CITY OF MONTEBELLO
CITY COUNCIL, SUCCESSOR AGENCY, AND PUBLIC FINANCING AUTHORITY
JOINT REGULAR MEETING
WEDNESDAY, NOVEMBER 16, 2022 AT 5:00 PM
CITY HALL COUNCIL CHAMBERS
1600 WEST BEVERLY BOULEVARD
MONTEBELLO, CALIFORNIA
CITY COUNCIL/SUCCESSOR AGENCY/PUBLIC FINANCING AUTHORITY Kimberly A. Cobos-Cawthorne, Mayor/Chairperson
Angie M. Jimenez, Mayor Pro Tem/Vice Chairperson
Scarlet Peralta, Councilmember/Member
Salvador Melendez, Councilmember/Member
David N. Torres, Councilmember/Member
CITY MANAGER/EXECUTIVE
DIRECTOR
René Bobadilla, City Manager
CITY TREASURER
Rafael Gutierrez
CITY ATTORNEY/AUTHORITY
COUNSEL
Arnold M. Alvarez-Glasman
CITY CLERK/SECRETARY OF AUTHORITY
Christopher Jimenez
DEPARTMENT HEADS
Assistant City Manager
Fire Chief
Police Chief
Director of Finance
Director of Human Resources
Director of Planning/Community
Development
Director of Public Works
Director of Recreation and Community Services
Director of Transportation
Director of Public Affairs and Technology
Arlene Salazar
Fernando Pelaez
Paul Espinosa
Michael Solorza
Nicholas Razo
Joseph Palombi
James Enriquez
David Sosnowski
Adrianna Kendricks
Michael Chee
November 16, 2022: City Council, Successor Agency, and Public Financing Authority Meeting
NOTICES
COVID-19 NOTICE: The City Council rescinded the Declaration of the Local Emergency and the continuation of teleconferencing open meetings pursuant to AB 361 by adopting Resolution No. 22-21 on Wednesday, April 13, 2022. This City Council/Successor Agency/Public Financing Authority Joint Regular Meeting ("Council"/"SA"/"PFA") will be held in person and will meet at City Hall – City Council Chambers, 1600 West Beverly Boulevard, Montebello, California. The meeting will be live streamed and can be watched on the City’s website and YouTube Channel via the following link: https://www.cityofmontebelloca.gov, and may also be viewed on Spectrum Public Access Channel 3 for all Spectrum cable subscribers.
AMERICANS WITH DISABILITIES ACT: In compliance with the Americans with Disabilities Act (ADA) any person with a disability who requires special accommodations in order to participate in a meeting should contact the Administration Office at (323) 887-1437 Monday-Thursday from 7:30 a.m.-5:30 p.m. Please call 48 hours prior to the meeting to ensure that reasonable arrangements can be made to provide accessibility to this meeting (28 CFR 35.102-
35.104 ADA Title II 1203). If you require translation services, please contact the City Clerk’s office 72 hours before this meeting. Si necesita servicios de traducción, comuníquese con la Oficina del Secretario Municipal 72 horas antes de esta reunión. 如果您需要翻译服务，请在会议前 72 小时联系市书记员办公室 RULES OF DECORUM:
As Established by Ordinance 2443, adopted on October 27, 2021: Signs, placards, banners, horns, noise-making devices, or other similar items shall not be permitted in the audience during a Public Meeting if the presence of such item disturbs, disrupts or otherwise impedes the orderly conduct of the meeting. All persons attending a public meeting shall remain seated in the seats provided, unless addressing the body at the podium or entering or leaving the meeting.
No member of the audience shall willfully interrupt the orderly conduct at the meeting, this includes clapping or otherwise speaking from their seats. The presiding officer shall direct the removal of any individual whose willful interruption renders infeasible the orderly conduct of the meeting. In the event the removal of the individual or individuals willfully interrupting the meeting does not restore order, the presiding officer may order the meeting room cleared and continue in session. Speakers shall not engage in willful conduct which interrupts the meeting or interferes with the orderly conduct of the meeting. Any person who becomes boisterous while addressing the Council/PFA or who otherwise disrupts the orderly conduct of the Council/PFA’s business shall be subject to removal from the Chambers after being admonished by the presiding officer.
PUBLIC COMMENTS:
In-Person: For those interested in participating during the Public Comment period(s) or public testimony period for Public Hearings of the City Council/SA/PFA meetings, you may address the City Council/SA/PFA in person the day of the meeting. Speakers will be required to fill out a speaker card provided at the door and turn it into the Deputy City Clerk prior to each Public Comment announcement period. Staff will number and call each speaker card in the order received. Closed Session begins at 5:00 p.m. and Regular Session begins no later than 6:00 p.m.
Via Email: The public may also submit emailed comments via the City’s email address:
[email protected], up until the day of the meeting, Wednesday, November 16, 2022 by 3:00 p.m. These comments will be submitted to all members of the City Council/SA/PFA and may not be read aloud but will be entered into the record of the proceedings to the extent they relate to matters listed on the posted agenda or otherwise address matters/issues within the subject matter jurisdiction of the City Council/SA/PFA. Any requests to provide public comment which is submitted after the deadlines indicated above will not be submitted to the City Council/SA/PFA, with the exception of non-agenda written item comments which will be held over for the next regularly scheduled meeting.
AGENDA MATERIALS: The agenda and/or agenda packet are available for public inspection at City’s website at:
https://cityofmontebello.hosted2.civiclive.com/cms/One.aspx?portalId=58756&pageId=77219
November 16, 2022: City Council, Successor Agency, and Public Financing Authority Meeting
IN CONSIDERATION OF OTHERS, PLEASE TURN OFF, OR MUTE, ALL CELL PHONES AND PAGERS
THANK YOU FOR YOUR COOPERATION
OPENING CEREMONIES
CALL TO ORDER
ROLL CALL
PUBLIC COMMENTS FOR CLOSED SESSION ITEMS
At this time, the general public may address the City Council/ SA/PFA on Closed Session Items. Please be aware that the maximum time allotted for members of the public to speak on Closed Session Items shall not exceed three (3) minutes per person. State Law prohibits the City Council/PFA from taking action or entertaining extended discussion on a topic not listed on the agenda. Please show courtesy to others and direct all of your comments to the Mayor.
CLOSED SESSION 5:00 P.M.
The City Attorney shall provide a briefing on the item listed for Closed Session as follows:
1. THREAT TO PUBLIC SERVICES OR FACILITIES
Government Code Section 54957
Consultation with City Manager, Police Chief, City Attorney and other related City officials.
2. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Government Code Section 54956.8
Property 901 Via San Clemente, Montebello CA
Agency’s Negotiator René Bobadilla, City Manager
Negotiating Party Topgolf
Under Negotiation Price and Terms
REGULAR SESSION NO LATER THAN 6:00 P.M.
CLOSED SESSION REPORT
INVOCATION
PLEDGE OF ALLEGIANCE
CORRECTIONS TO THE AGENDA CITY MANAGER
CEREMONIAL/PRESENTATIONS
3. RECOGNITION OF CITIZEN OF THE MONTH - ERNIE PERALTA
4. RECOGNITION OF MENS HEALTH AWARENESS MONTH
5. RECOGNITION OF ALZHEIMER DISEASE AWARENESS MONTH
PUBLIC COMMENTS ON NON-AGENDA AND AGENDA ITEMS (30 MINUTES) At this time, the general public may address the City Council/ SA/PFA on both non-agenda and agenda items.
Please be aware that the maximum time allotted for members of the public to speak shall not exceed three (3) minutes per speaker.
November 16, 2022: City Council, Successor Agency, and Public Financing Authority Meeting
State Law prohibits the City Council/SA/PFA from taking action or entertaining extended discussion on a topic not listed on the agenda. Please show courtesy to others and direct all of your comments to the Mayor.
STAFF COMMUNICATIONS ON ITEMS OF COMMUNITY INTEREST
PUBLIC HEARING
6. PUBLIC HEARING APPROVING AN ENERGY SERVICES CONTRACT WITH THERMA, LLC.
NOTE: This Public Hearing has been canceled.
REGULAR BUSINESS
7. INTRODUCE AND WAIVE FIRST READING OF ORDINANCE NO. 2457 AMENDING CHAPTER 2.14 OF THE
MONTEBELLO MUNICIPAL CODE TO UPDATE THE RULES OF ORDER AND PROCEDURE FOR THE
CONDUCT OF ALL CITY COUNCIL AND SUCCESSOR AGENCY MEETINGS, PROCEEDINGS, AND
BUSINESS
RECOMMENDATION: It is recommended that the City Council:
1. Introduce and waive First Reading of Reading of Ordinance No. 2457 Amending Chapter 2.14 of the Montebello Municipal Code Updating the Rules of Order and Procedure for the Conduct of all City Council and Successor Agency Meetings, Proceedings, and Business; and
2. Take such additional related action that may be desirable.
8. FISCAL YEAR 2022-23 FIRST QUARTER BUDGET REPORT
RECOMMENDATION: It is recommended that City Council:
1. Receive and file this agenda report and the presentation on the Fiscal Year 2022-23 First Quarter Budget; and
2. Update the Table of Organization/Master Position Control by adding four (4.0) positions (Attachment C) to various departments; and
3. Approve Resolution No. 22-91(Attachment D) amending the Compensation Plan to add two (2.0) new job classifications; and
4. Take such additional, related action that may be desirable.
CONSENT CALENDAR
All matters listed under the Consent Calendar are considered to be routine. Any items a Councilmember wishes to discuss should be designated at this time. All other items may be approved in a single motion. Such approval will also waive the reading of any ordinance.
9. SECOND READING AND ADOPTION OF ORDINANCE NO’S. 2454, 2455, AND 2456 APPROVING DEVELOPMENT AGREEMENTS (DA02-22, 03-22, AND 04-22) BETWEEN THE CITY OF MONTEBELLO AND CLEAR CHANNEL OUTDOOR, LLC FOR PROPERTY AT 1720 S. BLUFF ROAD, 1633 WASHINGTON BOULEVARD, AND 1915 W. WHITTIER BOULEVARD
RECOMMENDATION: It is recommended that the City Council:
November 16, 2022: City Council and Public Financing Authority Meeting
1. Waive second reading and adopt Ordinance No. 2454 approving a Development Agreement (DA 02-22) by and between the City of Montebello and Clear Channel Outdoor, LLC for the property located at 1720 S. Bluff Road (Attachment A), and find the project is exempt pursuant to Sections 15061(b)(3) (“Common Sense Exemption”) and 15303 (“New Construction or Conversion of Small Structures”) of the CEQA Guidelines; and
2. Waive second reading and adopt Ordinance No. 2455 approving a Development Agreement (DA 03- 22) by and between the City of Montebello and Clear Channel Outdoor, LLC for the property located at 1633 Washington Blvd. (Attachment B), and find the project is exempt pursuant to Sections 15061(b)(3) (“Common Sense Exemption”) and 15303 (“New Construction or Conversion of Small Structures”) of the CEQA Guidelines; and
3. Waive second reading and adopt Ordinance No. 2456 approving a Development Agreement (DA 04- 22) by and between the City of Montebello and Clear Channel Outdoor, LLC for the property located at 1915 W. Whittier Blvd. (Attachment C), and find the project is exempt pursuant to Sections 15061(b)(3) (“Common Sense Exemption”) and 15303 (“New Construction or Conversion of Small Structures”) of the CEQA Guidelines; and
4. Take such additional, related action that may be desirable.
10. 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 RECOMMENDATION: 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 No. 4049, 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 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.
11. NOTICE OF COMPLETION - CP NO. 881, VARIOUS STREETS IMPROVEMENT PROJECT RECOMMENDATION: 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
November 16, 2022: City Council, Successor Agency, and Public Financing Authority Meeting
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.
12. AUTHORIZATION OF FINAL INVOICE PAYMENT FOR AGREEMENT NOS. 3504 AND 3066 -
INFRASTRUCTURE ENGINEERS
RECOMMENDATION: 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.
13. APPROVAL OF AGREEMENT NO. 4047 WITH KTU&A (DBA KTUA) FOR THE RIO HONDO RIVER ACCESS
IMPROVEMENT PROJECT DESIGN SERVICES
RECOMMENDATION: 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.
14. AUTHORIZE THE CITY MANAGER TO APPROVE A LEASE AGREEMENT WITH E-Z-GO DIVISION, OF TEXTRON INCORPORATED, FOR FORTY-SIX (46) ELECTRIC GOLF CARTS RECOMMENDATION: It is recommended that the City Council:
1. Approve a five-year lease agreement for electric golf carts with E-Z-GO Division of Textron Inc. for use at the Montebello Golf Course (Golf Course); and
2. Authorize the City Manager to execute the lease agreement on behalf of the City; and
3. Take such additional, related action that may be desirable.
15. AWARD A PROFESSIONAL SERVICES AGREEMENT, NO. 4040, TO UNIVERSAL PROTECTION SERVICE,
LP DBA ALLIED UNIVERSAL SECURITY SERVICES, FOR THE UNARMED TRANSIT SECURITY GUARD SERVICES REQUEST FOR PROPOSAL NO. 22-7
RECOMMENDATION: It is recommended that the City Council:
1. Award a Professional Services Agreement, No. 40-40 to Universal Protection Service, LP dba Allied Universal Security Services, for a three-year (3-year) term with the option for renewal of up to two (2)
November 16, 2022: City Council, Successor Agency, and Public Financing Authority Meeting
additional one-year (1-year) terms, for a total not-to-exceed amount of Two Million, Seven Hundred and Nine Thousand, Two-Hundred and Thirty-Nine Dollars ($2,709,239) over the three-year term; and
2. Authorize the City Manager to take actions necessary to execute and finalize an agreement on behalf of the City of Montebello; and
3. Take such additional, related action that may be desirable.
16. APPROVAL TO PROVIDE RECRUITMENT INCENTIVES TO QUALIFIED FIREFIGHTERS/PARAMEDICS RECOMMENDATION: It is recommended that the City Council:
1. Approve a Lateral Bonus Recruitment Incentive Program to provide recruitment incentives for qualified Firefighter/Paramedics and referral bonuses to current employees; and
2. Take such additional, and related action that may be desirable.
17. APPROVAL TO SUBMIT GRANT APPLICATION TO THE BOARD OF STATE AND COMMUNITY CORRECTIONS, PROPOSITION 64 PUBLIC HEALTH AND SAFETY GRANT PROGRAM RECOMMENDATION: It is recommended that the City Council:
1. Approve the submission of the grant application for the Board of State and Community Corrections (BSCC), Proposition 64 Public Health and Safety Grant Program; and
2. Take such additional, related action that may be desirable.
18. APPROVAL OF PROFESSIONAL SERVICES AGREEMENT NO. 4039 WITH KIM TURNER, LLC FOR
POLICE COMMUNICATIONS CONSULTING SERVICES
RECOMMENDATION: It is recommended that the City Council:
1. Approve the attached Professional Services Agreement No. 4039 with Kim Turner, LLC in an amount not to exceed $59,378; and
2. Take any additional actions necessary to effectuate the procurement of services.
19. ADOPT RESOLUTION NO. 22- 86 AMENDING THE MASTER FEE SCHEDULE AND ESTABLISHING
CONCEALED WEAPONS PERMIT (CCW) APPLICATION FEES
RECOMMENDATION: It is recommended that the City Council:
1. Adopt Resolution No. 22-86, Amending the Master Fee Schedule establishing Concealed Weapons Permit (CCW) Application Fees; and
2. Take such additional, related action that may be desirable.
20. APPROVAL OF AMENDMENT NO. 1 TO AGREEMENT NO. 3957 WITH 789, INC. TO RETAIN PROFESSIONAL SERVICES FOR CITYWIDE BRANDING NEEDS.
RECOMMENDATION: It is recommended that the City Council:
1. Approve Amendment No. 1 to Agreement No. 3957, between the City of Montebello and 789 ,Inc. for ongoing professional graphics design and support for Citywide branding services; and
2. Authorize the City Manager and/or his designee to execute Amendment No. 1 with 789, Inc. on behalf of the City; and
3. Take such additional, related action that may be desirable.
November 16, 2022: City Council, Successor Agency, and Public Financing Authority Meeting
21. APPROVAL OF AGREEMENT NO. 4048 - LS-1 OPTION E AGREEMENT WITH SOUTHERN CALIFORNIA
EDISON TO REPLACE HIGH PRESSURE SODIUM VAPOR STREET LIGHTS WITH LIGHT-EMITTING DIODE
STREET LIGHTS
RECOMMENDATION: It is recommended that the City Council:
1. Approve an LS-1 Option E authorization with Southern California Edison (SCE) to replace high pressure sodium vapor (HPSV) street lights with light-emitting diode (LED) street lights, and find the project is exempt pursuant to Sections 15061(b)(3) (“Common Sense Exemption”) and 15303 (“New Construction or Conversion of Small Structures”) of the CEQA Guidelines; and
2. Authorize the City Manager or his designee to sign the authorization agreement; and
3. Take all necessary, additional actions as necessary.
22. TREASURER'S REPORT FOR THE QUARTER ENDING SEPTEMBER 30, 2022 RECOMMENDATION: It is recommended that the City Council:
1. Receive and file the Quarterly Treasurer’s Report for the quarter ending September 30, 2022.
23. AUTHORIZATION TO APPROVE ADDITIONAL PURCHASES FROM THE SAUCE CREATIVE SERVICES CORPORATION FOR FISCAL YEAR 2022-23
RECOMMENDATION: It is recommended that the City Council:
1. Approve an additional $100,000 for community promotions, general printing, and graphic design services from The Sauce Creative Services Corporation (The Sauce); and
2. Take any additional actions necessary to effectuate the procurement of services.
24. PAYMENT OF BILLS: ADOPT RESOLUTION NO. 22-89 APPROVING THE CITY WARRANT REGISTER OF
DEMANDS
NOVEMBER 16, 2022
RECOMMENDATION: It is recommended that the City Council:
1. Adopt Resolution No. 22-89 approving the Warrant Register dated November 16, 2022.
25. APPROVAL OF CITY COUNCIL MINUTES – AUGUST 24, 2022 SPECIAL CITY COUNCIL MEETING; AUGUST 24, 2022 CITY COUNCIL MEETING; SEPTEMBER 14, 2022 JOINT CITY COUNCIL AND PUBLIC FINANCING AUTHORITY MEETING; SEPTEMBER 28, 2022 JOINT CITY COUNCIL AND PUBLIC FINANCING AUTHORITY; OCTOBER 12, 2022 JOINT CITY COUNCIL AND PUBLIC FINANCING AUTHORITYAND; AND OCTOBER 26, 2022 JOINT CITY COUNCIL AND PUBLIC FINANCING AUTHORITY RECOMMENDATION: It is recommended that the City Council:
1. Approve said minutes as written.
26. AMENDMENT OF AGREEMENTS RELATED TO QUIET CANNON MANAGEMENT AND ASSOCIATED
BUSINESS ENTITIES
RECOMMENDATION: It is recommended that the City Council and Public Financing Authority:
1. Approve the amended Agreements related to the Quiet Cannon Management (QMC) and associated business entities related to the Golf Course Improvements in substantially the form as presented; and
2. Take such additional, related action that may be desirable.
November 16, 2022: City Council, Successor Agency, and Public Financing Authority Meeting
AB 1234 TRAVEL REPORTS
Members of the City Council will provide a brief report on meetings attended at the expense of the local agency as required by Government Code Section 53232.3(d).
COUNCIL ORALS
Council member announcements; requests for future agenda items; conference/meetings reports. • Kimberly A. Cobos-Cawthorne, Mayor
• Angie M. Jimenez, Mayor Pro Tem
• David N. Torres, Councilmember
• Scarlet Peralta, Councilmember
• Salvador Melendez, Councilmember
ADJOURNMENT
The City of Montebello will adjourn to the next Regular Meeting on December 14, 2022 at 5:00 p.m. which can be live streamed at www.cityofmontebelloca.com (Click on Live Stream).
I, Alicia Fernandez, Senior Deputy City Clerk for the City of Montebello hereby certify that a copy of this agenda has been posted on or before Sunday, November 13, 2022 5:00 p.m.
Alicia Fernandez, Senior Deputy City Clerk
ITEM # 7
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: Arnold Glasman, City Attorney
Alicia Fernandez, Senior Deputy City Clerk
SUBJECT: INTRODUCE AND WAIVE FIRST READING OF ORDINANCE NO. 2457 AMENDING CHAPTER 2.14 OF THE MONTEBELLO MUNICIPAL
CODE TO UPDATE THE RULES OF ORDER AND PROCEDURE FOR
THE CONDUCT OF ALL CITY COUNCIL AND SUCCESSOR AGENCY
MEETINGS, PROCEEDINGS, AND BUSINESS
DATE: November 16, 2022
RECOMMENDATION(S):
It is recommended that the City Council:
1. Introduce and waive First Reading of Reading of Ordinance No. 2457 Amending Chapter 2.14 of the Montebello Municipal Code Updating the Rules of Order and Procedure for the Conduct of all City Council and Successor Agency Meetings, Proceedings, and Business; and
2. Take such additional, related, action that may be desirable.
FISCAL IMPACT:
No direct financial impacts are foreseen as a consequence of updating the Council Rules of Order and Procedure.
BACKGROUND/DISCUSSION:
The rules establishing procedures to address the City Council and standards of decorum were approved in 1989 by adoption of Resolution No. 89-70. Subsequently, Resolution No. 06-22 was adopted to amend the rules addressing the procedures for addressing the City Council and standards of decorum, and to include additional rules
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
such as the order of business, public participation, and City Council oral reports. In 2011, the rules were amended once again to clarify City Council oral communications.
On October 27, 2021, the City Council adopted Ordinance No. 2443 and rescinded Resolution No.’s 89-70, 06-22, 11-89 and 19-124 to consolidate and update the rules of order for the conduct of all City Council and Successor Agency meetings, proceedings, and business. Ordinance No. 2443 maximized the efficiency of City Council meetings and provided general policies and rules pertaining to the operations of the City Council meetings. The most significant changes were establishing a new meeting start time, amending the dark meetings, establishing general meeting requirements, establishing procedures for the conduct of meetings and a proposed meeting length. This proposed Ordinance includes a number of suggested updates which would enhance the clarity of the rules including public comment and Council oral rules, incorporate existing practices, provide uniformity in protocol standards, and establish new protocol standards in accordance with Senate Bill 1100 (“SB 1100”).
This Ordinance will set forth the requirements for a quorum and voting for the temporary seven-member legislative body that will be in existence as a result of the 2022 municipal election until members elected from Districts 2 and 4 take their oath of office as a result of the November 2024 election.
Senate Bill 1100 (“SB 1100”) was signed into law in August of 2022 and authorizes the presiding member of the legislative body conducting a meeting or their designee to remove, or cause the removal of, an individual for disrupting a City Council or Successor Agency meeting. “Disrupting” means engaging in behavior during a meeting that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting and includes but is not limited to, one of the following: (a) a failure to comply with reasonable and lawful regulations adopted by the legislative body, or (b) engaging in behavior that constitutes use of force or a true threat of force. Prior to removing an individual, the presiding officer or their designee shall warn the individual that their behavior is disrupting the meeting and that their failure to cease their behavior may result in their removal. However, removal of an individual for engaging in behavior that constitutes use of force or a true threat of force does not require any warning from the presiding officer.
The purpose of SB 1100 is to give the legislative body clear authorization to restore order to meetings in the event of actual disruptions that are disturbing, disrupting, impeding, or rendering infeasible the orderly conduct of the meeting and, thereby, preserve the rights of other members of the public at the meeting and allow the legislative body to continue its work on behalf of the public.
In addition, as a result of further research, there are certain rules for public participation established by the Fair Political Practices Commission (FPPC) which are stricter than those set forth in the attached Ordinance. The FPPC policy is attached for your reference for the City Council to evaluate and to provide guidance on whether or not to incorporate certain provisions established by the FPPC.
ENVIRONMENTAL IMPACT:
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
There is no environmental impact.
ANALYSIS:
N/A
SUMMARY:
Staff is recommending that the City Council introduce and waive the first reading of Ordinance No. 2457 and adopt the proposed Ordinance No. 2457 at the next regularly scheduled meeting. Once the proposed Ordinance is adopted, Staff will continue to work towards creating a comprehensive handbook that will serve as a reference guide for current City Council and future members. Staff will also work on Rules of Order and Procedure for the conduct of all Commission and Committee meetings, proceedings, and business in the near future.
ATTACHMENT(S)
1. Attachment A - Ordinance No. 2457 Amending Rules of Order
2. Attachment B - FPPC Public Comment Rules
NEXT STEPS:
N/A
ORDINANCE NO. 2457
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MONTEBELLO, CALIFORNIA, AMENDING OF CHAPTER 2.14, OF THE
CITY OF MONTEBELLO MUNICIPAL CODE UPDATING THE RULES OF
ORDER FOR THE CONDUCT OF ALL CITY COUNCIL AND
SUCCESSOR AGENCY MEETINGS, PROCEEDINGS, BUSINESS
RECITALS
WHEREAS, the City Council has, by prior Resolutions, the last of which was Resolution No. 89-70, 06-22, and 11-89, adopted rules for the conduct of its City Council (“Council”) and Successor Agency (“Agency”) meetings.; and WHEREAS, the City Council has, by prior Resolutions, the last of which was Resolution No. 19-124, canceled on an annual basis City Council meetings on the First week of July and the second meetings of November and December to honor future summer vacations and holiday schedules; and
WHEREAS, so that there is consistency across the conduct of all City-related business, certain such rules should apply city-wide to the Council/Agency and joint meetings.
WHEREAS, Ordinance No. 2443 was passed and approved by the City Council of the City of Montebello (“City Council”) on October 27, 2021, rescinding Resolution No.’s 89-70, 06-22,11-89, and 19-124 to consolidate and update the rules of order for the conduct of all City Council and Successor Agency meetings, proceedings, and business.
WHEREAS, Senate Bill 1100 (“SB 1100”) was signed into law in August of 2022 and authorizes the presiding member of the legislative body conducting a meeting or their designee to remove, or cause the removal of, an individual for disrupting a City Council or Successor Agency meeting; and
WHEREAS, the purpose of SB 1100 is to give the legislative body clear authorization to restore order to meetings in the event of actual disruptions that are disturbing, disrupting, impeding, or rendering infeasible the orderly conduct of the meeting and, thereby, preserve the rights of other members of the public at the meeting and allow the legislative body to continue its work on behalf of the public; and WHEREAS, the City Council desires to amend the Montebello Municipal Code to update the rules of conduct for the City Council and Successor Agency meetings.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MONTEBELLO HEREBY ORDAINS AS FOLLOWS:
SECTION 1. The City Council for the City of Montebello finds and declares the foregoing true and correct, and incorporates said recitals fully into this Ordinance.
ORDINANCE NO. 2457
SECTION 2. Chapter 2.14 “City Council/Agency Meeting Rules of Order” is hereby amended to read as follows (deletions in strikethrough and additions in double underline):
Chapter 2.14 – CITY COUNCIL/AGENCY MEETING RULES OF ORDER
2.14.010 - Meetings Open to the Public.
The Council and Agency are subject to the Brown Act Open Meetings Law. (Government Code 54950 et seq). All meetings of the Council and Agency are open to the public, except for closed sessions which are authorized to be held in accordance with the applicable provisions of the Brown Act.
2.14.020 - City Council/Agency Meetings and Agenda Materials.
A. Regular Meetings. Regular meetings of the City Council and Agency shall be held at the City Hall Council Chambers at 1600 West Beverly Boulevard, Montebello, California, except as otherwise provided from time-to-time and authorized by the Brown Act. The regular meetings of the City Council and Agency shall be held on the second and fourth Wednesdays of each month. Regular meeting agendas shall be posted on the City’s website and at City Hall no later than 72 hours prior to the meeting. The City Council Closed Session will start at 5:00 p.m. The Agency Chairperson may recess the Agency meeting to take up City Council closed session items. The regular City Council/Successor Agency meeting will start immediately following the discussion of Closed Session items.
Closed Session shall not exceed 1.5 hours. Whenever the day for holding any of the meetings falls on a holiday, the meeting shall be held on the next business day unless otherwise ordered by the City Council/Agency at a prior meeting.
B. Special Meetings. Special meetings are “Special” because the presiding officer or majority of the legislative body can call them on a minimum of 24 hours’ notice, as authorized by the Brown Act. Special meetings need not be held at City Hall, as long as the alternate location is within the City. Special meeting agendas shall be posted on the City’s website and at the meeting location, if located away from City Hall in a place to which the public has unrestricted access and where the notice and agenda are not likely to be removed or obscured by other posted materials. The Council/Agency makes every effort to provide notice well in advance of 24 hours, especially when the special meeting is for the purpose of conducting a Study Session.
1. Study Sessions are meetings during which the Council/Agency receives information about Council/Agency business in an informal setting. The informal study session setting is intended to encourage in-depth discussion and detailed questioning and brainstorming by Council/Agency on issues of significant interest, including but not limited to City/Agency policy matters, budget and financial matters zoning applications, major public works projects and other related topics. The Council/Agency may discuss the material freely without following formal rules of parliamentary procedure.
Staff may be directed to bring matters back for future Council/Agency
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consideration as no action can be taken at a study session. The Decorum rules still apply to the behavior of the Council/Agency and public.
C. Broadcasting of Meetings. All regular Council/Agency meetings shall be live streamed on the City’s website and broadcasted on the City’s Government Access Channel (Channel 3) and will be video-recorded, unless the City/Agency is unable to do so due to unforeseen technical circumstances or circumstances beyond the City’s/Agency’s control.
D. Dark Meetings. The City Council/Agency regular meetings shall go dark four (4) times throughout the year. The regular meetings that will not be held are the first and second meetings of July, and the second meetings of November and December.
E. Agenda Materials. The City Clerk office shall post the agenda materials and supplemental agenda materials on the City’s agenda website. The agenda packets are available for public inspection at the City’s website. The agenda cover sheets may also be emailed upon written request.
2.14.030 - Order of Business.
The business of the City Council and Agency at regularly scheduled meetings shall be disposed of in the following order:
City Council & Successor Agency - 5:00 p.m. Closed Session Call to Order
Roll Call
Announcement of Closed Session Items
Public Comments on Closed Session Items (Limited to 30 minutes) Closed Session
City Council & Successor Agency – Regular Session starts no later than 6:00 p.m. following Closed Session
Closed Session Report (If there is no Closed Session, the meeting will start no later than 6:00 p.m.) Invocation
Pledge of Allegiance
Corrections to the Agenda
Ceremonial Items/Presentations
Public Comments on Non-Agenda and Agenda Items (Limited to 30 minutes and each speaker will have 3 minutes total for all items requested to speak on by each speaker. All other comments which exceed the 30 minutes will be entered into the record and distributed to the City Council.)
Staff Communications on Items of Community Interest
Public Hearing
Old Business
Regular Business
Consent Calendar (Routine Matters)
AB 1234 Travel Reports
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Council/Agency Orals
Adjournment
2.14.040 - General Requirements.
A. Attendance. Council/Agency Members, the City Clerk, City Attorney, and City Manager, along with any other city officers and department heads that have been requested to be present, shall take their regular stations in the Council chamber prior to the start of any meeting, except during recognized absences. The Council/Agency expects its members to attend regularly and notify the City Clerk, Deputy City Clerk, Assistant City Manager, or City Manager of any planned absences at least two (2) hours prior to the start of any meeting. Notification shall be made via formal written and/or email notice, or confirmed verbally.
B. Quorum. In a five-member body, three (3) members of the Council/Agency shall constitute a quorum and shall be sufficient to transact business. If less than three Council/Agency members appear at a regular meeting, the Mayor/Chairperson, Mayor Pro Tem/Vice Chairperson in the absence of the Mayor/Chairperson, any Council/Agency member in the absence of the Mayor/Chairperson and Mayor Pro Tem/Vice Chairperson, or in the absence of all Council/Agency members, the City Clerk or Deputy City Clerk, shall adjourn the meeting to a stated day and hour.
Business of the Council/Agency may be conducted with a minimum of three members being present; however, pursuant to the California Government Code, matters requiring the expenditure of City funds and all Resolutions and non-urgency Ordinances must receive three (3) affirmative votes for approval (see Section 62.14.040. General Requirements, H. “Voting Procedures”).
When the November 2022 election results are certified and elected officials are sworn into office, the temporary seven-member legislative body established by Section
2.08.050(G) shall require four members of the Council/Agency to constitute a quorum and that shall be sufficient to transact business. If less than four Council/Agency members appear at a regular meeting, the Mayor/Chairperson, Mayor Pro Tem/Vice Chairperson in the absence of the Mayor/Chairperson, any Council/Agency member in the absence of the Mayor/Chairperson and Mayor Pro Tem/Vice Chairperson, or in the absence of all Council/Agency members, the City Clerk or Sr. Deputy City Clerk, shall adjourn the meeting to a stated day and hour. Business of the Council/Agency may be conducted with a minimum of four members being present; however, pursuant to the California Government Code, matters requiring the expenditure of City funds and all Resolutions and non-urgency Ordinances must receive four affirmative votes for approval (see Section 62.14.040. General Requirements, H. “Voting Procedures”) or more affirmative votes if otherwise established by law, ordinance, or contract. This paragraph will sunset on the date that the members elected from Districts 2 and 4 take their oath of office as a result of the election occurring in November 2024, reverting the legislative body from
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seven members to five members, but shall not affect the required votes as otherwise established by law, ordinance or contract.
C. Teleconference Attendance of Council/Agency Members at Meetings. The Council/Agency complies with the specific requirements relating to teleconferencing provisions per the Brown Act and shall apply to Council/Agency members. “Teleconference” is defined as a “meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both”. Requests by Council/Agency members to attend a meeting via telephonic appearance are actively discouraged. In addition, at least a quorum of the Council/Agency must participate from a location within the City (Government Code Section 54953(b)(3)).
If these two threshold requirements are met, the Council/Agency member who will be appearing telephonically must ensure that:
1. The meeting agenda identifies the teleconference location and is posted at that location in an area that is accessible and visible 24 hours a day for at least 72 hours prior to the meeting.
2. The teleconference location is open and fully accessible to the public, and fully accessible under the Americans with Disabilities Act, throughout the entire meeting. These requirements apply to private residences, hotel rooms, and similar facilities, all of which must remain fully open and accessible throughout the meeting, without requiring identification or registration.
3. The teleconference technology used is open and fully accessible to all members of the public to participate, including those with disabilities.
4. Members of the public who attend the meeting at the teleconference location have the same opportunity to address the Council/Agency from the remote location that they would if they were present in Council Chambers.
5. The teleconference location must not require an admission fee or any payment for attendance.
6. All votes must be by roll call.
7. If the meeting will include a closed session, the Council/Agency member must also ensure that there is a private location available for that portion of the meeting.
D. Approved Teleconference Guidelines for Council/Agency Members Include:
1. Three days written notice in advance of the publication of the agenda must be given by the Council/Agency member to the City Clerk’s office; the notice
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must include the address at which the teleconferenced meeting will occur, the address the Council/Agency packet should be mailed to, who is to initiate the phone call to establish the teleconference connection, and the phone number of the teleconference location. If cellular telephones are used to participate in teleconferenced meetings, Council/Agency members need to ensure the speaker phone option is functioning.
2. The Council/Agency member is responsible for posting the Council/Agency agenda in the remote location, or having the agenda posted by somebody at the location and confirming that posting has occurred. The City Clerk will assist, if necessary, by emailing, faxing or mailing the agenda to whatever address or fax number the Council/Agency member requests; however, it is the Council/Agency member’s responsibility to ensure that the agenda arrives and is posted. If the Council/Agency member will need the assistance of the City Clerk in delivery of the agenda, the fax number or address must be included in the five-day advance written notice above.
3. The Council/Agency member must ensure that the location will be publicly accessible while the meeting is in progress.
4. The Council/Agency member must state at the beginning of the meeting that the posting requirement was met at the location and that the location is publicly accessible and must describe the location.
E. Closed Sessions. Closed sessions are the only type of agenda item that the public cannot observe, however, public comment is permitted prior to the City Council recessing into closed session. State law allows closed sessions to discuss pending litigation, employment matters, real estate negotiations, and certain other matters as authorized by the Brown Act. To the greatest extent possible, the City Attorney and City Clerk shall use standardized agenda descriptions that are consistent with Government Code Section 54954.5. Closed sessions will be scheduled at the beginning of Council/Agency meetings to the extent possible and appropriate.
1. State law requires the Council/Agency to make a public report after a closed session when certain kinds of actions are taken.
2. The City Manager and City Attorney, and/or their designees, shall attend closed sessions unless it is necessary to excuse them. Only such additional staff shall attend as are necessary and then only if the legal privileges of confidentiality obtained in an executive session are not waived.
3. No minutes of closed sessions shall be kept. The City Attorney shall record the information necessary to comply with state law.
4. No person in attendance at a closed session may disclose the substance or effect (e.g., statements, discussions, etc.) of any matter discussed during the session; all matters are strictly confidential.
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5. No person in attendance at a closed session may disclose or share any documents/materials used during the session, printed or digital materials.
Documents/materials may include, but are not limited to: reports; memos/letters; any information related to employee matters or litigations.
6. Council/Agency may be asked to return all written materials distributed during closed session.
7. Any breach of releasing confidential information by any Council/Agency member may result in revoking or suspending the member’s right to receive further confidential information or other remedies as authorized by law.
F. Ceremonial Items/Presentation: Items presented during this item are limited to: community and Council/Agency presentations, proclamations, certificates of recognition, awards, and guest introductions. “Ceremonial Items/Presentations” shall be limited to 20 minutes. All presentations and exhibits are encouraged to be submitted in advance.
Nationally Recognized Health and Heritage months will also be acknowledged during this item. The list of approved nationally recognized health and heritage months are hereby attached as “Exhibit A”. The approved list is subject to change based upon approval, removal, or amendment by Resolution or Consensus of the City Council.
Proclamations are issued for matters of local, regional, or national concern and are generally issued to organizations or events residing in, or occurring within the greater Montebello City area. Proclamations are ceremonial and do not carry any legislative or legal value. The Mayor/Chairperson, without formal action of the Council/Agency, may issue proclamations (requests must be made on an annual basis). A Proclamation/Certificate Form, attached as “Exhibit B” (Exhibit B is subject to change based upon approval, removal, or amendment by Resolution or Consensus of the City Council), must be completed and submitted to the City Clerk’s office by the Mayor/Chairperson for all Proclamation requests at least two weeks in advance. This allows the Public Affairs office to process based on eligibility requirements. Proclamations must also be formally accepted by a recipient of the non-profit organization. The primary reasons for issuance include:
1. Recognition of an organization’s event or special action.
2. Recognition of a national or state non-profit event that coincides with a local event.
3. Significant historical commemorations.
4. Recognition of extraordinary achievement for which formal language is provided.
Proclamations will not be issued for:
1. Events or organization with no direct relationship to the City of Montebello.
2. Campaigns or events contrary to city policies.
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3. The request is for commercial/for-profit purposes.
4. The request conflicts with federally recognized months, weeks or days of observance.
Certificate of Recognition (COR) are issued to recognize special events, significant achievements, organizations, businesses, or individuals residing and/or located within the Montebello City area. The Mayor/Chairperson, Council/Agency members, City Staff, may issue Certificates of Recognition. A Proclamation/Certificate Request Form, attached as “Exhibit B”, must be completed and submitted to the City Clerk’s office by the Mayor/Chairperson or Council/Agency member for all COR requests at least two weeks in advance. The primary reasons for issuance include:
1. Retirement – the person must have been employed with their current employer for 25 years or more.
2. Birthday – the person must be at least 80 years of age.
3. Wedding, church, or pastoral anniversary – 25 years or more.
4. Significant education/life achievement.
5. Exemplary service or significant contributions by an organization, business, or individual to the City.
6. New business openings only at the request of the City of Montebello Chamber’s Office.
7. Approved Nationally Recognized Health & Heritage months.
Additional Details:
1. City Clerk staff shall distribute proclamations/certificates of recognition in between each presentation, at the end of the presentations, or can be picked up the next business day.
2. The Council/Agency will be available for pictures.
G. Preparation of Minutes. City Clerk staff shall prepare “Action Minutes” of all public meetings of the City Council/Successor Agency. Action Minutes include very little narrative, if any, only motions and votes shown in the record. Staff shall prepare Summary Minutes for Public Hearing items.
H. Voting Procedures. On the consideration of every motion, the vote shall be taken by consensus vote (“all those in favor signify by saying ‘aye’ those opposed say ‘no’, any abstentions.) or roll call or electronic device and entered in full upon the record.
A simple majority vote of those in attendance, unless a full majority of the entire body is otherwise required by law (i.e. ordinances or resolutions), is needed to pass a motion as per Rosenberg’s Rules (e.g., in a five-member body, if the vote is three in favor and two opposed, the motion passes). As per Rosenberg’s Rules or as required by law, a super majority (two-thirds majority) vote is needed when applicable.
Every non-urgency Ordinance and any Resolution or order for franchises or payments of money shall require three (3) affirmative votes. An urgency Ordinance and certain resolutions shall require four (4) affirmative votes (e.g., adding matters to the agenda,
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Resolution of Necessity). A roll call vote shall be used in these cases with the Mayor/Chairperson called last.
Unless a Council/Agency member audibly votes in the affirmative, disqualifies himself or herself, or expressly declines to vote, his or her silence or any abstention shall be recorded as a vote in concurrence with the majority vote of those voting on the matter before the Council/Agency.
Council/Agency members may change their votes before the next item on the agenda is called or before adjournment of the meeting in which the vote is cast. It is the responsibility of every Council/Agency member to vote unless disqualified for cause accepted by the Council/Agency or by opinion of the City Attorney. No Council/Agency member can be compelled to vote.
Council/Agency members should only abstain if they are not sufficiently informed about an item, e.g. when there was a prior hearing and they were unable to view the prior meeting before the current meeting.
A Council/Agency Member who disqualifies him or herself pursuant to the Political Reform Act of 1974 because of any financial interest and/or conflict of interest shall disclose the nature of the conflict and may not participate in the discussion or the vote. A Council/Agency Member may otherwise disqualify him or herself due to personal bias or the appearance of impropriety. A Council/Agency member who is disqualified by reason of a conflict of interest in any matter shall not remain in his or her seat during the debate and vote on such matter, but shall request and be given the permission of the Presiding Officer to step down from the dais. A Council/Agency member stating such disqualification shall not be counted as part of a quorum and shall be considered absent for the purpose of determining the outcome of any vote on such matter.
In the event of a tie, the motion always fails since an affirmative vote is required to pass any motion (e.g., in a five-member body, if the vote is two in favor and two opposed, with one member absent, the motion is defeated). Before a motion is made on the next item on the agenda, any member of the Council/Agency may make a motion to continue the matter to another date. Any continuance hereunder shall suspend the running or calculation of any time in which action of the Council/Agency is required by law. Nothing herein shall be construed to prevent any Council/Agency member from agendizing a matter that resulted in a tie vote for a subsequent meeting.
I. One-Hour Rule. Respect the “One Hour” Rule for Staff Work. Requests for staff support should be made to the City Manager, according to the protocol for channeling communications. Any request, which would require more than one hour of staff time to research a problem or prepare a response and/or will cost $1,000 or more, will need to be approved in advance by the full Council/Agency to ensure that staff resources are allocated in accordance with overall Council/Agency priorities. Once notified that a request for information or staff support would require more than one hour and/or will cost $1,000 or more, the Council/Agency member may request that the City Manager place the request on an upcoming Council/Agency agenda.
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J. Confidentiality. No Council/Agency member or public employee shall, except as required in the performance of his duties, or in the course of any conduct reasonably believed to be in the performance of his duties, disclose confidential information gained by reason of his official position, nor shall he otherwise use the information for his personal interest. Confidential information shall include any information/materials declared as confidential by City Attorney and/or City Staff.
K. Use of Electronic Communication Devices on the Dais. The Council’s use of personal electronic communication devices, including but not limited to cell phones, smartphones, computers/laptops, and tablets are prohibited during a City Council meeting. The use of these devices may lead to the public’s perception that a Councilmember is not paying attention to the subject matter at hand, or that a Councilmember is receiving information relative to the subject matter at hand that other Councilmembers and members of the public are not receiving, either one of which is inimical to good government and transparency. Therefore, the Council’s use of electronic communication devices (including cell phones), other than for the purpose of accessing agenda materials that are on a Councilmember’s City I-pad or lap top computer, is prohibited during Council meetings.
2.14.050 - Public Comments.
Every Regular City Council and Agency Agendas shall contain two (2) Public Comments periods, with the exception of Special Meetings which shall contain one (1) Public Comment period. on non-agenda items and agenda items in substantially the following form: Please note that the Mayor/Chairperson, in his/her discretion, and/or in consultation with the body, may limit or extend time for public comment as he/she may find reasonable under the circumstances. In addition, Council/Agency members shall not enter into debate or discussion with speakers during a Public Comment period.
A. Regular City Council/Agency Meetings. Meetings shall contain two 30- minute Public Comment periods; one on Closed Session Items and the other on Non- Agenda Items and Agenda Items in substantially the following form:
1.Closed Session Items: public comment for matters listed under Closed Session will be allowed during the “Public Comments on Closed Session Items” section of the meeting.
a. Speakers may not cede their time to other speakers.
b. The maximum time allotted for members of the public to speak on Closed Session Items shall not exceed three (3) minutes per person. c. “Public Comments on Closed Session Items” is limited to 30-minutes total.
2.Non-Agenda and Agenda Items: public comment for matters not on the agenda (non-agenda items) and matters listed on the agenda will be allowed shall be limited to matters within the subject matter jurisdiction of
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the body (at regular meetings only). Anyone wishing to address the city council/successor agency may do so during the “Public Comments on Non- Agenda Items and Agenda Items” period section of the meeting. a. Public comment for matters non-agenda items shall be limited to matters within the subject matter jurisdiction of the body. b. Public comment on matters on the agenda will be allowed only for items of business to be discussed by the body.
c. Speakers may not cede their time to other speakers.
d. The maximum time allotted for members of the public to speak on both Non-Agenda and Agenda Items shall not exceed three (3) minutes per person.
e. “Public Comments on Non-Agenda Items and Agenda Items” is limited to 30-minutes total.
f. A Consent Calendar item may be pulled by the Mayor/Chairperson or Council/Agency member for discussion.
B. Special City Council/Agency Meetings. Meetings shall contain one (1) 30- minute Public Comment period to address only items listed on the agenda in substantially the following form:
1.Agenda Items Only: the general public may only address the City Council/Agency on items which have been described and listed on the agenda.
a. Speakers may not cede their time to other speakers.
b. The maximum time allotted for members of the public to speak on Agenda Items shall not exceed three (3) minutes per person. c. “Public Comments on Agenda Items Only” is limited to 30-minutes total.
B. Agenda Items. Public comment on matters on the agenda will be allowed only for items of business to be discussed by the body. Those wishing to address the City Council/ Agency on an item listed on the agenda may do so during the “Public Comments on Non-Agenda Items and Agenda Items” period. A Consent Calendar item may be pulled by the Mayor/Chairperson or Council/Agency member.
C. Speaker Cards. Members of the public that are interested in making public comments on both Non-Agenda and Agenda Items, must complete a Speaker Card and submit it to City Clerk staff prior to the beginning of the meeting of 5:00 p.m. for live meetings, or in accordance with Assembly Bill 361 for video/audio meetings. Upon receipt of the card, the City Clerk shall deliver it to the presiding officer. The public will be called upon during the Council/Agency meeting – Closed Session begins at 5:00 p.m. and Regular Session begins no later than 6:00 p.m., following Closed Session. If there is no Closed Session, the meeting will may start at 5:00 p.m., but no later than 6:00 p.m.
Members of the public must be present until the item for consideration is heard. Any
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requests to provide public comment which are submitted after the deadlines indicated above will not be addressed at the Council/Agency meeting, with the exception of non- agenda item comments which will be held over to the next regularly scheduled meeting.
Please note that although it is recommended, speaker cards are not required to be filled- out for Public Hearings.
D. Written Comments. Members of the public that are interested in submitting written comments may do so via electronic mail at:
[email protected]. Written comments will be provided to members of the City Council and will be entered into the record of the proceedings to the extent they relate to matters listed on the posted agenda or otherwise address matters/issues within the subject matter jurisdiction of the City Council. Persons submitting written comments are encouraged to identify the specific item(s) on the agenda their comment(s) relate to or whether they relate to non-agendized matters. Written comments may not be read aloud and will be included as part of the meeting minutes, or in accordance with Assembly Bill 361 for video/audio meetings.
E. Time Limits. Each Public Comments period is limited to 30thirty-minutes.
State Law prohibits the Council/Agency from taking action or entertaining extended discussion on a topic not listed on the agenda. In order to conduct a timely meeting, the maximum time allotted for members of the public to speak on both Non-Agenda and Agenda Item during the Public Comment period(s) shall not exceed three (3) minutes per person. The Mayor/Chairperson, in his/her discretion, and/or in consultation with the body, may reduce, limit or extend time for public comment as he/she may find reasonable under the circumstances. Speakers may not cede their time to other speakers.
2.14.060 - Procedure for the Conduct of City Council/Agency Meetings.
A. Role of Mayor/Chairperson. The Mayor/Chairperson shall be the Presiding Officer at all meetings of the Council/Agency, and be responsible for maintaining the order and decorum of meetings. It shall be the duty and responsibility of the Mayor/Chairperson to ensure that the rules of operation and decorum contained herein are observed. The Mayor/Chairperson shall maintain control of communication between Council/Agency members and among staff and public.
B. Communication with Council/Agency Members. Council/Agency members shall request the floor from the Mayor/Chairperson before speaking. When one member of the Council/Agency has the floor and is speaking, other Council/Agency members shall not interrupt or otherwise disturb the speaker.
C. Communication with Members of the Public Addressing the Council/Agency. The Mayor/Chairperson shall open the floor for public comment/inquiries as appropriate. Council/Agency members may question a person addressing the Council/Agency at the conclusion of the person’s comments or upon expiration of the person’s time to speak. However, the Council/Agency should not engage in discussion or take action in connection with such comments. Once the speaker is seated, the presiding officer may refer an issue or public inquiry to the City Manager or staff for a brief response,
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further review and/ or further action, if appropriate. Alternatively, the Council/Agency may request the issue be agendized for discussion at a future Council/Agency meeting.
D. Members of the Audience.
1. All comments from the audience during Public Comments must be addressed to the Council/Agency as a body. It is the duty and responsibility of the Mayor to oversee and ensure the orderly conduct of the meeting.
2.Willful Interruption: No member of the audience shall willfully interrupt the orderly conduct at the meeting. In accordance with Government Code section 54957.9, the presiding officer may order the meeting room cleared and continue in session in the event that a meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of such individuals. Only matters appearing on the agenda may be considered in such a session. The presiding officer shall direct the removal of any individual whose willful interruption or who fails to adhere to the Council meeting rules and who renders infeasible the orderly conduct of the meeting. In the event the removal of the individual or individuals willfully interrupting the meeting does not restore order, the president officer may order the meeting room cleared and continue in session. Media representatives shall be allowed to remain at the meeting except those representatives of whose willful conduct interrupted the meeting.
3.Disruptive or Threatening Behavior: Pursuant to Government Code section 54957.95, the presiding officer or their designee may remove, or cause the removal of, an individual for disrupting the meeting. The presiding officer or their designee may then remove the individual if they do not promptly cease their disruptive behavior. “Disrupting” means engaging in behavior during a meeting that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting and includes but is not limited to, one of the following: (a) a failure to comply with reasonable and lawful regulations adopted by the legislative body, or (b) engaging in behavior that constitutes use of force or a true threat of force. A “true threat of force” means a threat that has sufficient indicia of intent and seriousness, that a reasonable observer would perceive it to be an actual threat to use force by the person making the threat. Prior to removing an individual, the presiding officer or their designee shall warn the individual that their behavior is disrupting the meeting and that their failure to cease their behavior may result in their removal. However, removal of an individual for engaging in behavior that constitutes use of force or a true threat of force does not require any warning from the presiding officer.
E. Rules of Procedure. In all matters not otherwise provided for herein the proceedings for the body shall be governed under “Rosenberg’s Rules of Order”, the most current edition.
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2.14.070 - Procedure for Addressing the City Council/Agency.
A. Specific Speaker Requirements. When a speaker is called, the speaker shall promptly approach the audience microphone and give his/her name in an audible tone of voice for the records. Failure to approach the audience microphone when called may preclude an opportunity to speak during that subject public comment period. A member of the public shall only address the body from the audience microphone, unless authorized by the Mayor/Chairperson to speak from another location. Members of the public shall direct all comments to the Mayor/Chairperson and the Council/Agency as a whole, and not to staff, individual members of the body, or the public. No questions shall be asked a Council or Agency or staff member except through the presiding officer.
Speakers will be permitted to complete their comments without interruption and no speaker may yield their allotted time to other speakers. No person shall be permitted to interrupt members of the body, staff presentations; or members of the public who are at the microphone during a meeting. Courtesy must be shown to others at all times.
The public does not need to be given an opportunity to speak on an item that has already been considered by a legislative body at a public meeting, if all interested members of the public had the opportunity to speak on the item before or during its consideration, and if the item has not been substantially changed.
There shall be only one (1) opportunity for each individual for public comment on the entire consent calendar. There shall be only one (1) opportunity for each individual for public comment on multiple items of business on the agenda. There shall be only one (1) opportunity for public comment on items that are taken up for consideration together. This excludes Public Hearings.
Any person making personal, impertinent or slanderous remarks about members of the body, staff, or the public, or who shall become boisterous or threatening or personally abusive of the body, staff or members of the public shall be asked by the Mayor/Chairperson to cease and desist such activity, and may be requested or required to leave the meeting in the event the behavior continues to disrupt the meeting proceedings (see Section 112.14.090. Standards of Decorum).
B. Spokesperson for a Group. In order to expedite Council/Agency business and to avoid repetitious presentations, whenever an organization or group of persons wishes to address the Council or Agency on the same subject matter, it shall be proper for the presiding officer to inquire whether the organization or group has a spokesperson.
If so, spokespersons are subject to the same limits as other speakers.
C. Technology. Use of technology in the meeting room (such as Power Points and overhead displays) is restricted to staff, City consultants, applicants for a quasi- judicial approval, and appellant’s quasi-judicial approval.
D. Recording. Any person may record a meeting unless the body finds that the recording cannot continue without noise, illumination, or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings.
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E. Public Hearings. Speakers wishing to address the Council/Agency on public hearing items shall not be required to fill-out a speaker card in order to be called on to speak. Speakers addressing the Council/Agency on a public hearing item shall be heard after the public hearing is opened by the presiding officer, following the Staff report presentation.
1. Call for Ex Parte Contacts. The presiding officer shall inquire whether any member of the Council/Agency has had ex parte contacts with regard to the proceeding at the commencement of any quasi-judicial land use proceeding. Any member of the Council/Agency announcing an ex parte contact shall state for the record the nature and content of the contact. If such contact impairs the member’s impartiality, the member shall state this fact and abstain from participation in the matter.
2. Call for Abstentions. The presiding officer shall inquire whether any member of the Council/Agency must abstain from participating in the hearing due to a conflict of interest. Any member of the Council/Agency announcing a conflict of interest shall state the nature of the conflict, and shall not participate in the proceeding, unless the person’s vote is necessary to meet a requirement of a minimum number of votes necessary to take official action; provided, however, that the member shall not participate in any discussion or debate on the issue of which the conflict arises.
3. Time Limits. Speakers at hearings on legislative or administrative matters, other than legislative land use matters, will be limited to three (3) minutes.
Speakers at a hearing on a quasi-judicial matter, other than a quasi-judicial land use matter, shall be subject to the following time limits:
a. Staff Presentation (15 minutes maximum)
b. Applicant or affected party (7 minutes maximum)
c. Those in support of Appellant’s position (3 minutes per person, not to exceed 30 minutes
d. Those in opposition to Appellant’s position or other interested persons (3 minutes per person, not to exceed 30 minutes) e. Questions of Council/Agency members (No time limit)
f. Rebuttal by applicant or affected party. The scope of rebuttal is limited to matters which were introduced during the hearing (5 minutes maximum)
g. The presiding officer may extend the maximum time allotted to any speaker with the concurrence of a majority of the Council/Agency.
Extensions of time shall be granted in one (1) minute increments.
4. Limitations. The presiding officer may exclude or limit cumulative, repetitious, or immaterial matter. The presiding officer may order the testimony, alternating those speaking in favor and those in opposition, or
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have all speaking in favor testify, followed by all those in opposition. The presiding officer, with the approval of the Council/Agency, may further limit the time and/or number of speakers at any public hearing; provided that the presiding officer shall announce any such restrictions prior to the commencement of the testimony.
5. Deliberations. At the end of public testimony and questions, the Council/Agency shall initiate deliberations by introducing a motion on the matter; continue the hearing; or keep the record open for additional written testimony. During deliberations, each member of the Council/Agency shall have the opportunity to comment on or discuss testimony given during the public hearing.
6. Public Documents. Documents submitted to the City as evidence or written testimony during a public hearing are public records. If such a document contains the name, address, including email address, and telephone number of the person, then it will be included in the record of the proceeding.
Because the name, address, including email address, and telephone number are part of a public record, this information will be generally disseminated to the public, and must be disclosed if a public records request is submitted for the documents.
2.14.080 Council/Agency Orals and Action Items.
A. The purpose of Council/Agency Orals is to allow Council/Agency to make general comments as a reference to staff on factual matters of community concern; and provide updates or make brief announcements in a manner consistent with Government Code Section 54952.2.
B. All City Council/Agency requests for oral communications to be placed on an agenda shall be expressed in complete sentences and shall provide sufficient information to be in compliance with the Brown Act. All oral communications shall provide a brief, general description of each item of business to be transacted or discussed at the meeting and need not exceed 20 words.
C. Each Council/Agency Orals will generally be limited to a total of 10 minutes in length. Each Council/Agency member will be limited to a total of five (5) minutes in length to discuss all Council/Agency orals listed on the agenda, including requests for Council/Agency action items. The following guidelines apply to “Section 10.
Council/Agency Orals and Action Items”:
1. No action may be taken on Council/Agency Oral items without being placed on a subsequent agenda.
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2. Requests for Council/Agency action items shall be introduced and explained by the Council/Agency member that placed the item on the Agenda.
3. Any action item requests and/or major policy issues to be considered on a subsequent agenda must have a Simple Majority roll call vote of the Council/Agency.
4. Any request for Council/Agency action items shall be referred back to staff to address program concepts, staffing needs, fiscal impact and implementation timelines. The City Manager shall identify a reasonable timeline to have the item return to the City Council for full consideration.
5. Commission/Committee appointment recommendations shall also be made during Council/Agency Orals. Considering background check approval, all appointments will be made at a future meeting as a Consent Calendar action item.
D. Commission/Committee appointment recommendations shall also be made during Council/Agency Orals. Considering background check approval, all appointments will be made at a future meeting as a Consent Calendar action item.
E. No action may be taken on Council/Agency Oral items without being placed on a subsequent agenda. Any requests to be considered and/or major policy issues to be approved must have a Simple Majority roll call vote of the Council/Agency. To the extent possible, Council/Agency will confer with staff before raising matters under this agenda item. Any request for a Council action item shall be referred back to staff to address program concepts, staffing needs, fiscal impact and implementation timelines. The City Manager shall identify a reasonable timeline to have the item return to the City Council for full consideration.
F. Requests for Council/Agency action items shall be introduced and explained by the Council/Agency member that placed the item on the Agenda.
Council/Agency members should endeavor to complete their presentations in three (3) minutes or less. Council/Agency members may request additional time to complete their presentations from the presiding officer. Such requests for additional time shall not be unreasonably denied. After the introduction and presentation of the item, each Council/Agency member shall be provided an opportunity to ask questions and comment on the request.
D.G. An item may be placed on a future agenda of the City Council/Agency by any of the following methods:
1. By the Mayor/Chairperson, City Manager, City Attorney, or City Clerk.
2. By a Simple Majority roll call vote of the Council/Agency (see Section
2.14.040. General Requirements, H. “Voting Procedures “Section 6.H. “Voting Procedures”)
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All agenda items shall be placed on the agenda, and all agendas shall be prepared pursuant to the requirement of the Ralph M. Brown Act (California Government Code Section 54950 et seq.).
2.14.090 Standards of Decorum.
A. The Mayor/Chairperson shall be the presiding officer at Council/Agency meetings. The Chairperson shall be the presiding officer at Agency meetings. In the absence of the Mayor/Chairperson, the Mayor Pro Tem/Vice Chairperson shall be presiding officer.
B. The presiding officer shall have the right to terminate any oral communication where such is not within the subject matter jurisdiction of the Council/Agency or is redundant or repetitious. Debates between Council/Agency members and the public should be discouraged.
C. Speakers shall not engage in willful conduct which interrupts the meeting or interferes with the orderly conduct of the meeting. Any person who becomes boisterous while addressing the Council/Agency or who otherwise disrupts the orderly conduct of the Council’s/Agency’s business shall be subject to removal from the Chambers after being admonished by the presiding officer.
D. Signs, placards, banners, horns, noise-making devices, or other similar items shall not be permitted in the audience during a Public Meeting if the presence of such item disturbs, disrupts or otherwise impedes the orderly conduct of the meeting. All persons attending a public meeting shall remain seated in the seats provided, unless addressing the body at the podium or entering or leaving the meeting. No member of the audience shall willfully interrupt the orderly conduct at the meeting. The presiding officer shall direct the removal of any individual whose willful interruption renders infeasible the orderly conduct of the meeting. In the event the removal of the individual or individuals willfully interrupting the meeting does not restore order, the presiding officer may order the meeting room cleared and continue in session.
E. The Chief of Police, or such other member or members of the police department or police reserve as may be designated, shall be sergeant-at-arms of the Council/Agency meetings. The sergeant-at-arms shall carry out all orders and instructions given by the presiding officer for the purpose of maintaining order and decorum at Council/Agency meetings. Upon instructions of the presiding officer, it shall be the duty of the sergeant-at-arms to remove and/or place any person who violates the order and decorum of the meeting under arrest, if necessary.
2.14.100 Council/Agency Meeting Length.
A. It is the intent of the Council/Agency that no item will be introduced or addressed on a Council/Agency agenda after the hour of 11:00 p.m. Furthermore, it is the Council’s/Agency’s intent that if the item introduced and being discussed by 11:00 p.m. is not concluded by 12:00 a.m., the Council/Agency should adjourn the meeting to another date. The intent and purpose of this policy is to encourage a reasonable hour in which
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the Council/Agency business is discussed and to protect against fatigue in discussing and deciding important City issues.
2.14.110 Council/Agency and City Staff Conduct.
Governance of a City relies on the cooperative efforts of elected officials, who set policy, and City Staff, which analyze problems and issues, make recommendations, and implement and administer the Council’s/Agency’s policies. Therefore, every effort should be made by members of the City Council to be cooperative and show mutual respect for the contributions made by each individual for the good of the community.
A. It is important for the Staff to demonstrate respect for the Council/Agency, and vice versa, at all times. All Council/Agency members should be treated equally.
B. Council/Agency and Staff should treat one another as professionals. Clear, honest communication that respects the abilities, experience, and dignity of each individual is expected. Practice civility and decorum in all interactions with Council/Agency and City staff.
C. Never Members of the City Council should avoid publicly criticize criticizing an individual employee, including Council/Agency appointed officers. All critical comments about staff performance should only be made to the City Manager through the proper chain of command preferably by private correspondence or conversation. Without limiting any First Amendment, free speech rights, any City Council conduct which circumvents the employees’ privacy rights goals and objectives set forth in this Ordinance may result in the offending Councilmember being subject to criticism, public reprimand or censure by other members of the City Council.
D. Council/Agency members shall deal with the administrative service solely through the City Manager, and neither the Council/Agency nor any member thereof shall give orders to any of the subordinates of the City Manager, either publicly or privately.
Council/Agency members shall recognize and follow the appropriate chain of command for the entire City organization and each City Department.
E. Request for information by any Council/Agency member shall be provided to all members of the Council/Agency.
SECTION 14. Effective Date. This Ordinance shall become effective thirty (30) days after approval by the Council.
SECTION 15. Publication. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published or posted according to law.
ORDINANCE NO. 2457
APPROVED AND ADOPTED this 16th day of November 2022.
_______________________________
Kimberly A. Cobos-Cawthorne, Mayor
ATTEST:
________________________
Christopher Jimenez, City Clerk
APPROVED AS TO FORM:
__________________________
Arnold M. Alvarez-Glasman, City Attorney
I HEREBY CERTIFY that the foregoing Ordinance was introduced at the regular meeting of the City Council on the 16th day of November 2022 and was adopted by the City Council of the City of Montebello at its meeting held on the 14 th day of December 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
________________________
Christopher Jimenez, City Clerk
Exhibits:
Exhibit A – Nationally Recognized Health and Heritage Months Exhibit B – Proclamation/Certificate Request Form
ITEM # 8
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:
Michael Solorza, Director of Finance
SUBJECT: FISCAL YEAR 2022-23 FIRST QUARTER BUDGET REPORT
DATE: November 16, 2022
RECOMMENDATION(S):
It is recommended that City Council:
1. Receive and file this agenda report and the presentation on the Fiscal Year 2022- 23 First Quarter Budget; and
2. Update the Table of Organization/Master Position Control by adding four (4.0) positions (Attachment C) to various departments; and
3. Approve Resolution No. 22-91(Attachment D) amending the Compensation Plan to add two (2.0) new job classifications; and
4. Take such additional, related action that may be desirable.
FISCAL IMPACT:
The Fiscal Year 2022-23 budget was adopted on June 8, 2022. Since adoption, changes (amendments) to the budget have been made. In addition, there are now four months of revenue and expenditure results that allow trends to be analyzed and an updated budget forecast to be presented (i.e., actual results through October 31). In addition, presentation of quarterly reports on a regular basis shows good financial stewardship and promotes transparency.
This First Quarter Budget report will focus on the General Fund, and will provide updated expenditure and revenue projections for the fiscal year. There will also be a brief discussion of the two enterprise funds which record the activity of the City-owned hotels
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
(Hilton Garden Inn and Home2Suites).
The General Fund budget was adopted with a $695,700 surplus: revenue of $68,685,800 forecasted higher than expenditures of $67,990,100. Since adoption in June, budget amendments have been made to department expenditure appropriations, and new information is available on revenue trends. Updated (unaudited) revenue performance at the June 30, 2022 fiscal year close has provided additional information to update FY 2022-23 revenue projections. Also, four months of actual data provide trends for where expenditures are headed by year-end, allowing for updated estimates to be presented.
The updated expenditure and revenue projections for the General Fund are presented in the table below, as well as the adopted budget for FY 2022-23. In addition, a comparison of the unaudited FY 2021-22 actuals are presented:
The General Fund closed (unaudited) FY 2021-22 with a surplus (revenue exceeding expenditures) of $8,152,595. That includes the use of Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) in the amount of $6,286,522 as the “Revenue Loss” category per the American Rescue Plan Act (ARPA). This surplus will double the amount of available reserves in the General Fund, pushing fund balance to approximately 22% of operating revenue. The updated projections for FY 2022-23 indicate a $839,799 surplus (revenue exceeding expenditures), a net increase of $144,099 in the surplus.
The chart below provides historical context, plotting actual and budgeted General Fund revenues against expenditures back to FY 2016-17:
There were slight surpluses in actuals pre-pandemic fiscal years (i.e., prior to FY 2019- 20). The large gap between revenue and expenditure actuals in FY 2019-20 shows the
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
impact of lower revenue that was negatively impacted by the pandemic, plus one-time capital expenditures related to infrastructure projects that utilized the 2009 excess bond proceeds: Taylor Ranch Park project, City Hall roof replacement, Police HVAC replacement, etc.
The surplus in FY 2021-22 and the one forecast for the current fiscal continues a positive trend where projected revenue exceeds forecasted expenditures. Having a General Fund surplus helps build available reserves, placing the City on stronger financial footing as fund balance grows as a percentage of operating revenue.
The paragraphs below present a more detailed discussion of the changes based on 1st Quarter actuals and their impact on the forecast for fiscal year end.
BACKGROUND/DISCUSSION:
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ENVIRONMENTAL IMPACT:
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ANALYSIS:
At the time the FY 2022-23 budget was adopted on June 8, 2022, revenue and expenditure forecasts were based on April and May information, tempered and informed by prior year and historical data. The closing of the books for FY 2021-22 provided additional, unaudited insight into revenue and expenditure performance. That information along with additional data (i.e., actuals) from July – October allows an updated forecast for fiscal year-end to be presented.
Revenue
Overall, General Fund revenue is projected to be $1,287,850 higher than the adopted budget ($69.974 million vs. $68.686 million). This increase represents the net impact of changes to revenue accounts across the General Fund.
The chart and table below present high-level overviews of General Fund revenue – by totals and major revenue category, with FY 2021-22 unaudited amounts included:
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
The largest positive change (in dollars) comes in the Sales Tax category, showing an increase of $373,100 over the adopted budget. The pandemic wreaked havoc with the economy and society the past two plus years, but retail activity has improved since. All three categories of sales tax continue to perform positively: 1% Bradley Burns, Measure H, and Monterey Park Marketplace.
The table below shows FY 2020-21 and FY 2021-22 actuals and FY 2022-23 budget and updated forecast for all three separate sources of sales tax:
The dollar increases in sales tax projections equates to a 1.5% overall increase (versus adopted budget), with Bradley Burns and Measure H sources increase approximately
1.3% over the budgeted amounts. Staff has conferred with its sales tax consultant (HdL Companies) and feel confident in these updated estimates. Moreover, HdL has indicated that when implementing a new Transaction and Use Tax, it can take one to two years for retailers to fully understand and remit the proper amounts. Heading into the third full year
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
of Measure H, current trends appear more accurate than at this point in prior fiscal years. Data shows that Measure H consistently trends at approximately 66% of the Bradley Burns total.
Property tax shows a slight decrease of $127,600 when compared to the adopted budget. This decrease is due to re-calibrating FY 2022-23 projections with the unaudited actuals from FY 2021-22. Using last year’s secured property tax totals of $4.663 million, and applying the 4.0% assessed value growth rate, returns a projection of $4.850 million, lower than the adopted budget amount of $4.993 million, which was developed utilizing data from April and May of 2022.
The $285,000 increase in the Franchise Taxes category is the net positive impact of the new commercial organic waste charge. The City will receive eleven months of revenue from this charge in FY 2022-23, with the fee beginning August 2022. Subsequent quarterly updates will utilize actuals to more accurately project revenue from this source. However, this is a new and continuing stream of revenue that will positively impact the General Fund going forward.
The increase of $338,000 in the Licenses and Permits category is due to improved performance across the various “building permit” categories: plumbing, electrical, mechanical, etc. As with last fiscal year, there are some relatively large, one-time permits issued related to the Montebello Hills development. These larger permits are not typical, and staff does not build budgets around the totals that include these one-time permits.
However, they do help with annual revenue and the General Fund benefits from that activity. As with the FY 2022-23 budget, the FY 2023-24 revenue budget for this category will be built utilizing “typical” annual revenue totals.
There is an additional source of new (continuing) revenue to the General Fund in the Charges for Services category: fees related to new digital billboards. The City Council is considering the second reading to approve development agreements that would net the City $50,000 annually in on-going revenue. In addition, the City will receive a one- time incentive fee totaling $150,000 from the development agreements. Both of these new revenue streams are included in the FY 2022-23 forecast, and contribute to the increase of $262,550 in the Charges for Services revenue category.
Investment Income is projected to be $251,000 higher than budgeted. Higher interest rates are helping with this source of revenue, by increasing the yield on the City’s pooled cash. In addition, as the City maintains its high liquidity, there is a larger pool which is earning interest – more available cash that can earn a yield.
Transfers In (non-operating) revenue will increase slightly by $50,000. This particular Transfer In reimburses the General Fund for pension related expenses, utilizing revenue from the Property Tax Override. Staff conducts a quarterly “true-up” of all pension related expenses and transfers in that amount from the Retirement Fund (Fund 205).
The additional $1.288 million in General Fund revenue projected for FY 2022-23 is a positive sign of the recovering economy, improved City operations, addition of new
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
ongoing and one-time sources of revenue and other related changes. Staff will continue monitoring revenue actuals, and will present an updated forecast with the 2nd Quarter (mid-year) budget update.
Expenditures
General Fund expenditures are projected to be $69,133,851 for FY 2022-23. This $1,143,751 (1.7%) increase over the adopted budget takes into account budget amendments approved by the City Council since July, encumbrance rollovers from the prior year, and updated forecasts for various line-item expense categories. The amended budget total is $69,403,306, a $1,413,206 increase over the adopted budget. Approximately $1.3 million of this increase to the adopted budget is from encumbrance roll-overs (open purchase orders) in the Public Works (sewer repairs), Community Development (general plan update), Police (body worn cameras) and Fire (battalion command vehicles) Departments.
The chart below provides a historical trend back to FY 2016-17 of General Fund expenditures (actuals and budget):
The table below shows – by Department/operational area – unaudited FY 2021-22 results, the adopted and amended budgets for FY 2022-23, as well as the updated projections based on actuals through October. The “Variance” column shows whether the 1st Quarter projected amount is greater than (positive amount) or less than (negative amount) the amended budget:
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
For Administration (which includes the City Manager’s office, City Attorney and elected officials), the primary reasons for the projected overage of $61,592 is increased legal costs, and additional expenses for the Citywide rebranding effort (i.e., contract with “789, Inc.”). Finance/Non-Departmental projected overage is from two primary sources, all in the Non-Departmental budget: increased retiree health benefit costs and expense of remaining 2009 excess bond proceeds as projects are completed (i.e., purchase orders rolled over from the prior fiscal year).
The $511,277 variance (projected savings) in Public Works is from the overall net savings in various contract services across all divisions, regular (full-time) salary savings in Building Maintenance and Building Services (vacancies in budgeted positions), supplies line-item savings in Park Maintenance, and projected savings with the Citywide landscape contract. These areas of projected savings offset additional (increased) costs for sewer maintenance and various professional services.
The Police Department is projecting to come in under budget by $341,776. While there are increases in overtime in the Patrol Division, this is offset by savings in regular salaries (full-time) in the Communications Division. As explained in another agenda report, the Communication Division has seen significant vacancies in the Dispatcher I/II classifications. Hence the increase to overtime, as Police Officers pick up for the staffing shortages in Communications.
Parks and Recreation is projecting an additional $466,045 in expenses, primarily in the area of part-time wages. As the City expands its special events, and maintains City Hall screening/lobby staffing, part-time salary expenses are trending higher than budgeted. At this point, Staff will monitor these expenses and make recommendations – if necessary – with the 2nd Quarter Budget update to amend the budget.
The Fire Department is currently trending to have an additional $165,809 in expenses versus the amended budget. There are a few primary causes for this: regular (full-time) salaries for MCAP staff are currently hitting the General Fund, overtime in the Suppression and Prevention Divisions are trending higher (vacancies in full-time positions), building repairs/upgrades to the EOC that were not included in the adopted budget, and the Communications Division filled a vacant position sooner than anticipated. As with other Departments, Staff will monitor these trends and make recommendations as part of the 2nd Quarter budget update as it relates to budget amendments.
For the Community Development Department, the current trend for contract parking enforcement services is showing savings, contributing to the $312,556 under-budget amount. There is also an encumbrance of $373,000 related to work on the City’s General Plan. There is a $310,000 grant the Department received from the State (SB2 Grant) that will help offset these expenses, with the potential to further reduce projected expenditures once the grant reimbursement is completed.
Table of Organization
Another recommended action is to update the Master Position Control by adding four
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
(4.0) full-time equivalent (FTE) positions (Attachment C). The proposal is to add two “Senior Administrative Assistants:” one in the Public Affairs/Information Technology Department and one in Administration. The other two positions – which are also new classifications – will be “Principal Risk Officer” and “Risk Management Assistant,” both added to the Human Resources Department. Both risk positions will assist in reducing the reliance on third-party contract support and cost. The current third party general liability cost is $89,116 per year and as a result of these additional positions, this portion of that agreement will be reduced.The in-housing of the risk positions will expedite claims by streaming and managing general liability matters that result in efficiently curing cases that minimize on-going costs.
In addition to updating the Master Position Control to add these two positions to Human Resources, it is necessary to amend the “Compensation Plan and Table of Organization” Resolution (Attachment D), adding the new classifications of “Principal Risk Officer” and “Risk Management Assistant” with each position’s associated pay range (per the new citywide salary schedule).
The “Compensation Plan” Resolution (Attachment D) is also being amended to update the salary range for Building Official. Given current market conditions, it is necessary to move the salary range of this position from Range 49 to Range 59. The salary range change will assist in recruitment efforts for this vital position – there is a current vacancy in Public Works and the Department has been challenged in finding candidates. This change to the salary range will not impact any current employees as the position is vacant.
This position is represented by the Montebello Management and Professionals Association (MMPA). As required, meet and confer was conducted to discuss this salary range adjustment, and both the association and management (City) agreed to the change. A formal amendment to the existing MMPA MOU will be necessary, and that will be brought to the City Council at a future date.
Hilton Garden Inn and Home2Suites (Revenue and Expenditures) The City’s two hotels have revenue and expenditure activity recorded in separate Enterprise Funds (Fund 620 for Hilton Garden Inn and Fund 625 for Home2Suites). These are separate and independent from each other, and also distinct from any Golf Course or Quiet Cannon operations (which have revenue and expenditures recorded in a separate fund, Fund 610).
To that end, it is useful to present first quarter results for both hotels, and provide a comparison to first quarter results from prior fiscal years. The table below shows FY 2019-20 through FY 2022-23 first quarter results for each hotel, with full year FY 2021- 22 actuals presented for comparison:
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
The Hilton Garden Inn performed well in FY 2021-22, showing a recovery from prior years when occupancy was negatively impacted by the pandemic, as well as the required remodel of the hotel where it was closed for six months. The hotel’s FY 2021-22 unaudited results show $5,359,743 in revenue against $5,088,671 in expenses, for a $271,072 surplus. For the current fiscal year, revenue has picked up markedly from the same point one year ago, and even more so when comparing 1st Quarter of FY 2019-
20. Year to date revenues are $1,707,326 versus $1,081,158 in expenditures. Expenditures for the current year are also up versus last year. But this is due to the hotel being open, requiring increased staff, supplies and related expenses.
The Home2Suites hotel performed very well last fiscal year, ending with a $2,280,370 surplus ($12,062,484 million in revenue against $9,782,114 million in expenditures). Revenue for the current fiscal year is up when compared to the prior year: $3,272,052 vs. $3,007,417. In addition, expenditures are trending higher in the current fiscal year: $1,568,537 versus $1,301,370. This trend is not surprising given the rising costs of goods and labor.
The continuing economic recovery, especially in the leisure and travel industries as the pandemic’s negative impacts lessen, will have a positive impact on the City’s hotels, allowing for the return to pre-pandemic travel patterns and an increase in occupancy rates and room revenue. Staff will continue monitoring the City’s hotels and reporting their performance on a quarterly basis.
SUMMARY:
This 1st Quarter Budget Report provides an overview of General Fund revenue and expenditure performance based on the first four months of FY 2022-23 (July – October).
The addition of four (4.0) positions to the Table of Organization is being proposed along with amending the Compensation Plan and Table of Organization Resolution to include two (2.0) new classifications. This initial budget “check-in” is an opportunity to update revenue and expenditure forecasts based on prior and current year actuals performance.
The General Fund is projected to have a $839,799 surplus (revenue over expenditures) for FY 2022-23 ($69,973,650 in revenue versus $69,133,851 in expenditures).
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
Staff will continue monitoring revenue and expenditure trends in the coming months, and will utilize the additional data to provide a budget update for the 2nd Quarter (mid- year). The 2nd Quarter budget report will also serve as the beginning of budget development for next year, utilizing projections to build next year’s budget.
City Council is being asked to receive and file this report and presentation, as well as approve updating the Master Position Control (Attachment C) and amending the Compensation and Table of Organization Resolution (Attachment D).
ATTACHMENT(S)
1. Attachment A - Revenue Summary 1st Quarter
2. Attachment B - Expenditure Summary 1st Quarter
3. Attachment C - Master Position Control 1st Quarter Budget
4. Attachment D - Resolution No. 22-91, Compensation Plan FY 2022-23 1st Quarter
NEXT STEPS:
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General Fund Revenue Summary - by Major Category ATTACHMENT A Fiscal Years 2016-17 - 2022-23
Actuals, Budget and Forecasted
FY 16-17
ACTUAL
FY 17-18
ACTUAL
FY 18-19
ACTUAL
FY 19-20
ADOPTED
FY 19-20
ACTUAL
FY 20-21
ADOPTED
FY 20-21
ACTUAL
FY 21-22
ADOPTED
FY 21-22
ACTUAL*
FY 22-23
ADOPTED
1ST QTR
PROJECTED
Variance -
Budget v 1st
Qtr
SALES TAX 13,267,373 13,118,981 14,031,972 13,146,732 12,817,884 18,241,000 22,270,247 20,765,000 25,378,979 25,126,900 25,500,000 373,100 PROPERTY TAX 11,042,346 11,359,512 12,191,977 12,740,406 12,701,368 13,026,000 13,714,582 14,293,100 14,195,130 14,875,000 14,747,400 (127,600) OTHER TAXES 553,462 585,960 614,485 658,200 533,005 599,000 476,959 610,000 631,085 625,000 575,000 (50,000) FRANCHISE TAXES 1,493,956 2,141,450 2,224,087 2,315,185 2,199,916 2,272,000 2,316,221 2,163,000 2,300,508 2,445,000 2,730,000 285,000 LICENSES AND PERMITS 4,186,912 4,452,210 6,215,378 5,132,840 4,776,531 4,872,800 5,769,484 5,942,000 7,683,271 6,468,000 6,806,000 338,000 FINES AND FORFEITURES 2,251,384 2,185,022 2,165,922 2,023,694 2,186,401 2,600,000 2,301,787 2,250,000 2,499,502 2,920,000 2,810,000 (110,000) INVESTMENT INCOME 991,127 1,215,614 679,437 402,706 367,133 350,000 421,312 575,000 193,103 274,000 525,000 251,000 INTERGOVERNMENTAL 2,239 6,493 11,003 11,762 10,160 5,500 1,096,273 7,500 6,311,327 12,000 12,000 - CHARGES FOR SERVICE 6,569,905 6,451,686 6,662,699 6,919,770 6,066,829 7,020,300 6,105,784 7,291,850 7,758,585 7,945,800 8,208,350 262,550 OTHER REVENUE (2,317) (10,760) 211,746 - 259,247 384,000 1,640,198 882,500 887,100 982,000 997,800 15,800 Sub-total Operating Revenue 40,356,387 41,506,168 45,008,70 6 43,351,29 5 41,918,47 4 49,370,600 56,112,847 54,779,950 67,838,590 61,673,700 62,911,550 1,237,850 - - - - - - - - - - - - TRANSFERS IN 14,645,170 12,257,328 6,758,437 5,888,806 3,987,540 4,300,000 3,570,002 4,100,000 3,637,348 4,100,000 4,150,000 50,000 PROCEEDS FROM CAPITAL LEASE 591,423 9,725 1,547,962 - 815,153 - 5,785,000 - - - - - ADMINISTRATIVE OVERHEAD 1,700,004 1,887,113 1,886,402 2,106,117 1,883,090 2,030,500 2,054,000 2,839,200 2,835,525 2,912,100 2,912,100 - Sub-total NON-Operating Revenue 16,936,597 14,154,16 6 10,192,801 7,994,923 6,685,783 6,330,500 11,409,002 6,939,200 6,472,873 7,012,100 7,062,100 50,000 TOTAL GENERAL FUND REVENUE 57,292,984 55,660,33 4 55,201,507 51,346,218 48,604,257 55,701,100 67,521,849 61,719,150 74,311,463 68,685,800 69,973,650 1,287,850 *FY 21-22 actuals are unaudited amounts
General Fund Expenditure Summary - by Department/Functional Area ATTACHMENT B Fiscal Years 2016-17 - 2022-23
Actuals, Budget and Forecasted
2016-17 Actual 2017-18 Actual 2018-19 Actual 2019-20 Actual 2020-21 Actual 2021-22
ADOPTED
Budget
2021-22
Actuals*
2022-23
ADOPTED
BUDGET
2022-23
AMENDED
BUDGET
1ST QTR
PROJECTED
Variance -
Budget v 1st
Qtr
Elected / Administration 1,443,318 1,696,595 2,609,361 2,392,931 2,473,138 2,354,400 2,700,356 2,736,200 2,766,200 2,827,792 61,592 Community Development 1,770,851 1,637,830 2,029,591 1,612,140 1,752,274 2,489,820 2,370,064 2,602,450 2,998,672 2,686,116 (312,556) Finance / Non-Departmental 6,352,462 5,164,206 4,335,054 6,852,611 14,113,482 5,129,100 8,164,162 5,807,400 5,826,431 6,064,470 238,039 Fire 12,542,175 12,472,672 12,901,041 15,114,996 15,310,306 15,814,270 15,300,038 16,887,400 17,243,017 17,408,826 165,809 Human Resources - Information Tech 1,087,205 803,431 866,145 1,239,180 1,742,602 1,928,000 2,019,760 2,298,300 2,344,636 2,309,305 (35,331) Parks and Recreation 3,137,144 3,212,671 3,322,872 4,472,874 5,078,363 5,361,550 5,992,388 3,140,600 3,149,896 3,615,941 466,045 Police 19,518,540 19,217,922 18,214,825 19,223,841 18,916,427 18,818,950 18,820,788 19,611,000 19,795,731 19,453,955 (341,776) Public Works 8,054,815 8,160,100 8,056,232 8,865,983 9,998,328 9,512,600 10,791,312 14,906,750 15,278,723 14,767,446 (511,277) 53,906,510 52,365,427 52,335,121 59,774,556 69,384,920 61,408,690 66,158,868 67,990,100 69,403,306 69,133,851 (269,455) *FY 21-22 actuals are unaudited amounts
*Includes updated classifications per approved "Classification and Compensation Study"
POSITIONS ADDED
FY 2019-20 FY 2020-21
FY 2021-22
ADOPTED
FY 2021-22
AMENDED
FY 2022-23
ADOPTED
FY 2022-23
AMENDED* Variance
Elected *AS OF 11/16/2022
City Councilmember 5.0 5.0 5.0 5.0 5.0 5.0 0.0
City Clerk 1.0 1.0 1.0 1.0 1.0 1.0 0.0
City Treasurer 1.0 1.0 1.0 1.0 1.0 1.0 0.0
7.0 7.0 7.0 7.0 7.0 7.0 0.0
Administration
City Manager 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Assistant City Manager 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Director of Public Affairs/Information Technology 0.0 0.0 0.0 0.0 1. 01 . 0 1 . 0 Assistant Director of Public Affairs 0.0 1.0 1.0 1.0 1.0 1.0 0.0 Public Information Officer 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Senior Deputy City Clerk 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Deputy City Clerk 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Records Coordinator 0.0 0.0 1.0 1.0 1.0 1.0 0.0
Office Manager 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Senior Administrative Assistant 1.0 1.0 0.0 0.0 0.0 2.0 0.0
6.0 8.0 8.0 8.0 9.0 11.0 1.0
Finance
Director of Finance 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Assistant Director or Finance 0.0 1.0 1.0 1.0 1.0 1.0 0.0 Accounting Manager 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Accounting Supervisor 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Senior Management Analyst 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Management Analyst 0.0 0.0 1.0 1.0 1.0 1.0 0.0
Accountant 4.0 4.0 4.0 4.0 5.0 5.0 1.0
Senior Finance Technician 5.0 5.0 5.0 5.0 5.0 5.0 0.0
Finance Technician 5.0 5.0 5.0 5.0 5.0 5.0 0.0
Senior Administrative Assistant 1.0 1.0 1.0 1.0 1.0 1.0 0.0
19.0 20.0 21.0 21.0 22.0 22.0 1.0
Fire
Fire Chief 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Assistant Fire Chief 0.0 0.0 0.0 1.0 1.0 1.0 0.0
Deputy Fire Chief 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Fire Battalion Chief 3.0 3.0 3.0 3.0 4.0 4.0 1.0
Fire Captain 12.0 13.0 13.0 14.0 14.0 14.0 0.0
Fire Engineer 12.0 12.0 12.0 12.0 12.0 12.0 0.0
Firefighter 24.0 24.0 24.0 24.0 24.0 24.0 0.0
Firefighter/Paramedic Trainee 0.0 4.0 4.0 4.0 4.0 4.0 0.0 Fire Marshal 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Deputy Fire Marshal
1.0 1.0 1.0 1.0 0.0 0.0 -1.0
Community Risk Reduction and Education Coordinator 0.0 0.0 1.0 1.0 0.0 0.0 -1.0 Senior Fire Inspector 0.0 0.0 1.0 1.0 1.0 1.0 0.0
Fire Inspector 1.0 2.0 2.0 2.0 2.0 2.0 0.0
Assistant Diretor of Fire 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Grants and Project Administrator 0.0 0.0 1.0 1.0 1.0 1.0 0.0 Senior Management Analyst 2.0 2.0 2.0 2.0 2.0 2.0 0.0
Telecommunications Manager
0.0 1.0 0.0 0.0 0.0 0.0 0.0
Public Saftey Radio Supervisor 0.0 1.0 1.0 1.0 1.0 1.0 0.0 Public Safetry Radio Technician 0.0 0.0 1.0 1.0 2.0 2.0 1.0 Social Work Supervisor 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Field Response Case Coordinator 0.0 1.0 1.0 1.0 1.0 1.0 0.0 Senior Administrative Assistant 1.0 1.0 1.0 2.0 2.0 2.0 0.0
59.0 70.0 73.0 76.0 76.0 76.0 0.0
City of Montebello
Fiscal Year 2022-23 Budget
Master Position Control, by Department*
*Includes updated classifications per approved "Classification and Compensation Study"
POSITIONS ADDED
FY 2019-20 FY 2020-21
FY 2021-22
ADOPTED
FY 2021-22
AMENDED
FY 2022-23
ADOPTED
FY 2022-23
AMENDED* Variance
City of Montebello
Fiscal Year 2022-23 Budget
Master Position Control, by Department*
Human Resources and Information Technology
Director of Human Resources / Risk Management 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Assistant Director of Human Resources / Risk Management 0.0 0.0 0 .0 0.0 1.0 1.0 1.0 Principal Risk Officer 0.0 0.0 0.0 0.0 0.0 1.0
Human Resources Manager 0.0 0.0 1.0 1.0 1.0 1.0 0.0
Risk Manager 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Senior Human Resources Analyst 2.0 2.0 2.0 2.0 2.0 2.0 0.0 Human Resources Analyst 1.0 1.0 1.0 1.0 2.0 2.0 1.0
Human Resources Technician 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Risk Management Assistant 0.0 0.0 0.0 0.0 0.0 1.0 0.0
Senior Administrative Assistant 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Information Systems Manager 1.0 1.0 2.0 2.0 2.0 2.0 0.0 Information Systems Supervisor 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Information Systems Analyst 3.0 3.0 3.0 3.0 3.0 3.0 0.0
12.0 12.0 14.0 14.0 16.0 18.0 2.0
Planning and Community Development
Director of Planning and Community Development 1.0 1.0 1.0 1.0 1.0 1. 00 . 0 Assistant Director of Planning and Community Development 1.0 1.0 1 .0 1.0 1.0 1.0 0.0 Building Official 1.0 1.0 1.0 1.0 0.0 0.0 -1.0
Housing Manager 0.0 0.0 1.0 1.0 1.0 1.0 0.0
Planning Manager 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Economic Development Manager 0.0 0.0 0.0 0.0 1.0 1.0 1.0 Planner 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Assistant Planner 0.0 2.0 2.0 2.0 2.0 2.0 0.0
Code Enforcement Manager 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Code Enforcement Coordinator 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Code Enforcement Officer 3.0 4.0 4.0 4.0 4.0 4.0 0.0
Parking Control Officer 0.0 0.0 0.0 0.0 2.0 2.0 2.0
Combination Builidng Inspector
0.0 1.0 1.0 1.0 0.0 0.0 -1.0
Buiding Permit Technician 1.0 1.0 2.0 2.0 0.0 0.0 -2.0
Senior Management Analyst 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Management Analyst 0.0 2.0 2.0 2.0 2.0 2.0 0.0
Senior Administrative Assistant 1.0 1.0 1.0 1.0 1.0 1.0 0.0
12.0 19.0 21.0 21.0 20.0 20.0 -1.0
Police
Police Chief 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Police Captain 2.0 2.0 2.0 2.0 2.0 2.0 0.0
Police Lieutenant 5.0 5.0 6.0 6.0 6.0 6.0 0.0
Police Sergeant 10.0 10.0 10.0 10.0 10.0 10.0 0.0
Police Corporal 23.0 23.0 23.0 23.0 23.0 23.0 0.0
Police Officer 33.0 33.0 32.0 32.0 32.0 32.0 0.0
Police Records Supervisor 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Dispatch Supervisor 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Police Dispatcher II 5.0 5.0 5.0 5.0 5.0 5.0 0.0
Police Dispatcher I 5.0 5.0 5.0 5.0 5.0 5.0 0.0
Police Records Technician 9.0 9.0 9.0 9.0 9.0 9.0 0.0
Property and Evidence Technician 2.0 2.0 2.0 2.0 2.0 2.0 0.0 Crime Analyst 0.0 0.0 0.0 0.0 1.0 1.0 1.0
Court Liaison 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Parking Control Officer
1.0 1.0 1.0 1.0 0.0 0.0 -1.0
Grants and Project Administrator 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Senior Management Analyst 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Senior Administrative Assistant 1.0 1.0 1.0 1.0 1.0 1.0 0.0 101.0 102.0 102.0 102.0 102.0 102.0 0.0
*Includes updated classifications per approved "Classification and Compensation Study"
POSITIONS ADDED
FY 2019-20 FY 2020-21
FY 2021-22
ADOPTED
FY 2021-22
AMENDED
FY 2022-23
ADOPTED
FY 2022-23
AMENDED* Variance
City of Montebello
Fiscal Year 2022-23 Budget
Master Position Control, by Department*
Public Works
Director of Public Works 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Assistant Director of Public Works 1.0 1.0 1.0 1.0 2.0 2.0 1.0 Deputy Director 0.0 0.0 0.0 0.0 1.0 1.0 1.0
Principal Engineer 0.0 0.0 0.0 0.0 1.0 1.0 1.0
Assistant Engineer 0.0 0.0 1.0 2.0 2.0 2.0 0.0
Building Official 0.0 0.0 0.0 0.0 1.0 1.0 1.0
Combination Builidng Inspector 0.0 0.0 0.0 0.0 1.0 1.0 1.0 Buiding Permit Technician 0.0 0.0 0.0 0.0 2.0 2.0 2.0
Public Works Inspector 0.0 0.0 1.0 1.0 1.0 1.0 0.0
Public Works Superintendent 0.0 1.0 1.0 1.0 1.0 1.0 0.0 Public Works Manager 0.0 0.0 0.0 0.0 1.0 1.0 1.0
Park Maintenance Supervisor 0.0 0.0 0.0 0.0 1.0 1.0 1.0 Street Maintenance Supervisor 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Assistant Tree Maintenance Supervisor
1.0 1.0 1.0 1.0 1.0 1.0 0.0
Building Maintenance Tradeworker II 0.0 0.0 0.0 0.0 2.0 2.0 2.0 Electrician 0.0 0.0 0.0 0.0 1.0 1.0 1.0
Plumber 0.0 0.0 0.0 0.0 1.0 1.0 1.0
Maintenance Worker 7.0 14.0 14.0 14.0 22.0 22.0 8.0
Senior Management Analyst 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Management Analyst 0.0 0.0 0.0 1.0 1.0 1.0 0.0
Senior Administrative Assistant 1.0 1.0 1.0 1.0 1.0 1.0 0.0
12.0 21.0 23.0 25.0 46.0 46.0 21.0
*Transfer 7.0 FTE from Parks and Recreation - Golf Course Operations, October, 2020 Recreation and Community Services
Director of Recreation and Community Services 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Assistant Director of Recreation and Community Services 1.0 1.0 1. 0 1.0 1.0 1.0 0.0 Recreation & Community Services Superintendent** 0.0 1.0 1.0 1.0 1.0 1.0 0.0 Park Maintenance Supervisor 1.0 1.0 1.0 1.0 0.0 0.0 -1.0 Building Maintenance Tradeworker II 2.0 2.0 2.0 2.0 0.0 0.0 -2.0 Maintenance Worker 8.0 8.0 8.0 8.0 0.0 0.0 -8.0
Recreation Manager 0.0 0.0 1.0 1.0 1.0 1.0 0.0
Recreation Supervisor 0.0 0.0 0.0 0.0 1.0 1.0 1.0
Community Services Coordinator 3.0 4.0 4.0 4.0 4.0 4.0 0.0 Management Analyst 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Senior Administrative Assistant 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Golf Course Superintendent / Facility Manager**
1.0 0.0 0.0 0.0 0.0 0.0 0.0
Golf Cart Mechanic* 1.0 0.0 0.0 0.0 0.0 0.0 0.0
Golf Course Equipment Mechanic* 1.0 0.0 0.0 0.0 0.0 0.0 0.0
21.0 20.0 21.0 21.0 11.0 11.0 -10.0
*Golf Course personnel transferred to Public Works as "Maintenance Worker" classification **Recreation & Comm Services Superintendent transferred to Public Works as "Public Works Superintendent"
*Includes updated classifications per approved "Classification and Compensation Study"
POSITIONS ADDED
FY 2019-20 FY 2020-21
FY 2021-22
ADOPTED
FY 2021-22
AMENDED
FY 2022-23
ADOPTED
FY 2022-23
AMENDED* Variance
City of Montebello
Fiscal Year 2022-23 Budget
Master Position Control, by Department*
Transportation
Director of Transportation 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Assistant Director of Transportation 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Deputy Director 0.0 0.0 0.0 2.0 1.0 1.0 -1.0
Public Information Officer 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Transit Administration Manager 1.0 2.0 2.0 2.0 1.0 1.0 -1.0 Transit Operations Manager 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Fleet Maintenance Manager 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Maintenance Manager 0.0 0.0 1.0 1.0 1.0 1.0 0.0
Shop Maintenance Supervisor 4.0 4.0 4.0 4.0 4.0 4.0 0.0 Transit Dispatch Supervisor 10.0 12.0 12.0 15.0 15.0 15.0 0.0 Transit Assistant Manager 3.0 3.0 3.0 3.0 3.0 3.0 0.0
Warehouse Supervisor 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Fleet Services Supervisor 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Grants and Project Administrator 1.0 1.0 1.0 1.0 1.0 1.0 0.0 Senior Procurement Analyst 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Senior Management Analyst 0.0 0.0 0.0 0.0 1.0 1.0 1.0
Management Analyst 1.0 3.0 3.0 3.0 4.0 4.0 1.0
Transit Planner 0.0 0.0 0.0 1.0 1.0 1.0 0.0
Associate Planner
0.0 0.0 1.0 0.0 0.0 0.0 0.0
Account Clerk 0.0 1.0 1.0 1.0 1.0 1.0 0.0
Finance Technician 2.0 3.0 3.0 3.0 3.0 3.0 0.0
Senior Administrative Assistant 0.0 1.0 1.0 1.0 1.0 1.0 0.0 Bus Operator 105.0 105.0 120.0 120.0 150.0 150.0 30.0
Heavy Equipment Mechanic 15.0 15.0 15.0 15.0 15.0 15.0 0.0 Fleet Service Worker 13.0 13.0 13.0 13.0 13.0 13.0 0.0
Body Shop Mechanic 1.0 1.0 1.0 1.0 1.0 1.0 0.0
Building Maintenance Tradeworker II 1.0 1.0 1.0 1.0 2.0 2.0 1.0 Maintenance Worker
1.0 1.0 1.0 1.0 0.0 0.0 -1.0
Storekeeper 3.0 3.0 3.0 3.0 3.0 3.0 0.0
Administrative Assistant 4.0 5.0 5.0 5.0 5.0 5.0 0.0
170.0 182.0 199.0 204.0 234.0 234.0 30.0
Total Full-Time Employees 419.0 461.0 489.0 499.0 543.0 547.0 44.0 Total Full-Time Employees Net Elected 412.0 454.0 482.0 492.0 536.0 5 40.0 44.0 FY 2019-20 FY 2020-21
FY 2021-22
ADOPTED
FY 202-22
AMENDED
FY 2022-23
PROPOSED
FY 2022-23
AMENDED Variance
Administration 6.0 8.0 8.0 8.0 9.0 11.0 1.0
Community Development 12.0 19.0 21.0 21.0 20.0 20.0 -1.0 Finance 19.0 20.0 21.0 21.0 22.0 22.0 1.0
Fire 59.0 70.0 73.0 76.0 76.0 76.0 0.0
Human Resources - Information Technology 12.0 12.0 14.0 14.0 16.0 18.0 2.0 Parks and Recreation 21.0 20.0 21.0 21.0 11.0 11.0 -10.0 Police 101.0 102.0 102.0 102.0 102.0 102.0 0.0
Public Works 12.0 21.0 23.0 25.0 46.0 46.0 21.0
Transit 170.0 182.0 199.0 204.0 234.0 234.0 30.0
412.0 454.0 482.0 492.0 536.0 540.0 44.0
RESOLUTION NO. _______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MONTEBELLO ADOPTING THE COMPENSATION PLAN AND
TABLE OF ORGANIZATION (POSITION LISTING)
THE CITY COUNCIL OF THE CITY OF MONTEBELLO DOES RESOLVE AS FOLLOWS:
SECTION 1. That the City Council of the City of Montebello has determined that the following listing of positions shall be the official and prescribed position titles and if applicable in accordance with the respective range numbers pertaining thereto and herein indicated in accordance with provisions of the Montebello Municipal Code and/or the Civil Service Rules and Regulations as previously enacted by this City Council:
ELECTED OFFICIALS
MONTHLY SALARY
RANGES
City Councilmembers 1,032 - 1,032
City Clerk 695 - 695
City Treasurer 695 - 695
CLASSIFIED MANAGEMENT RANGE
ANNUAL
MINIMUM
ANNUAL
MAXIMUM
Fire Battalion Chief 57 $132,654 $165,666
Fire Captain 46 $101,101 $126,262
Police Captain 63 $153,838 $192,122
Police Lieutenant 57 $132,654 $165,666
Police Sergeant 48 $106,220 $132,654
Senior Fire Inspector 38 $82,979 $103,629
CLASSIFIED NON-MANAGEMENT RANGE
ANNUAL
MINIMUM
ANNUAL
MAXIMUM
Account Clerk 7 $38,595 $48,199
Administrative Assistant 5 $36,735 $45,877
Assistant Engineer 33 $73,341 $91,593
Assistant Planner 27 $63,242 $78,980
Building Inspector 26 $61,699 $77,054
Building Maintenance Tradeworker I 11 $42,601 $53,203
Building Maintenance Tradeworker II 14 $45,877 $57,294
Business License Technician 11 $42,601 $53,203
Combination Building Inspector 35 $77,054 $96,230
Community Outreach Specialist 21 $54,533 $68,104
Community Risk Reduction Coordinator 32 $71,552 $89,359 Community Services Coordinator 13 $44,758 $55,896
Court Liaison 12 $43,666 $54,533
Custodian 7 $38,595 $48,199
Engineering Technician 22 $55,896 $69,807
Finance Technician 14 $45,877 $57,294
Fire Engineer 40 $87,179 $108,875
Fire Inspector 21 $54,533 $68,104
Firefighter 35 $77,054 $96,230
Human Resources Technician 27 $63,242 $78,980
Lead Finance Technician 23 $57,294 $71,552
Maintenance Worker 10 $41,562 $51,905
Parking Control Officer 12 $43,666 $54,533
Payroll Coordinator 24 $58,726 $73,341
Payroll Specialist 21 $54,533 $68,104
Permit Technician 17 $49,404 $61,699
Police Community Service Officer 16 $48,199 $60,194
Police Corporal 41 $89,359 $111,597
Police Dispatcher I 22 $55,896 $69,807
Police Dispatcher II 27 $63,242 $78,980
Police Officer 38 $82,979 $103,629
Police Records Technician 9 $40,548 $50,639
Property & Evidence Technician I 18 $50,639 $63,242
Public Information Coordinator 24 $58,726 $73,341
Public Safety Radio Technician 30 $68,104 $85,053
Public Works Inspector 27 $63,242 $78,980
Records Coordinator 22 $55,896 $69,807
Risk Management Assistant 12 $43,666 $54,533
Senior Building Inspector 31 $69,807 $87,179
Senior Finance Technician 21 $54,533 $68,104
Senior Permit Technician 21 $54,533 $68,104
SMART-TD
CLASSIFIED NON-MANAGEMENT
ANNUAL
MINIMUM
ANNUAL
MAXIMUM
Body Shop Mchanic (effective 1/3/21) $52,584 $67,116
Bus Operator (effective 1/3/21) $43,068 $54,972
Equipment Mechanic A (effective 1/3/21) $52,584 $67,116 Equipment Service Worker (effective 1/3/21) $37,092 $47,340 Storekeeper (eff 1/3/21) $45,288 $57,792
UNCLASSIFIED MANAGEMENT RANGE
ANNUAL
MINIMUM
ANNUAL
MAXIMUM
Accounting Manager 43 $93,883 $117,247
Accounting Supervisor 30 $68,104 $85,053
Assistant City Manager 74 $201,848 $252,081
Assistant Director of Finance 55 $126,262 $157,684
Assistant Director of Fire 54 $123,182 $153,838
Assistant Director of Planning and Community Development 55 $126,262 $157,684 Assistant Director of Public Affairs 55 $126,262 $157,684 Assistant Director of Public Works 54 $123,182 $153,838
Assistant Director of Recreation & Community Services 51 $114,387 $142,854 Assistant Director of Transportation 54 $123,182 $153,838 Assistant Fire Chief 62 $150,086 $187,436
Assistant Police Chief 65 $161,626 $201,848
Associate Engineer 40 $87,179 $108,875
Building Maintenance Supervisor 30 $68,104 $85,053
Building Official 59 $139,369 $174,053
City Manager * $334,624 $334,624
Code Enforcement Manager 38 $82,979 $103,629
Construction Manager 48 $106,220 $132,654
Crime Prevention Supervisor 34 $75,175 $93,883
Deputy Director of Public Works 52 $117,247 $146,425
Deputy Director of Transportation 52 $117,247 $146,425
Deputy Fire Chief 58 $135,970 $169,808
Director of Finance 68 $174,053 $217,369
Director of Human Resources 68 $174,053 $217,369
Director of Planning & Community Development 65 $161,626 $201,848 Director of Public Affairs/Information Technology 65 $161,626 $201,848 Director of Public Works/City Engineer 69 $178,405 $222,803 Director of Recreation & Community Services 64 $157,684 $196,925 Director of Transportation 66 $165,666 $206,895
Dispatch Supervisor 32 $71,552 $89,359
Economic Development Manager 50 $111,597 $139,369
Finance Supervisor 32 $71,552 $89,359
Fire Chief 71 $187,436 $234,082
Fire Marshal 50 $111,597 $139,369
Fleet Maintenance Manager 44 $96,230 $120,178
Fleet Maintenance Supervisor 33 $73,341 $91,593
Fleet Services Manager 42 $91,593 $114,387
Fleet Services Supervisor 22 $55,896 $69,807
Grants & Project Administrator 36 $78,980 $98,636
Housing Manager 48 $106,220 $132,654
Human Resources Analyst 34 $75,175 $93,883
Human Resources Manager 48 $106,220 $132,654
Information Systems Manager 49 $108,875 $135,970
Information Systems Supervisor 39 $85,053 $106,220
Management Analyst 28 $64,823 $80,955
Maintenance Manager 44 $96,230 $120,178
Office Manager 27 $63,242 $78,980
Park Maintenance Supervisor 30 $68,104 $85,053
Planner 35 $77,054 $96,230
Planning Manager 49 $108,875 $135,970
Police Chief 72 $192,122 $239,934
Police Records Supervisor 31 $69,807 $87,179
Principal Engineer 52 $117,247 $146,425
Principal Risk Officer 59 $139,369 $174,053
Public Information Officer 32 $71,552 $89,359
Public Safety Radio Supervisor 39 $85,053 $106,220
Public Works Inspector 27 $63,242 $78,980
Public Works Manager 37 $80,955 $101,101
Public Works Superintendent 41 $89,359 $111,597
Recreation Manager 35 $77,054 $96,230
Recreation Supervisor 29 $66,443 $82,979
Revenue Supervisor 30 $68,104 $85,053
Risk Management Analyst 30 $68,104 $85,053
Risk Manager 50 $111,597 $139,369
Senior Deputy City Clerk 39 $85,053 $106,220
Senior Economic Development Coordinator 34 $75,175 $93,883 Senior Human Resources Analyst 41 $89,359 $111,597
Senior Management Analyst 36 $78,980 $98,636
Senior Planner 41 $89,359 $111,597
Senior Procurement Analyst 33 $73,341 $91,593
Social Work Supervisor 38 $82,979 $103,629
Street Maintenance Supervisor 32 $71,552 $89,359
Superintendent/Facility Manager 38 $82,979 $103,629
Transit Administration Manager 45 $98,636 $123,182
Transit Assistant Manager 34 $75,175 $93,883
Transit Operations Manager 46 $101,101 $126,262
Transit Planner 28 $64,823 $80,955
Transit Supervisor 26 $61,699 $77,054
Warehouse Supervisor 26 $61,699 $77,054
*The City Manager’s salary is set by separate City Council approved contract.
UNCLASSIFIED NON-MANAGEMENT RANGES
ANNUAL
MINIMUM
ANNUAL
MAXIMUM
Accountant 26 $61,699 $77,054
Code Enforcement Coordinator 10 $41,562 $51,905
Code Enforcement Officer 25 $60,194 $75,175
Crime Analyst 32 $71,552 $89,359
Deputy City Clerk 24 $58,726 $73,341
Economic Development Coordinator 26 $61,699 $77,054
Field Response Case Coordinator 11 $42,601 $53,203
Firefighter/Paramedic Trainee 21 $54,533 $68,104
Information Systems Analyst 34 $75,175 $93,883
Information Systems Technician 18 $50,639 $63,242
Police Trainee 21 $54,533 $68,104
Risk Management Assistant 19 $51,905 $64,823
Senior Accountant 35 $77,054 $96,230
Senior Administrative Assistant 13 $44,758 $55,896
HOURLY CLASSIFICATION
HOURLY
MINIMUM
HOURLY
MAXIMUM
Administrative Analyst 15.00 24.45
Administrative Secretary 18.55 23.41
Building Maintenance Tradeworker 15.92 20.31
Bus Operator 18.93 20.68
Clerical Assistant 15.00 18.33
Code Enforcement Technician 15.00 16.84
Community Services Aide - SYEP 15.00 14.00
Equipment Service Worker 15.00 19.11
Field Maintenance Worker 15.00 16.73
Fire Engineer 27.43 35.02
Fire Inspector 22.56 28.80
Heavy Duty Fire Equipment Mechanic 45.41 49.10
Human Resources Manager 42.22 51.32
Information Systems Specialist 15.00 18.33
Intern 15.00 18.33
Lifeguard 15.00 16.64
Maintenance Worker 15.92 20.31
Mechanic's Assistant 15.00 17.49
Park Ranger 15.00 19.30
Parking Control Officer 18.72 21.28
Police Cadet 15.14 19.33
Police Community Services Officer 15.00 16.66
Police Dispatcher 26.35 31.25
Police Officer 32.49 41.43
Police Trainee 18.99 24.06
Police Youth Program Coordinator 17.55 22.45
Pool Manager 16.66 20.00
Property & Evidence Technician 16.66 24.45
Public Works Manager 34.72 42.23
Recreation Leader I 15.00 16.22
Recreation Leader II 15.00 17.79
Recreation Leader III 15.00 18.75
Recreation Leader IV 16.71 20.55
Risk Management Assistant 15.00 21.45
Secretary 15.00 17.90
Senior Lifeguard 16.15 18.27
Senior Project Manager 63.87 77.66
Transportation Revenue Coordinator 15.93 20.22
Transportation Specialist 15.00 24.45
SECTION 2. That the City Clerk shall certify to the adoption of this resolution, shall distribute copies to the Director of Human Resources and the Director of Finance, and the resolution shall be in full force and effect as of Novemer 16, 2022.
APPROVED AND ADOPTED this 16th day of November, 2022.
_______________________________
Kimberly A. Cobos-Cawthorne, Mayor
ATTEST:APPROVED AS TO FORM:
________________________________ ________________________________ Christopher Jimenez, City Clerk Arnold M. Alvarez-Glasman, City Attorney
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF MONTEBELLO )
I, Christopher Jimenez, City Clerk of the City of Montebello, County of Los Angeles, State of California, hereby certify that the foregoing Resolution No. 22-__ was passed and adopted by the City Council of the City of Montebello, signed by the Mayor and attested by the City Clerk at a regular meeting of said Council held on the 16 th day of November, 2022 and that said Resolution was adopted by the following vote, to-wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
The undersigned, City Clerk of the City of Montebello, does hereby attest and certify that the foregoing Resolution is a true, full and correct copy of a resolution duly adopted at a meeting of said City which was duly convened and held on the date stated thereon, and that said document has not been amended, modified, repealed or rescinded since its date of adoption and is in full force and effect as of the date hereof.
DATE:
Christopher Jimenez, City Clerk
ITEM # 9
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:
Joseph Palombi, Director of Planning & Community Development SUBJECT: SECOND READING AND ADOPTION OF ORDINANCE NO’S. 2454, 2455, AND 2456 APPROVING DEVELOPMENT AGREEMENTS (DA02-
22, 03-22, AND 04-22) BETWEEN THE CITY OF MONTEBELLO AND CLEAR CHANNEL OUTDOOR, LLC FOR PROPERTY AT 1720 S.
BLUFF ROAD, 1633 WASHINGTON BOULEVARD, AND 1915 W.
WHITTIER BOULEVARD
DATE: November 16, 2022
RECOMMENDATION(S):
It is recommended that the City Council:
1. Waive second reading and adopt Ordinance No. 2454 approving a Development Agreement (DA 02-22) by and between the City of Montebello and Clear Channel Outdoor, LLC for the property located at 1720 S. Bluff Road (Attachment A), and find the project is exempt pursuant to Sections 15061(b)(3) (“Common Sense Exemption”) and 15303 (“New Construction or Conversion of Small Structures”) of the CEQA Guidelines; and
2. Waive second reading and adopt Ordinance No. 2455 approving a Development Agreement (DA 03-22) by and between the City of Montebello and Clear Channel Outdoor, LLC for the property located at 1633 Washington Blvd. (Attachment B), and find the project is exempt pursuant to Sections 15061(b)(3) (“Common Sense Exemption”) and 15303 (“New Construction or Conversion of Small Structures”) of the CEQA Guidelines; and
3. Waive second reading and adopt Ordinance No. 2456 approving a Development Agreement (DA 04-22) by and between the City of Montebello and Clear Channel Outdoor, LLC for the property located at 1915 W. Whittier Blvd. (Attachment C),
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
and find the project is exempt pursuant to Sections 15061(b)(3) (“Common Sense Exemption”) and 15303 (“New Construction or Conversion of Small Structures”) of the CEQA Guidelines; and
4. Take such additional, related action that may be desirable.
FISCAL IMPACT:
Pursuant to the Development Agreements (DA Nos. 02-22, 03-22, and 04-22), Clear Channel Outdoor, LLC will provide the following public benefits: 1) a one-time Development Agreement signing bonus totaling $100,000 (signing bonus of $20,000 per sign face); 2) an annual development fee totaling $50,000 per year ($10,000 per sign face) for the five (5) digital sign faces; 3) a one-time processing fee of $10,000 per digital sign; and 4) City use of the digital signs for advertising public service announcements and City-related public messages at no charge to the City, subject to available space.
These public benefits will be new sources of General Fund revenue -- one-time and ongoing. The $50,000 annual fee will be ongoing revenue for the term of the development agreements, and will increase revenue in Fiscal Year 2022-23 based on the execution dates of the development agreements. In addition, the one-time revenues will increase General Fund revenue in FY 2022-23, and those funds will be available for typical General Fund operating uses. Going forward, subsequent budgets will be built using the additional $50,000 in annual revenue.
BACKGROUND/DISCUSSION:
Clear Channel Outdoor, LLC (the “Applicant”) currently operates 24 existing poster panel (or static) outdoor advertising sign faces on 13 structures located along streets within the City of Montebello. This request includes the approval of three separate development agreements to allow for the relocation in-place of six (6) existing static sign faces located on three separate dual-faced sign poles within the City.
These existing static sign faces are currently located at 1720 S. Bluff Road, 1633 Washington Blvd., and 1915 W. Whittier Blvd. (collectively “the Properties”). The proposed relocation in-place would call for the removal of an existing static sign face for every digital face conversion with a 1:1 net reduction in static signage within the City. As part of this request, the Applicant would relocate in-place five (5) existing static signs with five replacement digital signs for outdoor advertising. It is important to note that none of the sign structures associated with this request would need to be rebuilt in connection with the proposed replacement effort. With the exception of minor electrical upgrades, the replacement would be seamless and result in an enhanced outdoor advertising display that is approximately 700 pounds lighter and much more efficient to operate as it will include remote access capabilities. The replacement signage will, among other things, allow the option for immediate emergency and community messaging along internal corridors by the City, County, and State agencies.
In addition, the Applicant proposes a Takedown Program in connection with this request.
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
This program includes the removal of five (5) existing static signs within the City. The five (5) signs associated with the Takedown Program include: 1) the double-faced 12’ x 25’ outdoor advertising sign with printed display faces located on the property at 8105 Slauson Ave.; 2) the double-faced 12’ x 25’ outdoor advertising sign with printed display faces located on the property at 249 E. Beverly Blvd.; and 3) the single-faced 12’ x 25’ outdoor advertising sign with printed display face located on the property at 303 W.
Whittier Blvd (collectively referred to as the “Takedown Program”).
On September 28, 2022, the Applicant filed a request to enter into three (3) separate development agreements (“Development Agreement or DA Nos. 02-22, 03-22, and 04- 22”) with the City to allow the removal and replacement of the existing double-faced static outdoor advertising signs with new dual-faced digital outdoor advertising signs pursuant to Montebello Municipal Code (“MMC”) Section 17.62.105.B(C)(2) and Government Code Sections 5200, 5412, 5443.5, and 65865 et seq.
On October 18, 2022, the Planning Commission held a duly noticed public hearing and unanimously approved Resolution Nos. 10-22 (Attachment G), 11-22 (Attachment H), and 12-22 ( Attachment I) recommending approval of Development Agreement Nos. 02- 22, 03-22, and 04-22 to allow the relocation in-place of five existing dual-faced static outdoor advertising signs with technologically advanced enhanced outdoor advertising signs with digital display faces for the property located at 1720 Bluff Road (DA No. 02- 22), 1633 Washington Blvd. (DA No. 03-22), and 1915 W. Whittier Blvd. (DA No. 04-22).
On October 26, 2022, the City Council held a duly noticed public hearing to consider Ordinance Nos. 2454, 2455, and 2456 approving Development Agreement Nos. 02-22, 03-22, and 04-22 by and between the City and Clear Channel Outdoor, LLC for the Properties.
ENVIRONMENTAL IMPACT:
The Project is exempt from the California Environmental Quality Act (CEQA) pursuant to the “Common Sense” exemption set forth under Section 15061(b)(3), which provides that CEQA applies only to projects which have the potential for causing a significant effect on the environment and also states that where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. In addition, the Project is also exempt from CEQA under the Class 3 categorical exemption set forth under to Section 15303 of the CEQA Guidelines which exempts new construction or conversion of small structures where only minor modifications are made in the exterior of the structure. The proposed relocation and replacement of an existing off-premise dual-faced static sign with a new off-premises dual-faced digital sign including, among other things, minor modifications to the exterior structure as well as enhancement to include the most current technology does not have the potential to degrade the quality of the environment or have a significant effect on the environment.
ANALYSIS:
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
Section 17.62.105(C)(2) of the Montebello Municipal Code (MMC) pertaining to signage (Sign Code) authorizes the relocation of an off-premises sign, and its replacement with a new off-premises digital sign, upon the approval of a development agreement by the City Council that contains all of the appropriate standards and public benefits that are neogiated between the sign owner and the City, and in compliance with all other imposed standards. The following is intended to provide a summary related to Development Agreement Nos. 02-22, 03-22, and 04-22 based on the subject site (collectively referred to as the “Project”):
I. 1720 S. Bluff Road – Development Agreement No. 02-22 The Applicant currently owns and operates an existing double-faced 12’ x 25’ outdoor advertising sign with printed display faces at 1720 S. Bluff Road. This property is currently zoned M-1 (Light Manufacturing Zone) with a General Plan land use designation of Industrial. The Applicant is proposing to relocate the existing sign in-place as a dual- faced 12’ x 25’ outdoor advertising sign with digital display faces. With the exception of electrical upgrades, there would be no structural changes needed to the existing sign pole/structure in connection with this request. In addition, the Applicant will remove one double-faced 12’ x 25’ outdoor advertising sign with printed display faces located at 8105 Slauson Ave. within the City.
II. 1633 Washington Blvd. – Development Agreement No. 03-22 The Applicant currently owns and operates an existing double-faced 12’ x 25’ outdoor advertising sign with printed display faces at 1633 Washington Blvd. This property is currently zoned M-1 (Light Manufacturing Zone) with a General Plan land use designation of Industrial. The Applicant is proposing to relocate the existing sign in-place resulting in a new double-faced 12’ x 25’ outdoor advertising sign with digital display faces. With the exception of electrical upgrades, there would be no structural changes needed to the existing sign pole/structure in connection with this request. In addition, the Applicant will remove one double-faced 12’ x 25’ outdoor advertising sign with printed display faces located at 249 E. Beverly Blvd. within the City.
III. 1915 W. Whittier Blvd. – Development Agreement No. 04-22 The Applicant currently owns and operates an existing double-faced 12’ x 25’ outdoor advertising sign with printed display faces at 1915 W. Whittier Blvd. The subject property is currently zoned C-2 (General Commercial Zone) with a General Plan land use designation of General Commercial. The Applicant is proposing to relocate the existing sign in-place with a new dual-faced 12’ x 25’ outdoor advertising sign with one digital display face and one printed/static display face. With the exception of electrical upgrades, there would be no structural changes needed to the existing sign pole/structure in connection with this request. In addition, the Applicant will remove one single- faced 12’ x 25’ outdoor advertising sign located at 303 W. Whittier Blvd. within the City.
The above-referenced properties (or “Project Sites”) are currently improved with industrial/commercial uses. As described above, the replacement signage converting static to digital would include five (5) new digital outdoor advertising sign faces. In addition, the Takedown Program would permanently remove five (5) existing static outdoor advertising signs located at three (3) separate locations within the City. As
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
previously mentioned, the Takedown Program will occur at 8105 Slauson Ave., 249 E.
Beverly Blvd., and 303 W. Whittier Blvd.
The Project would implement state-of-the-art technology that will result in a net reduction of vehicle trips to the subject location because these new digital signs will be controlled remotely creating an environment where lighting and messaging could be changed without visiting the subject site. In addition, there would be a reduction in materials used to manually change the static sign face eliminating the need to replace the poster signs that are inherent in the static signs. Lastly, each panel would come equipped with light sensors that automatically control illumination at a pre-set illumination level of 0.3 footcandles over ambient light which could be adjusted remotely, if needed.
DEVELOPMENT AGREEMENT
The State Legislature adopted the “Development Agreement Statute,” sections 65864 et seq. of the Government Code to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development. The City of Montebello, a general law city, is authorized pursuant to the Development Agreement Statute to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing predictability for both the City and the owner of the property during the development process.
The Applicant has requested that the City enter into Development Agreement No. 02-22 (Agreement No. 4032, please see Attachment D), Development Agreement No. 03-22 (Agreement No. 4033, please see Attachment E), and Development Agreement No. 04- 22 (Agreement No. 4034, please see Attachment F), for the Properties to allow completion of the replacement and relocation program. In accordance with its standard procedures, the Applicant and the City have engaged in negotiations.
The Development Agreement Statute provides that the Planning Commission and the City Council must each hold a public hearing on the proposal prior to approving a development agreement. Development Agreements must be adopted by an ordinance approved by the City Council and cannot be approved unless the legislative body finds that the request/project conforms to the General Plan and any applicable specific plan.
As previously mentioned, the relocation of an off-premises sign, and its replacement with a new off-premises digital sign, is allowed upon the approval of a Development Agreement by the City Council, containing appropriate standards and public benefits to be negotiated between the sign owner and the City, and in compliance with all other imposed standards pursuant to MMC Section 17.62.105(C)(2).
All City fiscal decisions, including the financial aspects and specific deal points of the Development Agreement, are solely the jurisdiction of the Montebello City Council, and it is the City Council’s exclusive authority to review and take action upon any such Agreement.
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
The Project as authorized in the proposed Development Agreements are consistent with the General Plan because the Development Agreements meet the Goals and Objectives of the Land Use Element.
GENERAL PLAN
The Project conforms with the Montebello General Plan, Land Use Element as it will provide a plan for enhanced advertising opportunities for businesses in an effort to increase the taxable revenue from these properties as well as the potential for increased sales tax revenues to the City and eliminates blight through the removal, replacement, and relocation of older signs and the construction of new state-of-the-art digital signs. Specifically, the Project meets the following goals:
Goal #1: To Formulate a plan which is responsive to the needs of the community and which permits the orderly arrangement of land uses, permitting sufficient areas for reasonable development.
Commercial Policy #5: The City should contain ample commercial facilities to meet the needs of its residents as well as provide taxable revenues to the City. Industrial Policy #1: The City’s industrial area should be preserved and maintained.
SUMMARY:
Clear Channel Outdoor, LLC (the “Applicant”) currently operates 24 existing poster panel (or static) outdoor advertising sign faces on 13 structures located along city streets within the City of Montebello (the “City”). This request for a proposed relocation in place relates to three locations for a total of six (6) existing static sign faces located on three separate dual-faced sign poles. These existing static sign faces are currently located at 1720 S.
Bluff Road, 1633 Washington Blvd., and 1915 W. Whittier Blvd. (collectively “the Properties”). The proposed relocation in place would call for the removal of an existing static sign face for every digital face conversion with a 1:1 net reduction in static signage.
As part of this request, the Applicant would relocate in-place five (5) existing static signs with five replacement digital signs for outdoor advertising. It is important to note that none of the sign structures associated with this request will need to be rebuilt in connection with the proposed replacement. With the exception of minor electrical upgrades, the replacement would be seamless and result in a sign that is approximately 700 pounds lighter and much more efficient to operate as it will include remote access capabilities. As a result, the converted digital signage could be used, if needed, for immediate emergency and community messaging along internal corridors by the City, County, and State agencies. This request also includes a Takedown Program intended to reduce blighted signage and remove old signs within the City. The Takedown Program will include: 1) the removal of one double-faced 12’ x 25’ outdoor advertising sign with printed display faces located on the property at 8105 Slauson Ave.; 2) the removal of one double-faced 12’ x 25’ outdoor advertising sign with printed display faces located on the property at 249 E.
Beverly Blvd.; and 3) the removal of one single-faced 12’ x 25’ outdoor advertising sign with a printed display face located on the property at 303 W. Whittier Blvd.
CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF NOVEMBER 16, 2022
ATTACHMENT(S)
1. Attachment A - Ordinance No. 2454 for DA 02-22 Montebello Digital Sign
2. Attachment B - Ordinance No. 2455 for DA 03-22 Montebello Digital Sign
3. Attachment C - Ordinance No. 2456 for DA 04-22 Montebello Digital Sign
4. Attachment D - DA No. 02-22 - 1720 Bluff Road
5. Attachment E - DA No. 03-22 - 1633 Washington Blvd.
6. Attachment F - DA No. 04-22 - 1915 W Whittier Blvd.
7. Attachment G - Planning Resolution No. 10-22
8. Attachment H - Planning Resolution No. 11-22
9. Attachment I - Planning Resolution No. 12-22
NEXT STEPS:
N/A
ORDINANCE NO. 2454
AN ORDINANCE OF THE CITY OF MONTEBELLO, CALIFORNIA
APPROVING DEVELOPMENT AGREEMENT NO. 02-22 (AGREEMENT
NO. 4032) BY AND BETWEEN THE CITY OF MONTEBELLO AND
CLEAR CHANNEL OUTDOOR, INC. FOR A DIGITAL SIGN
WHEREAS, the City of Montebello (“City”) has found that development agreements strengthen the public planning process, encourage private participation in comprehensive planning by providing greater degree of certainty in that process, reduce the economic costs of development, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved; and WHEREAS, pursuant to California Government Code Sections 65864 et seq., the City is authorized to enter into development agreements providing for the development of land under terms and conditions set forth herein; and
WHEREAS, Developer has a leasehold interest in that certain portion of real property located at 1720 Bluff Road. in the City of Montebello, CA 90640, Assessor Parcel Number 6369-008-001 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 digital display faces in consideration for the additional removal of the double-faced 12’ x 25’ outdoor advertising sign located on the real property; and WHEREAS, on September 28, 2022, the Applicant requested to enter into a Development Agreements (“DA No. 02-22”) with the City to allow the removal and replacement of the existing outdated double-faced static outdoor advertising sign with new double-faced digital outdoor advertising sign (“Project”) pursuant to Montebello Municipal Code Section 17.62.105.B(C)(2) and Government Code Sections 5200, 5412, 5443.5, and 65865 et seq.
WHEREAS, the City desires the timely, efficient, orderly, proper development of the Project in furtherance of the goals of the General Plan and the City Council has found that this Development Agreement is consistent with the City’s General Plan; and WHEREAS, the City Council has determined 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
ORDINANCE NO. 2454
displays and an overall reduction in the number of outdoor advertising signs in the City as part of the City’s planned development.
WHEREAS, the City and the Applicant have reached mutual agreement and desire to voluntarily enter into the Development Agreement to facilitate development of the Project subject to the conditions and requirements set forth therein; and WHEREAS, the City Planning Commission held a duly noticed public hearing on October 18, 2022, to consider the Development Agreement to solicit comments on the documents from staff, the public, the Applicant and the City; and WHEREAS, on October 18, 2022, after closing the public hearing and deliberating, the Planning Commission adopted a resolution recommending that the City Council approve the Development Agreement; and
WHEREAS, on October 26, 2022, the City Council held a duly noticed public hearing on the Development Agreement to solicit comments on the documents from staff, the public, the Applicant and the City; and
WHEREAS, the City Council considered the Staff Report, the Development Agreement, all recommendations by the Planning Commission and staff, Applicant, and public testimony; and
WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MONTEBELLO HEREBY ORDAINS AS FOLLOWS:
SECTION 1.RECITALS. The foregoing recitals are true and correct and are hereby incorporated as substantive findings of this Ordinance.
SECTION 2. Pursuant to California Government Code Section 65865, the City Council hereby approves in substantially the same form as the development agreement hereto as Exhibit “A.”
SECTION 3. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds this Ordinance 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
ORDINANCE NO. 2454
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..
SECTION 4. Pursuant to California Government Code Section 65867.5(b), and based on the entire record before the City Council, including all written and oral evidence presented to the City Council, the City Council hereby finds that the Project conforms with the Montebello General Plan, Land Use Element as it will provide a plan for enhanced advertising opportunities for businesses in an effort to increase the taxable revenue from these properties as well as the potential for increased sales tax revenues to the City and eliminates blight through the removal, replacement, and relocation of older signs and the construction of new state-of-the-art digital signs.
SECTION 5. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds that the Project is exempt from the California Environmental Quality Act (CEQA) pursuant to the “Common Sense” exemption set forth under Section 15061(b)(3), which provides that CEQA applies only to projects which have the potential for causing a significant effect on the environment and also states that where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 6. The City Clerk shall certify the adoption of this Ordinance and cause the same to be published or posted according to law. Pursuant to Government Code Section 65868.5, within ten (10) days following entering into the Development, as evidence by the full execution thereof, the City Clerk shall cause to be recorded a copy of the Development Agreement with the Registrar-Recorder of the County of Los Angeles.
SECTION 7. This Ordinance shall become effective thirty (30) days after its adoption.
PASSED, APPROVED, AND ADOPTED this 16th day of November 2022. ______________________________
Kimberly A. Cobos-Cawthorne, Mayor
ATTEST:
____________________________
Christopher Jimenez, City Clerk
ORDINANCE NO. 2454
APPROVED AS TO FORM:
_______________________________
Arnold M. Alvarez-Glasman, City Attorney
I HEREBY CERTIFY that the foregoing Ordinance was introduced at the regular meeting of the City Council on the 26th day of October, 2022, and was adopted by the City Council of the City of Montebello at its meeting held on the 16 th day of November, 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Christopher Jimenez, City Clerk
Exhibit A – Development Agreement No. 02-22 (Agreement No. 4032)
ORDINANCE NO. 2455
AN ORDINANCE OF THE CITY OF MONTEBELLO, CALIFORNIA
APPROVING DEVELOPMENT AGREEMENT NO. 03-22 (AGREEMENT
NO. 4033) BY AND BETWEEN THE CITY OF MONTEBELLO AND
CLEAR CHANNEL OUTDOOR, INC. FOR A DIGITAL SIGN
WHEREAS, the City of Montebello (“City”) has found that development agreements strengthen the public planning process, encourage private participation in comprehensive planning by providing greater degree of certainty in that process, reduce the economic costs of development, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved; and WHEREAS, pursuant to California Government Code Sections 65864 et seq., the City is authorized to enter into development agreements providing for the development of land under terms and conditions set forth herein; and
WHEREAS, Developer has a leasehold interest in that certain portion of real property located at 1633 Washington Blvd. in the City of Montebello, CA 90640, Assessor Parcel Number 6353-015-023 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 digital display faces in consideration for the additional removal of the double-faced 12’ x 25’ outdoor advertising sign located on the real property; and WHEREAS, on September 28, 2022, the Applicant requested to enter into a Development Agreements (“DA No. 03-22”) with the City to allow the removal and replacement of the existing outdated double-faced static outdoor advertising sign with new double-faced digital outdoor advertising sign (“Project”) pursuant to Montebello Municipal Code Section 17.62.105.B(C)(2) and Government Code Sections 5200, 5412, 5443.5, and 65865 et seq.
WHEREAS, the City desires the timely, efficient, orderly, proper development of the Project in furtherance of the goals of the General Plan and the City Council has found that this Development Agreement is consistent with the City’s General Plan; and WHEREAS, the City Council has determined 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
ORDINANCE NO. 2455
displays and an overall reduction in the number of outdoor advertising signs in the City as part of the City’s planned development.
WHEREAS, the City and the Applicant have reached mutual agreement and desire to voluntarily enter into the Development Agreement to facilitate development of the Project subject to the conditions and requirements set forth therein; and WHEREAS, the City Planning Commission held a duly noticed public hearing on October 18, 2022, to consider the Development Agreement to solicit comments on the documents from staff, the public, the Applicant and the City; and WHEREAS, on October 18, 2022, after closing the public hearing and deliberating, the Planning Commission adopted a resolution recommending that the City Council approve the Development Agreement; and
WHEREAS, on October 26, 2022, the City Council held a duly noticed public hearing on the Development Agreement to solicit comments on the documents from staff, the public, the Applicant and the City; and
WHEREAS, the City Council considered the Staff Report, the Development Agreement, all recommendations by the Planning Commission and staff, Applicant, and public testimony; and
WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MONTEBELLO HEREBY ORDAINS AS FOLLOWS:
SECTION 1.RECITALS. The foregoing recitals are true and correct and are hereby incorporated as substantive findings of this Ordinance.
SECTION 2. Pursuant to California Government Code Section 65865, the City Council hereby approves in substantially the same form as the development agreement hereto as Exhibit “A.”
SECTION 3. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds this Ordinance 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
ORDINANCE NO. 2455
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..
SECTION 4. Pursuant to California Government Code Section 65867.5(b), and based on the entire record before the City Council, including all written and oral evidence presented to the City Council, the City Council hereby finds that the Project conforms with the Montebello General Plan, Land Use Element as it will provide a plan for enhanced advertising opportunities for businesses in an effort to increase the taxable revenue from these properties as well as the potential for increased sales tax revenues to the City and eliminates blight through the removal, replacement, and relocation of older signs and the construction of new state-of-the-art digital signs.
SECTION 5. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds that the Project is exempt from the California Environmental Quality Act (CEQA) pursuant to the “Common Sense” exemption set forth under Section 15061(b)(3), which provides that CEQA applies only to projects which have the potential for causing a significant effect on the environment and also states that where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 6. The City Clerk shall certify the adoption of this Ordinance and cause the same to be published or posted according to law. Pursuant to Government Code Section 65868.5, within ten (10) days following entering into the Development, as evidence by the full execution thereof, the City Clerk shall cause to be recorded a copy of the Development Agreement with the Registrar-Recorder of the County of Los Angeles.
SECTION 7. This Ordinance shall become effective thirty (30) days after its adoption.
PASSED, APPROVED, AND ADOPTED this 16th day November 2022. ______________________________
Kimberly A. Cobos-Cawthorne, Mayor
ATTEST:
____________________________
Christopher Jimenez, City Clerk
ORDINANCE NO. 2455
APPROVED AS TO FORM:
_______________________________
Arnold M. Alvarez-Glasman, City Attorney
I HEREBY CERTIFY that the foregoing Ordinance was introduced at the regular meeting of the City Council on the 26th day of October, 2022, and was adopted by the City Council of the City of Montebello at its meeting held on the 16 th day of November, 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Christopher Jimenez, City Clerk
ORDINANCE NO. 2456
AN ORDINANCE OF THE CITY OF MONTEBELLO, CALIFORNIA
APPROVING DEVELOPMENT AGREEMENT NO. 04-22 (AGREEMENT
NO. 4034) BY AND BETWEEN THE CITY OF MONTEBELLO AND
CLEAR CHANNEL OUTDOOR, INC. FOR A DIGITAL SIGN
WHEREAS, the City of Montebello (“City”) has found that development agreements strengthen the public planning process, encourage private participation in comprehensive planning by providing greater degree of certainty in that process, reduce the economic costs of development, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved; and WHEREAS, pursuant to California Government Code Sections 65864 et seq., the City is authorized to enter into development agreements providing for the development of land under terms and conditions set forth herein; and
WHEREAS, 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 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 digital display face and one printed display face in consideration for the additional removal of the single-faced 12’ x 25’ outdoor advertising sign located on the real property; and
WHEREAS, on September 28, 2022, the Applicant requested to enter into a Development Agreements (“DA No. 04-22”) with the City to allow the removal and replacement of the existing outdated double-faced static outdoor advertising sign with new double-faced digital outdoor advertising sign (“Project”) pursuant to Montebello Municipal Code Section 17.62.105.B(C)(2) and Government Code Sections 5200, 5412, 5443.5, and 65865 et seq.
WHEREAS, the City desires the timely, efficient, orderly, proper development of the Project in furtherance of the goals of the General Plan and the City Council has found that this Development Agreement is consistent with the City’s General Plan; and WHEREAS, the City Council has determined 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
ORDINANCE NO. 2456
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.
WHEREAS, the City and the Applicant have reached mutual agreement and desire to voluntarily enter into the Development Agreement to facilitate development of the Project subject to the conditions and requirements set forth therein; and WHEREAS, the City Planning Commission held a duly noticed public hearing on October 18, 2022, to consider the Development Agreement to solicit comments on the documents from staff, the public, the Applicant and the City; and WHEREAS, on October 18, 2022, after closing the public hearing and deliberating, the Planning Commission adopted a resolution recommending that the City Council approve the Development Agreement; and
WHEREAS, on October 26, 2022, the City Council held a duly noticed public hearing on the Development Agreement to solicit comments on the documents from staff, the public, the Applicant and the City; and
WHEREAS, the City Council considered the Staff Report, the Development Agreement, all recommendations by the Planning Commission and staff, Applicant, and public testimony; and
WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MONTEBELLO HEREBY ORDAINS AS FOLLOWS:
SECTION 1.RECITALS. The foregoing recitals are true and correct and are hereby incorporated as substantive findings of this Ordinance.
SECTION 2. Pursuant to California Government Code Section 65865, the City Council hereby approves in substantially the same form as the development agreement hereto as Exhibit “A.”
SECTION 3. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds this Ordinance 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
ORDINANCE NO. 2456
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..
SECTION 4. Pursuant to California Government Code Section 65867.5(b), and based on the entire record before the City Council, including all written and oral evidence presented to the City Council, the City Council hereby finds that the Project conforms with the Montebello General Plan, Land Use Element as it will provide a plan for enhanced advertising opportunities for businesses in an effort to increase the taxable revenue from these properties as well as the potential for increased sales tax revenues to the City and eliminates blight through the removal, replacement, and relocation of older signs and the construction of new state-of-the-art digital signs.
SECTION 5. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds that the Project is exempt from the California Environmental Quality Act (CEQA) pursuant to the “Common Sense” exemption set forth under Section 15061(b)(3), which provides that CEQA applies only to projects which have the potential for causing a significant effect on the environment and also states that where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 6. The City Clerk shall certify the adoption of this Ordinance and cause the same to be published or posted according to law. Pursuant to Government Code Section 65868.5, within ten (10) days following entering into the Development, as evidence by the full execution thereof, the City Clerk shall cause to be recorded a copy of the Development Agreement with the Registrar-Recorder of the County of Los Angeles.
SECTION 7. This Ordinance shall become effective thirty (30) days after its adoption.
PASSED, APPROVED, AND ADOPTED this 16th day of November 2022. ______________________________
Kimberly A. Cobos-Cawthorne, Mayor
ATTEST:
____________________________
Christopher Jimenez, City Clerk
ORDINANCE NO. 2456
APPROVED AS TO FORM:
_______________________________
Arnold M. Alvarez-Glasman, City Attorney
I HEREBY CERTIFY that the foregoing Ordinance was introduced at the regular meeting of the City Council on the 26th day of October, 2022, and was adopted by the City Council of the City of Montebello at its meeting held on the 16 th day of November, 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Christopher Jimenez, City Clerk
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. 02-22 (AGREEMENT NO. 4032)
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 1720 Bluff Road in the City of Montebello, CA 90640, Assessor Parcel Number 6369- 008-001, 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 digital display faces, as more fully described in Exhibit “B” hereto (“New Digital Billboard”), in consideration for the additional removal of the double-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. 2454.
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. 2454, thereby approving this Agreement.
J. City finds and determines that all actions required of City precedent to approval of this Agreement by Ordinance No. 2454 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. 2454, but shall be no sooner than 30 days following approval of this Agreement by Ordinance No. 2454, 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 faces and , and the installation of digital display faces 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 faces 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 faces 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 faces 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 faces 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 faces 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 faces 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 faces on the New Digital Billboard Faces 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 faces 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 faces 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 Term. 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 7.1.1 Types of Insurance.
(a) Liability Insurance. Beginning on the Effective Date hereof and until completion of the Term, Developer shall, at its sole cost and expense, keep or cause to be kept in force for the mutual benefit of City, as additional insured, and Developer comprehensive broad form general liability insurance 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.
7.1.2 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, 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
EAST LAGUNA LOT EX OF HIKING AND RIDING TRAIL COM AT MOST N COR OF LOT 23 TH S 6746'15" E TO SE BDRY LINE OF MONTEBELLO CITY TH SW THEREON TO NE LINE OF SLAUSONAVE TH NW ON SD NE LINE BEG PART OF LOT 23
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
8105 Slauson Ave., Montebello, CA 90640 (Panels #5272 & #5273) 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. 03-22 (AGREEMENT NO. 4033)
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 1633 Washington Blvd in the City of Montebello, CA 90640, Assessor Parcel Number 6353-015-023, 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 digital display faces, as more fully described in Exhibit “B” hereto (“New Digital Billboard”), in consideration for the additional removal of the double-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 to be used to refurbish the City’s existing on-premise sign located at 1600 W Beverly Blvd., Montebello CA 90640, (the “Signing Bonus”) with refurbishment costs not to exceed Twenty Thousand Dollars ( $20,000) per digital display face under this Agreement.
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. 2455.
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. 2455, thereby approving this Agreement.
J. City finds and determines that all actions required of City precedent to approval of this Agreement by Ordinance No. 2455 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 faces and the installation of digital display faces 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 faces 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 faces 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 faces 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 faces 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 faces 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 faces 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 faces on the New Digital Billboard Faces 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 faces 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 faces 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.