.
Furthermore, where this Agreement provides for the termination of this Agreement, to
the extent Developer has removed the Existing Billboard or developed the New Digital
Billboard, Developer shall have the right to restore the display facings to a static format
substantially consistent with the configuration of the Existing Billboard's display facings.
4.2 City's Right to Removal. Provided Developer is not in material
breach of the terms of this Agreement past any applicable written notice and cure period
(collectively, a "Breach"), City will not have the right to require removal of the New
Digital Billboard. Should such a breach occur, City may only require removal of the
Digital Displays on the Billboard after following the protocols and procedures set forth in
Sections 5.4 and 6 of this Agreement.
5. REVIEW FOR COMPLIANCE.
5.1 Annual Review. The City Council shall review this Agreement annually at
City's sole cost, on or before the anniversary of the Term, to ascertain the good faith
compliance by Developer with the terms of the Agreement ("Annual Review"). However,
no failure on the part of City to conduct or complete an Annual Review as provided
herein shall have any impact on the validity of this Agreement. Developer shall
cooperate with the City in the conduct of such Annual Review and provide the following
information and documentation to the City 30 days following the anniversary of the
Commencement Date: (1) proof that Developer is operating the New Digital Billboard
under a valid Caltrans permit and is in good standing therewith; (2) description of all
complaints from Caltrans or the City regarding the New Digital Billboard; (3) description
of all complaints from the public regarding the display unrelated to any content of the
message displayed; (4) any easement, lease or license changes that could in any way
materially impact the City or the obligations under this Agreement; (5) any utility
changes that could in any way materially impact the City or the obligations under this
Agreement; and (6) whether any City Messages per Section 2.7.1 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 ("Special Review") that
is consistent with the reporting requirements of the Annual Review. Developer shall
cooperate with the City in the conduct of such any Special Review, and shall promptly
provide information relevant to the Special Review at the request of the City.
ORDINANCE NO. 18-1813 (Exhibit A)
Page 20 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
5.3 City Right of Access. Subject to Property Owner's consent in writing, the City,
its officers, employees, agents and contractors, shall have the right, at their sole risk and expense,
to enter the Site at all reasonable times with as little interference as possible for the purpose of
conducting the Review under this Section 5, and for the inspection, construction, reconstruction,
relocation, maintenance, repair, or service of any public improvements or public facilities located
on the Site. To the extent that any of the foregoing activities cause operation of the New Digital
Billboard to cease, all fees due to the City under this Agreement shall be reduced proportionally.
To the extent any public improvements or facilities must be relocated, the City shall work with
Developer and the Property Owner to determine a new location that is mutually agreeable to the
City, Developer, and the Property Owner. Any damage or injury to the Site or to the
improvements constructed thereon resulting from such entry shall be promptly repaired at the
sole expense of the City. ThisrQv.Qrlis=nQt.intenclLtiltt�e_'iil!_the:_li_r,to
zddt,tny nuisances_angetts—cQndiiie�t_oh��ntliticnur�c�tohe__Cit4rdiuuft.
Notwithstanding anything to the contrary herein, in no event will City representatives climb up
the pole of the sign during any inspection.
5.4 Procedure. Each party shall have a reasonable opportunity to assert
matters that it believes have not been undertaken in accordance with the Agreement, to
explain the basis for such assertion, and to receive from the other party a justification of
its position on such matters. If, on the basis of the parties' review of any terms of the
Agreement, either party concludes that the other party has not complied in good faith
with the terms of the Agreement, then such party may issue a written "Notice of Non -
Compliance" specifying the grounds therefore and all facts demonstrating such non-
compliance. The party receiving a Notice of Non -Compliance shall have 30 days to cure
the non-compliance identified in the Notice of Non -Compliance, or if such non-
compliance is not reasonably capable of being cured or remedied within the 30 -day
period, to commence to cure the non-compliance and to diligently and in good faith
prosecute such cure 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 the Notice within 30 days after receipt. If the response to the
Notice of Non -Compliance has not been received in the offices of the party alleging the
non-compliance within the prescribed time period, the Notice of Non -Compliance shall
be conclusively presumed to be valid. If a Notice of Non -Compliance is contested, the
parties shall, for a period of not less than 15 days following receipt of the response,
seek to arrive at a mutually acceptable resolution of the matter(s) occasioning the
Notice. In the event that a cure or remedy is not timely effected or, if the Notice is
contested and the parties are not able to arrive at a mutually acceptable resolution of
the matter(s) by the end of the 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
ORDINANCE NO. 18-1813 (Exhibit A)
Page 21 of 46
396330.8
Development Agreement - Ordinance No. 18-1813
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 Site.
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 failure of Developer to
perform any material duty or material obligation of Developer hereunder or to
comply in good faith with the material 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
and including the Development Fee for the year the Agreement is terminated,
including the Processing Fee (collectively, the `Termination Fee"). Developer
shall pay the Termination Fee, within 60 days after the date of termination and
removal of the New Digital Billboard.
6.1.2 Termination of Agreement for Material Default of City. Developer, in
its discretion, may terminate this Agreement for any failure of City to perform any
material duty or material obligation of City hereunder or to comply in good faith
with the material terms of this Agreement; provided, however, Developer may
terminate this Agreement pursuant to this Section only after following the
procedure set forth in Section 5.4. In addition, Developer may terminate this
Agreement if, despite Developer's good faith efforts, it is unable to secure the
necessary permits and/or compliance with requirements under laws necessary to
effectuate the Project. In the event of a termination by Developer under this
Section 6.1.2, Developer acknowledges and agrees that City may retain all fees,
including the Processing Fee and the Development Fee, Developer paid up to
the date of termination, and Developer shall pay the prorated amount of the
Development Fee within 60 days after the date of termination and removal of the
New Digital Billboard that equates to the percentage of time elapsed in the year
of the Term at the time of termination.
6.1.3 Rights and Duties Following Termination. Upon the termination of
this Agreement, no party shall have any further right or obligation hereunder
except with respect to (i) any obligations to have been performed prior to said
termination, (ii) any default in the performance of the provisions of this
ORDINANCE NO. 18-1813 (Exhibit A)
Page 22 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
Agreement which has occurred prior to said termination, (iii) Developer's
obligation to remove the New Digital Billboard pursuant to Section 4.1 or (iv) any
continuing obligations of indemnification as set forth hereunder.
7. INSURANCE, INDEMNIFICATION, AND WAIVERS.
7.1 Insurance.
7. 1.1 Types of Insurance.
(a) Liability Insurance. Beginning on the Effective Date hereof
and until completion of the Term, Developer shall, at its sole cost and
expense, keep or cause to be kept in force for the mutual benefit of City,
as additional insured, and Developer commercial general liability
insurance covering Developer's possession and use of the Property and
providing protection of at least Two Million Dollars ($2,000,000) for bodily
injury or death to any one person, at least Four Million Dollars
($4,000,000) in the aggregate for any accidents or occurrences, and at
least One Million Dollars ($1,000,000) for property damage. Developer
shall also furnish or cause to be furnished to City evidence that any
contractors with whom Developer has contracted for the performance of
any work for which Developer is responsible maintains the same coverage
required of Developer. Liability certificate of insurance shall name the City
as additional insured and include the appropriate additional insured
endorsement form.
(b) Worker's Compensation. Developer shall furnish or cause to
be furnished to City evidence reasonably satisfactory to it that any
contractor with whom Developer has contracted for the performance of
any work for which Developer is responsible hereunder carries worker's
compensation insurance as required by law. At a minimum, Developer
shall provide for $1,000,000.00 Employer's Liability. A waiver of
subrogation rights endorsement form is required as well.
(c) Automobile Liability. Developer shall furnish or cause to be
furnished to City evidence reasonably satisfactory to it that any contractor
with whom Developer has contracted for the performance of any work for
which Developer is responsible hereunder carries automobile liability
insurance as follows: Minimum of $1,000,000 combined single limit per
accident for bodily injury and property damage covering "any auto".
Automobile certificate of insurance shall name the City as additional
insured and include the appropriate additional insured endorsement form.
(d) 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 -
ORDINANCE NO. 18-1813 (Exhibit A)
Page 23 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
assignable and shall contain language, to the extent reasonably
obtainable, to the effect that (i) the insurer waives the right of subrogation
against City and against City's agents and representatives except as
provided in this Section; (ii) the policies are primary and noncontributing
with any insurance that may be carried by City, but only with respect to the
liabilities assumed by Developer under this agreement; and (iii) the
policies cannot be canceled or materially changed except after thirty (30)
days' written notice by the insurer to City or City's designated
representative Developer shall furnish City with certificates evidencing the
insurance. City shall be named as an additional insured on all Developer's
liability (except Workers' Compensation) policies of insurance required to
be procured by the terms of this Agreement.
(e) City Waiver of Subrogation. To the extent this Agreement
creates a claim of liability against Developer, and to the extent the City is
insured against such claim or liability, the City will obtain, to the extent
reasonable, an endorsement waiving any right of subrogation that the
insurer may otherwise have against Developer; provided that if such a
waiver is not available from the City's insurance company at a reasonable
cost, the City will be relieved of its obligation to obtain a waiver of
subrogation unless Developer agrees to pay for the waiver.
7.1.2 Failure to Maintain Insurance and Proof of Compliance. Developer
shall deliver to City, in the manner required for notices, copies of certificates of all
insurance policies required of each policy within the following time limits:
(1) For insurance required above, within ten (10) business days
after the Effective Date or consistent with the requirements of Exhibit "C"
(Schedule of Performance), Item No. 8.
(2) The City can request to see updated copies of the current
certificates of all insurance policies required.
If Developer fails or refuses to procure or maintain insurance as required
hereby or fails or refuses to furnish City with required proof that the insurance
has been procured and is in force and paid for, after complying with the
requirements of Section 5.4, the City may view such failure or refusal as a default
hereunder.
7.2 Indemnification.
7.2.1 Indemnification and Hold Harmless.
(a) General. Developer shall indemnify the City, and their
respective officers, employees, and agents against, and will hold and save them
and each of them harmless from, any and all actions, suits, claims, damages to
persons or property, losses, costs, penalties, obligations, errors, omissions, or
ORDINANCE NO. 18-1813 (Exhibit A)
Page 24 of 46
396330.8
Development Agreement - Ordinance No. 18-1813
liabilities (herein "claims or liabilities") that may be asserted or claimed by any
person, firm, or entity arising out of or in connection with the work, operations, or
activities of Developer, its agents, employees, subcontractors, or invitees under
this Agreement and upon the Site. The City will promptly notify the permittee of
any such claim, action, or proceeding against the City and will cooperate fully in
the defense.
7.2.2 Non -liability of City Concerning Entitlements. The Parties
acknowledge that there may be challenges by third parties to the legality, validity,
and adequacy of the Development Approvals and/or this Agreement in the future;
and if successful, such challenges could delay or prevent the performance of this
Agreement and the development of the Project. The City shall have no liability
under this Agreement for the inability of Developer to develop the Project as the
result of a judicial determination based on any challenges by third parties that the
entitlements, the general plan, the zoning, the land use regulations, or any
portions thereof are invalid or inadequate or not in compliance with law.
7.2.3 Participation in Litigation: Indemnity. Developer agrees to
indemnify, protect, defend, and hold harmless the City and its officials, officers,
employees, agents, elected boards, commissions, departments, agencies, and
instrumentalities thereof, from any and all actions, suits, claims, demands, writs
of mandamus, liabilities, losses, damages, penalties, obligations, expenses, and
any other actions or proceedings (whether legal, equitable, declaratory,
administrative, or adjudicatory in nature), and alternative dispute resolution
procedures (including, but not limited to, arbitrations, mediations, and other such
procedures) asserted by third parties against the City that challenge, or seek to
void, set aside, or otherwise modify or annul, the action of, or any approval by,
the City for or concerning the Development Approvals (including, but not limited
to, reasonable attorneys' fees and costs) (herein the "Claims and Liabilities")
whether such Claims and Liabilities are arise out of under planning and zoning
laws, the Subdivision Map Act, Code of Civil Procedure section 1085 or 1094.5,
or any other federal, state, or local statute, law, ordinance, rule, regulation, or any
decision of a competent jurisdiction. The City will promptly notify Developer of
any such claim, action, or proceeding against the City and Developer will pay the
City's associated reasonable legal costs and will advance funds assessed by the
City to pay for defense of the matter by the City Attorney as provided for below.
The City will cooperate fully in the defense. Notwithstanding the foregoing, the
City may make all reasonable decisions with respect to its representation in any
legal proceeding, and retains the right to settle or abandon the matter without
Developer's consent, but should it do so, the City shall waive the indemnification
herein, except the City's decision to settle or abandon a matter following an
adverse judgment or failure to appeal shall not cause a waiver of the
indemnification rights herein. Notwithstanding the above, if the City decides to
accede to, or settle, a claim by a third -party litigant for attorney's fees following
an adverse judgment or failure to appear, the City shall only do so upon receiving
consent of Developer, which consent shall not be unreasonably withheld, and if
ORDINANCE NO. 18-1813 (Exhibit A)
Page 25 of 46
396330.8
Development Agreement — Ordinance No. 18-1893
such consent is not obtained, then the City shall waive the indemnification herein.
Promptly after the filing of any Claims or Demands in a court of law within the
applicable statutes of limitation, Developer shall, consistent with the terms of the
January 10, 2018 Reimbursement Agreement that Developer and the City
executed, provide a deposit in the amount of Fifty -Thousand Dollars ($50,000),
and shall make additional deposits as requested by the City to keep the deposit
at such level. If Outfront fails to provide or maintain the deposit, the City may
abandon the action and Outfront shall pay all costs resulting therefrom and the
City shall have no liability to Outfront.
If Developer fails to timely pay such funds, the City may abandon the
action without liability to Developer and may recover from Developer any
attorneys' fees and other costs for which the City may be liable as a result of
abandonment of the action. It is expressly agreed that the City shall have the
right to utilize the City Attorney's office or use other legal counsel of its choosing.
Developer's obligation to pay the defense costs of the City shall extend until final
judgment, including any appeals, unless this Agreement is otherwise terminated
by Developer as set forth in this Agreement.
7.2.4 Exception. The obligations of Developer under this Section shall
not apply to any claims, actions, or proceedings arising through the sole
negligence or willful misconduct of the City, its members, officers, or employees,.
7.2.5 Additional Coverage. Without limiting the generality of the
foregoing, Developer's indemnity obligation shall include any liability arising by
reason of:
(1) Any accident or other occurrence in or on the Site causing
injury to any person or property whatsoever and caused by Developer; and
(2) Any harm, delays, injuries or other damages incurred by any
party as a result of any subsurface conditions on the site caused solely by Developer,
including but not limited to, the presence of buried debris, hazardous materials,
hydrocarbons, or any form of soil contamination.
7.2.4 Loss and Damage. Except as set forth_ below„City
shall not be liable for any damage to property of Developer on the Site, nor for the loss
of or damage to any property of Developer by theft or otherwise. Except as set forth.
blow. City shall not be liable for any injury or damage to Developer, its employees, or
its property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness
or leaks from any part of the Site or from the pipes or plumbing, or from the street, or
from any environmental or soil contamination or hazard, or from any other latent or
patent defect in the soil, subsurface or physical condition of the Site, or by any other
~' cause of whatsoever nature. Tris rroovisions_of this Section 7. ,4_sh JJ not apply til to
the extent City or its agents, employees, subcontr ctors. invitees or._re_ r entatives
causes such iniuly or damages when accessing the it r ii to the extent covered in
rt,y permit tQ enter executed by the City. (iii) results from a condition created upon.such
ORDINANCE NO. 18-1813 (Exhibit A)
Page 26 of 46
396330.8
Development Agreement - Ordinance No. 18-1813
Zit@- the City; or (iv)to—tile extent the injury or damage is a r sul.#_oUh—e sole
nealigenCe or willful mi con t a# hQ City, or its agents. employees--ukontra t_
my _cr. rgpresentatives.
7.2.5 Period of Indemnification. The obligations for
indemnity under this Section 7.2 shall begin upon the Effective Date and shall survive
termination of this Agreement.
7.3 Waiver of Subrogation. Developer agrees that it shall not make any
claim against, or seek to recover from City or its elected officials, agents, servants, or
employees, for any loss or damage to Developer, its agents, employees,
subcontractors, or invitees, or any property of Developer, its agents, employees,
subcontractors, or invitees relating to this Project, except as specifically provided
hereunder (such as in Section 9.13), including but not limited to, a claim or liability
arising from the sole negligence or willful misconduct of the City, its elected officials,
officers, agents, or employees.
8. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit Developer,
in any manner, at Developer's sole discretion, from encumbering the Site or any portion
thereof or any improvement thereon by any mortgage, deed of trust, or other security
device securing financing with respect to the Site. City acknowledges that the lenders
providing such financing may require certain Agreement interpretations and
modifications and City agrees upon request, from time to time, to meet with Developer
or Property Owner and representatives of such lenders to negotiate in good faith any
such request for interpretation or modification. Subject to compliance with applicable
laws, City will not unreasonably withhold its consent to any such requested
interpretation or modification provided City determines such interpretation or
modification is consistent with the intent and purposes of this Agreement. Any
Mortgagee of the Site shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish, or impair the lien of any
mortgage on the Development or Site made in good faith and for value,
unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust
encumbering the Development or Developer's interest in the Site, or any
part thereof, which Mortgagee has submitted a request in writing to the
City in the manner specified herein for giving notices, shall be entitled to
receive written notification from City of any default by Developer in the
performance of Developer's obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee
requesting a copy of any notice of default given to Developer under the
terms of this Agreement, City shall make a good faith effort to provide a
ORDINANCE NO. 18-1813 (Exhibit A)
Page 27 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
copy of that notice to the Mortgagee within 10 days of sending the notice
of default to Developer. The Mortgagee shall have the right, but not the
obligation, to cure the default during the period that is the longer of (i) the
remaining cure period allowed such party under this Agreement, or (ii) 60
days.
(d) Any Mortgagee who comes into possession of the
Development or Site, or any part thereof, pursuant to foreclosure of the
mortgage or deed of trust, or deed in lieu of such foreclosure, shall take
the Development or Site or part thereof, subject to the terms of this
Agreement. Notwithstanding any other provision of this Agreement to the
contrary, no Mortgagee shall have an obligation or duty under this
Agreement to perform any of Developer's obligations or other affirmative
covenants of Developer hereunder, or to guarantee such performance;
except that (i) to the extent that any covenant to be performed by
Developer is a condition precedent to the performance of a covenant by
City, the performance thereof shall continue to be a condition precedent to
City's performance hereunder, and (ii) in the event any Mortgagee seeks
to develop or use any portion of the Development or Site acquired by such
Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure,
such Mortgagee shall strictly comply with all of the terms, conditions and
requirements of this Agreement and the Development Approvals
applicable to the Development or Site or such part thereof so acquired by
the Mortgagee.
9. MISCELLANEOUS PROVISIONS.
9.1 Recordation of Agreement. This Agreement shall be recorded with the
County Recorder by the City Clerk within 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 tern, provision,
covenant or condition of this Agreement shall be stricken and the remaining portion of
this Agreement shall remain valid and enforceable if that stricken term, provision,
covenant or condition is not material to the main purpose of this agreement, which is to
allow the Development to be permitted and operated and to provide the Development
ORDINANCE NO. 18-1813 (Exhibit A)
Page 28 of 46
396330.8
Development Agreement —Ordinance No. 18-1613
Fee to the City; otherwise, this Agreement shall terminate in its entirety, unless the
parties otherwise agree in writing, which agreement shall not be unreasonably withheld.
9.4 Interpretation and Governing Law. This Agreement and any dispute
arising hereunder shall be governed and interpreted in accordance with the laws of the
State of California. This Agreement shall be construed as a whole according to its fair
language and common meaning, to achieve the objectives and purposes of the parties
hereto. The rule of construction, to the effect that ambiguities are to be resolved against
the drafting party or in favor of the non -drafting party, shall not be employed in
interpreting this Agreement, all parties having been represented by counsel in the
negotiation and preparation hereof.
9.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this
Agreement.
9.6 Singular and Plural. As used herein, the singular of any word includes
the plural.
9.7 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
9.8 Waiver. Failure of a party to insist upon the strict performance of any of
the provisions of this Agreement by the other 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. Except with respect to Sections 5.3 and 8,
this Agreement is made and entered into for the sole protection and benefit for the
parties and their successors and assigns. No other person shall have any right of action
based upon any provision of this Agreement.
9.10 Force Majeure. Neither party shall be deemed to be in default where
failure or delay in performance of any of its obligations under this Agreement is caused
by earthquakes, other acts of God, fires, rains, winds, wars, terrorism, riots or similar
hostilities, strikes and other labor difficulties beyond the party's control (including the
party's employment force), government actions and regulations (other than those of the
City), court or other legal actions (including without limitation restraining orders,
injunctions, complaints, or writs of mandate challenging the Project or the Development
Approvals), or other causes beyond the party's reasonable control. If any such events
shall occur except as otherwise provided herein, 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
ORDINANCE NO. 18-1813 (Exhibit A)
Page 29 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
effective date of such termination. Notwithstanding the above, if the Project, New Digital
Billboard (including without limitation its construction or operation) or the Development
Approvals are subject to a legal action, Developer may, at its sole discretion,
immediately terminate this Agreement upon written notice to City.
9.11 Mutual Covenants. The covenants contained herein are mutual
covenants and also constitute conditions to the concurrent or subsequent performance
by the party benefited thereby of the covenants to be performed hereunder by such
benefited party.
9.12 Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the same effect
as if all of the parties had executed the same instrument.
9.13 Litigation. Any action at law or in equity arising under this Agreement or
brought by any party hereto for the purpose of enforcing, construing or determining the
validity of any provision of this Agreement shall be filed and tried in the Superior Court
of the County of Los Angeles, State of California, or such other appropriate court in said
county. Service of process on City shall be made in accordance with California law.
Service of process on Developer shall be made in any manner permitted by California
law and shall be effective whether served inside or outside California. In the event of
any action between City and Developer seeking enforcement of any of the terms and
conditions to this Agreement, the prevailing party in such action shall be awarded, in
addition to such relief to which such party is entitled under this Agreement, its
reasonable litigation costs and expenses, including without limitation its expert witness
fees and reasonable attorneys' fees.
9.14 Covenant Not To Sue. The parties to this Agreement, and each of them,
agree that this Agreement and each term hereof is legal, valid, binding, and
enforceable. The parties to this Agreement, and each of them, hereby covenant and
agree that each of them will not commence, maintain, or prosecute any claim, demand,
cause of action, suit, or other proceeding against any other party to this Agreement, in
law or in equity, which is based on an allegation, or assert in any such action, that this
Agreement or any term hereof is void, invalid, or unenforceable.
9.15 Project as a Private Undertaking. It is specifically understood and
agreed by and between the parties hereto that the Development of the Project is a
private Development, that neither party is acting as the agent of the other in any respect
hereunder, and that each party is an independent contracting entity with respect to the
terms, covenants and conditions contained in this Agreement. No partnership, joint
venture or other association of any kind is formed by this Agreement. The only
relationship between City and Developer is that of a government entity regulating the
Development of private property, on the one hand, and the holder of a legal or equitable
interest in such property on the other hand. City agrees that by its approval of, and
entering into, this Agreement, that it is not taking any action which would transform this
private Development into a "public work" project, and that nothing herein shall be
ORDINANCE NO. 18-1813 (Exhibit A)
Page 30 of 46
396330,8
Development Agreement —Ordinance No. 18-1813
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.
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 parry, (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:
1I1
ORDINANCE NO. 18-1813 (Exhibit A)
Page 31 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
To City: City of Carson
701 E. Carson Street
Carson, CA 90745
Attn: City Manager
With Copy to: Aleshire & Wynder, LLP
18881 Von Karman Ave., #1700
Irvine, CA 92612
Attn: Sunny K. Soltani, City Attorney
To Developer: Outfront Media LLC
Attention: Collin Smith
Vice President- National Real Estate Group
1731 Workman Street, Los Angeles, CA 90031
With copies to: Rich Sauer
EVP, General Counsel
Outfront Media
405 Lexington Avenue
New York, NY 10174
and
Miller Starr Regalia
Attention: Anthony Leones
1331 N. California Boulevard, Fifth Floor
Walnut Creek, CA 94596
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
monetary 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.
ORDINANCE NO. 18-1813 (Exhibit A)
Page 32 of 46
396330,8
Development Agreement —Ordinance No_ 18-1813
9.23 Warranty and Representation of Non -Collusion. No official, officer, or
employee of the City or the Agency has any financial interest, direct or indirect, in this
Agreement, nor shall any official, officer, or employee of the City or the Agency
participate in any decision relating to this Agreement which may affect his/her financial
interest or the financial interest of any corporation, partnership, or association in which
(s)he is directly or indirectly interested, or in violation of any interest of any corporation,
partnership, or association in which (s)he is directly or indirectly interested, or in
violation of any State or municipal statute or regulation. The determination of "financial
interest" shall be consistent with State law and shall not include interest found to be
"remote" or non interest" pursuant to California Government Code Sections 1091 and
1091.5. Developer warrants and represents that (s)he/it has not paid or given, and will
not pay or give, to any third party including, but not limited to, any Agency official,
officer, or employee, any money, consideration, or other thing of value as a result or
consequence of obtaining or being awarded this Agreement. Developer further
warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or
other conduct or collusion that would result in the payment of any money, consideration,
or other thing of value to any third party including, but not limited to, any City or Agency
official, officer, or employee, as a result or consequence of obtaining or being awarded
any agreement. Developer is aware of and understands that any such act(s),
omission(s) or other conduct resulting in the payment of money, consideration, or other
thing of value will render this Agreement void and of no force or effect. The City
warrants that this Agreement and a building permit are the only City land use
entitlements necessary to install and operate the Project.
Developer: Initials
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first set forth above.
City: CITY OF CARSON
By
Mayor Albert Robles
ATTEST:
By
Donesia L. Gause, MMC, City Clerk
APPROVED AS TO FORM:
Sunny K. Soltani, City Attorney
ORDINANCE NO. 18-1813 (Exhibit A)
Page 33 of 46
396330.8
Development Agreement—Ordinance No. 18-1813
Developer: OUTFRONT MEDIA, LLC
DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE
ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS,
ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS
APPLICABLE TO DEVELOPER'S BUSINESS ENTITY.
ORDINANCE NO. 18-1813 (Exhibit A)
Page 34 of 46
396330.8
Development Agreement — Ordinance No. 18.1813
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On , 2018 before me, _'personally appeared , proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized eapacity(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.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER
❑
INDIVIDUAL
❑
CORPORATE OFFICER
TITLE(S)
❑
PARTNER(S) ❑ LIMITED
❑ GENERAL
❑
ATTORNEY-IN-FACT
❑
TRUSTEE(S)
❑
GUARDIAN/CONSERVATOR
❑
OTHER
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
ORDINANCE NO. 18-1813 (Exhibit A)
Page 35 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
U On , 2018 before me, , personally appeared , proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/herhheir authorized capacity(ics), 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 Slate of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
ORDINANCE NO. 18-1813 (Exhibit A)
Page 36 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
❑
INDIVIDUAL
❑
CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
❑
PARTNER(S) ❑ LIMITED
❑ GENERAL
NUMBER OF PAGES
❑
ATTORNEY-IN-FACT
❑
TRUSTEE(S)
❑
GUARDIAN/CONSERVATOR
❑
OTHER
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
SIGNER(S) OTHER THAN NAMED ABOVE
ORDINANCE NO. 18-1813 (Exhibit A)
Page 36 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
EXHIBIT "A"
LEGAL DESCRIPTION OF THE SITE
Real property in the City of Carson, County of Los Angeles, State of California, described as
follows:
THOSE PORTIONS OF LOTS 50 AND 51 OF TRACT 4546, IN THE CITY OF CARSON, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA. AS PER MAP RECORDED IN BOOK 50, PAGES 21
AND 22, OF MAPS, M THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING
GENERALLY NORTHERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE MOST EASTERLY CORNER OF THE LAND DESCRIBED IN PARCEL 2 OF
DIRECTOR'S DEED D7426.1, RECORDED MAY 2, 1%7 IN BOOK D3631, PAGE 120, OF
OFFICIAL RECORDS;
THENCE ALONG THE GENERAL SOUTHERLY LINE OF SAID PARCEL 2 THE FOLLOWING
THREE COURSES:
(l) SOUTH 89' SO' 16" WEST, 109.98 FEET;
(2) NORTH 0° 09'44- WEST, 11.00 FEET;
(3) SOUTH 89° 50' 16" WEST, 9.69 FEET TO THE SOUTHERLY TERMINUS OF THAT
COURSE DESCRIBED AS NORTH 001 09'44" WEST, 33.24 FEET IN SAID PARCEL 2;
THENCE ALONG THE SOUTHERLY PROLONGATION OF LAST MENTIONED COURSE,
SOUTH 004 09' 44" EAST, 0.08 FEET TO THE EASTERLY CONTINUATION OF TI IAT CURVE
DESCRI3ED AS HAVING A RADIUS OF 1894 FEET AND A LENGTH OF 695.95 FEET IN THE
GENERAL NORTHERLY LINE OF THE LAND DESCRIBED IN DEED ESTATES PARCEL 7439,
RECORDED MARCH 22, 1960 IN BOOK D788, PAGE 546 OF SAID OFFICIAL RECORDS;
THENCE WESTERLY ALONG SAID EASTERLY CONTINUATION OF SAID CURVE, FROM A
TANGENT WHICH BEARS NORTH 88° 10' S3" WEST, THROUGH AN ANGLE OF It' 02' 20",
AN ARC DISTANCE• OF 364.98 FEET TO THE EASTERLY TERM IMUS OF SAID CURVE.
EXCEPT THAT PORTION OF SAID LAND DESCRIBED IN PARCEL 2 OF SAID DIRE-CTOWS
DEED.
ALSO EXCEPT THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER
NAME KNOWN THAT MAY BE WM IM OR UNDER THE PARCEL OF LAND HEREIN ABOVE
DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING
AND OPERATING THEREFROM AND REMOVING THE SAME FROM SAID LAND OR ANY
OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND
MINE FROM LANDS OTHER THAN THOSE HEREIN ABOVE DESCRIBED OIL OR GAS WELLS,
TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS OR THE SUBSURFACE OF THE LAND
HEREIN ABOVE DESCRIBED AND TO BOTTOM SUCH WHtPSTOCKED OR DIRECTIONALLY
DR LLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BL-YOND THE
EXTERIOR LIMITS THEREOF AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR,
DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT. HOWEVER, THE RIGHT
TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE. OF THE UPPER 100
FEET OF THE SUBSURFACE OF THE LAND HEREIN ABOVE DESCRIBED OR OTHERWISE IN
SUCH MANNER AS TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE
CONSTRUCTED ON SUCH LANDS, AS EXCEPTED BY WALTER A. ROLL, A WIDOWER, IN
DEED RECORDED DECEMBER 24, 1959 AS INSTRUMENT NO. 552, AS TO LOT 51 AND AS
EXCEPTED BY C.E. GRANT, IN DEED RECORDED JUNE 26, 1957 AS INSTRUMENT NO. 2226
AND BY DEED FROM GIACONO TRAIN, ET AL., RECORDED DECEMBER 8, 1959 AS
INSTRUMENT NO. 911, AS TO LOT 50.
f APN:7328-001-021
ORDINANCE NO. 18-1813 (Exhibit A)
Page 37 of 46
396330.8
Development Agreement —Ordinance No. 18-1813
lipm
5 ( 7
x
•al_F'� � � .�_•� ; it
_7M
I � +'111. � - .}. t=. •,�r;J. ��,'
�S�f' `�. � ,OM1 ._ 'aJ�'' _—•.t,-,•+'i'.�,'• ,:+"'. .. _ •��=�_—. .. ;,r�.r.
EXHIBIT "A-2"
NEW DIGITAL BILLBOARD CONCEPTUAL RENDERING
View from 1-405 Northbound
View from 1-405 Southbound
ORDINANCE NO. 18-1813 (Exhibit A)
Page 39 of 46
396330.8
Development Agreement — Ordinance No. 18-1813
EXHIBIT "B"
LETTER OF AUTHORIZATION FROM PROPERTY OWNER
May 22, 2018
Saied Naaseh
Planning Manager
City of Carson
Community Development Department
701 E. Carson Street
Carson, CA 90745
Re: Letter of Authorization to Relocate Slen with LED Upgrade
Dear Mr. Naaseh:
I have received a request from Outfront Media to send you written authorization in
connection with the relocation of a billboard on our property.
As you are aware, we have previously met with you regarding signage issues that
pertain to our real property. As a result, an agreement was reached and a new lease was
executed between Outfront Media and Recreation Road, LLC, the owner of the real
property Iocated at 22230 Recreation Road.
Pursuant to the foregoing, this confirms that Recreation Road authorizes Outfront
Media to relocate on our property its existing billboard which will be upgraded to be a
digital LED display.
Thank you for your courtesy and please call me if you have any questions.
Very truly yours,
IIO � CLIPS
Manager
ORDINANCE NO. 18-1813 (Exhibit A)
Page 40 of 46
386330.8
Development Agreement — Ordinance No. 18-1813
EXHIBIT "C"
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE
TIME FOR
REFERENCE
PERFORMANCE
I. City's City Council holds hearings
September 4, 2018 (0
Recitals
to approve Agreement and first and
Reading); September 18, 2018
second reading of Ordinance
(2"d Reading) provided
Developer has fully executed
the Agreement
2. Effective Date of this Agreement
On the effective date of
I.2.2
Ordinance
3. Developer prepares and submits to
Within 120 days of the
3.4
City working drawings
Council's second reading of the
specifications and engineering, City
Ordinance approving this
commences approval process
Agreement
4. City to approve all construction,
Within 30 days of City's receipt
3.4
engineering drawings and
of AppIicant's construction
specifications with a plan check
drawings and specifications
approval and issue all necessary
addressing all of City's
permits, including but not limited
comments; provided that no
to, a building permit
permits shall issue prior to the
Effective Date of the
Agreement
5. Developer to submit proof of
Prior to commencing any
7. l.2
insurance to City
inspections and work on the
Project
6. City provides Developer with
When billboard becomes
1.1.4
Notice of Commencement Date and
operational
Payment Schedule
7. Developer pays City Year 1
On Flat Fee Commencement
2.6.2
Development Fee
Date
8. Developer pays City second
Flat Fee payment deadlines:
2.6
through 20th installments of I
Beginning on second
ORDINANCE NO. 18-1813 (Exhibit A)
Page 41 of 46
396330.9
Development Agreement — Ordinance No. 18-1813
ITEM OF PERFORMANCE
TIME FOR
REFERENCE
PERFORMANCE
Development Fee
anniversary of Commencement
Date and ending on 20th
anniversary of Commencement
Date.
Gross Receipts Fee amount
payment deadlines, if
applicable: Beginning on
second anniversary of Flat Fee
Commencement Date and
ending on 20th anniversary of
Flat Fee Commencement Date.
9. Developer to commence the
Within 180 days of receipt of
3.4
development of the New Digital
all Development Approvals.
Billboard
10. Developer to complete the New
Within 180 days of the
3.4
Digital Billboard
commencement of the
construction of the billboard
footing, column and head of the
sign billboard
It is understood that this Schedule of Performance is subject to all of the terms and conditions of
the text of the Agreement. The summary of the items of performance in this Schedule of
Performance is not intended to supersede or modify the more complete description in the text; in
the event of any conflict or inconsistency between this Schedule of Performance and the text of
the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended only by
written agreement signed by both the Developer and the City. Notwithstanding any extension of
the Term in the manner described in, and subject to the provisions of, Section 3.5, the City
Manager shall have the authority to approve extensions of time set forth in this Schedule of
Performance without action of the City Council not to exceed a cumulative total of 180 days.
Deadlines in this Schedule of Performance shall toll during a Force Majeure event, as set forth in
Sections 3.4 and 9.10.
ORDINANCE NO. 18-1813 (Exhibit A)
Page 42 of 46
398330.8
Development Agreement — Ordinance No. 18-1813
EXHIBIT "D"
SCOPE OF DEVELOPMENT
Developer and City agree that the Development shall be undertaken in accordance with
the terms of the Agreement, which include the following:
1. The Project. Developer shall install the New Digital Billboard in accordance with
the terms of this Agreement. The New Digital Billboard consists of one "bulletin" size
freeway -oriented billboard with a total of two (2) displays (each display measuring 14' x
48') within the Site up to75 feet tali. The New Digital Billboard will be erected in the
location depicted at Exhibit "A" and "A-1" hereto, in cooperation with Property Owner
and as further provided in this Agreement at Section 3. As required by the City at the
time of the final Development, Developer shall install underground all utilities necessary
for the New Digital Billboard. The New Digital Billboard Site shall be maintained in
accordance with the conditions at Paragraph 3 of this Exhibit "D."
2. Building Fees. Developer shall pay all applicable City building fees, as described
at Section 3.9 of the Agreement, at the time that a building permit is issued for the
installation of the New Digital Billboard on the Site.
3. Maintenance and Access. Developer, for itself and its successors and assigns,
hereby covenants and agrees to be responsible for the following:
W Maintenance and repair of the New Digital Billboard within the Site,
including but not limited to, the displays installed thereon, and all related on-site
improvements, easements, rights-of-way and, if applicable, at its sole cost and expense,
including, without limitation, landscaping, poles, lighting, signs and walls, in good repair,
free of graffiti, rubbish, debris and other hazards to persons using the same, and in
accordance with all applicable laws, rules, ordinances and regulations of all federal,
State, and local bodies and agencies having jurisdiction over the Site unless those
federal, State, and local bodies have an exception for a legal nonconforming use. Such
maintenance and repair shall include, but not be limited to, the following: (i) sweeping
and trash removal related to the Development; (ii) the ongoing maintenance by the
Developer of the access road to the New Digital Billboard to minimize dust caused by
the Development; and (ii) the repair, replacement, and repainting of the New Digital
Billboard structure and displays as necessary to maintain such billboard in good
condition and repair.
(b) Maintenance of the New Digital Billboard within the Site in such a manner
as to avoid the reasonable determination of a duly authorized official of the City that a
public nuisance has been created by the absence of adequate maintenance of the
Development.
4. Other Rights of City. In the event of any violation or threatened violation of any of
the provisions of this Exhibit "D," 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
ORDINANCE NO. 18-1813
Page 43 of 46
shall have the right, after complying with Section 5.4 of the Agreement, (i) to enforce
the provisions hereof by undertaking any maintenance or repairs required by
Developer under Paragraph 3 of this Exhibit D (subject to written permission by
Property Owner to enter the Site) and charging Developer for any actual maintenance
costs incurred in performing same, and (ii) to withhold or revoke, after giving written
notice of the violation, any building permits, occupancy permits, certificates of
occupancy, business licenses and similar matters or approvals pertaining to the Site,
Project, 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 official, officer, employee, agent, or
representative of the City shall be personally liable to the Developer, its successors,
transferees, or assigns, for any monetary damages resulting from default or breach by
the City under this Agreement.
6. Conditions of Approval. The following additional conditions shall apply to the
installation of the New Digital Billboard, which shall conform to all applicable provisions
of the Carson Municipal Code (CMC) and the following conditions, in a manner subject
to the approval of the Planning Officer or designee:
(a) A building permit will be required, structural calculations shall be prepared
by a licensed civil engineer and approved by the City Building Official.
(b) The size of the active copy area of each sign display of the New Digital
Billboard shall not exceed a maximum area of 672 square feet with no more than 128
total feet of extensions or borders and shall not to exceed a maximum height of 75
feet, including all extensions, from the freeway grade level, and a maximum width of 46
feet and shall be spaced at intervals that are no less than 500 feet from any other
billboard on the same side of the freeway and measured parallel to the freeway as
depicted in the Depiction of the Site at Exhibit "A-1" approved by the City as part of the
Development Approvals.
(c) The New Digital Billboard pole shall match the specifications attached in
Exhibit "A-2" subject to the approval of the City's Development Services Manager or
designee.
(d) Plans and specifications for the proposed installation of the New Digital
Billboard, including plans for the undergrounding of all utilities, shall be submitted to
the City Planning and Building Departments for plan check and approval prior to the
issuance of building permits.
(e) Prior to the approval of the final inspection, all applicable conditions of
approval and all mandatory improvements shall be completed to the reasonable
satisfaction of the City.
ORDINANCE NO. 18-1813
Page 44 of 46
(f) Developer shall maintain the Site and use thereof in full compliance with
all applicable codes, standards, policies and regulations imposed by the City, County,
State or federal agencies with jurisdiction over the facilities, unless the Development is
exempted as a legal nonconforming use.
(g) Developer shall, at all time, comply with the approval for the New Digital
Billboard from the California Department of Transportation Outdoor Advertising
Division and shall maintain acceptable clearance between proposed billboards and
Southern California Edison distribution lines.
(h) The Developer shall pay any and all applicable fees due to any public
agency prior to the final issuance of the building permits.
(i) The activities proposed in this Agreement shall be conducted completely
upon Site and shall not use or encroach on any operable portion of any public right-of-
way unless permitted by the agency that holds the right pursuant to applicable law.
0) Developer shall be required to install all underground utilities in connection
with the New Digital Billboard as set forth in Paragraphs 1 and 3 of this Exhibit "D." To
this end, City shall cooperate with the Southern California Edison requirement upon
Developer to upgrade Developer's current electrical service to the New Digital
Billboard. Developer shall comply with all necessary NPDES requirements pertaining
to the proposed use, to the extent applicable.
(k) All graffiti shall be adequately and completely removed or painted over
within 48 hours of notice of such graffiti being affixed on the Development.
(1) 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, 0.3 foot-candles over ambient light
levels measured at a distance of 250 feet and ensuring additional flexibility in
maintaining such maximum light level standard given the lighting environment, the
obligation to have automatic diming capabilities, as well as providing the City's
Planning Officer or designee with a designated Developer employee's phone number
and/or email address for emergencies or complaints that will be monitored 24 hours a
day/7 days per week. Upon any complaint by the City's Planning Division or its
designee, Developer shall dim the display to meet these guidelines and further perform
a brightness measurement of the display using OAAA standards and provide City with
the results of same within 5 days of the City's complaint.
(m) Each message on the New Digital Billboard display shall be displayed for
at least eight (8) seconds.
ORDINANCE NO. 18-1813
Page 45 of 46
EXHIBIT "E"
DEVELOPER'S PRODUCTION SPECIFICATION SHEET
ngvmr
SROMMI 13
KPNOt yr N
It rOi 4
x
A ELEVATION V --SIGN AND SOUND WALL
ORDINANCE NO. 18-1813
Page 46 of 46