HomeMy WebLinkAbout2014-06-24 - RESOLUTIONS - HOLDING ELECTION RE ORD 14-02 (7)RESOLUTION 14-55
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA,
CALIFORNIA, CALLING AND GIVING NOTICE OF THE HOLDING OF A SPECIAL
ELECTION TO BE HELD ON TUESDAY, NOVEMBER 4, 2014, TO SUBMIT TO THE
VOTERS ORDINANCE 14-02, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA CLARITA, ADOPTING A DEVELOPMENT AGREEMENT WITH LOS
ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY (METRO) FOR
THE REMOVAL OF 62 OFF-SITE ADVERTISING STRUCTURES, AND CONSTRUCTION
AND OPERATION OF THREE DIGITAL BILLBOARDS ADJACENT TO THE
INTERSTATE 5 (1-5) AND STATE ROUTE 14 (SR -14) FREEWAYS, AND REQUESTING
THE BOARD OF SUPERVISORS TO CONSOLIDATE SAID SPECIAL ELECTION WITH
THE NOVEMBER 4, 2014, STATEWIDE GENERAL ELECTION AND PERMIT THE
COUNTY REGISTER -RECORDER TO RENDER CERTAIN SERVICES TO THE CITY OF
SANTA CLARITA FOR SAID ELECTION PURSUANT TO SECTION 10403 OF THE
ELECTIONS CODE
WHEREAS, on March 25, 2014, the City Council adopted Ordinance 14-02, an
Ordinance adopting a Development Agreement with Los Angeles County Metropolitan
Transportation Authority (METRO) for the removal of 62 off-site advertising structures, and
construction and operation of three digital billboards adjacent to the Interstate 5 and State Route
14 freeways (Ordinance 14-02 or Ordinance); and
' WHEREAS, on May 5, 2014, a referendum petition was filed with the City Clerk
protesting the adoption of Ordinance 14-02 and the City Clerk conducted the required initial
prima facie review and determined that on a preliminary review, it appeared that petitions with at
least 11,170 signatures were submitted; and
WHEREAS, the petitions were submitted to the Los Angeles County Registrar -Recorder
(County) and on June 6, 2014 the County verified that 11,370 valid signatures were submitted;
and
WHEREAS, the City Clerk Certified the Petition and presented it to the City Council on
June 24, 2014; and
WHEREAS, the Referendum has qualified and Ordinance 14-02 has been suspended
pursuant to Elections Code section 9237; and
WHEREAS, pursuant to Elections Code sections 9237 and 9241, the City Council must
reconsider the Ordinance and, if the City Council does not entirely repeal the Ordinance, it shall
submit the Ordinance to the voters; and
WHEREAS, the City Council desires to submit Ordinance 14-02 to the voters at a special
' election called for such purpose, to occur not less than 88 days after this order of the City
Council; and
WHEREAS, a general state-wide election is currently scheduled for November 4, 2014
and the Council would like to request that the County Board of Supervisors agree to consolidate
the City's Special Election with the County's general election.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Santa Clarita
does hereby resolve, declare and order as follows:
SECTION 1. That pursuant to the laws of the State of California relating to general law
cities, there is called and ordered to be held in the City of Santa Clarita, California, on
November 4, 2014, a Special Election, for the purpose of voting on a referendum ballot measure
to approve an Ordinance adopting a Development Agreement with Los Angeles County
Metropolitan Transportation Authority (METRO) for the removal of 62 off-site advertising
structures, and construction and operation of three digital billboards adjacent to the Interstate 5
and State Route 14 freeways. The language of the proposed Ordinance is attached to this
Resolution as Exhibit A.
SECTION 2. That the City Council hereby orders the measure to be placed on the ballot
in the following form:
No. 1
Development Agreement with Los Angeles
County Metropolitan Transportation
Authority (METRO) for the removal of 62
advertising structures, within the City, by
METRO or any other means, and
construction and operation of three digital
billboards, adjacent to the Interstate 5 and
State Route 14 freeways, and the dedication
to the City of revenue received from digital
billboards, which creates an ongoing
revenue stream, be adopted?
YES
NO
Said Ordinance shall become effective if a majority of the voters voting on the above
measure vote yes.
SECTION 3. That the full text of the Ordinance shall not be printed in the Voter
Information Pamphlet, but a statement shall appear under the Impartial Analysis informing
voters that the information may be obtained from the City Clerk's office and the City's website.
SECTION 4. That pursuant to Elections Code Section 9282, Councilmember Bob Kellar
is authorized by the Santa Clarita City Council to author the argument in favor of the Ordinance I
and a rebuttal in response to the argument against the Ordinance.
' SECTION 5. That in accordance with Elections Code Sections 9281 to 9287, primary
arguments in favor or against the Ordinance may be submitted to the City Clerk by August 15,
2014, at 5:00 p.m. Rebuttal arguments may be submitted to the City Clerk by August 25, 2014,
at 5:00 p.m. In the event multiple arguments are submitted, the City Clerk shall select an
argument using the priorities set forth in Elections'Code Section 9287, choosing at random
within the most senior priority submitted if multiple arguments sharing priority are submitted.
SECTION 6. That the City Council directs the City Clerk to transmit a copy of the
Ordinance to the City Attorney for preparation of an impartial analysis. The impartial analysis
shall be filed by August 15, 2014 at 5:00 p.m.
SECTION 7. That the City Attorney is authorized to defend the City and any party that
has authored the ballot argument or rebuttal in favor on behalf of the City Council or the
impartial analysis as it relates to any challenges to the argument in favor and rebuttal, ballot
language or the impartial analysis.
SECTION 8. That notice of the time and place of holding said Election is hereby given,
and the City Clerk is hereby authorized to give such further or additional notice of the Election in
the time, form and manner as required by law.
SECTION 9. That the ballots to be used at said Election shall be, both as to form and
matter contained therein, such as may be required by law.
' SECTION 10. That the City Clerk is hereby authorized to procure and furnish any and all
official ballots, notices, consultant assistance and printed matters that may be necessary in order
to properly and lawfully conduct said Election, except as noted herein.
SECTION 11. That the City Council of the City of Santa Clarita does hereby request the
Los Angeles County Board of Supervisors to consolidate the Special Election with the
November 4, 2014, Statewide General Election. The City agrees to reimburse the County for its
costs incurred.
SECTION 12. That the City Council of the City of Santa Clarita does hereby request the
Los Angeles County Board of Supervisors to authorize the County Registrar -Recorder to prepare
and perform certain services described below for the City of Santa Clarita in relation to said
consolidated Election consistent with the Elections Code.
SECTION 13. That the City Council of the City of Santa Clarita requests that the
County Registrar -Recorder conduct the election in a manner in all respects as if there were
only one election with one ballot, and the election precincts, polling places and voting booths
shall in every case be the same. There shall be only one set of election officers in each of
said precincts, and the Board of Supervisors shall canvass the returns of said election.
SECTION 14. That the City Council of the City of Santa Clarita requests the County
' Registrar -Recorder open the polls for said election at seven o'clock on the morning of the day
of the election and keep open until eight o'clock of the evening of the same day when the polls
shall be closed, pursuant to Elections Code § 10242, except as provided in Elections Code §
14401. 0
SECTION 15. The City Clerk of the City of Santa Clarita is directed to forward a certified
copy of this Resolution to the Clerk of the Board of Supervisors for presentation to the Board of
Supervisors, and to the County of Los Angeles Registrar -Recorder.
SECTION 16. The City Clerk shall certify to the adoption of this resolution and certify
this record to be a full true, correct copy of the action taken.
PASSED, APPROVED, AND ADOPTED this 24th day of June 2014.
Marsha McLean, Mayor Pro Tem
ATTEST:
INITERIM C ��//LE � ,
DATE: 'T(/// v
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF SANTA CLARITA )
I, Armin6 Chaparyan, Interim City Clerk of the City of Santa Clarita, do hereby certify
that the foregoing Resolution was duly adopted by the City Council of the City of Santa Clarita
at a regular meeting thereof, held on the 24th day of June 2014, by the following vote:
AYES: COUNCILMEMBERS: Acosta, Kellar, UbLean
NOES: COUNCILMEMBERS: Boydston
ABSENT: COUNCILMEMBERS: None
X,ECUSED: COUNCITIOLBERS: Weste
1
RIM CI CLE
Exhibit A
[entirety of Ordinance 14-02 is attached]
ORDINANCE NO. 14-02
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA
ADOPTING A DEVELOPMENT AGREEMENT WITH LOS ANGELES COUNTY
METROPOLITAN TRANSPORTATION AUTHORITY (METRO) FOR THE REMOVAL
OF 62 OFF-SITE ADVERTISING STRUCTURES, AND CONSTRUCTION
AND OPERATION OF THREE DIGITAL BILLBOARDS ADJACENT TO THE
INTERSTATE 5 (I-5) AND STATE ROUTE 14 (SR -14) FREEWAYS
THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. FINDINGS OF FACT. The City Council does hereby make the following
findings of fact:
A. 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 enacted Government Code section 65864 (the "Development
Agreement Law"), which authorizes the City of Santa Clarita (City) to enter into an
agreement with any person having a legal or equitable interest in real property regarding
the development of such property.
' B. The Los Angeles County Metropolitan Transportation Authority (METRO) has filed an
application with the City for the construction and operation of three digital billboards on
City -owned sites, and the removal of all 62 of the existing off-site structures within the
METRO right-of-way (ROW). In consideration of the removal of the existing METRO
Billboards, the City and METRO have identified three City -owned sites adjacent to the
Interstate 5 (I-5) and State Route 14 (SR -14) freeways as suitable for the development of
three digital billboards. The City has proposed to lease the sites to METRO subject to the
terms and conditions of a Development Agreement for the Reduction and Relocation of
Billboards and associated site Lease Agreement, pursuant to the Development Agreement
Law.
C. A Mitigated Negative Declaration has been prepared in accordance with the California
Environmental Quality Act (CEQA) requirements.
D. The City and METRO have prepared a Development Agreement, which is attached as
Exhibit A. The proposed Development Agreement and associated Lease Agreement
provide for: (1) staged removal of all 62 existing outdoor advertising structures on the
METRO ROW; (2) the development of three digital billboards on the City -owned sites;
(3) the management and operation of the digital billboards; (4) the allocation of revenue
derived from the digital billboards (collectively, the "Project').
IE. On January 7, 2014, the Planning Commission received City staff s presentation
summarizing the proposed Project, opened the public hearing, and received public
testimony regarding the Project. Staff received comments and questions from the
Planning Commission regarding the Project. The Commission reviewed three alternative
Billboard Design Options (attached) and voted 3-1 to adopt a resolution recommending
that the City Council amend its General Plan Land Use Map and Unified Development
Code (UDC) Zoning Map, amend Titles 11 and 17 of the Municipal Code, approve the
Development Agreement, and approve the Lease Agreement. The Planning Commission
further recommended that the billboard design be consistent with Option 1, modified to
utilize more neutral colors that will blend into the background to the extent feasible, that
the minimum spacing between digital billboards be increased from 1,000 feet to 2,500
feet, that the minimum spacing between static billboards be increased from 500 feet to
1,000 feet, that the applicant continue to work with the billboard companies on the matter
of compensation and to work with small business owners to provide alternative
advertising opportunities. Following the discussion and comments, the public hearing
was closed.
F. The City Council conducted a duly noticed public hearing on February 25, 2014. The
Project was advertised in The Signal newspaper on February 4, 2014, and notices were
mailed to all property owners within a 1,000 -foot radius of each of the three proposed
development sites. Additional notices were mailed to residences up to 1,700 feet from
the proposed Norland Road development site in areas where he visual line -of -sight
exhibits indicated there would be some visibility of the Norland Road billboard.
Additionally, Notice of Public Hearing signs were posted at each of the three proposed ,
development sites in accordance with the City's public notice requirements. The hearing
was held at City Hall, 23920 Valencia Boulevard, Santa Clarita, at 6:00 p.m. All
interested parties were given full opportunity to be heard and to present evidence
regarding the Mitigated Negative Declaration and the Project -related approvals and
entitlements, including the Development Agreement.
G. At the City Council meeting on February 25, 2014, the City Council received City staff's
presentation summarizing the proposed Project, opened the public hearing, and received
public testimony regarding the Project. Staff received comments and questions from the
City Council regarding the Project, and the public hearing was closed.
H. The Mitigated Negative Declaration was adopted by City Council resolution and
incorporated by reference.
On February 25, 2014, the City Council has adopted a resolution which approved an
amendment to the General Plan necessary to make the Project consistent with the General
Plan (GPA 13-003).
On February 25, 2014, the City Council conducted a first reading of an ordinance
approving a Zone Change and Zoning Amendment to the text of Titles I 1 and 17 of the
Municipal Code in furtherance of the Project (ZC 13-007 and ZA 13-003), and passed the '
ordinance to a second reading on March 11, 2014.
PA
K. On February 25, 2014, the City Council conducted a first reading of an ordinance
adopting a Development Agreement with METRO for the removal of 62 off-site
advertising structures, and the construction and operation of three digital billboards
adjacent to the I-5 and SR -14 freeways, and passed the ordinance to a second reading on
March 11, 2014.
L. Subsequent to the February 25, 2014, Council meeting, METRO staff had indicated that
they were not comfortable recommending for METRO Board adoption of the agreements
with the included traffic accident indemnity. Based upon this information, the agenda
packet for the March 11, 2014, meeting which was distributed to Council included a staff
recommendation to deny the project. On March 11, 2014, staff received written
correspondence from METRO staff stating they would accept all of the City Council's
requested modifications, and would move the item to the METRO Board for its
consideration upon City approval of the second reading.
M. At the March 11, 2014, City Council meeting, the City Council voted 3-1 to direct that
the ordinances be brought back for second reading at the next City Council meeting
(March 25, 2014).
N. The documents and other materials that constitute the record of proceedings upon which
the decision of the City Council is based for Master Case No. 13-184 project file. This
' record is with•the Community Development Department, specifically in the custody of
the Director of Community Development.
SECTION 2. GENERAL FINDINGS FOR DEVELOPMENT AGREEMENT 13-002.
Based on the above findings of fact and recitals and the entire record, including, without
limitation, oral and written testimony and other evidence received at the public hearings, reports
and other transmittals from City staff to the City Council, and upon studies and investigations
made by the City Council, the City Council finds as follows:
A. The proposed Project is consistent with the objectives, policies, general land uses, and
programs specified in the General Plan.
The proposed Project is consistent with the following relevant General Plan policies:
General Plan Policy LU 4.1.4: Promote economic opportunity for all segments of the
community including small businesses and new businesses.
The three proposed freeway -oriented digital billboard structures (six billboard faces) will
provide advertising opportunities to a wide spectrum of both large and small businesses
due to multiple "flips" within each time slot, as well as potential for differential
advertising rates during different hours throughout the day and different days of the week.
' The freeway -oriented locations will provide advertising exposure to a larger number of
potential customers than the current METRO ROW locations due to substantially greater
traffic volumes on both the I-5 and SR -14 freeways.
General Plan Policy LU 6.3.5: Restrict the establishment of billboards within the planning '
area. General Plan Policy CO 6.6.3: Restrict establishment of billboards throughout the
planning area, and continue abatement efforts to remove existing billboards that impact
scenic views.
The proposed Project is consistent with these policies because it will result in the overall
net reduction of 59 billboards and the elimination of significant visual blight within the
railroad corridor along Newhall Avenue, Sierra Highway, Railroad Avenue, Bouquet
Canyon Road, and Soledad Canyon Road. The Zone Amendment, which is a related
component of this Project, restricts the establishment of new billboards because the only
new billboards permitted would be those authorized pursuant to City Council approval of
a Billboard Reduction and Relocation Agreement, which approval would require, at a
minimum, an overall reduction in the number of existing billboards within the City.
General Plan Policy CO 6.6.4: Where appropriate, require new development to be
sensitive to scenic viewpoints or viewsheds through building design, site layout, and
building heights.
Each of the three proposed billboard sites have been carefully selected to maximize
freeway visibility while minimizing potential for visual intrusion on existing residential
neighborhoods as evidenced by the visual analysis prepared for each of the three sites, ,
which is included in the environmental document.
With regard to land use, the Magic Mountain Parkway and Remsen Street sites currently
hold a land use designation of Business Park (BP). The Project includes an amendment
to the City's General Plan for the Norland Road site which will also designate this site as
Business Park. The three proposed billboards are fully compatible with the types of light
industrial and supportive commercial uses within the Business Park General Plan land
use category, and therefore the Project would be consistent with the General Plan as
amended.
Economic Development Element Page E-26: The Santa Clarita Valley is home to a
variety of cultural and sports -related events, attracting large audiences from key regional
and national markets. The goal of these events is to expose visitors to a memorable
experience they cannot find elsewhere, while encouraging visitor spending at local
businesses.
The Development Agreement and Lease Agreement include provisions that allocate
advertising time to the City at no cost on all six digital billboard faces, for the purpose of
promoting civic and community events. This extensive promotional opportunity will help
to further the economic development goal as noted above.
B. The proposal is allowed within the applicable underlying zone and complies with all I other applicable provisions of the Unified Development Code.
11
' The Project contains a Zone Amendment which would amend the text of the Unified
Development Code to include provisions that would authorize the City Council to enter
into Billboard Reduction and Relocation Agreements under which new billboards,
including digital billboards, may be constructed within a designated Billboard Relocation
Overlay Zone along the I-5 and SR -14 freeways in exchange for the permanent removal
and overall reduction in the number of existing billboards. With regard to zoning, the
Magic Mountain Parkway and Remsen Street sites are currently zoned Business Park.
The Project includes a Zone Change for the Norland Road site that rezones this site from
Open Space to Business Park. The three proposed billboards are fully compatible with
the types of light industrial and supportive commercial uses within the Business Park
zone, and therefore comply with both the site zoning and the provisions of the Zoning
Ordinance as amended.
C. The proposal will not endanger, jeopardize, or otherwise constitute a hazard to the public
convenience, health, interest, safety, or general welfare, or be materially detrimental or
injurious to the improvements, persons, property, or uses in the vicinity and zone in
which the property is located.
The proposed digital billboards will comply with all relevant Federal Highway
Administration (FHWA) and California Department of Transportation (CALTRANS)
' traffic safety standards. Nothing in the development of the three billboard sites will be
detrimental to the improvements, persons or property in the vicinity. The billboard
removals will positively affect the improvements and property in the vicinity of the 62
billboard structures to be removed (118 billboard faces) by eliminating a significant
visual blight from the railroad corridor along Newhall Avenue, Sierra Highway, Railroad
Avenue, Bouquet Canyon Road, and Soledad Canyon Road.
D. The proposal is physically suitable for the site. The factors related to the proposal's
physical suitability for the site shall include, but are not limited to, the following:
1) The design, location, shape, size, and operating characteristics are suitable for the
proposed use;
2) The highways or streets that provide access to the site are of sufficient width and are
improved as necessary to carry the kind and quantity of traffic such proposal would
generate;
3) Public protection services (e.g., Fire protection, Sheriff protection, etc.) are readily
available; and
4) The provision of utilities (e.g., potable water, schools, solid waste collection and
' disposal, storm drainage, wastewater collection, treatment, and disposal, etc.) is
adequate to serve the site.
The three proposed billboard sites are three small leasehold areas within larger City- '
owned properties. The proposed billboards are physically suitable for the selected sites
because they are located immediately adjacent to the I-5 or SR -14 freeways, and have
been located to minimize visual intrusion on residential neighborhoods. Each of the three
sites have existing electrical service nearby. The three billboards will generate negligible
traffic during construction and periodic maintenance, and will have positive impact on
public safety as the City is guaranteed usage of the three digital billboards for emergency
messaging. Therefore, there is no impact to traffic, public protection services and the
provision of utilities.
SECTION 3. ADDITIONAL FINDINGS FOR DEVELOPMENT AGREEMENT 13-002.
Based on the foregoing facts and findings for Development Agreement 13-002, the City Council
finds as follows:
A. The proposed Development Agreement is consistent with and furthers the goals of State
Planning and Zoning Laws (California Government Code Section 65000 and following),
and complies with City zoning, subdivision, and other applicable ordinances and
regulations, and is consistent with good planning and land use practices.
The proposed Project includes a Zone Amendment to the text of the Unified
Development Code and Title 11 of the Municipal Code that will allow the City Council to
approve Billboard Reduction and Relocation Agreements. Upon approval of this Zone ,
Amendment, the proposed Project will fully comply with all applicable ordinances and
regulations. The Project is consistent with good planning and land use practices because
a substantial aesthetic benefit will result from the removal of 62 billboard structures, and
the three new digital billboards have been attractively designed and appropriately located
to ensure that existing residential communities are not adversely impacted.
B. That the proposed Development Agreement provides for clear and substantial public
benefit to the City and/or residents along with a schedule for delivery of the benefit.
The proposed Development Agreement provides the following substantial public benefits
to the City:
1) Abatement of substantial visual blight through the phased removal of all 62 offsite
advertising structures (118 billboard faces) within the METRO ROW;
2) Advertising opportunities for civic and community events at no cost to the City;
3) Emergency messaging for disaster communications and Amber Alerts at no cost to
the City;
m
' 4) An advertising medium that can be utilized by local businesses; and
5) An ongoing revenue stream from leasehold rents that could be utilized to enhance
City programs.
The terms of the Development Agreement mandate that all of these benefits be delivered
expeditiously within the five-year term of the Development Agreement.
SECTION 4. APPROVAL OF DEVELOPMENT AGREEMENT. Based on the findings
made in Sections 1-3 above, the City Council hereby approves Development Agreement 13-002,
which is attached as Exhibit A, and authorizes the Mayor to execute the Development Agreement
on behalf of the City.
SECTION 5. SEVERABILITY. If any section, subsection, subdivision, sentence, clause,
phrase, or portion of this ordinance or the application thereof to any persons or place, is for any
reason held to be invalid or unconstitutional by the decision of any court of competent
jurisdiction, such decision will not affect the validity of the remainder of this ordinance. The
City Council hereby declares that it would have adopted this ordinance, and each any every
section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the
fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or
' portions thereof be declared invalid or unconstitutional.
SECTION 6. RECORDATION. Pursuant to California Government Code Section
65868.5, the City will cause the Development Agreement to be recorded with the County
Recorder of the County of Los Angeles within ten days after the Agreement is executed on behalf
of the City and METRO.
SECTION 7. This Ordinance will become effective thirty (30) days from its passage and
adoption.
SECTION 8. The City Clerk is directed to certify to the passage of this Ordinance and
cause it to be published as required by law.
PASSED, APPROVED, AND ADOPTED this 25th day of March, 2014.
ATTEST:
I � -j
INTERIM ClfY CL
DATE: z1-3 41Ll -
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF SANTA CLARITA )
I, Armin6 Chaparyan, Interim City Clerk of the City of Santa Clarita, do hereby certify
that the foregoing Ordinance 14-02 was regularly introduced and placed upon its first reading at a
regular meeting of the City Council on the 25th day of February, 2014. That thereafter, said
Ordinance was duly passed and adopted at a regular meeting of the City Council on the 25th day
of March, 2014, by the following vote, to wit:
AYES
06161
ABSENT:
COUNCILMEMBERS
COUNCILMEMBERS:
Ferry, McLean, Kellar
Boydston
COUNCILMEMBERS: None
RECUSED: COUNCILMEMBERS: Weste
AND I FURTHER CERTIFY that the foregoing is the original of Ordinance and was
F in The Signal newspaper in accordance with State r .•_• ir_ r nnu04N
EXHIBIT A
RECORDING REQUESTED BY AND
WHEN RECORDED.MAII, TO:
SPACE A$OVE THIS LINE FOR RECORDER'S USE
DEVELOPMENT AGREEMENT FOR.THE REDUCTION
AND RELOCATION OF BILLBOARDS
by and among
THE CITY OF SANTA CLARITA
and
THE LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY
2014
4
(00002886.DOC/5)
LA -#48388374.4530 vl2
DEVELOPMENT AGREEMENT FOR THE REDUCTION AND RELOCATION OF I BILLBOARDS
This Development Agreement for the Reduction and Relocation of Billboards
("Agreement") is effective this day of , 2014, by and between the CITY OF
SANTA CLARITA, a California municipal corporation ("City") and THE LOS ANGELES
COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, a California public entity
doing business at One Gateway Plaza, Mail Stop 99-18-4, Los Angeles, CA 90012-2952
("Metro"), pursuant to California Government Code Section 65864 et seq., and the implementing
procedures of the City, with respect to the following:
1. DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly provided or unless the
context requires:
1.1 "Agreement" means this Agreement and all attachments and exhibits hereto, and
all amendments and modifications thereto.
1.2 "Applicable Rules" means the rules, regulations, ordinances and officially
adopted policies of the City in full force and effect as of the Effective Date of this
Agreement, including, but not limited to the City's General Plan, zoning code, as
amended immediately prior to the Effective Date of this Agreement, and the '
Project Approvals. Additionally, notwithstanding the language of this Section or
any other language in this Agreement, all specifications, standards and policies
regarding the design and construction of the Project will be those that are in effect
at the time the Project plans are being processed for approval and/or under
construction.
1.3 "Assignment Agreement' means- a written agreement between Metro and a
Transferee of Metro, consistent with the terms of this Agreement, in which the
Parties agree to the transfer of a portion of the rights and obligations of this
Agreement from Metro to the Transferee of Metro, subject to the terms of Section
6.8.
1.4 °°CEQA" means the California Environmental Quality Act (Cal. Public Resources
Code Sections 21000 et seq.) and the State CEQA Guidelines (Cal. Code of
Regs., Title 14, Sections 15000 et seq.).
1.5 "CEQA Compliance Document" means the compliance document prepared and
certified by the City for the Project in accordance with the requirements of
CEQA.
1.6 "City" means the City of Santa Clarita, a California municipal corporation.
1.7 "City Council" means the City Council of the City and the legislative body of the
City pursuant to California Government Code_ Section 65867. '
LA 84838-83744530 v12
1.8 "Community Development Director" means the Community Development
Director for the City.
1.9 "Conditions of Approval" means the Conditions of Approval for the Project,
including those contained in Resolution No. , approved by the City
Planning Commission on January 7, 2014, and in Resolution No. and
Ordinance No. 14-_ approved by the City Council on March 11, 2014,
addressing among other things, the permitting approval process of all designs and
plans and all necessary Ministerial Permits and Approvals, and the construction,
design, operation, and maintenance of, and control of illumination and light from,
the Digital Signs and Digital Sign Sites. The Conditions of Approval are included
as part of the Project Approvals attached hereto as Exhibit D.
1.10 "Development Agreement Act" means Section 65864 et seq., of the California
Government Code.
1.11 "Digital Signs" means the three (3) Outdoor Advertising Structures to be
constructed on the Digital Sign Sites, containing double -sided digital display
faces so that six (6) digital faces will be constructed (two (2) on each structure)
having a total of no more than 4,032 square feet of display area consistent with
the Project Approvals and this Agreement.
1.12 "Digital Sign Sites" means the portions of the parcels of real property owned by
the City that will be leased to Metro for the construction and operation of the
Digital Signs. The Digital Sign Sites are more specifically described in Exhibit B
and depicted in Exhibit C attached hereto and incorporated herein.
1.13 "Discretionary Action" means an action which requires the exercise of
judgment, deliberation or a decision on the part of the City, including any board,
commission or department or any officer or employee thereof, in the process of
approving or disapproving a particular activity, as distinguished from an activity
which merely requires the City, including any board, commission or department
or any officer or employee thereof, to determine whether there has been
compliance with statutes, ordinances or regulations.
1.14 "Effective Date" is the date on which this Agreement is attested by the City
Clerk of the City of Santa Clarita after execution by Metro and the Mayor of the
City of Santa Clarita, which is 2014.
1.15 "Existing Metro Billboards" means the existing sixty-two (62) Outdoor
Advertising Structures that are located on Metro property within the City's
boundaries at the Existing Metro Billboard Sites as specifically described in
Exhibit A.
1.16 "Existing Metro Billboard Sites" means the sixty-two (62) locations of the
Existing Metro Billboards described in Exhibit A attached hereto.
LA 44838-83744530 v12
1.17 "Fees" means Impact Fees, Processing Fees and any other fees or charges I imposed or collected by the City.
1.18 "General Plan" means the adopted General Plan of the City.
1.19 "Impact Fees" means impact fees, linkage fees, exactions, assessments or fair
share charges or other similar impact fees or charges imposed on and in
connection with new development by the City pursuant to rules, regulations,
ordinapces and policies of the City in full force and effect as of the Effective Date
of this Agreement. Impact Fees do not include (i) Processing Fees or (ii) other
City-wide fees or charges of general applicability, provided that such City-wide
fees or charges are not imposed on impacts of new development.
1.20 "Leases" mean the three lease agreements between City, as Lessor, and Metro, as
Lessee, for the Digital Sign Sites attached as part of Exhibit D.
1.21 "Lessee" means Metro who is concurrently entering into three lease agreements
with the City, as Lessor, for the Digital Sign Sites that will be used for the Digital
Signs.
1.22 "Lessor" means the City that is leasing the Digital Sign Sites to Metro, as Lessee.
1.23 "Licensee" means the company or companies (including, without limitation,
individuals or entities such as partnerships, limited liability companies, ,
corporations, or sole proprietorships), if Metro so elects, that will do one or more
of the following: (a) construct and/or operate a Digital Sign; (b) sell the media
inventory from a Digital Sign; and/or (c) pay directly to the City the Development
Fee pursuant to Section 3.1.6.1.
1.24 "Ministerial Permits and Approvals" means the permits, approvals, plans,
inspections, certificates, documents, licenses, and all other actions required to be
taken by the City in order for Metro to implement, develop and construct the
Project and the Mitigation Measures, including without limitation, building
permits, foundation permits, public works permits, grading permits, stockpile
permits, encroachment permits, and other similar permits and approvals which are
required by the Municipal Code and Project plans and other actions required by
the Project Approvals to implement the Project and the Mitigation Measures.
Ministerial Permits and Approvals do not include any Discretionary Actions.
1.25 "Mitigation Measures" means the mitigation measures described in the Project
Approvals.
1.26 "Outdoor Advertising Structure" means and includes an "off-site sign" as
defined in Chapter 17.11 of the Santa Clarita Municipal Code and an "advertising
structure" as defined in Business and Professions Code Section 5203.
1.27 "Parties" means collectively Metro and the City. Each will be referred to in the I singular as a "Party."
LA 0483&83744530 v12
1.28 "Planning Commission" means the Planning Commission of the City pursuant
to California Government Code Section 65867.
1.29 "Processing Fees" means all processing fees and charges required by the City
including, but not limited to, fees for land use applications, Project permits and/or
approvals, building applications, building permits, grading permits, encroachment
permits, tract or parcel maps, lot line adjustments, air right lots, street vacations
and certificates of occupancy which are necessary to accomplish the intent and
purpose of this Agreement. Expressly exempted from Processing Fees are all
Impact Fees which may be imposed by the City on development projects pursuant
to rules, regulations, ordinances and policies enacted after the Effective Date of
this Agreement, except as specifically provided for in this Agreement. The
amount of the Processing Fees to be applied in connection with the development
of the Project will be the amount which is in effect on a City-wide basis at the
time an application for the City action is made. Notwithstanding the language of
this Section or any other language in this Agreement, Metro will not be exempt
from the payment of fees, if any, imposed on a City-wide basis as part of the
City's program for storm water pollution abatement mandated by the Federal
Water Pollution Control Act of 1972 and subsequent amendments thereto, unless
a waiver of these fees is provided by the City in a subsequent agreement.
1.30 "Project" means the development, installation, management and operation of the
Digital Signs and the removal of the Existing Metro Billboards identified on
Exhibit A. As more particularly set forth in the Project Approvals, the Project
includes, among other things, grading, the construction of infrastructure related to
the Project whether located within or outside the Digital Sign Sites as shown on
Exhibit C; the construction of the Digital Signs; and other facilities and
improvements necessary or appropriate for the construction of the Digital Signs
and the maintenance, repair, or reconstruction of any structure, improvement, or
facility after the construction and completion thereof in accordance with the
Project Approvals, Conditions of Approval and terms of this Agreement.
1.31 "Project Approvals" means the following land use actions taken by the City of
Santa Clarita: (a) certification of the CEQA compliance document for the Project;
(b) this Agreement; (c) the Leases; (d) and the Conditions of Approval.
1.32 "Reserved Powers" means the rights and authority excepted from this
Agreement's restrictions on the City's police powers and which are instead
reserved to the City subject to Metro's Exemption from Local Laws. The
Reserved Powers include the powers to enact regulations or take future
Discretionary Actions after the Effective Date of this Agreement that may be in
conflict with the Applicable Rules and Project Approvals, but: (1) are necessary
to protect the public health and safety, and are generally applicable on a City-wide
basis (except in the event of natural disasters as found by the City Council such as
floods, earthquakes and similar acts of God); (2) are amendments to Uniform
Codes, as adopted by the City of Santa Clarita, and/or the Santa Clarita Municipal
Code, as applicable, regarding the construction, engineering and design standards
LA #4838-8374-4530 v12
for private and public improvements to be constructed on the Digital Sign Sites; '
or (3) are necessary to comply with state or federal laws and regulations (whether
enacted previous or subsequent to the Effective Date of this Agreement) as
provided in Section 3.2.5.3.
1.33 "Term" means the period of time for which this Agreement will be effective in
accordance with Section 6.2 hereof.
1.34 "Transferee" means individually or collectively, Metro's successors in interest,
assignees or transferees of all or any portion of this Agreement.
1.35 "Uniform Codes" means those building, electrical, mechanical, plumbing, fire
and other similar regulations of a City-wide scope which are applicable
throughout the City, such as, but not limited to, the Los Angeles County Building
Code, the Los Angeles County Electrical Code, the Los Angeles County
Mechanical Code, Los Angeles County Plumbing Code, or the Los Angeles
County Fire Code (including those amendments to the promulgated uniform codes
which reflect local modification to implement the published recommendations of
the multi -state organization and which are applicable City-wide) subject to
Metro's Exemption from Local Laws.
2. RECITALS OF PREMISES, PURPOSE AND INTENT.
2.1 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, encourage private participation in
comprehensive planning, and reduce the economic costs of '
development.
LA #4838-8374-4530 v12.
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: (1) 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; and (2) seeks public benefits.
2.2 General Purpose of this Agreement.
2.2.1 The City generally prohibits the construction and operation of new
Outdoor Advertising Structures or billboards in the City under Santa
Clarita Municipal Code ("SCMC") Chapter 17.51 ("Sign Code") and
Chapter 11.12, and has been working with property owners and outdoor
advertising companies for a number of years to reduce the number of
billboards within the City.
2.2.2 The City has adopted SCMC section 17.26.100 and amended section
17.28.100, and has also adopted SCMC section 17.38.005, which
collectively authorize City to enter into billboard reduction and relocation
agreements under which new billboards, including the Digital Signs, may
be constructed in new locations in exchange for the permanent removal of
existing billboards.
2.2.3 The Existing Metro Billboards are located on Metro's rights-of-way,
facilities, structures and properties within the City.
2.2.4 Metro is willing to remove or cause the removal of all of the Existing
Metro Billboards to further Metro's primary, transportation -related
purposes, provided that it is able to develop and operate the Digital Signs
on the Digital Sign Sites.
2.2.5 In consideration of the removal of the Existing Metro Billboards, the City
and Metro have indentified the Digital Sign Sites as suitable for the
development of the Digital Signs, and the City is willing to lease the
Digital Sign Sites to Metro subject to the terms and conditions of this
Agreement and the applicable Leases.
2.2.6 Metro and the City desire to enter into this Agreement in order to provide
for the (1) staged removal of the Existing Metro Billboards; (2) the
development of the Digital Signs on the Digital Sign Sites; (3) the
management and operation of the Digital Sign Sites and the Digital Signs;
(4) the allocation between the Parties of revenue derived from the Digital
Sign Sites and Digital Signs; and (5) certain other matters pertaining to
such Digital Sign Sites and Digital Signs all as more particularly set forth
in this Agreement and the respective Leases.
2.3 Public Benefits. This Agreement provides assurances that the public benefits
identified below in Section 3.1 will be achieved and developed in accordance with
the Applicable Rules and Project Approvals and with the terms of this Agreement
6
LA #4838-83744530 Y12
and subject to the City's Reserved Powers. The Project will provide local and '
regional public benefits to the City, including without limitation those public
benefits listed in Section 3.1 below. The Project will also provide additional
regional pubic benefits through Metro's rights under the Leases to utilize up to
6.25% of the monthly advertising time on each Digital Sign so that Metro may
provide transit informational messages and promote the use of Metro services and
other public transit services ("Transit Messages"). To the extent that advertising
time is unsold and available, the Project will also enable Metro to utilize up to an
additional 6.25% of the monthly advertising time on each Digital Sign for Transit
Messages. As set forth above, the parties intend that Metro will have at least
6.25% of the total advertising time on each Digital Sign per month available for
Transit Messages and may have up to 12.5% of the total advertising time each
month if space is available. All Transit Message content will be provided by
Metro at its sole cost and expense.
2.4 Metro Objectives. In accordance with the legislative findings set forth in the
Development Agreement Act, Metro wishes to obtain reasonable assurances that
the Project may be developed in accordance with the Applicable Rules and
Project Approvals and with the terms of this Agreement and subject to the City's
Reserved Powers. To the extent of Project development, and as provided by
Section 3.1.1, Metro anticipates making capital expenditures or causing capital
expenditures to be made in reliance upon this Agreement. In the absence of this
Agreement, Metro would have no assurance that it can complete the development '
of the Project as forth in this Agreement and the Project Approvals. This
Agreement, therefore, is necessary to assure Metro that, as to approvals and
regulations within the City's police powers to control, the Project will not be (1)
reduced or otherwise modified in intensity or use from what is set forth in the
Project Approvals, or (2) subjected to new rules, regulations, ordinances or
official policies or plans of the City, which are not adopted or approved pursuant
to the City's Reserved Powers. This Agreement and the underlying Project will
also serve to provide information on and promote the use of Metro services and
other public transit services.
2.5 Mutual Objectives. Development of the Project in accordance with this
Agreement will provide for the orderly removal of the Existing Metro Billboards
and the development of the Digital Signs. This Agreement will eliminate
uncertainty in planning for the orderly development of the Digital Signs. The
Parties believe that such orderly development of the Project will provide public
benefits, as described in Section 3.1, to the City through the imposition of
development standards and requirements under the provisions and conditions of
this Agreement, including increased revenues, reasonable public use of the Digital
Signs for public messaging and improving the aesthetics in the City by reducing
the total number of Existing Metro Billboard Sites, resulting in overall benefits to
the City. Additionally, although development of the Project in accordance with
this Agreement will restrain the City's land use or other relevant police powers, '
this Agreement provides the City with sufficient reserved powers during the Term
hereof to remain responsible and accountable to its residents.
LA #4838-83744530 v12
2.6 Procedures and Actions.
2.6.1 City Planning Commission Action. The City Planning Commission held
a duly noticed public hearing on January 7, 2014 and recommended
approval of this Agreement.
2.6.2 City Council Action. The City Council on March 11, 2014, after
conducting a duly -noticed public hearing, adopted Ordinance No. 14-_,
to become effective on the thirty-first day after approving this Agreement,
found that its provisions are consistent with the City's General Plan and
the Municipal Code, and authorized the execution of this Agreement.
3. AGREEMENT AND ASSURANCES.
3.1 Agreement and Assurance on the Part of Metro. In consideration for the City
entering into this Agreement, and as an inducement for the City to obligate itself
to carry out the covenants and conditions set forth in this Agreement, and in order
to effectuate the promises, purposes and intentions set forth in Section 2 of this
Agreement, Metro hereby agrees as follows:
3.1.1 Project Development. Metro agrees that it will diligently undertake
development of the Project in accordance with the terms and conditions of
this Agreement and the Project Approvals.
3.1.2 Removal of Existing Metro Billboards. No later than forty-five (45)
days following the issuance of the final approval by City's building
department (`Building Final") for the completion of the first Digital
Sign, Metro must cause the removal of no less than 40% of either (a) the
Existing Metro Billboards or (b) the total square footage of sign area of
the Existing Metro Billboards. No later than forty-five (45) days
following the issuance of the Building Final for the second Digital Sign,
Metro must cause the removal of no less than 30% of either (x) the total of
the Existing Metro Billboards or (y) the total square footage of sign area
of the Existing Metro Billboards. No later than forty-five (45) days
following the issuance of the Building Final for the third Digital Sign,
Metro must cause the removal of the then remaining Existing Metro
Billboards. If Metro has commenced the construction of a Digital Sign,
the removal obligation for the applicable Existing Metro Billboards under
this Section 3.1.2 will survive the expiration or earlier termination of this
Agreement until all applicable Existing Metro Billboards corresponding to
the permitted construction of such Digital Sign have been removed.
3.1.3 Waiver of Compensation for Removal of Existing Metro Billboards.
Metro waives and releases all claims for compensation Metro has or may
have in the future against City or City's officials, officers, employees and
agents that are related to or arise from Metro's removal of the Existing
Metro Billboards. This waiver and release includes any claims made or
8
LA #4838-83744530 v12
arising under the California Government Claims Act (California '
Government Code §§ 810 and following), the Outdoor Advertising Act,
the California Constitution, the federal Highway Beautification Act of
1965 (23 U.S.C. § 131), or the United States Constitution.
3.1.4 Release of Claims for Removal of Existing Metro Billboards. Metro
unconditionally and forever releases and discharges City and City's elected
officials, officers, employees, and agents from all liabilities, claims,
demands, damages, and costs (including attorneys' fees and litigation costs
through final resolution on appeal) that in any way arise from, or are
connected with, Metro's removal of the Existing Metro Billboards. This
release and discharge covers all claims, rights, liabilities, demands,
obligations, duties, promises, costs, expenses, damages, and other losses
or rights of any kind, past, present, and future, whatever the theory of
recovery, and whether known or unknown, patent or latent, suspected or
unsuspected, fixed or contingent, or matured or umnatured. Metro hereby
waives all rights it has or may have in the future under California Civil
Code section 1542, which provides as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
or her favor at the time of executing the release,
which if known by him or her must have materially ,
affected his or her settlement with the debtor."
3.1.5 Indemnity for Claims Arising from the Removal of Existing Metro
Billboards. In addition to the indemnity provided in Section 6.12, Metro
agrees to indemnify, defend (upon City's written request), and hold
harmless City and City's officials, officers, employees, and agents from all
liabilities, claims, demands, damages, and costs (including attorneys' fees
and litigation costs through final resolution on appeal) (collectively,
"claims") that in any way arise from, or are connected with the acts or
omissions of Metro or Metro's officers, employees, or agents in removing
or causing the removal of the Existing Metro Billboards
3.1.6 Additional Obligations of Metro as Consideration for this Agreement.
As additional consideration for this Agreement, Metro will also provide
public benefits including, but not limited to, the specific public benefits
listed below:
3.1.6.1 Development Fee. Metro must pay or require the Licensee to
pay a percentage fee directly to City from the Digital Signs in
the amount and manner provided in the Leases, which amount
will not be less than 65% of the "Net Revenue" as defined in the
Leases ("Development Fee's.
LA #4838.83744530 v12
3.1.6.2 Audit of Revenue. City will have the right to audit the "Gross
' Revenue" and "Net Revenue" from the Digital Signs in the
manner provided in the applicable Leases.
3.1.6.3 City Promotional Message Benefits. As a public benefit
during the entire term of the applicable Leases, Metro will
provide as part of the consideration for this Agreement to City,
at no cost to City, up to 6.25% of the advertising time on each
Digital Sign per month for City to promote the City of Santa
Clarita, any municipal service provided by City to its residents,
or public events sponsored by City ("City Promotional
Messages"). To the extent that advertising time is unsold and
available, Metro agrees to allocate, at no cost to City, up to
6.25% additional advertising time on each Digital Sign per
month. As set forth above, the parties intend that the City will
have at least 6.25% of the total advertising time on each Digital
Sign per month available for City Promotional Messages and
may have up to 12.5% of the total advertising time each month
if space is available. A pro -rata share of the time allotted for
City promotional messages shall be distributed throughout the
day, including prime time. All City Promotional Message
content will be provided by City at its sole cost and expense to
Metro. City will endeavor to provide its message content at
least three months in advance of the requested date for display
of the content to ensure the timely display of the message, but
Metro will use reasonable commercial efforts to accommodate
City Promotional Message requests whenever the content is
provided. All City Promotional Messages must be consistent
with the format and such specifications and protocols as may be
provided by Metro from time to time. Metro will have . no
liability whatsoever for the content, art or copy of any City
Promotional Message provided by or on behalf of City and such
content, art and copy will, at all times, be subject to reasonable
approval by Metro.
3.1.6.4 City Emergency Message Benefits. As a public benefit during
the entire Term of this Agreement and the applicable Leases,
City emergency messaging will be permitted on the Digital
Signs during emergencies that involve the need to reach the
traveling public at -large. For purposes of this Agreement, an
"emergency" means a bona -fide emergency involving the public
health, safety and welfare as reasonably determined by the City
Manager of City, Captain or Commander of Santa Clarita
Valley Sheriffs Station or the Fire Chief of the Los Angeles
County Fire Department, or their designees, acting in their
' official capacities. An "emergency" does not include traffic
updates, routine traffic advisories or road ,advisories for
previously scheduled maintenance, repair or improvement
work. Metro will have no obligation to display any emergency
10
LA #4838-8374-4530 v12
messaging without interruption for longer than one (1) hour
'
(and intermittently thereafter) for a particular emergency.
3.1.6.5 Residential View Preservation Condition. Prior to issuance
of the building permit for the Digital Sign proposed for the
Norland Road Digital Sign Site, Metro must demonstrate to the
satisfaction of the City Council or its designee that the Digital
Sign will not be visible from existing homes in the residential
neighborhood immediately to the north or south of the Antelope
Valley Freeway (SR -14) by utilizing one or more of the
following measures: (1) reduction in height of the Digital Sign;
(2) planting of Ficus Nitida or similar trees to be maintained by
Metro for the duration of the Lease of the Digital Sign Site; or
(3) such other reasonable and effective measures as City may
require. In the event that the Digital Sign becomes visible to the
existing homes immediately north or south of the Digital Sign
after the building permit is issued, the City may impose
additional measures to ensure that the Digital Sign is not visible
from these existing homes, up to and including, the removal and
relocation of the Digital Sign. This condition of approval will
also be incorporated into the Lease for the Norland Road Digital
Sign Site.
3.2 City Approvals and Assurances for Project Development and Operation.
'
3.2.1 Approval of Leases for the Digital Sign Sites. City hereby approves the
Leases for the Digital Sign Sites and the construction and development of
the Digital Signs as provided in the Leases as set forth in the attached
Exhibit D.
3.2.2 Approval of Digital Signs. City hereby approves the Digital Signs to be
constructed on the City Digital Sites in accordance with the site plans and
specifications set forth in the Leases and operated in accordance with this
Agreement and the applicable Leases, which are attached as part of
Exhibit D.
3.2.3 Entitlement to Develop. Pursuant to this Agreement, Metro has the
vested right to develop the Project subject to the terns and conditions of
this Agreement, including but not limited to the Conditions of Approval,
the Applicable Rules, Project Approvals and the Reserved Powers for a
period of five (5) years from the Effective Date (the "Development
Period'. Metro's vested rights under this Agreement also include,
without limitation, the right to remodel, renovate, rehabilitate, rebuild or
replace the Project or any portion thereof throughout the applicable Term
in the event of damage, destruction or improvements to technology legally
required to be incorporated on the Digital Signs or any portion thereof, '
subject to the Applicable Rules, Project Approvals and Reserved Powers.
11
LA #4838-8374-3530 Y12
3.2.4 Consistency in Applicable Rules. Based upon all information made
available to the City up to or concurrently with the execution of this
Agreement, the City finds and certifies that no Applicable Rules prohibit
or prevent the full completion of the Project in accordance with the uses,
intensities, densities, designs and heights, permitted demolition, and other
development entitlements incorporated and agreed to herein and in the
Project Approvals.
3.2.5 Changes in Applicable Rules.
3.2.5.1 Nonapplication of Changes in Applicable Rules. Except as
provided in Sections 3.2.5.2 and 3.2.5.3 below, any change in,
or addition to, the Applicable Rules, including, without
limitation, any change in any applicable general or specific
plan, zoning or building regulation, adopted or becoming
effective after the Effective Date of this Agreement, including,
without limitation, any such change by means of ordinance,
City Charter amendment, initiative, resolution, motion, policy,
order or moratorium, initiated or instituted for any reason
whatsoever and adopted by the City, City Council, Planning
Commission or any other Board, Commission, Department or
Agency of the 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 Digital Sign Sites
and/or the Project and which would conflict in any way with the
Applicable Rules, Project Approvals, or this Agreement, will
not be applied to the Digital Sign Sites or the Project unless
such changes represent an exercise of the City's Reserved
Powers, or are otherwise agreed to in this Agreement.
Notwithstanding the foregoing, Metro may, in its sole
discretion, consent to the application to the Project of any
change in the Applicable Rules.
3.2.5.2 Changes in Uniform Codes. Notwithstanding any provision of
this Agreement to the contrary, development of the Project will
be subject to changes which may occur from time to time in the
Uniform Codes, as such Codes are adopted by the City of Santa
Clarita. In addition, development of the Project will be subject
to changes occurring from time to time in the Municipal Code
regarding the construction, engineering and design standards for
both public and private improvements provided that these
changes are (1) necessary to the health and safety of the
residents of the City, and (2) are generally applicable on a
Citywide basis (except in the event of natural disasters found by
the City Council, such as floods, earthquakes and similar
disasters).
12
LA #4838-8374A530 v12
3.2.5.3 Changes Mandated by Federal or State Law. This ,
Agreement will not preclude the application to the Project of
changes in, or additions to, the Applicable Rules, including
rules, regulations, ordinances and official policies, to the extent
that such changes or additions are mandated to be applied to
developments such as this Project by state or federal
regulations, pursuant to the Reserved Powers. In the event state
or federal laws or regulations prevent or preclude compliance
with one or more provisions of this Agreement, such provisions
will be modified or suspended as may be necessary to comply
with such state or federal laws or regulations.
3.2.6 Subsequent Development Review. The City will not require Metro to
obtain any approvals or permits for the development of the Project in
accordance with this Agreement other than those permits or approvals
which are required by the Applicable Rules, the Reserved Powers and/or
the Project Approvals. However, any subsequent Discretionary Action
initiated by Metro which substantially changes the entitlements allowed
under the Project Approvals, will be subject to the rules, regulations,
ordinances and official policies of the City then in effect. The Parties
agree that this Agreement does not modify, alter or change the City's
obligations pursuant to CEQA and acknowledge that future Discretionary
Actions may require additional environmental review pursuant to CEQA. '
As determined by the City, in the event that additional environmental
review is required by CEQA, the City agrees to utilize tiered
environmental documents to the fullest extent permitted by law, and as
provided in California Public Resources Code Sections 21093 and 21094.
3.2.7 Effective Development Standards. The City agrees that it is bound to
permit the uses on the Digital Sign Sites that are permitted by this
Agreement and the Project Approvals, insofar as this Agreement and the
Project Approvals so provide. The City hereby agrees that it will not
unreasonably withhold or unreasonably condition any Discretionary
Action which must be issued by the City in order for the Project to
proceed, provided that Metro reasonably and satisfactorily complies with
C applicable City standard procedures for processing applications for
Discretionary Actions.
3.2.8 Moratoria or Interim Control Ordinances. In the event an ordinance,
resolution, policy, or other measure is enacted, whether by action of the
City, by initiative, or otherwise, which relates directly or indirectly to the
Project or to the rate, amount, timing, sequencing, or phasing of the
development or construction of the Project on all or any part of the Digital
Sign Sites or the implementation of the Mitigation Measures adopted in
connection with approval of the Project, City agrees that such ordinance, '
resolution or other measure will not apply to the Digital Sign Sites, the
13
LA #48384374-4530 02
Project or this Agreement, unless such changes are adopted pursuant to the
Reserved Powers or other applicable provisions of this Agreement.
3.2.9 Special Taxes and Assessments. Metro will not be obligated to support
infrastructure financing undertaken by the City or others. Metro will have
the right, to the extent permitted by law, to protest, oppose and vote
against any and all special taxes, assessments, levies, charges and/or fees
imposed with respect to any assessment districts, Mello -Roos or
community facilities districts, maintenance districts or other similar
districts.
3.2.10 Impact Fees. Impact Fees imposed by the City with respect to the Project
will be only those Impact Fees in full force and effect as of the Effective
Date, the amounts of which are subject to ongoing annual increases which
will be calculated at time of payment. The installation of improvements
identified in the Mitigation Measures and/or the Conditions of Approval
implemented in connection with the Project will be accepted by the City in
lieu of otherwise applicable Impact Fees. This Agreement does not limit
any impact fees, linkage fees, exaction, assessments or fair share charges
or other similar fees or charges imposed by other governmental entities
and which the City is required to collect or assess pursuant to applicable
law (e.g., school district impact fees pursuant to Government Code
Section 65995).
3.2.11 Processing Fees. Metro must pay all Processing Fees for Ministerial
Permits and Approvals.
3.2.12 Timeframes and Staffing for Processing and Review. The City agrees
that expeditious processing of Ministerial Permits and Approvals and
Discretionary Actions, if any, and any other approvals or actions required
for the Project are critical to the implementation of the Project. In
recognition of the importance of timely processing and review of
Ministerial Permits and Approvals, the City agrees to work with Metro to
establish reasonable time frames for processing and reviewing such
Ministerial Permits and Approvals and to comply with any timeframes
established in the Project Approvals. Furthermore, the City will expedite
to the extent reasonably possible all requests by Metro for Discretionary
Actions requested for the Project, if any.
3.2.13 Termination of Project Approvals upon Expiration of Term or
Abandonment of Project. Upon the earlier to occur of (a) expiration of
the Term or (b) City's receipt of notice from Metro that it is voluntarily
abandoning further pursuit of the Project, to the extent that Metro has
failed to cause the commencement of construction of any Digital Sign
under a City -issued building permit, then all Project Approvals with
respect to such unconstructed Digital Sign will automatically terminate,
LA #4838-8374-4530 v12
14
including the underlying Lease of the Digital Sign Site, unless the Term is I extended by mutual agreement.
3.3 Local Business Marketing Program. Upon issuance of the building permit for
the first Digital Sign, City will organize and administer a program to assist local
businesses in developing and enhancing their advertising and marketing efforts
within the community. For the purposes of this program, `local business" means
a business located within the corporate limits of City that is independently owned
or a locally -owned franchise. City and Metro each agree to contribute $15,000
annually towards the costs of this local business marketing program, which will
be offered for a period of two years . The Parties further acknowledge and agree
that such contributions may be paid from each Party's share of Net Revenue as
defined under the Lease for the first Digital Sign to be constructed and operated.
4. ANNUAL REVIEW.
4.1 Annual Review. During the Term of this Agreement, the City will have the right
to review annually good faith compliance with this Agreement by Metro, or its
successors, transferees, and/or assignees, as the case may be. Such periodic
review will be limited in scope to good faith compliance with the provisions of
this Agreement and Metro will have the burden of demonstrating such good faith
compliance.
4.2 Pre -Determination Procedure. Metro's submission of evidence of compliance
with this Agreement, in a form which the Parties will reasonably agree to, will be
made in writing and transmitted to the Community Development Director not
later than sixty (60) days prior to the yearly anniversary of the Effective Date.
The public will be afforded an opportunity to submit written comments regarding
compliance to the Community Development Director at least sixty (60) days prior
to the yearly anniversary of the Effective Date. All such public comments and
final staff reports will, upon receipt by the City, be made available as soon as
possible to Metro.
4.3 Director's Determination. In any year where City performs the annual review
per Section 4.1, on or before the yearly anniversary of the Effective Date of the
Agreement, the Community Development Director will make a determination
regarding whether or not Metro has complied in good faith with the provisions
and conditions of this Agreement. This determination will be made in writing
with reasonable specificity, and a copy of the determination will be provided to
the City Council and to Metro in the manner prescribed in Section 6.13. Copies
of the determination will also be made available to members of the public. If the
City Council desires to review the Director's determination, then a public hearing
will be scheduled for such review.
4.4 Appeal by Metro or Council Initiated Review. In the event the Community
Development Director makes a finding and determination of non-compliance, ,
Metro will be entitled to appeal that determination to the City Council. After a
15
LA #4838-8374-0530 v12
public hearing on the appeal or on a City Council initiated review, the City
Council will make written findings and determinations, on the basis of substantial
evidence, whether or not Metro has complied in good faith with the provisions
and conditions of this Agreement.
4.5 Period to Cure Non -Compliance. If, as a result of this Annual Review
procedure, it is found and determined by the Community Development Director
or the City Council, on appeal by Metro or on a City Council initiated review, that
Metro has not complied in good faith with the provisions and conditions of this
Agreement, the City will submit to Metro, by registered or certified mail, return
receipt requested, a written notice of non-compliance in the manner prescribed in
Section 6.13, stating with specificity those obligations of Metro which have not
been performed. Upon receipt of the notice of non-compliance, Metro must
promptly commence to cure the identified items of non-compliance at the earliest
reasonable time after receipt of the notice of non-compliance and must complete
the cure of such items of non-compliance not later than sixty (60) days after
receipt of the notice of non-compliance, or such longer period as is reasonably
necessary to remedy such items of non-compliance, provided that Metro must
continuously and diligently pursue such remedy at all times until such item of
non-compliance is cured.
4.6 Failure to Cure -- Termination or Modification of Agreement. If the
Community Development Director determines that Metro, or its successors,
transferees, and/or assignees, as the case may be, has not cured or commenced to
cure an item of non-compliance pursuant to this Section, and that the City intends
to terminate or modify this Agreement or those transferred or assigned rights and
obligations, as the case may be, the Community Development Director will then
set a date for a public hearing before the City Council in accordance with the
notice and hearing requirements of Government Code Sections 65867 and 65868.
If after such public hearing, the City Council finds and determines, on the basis of
substantial evidence, that Metro, or its successors, transferees, and/or assignees,
as the case may be, has not brought the Project into compliance pursuant to this
Section, the City may terminate or modify this Agreement, or those transferred or
assigned rights and obligations, as the case may be.
4.7 Termination or Modification of Agreement. The City or Metro may terminate
or modify this Agreement, or those transferred or assigned rights and obligations,
as the case may be, after a finding or determination of noncompliance by the City
Council. There shall be no modifications of this Agreement unless the City
Council acts pursuant to Government Code Sections 65867.5 and 65868.
5. DEFAULT PROVISIONS
5.1 Default by Metro.
5.1.1 Default. In the event Metro does not perform its obligations under this
Agreement in a timely manner, the City will have all rights and remedies
16
LA #4838-8374-4530 v12
provided by this Agreement, which include compelling the specific '
performance of the obligations of Metro under this Agreement, or
modification or termination of this Agreement, provided that the City has
first complied with the procedure in Section 5.1.2.
5.1.2 Notice of Default. City must first submit to Metro a written notice of
default stating with specificity those obligations which have not been
performed. Upon receipt of the notice of default, Metro must promptly
commence to cure the identified default(s) at the earliest reasonable time
after receipt of the notice of default and must complete the cure of such
default(s) not later than sixty (60) days after receipt of the notice of
default, or such longer period as is reasonably necessary to remedy such
default(s), provided that Metro must continuously and diligently pursue
such remedy at all times until such default(s) is cured. In the event that
Metro has assigned any portion of its interests pursuant to Section 6.8,
Metro will have the right but not the obligation to cure any defaults of any
assignee or successor -in -interest. Further, any assignee or successor -in -
interest will have the right but not the obligation to cure any defaults of
Metro. In the case of a dispute as to whether Metro (or its respective
assignee or successor -in -interest) has cured the default, the Parties may
submit the matter to dispute resolution pursuant to Section 6.4.
5.1.3 Failure to Cure Default Procedures. If after the cure period has elapsed, '
the Community Development Director finds and determines that Metro or
its successors, transferees and/or assignees, as the case may be, remains in
default and that the City intends to terminate or modify this Agreement, or
those transferred or assigned rights and obligations, as the case may be,
the Director must make a report to the City Council and then set a public
hearing before the Council in accordance with the notice and hearing
requirements of Government Code Sections 65867 and 65868. If after
public hearing, the City Council fords and determines, on the basis of
substantial evidence, that Metro or its successors, transferees and/or
assigns, as the case may be, has not cured such default pursuant to this
Section, the City may terminate or modify this Agreement, or those
transferred or assigned rights and obligations, as the case may be.
5.1.4 Termination or Modification of Agreement. The City or Metro may
terminate or modify this Agreement, or those transferred or assigned rights
and obligations, as the case may be, after such final determination of the
City Council. There may be no modifications of this Agreement unless
the City Council acts pursuant to Government Code Sections 65867.5 and
65868.
5.2 Default by City.
5.2.1 Default. In the event the City does not accept, process, or render a I decision on necessary development permits, entitlements, or other land use
17
LA #4838-8374-0530 v 1
or building permits or approvals for the Project as provided in this
Agreement upon compliance with the requirements thereof, or as
otherwise agreed to by the Parties, or the City otherwise defaults under the
provisions of this Agreement, Metro will have all rights and remedies
provided herein or by applicable law, which will include compelling the
specific performance of the City's obligations under this Agreement,
provided that Metro or its transferee or assignee, as the case may be, has
first complied with the procedures in Section 5.2.2. No part of this
Agreement may be deemed to abrogate or limit any immunities or
defenses the City may otherwise have with respect to any claims.
5.2.2 Notice of Default. Metro must first submit to the City a written notice of
default stating with specificity those obligations which have not been
performed. Upon receipt of the notice of default, the City must promptly
commence to cure the identified default(s) at the earliest reasonable time
after receipt of the notice of default and must complete the cure of such
default(s) not later than sixty (60) days after receipt of the notice of
default, or such longer period as is reasonably necessary to remedy such
default(s), provided that the City must continuously and diligently pursue
such remedy at all times until such default(s) is cured. In the case of a
dispute as to whether the City has cured the default, the Parties must
submit the matter to dispute resolution pursuant to Section 6.4 of this
Agreement.
5.3 No Monetary Damages. It is acknowledged by the Parties that the City and
Metro would not have entered into this Agreement if either were liable in
monetary damages under or with respect to this Agreement or the application
thereof except as provided below. Therefore, the Parties agree that the Parties
will not be liable in monetary damages and the Parties covenant not to sue for or
claim any monetary damages for the breach of any provision of this Agreement
except for Sections 3.1.5.3.1.6.1, and 3.2.11 above and Section 6.12 below.
6. GENERAL PROVISIONS.
6.1 Effective Date. This Agreement will be effective as set forth in Section 1.13
above.
6.2 Term. The Term of this Agreement will commence on the Effective Date and
will extend for a period of five (5) years after the Effective Date. Following the
expiration of this Term or earlier termination, this Agreement will terminate and
be of no further force and effect; provided, however, that this termination shall
not affect any right or duty arising from entitlements or approvals, including the
Project Approvals on the Property, approved concurrently with, or subsequent to,
the Effective Date of this Agreement. The Term of this Agreement will
automatically be extended for the period of time of any actual delay resulting
from any enactments pursuant to the Reserved Powers or moratoria, or from legal
actions, administrative proceedings such as appeals or delays of ministerial
18
LA #4838-83744530 Y12
actions, or appeals which enjoin performance under this Agreement or act to stay '
performance under this Agreement (other than bankruptcy or similar procedures),
or for the period of time during which a third -party lawsuit or litigation (including
appeals) relating to the Project or the Project Approvals, including this
Agreement, has been filed and is pending in a court of competent jurisdiction.
6.3 Enforced Delay; Extension of Time of Performance. In addition to specific
provisions of this Agreement, whenever a period of time, including a reasonable
period of time, is designated within which any Party hereto is required to do or
complete any act, matter or thing, the time for the doing or completion thereof
will be extended by a period of time equal to the number of days during which
such Parry is actually prevented from, or is unreasonably interfered with, the
doing or completion of such act, matter or thing because of causes beyond the
reasonable control of the Party to be excused, including: war; insurrection; riots;
floods; earthquakes; fires; casualties; acts of God; unusual economic or
governmental circumstances that limit the ability to generate advertising revenue
from the Digital Signs, litigation and administrative proceedings against the
Project (not including any administrative proceedings contemplated by this
Agreement in the normal course of affairs (such as the Annual Review)); any
approval required by the City (not including any period of time normally expected
for the processing of such approvals in the ordinary course of affairs); any
approval or restrictions imposed or mandated by other governmental entities
(including the California Department of Transportation), other than restrictions or '
regulations imposed by Metro; enactment of conflicting state or federal laws or
regulations; judicial decisions; the exercise of the City's Reserved Powers; or
similar bases for excused performance which is not within the reasonable control
of the Party to be excused (financial inability excepted). This Section will not be
applicable to any proceedings with respect to bankruptcy or receivership initiated
by or on behalf of Metro, or by any third parties against Metro if not dismissed
within ninety (90) days; provided however, this Section will be applicable to
every other provision in this Agreement. If written notice of such delay is given
to any Party within thirty (30) days of the commencement of such delay, an
extension of time for such cause will be granted in writing for the period of the
enforced delay, or longer as may be reasonable or mutually agreed upon.
6.4 Dispute Resolution.
6.4.1 Dispute Resolution Proceedings. The Parties may mutually agree to
dispute resolution proceedings to fairly and expeditiously resolve disputes
or questions of interpretation under this Agreement. These dispute
resolution proceedings may include any manner of dispute resolution
which is mutually agreed upon by the Parties. The results of any dispute
resolution proceeding will not be binding upon the Parties except by
separate agreement approved in writing by both Parties. Any such
separate agreement will be implemented as an amendment to this '
Agreement. In no event will an arbitrator make any findings.
19
LA #4838-8374.4530 v12
6.4.2 Arbitration. Any dispute between the Parties that is mutually agreed to
be resolved by arbitration will be conducted by an arbitrator who must be
a former judge of the Los Angeles County Superior Court or Appellate
Justice of the Second District Court of Appeals or the California Supreme
Court. This arbitrator will be selected by mutual agreement of the Parties.
6.4.3 Arbitration Procedures. Upon appointment of the arbitrator, the matter
will be set for arbitration at a time not less than thirty (30) nor more than
ninety (90) days from the effective date of the appointment of the
arbitrator. The arbitration may be conducted under the procedures set
forth in Code of Civil Procedure Section 638, et seq., or under such other
procedures as are agreeable to the Parties, except that provisions of the
California Code of Civil Procedure pertaining to discovery and the
provisions of the California Evidence Code will be applicable to such
proceeding.
6.4.4 Extension of Term. The Term of this Agreement as set forth in Section
6_2 may be extended by the arbitrator for the period of time in which
progress on the development or the operation of the Project was delayed
by the City if the arbitrator finds that Metro was not in default under this
Agreement.
' 6.5 Legal Action. Subject to the limitations on remedies imposed by this Agreement,
each Party may, in addition to any other rights or remedies, institute legal action
in the Superior Court of Los Angeles County, to cure, correct, or remedy any
default, enforce any covenant or agreement herein, enjoin any threatened or
attempted violation, or enforce by specific performance the obligations and rights
of the Parties hereto. Notwithstanding the above, the City's right to seek specific
performance will not extend to compelling Metro to develop any or all of the
Digital Signs unless Metro has already initiated construction of any such Digital
Sign and specific performance is necessary to complete, demolish or make safe
any particular improvement(s) on the Digital Sign Sites, including the Digital
Signs, under this Agreement and the Project Approvals. Metro will have no
liability (other than the potential termination of this Agreement and payment of all
outstanding Processing Fees) if it elects not to pursue the development of any or
all of the Digital Signs.
6.6 Applicable Law. This Agreement will be construed and enforced in accordance
with the laws of the State of California.
6.7 Amendments. This Agreement may be amended from time to time by mutual
consent in writing of the Parties to this Agreement in accordance with
Government Code Section 65868.
6.8 Assignment. Metro may assign or transfer its rights and obligations under this
Agreement to another entity, upon presentation to the City of an assignment
agreement in a form reasonably acceptable to the City Attorney and the City's
20
LA M938.8374.4530 A2
written approval of such assignment or transfer by the City Manager, which may '
not be unreasonably withheld; provided, however, that Metro remains fully
obligated and liable for all obligations of Metro under this Agreement and the
Leases if the assignee or transferee fails to fulfill any of the assigned or
transferred obligations, duties and covenants arising under this Agreement or the
Leases.
6.9 Covenants. The provisions of this Agreement constitute covenants which run
with the land comprising the Digital Sign Sites for the benefit thereof, and the
burdens and benefits hereof will bind and inure to the benefit of all assignees,
transferees, and successors to the Parties hereto.
6.10 Cooperation and Implementation.
6.10.1 Processing. Upon satisfactory completion by Metro of all required
preliminary actions and payment of appropriate Processing Fees, including
the fee for processing this Agreement, the City will commence and
diligently process all required steps necessary for the implementation of
this Agreement and development of the Digital Sign Sites in accordance
with the terms of this Agreement, subject to the provisions of Section
3.2.12. Metro will, in a timely manner, provide the City with all
documents, plans, fees and other information necessary for the City to
carry out its processing obligations pursuant to this Agreement. '
6.10.2 Other Governmental Permits. Metro will apply in a timely manner for
such other permits and approvals as may be required from other
governmental or quasi -governmental agencies having jurisdiction over the
Project, including, without limitation, the California State Department of
Transportation, as may be required for the development of, or provision of
services to, the Project. The City will cooperate with Metro in its
endeavors to obtain such permits and approvals and will, from time to
time at the request of Metro, attempt with due diligence and in good faith
to enter into binding agreements with any such entity if required as the
owner of the Digital Sign Sites in order to ensure the availability of such
permits and approvals, or services, provided such agreements are
reasonable and not detrimental to the City.
6.10.3 Cooperation in the Event of Legal Challenge. In the event of any legal
action instituted by a third party or other governmental entity or official
challenging the validity of any provision of this Agreement, the Parties
hereby agree to affirmatively cooperate in defending such action.
6.11 Relationship of the Parties. It is understood and agreed by the Parties that the
contractual relationship created between the Parties hereunder is that Metro is an
independent contractor with respect to the City and is not an agent of the City.
Further, the Parties agree and hereby renounce the existence of any form of joint '
venture or partnership between the City and Metro and agree that nothing herein
21
LA 44838-83944530 Y12
or in any document executed in connection herewith will be construed as making
the City a joint venturer or partner with Metro.
6.12 Indemnification and Insurance.
6.12.1 Indemnification by Metro. Metro agrees to indemnify the City, its
officials, officers, employees, and agents against, and will hold and save
them and each of them harmless from, any and all actions, suits, claims,
damages to persons or property, losses, costs, penalties, obligations,
errors, omissions, or liabilities (herein "claims or liabilities") that may be
asserted or claimed by any person, firm, or entity arising out of or in
connection with the work, operations, or activities of Metro, its agents,
employees, subcontractors, or invitees, arising under this Agreement and
in furtherance of the Project, including upon the Digital Sign Sites or
arising from traffic accidents related to the operation of the Digital Signs,
whether or not there is current passive or active negligence on the part of
the City, its officers, agents, or employees and in connection therewith.
Metro will defend any action or actions filed in connection with any of
said claims or liabilities and will pay all costs and expenses, including
legal costs and attorneys' fees incurred in connection therewith. Metro
will promptly pay any judgment rendered against the City, its officials,
' officers, agents, or employees for any such claims or liabilities arising out
of or in connection with the work, operations, or activities of Metro,
hereunder, and Metro agrees to save and hold the City, its officers, agents,
and employees harmless therefrom. In the event the City, its officials,
officers, agents, or employees is made a party to the action or proceeding
filed or prosecuted against for such damages or other claims arising out of
or in connection with operation or activities of Metro hereunder, Metro
agrees to pay the City, its officials, officers, agents, or employees any and
all costs and expenses incurred by the City, its officers, agents, or
employees in such action or proceeding, including by not limited to legal
costs and attorneys' fees.
6.12.1.1 Exceptions. The foregoing indemnity does not include claims
or liabilities arising from the sole or gross negligence or willful
misconduct of the City, its officials, officers, agents, or
employees, or any claims or liabilities arising from the Digital
Sign Sites that occurred prior to the commencement of the
applicable Lease for the Digital Sign Sites between the City and
Metro.
6.12.1.2 Additional Coverage. Without limiting the generality of the
foregoing, said indemnity will include any liability arising by
reason of. (a) any claim made by any assignee, employee,
agent, visitor, invitee, or user of any portion of the Digital Sign
Sites; (b) any accident or other occurrence in or on the Digital
Sign Sites causing injury to any person or property whatsoever;
22
LA #4838-8374.4530 v12
(c) any failure of Metro to comply with performance of all of '
the provisions of this Agreement; or (d) Metro's failure to
prevent any employee or any invitee or any other person from
entering upon or remaining in any place upon the Digital Sign
Sites which is not safe and does not comply with all laws
pertaining thereto as they may now or hereafter exist.
6.12.2 Period of Indemnification. The obligations for indemnity and defense
under this Section 6.12 begin upon the Effective Date and will terminate
upon termination of this Agreement; provided, however, that the duties of
indemnification and defense will continue to apply to all claims or
liabilities arising during that period even if asserted at any time thereafter.
6.12.3 Insurance. For claims or liabilities for personal injury or death., or
property damage relating to this Agreement and the Digital Sign Sites,
Metro represents that it is self-insured and relies on its excess insurance
layers to cover liabilities in excess of its self-insured retention. Metro will
provide the City with reasonable evidence of such coverages and will
promptly notify City in writing of any changes in the amount of its self-
insurance or the availability of sufficient reserves in order to pay any
claims or liabilities up to the stated amount of self-insurance.
6.13 Notices. Any notice or communication required hereunder between the Parties '
must be in writing, and must be given either personally or by registered or
certified mail, return receipt requested. If given by registered or certified mail,
the same will be deemed to have been given and received on the first to occur of
(i) actual receipt by any of the addressees designated below as the Party to whom
notices are to be sent, or (ii) five (5) days after a registered or certified letter
containing such notice, properly addressed, with postage prepaid, is deposited in
the United States mail. If personally delivered, a notice will be deemed to have
been given when delivered to the Party to whom it is addressed. Any Party hereto
may at any time, by giving ten (10) days' written notice to the other Party hereto,
designate any other address in substitution of the address, or any additional
address, to which such notice or communication may be given. Such notices or
communications must be given to the Parties at their addresses set forth below:
To City: City of Santa Clarita
Santa Clarita City Hall
23920 Valencia Boulevard
Suite 300
Santa Clarita, CA 91355
Attn: Community Development Director
To Metro: Los Angeles County Metropolitan Transportation Authority
One Gateway Plaza '
Mail Stop 99-18-4
Los Angeles, CA 90012-2952
23
LA #4838-83744530 v12
Attn: Deputy Executive Officer Real Estate
6.14 Recordation. As provided in Government Code Section 65868.5, this Agreement
must be recorded with the Registrar -Recorder of the County of Los Angeles
within ten (10) days following the Effective Date. If required, Metro will provide
the City Clerk with the fees for such recording prior to or at the time of such
recording should the City Clerk record the Agreement.
6.15 Constructive Notice and Acceptance. Every person who now or hereafter owns
or acquires any right, title, interest in or to any portion of the Digital Sign Sites, is
and will be conclusively deemed to have consented and agreed to every provision
contained herein, whether or not any reference to this Agreement is contained in
the instrument by which such person acquired an interest in the Digital Sign Sites,
6.16 Severability. If any provisions, conditions, or covenants of this Agreement, or
the application thereof to any circumstances of any Party, is held invalid or
unenforceable, the remainder of this Agreement or the application of such
provision, condition, or covenant to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable will not be affected thereby
and will be valid and enforceable to the fullest extent permitted by law.
6.17 Time of the Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
6.18 Waiver. No waiver of any provision of this Agreement will be effective unless in
writing and signed by a duly authorized representative of the Party against whom
enforcement of a waiver is sought and refers expressly to this Section. No waiver
of any right or remedy with respect to any occurrence or event will be deemed a
waiver of any right or remedy with respect to any other occurrence or event.
6.19 No Third Party Beneficiaries. The only Parties to this Agreement are the City
and Metro, and their successors -in -interest, transferees, or assignees, as the case
may be. There are no third party beneficiaries and this Agreement is not intended,
and will not be construed to benefit or be enforceable by any other person
whatsoever.
6.20 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties and there are no oral or written
representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein or therein (or
any such representations, understandings or ancillary covenants, undertakings or
agreements are integrated in this Agreement) and no testimony or evidence of any
such representations, understandings, or covenants will be admissible in any
proceedings of any kind or nature to interpret or determine the provisions or
conditions of this Agreement.
6.21 Legal Advice; Neutral Interpretation; Headings, Table of Contents, and
Index. Each Party acknowledges that it has received independent legal advice
24
LA 44838.8374-4530 V12
from its attorneys with respect to the advisability of executing this Agreement and '
the meaning of the provisions hereof. The provisions of this Agreement will be
construed as to their fair meaning, and not for or against any Parry based upon any
attribution to such Parry as the source of the language in question. The headings,
table of contents, and index used in this Agreement are for the convenience of
reference only and will not be used in construing this Agreement.
6.22 No Discretion to Encumber. Metro may not in any manner, encumber the City
Digital Sign Sites or any portion of the City Digital Sign Sites by any mortgage,
deed of trust or other security device except as may be permitted in the Leases.
6.23 Expedited Processing of Legal Actions. Each Party agrees to cooperate in the
expedited processing of any legal action seeking specific performance,
declaratory relief or injunctive relief, to set court dates at the earliest practicable
date(s) and not cause delay in the prosecution/defense of the action, provided such
cooperation will not require any Party to waive any rights.
6.24 Nonliability of City and Metro Officials. No officer, official, member,
employee, attorney, agent, or representatives of City or Metro will be liable for
any amounts due hereunder, and no judgment or execution thereon entered in any
action hereon will be personally enforced against any such officer, official,
member, employee, attorney, agent, or representative.
6.25 No Brokers. Each Party represents and warrants to the other that it has not '
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
attorney's 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
arising out of agreements by the indemnifying party to pay any commission or
finder's fee.
6.26 Counterparts. This Agreement is executed in duplicate originals, each of which
is deemed to be an original.. This Agreement, not counting the Cover Page,
consists of _ pages and (_) Exhibits.
25
LA #4838-83744530 v12
J
IN WITNESS WFIEREOF, the Parties have executed this Agreement as of the date first
written above.
ATTEST:
m
City Clerk
APPROVED AS .TO FORM:
M
City Attorney
LA #4838-8374-4530 Y12
City: CITY OF SANTA CLARITA
L-2
Mayor
LOS ANGELES COUNTY
METROPOLITAN TRANSPORTATION
AUTHORITY
0
[end of signatures],
M
Exhibit A I
Existing Metro Billboards
LA #4838-8374-4530 v12
EXHIBIT A
'Existing LACNfTA Inventory in Santa Clarlas
Allvision 10
Operator
Structures
Faces
Illuminated
Height
Width
Square Feet
1
Clear Channel
1
2
Yes
12
25
600
2
Clear Channel
1
1
Yes
14
48
672
3
Clear Channel
1
2
Yes
12
.25
600
4
CBS
1
- 1 -
No
12
25
300
5
CBS
1.
1
No
12
25
- 300
6
CBS
1
. 2
No
12
25
600
7
Clear Channel
1
2
Yes
12
25
600
- 8
Clear6annel
1
2
Yes
12
25
600
9
Clear Channel
1
1
Yes
12
25
300
30
Clear Channel
1
2
Yes
12
25
600
11 -
Clear Channel
1
2
Yes
12
25
600
12
CBS
1
2
Yes
12
25
600
' 13
CBS
1
2
Yes
12
25
600
14
Clear Channel
1
2
Yes
12
25
600
15
CBS
1
1
No
12
25
300
16
Clear Channel
1
2
Yes
12
25
600
17
Clear Channel
1
2
No
12
- 25
600
18 -
Edwards
1
2-
No
6
12
144
19
Clear Channel
1
2
No
12
25
600
20
Edwards
1
2
No
6
12
144
21
Edwards
- 1
2
No
6
- 12
144
22
Edwards
1
2
No
6
12
144
23
Clear Channel
1
2
Yes
12
25
600
24
CBS
1
1
No
15
10
ISO
25
Clear Channel
1
2
Yes
12
25
600
26
Edwards
1
2
No
6
12
144
27
Edwards
1
2
No
6
12
144
28
Clear Channel
1
2
Yes
12 -
25
- 600
29
CBS
1
2
No
15
30
300
30
CBS
1
2
No
15
10
300
31
Edwards
1
2
No
6
12
144
32
CBS
1
2
Yes
12
25
600
33
Clear Channel
1-
2
Yes
14
48
1344
34
CBS
1..
2
Yes
12
25
600.
35 -
Clear Channel
1
2
Yes
12
25
.600
36
Edwards
1
2
No
'6
12.
144
37
- CBS
1
2
No
12
25
.600
38
Edwards
1
2
No
6
12
144
39
Edwards
1
2
No
'6
12
144
40
Clear Channel
1.
2
Yes
14
48
1344
41
- Edwards
1
2
No
6
12
144-
. 42 -
Edwards
1
2
No
6
12
144
43
CBS
1
2
No
12
25 -
600
44
Edwards
1
2
No
6
12
144
45 -
Clear Channel
1
2
Yes
12
25
600.
46
Edwards
1
2
No
6
12
144
47
Clear Channel
1
2
Yes
12
25
600
48
- Edwards
1
2
No
6
12
144
49
Edwards
1
2
No
6
12
144'
50
.Clear Channel -
1
2
Yes
12
25
600
51
Edwards
1
2
No
6.
12
144
52
Edwards
B
2
- No
6
12
144
53.
CBS
1
2
Yes
12
25
600
54
Edwards
1
2
No
6
12
144
55
Edwards
1
2
No
6
12
144
S6
Unknown
1
2
No
6
10
120
57
Edwards
1
2
No
6
12
144
58
Edwards
1
2
. No
6
12
144
" 59
Edwards
1
2
No
6
12
144
- 60
CBS
1
2
Yes
12
25
600
,. 61
Unknown
1
2
No
6
12
144
62
CBS
1
2
Yes
14
48
1344
25630
Allvision - 4/3/2013 -
zxx�� l ,cY x...,, i s c ' -•>, k^.-�^,.'. r x s.»y�'.>r,.
t^ll�,?F`--
� *
V ,'f S 1✓, '7 a ..N +s'ks r i sot
�Q$ i y r 58L 15 _l • t t fi ��, pY a t w 4S'i�
Y - 1 t g siva
- Sema ❑ar"i'am , l � nx r+
t„w
a>� ^
it
!p r
Coost earth
Exhibit B
Legal Description of the Digital Sign Sites
LA #4838-8374.4530 Y12
EXHIBIT B '.
LEGAL ME `TION .
pgOp )SED LEASE AREA
That portion of land in the Southwest Quarter of Section 13, Township 4 North, Range
15 West, San Bernardino Meridian, in the Uoincorporated Territory of the County of Los
Angeles, State of California, and a portion of Parcel 1, Parcel Map No. 18161, as per map
recorded in Book 215, pages 6 through 9, inclusive of Parcel Maps, both in the Office of
the County Recorder of said County, described as follows:
Commencing at the centerline intersection of Oak Spring: Canyon Road, 60.00 foot wide
and Norland Drive, a private and future street, 60.00 foot wide, both as shown on said
Parcel Map No. 18161, thence, leaving said centerline intersection, along the centerline
of said Norland Drive, North 89' 30' 34" East 907.21 feet, to the TRUE POINT OF
BEGINNINQ
thence, leaving said centerline, North 00 29' 26 West 27.83 feet;
thence, North 89' 30' 34" East 45.75 feet;
thence, South 0' 29'26- East, 33.83 feet;
thence, North 56' 09' 58"14t 80.86 feet;
thence, South 33' 51' 02" East 10.00 feet;.
thence, South. 56' 08' 58" West 87.44 feet;
thence, South 0' 29' 26" East, 12.05 feet, to a point along the southerly right of way of
said Norland Drive;
thence, along said southerly right of way, South 89' 30' 34" West 45.75 feet;
thence, leaving said southerly right of way, North 0' 29' 26" West 30:00 feet, to the
TRUE POINT OF BE.GINNIlVG.
The lease area or Premises described above also includes the right of reasonable access
to the Premises over the adjacent Landlord Property desimbed in .Section 1.1 of the Lease
necessary for the construction, operation, and maintenance of the Digital Sign and
Premises, as well. as for such other uses permitted on the Premises or obligations imposed
on Tenant under the Lease.
Lease Area Description
Area is 3,488.1 Sy. Ft., (0.080 Arres)
CRC 2,746
March 5., 2014
a
EXHIBIT. B
LEGAL ]DESCRIPTION
PSI USED LEASE AREA
That portion of Remsen Street (£ormet3y SaiFemando Road) 60.00 feet wide, as shown
on Tract No. 2703, in the City .of Santa Ciarita, County of Los Angeles, State of
California, as per map recorded in Book 28, pages 20 through 26, inclusive of Maps, in
the Office of the County Recorder of said County, described as follows:
Commencing at the centerline :intersection of said Remsen Street (shown as Remsen
Road) and Sierra Highway, 100,00 foot wide, both as shown on snap recorded in Book
116, pages 96 through 88, inclusive of Records of Survey, in the Office of the County
Recorder of said County, thence, along the centerline of.said Remsen Street, .South 350
42'56" East 866.64 feet, to the TRUE POINT OF BEGIN MG; .
thence, leaving said centerline, North 540 17' 04" East 27.39 feet;
thence, South 35° 42' 56" East, 55.46 feet;
V
thence, South 540 17' 04" West, 57.39 feet, to a point along the southwesterly right of
way of said Remsen Street;
thence, along said souihwesterly.right of way, North 35° 42' 56" West 55.4.6 feet;
thence, leaving said southwesterly right.of-my, NoAb 54017' 04" East 30:00 feet, to the
TRUE POINT OF BEGINNING;
The lease area or Premises .described above also includes the right of reasonable stress'
to the Premises over the adjacent Landlord Properly described in Section 1.1 of the Lease
necessary for the construction, operation. and maintenance .of the Digital Sign and
Premises, as well as for such other uses pmmitted on the Premises or obligations imposed
on Tenant under the Lease.
Lease Area Description
Area is 31182.8 Sq. Ft, (0.073 Acres)
CRC 2747
March 5, 2014
y
..... ._ .... ........ _ ..... ... I .
EXHIBITIB
LEGAL DESCRIPTION
PROPOSED LEASE AREA
That portion of the Rancho San Francisco, in the City of Santa Clarita, County of Los
Angeles, State of California, as shown on the map filed in Book 1, pages 521 and 522, of
Patents, and a portion of Parcel 20, in the Saugus School District, as shown on the map
filed in Book 27, pages 32 through 39, inclusive of Records of Survey, booth in the Office
of the County Recorder of said County, described as follows:
Commencing at the centerline intersection of Tourney Road, 112.00 foot wide and Magic
Mountain Parkway, 140.00 foot wide, both as shown on Parcel Map No. 23349, as per
map. recorded in Book 264, pages 1 through 12, inclusive of Parcel Maps, in the Office of
the County Recorder of said County, thence, leaving said centerline intersection North 0°
13' 46" East 70.00 feet, to a point along the northerly right of way line of said Magic
Mountain Parkway;
thence, westerly along said right of'way line, North 890 46' 14" West 861.62 feet, to the
TRUE POINT OF BEGTNNNG;
thence, continuing westerly along said right of way, North 860 .46' i4^ Nest 55.62 feet;
thence, leaving said right of way, North 38° 12' 33" West. 18.24 feet;
thence, North 0° 13' 46" Last 35.55 feet;
thence, South 890 46'.14" East 66.96 feet;
thence, South 0' 13' 46" Nest 49.83 fee#, to the TRUX POINT 00 B$G7NNINH T.
The lease area or Premises described above also includes the right of reasonable access
to ike Premises over the adjacent Landlord Property described in Section 1.1 of the Lease
ess
necary, for the construction, operation, and ma;ntrnAnce of the Digital Sign and
Premises, as well as for such other uses permitted on the Premises .or obligations imposed
on Tenant under the Lease.
Lease Area Description .
Area is 3,255.6 Sq. Ft, (0;075 Acres)
CRC 2745
March 5, 2014
s
l o'
I
Exhibit C
Depiction of the Digital Sign Sites
LAR4838-8374-0530 v12
.* •jIs
r
�•_
d d
dab
44
1g8g8g80�,,11;;
t
.
ay°a9y� -----
0
s
a
gag
.a
I
d d
dab
44
1g8g8g80�,,11;;
oaH
.
alama+ll �eee'P9."°.$$i�.
um; tinterprisesa®vaiwD - 'TOPOGRAPHIC SURVEY
a r..... ft r.. awn aro r a.m. u .m. WO & =T.Yya.m (.W aPF Fa (on) m -axe v° w.ws m. aoese m
TT_C�1�C.11�I TAl yfjl
�IaM fUMYlICII �lL �Jy�ll �/�,44
muau.xu¢oena wree mawrtlerx� Dena
(r -n
WOYGIYe� It�M� 9R� 1�1fJLYCI�
1YnCI.LMOINYAYOCIIA �
sermo,Y.T9iv.YR,mi.s. �—wwp��.agq �
s.�a..w�RMMw�M.OtnsaY
,msawm�,�ues�OMM�aR
��rM+.�m.anwamw.o—,o.0
o _waw=0 ..sa�wgs,.,m.r
w•s�.�s�venmW .rw���i... �.—ura
��s� wino
LNE
� 2_
2'g'S°69$�'�92�•9E�9v9p4R=� fifi
A
I
I
II
li
Id
1j,32'�`��k4kb¢+'skRb�
8
.g
I
1
—e�alnR�ao�
i \ ! Ha► G liri/ihii /i
\i
I'
�
1 p /•l �1�I /, //////1/
� 111111
li
I
r
i lilit
to
`r
�— _, ��//
I
J�III VIII
'll
1H
`�• f F1;/1.�
'
//, /�//'
�nR
IIr'
t•. .
71
if
l
g
v'�`
2 2 P?mp
x
p 9 pit
e p
a
Z
!""�"`
CFtC Enterprises
IOS(p.
TOPOG MC SRM
]i® x ax x [x6T pM Mp
2M00 Banquet rmeon Hm6 9W4 m ". CWl
tveeaoa Ipn) zn-me rAx (p°q 2"-2=
RAY, S=1➢S
p1�BMpBBB wpmB, m.
Attn Vn AMx Belavxav
•rnc.LL MYOIVaCGem>4N �y
34.^
swercuevcva«mc vrtrcuae mauv
� mo
+mrn wuuwroem\ vwwvAruaw+ec mu
te-vao[uw+`cliC.\•uimw1a.�rta.• V
•mms•.rs�.euva.n.«mm..•.o�......
�wfwri..m �"m �Aeaoim�.a.numma..
w� •r ....gyp. .w�®n.en��.w
wocm•�
4Cm1m.�i �
y
yl0yp ab•[
•n
\
es
• �eRO£AIA
Ih ltl
9fYdl roSi
Yllfl.lJIPJfA.G
Cd MBCm ML WW
IXM�dI'fKC
wcmu anmwaow
momsmer
G9Gtlq RHJ Y
Outdoor Inc
4
061419 a 01N41:
ramwrae
mei M i
�ummn r�rmnlln
M�g$y i
k#O
= 413 SS Y f Gid �1 gSSa p
�i gip$€8p=13 4'
tiI
�dc'ggad- i sAA.
6 q e$a is 3E tls xA F TI rl
I I
I
q
I
lil lll��l
d
p 33 q
Y �0
lilt IIS,
� A11
ffi
oil,
\IIt,
w
>Dalilt
e ®
I 11
+0111
IIIAI
a led I I I I �1 j l
m
1711III 1116111
II I 1111iy
li
OAK R
tx; 9 I eexixxe
erx. xa
(i'
111, II
I'A n
Ilk �`vl
M�g$y i
k#O
= 413 SS Y f Gid �1 gSSa p
�i gip$€8p=13 4'
tiI
�dc'ggad- i sAA.
6 q e$a is 3E tls xA F TI rl
I I
I
q
I
lil lll��l
d
p 33 q
Y �0
lilt IIS,
� A11
oil,
\IIt,
>Dalilt
e ®
I 11
+0111
IIIAI
a led I I I I �1 j l
m
1711III 1116111
II I 1111iy
li
M�g$y i
k#O
= 413 SS Y f Gid �1 gSSa p
�i gip$€8p=13 4'
tiI
�dc'ggad- i sAA.
6 q e$a is 3E tls xA F TI rl
I I
I
a 77daepaFiapsgePiE$^ E 111 01
8
!I I 1
I I
q
s 3
lil lll��l
d
p 33 q
Y �0
ggggg9
oil,
a 77daepaFiapsgePiE$^ E 111 01
8
!I I 1
I I
pll1111
pll 1111
ii 'I
lil lll��l
IP lllj�
111j
1 111
oil,
III I!N t 1j11117
fIIiiiii�
Illrli
a led I I I I �1 j l
m
1711III 1116111
II I 1111iy
.j
d
ux; Enterprises TOPOGRAPHIC SURVEY
zveco xurtml Wps WJ auue eqq &ufe Ntll. ca vweo AILVMON LIC.
=.bemu (NO M- a s envcwv xax, evve vm
Yese eN[ (eep on -an 0117WIxxex Ye.= Y.
ii
I
irrriaelrnonMvxx
:SL T I.L.i.l.I
I � L
rwL
'�tefieMevan.a OI/[MC'6[IOLYp
�� Im9V 'R NW[RfK
w�n�ni .• A '
S: W
116NWNlYJbR1'W
mr.Rwp.�iRw
.MMeRw •mrRr
ro.4-F®w.iNwlrnrwsne.ei
�W p4•r.sep� w�sOVR
• � �s�a•Irvgmr~gRPm
w � v�wn+M�iMrwnarnmrrm��
WT a ww wp PN ®MrY,�mm
Irs.a•wrt.orsmvN.�®..iAMM�vv
�Y> Miwwi�e�Y �e•�YIY
m.rP.rr..R..•Rrn W Oasr.w. W OY. R•u4
0 w�s•wmwO��VlesrwMR
R.R•.Mwwawmwrr•rirvww
W RP•luwwnr• V P•fM vsg4TV.
mYrwa®mm.erwliFm W w.
. WDM. WrwY..r.w•mwM•MlYawww
wew�R�>/ileO•a
Exhibit D I
Project Approvals including the Leases
EXHIBIT D
LA 44836.83744530 v12
CONDITIONS OF APPROVAL
GCL The property shall be developed and maintained in substantial conformance with the
approvals granted by the City. Any modifications shall be subject to further review by
the City.
GC2. The applicant shall comply with all inspection requirements as deemed necessary by the
City of Santa Clarita.
GC3. The applicant, at the time of issuance of permits or other grants of approval, agrees to
develop the property in accordance with City codes and other appropriate ordinances
such as the Building Code, Grading Code, Highway Permit Ordinance, Unified .
Development Code, Electrical Ordinance and Fire Code.
GC4. The applicant must sign and notarize the attached affidavit to confirm acceptance of the
conditions of this grant. The notarized affidavit must then be returned to the Planning
Division before building final.
GC5. Prior to issuance of building permits, the applicant shall comply with all applicable
regulations and fees of affected agencies.
Environmental Services
ESI. All demolition projects regardless of valuation and all new construction projects valuated
greater than $500,000 must comply with the City's Construction and Demolition
Materials (C&D) Recycling Ordinance.
ES2. C&D Materials Recycling Ordinance:
• A Construction and Demolition Materials Management Plan (C&DMMP) must be
prepared and approved by the Environmental Services Division prior to obtaining any
grading or building permits.
• A minimum of 50% of the entire project's inert (dirt, rock, bricks, etc.) waste and 50% of
the remaining C&D waste must be recycled or reused rather than disposing in a landfill.
• A deposit of 3% of the estimated total project cost or $25,000, whichever is less, is
required. The full deposit will be returned to the applicant upon proving that 50% of the
inert and remaining C&D waste was recycled or reused.
ES3. Per the California Green Building Standards Code, 100 percent of trees, stumps, rocks
and associated vegetation and soils resulting primarily from land clearing shall be reused
or recycled.
ES4. All projects within the City not self -hauling their waste materials must use one of the .
City's franchised haulers for temporary and roll -off bin collection services. Please visit
Green.SantaClarita.com for a list of approved haulers.
i, ID
Master Case 13-184
February 25, 2014
Page 2'of 3
Building and Safety
BSI. Detailed construction plans for the billboards shall be submitted to the Building and
Safety Division for plan review and building permit issuance. Supporting documentation,
such as structural calculations shall be included in the plan submittal package.
BS2. Plans submitted for plan review shall show full compliance with the California Building
Codes in effect at the time the plans and building permit application are submitted. The
current California codes are the 2010 California Building Codes. If the application date
for the building permit is after January 1, 2014, the submitted plans shall comply with the
new 2013 California Codes.
BS3. Plans submitted to Building and Safety for plan review shall be 100% complete. Plans
shall be prepared by a licensed Design Professional (architect or engineer).
BS4. Submitted plans .shall be stamped and signed by a California Licensed Architect or
Engineer qualified to design the type of work proposed. '
BSS. The site plan submitted to building and safety shall show all lot lines, easements,
restricted use areas, flood hazard areas, etc. Any structures proposed in an easement shall
obtain written permission from the easement holder(s).
Development Services
EN -1. Prior to any construction (including, but not limited to, drive approaches, sidewalks, curb
and gutter, etc.), trenching or grading within public or private street right-of-way, the
applicant shall obtain encroachment permits from the Development Services Division.
EN2. Prior to building permit, the applicant shall obtain a notarized Letter of Permission for
grading over all easements.
EN3. For SR -14 @ Norland Rd. location: Prior to issuance of building permit, the applicant
shall verify with and acquire any required permits from the Army Corps of Engineers,
California Department of Fish and Wildlife, and the Regional Water Control Board for
any work within each respective agency's jurisdiction. A copy of the permits, or a'
response letter from each agency indicating a permit is not required, shall be submitted to
the City prior to issuance of building permits.
EN4. Prior to building final, all new power lines and overhead cables less than 34 KV for the
project shall be installed underground.
EN5. This project will disturb less than one acre of land. Therefore, the project is subject to the
following minimum construction requirements:
1
1
1 Master Case 13-154
' February 25, 2014
Page 3 of 3
A. Sediments from areas disturbed by construction shall be retained on site, using
structural drainage controls to the maximum extent practicable, and stockpiles of soil
shall be properly contained to minimize sediment transport from the site to streets,
drainage facilities, or adjacent properties via runoff, vehicle tracking, or wind.
B. Construction -related materials, wastes, spills or residues shall be retained on site to
minimize transport from the site to streets, drainage facilities, or adjoining properties
by wind or runoff.
C. Runoff from equipment and vehicle washing shall be contained at construction sites
unless treated to remove sediments and pollutants.
Parks Recreation and Community Services
PRI. The pole position shall beat least 10 feet clear ofall trails and roads.
PR2. The area around the poles shall be kept clear of debris, the area shall be safe for trail
users with anti -climbing measures.
PR3. The applicant shall run an extra conduit at the Norland site for future Parks uses.
PR4. The final construction drawings shall depict the fixture ultimate alignment of Magic
Mountain Boulevard.
-
PLl. All digital billboards shall be equipped with an automatic dimming device preset to limit
brightness to no more than 0.3 foot candles above ambient light levels.
PL2. All digital billboards shall be equipped with mechanical louvers which restrict vertical
light transmission to no more than 45 degrees upward and 60 degrees downward.
PLI Prior to issuance of building permits, the applicant shall submit colored elevations for the
digital billboards which incorporate the color, texture and cladding design as directed by
the City Council.
File: I
LEASE AGREEMENT
BETWEEN
THE CITY OF SANTA CLARITA
AND
LOS ANGELES COUNTY '
METROPOLITAN TRANSPORTATION AUTHORITY
LA #4837-9567-7203 02
7
-J
File:
LEASE AGREEMENT
THIS LEASE AGREEMENT ( "Lease"), is made and entered into as of
, ("Effective Date") by and between the CITY OF
SANTA CLARITA, a California municipal corporation and general law city ("Landlord" or "City")
and the LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, a
public agency existing under the authority of the laws of the State of California ("Tenant" or
"LACMTA"), and is entered into concurrently with that certain "Development Agreement for the
Reduction and Relocation of Billboards" between the parties effective as of , 2014
("Development Agreement").
PART
BASIC LEASE PROVISIONS
1. Description of Premises:
(DIMENSIONS AND LOCATION)
Approximate area:
(SQUARE FOOTAGE AND ACRES) (§1.1)
2. Premises Address:
(ADDRESS AND/OR CROSS STREETS) (§1.1)
3. Commencement Date:
(EFFECTIVE DATE OF AGREEMENT) ( (§1.2)
C
50 years (§1,2)
5. Rent: (§2,1)
6. Use of Premises: (§3.0)
The installation, repair, maintenance, operation, and, if necessary, replacement,
reconstruction, or upgrade of an outdoor advertising structure that has a double -sided
digital display face, with each face having a display area of approximately 672 square
feet as further described and depicted on Exhibit "B" ("Digital Sign").
7. Insurance (See Exhibit "C") (§11.2)
8. Landlord's Address: (§19.16)
City of Santa Clarita
Santa Clarita City Hall
23920 Valencia Boulevard, Suite 300
Santa Clarita, CA 91355
Attn: Community Development Director
LA #4837-9567-7203 v12
-1-
9. Tenant's Address:
Los Angeles County Metropolitan Transportation Authority
One Gateway Plaza - 13th Floor
Los Angeles, CA 90012-2952
Attn: Deputy Executive Officer, Real Estate
With a copy to:
Greg Smith, CEO
All Vision LLC
420 Lexington Ave., Suite 1601
New York, NY 10170
Robert W. Micsak
Managing Director and President
All Vision LLC
5200 S. Syracuse Way, Suite 125
Greenwood Village, CO 80111
(§19.16) '
The foregoing Basic Lease Provisions and the General Lease Provisions set forth in attached
Part II are incorporated into and made part of this Lease.
-2-
LA #4837-9567-7203 02
' IN WITNESS WHEREOF, this Lease Agreement has been duly executed, in duplicate, by the
parties hereto as of the date first above written.
LANDLORD:
CITY OF SANTA CLARITA
By:_
Name:
Title:
TENANT:
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY
Name: Velma C. Marshall
Title: Deputy Executive Officer, Real Estate
-3-
LA #4637-9567-7203 02
INDEX TO LEASE AGREEMENT - PART II
Section
1. PREMISES AND TERM
2. RENT
3. USE OF PREMISES AND OPERATION OF THE DIGITAL SIGN
4. HAZARDOUS MATERIALS
5. ASSUMPTION OF RISK AND WAIVER
6. TAXES
7. MAINTENANCE AND REPAIR
8, ALTERATIONS, LIENS AND SIGNS
9. UTILITIES
10. DAMAGE OR DESTRUCTION
11. INSURANCE AND INDEMNIFICATION
12. LANDLORD'S RIGHT OF ACCESS
13. ASSIGNMENT AND SUBLETTING
14. CONDEMNATION
15. SURRENDER
16. QUIET ENJOYMENT
17. EVENTS OF DEFAULT; LANDLORD'S REMEDIES
18. TENANT'S REMEDIES
19. GENERAL PROVISIONS
Exhibits:
"A" Description and Site Plan of the Premises
"B" Digital Sign Plan
"C" Insurance Requirements for Leases, Licenses and Permits
"D" Permitted Hazardous Materials
"E" Advertising Restrictions
LA #4837-9567-7203 02
Page
1
1
2
4
6
6
6
7
7
7
8
10
10
11
11
12
12
14
14
I
°F" Rent Schedule
-ii-
LA #4837-9567-7203 v12
PART II - GENERAL LEASE PROVISIONS I
1. PREMISES AND TERM
1.1 Lease of Premises. Landlord hereby leases to Tenant, and Tenant
hereby hires from Landlord certain premises ("Premises") described and depicted on the
attached Exhibit "A". The Premises refer to the land shown on the site plan plus all
improvements including the Digital Sign now or hereafter located thereon, if any
(collectively, the "Improvements"). The Premises, adjoining real property of Landlord and
personal property of Landlord located thereon, is collectively referred to as the "Landlord
Property".
1.2 Term. The term of this Lease commences on the "Commencement Date"
specified in Item 3 of the Basic Lease Provisions, and will continue, unless sooner
terminated in accordance with the provisions of this Lease, for the period specified in
Item 4 of the Basic Lease Provisions. The term of this Lease as provided above is
referred to as the "Term". Beginning at least two years prior to the expiration of the
initial Term (i.e., year 48), Landlord and Tenant will review the status of the Lease and
will meet and confer in good faith regarding a potential extension of the Lease and the
applicable terms and conditions of such an extension; provided, however, that neither
party is obligated to agree to any such extension. Tenant hereby expressly recognizes
and agrees that the Premises is located on Landlord Property that may be developed for
public projects and programs, which may be implemented by Landlord or other public or
private entities (collectively, "Projects'), and that Tenant's use of the Premises under this '
Lease is subject to such Projects so long as such Projects do not unreasonably interfere
with Tenant's use of the Premises. Notwithstanding the foregoing, if Tenant has failed to
either (a) cause the commencement of construction of the Digital Sign under a City -
issued building permit by the fifth anniversary of the Commencement Date, or (b) obtain
the final approval from City's building department for the construction of the Digital Sign
within 66 months of the Commencement Date, then this Lease will automatically
terminate unless amended, in Landlord's sole discretion, to allow Tenant additional time
to construct and initiate the operation of the Digital Sign.
1.3 Future Need of Leased Property. In the event Landlord in its reasonable
discretion, determines that it, at any time, or from time to time, requires possession of a
portion of the Premises for a Project, after Landlord reviews and exhausts all other
reasonable options, Tenant must, upon at least 180 days' prior written notice from
Landlord, relocate any Improvements made by Tenant to another portion of the
Premises or the Landlord Property in accordance with Landlord's notice; provided,
however, that no such required relocation will materially diminish the advertising value of
the Digital Sign. The cost of such relocation will be borne by the proponent of the
Project.
1.4 Condition of Premises. The Premises are leased in "AS IS" condition and
any grading, paving or fencing that may be necessary to meet Tenant's needs will be the
sole responsibility of Tenant. Tenant acknowledges that it has inspected and accepts the
Premises in their present condition as suitable for the purpose for which the Premises
are leased. Taking of possession by Tenant will be conclusive to establish that the I Premises are in good and satisfactorycondition when possession is taken. Other than
-1-
LA #4837-9567-7203 v12
Landlord's representation that it owns the Premises, Landlord makes no warranties or
representation as to the suitability of the Premises for Tenant's intended use, including,
without limitation, as to visibility, traffic count or any other factors.
[For Remsen Site Only:]
Notwithstanding any other provision of this Lease, the parties acknowledge based on
that certain "Phase 1 Environmental Site Assessment, Remsen Street and Sierra
Highway, Newhall, California" prepared by Geosyntec consultants dated May 31, 2013
(attached as Exhibit "_") (the "Phase 1 Report"), that the Premises may contain
contamination or Hazardous Materials, as defined in Section 4.1 below, even though no
government regulatory agency has ever confirmed the presence of any such
contamination or Hazardous Materials or required the clean up or remediation of the
Premises. Nevertheless, Landlord agrees to be solely responsible for: (i) any existing
contamination or Hazardous Materials on or about the Premises, and (ii) the existing
condition of the Premises as of the Effective Date, which includes, but is not limited to,
the potential conditions documented in the Phase 1 Report.
2. RENT
2.1 Rent. Tenant agrees to pay as "Rent" to Landlord sixty-five percent
(65%) of the Net Revenue derived from the Digital Sign. The Rent will be payable in
quarterly installments covering the period of the prior three months (i.e., end of March,
June, September, and December). Each quarterly installment for the period will be due
' on or before 30 days following the end of such quarter. See Exhibit "F" (Rent Schedule)
for further details regarding the calculation and payment of the Rent.
2.2 Revenue Report. Tenant will cause to be prepared and submitted to
Landlord with its Rent payment a detailed report of all Gross Revenue collected during
the applicable period from the Digital Sign as well as applicable deductions resulting in
the calculation of the Net Revenue for such period ("Revenue Report"). Tenant or its
licensee must maintain all records related to the calculation of Gross Revenue and Net
Revenue in accordance with generally accepted accounting principles for a minimum
period of three years.
2.3 Au it. Landlord is entitled at any time after its receipt of any Revenue
Report, to examine and audit all the books and records of Tenant or its licensee relating
in any way to the ownership, maintenance and operation of the Digital Sign and any
media displayed on the Digital Sign, including without limitation (i) all payments received
or made with respect to the Premises, (ii) all agreements relating to the Premises, and
(iii) any other records relevant to the determination of Gross Revenue and Net Revenue
under this Lease. Landlord may conduct such audits using its own employees, a
management agent or consultant or an independent accountant. Tenant will provide
Landlord with access to such books and records upon not less than 15 days' prior
written notice, and will make such books and records available at Tenant's offices in the
Los Angeles, California metropolitan area.
If such audit reveals a shortfall in the Landlord's share of the Net Revenue of 10% or
' more, then Tenant must immediately pay to Landlord upon the submission of an invoice
-2-
LA #4837-9567-7203 v12
from the auditor the cost of such audit; otherwise, the cost of the audit will be paid by the I Landlord.
2.4 Additional Consideration. As additional consideration for this Lease, and
excluding the Existing Metro Billboards identified in the Development Agreement,
LACMTA covenants that it will not permit at any time during the term of this Lease, the
erection or operation of any new "off-site sign" as defined in Chapter 17.11 of the Santa
Clarita Municipal Code on any property owned or controlled by LACMTA within the
boundaries of the City of Santa Clarita.
3. USE OF PREMISES AND OPERATION OF THE DIGITAL SIGN
3.1 Outdoor Advertising Use. The Premises may be used only for the
purposes specified in Item 6 of the Basic Lease Provisions and in this section, and for
such other lawful purposes as may be directly incidental thereto. Tenant is responsible
for and must obtain any and all licenses and permits necessary for any such use.
Tenant must comply with all governmental laws, ordinances and regulations applicable
to the use of the Premises and operation of the Digital Sign including, without limitation,
the Outdoor Advertising Act (California Business & Professions Code §5400 and
following) and regulations promulgated in connection therewith (collectively, the "Act").
Without limiting the generality of the foregoing, and subject to Section 8 below, Tenant
must install and construct all physical improvements needed to serve the Premises and
the Digital Sign, which are required by any federal, state or local building code or other
law or regulation applicable to the Premises or the Digital Sign (including, without
limitation, the Act), or are made necessary by the nature of Tenant's use of the ,
Premises. Tenant must promptly comply with all governmental orders and directives in
connection with its use of the Premises. Tenant must protect from damage all
underground and aboveground installations and improvements, such as pipes, fiber
optic lines, and wires, on Landlord Property that may be impacted by any work or any
use of the Premises by Tenant.
3.2 Fees and Charges. Tenant must cause to be paid all costs for any
permits fees, or other charges associated with the use or maintenance of the Premises
by any governmental agency, department, or organization, and all other labor expenses
for the installation or maintenance of any permitted Improvements. All such expenses
will be subject to the applicable cost sharing formula set forth in Exhibit "F" ("Rent
Schedule"). Copies of permits are to be readily available for inspection by Landlord
personnel.
3.3 Advertising. Tenant agrees that it will not display or allow to be displayed
on the Digital Sign any advertising, content or message that is not consistent with the
advertising criteria set forth in Exhibit "E" ("Advertising Restrictions"). Subject to the
provisions of this Section 3 and Exhibit "E", Tenant will otherwise have sole control over
the advertising to be displayed on the Digital Sign and will be solely liable for the content
of such messages.
3.4 Removal of Prohibited Advertising. Tenant must, within 48 hours after
written demand from Landlord, at Tenant's risk and expense, remove any advertising
material or message that is Prohibited Advertising under this Lease. If Tenant fails to '
promptly cause the removal of such advertising, Landlord may (but is not be required to),
-3_
LA #4837-9567-7203 02
' without further process of law, remove the advertising or shut down electric power and/or
telecommunications lines to the Digital Sign or other Improvements. Tenant must
reimburse Landlord's costs of such actions upon demand and will bear the risk of any
damage to the Digital Sign or other Improvements resulting from such actions. Landlord
may exercise such remedies without prejudice to any other remedies it may be entitled
to exercise under this Lease, at law or in equity.
3.5 Local Advertisers. Tenant agrees to ensure that businesses or
organizations located within the City or residents of the City will be able to purchase
advertising on the Digital Sign in such manner and at such rates as offered to
businesses, organizations or persons located or residing outside of the City and that it
will not permit any exclusivity contracts or arrangements with advertisers that would
violate this covenant. In addition, such local businesses, organizations, and residents
will receive a 15% rate discount off of the published annual rate card for the Digital Sign.
For the first two years of operation of the Digital Sign, local businesses, organizations,
and residents will also be able to purchase a basic local advertising package on the Sign
at a cost of $300 for a four-week period, which will provide at least 2052 displays of the
purchased ad during this four-week period. Tenant will use commercially reasonable
efforts to contact each business, organization, and resident that has advertised on an
Existing Metro Billboard (as defined in the Development Agreement) within one year of
the Effective Date regarding this local advertising program prior to the elimination of any
Existing Metro Billboards. Tenant further agrees to work with the Santa Clarita Chamber
of Commerce and the Valley Industrial Association and to make reasonable efforts to
' reach out to all local businesses regarding the various local benefits provided under this
Section 3.5, which efforts may include placing notices in Chamber and Association
publications, sending direct mailers to local businesses to make them aware of the
advertising opportunities on the Digital Sign, and holding informational meetings for local
businesses.
3.6 City Promotional Messages. The parties agree that City may, at no cost
to City, utilize up to 6.25% of the advertising time of the Digital Sign each month to
promote the City of Santa Clarita, any municipal service provided by City to its residents,
or public events sponsored by the City ("City Promotional Messages"). To the extent
that commercial advertising time is unsold and available, the parties further agree to
allocate, at no cost to City, up to 6.25% of additional advertising time on the Digital Sign
each month for City Promotional Messages. As set forth above, the parties intend that
the City will have at least 6.25% of the total advertising time on the Digital Sign per
month available for City Promotional Messages and may have up to 12.5% of the total
advertising time each month if space is available. A pro -rata share of the time allotted
for City promotional messages shall be distributed throughout the day, including prime
time. All City Promotional Message content will be provided by City at its sole cost and
expense. In order to ensure the timely display of each City Promotional Message, City
will endeavor to provide its message content at least three months in advance of the
requested date for display of the content, but Tenant will use reasonable commercial
efforts to accommodate City Promotional Message requests whenever the content is
provided. All City Promotional Messages must be in a format and consistent with such
' specifications and protocols as may be provided by Tenant from time to time. Tenant
will have no liability whatsoever for the content, art or copy of any City Promotional
Message provided by or on behalf of
-4-
LA #4837-9567-7203 02
City and such content, art and copy will, at all times, be subject to reasonable approval I by Tenant.
3.7 Emergency Messages. Landlord also has the right to display emergency
messages on the Digital Sign during emergencies that involve the need to reach the
traveling public at -large. For purposes of this Lease, an "emergency" means a bona -fide
emergency involving the public health, safety and welfare as reasonably determined by
the City Manager of City, the Captain or Commander of the Santa Clarita Valley Police
Station or the Fire Chief of the Los Angeles County Fire Department, or their designees,
acting in their official capacities. An "emergency" does not include traffic updates,
routine traffic advisories or road advisories for previously scheduled maintenance, repair
or improvement work. Landlord may display any emergency messages without
interruption for up to one (1) hour and intermittently thereafter for a particular
emergency.
3.8 LACMTA Transit Messages. The parties agree that LACMTA may
provide transit informational messages and promote the use of LACMTA services and
other regional public transit services ("Transit Messages") on the Digital Sign for up to
6.25% of the advertising time of the Digital Sign each month. To the extent that
advertising time is unsold and available, including any City Promotional Messages (as
set forth in Section 3.6), which will have priority over additional Transit Messages,
LACMTA may also utilize up to an additional 6.25% of the advertising time on the Digital
Sign for Transit Messages each month. As set forth above, the parties intend that the
LACMTA will have at least 6.25% of the total advertising time on the Digital Sign per
month available for Transit Messages and may have up to 12.5% of the total advertising '
time each month if space is available. The time allotted for Transit Messages must
include reasonable exposure during peak travel times between the hours of 7 AM to 10
AM and 4 PM to 7 PM on weekdays. All Transit Message content will be provided by
LACMTA at its sole cost and expense.
3.9 Collocation of Wireless Facilities. SCMC section 17.38.005.D.6 permits,
the collocation of wireless telecommunications facilities on the Digital Sign. If mutually
desired, the parties agree to permit and cause any subtenants or licensees to permit the
collocation of wireless telecommunications facilities on the Digital Sign. City may
approve such facilities in accordance with the applicable provisions of the SCMC;
provided that any such collocated wireless telecommunications facility is erected and
maintained in a manner that does not interfere with the operation of the Digital Sign or
the ability of the Digital Sign to generate revenue from outdoor advertising, All revenues
generated by such collocated wireless telecommunications facilities will not be
considered part of the Gross Revenue generated by the Digital Sign and will be divided
between Landlord and Tenant in the same proportion as Net Revenues, or in such other
manner as the parties may agree. The parties further agree that prior to permitting the
collocation of any wireless telecommunications facilities on the Digital Sign, the parties
will agree upon the allocation of responsibility for the installation and maintenance of the
wireless telecommunications facilities.
[Norland Site Only]
3.10 Residential View Preservation. Prior to issuance of the building '
permit for the Digital Sign, Tenant must demonstrate to the satisfaction of the City
-5
LA #4837-9557-7203 02
' Council or its designee that the Digital Sign will not be visible from existing homes in the
residential neighborhood immediately to the north or south of the Antelope Valley
Freeway (SR -14) by utilizing one or more of the following measures: (1) reduction in
height of the Digital Sign; (2) planting of Ficus Nitida or similar trees to be maintained by
Tenant for the duration of the Lease; or (3) such other reasonable and effective
measures as City may require. In the event that the Digital Sign becomes visible to the
existing homes immediately north or south of the Digital Sign after the building permit is
issued, the City may impose additional measures to ensure that the Digital Sign is not
visible from these existing homes, up to and including, the removal and relocation of the
Digital Sign.
4. HAZARDOUS MATERIALS
4.1 Tenant Hazardous(Toxic Materials Use and Indemnity. Tenant must
operate and maintain the Premises in compliance with all, and may not cause or permit
the Premises to be in violation of any federal, state or local environmental, health and/or
safety related laws, regulations, standards, decisions of the courts, permits or permit
conditions, currently existing or as amended or adopted in the future which are or
become applicable to Tenant or the Premises ("Environmental Laws"). Except for
Hazardous Materials expressly approved by Landlord in writing as shown on Exhibit "D",
Tenant may not cause, or allow any of Tenant's employees, agents, customers, visitors,
invitees, licensees, contractors, assignees, or subtenants (collectively, "Tenant's
Parties") to cause or permit any Hazardous Materials to be brought upon, stored, used,
generated, treated or disposed of on or about the Premises. Any Hazardous Materials
on the site must be stored, used, generated and disposed of in accordance with all
applicable Environmental Laws. As used herein, "Hazardous Materials" means any
chemical, substance or material which is now or becomes in the future listed, defined or
regulated in any manner by any Environmental Law based upon, directly or indirectly, its
properties or effects.
Tenant must indemnify, defend (by counsel acceptable to Landlord) and hold harmless
Landlord and its officials, officers, employees, agents, contractors, successors and
assigns (individually and collectively, "Landlord Indemnitees"), from and against all loss,
liability, claim, damage, costs and expenses (including without limitation, any fines,
penalties, judgments, litigation expenses, attorneys' fees, and consulting, engineering,
and construction fees and expenses) incurred by Landlord Indemnitees as a result of (a)
Tenant's breach of any prohibition or provision of this section or (b) any release of
Hazardous Materials upon or from the Premises or contamination of the Premises or
adjacent property (i) which occurs due to the use and occupancy of the Premises by
Tenant or Tenant's Parties, or (ii) which is made worse due to the act or failure to act of
Tenant or Tenant's Parties.
The foregoing indemnity will be effective regardless of any negligence (whether active,
passive, derivative, joint, concurring or comparative) on the part of Landlord
Indemnitees, unless caused solely by the gross negligence or willful misconduct of
Landlord Indemnitees; will survive termination of this Lease; and is in addition to any
other rights or remedies which Landlord Indemnitees may have under the law or under
this Lease.
6 -
LA #4837-9567-7203 v12
In addition, in the event of any release or contamination of the Premises caused by the '
negligence of Tenant or any of Tenant's Parties, Tenant, at its sole expense, must
promptly take all actions necessary to clean up the affected property (including the
Premises and all affected adjacent property) and to return the affected property to the
condition existing prior to such release or contamination, to the satisfaction of Landlord
and any governmental authorities having jurisdiction over the Premises.
4.2 Landlord Hazardous/Toxic Materials Use and Indemnity. Except for
Hazardous Materials expressly approved by Landlord as shown on Exhibit "D", Landlord
may not cause, or allow any of Landlord's employees, agents, or contractors,
(collectively, "Landlord's Parties") to cause or permit any Hazardous Materials to be
brought upon, stored, used, generated, treated or disposed of on or about the Premises.
Landlord further agrees to comply with all Environmental Laws with respect to its
operations and use of the Landlord Property.
Landlord agrees to indemnify, defend (by counsel acceptable to Tenant) and hold
harmless Tenant and its subsidiaries, and their respective directors, officials, officers,
employees, agents, contractors, successors and assigns (individually and collectively,
"Tenant Indemnitees"), from and against all loss, liability, claim, damage, costs and
expenses (including without limitation, any fines, penalties, judgments, litigation
expenses, attorneys' fees, and consulting, engineering, and construction fees and
expenses) incurred by Tenant Indemnitees as a result of any breach of this section or
any existing condition, contamination or Hazardous Materials, which may be present on
or about the Premises or Landlord Property [including without limitation as disclosed in
the Phase 1 Report — Remsen only], or release of Hazardous Materials upon or from the '
Premises or contamination of the Premises or adjacent property (i) which occurs due to
the use and occupancy of the Premises or Landlord Property by Landlord, or (ii) which is
made worse due to the act or failure to act of Landlord or Landlord's Parties.
The foregoing indemnity will be effective regardless of any negligence (whether active,
passive, derivative, joint, concurring or comparative) on the part of Tenant Indemnitees,
unless caused solely by the gross negligence or willful misconduct of any Tenant
fndemnitees; will survive termination of this Lease; and is in addition to any other rights
or remedies which Tenant Indemnitees may have under the law or under this Lease.
In addition, in the event of any release or contamination of the Premises caused by the
negligence of Landlord or any of Landlord's Parties, Landlord, at its sole expense, must
promptly take all actions necessary to clean up the Premises and to return the Premises
to the condition existing prior to such release or contamination, to the satisfaction of any
governmental authorities having jurisdiction over the Premises.
4.3 Importation of Soil/Fill Dirt. Tenant may not bring upon or use any
imported soil or fill dirt on the Premises in conjunction with any purposes allowed under
this Lease, until it has been laboratory tested by a certified hazardous waste testing
laboratory and the test results have been approved by Landlord.
4.4 Tests and Inspections. Upon reasonable prior notice to Tenant, Landlord
will have the right at any time to inspect the Premises so as to monitor compliance with
this Lease. If, in Landlord's reasonable judgment, any installation on, or use or condition ,
of the Premises directly caused by Tenant may have an adverse effect on the Premises,
-7-
LA #4837-9567-7203 v12
' adjacent property or Landlord's operations, Landlord will be permitted to conduct any
tests or assessments, including but not limited to environmental assessments, of, on or
about the Premises, as it determines to be necessary or useful to evaluate the condition
of the Premises. Tenant must cooperate with Landlord in any tests or inspections
deemed necessary by Landlord.
S. [INTENTIONALLY OMITTED]
6. TAXES
If applicable, Tenant will be liable for all taxes levied or assessed against Tenant's
possessory interest in and to real property, personal property, furniture, fixtures, and
equipment located or placed on the Premises under this Lease, whether owned by the
Tenant, or otherwise. The possessory interest created by the Lease may be subject to
property taxation so that Tenant may be subject to the payment of property taxes levied
on the interest and Tenant also agrees to pay before delinquency any and all
possessory interest taxes due and arising from this Lease. The foregoing statement is
included to comply with California Revenue and Taxation Code Section 107.6.
MAINTENANCE AND REPAIR
Tenant will be responsible for maintaining the Premises and Improvements subject to
Section 10 below. Tenant must keep the Premises and Improvements clean, safe,
sanitary and free and clear of debris, weeds, trash, vegetation, unauthorized vehicle
parking, graffiti and occupancy by transients/homeless persons or individuals. Tenant
further agrees to ensure that the Improvements will not unreasonably impede or interfere
with the use or operation of the Landlord Property. As used herein, "maintain" means,
as applicable, construct, install, paint, service, repair, alter, maintain, reconstruct,
reinstall, replace, upgrade or remove. Subject to Landlord's reasonable consent, Tenant
will be entitled to trim or remove vegetation on the Premises and any adjacent property
owned or controlled by Landlord that obstructs the view of the Digital Sign from adjacent
thoroughfares subject to compliance with City's applicable laws, including its Oak Tree
Ordinance.
At Tenant's option, Tenant must construct a wrought -iron fence or barricade, of a type
approved in writing by Landlord, either (a) around the base of the Digital Sign structure,
or (b) along the boundary lines of the Premises adjoining other property owned by
Landlord.
8. ALTERATIONS, LIENS AND SIGNS
8.1 Alterations. Except for the Improvements including the Digital Sign and
the use of the Premises as described in Section 3, Tenant may make no additional
alterations, additions or improvements to the Premises without obtaining the prior written
consent of Landlord in each instance. Tenant must notify Landlord in writing at least 30
days prior to the commencement of any such work in or about the Premises. If Landlord
consents to the construction of any additional improvements by Tenant, all such
construction work must be carried out in compliance with any and all state and City
rules, regulations and requirements.
LA #4837-8567-7203 A 2
8.2 Liens. Tenant has no authority to create or place any lien or
,
encumbrance of any kind or nature whatsoever upon the interest of Landlord or Tenant
in the Premises for any claim in favor of any person dealing with Tenant, including those
who may furnish materials or perform labor for any construction or repairs. Tenant
covenants and agrees that it will pay or cause to be paid all sums legally due and
payable by it on account of any labor performed or materials furnished in connection with
any work performed by Tenant on the Premises. Tenant must discharge of record by
payment, bonding or otherwise any claim of lien or stop notice filed against the Premises
on account of any labor performed or materials furnished in connection with any work
performed by Tenant on the Premises immediately upon the filing of any claim of lien or
stop notice. Tenant must indemnify and hold Landlord harmless from any and all loss,
cost or expense based on or arising out of asserted claims, liens or stop notice against
the leasehold estate or against the right, title and interest of Landlord in the Premises or
this Lease arising from the act or agreement of Tenant. If Tenant becomes aware of the
placing of a lien, stop notice, or encumbrance against the Premises, Tenant agrees to
give Landlord immediate written notice of the placing of any lien or stop notice or
encumbrance against the Premises. Notwithstanding the above, Tenant may, with
Landlord's reasonable written consent, encumber the Digital Sign and its other permitted
Improvements.
8.3 Signs. Except for the Digital Sign, Tenant may not, erect or install any
other signs, decorations or advertising media of any type which can be viewed from
outside the Premises.
9. UTILITIES '
Tenant must cause to be paid for all water, gas, electrical, heat, light, telephone, sewer
and other utilities and services used on or from the Premises directly to the utility
providing the same. If any utility company requires a license or permit from Landlord to
cross property of Landlord other than the Premises before services will be provided
Landlord may charge Tenant a fee to cover the expense of preparing and processing
each such license or permit. Notwithstanding the above, these expenses will be shared
among Landlord and Tenant as provided in Exhibit "F" ("Rent Schedule").
10. DAMAGE OR DESTRUCTION
10.1 Duty to Repair or Replace Digital Sign. Landlord acknowledges and
agrees that regardless of any changes in the Applicable Rules (as defined in the
Development Agreement), that this Lease will continue in full effect if: (a) the Digital Sign
is damaged or destroyed in whole or part by any cause covered by the All Risk
insurance Tenant is required to maintain under Exhibit "C", or (b) if not covered by such
All Risk insurance, then if the cost to repair the damage is less than or equal to two
times the Gross Revenue for the Digital Sign for the preceding two years. Tenant must
repair or replace the Digital Sign at no cost to Landlord using the insurance proceeds
Tenant receives or is entitled to receive under the required All Risk policy. All costs that
exceed the insurance proceeds, or if not covered by insurance, will be allocated as a
Capital Expense between the parties in accordance with Exhibit F'. Tenant must
promptly apply for, and diligently pursue the issuance of, any permits or approvals it
needs to repair or replace the Digital Sign, and Landlord agrees to promptly process any
required application. Within 30 days after obtaining the necessary permits and '
-9-
LA #4837-9567-7203 02
' approvals, Tenant must cause to begin the work to repair or replace the Digital Sign.
Tenant must cause the work to be completed within 180 days after the work begins. If
the cost to repair any uninsured damage is greater than two times the Gross Revenue
for the Digital Sign for the preceding two years, then Tenant may terminate this Lease
and surrender the Premises in accordance with Section 15.
10.2 Election Not to Repair or Replace Digital Sion. Tenant may also elect not
to repair or replace the Digital Sign if (a) the cost to repair or replace it exceeds 50% of
its fair -market value immediately before it is damaged or destroyed; and (b) the damage
or destruction occurs during the last five (5) years of the Term. If Tenant elects not to
repair or replace the Digital Sign, then Tenant must (a) notify the Landlord in writing of its
election; and (b) use the insurance proceeds Tenant receives for the damage or
destruction to remove the Digital Sign and restore the Premises in accordance with
Section 15. Upon removal of the Digital Sign and the restoration of the Premises, this
Lease will terminate.
11. INSURANCE AND INDEMNIFICATION
11.1 Landlord's Insurance. Landlord may maintain insurance covering the
Premises and Landlord's ownership and operation thereof in such types and amounts as
it deems necessary in its sole discretion. Such insurance must be for the sole benefit of
Landlord and under its sole control. Tenant's insurance policies must provide primary
coverage to Landlord; when any such policy issued to Landlord provides duplicate
coverage or is similar in coverage, Landlord's policy will be excess over Tenant's
' policies.
11.2 Tenant's Insurance Obligations. For claims or liabilities for personal injury
or death, or property damage arising under this Lease, including Tenant's use of the
Premises and the Digital Sign, Tenant represents that it is self-insured and relies on
excess insurance layers to cover liabilities in excess of its self-insured retention. Tenant
will provide Landlord with reasonable evidence of such coverages upon request and will
promptly notify Landlord in writing of any changes in the amount of its self-insurance or
the availability of sufficient reserves in order to pay any claims or liabilities up to the
stated amount of self-insurance. Tenant must require any licensees to maintain in full
force and effect during the Term of this Lease insurance in the amounts and coverages
and issued by an insurer in accordance with the requirements of Exhibit "C". Landlord
will share in the cost of any premiums or assessments for insurance required to be
maintained by Tenant under this Lease as an Operational Expense in the manner
provided in Exhibit "F" of this Lease.
11.3 Tenant Indemnification. Tenant, on behalf of itself and its successors and
assigns, agrees to indemnify, defend (by counsel satisfactory to Landlord), and hold
harmless Landlord, its officials, officers, commissioners, employees, agents, successors
and assigns (individually and collectively, "Landlord indemnitees) to the maximum
extent allowed by law, from and against all loss, liability, claims, demands, suits, liens,
claims of lien, damages (including consequential damages), costs and expenses
(including, without limitation, any fines, penalties, judgments, litigation expenses, and
experts' and attorneys' fees), that are incurred by or asserted against Landlord
Indemnitees arising out of or connected in any manner with (i) the acts or omissions to
act of the Tenant in connection with the Premises or arising from the presence upon or
-10-
LA #4837-9567-7203 v12
performance of activities by Tenant with respect to the use of the Premises; (ii) bodily '
injury to or death of any person (including employees of Landlord Indemnitees) or
damage to or loss of use of property resulting from such acts or omissions of Tenant,
including arising from traffic accidents related to the operation of the Digital Sign; (iii)
non-performance or breach by Tenant of any term or condition of this Lease; (iv) the
character or contents of subject matter displayed from the Digital Sign (except pertaining
to any City Promotional Messages); (v) any actual or alleged infringement of any
intellectual property right relating to the Digital Sign or any subject matter displayed on
the Digital Sign (except pertaining to any City Promotional Messages); (vi) any violation
of applicable law by Tenant; and (vii) any legal action or proceeding brought to challenge
the validity of this Lease or any other permit or approval that authorizes the installation
and use of the Digital Sign on the Premises, in each case whether occurring during the
Term of this Lease or thereafter.
As used in this section, "Tenant" includes Tenant and its subsidiaries, and their
respective officials, officers, directors, employees, agents, subtenants, licensees, or
contractors.
The foregoing indemnity will be effective regardless of any negligence (whether active,
passive, derivative, joint, concurring or comparative) on the part of Landlord
Indemnitees, unless caused solely by the gross negligence or willful misconduct of
Landlord Indemnitees; will survive termination of this Lease; and is in addition to any
other rights or remedies which Landlord Indemnitees may have under the law or under
this Lease.
Claims against the Landlord Indemnitees by Tenant may not limit the Tenant's ,
indemnification obligations hereunder in any way, whether or not such claims against
Landlord Indemnitees may result in any limitation on the amount or type of damages,
compensation, or benefits payable by or for Tenant under workers' compensation acts,
disability benefit acts or other employee benefit acts or insurance.
11.4 Landlord Indemnification. Landlord, on behalf of itself and its successors
and assigns, agrees to indemnify, defend (by counsel satisfactory to Tenant), and hold
harmless Tenant, its subsidiaries, and their respective directors, officials, officers,
commissioners, employees, agents, successors and assigns (individually and
collectively, "Tenant Indemnitees") to the maximum extent allowed by law, from and
against all loss, liability, claims, demands, suits, liens, claims of lien, damages (including
consequential damages), costs and expenses (including, without limitation, any fines,
penalties, judgments, litigation expenses, and experts' and attorneys' fees), that are
incurred by or asserted against Tenant Indemnitees arising out of or connected in any
manner with (i) the acts or omissions to act of Landlord in connection with the Premises
or arising from the presence upon or performance of activities by Landlord with respect
to the use of the Premises; (ii) bodily injury to or death of any person (including
employees of Tenant Indemnitees) or damage to or loss of use of property resulting from
such acts or omissions of Landlord; (N) non performance or breach by Landlord of any
term or condition of this Lease; (iv) any violation of applicable law by Landlord; and (v)
any actual or alleged infringement of any First Amendment right relating to Tenant's
compliance with or implementation of Landlord's advertising criteria set forth in Exhibit
„E„
-11-
LA #4837-9567-7203 02
As used in this section, "Landlord" includes Landlord and its officials, officers, directors,
employees, agents, licensees, contractors, or subcontractors.
The foregoing indemnity will be effective regardless of any negligence (whether active,
passive, derivative, joint, concurring or comparative) on the part of Tenant Indemnitees,
unless caused solely by the gross negligence or willful misconduct of Tenant
Indemnitees; will survive termination of this Lease; and is in addition to any other rights
or remedies which Tenant Indemnitees may have under the law or under this Lease.
Claims against the Tenant Indemnitees by Landlord may not limit the Landlord's
indemnification obligations hereunder in any way, whether or not such claims against
Tenant Indemnitees may result in any limitation on the amount or type of damages,
compensation, or benefits payable by or for Landlord under workers' compensation acts,
disability benefit acts or other employee benefit acts or insurance.
12. LANDLORD'S RIGHT OF ACCESS
Tenant will permit Landlord and its agents, at all reasonable times and at any time in
case of emergency, in such manner as to cause as little disturbance to Tenant as
reasonably practicable (a) to enter into and upon the Premises to inspect them or to
protect Landlord's interest therein, (b) to take all necessary materials and equipment
onto the Premises, and perform necessary work thereon, and (c) to perform
environmental testing, monitoring, sampling, digging, drilling and analysis for Hazardous
' Materials on, under or about the Premises.
13. ASSIGNMENT AND SUBLETTING
13.1 Landlord's Consent. Tenant may not assign all or any portion of its
interest in this Lease, whether voluntarily, by operation of law or otherwise, and may not
sublet all or any portion of the Premises, including, but not limited to, sharing them,
permitting another party to occupy them or granting concessions or licenses to another
party, except with the prior written consent of Landlord, which Landlord may withhold in
its reasonable discretion. Subject to Landlord's reasonable discretion, Tenant is also
permitted to assign a portion of its interest in this Lease to Tenant's "Sign Manager" to
construct, develop, implement and operate the Digital Sign. Landlord hereby approves
All Vision, LLC, a Delaware limited liability company, as Tenant's initial Sign Manager.
13.2 Fees. Tenant must pay Landlord's attorneys' fees incurred in evaluating
any proposed assignment or sublease and in documenting Landlord's consent.
13.3 Procedure. Whenever Tenant has obtained an offer to assign any
interest in this Lease or to sublease all or any portion of the Premises, Tenant must
provide to Landlord the name and address of said proposed assignee or sublessee, all
compensation, the proposed use by the proposed assignee or sublessee, the proposed
effective date of the assignment or subletting, and any other business terms which are
material to the offer and which differ from the provisions of this Lease ("Notice of Offer").
Tenant must also provide to Landlord the nature of business, financial statement and
business experience resume for the immediately preceding five years of the proposed
' assignee or sublessee and such other information concerning such proposed assignee
or sublessee as Landlord may require. The foregoing information must be in writing and
-12-
LA #4837-9567-7203 v12
must be received by Landlord no less than 30 days prior to the effective date of the I proposed assignment or sublease.
Within 30 days of receiving a complete Notice of Offer for the proposed assignment or
subletting, Landlord must either notify Tenant that Landlord consents to the proposed
assignment or subletting or withholds its consent for reasons to be specified in the
notice. If Landlord does not provide a notice granting its consent to Tenant within 30
days of receiving a Notice of Offer, Landlord will be deemed to have withheld its consent
to the proposed assignment or subletting, and Landlord's reasons for such action will be
furnished to Tenant upon request.
13.4 Continuing Tenant Obligations. Any subleasing or assignment, even with
the approval of Landlord, will not relieve Tenant from liability for payment of all forms of
Rent and other charges herein provided or from the obligations to keep and be bound by
the terms, conditions and covenants of this Lease.
13.5 Waiver. Default and Consent. The acceptance of Rent from any other
person will not be deemed to be a waiver of any of the provisions of this Lease or a
consent to the assignment or subletting of the Premises. Any assignment or sublease
without Landlord's prior written consent will be voidable, at Landlord's election, and will
constitute a default hereunder. Consent to any assignment or subletting will not be
deemed a consent to any future assignment or subletting.
14. CONDEMNATION
14.1 Total Taking. If the whole or any substantial part of the Premises, as '
determined by Landlord, should be taken or damaged because of the exercise of the
power of eminent domain, whether by condemnation proceedings or otherwise, including
acts or omissions constituting inverse condemnation, or any transfer of the Premises or
portion thereof in avoidance of the exercise of the power of eminent domain (collectively,
a "Taking"), and the Taking would prevent or materially interfere with the use of the
Premises for the purpose for which they are being used, as determined by Landlord, this
Lease will terminate effective when the physical Taking of the Premises occurs.
Notwithstanding the foregoing, any cancellation of this Lease by Landlord as provided in
Section 17.2.1, for any reason, including but not limited to a decision by Landlord to use
the Premises itself or for any public purpose, will not be a "Taking", and no rights will
accrue to Tenant under this Section 14 or otherwise.
14.2 Partial Taking. If part of the Premises is subject to a Taking and this
Lease is not terminated as provided in Section 14.1 above, this Lease will not terminate.
14.3 Condemnation Award. The entire award or compensation for any Taking
of the Premises, or any part thereof, or for diminution in value, will be the property of
Landlord and Tenant hereby assigns its interest in any such award to Landlord. The
parties' interests in any award for the taking of any interest in this Lease or the Digital
Sign, including loss of business and goodwill, will be allocated in proportion to the
parties' respective percentage payments for the Capital Expenses, Entitlement
Expenses and Upgrade Expenses, as applicable, under Exhibit "F" (Rent Schedule) of
this Lease.
-13- '
LA #4837-9567-7203 vi
' 14.4 Exclusive Remedy. This Section 14 will be Tenant's sole and exclusive
remedy in the event of any Taking. Tenant hereby waives the benefits of California
Code of Civil Procedure Section 1265.130.
15. SURRENDER
15.1 Upon termination or expiration of this Lease, and unless otherwise agreed
by Landlord and Tenant, Tenant must, atits sole cost and expense, completely remove
the Digital Sign, including, but not limited to, any structure or facility erected or
maintained as part of or in relation to the Digital Sign, from the premises within 90 days
from receipt of demolition permits from the City for such removal. Removal of the Digital
Sign will be in accordance with any applicable federal, state, or local regulations,
including regulations of the City. Tenant will, at its sole cost and expense, secure any
required permit to remove and properly transport the Digital Sign from the Premises.
15.2 In the event that Tenant fails to timely remove the Digital Sign as provided
in Section 15.1, Landlord may remove the Digital Sign and dispose of same and
exercise its rights below to pay for such removal. Any such removal of the Digital Sign
by Landlord after the termination or expiration of this Agreement will not entitle Tenant to
any damages of any kind whatsoever against Landlord, and Tenant hereby releases the
Landlord, its officers, employees, agents or contractors from any claims or liabilities, for
any action by the Landlord, its officers, employees, agents or contractors in removing the
Digital Sign. Should Landlord be required to exercise its rights under this Section 15.2
due to Tenant's failure to comply with this Section, or should Tenant fail to pay all costs
and expenses of removal of the Digital Sign, Tenant will be liable to Landlord to pay any
reasonable expenses incurred by Landlord in exercising its rights under this Section 15.2
and will pay Landlord such costs within no more than 10 days following Landlord's
delivery of an invoice itemizing such expenses and demanding payment for the same.
16. QUIET ENJOYMENT
Landlord represents and warrants that it has full rights and authority to enter into this
Lease and that Tenant, upon paying the Rent herein set forth and performing its other
covenants and agreements herein set forth, will peaceably and quietly have, hold and
enjoy the Premises for the Term without hindrance or molestation from Landlord, subject
to the terms and provisions of this Lease and all matters of record.
17. EVENTS OF DEFAULT; LANDLORD'S REMEDIES
17.1 Events of Default. Tenant will be deemed to be in default under this
Lease when any of the following occurs:
17.1.1 Tenant fails to pay any installment of the Rent when due, or any
other payment or reimbursement to Landlord required herein when due and such
failure to pay continues for 15 days after written notice to Tenant. This default
does not include the failure to pay any Rent to the extent that funds have not
been timely transferred by the Bank as further described in Exhibit "F".
-14-
LA #4937-9567-7203 vi 2
17.1.2 Tenant does not pay any financial obligations under this Lease '
as they become due and such failure to pay continues for 15 days after written
notice to Tenant.
17.1.3 Tenant admits in writing the inability to pay its obligations or
makes a general assignment for the benefit of creditors; a receiver or trustee (or
similar official) is appointed for all or substantially all of the assets of Tenant; or
the filing of any voluntary petition by Tenant under the Bankruptcy Code, or the
filing of an involuntary petition by Tenant's creditors, which involuntary petition
remains undischarged for a period of 45 days; or the attachment, execution or
other judicial seizure or non judicial seizure of all or substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease or the
Premises, if such attachment or other seizure remains undismissed or
undischarged for a period of 10 business days after the levy thereof.
17.1.4 Tenant vacates all or a substantial portion of the Premises,
whether or not Tenant is in default of the Rent or other charges due under this
Lease.
17.1.5 Tenant fails to comply with any other term, provision or
covenant of this Lease, and does not cure such failure within 30 days after
written notice thereof to Tenant, or if any such failure would reasonably require
more than 30 days to cure, Tenant fails to commence curing with the 30 day
notice period or fails thereafter to promptly, effectively, and continuously proceed
with the cure of such failure. Such notice will be in lieu of and not in addition to '
any notice required under Section 1161 of the California Code of Civil Procedure.
17.2 Landlord's Remedies. Upon the occurrence of any of the events of
default described in Section 17.1, Landlord will have the option to pursue any one or
more of the following remedies as allowed by law:
17.2.1 Termination. Landlord will have the right, at any time, with or
without notice or demand, to terminate this Lease, and at any time thereafter to
recover possession of the Premises or any part thereof and expel and remove
therefrom Tenant and any other person occupying the same, by any lawful
means, and again repossess and enjoy the Premises without prejudice to any of
the remedies that Landlord may have under this Lease, at law or equity by
reason of Tenant's default or of such termination.
17.2.2 Damages upon Termination. Should Landlord terminate this
Lease pursuant to the provisions of Section 17.2.1, Landlord, without limiting any
other remedy, will have all the rights and remedies of a landlord provided by
Section 1951.2 of the California Civil Code, or any successor code section.
17.2.3 Costs. If Landlord incurs any cost or expense occasioned by the
default of Tenant (including but not limited to attorneys' fees and costs), then
Landlord will be entitled to receive such costs together with interest on all funds
Landlord expends at the lesser of ten percent (10%) per annum or the maximum
rate allowed by law, the costs of removing and storing Tenant's or other
occupant's property; the costs of repairing, altering, remodeling or otherwise '
-15-
LA #4637-9567-7203 02
putting the Premises into condition acceptable to a new tenant or tenants; and all
reasonable expenses incurred by Landlord in enforcing or defending Landlord's
right and/or remedies, including attorneys' fees whether or not suit is actually
filed.
17.2.4 Remedies Cumulative. All rights, privileges and remedies of the
parties are cumulative and not alternative or exclusive to the extent permitted by
law except as otherwise provided herein.
17.2.5 Landlord's Cure; Reimbursement by Tenant. If Tenant should
fail to make any payment, take any required action or cure any default hereunder
within the time herein permitted, Landlord, without being under any obligation to
do so and without thereby waiving such default, may make such payment, take
such action and/or remedy such other default for the account of Tenant (and
enter the Premises for such purpose), and thereupon Tenant will be obligated to,
and hereby agrees, to pay Landlord, upon demand, all costs, expenses and
disbursements (including attorneys' fees) incurred by Landlord in making such
payment or taking such remedial action.
18. TENANT'S REMEDIES
18.1 Landlord's Default. Landlord will not be in default under this Lease unless
Landlord fails to perform obligations required of Landlord within 30 days after written
notice is delivered by Tenant to Landlord specifying the obligation which Landlord has
failed to perform; provided, however, that if the nature of Landlord's obligation is such
that more than 30 days are required for performance, then Landlord will not be in default
if Landlord commences performance within such 30 -day period and thereafter diligently
prosecutes the same to completion. All obligations of Landlord hereunder will be
construed as covenants, not conditions.
18.2 Tenant's Remedies. Except as provided below, in the event of any
default by Landlord, Tenant's exclusive remedies will be: (1) an action for specific
performance; (2) or if such remedy cannot make Tenant whole, then an action for actual
damages may be brought; provided, however, that Tenant expressly waives the right to
any cause of action or claim for consequential, economic, or incidental damages,
including lost profits, as well as any cause of action or claim for exemplary or punitive
damages; or (3) to terminate this Lease. Tenant hereby waives the benefit of any laws
granting it the right to perform Landlord's obligation, the right to place a lien upon the
property of Landlord and/or upon Rent due Landlord on account of any Landlord default.
19. GENERAL PROVISIONS
19.1 Time of Essence. Time is of the essence.
19.2 Binding Effect. The terms, provisions and covenants and conditions
contained in this Lease will apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided. If more than one
person executes this Lease as Tenant, then each will be jointly and severally liable for all
obligations of Tenant hereunder.
15 -
LA #4837.9567-7203 v12
19.3 Governing Law and Venue. This Lease has been negotiated and '
executed in the State of California and will be governed by and construed under the laws
of the State of California. In the event of any legal action to enforce or interpret this
Lease, the sole and exclusive venue will be a court of competent jurisdiction located in
Los Angeles County, California, and the parties hereto agree to and do hereby submit to
the jurisdiction of such court, notwithstanding the provisions of California Code of Civil
Procedure section 394.
19.4 Captions. The captions inserted in this Lease are for convenience only
and in no way define, limit or otherwise describe the scope or intent of this Lease, or any
provision hereof, or in any way affect the interpretation of this Lease.
19.5 Certificates. Tenant agrees from time to time within ten (10) days after
request of Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date to which Rent has
been paid, the unexpired Term of this Lease and such other matters pertaining to this
Lease as may be requested by Landlord.
19.6 Entire Agreement: Amendments. This Lease constitutes the entire
understanding and agreement of Landlord and Tenant with respect to the subject matter
of this Lease, and contains all of the covenants and agreements of Landlord and Tenant
with respect thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord or
Tenant, or anyone acting on behalf of Landlord or Tenant, which are not contained
herein, and any prior agreements, promises, negotiations, or representations not '
expressly set forth in this Lease are of no force or effect. This Lease may not be altered,
changed or amended except by an instrument in writing signed and dated by both
parties.
19.7 Waivers. The waiver by either party of any term, covenant, agreement or
condition herein contained will not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant, agreement or condition herein contained, nor
will any custom or practice which may grow up between the parties in the administration
of this Lease be construed to waive or lessen the right of the party to insist upon
performance in strict accordance with all of the provisions of this Lease. The failure of a
party to insist upon strict performance of any of the terms, conditions, and covenants of
this Lease will not be deemed a waiver of any right or remedy that party may have, and
will not be deemed a waiver of any right or remedy for a subsequent breach or default of
the terms, conditions and covenants herein contained. The subsequent acceptance of
Rent hereunder by Landlord will not be deemed to be a waiver of any preceding breach
by Tenant of any provisions, covenant, agreement or condition of this Lease, other than
the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such Rent.
19.8 Dispute Resolution. If a dispute arises out of or relates to any aspect of
this Lease and if the dispute cannot be settled through negotiation, Landlord and Tenant
agree to discuss in good faith the use of mediation or other voluntary dispute resolution
process before resorting to litigation. Such dispute resolution process may include any
manner of dispute resolution that is mutually agreed upon by the parties. The results of '
-17-
LA #4837-9567-7203 v12
' any dispute resolution proceeding will not be binding upon the parties except by
separate agreement approved in writing by both parties.
19.9 Survival of Obligations. All obligations of Tenant hereunder not fully
performed as of the expiration or earlier termination of the Term of this Lease will survive
the expiration or earlier termination of the Term, including without limitation, all payment
obligations with respect to Rent and all obligations concerning the condition of the
Premises.
19.10 Severability. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term of this Lease, then
and in that event, it is the intention of the parties hereto that the remainder of this Lease
will not be affected thereby, and it is also the intention of the parties to this Lease that in
lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable,
there be added as a part of this Lease a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
19.11 Easements. Landlord reserves to itself the right, from time to time, to
grant such easements, rights and dedications that Landlord deems necessary or
desirable, and to cause the recordation of parcel maps, easement agreements and
covenants, conditions and restrictions, so long as such easements, rights, dedications,
maps and covenants, conditions and restrictions do not unreasonably interfere with the
permitted use of the Premises by Tenant. Tenant must sign any of the aforementioned
documents upon request of Landlord and failure to do so will constitute a material
breach of this Lease.
19.12 Performance Under Protest. If at any time a dispute arises as to any
amount or sum of money to be paid by one party to the other under the provisions
hereof, the party against whom the obligation to pay the money is asserted will have the
right to make payment "under protest' and such payment will not be regarded as a
voluntary payment, and there will survive the right on the part of said party to institute
suit for recovery of such sum. If it is adjudged that there was no legal obligation on the
part of said party to pay such sum or any part thereof, said party will be entitled to
recover such sum or so much thereof as it was not legally required to pay under the
provisions of this Lease.
19.13 No Third Party Beneficiaries. This Lease is not intended by either party to
confer any benefit on any third party, including without limitations any broker, finder, or
brokerage firm.
19.14 Effective Date/Nonbinding Offer. Submission of this Lease for
examination or signature by Tenant does not constitute an offer or option for lease, and
it is not effective as a lease or otherwise until executed and delivered by both Landlord
and Tenant. Each individual executing this Lease on behalf of Landlord or Tenant
represents and warrants to the other party that he or she is authorized to do so.
19.15 Recording. The parties agree that a memorandum of this Lease will be
recorded in the office of the Los Angeles County Recorder.
I-18-
LA #4637-9667-7203 v12
19.16 Notices. Each provision of this Lease or of any applicable governmental ,
laws, ordinances, regulations and other requirements with reference to the sending,
mailing or delivery of any notice or the making of any payment by one party to the other
will be deemed to be complied with when and if the following steps are taken:
(a) All Rent and other payments required to be made hereunder will
be payable to the applicable party hereto as follows: to Landlord at the address
set forth in Item 8 of the Basic Lease Provisions, and to Tenant at the address
set forth in Item 9 of the Basic Lease Provisions, or at such other addresses as
the parties may have hereafter specified by written notice. All obligations to pay
Rent and/or any other amounts under the terms of this Lease will not be deemed
satisfied until such Rent and other amounts have been actually received by the
respective party.
(b) Wherever any notice is required or permitted hereunder, such
notice must be in writing. Any notice or document required or permitted to be
delivered hereunder will be deemed to be delivered upon receipt or first
attempted delivery to the correct address by United States mail, postage prepaid,
certified or registered mail, return receipt requested, or by Federal Express or
other reputable overnight delivery service addressed to the parties hereto as
follows: if to Landlord, then at the address specified in Item 8 of the Basic Lease
Provisions; if to Tenant, then at the address specified in Item 9 of the Basic
Lease Provisions; or at such other address (but no more than one (1) address at
a time) as the recipient may theretofore have specified by written notice.
19.17 Water. Oil and Mineral Rights. Landlord reserves all right, title or interest
'
in water, oil, gas or other hydrocarbons, other mineral rights and air and development
rights, together with the sole and exclusive right of Landlord to sell, lease, assign or
otherwise transfer the same, but without any right of Landlord or any such transferee to
enter upon the Premises during the Term except as otherwise provided herein.
19.18 Broker's Fees. The parties acknowledge and agree that Landlord is not
liable for any fee or compensation with respect to any broker, agent or other person in
connection with this transaction, and Tenant agrees to indemnify and hold Landlord
harmless from and against any claims by any other broker, agent or other person
claiming a commission or other form of compensation by virtue of having dealt with
Tenant with regard to this leasing transaction.
19.19 Nondiscrimination. Tenant certifies and agrees that all persons employed
by Tenant and its affiliates, subsidiaries, and holding companies are and must be treated
equally without regard to or because of race, religion, ancestry, national origin, or sex,
and in compliance with all federal and state laws prohibiting discrimination in
employment, including but not limited to the Civil Rights Act of 1964; the Unruh Civil
Rights Act; the Cartwright Act; and the California Fair Employment Practices Act.
19.20 Holding Over. In the event that Tenant does not immediately surrender
the Premises to Landlord on the expiration date of the Term or earlier termination of this
Lease, Tenant will be deemed to be a month to month tenant upon all of the terms and
provisions of this Lease, except that in the event that Tenant continues in possession of
the Premises without the expressed written consent of Landlord, Tenant must pay 100%
-19-
'
LA #4837-9567-7203 02
' of the Gross Revenue generated by the Digital Sign that is received during such hold
over period. If Tenant holds over after the expiration date of the Term or earlier
termination of this Lease, and Landlord desires to regain possession of the Premises,
then Landlord may forthwith re-enter and take possession of the Premises by any legal
process in force in the State of California.
r
19.21 Subordinate Rights. This Agreement is subject and subordinate to the
prior and continuing right and obligation of Landlord, its successors and assigns, to use
Landlord Property or any portion thereof in the exercise of its powers and in the
performance of its duties, including those as a public entity. Accordingly, there is
reserved and retained unto Landlord, its successors, assigns and permittees, the right to
construct, reconstruct, operate, maintain, use and/or relocate existing facilities and
appurtenances in, upon, over, under, across and along Landlord Property or any portion
thereof, and in connection therewith the right to grant and convey to others, rights and
interests to Landlord Property or any portion thereof. This Lease is subject to all
licenses, leases, easements, reservations, restrictions, conditions, covenants,
encumbrances, liens, claims and other matters of title ("title exceptions") which may
affect the Premises or Landlord Property now or hereafter, and this Agreement is
executed and delivered by Landlord without any warranty of title, express or implied, and
the words "grant' or "convey" as used herein will not be construed as a warranty of title
or as a covenant against the existence of any such title exceptions.
LA #4837-9567-7203 v12
-20-
Exhibit "A"
Description and Site Plan of the Premises
LA #4837-9567-7203 v12
Exhibit "B"
Digital Sign Plan
LA84837-9667-7203vt2
Exhibit "C" I
INSURANCE REQUIREMENTS FOR LEASES, LICENSES, AND PERMITS
Tenant must procure and maintain, for the duration of the contract, insurance against claims for injuries to
persons or damages to property which may arise from, or in connection with, the use of Landlord property
hereunder by the Tenant, its licensee, agents, representatives, employees, contractors, or
subcontractors.
Minimum Scope of Insurance
Coverage must be at least as broad as:
Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
Insurance Services Office Form No.CA 0001 covering Automobile Liability, code 1 (any auto).
Worker's Compensation insurance as required by the State of California and Employer's Liability
Insurance.
Course of Construction insurance form providing coverage for "all risks" of loss.
Property insurance against all risks of loss to any Tenant improvements or betterments.
Minimum Limits of Insurance (Check all applicable boxes) '
Tenant must maintain limits no less than:
General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property
damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used,
either the general aggregate limit will apply separately to this projecVlocation or the general aggregate
limit must be twice the required occurrence limit.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Course of Construction (Builder's Risk): Completed value of the project.
Property Insurance: Full replacement cost with no coinsurance penalty provision.
Deductibles and Self -Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by Landlord. At the option
of Landlord, either: the insurer must reduce or eliminate such deductibles or self-insured retentions as
respects Landlord, its officials and employees; or the Tenant must procure a bond guaranteeing payment
of losses, and related investigations, claim administration and defense expenses.
Other Insurance Provisions
LA #4837-9567-7203 02
The general liability and automobile liability policies are to contain, or be endorsed to contain, the
following provisions:
1. Landlord, its officials, employees, agents and contractors are to be covered as insureds as
respects: liability arising out of activities performed by or on behalf of the Tenant; products and
completed operations of the Tenant; premises owned, occupied or used by the Tenant; and
automobiles owned, leased, hired or borrowed by the Tenant. The coverage must contain no
special limitations on the scope of protection afforded to Landlord, its subsidiaries, officials and
employees.
2. For any claims related to this project, the Tenant's insurance coverage must be primary insurance
as respects Landlord, its subsidiaries, officials and employees. Any insurance or self-insurance
maintained by Landlord, its subsidiaries, officials and employees will be excess of the Tenant's
insurance and will not contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including breaches of
warranties will not affect coverage provided to Landlord, its subsidiaries, officials and employees.
4. The Tenant's insurance will apply separately to each insured against whom claim is made or suit
is brought, except with respect to the limits of the insurer's liability.
5. Each insurance policy required by this clause must be endorsed to state that coverage will not be
suspended, voided, canceled by either a party, or reduced in coverage or in limits, except after
thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to
Landlord.
' 6. Workers Compensation policy must contain the inclusion of the Landlord, its officials,
employees, agents and contractors as additional insured or provide a waiver of subrogation.
7. Landlord lease number, if any, must be included with description of leased premises.
Course of construction.policies must contain the following provisions:
1. Landlord must be named as loss payee.
2. The insurer must waive all rights subrogation against Landlord.
LA #4837-9567-7203 02
Acceptability of Insurers '
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A- VII, unless
otherwise approved by Landlord.
Verification of Coverage
Tenant must furnish Landlord with original endorsements and certificates of insurance evidencing
coverage required by this Lease. All documents are to be signed by a person authorized by that insurer
to bind coverage on its behalf. All documents are to be received and approved by Landlord before work
commences. As an alternative, the Tenant may provide complete, certified copies of all required
insurance policies, 'including endorsements affecting the coverage required by these specifications.
Contractors and Subcontractors
Tenant must include all contractors and subcontractors as insureds under its policies or require
certificates and endorsements for each contractor and subcontractor, All coverages for contractors and
subcontractors will be subject to all of the requirements stated herein. The administration of insurance
compliance of contractors and subcontractors will be subject to audit review by Landlord.
3
LA 114837-9567-7203 v12
I
Exhibit "D"
Permitted Hazardous Materials
No Hazardous Materials are permitted to be used or stored on Premises, except for those
materials and vehicles associated with the routine operation, maintenance and access to and
from the Premises for the use described in Item 6 of the Basic Lease Provisions and Section 3
of the General Lease Provisions.
LA 14837-9567-7203 02
Exhibit "E" '
Advertising Restrictions
The primary purpose of the Digital Sign is to generate revenue for the parties, and the display of
advertising is solely for this purpose. The Digital Sign is not intended to provide a general public
forum for purposes of communication, but rather to make use of property held by the City in a
proprietary capacity in order to generate revenue.
Except for any advertising or messages displayed on the Digital Sign at the request of the City
(City Promotional Messages) or IACMTA, all advertising to be displayed on the Digital Sign
must be strictly "commercial advertising." As used in this Lease, "commercial advertising"
means advertising for a commercial or industrial business, product, good, service, or other
commercial or industrial activity for a commercial or industrial purpose.
In addition to the general limitation on advertising to strictly commercial advertising, Tenant may
not display any message that in the judgment of the City Manager of City or his or her designee:
is false, misleading, or deceptive;
2. promotes the sale or use of tobacco products, or medical marijuana,
whether directly or indirectly;
3. depicts violence or anti -social behavior or relates to illegal activity;
4. contains 'obscene matter," as that term is defined in California or federal
law, or promotes any "adult entertainment business" or "specified sexual
activities", or "sex -oriented material or merchandise" as such terms are
defined in the Santa Clarita Municipal Code;
5. contains any "political advertising," which means advertising that
promotes or opposes any candidate for public office or promotes or
opposes a ballot measure, referendum, bond issue, or any federal, state
or local legislation, regulation, or other discretionary action;
6. holds a person or group of persons up to public ridicule, derision, or
embarrassment, or defames a person or group of persons;
7. contains language that is obscene, vulgar, profane, or scatological, or that
presents a clear -and -present danger of causing riot, disorder, or other
imminent threat to public safety, peace, or order;
8. that promotes any product, service or activity that is illegal under federal,
state, or local law.
LA #4837-9567-7203 02
Exhibit "F"
Rent Schedule
Sectionl. Definitions. As used in this Lease, the following terms have the meaning set
forth below:
"Capital Expenses" means all hard and soft costs for the physical construction of the
Digital Sign, which amount for the initial construction of the Digital Sign is estimated to
be approximately $800,000. In the event that Tenant and the Sign Manager believe that
the initial Capital Expenses will exceed this estimate by more than 10%, Landlord must
be notified in advance of the occurrence of such additional costs, and Landlord's
reasonable consent must be obtained.
"Entitlement Expenses" means the costs of obtaining all City and other local and state
permits and approvals, including the Caltrans permit, necessary for the construction and
operation of the Digital Sign, which amount may not exceed $350,000 for the initial
construction and permitting of the Digital Sign.
"Gross Revenue" means any and all revenue actually received from the placement or
sale of advertising media on the Digital Sign less advertising sales company
commissions. Gross Revenue does not include any revenue received from the
collocation of any telecommunications facilities on the Digital Sign in accordance with
Section 3.9 of the Lease.
"Net Revenue" means any and all Gross Revenue less the following approved
deductions:
(a) Sign Manager Fees;
(b) Entitlement Expenses;
(c) Removal Costs;
(d) Operational Expenses;
(e) Capital Expenses (amortized over five years and when paid); and
(f) Upgrade Expenses (amortized over five years and when paid)).
"Operational Expenses" means the costs of operating and maintaining the Digital Sign
including all required insurance under this Lease; electricity, maintenance costs, repair
costs, and replacement parts.
"Removal Costs" means the compensation costs paid directly to the owner or operator of
an Existing Metro Billboard (as defined in the Development Agreement) and incurred by
Tenant with respect to the removal of any such Existing Metro Billboard that Tenant is
required to remove under the Development Agreement in order to construct and operate
' the Digital Sign. Compensation, if any, for an Existing Metro Billboard, may not exceed
the then current and applicable Caltrans payment schedule amount for such Existing
1
LA #4837-9567-7203 02
Metro Billboard removal without prior written approval from Landlord, which approval
may be withheld in Landlord's sole discretion. Removal Costs may be amortized over
such reasonable period as agreed between Landlord and Tenant, which period may not
exceed five years. In addition, the amortized portion of the Removal Costs will be paid
from Gross Revenues after Operational, Capital, and Entitlement Expenses.
"Sign Manager Fees" means the fee paid to the Sign Manager as established in Section
2 below.
"Upgrade Expenses" means the costs and expense related to the upgrade of the Digital
Sign, including the potential replacement of the Digital Sign display face.
Section 2. Operational Options and Related Revenue Sharing and Sign Manager Fees.
2.1 Under the first operational option ("Option V), Tenant's Sign Manager may
advise and assist in the negotiation of site licenses, agreements or other understandings with
outdoor advertising sales companies prior to development of the Digital Sign, and a third party,
not the Tenant or Sign Manager, thereafter will build the Digital Sign. If Option 1 is utilized, the
Sign Manager Fees will be fixed at 30 percent of Gross Revenue for a period of 30 years and
the deductions listed in Section 1 above for Operational Expenses, Capital Expenses, and
Upgrade Expenses will not apply. Further, under Option 1, with respect to Entitlement
Expenses, the expenses will be shared between Tenant, Tenant's Sign Manager and Landlord
in the following percentages: 24.5%, 30.0% and 45.5%, respectively, for the first 30 years;
thereafter, for the remaining 20 -year period, any applicable Entitlement Expenses will be shared '
between Tenant and Landlord in the following percentages: 35.0% and 65.0%, respectively.
2.2 Under the second operational option ("Option 2"), Tenant's Sign Manager may
develop the Digital Sign on Tenant's behalf and subsequently advise and assist in sign/sales
licenses, agreements or other understandings with outdoor advertising sales companies, which
will sell and place advertising on the Digital Sign that will be owned and controlled by Tenant or
Tenant's Sign Manager. Under Option 2, the Sign Manager Fees will be fixed at 40 percent of
the total of Gross Revenue less the Operational Expenses for a period of 30 years. The
Entitlement, Operational, Capital and Upgrade Expenses will be shared between Tenant,
Tenant's Sign Manager and Landlord in the following percentages: 21.0%, 40.0% and 39.0%,
respectively, for the first 30 years; thereafter, for the remaining 20 -year period, any applicable
expenses will be shared between Tenant and Landlord in the following percentages: 35.0% and
65.0%, respectively.
2.3 The parties intend for the Tenant's Sign Manager Fees to apply only for the first
30 years of the Term, unless otherwise deemed necessary for a longer period and agreed to by
Landlord, Tenant and Tenant's Sign Manager.
2.4 Notwithstanding the above, the parties agree that the expense sharing provisions
described in Sections 2.1 and 2.2 above are not intended to cover Tenant's or Landlord's
indemnification obligations in this Lease.
2.5 Tenant will select the applicable operational option set forth in Sections 2.1 and
2.2 above to optimize long-term revenue under this Lease. Tenant will consult with Landlord '
prior to selection of the initial operational option and will advise Landlord of such selection at
2
LA #4637-9567-7203 v12
least 30 days prior to entering into any underlying agreements in furtherance of such operational
option. Tenant's selection of the initial operational option and notification to Landlord must be
completed prior to the final approval from City's building department for the Digital Sign. The
selection of the operational option will be governed solely by this Section 2.5.
Section 3. Lockbox System and Distribution of Funds and Revenues.
Tenant will cause to be established with a commercial bank ("Bank") approved by
Landlord a service relationship and such accounts as may be needed to provide for the efficient
collection of funds, reporting of transactions and distribution of the Gross Revenues and Net
Revenues in accordance with this Lease. The parties agree that the most appropriate
mechanism for handling the distribution of these funds and revenues is through a lockbox
system. The general parameters of how such lockbox system will operate are described below.
Digital Sign customers and sales companies will mail or wire their payments directly to
the Bank and all funds related to the Lease or Digital Sign will be collected in the lockbox
account. Bank staff will prepare items for deposit. This includes scanning checks, wiring
information, paper materials, documents, correspondence and envelopes and storing the
captured images in the Bank's Internet -based archive, along with lockbox transaction reports.
There may be one or multiple lockboxes set up if necessary to segregate the individual assets.
Each lockbox account address will have a separate bank account. Funds that are collected in
the lockbox will be deposited into the applicable Bank account the same day as received.
Electronic copies of the deposit slips, checks, documents, etc. will be loaded to the lockbox
' archive each day. This archive will be accessible for at least 10 years and will have secured
backup archiving locations for disaster recovery and data security.
All account users (Landlord, Tenant, and Sign Manager) will have online access to view
the deposit activity, document archive copies, transaction reporting and other Bank records for
the lockbox and Bank accounts. The Sign Manager will keep records and will issue transaction
reports and reconciliations to Landlord and Tenant for the lockbox and Bank activity in
accordance with Section 2.2 of the Lease.
Landlord, Tenant and Sign Manager will each provide the Bank with instructions (based
upon the Lease) that the Bank will use to automatically wire the funds due to each entity under
this Lease.
1
LA #4837-9567-7203 v12
Digital Billboard
Design (cladding) Options
Option 1
Metro
.l
Option 2
•. e ,,,AA
Option 3
M Metro