11 3.11 Extension of Term of Development Approvals. The term of any Development Approvals and Subsequent Development Approvals shall be automatically extended for the longer of the Term of this Agreement or the term otherwise applicable to the Development Approvals and Subsequent Development Approvals.
4. REMOVAL OF BILLBOARD DISPLAY FACES.
4.1 Removal by Developer. If an extension of the Term is not granted by the City according to the provisions of paragraph 2.4, above, the New Digital Billboard digital display faces will be removed and the displays may be converted back to printed displays. In the event that the digital displays are not converted back to printed displays according to the terms of this paragraph, Developer shall within sixty (60) days from expiration of the Term, at its sole cost and expense, be required to demolish and remove the New Digital Billboard digital display faces.
4.2 City’s Right to Removal. Provided Developer is not in material breach hereof past any applicable notice and cure period, City will not have the right to remove the New Digital Billboard digital display faces . Should Developer be in material breach of this Agreement past any applicable notice and cure period, and subject to due process, City may only require removal of the New Digital Billboard digital display faces. If City requires the New Digital Billboard digital display faces to be removed pursuant to the terms of this paragraph, Developer shall, at its sole cost and expense, remove the digital displays upon the New Digital Billboard and convert the displays to printed displays within ninety (90) days of City’s notice to Developer of such breach.
5. REVIEW FOR COMPLIANCE.
5.1 Annual Reviews. At least once every twelve (12) months, Developer shall demonstrate its good faith compliance with the terms hereof by providing written correspondence addressed to the City Manager demonstrating such good faith compliance. “Good faith compliance” shall mean that Developer has sufficiently followed the terms of this Agreement so as to carry out the intent of the parties in entering into it. After receiving and reviewing Developer’s written submission, if the City Manager finds that Developer is not acting in good faith compliance with this Agreement, the City Manager shall schedule a hearing before the Planning Commission in order to evaluate Developer’s good faith compliance with the terms of the Agreement. The City shall provide Developer with notice of such hearing and a copy of all staff reports and related exhibits as soon as available, but in no event later than five days prior to the hearing. The Planning Commission’s determination following such hearing shall be based on substantial evidence, and shall be subject to appeal to the City Council. If the Planning Commission or City Council, as applicable, finds that the Developer is not in good faith compliance with the terms of this Agreement, the provisions of Section 6 shall govern the parties rights.
5.2 City Right of Access. The City, its officers, employees, agents and contractors, shall, in the exercise of the City’s police power, have the right, at their sole risk and expense, to enter the Site consistent with any rights the City has obtained by virtue of recorded easement or other property interests or, if no such interests exist, upon execution of a license or other applicable written agreement in a form mutually acceptable to the owner of the Site and upon written notice to Developer. The access to the Site described in this paragraph shall be for the purpose of conducting the inspection, maintenance, repair, service, construction, or relocation of any public improvements or public facilities located on the Site, or to exercise its rights under section 4.2. If an emergency repair to a public improvement or public facility on the Site is required and the City does not possess and has not obtained the foregoing access rights, Developer
12 acknowledges that the City may exercise its police power to enter the Site and conduct such repair after providing Developer and the Site owner with reasonable advance notice, with the reasonableness of such notice to be determined from the circumstances necessitating the entry.
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. The City also may access the Site in order to implement any of its lawful police powers to address any nuisance, dangerous condition, or other condition prohibited under the City’s ordinances, so long as the City conducts the foregoing activities in a manner consistent with and protective of Developer’s and the Site owner’s due process rights. Except as explicitly provided for in this Agreement (including without limitation in this Section and Section 4.2 above), the City shall have no right whatsoever to enter the Site.
5.3 Procedure. Each party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with the Agreement, to explain the basis for such assertion, and to receive from the other party a justification of its position on such matters. If, on the basis of the parties’ review of any terms of the Agreement, either party concludes that the other party has not complied 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 forty-five (45) days to cure or remedy the non-compliance identified in the Notice of Non- Compliance, or if such cure or remedy is not reasonably capable of being cured or remedied within such forty-five (45) days period, to commence to cure or remedy the non-compliance and to diligently and in good faith prosecute such cure or remedy to completion. If the party receiving the Notice of Non-Compliance disputes that it is in non-compliance with the terms of this Agreement, that party shall respond in writing to the Notice of Non-Compliance within forty-five (45) days after receipt of the Notice of Non-Compliance. If a Notice of Non-Compliance is disputed, the parties shall, for a period of not less than fifteen (15) days following receipt of the response to the Notice of Non-Compliance, seek to arrive at a mutually acceptable resolution of the dispute. In the event that a cure or remedy is not timely effected or, if the Notice of Non- Compliance is disputed and the parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15) day period described above, 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” event as defined in, and subject to the provisions of, Section 9.10.
6. DEFAULT AND REMEDIES.
6.1 Termination of Agreement.
6.1.1Termination of Agreement for Material Default of Developer.
City, in its discretion, may terminate this Agreement upon written notice to Developer for any material failure of Developer to perform any material duty or obligation of Developer hereunder or to comply with the terms of this Agreement (hereinafter referred to as “default” or “breach”); provided, however, City may terminate this Agreement pursuant to this Section only after following the procedure set forth in Section 5.3. In the event of a termination by City under this Section
6.1.1, Developer acknowledges and agrees that, unless otherwise set forth below, City may retain all fees, including the Processing Fee and the Development Fee paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee within sixty (60) days after the date of termination and removal of the New Digital Billboard that equates to the percentage of time elapsed in the year of the Term at the time of termination. In the event that City terminates this Agreement under this Section 6.1.1 before the New Digital Billboard
13 digital display faces become Operational, City shall refund any portion of the Processing Fee that the City has not reasonably expended at the time of such termination after payment to City of the fees and costs described in Section 2.5.
6.1.2Termination of Agreement for Material Default of City.
Developer, in its discretion, may terminate this Agreement upon written notice to City for any material failure of City to perform any material duty or obligation of City hereunder or to comply in with the terms of this Agreement; provided, however, Developer may terminate this Agreement pursuant to this Section only after following the procedure set forth in Section 5.3. In addition, Developer may terminate this Agreement upon written notice to City, if despite Developer’s good faith efforts, it is unable to secure the Development Approvals and any other necessary approvals and/or compliance with requirements under laws necessary to effectuate the Project is not feasible. In the event of a termination by Developer under this Section 6.1.2, Developer acknowledges and agrees that, unless otherwise set forth below, City may retain all fees, including the Processing Fee and the Development Fee, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee within sixty (60) days after the date of termination and removal of the New Digital Billboard digital display faces that equates to the percentage of time elapsed in the year of the Term at the time of termination. In the event that Developer terminates this Agreement under this Section 6.1.2 before the New Digital Billboard digital display faces become Operational, City shall refund any portion of the Processing Fee that the City has not reasonably expended at the time of such termination after payment to City of the fees and costs described in Section 2.5.
6.1.3Rights 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 default in the performance of the provisions of this Agreement which has occurred prior to said termination, (ii) Developer’s obligation to remove the digital display faces on the New Digital billboard pursuant to Section 4.1 or (iii) any continuing obligations to indemnify other parties.
6.2 Remedies. In addition to the rights of termination set forth above, in the event of a default by either party, the non-defaulting party shall have the right to: (a) bring any proceeding in the nature of specific performance, injunctive relief, declaratory relief, or mandamus and/or; (b) bring any action at law or in equity to compensate the non-defaulting party for all the detriment proximately caused by the defaulting party’s default; provided, however, that Developer’s sole and exclusive remedy shall be specific performance and Developer shall not have the right to recover monetary damages (compensatory, consequential, or punitive) against the City other than attorneys’ fees to the extent provided in Section 9.13 below, and the City shall only have the right to recover actual, direct damages (and not consequential or punitive damages) against Developer, as well as attorneys’ fees to the extent provided in Section 9.13 below.
7. INSURANCE, INDEMNIFICATION AND WAIVERS.
7.1 7.1.1Types of Insurance.
(a) Liability Insurance. Beginning on the Effective Date hereof and until completion of the Term, Developer shall, at its sole cost and expense, keep or cause to be kept in force for the mutual benefit of City, as additional insured, and Developer comprehensive broad form general liability insurance covering Developer’s possession and use of the Site and
14 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 limits of coverage, as specified above. Developer shall provide to the City annual proof of insurance consistent with terms and conditions of this agreement. (b) Worker’s Compensation. Developer shall also furnish or cause to be furnished to City evidence that any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries worker’s compensation insurance as required by law.
(c) Insurance Policy Form, Sufficiency, Content and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies qualified to do business by California with an AM Best Rating of no less than “A”. All such policies shall be non-assignable and shall contain language, to the extent obtainable, to the effect that (i) the 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 (ii) the policies cannot be canceled or materially changed by Developer except after written notice by Developer to City or City’s designated representative and the City’s approval thereof.
Developer shall furnish City with certificates of insurance evidencing that Developer has complied with the requirements of this paragraph 7.1.1.
7.1.2Failure 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 seven (7) days after the Effective Date or consistent with the requirements of Exhibit “C” (Schedule of Performance), Item No. 8.
(2) The City can request current certificates of all insurance policies as required. The City reserves the right to obtain copies of relevant policy forms and endorsements of the required insurance policies.
Developer’s failure or refusal to procure or maintain insurance as required herein or failure or refusal to furnish City with proof that the required insurance has been procured and is in full force and effect may, after complying with the requirements of Section 5.3, be deemed a default under the terms of this Agreement.
7.2 Indemnification.
7.2.1General. Developer shall indemnify the City, and its respective officers, employees, and/or agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein “claims or liabilities”) that may be asserted or claimed by any person(s), firm, or entity arising out of or in connection with this Agreement and/or the work, operations, or activities of Developer, its agents, employees, subcontractors, and/or invitees, hereunder, upon the Site.
15 (a) Developer will defend any action or actions filed in connection with any of said claims or liabilities covered by the indemnification provisions herein and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith, which attorneys will be the attorneys hired by the insurance company where insurance coverage applies.
(b) Developer will promptly pay any judgment rendered against the City or its respective officers, agents, or employees that falls within the scope of Developer’s indemnity obligations, as defined above in paragraph 7.2.1.
7.2.2Exceptions. The foregoing indemnity shall not include claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents, or employees or contractors. The foregoing indemnity shall also not include claims or liabilities arising from City’s use of Developer’s advertising space pursuant to paragraph 2.9.1 above.
7.2.3Additional Coverage. Without limiting the generality of the foregoing, Developer’s indemnity obligation shall include any liability arising by reason of any accident or other occurrence caused by Developer in or on the Site causing injury to any person or property;
(a) Loss and Damage. Except as set forth below, City shall not be liable for any damage to property of Developer or others located on the Site, nor for the loss of or damage to any property of Developer or others by theft or otherwise. Except as set forth below, City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Site or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Site, or by any other cause of whatsoever nature. The provisions of this subparagraph (a) shall not apply (i) to the extent City or its agents, employees, subcontractors, invitees or representatives causes such injury or damage, or (ii) to the extent covered in any permit to enter the Site executed by the City.
(b) Period of Indemnification. The obligations for indemnity under this Section 7.2 shall begin upon the Effective Date and shall survive termination of Development Agreement.
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 modifications and City agrees upon request, from time to time, to meet with Developer, the owner of the Site, and representatives of such lenders to negotiate in good faith any such request for modification. Subject to compliance with applicable laws, City will not unreasonably withhold its consent to any such requested modification provided City determines such 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:
16 (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Project or the Site made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust
encumbering the Project or the Site, or any part thereof, which Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Developer in the performance of Developer’s obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee
requesting a copy of any notice of default given to Developer under the terms of this Agreement, City shall make a good faith effort to provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Developer. The Mortgagee shall have the right, but not the obligation, to cure the default during the period that is the longer of (i) the remaining cure period allowed such party under this Agreement, or (ii) sixty (60) days. (d) Any Mortgagee who comes into possession of the Project or the Site, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Project or the Site, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer’s obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance; except that (i) to the extent that any covenant to be performed by Developer is a condition precedent to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City’s performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Project or the Site acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such Mortgagee shall strictly comply with all of the terms, conditions and requirements of this Agreement and the Development Approvals applicable to the Project or the Site or such part thereof so acquired by the Mortgagee.
9. MISCELLANEOUS PROVISIONS.
9.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within ten (10) days of execution, as required by Government Code Section 65868.5. Amendments approved by the parties, and any cancellation, shall be similarly recorded.
9.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
9.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable if that stricken term, provision, covenant or condition is not material to the main
17 purpose of this agreement, which is to allow the Project to be permitted and operated and to provide the Development Fee to the City; otherwise, this Agreement shall terminate in its entirety, unless the parties otherwise agree in writing, which agreement shall not be unreasonably withheld.
9.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting party or in favor of the non- drafting party, shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and hereof.
9.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
9.6 Singular and Plural. As used herein, the singular of any word includes the plural.
9.7 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
9.8 Waiver. Failure of a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
9.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the parties and their owner, successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
9.10 Force Majeure. Notwithstanding the contrary herein, neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, rains, winds, wars, pandemics, epidemics, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond the party’s control (including the party’s employment force), government actions and regulations (other than those of the City), court actions (such as restraining orders or injunctions), or other causes beyond the party’s reasonable control. If any such events shall occur, the term of this Agreement and the time for performance shall be extended for the duration of each such event, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years and further provided that if such delay is longer than six (6) months, Developer may terminate this Agreement upon written notice to City and City shall return to Developer any portion of the Development fee paid for any period after the effective date of such termination.
9.11 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.
9.12 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same affected as if all of the parties had executed the same instrument.
18 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 or interpretation 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 are 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 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.
19 9.18 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both parties specifically approving the amendment and in accordance with the Government Code provisions for the amendment of Development Agreements. The parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non-material modifications may be approved by the City Manager upon approval by the City Attorney.
9.19 Corporate Authority. The person(s) executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bound.
9.20 Notices. All notices under this Agreement shall be effective when delivered by United States Postal Service mail, registered or certified, postage prepaid return receipt requested; and addressed to the respective parties as set forth below or as to such other address as the parties may from time to time designate in writing by providing notice to the other party:
To City: City of Montebello
1600 West Beverly Boulevard
Montebello, CA 90640
Attn: City Manager
To Developer: Clear Channel Outdoor, Inc.
19320 Harborgate Way
Torrance, CA 90501
Attn: Vice President, Real Estate & Public Affairs
With Copy To: Clear Channel Outdoor, LLC
2325 E. Camelback Road, Suite 250
Phoenix, AZ 85016
Attn: Operations Counsel
9.21 Nonliability of City Officials. No officer, official, member, employee, agent, and/or representatives of City shall be liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, and/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.
9.23 No Amendment of Lease. Nothing contained in this Agreement shall be deemed to amend or modify any of the terms or provisions of the Lease. Nothing contained in this Agreement shall constitute or be deemed to constitute a limit on any of Developer’s
20 obligations under the Lease, or any of Owner’s rights or remedies against Developer under the Lease.
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above.
City: CITY OF MONTEBELLO
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Developer:
Clear Channel Outdoor, LLC a Delaware limited
liability company
Bryan Parker, Executive Vice President
[end of signatures]
21 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Los Angeles )
On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Los Angeles )
On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
22 EXHIBIT “A”
LEGAL DESCRIPTION OF SITE
PARCEL MAP AS PER BK 14 P 21 OF PM
LOT 2
23 EXHIBIT “B”
Description of New Digital Billboard
CCO will be removing the existing Deck and External Lights CCO will be relocating the existing printed display faces in place as a double-faced 12’ x 25’ outdoor advertising sign with digital display faces
Existing West Face Existing East Face
Digital Panel Sample
24 EXHIBIT “C”
Billboard Structure and Faces To Be Removed
249 E Beverly Terrace, Montebello, CA 90640 (Panels #3936 & #3937) East Face
West Face
25 EXHIBIT “D”
SCOPE OF DEVELOPMENT INCLUDING SIGN PLANS
Developer and City agree that the Development shall be undertaken in accordance with the terms of the Agreement, which include the following:
1. Project. Developer shall relocate in place the existing printed sign faces and shall convert it to the New Digital Billboard with digital display faces in accordance with the terms of this Agreement. The existing structure will have two (2) new digital display faces (each display face measuring approximately 12’ x 25’) within the Site.
2. Building Fees. Developer shall pay all applicable City building fees, as described in this Agreement, at the time that a building permit is issued for the installation of the New Digital Billboard Faces 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:
(a) Maintenance and repair of the New Digital Billboard and Site (where authorized pursuant to the Site Lease) including but not limited to, the displays installed thereon, and all related on-Site improvements, easements, rights-of-way at its sole cost and expense. Developer’s maintenance and repair obligation shall include, without limitation, maintaining any poles, lighting, signs and walls in good repair and free of graffiti, rubbish, debris and other hazards to persons using the same. Developer shall maintain and repair the New Digital Billboard digital display faces in accordance with all applicable laws, rules, ordinances and regulations of all federal, State, and local bodies and agencies having jurisdiction over the Site [unless those federal, State, and local bodies have an exception for a legal nonconforming use].
Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal related to the Project; (ii) replacement of any fixtures, equipment or property damaged by the Project to the extent required by this Agreement or applicable law; (iii) the ongoing maintenance by the Developer of any access points to the New Digital Billboard to minimize dust caused by the Project; and (iv) the repair, replacement and repainting of the New Digital Billboard structure and display faces as necessary to maintain such billboard in good condition and repair.
(b) Maintenance of the Site (where authorized pursuant to the Site Lease) 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 New Digital Billboard digital display faces or structure such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within three hundred (300) feet of Site.
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 shall have the
26 right, after complying with Section 5.3 of this Agreement, (i) to enforce the provisions hereof by undertaking any maintenance or repairs required by Developer under Paragraph 3 above (subject to the execution of a permit to enter in form reasonably acceptable to Owner) and charging Developer for any actual maintenance costs incurred in performing same, and (ii) to withhold or revoke in the manner proscribed by law, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the New Digital Billboard digital display faces.
5. No City Liability. The granting of a right of enforcement to the City does not create a mandatory duty on the part of the City to enforce any provision of this Agreement.
The failure of the City to enforce this Agreement shall not give rise to a cause of action on the part of any person. No officer or employee of the City shall be personally liable to the Developer, its successors, transferees or assigns, for any default or breach by the City under this Agreement.
6. Conditions of Approval. The following additional conditions shall apply to the installation of the New Digital Billboard digital display faces and, where stated, on the Site, shall conform to all applicable provisions of the Montebello Municipal Code (MMC) and the following conditions, in a manner subject to the approval of the Planning Manager or designee:
(a) A building permit will be required and structural calculations shall be prepared by a licensed civil engineer and approved by the City Building Official. (b) The New Digital Billboard shall remain located in the portion of the Site as described in attached Exhibit A and as set forth herein and based on dimensions described in Section 1, above.
(c) The size of each digital display face of the New Digital Billboard shall not exceed a maximum area of 300 square feet with no extensions or borders. (d) Plans and specifications for the proposed installation of the New Digital Billboard digital display faces, including all utility plans, 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.
(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 by any duly and valid city, county or state ordinance with jurisdiction over the facilities, unless the Project is exempted as a legal nonconforming use. (g) The Developer shall pay any and all applicable fees due to any public agency pertaining to the New Digital Billboard digital display faces prior to the final issuance of the building permits.
(h) The activities proposed in this Agreement shall be conducted completely upon the Site and shall not use or encroach on any public right-of-way.
27 (i) All graffiti shall be adequately and completely removed or painted over within 48 hours of notice to Developer of such graffiti being affixed on the New Digital Billboard.
(j) Developer shall comply with the standards as adopted by the Outdoor Advertising Association of America, Inc. (OAAA), including but not limited to, the 0.3 foot- candles limitation over ambient light levels at 250 feet, and ensuring additional flexibility in reducing such maximum light level standard given the lighting environment, the obligation to have automatic diming capabilities, as well as providing the City’s Planning Manager or designee with a designated Developer employee’s phone number and/or email address for emergencies or complaints that will be monitored 24 hours a day/7 days per week. Upon any reasonable complaint by the City’s Planning Manager or designee, Developer shall perform a brightness measurement of the display using OAAA standards and provide City with the results of same within 15 days of the City’s complaint. Developer shall dim the display to the appropriate setting immediately upon the conclusion of any such measurement that concluding that the light standards were exceeded.
(k) In the event ten percent (10%) or more of the digital sign face is not operating correctly or in the event of a malfunction, Developer shall immediately turn the entire display off, or show a one hundred percent (100%) black image on the display until corrected. (l) The interval between the change in digital content shall be a minimum of eight (8) seconds and the images shall change instantaneously, without special transitional effects.
RECORDING REQUESTED BY AND
AFTER RECORDING MAIL TO:
CITY OF MONTEBELLO
1600 West Beverly Boulevard
Montebello, CA 90640
Attn: City Clerk
Space above this line reserved for recorder’s use
[Exempt From Recording Fee Per Gov. Code §6103]
DEVELOPMENT AGREEMENT NO. 04-22 (AGREEMENT NO. 4034)
This Development Agreement (hereinafter “Agreement”) is entered into by and between the CITY OF MONTEBELLO (hereinafter “City”) and CLEAR CHANNEL OUTDOOR, INC., a Delaware corporation (hereinafter “Developer”).
RECITALS
A. California Government Code Sections 65864, et seq., (“Development Agreement Law”) authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purposes of strengthening the public planning process, encouraging private participation and comprehensive planning, and identifying the economic costs of such development.
B. Developer has a leasehold interest in that certain portion of real property located at 1915 W Whittier Blvd. in the City of Montebello, CA 90640, Assessor Parcel Number 6337-007-033, as more specifically described in Exhibit “A” (the “Site”) upon which Developer currently owns and operates an existing lawfully permitted double-faced 12’ x 25’ outdoor advertising sign with printed display faces and seeks to relocate such sign in place as a double- faced 12’ x 25’ outdoor advertising sign with one east facing digital display face and one west facing printed display face, as more fully described in Exhibit “B” hereto (“New Digital Billboard”), in consideration for the additional removal of the single-faced 12’ x 25’ outdoor advertising sign located on the real property described on Exhibit “C” hereto (the “Removed Sign” and together with the New Digital Billboard, the “Project”).
C. Notwithstanding anything to the contrary in Section 17.62.105 of the City’s Zoning Ordinance, the City has determined that the Project contemplated herein complies with Section 17.62.105.C of the Zoning Ordinance, as amended by the Ordinance approving this Agreement (the “Code”), and will provide public benefits among other things, resulting in a net reduction in outdoor advertising signage in the City.
D. City and Developer agree and acknowledge that the outdoor advertising sign relocation contemplated herein complies with, and serves the purposes enumerated in,
2 California Business & Professions Code Sections 5200 et seq. (the “California Outdoor Advertising Act”), including, but not limited to, Sections 5412 and 5443.5.
E. In exchange for the approvals sought to convert the existing double-faced billboard with printed display faces to the New Digital Billboard, as described above, Developer has offered to:
1. Pay to the City an annual Development Fee, as defined and provided in Section 2.6 below, for the cost to the City to ameliorate the impact of the installation of the digital sign panels on the New Digital Billboard; and
2. Provide advertising space free of charge to City on a space available basis as further described below.
3. Pay to the City a signing bonus of Twenty Thousand Dollars ($20,000) per digital display face under this agreement to be used to refurbish the City’s existing on-premise sign located at 1600 W Beverly Blvd., Montebello CA 90640, (the “Signing Bonus”).
F. Developer and City agree that a development agreement should be approved and adopted to memorialize the expectations of City and Developer as more particularly described herein.
G. On October 26, 2022, the City Council of the City, pursuant to Government Code sections 65867 and 65867.5 and other applicable law, held a duly noticed public hearing to consider the approval of this Agreement and, after hearing public testimony thereon, considered the proposal and introduced Ordinance No. 2456.
H. The City Council has found that: this Agreement is in the best public interest of the City and its residents; adopting this Agreement constitutes a present exercise of the City’s police power; the terms of the Agreement will not be detrimental to the public’s health, safety, or general welfare; and this Agreement is consistent with the City’s General Plan and Municipal Code. This Agreement and the proposed Project (as hereinafter defined) will achieve a number of City objectives including the reduction of visual clutter, elimination of non-conforming signage, and facilitation of the orderly development, relocation and distribution of existing displays to more appropriate locations within the City, while allowing for the incorporation of modern technology into relocated displays and an overall reduction in the number of outdoor advertising signs in the City as part of the City’s planned development.
I. On November 16 2022, the City Council held the second reading of Ordinance No. 2456, thereby approving this Agreement.
J. City finds and determines that all actions required of City precedent to approval of this Agreement by Ordinance No. 2456 of the City Council have been duly and regularly taken.
K. In exchange for the benefits to the City described in the Agreement, together with other public benefits that will result from the development of the Project (as defined below), Developer will receive by this Agreement assurance that it may proceed with the Project in accordance with Land Use Regulations (as defined below), and therefore desires to enter into this Agreement.
3 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 and elsewhere in this Agreement, the defined terms include the following:
1.1.1 “ Site Lease” means the lease agreement by and between Developer and Bluff Road East LLC, a Limited Liability Company, the owner of the Site.
1.1.2 “Agreement” means this Development Agreement and all attachments and Exhibits hereto.
1.1.3 “City” means the City of Montebello, a California municipal corporation.
1.1.4 “City Council” means the City Council of the City.
1.1.5 “Developer” means Clear Channel Outdoor, LLC, a Delaware limited liability company and its successors and assigns, duly existing and operating, and doing business at 19320 Harborgate Way, Torrance, CA 90501.
1.1.6 “Development Approvals” means any and all permits and approvals which may be required by City, affected utility agencies, or any other governmental agency for the construction and/or operation of the Project by Developer pursuant to the Scope of Development, including but not limited to, necessary building permits and all approvals required under the California Environmental Quality Act (“CEQA”) and from the California Department of Transportation (“Caltrans”), if any.
1.1.7 “Effective Date” is when the Agreement is signed by both the Developer and City and when the Agreement is approved by Ordinance No. ____, but shall be no sooner than 30 days following approval of this Agreement by Ordinance No. _____, and after expiration of all applicable appeals periods.
1.1.8 “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 Site, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, 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 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.
4 1.1.9 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device, including each of their respective successors and assigns.
1.1.10 “New Digital Billboard” means the new double-faced digital sign, as described in Exhibit “B” hereto located on the Site, and a relocation in place of the existing lawfully permitted double faced outdoor advertising structure 12’ x 25’ foot printed display faces on the Site.
1.1.11 “Operational” means the New Digital Billboard is capable, legally and functionally, of displaying advertising on the digital displays with a permanent source of power.
1.1.12 “Project” means the complete removal of the Removed Sign and the removal of the existing printed display face and the installation of one east facing digital display face on the New Digital Billboard ”.
1.1.13 “Removed Sign” means the sign to be completely removed as more fully described on Exhibit “C” hereto.
1.1.14 “Scope of Development” means the Scope of Development attached hereto as Exhibit “D” and incorporated herein.
1.1.15 “Signing Bonus” means the upfront payment to be used by the City to refurbish its existing on-premise sign as provided in Recital E.3 above.
1.1.16 “Subsequent Land Use Regulations” means any Land Use Regulations effective after the Effective Date of this Agreement which governs development and use of the Project and/or the Site.
1.1.17 “Subsequent Development Approvals” means any and all permits and approvals which may be required by City, affected utility, or any other governmental agency for repair, maintenance, construction, reconstruction, enhancement, development, operation, or other work to be performed by Developer, including but not limited to, necessary building permits and all approvals required under the California Environmental Quality Act (“CEQA”), that occurs after the Project has been constructed and become operational. Consistent with the Outdoor Advertising Act (Bus. & Profs. Code, § 5200 et seq.), the performance of customary maintenance does not require local approvals.
1.1.18 “Term” shall have the meaning provided in Section 2.4, unless earlier terminated as provided in this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of this Agreement: Exhibit “A” (Legal Description of Site), Exhibit “B” (Description of New Billboard), Exhibit “C” (Removed Billboards), and Exhibit “D” (Scope of Development)
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Developer with respect to the Site, the Project, or the New Digital Billboard, including actions by the City on applications for Subsequent Development Approvals affecting the
5 Site, shall be subject to the terms and provisions of this Agreement; provided, however, that nothing in this Agreement shall be deemed or construed (i) to modify or amend the Site Lease, or any of Developer’s obligations thereunder; (ii) bind or restrict the owner of the Site with respect to its ownership or operation of the Site; or (iii) to impose any obligation whatsoever on the owner of the Site, including without limitation any obligation with respect to the Project, except as expressly set forth in this Agreement.
2.2 Interest in the 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 California Government Code 65864 et. seq. If Developer’s leasehold interest is prematurely terminated by the owner of the Site, then Developer shall have no further obligations under Section 3.2 4 or Exhibit “D” of this Agreement relative to the construction or maintenance of the sign thereon, including but not limited to any payments under Section 2.6 or elsewhere hereunder. Additionally, if Developer’s leasehold interest is prematurely terminated by owner of the Site, then this Agreement shall be terminated and Developer shall have no further obligations under this Agreement, except as provided under Section 4.1 with respect to Developer’s responsibility to remove the digital display face on the New Digital Billboard as provided therein.
2.3 No Assignment. Except as set forth herein, neither party may sublet, assign or otherwise transfer this Agreement, or any interest herein, either voluntarily or by operation of law, without the other party’s prior written consent, which the other party shall not unreasonably withhold, condition, or delay. Notwithstanding the above, the consent of City shall not be required: (a) for Developer to assign its rights and duties under this Agreement to any type of legal entity, including but not limited to a limited liability company, corporation, or limited partnership, controlling, controlled by or under common control with Developer or to any entity that acquires a majority of Developer’s assets in the Southern California market; or (b) in the event any such entity to which this Agreement has been so assigned thereafter merges with another company, reorganizes its stock, or undergoes a similar corporate restructuring, changes ownership or sells any of its assets or stock. Any security posted by Developer may be substituted by the assignee or transferee. After a transfer or assignment as permitted by this Section, the City shall look solely to such assignee or transferee for compliance with the provisions of this Agreement which have been assigned or transferred.
2.4 Term of Agreement. Unless earlier terminated as provided in this Agreement, this Agreement shall continue in full force and effect until the earlier of: (a) twenty (20) years after the date the digital display face on the New Digital Billboard become Operational; or (b) the earlier termination of this Agreement and Site Lease and the permanent removal of the digital display face on the New Digital Billboard constructed pursuant to the terms hereof. If one digital face is removed permanently and replaced with a printed face, then this Agreement will remain in full force and effect as to the second digital face and the annual Development Fee under Section 2.6 shall be reduced to one-half of such payments accordingly. This Agreement may be extended at Developer’s option at the end of the initial term by delivery of written notice from Developer to the City not less than ninety (90) days prior to expiration of the initial term of this Agreement Within thirty (30) days after the expiration or termination of this Agreement, the parties shall execute a written cancellation of this Agreement which shall be recorded with the County Recorder pursuant to Section 9.1 below. The term of this Agreement supersedes any amortization period that may apply under the Montebello Municipal Code as to any non-conformity as applied to the Site.
6 2.5 Processing Fee. Upon submission of its application for the Project approvals, Developer will pay to City a processing (“Processing Fee”) in the amount of Ten Thousand Dollars ($10,000). This fee is in addition to the payment of customary building plan check or building permit fees. The City shall retain and use the Processing Fee, or any part thereof, for payment of any and all standard fees applicable for the necessary City review, evaluation, and analysis pertaining to the New Digital Billboard, including, but not limited to, legal fees and feasibility analysis incurred by the City in negotiation and preparation of this Agreement.
2.6 Development Fee. The potential impacts of the Project 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 ameliorate all such potential impacts. The parties therefore agree that Developer shall pay an annual development fee in the amount of Ten Thousand Dollars ($10,000.00) per digital display face to City, (“Development Fee”),payable in monthly installments, with the first installment due within thirty (30) days after the display face on the New Digital Billboard become Operational (the “Commencement Date”), and within thirty (30) days of the year anniversary of such Commencement Date throughout the Term of this Agreement, as follows:
2.7 Notification of Operational Date. Developer shall notify the City in writing when the digital display face on the New Digital Billboard becomes Operational for the purpose of determining the Commencement Date. The City’s issuance of a building permit shall not be unreasonably withheld, provided the issuance of a building permit is done in compliance with the terms of this Agreement and said permit is issued in full compliance with applicable building codes and standards.
2.8 Community Benefits. Developer shall also provide the following community benefits during the entire Term of this Agreement:
2.8.1City’s Use of Digital Sign. Developer shall also provide, free of charge to City on a space available basis, advertising space on the digital display face on the New Digital Billboard for purposes of posting public service announcements and City-related advertising or announcements (“City Messages”). The City shall submit all proposed copy of City Messages to Developer not less than five (5) business days prior to the date the copy is proposed to be displayed, and, with the exception of Public Service Messages described in Section 2.8.3, the City shall notify Developer in writing not less than 30 calendar days prior to a requested display date. All proposed copy shall be subject to Developer’s standard advertising copy rejection and removal policies, which allow Developer to approve or disapprove copy and remove copy once posted or displayed. City represents and warrants that all copy, content and materials supplied by City to Developer for display under this Agreement: (i) are owned or duly licensed by City and do not infringe or misappropriate the rights of any other person or entity; (ii) comply with all applicable federal, state, and local laws, rules and regulations and any industry codes or rules by which City and/or Developer may be bound and do not contain any obscene, libelous, slanderous or otherwise defamatory materials or refer in an offensive manner to the gender, race or ethnicity of any individual or group; (iii) are accurate and that all claims contained therein have been substantiated; and (iv) do not infringe upon any copyright, trademark or other intellectual property or privacy right of any third party. Any content provided by City shall be owned and belong exclusively to the City, and Developer shall not reproduce, sell, or give away any such content without the advance written consent of the City. It is expressly understood and agreed that, absent approval from Developer, City Messages shall not include any names, logos or marks associated with any third-party non-governmental person or entity, or any products or services associated with any third-party non-governmental person or entity.
7 2.8.2Indemnification for City Messages. The City shall, and hereby does agree to, 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 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, of any third party.
2.8.3Public Service Messages. During the entire Term of this Agreement and any extension, Developer shall make advertising space on the digital display face on the New Digital Billboard Face available to the appropriate agencies for the purposes of displaying “Amber Alert” or other emergency messages, at no cost, and in accordance with local and regional emergency protocols.
2.9 Prohibited Use. Developer shall not utilize the digital display face on the New Digital Billboard to advertise tobacco, marijuana, hashish, “gentlemen’s clubs,” adult entertainment businesses, “obscene matter,” as that term is defined in California Penal Code section 311, or any matter that is prohibited by any City ordinance existing as of the Effective Date of this Agreement or as may be amended or implemented from time-to-time after the Effective Date and equally applicable to all billboard displays. In addition, the Developer shall at all times comply with Article 7 § 5402 of the Outdoor Advertising Act from the Business and Professions Code. Developer shall immediately remove any prohibited content upon notice from the City. If there is a dispute between Developer and City as to whether any such content is prohibited, Developer shall remove the disputed content until the dispute is resolved.
2.10 Signing Bonus. Developer shall pay to City the Signing Bonus on the Commencement Date.
3. DEVELOPMENT AND IMPLEMENTATION OF THE PROJECT.
3.1 Vested Right to Develop The Site. Developer shall have the right to develop the Project on the Site in accordance with, and to the extent of, the Development Approvals, the Subsequent Development Approvals, and this Agreement pursuant to the Land Use Regulations including, without limitation, Developer’s vested right to develop the Project on the Site; provided that nothing in this Agreement shall be deemed to modify or amend the Site Lease. In the event of any conflict or inconsistency between (i) the Agreement, any Project conditions of approval, and terms for issuance of a Project-related building permit, and (ii) the Land Use Regulations, this Agreement and any Project conditions of approval, and terms for issuance of a Project-related building permit shall prevail and control.
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 and use of the Site; the maximum height, bulk, and size of proposed structures; the general location of public utilities; the design, and improvement and construction standards and specifications applicable to development of the Site; and other terms and conditions of development applicable to the Project, are set forth in the Land Use Regulations which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement.
3.3 Development Approvals. Developer shall, at its own expense and before commencement of demolition, construction or development of any structures or other work of
8 improvement upon the Site, secure or cause to be secured all necessary Development Approvals.
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 and fire codes, except as may be permitted through approved variances and modifications. Developer shall pay all normal and customary fees and charges applicable to such permits, and any fees and charges hereafter imposed by City in connection with the Project which are standard and uniformly-applied to similar projects in the City.
3.4 Purpose. 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.
3.5 Changes and Amendments. Developer may determine that changes to the Agreement are appropriate and desirable. In the event Developer makes such a determination, Developer may apply in writing for an amendment to the Agreement to effectuate such change(s).
The Parties acknowledge that City shall be permitted to use its inherent land use authority in deciding whether to approve or deny any such amendment request; provided, however, that in exercising the foregoing reasonable discretion, the City shall not apply a standard different than that used in evaluating requests of other developers, and the City must comply with Paragraph
9.18 of this Agreement. Accordingly, under no circumstance shall City be obligated in any manner to approve any amendment to the Agreement. Notwithstanding the foregoing, the City Manager shall be authorized, with the written consent of Developer, to approve any non-substantive amendment to the Agreement without processing a formal amendment to this Agreement. All other amendments shall require the approval of the City Council. The parties acknowledge that any extension of the Term for no more than twenty-four (24) months total is an example of a non- substantive change, which the City Manager, in his or her sole discretion, may approve in writing.
Nothing herein shall cause Developer to be in default if it upgrades the digital display installed pursuant to this Agreement during the Term of this Agreement to incorporate newer technology; provided Developer shall secure all applicable ministerial permits to do so and ensure that such upgrade is consistent with the dimensions and standards for the displays, as provided under this Agreement and the Land Use Regulations.
3.6 Reservation of Authority.
3.6.1Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the development of the Site:
(a) Processing fees and charges of every kind and nature imposed by the City to cover the estimated actual costs to City of processing applications for Subsequent Development Approvals to the extent such fees are assessed on a City-wide basis. (b) Procedural regulations consistent with this Agreement relating to hearing bodies, petitions, applications, notices, findings, records, hearing, reports, recommendations, appeals and any other matter of procedure. Notwithstanding the foregoing, if such change materially changes Developer’s costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice.
9 (c) Changes adopted by the International Conference of Building Officials, or other similar body, as part of the then most current versions of the Uniform Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, or National Electrical Code, as adopted by City as Subsequent Land Use Regulations, if adopted prior to the issuance of a building permit for development of the digital display face on the New Digital Billboard on the Site. Notwithstanding the foregoing, if such change materially changes Developer’s costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice. (d) Regulations that are not in conflict with the Development Approvals or this Agreement, and do not (1) reduce the size of the Project as permitted under the Land Use Regulations; (2) interfere with the operation of the New Digital Billboard as permitted under the Land Use Regulations; (3) change the land use designation or permitted or conditionally permitted use of the Site as described in the Land Use Regulations; (4) require the issuance of permits, approvals or entitlements by City other than those required under the Existing Land Use Regulations; or (5) materially limit the processing or procuring of applications and approvals of Subsequent Development Approvals.
(e) Regulations that are in conflict with the Development Approvals or this Agreement, provided Developer has given written consent to the application of such regulations to the Development of the Site.
(f) Applicable Federal, State, County, and multi-jurisdictional law and regulations which City is required to enforce as against the Site and that do not have an exception for existing signs or legal nonconforming uses.
3.6.2Future Discretion of City. This Agreement shall not prevent City from denying or conditionally approving any application for a Subsequent Development Approval on the basis of the Land Use Regulations.
3.6.3Modification or Suspension by Federal or State Law. In the event that applicable federal or state 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, each party shall provide the other party with written notice of such state or federal law or regulation, a copy of such law or regulation, and a statement concerning the conflict with the provisions of this Agreement. The parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement so as to comply with such state or federal law or regulation. This Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provision impractical to enforce.
Notwithstanding the foregoing, if such change materially changes Developer’s costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice.
3.7 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not subject to control by City may possess authority to regulate aspects of the development of the Site 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 and Site that do not have an exception for a legal nonconforming use. To the extent such other public agencies
10 preclude development or maintenance of the Project and that do not have an exception for a legal nonconforming use, Developer shall not be further obligated under this Agreement except as provided in Section 4.1. Notwithstanding the foregoing, if such action by another public agency materially changes Developer’s costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice
3.8 Public Improvements. Notwithstanding any provision herein to the contrary, the City shall retain the right to condition any Subsequent Development Approvals to require Developer to pay any required development fees, and/or to construct the required public infrastructure (“Exactions”) at such time as City shall determine subject to the following conditions.
3.8.1 The payment or construction must be to alleviate an impact caused by the Project or be of benefit to the Project; and
3.8.2 The timing of the Exaction should be reasonably related to the development of the Project and said public improvements shall be phased to be commensurate with the logical progression of the Project development as well as the reasonable needs of the public.
3.8.3 It being understood, however, that if the there is a material increase in cost to Developer or such action by City otherwise materially impacts Developer’s its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice.
3.9 Fees, Taxes and Assessments. During the Term of this Agreement, the City shall not, without the prior written consent of Developer, impose any additional fees, taxes or assessments on all or any portion of the Project, except such fees, taxes and assessments as are described in or required by this Agreement and/or the Development Approvals. However, this Agreement shall not prohibit the application of fees, taxes or assessments upon the Site 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 as the Effective Date or are included in the Development Approvals;
3.9.2 Developer shall be obligated to pay any fees or taxes, and increases thereof, imposed on a City-wide basis such as, but not limited to, business license fees or taxes or utility taxes;
3.9.3 Developer shall be obligated to pay all fees applicable to a permit application as charged by City at the time such application is filed by Developer;
3.9.4 Developer shall be obligated to pay any fees imposed pursuant to any Uniform Code that existed when the application is filed by the Developer or that exists when the Developer applies for any Subsequent Development Approval.
3.10 Additional Fees; Termination. Notwithstanding anything to the contrary herein, if there is a change in such fees to those charged as of the full execution hereof, or any additional fees are charged and such additional or increased fees materially change Developer’s costs or otherwise materially impacts its performance hereunder, Developer may terminate this Agreement upon ninety (90) days prior written notice.
11 3.11 Extension of Term of Development Approvals. The term of any Development Approvals and Subsequent Development Approvals shall be automatically extended for the longer of the Term of this Agreement or the term otherwise applicable to the Development Approvals and Subsequent Development Approvals.
4. REMOVAL OF BILLBOARD DISPLAY FACE.
4.1 Removal by Developer. If an extension of the Term is not granted by the City according to the provisions of paragraph 2.4, above, the New Digital Billboard digital display face will be removed and the displays may be converted back to printed displays. In the event that the digital displays are not converted back to printed displays according to the terms of this paragraph, Developer shall within sixty (60) days from expiration of the Term, at its sole cost and expense, be required to demolish and remove the New Digital Billboard digital display face.
4.2 City’s Right to Removal. Provided Developer is not in material breach hereof past any applicable notice and cure period, City will not have the right to remove the New Digital Billboard digital display face . Should Developer be in material breach of this Agreement past any applicable notice and cure period, and subject to due process, City may only require removal of the New Digital Billboard digital display face. If City requires the New Digital Billboard digital display face to be removed pursuant to the terms of this paragraph, Developer shall, at its sole cost and expense, remove the digital displays upon the New Digital Billboard and convert the displays to printed displays within ninety (90) days of City’s notice to Developer of such breach.
5. REVIEW FOR COMPLIANCE.
5.1 Annual Reviews. At least once every twelve (12) months, Developer shall demonstrate its good faith compliance with the terms hereof by providing written correspondence addressed to the City Manager demonstrating such good faith compliance. “Good faith compliance” shall mean that Developer has sufficiently followed the terms of this Agreement so as to carry out the intent of the parties in entering into it. After receiving and reviewing Developer’s written submission, if the City Manager finds that Developer is not acting in good faith compliance with this Agreement, the City Manager shall schedule a hearing before the Planning Commission in order to evaluate Developer’s good faith compliance with the terms of the Agreement. The City shall provide Developer with notice of such hearing and a copy of all staff reports and related exhibits as soon as available, but in no event later than five days prior to the hearing. The Planning Commission’s determination following such hearing shall be based on substantial evidence, and shall be subject to appeal to the City Council. If the Planning Commission or City Council, as applicable, finds that the Developer is not in good faith compliance with the terms of this Agreement, the provisions of Section 6 shall govern the parties rights.
5.2 City Right of Access. The City, its officers, employees, agents and contractors, shall, in the exercise of the City’s police power, have the right, at their sole risk and expense, to enter the Site consistent with any rights the City has obtained by virtue of recorded easement or other property interests or, if no such interests exist, upon execution of a license or other applicable written agreement in a form mutually acceptable to the owner of the Site and upon written notice to Developer. The access to the Site described in this paragraph shall be for the purpose of conducting the inspection, maintenance, repair, service, construction, or relocation of any public improvements or public facilities located on the Site, or to exercise its rights under section 4.2. If an emergency repair to a public improvement or public facility on the Site is required and the City does not possess and has not obtained the foregoing access rights, Developer
12 acknowledges that the City may exercise its police power to enter the Site and conduct such repair after providing Developer and the Site owner with reasonable advance notice, with the reasonableness of such notice to be determined from the circumstances necessitating the entry.
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. The City also may access the Site in order to implement any of its lawful police powers to address any nuisance, dangerous condition, or other condition prohibited under the City’s ordinances, so long as the City conducts the foregoing activities in a manner consistent with and protective of Developer’s and the Site owner’s due process rights. Except as explicitly provided for in this Agreement (including without limitation in this Section and Section 4.2 above), the City shall have no right whatsoever to enter the Site.
5.3 Procedure. Each party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with the Agreement, to explain the basis for such assertion, and to receive from the other party a justification of its position on such matters. If, on the basis of the parties’ review of any terms of the Agreement, either party concludes that the other party has not complied 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 forty-five (45) days to cure or remedy the non-compliance identified in the Notice of Non- Compliance, or if such cure or remedy is not reasonably capable of being cured or remedied within such forty-five (45) days period, to commence to cure or remedy the non-compliance and to diligently and in good faith prosecute such cure or remedy to completion. If the party receiving the Notice of Non-Compliance disputes that it is in non-compliance with the terms of this Agreement, that party shall respond in writing to the Notice of Non-Compliance within forty-five (45) days after receipt of the Notice of Non-Compliance. If a Notice of Non-Compliance is disputed, the parties shall, for a period of not less than fifteen (15) days following receipt of the response to the Notice of Non-Compliance, seek to arrive at a mutually acceptable resolution of the dispute. In the event that a cure or remedy is not timely effected or, if the Notice of Non- Compliance is disputed and the parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15) day period described above, 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” event as defined in, and subject to the provisions of, Section 9.10.
6. DEFAULT AND REMEDIES.
6.1 Termination of Agreement.
6.1.1Termination of Agreement for Material Default of Developer.
City, in its discretion, may terminate this Agreement upon written notice to Developer for any material failure of Developer to perform any material duty or obligation of Developer hereunder or to comply with the terms of this Agreement (hereinafter referred to as “default” or “breach”); provided, however, City may terminate this Agreement pursuant to this Section only after following the procedure set forth in Section 5.3. In the event of a termination by City under this Section
6.1.1, Developer acknowledges and agrees that, unless otherwise set forth below, City may retain all fees, including the Processing Fee and the Development Fee paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee within sixty (60) days after the date of termination and removal of the New Digital Billboard that equates to the percentage of time elapsed in the year of the Term at the time of termination. In the event that City terminates this Agreement under this Section 6.1.1 before the New Digital Billboard
13 digital display face become Operational, City shall refund any portion of the Processing Fee that the City has not reasonably expended at the time of such termination after payment to City of the fees and costs described in Section 2.5.
6.1.2Termination of Agreement for Material Default of City.
Developer, in its discretion, may terminate this Agreement upon written notice to City for any material failure of City to perform any material duty or obligation of City hereunder or to comply in with the terms of this Agreement; provided, however, Developer may terminate this Agreement pursuant to this Section only after following the procedure set forth in Section 5.3. In addition, Developer may terminate this Agreement upon written notice to City, if despite Developer’s good faith efforts, it is unable to secure the Development Approvals and any other necessary approvals and/or compliance with requirements under laws necessary to effectuate the Project is not feasible. In the event of a termination by Developer under this Section 6.1.2, Developer acknowledges and agrees that, unless otherwise set forth below, City may retain all fees, including the Processing Fee and the Development Fee, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee within sixty (60) days after the date of termination and removal of the New Digital Billboard digital display face that equates to the percentage of time elapsed in the year of the Term at the time of termination. In the event that Developer terminates this Agreement under this Section 6.1.2 before the New Digital Billboard digital display face become Operational, City shall refund any portion of the Processing Fee that the City has not reasonably expended at the time of such termination after payment to City of the fees and costs described in Section 2.5.
6.1.3Rights 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 default in the performance of the provisions of this Agreement which has occurred prior to said termination, (ii) Developer’s obligation to remove the digital display face on the New Digital billboard pursuant to Section 4.1 or (iii) any continuing obligations to indemnify other parties.
6.2 Remedies. In addition to the rights of termination set forth above, in the event of a default by either party, the non-defaulting party shall have the right to: (a) bring any proceeding in the nature of specific performance, injunctive relief, declaratory relief, or mandamus and/or; (b) bring any action at law or in equity to compensate the non-defaulting party for all the detriment proximately caused by the defaulting party’s default; provided, however, that Developer’s sole and exclusive remedy shall be specific performance and Developer shall not have the right to recover monetary damages (compensatory, consequential, or punitive) against the City other than attorneys’ fees to the extent provided in Section 9.13 below, and the City shall only have the right to recover actual, direct damages (and not consequential or punitive damages) against Developer, as well as attorneys’ fees to the extent provided in Section 9.13 below.
7. INSURANCE, INDEMNIFICATION AND WAIVERS.
7.1 7.1.1Types of Insurance.
(a) Liability Insurance. Beginning on the Effective Date hereof and until completion of the Term, Developer shall, at its sole cost and expense, keep or cause to be kept in force for the mutual benefit of City, as additional insured, and Developer comprehensive broad form general liability insurance covering Developer’s possession and use of the Site and providing protection of at least Two Million Dollars ($2,000,000) for bodily injury or death to any
14 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 limits of coverage, as specified above. Developer shall provide to the City annual proof of insurance consistent with terms and conditions of this agreement. (b) Worker’s Compensation. Developer shall also furnish or cause to be furnished to City evidence that any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries worker’s compensation insurance as required by law.
(c) Insurance Policy Form, Sufficiency, Content and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies qualified to do business by California with an AM Best Rating of no less than “A”. All such policies shall be non-assignable and shall contain language, to the extent obtainable, to the effect that (i) the 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 (ii) the policies cannot be canceled or materially changed by Developer except after written notice by Developer to City or City’s designated representative and the City’s approval thereof.
Developer shall furnish City with certificates of insurance evidencing that Developer has complied with the requirements of this paragraph 7.1.1.
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 seven (7) days after the Effective Date or consistent with the requirements of Exhibit “C” (Schedule of Performance), Item No. 8.
(2) The City can request current certificates of all insurance policies as required. The City reserves the right to obtain copies of relevant policy forms and endorsements of the required insurance policies.
Developer’s failure or refusal to procure or maintain insurance as required herein or failure or refusal to furnish City with proof that the required insurance has been procured and is in full force and effect may, after complying with the requirements of Section 5.3, be deemed a default under the terms of this Agreement.
7.2 Indemnification.
7.2.1General. Developer shall indemnify the City, and its respective officers, employees, and/or agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein “claims or liabilities”) that may be asserted or claimed by any person(s), firm, or entity arising out of or in connection with this Agreement and/or the work, operations, or activities of Developer, its agents, employees, subcontractors, and/or invitees, hereunder, upon the Site.
15 (a) Developer will defend any action or actions filed in connection with any of said claims or liabilities covered by the indemnification provisions herein and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith, which attorneys will be the attorneys hired by the insurance company where insurance coverage applies.
(b) Developer will promptly pay any judgment rendered against the City or its respective officers, agents, or employees that falls within the scope of Developer’s indemnity obligations, as defined above in paragraph 7.2.1.
7.2.2Exceptions. The foregoing indemnity shall not include claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents, or employees or contractors. The foregoing indemnity shall also not include claims or liabilities arising from City’s use of Developer’s advertising space pursuant to paragraph 2.9.1 above.
7.2.3Additional Coverage. Without limiting the generality of the foregoing, Developer’s indemnity obligation shall include any liability arising by reason of any accident or other occurrence caused by Developer in or on the Site causing injury to any person or property;
(a) Loss and Damage. Except as set forth below, City shall not be liable for any damage to property of Developer or others located on the Site, nor for the loss of or damage to any property of Developer or others by theft or otherwise. Except as set forth below, City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Site or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Site, or by any other cause of whatsoever nature. The provisions of this subparagraph (a) shall not apply (i) to the extent City or its agents, employees, subcontractors, invitees or representatives causes such injury or damage, or (ii) to the extent covered in any permit to enter the Site executed by the City.
(b) Period of Indemnification. The obligations for indemnity under this Section 7.2 shall begin upon the Effective Date and shall survive termination of Development Agreement.
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 modifications and City agrees upon request, from time to time, to meet with Developer, the owner of the Site, and representatives of such lenders to negotiate in good faith any such request for modification. Subject to compliance with applicable laws, City will not unreasonably withhold its consent to any such requested modification provided City determines such 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:
16 (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Project or the Site made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust
encumbering the Project or the Site, or any part thereof, which Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Developer in the performance of Developer’s obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee
requesting a copy of any notice of default given to Developer under the terms of this Agreement, City shall make a good faith effort to provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Developer. The Mortgagee shall have the right, but not the obligation, to cure the default during the period that is the longer of (i) the remaining cure period allowed such party under this Agreement, or (ii) sixty (60) days. (d) Any Mortgagee who comes into possession of the Project or the Site, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Project or the Site, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer’s obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance; except that (i) to the extent that any covenant to be performed by Developer is a condition precedent to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City’s performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Project or the Site acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such Mortgagee shall strictly comply with all of the terms, conditions and requirements of this Agreement and the Development Approvals applicable to the Project or the Site or such part thereof so acquired by the Mortgagee.
9. MISCELLANEOUS PROVISIONS.
9.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within ten (10) days of execution, as required by Government Code Section 65868.5. Amendments approved by the parties, and any cancellation, shall be similarly recorded.
9.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
9.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable if that stricken term, provision, covenant or condition is not material to the main
17 purpose of this agreement, which is to allow the Project to be permitted and operated and to provide the Development Fee to the City; otherwise, this Agreement shall terminate in its entirety, unless the parties otherwise agree in writing, which agreement shall not be unreasonably withheld.
9.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting party or in favor of the non- drafting party, shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and hereof.
9.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
9.6 Singular and Plural. As used herein, the singular of any word includes the plural.
9.7 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
9.8 Waiver. Failure of a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
9.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the parties and their owner, successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
9.10 Force Majeure. Notwithstanding the contrary herein, neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, rains, winds, wars, pandemics, epidemics, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond the party’s control (including the party’s employment force), government actions and regulations (other than those of the City), court actions (such as restraining orders or injunctions), or other causes beyond the party’s reasonable control. If any such events shall occur, the term of this Agreement and the time for performance shall be extended for the duration of each such event, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years and further provided that if such delay is longer than six (6) months, Developer may terminate this Agreement upon written notice to City and City shall return to Developer any portion of the Development fee paid for any period after the effective date of such termination.
9.11 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.
9.12 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same affected as if all of the parties had executed the same instrument.
18 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 or interpretation 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 are 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 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.
19 9.18 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both parties specifically approving the amendment and in accordance with the Government Code provisions for the amendment of Development Agreements. The parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non-material modifications may be approved by the City Manager upon approval by the City Attorney.
9.19 Corporate Authority. The person(s) executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bound.
9.20 Notices. All notices under this Agreement shall be effective when delivered by United States Postal Service mail, registered or certified, postage prepaid return receipt requested; and addressed to the respective parties as set forth below or as to such other address as the parties may from time to time designate in writing by providing notice to the other party:
To City: City of Montebello
1600 West Beverly Boulevard
Montebello, CA 90640
Attn: City Manager
To Developer: Clear Channel Outdoor, LLC
19320 Harborgate Way
Torrance, CA 90501
Attn: Vice President, Real Estate & Public Affairs
With Copy To: Clear Channel Outdoor, LLC
2325 E. Camelback Road, Suite 250
Phoenix, AZ 85016
Attn: Operations Counsel
9.21 Nonliability of City Officials. No officer, official, member, employee, agent, and/or representatives of City shall be liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, and/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.
9.23 No Amendment of Lease. Nothing contained in this Agreement shall be deemed to amend or modify any of the terms or provisions of the Lease. Nothing contained in this Agreement shall constitute or be deemed to constitute a limit on any of Developer’s
20 obligations under the Lease, or any of Owner’s rights or remedies against Developer under the Lease.
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above.
City: CITY OF MONTEBELLO
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Developer:
Clear Channel Outdoor, LLC a Delaware limited
liability company
Bryan Parker, Executive Vice President
[end of signatures]
21 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Los Angeles )
On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Los Angeles )
On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
22 EXHIBIT “A”
LEGAL DESCRIPTION OF SITE
MONTEBELLO SE 40 FT OF NE 135 FT EX OF ST OF LOT
51
23 EXHIBIT “B”
Description of New Digital Billboard
CCO will be removing the existing Deck and External Lights on the east facing display CCO will be relocating the existing printed display face in place as a double-faced 12’ x 25’ outdoor advertising sign with an east facing digital display face Existing East Face
Digital Panel Sample
24 EXHIBIT “C”
Billboard Structure and Face To Be Removed
303 W. Whittier Blvd., Montebello, CA 90640 (Panel #5685)
25 EXHIBIT “D”
SCOPE OF DEVELOPMENT INCLUDING SIGN PLANS
Developer and City agree that the Development shall be undertaken in accordance with the terms of the Agreement, which include the following:
1. Project. Developer shall relocate in place the existing printed sign faces and shall convert it to the New Digital Billboard with one east facing digital display face in accordance with the terms of this Agreement. The existing structure will have two (1) new digital display face (display face measuring approximately 12’ x 25’) within the Site.
2. Building Fees. Developer shall pay all applicable City building fees, as described in this Agreement, at the time that a building permit is issued for the installation of the New Digital Billboard Face 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:
(a) Maintenance and repair of the New Digital Billboard and Site (where authorized pursuant to the Site Lease) including but not limited to, the displays installed thereon, and all related on-Site improvements, easements, rights-of-way at its sole cost and expense. Developer’s maintenance and repair obligation shall include, without limitation, maintaining any poles, lighting, signs and walls in good repair and free of graffiti, rubbish, debris and other hazards to persons using the same. Developer shall maintain and repair the New Digital Billboard digital display face in accordance with all applicable laws, rules, ordinances and regulations of all federal, State, and local bodies and agencies having jurisdiction over the Site [unless those federal, State, and local bodies have an exception for a legal nonconforming use].
Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal related to the Project; (ii) replacement of any fixtures, equipment or property damaged by the Project to the extent required by this Agreement or applicable law; (iii) the ongoing maintenance by the Developer of any access points to the New Digital Billboard to minimize dust caused by the Project; and (iv) the repair, replacement and repainting of the New Digital Billboard structure and display faces as necessary to maintain such billboard in good condition and repair.
(b) Maintenance of the Site (where authorized pursuant to the Site Lease) 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 New Digital Billboard digital display face or structure such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within three hundred (300) feet of Site.
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 shall have the
26 right, after complying with Section 5.3 of this Agreement, (i) to enforce the provisions hereof by undertaking any maintenance or repairs required by Developer under Paragraph 3 above (subject to the execution of a permit to enter in form reasonably acceptable to Owner) and charging Developer for any actual maintenance costs incurred in performing same, and (ii) to withhold or revoke in the manner proscribed by law, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the New Digital Billboard digital display face.
5. No City Liability. The granting of a right of enforcement to the City does not create a mandatory duty on the part of the City to enforce any provision of this Agreement.
The failure of the City to enforce this Agreement shall not give rise to a cause of action on the part of any person. No officer or employee of the City shall be personally liable to the Developer, its successors, transferees or assigns, for any default or breach by the City under this Agreement.
6. Conditions of Approval. The following additional conditions shall apply to the installation of the New Digital Billboard digital display face and, where stated, on the Site, shall conform to all applicable provisions of the Montebello Municipal Code (MMC) and the following conditions, in a manner subject to the approval of the Planning Manager or designee:
(a) A building permit will be required and structural calculations shall be prepared by a licensed civil engineer and approved by the City Building Official. (b) The New Digital Billboard shall remain located in the portion of the Site as described in attached Exhibit A and as set forth herein and based on dimensions described in Section 1, above.
(c) The size of each digital display face of the New Digital Billboard shall not exceed a maximum area of 300 square feet with no extensions or borders. (d) Plans and specifications for the proposed installation of the New Digital Billboard digital display face, including all utility plans, 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.
(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 by any duly and valid city, county or state ordinance with jurisdiction over the facilities, unless the Project is exempted as a legal nonconforming use. (g) The Developer shall pay any and all applicable fees due to any public agency pertaining to the New Digital Billboard digital display face prior to the final issuance of the building permits.
(h) The activities proposed in this Agreement shall be conducted completely upon the Site and shall not use or encroach on any public right-of-way.
27 (i) All graffiti shall be adequately and completely removed or painted over within 48 hours of notice to Developer of such graffiti being affixed on the New Digital Billboard.
(j) Developer shall comply with the standards as adopted by the Outdoor Advertising Association of America, Inc. (OAAA), including but not limited to, the 0.3 foot- candles limitation over ambient light levels at 250 feet, and ensuring additional flexibility in reducing such maximum light level standard given the lighting environment, the obligation to have automatic diming capabilities, as well as providing the City’s Planning Manager or designee with a designated Developer employee’s phone number and/or email address for emergencies or complaints that will be monitored 24 hours a day/7 days per week. Upon any reasonable complaint by the City’s Planning Manager or designee, Developer shall perform a brightness measurement of the display using OAAA standards and provide City with the results of same within 15 days of the City’s complaint. Developer shall dim the display to the appropriate setting immediately upon the conclusion of any such measurement that concluding that the light standards were exceeded.
(k) In the event ten percent (10%) or more of the digital sign face is not operating correctly or in the event of a malfunction, Developer shall immediately turn the entire display off, or show a one hundred percent (100%) black image on the display until corrected. (l) The interval between the change in digital content shall be a minimum of eight (8) seconds and the images shall change instantaneously, without special transitional effects.
ITEM # 10
CITY OF MONTEBELLO
CITY COUNCIL AND SUCCESSOR AGENCY AGENDA STAFF REPORT
TO: Honorable Mayor and City Council Members
FROM: René Bobadilla, City Manager
BY: Joseph Palombi, Director of Planning & Community Development SUBJECT: ADOPT CITY COUNCIL RESOLUTION NO. 22-90/SUCCESSOR AGENCY RESOLUTION NO. 22-04 APPROVING THE PURCHASE
AND SALE AGREEMENT FOR THE PROPOSED DISPOSITION OF
REAL PROPERTY LOCATED AT 701-705 W. WHITTIER BOULEVARD
AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE
PURCHASE AND SALE AGREEMENT ON BEHALF OF THE CITY OF
MONTEBELLO
DATE: November 16, 2022
RECOMMENDATION(S):
It is recommended that the City Council/Successor Agency to the former Community Redevelopment Agency of the City of Montebello adopt City Council Resolution No. 22-90/Successor Agency Resolution No. 22-04:
1. Finding that the sale of the Property is exempt under CEQA pursuant to CEQA Guidelines Section 15312 – Class 12 Categorical Exemption relating to the sale of surplus government property and CEQA Guidelines Section 15060(c)(3) because the sale does not have the potential for creating a significant effect on the environment and therefore it is not a project as defined by the CEQA Guidelines Section 15378; and
2. Approving the Successor Agency’s disposition of the real property located at 701-705 W. Whittier Boulevard in the City of Montebello, California identified as Los Angeles County Assessor’s Parcel No. 6349-007-917 for $500,000; and
3. Approving the form and material terms of the Purchase and Sale Agreement, and authorize the Executive Director (i.e. City Manager) and Agency Counsel (i.e.
City Attorney) to finalize negotiations and the agreement (provided that no
CITY COUNCIL AND SUCCESSOR AGENCY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
material changes to the purchase price or property are made); and
4. Authorize the Executive Director to execute the final Purchase and Sale Agreement between the Successor Agency to the Redevelopment Agency of the City of Montebello and SAM Entertainment Group LLC, and any related documents necessary to reasonably complete the proposed disposition in accordance with the final agreement; and
5. Adopt City Council Resolution No. 22-90/Successor Agency Resolution No. 22- 04 to Declare the Property “Surplus” and Certify Compliance with the Surplus Land Act.
6. Take such additional, related, action that may be necessary to implement the approved transaction.
FISCAL IMPACT:
The Successor Agency is proposing to sell the Property to SAM Entertainment Group LLC for the appraised market value of $500,000. The proposed disposition is consistent with the Successor Agency’s Long-Range Property Management Plan (“LRPMP”), which was previously approved by the Montebello Oversight Board (“Oversight Board”) and California Department of Finance (DOF). Any revenues generated from the proposed disposition of the Property (identified as Property #2 in the LRPMP) would be allocated to area taxing entities as property tax revenues pursuant to State Dissolution Law (Health & Safety Code § 31470 et seq.).
BACKGROUND/DISCUSSION:
The real property asset listed as Property #2 in the Successor Agency’s LRPMP is located at 701-705 W. Whittier Boulevard in the City of Montebello, California identified as Los Angeles County Assessor’s Parcel No. 6349-007-917 (the “Property”). The LRPMP (dated May 6, 2015) identified an inventory of Successor Agency owned properties and sets forth a long-term plan for the use and disposition of real property assets of the former redevelopment agency. As recommended in the LRPMP, the Property should be sold to a developer or end-user for development consistent with the agency planning objectives for fair market value and proceeds from the sale would be distributed to local taxing entities. Currently, the City is in the midst of its General Plan Update that will include the Downtown Montebello Specific Plan that will establish a vision to activate the downtown corridor with commercial/retail uses intended to enhance the City’s economic health and vitality.
The Property is comprised of approximately 9,750 square feet located in the C-2 (General Commercial) Zone, and is currently improved with a commercial/office structure totaling approximately 4,099 square feet that was built in 1971. On December 24, 2008, the City of Montebello Community Redevelopment Agency (“RDA”) acquired the Property from BOAND Holdings Montebello LLC for the sale price of $225,000.
In February 2012, by virtue of the Redevelopment Dissolution Law (Health & Safety Code § 31470 et seq.) ownership of the Property passed to the control and responsibility of the Successor Agency. The Dissolution Law requires the Successor
CITY COUNCIL AND SUCCESSOR AGENCY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
Agency to dispose of real property assets in accordance with its LRPMP, and directs the proceeds resulting from any sale to be used for paying approved “enforceable obligations” or otherwise allocated to area taxing entities as property tax revenues. (H&S Code §§ 34177(e), 34177.3(c).)
On May 1, 2018, the Planning Commission adopted a resolution pursuant to Government Code Section 65402(a), finding that the acquisition of the Property is consistent with the City’s General Plan as the subject property was originally acquired by the RDA with the intent to remediate blight and facilitate economic development in downtown Montebello.
Based on the Phase II Subsurface Soil Investigation Report (dated July 16, 2010) prepared for the City by Coffey Environments, the Property was previously developed with a gasoline service station that was operated on the Property from 1949 to 1969. In 1971, all buildings and structures were demolished and a restaurant was constructed.
Subsequently, Jimmie’s Family Restaurant occupied the Property from 1988 until 2008 when it closed. The Property has remained vacant and underutilized since its closure. It is important to note that the above-referenced Phase II Report revealed the existence of four underground storage tanks (or USTs) consisting of one 4,000-gallon and three 1,000-gallon underground USTs on the eastern side of the Property.
DISCUSSION
On April 27, 2022, the Successor Agency adopted Successor Agency Resolution No. 2203 declaring the Property surplus land. As prescribed by the California Department of Housing and Community Development (“HCD”), under the Surplus Land Act, the required Notice of Availability was transmitted to HCD, local public entities, developers who have notified HCD of their interest in developing affordable housing on surplus local public land. The Notice of Availability was also posted on the City’s website.
Pursuant to the Surplus Land Act, the Notice of Availability was circulated for 60 days beginning May 4, 2022 through July 5, 2022. The City received notices of interest from three (3) parties of which only one proposal included a residential use (“Desert Brothers Craft Proposal”) with the remaining proposals proposing commercial uses.
On July 6, 2022, the Successor Agency commenced good faith negotiations with Desert Brothers Craft. Subsequently, on August 16, 2022, the Successor Agency received notice from Desert Brothers Craft requesting to terminate good faith negotiations with the Successor Agency and that Desert Brothers Craft was no longer interested in the Property. With no remaining parties interested in using the Property for residential use, the Successor Agency returned to the two remaining non-residential proposals received following the issuance of the Notice of Availability and identified the proposal from Simon Simonian with SAM Entertainment Group, LLC as the preferred proposal.
As part of the negotiation process, on September 28, 2022, an Appraisal Report (please see Attachment C) was prepared by Mike Young (Certified General Appraiser No.
AG032997) for the Property. The Appraisal Report contained hypothetical scenarios
CITY COUNCIL AND SUCCESSOR AGENCY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
taking into consideration the potential need to remediate the four existing USTs. Based on available information, the Appraisal Report concluded that the Property was valued at $765,000 minus the estimated cost to cure any contamination at $265,000 bringing the estimated value after adjustment to $500,000. In accordance with the Surplus Land Act, the Successor Agency will execute and record the necessary Declaration of Restrictive Covenants confirming that if ten (10) or more residential units are developed on the Property, not less than 15 percent of the total number of residential units developed shall be sold or rented at affordable housing cost, as defined by State law.
The sale of the Property is consistent with the statutory mandates on the winding down of redevelopment agencies under State Law and is consistent with the Successor’s Agency’s approved LRPMP and in the public interest because it relieves the Successor Agency and the taxing entities of the responsibility, costs, and liability associated with the ownership and maintenance of the Property. In addition, the sale of the property would generate proceeds that may be used to pay for Successor Agency enforceable obligations or distributed to taxing entities and would ultimately contribute to the revitalization of an obsolete and underutilized property with the potential to generate future sales tax revenue as well as property tax revenue that does not currently exist as a result of the current status of the Property.
ENVIRONMENTAL IMPACT:
The adoption of the proposed Resolutions are not subject to California Environmental Quality Act (CEQA) because the Successor Agency’s sale of surplus land is exempt under CEQA pursuant CEQA Guidelines Section 15312 - Class 12 Categorical Exemption relating to the sale of surplus government property and pursuant CEQA Guidelines Section 15060(c)(3) because this action does not have the potential for creating a significant effect on the environment and therefore it is not a project as defined by the CEQA Guidelines Section 15378. The Successor Agency’s proposed disposition of the Property will not result in a direct or reasonably foreseeable indirect physical change to the environment and there is no possibility that the disposition of the Property will have a significant effect on the environment because there are no proposed changes to the Property at this time and any future changes to the Property shall comply with zoning requirements and CEQA at that time.
ANALYSIS:
Sale of the Property to SAM Entertainment Group, LLC for the fair market price of Five Hundred Thousand Dollars ($500,000) is consistent with and expedites administration of the Successor Agency’s LRPMP, and the ultimate goal of winding down all former redevelopment agencies. The transaction provides an opportunity to repurpose an obsolete and underutilized property with the potential to enhance the economic health and vitality of the downtown Montebello corridor, and to convert an existing non- property-tax bearing asset into a renewed property tax producing asset. Moreover, the Property will be transformed into a unique dining establishment with a dynamic atmosphere that will be an asset to neighboring businesses along the corridor under the umbrella of an established operator in SAM Entertainment Group, LLC who currently
CITY COUNCIL AND SUCCESSOR AGENCY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
owns and operates Joseph’s located within the City of Downey.
If the Successor Agency adopts the Resolution approving the transaction, the First District Los Angelese County Consolidated Oversight Board (which is also required to approve the transaction) will be scheduled to consider the matter in January 2023 or as soon as possible. Contemporaneously, staff would complete reporting requirements to HCD associated with the disposition of a surplus property. Barring objection from the Oversight Board or HCD, staff anticipates the transaction closing in approximately ninety (90) days.
SUMMARY:
It is recommended that the City Council/Successor Agency to the former Community Redevelopment Agency of the City of Montebello approve and adopt the attached Resolutions approving the proposed disposition of the Property for $500,000 and authorize the City Manager, acting as the Executive Director of the Montebello Successor Agency, to execute the Purchase and Sale Agreement between the Successor Agency to the Redevelopment Agency of the City of Montebello and SAM Entertainment Group, LLC, and any related documents necessary to reasonably complete the proposed disposition in accordance with the final agreement and consistent with State law.
ATTACHMENT(S)
1. Attachment A - CC-SA Resolution Approving PSA for 701-705 Whittier Blvd.
2. Attachment B - Purchase and Sale Agreement 701-705 Whittier
3. Attachment C - Appraisal Report 701-705 W. Whittier Blvd.
4. Attachment D - SLA Restrictive Covenant 701-705 Whittier Blvd.
NEXT STEPS:
N/A
ATTACHMENT A
CITY COUNCIL RESOLUTION NO. 22-90
SUCCESSOR AGENCY RESOLUTION NO. 22-04
A RESOLUTION OF THE SUCCESSOR AGENCY TO THE FORMER
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
MONTEBELLO APPROVING A PURCHASE AND SALE AGREEMENT
FOR THE SALE OF SURPLUS REAL PROPERTY KNOWN AS 701-705
WHITTIER BLVD., MONTEBELLO, CALIFORNIA (APN NO. 6349-007- 917)
WHEREAS,in accord with the provisions of the California Redevelopment Law (Health and Safety Code Section 33000, et seq.), the City Council of the City of Montebello (“City”) previously established the Community Redevelopment Agency of the City of Montebello, a public body, corporate, and politic (“Former Agency”) to carry out the purposes of and exercise the powers granted to community redevelopment agencies under State Law; and
WHEREAS,pursuant to the dissolution of redevelopment agencies per Assembly Bill ABX1 26 (Chapter 5 Statutes of 2011) and ABX1 27 (Chapter 6, Statutes of 2011), and subsequent legislation, AB 1484 (Chapter 26, Statutes of 2012) (altogether, “Dissolution Act”), the City elected to serve as Successor Agency to the Former Community Redevelopment Agency of the City of Montebello (the “Successor Agency”); and
WHEREAS,on December 24, 2008, the Former Agency acquired the real property commonly referred to as 701-705 Whittier Boulevard, Montebello, California and legally described on Exhibit “A”, attached hereto and made a part of hereof (“Property”); and
WHEREAS,the Property is a vacant commercial property that measures approximately 9,750 square feet and an approximately 4,726 square foot former restaurant building on the Property;
WHEREAS, the Property is identified as Assessor Parcel Number 6349-007-917 and is zoned C-2 (General Commercial); and
WHEREAS,pursuant to California Health and Safety Code Section 34177, the Successor Agency must dispose of assets and properties of the Former Agency; and WHEREAS, the Property was identified and listed on the Successor Agency’s approved Long Range Property Management Plan (“LRPMP”) dated May 6, 2015, which identified an inventory of Successor Agency owned properties and set forth a long-term plan for the use and disposition of real property assets of the former redevelopment agency; and
WHEREAS, the Property was identified as Property No. 2 on the LRPMP, which recommended that the Property be sold to a developer or end-user for development consistent with the agency planning objectives for fair market value and proceeds from the sale to be distributed to local taxing entities; and
CITY COUNCIL RESOLUTION NO. 22-90
SUCCESSOR AGENCY RESOLUTION NO. 22-04
WHEREAS, on April 27, 2022 the Successor Agency adopted Successor Agency Resolution No. 2203 declaring the Property surplus land; and WHEREAS,the California Surplus Lands Act (Cal. Gov. Code §§ 54220 et seq.) (“Act”) as modified by California Assembly Bill 1486, effective October 9, 2019, provides the framework and state law requirements for disposal of a local agency’s surplus real property; and
WHEREAS, on May 4, 2022, the Successor Agency issued a Notice of Availability in accordance with the requirements of the Surplus Land Act; WHEREAS, the Successor Agency received notices of interest from three (3) parties of which only one proposal included a residential use (“Desert Brothers Craft Proposal”) with the remaining proposals proposing commercial use; WHEREAS, on July 6, 2022 the Successor Agency commenced good faith negotiations with Desert Brothers Craft;
WHEREAS, on August 16, 2022, the Successor Agency received notice from Desert Brothers Craft requesting to terminate good faith negotiations with the Successor Agency and that Desert Brothers Craft was no longer interested in the Property; WHEREAS, with no remaining parties interested in using the Property for residential use, the Successor Agency returned to the two remaining non-residential proposals received following the issuance of the Notice of Availability and identified the proposal from Simon Simonian with SAM Entertainment Group, LLC as the preferred proposal;
WHEREAS,the California Surplus Lands Act (Cal. Gov. Code §§ 54220 et seq.) (“Act”) as modified by California Assembly Bill 1486, effective October 9, 2019, provides the framework and state law requirements for disposal of a local agency’s surplus real property; and
WHEREAS,the Act provides that if the Successor Agency is unable to agree to price and terms with any entity to which a Notice of Availability was given pursuant to the Act, or if no entity to which a Notice of Availability was given responds to that notice, then the land may be disposed of outside the Act, subject only to the recordation of a covenant containing certain affordability requirements in the event housing is ever constructed on the land;
WHEREAS,the sale of the Property is consistent with the statutory mandates on the winding down of redevelopment agencies under State Law and is consistent with the Successor Agency’s approved LRPMP and in the public interest because it relieves the Successor Agency and the taxing entities of the responsibility, costs, and liability associated with the ownership and maintenance of the Property, would generate sales proceeds that may be used to pay for Successor Agency enforceable obligations or distributed to taxing entities, creates much needed affordable housing in the City, and would contribute to the revitalization of an obsolete and underutilized property.
CITY COUNCIL RESOLUTION NO. 22-90
SUCCESSOR AGENCY RESOLUTION NO. 22-04
NOW, THEREFORE, the Successor Agency to the former Community Redevelopment Agency of the City of Montebello does hereby resolve as follows:
SECTION 1.The above recitals are true and correct and are a substantive part of this Resolution.
SECTION 2.This Resolution has been reviewed with respect to the applicability of the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) (“CEQA”). The approval of this Resolution approving the Successor Agency’s sale of surplus land is exempt under CEQA pursuant CEQA Guidelines Section 15312 - Class 12 Categorical Exemption relating to the sale of surplus government property and pursuant to State CEQA Guidelines Section 15060(c)(3) because this Resolution does not have the potential for creating a significant effect on the environment and therefore it is not a project as defined by the CEQA Guidelines Section 15378. Adoption of the Resolution does not have the potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.
If and when the property is sold, any subsequent use for the property will also require CEQA review and use specific facts will be analyzed at the appropriate time in accordance with CEQA.
SECTION 3.The Successor Agency hereby finds that the requirements of the Act have been duly satisfied because the Successor Agency was unable to agree to price and terms with any entity to which a Notice of Availability was given pursuant to the Act and after having no alternative parties interested in the Property for residential use.
SECTION 4. The Successor Agency hereby approves and authorizes the sale of the Property to SAM Entertainment Group, LLC for the fair market price of Five Hundred Thousand Dollars ($500,000) and approves the Purchase and Sale Agreement by and between the Successor Agency and SAM Entertainment Group, LLC.
SECTION 5. The Successor Agency further authorizes and directs the Successor Agency Executive Director, or designee, to execute the purchase and sale agreement for the Property, including but not limited to, escrow instructions, grant deed, seller affidavits and such other customary documents consistent with and reasonably necessary to effectuate the intent of this Resolution and record or cause to be recorded such documentation, in a form approved by the City Attorney and consistent with this Resolution.
SECTION 6. The Successor Agency Executive Director is further directed to transmit this Resolution to the Oversight Board for approval of the sale of the Property and upon its approval, to the California Department of Finance.
SECTION 7.The Agency Secretary shall attest to the passage of this resolution, and it shall thereupon be in full force and effect.
[Signature on the following page]
CITY COUNCIL RESOLUTION NO. 22-90
SUCCESSOR AGENCY RESOLUTION NO. 22-04
APPROVED AND PASSED this 16th day of November, 2022.
________________________________
Kimberly Ann Cobos-Cawthorne,
Mayor/Chairwoman
ATTEST: APPROVED AS TO FORM:
____________________________ _______________________________ Christopher Jimenez,City Clerk/ Arnold M. Alvarez-Glasman, City Attorney/ Board Secretary Agency Counsel
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTACHMENT A
EXHIBIT “A”
Legal Description of the Property
The real property in the City of Montebello, County of Los Angeles, State of California, described as: Lot 1 of Tract No. 3276 as per Map recorded in Book 40, Page 31 of Maps, in the Office of the County Recorder of Los Angeles County, California also known as:
701-705 WEST WHITTIER BLVD., MONTEBELLO, CA 90640 (APN 6349-007-917)
ATTACHMENT A
EXHIBIT “B”
Aerial Map Depicting the Property
Legend:
Subject Property
1035482_11
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
SAM ENTERTAINMENT GROUP, LLC
(“BUYER”)
AND
SUCCESSOR AGENCY TO THE FORMER
MONTEBELLO REDEVELOPMENT AGENCY
(“SELLER”)
November ____, 2022
Property: 701-705 Whittier Boulevard, Montebello, California
ATTACHMENT B
1 PURCHASE AND SALE AGREEMENT NO. 4049
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of the _ ___ day of September, 2022, until the Agreement has been finalized, by and between SAM ENTERTAINMENT GROUP, LLC (the “Buyer”), and THE SUCCESSOR AGENCY TO THE FORMER MONTEBELLO REDEVELOPMENT AGENCY , a public body, corporate, and politic (“Seller”).
In consideration of the mutual promises, covenants and agreements hereinafter set forth and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE I
Sale of Property
1.1 Sale of Proper ty. Seller hereby agrees to sell, assign and convey to Buyer, and Buyer agrees to purchase from Seller, all of Seller ’s respective right, title and interest in and to, the following:
1.1.1 Land. That certain real property commonly referred to as 701-705 Whittier Boulevard, Montebello, California 90640 consisting of one (1) parcel measuring approximately 9,750 square feet and contains a commercial building measuring approximately 4,726 square feet and legally described on Exhibit A attached to this
Agreement and depicted on Exhibit B attached to this Agreement (the “Land”);
1.1.2 Real Property. All rights, privileges and easements appurtenant to Seller’s interest in the Land, including, without limitation, all of Seller ’s right, title and interest, if any, in and to all mineral and water rights and all easements, licenses, covenants and other rights-of-way or other appurtenances used in connection with the beneficial use and enjoyment of the Land (collectively, the “Real Property”, and the Land and the Real Property are hereinafter collectively referred to as the “Property”).
ARTICLE II
Purchase Price
2.1 Purchase Price. The purchase price for the Property shall be FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) (the “Purchase Price”). The Purchase Price, as adjusted by all prorations as provided for in this Agreement, shall be paid to Seller by Buyer at Closing (as hereinafter defined) by wire transfer of immediately available federal funds.
ARTICLE III
Deposit
3.1 Deposit. Within five (5) Business Days (as hereinafter defined) after the Effective Date (as hereinafter defined), Buyer shall deposit in an earnest money escrow (“ Earnest Money Escrow”) with [NAME OF TITLE COMPANY] (“Title Company”) (as hereinafter defined), as escrowee (“Escrowee”), at Escrowee’s office located at [TITLE COMPANY ADDRESS], the sum of Ten Thousand and no/100 ($10,000.00) DOLLARS (“Deposit”) (“Opening of Escrow”).
CITY OF MONTEBELLO
2 For the purposes of this Agreement, “Effective Date” shall mean the date this Agreement has been fully executed and delivered to Seller and Buyer. Ten Thousand Dollars ($10,0 00.00) of the Deposit shall be released by Title Company to Seller on the first Business Day following the deposit thereof by Buyer, in payment of consideration by Buyer to Seller for the right of Buyer to purchase the Property in accordance with the terms of this Agreement (the “Non-Refundable Payment”). The Non-Refundable Payment shall be fully earned and retained by Seller immediately upon receipt and, notwithstanding any provisions of this Agreement to the contrary, the Non-Refundable Payment shall not be returned to Buyer in any circumstance except if Closing fails to occur solely due to a material default by Seller under this Agreement. On the Closing Date, the amount of the Non-Refundable Payment, without interest, shall be applied to the Purchase Price. From and after the release of the Non-Refundable Payment to Seller, the Deposit shall mean and refer to the remaining Deposit amount then held by Title Company (and any payment or refund of the Deposit to be made pursuant to this Agreement shall not include such Non-Refundable Payment). Buyer acknowledges that Seller would not have entered into this Agreement had Buyer not made the bargained for Non-Refundable Payment to Seller on the terms set forth in this Section.
3.2 Application. The Deposit shall be paid to Seller and credited against the Purchase Price at Closing. If the Closing does not occur in accordance with the terms of this Agreement, the Deposit shall be held and delivered as provided in this Agreement.
3.3 Non-interest-Bearing. The Deposit shall be held in a non-interest-bearing escrow account by the Title Company in an institution as directed by Buyer and reasonably acceptable to Seller.
ARTICLE IV
Closing, Prorations and Closing Costs
4.1 Closing. The parties acknowledge and agree that the Seller’s Board has approved the execution of this Agreement by the Seller (the “PSA Approval”), and that the closing of the transactions contemplated in this Agreement (the “ Closing”) shall occur on or before 5:00 P.M.
Pacific Standard Time on the thirtieth (30 th) day following the Opening of Escrow or the first business day, if the 30 th day falls on a weekend or holiday, upon the satisfaction of Buyer’s and Seller’s obligations set forth in this Agreement (the “Closing Escrow”), and shall be held at the offices of the Title Company, or at such other place agreed to by Seller and Buyer. The payment of funds and the delivery of all documents required pursuant to this Agreement shall be made through the Closing Escrow. The Closing shall take place in a manner so that, on the date the Closing occurs (the “Closing Date”), the Title Policy (as hereinafter defined) will be delivered to Buyer, and Seller shall receive the Purchase Price. The City and Developer shall provide such additional escrow instructions as shall be necessary and consistent with this Agreement. The Escrowee is hereby empowered to act under this Agreement and shall carry out its duties as
Escrowee hereunder. In the event of any inconsistency between any escrow instructions and this Agreement, this Agreement shall control. Notwithstanding the foregoing, upon discovery of any inconsistency, the Parties may agree in writing to modify these instructions to address said inconsistency.
4.2 Prorations. All matters involving prorations or adjustments to be made in connection with this Agreement and not specifically provided for in some other provision of this Agreement shall be adjusted in accordance with this Section 4.2. For purposes of calculating
3 prorations, Buyer shall be deemed to be in title to the Property, and, therefore entitled to the income therefrom and responsible for the expenses thereof , on and after the Closing Date. All such prorations shall be made on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and a three hundred sixty-five (365) day year. Except as otherwise provided in this Section 4.2, the amount of such prorations shall be determined and shall be final as of the Closing Date. All items of income and expense which accrue for the period prior to the Closing Date will be for the account of Seller and all items of income and expense which accrue for the period on and after the Closing Date will be for the account of Buyer.
4.2.1 Taxes. On or before the Closing Date, Seller shall pay all taxes and assessments, including, without limitation, all special assessments, on the Property which are due and payable prior to the Closing Date, if applicable. Unpaid taxes and assessments on the Property shall be prorated on an accrual basis as of the Closing Date based upon the most recent ascertainable assessed valuation, tax multipliers and tax rate, but reproration thereof shall be made between Buyer and Seller at such time as the actual amount of taxes for the applicable tax year shall become known, in order that actual real estate taxes for the periods before and after the Closing Date may be equitably prorated as of the Closing Date and paid between the parties when known. Seller shall be liable for any back tax bill which may be imposed by taxing authorities related to the period prior to the Closing Date, which obligation of Seller shall survive Closing.
4.3 Allocation of Closing Costs and Expenses . Seller shall bear the cost to record any instruments necessary to clear Seller’s title, and one-half the cost of the Closing Escrow fees.
Buyer shall bear the cost (i) of the Title Policy charges, (ii) any recording fees with respect to the Deed (as hereinafter defined) , (iii) the costs incurred in connection with obtaining Buyer’s financing for this transaction, if any, (iv) all the cost of all title endorsements, if any, (v) the cost of applicable transfer taxes, and (vi) one-half the cost of the Closing Escrow fees.
ARTICLE V
Title; Condition of the Property
5.1 Title.
5.1.1 Promptly after the Effective Date, Buyer shall apply for a title insurance commitment (the “Commitment”) for an Owner’s Policy of Title Insurance (the “Title Policy”), issued by the Title Company and covering the Real Property. After receipt of the Commitment, Buyer shall provide or cause the Title Company to provide a copy of the Commitment to Seller. On or before the date (the “Title Objection Date”) that is ten (10) days after the date Buyer receives the Commitment and the Survey (as hereinafter defined), Buyer shall notify Seller in writing (the “Title Objection Notice”) of any title exceptions identified in the Commitment or the Survey that Buyer disapproves (collectively, the “Unpermitted Exceptions ”) and any remaining exceptions shall be deemed permitted (collectively, the “ Permitted Exceptions”). Notwithstanding the foregoing, Buyer and Seller hereby agree that : (i) all non -delinquent property taxes and asses sments, (ii) all matters created by or on behalf of Buyer, including, without limitation, any documents or instruments to be recorded as part of any financing of the Property by Buyer, and (iii) a non-exclusive Southern California Edison easement for ingress and egress and a non - exclusive Southern California Gas Company underground gas facilities easement , shall constitute “Permitted Exceptions ”. If Buyer fails to provide Seller with the Title
4 Objection Notice on or before the Title Objection Date, all exceptions in the Commitment and the Survey shall be deemed to be Permitted Exceptions, and Buyer shall be deemed to have waived its right to object to any exceptions in the Commitment or Survey.
5.1.2 No less than ten (10) days after being given the Title Objection Notice, Seller shall notify Buyer in writing of any Unpermitted Exceptions that Seller is unable or unwilling to cause to be removed or insured against prior to or at Closing. With respect to such exceptions, Buyer shall then elect, by giving written notice to Seller within three (3) days after receipt of Seller’s notice, to: (x) terminate this Agreement, or (y) waive its disapproval of such exceptions, in which case such exceptions shall then be deemed to be Permitted Exceptions. Buyer’s failure to timely give such notice shall be deemed an election to waive the disapproval of any such exceptio n. If Buyer elects to terminate this Agreement in accordance with clause (x) above, the Deposit shall be returned to Buyer as Buyer’s sole and exclusive remedy as a result of such termination.
5.1.3 Monetary Liens. Notwithstanding anything to the contrary contained in Section 5.1.2 above, Seller shall be required to discharge all mortgages, deeds of trust, real estate taxes, assessments and other governmental levies, fees or charges imposed on the Land, all judgment liens, all mechanics ’ liens and similar liens for labor, materials or supplies, and other such monetary liens that may be removed solely through the payment of money prior to Closing (collectively, the “Monetary Liens”), and such matters shall be deemed Objectionable Exceptions, whether or not includ ed in Buyer’s Title Objection Notice. If, at or prior to Closing, Seller fails to cure all Monetary Liens, in addition to all other remedies available to Buyer under this Agreement, Buyer shall have the right to proceed to Closing and deduct from the Purchase Price the amount necessary to cure such Monetary Liens.
5.2 “AS-IS” Condition. Except as provided in this Agreement, the Property shall be conveyed and delivered to Buyer in an “as -is” physical condition. BUYER SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN “AS IS WITH ALL FAULTS” BASIS AND THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, BUYER IS NOT RELYING ON
ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS
OR IMPLIED, FROM SELLER OR ITS AGENTS AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION:
(a) The quality, nature, adequacy and physical condition and aspects of the Property, including, but not limited to, sewage, and utility systems, the square foo tage within the Property;
(b) The quality, nature, adequacy, and physical condition of soils, geology and any groundwater;
(c) The existence, quality, nature, adequacy and physical condition of utilities serving the Property;
(d) The development potential of the Property, and the Property’s use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose;
5 (e) The zoning or other legal status of the Property;
(f) The compliance of the Property with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or quasi-governmental, entity or of any other person or entity (including, without limitation, the Americans with Disabilities Act);
(g) The presence of hazardous materials on, under or about the Property or the adjoining or neighboring Property;
(h) The quality of any labor and materials used in any Improvements; and
(i) The economics of the operation of the Property.
Seller is not in any way responsible for any demolition or physical site clearance of the Property.
Buyer is solely responsible for the relocation of utilities and easements as necessary on the Property.
ARTICLE VI
Representations and Warranties of the Seller
6.1 Seller’s Representations . Seller represents and warrants that , to Seller’s knowledge, the following matters are true and correct as of the Effective Date with respect to the Property.
6.1.1 Authority. Seller is a public body, corporate, and politic , duly organized, validly existing and in good standing under the laws of the State of California.
This Agreement has been duly authorized, executed and delivered by Seller, is the legal, valid and binding obligation of Seller, and does not violate any provision of any agreement or judicial order to which Seller is a party or to which Seller is subject. All documents to be executed by Seller which are to be delivered at Closin g, will, at the time of Closing:
(i) be duly authorized, execute d and delivered by Seller, (ii) be legal, valid and binding obligations of Seller, and (iii) not violate any provision of any agreement or judicial order to which Seller is a party or to which Seller is subject.
6.1.2 Violation of Laws . To Seller ’s knowledge, Seller has received no written notice of any violation of any statute or ordinance relating to the Property that has not been cured.
6.2 Seller’s Knowledge. For purposes of this Agreement and any document delivered at Closing, whenever the phrases “to Seller’s knowledge” or the “knowledge” of Seller or words of similar import are used, they shall be deemed to refer to the current, actual knowledge only, and not any implied, imputed or constructive knowledge, without any independent investigation having been made or any im plied duty to investigate, of the Community & Economic Development Director or other City designee . Notwithstanding anything to the contrary contained in this Agreement, the Community & Economic Development Director or other City designee shall have no personal liability under this Agreement.
6 6.3 Change in Representation/Waiver.
6.3.1 Representations/Waiver. Notwithstanding anything to the contrary in this Agreement , Buyer acknowledges that Buyer shall not be entitled to rely on any representation made by Seller in this Article VI, to the extent that, prior to or at Closing, Buyer shall have or obtain actual knowledge of any information contradictory to such representation or warranty; provided, however, if Buyer determines prior to Closing that there is a breach of any of the representations and warranties made by Seller in this Article VI, then Buyer may, at its option, by sending to Seller written notice of its election, either: (i) terminate this Agreement, in which event the Deposit shall be returned to Buyer and, except for the Surviving Obligations, neither party shall have any further rights or obligations to the other under this Agreement, or (ii) waive such breach and/or conditions and proceed to Closing with no adjustment in the Purchase Price, and Seller shall have no further liability as to such matter thereafter.
6.3.2 Property Condition Waiver . Notwithstanding any other provision of this Agreement to the contrary, following the Closing Date, Buyer waives its right to recover from Seller, its elected officia ls, agents, and employees (collectively, “Seller’s Representatives”), and hereby waives, releases and forever discharges Seller and Seller’s Representatives from, any and all damages, losses, liabilities, costs or expenses whatsoever (including attorneys' fees and costs) and claims therefor, whether direct or indirect, known or unknown, foreseen or unforeseen, which may arise on account of or in any way arising out of or connected with the Property, including (i) the physical condition, nature or quality of the Property, including geologic conditions, (ii) the quality of the labor and materials included in any improvements or fixtures located on or within the Property (including latent defects), (iii) the presence of asbestos and lead-based paint or hazardous materials present on the Property or in the subsurface of the Property , (iv) the failure of the Property, including any existing improvements thereon, to comply with any law or regulation applicable thereto, (v) the inaccuracy or incompleteness of plans, drawings, specifications, any documents provided by Seller, and (vi) the environmental condition of the Property.
The foregoing waiver and release shall exclude only those losses, liabilities, damages, costs or expenses, and claims therefor, arising from or attributable to any breach by Seller of its express representations or warranties under this Agreement.
In connection with foregoing waiver and release, Buyer expressly waives the benefits of Section 1542 of the California Civil Code, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.”
_____________________
Buyer's Initials
7 6.4 Survival. The express representations and warranties made in this Agreement by Seller shall not merge into any instrument or conveyance delivered at Closing; provided, however, that any action, suit or proceeding with respect to the truth, accuracy or completeness of such representations and warranties shall be commenced, if at all, on or before the date that is six (6) months after the Closing Date (“Survival Period”) and, if not commenced on or before such date, thereafter such representations and warranties shall be void and of no force or effect.
Notwithstanding any other term of this Agreement, any claim based upon a misrepresentation or a breach of a covenant or warranty under this Agreement that expressly survives the Closing shall be actionable or enforceable if and only if: (i) notice of such claim(s) is given to Seller prior to the expiration of the Survival Period; and (ii) the amount of damages or losses as a result of such claims suffered or sustained by the party making such claims exceeds $50,000.00; and provided further that the aggregate liability of Seller for any and all such breaches or misrepresentations shall be limited to $250,000.00.
ARTICLE VII
Seller’s Interim Operating Covenants
7.1 Operations. Seller agrees to continue to operate, manage and maintain the Property through the Closing Date in the ordinary course of Seller ’s business and substantially in accordance with Seller’s present practice, subject to ordinary wear and tear.
7.2 No Sales. Seller agrees that it shall not convey any interest in the Property to any third party prior to Closing.
ARTICLE VIII
Possession
8.1 Possession. Possession of the Property shall be delivered to Buyer on the Closing Date free and clear of all possessory interests, subject to only to the Permitted Exceptions.
ARTICLE IX
Closing
9.1 Buyer’s Closing Obligations. Buyer, at its sole cost and expense, shall deliver or cause to be delivered to the Title Company at Closing the following, duly executed and acknowledged as applicable:
9.1.1 The Purchase Price, subject to adjustments and prorations as provided in this Agreement, by wire transfer or other immediately available federal funds.
9.1.2 A Preliminary Change of Ownership Report.
9.1.3 If required by the Title Company, e vidence reasonably satisfactory to the Title Company that the person executing the closing documents on behalf of Buyer has full right, power and authority to do so.
9.1.4 Such other documents as may be reasonably necessary or appropriate to effect the consummation of the transactions which are the subject of this Agreement.
8 9.1.5 A counterpart of a closing statement, prepared in strict accordance with Section 4.2 of this Agreement (the “Closing Statement”).
9.2 Seller’s Closing Obligations. Seller, at its sole cost and expense, shall deliver or cause to be delivered to the Title Company on or before Closing the following, duly executed and acknowledged as applicable:
9.2.1 A grant deed in the form attached to this Agreement as Exhibit C conveying to Buyer the Real Property in fee simple, subject o nly to the Permitted Exceptions (the “Deed”).
9.2.2 California Form 593-C (California Real Estate Withholding Exemption Certificate) in the form required by applicable law.
9.2.3 A Certificate of Non-Foreign Status (“FIRPTA Affidavit”).
9.2.4 If required by the Title Company, e vidence reasonably satisfactory to the Title Company that the person s executing the closing documents on behalf of Seller have full right, power and authority to do so.
9.2.5 Such other documents as may be reasonably necessary or appropriate to effect the consummation of the transactions which are the subject of this Agreement.
9.2.6 A counterpart of the Closing Statement.
ARTICLE X
Intentionally Deleted
ARTICLE XI
Default
11.1 Default by Seller . If the Closing and the transacti ons contemplated in this Agreement do not occur as provided in this Agreement by reason of the default of Seller, and said default is not cured within five (5) Business Days after notice from Buyer, Buyer may elect, by written notice to Seller and as the s ole and exclusive remedy of Buyer, to: (i) terminate this Agreement and receive the Deposit from the Title Company, and in such event Seller shall not have any liability whatsoever to Buyer under this Agreement except for the Surviving Obligations; or (ii) enforce specific performance of Seller’s obligations under this Agreement.
11.2 Default by Buyer. If Buyer should breach any of its covenants contained in this Agreement (and Seller shall not be in default hereunder), Seller may terminate this Agreement without further liability on Seller’s part and retain the Deposit as liquidated damages, and not as a penalty, it being understood that Seller’s actual damages in the event of such a default are difficult to ascertain and that such Deposit represents the parties’ best estimate of such damages. Seller shall not have any other remedy for any default by Buyer. BY INITIALING THIS SECTION 11.2, PURCHASER AND SELLER AGREE THAT IN EVENT OF DEFAULT BY PURCHASER:
(A) IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES; (B) AN AMOUNT EQUAL TO THE DEPOSIT WILL CONSTITUTE LIQUIDATED DAMAGES PAYABLE TO SELL ER; (C) THE PAYMENT OF THE
LIQUIDATED DAMAGES TO SELLER WILL CONSTITUTE THE EXCLUSIVE REMEDY
9 OF SELLER; (D) SELLER MAY RETAIN THAT PAYMENT AS LIQUIDATED DAMAGES;
AND (E) PAYMENT OF THOSE SUMS TO SELLER AS LIQUIDATED DAMAGES IS NOT
INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE.
Seller INITIALS: ____________ Buyer INITIALS: _______________.
ARTICLE XII
Brokers
12.1 Brokers. Buyer and Seller each represents and warrants to the other that it has not dealt with any person or entity entitled to a brokerage commission, finder ’s fee or other compensation with respect to the transaction co ntemplated in this Agreement. Buyer hereby agrees to indemnify, defend, and hold Seller harmless from and against any claims, demands, suits, obligations, payments, damages, losses, penalties, liabilities, costs and expenses (including but not limited to attorneys’ fees and costs) incurred by Seller by reason of any breach or inaccuracy of the Buyer’s representations and warranties contained in this Article XII. Seller hereby agrees to indemnify, defend, and hold Buyer harmless from and against any claims , demands, suits, obligations, payments, damages, losses, penalties, liabilities, costs and expenses (including but not limited to attorneys’ fees and costs) incurred by Buyer by reason of any breach or inaccuracy of Seller’s representations and warranties contained in this Article XII. Seller and Buyer agree that it is their specific intent that no broker shall be a party to or a third party beneficiary of this Agreement or the Deposit, that no broker shall have any rights or cause of action under this Agreement, and further that the consent of a broker shall not be necessary to any agreement, amendment, or document with respect to the transaction contemplated in this Agreement . The provisions of this Article XII shall survive Closing or the termination of this Agreement.
ARTICLE XIII
Conditions Precedent to Closing
13.1 In addition to any conditions provided in other provisions of this Agreement, Buyer’s obligation to purchase the Property is and shall be conditioned upon the following:
13.1.1 The due performance of Seller of each and every covenant, undertaking and agreement to be performed by Seller under this Agreement and the truth of each representation and warranty made in this Agreement by Seller.
13.2 Buyer may, at any time or times, at its election, waive any of the condition s to its obligations under this Agreement, but any such waiver shall be effective only if contained in a writing signed by Buyer. The failure of any of the conditions in Section 13.1 shall entitle Buyer, at its option, to cancel and terminate this Agreement by written notice to Seller, in which event the Deposit shall be returned to Buyer and, except as specifically provided in this Agreement, neither party shall have any rights or obligations to the other under this Agreement.
10 ARTICLE XIV
Miscellaneous
14.1 Right of Entry; Indemnification . Between the Effective Date and the Closing Date, Buyer and Buyer's employees, agents, contractors, subcontractors and consultants (collectively, “Buyer's Representatives ”) shall have the right to enter upon the Property, at reasonable times during ordinary business hours, upon notice to Seller at least three (3) business days prior to entry, to perform such non -destructive inspections, investigations, tests and studies.
Buyer, in per forming its non -destructive inspections, investigations, tests and studies hereunder shall not unreasonably interfere with the operation of the Property, and agrees to coordinate its activities on the Property with Seller in advance to avoid any such inter ference. Following any such non -destructive tests or inspections, Buyer agrees to promptly return any portions of the Property damaged or altered by Buyer during such tests or inspections to substantially the same condition which existed prior to such test or inspection. In the event Buyer fails to promptly restore Property in accordance with the preceding sentence, Seller may, in its sole and absolute discretion, restore the Property and all costs and expenses shall be paid immediately by Buyer upon dema nd by Seller. Buyer shall indemnify, defend and hold Seller, including its elected officials, agents, employees harmless from any and all claims, damages or liabilities arising out of or resulting from the entry onto or activities upon the Property by Buyer or Buyer's Representatives or liens arising from Buyer's review of the Property.
14.2 Nothing contained in this Agreement shall be construed as the City’s approval of any tentative tract map for the Property or grading/building permits relating to the Property.
14.3 All notices, consents, approvals and other communications which may be or are required to be given by either Seller or Buyer under this Agreement shall be properly given only if made in writing and sent by (i) certified mail, (ii) electronic mail by pd f or (iii) a nationally recognized overnight delivery service (such as Federal Express, UPS Next Day Air), with all delivery charges paid by the sender and addressed to the Buyer or Sellers, as applicable, as follows, or at such other address as each may r equest in writing. Such notice s shall be deemed received, (x) sent by certified mail, in which case notice shall be deemed delivered three (3) Business Days after deposit, postage prepaid, in the United States Mail, (y) if delivered by overnight delivery service, on the date of delivery and (z) if sent by facsimile transmission or electronic mail pdf, on the date of transmission. Notices to be sent on behalf of Buyer or Sellers may be sent by their respective counsel. The refusal to accept delivery shall constitute acceptance and, in such event, the date of delivery shall be the date on which delivery was refused. Said addresses for notices are to be as follows:
If intended for Buyer:
With a copy to:
If intended for Seller: Successor Agency to the Former Montebello Redevelopment Agency
Rene Bobadilla
1600 W Beverly Blvd.
Montebello, CA 90640
[email protected]
11 With a copy to: Arnold M. Alvarez-Glasman
Alvarez-Glasman & Colvin
13181 Crossroads Pkwy. North
Suite 400 – West Tower
City of Industry, California 91746
Email: [email protected]
14.4 Governing Law . This Agreement shall be governed by and construed i n accordance with the internal laws of the State of California, without regard to the conflict of laws principles thereof.
14.5 Headings. The captions and headings used in this Agreement are for convenience and reference only and in no way define or limit the scope or content of this Agreement or in any way affect its provisions.
14.6 Business Days. If any date set forth in this Agreement for the performance of any obligations of Seller or Buyer or for the delivery of any instrument, Document or notice as herein provided should be on a Saturday, Sunday or legal holiday, the compliance with such obligations or delivery shall be deemed acceptable on the next Business Day following such Saturday, Sunday or legal holiday. As used herein, the term “legal holiday” means any state or Federal holiday for which financial institutions or post offices are generally closed in the State of California, and the term “Business Day” means any day other than a Saturday, Sunday or legal holiday.
14.7 Counterpart/Electronic Copies. This Agreement may be executed in two or more counterpart copies, all of which counterparts shall have the same force and effect as if all parties hereto had executed a single copy of this Agreement. Handwritten signatures to this Agreement transmitted by telecopy or electronic transmission (for example, through the use of a Portable Document Format or “PDF” file) shall be valid and effective to bind the parties so signing. It is expressly agreed that each party to this Agreement shall be bound by its own telecopied or electronically transmitted handwritten signature and shall accept the telecopy or electronically transmitted handwritten signature of the other party to this Agreement. The parties hereto agree that the use of telecopied or electronic signatures for the execution of this Agreement shall be legal and binding and shall have the same full force and effect as if originally signed.
14.8 Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. Whenever reference is made in this Agreement to Seller or Buyer, such reference shall include the successors and assigns of such party under this Agreement.
14.9 Assignment. The terms, conditions and covenants of this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective nominees, successors, beneficiaries and assigns; provided, however, no conveyance, assignment or transfer of any interest whatsoever of, in, or to the Project or of this Agreement shall be made by Seller during the term of this Agreement. Buyer may assign all or any of its right, title and interest under this Agreement to any corporate , limited liability or partnership entity affiliated with, or related to Buyer (“Affiliate”). No such assignee shall accrue any obligations or liabilities hereunder until the effective date of such assignment. In addition to its right of assignment, Buyer shall also have the right, exercisable prior to Closing, to designate any Affiliat e, as the grantee or transferee of any or all of the conveyances, transfers and assignments to be made by Seller at Closing hereunder,
12 independent of, or in addition to, any assignment of this Agreement. In the event of an assignment of this Agreement by Buyer, its assignee shall be deemed to be the Buyer hereunder for all purposes hereof, and shall have all rights of Buyer hereunder (including, but not limited to, the right of further assignment), and the assignor shall be released from all liability here under. In the event that an Affiliate shall be designated as a transferee hereunder, that transferee shall have the benefit of all of the representations and rights which, by the terms of this Agreement, are incorporated in or relate to the conveyance in question.
14.10 Interpretation. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that both Seller and Buyer have contributed substantially and materially to the preparation of this Agreement.
14.11 Entire Agreement. This Agreement and the Exhibits attached hereto contain the final and entire agreement between the parties hereto with respect to the sale and purc hase of the Property and are intended to be an integration of all prior negotiations and understandings. Buyer, Seller and their agents shall not be bound by any terms, conditions, statements, warranties or representations, oral or written, not contained in this Agreement. No modification, amendment, discharge, waiver or change of this Agreement shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, amendment, discharge, waiver or change is sought. Writings signed by the attorney for such party shall not be effective for purposes of this Section. Failure by either party to explicitly retain any rights under this Agreement shall not be deemed a waiver of such rights.
14.12 Severability. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Agreement.
14.13 Survival. Except as otherwise specifically provided for in this Agreement (collectively, th e “Surviving Obligations ”), the provi sions of this Agreement and the representations and warranties herein shall not survive Closing or the termination of this Agreement, and if Closing occurs, shall be merged therein.
14.14 Exhibits. Exhibits A through D attached to this Agreement are, by this reference, incorporated in and made a part of this Agreement.
14.15 Time. Time is of the essence in the performance of each of the parties’ respective obligations contained in this Agreement.
14.16 Limitation of Liability. The obligations of Seller are binding only on Seller and Seller’s assets and shall not be personally binding upon, nor shall any resort be had to, the private properties of any of the affiliates, investment managers, property managers, partners, trustees, shareholders, beneficiaries, directors, or officers of Seller, or of any partners, officers, directors, shareholders or beneficiaries of any partners of Seller, or of any of Seller ’s employees or agents.
All documents to be executed by Seller shall also be deemed to contain the foregoing exculpation.
The provisions of this Section 14.15 shall survive Closing or the termination of this Agreement.
13 14.17 Prevailing Party. Should either party employ an attorney to enforce any of the provisions hereof, whether before or after Closing, and including any claims or actions involving amounts held in escrow , the non -prevailing party in any final judgment agrees to pay the other party’s reasonable expenses, including reasonable attorneys ’ fees and costs in or out of litigation and, if in litigation, trial, appellate , bankruptcy or other proceedings, expended or incurred in connection therewith, as determined by a court of competent jurisdiction. The provisions of this Section 18.15 shall survive Closing or the termination of this Agreement.
14.18 No Recording. Neither this Agreement nor any memorandum or short form of this Agreement shall be recorded or filed in any public land or other public records of any jurisdiction, by either party and any attempt to do so may be treated by the other party as a breach of this Agreement.
14.19 Waiver of Trial by Jury. Each of Seller and Buyer hereby waives trial by jury in any action, proceeding or counterclaim brought by such party against the other party on any matters whatsoever arising out of or in any way connected with this Agreement, including without limitation in connection with the enforcement of any remedy under any statute, emergency or otherwise.
[SIGNATURES APPEAR ON NEXT PAGE]
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the date or dates set forth below.
SELLER:
SUCCESSOR AGENCY TO THE FORMER
MONTEBELLO REDEVELOPMENT AGENCY, a
public body, corporate, and politic
By:
Name: Rene Bobadilla
Title: Executive Director
BUYER:
SAM ENTERTAINMENT GROUP, LLC
By:
Name:
Title:
By:
Name:
Title:
EXHIBITS PAGE
Exhibits
Exhibit A - Legal Description of Real Property
Exhibit B - Depiction of Real Property
Exhibit C - Form of Deed
1035482_11 A-1
EXHIBIT A
LEGAL DESCRIPTION
B-1
EXHIBIT B
DEPICTION OF REAL PROPERTY
(See Attached)
B-2
C-1
EXHIBIT C
FORM OF DEED
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CenterPoint Properties Trust
1808 Swift Drive
Oak Brook, Illinois 60523
Attn: Sharon Purcell
APN(s):
SPACE ABOVE THIS LINE FOR RECORDER’S USE
EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383
GRANT DEED
THE UNDERSIGNED GRANTOR declares:
DOCUMENTARY TRANSFER TAX is $ ______________. CITY TAX $ ________________.
Computed on full value of property conveyed, or
Computed on full value less value of liens or encumbrances remaining at time of sale, Unincorporated area City of ____________________________________________, and
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, the
SUCCESSOR AGENCY TO THE FORMER MONTEBELLO REDEVELOPMENT AGENCY, a public body, corporate, and politic (“Grantor”), hereby grants to SAM ENTERTAINMENT GROUP, LLC (“Grantee”), that certain real property as more particularly described in Exhibit “A” attached hereto and incorporated herein by this reference (the “Property”) all of its respective rights, title, and interest of Grantor.
[Signature on the following page]
C-2
IN WITNESS WHEREOF , Grantor has executed this Grant Deed on this ___ day of _________________, 2022 in Montebello, California.
SUCCESSOR AGENCY TO THE FORMER
MONTEBELLO REDEVELOPMENT AGENCY,
a public body, corporate, and politic
Rene Bobadilla, Executive Director
[Signature to be notarized]
C-3
C-4
EXHIBIT A
to Grant Deed
LEGAL DESCRIPTION
ATTACHMENT C
1 RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Successor Agency to the former
Community Redevelopment Agency
of the City of Montebello
1600
Beverly Boulevard
Montebello, California 90640
Attn: Executive Director
EXEMPT FROM RECORDING FEES
(Government Code §§6103 & 27383)
Space Above Line for Recorder’s Use Only
APN: 6349-007-917
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS ( “Declaration”) is made this ___ day of _______, 2 2__ by the SUCCESSOR AGENCY TO THE FORMER COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF MONTEBELLO, a public body, corporate, and politic (hereinafter “Declarant”), with reference to the following facts:
RECITALS
A. Declarant is the sole owner in fee simple of that certain real property located at 701- 705 W. Whittier Boulevard in the City of Montebello, County of Los Angeles, State of California, commonly referred to as Assessor’s Parcel Number 6349 -007-917 a s legally described in Exhibit A (the “Parcel”).
B. In anticipation of disposing of the Parcel, Declarant has complied with the requirements of the California Surplus Land Act (California Government Code § 54220 et seq., the “Act”) as follows:
1) On April 27, 2022 , the Successor Agency to the Former Community Redevelopment Agency of the City of Montebello (as governing body for Declarant) adopted Resolution No. 22-03 declaring the Parcel to be “surplus land” pursuant to Section 54221(b)(1) of the Act;
2) Declarant p repared a proposed form of “notice of availability” for the Parcel, submitted the proposed form to the Department of Housing and Community Development (“HCD”) for its review, and subsequently circulated an HCD-approved “notice of availability” to all statutorily entitled entities;
3) Declarant received one (1) notice of interest proposing residential housing, which was subsequently withdrawn during faith good faith negotiations at the request of the interested party;
4) Declarant did not receive any “notices of interests” proposing any residential uses within the statutory period of time; and
ATTACHMENT D
2 5) Declarant desires to move forward with disposing of the Parcel without further regard for the Act ; provided however that to do so, the Declarant must first comply the requirements of Section 54233 by recording the below covenant and restriction on the Parcel in a form approved by HCD.
COVENANTS AND RESTRICTIONS
NOW THEREFORE, in consideration of the above recitals , Declarant hereby declares that the Parcel is subject to the following land use covenants or restrictions, which shall run with the land and shall be enforceable against any owner who violates the covenant or restriction, and each successor -in-interest who continues the violation , by any of the ent ities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the Government Code:
If ten (10) or more residential units are developed on the Parcel, not less than 15 percent of the total number of residential units developed on the Parcels shall be sold or rented at affordable housing cost, as defined in Section 50052.5 of the California Health and Safety Code, or affordable rent, as defined in Section 50053 of the California Health and Safety Code, to lower income households, as defined in Section 50079.5 of the California Health and Safety Code. Rental units shall remain affordable to and occupied by lower income households for a period of 55 years for rental housing and 45 years for ownership housing from the date of recordation of this R estrictive Covenant . The initial occupants of all ownership units shall be lower income households, and the units shall be subject to an equity sharing agreement consistent with the provisions of paragraph (2) of subdivision (c) of Section 65915 of the California Government Code.
IN WITNESS WHEREOF, Declarant has executed this Restrictive Covenant on the day and year first above written and agrees to be bound by the terms and provisions hereof.
DECLARANT:
SUCCESSOR AGENCY TO THE FORMER
COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF MONTEBELLO, a public
body, corporate, and politic
By:
René Bobadilla, Executive Director
Date: _________________________________
Exhibit A
Legal Description
ITEM # 11
CITY OF MONTEBELLO
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA STAFF REPORT
TO:
Honorable Mayor and City Council Members
FROM:
René Bobadilla, City Manager
BY:
James Enriquez, Director of Public Works
SUBJECT: NOTICE OF COMPLETION - CP NO. 881, VARIOUS STREETS
IMPROVEMENT PROJECT
DATE: November 16, 2022
RECOMMENDATION(S):
It is recommended that the City Council:
1. Accept the Various Streets Improvement Project (CP No. 881), as completed by Sequel Contractors, Inc.; and
2. Approve the final contract amount with Sequel Contractors, Inc. for the construction of the Project in the amount of $898,308, including change orders; and
3. Authorize the City Clerk to execute, verify and file the Notice of Completion (Attachment A) with the Los Angeles County Registrar-Recorder; and
4. Authorize the City Manager to release the retention payment due to Sequel Contractors, Inc. following the mandatory waiting period from the date the Notice of Completion is recorded; and
5. Approve the Final Total Project Budget (Attachment B); and
6. Take such additional, related, action that may be desirable.
FISCAL IMPACT:
The approved budget for the Various Streets Improvements Project totaled $1,821,151 and was funded by a combination of Gas Tax ($1,105,000), Road Maintenance and Rehabilitation Act/SB1 ($545,000), and Measure M ($171,151) funds.
The total project budget and expenses listed in the Final Total Project Budget
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
(Attachment B) shows the breakdown of the project activities and expenses. The project was completed at a total cost of $1,089,838, $731,313 under budget. The remaining funds will be available for re-programming for other projects, with unspent appropriations falling back to fund balance in the respective funds (Gas Tax, RMRA/SB, Measure M).
BACKGROUND/DISCUSSION:
The Various Streets Improvement Project improved the following streets: 1) Minson Way from Sycamore Street to the Cul-de-Sac; 2) Allston Street from West City Limit to Olympic Boulevard; 3) Medford Street from Allston Street to 18th Street; 4) Millis Street from Kensington Way to Medford Street; and 5) Kensington Way from Olympic Boulevard to Allston Street
The Project entailed the removal and reconstruction of existing concrete sidewalks, curb and gutters, cross gutters, concrete driveway approaches and concrete curb ramps. The project also included cold mill of existing AC pavement and repaving the streets with Asphalt Rubber Hot Mix.
The City Council at its meeting of October 27, 2021, awarded a contract to Sequel Contractors, Inc. in the amount of $771,461 to construct the project and authorized the Director of Public Works to review and approve change orders within a 25% contingency of the contract amount. The contract is a unit priced contract and payment is calculated based on the actual quantities measured in the field. The actual quantities measured in the field resulted in an additional payment of $126,847, paid from the previously authorized contingency funds. Sequel’s final contract amount, including change orders, was $898,308.
On November 24, 2021, a Letter of Engagement under Master Retainer Agreement (Agreement No. 3920) was executed with Onward Engineering for construction management and inspection services for this project in the amount of $49,450. The contractor was granted additional work days requiring Onward Engineering to provide additional services in the amount of $11,550. The final fee for Onward Engineering for this project was $61,000.
ENVIRONMENTAL IMPACT:
There is no environmental impact.
ANALYSIS:
The Contractor completed construction of this project on March 11, 2022. The City Engineer has reviewed the daily inspection reports and determined that the project was completed satisfactorily and in accordance with the project plans and contract specifications. The contractor’s final accounting was reviewed and approved by the City Engineer.
Notice of Completion
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
Pursuant to Civil Code Section 3093, when a Capital Improvement Project is completed, a Notice of Completion must be prepared and filed with the County Recorder’s Office. In compliance with this section of the Civil Code, the City Engineer has prepared the required Notice of Completion for the City Council to accept the project as completed; and to authorize the City Clerk to execute, verify and file the Notice of Completion for recordation with the County Recorder’s Office. The final retention payment will be released to the contractor forty-five (45) days after recordation of the Notice of Completion with the Los Angeles County Registrar-Recorder.
SUMMARY:
Staff is recommending that the City Council accept the Project as complete, approve the final Project budget and expenditures, including change orders, authorize the City Clerk to execute, verify and file the Notice of Completion with the Los Angeles County Registrar-Recorder and authorize the City Manager to release the retention payment due to Sequel Contractors, Inc. following the mandatory waiting period from the date the Notice of Completion is recorded.
ATTACHMENT(S)
1. Attachment A - Notice of Completion
2. Attachment B - Final Total Project Budget
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RECORDING REQUESTED BY ATTACHMENT A
CITY OF MONTEBELLO
AND WHEN RECORDED MAIL TO
NAME CITY OF MONTEBELLO
CITY CLERK
STREET 1600 W Beverly Blvd.
ADDRESS
CITY Montebello,
STATE CA
ZIP 90640
SPACE ABOVE LINE FOR RECORDERS USE
________________________________________________________________________________________________________________________________________________
NOTICE OF COMPLETION
Notice pursuant to Civil Code Section 3093, must be filed within 10 days after completion. (See reverse side for complete requirements.) Notice is hereby given that:
1. The undersigned is owner or corporate officer of the owner of the interest or estate stated below in the property hereinafter described:
2. The full name of the owner is City of Montebello
3. The full address of the owner is 1600 W Beverly Bl vd., Montebello, CA 90640
4. The nature of the interest or estate of the owner is: in fee.
(if other than Fee, strike “In fee” and insert, for example, “purchaser under contract of purchase”, or “lessee”)
5. The full names and full addresses of all persons, if any, who hold title with the undersigned as joint tenants or as tenants in common are:
NAMES ADDRESSES
__________________________________________________ _____________________________________________
6. The full names and addresses of the predecessors in interest of the undersigned, if the property was transferred subsequent to the commencement of the work or improvements herein referred to:
NAMES ADDRESSES
__________________________________________________ __________________________________________
7. A work of improvement on the property hereinafter d escribed was completed on March 11, 2022. The gener al scope of work consisted of the removal and reconstruction of existing sidewalks, curb and gutters, drive approaches, curb ramps, cold milling and repaving the existing streets, adj ustments of utility covers, installation of pavemen t markings and striping, curb painting, installation of traffic detection loops and installation of a Bio-swell retention basin.
8. The name of the contractor, if any, for such work of improvement was Sequel Contractors, Inc.
October 27, 2021
(If no contractor for work of improvement as a whole, insert “None”) (Date of Contract)
9. The property on which said work of improvement was completed is in the City of Montebello County of Lo s Angeles, State of CA, and is described as follows : Various Streets Improvements Project CP 881
Director of Public Works / City Engineer, City of Montebello (Signature of Owner or corporate officer of Owner named in paragraph 2, or his agent)
VERIFICATION
I, the undersigned, say: I am the City Clerk of the City of Montebello , the declarant of the foregoing Notice of Completion:
I have read said Notice of Completion and know the contents thereof; the same is true to my own knowle dge. I declare under penalty of perjury that the foregoing is true and correct.
Executed on_________________ , 2021 at City of Mont ebello, Montebello, CA __________________________________________________ (Personal signature of the individual who is swearing that the contents of the Notice of Completion are true)
DO NOT RECORD
REQUIREMENTS AS TO NOTICE OF COMPLETION
A notice of completion must be filed for record WIT HIN 10 DAYS after completion of the work of improvement (to be computed exclusive o f the day of completion), as provided in Civil Code Section 3093.
The “owner” who must file for record a notice of co mpletion of a building or other work of improvement means the owner (or his successor in -interest at the date the notice is filed) on whose behalf the work was done, though hi s ownership is less than the fee title.
For example, if A is the owner in fee, and B, lesse e under a lease, causes a building to be constructed, then B, or whoever has succeeded to hi s interest at the date the notice is filed, must file the notice.
If the ownership is in two or more persons as joint tenants or tenants is common, the notice may be signed by any one of the co-owners (i n fact, the foregoing form is designed for giving of the notice by only one cotenant), but the names and addresses of the other co-owners must be stated in paragraph 5 of the form.
Note that any Notice of Completion signed by a succ essor in interest shall recite the names and addresses of his transferor or transferors.
In paragraphs 3, 5 and 6, the full address called f or should include street number, city, county and state.
As to paragraphs 7 and 8, this form should be used only where the notice of completion covers the work of improvement as a whol e. If the notice is to be given only of completion of a particular contract, where the work of improvement is made pursuant to two or more original contracts, then this form must be modified as follows: (1) Strike the words “A work of improvement” from paragraph 6 and insert a general statement of the kind of work done or materials furnished pursuant t o such contract (e.g., “The foundations for the improvements”); (2) Insert the name of the contractor under the particular contract in paragraph 7.
In paragraph 8 of the notice, insert the name of th e contractor for the work of improvement as a whole. No contractor’s name need be given if there is no general contractor, e.g., on so-called “owner-builder jobs.”
In paragraph 9, insert the full, legal description, not merely a street address or tax description. Refer to deed or policy of title insu rance. If the space provided for description is not sufficient, a rider may be attached.
In paragraph 10, show the street address, if any, a ssigned to the property by any competent public or governmental authority.
This standard form covers most usual problems in th e field indicated. Before you sign, read it, fill in all blanks, and make changes proper to your transaction. Consult a lawyer if you doubt the form’s fitness for your purpose.
ATTACHMENT B
VARIOUS STREETS IMPROVEMENTS PROJECT
C.P. NO. 881
FINAL TOTAL PROJECT BUDGET
Project Expenses Final Cost
Design - Infrastructure Engineers $ 130,530 Original Construction Contract (Sequel Contractors, Inc.) - Awarded 10/27/2021 $ 771,461
Construction Change Orders (Paid from 25% Contingency) $ 126,847 Construction Management/Inspection (Onward Engineers) – Administrative Authorization on 11/24/2021 $ 49,450 Additional Services (Recommended) $ 11,550 Total Project Cost: $ 1,089,838
Project Funding Budget Amount
Gas Tax (Fund 200) - (Appropriated FY 21/22 CIP Budget) $ 1,105,000 SB1 RMRA (Fund 201) - (Appropriated FY 21/22 CIP Budget) $ 545,000 Measure M (Fund 222) - (Appropriated FY 21/22 CIP Budget) $ 130,000 Measure M (Fund 222) - (Appropriated on Agenda 5/11/22) $ 41,151 Total Project Budget: $ 1,821,151
Note: The project was completed $731,313 under budget and this amount will be made available for other projects.
ITEM # 12
CITY OF MONTEBELLO
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA STAFF REPORT
TO:
Honorable Mayor and City Council Members
FROM:
René Bobadilla, City Manager
BY:
James Enriquez, Director of Public Works
SUBJECT: AUTHORIZATION OF FINAL INVOICE PAYMENT FOR AGREEMENT NOS. 3504 AND 3066 - INFRASTRUCTURE ENGINEERS
DATE: November 16, 2022
RECOMMENDATION(S):
It is recommended that the City Council:
1. Authorize payment of final invoices for Agreement Nos. 3504 and 3066 with Infrastructure Engineers in the aggregate amount of $208,654; and
2. Reaffirm the termination of Agreement Nos. 3504 and 3066 with Infrastructure Engineers; and
3. Take such additional, related, action that may be desirable.
FISCAL IMPACT:
The adopted Fiscal Year 2022-23 budget included sufficient funds for the payment of the recommended invoices in the aggregate amount of $208,654. No budget amendment is required at this time.
BACKGROUND/DISCUSSION:
Agreement No. 3504 with Infrastructure Engineers was approved by the City Council on December 19, 2018 for building and safety services. Amendment No. 1 to this agreement was approved on June 23, 2021.
Agreement No. 3066 with Infrastructure Engineers was approved by the City Council on
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
March 25, 2015 for general engineering services, including staff augmentation and engineering services for projects. The Agreement was for three years, with options for two one-year extensions for a total maximum of 5 years of contracted services. The extensions were exercised resulting in an expiration date of March 15, 2020. The Fourth Amendment to this agreement was approved by the City Council on March 25, 2020 extending the term of the Agreement on a month-to-month basis.
ENVIRONMENTAL IMPACT:
N/A
ANALYSIS:
Under the terms of Agreement No. 3504, Infrastructure Engineers was issued a Notice of Termination on August 29, 2022 and services ceased shortly thereafter. Staff has been working with Infrastructure Engineers to reconcile final invoices and has determined that the final balance due for the services provided per Agreement No. 3504 is $68,056.
Under the terms of Agreement No. 3066, Infrastructure Engineers was issued a Notice of Termination on August 29, 2022 and services ceased shortly thereafter. Staff has been working with Infrastructure Engineers to reconcile final invoices and has determined that the final balance due for the services provided per Agreement No. 3066 is $140,598.
SUMMARY:
Upon approval by the City Council of the recommended actions, staff will coordinate the payment of the final invoices to Infrastructure Engineers in the aggregate amount of $208,654. This will compensate Infrastructure Engineers in full for services rendered per the terms of Agreement Nos. 3504 and 3066, up to the final date of service.
ATTACHMENT(S)
1. Attachment A - Notice of Termination of Agreement No. 3066
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ITEM # 13
CITY OF MONTEBELLO
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA STAFF REPORT
TO:
Honorable Mayor and City Council Members
FROM:
René Bobadilla, City Manager
BY:
David Sosnowski, Director of Recreation and Community Services SUBJECT: APPROVAL OF AGREEMENT NO. 4047 WITH KTU&A (DBA KTUA)
FOR THE RIO HONDO RIVER ACCESS IMPROVEMENT PROJECT
DESIGN SERVICES
DATE: November 16, 2022
RECOMMENDATION(S):
It is recommended that the City Council:
1. Approve Agreement No. 4047 with KTU&A (dba “KTUA”) for design and architectural services for the Rio Hondo River Access Improvement Project (RH Project); and
2. Find and determine that the Rio Hondo Project is exempt from CEQA pursuant to Categorical Exemption Section 15301 (Class – 1, Existing Facilities) and Section 15311 (Class – 11, Accessory Structures) of the CEQA Guidelines; and
3. Authorize the City Manager to execute the Agreement on behalf of the City; and
4. Amend the Fiscal Year 2022-23 budget by increasing expenditure and revenue appropriations by $477,750 in Measure A – Parks Fund 221 (Account No. 221- 99-6040.96, (Measure A Local, Other Contract Services - Engineering Design Services) and 221-99-3630.60 (Measure A Local, Special Revenue Measure A Local); and
5. Take such additional, related action that may be desirable.
FISCAL IMPACT:
The City of Montebello (City) was awarded Los Angeles County Measure A Competitive
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
Grant funding in the amount of Four Hundred Seventy Seven Thousand Seven Hundred Fifty Dollars ($477,750) to complete the Rio Hondo (RH) Project (Attachment A). The total not-to-exceed cost for services from KTUA, to design and prepare construction documents, for the RH Project is One Hundred and Eighteen Thousand Nine Hundred Seventy Five Dollars ($118,975). The cost of the KTUA agreement is an eligible expense and will be reimbursed by grant funding.
The City Council is being asked to amend the Fiscal Year 2022-23 adopted budget to increase expenditure and revenue appropriations by $477,750 in Measure A – Parks Fund 221 (Account No. 221-99-6040.96, Measure A Local, Other Contract Services - Engineering Design Services, and 221-99-3630.60,Measure A Local, Special Revenue Measure A Local).
BACKGROUND/DISCUSSION:
In November 2016, Measure A (The Safe, Clean Neighborhood Parks, Open Space Beaches, River Protection, and Water Conservation Measure) was approved by voters in Los Angeles County, and replaces the expiring Proposition A (non-Metro Local Return Funds Proposition A) to ensure parks, open spaces, beaches, and waterways are built and protected for future generations. The last round of competitive grant funding consisted of $33.4 million dollars available for park development, water conservation projects, and parkland acquisition.
On October 13, 2021, City Council approved Resolution 21-82 authorizing the application for a Los Angeles County Regional Park and Open Space District (RPOSD) Measure A Competitive Grant. Staff applied for the Regional Recreation Facilities, Multi-Use Trails and Accessibility Program which aims to improve, connect, and protect regional recreational facilities and trails.
On June 2, 2022, the City accepted the award of competitive grant funds and entered into an agreement with Los Angeles County RPOSD for the RH Project. The RH Project aims to improve connections from the Rio Hondo River entrance to Beverly Blvd. and Grant Rea Park. The project will include improvements to lighting and landscaping, as well as the addition of amenities such as benches, bicycle racks, horse hitching posts, shade structures, and an electronic sign.
On June 22, 2022, the City Council approved agreements with two consultants, KOA Corporation and Mark Thomas, for on-call architectural and engineering design services as a result of Request for Proposals (RFP) No. 22-8. Staff solicited quotes from these two consultants, in addition to KTUA and Transtech Engineers, Inc. for the RH Project.
Staff received one proposal from KTUA. Both KOA Corp. and Mark Thomas cited the project not matching their expertise and declined to provide a proposal, while Transtech Engineers, Inc. did not respond to the request. City staff desire to move forward with the proposal from KTUA based on the responses received.
Therefore, staff is recommending approval of an agreement with KTUA to provide the design, schematics, architectural services and construction documents for the RH
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
Project. Staff have previously worked with KTUA to prepare the City’s Parks Master Plan and Facilities Needs Assessment. KTUA has demonstrated the desired ability, expertise and knowledge to provide design and architectural services for this project.
KTUA is providing the City with a professional service that entails a high degree of specialized technical skill and therefore does not require conformance with standard bidding procedures per Montebello Municipal Code 3.21.025 (“Conformance with Bidding Procedures”). Services will include a topographical survey, site demolition plans, irrigation plans, schematics, and final construction documents.
ENVIRONMENTAL IMPACT:
It is recommended that the City Council find and determine that the RH Project is categorical exempt from further environmental review. As a part of the grant guidelines, the City is required to comply with applicable provisions of the California Environmental Quality Act (CEQA). Based on the facts presented here, the RH Project is exempt under CEQA §15301(c) (Class 1- Existing Facilities) and § 15311 (Class 11 - Accessory Structures). Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination such as the addition of bicycle facilities and other similar alterations that do not create additional automobile lanes.
Class 11 consists of construction, or placement of minor structures accessory to existing commercial, industrial or institutional facilities, including on-premise signs.
ANALYSIS:
N/A
SUMMARY:
Staff recommends the City Council approve Agreement No. 4047 with KTUA for design and specifications of the Rio Hondo River Access Improvement Project, and appropriation of $477,750 in the Measure A – Parks expenditure and revenue Fund 221 accounts (Account No. 221-99-6040.96, Measure A Local, Other Contract Services - Engineering Design Services, and 221-99-3630.60,Measure A Local, Special Revenue Measure A Local) for the timely completion of the RH Project; find the RH Project categorically exempt from further CEQA review pursuant to §15301 (Class – 1, Existing Facilities) and §15311 (Class – 11, Accessory Structures) of the CEQA Guidelines; and authorize the City Manager to execute the Agreement (Attachment A), attached hereto in substantial form, on behalf of the City.
ATTACHMENT(S)
1. Attachment A - Agr. No. 4047 with KTUA
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
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CITY OF MONTEBELLO
PROFESSIONAL SERVICES AGREEMENT NO. 4047
WITH KTU & A
THIS PROFESSIONAL SERVICES AG REEMENT (“Agreement”) is made and entered into on November 16, 2022 (“Effective Date”), by and between the CITY OF MONTEBELLO, a California municipal corporation (the “CITY”) and KTU&A (dba “K TUA”) a California registered corporation (644360) (the “CONSULTANT”). The CITY and the CONS ULTANT are sometimes referred to herein individual as the “Party,” and jointly as the “Parties.”
RECITALS
WHEREAS, the CITY desires to retain a qualified professional consultant to provide design and architectural services in the CITY; and
WHEREAS, the CONSULTANT represents that it is fully qualified to perform s u c h services by virtue of its experience and the training, education and expertise of its principals and employees.
NOW THEREFORE, in consideration of performance by the Parties of the covenants and conditions herein contained, the Parties hereto agree as follows:
SECTION 1. INCORPORATION OF RECITALS AND OTHER CONTRACT DOCUMEN TS
a. The above-referenced Recitals constitute a material part her eof and shall hereby be incorporated by reference. Moreover, this Agreement consists of the following documents, in order of precedence, all of which are incorporated herein and m ade part of this Agreement, as though fully set forth herein:
1. This Agreement and its Exhibit, including scope of work, fee schedules, and any and all addenda or supplemental agreements.
2. All other documents, including but not limited to all applic able bonds, insurance certificates, permits, notices, schedules, forms, certifications, and affidavits.
b. These documents shall be collectively referred to herein as the “Contract Documents.” In the event of a conflict among the Contract Documents, the or der of precedence list above shall apply.
SECTION 2. SERVICES / COMPENSATION.
a. To the extent of a conflict between the terms of this Agreem ent and that set forth in any exhibits or attachments hereto, the terms of this Agreement shall govern.
b. The CONSULTANT shall provide to the CITY all labor, equipment, materials and incidental necessary to conduct a feasibility study as set fort h fully in the scope of work, as such is set forth fully in Exhibit “A” attached hereto and incorporated fully herein by this referen ce (hereinafter “Compensation and Professional Services”).
c. The CONSULTANT shall be compensated for performance of the P rofessional Services as set forth in the Schedule of Compensation attached hereto as Exhibit “A” and incorporated fully herein by this reference (“Compensation and Professional Services”). The CONSULTANT
PROFESSIONAL SERVICES AGREEMENT NO. 4047
shall provide an itemized billing statement to the CITY each mo nth for Professional Services performed. The CONSULTANT shall no incur fees or costs which e xceed the Compensation without the prior written consent of the CITY.
SECTION 3. TERM.
a. This Agreement shall commence upon issuance of a written “No tice to Proceed” (as further defined below) by the CITY and shall expire one (1) yea r from the Effective Date, unless terminated earlier as hereinafter provided. This Agreement may be extended for up to two (2), one-year extensions upon such terms and conditions mutually agr eed upon by the Parties in writing.
b. Notice to Proceed. Any work or service contemplated under th is Agreement shall not commence until the CITY has issued a written Notice to Proceed issued by CITY’s applicable, department head.
SECTION 4. PERFORMANCE.
a. The CONSULTANT shall at all times, faithfully, competently, and to the best of its ability, experience, and talent, perform all tasks described herein.
b. The CONSULTANT shall employ, at a minimum, generally accepte d standards and practices utilized by companies engaged in providing similar se rvices, as are required of Consultant hereunder, in meeting its obligations under this Agreement.
c. The CONSULTANT shall be knowledgeable of and subject to all CITY ordinances, rules and regulations, standard operating procedures, and the supervisory chain of command.
d. The CONSULTANT shall have the right to retain, subject to th e CITY's approval, additional individuals, consultants or subconsultants to assist in the completion of services as herein defined. Compensation for additional individuals, consul tants or subconsultants shall be the sole and exclusive responsibility of the CONSULTANT.
e. The CONSULTANT shall retain all original reports, fiel d and office notes, correspondence, calculations, maps, and other documents s pecifically related to the services provided by the CONSULTANT pursuant to this Agreement, other than documents which are exempt from disclosure pursuant to the attorney-clien t privilege or any other law. Said documents shall be made available for inspection by the CITY upon request.
SECTION 5. WORK PRODUCT.
a. The CONSULTANT hereby agrees that all non-proprietary work p roduct produced pursuant to this Agreement, and provided to the CITY during and upon completion of this Agreement, shall be the property of the CITY, and ownership of said work product shall be retained by the CITY. The CONSULTANT may take and retain copies of such written products as desired, but no such written products shall be the subject o f a copyright application by the CONSULTANT.
b. All data, documents, discussion, or other information develo ped or received by the CONSULTANT or provided for performance of this Agreement are de emed confidential and shall not be disclosed by the CONSULTANT without prior written consent by the CITY. The CITY shall grant such consent if disclosure is legally required . All such written products shall be
PROFESSIONAL SERVICES AGREEMENT NO. 4047
returned to the CITY upon the termination or expiration of this Agreement. The CONSULTANT agrees that the covenants contained in this Section shall survi ve the expiration or termination of this Agreement.
SECTION 6. EXTRA SERVICES.
No extra services over and above the Compensation shall be rend ered by the CONSULTANT under this Agreement unless such extra services first shall hav e been duly authorized in writing by the CITY’s City Manager (the “City Manager”).
SECTION 7. CITY SUPERVISION.
The City Manager shall have the right of general supervision of all work performed by the CONSULTANT and shall be the CITY’s agent with respect to obtain ing the CONSULTANT’s compliance hereunder. No payment for services rendered under t his Agreement shall be made without the prior approval of the City Manager.
SECTION 8. TERMINATION.
In the event that either Party hereto fails or refuses to perfo rm any of the provisions of this Agreement at the time and in the manner required, the non-defau lting party shall give the defaulting party written notice of the default, the nature of t he default, and of the steps necessary to cure the default.
a. Termination for Cause. In the event that any of the provisio ns of the Agreement are violated by either party, the non-defaulting Party may terminat e the Agreement by serving written notice upon the other Party, listing the violation(s) a nd its intent to terminate such Agreement unless within ten (10) days after the serving of such notice, such violation shall cease or be rectified, the contract shall upon the expiration o f an additional thirty (30) days cease and terminate. Violations by the CONSULTANT which cannot be corrected within ten (10) days, said contract shall at the option of the CITY cease and terminate upon the giving of like notice. In the event of any such termination for default by the CONSULTANT, the CITY may take over the work and prosecute the same to completion by contract or otherwise for the account and at the expense of the CONSULTANT. The CONSULTANT a nd his sureties shall be liable to the CITY for any excess cost occasioned in the eve nt of any such termination. This change shall not be construed to prevent the termination, for o ther causes authorized by law or other provisions of this contract. In the event of a terminati on for cause, the CONSULTANT shall only be entitled to the Compensation for those Profession al Services satisfactory performed on or before the effective date of termination.
b. Termination for Convenience. The CITY shall have the option , at its sole discretion and without cause, to terminate this Agreement in whole, or in part, by giving ten (30) business days’ written notice to the CONSULTANT. Upon the termination of this Agreement as provided herein, the CITY shall provide to the CONSULTANT the part of Co mpensation which would otherwise be payable to the CONSULTANT for services the CONSULT ANT had completed as of the date of termination, less the amount of all previous pay ment with respect to the Compensation. Further, upon such a termination for convenience by the CITY, the Parties agree that the CONSULTANT shall be reimbursed for any “non -refundable” costs that the CONSULTANT has incurred for its services under this Agreement, provided that: (1) such “non- refundable” costs were incurred by the CONSULTANT prior to the date of termination, and (2) that the CONSULTANT provides the CITY with adequate proof that the CONSULTANT incurred the costs, and is unable to be seek a refund for such costs. Such “non-refundable”
PROFESSIONAL SERVICES AGREEMENT NO. 4047
costs may include, but are not limited to, travel reservations incurred by the CONSULTANT for its performance of services under this Agreement. The CONSULTAN T agrees to cease all work under this Agreement on or before the effective date of any notice of termination.
SECTION 9. EMPLOYMENT OF CITY EMPLOYEES.
No regular employee of the CITY shall be employed by the CONSUL TANT during the term of this Agreement.
SECTION 10. NON-LIABILITY OF CITY OFFICIALS AND EMPLOYEES.
No official or employee of the CITY shall be personally liable to the CONSULTANT in the event of any default or breach by the CITY, or for any amount which m ay become due to the CONSULTANT.
SECTION 11. INDEPENDENT CONSULTANT.
a. The CONSULTANT is and shall, at all times, remain as to the CITY a wholly independent consultant. Neither the CITY nor any of its electe d officials, officers, employees, or agents shall have control over the conduct of the CONSULTANT ex cept as expressly set forth in this Agreement. The CONSULTANT shall not at any time or in any manner represent that he or she is in any manner an elected official, officer, employee, or agent of the CITY. No employee benefits shall be available to the CONSULTANT in conne ction with the performance of this Agreement. Except as provided in this Agreement, the C ITY shall not pay salary, wages, or other compensation to the CONSULTANT for performance hereunder for the CITY, the C I T Y s h a l l n o t b e l i a b l e f o r c o mpensation to the CONSULTANT, the CONSULTANT’s employees or the CONSULTANT’s subconsultants for injury or sick ness arising out of performing services hereunder.
b. The parties further acknowledge and agree that nothing in th is Agreement shall create or be construed to create a partnership, joint venture, employment relationship or any other relationship except as set forth in this Agreement.
c. The CITY shall not deduct from the Compensation paid to the CONSULTANT any sums required for Social Security, withholding taxes, FICA, state di sability insurance or any other federal, state or local tax or charge which may or may not be i n effect or hereinafter enacted or required as a charge or withholding on the compensation paid to the CONSULTANT. The CITY shall have no responsibility to provide the CONSULTANT, its emp loyees or subconsultants with workers’ compensation insurance or any other insurance.
SECTION 12. CALPERS ANNUITANTS AND ELIGIBILITY INDEMNITY.
a. If the CONSULTANT is a California Public Employees’ Retireme nt System (“CalPERS”) annuitant, the CONSULTANT must provide the City with written no tification of such fact a minimum of 14 calendar days prior to commencement of services u nder this Agreement.
Failure to provide such notification may result in termination of the Agreement, and any penalties or other costs relating thereto shall be borne by the CONSULTANT. If this Agreement remains in place, the CONSULTANT shall execute any amendment(s) to this Agreement requested by the City in order to comply with all laws and regu lations applicable to CalPERS annuitants.
b. In the event that the CONSULTANT or any employee, agent, or subconsultant of the
PROFESSIONAL SERVICES AGREEMENT NO. 4047
CONSULTANT providing services under this Agreement claims or is determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in CalPERS as an employee of the CITY, the CONSULTANT shall indemnify, defend, and hold harm less the CITY for the payment of any employee and/or employer contributions for CalP ERS benefits on behalf of the CONSULTANT or its employees, agents, or subconsultants, as well as for the payment of any penalties and interest on such contributions, which would o therwise be the responsibility of the CITY.
c. Notwithstanding any other agency, state or federal policy, r ule, regulation, law or ordinance to the contrary, the CONSULTANT and any of its employ ees, agents, and subconsultants providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by the CITY, including but not limited to eligibil ity to enroll in PERS as an employee of the CITY and entitlement to any contribution to be paid by the CITY for employer contribution and/or employee contributions for PERS benefits.
SECTION 13. LEGAL RESPONSIBILITIES.
The CONSULTANT shall at all times observe and comply with all a pplicable laws, ordinances, codes, and regulations of the federal, state, and local governm ents including, but not limited to the Montebello Municipal Code. The CITY, and its appointed or elected officers, employees, or agents, shall not be liable at law or in equity occasioned by f ailure of the CONSULTANT to comply with this section.
SECTION 14. INDEMNIFICATION.
The CONSULTANT agrees to, and shall, only to the extend authori zed pursuant to California Civil Code section 2782.8, defend, indemnify, protect and hold harmless, the CITY, its elected and appointed boards, officers, officials, employees, and agent s (the “Indemnitees”) from and against claims, demands, lawsuits, defense costs, civil, penalt ies, expenses, causes of action, and judgments at law or in equity (the “Claims”), or liability in which the CITY, and the Indemnitees may sustain or incur or which may be imposed upon t hem for injuries or deaths of persons, or damage to property to the extent the Claims arise o ut of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT. It is further understood by the Parties, that the CONSULTANT has no obligation to pay for any of the Indemnitees’ defense related costs prior to a final determination of liability or to pay any amount that exceeds the CONSULTANT’s finally determined percentage of liability based u pon the comparative fault of the CONSULTANT.
SECTION 15. INSURANCE COVERAGE.
a. During the term of this Agreement, the CONSULTANT shall carr y, maintain, and keep in full force and effect insurance against claims for death or inj uries to persons or damages to property that may arise from or in connection with CONSULTANT’s performance of this Agreement. Such insurance shall be of the types and in the amounts as set forth below:
Commercial General Liability (CGL) : Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis for bodily injury and pro perty damage, including products-completed operations, personal injury, and a dvertising injury, with limits no less than $2,000,000 per occurrence. If a general ag gregate limit applies, the limit shall be twice the required occurrence limit.
PROFESSIONAL SERVICES AGREEMENT NO. 4047
Automobile Liability Insurance: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if CONSULTANT has no owned auto s, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 p er accident for bodily injury and property damage.
Worker's Compensation insurance as required by the laws of the State of California, with Statutory Limits, and Employer’s Liability Ins urance with limit of no less than $1,000,000 per accident for bodily injury or disease.
Professional Liability insurance appropriate to the CONSULTANT’S profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.
b. If the CONSULTANT maintains higher limits than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
c. The CONTACTOR shall require each of its subconsultants, if a ny, to maintain insurance coverage that meets all of the requirements of this Agreement.
d. The policy or policies required by this Agreement shall be i ssued by an insurer admitted in the State of California and with a current rating of at leas t A:VII in the latest edition of Best's Insurance Guide.
e. Each insurance policy required above shall state that covera ge shall not be canceled, except after thirty (30) days’ prior written notice (ten [10 ] days for non-payment) has been given to the CITY. The CONSULTANT agrees that if it does not keep the aforesaid insurance in full force and effect the CITY may either (i) immediately termi nate this Agreement for Cause; or (ii) take out the necessary insurance and pay, at the CONSULTAN T’s expense, the premium thereon.
f. Evidence of Insurance prior to commencement . The Contractor shall provide to the CITY Certificate(s) of Insurance evidencing such coverage toget her with copies of the required policy endorsements no later than five (5) business days prior to commencement of service and at least fifteen (15) business days prior to the expiration of any policy. Unreasonable failure to provide such evidence may be cause for termination of the Agree ment as provided herein or delay the services’ commencement date. The evidence of insuranc e shall be U.S. mail or email to:
City of Montebello
Attn: Risk Manager
1600 West Beverly Boulevard
Montebello, CA 90640
Email: [email protected]
Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non- renewed, or materially changed for any reason, without thirty ( 30) days prior written notice thereof given by the insurer to the CITY by U.S. mail, or by pe rsonal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided. /g3
g. Evidence of Insurance during the entire term of the Agreement . At all times during the term of this Agreement, the CONSULTANT shall maintain on fi le with the CITY’s Risk Manager a certificate or certificates of insurance showing that the aforesaid policies are in effect
PROFESSIONAL SERVICES AGREEMENT NO. 4047
in the required amounts and naming the CITY as an additional in sured. The CONSULTANT shall, prior to commencement of work under this Agreement, file with the CITY’s Risk Manager such certificate(s).
h. The CONSULTANT shall provide proof that policies of insuranc e required herein expiring during the term of th is Agreement have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furni shed at least two (2) weeks prior to the expiration of the coverages.
i. The general liability and automobile policies of insurance r equired by this Agreement shall contain an endorsement naming the CITY, its officers, emp loyees, agents and volunteers as additional insureds. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or r educed except on thirty days’ prior written notice to the CITY. The CONSULTANT agrees to requ ire its insurer to modify the certificates of insurance to delete any exculpatory wording sta ting that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” with regard to any notice provisions.
j. The insurance provided by the CONSULTANT shall be primary to any coverage available to the CITY. Any insurance or self-insurance maintain ed by the CITY, its officers, employees, agents, or volunteers, shall be in excess of CONSULT ANT’s insurance and shall not contribute with it.
k. All insurance coverage provided pursuant to this Agreement s hall not prohibit the CONSULTANT, and CONSULTANT’s employees, agents or subconsultant s, from waiving the right of subrogation prior to a loss. The CONSULTANT hereby wai ves all rights of subrogation against the CITY.
l. Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the option of the CITY, the CONSULTANT shall either r educe or eliminate the deductibles or self-insured retentions with respect to the CITY , or the CONSULTANT shall procure a bond guaranteeing payment of losses and expenses.
m. Procurement of insurance by the CONSULTANT shall not be cons trued as a limitation of the CONSULTANT'S liability or as full performance of CONSULTANT’s duties to indemnify, hold harmless and defend under the indemnity covenants of this Agreement.
SECTION 16. SUBCONTRACT, ASSIGNMENT OR DELEGATION.
The CONSULTANT shall not subcontract, delegate, or assign its d uties or rights hereunder, either in whole or in part, without the prior written consent o f the CITY. Any proposed subcontract, delegation, or assignment shall provide a descript ion of the services to be covered, identification of the proposed sub-consultant, delegee, or assi gnee, and an explanation of why and how the same was selected, including the degree of competition involved.
Any subcontract, delegation or assignment shall be made in the name of the CONSULTANT and shall not bind or purport to bind the CITY and shall not re lease the CONSULTANT from any obligations under this Agreement including, but not limited to, the duty to properly supervise and coordinate the work of employees, assignees, delegees or sub-co nsultants. No such subcontract, delegation or assignment shall result in any incre ase in the amount of total compensation payable to the CONSULTANT under the Agreement.
PROFESSIONAL SERVICES AGREEMENT NO. 4047
SECTION 17. NO WAIVER.
Waiver by any party hereto of any term, condition or covenant o f this Agreement shall not constitute the waiver of any other term, condition, or covenant hereof.
SECTION 18. DISPUTE RESOLUTION; GOVERNING LAW.
Disputes regarding the interpretation or application of any pro vision(s) of this Agreement shall, to the extent reasonably feasible, be resolved through good fai th negotiations between the Parties. If any action at law or in equity is brought to enfor ce this Agreement or because of alleged dispute, breach, default or misrepresentation in connec tion with the provisions of this Agreement, the prevailing party in such action shall be entitle d to reasonable attorney’s fees, expert fees, costs and necessary disbursements incurred in that action or proceeding, in addition to such other relief as may be sought and awarded. Th e venue for any litigation shall be County of Los Angeles, California. The Parties agree that t he covenants contained in this Section shall survive the expiration or termination of this Agreement.
SECTION 19. ATTORNEY’S FEES AND COSTS.
If litigation is reasonably required to enforce or interpret th e provisions of this Agreement, the prevailing party in such litigation shall be entitled to an awa rd of reasonable attorney's fees and costs in addition to any other relief to which it may be entitled.
SECTION 20. WARRANTIES.
Each of the parties represents and warrants to one another as follows:
a. It has received independent legal advice from its attorneys with respect to the advisability of entering into and executing this Agreement;
b. In executing this Agreement, it has carefully read this Agre ement, knows the contents thereof, and has relied solely on the statements expressly set forth herein and has placed no reliance whatsoever on any statement, representation, or promis e of any other party, or any other person or entity, not expressly set forth herein, nor upo n the failure of any other party or any other person or entity to make any statement, repre sentation or disclosure of any matter whatsoever; and
c. It is agreed that each party has the full right and authorit y to enter into this Agreement, and that the person executing this Agreement on behalf of eithe r party has the full right and authority to fully commit and bind such party to the provisions of this Agreement.
SECTION 21. MISCELLANEOUS.
a. The descriptive paragraph headings of this Agreement are inc luded for purposes of convenience only and shall not control or affect the constructi on of interpretation of any of its provisions.
b. Whenever the context hereof shall so require, the singular s hall include the plural, the male gender shall include the female gender, and the neuter and vice versa.
c. In case any one or more of the provisions contained in this Agreement shall for any
PROFESSIONAL SERVICES AGREEMENT NO. 4047
reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof an d this Agreement shall be construed as if such invalid, illegal, or unenforceable provisi ons had never been contained herein.
d. The representations and warranties made by the parties to th is Agreement shall survive the consummation of the transaction herein described.
e. This Agreement may be signed in any one or more counterparts all of which taken together shall be but one and the same Agreement. Any signed co py of this Agreement or of any other document or agreement referred to herein, or copy or counterpart thereof, delivered by facsimile transmission, shall for all purposes be treated as if it were delivered containing an original manual signature of the party whose signature appears in the facsimile and shall be binding upon such party in the same manner as though an origina lly signed copy had been delivered.
f. Each of the parties acknowledges that it has been r epresented by independent counsel of its own choosing, or if it has not been so represent ed, it has been admonished to obtain independent counsel and has freely and voluntarily wai ved and relinquished the right to counsel. Each party who has not obtai ned i ndependent c ounsel acknowledges that the failure to have independent legal counsel will not excuse s uch party’s failure to perform under this Agreement or any agreement referred to in this Agreement.
SECTION 22. NOTICE.
All notices, demands, requests or approvals to be given under t his Agreement shall be given in writing and conclusively shall be deemed served when delivered via e-mail (an “Electronic Notice” as further defined below), personally or on the second (2nd) business day after the deposit thereof in the United States mail, postage prepaid, reg istered or certified, addressed as hereinafter provided. All notices, demands, requests, or appro vals hereunder shall be given to the following addresses or such other addresses as the Parties may designate by written notice:
If to CITY: City of Montebello
Attn: René Bobadilla, P.E., City Manager
1600 West Beverly Boulevard
Montebello, CA 90640
(323) 887-1200
Email: [email protected]
With a copy to: City of Montebello – Recreation & Community Se rvices Attn: David Sosnowski, Director
1600 West Beverly Boulevard
Montebello, CA 90640
(323) 887-4540
Email: [email protected]
If to Consultant: KTU&A (dba KTUA)
Attn: Chris Langdon, Principal
3916 Normal St, San Diego, CA 92103
(619) 294-4477
[email protected]
PROFESSIONAL SERVICES AGREEMENT NO. 4047
An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this section if sent to the electronic mail address specifie d above. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form.
SECTION 23. NON-DISCRIMINATION AND EQUAL OPPORTUNITY EMPLOYER.
In the performance of this Agreement, the CONSULTANT shal l not discriminate against any employee, sub-consultant, or applicant for employment becau se of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, mental condition or sexual orientation. The CONSULTANT wil l take affirmative action to ensure that sub-consultant and applicants are employed, and tha t employees are treated during employment, without regard to their race, color, creed, religio n, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition or sexual orientation.
SECTION 24. CONFLICT OF INTEREST.
The CONSULTANT covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by the CONSULTANT under this Agreement, or which would conflict in any manner with the performance of its services hereunder. The CONSULTANT further c ovenants that, in performance of this Agreement, no person having any such intere st shall be employed by it.
Furthermore, the CONSULTANT shall avoid the appearance of havin g any interest that would conflict in any manner with the performance of its services pursuant to this Agreement.
The CONSULTANT covenants not to give or receive any compensatio n, monetary or otherwise, to or from the ultimate vendor(s) of services to the CITY as a result of the performance of this Agreement, or the services that may be procured by the CITY as a result of the recommendations made by the CONSULTANT. The CONSULTANT's covena nt under this section shall survive the termination of this Agreement.
SECTION 25. ENTIRE AGREEMENT.
This Agreement contains the entire understanding between the CI TY and the CONSULTANT.
Any prior agreements, promises, negotiations or representations not expressly set forth herein are of no force or effect. Subsequent modifications to this Agr eement shall be effective only if in writing and signed by each party. If any term, condition, or co venant of this Agreement is held by a court of competent jurisdiction to be invalid, void, or un enforceable, the remaining provisions of this Agreement shall be valid and binding.
[SIGNATURE PAGE TO FOLLOW]
PROFESSIONAL SERVICES AGREEMENT NO. 4047
IN WITNESS WHEREOF, the parties, through their respective autho rized representatives, have executed this Agreement as of the date first written above.
(“CITY”) (“CONSULTANT”)
CITY OF MONTEBELLO KTU&A (DBA KTUA)
René Bobadilla, P.E., City Manager Chris Langdon, Principal
ATTEST:
Christopher Jimenez, City Clerk
APPROVED AS TO FORM:
Arnold M. Alvarez-Glasman, City Attorney
EXHIBITS:
Exhibit A – Compensation and Professional Services
EXHIBIT “A”
Compensation and Professional Services
RIO HONDO RIVER ACCESS IMPROVEMENT PROJECT
CITY OF MONTEBELLO | SEPTEMBER 30, 2022
REVISED 11/08/2022
September 30, 2022
David Sosnowski
City of Montebello
Dear Mr. Sosnowski,
We are honored to submit our fees and qualifications to assist the City with the Rio Hondo River Access Improvement Project. We have greatly enjoyed our relationship with the City in the work that we have done through the Parks and Fa- cilities Master Plan, the Edison Trail Study, and the current First/Last Mile project through SCAG. We believe that this proj- ect has a great opportunity to serve as an entry feature for the City and can help enhance access to the Rio Hondo trail.
KTUA has been providing landscape architectural services for more than 50 years in Southern California. Our current and recent local experience includes various projects in which we served as the prime landscape architect where we’ve worked with various sub-consultants to complete projects on time and on budget. Our staff of 30 includes landscape ar- chitects, landscape designers, irrigation designers, land use and transportation planners, graphic designers, GIS analysts and community engagement specialists. This depth of landscape architectural and planning staff provides us with the ability to share knowledge and perform the tasks needed in an efficient and effective manner for project success.
As Principal In Charge for KTUA, I have over 27 years of experience in landscape construction and landscape architec- ture, including park planning and design. Throughout my career, I have had a tremendous amount of success seeing park projects through from initial concept design through construction, completion, and successful dedication.
Matt Wilkins, who served as the project manager for the Parks and Facilities Master Plan and the Edison Trail Study will be the project manager leading the team. With over 10 years of experience as a landscape architect, Matt has managed large consultant teams and high-profile projects with a focus on park and recreation and trail access projects.
We have gathered a team who also has experience with the Montebello/LA area and are currently working on other simi- lar improvement projects. This includes KPFF as the surveying, civil engineering and structural engineering team, Bud- long Electrical as the electrical engineer, Terracon as the geotechnical engineer, and RLB as the professional estimator.
This team is well qualified and suited for this project. Furthermore, this team provides the City with the needed resources to accomplish this project comprehensively. Our team remains flexible on our proposed scope of work and can explore other methods in order to work with the anticipated budget. KTUA would be honored to work with the City of Montebello on this project. Please reach out if you have any questions on the scope, fees, and qualifications in this proposal.
Respectfully submitted,
Chris Langdon
Chris Langdon, Principal
CA PLA 4915 | ASLA | LEED AP BD+C
3916 Normal Street, San Diego, CA 92103
619-294-4477 x115; Cell: 619-481-4266
[email protected]
REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 2 Qualifications | KTUA Profile
YEAR FOUNDED
1970
ORGANIZATIONAL STRUCTURE
California Corporation
NUMBER OF CALIFORNIA OFFICES
2 (San Diego and Central Coast
Satellite Office)
CORPORATE OFFICERS
Michael Singleton, President
Mark Carpenter, Secretary/Treasurer
Brooke Whalen, Vice President
Chris Langdon, Vice President
Joe Punsalan, Vice President
Sharon Singleton, Vice President
EMPLOYEES -30
12 Landscape Architects
8 Planners
2 Transportation Planners
2 Landscape Designers
2 Irrigation Designer
1 GIS Analyst
1 Transportation Engineer
2 Accounting
CERTIFICATIONS
Small Business Enterprise (Metro and
California Dept. of General Services),
CA SBE 30007 exp. 08/31/24
SERVICES
Planning
Land Use | Transportation Planning
Active Transportation Planning
Resource Planning
Federal Planning
Landscape Architecture
Civic and Public Works
Parks and Recreation
Healthcare
Education
Housing
Hospitality
Office and Commercial
Support Services
Public Outreach
GIS
3D Modeling and Simulations
Sustainable Design
Water Management
Grant Writing
KTUA is a collaboration of planners, landscape architects, GIS analysts, and graph- ic designers focused on the creation of livable communities. Established in 1970, KTUA has expanded the boundaries of a traditional landscape architecture office by incorporating active transportation, community planning, federal planning, and natural resource management practices into our portfolio. With this diversity, KTUA has the ability to help shape the bigger picture while addressing the fine-grained details that contribute to sustainable natural and built environments.
KTUA’s planning approach is to balance the diverse needs of regions, cities, com- munities, neighborhoods, developers, and future users with planning that encour- ages placemaking that is informed by our expertise in urban design, community development, multimodal transportation, complete streets, smart growth, public engagement, and natural resource management. With a goal of healthy commu- nities and long-term stewardship of the land, KTUA has a track record for creating active public space that promotes public health, engages the community, con- tributes to economic growth, enhances public and private investments, optimizes land values, and provides a sustainable legacy that is memorable and attractive.
Our commitment to our communities and clients is to ensure that each project is unique, collaborative, innovative, cost effective, environmentally integrated, and context sensitive.
CITY OF MONTEBELLO PROJECT EXPERIENCE
• City of Montebello Parks Master Plan
• City of Montebello Edison Trails Study
• City of Montebello First and Last Mile Plan
RELEVANT PROJECT EXPERIENCE
• Port of San Diego Chula Vista Bayfront Wayfinding and Signage Plan • City of San Diego North Park Mini-Park and Entry Monument • City of Carlsbad City of Carlsbad Ocean Street Beach Access • San Diego State University “Destination SDSU” Entry
Port of San Diego Chula Vista Bayfront Wayfinding and Signage REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 3 Qualifications | Subconsultant Profiles
STRUCTURAL ENGINEERING AND SURVEY | KPFF
Founded in 1960, KPFF has an experienced and skilled
staff as well as the resources to take on projects of all sizes and deliver on the most constrained schedules.
KPFF’s structural engineers design a wide range of proj- ects including: parks and recreation facilities, commercial, office, and corporate headquarters buildings; residential and retail facilities; industrial, educational, health care and high-tech facilities, correctional facilities, as well as bridges and waterfront structures, using all types of construction techniques and materials. Our structural engineers place emphasis on continually improving their expertise in the design of structures.
RELEVANT PROJECT EXPERIENCE
• City of Los Angeles Destination Crenshaw
• City of Los Angeles Vista Hermosa Park
• City of Anaheim Miraloma Park
• City of Covina Recreation Village
• City of La Verne Gold Line Pedestrian Bridge
COST ESTIMATING | RIDER LEVETT BUCKNALL
Rider Levett Bucknall is a leading independent organiza- tion in cost management and quantity surveying, project management and advisory services.
Rider Levett Bucknall is dedicated to the value, quality and sustainability of the built environment. Our innovative think- ing, global reach, and flawless execution push the bound- aries. Taking ambitious projects from an idea to reality.
RELEVANT EXPERIENCE
• Phelan Community Park Civic Center*
• City of Irvine Cultural T errace Complex Reuse at Orange County Great Park
• Chaffee Crossing Dog Park, Fort Smith, AK
• City of Long Beach Belmont Veterans Memorial Pier
Enhancements
• City of Glendale Artsakh Avenue Improvements
• City of Paso Robles Law Enforcement Facilities
*Project experience in collaboration with KTUA
CIVIL ENGINEERING | TERRACON
Wherever you are on your project journey, Terracon’s
employee-owners are ready to meet you where you are
and help you reach your goal. Since our founding in 1965, Terracon has grown and evolved to become a thriving, em- ployee-owned, multidiscipline engineering consulting firm.
Our more than 5,000 curious minds include engineers,
scientists, architects, facilities experts, and field profession- als focused on solving engineering and technical challeng- es from more than 175 locations nationwide. On-time and real-time data driven insights, provided by our talented employee owners, create an unmatched client experience
that spans the lifecycle of any project from earth-to-sky.
ELECTRICAL ENGINEERING | BUDLONG & ASSOCIATES
Budlong & Associates, Inc. (B&A) is a multi-disciplinary engineering design firm founded in 1958. B&A has the
expertise for new construction and modernization projects including design, construction documents (drawings and
specifications), estimating, scheduling, value engineering, peer review, multi-discipline coordination and construction administration.
B&A provides high quality, accurate and cost-effective
engineering designs based on predetermined budgets,
schedules, relevant code requirements and good engi-
neering practice. B&A strives to be responsive, profes- sional, provide effective communication, coordinate efforts between the various disciplines and to be courteous in all our interactions and endeavors.
REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 4 Qualifications | Team Organization
Stakeholders
KTUA
Chris Langdon
Principal landscape architect
KTUA
Matt Wilkins
Project Manager
associate landscape architect
KTUA STAFFING PLAN
KTUA utilizes the Resource Planning
module of Deltek VantagePoint for weekly
staff scheduling, allowing us to accurately
schedule staff resources with the appropri-
ate experience to meet project deadlines.
Staffing responsibilities include:
1. The assigned project manager is
involved in the review of the scope, the
preparation of the fee and the contract
negotiation.
2. The project manager works with the cli-
ent to develop and validate the overall
goals and objectives of the project, as
well as identify project issues, require-
ments, budgets, milestones, deadlines,
and design parameters.
3. A project schedule is developed by the
project manager indicating all submit-
tals and review periods. The QC man-
ager reviews the schedule to assure
that adequate time has been allocated
for implementation of the quality
control process, including review and
coordination of consultant work, and
corrections and revisions identified in
the QC process.
4. The KTUA policy is to assign a team
of experienced professionals that stay
with the project from concept through
completion, ensuring seamless integra-
tion from one phase to the next.
suBconsultant:
ciVil EnGinEER
terracon
F. Fred Buhamdan, PE, PMP
Vice President/civil Engineer
Smriti Dhital, PE
senior staff Engineer
suBconsultant:
ElEctRical EnGinEER
Budlong
Sunil Patel, PE
Principal-in-charge
Electrical
suBconsultant:
ciVil/suRVEY anD stRuctuRal
KPff
Ramzi Hodali, SE
Principal structural Engineer
Pablo Ramos, SE
associate structural Engineer
Doug Conlon, PE
associate civil Engineer
Robert Rogers, PLS
associate land surveyor
suBconsultant:
cost EstiMatoR
Rider levett Bucknall
Aled Jenkins
associate Principal/cost Estimator
Charlie Andrews
senior cost Manager
KTUA
Bernard Everling
irrigation Design Manager
KTUA
David Jamesson
senior landscape Designer
City of Montebello
REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 5 Qualifications | KTUA Key Personnel Resumes | Chris Langdon | Principal Landscape Architect
EDUCATION
B.S. Landscape Architecture, Washing-
ton State University, Pullman
REGISTRATIONS
2004, California Landscape Architect,
PLA 4915, exp. 2/28/23
LEED AP BD+C
AFFILIATIONS
American Society of Landscape
Architects
ASLA San Diego Chapter President,
2006
RECENT WARDS
2022 APWA San Diego Honor Award,
Parks, North Park Mini-Park
2022 ASLA San Diego, Port of San
Diego Chula Vista Bayfront Sweetwater
Bicycle Path and Promenade, Parks,
Trails and Recreation, Merit Award
2021 APWA Port of San Diego Chula
Vista Bayfront Sweetwater Bicycle Path
and Promenade (Parks $2-$5M) Honor
Award
Chris Langdon is a California Professional Landscape Architect and certified as a LEED AP BD+C. He is responsible for managing a broad range of landscape architectural projects of varying scope including small urban park sites, new construction and modernization of college and university campuses, and large multi-jurisdictional transit projects. With more than 27 years of experience, Chris is skilled at all levels of project management including project procurement, scope development, concept and design development, construction documentation and production, schedule management, cost management, and construction adminis- tration services. Chris brings a very strong horticultural background to KTUA and leads efforts in water conservation design with turf reduction and low water-use landscape design. Chris is KTUA’s Park and Recreation market leader and has a passion for improving and creating healthy and active communities.
PORT OF SAN DIEGO CHULA VISTA BAYFRONT WAYFINDING AND GATEWAY FRAMEWORK PLAN Senior project manager responsible for oversight of the preparation of the Chula Vista Bayfront Wayfinding and Gateway Plan. Coordinated work efforts with Port of San Diego and managed efforts of project manager and support staff in develop- ing content and production of this Framework Plan that provides design standards and guidance for the location and development of wayfinding and gateway mon- uments. The Plan provides for three distinct and unique gateway monuments that provide the entry portals into the Chula Vista at three primary street entry points.
The gateways represent the rich tapestry of diverse uses that makeup the Chula Vista Bayfront while providing a unified brand identity for the waterfront district.
CITY OF SAN DIEGO NORTH PARK MINI-PARK
Project manager/landscape architect responsible for the preparation of final design and construction documents for a new 0.75-acre park in the heart of North Park’s Main Street area. The design of the park includes seating and picnic areas, as well as a multi-use urban plaza with permanent and temporary stage areas available for community events and the expansion of the farmers market. Creative children’s play elements, integrated wayfinding spires and a curved North Park identity wall with 6-foot-tall concrete letters contribute to this activated urban park.
CITY OF SAN DIEGO LA PAZ MINI-PARK
Project manager/landscape architect for a General Development Plan for the 0.4 acre La Paz Mini-Park in the Valencia Park neighborhood of Southeast San Diego.
Led an interdisciplinary design team to develop a creative park design concept on a constrained site. Park improvements included an enhanced entry plaza and unique monument sign, walking paths, a dedicated swing set area, benches, fitness stations, a large decomposed granite picnic plaza with large group shade structure and picnic tables. Landscape improvements include low-water use native and San Diego adaptive plants, and a unique vegetated stormwater swale that also provides exploration experiences for children.
KTUA staff on the entry sign at North Park Mini-Park
REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 6 Qualifications | KTUA Key Personnel Resumes | Matt Wilkins | Project Manager | Associate Landscape Architect
EDUCATION
B. Landscape Architecture, Minor in
Sustainability, Cal Poly, San Luis Obispo
Architectural Studies, Allan Hancock
College
REGISTRATIONS
2012 LEED Green Associate
2018 CA Landscape Architect PLA 6398,
exp. 6/2023
AFFILIATIONS
American Society of Landscape
Architects
American Planning Association
Digital Technology Practicing
Professional Network, Co-chair
AWARDS
2022 APWA San Diego Honor Award,
Parks, North Park Mini-Park
2022 APA Los Angeles Award of Merit,
Comprehensive Plan - Small Jurisdiction,
City of Montebello Parks Master Plan
2022 APWA San Diego Project of the
Y ear, Transportation, Mid-Coast LRT
Extension of the UCSD Blue Line
2020 APWA Honor Award, Parks ($2-
$5M); CMAA San Diego, Public Works
Less than $15 M; American Society of
Concrete Contractors Decorative Con-
crete Council, First Place, Ocean Street
Beach Access Improvements
2017 APWA, Armorlite Drive Complete
Street Plan
2014 ASLA Junipero Serra Museum
Historic Landscape Assessment and
Documentation
2014 ASLA, City of Lemon Grove Main
Street Promenade
Matt Wilkins is an associate landscape architect at KTUA. Matt has worked in inter-disciplinary groups throughout his career and brings valuable knowledge of sustainability, park design, landscape architecture, construction, and digital technology to the team. His dedication to the profession and interest in 3D and digital technology has allowed him to lead the discussion about technology use in practice. He is currently the Webmaster of the American Planning Academy Central Coast Section and a frequent presenter at national conferences. He has performed numerous field investigations, prepared and led park design from concept to completion, and has created various 3D models, animations and pho- to simulations for site and city-wide design solutions. With his passion for build- ing a better tomorrow and background in athletics, Matt is dedicated to building better parks for our communities.
CITY OF MONTEBELLO PARKS MASTER PLAN
Project manager for a parks and facilities master plan that entails research, analy- sis, and inventory of the existing parks and park facilities to understand the current conditions and lifespans of the city’s assets. Facilitating an extensive community outreach to gauge city, key stakeholder, and resident use of the facilities along with what they desire to see in future park improvements. The team utilized an advanced GIS mapping technique to analyze the park distribution to develop a comprehensive master plan, indicating specific improvements.
CITY OF SAN DIEGO NORTH PARK MINI-PARK
Landscape designer responsible for the preparation of final design and construc- tion documents for a new 0.75-acre park in the heart of North Park’s Main Street area. The design of the park includes seating and picnic areas, as well as a multi- use urban plaza with permanent and temporary stage areas available for com- munity events and the expansion of the farmers market. Creative children’s play elements, integrated wayfinding spires and a curved North Park identity wall with 6-foot-tall concrete letters contribute to this activated urban park.
CITY OF CARLSBAD OCEAN STREET BEACH ACCESS
Project manager for seven beach access
points along Ocean Street in Carlsbad
Village that leads beach visitors down to
the remarkable North Carlsbad Beaches.
Managing a group of five separate engi-
neering design consultants, KTUA led the
task to replace many of the existing stair
and landing structures at the access points.
Two main beach accesses at Grand Avenue
and Carlsbad Drive include low stone walls,
mid-slope seating, signage, and enhanced
concrete paving. The project entailed rede-
signing the beach access stair structures to
include seating nodes and enhanced over-
look platforms, re-vegetation of the slopes
with California native plants, re-designing the
stormwater conveyance systems, and ensuring that the access points were struc- turally sound to withstand the direct coastal environment. The project was phased so that beach access was available at all times.
REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 7 Qualifications | KTUA Key Personnel Resumes | Bernard Everling | Irrigation Design Manager
EDUCATION
B.S. Ornamental Horticulture Landscape
Irrigation, Cal Poly Pomona, 1987
REGISTRATIONS
Certified Irrigation Designer #45519 -
Commercial, Irrigation Association
AFFILIATIONS
Irrigation Association
AWARDS
2022 APWA San Diego Project of the
Y ear Award, Structures, Oceanside
Crisis Stabilization Unit
2022 APWA San Diego Project of the
Y ear, Transportation, Mid-Coast LRT
Extension of the UCSD Blue Line
2020 APWA San Diego State University
ENS 700 Field Project of the Y ear Parks
($2-$5M category)
2018 ASLA San Diego, Judge’s Letter,
Parks, Trails and Recreation; APWA San
Diego, Project of the Y ear (Under $2M),
Civic San Diego Southcrest Trails Park
Bernard Everling is a Certified Irrigation Designer. He is involved with design, construction management, water budgets, maintenance guides and irrigation scheduling of landscape irrigation systems for government, municipal, com- mercial and residential projects. Bernard is responsible for the preparation of plans, specifications and estimates for new systems and retrofit and upgrade of existing systems. His experience includes irrigation master planning, field anal- ysis, data collection and feasibility studies, alternative water source feasibility studies. Bernard also researched and helped establish guidelines for water au- dits, irrigation scheduling and recycled water use. His background in ornamental horticulture gives him a firm understanding of plant needs for effective irrigation system design.
SAN DIEGO STATE UNIVERSITY
DESTINATION SDSU
Irrigation design manager
for the development of
plans and specifications,
and construction adminis-
tration for project with new
signage, entry monuments
and landscape enhance-
ments to help make an en-
try statement for the main
gateway into the SDSU
college campus (Montezuma Road/Campanile Drive). The project involved a well coordinated team effort under a limited time constraint with the goal of minimizing neighborhood disruptions.
CITY OF SAN DIEGO NORTH PARK MINI-PARK
Irrigation design manager for a new 0.75-acre park in the heart of North Park’s Main Street area. The design of the park includes seating and picnic areas, as well as a multi-use urban plaza with permanent and temporary stage areas available for community events and the expansion of the farmers market. Creative children’s play elements, integrated wayfinding spires and a curved North Park identity wall with 6-foot-tall concrete letters contribute to this activated urban park.
CITY OF THOUSAND OAKS CONEJO COMMUNITY PARK AND COMMUNITY CENTER Irrigation design manager involved with construction document preparation for a new irrigation system on an existing 38.4 acre, rolling hillside park. The project includes a new community center, new entry plaza, new restroom, new concert stage, new trails, and new waterwise planting. Worked closely with the design team in minimizing disturbance near existing trees. The irrigation system is designed to allow for future expansion to the existing ballfield and surrounding parkland, while providing new irrigation to existing turf areas and new plantings.
CITY OF CHULA VISTA OTAY RANCH PARK, P-2 (GROVE PARK)
Project irrigation design manager for the development of recycled water irrigation construction documents, cost estimate, bid support and construction support for a new 7.2 acre park site within a developing neighborhood. The park includes land- scape irrigation in and around bioretention basins, picnic areas, live turf playfield, and restrooms. Responsibilities included required coordination with the architect, landscape architect, civil engineer, electrical engineer, developer Baldwin & Sons, the City of Chula Vista, Otay Water District and the San Diego County Department of Environmental Health.
REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 8
EDUCATION
Bachelor of Landscape Architecture,
California Polytechnic State University
San Luis Obispo
Associate of Science, Moorpark
College
David Jamesson recently joined KTUA as a senior designer. His focus is on plazas, parks and recreation, and sustainable streetscapes. He embraces all aspects of the design process and strives to understand each site through many different lenses including cultural, biological, and historical. David has years of experience managing projects ranging from conceptual plans to construction documents and construction administration services on a variety of public and private projects ranging from commercial, institutional, multi-family, and single family residential. He is also involved on the planning side of parks and trails and has experience in environmental compliance and visual impact studies. He is on track to become a licensed Landscape Architect by late 2022.
Qualifications | KTUA Key Personnel Resumes | David Jamesson | Senior Designer
CITY OF SANTA BARBARA CHUMASH CULTURAL PROJECT AT AMBASSADOR PARK Senior Designer assisting with the conceptual plan development and providing support for tribal outreach for the Chumash Cultural Project at Ambassador Park.
KTUA is assisting with the project design and working with the Chumash Repre- sentatives to establish a ethnocultural space in Ambassador Park that celebrates and memorializes the past Suyxton village which was the largest Chumash village in California at the time of colonial arrival. Working closely with the City, Coastal Conservancy, and Chumash representatives, the team is developing concepts to present to the public and Historic Landmarks Committee in 2023.
RIVERSIDE TRANSIT AGENCY VINE STREET MOBILITY HUB CONCEPT PLAN Senior Designer providing ongoing assistance with the Construction Adminis- tration of the project. KTUA has provided construction document design for the landscape and hardscape treatments throughout the mobility hub including hard- scape, irrigation and planting design, and is providing construction administration services to assist with unforeseen circumstances and ensure the design intent is implemented though construction.
CITY OF ATASCADERO EL CAMINO REAL DOWNTOWN ENHANCEMENT
Senior Designer assisting with Planting design and Streetscape Improvements.
KTUA is assisting with the conceptual design, and Construction Documents, and mobility planning of the streetscape of El Camino Real in Downtown Atascadero. 19TH STREET OCEANO BIORETENTION STREETSCAPE
Senior Designer in charge of planting and irrigation design through Construction Documents. KTUA is assisting with streetscape improvements involving the imple- mentation of bioretention planting to provide stormwater solutions and community beautification for Oceano Community Services District.
PHELAN COMMUNITY PARK
Assisting with the redesign of equestrian trails and the overall conceptual plan to elevate the experience and safety for all park visitors. Provided flexible design solutions to meet variable environmental parameters, ADA requirements, and cost effective measures. KTUA is assisting with keeping the community character through the design of the conceptual plan for this park in Phelan, CA.
REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 9 PABLO RAMOS, SE | ASSOCIATE | STRUCTURAL ENGINEER
As an Associate with the Los Angeles Office, Pablo Ramos is responsible for project design and production, supervi- sion of drafting personnel, overall project coordination and construction administration. He has 10 years of profes- sional experience as a structural engineer. His experience includes K-12 and higher education facilities, healthcare, single and multi-family residential, seismic retrofit and var- ious tenant improvement projects. He has expertise with steel, masonry, wood, and reinforced and post tensioned concrete materials. He is driven to solve complex design problems to achieve his client’s vision and deliver projects on time and on budget to uphold the contractor and own- er’s best interest.
Qualifications | Subconsultant Key Personnel Resumes
RAMZI HODALI, SE | PRINCIPAL | STRUCTURAL ENGINEER
Ramzi Hodali is a Principal with the Los Angeles office of KPFF with 36 years of experience working on numerous
unique and complex projects in various industries includ- ing parks and recreation, civic and justice, healthcare, educational facilities, research facilities, aviation, port and harbor facilities, industrial, and commercial and residential developments. He has extensive experience working on
publicly-funded projects and has successfully completed significant projects for numerous o public agencies.
REGISTRATIONS
• Structural Engineer California #S3552
• Professional Engineer – California, Washington
DOUG CONLON, PE | ASSOCIATE | PROJECT MANAGER | CIVIL ENGINEER With over 34 years of experience as a civil engineer, Doug Conlon is responsible for client contact, establishment of fees and schedules, supervision of engineering and
drafting personnel, project design and production, overall project coordination and construction administration. He is involved in all aspects of civil design including grad- ing, drainage, erosion and site utilities and is often the main contact for the architect and contractor. He is also a CASQA Certified Trainer of Record for Qualified Storm
Water Pollution Prevention Plans (SWPPP) Developers
(QSD) and Qualified SWPPP Practitioners (QSP).
PROJECT EXPERIENCE
• City of Los Angeles Marsh Park Phase 1
• Earvin “Magic” Johnson (EMJ) Recreation Area Phases 1A and 1B, Willowbrook
• City of Glendale Central Park Various Improvements
• Cedars Sinai Medical Center Plaza Healing Gardens,
Los Angeles
• City of Los Angeles George Burns Roadway Pedestrian
Bridge
• City of Santa Monica Reed Park and Ozone Park
Improvements
REGISTRATIONS
• Structural Engineer California # S6905
• Professional Engineer – California
PROJECT EXPERIENCE
• City of Los Angeles Constellation Park
• City of Duarte, City of Hope Graff Park
• City of Santa Monica Park Restroom Replacement
• City of Santa Monica Reed Park and Ozone Park
Improvements
• Hecuba Statue USC Village, Los Angeles
REGISTRATIONS
• Professional Engineer CA #C73594; TX #94896
PROJECT EXPERIENCE
• City of Los Angeles Broad Museum QSP Services
• City of Duarte, City of Hope Graff Park
• Getty, Los Angeles; 405 Widening Project; Villa Entrance Turnaround; Metro Rail Support
• City of Ventura Portside Ventura Harbor Sanitary Sewer • City of Los Angeles 2nd and Hope Parking Structure
• City of Culver City The Culver Studios Van Buren Garage REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 10 Qualifications | Subconsultant Key Personnel Resumes
CHARLIE ANDREWS | SENIOR COST MANAGER
Charlie Andrews has been in the construction industry
since 2012 with a focus on cost consultancy. He has
provided services in cost estimating, procurement, and
continuous cost management to high profile clients in
100+ different projects ranging from hospitality, creative office, cultural, residential, and healthcare programs.
Charlie is responsible for maintaining quality in every cost management deliverable to ensure client satisfaction and project success. Charlie specializes in milestone estimating, conceptual budget preparation, peer reviews of estimates and reconciliations, and change order evaluation. He also has experience in GC procurement, subcontractor bid anal- ysis, project monitoring, and cost reporting.
ALED JENKINS | ASSOCIATE PRINCIPAL
Aled Jenkins has 22 years’ experience managing major
capital project portfolios for high profile clients in multiple countries such as USA, UK and UAE. Aled has provided
contract administration, project controls and cost man- agement / estimating services for the international con- struction industry since 2000. He is responsible for the delivery of cost management services to our valued client base within the Los Angeles region. He is experience in management of budget/estimate preparation, providing
peer reviews and reconciliations, extensive experience in procurement, cost reporting and change order manage-
ment. He also has experience in AIA, JCT and FIDIC forms of contracts with a solid understanding of contractual
management.
PROJECT EXPERIENCE
• City of Irvine Cultural T errace Complex Reuse at Orange County Great Park
• Town of Phelan Community Park Civic Center
• City of Long Beach Belmont Veterans Memorial Pier
Enhancements
• City of Glendale Artsakh Avenue Improvements
• Southern California Edison Substation Seismic Retrofits • City of Paso Robles Law Enforcement Facilities
PROJECT EXPERIENCE
• City of Irvine Cultural T errace Complex Reuse at Orange County Great Park
• Town of Phelan Community Park Civic Center
• City of Long Beach Belmont Veterans Memorial Pier
Enhancements
• City of Glendale Artsakh Avenue Improvements
• City of Paso Robles Law Enforcement Facilities
ROBERT (BUCK) ROGERS, PLS | ASSOCIATE | LAND SURVEYOR
Robert (Buck) Rogers has more than 23 years of experi-
ence in the surveying profession and has managed survey projects in the Los Angeles area for over 15 years. He has worked closely with Engineers, Architects on varied levels of development projects inclusive of Tentative Maps and Final Maps, Departments of Transportation on Right of
Way and acquisition projects as well as surveys of State- owned boundaries and has worked on several aspects
of the Pipeline Safety Enhancement Plan (PSEP) program
with SoCal Gas Company. He has a strong practical and
theoretical foundation in improving surveying, drafting and production methods. He is skilled in deed and title research and is experienced with all classes of surveys including Boundary, Topographic, GPS, Right of Way,
Hydrographic, Utility (above and below ground/SUE) and
Bridge Locations.
REGISTRATIONS
• Professional Land Surveyor CA #PLS 8348; NC #PLS 4293
PROJECT EXPERIENCE
• City of Santa Monica North Beach Pedestrian and Bike Trail • City of Los Angeles Vermont Corridor ALTA Surveys
• J. Paul Getty Trust Topographic and Utility Mapping
• Pepperdine University T opographic and Utility Mapping, Los Angeles
• UCLA Campus-Wide Surveys, T opographic and Utility
Mapping
• University of Southern California Utility Infrastructure Upgrades, T opographic and Utility Mapping
REVISED 11/08/2022
CITY OF MONTEBELLO | Rio Hondo River Access Improvement Project | 11 Qualifications | Subconsultant Key Personnel Resumes
SMRITI DHITAL, PE | SENIOR STAFF ENGINEER
Smriti Dhital is a Senior Staff Engineer in Terracon’s South- ern California office with over five years of experience in preparing geotechnical reports, designing Geo-structures and conducting geotechnical field investigations. She has experience in designing of ground improvement tech-
niques such as: dynamic compaction, surcharge preload-
ing with PVD and vibro-replacement. Shoring design (MSE wall, soldier piles and soil nail walls), finite element model- ing of non-routine geotechnical problems. In addition, she has comprehensive knowledge of geotechnical/structural
software’s for slope stability analysis, deep excavation de- sign, pile design, groundwater flow and structural analysis and design. She is a Registered Professional Engineer in North Carolina.
F. FRED BUHAMDAN, PE, PMP | VICE PRESIDENT | CIVIL ENGINEER F. Fred Buhamdan has substantial experience in perform- ing geotechnical investigations, engineering design, and project management. These projects included various
educational and commercial buildings, renewable energy
facilities, retail centers, office/warehouse projects, street improvements, industrial facilities, and public works
projects. His experience includes hundreds of projects
involving shallow and deep foundations design, settle-
ment and slope stability analysis, pavement design, geo- logic hazards analysis preparation of project proposals and geotechnical engineering reports, and construction
management.
SUNIL PATEL, PE, LEED AP BD-C, CXA | PRINCIPAL-IN-CHARGE Sunil Patel has over 32 years’ experience in designing
engineering systems and elements including HVAC,
plumbing; steam, compressed air and heat recovery; fire protection, and medical gas. He is responsible for the
coordination, design, development, written specifications, cost estimates, construction observation, energy compli- ance and equipment selection for mechanical engineer-
ing projects. He has completed numerous comparative
energy utilization studies for thermal and electrical energy generation technologies. Notably, Sunil’s experience also includes hospital utilities site evaluations and distribution, and SB1953 reports. Sunil has numerous experiences with ASHRAE 90.1, 62 and Energy Savings for various educa-
tion projects.
REGISTRATIONS
• PE, California #M29448; (Additional States: AZ #M31085; NV #M012913; PA #M71964; WA #M52988)
• 111-757 Certified Commissioning Authority, LEED AP BD+C
PROJECT EXPERIENCE
• City of San Pedro Friendship Park
• City of Santa Ana Rosita Park
• City of Pasadena Recreation Park Restrooms
• City of Perris Linear Park Lighting
• Los Angeles County Castaic Lake Afterbay, Recreation
Facility
REGISTRATIONS
• Civil Engineer, PE California #C77455 Exp 06/30/2023
• Project Management Professional, (PMP) Exp 07/04/2024
PROJECT EXPERIENCE
• SGVCOG ACE Rio Hondo Load Reduction Strategy
Design, multiple cities in LA County
• City of Bell Gardens John Anson Ford Park Infiltration Project
• Los Angeles County Public Works Compton Creek Low
Flow Diversion, and Arroyo Seco Low Flow Diversion
• City of Los Angeles Mission Canyon Trailhead Facility
PROJECT EXPERIENCE
• City of T orrance Dominguez Channel - Harbors T oxics • City of El Monte Norwood Elementary School - Storm-
water Capture
• Los Angeles County Public Works South Whittier Green
Streets - Meyer Site
• City of Malibu Stormwater Improvement
• City of Santa Ana, Santa Ana Bristol - T olliver Urban Greening
REVISED 11/08/2022