Agenda Item No. 4
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Fermin Preciado, Director of Development Services/City EngineerVV Benjamin J. Matlock, Planning Manager/City Planner
FOR: City Council Meeting of August 22, 2022
SUBJECT: Leonard and Company Development Agreement - Modifications to Parties RECOMMENDATION:
That City Council approve and authorize the Mayor to execute a modification to a previously approved Development Agreement pertaining to Case No. 21-104/CUP/DA, an Electronic Messaging Center Billboard that would replace an existing static billboard at 31103 Outer Highway, that would remove the property owner signature requirement from the Agreement.
DISCUSSION:
At the regular City Council Meeting of June 27, 2022, the City Council approved a General Plan Amendment and a Development Code Amendment (Ordinance No. 393) pertaining to the development of Electronic Messaging Center Billboards. As part of the approval, the City Council also approved three (3) Conditional Use Permits for such structures as well as a Development Agreement for each respective site. One of these applications included Case No. 21-104/CUP/DA, which was for an Electronic Messaging Center Billboard that would replace an existing static billboard located on an existing commercial property at 31103 Outer Highway 10.
The Development Agreement listed the City, the applicant, Leonard and Company, and the property owner as parties to that agreement and would be responsible for providing a signature as part of the execution of the document. Based on documentation received by the applicant that demonstrates that they have a long-term lease to the site that would encompass the terms of the Development Agreement, the property owner is no longer needed to be a party to the Agreement. With this information, the applicant has requested that the Development Agreement be modified to remove the single party, and no other changes are proposed. It should be noted that the other two Development Agreements that were approved by the City Council for Electronic Messaging Center Billboards did not include their respective property owners as a party, and the change proposed tonight would therefore be consistent with the other two projects.
Attachments: Mod ied Leonard and Company Development Agreement Approved by:
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FREEWAY ORIENTED ELECTRONIC BILLBOARD
DEVELOPMENT AGREEMENT
THIS FREEWAY ORIENTED ELECTRONIC BILLBOARD DEVELOPMENT
AGREEMENT ("Agreement") is entered into as of this 271h day of June, 2022 by and between the CITY OF YUCAIPA, a California Municipal Corporation ("City"), and LEONARD & COMPANY INC., a California corporation ("Company" or "Developer"). Hereinafter; hereinafter City, and Company are sometimes referred to as "Party" or collectively as "Parties.")
RECITALS
This Agreement is made and entered into with regard to the following facts, each of which is acknowledged as true and correct by the Parties to this Agreement.
WHEREAS, the California Outdoor Advertising Act, Business and Professions Code, Section 5200, et. seq. encourages local entities and display owners to enter into agreements, including relocation or removal agreements, which allow local entities to continue development in a planned manner without expenditure of public funds while allowing the continued maintenance of private investment and a medium of public communications.
WHEREAS, the California Outdoor Advertising Act specifically empowers, and encourages, local agencies to enter into agreements, including relocation or removal agreements, on terms that are agreeable to the City and display owners and to adopt ordinances and resolutions providing for displays.
WHEREAS, Section 87.0725(c) of the Yucaipa Municipal Code proposed as part of Ordinance No. 393 will allow for the development of a Freeway Oriented Electronic Billboard.
WHEREAS, Company desires to construct one double face 14'x48' Freeway Oriented Electronic Billboard incorporating a changeable Message Display Center (or the "Project" as hereafter defined).
WHEREAS, Company has applied to the City for approval of this mutually binding Agreement, pursuant to the provisions of the Development Agreement Act (as hereafter defined), and the City Development Agreement Regulations (as hereafter defined), and other applicable laws.
WHEREAS, Company has a legal or equitable interest in the Property (as defined herein) as required by the Development Agreement Statutes and City Development Agreement Regulations. The legal or equitable interest in the Property is in the form of a long-term lease between Company and Russell L. Huston Revocable Trust ("Owner"). Owner has consented to Company's application for this Agreement, and Company, as the lessee of the Property, as such term is defined herein, has a legal and/or equitable interest in the Property and thus qualifies to enter into this Agreement in accordance with Development Agreement Law. The City, Owner, 1 2704982.3
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and Company acknowledge and agree that Company is the tenant or licensee of the Property and thus is qualified to enter into and be a Party to this Agreement under the Development Agreement Statutes. Additionally, prior to the execution of this Agreement, Company has allowed the City to view, but not retain, a redacted copy of the applicable lease which demonstrates that Company has a leasehold or license interest in the Property, which interest shall be maintained until removal of the Freeway Oriented Electronic Billboard from the Property.
WHEREAS, Company owns and operates a legal, non -conforming billboard advertising structure within the limits of the City (the "Existing Billboard").
WHEREAS, the City Council of the City of Yucaipa has found that this Agreement is consistent with the City's General Plan, the City's zoning ordinances, and constitutes a present exercise of the City's police power.
WHEREAS, in anticipation of the development of the Project, Company has made or will make application to the City (in its governmental capacity) for certain approvals, entitlements, findings and permits required for the development and construction of the Project, including, without limitation: a General Plan Amendment, a Zone Text Amendment, and a Conditional Use Permit.
WHEREAS, City and Company now wish to enter into this Agreement to memorialize the terms and conditions upon which Company will permanently remove the Existing Billboard, and have the right to construct and maintain a new Freeway Oriented Electronic Billboard at the same location to substitute for the removal of the Existing Billboard.
WHEREAS, the City Council has specifically considered the advantages and impacts of this Project upon the welfare of the City and believes that the Project will benefit the City.
WHEREAS, this Agreement eliminates uncertainty in planning and provides for the orderly development of the Project in a manner consistent with the City's Zoning Regulations (as hereafter defined), the Applicable Rules (as hereafter defined) and the General Plan (as hereafter defined).
WHEREAS, to provide such certainty, the City desires, by this Agreement, to provide Company with assurance that Company can proceed with development of the Project. Company would not enter into this Agreement, or agree to provide the public benefits and improvements described herein, without the City's agreement that the Project can be developed, during the term of this Agreement.
WHEREAS, the City has determined that, as a result of the development of the Project in accordance with this Agreement, substantial benefits will accrue to the public. 2 2704982.3
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WHEREAS, on May 18, 2022, pursuant to the requirements of the Development Agreement Act, the Planning Commission of the City of Yucaipa conducted a hearing on Company's application for this Agreement.
WHEREAS, on June 27, 2022, pursuant to the requirements of the Development Agreement Act, the City Council of the City of Yucaipa (the "City Council") conducted a hearing on Company's application for the Project and this Agreement.
WHEREAS, the City Council has found and determined that this Agreement is consistent with the City's General Plan and all other plans, policies, rules and regulations applicable to the Project.
WHEREAS, on June 27, 2022, the City Council adopted Ordinance No. 393 approving this Agreement, and such ordinance became effective on August 10, 2022.
AGREEMENT
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Act and the City's Development Agreement Regulations, as each applies to the City, and in consideration of the mutual promises and covenants herein contained and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
OPERATIVE PROVISIONS
1. Definitions. For all purposes of this Agreement, except as otherwise expressly provided herein, or unless the context of this Agreement otherwise requires, the following words and phrases shall be defined as set forth below:
A. "Applicable Rules" means the rules, regulations, ordinances, resolutions, codes, guidelines, and officially adopted procedures and official policies of the City governing the use and development of real property, including, but not limited to, the City's Zoning Regulations and building regulations, adopted as of the Effective Date, and specifically including Ordinance No. 393 which was processed in conjunction with the applications to entitle the Project .
B. "Business Day" means any day other than a Saturday, Sunday or California or Federal holiday on which banks in the City are customarily closed.
C. "City Development Agreement Regulations" means Article 13 of Chapter 3 of Division 3 of the Development Code (Sections 83.0301305 et seq.) (as the same may be amended and or re -codified from time to time).
D. "'Conditions of Approval" shall mean those conditions of approval imposed by the City in connection with the approval of the Project. 3 2704982.3
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E. "Development Agreement" or "Agreement" means this Agreement.
F. "Development Agreement Act" means Article 2.5 of Chapter 4 of Division 1 of Title 7 (Sections 65864 through 65869.5) of the California Government Code (as the same may be amended and/or re -codified from time to time).
G. "Discretionary Action(s)" or "Discretionary Approval(s)" means an action which requires the exercise of judgment, deliberation or discretion on the part of the City, including any board, agency, commission or department and any officer or employee thereof, in the process of approving or disapproving a particular activity, as distinguished from a Ministerial Permit or Ministerial Approval (as hereafter defined).
H. "Effective Date" shall mean the date this Agreement, fully executed, is recorded in the official records of the San Bernardino County Recorder. "Existing Billboard" means the sign as further described in Exhibit "E".
J. "Freeway Oriented Electronic Billboard Sign" means the Freeway Oriented Sign as described in Exhibit "B," which includes two message displays, and which may also be referred to as the "Project" as defined herein.
K. "General Plan" means the General Plan of the City, as it exists as of the Effective Date.
L. "Ministerial Permit(s)," or "Ministerial Approval(s)" means a permit or approval, including, but not limited to, Building Permits, grading permits, shoring and excavation permits, demolition permits, zone clearances, and certificates of occupancy, which requires the City, including any board, agency, commission or department or any officer or employee thereof, to determine whether there has been compliance with Applicable Rules, statutes, ordinances, Conditions of Approval, and/or regulations, as distinguished from an activity which is included in the definition of Discretionary Action or Discretionary Approval.
M. "Processing Fees" means all processing fees and charges required by the City that are applied uniformly to all construction or development related activity including, but not limited to, fees for land use applications, Building Permit applications, Building Permits, grading permits, shoring and excavation permits, hauling permits, encroachment permits, demolition permits, subdivision or parcel maps, lot line adjustments, street vacations, inspections, certificates of occupancy and plan check. Processing Fees shall not mean or include Public Benefit Contributions.
N. "Project" means the digital Freeway Oriented Electronic Billboard Sign as described in Exhibit "B," which includes two message displays. 2704982.3
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O. "Property" means the real property described in Exhibit "A" attached hereto.
P. "Public Benefit Contribution" means the payment from the Company to the City pursuant to Section 6.13 of this Agreement.
Q. "Reserved Powers" means the power and authority of the City to enact regulations and/or take Discretionary Action if the same is expressly found by the City to be necessary to protect residents of the City, those employed in the City, or visitors to the City, from a condition that is dangerous to public health or safety or if the same is required to comply with California or federal laws (whether enacted previous or subsequent to the Effective Date of this Agreement).
R. "Subsequent Land Use Regulations" means any change in or addition to the Applicable Rules adopted after the Effective Date of this Agreement, including, without limitation, any change in any applicable general or specific plan, zoning, subdivision, or building regulation, including, without limitation, any such change by means of an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever by the Mayor, City Council, Planning Commission or any other board, agency, commission or department of City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project.
S. "Zoning Regulations" shall mean the official zoning regulations of the City adopted as of the Effective Date of this Agreement.
2. Recitals of Premises. Purpose and Intent
A. State Enabling Statute. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Act which authorizes any city to enter into binding development agreements establishing certain development rights in real property with persons having legal or equitable interests in such property. Section 65864 of the Development Agreement Act expressly provides as follows:
"The Legislature finds and declares that:
"(a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and a commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. (b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, 2704982.3
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encourage private participation in comprehensive planning, and reduce the economic cost of development."
Notwithstanding the foregoing, to ensure that the City remains responsive and accountable to its residents while pursuing the benefits of development agreements contemplated by the Legislature, the City accepts restraints on its police powers contained in development agreements only to the extent and for the duration required to achieve the mutual objectives of the Parties.
B. The Project. The Company intends to develop the Property as described in the final plans submitted to the City, subject to the Applicable Rules and the Conditions of Approval. The Parties hereby agree that, subject to the exercise of the City's Reserved Powers, for the term of this Agreement, the permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, parking requirements, setbacks, and development standards, provisions for reservation or dedication of land for public purposes and location of public improvements, and the design, improvement, construction and other guidelines, standards and specifications applicable to the development and use of the Property shall be those set forth in the Applicable Rules and this Agreement, including the Conditions of Approval. Those City Reserved Powers will not be used to change any of the terms of this Agreement at a later date.
C. Existing Billboard Removal. Company currently owns the Existing Billboard containing a static display and located on the same commercial site, as further described in Exhibit "E", attached hereto and incorporated herein by reference. The Existing Billboard currently holds the status of a legal non -conforming use as the term is defined by the Development Code. In exchange for and in consideration of City's agreement to allow development of the Project as provided for in this Agreement, Company shall permanently remove the Existing Billboard currently located in the City and as further described in Exhibit "E" and further described in Section 6 below.
Property Subject to Agreement. This Agreement shall apply to all of the Property.
4. Term of Agreement. The initial term of this Agreement shall commence on the Agreement Effective Date, and shall continue for thirty (30) years.
Changes in Applicable Rules.
A. Non -Application of Changespplicable Rules. The adoption of any Subsequent Land Use Regulations after the Effective Date of this Agreement, or any change in, or addition to, the Applicable Rules (other than changes in Processing Fees as provided in this Agreement), including, without limitation, any changes in the General Plan or the Zoning Regulations (including any regulation relating to the timing, sequencing, or phasing of the Project or construction of all or any part of the Project), adopted after the Effective Date of this Agreement, including, without limitation, any such change by means of ordinance, initiative, 6 2704982.3
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resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by any board, agency, commission or department of the City, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict in any way with or be more restrictive than the Applicable Rules, shall not be applied to the Project during the term of this Agreement unless such changes represent an exercise of the City's Reserved Powers.
B. Changes in Uniform Codes. Notwithstanding any provision of this Agreement to the contrary, development of the Project shall be subject to changes occurring from time to time in the provisions of the City's building, mechanical, plumbing and electrical regulations which are based on the recommendations of a multi -state professional organization and become applicable throughout the City, including, but not limited to, the California Building Code, and other similar or related uniform codes.
C. Changes Mandated by Federal or California Laws or Regulations. Changes in, or additions to, the Applicable Rules adopted or made operative on or after the Effective Date shall apply to the Project if such changes or additions are specifically mandated to be applied to developments such as the Project by applicable California or federal laws or regulations. If the City or Company believes that such a change or addition required by California or federal law or regulation exists, then that Party shall provide the other Party hereto with a copy of such California or federal law or regulation and a statement of the nature of its conflict with the provisions of the Applicable Rules and/or of this Agreement. For the purposes of this Agreement, the City's determination as to the applicability of California or federal laws to the Project shall be final and conclusive.
D. Changes in Processing Fees Under Applicable Rules. The Project shall be subject to current and any future increases in Processing Fees imposed by the City, provided that such a change is applied on a Citywide basis and not just to billboards or to Freeway Oriented Electronic Billboards.
6. Company's Obligations and Entitlements.
A. Conditions of Approval. Company shall comply with the Conditions of Approval.
B. Reimbursement of Project Approval Costs. No later than the thirty (30) days following the Effective Date, Company shall reimburse the City for all of its costs to process the Project approvals, including legal and environmental processing costs related to the Conditions of Approval and preparation of this Agreement, if any.
C. Processing Fees. Company agrees to pay all Processing Fees, including City plan check fees, building inspection fees, and permit fees, at the rate and amount in effect at the time the fee is required to be paid.
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D. Public Benefit Contribution.
Company shall pay to the City a Public Benefit Contribution. The Public Benefit Contribution shall be the greater of fifty thousand dollars ($50,000.00) or twelve percent (12%) of the gross receipts generated by the Freeway Oriented Electronic Billboard paid in equal monthly payments each calendar year until removal of the Freeway Oriented Electronic Billboard from the Property after deducting any commissions of up to fifteen percent (15%) paid to a third -party advertising agency. If a third -party advertising agency commission exceeds fifteen percent (15%), the amount in excess of fifteen percent (15%) shall not be deducted for purposes of calculating the gross receipts generated or the Public Benefit Contribution. If there is a first and last partial calendar year during the existence of the Project, the amount payable shall be prorated on the basis of a 365 day year. Equal Monthly Payments of Public Benefit Contribution shall commence on the earlier of date on which the Project passes the final building inspection or -the date on which electronic messages are first allowed to appear on the Project.
Company shall not conceal advertising revenues derived from the digital display within the normal price range the Company charges for any appurtenances that is installed on the Project.
Gross receipts specifically excludes advertising agency fees paid to the advertiser's advertising agency and or brokerage fees paid to the sales broker other than Company.- E. Project Approvals.
This Agreement is conditioned upon Company, and/or its successor's or assigns, obtaining within a period of two (2) years from the date of this Agreement, on such terms and conditions as shall be approved by Company, from all governmental agencies and authorities (including but not limited to the City) all licenses, permits, approvals and consents to design, use, construct, operate, service and maintain the Project on the Property. The City Manager shall have the authority to extend in one or more extensions, the two-year deadline by up to six (6) months. If all necessary licenses, permits, approvals and consents to design, use, construct, operate, service and maintain the Project on the Property, are not obtained within the two (2) year period, as may be extended by the City Manager, this Agreement shall terminate.
Company shall, at its own expense and before commencement of demolition, construction or development of any structures or other work of improvement upon the Property, secure or cause to be secured any applicable Project Approvals, Conditional Use Permits and building permits from the City, and any and all permits and approvals which may be required by any other governmental agency or utility affected by such construction, development or work to be performed by Company pursuant to this Agreement. Not by way of limiting the foregoing, in developing and constructing the Project, Company shall comply with all: (1) applicable development standards in the City's Municipal Code, (2) applicable NPDES requirements pertaining to the Project, and (3) applicable building codes, except as may be permitted through approved variances and modifications. Company shall pay all normal and customary fees and charges applicable to such permits, and any fees and charges hereafter imposed by the City in 8 2704982.3
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connection with the Project which are standard and uniformly -applied to similar projects in the City. Nothing herein relieves the City from its contractual duty to issue all municipal building permits that are associated with the Project if Company is in compliance with the terms of this Agreement.
F. Dimmers. Company shall install an automatic dimming system to control the intensity of the light emitting from the Project during operations between sunset and sunrise to conform to Applicable Rules, Conditions of Approval, State guidelines, and Federal guidelines.
G. Maintenance of the Property and Project. Company, for itself and its successors and assigns, hereby covenants and agrees to be responsible for the following:
(1) Maintenance and repair of the Project (where authorized pursuant to the Agreement, and including but not limited to, the displays installed thereon, and all related on -site improvements and, if applicable, easements and rights -of -way, at its sole cost and expense), including, without limitation, landscaping, poles, lighting, signs and walls (as they relate to the Project) in good repair, free of graffiti, rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Property, unless those federal, state, and local bodies have an exception for a legal nonconforming use. Any graffiti found on the Project shall be removed within two (2) days of notification. Maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal related to the completion of the Project; (ii) the care and replacement of all shrubbery, plantings, and other landscaping or the painted backing in a healthy condition if damaged as a result of the Project; (iii) the ongoing maintenance by Company of any access road to the Project if damaged by the Company and to minimize dust caused by the Project; and (iii) the repair, replacement and repainting of the Project's structures and displays as necessary to maintain such outdoor advertising structure in good condition and repair.
(2) Maintenance of the Project and surrounding portion of the Property in such a manner as to avoid the reasonable determination of a duly authorized official of the City that a public nuisance has been created by the absence of adequate maintenance of the Project such as to be detrimental to the public health, safety or general welfare, or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property. (3) Company shall reasonably coordinate with any neighboring property owners who share utilities or access roads to their separate respective outdoor advertising structure. The City may designate alternative access for planning purposes so long as such alternative access allows Property to access its outdoor advertising structure and related utilities.
H. Rights to Project. Company shall be entitled to design, use, construct, operate, service, repair, and maintain from time to time the Project with a two -panel changeable message display center on the Property identified in Exhibit "A" attached hereto and incorporated herein 9 2704982.3
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by reference. The Project, including the message display center, shall be designed and constructed in accordance with design and plans per scale drawings, approved by the City and identified in Exhibit "B" attached hereto and incorporated herein by reference. Said design and plans shall also include maximum height and size standards for the Project.
I. Advertising Limitation. As a material component of the consideration underlying the Agreement, Company voluntarily covenants and agrees for itself, its successors and assigns that during the life of the Project, meaning for as long as the Freeway Oriented Electronic Sign is in place, no advertising displayed on the Project shall contain any advertising for tobacco products of any type, cannabis businesses or products of any type, adult entertainment oriented businesses, sexually oriented messages, or use sexually oriented images or language. Company further agrees that City has the right to object to any other advertising that, in City's sole and absolute discretion, may be considered detrimental to the image of the City. In such cases only, City shall inform Company in writing of the detrimental advertising and request that it be removed immediately.
J. Discount Advertising. Company shall offer a ten percent (10%) discount off its applicable rates for display of advertising on the Project to any business that is a member in good standing of the Yucaipa Chamber of Commerce. The Company may decide not to post advertising from Businesses that are in immediate competition with the existing use on the specific property (ex: other trailer companies could not advertise on this specific property because the other tenant on the property is a trailer company.) K. Relocation. As to the Project approved under this Agreement and after the Project is, installed and/or becomes nonconforming, such Project may be relocated by mutual agreement between the Company and the City on whatever terms are agreeable to both parties under the authority of California Business and Professions Code section 5412. "Relocation" as used in this section, includes removal of an advertising structure and construction of a new advertising structure to substitute for the advertising structure removed. The purpose of this section is to allow the City to continue to develop in a planned manner without expenditure of public funds while allowing the continued maintenance of private investment and a medium of public communication established in outdoor advertising.
L. Timing of Project. Company shall commence the Project within the time set forth in the Tentative Schedule of Performance, attached hereto as Exhibit "C". "Commencement" of the Project is defined herein as commencement of construction or improvements under the City building permit for the construction of the Project on the Property, which shall occur as soon as possible following Company's receipt of all necessary project approvals and final permits. In the event that Company fails to meet the schedule for Commencement of the Project, then after compliance with Section 10, the City may terminate this Agreement by delivering written notice to the Company, and, in the event of such termination, neither Party shall have any further obligation hereunder. However, if circumstances within the scope of Section 13.Q delay the 10 2704982.3
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commencement or completion of the Project, then such delays shall not constitute grounds for any termination rights found within this Agreement. In such case, the timeline to commence or complete the relevant task shall be extended in the manner set forth at Section 13.Q.
Notwithstanding the above, Company shall, at all times, comply with all other obligations set forth in this Agreement regarding the construction or improvement of the Project. Further, the obligations of this paragraph shall be subject to tolling pursuant to Section 9. B. of this Agreement in the event of third party litigation or referendum.
M. Conditions of Approval. Company shall comply with the additional conditions of approvals, attached hereto as Exhibit "D".
N. Permanent Removal of Existing Billboard
(1) Permanent Removal of Existing Billboard. In consideration of City's agreement to allow development of the Project as provided for in this Agreement, Company hereby agrees to permanently remove the Existing Billboard described in Exhibit "E." Removal of the Existing Billboard identified in Exhibit "E" shall be in accordance with all applicable federal, state and local regulations. Company shall secure all required permits necessary to remove the Existing Billboard, including but not limited to, City demolition permits. (2) Timing of Removal. Company shall remove the Existing Billboard at the time they begin construction on the new Freeway Oriented Digital Billboard. The removal of the Existing Billboard shall commence upon the later of. (1) the expiration of all administrative appeal periods provided by the City Development Code and applicable to City approval of the Project; or (2) if an appeal is filed, the date upon which either the Planning Commission and/or City Council approval becomes final; and (3) if a judicial action is filed challenging the City's action in regards to the Project, the date upon which any superior court action or district court action becomes final; (4) prior to the beginning of construction of the new Freeway Oriented Digital Billboard. Notwithstanding the foregoing, Company shall not be entitled to commence construction and installation of the Project prior to the removal of the Existing Billboard.
7. City Obligations and Entitlements.
A. City Logo on Project. Company agrees to place the City Logo on the Project substantially as shown in the scale drawings in Exhibit "B", and in accordance with specifications provided by the City. Such logo shall measure per scale drawings identified in Exhibit "B" and shall be maintained at all times by Company as part of its customary maintenance of the Project.
B. CitCooperation. City agrees, to the extent legally capable, at no expense or liability to City, to cooperate with Company in obtaining all necessary licenses, permits, approvals and consents to enable Company to design, construct, operate, use and maintain the Freeway Oriented Electronic Billboard. In this regard, if requested by Company, and to the 11 27049823
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extent City is legally capable, City agrees to join in and cooperate with in -kind assistance with Company in processing future applications to Caltrans and/or other governmental agencies to aid and facilitate obtaining said approvals and the necessary electrical installation, provided that the City shall have no obligation to expend public funds in furtherance of Company's permits or approvals.
C. Promotion of City Events and Public Service Announcements. As further consideration for City's Agreement to allow Company to develop the Freeway Oriented Electronic Billboard, City shall be entitled to place public service announcements on the Message Display Center, provided, however, that such public service announcements shall be limited to civic public service messages, including those sponsored by private organizations as approved by the City (hereinafter "Public Service Messages"). The term Public Service Message shall expressly exclude any message advertising any business, company or event where such message would have a direct and tangible economic benefit to a private, for -profit company, except that the City may choose to promote City sponsored or coordinated events and performances at the Yucaipa Performing Arts Center (YPAC) . City shall be entitled to post up to one eight (8) second Public Service Message per 64 second loop minute on the Message Display Center on a continuous basis. The City has the sole authority to determine the number of concurrent Public Service Messages posted, the frequency that each Public Service Message will be posted during any given timeframe, and the length of time (e.g. the number of days) that the Public Service Message will remain in rotation. Notwithstanding the foregoing, should City not utilize its allotment of advertising space, Company shall be entitled to lease that time for other advertising purposes consistent with section 9 below. For all Public Service Messages, City shall be responsible for providing Company with the advertising copy and artwork.
Company shall not be responsible for producing or substantially modifying any advertising copy for a Public Service Message, and shall display the Public Service Message within 3 days after receipt and approval of the Public Service Message copy. Company shall review and approve Public Service Message copy in a timely manner, and not more than one business day after submittal by the City. Company's review for approval shall be related to the ability to display the Public Service Message copy, and Company shall have no authority to reject a Public Service Message based on its content. Company's obligation to provide and display Public Service Messages shall survive termination of this Agreement and shall remain in full force and effect until removal of the Freeway Oriented Electronic Billboard from the Property.
In addition, (i) Company shall provide use of the advertising space on the Message Display Center, as reasonably necessary for emergency broadcasts, Amber Alerts and Wanted Criminal Posting from City's Police Department and (ii) Company and City will work cooperatively and in good faith for City to place additional any Public Service Message, both on a space availability bases on the advertising space of the Project.
Company shall prepare and submit an annual report no later than February 1 st of each year reporting on the Company's posting of Public Service Messages and providing a list of the 12 2704982.3
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messages posted during the prior calendar year, and the period in which each message was featured on the Project.
D. Program to Promote Local Businesses. As further consideration for City's Agreement to allow Company to develop the Freeway Oriented Electronic Billboard, and in addition to the provisions of the foregoing paragraph C, Company shall implement a Local Business Promotion Program that provides one free eight (8) second advertisement per 64 second loop minute to highlight one business located and operating in the City of Yucaipa.
Company shall post the advertisement for each business for a period of no less than one week, and no more than three weeks. City shall coordinate local business participation in the Local Business Promotion Program, and will be responsible for providing to Company the information regarding each participating business, including the message content and timeframe for display.
No businesses listed in paragraph 6. I. above shall be entitled to participate in the program.
Company's obligation to provide and display Public Service Messages shall survive termination of this Agreement and shall remain in full force and effect until removal of the Freeway Oriented Electronic Billboard from the Property.
Company shall prepare and submit an annual report no later than February 1 st of each year reporting on the Company's posting of Public Service Messages and providing a list of the messages posted during the prior calendar year, and the period in which each message was featured on the Project.
E. Annual Review. The City Council shall have the right to review this Agreement annually at the Company's sole cost, on or before the anniversary of the commencement of the Effective Date, to ascertain the good faith compliance by Company with the terms of this Agreement ("Annual Review"). However, no failure on the part of the City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement. Company shall cooperate with the City in the conduct of any such Annual Review.
F. Special Review. The City Council may, in its sole and absolute discretion, order a special review of compliance with this Agreement at any time at the Company's sole cost ("Special Review"). Company shall cooperate with the City in the conduct of such any Special Review.
G. City Rights of Access. The City and its officers, employees, agents and contractors shall have the right, at their sole risk and expense, to enter the Property without interfering with any railroad or other right-of-way, and at all reasonable times with as little interference as possible, for the purpose of conducting any Annual Review or Special Review, inspection, construction, reconstruction, relocation, maintenance, repair or service of any public improvements or public facilities located on the Property, or to perform any rights of the City as provided in this Agreement. Any damage or injury to the Property or to the improvements 13 2704982.3
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constructed thereon resulting from such entry shall be promptly repaired at the sole expense of the City. Notwithstanding anything to the contrary herein, in no event will the City's representatives ever climb up the pole of the Project during any inspection.
H. Other Rights of the City. In the event of any violation or threatened violation of any of the provisions of this Agreement, then in addition to, but not in lieu of, any of the rights or remedies the City may have to enforce the provisions of the Agreement, the City shall have the right, after complying with Section 10 of the Agreement, to withhold or revoke until compliance by the Company, 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 Project or any part thereof or interests therein as to the violating person or one threatening violation.
I. No City Liability. The granting of a right of enforcement to the City does not create a mandatory duty on the part of the City to enforce any provision of the Agreement. The failure of the City to enforce the Agreement shall not give rise to a cause of action on the part of any person. No officer or employee of the City shall be personally liable to Company, its successors, transferees or assigns, for any default or breach by the City under the Agreement.
Records, Maintenance of Records, and Inspection of Records.
A. During the life of the Project and for five (5) years after cessation of use of the Project, Company shall keep and maintain accounting records for all gross receipts generated in connection with advertising by the Project. Company shall keep and maintain said records for five (5) years. After providing Company with prior reasonable notice of no fewer than five (5) Business Days, City shall have the right to inspect and photocopy during normal business hours Company accounting records supporting the gross receipts generated by the Project. Following such inspection, if City disputes the amount of costs set forth, City and Company shall mutually select a certified public accountant to audit the Company accounting records and render a certification as to the final gross receipts in accordance with the terms of this Agreement. If such certification proves that the gross receipts were understated by more than five percent (5%), then the cost of the accountant and the certification shall be paid by Company. If such certification reveals that an adjustment is necessary, the appropriate payments in connection therewith shall be promptly made following the date of such certification.
B. Company shall prepare and submit an annual report no later than February 1st of each year reporting on the Local Business Promotion Program, as set forth in paragraph 7. D. above, and providing a list of the business participants in the Program during the prior calendar year, and the period in which each business was featured on the Project.
9. Indemnification, Tolling.
14 2704982.3
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A. Company agrees to and shall indemnify, hold harmless, and defend, the City and its respective officers, officials, members, agents, employees, and representatives, from liability or claims for death or personal injury and claims for property damage which may arise from the acts, errors, and/or omissions of Company or its contractors, subcontractors, agents, employees or other persons acting on its behalf in relation to the Project and/or in any manner arising from this Agreement, the Project, or any operations of the Project. The foregoing indemnity applies to all deaths, injuries, and damages, and claims therefor, suffered or alleged to have been suffered by reason of the acts, errors, and/or omissions referred to in this Section, regardless of whether or not the City prepared, supplied, or approved plans or specifications, or both. In the event of litigation, the City agrees, at no cost to the City, to cooperate with Company. This indemnification, hold harmless and defense requirement shall survive the termination or expiration of this Agreement. The City reserves the right, in cases subject to this indemnity, to reasonably approve the attorney selected by Company to defend Company and the City in any such action.
B. In the event of any court action or proceeding challenging the validity of this Agreement or any of the Conditions of Approvals for the Project, Company shall defend, at its own expense, the action or proceeding. In addition, Company shall reimburse the City for the City's costs in defending any court action or proceeding challenging the validity of this Agreement or any of the Conditions of Approvals and Company shall also pay any award of costs, expenses and fees that the court having jurisdiction over such challenge makes in favor of any challenger and against the City. —Company shall cooperate with the City in any such defense as the City may reasonably request and may not resolve such challenge without the agreement of the City. In the event Company fails or refuses to reimburse the City for its cost to defend any challenge to this Agreement or the Conditions of Approvals, the City shall have the right to terminate this Agreement, subject to the notice and cure requirements of Section 10. In all events, the City shall have the right to resolve any challenge in any manner, in its sole discretion, provided, however, Company's consent shall be required if the resolution of the challenge shall require a payment by Company or limit Company's rights under this Agreement. Additionally, in the event of any litigation or referendum initiated by third parties to attack, set aside, modify, void or annul this Agreement or any of the Conditions of Approvals (a "Challenge"), the term of this Agreement shall be tolled for the period during which such Challenge is proceeding until fully and finally resolved.
In order to ensure compliance with this Section, within twenty (20) days after notification by the City of the filing of any claim, action or proceeding to attack, set aside, void or annul this Agreement or any of the Conditionals of Approvals, Company shall deposit with the City cash or other security in the amount of fifty thousand dollars ($50,000), satisfactory in form to the City Attorney, guaranteeing indemnification or reimbursement to the City of all costs related to any action triggering the obligations of this Section. If the City is required to draw on that cash or security to indemnify or reimburse itself for such costs, Company shall restore the deposit to its 15 2704982.3
-42-
original amount within fifteen (15) days after notice from the City. Additionally, if at any time the City Attorney determines that an additional deposit or additional security up to an additional fifty thousand dollars ($50,000.00) is necessary to secure the obligations of this section, Company shall provide such additional security within fifteen (15) days of notice from the City Attorney. The City shall promptly notify Company of any claim, action or proceeding within the scope of this Section and the City shall cooperate fully in the defense of any such claim or action, but shall have the right to resolve any challenge, in any manner, in its sole discretion, provided, however, Company's consent shall be required if the resolution of the challenge shall require a payment by Company or limit Company's rights under this Agreement.
10. Default Remedies. Failure by City or Company to perform any term or provision of this Agreement for a period of thirty (30) days from the receipt of written notice thereof from the other shall constitute a default under this Agreement, subject to extensions of time by mutual consent in writing. Said notice shall specify in detail the nature of the alleged default and the manner in which said default may be satisfactorily cured. If the nature of the alleged default is such that it cannot reasonably be cured within such thirty (30) day period, the commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure within such period.
Subject to the foregoing, after notice and expiration of the thirty (30) day period without cure, the notifying party, at its option, shall have all rights and remedies provided by law and/or may give notice of intent to terminate this Agreement pursuant to Government Code Section 65868 and the City Development Agreement Regulations. Following such notice of intent to terminate, the matter shall be scheduled for consideration and review by the City Council within thirty (30) calendar days in the manner set forth in Government Code Sections 65867 and 65868 and the City Development Agreement Regulations. Following consideration of the evidence presented in said review before the City Council and a determination that a default exists, the Party alleging the default by the other Party may give written notice of termination of this Agreement to the other Party. Upon any such termination, the respective rights, duties and obligations of the Parties hereto shall without further action cease as of the date of such termination (except as to duties and obligations that arose prior to the date of such termination).
In no event shall monetary damages of any kind be available against the City for any alleged default or breach by the City, and Company's sole remedy shall be specific performance.
11. Termination and Expiration. Unless otherwise stated herein, upon the expiration of the term or termination of this Agreement, the vested rights provided by this Agreement shall terminate and be of no further force or effect. However, such expiration or termination shall not affect Company's obligations under Section 6 and 7, nor the obligation to pay any claim of any Party hereto arising out of the provisions of this Agreement prior to the effective date of such termination provided that a Building Permit has been issued for any portion of the Project. After a Building Permit has been issued for any portion of the Project, the obligations under Sections 6 and 9, and the obligation to pay any claim arising before the 16 2704982.3
-43 -
effective date of expiration or termination shall survive, and continue after termination or expiration for the life of the Project.
12. Institution of Legal Actions. In the event that the Company fails to cure or correct any Default, the City may (i) terminate this Agreement (ii) institute an action at law or equity against the Company to seek specific performance of the terms of this Agreement, or to cure, correct, or remedy any Default, to recover damages for any Default, to recover the specified amounts due for failure to comply with the terms of this Agreement, or to obtain any other remedy consistent with the purpose of this Agreement.
13. General Provisions.
A. Interest in Property. The City and Company acknowledge and agree that Company is the tenant or licensee of the Property and thus is qualified to enter into and be a Party to this Agreement under the Development Agreement Law. The Owner and Company acknowledge and agree that Company has a legal or equitable interest in the Property and thus is qualified to enter into and be a party to this Agreement under the Development Agreement Law.
Additionally, prior to the execution of this Agreement, Company has allowed the City to view, but not retain, a redacted copy of the applicable lease which demonstrates that Company has a leasehold or license interest in the Property, which interest shall be maintained until removal of the Freeway Oriented Electronic Billboard from the Property.
B. Transfer of Interests in Property or Agreement. In the event of a proposed transfer of interest in the Property or in this Agreement by Company to a transferee, Company agrees to provide the City at least thirty (30) days written notice of such proposed transfer and shall provide satisfactory evidence that the transferee will assume in writing through an assignment and assumption agreement all remaining obligations of Company under this Agreement. The assignment and assumption agreement shall be in a form reasonably satisfactory to the City Attorney. However, Company has no obligation to obtain the consent of the City to assign this Agreement to a transferee. Notwithstanding the foregoing: (i) the terms, covenants and conditions of this Agreement shall be binding upon any transferee whether or not such an assignment and assumption agreement is signed by the assignee upon acquiring the Property or Project; and (ii) no such transfer shall relieve Company (transferor) of any obligations under this Agreement unless: (A) at least thirty (30) days before any transfer, Company has submitted to City the name of the proposed transferee and financial information regarding the transferee reasonably satisfactory to the City's City Manager, and the City determines, prior to transfer, that the proposed transferee is able to satisfactorily fulfill the obligations of this Agreement, and (B) the transferee accepts, in writing, the obligations of Company under this Agreement. Such writing shall be in form and content reasonably satisfactory to the City Attorney.
C. Waiver. The failure of either Party hereto to insist in any one or more instances upon the strict performance of any of the covenants, agreements, terms, provisions or conditions 17 2704982.3
in
of this Agreement, or to exercise any election or option herein contained, shall not be construed as a waiver or relinquishment for the future of such covenant, agreement, term, provision, condition, election or option, but the same shall continue and remain in full force and effect. No waiver by any Party hereto of any covenant, agreement, term, provision or condition of this Agreement shall be deemed to have been made unless expressed in writing and signed by an appropriate official or officer on behalf of such Party.
D. Binding Effect. All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, reorganization, consolidation or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons acquiring the Property or Project, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective heirs, successors and assigns.
E. Relationship of Parties. The Parties acknowledge and agree that Company is not acting as an agent, joint venturer or partner of the City, but each is, in fact, an independent contractual party and not in any way under the control or direction of the City except as is expressly provided to the contrary in this Agreement.
F. Recordation. As provided in Government Code Section 65868.5, the City Clerk shall record a copy of this Agreement with the Registrar -Recorder of the County of San Bernardino within ten (10) days following its execution by both Parties. Company shall reimburse the City for all costs of such recording, if any.
G. No Third Party Beneficiaries. The only signatories to this Agreement are the City and Company. There are no third party beneficiaries and this Agreement is not intended and shall not be construed to benefit or be enforceable by any other person whatsoever other than the successors in interest of the signatories.
H. Advice; Neutral Interpretation. Each Party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. This Agreement has been drafted through a joint effort of the Parties and their counsel and therefore shall not be construed against either of the Parties in its capacity as draftsperson, but in accordance with its fair meaning.
I. Consideration. The City and Company acknowledge and agree that there is good, sufficient and valuable consideration flowing to the City and to Company pursuant to this Agreement as more particularly set forth in the Recitals and Section 2 of this Agreement. The Parties further acknowledge and agree that the exchanged consideration hereunder is fair, just and reasonable.
18 2704982.3
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Notices. All notices, disclosures, demands, acknowledgments, statements, requests, responses and other communications (each, a "Communication") required or permitted to be given hereunder shall be in writing, signed by a signatory hereto (or an officer, agent or attorney of such party) giving such Communication, and shall be deemed effective (i) upon receipt if hand delivered or sent by overnight courier service; or (ii) upon delivery or the date of refusal if sent by the United States mail, postage prepaid, certified mail, return receipt requested, in either case addressed as follows:
If to Company:
Leonard & Company, Inc.
5199 E. Pacific Coast Highway
Long Beach, CA 90804
Attn: Vice President Real Estate
& Operations
With a Copy to:
If to City:
City of Yucaipa
Attn: City Manager
34292 Yucaipa Blvd.
Yucaipa, CA 92399
With a Copy to:
City of Yucaipa
Attn: City Attorney
350 South Grand Avenue,
37th Floor
Los Angeles, CA 90071
K. Authority to Enter Agreement. All Parties have the requisite power and authority to execute, deliver and perform the Agreement. All Parties warrant that the individuals who have signed the Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
L. Amendment/Modification. This Agreement may be amended from time to time, in whole or in part, by mutual written consent of the Parties or their successors in interest, as follows: City and Company, by mutual agreement, may terminate or amend the terms of this Agreement, and the amendment or termination shall be accomplished in the manner provided under the Development Agreement Act and the City Development Agreement Regulations for the enactment of Development Agreement amendments.
M. Future Litigation Expenses.
(i) Payment of Prevailing Party. If the City or Company brings an action or proceeding (including, without limitation, any motion, order to show cause, cross -complaint, counterclaim, third -party claim or arbitration proceeding) by reason of default, breach, tortious act, or act or omission, arising out of this Agreement, the prevailing party in such action or 19 2704982.3
proceeding shall be entitled to its costs and expenses of suit including, but not limited to, reasonable attorneys' fees and expert witness fees.
(ii) Scope of Fees. Attorneys' fees under this Section shall include attorneys' fees on any appeal and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. In addition to the foregoing award of attorneys' fees to the prevailing party, the prevailing party in any lawsuit shall be entitled to its attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement.
N. Headings. The section headings used in this Agreement are for convenient reference only and shall not be used in construing this Agreement. The words "include," "including" or other words of like import are intended as words of illustration and not limitation and shall be construed to mean "including, without limitation." O. Alterations. No alteration, amendment or modification of this Agreement shall be valid unless evidenced by a written instrument executed by the Parties hereto with the same formality as this Agreement, and made in the manner required by the Development Agreement Act.
P. Severability. If any article, section, subsection, term or provision of this Agreement, or the application thereof to any party or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of the article, section, subsection, term or provision of this Agreement, or the application of the same to parties or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining article, section, subsection, term or provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Q. Force Majeure. Performance by any Party of its obligations hereunder (other than for payment of money) shall be excused during any period of "Permitted Delay," which Permitted Delay shall mean and include delay caused by an event beyond the reasonable control of the Party claiming the delay (and despite the good faith efforts of such Party) that prevents the Party from fulfilling the obligations for which it seeks excuse including without limitation all of the following to the extent that they prevent the Party claiming delay from fulfilling the obligation from which it seeks to be excused: acts of God; civil commotion; riots; strikes; picketing or other labor disputes; shortages of materials or supplies; damage to work in progress by reason of fire, floods, earthquake or other casualties; failure, delay or inability of the other Party to act; terrorism, and litigation brought by a third party attacking the validity of this Agreement or the Conditions of Approval. If any such events shall occur before the removal of the Freeway Oriented Electronic Billboard from the Property, then the time for performance shall be extended for the duration of each such event, provided that the Term of this Agreement shall 20 2704982.3
-47-
not be extended under any circumstances for more than five (5) years beyond the date it would have otherwise expired.
R. Applicable Law. This Agreement shall be governed in all respects by the laws of the State of California.
S. Time of the Essence. Time is of the essence of each and every provision of this Agreement or performance hereunder.
T. Entire Agreement. This Agreement embodies the entire Agreement between the Parties and supersedes any prior or contemporaneous understandings or written or oral agreements between the Parties hereto related to the Agreement. T. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original but all of which shall constitute one and the same instrument.
U. Compliance With Law. Notwithstanding any provision of this Agreement, the Parties agree to comply with all federal, state and local laws and to act in good faith and reasonably in carrying out the terms of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the 27th day of June, 2022.
"CITY"
CITY OF YUCAIPA
ATTEST: By:
By: (SEAL)
City Clerk
APPROVED AS TO FORM:
City Attorney
Mayor
"COMPANY"
LEONARD & COMPANY, INC.
By:
Its:
21 2704982.3
in
zz
2704982.3
2704982.3
EXHIBIT "A"
PROPERTY
(Legal Description)
23 -50-
TRACT 2119 LOT 16 HILLTOP ACRES TRACT NO 2119 PTN LOTS 16 AND 18 BEG AT A PT IN NLY LI LOT 16 WHICH IS 27 FT WLY FROM NE COR SD LOT 16 TH S 15 DEG 25 MIN 30 SECONDS W 268.91 FT TO S LI N 20 FT LOT 18 TH WLY ALG SD S LI 291 FT TO E LI GOLD HILL GRADE TH N 09 DEG 29 MIN 15 SECONDS E ALG E LI GOLD HILL GRADE TO NW COR SD LOT 18 TH S 74 DEG 34 MIN 30 SECONDS E 158.23 FT TO A PT IN A LI WHICH IS PARALLEL WITH AND ELY AT R/A 13 FT FROM W LI SD LOT 16 TH N 15 DEG 25 MIN 30 SECONDS E 247.52 FT TO N LI LOT 16 TH ELY ALG N LI SD LOT 16 TO POB EX PTN IN STATE HGWY EX MNL RTS
-51-
2704982.3
EXHIBIT `B"
DESIGN AND PLANS
PER SCALE DRAWINGS
24 -52-
N _
Vicinity Map: ® Site Plan: N _ - _
Not to Scale 1" = 20' _ - -
�___ INTERST
xoGnu
Record Owner. Huston Russell LRev TR/07 --�- `RGWA'smC'N �--_-- ATE /O _-
visiting Address: 312 Brookside Ave, -
Redlands, CA92373-4608
Phone: 909-793-2748
SITE PARKING (TRUCK e /
'�—•o�ss.a. —
' Legal Description: Trod 2119 is 16 Hilltop
Apes Tract No 2119 Pm Lots 16 And 18 o<UaR °rwEwnr _ _TER w y _ Beg At A Pt In Nly Li Lot 16 Which Is 27 Ft ssKro / w�0umon a 10 S Wiy From Ne Car Sd Lot 16 Th S 15 Deg r 1 1a KRovosso siG" °'"t'sw' 25 Min 30 Seconds W 268.91 R To S LI N 20 Ft Lot 18 Th Wly Alg Sd S LI 291 Pt To--
E Li Gold
Hal Gmtle Th N 09 Deg 29 Min exa1. sreEk RAM 7\a J! ' ro cvus sT. r / wuvslk - 15 Seconds
E Alg E D Gold Hill Grade To °410°r ���!!!/// n y / r / _ - _II /
Se Cod Sd Lot 18 Th S74Deg 34 Min 30 I / 7J-�--ks�rs / ux r Which Seconds And Pt IRAD
- Which k Parallel With And Ely Al R/A 13
FIFromW Li Sd Lot 16 Th N 15 Dag 25 sx ra,MeuLunlr t /
Min 30 Seconds E 247.52 Ft To N D Lot swsr.suas / EouvsR as souls r / 16Th Ey AIg NLi Sd Lotl6To Pob Ex °F J / ew ov eacn once Ela evation Looking East: Note: Elevation is conceptual only. Pin In State Hgwy Ex Mnl Ris l�sresy' / J/ 1" = 10, For proposed sign design see / usavo kse*s,uke/ ///''' w'
sheet 2 of 2. ss erusl r / / nO1
Leased area includes entire APN. / r
Site area: 0.054 Acres / � /r /
/� / /r
All existing utilities to remalNno change in 0 J/
utilities proposed. / r
No easements exist in area of proposed sign.
No hilt' terrain or drainage channels exist.
No grading is proposed. / r r exer. seesamc
0 srom woad
�w reA Moe n EE
No change in parking is proposed. /% d
r
No change in lot coverage is proposed.
No protected/native trees exist and no has
removal is proposed.
w ork No change to commercial hours proposed. r J -_-
1noR
ea.
No fencing, paving or additional upgrades r r / t
aPound billboard or property. / /
eft,
Electrical meter in place, Company will --\ / r \a � r Jl upgrade service to new Electronic sign. ;
Zoning is "CS' on property and adjacent
I properti
es..
Southern California Edison
198 Kansas St.
n ewsriac sr as eRKOE.,wkwx Redlands, CA 92373
orncs lasvaNat 800-6554565
Lot coverage:
Building: Pain _\- r
Paving: 57.7%
Lentlsceping/open space: 37.6%
Column location will not interfere with
ingress/egress or parking.
PROJECT ELECTRICAL COPYRIGHT ENGINEER CONTRACTOR APPLICANT DATE 5.25.21 Drawn by: PH 31107 Outer Highway 10 S Revisions: 5.26.21 Approved by: AG Yucaipa, CA 92373 Design concept &drawing 02021 by Leonard and Company, Inc. 6.3.21 Scale: As Noted APN: 0300-101-1"000 T.B.D. AGE Advertising T.B.D. 5199 E. Pacific Coast Hwy. #305 6.30.21 Sheet No.
Proposed digital billboard (2 faces at 14' x 48) Long Beach, CA 90804 i /� with a center mount, 30' V structure and a height Unauthorized use or reproduction prohibited. 1 OF G 9 (562) 900-7311 8.2.21
of approx. 55' above grade.
SITE PLAN
-53-
Proposed Sign Elevation
V 5'
—FREEWAY
Aso eoaoea
lunxG
;ra µ o f YUCAI PA
a �MLMr� G wND�
aGGrNrNGa F�.,c � s�
Pl,w, o..IF1aM.raalaN
a
w�rE�Fna�aoEN.�aw�— �NGn�,e,N,1a.
�+.ex11re oavuµc
�" �1�Nr u:Ps
ILL W IuIEO CIrY l0 W. C o®
M+PR00. oNMEr�ER
xUM Oren Ea Fgge�.
'— 60 cierr FSN
��� w�M
owN,EG a�,wN
eF[GUMIGAT er{N
OMUMn Wenea MI
OMW ♦i SIGN
�I
I ,
PROJECT
ELECTRICAL
COPYRIGHT
ENGINEER CONTRACTOR
APPLICANT
DATE
5.25.21 Drawn by:
PH
Revisions:
5.26.21 Approved by:
AG
31107 Outer Highway 10 S
6.3.21 Scale:
As Noted
Yucaipa, CA 92373
Design concept & tlrawing 02021 by
an Leonard and Company, Inc.
P y'
AM 0300-101-19-OODD
T.B.D.
AGE Advertising
T.B.D.
5199 E. Pacific Coast Hwy. #305
6.30.21 Shaer No.
Proposed digital billboard (2 faces a114' [ 48')
with a center-m0unf, 30'v structure and a height
Unauthorized use or reproduction prohibited .
Long Beach, CA 90804
(562) 900-7311
-^/
of appm. 55' above grade.
OF L
SIGN DESIGN
-54-
EXHIBIT "C"
TENTATIVE SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE
TIME FOR PERFORMANCE
1. City's Planning Commission holds public
May 18, 2022
hearing and recommends approval of
Agreement and Conditions of Approval
2. City's City Council holds hearings to
June 27, 2022 (1" Reading); July 11, 2022
approve Agreement and first and second
(2°d Reading), provided Company has
reading of Ordinance
fully executed the Agreement
3. Effective Date of this Agreement.
30 days following City Council's second
reading of Ordinance, or August 10, 2022
4. Company prepares and submits to City
Within 120 days of the Council's second
working drawings specifications and
reading of the Ordinance approving this
engineering, the City commences
Agreement
approval process.
5. City to approve all construction and
Within 30 days of City's receipt of
engineering drawings and specifications
Company's construction drawings and
with a plan check approval, and issue a
specifications addressing all of City's
building permit and an electrical permit.
comments.
City agrees to any necessary building or
electrical permits need for Company to
acquire approvals. Company
agrees not to commence construction
until it receives the applicable
approvals.
6. Company to provide copy of
Prior to commencing any inspections and
a roval to City
work on the Project.
7. Company to submit proof of insurance to
Prior to commencing any inspections and
City.
work on the Project
8. Company pays City Public Benefit
Contribution
It is understood that this Tentative Schedule of Performance is subject to all of the terms and conditions of the text of the Agreement. The summary of the items of performance in this Schedule of Performance is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Tentative Schedule of Performance and the text of the Agreement, the text of the Agreement shall govern. 25 2704982.3
-55-
The time periods set forth in this Tentative Schedule of Performance may be altered or amended only by written agreement signed by both Company and the City. Notwithstanding any extension of the Term in the manner described in, and subject to the provisions of Section 6.E. of the Agreement, the City Manager shall have the authority to approve extensions of time set forth in this Tentative Schedule of Performance without action of the City Council. 26 2704982.3
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EXHIBIT "D"
CONDITIONS OF APPROVAL
The following additional conditions shall apply to the installation of the Project and, where stated, which outdoor advertising structure and landscaping or painted backing adjacent to the outdoor advertising structure, respectively, shall conform to all applicable provisions of the project approvals and the following conditions, in a manner subject to the approval of the Director of Development Services or his or her designee:
(1) Company shall install the Project in accordance with the terms of this Agreement. The Project consists of Monopole structure 55 feet tall above street or freeway grade, whichever is higher, "bulletin" size freeway -oriented outdoor advertising structure with a total of two (2) digital displays (each display measuring 14 feet by 48 feet within the outdoor advertising structure frame). Before the issuance of final inspection of the final permits, Company shall underground all utilities necessary for the digital display on the property and the Property shall be maintained in accordance with this Agreement.
(2) A building permit will be required, and structural calculations shall be prepared by a licensed civil engineer and approved by the City Building Official. (3) The Project shall be located in the portion of the Property shown on Exhibit "B", and shall be of the dimensions described in Section 1 of the this Exhibit "D»
(4) The size of each sign display of the Project shall not exceed the dimensions set forth in Ordinance No. 393, and shall not to exceed the maximum height set forth and shall be spaced at intervals from any other outdoor advertising structure on the same side of the freeway and measured parallel to the freeway as set forth in that Ordinance and depicted in Exhibit `B" approved by the City as part of the Project approvals.
(5) The Project pole shall have a column cover as depicted in Exhibit "B". (6) Plans and specifications for the proposed installation of the Project shall be submitted to the City Development Services and Building Departments for plan check and approval prior to the issuance of building permits. Plans and specifications for the proposed installation of the undergrounding of all utilities, shall be submitted to the City Development Services and Building Departments for plan check and approval prior to the issuance of electrical permits.
-57-
(7) 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.
(8) Company shall maintain the Project 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, including but not limited to the California Outdoor Advertising Act commencing with Bus. & Prof. Code, Section 5200 et. seq. and the Federal Highway Beautification Act.
(9) Company shall, at all time, comply with the approval for the Project from the California Department of Transportation Outdoor Advertising Division, and shall maintain acceptable clearance between proposed outdoor advertising structure and Southern California Edison distribution lines.
(10) Company shall pay any and all applicable fees due to any public agency prior to the final issuance of the applicable building or electrical permits. (11) The activities proposed in the Agreement shall be conducted completely upon the Project and shall not use or encroach on any public right-of-way. (12) Company shall ensure that all access to the Project is kept restricted to the general public to the extent permitted under local laws and by the project approvals. (13) If any portion of the painted backing installed adjacent to the Project is damaged by the Company or becomes damaged, unhealthy or otherwise in need of replacement, as determined by the City's Director of Development Services or his or her designee, Company shall ensure that the replacement is accomplished within fourteen (14) days of notification by the City, unless such time is extended by the City's Director of Development Services or his or her designee if Company shows unusual circumstances requiring more time to accomplish such replacement. Company or the owner of the property may trim such landscaping so as not to block the Project or with the reasonable consent of the Director of Development Services, the Company at the Company's own cost, can remove and relocate any landscaping.
(14) Company shall be required to install all utilities underground in connection with the Project in conformance with Ordinance 393. Company shall coordinate its work with the requirements of Southern California Edison to achieve the undergrounding of all utilities.
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(15) Company shall comply with all necessary federal National Pollutant Discharge Elimination System (NPDES) requirements pertaining to the proposed use, to the extent applicable.
(16) All graffiti shall be adequately and completely removed or painted over within two (2) days of notice to Company of such graffiti being affixed on the Project. (17) Prior to final sign off of the building permit for the Project, the applicable painted backing shall be installed at the Property
(18) Company shall comply with State law regarding the limitation of light or glare or such other standards as adopted by the Outdoor Advertising Association of America, Inc. (OAAA), including but not limited to, the 0.3 foot-candles limitation over ambient light levels and ensuring additional flexibility in reducing such maximum light level standard given the lighting environment, the obligation to have automatic diming capabilities, as well as providing the City's Director of Development Services or his or her designee with a designated Company employee 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 Director of Development Services or his or her designee, Company shall dim the display to meet these guidelines and further perform a brightness measurement of the display using OAAA standards and provide the City with the results of same within 5 days of the City's complaint.
It is understood that these "Conditions of Approval" are subject to all of the terms and conditions of the text of the Agreement. The summary of the items of performance in this these "Conditions of Approval" is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between these "Conditions of Approval" and the text of the Agreement, the text of the Agreement shall govern. In addition, project -related Conditions of Approval associated with the land use entitlement are incorporated by reference.
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EXHIBIT "B"
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