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HomeMy WebLinkAbout10 CONDITIONAL USE PERMIT (CUP) 2023-0008 AND DEVELOPMENT AGREEMENT (DA) 2023-0001MEETING DATE: NOVEMBER 21, 2023 TO: NICOLE BERNARD, ACTING CITY MANAGER FROM: JUSTINA L. WILLKOM, COMMUNITY DEVELOPMENT DIRECTOR SUBJECT: CONDITIONAL USE PERMIT (CUP) 2023-0008 AND DEVELOPMENT AGREEMENT (DA) 2023-0001 SUMMARY: This project includes the replacement of an existing static freeway adjacent billboard at 1021 Edinger Avenue, a City-owned property, with a new ninety (90) foot tall, double-faced digital display billboard. On November 15, 2022, the City Council approved a lease agreement between the City and the applicant, Outfront Media, for a digital display billboard on the subject property contingent upon the applicant successfully obtaining all necessary. On October 24, 2023, the Planning Commission held a public hearing for the proposed project and adopted Resolution No. 4480, recommending that the City Council approve the CUP and DA. APPLICANT: DAVID RYAN OUTFRONT MEDIA LLC 1731 WORKMAN STREET LOS ANGELES, CA 90031 PROPERTY OWNER: CITY OF TUSTIN 300 CENTENNIAL WAY TUSTIN, CA 92780 LOCATION: 1021 EDINGER AVENUE (APN: 430-252-05) RECOMMENDATION: That the City Council do the following: 1. Adopt Resolution No. 23-49 approving CUP 2023-0008, a request to demolish an existing static billboard and construct a new ninety (90) foot tall, double-faced billboard. 2.Introduce and have first reading by title only of Ordinance No. 1539 for DA 2023- 0001 to accept the provision of community public benefits, including the removal of three (3) existing static billboards located elsewhere in the City. AGENDA REPORT Agenda Item _____ Reviewed: City Manager _______ Finance Director _______ 10 N/A DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F City Council Report November 21, 2023 Page 2 FISCAL IMPACT: The proposed project will have a net positive fiscal impact in that the City will be reimbursed for review and environmental costs associated with processing the requested entitlements, and the project will provide public benefits to the City as described in the Development Agreement and Public Benefits section of this report. CORRELATION TO THE STRATEGIC PLAN: The proposed project furthers the objectives of the following Strategic Plan goal: • Goal C – Financial Strength #4: Explore opportunities for new or increased revenues and diversify revenue sources beyond sales and property taxes. PROJECT APPROVAL AUTHORITY: • Conditional Use Permit – Tustin City Code (TCC) Section 9404(b)(7) requires that all freeway adjacent digital display billboards obtain a CUP and DA. TCC Section 9291 authorizes the Planning Commission to decide upon CUP applications; however, the Planning Commission has deferred decision-making authority of the CUP to the City Council for concurrent consideration with the DA. • Development Agreement – TCC Section 9404(b)(7) requires that all freeway adjacent digital display billboards obtain a CUP and DA. Pursuant to TCC Section 9607, the Planning Commission considered the DA and forwarded its recommendation to the City Council within thirty (30) days of the time specified for the public hearing. Pursuant to the TCC Section 9613, after the City Council completes the public hearing and considers the recommendation of the Planning Commission, the City Council may accept, modify, or disapprove the DA. Pursuant to TCC Section 9614, the DA shall be approved by the adoption of an ordinance. BACKGROUND: Since December 1994, the City has had a static display billboard lease agreement with Outfront Media, LLC (“Outfront”) or its predecessors at the City-owned property located at 1021 Edinger Avenue (subject site). The existing static billboard is an eighty (80) foot tall, double-faced billboard with sign face dimensions of fourteen (14) feet by forty-eight (48) feet. It is located approximately 300 feet from the nearest travel lane on the State Route (SR) 55 freeway and 400 feet from the nearest residential property to the north (Figure 1). DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F City Council Report November 21, 2023 Page 3 On February 4, 2022, the City adopted Ordinance No. 1505 (which was codified as TCC 9404(b)(7)) and an initial study/mitigated negative declaration (adopted MND) regarding freeway adjacent digital display billboards. The adopted MND specifically addressed and analyzed the replacement of the subject static billboard with a digital billboard, as further described in the Environmental Review section of this report. On November 15, 2022, the City Council authorized a lease agreement between the City of Tustin and Outfront for a digital display billboard on the subject property contingent upon Outfront successfully obtaining all necessary entitlements, including the requested CUP and DA. On October 24, 2023, the Planning Commission held a public hearing and adopted Resolution No. 4480, recommending approval of the proposed CUP and DA to the City Council. Site and Surroundings The property is located within the Planned Community Commercial – Specific Plan 11 (PCC - SP 11) zoning district (“Pacific Center East Specific Plan”) and designated for Commercial Center uses. The General Plan land use designation is Planned Community Commercial Business, which allows for a variety of retail, professional office, service commercial and other uses that support the land use. The project site is currently undeveloped except for the existing static billboard to be replaced. The site abuts railroad tracks to the north and residential beyond, Edinger Avenue to the south and a hotel development beyond, undeveloped property designated for Commercial Center uses to the east, and a gas station and propane supplier to the west. Beyond the gas station to the west is the SR 55 freeway (Figure 2). Figure 1. Existing Static Billboard DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F City Council Report November 21, 2023 Page 4 Figure 2. Project Site Aerial and Surrounding Land Uses DISCUSSION: As mentioned, the proposal is to replace an existing static billboard with a new freeway adjacent digital billboard at the City-owned property located at 1021 Edinger Avenue. This proposal also includes the removal of three (3) additional static billboards located at 14092 Red Hill Avenue, 1501 Nisson Road, and 1631 El Camino Real and includes public benefits to the City including no-cost advertising time, among others, as further described in the Development Agreement and Public Benefits section below. The proposed digital display billboard is located closer to the southwestern corner of the subject site than the existing static billboard. This is intended to maximize the amount of space available on the parcel for future development as shown in Figure 3 below. The proposed billboard would be ninety (90) feet tall and have two (2) twenty (20) by sixty (60) foot sign faces arranged in a V-configuration, similar to the existing billboard, to maximize visibility to the SR 55 freeway as shown in Figure 4. The sign pole will be painted in a light neutral color in compliance with the design standards for SP-11. The sign pole is located sufficiently away from the driveway entrance to the adjacent gas station and propane supplier to prevent impacts to traffic visibility for vehicles accessing these sites as shown on Figure 3 below. The Outdoor Advertising unit of the California Department of Transportation (Caltrans) reviewed the proposed project and advised they did not have any comments. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F City Council Report November 21, 2023 Page 5 Figure 3. Site Plan Figure 4. Proposed Sign Elevations & Plan View DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F City Council Report November 21, 2023 Page 6 Sign Code and Mitigation Measure Compliance The proposed digital display billboard complies with the City’s standards for freeway adjacent digital display billboards (TCC 9404(b)(7)) as follows: City Requirement Proposed Complies with Code (Y/N) Location • Commercial Zone • Within 400’ of freeway • Commercial zone • Approximately 250’ of SR 55 freeway1 Y Distance from residential Minimum 300’ Approximately 415’ from nearest residential community Y Height Max. 55’ between freeway pavement level and bottom of display board 32’ between freeway pavement and bottom of display board Y Size of Display Face • 25’ height, 60’ width • Max. 1,500 square feet sign area • 20’ height, 60’ width • 1,200 square feet sign area Y Design Double faced or covered backs or facings Double faced Y Orientation Primarily viewed from SR 55 freeway Complies; Display is oriented to the freeway and primarily visible to both north and southbound lanes Y Brightness Comply with all applicable laws regarding brightness Designed and programmed to meet applicable laws Y Display Cycle • Display still images for minimum 8 seconds. • Display transition/blank screens for maximum 1 second. Still images will be programmed to display for minimum 8 seconds and transition screens will display for maximum 1 second Y Compliance with laws when operating, maintaining, repairing, etc. • Federal, State and Local laws • Highway Beautification Act • Outdoor Advertising Act Operation, maintenance, repair, etc. shall comply with applicable laws Y DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F City Council Report November 21, 2023 Page 7 Public Benefit DA confers a substantial public benefit to the City and general public DA includes (among other benefits): • No-cost city messaging and identification for up to ten percent (10%) of total advertising time per month • Use of billboard for emergency notifications by the City, Caltrans, and the California Highway Patrol (CHP) • Removal of three (3) additional static billboards Y Further, the project will comply with the mitigation measures adopted as part of Ordinance No. 1505 and incorporated into the Conditions of Approval (Exhibit A of Attachment G), as applicable, and listed as follows: • A site-specific lighting study was provided demonstrating the lighting of the sign will not exceed 0.3 foot-candle at 250 feet; • The light-emitting diode (LED) billboard will include an operating mechanism that turns off the display or turns it to all black in the event of a malfunction or failure in any system or subsystem that results in the display wholly or partly appearing to flash; • Trespass glare lighting on residents and drivers will be minimized through the implementation of the operational lighting parameters approved as part of the development application; • Should the billboard replacement be scheduled to occur between September 1 and January 31, the applicant shall be required to retain a qualified biologist to conduct pre- construction surveys for nesting birds within a 250-foot radius of the existing billboard location to ensure no active nests will be disturbed during project implementation; • Any ground-disturbing activities associated with the project shall be monitored by a certified paleontologist to quickly and professionally recover any fossil remains discovered while not impeding development; and • Construction noise impacts will be mitigated during construction phase of the project. Development Agreement and Public Benefits The establishment of a freeway adjacent digital display billboard requires the execution of a DA to identify public benefits in association with the proposed request. The DA will include the following provisions: DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F City Council Report November 21, 2023 Page 8 •Public benefits: o Within ninety (90) calendar days following the effective date, and at no cost to the City, the applicant shall permanently remove the existing static billboard on the project site and three (3) off-site static displays at the following locations (see Figure 5): APN: 500-041-02, near 1631 El Camino Real APN: 432-402-06, near 1501 Nisson Road APN: 432-401-09, near 14092 Red Hill Avenue o Reimbursement of environmental review costs incurred by the City to comply with CEQA within thirty (30) calendar days following the effective date. o At no cost to the City, the City shall have exclusive use of up to ten percent (10%) of total advertising time during any month to promote any purpose that the City, in its sole discretion, determines best serves its needs and of its residents. o Use of the billboard for emergency notification purposes by the City, Caltrans, or the CHP. •Annual review of Billboard Owner’s and Billboard Operator’s performance, compliance, etc. Figure 5. Off-site Billboards to be Removed DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F A.Location MapB.Land Use Application Fact SheetC.Submitted PlansD.Planning Commission Resolution No. 4480E.Planning Commission October 24, 2023 Meeting MinutesF.Environmental Consistency AnalysisG.City Council Resolution No. 23-49 Exhibit A: Conditions of Approval Exhibit B: Map of Billboards to be RemovedH.Ordinance 1539 H. Ordinance No. 1539 • Exhibit A: Development Agreement 2023-0001 Attachments: DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F LOCATION MAP 1021 Edinger Avenue 300’, 500’, and 1000’ Radius Not to Scale Attachment ADocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Attachment B LAND USE APPLICATION FACT SHEET 1. LAND USE APPLICATION NUMBER(S): CONDITIONAL USE PERMIT (CUP) 2023-0008, DEVELOPMENT AGREEMENT (DA) 2023-0001 2. ADDRESS:14042 NEWPORT AVENUE, TUSTIN, CA, 92780 3. APN(S): 430-252-05 4. SURROUNDING LAND USES: WEST: COMMERCIAL NORTH: (ACROSS RAILROAD TRACKS) MULTI-FAMILY RESIDENTIAL EAST: VACANT SOUTH: (ACROSS EDINGER AVENUE) HOTEL/COMMERCIAL 5. SURROUNDING ZONING DESIGNATION: WEST: PLANNED COMMUNITY COMMERCIAL, SPECIFIC PLAN 11 (PACIFIC CENTER EAST SPECIFIC PLAN) NORTH: PLANNED COMMUNITY RESIDENTIAL EAST: PLANNED COMMUNITY COMMERCIAL, SPECIFIC PLAN 11 (PACIFIC CENTER EAST SPECIFIC PLAN) SOUTH: PLANNED COMMUNITY COMMERCIAL, SPECIFIC PLAN 11 (PACIFIC CENTER EAST SPECIFIC PLAN) 6. SURROUNDING GENERAL PLAN DESIGNATION: WEST : PLANNED COMMUNITY COMMERCIAL BUSINESS NORTH: HIGH DENSITY RESIDENTIAL EAST: PLANNED COMMUNITY COMMERCIAL BUSINESS SOUTH: PLANNED COMMUNITY COMMERCIAL BUSINESS 7. SITE LAND USE: EXISTING PROPOSED Use: VACANT, EXISTING STATIC BILLBOARD VACANT, DIGITAL DISPLAY BILLBOARD Zoning: PLANNED COMMUNITY COMMERCIAL, SPECIFIC PLAN 11 (PACIFIC CENTER EAST SPECIFIC PLAN) NO CHANGE General Plan: PLANNED COMMUNITY COMMERCIAL BUSINESS NO CHANGE DEVELOPMENT FACTS: EXISTING PROPOSED 8. SIGN TYPE: STATIC BILLBOARD DIGITAL DISPLAY BILLBOARD 9. SIGN HEIGHT: 80 FEET 90 FEET 10. SIGN FACE AREA: 18 FEET BY 48 FEET, 20 FEET BY 60 FEET, TWO (2) FACES TWO (2) FACES 864 SQUARE FEET EACH 1,200 SQUARE FEET EACH DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F PROJECT DATA NEW 20'X60' V-SIGN LOCATION 1NOTES SCALE: 1"=40'2SITE PLAN LOCATION MAP N.T.S. · · · · SHEET INDEX N.T.S. · · · · · P P P P P P P P NEWPORT FREEWAY OVER RAMPALMOND GROVE CTMINNEOLA CTMORO C T SUN G O L D C T O R L A N D O S T CO M M E R C I A L P R O P E R T Y APN : 4 3 0 - 2 5 2 - 1 1 CO M M E R C I A L P R O P E R T Y APN : 4 3 0 - 2 5 2 - 1 5 CO M M E R C I A L P R O P E R T Y APN : 4 3 0 - 2 5 2 - 3 3 CO M M E R C I A L P R O P E R T Y APN : 4 3 0 - 2 5 2 - 2 7 CO M M E R C I A L P R O P E R T Y APN : 4 3 0 - 2 5 2 - 1 4 RES I D E N T I A L P R O P E R T I E SRESIDENTIAL PROPERTIESRESIDENTIAL PROPERTIESRES I D E N T I A L P R O P E R T Y CO M M E R C I A L P R O P E R T Y NEWPORT AVE. NEWPORT AVENUEE D I N G E R A V E N U E CO M M E R C I A L 62, 4 5 9 S Q . F T . NE W P O R T 3 1.4 3 4 A C R E S R A I L R O A D55APN : 4 0 2 - 1 4 2 - 2 4 RES I D E N T I A L P R O P E R T I E S RES I D E N T I A L P R O P E R T I E S O . C . F . C . D . R / W O . C . T . A . R / W F O R M E R L Y A . T . & S . F . R . R . R / W O . C . F . C . D . R / W O . C . T . A . R / W F O R M E R L Y A . T . & S . F . R . R . R / W B O O K 6 6 2 P A G E 4 4 5 ; O . R . B O O K 6 6 2 P A G E 4 4 5 ; O . R . D E E D B O O K 2 4 5 P G 2 3 3 O F L . A . C O U N T Y R . S . B . 3 4 / 1 7 APN : 4 3 0 - 2 5 2 - 0 2 APN : 4 3 0 - 2 5 2 - 1 0 MU T U A L L I Q U I D G A S C O M M E R C I A L P R O P E R T Y A P N : 4 3 0 - 2 5 2 - 0 3 (SR- 5 5 ) CAL T R A N S R/W M A P F16 1 8 - 2 & 3 NE W P O R T F R E E W A Y APN : 4 3 0 - 2 5 2 - 0 5 CO M M E R C I A L 31, 9 0 3 S Q . F T . NE W P O R T 2 .73 2 A C R E S CO M M E R C I A L 88, 6 9 7 S Q . F T . NE W P O R T 1 2.0 3 6 A C R E S CO M M E R C I A L P R O P E R T Y RED E V E L O P M E N T A G E N C Y FOR M E R T U S T I N C O M M U N I T Y CO N S T R U C T I O N PHA S E 2 NE W P O R T A V E N U E ULTI M A T E R I G H T O F W A Y 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 A1 Attachment CDocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F A-2 SCREEN ELEVATION UPRIGHT FRAME CONNECTION TO PIPE BEAMS N.T.S.1DETAILS N.T.S.4 SCREEN FRAMING ELEVATION TOP VIEW SCREEN CONNECTION DETAIL N.T.S.2McNICHOLS PREFORATED SCREENING DET. N.T.S.3 SAFETY CABLE DETAILS N.T.S.6CAMERA POLE ENLARGED DET. N.T.S.7 811 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 A-2 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F YOUR AD IS HERE YOUR AD IS HEREYOUR AD IS HERE OUTFRONT OUTFRONTOUTFRONT CROSS SECTION SCALE: 1/16"=1'-0" SOUTH (NORTH) ELEVATION SCALE: 1/8"=1'-0" WEST ELEVATION SCALE: 1/8"=1'-0" CA-55 FWY NORTH BOUND CA-55 FWY SOUTH BOUND GAS STATION CANOPY PLAN VIEW SCALE: 1/8"=1'-0" 1 2 3 4 McNICHOLS PREFORATED SCREENING DET. 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 A-3 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 9 7 . 5 5 1 4 . 4 0 5 . 8 2 3 . 7 9 1 . 0 3 0 . 6 8 0 . 4 8 0 . 3 6 0 . 2 8 0 . 2 2 0. 1 8 0.3 P P P P P P NEWPORT FREEWAY OVER RAMPMORO C T CO M M E R C I A L P R O P E R T Y APN : 4 3 0 - 2 5 2 - 1 1 CO M M E R C I A L P R O P E R T Y APN : 4 3 0 - 2 5 2 - 1 5 CO M M E R C I A L P R O P E R T Y APN : 4 3 0 - 2 5 2 - 3 3 RESIDENTIAL PROPERTIESNEWPORT AVE. E D I N G E R A V E N U E CO M M E R C I A L 62, 4 5 9 S Q . F T . NE W P O R T 3 1.4 3 4 A C R E S R A I L R O A D O . C . F . C . D . R / W O . C . T . A . R / W F O R M E R L Y A . T . & S . F . R . R . R / W B O O K 6 6 2 P A G E 4 4 5 ; O . R . D E E D B O O K 2 4 5 P G 2 3 3 O F L . A . C O U N T Y R . S . B . 3 4 / 1 7 APN : 4 3 0 - 2 5 2 - 0 2 APN : 4 3 0 - 2 5 2 - 1 0 MU T U A L L I Q U I D G A S (SR - 5 5 ) CAL T R A N S R/W M A P F16 1 8 - 2 & 3 NE W P O R T F R E E W A Y 0. 1 0 9 7 . 5 5 1 4 . 4 0 5 . 8 2 3 . 7 9 1 . 0 3 0 . 6 8 0 . 4 8 0 . 3 6 0 . 2 8 0 . 2 2 0 . 1 8 0 . 1 0 0.3 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 A-4 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 S-1 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 S-2 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 S-3 8302 1 1 1021 EDINGER AVE. TUSTIN CA 92780 C. LEE RSE 2543 626-234-2247 626-234-2247 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 S-4 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 S-5 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F RESOLUTION NO. 4480 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN RECOMMENDING THAT THE CITY COUNCIL APPROVE CONDITIONAL USE PERMIT 2023-0008 AND DEVELOPMENT AGREEMENT 2023-0001 TO REPLACE AN EXISTING STATIC BILLBOARD WITH A NEW, NINETY (90) FOOT TALL, FREEWAY ADJACENT DIGITAL DISPLAY BILLBOARD WITH TWO (2) SIGN I FACES MEASURING TWENTY FEET (20'') BY SIXTY FEET (60'') EACH AT 1021 EDINGER AVENUE. The Planning Commission of the City of Tustin does hereby resolve as follows: I.The Planning Commission finds and determines as follows: A. That a proper application has been submitted by David Ryan of Outfront Media, LLC for Conditional Use Permit (CUP) 2023- 0008 and Development Agreement (DA) 2023-0001 requesting to replace an existing static billboard with a ninety (90) foot tall, freeway adjacent digital billboard with two (2) sign faces measuring twenty feet (20') by sixty feet (60') each. The project also includes the removal of three (3) additional static billboards located at 1631 El Camino Real, 1501 Nisson Road, and 14092 Red Hill Avenue. The project is located at 1021 Edinger Avenue within the Commercial Center land use area of the Pacific Center East Specific Plan (SP-11). B. That the development application includes the following requests: 1. Conditional Use Permit (CUP) 2023-0008 to construct a new freeway adjacent digital billboard, and 2. Development Agreement (DA) 2023-0001 to identify public benefits in association with the proposed request. C. That the project has been reviewed for consistency with the Air Quality Sub- element of the City of Tustin General Plan and has been determined to be consistent with the Air Quality Sub-element. D. That pursuant to Tustin City Code (TCC) Section 9404(b)(7) and Ordinance No. 1539 (Exhibit D), freeway adjacent digital display billboards require approval of a CUP and DA. E. That the site is zoned as Planned Community Commercial, Pacific Center East Specific Plan (PCC, SP-11) and has a General Plan land use designation of Planned Community Commercial Business (PCCB). ATTACHMENT D DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Resdution No, 4480 Page 2 F. That a public hearing was duly called, noticed, and held for CUP 2023-0008 and DA 2023-0001 on October 24, 2023, by the Planning Commission. G. That TCC Section 9404(b)(7) requires freeway adjacent digital display billboards to obtain a DA in accordance with Section 65864 et seq. of the Government Code and Sections 9600 to 9619 of the TCC. In compliance with TCC Section 9611, the Tustin Planning Commission must make a recommendation on the proposed DA to the City Council. The DA can be supported by the following findings: 1. The project is consistent with the objectives, policies, general land uses and programs specified in the General Plan and the Pacific Center East Specific Plan in that the proposed freeway adjacent digital display billboard use is a conditionally permitted use that supports City programs and generates revenue, 2. The project is compatible with the uses authorized in the district in which the real property is located in: that the existing static billboard is the only sign that qualifies for replacement with a digital display billboard pursuant to TCC 94014(b)(7). 3. The project is in conformity with the public necessity, public convenience, general welfare, and good land use practices in that the agreement incorporates public benefits in the form of advertisements for city events and financial contributions to the City. Moreover, three, (3) existing static billboard signs located elsewhere in the City will be removed as a public benefit. 4. The project will not be detrimental to the health, safety, and general welfare in that the proposed digital display billboard is replacingi an existing static billboard, and the removal of three (3) offsite static billboards as shown in Exhibit C and will comply with the mitigation measures established with Ordinance No. 1505, which codified TCC 9404(b)(7). 5. That, as conditioned, the billboard structure and use will not be detrimental to Ihealth, safety, and general welfare. 6. That the project will not adversely affect the orderly development of property in that the proposed sign is located closer to the southwestern corner of the site to maximize the amount of square footage available for future development. 7. That the project will have a positive fiscal impact on the City in that the provisions of the proposed DA and the public benefits contained therein DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Resolution No. 4480 Page 3 will allow for no cost, city-related advertising and public safety announcements by law enforcement agencies. H. That in approving a freeway adjacent digital display billboard, the Planning Commission recommends that the City Counci:l make the following findings pursuant to TCC 9404(b)(7): 1. That the proposed sign complies with the requirements of TCC 9404(b)(7) and Chapter 4 of Article 9 of the TCC'; Z That, as conditioned, the proposed sign will not create a traffic or safety hazard as the digital display will follow all applicable laws and regulations regarding illumination and motorist distraction prevention, and furthermore is located so as to not impede traffic visibility at the street grade; 3. That, as conditioned, the proposed sign will not create a nuisance to adjacent property as the digital display is located more than, -300 feet away from the nearest residential use and designed such, that (light trespass levels will be no more than 0.3 foot-candles at 250 feet; and 4. That the proposed sign will not result in any undue or significant increase in visual clutter in the area surrounding the parcel upon which the freeway adjacent digital display billboard will be located as the existing static billboard will be removed as part of the construction, of the new digital display billboard, I.That the Planning Commission considered an exemption from the California Environment Quality Act (CEQA) pursuant to State CEQA Guidelines Section 15162. Section 15162 states that, when a negative declaration has been adopted for a project, no subsequent environmental impact report (EIR) shall be prepared for that project under certain conditions. In February 2020, the City adopted Ordinance No. 1505 and related Initial Study/Mitigated Negative Declaration (adopted MND) to allow the conversion of static freeway adjacent billboards to digital billboards subject to complying with development standards and obtaining a CU'P and DA. CEQA compliance for the digitization and relocation of the proposed billboard was documented throughout the adopted MND. The project will be required to comply with applicable mitigation measures identified in the adopted MND. Accordingly, the project qualifies for the Section 15162 exemption because: 1. There are no substantial changes proposed which will require major revisions of the previous negative declaration as there are no new significant environmental effects nor a substantial increase in the severity of previously identified significant effects, DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Resolution No. 4480 Page 4 2, There are no substantial changes with respect to the circumstances under which the project is undertaken which require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and 3. There is no new information of substantial importance which was not known and could not have been known with the exercise of reasonable diligence at the time the previous negative declaration was adopted. 11. The Planning Commission hereby adopts Resolution No. 4480 recommending that the City Council approve CUP 2023-0008 and DA 2023-0001, attached hereto as Exhibit A, and subject to the conditions attached hereto as Exhibit B. PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular meeting on the 24th day of October, 2023. STEVE KOzAkI Chairperson J'rflNA L. VVILLKOM FanningIanPning Commission Secretary Exhibit A: Development Agreement 2023-0001 Exhibit B: Conditions of Approval Exhibit C: Map of Billboards to be Removed Exhibit D: Draft Ordinance No. 1539 APPROVED AS TO FORM: Mi-ICHAEL DAUDT'--'----'-'- Assistant City Attorney DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F ResoMion No. 4480 Page 5 STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN 1, Justina L. Willkom, the undersigned',, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No, 4480 was duly passed and adopted at a reguilar meeting of the Tustin Planning Commission, held on the 24th day of October, 2023. PLANNING COMMISSIONER AYES: Douthit, Higuchi, Kozak, Mason (4) PLANNING COMMISSIONER NOES: Mello PLANNING COMMISSIONER ABSTAINED) PLANNING COMMISSIONER ABSENT: jo I`Ut. WILLIKOM Plalring Commission Secretary DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F E I xhibit A RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Clerk Exempt From Recording Fee Per Gov. Code §61031 DEVELOPMENT AGREE—MENT NO. This Development Agreement ("Agreement") is entered into this — day of 1 2023, ("Effective Date") by and between the CITY OF TUSTIN City") and OUTFRONT MEDIA LLC, a Delaware limited liability company ("Applicant"). City and Applicant are sometimes collectively referred to in this Agreement as the "Parties." RECITALS A. Applicant currently operates a double-sided static billboard display ("Existing Sign"') in the City near the northeast intersection of Edinger Avenue and State Route 55 on City_ owned property that Applicant leases from the City, which is described and depicted on the attached Exhibit "A". B. Tustin City Code Section 9404(b)(7) permits the replacement of an existing freeway oriented static display with a digital display billboard upon the approval of a conditional use perinit and development agreement and subject to certain restrictions and criteria. C. Applicant, with City approval, desires to replace the Existing Sign with a freeway adjacent digital display billboard, adjacent to and visible from the state route 55 Freeway ("Digital Billboard"). This replacement would allow the Applicant to expand the scope of advertisements and messages permitted on the sign, subject to [lie limits of this Agreement and the California Outdoor Advertising Act (Bus. and Prof. Code Sections 5200 el seq.) D. In approving a development agreement: for any freeway Lid'jaceiit digital display billboard, [fie City Council must find that the agreement will confer a substantial public benefit to the City and to the general public. SLICII public benefits may include, without limitation, the removal of additional legal non-conforniing billboards, advertising of City events and public service announcements, and/or financial contributions to the City. E. On 1 2023, the City Planning Cornn-iission approved Conditional Use Permit ("CUP 2023-0008") authorizing removal of the Existing Sign and the construction of the Digital Billboard. i7141 S, DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F F. On 2023 the City Planning Commission, at a duly noticed public hearing to consider the approval of this Agreement, adopted Resolution No. recommending approval of this Agreement to the City Council and finding the Digital Billboard project categorically exempt from the provisions of the California Environmental Quality Act CEQA") pursuant to Section 15162 regarding projects consistent with prior adopted environmental analysis and documentation. G. Oil 1 2023, the City Council of the City, at a duly noticed public hearing to consider the approval of this Agreement, considered the proposal and heard testimony relating to this Agreement, H. On 2023,the City Council conducted the second reading of Ordinance No. -thereby approving this Agreement. 1.City finds and determines that all actions required of City precedent to approval of this Agreement by Ordinance No. of the City Council have been duly and regularly taken. COVENANTS NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. GENERAL PROVISIONS 1.1 Incorporation of Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 1.2 Permitted Replacement of Existing Sign. Subject to the terms and conditions of this Agreement, Applicant is hereby authorized to replace the Existing Sign with the Digital Billboard, which is a freeway adjacent digital display billboard. 1.3 Interest in Site and Development Approvals — Conditions Precedent. City and Applicant acknowledge and agree that Applicant has a legal or equitable interest in the site of the Existing Sign, as more particularly depicted and described on Exhibit "A" (hereafter "Site") and thus is qualified to enter into and be a party to this Agreement under the Development Agreement Law. Applicant shall maintain its interest in the Site for the entire term of this Agreement. 1.4 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Applicant with respect to the Digital Billboard project, including actions by the City on any applications for local government approvals (i.e., land use permits, building permits, etc..) affecting such Site, shall be subject to the terms and provisions of this Agreement. 1.5 No Assignment. Applicant may only assign or otherwise transfer this Agreement, or its interest in the Site, to any other person, firm, or entity, upon presentation to the City of all assignment and assumption agreement in a form reasonably acceptable to the City Attorney and receipt of the City's written approval of such assignment or transfer by the City Manager, which 2 N,9,J DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F approval may be withheld for any reason at the sole discretion of the City. 1.6 Term of Agreement. Unless earlier terminated, this Agreement shall run concurrently with that certain Digital Display Billboard Lease made and entered into on [date] by and between the Parties (the "Digital Lease") which is incorporated herein by reference. Notwithstanding the foregoing, City and Applicant may agree to extend the term of this Agreement pursuant to an agreement in writing upon terms acceptable to both Parties. Within 30 calendar clays after the expiration or termination of this Agreement, the Parties shall execute a written cancellation of this Agreement which shall be recorded with the County Recorder pursuant to Section 5.1. 1.7 Public Benefits. Applicant shall also provide the following community benefits during the entire term of this Agreement, for as long as the Digital. Billboard is operated: 1.71 Removal ol`Static DislVay Billboards. Within ninety (90) calendar days following the Effective Date, and at no cost to the City, Applicant shall permanently remove the three (3) existing static display billboards depicted on attached Exhibit "B " located approximately at 1631 El. Camino Real, 1501 Nisson Road, and 14092 Red Hill Avenue. 1.7.2 Reimbursement of Environmental Review Costs 111currerl by the Caty to Cr mj_7ly with CEQA. Within thirty (30) calendar days following the Effective Date, Applicant shall pay to City$38,800.00 (Thirty-Eight Thousand Eight Iundred Dollars) as reimbursement for costs incurred by City to complete analysis under CEQA in connection. with the adoption of Ordinance No, 1505 relating to Freeway Adjacent Digital Display Billboards on February d, 2920. 1.7.3 Qy's Messaq inn and Cray Me igication. At no cost to the City, Applicant shall provide the City exclusive use of rip to ten percent (10%) of the total advertising time for the Digital Billboard during any month of the Term ("City Usage"). City play use such time to promote any purpose that City, in its sole discretion determines best serves the needs of the City and residents, including but not limited to advertising City events and programs, including City-sponsored civic events and programs. City Usage will be allocated by Applicant, in Applicant's reasonable discretion, on a fair and consistent basis with other advertisers during the operating hours the Digital Billboard is available. The City shall provide at least ten (10) business days advance notice of its intent to book City Usage; once booked, the time allocated to City Usage shall be distributed proportionally throughout a 24 hour period. To the extent that the City does riot use the 10% availability so pledged and made available during any rolling 15-day period, it shall lapse; it cannot be accumulated beyond such rolling 15-day period. City will submit "camera ready" artwork to Applicant, at no cost to Applicant, for display purposes. City agrees that for any City Usage pursuant to this Section 1.7.3: (i) as noted above„ City will provide Applicant with. prior written notice of its desire for City Usage, (ii) City will provide Applicant with the copy or text of such messages riot less than ten (10) business days prior to the date such messages are to appear on the Digital Billboard, and (iii) City Usage shall be limited to messages for the civic and public purposes described in this Section 1.7.3 and will not be 3 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F used directly or indirectly for any types of messaging or advertising which Applicant would otherwise be able to sell to third parties in the ordinary course of Applicant's business. City represents and warrants that all advertising materials and content supplied by City to Applicant for display in connection with City Usage, (i) are owned or duly licensed by City and do not infringe or misappropriate the rights of any other person or entity, (ii) comply with all applicable federal, state, and local laws, rules and regulations and any industry codes or rules by which the Parties may be bound and do not contain any obscene, libelous, slanderous or otherwise defamatory materials or refer in an offensive manner to tire gender, race or ethnicity of any individual or group; (iii) are not false; and (iv) do not infringe upon any copyright, trademark or other intellectual property or privacy right of any third party. Applicant shall also incorporate an identification of the City, such as its seal or other emblem acceptable to both parties, on the two display sides of the Digital Billboard City Identification"). The design and location of City Identification oil the Digital Billboard shall be approved by the City in the City's Design Review process. L 7.4 F.niergency Not fications. Without any offset in the City Usage described above and at no cost to the City, Applicant shall make the Digital Billboard available to Caltrans and the California Highway Patrol for "Amber Alerts" and for emergency or disaster notifications by local, state or federal agencies, 1.8 Regulation by Other Public Agencies. It is acknowledged by the Parties that other public agencies not subject to control by City possess authority to regulate aspects of the Site and the Digital Billboard, and this Agreement does not limit[lie authority of such other public agencies. 2. DEVELOPMENT AND IMPLEMENTATION 2.1 Effect of Agreement on Land Use Regulations, For the entire effective term of this Agreement, except as otherwise provided tinder the terms of this Agreement, the rules, regulations and official policies governing permitted uses of the Site, the density and intensity of rise of the Site, the maximum height and size of the proposed Digital Billboard structure, and tile design, and improvement and construction standards and specifications applicable to tile Site shall be limited to those set forth in applicable land use regulations, including without limitation ordinances, resolutions, codes, rules, regulations and official policies of the City, including, but not limited to, the City's General Plan, Municipal Code arid Zoning Code, which govern development and use of the Digital Billboard Site, the California Outdoor Advertising Act Business &Professions Code § 5200 el seq.) and Regulations (4 Cal. Code of Regulations§ 2240 et seq.), and any approvals from [lie California Department of Transportation Outdoor Advertising Division which are in full force and effect as of the Effective Date of this Agreement. 2.2 Changes to Display. Nothing herein shall cause Applicant to be in Default if it upgrades or replaces the digital display of the Digital Billboard during the term of this Agreement to incorporate newer technology; provided Applicant shall secure all applicable ministerial permits to do so and such upgrade is consistent with the dimensions and standards for tile displays, as provided Linder this Agreement, the Tustin City Code, the California Outdoor Advertising Act Business & Professions Code§ 5200 el seq.) and Regulations (4 Cal. Code of Regulations § 2240 4 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F et seq.) 3. REVIEW FOR COMPLIANCE 3.1 Annual Compliatice Review. By no later than January 3 1" of each year, the City Economic Development Director, or their designee, shall conduct a review to ascertain the good faith compliance by Applicant with the terms of this Agreement ("Compliance Review"). The Compliance Review will not require a public hearing unless amendments to this Agreement are being requested by Applicant or recommended by City. However, no failure on the part of City to conduct or complete a Compliance Review as provided herein shall have any impact on the validity of this Agreement. Applicant shall cooperate with the City in the conduct of such Compliance Review and provide the following information and documentation to the City by December 31" of each year: (1) copy of a current and valid CalTrans permit; (2) description of any complaints from CalTrans or the City regarding the Digital Billboard; (3) description of any complaints from lie public regarding the display unrelated to any content of the messages displayed; and (4) a list of all City Messages displayed during the preceding year of the Term per Section 1.7.3 and a description of the time and duration of such displays. 4. DEFAULT AND REMEDIES 4.1 Termination of Agreement. 4.1.1 Ter-mination of A greement.for Material Dqf4ult o AlyWcant. City mayAf terminate this Agreement for any failure of Applicant to perform any material duty or obligation of Applicant hereunder or to comply in good faith with the material terms of this Agreement (hereinafter, such failure by either party being referred to as "Default" or Breach"); provided, however, City may terminate this Agreement pursuant to this Section only after (a) providing a thirty (3 0) calendar day notice to cure to Applicant, and (b) Applicant's failure to cure the Default or Breach during the 30-day cure period„ provided if any such Default or Breach would reasonably require more than thirty (30) days to cure, such termination right shall not accrue unless Applicant fails to commence curing With the thirty (30) clay notice period or fails thereafter to promptly, effectively, and continuously proceed with the cure of such failure. In the even( of termination of this Agreement by City tinder this Section, Applicant acknowledges and agrees that City may retain all reimbursement costs paid by the Applicant to the City pursuant to Section 1,72 and application fees paid by the Applicant to the City prior to the date of termination. 4.1.2 Termination o 'Agi-eenieiit.1i)t-,iftit,et-i(iI Dqfitult offity. Applicant, in its discretion, may terminate this Agreement for any Default or Breach by City; provided, however, Applicant may terminate this Agreement pursuant to this Section only after (a) providing a thirty (30) day notice to cure to City, and (2) City's failure to cure the Default or Breach during the 30-day cure period; provided if any stich Default or Breach would reasonably require More than thirty (30) days to cure, such termination right shall not accrue unless City fails to commence curing with the thirty (30) day notice period or fails thereafter to promptly, effectively, and continuously proceed with the Cure of such failure. In the event of a termination by Applicant under this Section, Applicant acknowledges and 5 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F agrees that City may retain all reimbursement costs paid by the Applicant to the City pursuant to Section 1.7.2. and application fees paid by the Applicant to the City prior to the date of termination. 4.1.3 Termination qfAgreement.following Revocation qf CUP This Agreement shall immediately terininate upon revocation of Conditional Use Permit No. - approved immediately prior to or concurrently with this Agreement) authorizing the replacement of the Existing Sign with the Digital Billboard, In the event of termination Linder this Section, Applicant acknowledges and agrees that City may retain all reimbursement costs paid by the Applicant to the City pursuant to Section 1.7.2, and application fees paid by the Applicant to the City prior to the date of termination. 4.1.4 Termination of Agreement following Expiration or Earlier Termination Digital Lease. Notwithstanding the foregoing. This Agreement shall immediately terminate upon the expiration or earlier termination of the Digital Lease, 5. INDEMNIFICATION Applicant agrees to indemnity, defend, and hold harmless City, its elected and appointed officials, boards, commissions, agents, contractors, and employees from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorney's fees and costs) which may arise, directly or indirectly, from the acts, emissions, or operations of Applicant or Applicant's agents, contractors, subcontractors, agents or employees in connection with the performance of this Agreement, the use and occupation of the Site, and the use and operation of the Digital Billboard, but excluding any loss resulting from the sole negligence or willful misconduct of the City, or its elected and appointed officials, boards, commissions, officers, agents, contractors and employees. Notwithstanding the foregoing, City shall have the right to select and retain counsel to defend any action or actions and Applicant shall pay the reasonable cost thereof. The indemnity provisions set forth in this Agreement shall survive termination of this Agreement. 6. MISCELLANEOUS PROVISIONS 6.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within 10 calendar days of execution, as required by Government Code Section 65868.5. Amendments approved by the Parties, and any cancellation, shall be similarly recorded, 6.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any Such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement, 6 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 6.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable if that stricken term, provision, covenant or condition is not material to the main purpose of this agreement, which is to allow the Digital Billboard to be permitted and operated and to provide public benefits to tire City; otherwise, this Agreement shall terminate in its entirety, unless the Parties otherwise agree in writing,which agreement shall not be unreasonably withheld. 6.4 Interpretation and Governing Law, This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California, This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the Parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting party or in favor of the non-drafting party, shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 6.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall riot affect any construction or interpretation of this Agreement. 6.6 Singular and Plural. As used herein, the singular of any word includes the plural. 6.7 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 6.8, Waiver. Failure of a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the Default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 6.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the Parties and their successors and assigns. No other person shall. have any right of action based upon any provision of this Agreement. 6.10 Force Majeure. Neither party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of(,,od, fires, rains, winds, wars, terrorism, riots or similar- hostilities, strikes and other labor difficulties beyond the party's control (irlClUding the party's employment force), government actions and regulations (other than those of the City), court actions (such as restraining orders or injunctions), or other causes beyond the party's reasonable control, If any such events shall occur except as otherwise provided herein, the term of this Agreement and the time for performance shall be extended for the duration of each such event, provided that the term of this Agreement shall not be extended under any Circumstances for more than five (5) years and further provided that if such delay is longer than six (6) months, Applicant may terminate this Agreement upon written notice to City and City shall return to Applicant any portion of the contribution paid for any period after the effective date of such termination. 7 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 6.11 Mutual Covenants.The covenants contained herein are Mutual covenants and also constitute conditions to the coricurrent or subsequent performance by the party benefited thereby of the covenants to be performed Hereunder by such benefited party. 6.12 Litigation. Any action at law or in equity arising under this Agreement or brought. by any party hereto for the purpose of enforcing, construing or determining the validity of any of this Agreement shall be :filed and tried in the Superior Court of the County of Orange, Mate of California, or such other appropriate court in said county. Service of process on City shall be made in accordance with California law. ,Service of process on Applicant shall be remade in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between City and Applicant seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled tinder this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys' fees. 6.13 Covenant Not to Sue. The Parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable, The Parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence„ maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other party to this Agreement, in law or in equity, which is based on an allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable. 6,14 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the Digital Billboard project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each. party is are independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership,joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Applicant is that of a government entity regulating the development of private property, on the one hand, and the holder of a legal or equitable interest in such property on the other hand. City agrees that by its approval of, and entering into, this Agreement„ that it is not taping any action which would transform this private development into a "public work" project, and that nothing herein shall be interpreted to convey upon Applicant any benefit which would transform Applicant's private project into a public work project, it being understood that this Agreement is entered into by City and Applicant upon the exchange of consideration described in this Agreement, including the Recitals to this Agreerent which are incorporated into this Agreement and made a part hereof, and that City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Applicant by this Agreement. 6.15 F'urtlaer Actions and Instruments. Each of the Parties shall cooperate with and. provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this 8 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 6.16 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain or Applicant's right to seek and collect just compensation or any other remedy available to it, 6.17 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both Parties specifically approving the amendment and in accordance with the Government Code: provisions for the amendment of Development Agreements. The Parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non-material modifications may be approved by the City Manager. 618 Corporate Authority. The person(s) executing this Agreercrent on behalf of each of the Parties hereto represent and warrant that (i) such party, if riot an individual,is drily organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bounhd. 6.19 Notices. All notices under this Agreement shall be effective when delivered by United States Postal Service mail, registered or certified, postage prepaid return receipt requested or overnight courier; and addressed to the respective Parties as set forth below or as to such other address as the Parties may from time to time designate in writing by providing notice to the other party: To City: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Manager With Copy to: Woodruff& Smart 555 Anton Boulevard„ Suite 1200. Costa Mesa, CA 92626 Attn: David Keridi,g„ Esq. To Applicant: Dutfront Media LLC Attention: Collin Smith 1731 Workman Street Los Angeles„ CA 90031 9 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 6.20 No nliability of City Officials. No officer, official, member, employee, agent, or representatives of City shall be liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative. 6.21 No Brokers. City and Applicant represent and warrant to the other that neither has employed any broker and/or finder to represent its interest in this transaction. Each party agrees, to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorneys' fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder's fee in connection with this Agreement or arising out of agreements by the indemnifying party to pay any commission or finder's fee. SIGNATURES ON NEXT PAGE] 10 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first set forth above. City: CITY OF TUSTIN By: Matthew S. West, City Manager ATTEST:. By: Erica N. Yasuda, City Clerk APPROVED AS TO FORM: By: David E. Kenclig, City Attorney Applicant: OUTFRONT MEDIA LLC, a Delaware limited liability company By: Its: By: Its: DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F fC EXHIBIT A to D A 4 1021 EDINGERAVENUE TUSTIN,,CA APN 43CJ 252 Y> w C1 EXISTING BILLBOARD 4. Y," r r A rt f DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Exhibit "B" to DA 2023-0001 Billboards to be Removed dmU"n^ ,., „„., s r9r`Un r "imlj„F B YY%"x fnfm t"'ar lni„' ,,j ivl m; J>vv+,lj',r„tr" u',°'J'`°pr,/nJ I yi n rti"=N, u,. ,R W;, r r ; n ". 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' >tr' f N< r i-% rr r aw l,"myU/ r e !w'N e,Na;'k "s' U y,,,Ur" v,l'.,y Z6 r r ' d chm1J fir(/',,f r/i/.^^^ r/i!//q r a' y rd w/'k "•;`J 9 'NW% v /aF i r f 0 f mrr l' N /i ,, w„„.,»• r/f"i /y '' " %r m' r J /; v, Ml M l 4%1" a. r //, Sir Y"` / m r p lii r r r rJ r fray / e rl v r / r' Uf///////r k f z/' r l/ r" rr ra,. 9,y re 1 / / {;u!W L' N,p", y/ // r; .a 6 ;; ,,, E prvp r e w, a,,,1,,,u„"l,.afk;,fi;aa ,,,ro",,e ,a,. _,.,,, .. vim.,"",,..a.1- d"'I .,.w Ga DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F EXHIBIT B RESOLUTION NO. 4480 CONDITIONS OF APPROVAL CONDITIONAL USE PERMIT 2023-0008 DEVELOPMENT AGREEMENT 2023-0001 GENERAL 1) 1.1 The proposed project shall be in compliance with the Tustin City Code TCC), and City of Tustin Guidelines and Standards and conform with submitted plans for the project date stamped October 24, 2023, on file with the Community Development Department, except as herein modified, or as modified by the Community Development Director in accordance with this Exhibit. The Community Development Director may also approve minor modifications to plans during plan check if such modifications are consistent with the provisions of the TCC, and other applicable codes. 1) 1.2 Unless otherwise specified, the conditions contained in this Exhibit shall be complied with as specified or prior to the issuance of any building permits for the project, subject to review and approval by the Community Development Department. 1) 1.3 The subject project approval shall become null and void unless the use is established within twelve (12) months. All time extensions may be considered by the Community Development Director if a written requiest is received within thirty (30) days prior to expiration date, 1) 1.4 Approval of project is contingent upon the applicant returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner si'lgniing and recording with the County Clerk-Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval" form. The forms shall be established by the Community Development Director, and evidence of recordation shall be provided to the Community Development Department. 1) 1.5 Conditional Use Permit 2023-0008 shall be null and void if Development Agreement (DA) 20123-0001 is not approved. The applicant shall comply with executed DA 2023-0001. SOURCE CODES 1) STANDARD CONDITION 5) RESPONSIBLE AGENCY REQUIREMENT 2) CEQA MITIGATION 6) LANDSCAPING GUIDELINES 3) UNIFORM BUILDING CODE/S 7) P'C/CC POLICY 4) DESIGN REVIEW EXCEPTION DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Exhibit B Resolution No. 4480 Page 2 USE RESTRICTIONS 2.1 The proposed freeway adjacent digital display billboard is allowed to display off-site advertisements subject to the stipulations of TCC 94,04(b)(7), DA-2023-0001 , and this Exhibit., 2.2 The digital display billboard shall be monitored by the operator for content and clarity of all messages. The operator will monitor the operations of the reader board messages to comply with the California Department of Transportation (Caltrans) guidelines, for signal duration and visual impact. 2.3 The digital display billboard will be limited to high-definition digital display media sources. 2.4 The following advertisements or messages are prohibited: 1. Messages that stimulate or imitate in size, color, lettering, or design of any traffic sign or signal, or which make use of the words Stop," "Look," "Danger," or any other words, phrases, symbols, or characters in such a manner as to interfere with, mislead, or confuse traffic. 2. Messages and/or advertisements that are audible or emitting sounds. 2.5 The digital display billboard shall comply with all applicable laws regarding brightness, including, without limitation, California Vehicle Code Section 21466-5. 2.6 The display of still images or messages shall be programmed to display for a minimum of eight (8) seconds. The still images may not move or present the appearance of motion and may not use flashing, scintillating, blinking, or traveling lights or any other means not providing constant illumination. Transition or blank screen time between one (1) still image and the next may not exceed one (1) second. 2.7 The operator of the freeway adjacent digital display billboard must comply with all applicable federal, state, or local laws, including the Highway Beautification Act of 1965 (23 United States Code Section 131), the Outdoor Advertising Act (California Business and Professions Code Section 5200 et seq.), and Chapter 4 of Article 9 of the TCC when constructing, operating, improving, maintaining, repairing, and removing the freeway adjacent digital display billboard, DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Exhibit B Resolution No. 4480 Page 3 2.8 The property owner and/or billboard operator shall obtain and maintain approval from Caltrans for outdoor advertising displays visible from California highways and any other applicable Caltrans regulations. The applicant shall provide a copy of said Caltrans approval to the City upon request. 2.9 The CUP approval for the freeway adjacent digital display billboard and associated off-site advertisements shall remain valid while DA 2023-0001 remains in effect. The approval for CUP 2023-0008 shall expire upon the expiration: of DA 2023-01001 , and the freeway adjacent digital display billboard shall cease display of off-site advertisements. 2.10 The existing static billboards located at 1631 El Camino Real, 1501 Nisson Road', and 14092 Red Hill Avenue shall be removed, at no cost to the City, within ninety (90) calendar days following the effective date of the Development Agreement or prior to final inspection of the new digital display billboard, whichever is first. 2.11 The proposed sign must be kept in good working and aesthetic condition at all times. ORDINANCE NO. 1505 MITIGATION MEASURE COMPLIANCE 2) 3.1 The maximum intensity of light ouitpult produced by the digital display billboard shall not exceed 0.3 foot-candle at a distance of 250 feet. 2) 3.2 The light-emitting diode (LED) billboard shall include and maintain an operating mechianis,m that turns off the display or turns it all to black in the event of a, malfunction or failure in any system or subsystem that results in the display wholly or partly appearing to flash. 2) 3.3 The operational lighting parameters for the digital display billboard shall be maintained as approved by the Community Development Department and shall be implemented by the applicant to minimize trespass glare lighting on residents and drivers. Modifications to these parameters may be approved subject to the discretion of the Community Development Director. 2) 3.4 If demolition or construction activities are to occur between September 1 and January 31, the applicant shall retain a qualified biologist to conduct pre-construction surveys for nesting birds within a 250-foot radius of the billboard location to ensure no active nests will be disturbed during project implementation. This survey shall be completed no more than three (3) days prior to the initiation of replacement or relocation activities during nesting season., During this survey, the biologistwill inspect the existing billboard and other DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Exhibit B Resolution No, 4480 Page 4 possible nesting habitats within 250 feet of the existing or replacement billboard location for nests. If an, active nest is found within the 250-foot survey area, the biologist will determine the extent of a buffer zone to be established around the nest, largely dependent on current site conditions typically 250 feet), to ensure that raptor or migratory bird nests will not be disturbed during billboard replacement or relocation. Prior to the commencement of construction activities and the issuance of any permits, the City of Tustin Community Development Department shall verify that all project construction plans include specific notes regarding the requirements of the Migratory Bird Treaty Act (META), that preconstruction surveys have been completed and the results reviewed by staff, and that the appropriate buffers (if needed) are noted on the site plans,. 2) 3.5 Any ground-disturbing activities associated with project activities shall be monitored closely by a certified paleontologist to quickly and professionally recover any fossil remains discovered while not impeding development. Should any soils be excavated to provide for a digital display billboard support, all removed sediments shall be collected, and professionally processed to determine the small fossil potential. Any fossils recovered during mitigation shall be deposited in an accredited and permanent scientific institution for the benefit of current and future generations. 2) 3.6 In conformance with State and local laws, including California Health and Safety Code Section 19827.5, a visual inspection and possible sampling shall be completed prior to the relocation or demolition of the billboard structure to determine the presence of asbestos, lead-based paint, or other hazardous building materials. If the assessment finds presence of such materials, the applicant shall create and implement a health and safety plan to ensure workers are not exposed to contaminants in excess of Occupational Safety and Health Administration (OSHA) and other applicable State and Federal standards and associated risks associated with hazardous materials during demolition, renovation of affected structures, transport, and disposal. In the event of Ibillboard relocation activities, all materials containing lead- based paint shall be removed in accordance with CaIOSHA Lead in, Construction Standard, Title 8, California Code of Regulations 1532.1, including employee training, employee air monitoring, and dust control. In the event of billboard relocation activities, all materials containing asbestos and/or lead-based paint shall be handled and removed by qualified professionals in accordance with applicable regulations, DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Exhibit B Resolution No. 4480 Page 5 including South Coast Air Quality Management District (SCAQMD) Regulation XIV, Rule 1403; Title 22, California Code of Regulations, Section 66261.24- 1 and Title 8, California Code of Regulations, Section 1532.1 Any debris or soil containing asbestos lead-based paint or coatings shall be disposed of at landfills that meet acceptance criteria for the waste being disposed. 2) 3.7 To reduce potential construction noise impacts, the following multi-part mitigation measure shall be implemented for the project: The construction contractor shall ensure that all internal combustion engine-driven equipment is equipped with mufflers that are in good condition and appropriate for the equipment. The construction contractor shall locate stationary noise- generating equipment as far as possible from sensitive receptors when sensitive receptors adjoin or are near a construction project area. In addition, the construction contractor shall place such stationary construction equipment so that emitted noise is directed away from sensitive receptors nearest the project site. The construction contractor shall prohibit unnecessary idling of internal combustion engines, The construction contractor shall, to the maximum extent practical, locate on-site equipment staging areas so as to maximize the distance between construction-related noise sources, and noise- sensitive receptors nearest the project site during all project construction. The construction contractor shall limit all construction activity, including material delivery and equipment warmup or idling, to the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, and 9:00 a.m. and 5-00 p.m. on Saturdays. No construction activity will be permitted on Sundays or City-observed Federal holidays., BUILDING DIVISION 1) 4.1 The applicant shall obtain all necessary building and grading permits prior to commencing construction or demolition activities. 2) 4.2 Prior to the commencement of construction, demolition, or grading activities occurring between September 1 and January 31, the applicant shall provide to the Community Development Department an executed contract demonstrating that a qualified biologist has been retained to DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Exhibit B Resolution No. 4480 Page 6 conduct pre-construction surveys for nesting birds within a 250-foot radius of the billboard location to ensure no active nests will be disturbed during project implementation. This survey shall be completed no more than three (3) days prior to the initiation of replacement or relocation activities during nesting season. 2) 4.3 Prior to the commencement of any ground-disturbing activities associated with project activities, the applicant shall provide to the Community Development Department an executed contract demonstrating that a certified paleontologist has been retained to monitor project activities to quickly and professionally recover any fossil remains discovered. 2) 4.4,Prior to the relocation or demolition of the existing billboard structure, a visual inspection and possible sampling shall be completed to determine the presence of asbestos, lead-based paint, or other hazardous building materials. The results of such inspection, shall, be reported to the Community Development Department and addressed as described in Condition 3.6. PUBLIC WORKS DEPARTMENT 5.1 Prior to issuance of any permit, the applicant shall enter into a License Agreement with the City of Tustin regarding the encroachment of camera and camera arm equipment into the Edinger Avenue public right-of-way. The applicant shall be responsible for costs associated with City Attorney review and recordation of this agreement. 1) 5.2 Construction and Demolition Waste Recyclingi and Reduction Plan WRRP). Prior to issuance of any permit, the applicant/contractor is required to submit a WRRP to the Public Works Department, The WRRP must indicate how the applicant will comply with the City's requirement (City Code Section 4351, et al) to recycle at least sixty-five (65) percent of the project waste material or the amount required by the California Green Building Standards Code. The applicant will be required to submit a fifty-dollar ($50.00) application fee and a cash security deposit. All projects shall submit a security deposit in the amount of five (5) percent of the project's valuation as determined by the Building Official, rounded to the nearest thousand. FEES 1) 6.1 Within forty-eight (48) hours of filnal approval of the project, the applicant shall deliver to the Community Development Department, a CASHIER'S, CHECK payable to the County Clerk in the amount of fifty dollars ($50,00) DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Exhibit B Resolution No. 4480 Page 7 to enable the City to file the appropriate environmental documentation for the project. If within such forty-eight (48) hour period thiat applicant has not delivered to the Community Development Department the above-noted check, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the California Environmental Quality Act could be significantly lengthened. 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J!iF r wt ii rrv/ J ^„it i r I`P ;/ /y r f///r% `'% G "Hui r+'"'%` tl ' y ' i", i /y Y/1, nif>r r,oc r ds,:"vJ°%l l;fr, , ,,, r^..:,,;,,", ,,,/+/( v yJ// ;;',,,'NV'`s(, ,f I M.,,,'/,/ i% //,dx, arv"'Ar ati, ;,,,dd-ti "iw./!,:,,..'. D;u 'v,"m.'a'„in':id DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edxhibit ,D DRAFT ORDINANCE NO. 1539 AN ORDINANCE OF THE CITY COUNCIL, OF THE CITY OF TUSTIN, APPROVING DEVELOPMENT AGREEMENT 2023- 0001 BETWEEN THE CITY OF TUSTIN AND OUTFRONT MEDIA, LLC. IN ASSOCIATION WITH CONDITIONAL USE PERMIT 2023-0008 FOR A FREEWAY ADJACENT DIGITAL DISPLAY BILLBOARD AT THE CITY-OWNED PROPERTY LOCATED AT 1021 EDINGER AVENUE The City Council of the City of Tustin does hereby ordain as follows: SECTION 1, The City Council finds and determines as follows: A. That a proper application has been submitted by David Ryan of Outfront Media, LLC for the replacement of an existing static billboard with a new ninety-foot-tall (90') freeway adjacent digital display board with two (2) sign faces measuring twenty feet (20') by sixty feet (60') each. The project also includes the removal of three (3) off-site static billboards located at 1631 El Camino Real, 1501 Nisson Road, and 14092 Red Hill Avenue. B. That pursuant to Tustin City Code (TCC) Section 9404(b)(7) and Ordinance No. 1505, freeway adjacent digital display billboards require approval of a Conditional Use Permit (CUP), Development Agreement DA) and public benefits. C. That DA 2023-0001 serves to identify public benefits in association with CUP 2023-0008 for a freeway adjacent digital display billboard at 1021 Edinger Avenue. D. That a public hearing was duly called, noticed, and held on said application on October 24, 2023, by the Planning Commission. The Planning Commission adopted Resolution No. 4480 recommending thiat the City Council adopt Ordinance No, 1539 and approve the proposed CUP and DA. E. That a public hearing was duly called, noticed, and: held on said application on by the City Council. F. That the City Council determined the subject project to be exempt from the California Environment Quality Act (CEQA) pursuant to State CEQA Guidelines Section 15162, Section 151162 states that, when a negative declaration has been adopted for a project, no subsequent environmental impact report (EIR) shall be prepared for that project under certain conditions, In February 2020, the City adopted Ordinance No. 1505 and related Initial Study/Mitigated Negative Declaration adopted MND) to allow the conversion of static freeway adjacent DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Ordinance No. 1539 DA-2023-0001 Page 2 billboards to digital billboards subject to complying with development standards and obtaining a CUP and DA. CEQA compliance for the digitization and relocation of the proposed billboard was documented throughout the adopted MND. The project will be required to comply with applicable mitigation measures identified in the adopted IVIND. Accordingly, the project qualifies for the Section 15162 exemption because: 1 . There are no substantial changes proposed which will require major revisions of the previous negative declaration as there are no new significant environmental effects nor a substantial increase in the severity of previously identified significant effects; 2. There are no substantial changes with respect to the circumstances under which the project is undertaken which require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and, 3. There is no new information of substantial importance which was not known and could not have been known with the exercise of reasonable diligence at the time the previous negative declaration was adopted. G. That the DA can be supported by the following findings: 1. The project is consistent with the objectives, policies, general land uses and programs specified in the General Plan and the Pacific Center East Specific Plan in that the proposed freeway adjacent digital display billboard use is a conditionally permitted use that supports City programs and generates revenue. 2. The project is compatible with the uses authorized in the district in which the real property is located in that the existing static billboard is the only sign that qualifies for replacement with a digital display billboard pursuant to TCC 9404(b)(7). 3. The project is in conformity with the public necessity, public convenience, general,welfare, and good land use practices in that the agreement incorporates public benefits in the form of advertisements for city events and financial contributions to the City. Moreover, three 3) existing static billboards located elsewhere in the City will be removed as a plublic benefit, 4. The project will not be detrimental! to the health, safety, and general welfare in that the proposed digital display billboard is replacing an existing static billboard and will comply with the mitigation measures DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Ordinance No. 1539 DA-2023-0001 Page 3 established with Ordinance No. 1505, which codified TCC 9404(b)(7). That, as conditioned, the billboard structure and use will not be detrimental to health, safety, and general welfare, 5. The project will not adversely affect the orderly development of property in that the proposed sign is located closer to the southwestern corner of the site to maximize the amount of square footage available for future development. 6. The project will have a positive fiscal impact on the City in that the provisions of the proposed DA and conditions of approval will ensure that the project will have a positive fiscal impact on the City. H. That the City Council makes the following findings pursuant to TCC 9404(b)(7); 1. That the proposed sign complies with the requirements of TCC 9404(b)(7) and Chapter 4 of Article 9 of the TCC; 2. That the proposed sign, will not create a traffic or safety hazard; 3. That the proposed sign will not create a nuisance to adjacent property; and, 4. That the proposed sign will not result in any undue or significant increase in visual clutter in the area surrounding the parcel upon which the freeway adjacent digital display billboard will be located. SECTION 2. The City Council hereby approves DA-2023-0001 attached hereto as Exhibit A and subject to final approval of the City Attorney. SECTION 3. Severability, If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F ______________________ Ordinance No. 1539 Page 4 of 4 PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this 21st of November, 2023. ___________________________________ AUSTIN LUMBARD, Mayor _______________________ __ ERICA N. YASUDA, City Clerk APPROVED AS TO FORM: _______________________________ DAVID E. KENDIG, City Attorney STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) I, Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1539 was duly and regularly introduced at a regular meeting of the Tustin City Council, held on the 21st day of November, 2023 and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the ___ day of _ _, 2023, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: COUNCILMEMBER RECUSED: ERICA N. YASUDA, City Clerk Exhibit A: Development Agreement 2023-0001 DocuSign Envelope ID: 1A2A7352-CBF3-41D7-B225-6C8A945888C7DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Minutes – Planning Commission Meeting – October 24, 2023 – Page 1 DRAFT MINUTES COUNCIL CHAMBER & VIDEO CONFERENCE TUSTIN PLANNING COMMISSION MEETING OCTOBER 24, 2023 7:00 P.M. CALL TO ORDER Given. INVOCATION: Kenneth J. Perine, Major – The Salvation Army Tustin Ranch Given. PLEDGE OF ALLEGIANCE: Commissioner Mello Present. ROLL CALL: Commissioners Douthit, Higuchi, Kozak, Mason, Mello None. PUBLIC INPUT: Approved the October 10, 2023 Meeting Minutes. CONSENT CALENDAR: 1.APPROVAL OF MEETING MINUTES – OCTOBER 10, 2023 RECOMMENDATION: That the Planning Commission approve the Minutes of the October 10, 2023 Planning Commission meeting, as provided. Hurtado Hurtado confirmed there was no public input. Motion: It was moved by Mason, seconded by Higuchi, to approve the Minutes of the October 10, 2023 meeting, as presented. Motion carried: 5-0. PUBLIC HEARING: 2.CONDITIONAL USE PERMIT (CUP) 2023-0008 AND DEVELOPMENT AGREEMENT (DA) 2023-0001 PROPERTY OWNER: CITY OF TUSTIN 300 CENTENNIAL WAY TUSTIN, CA 92780 ATTACHMENT E DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Minutes – Planning Commission Meeting – October 24, 2023 – Page 2 APPLICANT: DAVID RYAN OUTFRONT MEDIA LLC 1731 WORKMAN STREET LOS ANGELES, CA 90031 LOCATION: 1021 EDINGER AVENUE (APN: 430-252-05) ENVIRONMENTAL STATUS: This project is Categorically Exempt pursuant to Section 15162 of the California Environmental Quality Act (CEQA) Guidelines (Cal. Code of Regs., Title 14, Section 15162). REQUEST: A request to replace an existing static billboard with a new freeway adjacent digital billboard with an overall height of ninety (90) feet and two (2) sign faces measuring twenty (20) feet by sixty (60) feet each. RECOMMENDATION: That the Planning Commission adopt Resolution No. 4480 recommending the City Council approve Conditional Use Permit (CUP) 2023-0008 and Development Agreement (DA) 2023-0001 to replace an existing static billboard with a new, freeway adjacent digital billboard with an overall height of ninety (90) feet and two (2) sign faces measuring twenty (20) feet by sixty (60) feet each and removal of three (3) other off-site static billboards. Maldonado Presentation given. Higuchi Higuchi’s questions/comments generally included: noticing requirements; if there were residents living within 300 feet of the billboard; if any public comments were received; land use designation under the Pacific Center East Specific Plan; and if the project location is a permitted land use. Maldonado In response to Higuchi’s questions, Maldonado stated that the noticing was standard and the mailers were sent to property owners and residents located 300 feet from the project site, including posting on the newspaper, City library, Senior Center and City e-board; the closest resid ential property was approximately 400 feet away from the proposed billboard; notices were mailed to residential properties to the north of the project site, which was a condominium complex; there were no public comments received referencing the notice; the land designation being commercial center; and per Ordinance 1505, billboards have to be located on commercial properties, which includes the project location. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Minutes – Planning Commission Meeting – October 24, 2023 – Page 3 Douthit Douthit asked if the land is owned by the City of Tustin. He also asked how the lease agreement is drafted regarding the leased space and if the entire lot is leased. Craig In response to Douthit’s questions, Craig stated that the lease space is a 10x10 square foot area with the balance of the property belong ing to the City . The idea was to bring the billboard close to the property line so that the remaining property, at such time, could be developed. Currently the property is set asid e for the Newport Avenue extension. Mello Mello asked when the Newport Avenue extension is scheduled to occur. Willkom In response to Mello’s question, the Newport Avenue extension was included as part of the Pacific Center East Specific Plan (PCESP); however, the community and the City Council determined that there is a higher need to complete Tustin Ranch Road in advance of the Newport Avenue extension, which was completed and as a result, the Newport Avenue extension may or may not be necessary. City staff will need to conduct further studies of the PCESP to see if the Newport Avenue extension will need to occur and the City would need to look at the PCESP since it is outdated. Kozak Kozak asked Willkom if the studies have been scheduled and if so when would they occur. Willkom In response to Kozak’s question, Willkom stated that currently a date has not yet been scheduled for a study. Mason Mason asked if the City would benefit financially from this project and if there would be any revenue from the billboard advertising or if the City would lose revenue. Craig Per Craig, there is a lease agreement that was approved by the City Council in November 2022 which was conditional upon the applicant receiving the entitlements which means no executed lease agreement. Upon the effective date of the DA, then that lease agreement would be executed . The City would receive a portion of the revenue generated from the billboard advertising. (approximately 90 days from the effective date of the DA). Douthit Douthit asked about the lease of the entire property and when the signs would be installed/removed, etc. He asked about the State legislation regarding city-owned properties (vacant lots) and affordable housing . He also asked about the 90 days to remove the static billboards and if that timeline relative to the DA being approved and signed or when the billboard is erected. Douthit also asked if there was any intention to replace the static billboards with digital billboards of the three si tes Craig Per Craig, a portion surrounding the billboard belongs to the City. The City currently has a lease with one of Tustin’s car dealers on a portion of the property. The City has approximately four (4) acres (with 1 acre leased out) and the idea is to move the billboard to the front of the site (Newport Avenue) and whether or not the City does DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Minutes – Planning Commission Meeting – October 24, 2023 – Page 4 or does not move forward with Newport Avenue extension, a small portion of the property would be used to allow development. The surplus land act does not apply to this case since it is a lease and the City confirmed that anything under 5,000 square feet is not subject to the surplus l and act . Craig further explained the Billboard Ordinance to the Commission. Craig stated removal of the static billboards would occur 90 days from the effective date of the DA. Craig confirmed there was no intention of replacing the three offsite static billboards with digital billboards. He thanked Willkom for working with him on getting the ordinance complete. The purpose of the Billboard ordinance is to remove as many static billboards as possible in Tustin. Kozak Kozak asked if the vacant lot is zoned commercial and if there are any development proposals. Maldonado Maldonado confirmed the vacant lot is zoned commercial center and currently there are no development proposals. Craig Craig further discussed the Surplus Land Act and whether or not the Newport Avenue extension would occur. Mello Mello asked about the brightness of the signs (standard city street lighting in comparison to the billboard) as well as the frequency in change of the signs. He asked Maldonado to provide a comparison between a city street light and the billboard lighting. Mello also asked what the frequency in messaging on the billboard. Maldonado In response to Mello’s question regarding sign brightness, Maldonado referred to the MND, mitigation measure for brightness impacts. What is being proposed is well below the requirement. For comparison, the City’s security ordinance requires lighting in walkways, parking lots, etc. at nighttime be illuminated with one (1) foot candlelight, which is half of what the billboard brightness would be. The digital billboard would display still images for a minimum of eight (8) seconds / display transition maximum of one (1) second (per CalTrans requirements – less distraction for drivers of constant image change). Higuchi Higuchi asked what the noticing requirement was for this item. He also asked if the ordinance codifies the reimbursement for the MND cost. Maldonado Maldonado explained the noticing requirements (300 feet radius from the project site) to Higuchi. As far as the reimbursement, that is one of the public benefits being identified as part of the DA. Mello Mello’s final comments: in favor of removing the three (3) offsite signs; seems the light mitigation will not be an issue for the nearby residents; concern with the 8 seconds for sign change (i.e. concern the billboards will be another distraction for freeway traffic). DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Minutes – Planning Commission Meeting – October 24, 2023 – Page 5 Higuchi Favorable comments to staff for creating a solution to the aesthetic issues. Shared his experience with driving past billboards and the lighting not being that bright. Higuchi voiced his concern with the outdated Pacific Center East Specific Plan. He suggested noticing be 1,000-foot radius and that additional noticing occur before the item goes before the City Council. Maldonado Maldonado briefly explained the CEQA review process when the MND was first being drafted for the ordinance, there would have been an extensive public outreach. Motion: It was moved by Higuchi, seconded by Douthit to approve Resolution No. 4480. Motion passes 4-1. Ayes: Douthit, Higuchi, Kozak and Mason. Noes: Mello. None. REGULAR BUSINESS STAFF CONCERNS: Willkom No concerns. COMMISSION CONCERNS: Commission The Commission, collectively, had no concerns. Kozak Kozak thanked Higuchi for covering him at the last meeting when he was ill. 7:36 ADJOURNMENT: The next regular meeting of the Planning Commission is scheduled for Tuesday, November 14, 2023. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 55 f Lead Agency: City of Tustin Planning Division Community Development Department 300 Centennial Way Tustin, CA 92780 Project Applicant: Outfront Media 185 US Highway 46 Fairfield, NJ 07004 CEQA Consultant: 3333 Michelson Dr, Suite 500 Irvine, CA 92612 October 2023 EDINGER AVENUE BILLBOARD CONVERSION PROJECT Environmental Consistency Analysis ATTACHMENT F DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis This page intentionally left blank. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis i TABLE OF CONTENTS 1 Introduction ........................................................................................................................ 1 1.1 Purpose ............................................................................................................................................................. 1 1.2 Previous Environmental Documentation ....................................................................................................... 1 2 Project Description ............................................................................................................. 2 2.1 Existing Setting ................................................................................................................................................ 2 2.2 Proposed Project ............................................................................................................................................. 2 3 Environmental Checklist Factors ...................................................................................... 14 3.1 Environmental Factors Potentially Affected ............................................................................................ 14 3.2 Environmental Factors That Do Not Require Further Analysis ............................................................. 14 3.3 Evaluation of Environmental Impacts ........................................................................................................ 15 3.4 Determination ............................................................................................................................................... 16 4 CEQA Compliance Checklist Questions ........................................................................... 17 4.1 Aesthetics ....................................................................................................................................................... 17 4.2 Biological Resources .................................................................................................................................... 24 4.3 Geology and Soils ....................................................................................................................................... 26 4.4 Hazards and Hazardous Materials ......................................................................................................... 27 4.5 Noise .............................................................................................................................................................. 29 5 Conclusion ....................................................................................................................... 30 6 References ....................................................................................................................... 31 Figures Figure 1: Aerial View ......................................................................................................................................................... 4 Figure 2: Project Vicinity ................................................................................................................................................... 6 Figure 3a: Existing Billboard Photos ............................................................................................................................... 7 Figure 3b: Existing Billboard Photos ............................................................................................................................... 9 Figure 4: Digital Display Billboard Elevations ........................................................................................................... 12 Figure 5: Lighting Study ................................................................................................................................................. 21 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis ii This page intentionally left blank. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 1 1 INTRODUCTION 1.1 PURPOSE The purpose of this Environmental Consistency Analysis is to determine if the potential environmental impacts of the proposed 1021 Edinger Avenue Digital Display Billboard Project are addressed in the City of Tustin Freeway Adjacent Digital Display Billboards Ordinance adopted Mitigated Negative Declaration (adopted MND) pursuant to the CEQA Guidelines Section 15162. Based on this analysis, the proposed Project would be consistent with the adopted MND, and no further analysis is required. 1.2 PREVIOUS ENVIRONMENTAL DOCUMENTATION In February 2020, the City of Tustin (City) adopted the City of Tustin Freeway Adjacent Digital Display Billboards Ordinance (Ordinance No. 1505) and related Initial Study/Mitigated Negative Declaration (adopted MND). Prior to Ordinance No. 1505, the City’s signs regulations generally prohibited “off- premises” signs, which are defined by the City to include any commercial sign or structure erected and/or maintained for advertising a business, activity, service, or product not sold or produced on the premises upon which the sign is placed, including a billboard or any other outdoor advertising sign and structure. The City of Tustin Freeway Adjacent Digital Billboards Ordinance Initial Study (IS) included an amendment to Tustin City Code Article 9, Chapter 4, to exempt certain freeway adjacent digital display billboards from the Sign Regulations prohibition of off-premises signs. The code amendments allow freeway adjacent digital display billboards in commercial zones, upon approval of a Conditional Use Permit (CUP) and Development Agreement. The ordinance took effect on March 6, 2020. Per Ordinance No. 1505, a digital display billboard may only replace an existing billboard and new freeway adjacent billboards are not allowed. In order to replace a static billboard with a digital billboard, the existing billboard must be located within 400 feet of either the Interstate 5 (I-5) or the State Route 55 (SR-55) right of way and may not be within 300 feet of the nearest residential property. The adopted MND analyzed six existing billboards and determined that, of the six existing billboards, only one billboard (Billboard 1) would be eligible for conversion to a digital display because it met the criteria of not being located within 300 feet of any residentially zoned property and is located within 400 feet of SR-55. As described in the adopted MND, Billboard 1 is located along the east side of SR-55, approximately 75 feet northeast of Edinger Avenue, on a parcel identified as Assessor’s Parcel Number (APN) 430-252-05. The existing billboard site zoning is “Specific Plan No. 11–Pacific Center East Specific Plan (PCESP). CEQA compliance for the digitization of Billboard 1 was documented through the adopted MND. Construction activities analyzed in the adopted MND that are associated with the conversion of Billboard 1 to a digital display include: removing the existing copy, removing the existing billboard section, and removing the metal pieces that attach the sign to the billboard. The static billboard would then be upgraded with light-emitting diode (LED) face to allow for digital advertisements. The billboard could also undergo alterations in height, orientation, and display. In addition, the adopted MND states that the billboard could potentially be relocated to the western corner of the property, should the property owner wish to move the billboard within the existing property to allow for potential future development on the parcel. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 2 2 PROJECT DESCRIPTION 2.1 EXISTING SETTING Project Location The proposed Project location is within the southwestern portion of the City of Tustin at 1021 Edinger Ave, Tustin, CA 92780. Regional access to the site is provided by SR-55 to the east and I-5 to the north. Local access to the site is via Edinger Ave, located south of the site. The project site and surrounding area are shown in Figure 1, Aerial View, and Figure 2, Project Vicinity. Existing Project Site The project site is on a city-owned lot identified as Assessor Parcel Number (APN) 430-252-05. The site consists of vacant undeveloped land. There is one existing static billboard structure on the western side of the lot, which is referred to as “Billboard 1” in the adopted MND, as shown in Figures 3a and 3b, Existing Billboard Photos. The remainder of the lot is vacant undeveloped land. The existing static billboard is an 80- foot-tall double-faced billboard with sign face dimensions of 14 feet by 48 feet. The billboard is located in the western side of the lot as shown in Figure 1, Aerial View. The project site has a zoning designation of Planned Community Commercial (PC COM) and SP 11- Pacific Center East and a City of Tustin General Plan land use designation of Planned Community Commercial/Business (PCCB). The PCCB designation is intended to provide opportunities for a mixture of all activities that may be permitted within the Community Commercial, Professional Office, and Industrial land use designations. Land uses surrounding the project site are listed below and shown in Figure 2, Project Vicinity. • North: railroad followed by residential • East: railroad followed by residential • South: Edinger Ave., commercial, and hotels • West: Gas station followed by SR-55 2.2 PROPOSED PROJECT The proposed Project would demolish the existing billboard and construct a double-faced digital display billboard with Light Emitting Diode (LED) on both faces. The new billboard would be located about 55 feet southwest of the existing billboard, on the western corner of the property, to allow for future development of the parcel. The new billboard would have an overall height of 90 feet from grade to the top of the sign face. As shown in Figure 4, Digital Display Billboard Elevations, the sign face dimensions of the proposed billboard would be 20 feet by 60 feet. The billboard would be positioned on a 70-foot-tall pole that would be 48 inches to 54 inches in diameter. The design would also include a concrete footing and foundation that would extend 43 feet below grade. The pole would be a neutral color (light concrete or stone color). Further, under each digital face, a metallic gray metal sheet apron measuring 2 feet and 6 inches in height by 60 feet in width, would be placed and would serve as a platform for maintenance and repair. There are no proposed climbing ladders to prevent vandalism and unauthorized access to the billboard. The billboard would be oriented facing northwest and southwest and would be visible from SR-55. The display would be illuminated 24 hours per day, 365 days per year. The light levels emitted from the digital display would be set to adjust based upon ambient light conditions. The proposed billboard would connect to existing electrical facilities at the site, and would not require relocation, expansion, or construction of new electrical facilities. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 3 Pursuant to Tustin City Code Section 9404(b)(7), the proposed Project is subject to approval of a Conditional Use Permit and a Development Agreement. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Figure 1Edinger Avenue Billboard Conversion Project City of Tustin Aerial View DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 5 This page intentionally left blank. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Project Vicinity Figure 2Edinger Avenue Billboard Conversion Project City of Tustin DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 7 This page intentionally left blank. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project City of Tustin Figure 3a Northeast from train tracks.Northwest from adjacent gas station. Existing Billboard Photos DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 9 This page intentionally left blank. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project City of Tustin Figure 3b Southeast from empty lot.Southwest from Fairfield Inn. Existing Billboard Photos DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 11 This page intentionally left blank. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project City of Tustin Figure 4 YOUR AD IS HERE YOUR AD IS HEREYOUR AD IS HERE OUTFRONT OUTFRONTOUTFRONT CROSS SECTION SCALE: 1/16"=1'-0" SOUTH (NORTH) ELEVATION SCALE: 1/8"=1'-0" WEST ELEVATION SCALE: 1/8"=1'-0" CA-55 FWY NORTH BOUND CA-55 FWY SOUTH BOUND GAS STATION CANOPY PLAN VIEW SCALE: 1/8"=1'-0" 1 2 3 4 McNICHOLS PREFORATED SCREENING DET. 8302 S T R U C T U R E S F O U N D A T I O N S 3380 FLAIR DRIVE, SUITE 225, EL MONTE, CA. 91731 (626) 234-2247 A-3 Digital Display Billboard Elevations DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 13 This page intentionally left blank. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 14 3 ENVIRONMENTAL CHECKLIST FACTORS 3.1 ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED The subject areas checked below were determined to be new significant environmental effects or to be previously identified effects that have a substantial increase in severity either due to a change in project, change in circumstances or new information of substantial importance, as indicated by the checklist and discussion on the following pages. Environmental Factors Potentially Affected None Aesthetics Agriculture/Forestry Resources Air Quality Biological Resources Cultural Resources Energy Geology/Soils Greenhouse Gas Emissions Hazards/Hazardous Materials Hydrology/Water Quality Land Use/Planning Mineral Resources Noise Population/Housing Public Services Recreation Transportation Tribal Cultural Resources Utilities/Service Systems Wildfire Mandatory Findings of Significance 3.2 ENVIRONMENTAL FACTORS THAT DO NOT REQUIRE FURTHER ANALYSIS The subject areas listed below were determined to have “No Impact” or “Less than Significant Impact” in the adopted MND. Mitigation measures were not listed for these impact categories in the adopted MND. Potential environmental impacts of upgrading and relocating Billboard 1 were already analyzed in the adopted MND. No substantial changes are proposed in the project and there are no substantial changes in the circumstances under which the project will be undertaken that will require major revisions to the previous approved ND or MND or certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Also, there is no "new information of substantial importance" as that term is used in CEQA Guidelines Section 15162(a)(3). Therefore, the previously adopted ND or MND or previously certified EIR adequately discusses the potential impacts of the project without modification. Therefore, the following subject areas require no further CEQA analysis: • Air Quality • Cultural Resources • Energy • Greenhouse Gas Emissions • Hydrology/Water Quality • Land Use/Planning • Hydrology/Water Quality • Land Use/Planning • Mineral Resources • Population/Housing • Public Services • Recreation • Transportation • Tribal Cultural Resources • Utilities/Service Systems • Wildfire • Mandatory Findings of Significance DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 15 3.3 EVALUATION OF ENVIRONMENTAL IMPACTS This analysis has been undertaken pursuant to the provision of CEQA and the State CEQA Guidelines to provide the factual basis for determining whether the proposed Project, or if any new information that has come to light, requires the preparation of a Subsequent or Supplemental IS/MND or Addendum to the adopted IS/MND. Based on the findings of the adopted IS/MND and the provisions of the State CEQA Guidelines, the City as the Lead Agency determined that the environmental effect of the proposed Project does not trigger the need for a Subsequent or Supplemental IS/MND, or an Addendum to the adopted IS/MND. CEQA Guidelines Sections 15162 through 15164 set forth the criteria for determining the appropriate additional environmental documentation, if any, to be completed when there is a previously adopted ND or a previously certified EIR for the project. CEQA Guidelines, Section 15162(a) and 15163 state that when an EIR has been certified or a ND has been adopted for a project, no Subsequent or Supplemental EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in light of the whole record, one or more of the following: 1. Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; 2. Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or 3. New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following: a. The project will have one or more significant effects not discussed in the previous EIR or negative declaration; b. Significant effects previously examined will be substantially more severe than shown in the previous EIR; c. Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or d. Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 16 3.4 DETERMINATION ☒ No substantial changes are proposed in the project and there are no substantial changes in the circumstances under which the project will be undertaken that will require major revisions to the previous approved ND or MND or certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Also, there is no "new information of substantial importance" as that term is used in CEQA Guidelines Section 15162(a)(3). Therefore, the previously adopted ND or MND or previously certified EIR adequately discusses the potential impacts of the project without modification. ☐ No substantial changes are proposed in the project and there are no substantial changes in the circumstances under which the project will be undertaken that will require major revisions to the previous approved ND or MND or certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Also, there is no "new information of substantial importance" as that term is used in CEQA Guidelines Section 15162(a)(3). Therefore, the previously adopted ND, MND or previously certified EIR adequately discusses the potential impacts of the project; however, minor changes require the preparation of an ADDENDUM. ☐ Substantial changes are proposed in the project or there are substantial changes in the circumstances under which the project will be undertaken that will require major revisions to the previous ND, MND or EIR due to the involvement of significant new environmental effects or a substantial increase in the severity of previously identified significant effects. Or, there is "new information of substantial importance," as that term is used in CEQA Guidelines Section 15162(a)(3). However, all new potentially significant environmental effects or substantial increases in the severity of previously identified significant effects are clearly reduced to below a level of significance through the incorporation of mitigation measures agreed to by the project applicant. Therefore, a SUBSEQUENT MND is required. ☐ Substantial changes are proposed in the project or there are substantial changes in the circumstances under which the project will be undertaken that will require major revisions to the previous environmental document due to the involvement of significant new environmental effects or a substantial increase in the severity of previously identified significant effects. Or, there is "new information of substantial importance," as that term is used in CEQA Guidelines Section 15162(a)(3). However, only minor changes or additions or changes would be necessary to make the previous EIR adequate for the project in the changed situation. Therefore, a SUPPLEMENTAL EIR is required. ☐ Substantial changes are proposed in the project or there are substantial changes in the circumstances under which the project will be undertaken that will require major revisions to the previous environmental document due to the involvement of significant new environmental effects or a substantial increase in the severity of previously identified significant effects. Or, there is "new information of substantial importance," as that term is used in CEQA Guidelines Section 15162(a)(3) such as one or more significant effects not discussed in the previous EIR. Therefore, a SUBSEQUENT EIR is required. ___________________________ _________________________ Signature Date ___________________________ _________________________ Printed Name For 10/19/2023 Jorge Maldonado DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 17 4 CEQA COMPLIANCE CHECKLIST QUESTIONS 4.1 AESTHETICS Since the adoption of Ordinance No. 1505 and related IS/MND, are there any changes in the project, changes in circumstances under which the project is undertaken, and/or “new information of substantial importance” that cause one or more effects to aesthetics, including the following: Yes No a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway c) In non-urbanized areas, substantially degrade the existing visual character or quality of public views of the site and its surroundings? (Public views are those that are experienced from publicly accessible vantage point). If the project is in an urbanized area, would the project conflict with applicable zoning and other regulations governing scenic quality? d) Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area? a-d. No new impact/consistent with the adopted MND: The adopted MND analyzed the potential aesthetic impacts related to the digitization of Billboard 1, accounting for the potential for alterations in height, orientation, display, and possible relocation to the wester corner of the property. The MND concluded that the resulting impacts to views of local mountains would be similar to the impacts of the already existing static billboard; as such, impacts to scenic vistas were considered less than significant. Furthermore, the MND determined that the project would have no impact on scenic resources within a State Scenic Highway because there are no scenic resources located in the vicinity of the project. As described in the adopted MND, the project site is in an urbanized area. Of the 6 billboards analyzed in the approved MND, only Billboard 1 meets the requirements set forth in the City Code Amendments to be digitized. The proposed Project would relocate the billboard to the western corner of the property. The sign face dimensions would increase from the existing 14 feet by 48 feet (or approximately 672 square feet) to 40 feet by 60 feet (or approximately 2,400 square feet). The height would increase by 10 feet, from the existing 80 feet to 90 feet. At the new location, the digitized billboard would be oriented facing northwest and southwest towards SR- 55 and would not be facing directly towards nearby sensitive receptors. Based on the distance to the nearest residentially zoned property (more than 300 feet), the MND concluded that the implementation of the ordinance does not conflict with applicable zoning laws. The digital display billboard that is currently proposed would be located 450 feet from the nearest residential properties and would be facing northwest and southwest. The analysis in the adopted MND accounted for potential relocation to the western corner of the property and anticipated that the sign could be converted to a digital display billboard. In addition, the adopted MND disclosed the potential for the billboard to change in height, orientation, and display. Therefore, there have been no substantial changes to the project since the adopted MND and no further analysis is required. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 18 Existing nighttime light sources in the vicinity of Billboard 1 include streetlights, parking lot lights, headlights from passing vehicles, highway lighting, and lighting on buildings and structures. The adopted MND states that, the nearest sensitive receptor to Billboard 1 is a multi-family apartment complex, located approximately 420 feet northwest of the existing billboard. As stated in the adopted MND, mitigation measure (MM) AES-1 would be implemented to ensure that the light or glare impacts associated with the relocation and conversion of Billboard 1 to a new digital display billboard would be less than significant. MM AES-1 requires a site-specific lighting study to confirm that the maximum intensity of light output produced by billboards authorized pursuant to the code amendments would not exceed 0.3 foot-candle at 250 feet, which is the International Sign Association’s maximum nighttime brightness level recommendation for digital display billboards. A project-specific lighting study was prepared for the proposed billboard digitization and relocation Project. As illustrated in Figure 5, Lighting Study, light output from the proposed Project would not exceed 0.3 foot-candle at 250 feet. Therefore, the proposed Project meets the requirements of MM AES-1. The adopted MND also requires MM AES-2 to ensure that LED billboards would include an operating mechanism that turns off the display or turns it all black in the event of a malfunction. In accordance with MM AES-2, the proposed Project would include digital sensors that measure the amount of indirect ambient light and not direct light such as streetlights and vehicle headlights. Measuring indirect light from within the source allows to accurately control the brightness of the sign to fit the ambient light conditions during the daytime. During the evening and night hours, computer-controlled software would be utilized to manually limit the brightness to eliminate the possibility of false readings. Furthermore, remote power management and software functions would be utilized to blank a display in case of malfunction. Software functions include the ability to “blank” the billboard display and to disable light output to the digital display. As such, the proposed Project would meet the requirements of MM AES-2. Implementation of MM AES-3, as stated in the adopted MND, is required to ensure that the LED signs' operational parameters are provided to the City for review and approval prior to initial operation. The proposed Project would implement all measures listed in the adopted MND. Therefore, the proposed Project would meet the requirements of MM AES-3. Analysis of Driver Distraction Driver distraction could occur due to the changing of electronic messages on the proposed LED billboard. An analysis of driver distraction was provided in the adopted MND. Per the city code amendment, each static message or image shall be displayed for a minimum of eight consecutive seconds before changing, and the transition or blank screen time between one display message and the next shall not exceed one second. The analysis concludes that the code amendments would ensure that any billboard converted to LED would exceed the relevant State and federal requirements and impacts related to driver distraction would be minimal. The proposed Project would be required to follow local city code regulation. Therefore, the potential impacts of the proposed Project to driver distraction have already been analyzed in the adopted MND. FHWA and Caltrans Policy The Federal Highway Administration (FHWA) has addressed signage issues in general, and digital signs in particular. As part of its agreement with various states pursuant to the Highway Beautification Act (23 U.S.C. §131), for example, it has confirmed that no sign is allowed that imitates or resembles any official traffic sign, and that signs may not be installed in such a manner as to obstruct, or otherwise physically interfere with, an official traffic sign, signal, or device, or to obstruct or physically interfere with the vision of drivers in approaching, merging or intersecting traffic. These provisions may be enforced by the FHWA, but the agreement with the State of California also requires Caltrans to enforce these provisions. The segment of SR-55 adjacent to the project site is not identified by Caltrans as a “classified landscaped segment” nor as a “scenic highway.” The existing Billboard 1 is already permitted by Caltrans (Permit No. 26547) under “General Static” display type. For a billboard to be digitized, Caltrans requires that the billboard is at least 1000 feet from another digital display billboard. The closest existing billboard to the project site is a static billboard located approximately 1200 feet south of the project site. Therefore, the proposed Project would meet Caltrans’ criteria for freeway adjacent digital display billboards. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 19 On September 25, 2007, the FHWA issued a Memorandum on the subject of off-premises changeable electronic variable message signs. The Memorandum identified “ranges of acceptability” relating to such signage, as follows: • Duration of message: Duration of display is generally between 4 and 10 seconds; 8 seconds is recommended; • Transition time: Transition between messages is generally between 1 and 4 seconds; 1 to 2 seconds is recommended; • Brightness: The sign brightness should be adjusted to respond to changes in light levels; • Spacing: Spacing between the signs should be not less than the minimum specified for other billboards, or greater if deemed required for safety; and • Locations: Location criteria are the same as for other signage, unless it is determined that specific locations are inappropriate. To minimize the potential for lighting and glare impacts from the proposed Project, the adopted MND incorporated FHWA’s recommended design and operational criteria. City of Tustin Code of Ordinances Article 9, Chapter 4, Section 9402 of the City’s Code defines “Freeway adjacent digital display billboard” as “a pole sign or changeable copy sign, which features a digital display, erected and/or maintained for advertising, in whole or in part, a business, activity, service or product not sold or produced on the premises upon which the sign is placed, which is located on a commercially zoned parcel within four hundred (400) feet of either the Interstate 5 freeway or the SR 55 freeway right-of-way.” Table 1 outlines the requirements for freeway adjacent digital display billboards per the Tustin City Code Article 9, Chapter 4, Section 9404b(7). As discussed in the table, the proposed digital display billboard Project would meet all conditions stated in the City’s municipal code. Table 1. Compliance with City of Tustin Municipal Code City of Tustin Municipal Code Project Compliance with Code Freeway adjacent digital display billboards may only be approved in instances where the freeway adjacent digital display billboard will replace on the same parcel, alter, or modify the structure, display and/or content of a legally non- conforming off-premises sign or a freeway-oriented electronic changeable copy sign erected on or before November 14, 2019, and subject to the following limitations: 1. Location. Freeway adjacent digital display billboards may only be erected on commercially zoned parcels located within four hundred (400) feet of either the Interstate 5 freeway or the SR-55 freeway right-of-way. The proposed new location is approximately 270 feet from the nearest point of SR-55. 2. Distance from residential uses. No freeway adjacent digital display billboard may be placed at a distance of less than three hundred (300) feet from the property line of any residentially zoned parcel, as measured from the border of the digital display billboard face, or the base of the digital display billboard structure, whichever is closest to the residentially zoned parcel. The proposed new location is at least 400 feet from the nearest residential zoned parcel, which is a multi-family apartment complex, located northwest of the project site on a lot zoned for Planned Community Residential (PC RES). 3. Height. The maximum height of any freeway adjacent digital display billboard shall not exceed fifty-five (55) feet above the pavement level of the Interstate 5 freeway or SR 55 freeway to the bottom of the digital display. The proposed new structure will not exceed 55 feet above the pavement level of SR-55 to the bottom of the digital display. 4. Size. The maximum size of each freeway adjacent digital display billboard face display area shall be twenty-five (25) feet in height and sixty (60) feet in width, with the area of each face not to exceed an overall maximum amount of fifteen- hundred 1,500 square feet, including border and trim. The proposed digital display billboard face display area would be 20 feet in height and 60 feet in width. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 20 City of Tustin Municipal Code Project Compliance with Code 5. Design. All freeway adjacent digital display billboards shall either be double faced or include covered backs or facings. Notwithstanding anything in this Chapter to the contrary, the distance of separation between the faces on a double-faced freeway adjacent digital display billboard may exceed eighteen (18) inches if deemed necessary by City to maximize visibility from the Interstate 5 freeway or the SR 55 freeway. The proposed digital billboard would be double faced and any exposed backs or facings would be covered with a perforated metal cover sheet. 6. Orientation. Each freeway adjacent digital display billboard must be oriented primarily for viewing from the Interstate 5 freeway or the SR 55 freeway. The proposed new digital display billboard would be oriented primarily for viewing from SR-55. 7. Brightness. All freeway adjacent digital display billboards must comply with all applicable laws and regulations concerning brightness, including, without limitation, California Vehicle Code Section 21466.5. The proposed new digital display billboard would comply with all applicable laws and regulations concerning brightness, including the California Vehicle Code Section 21466.5. 8. Display cycle. A freeway adjacent digital display billboard may show a series of still images, each displayed for at least eight (8) seconds. The still images may not move or present the appearance of motion and may not use flashing, scintillating, blinking, or traveling lights or any other means not providing constant illumination. Transition or blank screen time between one (1) still image and the next may not exceed one (1) second. The proposed new digital display billboard would always comply with all the referenced conditions. 9. Compliance with law. The owner of the freeway adjacent digital display billboard must comply with all applicable federal, state, or local laws, including the Highway Beautification Act of 1965 (23 United States Code Section 131), the Outdoor Advertising Act (California Business and Professions Code Section 5200 et seq.), and this Chapter, when constructing, operating, improving, maintaining, repairing, and removing the freeway adjacent digital display billboard. The proposed digital display billboard would always comply with all the referenced conditions. 10. Public benefit. In approving a development agreement for any freeway adjacent digital display billboard, the City Council must find that the agreement will confer a substantial public benefit to the City and to the general public. Such public benefits may include, without limitation, the removal of additional legal non-conforming billboards, advertising of City events and public service announcements, and/or financial contributions to the City. The Project applicant has agreed to comply with all the conditions as a condition of approval for the Project. 11. Required Findings. In approving a freeway adjacent digital display billboard, the City Council must find that each freeway adjacent digital display billboard: a. Complies with the requirements of this subsection 9404b(7) and this Chapter; b. Will not create a traffic or safety hazard; c. Will not create a nuisance to adjacent property; and d. Will not result in any undue or significant increase in visual clutter in the area surrounding the parcel upon which the freeway adjacent digital display billboard will be located. The City has determined that the proposed Project meets conditions a-d. The replacement and relocation of Billboard 1 has already been analyzed in the adopted MND and there are no substantial changes proposed in the Project or in the circumstances under which the Project will be undertaken. Furthermore, there is no substantial increase in the severity of previously identified aesthetic significant effects. Also, there is no new information of substantial importance with respect to aesthetic resources. Therefore, no further analysis of biological resources is required. No further analysis with respect to aesthetics is required under CEQA. Based on the foregoing, none of the conditions identified in State CEQA Guidelines Section 15162 that would trigger the need to prepare a DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 21 subsequent or supplemental IS/MND or other environmental document to evaluate Project impacts exist regarding aesthetics. Applicable Adopted MND Mitigation Measures: MM AES-1: To ensure the lighting of signs does not exceed 0.3 foot-candle at 250 feet, prior to conversion or relocation of any billboard, the City shall require a site-specific lighting study to be submitted during the review of the conditional use permit and design review application. Should the results of the study indicate the maximum intensity of light output produced by a digital display billboard would exceed 0.3 foot-candle at a distance of 250 feet, design modifications shall be incorporated into the billboard design to ensure compliance with this regulation. MM AES-2: Any approved replacement light-emitting diode (LED) billboard shall include an operating mechanism (hardware or software controlled) that turns off the display or turns it to all black in the event of a malfunction or failure in any system or subsystem that results in the display wholly or partly appearing to flash. MM AES-3: The operational lighting parameters for a replacement digital display billboard shall be provided to the City of Tustin Community Development Department for review and approval prior to installation and regular operation of a digital display billboard, during the review of the conditional use permit and design review application, and the City-approved parameters shall be implemented by the Project applicant to minimize trespass glare lighting on residents and drivers. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project City of Tustin Figure 5 Lighting Study DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 23 This page intentionally left blank DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 24 4.2 BIOLOGICAL RESOURCES Since the adoption of Ordinance No. 1505 and related IS/MND, are there any changes in the project, changes in circumstances under which the project is undertaken, and/or “new information of substantial importance” that cause one or more effects to biological resources, including the following: Yes No a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the California Department of Fish and Game or US Fish and Wildlife Service? c) Have a substantial adverse effect on state or federally protected wetlands (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? a – f. No new impact/consistent with the adopted MND: As stated in the adopted MND, the Project would not be anticipated to have direct or indirect impacts on special-status plants or wildlife and would not be anticipated to have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special-status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Wildlife (CDFW) or United States Fish and Wildlife Service (USFWS). No other potential impacts to biological resources were identified in the adopted MND. The project site is in a heavily developed urbanized area. There is one mature tree located at the site and additional mature trees located on adjacent parcels. The quality of the habitat in the project site has not changed since the adoption of the MND. The adopted MND concludes that the upgrade and relocation of Billboard 1 could result in direct impacts on nesting and/or breeding birds if billboard conversion or relocation activities occur during the nesting or breeding bird season and birds are nesting within the billboard parcel and/or the immediate vicinity at that time. However, impacts on nesting birds would be avoided or minimized with the implementation of MM BIO- DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 25 1. MM BIO-1 states that, if billboard replacement or relocation is scheduled to occur between September 1 and January 31, a qualified biologist shall conduct pre-construction surveys for nesting birds; if active nests are found, the biologist would establish a buffer zone around the nest to ensure that raptor or migratory bird nests would not be disturbed by construction activities. Additionally, the City of Tustin Community Development Department would verify that all Project construction plans include specific notes regarding the Migratory Bird Treaty Act (MBTA). Since the adoption of the MND, there have been no changes of biological significance at the project site. The proposed Project would adhere to all mitigation measures outlined in the adopted MND, including MM BIO-1, to avoid and/or minimize impact to migratory birds. Therefore, there would be no new impact from the proposed billboard conversion Project. The replacement and relocation of Billboard 1 has already been analyzed in the adopted MND and there are no substantial changes proposed in the Project or in the circumstances under which the Project will be undertaken. Furthermore, there is no substantial increase in the severity of previously identified biological significant effects. Also, there is no new information of substantial importance with respect to biological resources. Therefore, no further analysis of biological resources is required. Based on the foregoing, none of the conditions identified in State CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental IS/MND or other environmental document to evaluate Project impacts exist regarding biological resources. Applicable Adopted MND Mitigation Measures: MM BIO-1 In the event that billboard replacement or relocation should be scheduled to occur between September 1 and January 31, the billboard owner shall retain a qualified biologist to conduct pre-construction surveys for nesting birds within a 250-foot radius of the existing billboard location to ensure that no active nests will be disturbed during project implementation. This survey shall be completed no more than three days prior to the initiation of replacement or relocation activities during nesting season. During this survey, the biologist will inspect the existing billboard and other possible nesting habitats within 250 feet of the existing or replacement billboard locations for nests. If an active nest is found within the 250-foot survey area, the biologist will determine the extent of a buffer zone to be established around the nest, largely dependent on current site conditions (typically 250 feet), to ensure that raptor or migratory bird nests will not be disturbed during billboard replacement or relocation. Prior to the commencement of construction activities and the issuance of any permits, the City of Tustin Community Development Department shall verify that all project construction plans include specific notes regarding the requirements of the Migratory Bird Treaty Act (MBTA), that preconstruction surveys have been completed and the results reviewed by staff, and that the appropriate buffers (if needed) are noted on the site plans. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 26 4.3 GEOLOGY AND SOILS a – f. No new impact/consistent with the adopted MND: The adopted MND analyzed impacts to geology and soils, including earthquake faults and seismicity, geology, landslides, liquefaction, loss of topsoil and determined that impacts would be no impact to less than significant impact through compliance with the California Building Standards Code and implementation of mitigation measures, with the exception of unavailable earthquake damage because California is seismically active. Regarding paleontological resources, the adopted MND states that deep excavations at the project site have the potential to encounter significant vertebrae fossils. MM GEO-1 requires any ground disturbing activities to be monitored by a certified paleontologist who would quickly and professionally recover any fossil remains discovered during construction. With implementation of MM GEO-1, impacts to paleontological resources would be less than significant. The proposed project site was analyzed for paleontological resources in the adopted MND. The proposed Project would be required to follow all applicable measures listed in the adopted MND. Therefore, there would be no new impact from the proposed Project. Since the adoption of Ordinance No. 1505 and related IS/MND, are there any changes in the project, changes in circumstances under which the project is undertaken, and/or “new information of substantial importance” that cause one or more effects to geology and soils, including the following: Yes No a) Directly or indirectly cause potential substantial adverse effects, including the risk of loss, injury, or death involving: i) Rupture of a known earthquake fault, as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42? ii) Strong seismic ground shaking? iii) Seismic-related ground failure, including liquefaction? iv) Landslides? b) Result in substantial soil erosion or the loss of topsoil? c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse? d) Be located on expansive soil, as defined in Table 18-1-B of the Uniform Building Code (1994), creating substantial direct or indirect risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative waste water disposal systems where sewers are not available for the disposal of waste water? f) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 27 The replacement and relocation of Billboard 1 has already been analyzed in the adopted MND and there are no substantial changes proposed in the Project or in the circumstances under which the Project will be undertaken. Furthermore, there is no substantial increase in the severity of previously identified geology and soils significant effects. Also, there is no new information of substantial importance with respect to geological resources. Therefore, no further analysis of geology and soil resources is required. Based on the foregoing, none of the conditions identified in State CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental IS/MND or other environmental document to evaluate Project impacts exist regarding geology and soils. Applicable Adopted MND Mitigation Measures: MM GEO-1 Any ground-disturbing activities associated with project activities shall be monitored closely by a certified paleontologist to quickly and professionally recover any fossil remains discovered while not impeding development. Should any soils be excavated to provide for a digital display billboard support or to assist in relocating Billboard 1 on-site, all removed sediments shall be collected and professionally processed to determine the small fossil potential. Any fossils recovered during mitigation shall be deposited in an accredited and permanent scientific institution for the benefit of current and future generations. 4.4 HAZARDS AND HAZARDOUS MATERIALS Since the adoption of Ordinance No. 1505 and related IS/MND, are there any changes in the project, changes in circumstances under which the project is undertaken, and/or “new information of substantial importance” that cause one or more effects to hazards and hazardous materials, including the following: Yes No a) Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials? b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard or excessive noise for people residing or working in the project area? f) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? g) Expose people or structures, either directly or indirectly, to a significant risk of loss, injury or death involving wildland fires? DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 28 a – g. No new impact/consistent with the adopted MND: The adopted MND analyzed information related to hazards and hazardous materials including transport of hazardous materials, fire hazards, and emergency response plans. As stated in the adopted MND, the existing Billboard 1 structure may potentially contain asbestos-containing materials and/or lead-based paint. However, the impacts related to asbestos-containing materials and lead-based paint would be less than significant through compliance with local and State regulations and with the implementation of MM HAZ-1, which includes measures to reduce potential impacts to construction workers associated with lead-based paint or other hazardous building materials. In addition, Billboard 1 is located within one-quarter mile of a school. Although the billboard removal could result in asbestos or lead based paint waste, construction of a new digital display billboard would not require the use of asbestos or lead based paints. Therefore, the MND concludes that, with implementation of MM HAZ-1 for the removal of materials containing asbestos and/or lead-based paint, impacts would be less than significant. The project site is consistent with the analysis performed in the adopted MND and would follow the requirements of MM HAZ-1 for the removal of the existing billboard. As a result, no new impacts would result from hazards and hazardous materials that were not already analyzed in the MND are anticipated to occur. The replacement and relocation of Billboard 1 has already been analyzed in the adopted MND and there are no substantial changes proposed in the Project or in the circumstances under which the Project will be undertaken. Furthermore, there is no substantial increase in the severity of previously identified hazards and hazardous materials significant effects. Also, there is no new information of substantial importance with respect to hazards and hazardous materials. Therefore, no further analysis of hazards and hazardous materials is required. Based on the foregoing, none of the conditions identified in State CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental IS/MND or other environmental document to evaluate Project impacts exist regarding hazards and hazardous materials. Applicable Adopted MND Mitigation Measures: MM HAZ-1 The following measures shall be implemented in the event of any potential billboard relocation activities: In conformance with State and local laws, including California Health and Safety Code Section 19827.5, a visual inspection and possible sampling shall be completed prior to the removal of the billboard structures to determine the presence of asbestos, lead-based paint, or other hazardous building materials. If this assessment finds presence of such materials, the Project applicant shall create and implement a health and safety plan to ensure workers are not exposed to contaminants in excess of Occupational Safety and Health Administration (OSHA) and other applicable State and federal standards and associated risks associated with hazardous materials during demolition, renovation of affected structures, transport, and disposal. In the event of billboard removal activities, all materials containing lead-based paint shall be removed in accordance with California Occupational Health and Safety Administration (Cal/OSHA) Lead in Construction Standard, Title 8, California Code of Regulations 1532.1, including employee training, employee air monitoring and dust control. In the event of billboard removal activities, all materials containing asbestos and/or lead- based paint shall be handled and removed by qualified professionals in accordance with DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 29 applicable regulations, including South Coast Air Quality Management District (SCAQMD) Regulation XIV, Rule 1403; Title 22, California Code of Regulations, Section 66261.24; Title 8, California Code of Regulations, Section 1532.1. Any debris or soil containing asbestos lead-based paint or coatings shall be disposed of at landfills that meet acceptance criteria for the waste being disposed. 4.5 NOISE Since the adoption of Ordinance No. 1505 and related IS/MND, are there any changes in the project, changes in circumstances under which the project is undertaken, and/or “new information of substantial importance” that cause one or more effects to noise, including the following: Yes No a) Generation of a substantial temporary or permanent increase in ambient noise levels in the vicinity of the project in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b) Generation of excessive ground borne vibration or ground borne noise levels? c) For a project located within the vicinity of a private airstrip or an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? a – c. No new impact/consistent with the adopted MND: The adopted MND states that conversion and relocation of Billboard 1 would result in temporary increased noise levels from construction activities. The effects of project construction noise levels on longer-term (hourly or daily) ambient noise levels were determined to be but could result in temporary noise leading to levels of annoyance or sleep disturbances at nearby sensitive receptors, if not restricted to daytime hours. However, compliance with the permissible construction hours established by the Tustin City Code would reduce the effects of noise produced by construction activities on longer-term (hourly or daily) ambient noise levels. Furthermore, the adopted MND also requires the implementation of MM NOI-1, which outlines best management noise reduction techniques and practices. The adopted MND concludes that, with implementation MM NOI-1, temporary construction noise impacts would be less than significant. The proposed Project would entail the removal of the existing billboard and construction of a digital display billboard on the western corner of the property. The scope of the proposed Project was analyzed in the adopted MND. Additionally, the proposed Project would be required to comply with Tustin City Code and with MM NOI-1. Therefore, no new noise-related impact is anticipated from the proposed Project. The replacement and relocation of Billboard 1 has already been analyzed in the adopted MND and there are no substantial changes proposed in the Project or in the circumstances under which the Project will be undertaken. Furthermore, there is no substantial increase in the severity of previously identified noise significant effects. Also, there is no new information of substantial importance with respect to noise. Therefore, no further analysis of noise impacts is required. Based on the foregoing, none of the conditions identified in State CEQA Guidelines Section 15162 that would trigger the need to prepare a subsequent or supplemental IS/MND or other environmental document to evaluate Project impacts exist regarding noise. Applicable Adopted MND Mitigation Measures: DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 30 MM NOI-1 To reduce potential construction noise impacts, the following multi-part mitigation measure shall be implemented for the Project: The construction contractor shall ensure that all internal combustion engine-driven equipment is equipped with mufflers that are in good condition and appropriate for the equipment. The construction contractor shall locate stationary noise-generating equipment as far as possible from sensitive receptors when sensitive receptors adjoin or are near a construction Project area. In addition, the Project contractor shall place such stationary construction equipment so that emitted noise is directed away from sensitive receptors nearest the project site. The construction contractor shall prohibit unnecessary idling of internal combustion engines. The construction contractor shall, to the maximum extent practical, locate on-site equipment staging areas so as to maximize the distance between construction-related noise sources and noise- sensitive receptors nearest the project site during all Project construction. The construction contractor shall limit all construction activity, including material delivery and equipment warmup or idling, to the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, and 9:00 a.m. and 5:00 p.m. on Saturdays. No construction activity will be permitted on Sunday's or City observed federal holidays. 5 CONCLUSION It is not anticipated that the implementation of the proposed Project would result in any significant direct, indirect or cumulative impacts over and above those disclosed in the previously certified City of Tustin Freeway Adjacent Digital Display Billboards Ordinance IS/MND. There are no substantial changes in the Project or in the circumstances under which the Project will be undertaken which would require revisions to the adopted MND or a new environmental document. The project would result in no new impacts and in no substantial increase in the severity of previously identified impacts. Furthermore, there is no new information of substantial importance related to project impacts. Therefore, based on the CEQA 15162 guidelines, the 1021 Edinger Avenue Digital Display Billboard Project in the City of Tustin CEQA analysis is covered by the adopted MND and no further analysis is required. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 31 6 REFERENCES City of Tustin Freeway Adjacent Digital Display Billboards Ordinance Initial Study/Mitigated Negative Declaration. City of Tustin. November 2019. February 2020. Tustin City Code, Chapter 4 of Article 9, Ordinance No. 1505. City of Tustin. February 2020. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Edinger Avenue Billboard Conversion Project Environmental Consistency Analysis 32 This page intentionally left blank. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F RESOLUTION NO. 23-49 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN APPROVING CONDITIONAL USE PERMIT 2023-0008 TO REPLACE AN EXISTING STATIC BILLBOARD WITH A NEW, NINETY (90) FOOT TALL, FREEWAY ADJACENT DIGITAL DISPLAY BILLBOARD WITH TWO (2) SIGN FACES MEASURING TWENTY (20) FEET BY SIXTY (60) FEET EACH AT 1021 EDINGER AVENUE The City Council of the City of Tustin does hereby resolve as follows: I.The City Council finds and determines as follows: A.That a proper application has been submitted by David Ryan of Outfront Media, LLC for Conditional Use Permit (CUP) 2023-0008 and Development Agreement (DA) 2023-0001 requesting to replace an existing static billboard with a ninety (90) foot tall, freeway adjacent digital billboard with two (2) sign faces measuring twenty (20) feet by sixty (60) feet each. B.That the project also includes the removal of three (3) additional static billboards located at 1631 El Camino Real, 1501 Nisson Road, and 14092 Red Hill Avenue. C.That the project is located at 1021 Edinger Avenue within the Commercial Center land use area of the Pacific Center East Specific Plan (SP-11). D.That the Development Application includes the following requests: 1.Conditional Use Permit (CUP) 2023-0008 to construct a new freeway adjacent digital billboard; and 2.Development Agreement (DA) 2023-0001 to identify public benefits in association with the proposed request. E.That the project has been reviewed for consistency with the Air Quality Sub- element of the City of Tustin General Plan and has been determined to be consistent with the Air Quality Sub-element. F.That pursuant to Tustin City Code (TCC) Section 9404(b)(7), freeway adjacent digital display billboards require approval of a CUP and DA. The DA shall be executed in accordance with Section 65864 et seq. of the Government Code and Sections 9600 to 9619 of the TCC. G.That the site is zoned as Planned Community Commercial, Pacific Center East Specific Plan (PCC, SP-11) and has a General Plan land use designation of Planned Community Commercial Business (PCCB). ATTACHMENT G DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Resolution No. 23-49 Page 2 H. That a public hearing was duly called, noticed, and held for CUP 2023-0008 and DA-2023-0001 on October 24, 2023, by the Planning Commission. I. That after the close of the public hearing, the Planning Commission adopted Resolution No. 4480 recommending that the City Council find that the project is consistent with the TCC and approve the subject CUP and DA. J. That a public hearing was duly called, noticed, and held for CUP 2023-0008 and DA-2023-0001 on November 21, 2023, by the City Council. K. That in approving a freeway adjacent digital display billboard, the City Council makes the following findings pursuant to TCC 9404(b)(7): 1. That the proposed sign complies with the requirements of TCC 9404(b)(7) and Chapter 4 of Article 9 of the TCC; 2. That, as conditioned, the proposed sign will not create a traffic or safety hazard as the digital display will follow all applicable laws and regulations regarding illumination and motorist distraction prevention, and furthermore is located so as to not impede traffic visibility at the street grade; 3. That, as conditioned, the proposed sign will not create a nuisance to adjacent property as the digital display is located more than 300 feet away from the nearest residential use and designed such that light trespass levels will be no more than 0.3 foot-candles at 250 feet; and 4. That the proposed sign will not result in any undue or significant increase in visual clutter in the area surrounding the parcel upon which the freeway adjacent digital display billboard will be located as the existing static billboard will be removed as part of the construction of the new digital display billboard. L. That the City Council determined the subject project to be exempt from the California Environment Quality Act (CEQA) pursuant to State CEQA Guidelines Section 15162. Section 15162 states that, when a negative declaration has been adopted for a project, no subsequent environmental impact report (EIR) shall be prepared for that project under certain conditions. In February 2020, the City adopted Ordinance No. 1505 and related Initial Study/Mitigated Negative Declaration (adopted MND) to allow the conversion of static freeway adjacent billboards to digital billboards subject to complying with development standards and obtaining a CUP and DA. CEQA compliance for the digitization and relocation of the proposed billboard was documented throughout the adopted MND. The project will be required to comply with applicable mitigation measures identified in the adopted MND. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F ______________________ Resolution 23-49 Page 3 of 4 Accordingly, the project qualifies for the Section 15162 exemption because: 1. There are no substantial changes proposed which will require major revisions of the previous negative declaration as there are no new significant environmental effects nor a substantial increase in the severity of previously identified significant effects; 2. There are no substantial changes with respect to the circumstances under which the project is undertaken which require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and 3. There is no new information of substantial importance which was not known and could not have been known with the exercise of reasonable diligence at the time the previous negative declaration was adopted. II. The City Council hereby adopts Resolution No. 23-49, approving CUP 2023-0008 authorizing the replacement of an existing static billboard with a ninety (90) foot tall, freeway adjacent digital billboard with two (2) sign faces measuring twenty (20) feet by sixty (60) feet each, subject to the conditions contained within Exhibit A, attached hereto. PASSED AND ADOPTED by the City Council of the City of Tustin at a regular meeting on the 21st day of November, 2023. AUSTIN LUMBARD, Mayor ERICA N. YASUDA, City Clerk APPROVED AS TO FORM: _________________________________ DAVID E. KENDIG, City Attorney DocuSign Envelope ID: 1A2A7352-CBF3-41D7-B225-6C8A945888C7DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Resolution No. 23-49 Page 4 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) CERTIFICATION FOR RESOLUTION NO. 23-49 I, Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; and that the above and foregoing Resolution No. 23-49 was duly passed, and adopted at a regular meeting of the City Council held on the 21st day of November, 2023, by the following vote: CITY COUNCIL AYES: ________________________________ CITY COUNCIL NOES: ________________________________ CITY COUNCIL ABSTAINED: ________________________________ CITY COUNCIL ABSENT: ________________________________ ____________________ ERICA N. YASUDA City Clerk DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F SOURCE CODES (1) STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENT (2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES (3) UNIFORM BUILDING CODE/S (7) PC/CC POLICY (4)DESIGN REVIEW *** EXCEPTION EXHIBIT A RESOLUTION NO. 23-49 CONDITIONS OF APPROVAL CONDITIONAL USE PERMIT 2023-0008 DEVELOPMENT AGREEMENT 2023-0001 GENERAL (1)1.1 (1)1.2 (1)1.3 (1)1.4 (1)1.5 The proposed project shall be in compliance with the Tustin City Code (TCC), and City of Tustin Guidelines and Standards and conform with submitted plans for the project date stamped November 21, 2023, on file with the Community Development Department, except as herein modified, or as modified by the Community Development Director in accordance with this Exhibit. The Community Development Director may also approve minor modifications to plans during plan check if such modifications are consistent with the provisions of the TCC, and other applicable codes. Unless otherwise specified, the conditions contained in this Exhibit shall be complied with as specified or prior to the issuance of any building permits for the project, subject to review and approval by the Community Development Department. The subject project approval shall become null and void unless the use is established within twelve (12) months. All time extensions may be considered by the Community Development Director if a written request is received within thirty (30) days prior to expiration date. Approval of project is contingent upon the applicant returning to the Community Development Department a notarized “Agreement to Conditions Imposed” form and the property owner signing and recording with the County Clerk-Recorder a notarized “Notice of Discretionary Permit Approval and Conditions of Approval” form. The forms shall be established by the Community Development Director, and evidence of recordation shall be provided to the Community Development Department. Conditional Use Permit 2023-0008 shall be null and void if Development Agreement (DA) 2023-0001 is not approved. The applicant shall comply with executed DA 2023-0001. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Exhibit A Resolution No. 23-49 Page 2 USE RESTRICTIONS *** 2.1 The proposed freeway adjacent digital display billboard is allowed to display off-site advertisements subject to the stipulations of TCC 9404(b)(7), DA-2023-0001, and this Exhibit. *** 2.2 The digital display billboard shall be monitored by the operator for content and clarity of all messages. The operator will monitor the operations of the reader board messages to comply with the California Department of Transportation (Caltrans) guidelines for signal duration and visual impact. *** 2.3 The digital display billboard will be limited to high-definition digital display media sources. *** 2.4 The following advertisements or messages are prohibited: 1.Messages that stimulate or imitate in size, color, lettering, or design of any traffic sign or signal, or which make use of the words “Stop,” “Look,” “Danger,” or any other words, phrases, symbols, or characters in such a manner as to interfere with, mislead, or confuse traffic. 2.Messages and/or advertisements that are audible or emitting sounds. *** 2.5 The digital display billboard shall comply with all applicable laws regarding brightness, including, without limitation, California Vehicle Code Section 21466.5. *** 2.6 The display of still images or messages shall be programmed to display for a minimum of eight (8) seconds. The still images may not move or present the appearance of motion and may not use flashing, scintillating, blinking, or traveling lights or any other means not providing constant illumination. Transition or blank screen time between one (1) still image and the next may not exceed one (1) second. *** 2.7 The operator of the freeway adjacent digital display billboard must comply with all applicable federal, state, or local laws, including the Highway Beautification Act of 1965 (23 United States Code Section 131), the Outdoor Advertising Act (California Business and Professions Code Section 5200 et seq.), and Chapter 4 of Article 9 of the TCC when constructing, operating, improving, maintaining, repairing, and removing the freeway adjacent digital display billboard. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F *** 2.8 The property owner and/or billboard operator shall obtain and maintain approval from Caltrans for outdoor advertising displays visible from California highways and any other applicable Caltrans regulations. The applicant shall provide a copy of said Caltrans approval to the City upon request. *** 2.9 The CUP approval for the freeway adjacent digital display billboard and associated off-site advertisements shall remain valid while DA 2023-0001 remains in effect. The approval for CUP 2023-0008 shall expire upon the expiration of DA 2023-0001, and the freeway adjacent digital display billboard shall cease display of off-site advertisements. *** 2.10 The existing static billboards located at 1631 El Camino Real, 1501 Nisson Road, and 14092 Red Hill Avenue shall be removed, at no cost to the City, within ninety (90) calendar days following the effective date of the Development Agreement or prior to final inspection of the new digital display billboard, whichever is first. *** 2.11 The proposed sign must be kept in good working and aesthetic condition at all times. ORDINANCE NO. 1505 MITIGATION MEASURE COMPLIANCE (2)3.1 The maximum intensity of light output produced by the digital display billboard shall not exceed 0.3 foot-candle at a distance of 250 feet. (2)3.2 The light-emitting diode (LED) billboard shall include and maintain an operating mechanism that turns off the display or turns it all to black in the event of a malfunction or failure in any system or subsystem that results in the display wholly or partly appearing to flash. (2)3.3 The operational lighting parameters for the digital display billboard shall be maintained as approved by the Community Development Department and shall be implemented by the applicant to minimize trespass glare lighting on residents and drivers. Modifications to these parameters may be approved subject to the discretion of the Community Development Director. (2)3.4 If demolition or construction activities are to occur between September 1 and January 31, the applicant shall retain a qualified biologist to conduct pre-construction surveys for nesting birds within a 250-foot radius of the billboard location to ensure no active nests will be disturbed during project implementation. This survey shall be completed no more than three (3) days prior to the initiation of replacement or relocation activities during nesting season. During this survey, the biologist will inspect the existing billboard and other Exhibit A Resolution No. 23-49 Page 2 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F possible nesting habitats within 250 feet of the existing or replacement billboard location for nests. If an active nest is found within the 250-foot survey area, the biologist will determine the extent of a buffer zone to be established around the nest, largely dependent on current site conditions (typically 250 feet), to ensure that raptor or migratory bird nests will not be disturbed during billboard replacement or relocation. Prior to the commencement of construction activities and the issuance of any permits, the City of Tustin Community Development Department shall verify that all project construction plans include specific notes regarding the requirements of the Migratory Bird Treaty Act (MBTA), that preconstruction surveys have been completed and the results reviewed by staff, and that the appropriate buffers (if needed) are noted on the site plans. (2)3.5 Any ground-disturbing activities associated with project activities shall be monitored closely by a certified paleontologist to quickly and professionally recover any fossil remains discovered while not impeding development. Should any soils be excavated to provide for a digital display billboard support, all removed sediments shall be collected and professionally processed to determine the small fossil potential. Any fossils recovered during mitigation shall be deposited in an accredited and permanent scientific institution for the benefit of current and future generations. (2)3.6 In conformance with State and local laws, including California Health and Safety Code Section 19827.5, a visual inspection and possible sampling shall be completed prior to the relocation or demolition of the billboard structure to determine the presence of asbestos, lead-based paint, or other hazardous building materials. If the assessment finds presence of such materials, the applicant shall create and implement a health and safety plan to ensure workers are not exposed to contaminants in excess of Occupational Safety and Health Administration (OSHA) and other applicable State and Federal standards and associated risks associated with hazardous materials during demolition, renovation of affected structures, transport, and disposal. In the event of billboard relocation activities, all materials containing lead- based paint shall be removed in accordance with CalOSHA Lead in Construction Standard, Title 8, California Code of Regulations 1532.1, including employee training, employee air monitoring, and dust control. In the event of billboard relocation activities, all materials containing asbestos and/or lead-based paint shall be handled and removed by qualified professionals in accordance with applicable regulations, Exhibit A Resolution No. 23-49 Page 2 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F including South Coast Air Quality Management District (SCAQMD) Regulation XIV, Rule 1403; Title 22, California Code of Regulations, Section 66261.24; and Title 8, California Code of Regulations, Section 1532.1 Any debris or soil containing asbestos lead-based paint or coatings shall be disposed of at landfills that meet acceptance criteria for the waste being disposed. (2)3.7 To reduce potential construction noise impacts, the following multi-part mitigation measure shall be implemented for the project: •The construction contractor shall ensure that all internal combustion engine-driven equipment is equipped with mufflers that are in good condition and appropriate for the equipment. •The construction contractor shall locate stationary noise- generating equipment as far as possible from sensitive receptors when sensitive receptors adjoin or are near a construction project area. In addition, the construction contractor shall place such stationary construction equipment so that emitted noise is directed away from sensitive receptors nearest the project site. •The construction contractor shall prohibit unnecessary idling of internal combustion engines. •The construction contractor shall, to the maximum extent practical, locate on-site equipment staging areas so as to maximize the distance between construction-related noise sources and noise- sensitive receptors nearest the project site during all project construction. •The construction contractor shall limit all construction activity, including material delivery and equipment warmup or idling, to the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, and 9:00 a.m. and 5:00 p.m. on Saturdays. No construction activity will be permitted on Sundays or City-observed Federal holidays. BUILDING DIVISION (1)4.1 The applicant shall obtain all necessary building and grading permits prior to commencing construction or demolition activities. (2)4.2 Prior to the commencement of construction, demolition, or grading activities occurring between September 1 and January 31, the applicant shall provide to the Community Development Department an executed contract demonstrating that a qualified biologist has been retained to Exhibit A Resolution No. 23-49 Page 2 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F conduct pre-construction surveys for nesting birds within a 250-foot radius of the billboard location to ensure no active nests will be disturbed during project implementation. This survey shall be completed no more than three (3) days prior to the initiation of replacement or relocation activities during nesting season. (2)4.3 Prior to the commencement of any ground-disturbing activities associated with project activities, the applicant shall provide to the Community Development Department an executed contract demonstrating that a certified paleontologist has been retained to monitor project activities to quickly and professionally recover any fossil remains discovered. (2)4.4 Prior to the relocation or demolition of the existing billboard structure, a visual inspection and possible sampling shall be completed to determine the presence of asbestos, lead-based paint, or other hazardous building materials. The results of such inspection shall be reported to the Community Development Department and addressed as described in Condition 3.6. PUBLIC WORKS DEPARTMENT *** 5.1 Prior to issuance of any permit, the applicant shall enter into a License Agreement with the City of Tustin regarding the encroachment of camera and camera arm equipment into the Edinger Avenue public right-of-way. The applicant shall be responsible for costs associated with City Attorney review and recordation of this agreement. (1)5.2 Construction and Demolition Waste Recycling and Reduction Plan (WRRP). Prior to issuance of any permit, the applicant/contractor is required to submit a WRRP to the Public Works Department. The WRRP must indicate how the applicant will comply with the City’s requirement (City Code Section 4351, et al) to recycle at least sixty-five (65) percent of the project waste material or the amount required by the California Green Building Standards Code. The applicant will be required to submit a fifty-dollar ($50.00) application fee and a cash security deposit. All projects shall submit a security deposit in the amount of five (5) percent of the project’s valuation as determined by the Building Official, rounded to the nearest thousand. FEES (1)6.1 Within forty-eight (48) hours of final approval of the project, the applicant shall deliver to the Community Development Department, a CASHIER'S CHECK payable to the County Clerk in the amount of fifty dollars ($50.00) Exhibit A Resolution No. 23-49 Page 2 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F to enable the City to file the appropriate environmental documentation for the project. If within such forty-eight (48) hour period that applicant has not delivered to the Community Development Department the above-noted check, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the California Environmental Quality Act could be significantly lengthened. Exhibit A Resolution No. 23-49 Page 2 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Exhibit “B” Billboards to be Removed DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F ORDINANCE NO. 1539 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING DEVELOPMENT AGREEMENT 2023- 0001 BETWEEN THE CITY OF TUSTIN AND OUTFRONT MEDIA, LLC. IN ASSOCIATION WITH CONDITIONAL USE PERMIT 2023-0008 FOR A FREEWAY ADJACENT DIGITAL DISPLAY BILLBOARD AT THE CITY-OWNED PROPERTY LOCATED AT 1021 EDINGER AVENUE The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council finds and determines as follows: A.That a proper application has been submitted by David Ryan of Outfront Media, LLC for the replacement of an existing static billboard with a new ninety-foot-tall (90’) freeway adjacent digital display board with two (2) sign faces measuring twenty feet (20’) by sixty feet (60’) each. The project also includes the removal of three (3) off-site static billboards located at 1631 El Camino Real, 1501 Nisson Road, and 14092 Red Hill Avenue. B.That pursuant to Tustin City Code (TCC) Section 9404(b)(7) and Ordinance No. 1505, freeway adjacent digital display billboards require approval of a Conditional Use Permit (CUP), Development Agreement (DA) and public benefits. C.That DA 2023-0001 serves to identify public benefits in association with CUP 2023-0008 for a freeway adjacent digital display billboard at 1021 Edinger Avenue. D.That a public hearing was duly called, noticed, and held on said application on October 24, 2023, by the Planning Commission. The Planning Commission adopted Resolution No. 4480 recommending that the City Council adopt Ordinance No. 1539 and approve the proposed CUP. E.That a public hearing was duly called, noticed, and held on said application on November 21, 2023, by the City Council. F.That the City Council determined the subject project to be exempt from the California Environment Quality Act (CEQA) pursuant to State CEQA Guidelines Section 15162. Section 15162 states that, when a negative declaration has been adopted for a project, no subsequent environmental impact report (EIR) shall be prepared for that project under certain conditions. In February 2020, the City adopted Ordinance No. 1505 and related Initial Study/Mitigated Negative Declaration (adopted MND) to allow the conversion of static freeway adjacent ATTACHMENT HDocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Ordinance No. 1539 DA-2023-0001 Page 2 billboards to digital billboards subject to complying with development standards and obtaining a CUP and DA. CEQA compliance for the digitization and relocation of the proposed billboard was documented throughout the adopted MND. The project will be required to comply with applicable mitigation measures identified in the adopted MND. Accordingly, the project qualifies for the Section 15162 exemption because: 1. There are no substantial changes proposed which will require major revisions of the previous negative declaration as there are no new significant environmental effects nor a substantial increase in the severity of previously identified significant effects; 2. There are no substantial changes with respect to the circumstances under which the project is undertaken which require major revisions of the previous negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and, 3. There is no new information of substantial importance which was not known and could not have been known with the exercise of reasonable diligence at the time the previous negative declaration was adopted. G. That the DA can be supported by the following findings: 1. The project is consistent with the objectives, policies, general land uses and programs specified in the General Plan and the Pacific Center East Specific Plan in that the proposed freeway adjacent digital display billboard use is a conditionally permitted use that supports City programs and generates revenue. 2. The project is compatible with the uses authorized in the district in which the real property is located in that the existing static billboard is the only sign that qualifies for replacement with a digital display billboard pursuant to TCC 9404(b)(7). 3. The project is in conformity with the public necessity, public convenience, general welfare, and good land use practices in that the agreement incorporates public benefits in the form of advertisements for city events and financial contributions to the City. Moreover, three (3) existing static billboards located elsewhere in the City will be removed as a public benefit. 4. The project will not be detrimental to the health, safety, and general welfare in that the proposed digital display billboard is replacing an DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F Ordinance No. 1539 DA-2023-0001 Page 3 existing static billboard and will comply with the mitigation measures established with Ordinance No. 1505, which codified TCC 9404(b)(7). 5. That, as conditioned, the billboard structure and use will not be detrimental to health, safety, and general welfare. 6. The project will not adversely affect the orderly development of property in that the proposed sign is located closer to the southwestern corner of the site to maximize the amount of square footage available for future development. 7. The project will have a positive fiscal impact on the City in that the provisions of the proposed DA and conditions of approval will ensure that the project will have a positive fiscal impact on the City. H. That the City Council makes the following findings pursuant to TCC 9404(b)(7): 1. That the proposed sign complies with the requirements of TCC 9404(b)(7) and Chapter 4 of Article 9 of the TCC; 2. That the proposed sign will not create a traffic or safety hazard; 3. That the proposed sign will not create a nuisance to adjacent property; and, 4. That the proposed sign will not result in any undue or significant increase in visual clutter in the area surrounding the parcel upon which the freeway adjacent digital display billboard will be located. SECTION 2. The City Council hereby approves DA-2023-0001 attached hereto as Exhibit A and subject to final approval of the City Attorney. SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F ______________________ Ordinance No. 1539 Page 4 of 4 PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this 21st of November, 2023. ___________________________________ AUSTIN LUMBARD, Mayor _______________________ __ ERICA N. YASUDA, City Clerk APPROVED AS TO FORM: _______________________________ DAVID E. KENDIG, City Attorney STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) I, Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1539 was duly and regularly introduced at a regular meeting of the Tustin City Council, held on the 21st day of November, 2023 and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the ___ day of _ _, 2023, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: COUNCILMEMBER RECUSED: ERICA N. YASUDA, City Clerk Exhibit A: Development Agreement 2023-0001 DocuSign Envelope ID: 1A2A7352-CBF3-41D7-B225-6C8A945888C7DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 1 1787489.1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Clerk [Exempt From Recording Fee Per Gov. Code §6103] DEVELOPMENT AGREEMENT NO. This Development Agreement (“Agreement”) is entered into this ___ day of ______________, 2023, (“Effective Date”) by and between the CITY OF TUSTIN (“City”) and OUTFRONT MEDIA LLC, a Delaware limited liability company (“Applicant ”). City and Applicant are sometimes collectively referred to in this Agreement as the “Parties.” RECITALS A. Applicant currently operates a double-sided static billboard display (“Existing Sign”) in the City near the northeast intersection of Edinger Avenue and State Route 55 on City- owned property that Applicant leases from the City, which is described and depicted on the attached Exhibit “A”. B. Tustin City Code Section 9404(b)(7) permits the replacement of an existing freeway oriented static display with a digital display billboard upon the approval of a conditional use permit and development agreement and subject to certain restrictions and criteria. C. Applicant, with City approval, desires to replace the Existing Sign with a freeway adjacent digital display billboard, adjacent to and visible from the state route 55 Freeway (“Digital Billboard”). This replacement would allow the Applicant to expand the scope of advertisements and messages permitted on the sign, subject to the limits of this Agreement and the California Outdoor Advertising Act (Bus. and Prof. Code Sections 5200 et seq.) D. In approving a development agreement for any freeway adjacent digital display billboard, the City Council must find that the agreement will confer a substantial public benefit to the City and to the general public. Such public benefits may include, without limitation, the removal of additional legal non-conforming billboards, advertising of City events and public service announcements, and/or financial contributions to the City. E. On October 24, 2023, the City Planning Commission recommended approval of Conditional Use Permit (“CUP 2023-0008”) to the City Council to authorize the removal of the Existing Sign and the construction of the Digital Billboard. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 2 1787489.1 F. On October 24, 2023 the City Planning Commission, at a duly noticed public hearing to consider the approval of this Agreement, adopted Resolution No. 4480 recommending approval of this Agreement to the City Council and finding the Digit al Billboard project categorically exempt from the provisions of the California Environmental Quality Act (“CEQA”) pursuant to Section 15162 regarding projects consistent with prior adopted environmental analysis and documentation. G. On November 21, 2023, the City Council of the City, at a duly noticed public hearing to consider the approval of this Agreement, considered the proposal and heard testimony relating to this Agreement. H. On __________, 2023, the City Council conducted the second reading of Ordinance No. 1539, thereby approving this Agreement. I. City finds and determines that all actions required of City precedent to approval of this Agreement by Ordinance No. 1539 of the City Council have been duly and regularly taken. COVENANTS NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. GENERAL PROVISIONS 1.1 Incorporation of Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 1.2 Permitted Replacement of Existing Sign. Subject to the terms and conditions of this Agreement, Applicant is hereby authorized to replace the Existing Sign with the Digital Billboard, which is a freeway adjacent digital display billboard. 1.3 Interest in Site and Development Approvals – Conditions Precedent. City and Applicant acknowledge and agree that Applicant has a legal or equitable interest in the site of the Existing Sign, as more particularly depicted and described on Exhibit “A” (hereafter “Site”) and thus is qualified to enter into and be a party to this Agreement under the Development Agreement Law. Applicant shall maintain its interest in the Site for the entire term of this Agreement. 1.4 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Applicant with respect to the Digital Billboard project, including actions by the City on any applications for local government approvals (i.e., land use permits, building permits, etc..) affecting such Site, shall be subject to the terms and provisions of this Agreement. 1.5 No Assignment. Applicant may only assign or otherwise transfer this Agreement, or its interest in the Site, to any other person, firm, or entity, upon presentation to the City of an assignment and assumption agreement in a form reasonably acceptable to the City Attorney and receipt of the City’s written approval of such assignment or transfer by the City Manager, which DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 3 1787489.1 approval may be withheld for any reason at the sole discretion of the City. 1.6 Term of Agreement. Unless earlier terminated, this Agreement shall run concurrently with that certain Digital Displa y Billboard Lease made and entered into on [date] by and between the Parties (the “Digital Lease”), which is incorporated herein by reference. Notwithstanding the foregoing, City and Applicant may agree to extend the term of this Agreement pursuant to an agreement in writing upon terms acceptable to both Parties. Within 30 calendar days after the expiration or termination of this Agreement, the Parties shall execute a written cancellation of this Agreement which shall be recorded with the County Recorder pursuant to Section 6.1. 1.7 Public Benefits. Applicant shall also provide the following community benefits during the entire t erm of this Agreement, for as long as the Digital Billboard is operated: 1.7.1 Removal of Static Display Billboards. Within ninety (90) calendar days following the Effective Date, and at no cost to the City, Applicant shall permanently remove the three (3) existing static display billboards depicted on attached Exhibit “B,” located approximately at 1631 El Camino Real, 1501 Nisson Road, and 14092 Red Hill Avenue. 1.7.2 Reimbursement of Environmental Review Costs Incurred by the City to Comply with CEQA. Within thirty (30) calendar days following the Effective Date, Applicant shall pay to City $38,800.00 (Thirty-Eight Thousand Eight Hundred Dollars) as reimbursement for costs incurred by City to complete analysis under CEQA in connection with the adoption of Ordinance No. 1505 relating to Freeway Adjacent Digital Display Billboards on February 4, 2020. 1.7.3 City’s Messaging and City Identification. At no cost to the City, Applicant shall provide the City exclusive use of up to ten percent (10%) of the total advertising time for the Digital Billboard during any month of the Term (“City Usage”). City may use such time t o promote any purpose that City, in its sole discretion determines best serves the needs of the City and residents, including but not limited to advertising City events and programs, including City-sponsored civic events and programs. City Usage will be allocated by Applicant , in Applicant’s reasonable discretion, on a fair and consistent basis with other advertisers during the operating hours the Digital Billboard is available. The City shall provide at least ten (10) business days advance notice of its intent to book City Usage; once booked, the time allocated to City Usage shall be distributed proportionally throughout a 24-hour period. To the extent that the City does not use the 10% availability so pledged and made available during any rolling 15-day period, it shall lapse; it cannot be accumulated beyond such rolling 15-day period. City will submit “camera ready” artwork to Applicant , at no cost to Applicant, for display purposes. City agrees that for any City Usage pursuant to this Section 1.7.3: (i) as noted above, City will provide Applicant with prior written notice of its desire for City Usage, (ii) City will provide Applicant with the copy or text of such messages not less than ten (10) business days prior to the date such messages are to appear on the Digital Billboard, and (iii) City Usage shall be limited to messages for the civic and public purposes described in this Section 1.7.3 and will not be DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 4 1787489.1 used directly or indirectly for any types of messaging or advertising which Applicant would otherwise be able to sell to third parties in the ordinary course of Applicant ’s business. City represents and warrants that all advertising materials and content supplied by City to Applicant for display in connection with City Usage, (i) are owned or duly licensed by City and do not infringe or misappropriate the rights of any other person or entity, (ii) comply with all applicable federal, state, and local laws, rules and regulations and any industry codes or rules by which the Parties may be bound and do not contain any obscene, libelous, slanderous or otherwise defamatory materials or refer in an offensive manner to the gender, race or ethnicity of any individual or group; (iii) are not false; and (iv) do not infringe upon any copyright, trademark or other intellectual property or privacy right of any third party. Applicant shall also incorporate an identification of the City, such as its seal or other emblem acceptable to both parties, on the two display sides of the Digital Billboard (“City Identification”). The design and location of City Identification on the Digital Billboard shall be approved by the City in the City’s Design Review process. 1.7.4 Emergency Notifications. Without any offset in the City Usage described above and at no cost to the City, Applicant shall make the Digital Billboard available to Caltrans and the California Highway Patrol for “Amber Alerts” and for emergency or disaster notifications by local, state or federal agencies. 1.8 Regulation by Other Public Agencies. It is acknowledged by the Parties that other public agencies not subject to control by City possess authority to regulate aspects of the Site and the Digital Billboard, and this Agreement does not limit the authority of such other public agencies. 2. DEVELOPMENT AND IMPLEMENTATION 2.1 Effect of Agreement on Land Use Regulations. For the entire effective term of this Agreement, except as otherwise provided under the terms of this Agreement, the rules, regulations and official policies governing permitted uses of the Site, the density and intensity of use of the Site, the maximum height and size of the propo sed Digital Billboard structure, and the design, and improvement and construction standards and specifications applicable to the Site shall be limited to those set forth in applicable land use regulations, including without limitation ordinances, resolutio ns, codes, rules, regulations and official policies of the City, including, but not limited to, the City’s General Plan, Municipal Code and Zoning Code, which govern development and use of the Digital Billboard Site, the California Outdoor Advertising Act (Business & Professions Code § 5200 et seq.) and Regulations (4 Cal. Code of Regulations § 2240 et seq.), and any approvals from the California Department of Transportation Outdoor Advertising Division which are in fu ll force and effect as of the Effective Date of this Agreement. 2.2 Changes to Display. Nothing herein shall cause Applicant to be in Default if it upgrades or replaces the digital display of the Digital Billboard during the term of this Agreement to incorporate newer technology; provided Applicant shall secure all applicable ministerial permits to do so and such upgrade is consistent with the dimensions and standards for the displays, as provided under this Agreement, the Tustin City Code, the California Outdoor Advertising Act (Business & Professions Code § 5200 et seq.) and Regulations (4 Cal. Code of Regulations § 2240 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 5 1787489.1 et seq.) 3. REVIEW FOR COMPLIANCE 3.1 Annual Compliance Review. By no later than January 31st of each year, the City Economic Development Director, or their designee, shall conduct a review to ascertain the good faith compliance by Applicant with the terms of this Agreement (“Compliance Review”). The Compliance Review will not require a public hearing unless amendments to this Agreement are being requested by Applicant or recommended by City. However, no failure on the part of City to conduct or complete a Compliance Review as provided herein shall have any impact on the validity of this Agreement. Applicant shall cooperate with the City in the conduct of such Compliance Review and provide the following information and documentation to the City by December 31st of each year: (1) copy of a current and valid CalTrans permit; (2) description of any complaints from CalTrans or the City regarding the Digital Billboard ; (3) description of any complaints from the public regarding the display unrelated to any content of the messages displayed; and (4) a list of all City Messages displayed during the preceding year of the Term per Section 1.7.3 and a description of the time and duration of such displays. 4. DEFAULT AND REMEDIES 4.1 Termination of Agreement. 4.1.1 Termination of Agreement for Material Default of Applicant. City may terminate this Agreement for any failure of Applicant to perform any material duty or obligation of Applicant hereunder or to comply in good faith with the material terms of this Agreement (hereinafter, such failure by either party being referred to as “Default ” or “Breach”); provided, however, City may terminate this Agreement pursuant to this Section only after (a) providing a thirty (30) calendar day notice to cure to Applicant , and (b) Applicant ’s failure to cure the Default or Breach during the 30-day cure period ; provided if any such Default or Breach would reasonably require more than thirty (30) days to cure, such termination right shall not accrue unless Applicant fails to commence curing with the thirty (30) day notice period or fails thereafter to promptly, effectively, and continuously proceed with the cure of such failure. In the event of termination of this Agreement by City under this Section, Applicant acknowledges and agrees that City may retain all reimbursement costs paid by the Applicant to the City pursuant to Section 1.7.2. and application fees paid by the Applicant to the City prior to the date of termination. 4.1.2 Termination of Agreement for Material Default of City. Applicant , in its discretion, may terminate this Agreement for any Default or Breach by City; provided, however, Applicant may terminate this Agreement pursuant to this Section only after (a) providing a thirty (30) day notice to cure to City, and (2) City’s failure to cure the Default or Breach during the 30-day cure period; provided if any such Default or Breach would reasonably require more than thirty (30) days to cure, such termination right shall not accrue unless City fails to commence curing with the thirty (30) day notice period or fails thereafter to promptly, effectively, and continuously proceed with the cure of such failure. In the event of a termination by Applicant under this Section, Applicant acknowledges and DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 6 1787489.1 agrees that City may retain all reimbursement costs paid by the Applicant to the City pursuant to Section 1.7.2. and application fees paid by the Applicant to the City prior to the date of termination. 4.1.3 Termination of Agreement following Revocation of CUP. This Agreement shall immediately terminate upon revocation of Conditional Use Permit No. ______ (approved immediately prior to or concurrently with this Agreement) authorizing the replacement of the Existing Sign with the Digital Billboard. In the event o f termination under this Section, Applicant acknowledges and agrees that City may retain all reimbursement costs paid by the Applicant to the City pursuant to Section 1.7.2. and application fees paid by the Applicant to the City prior to the date of termination. 4.1.4 Termination of Agreement following Expiration or Earlier Termination of Digital Lease. Notwithstanding the foregoing. This Agreement shall immediately terminate upon the expiration or earlier termination of the Digital Lease. 5. INDEMNIFICATION Applicant agrees to indemnify, defend, and hold harmless City, its elected and appointed officials, boards, commissions, agents, contractors, and employees from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including but not limited to attorney’s fees and costs) which may arise, directly or indirectly, from the acts, omissions, or operations of Applicant or Applicant’s agents, contractors, subcontractors, agents or employe es in connection with the performance of this Agreement, the use and occupation of the Site, and the use and operation of the Digital Billboard, but excluding any loss resulting from the sole negligence or willful misconduct of the City, or its elected and appointed officials, boards, commissions, officers, agents, contractors and employees. Not withstanding the foregoing, City shall have the right to select and retain counsel to defend any action or actions and Applicant shall pay the reasonable cost thereof. The indemnity provisions set forth in this Agreement shall survive termination of this Agreement. 6. MISCELLANEOUS PROVISIONS 6.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within 10 calendar days of execution, as required by Government Code Section 65868.5. Amendments approved by the Parties, and any cancellation, shall be similarly recorded. 6.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 7 1787489.1 6.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable if that stricken term, provision, covenant or condition is not material to the main purpose of this agreement, which is to allow the Digital Billboard to be permitted and operated and to provide public benefits to the City; otherwise, this Agreement shall t erminate in its entirety, unless the Parties otherwise agree in writing, which agreement shall not be unreasonably withheld. 6.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the Parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting party or in favor of the non-drafting party, shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 6.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 6.6 Singular and Plural. As used herein, the singular of any word includes the plural. 6.7 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 6.8 Waiver. Failure of a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the Default of the other party, shall not constitute a waiver of such party’s rig ht to insist and demand strict compliance by the other party with the terms of this Agreement thereafter. 6.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the Parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 6.10 Force Majeure. Neither party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, rains, winds, wars, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond the party’s control (including the party’s employment force), government actions and regulations (other than those of the City), court actions (such as restraining orders or injunctions), or other causes beyond the party’s reasonable control. If any such events shall occur except as otherwise provided herein, the term of this Agreement and the time for performance shall be extended for the duration of each such event, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years and further provided that if such delay is longer than six (6) months, Applicant may terminate this Agreement upon written notice to City and City shall return to Applicant any portion of the cont ribution paid for any period after the effective date of such termination. DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 8 1787489.1 6.11 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party. 6.12 Litigation. Any action at law or in equity arising under this Agreement or brought by any party hereto for the purpose of enforcing, construing or determining the validity o f any of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or such other appropriate court in said county. Service of process on City shall be made in accordance with California law. Service of process on Applicant shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between City and Applicant seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys’ fees. 6.13 Covenant Not to Sue. The Parties to this Agr eement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any ot her party to this Agreement, in law or in equity, which is based on an allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable. 6.14 Project as a Private Undertaking. It is specifically understood and agreed by and between the Parties hereto that the Digital Billboard project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Applicant is that of a government entity regulating the development of private property, on the one hand, and the holder of a legal or equitable interest in such property on the other hand. City agrees that by its approval of, and entering into, this Agreement, that it is not taking any action which would transform this private development into a “public work” project, and that nothing herein shall be interpreted t o convey upon Applicant any benefit which would transform Applicant’s private project into a public work project, it being understood that this Agreement is entered into by City and Applicant upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement which are incorporated into this Agreement and made a part hereof, and that City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Applicant by this Agreement. 6.15 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 9 1787489.1 Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 6.16 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain or Applicant ’s right to seek and collect just compensation or any other remedy available to it. 6.17 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both Parties specifically approving the amendment and in accordance with the Government Code provisions for the amendment of Development Agreements. The Parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non-material modifications may be approved by the City Manager. 6.18 Corporate Authority . The person(s) executing this Agreement on behalf of each of the P arties hereto represent and warrant that (i) such party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bound. 6.19 Notices. All notices under this Agreement shall be effective when delivered by United States Postal Service mail, registered or certified, postage prepaid return receipt requested or overnight courier ; a nd addressed to the respective Parties as set forth below or as to such other address as the P arties may from time to time designate in writing by providing notice to the other party: To City: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Manager With Copy to: Woodruff & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Attn: David Kendig , Esq. To Applicant : Outfront Media LLC Attention: Collin Smith 1731 Workman Street Los Angeles, CA 90031 DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 10 1787489.1 6.20 Nonliability of City Officials. No officer, official, member, employee, agent, or representatives of City shall be liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative. 6.21 No Brokers. City and Applicant represent and warrant to the other that neither has employed any broker and/or finder to represent its interest in this transaction. Each party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorneys’ fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder ’s fee in connection with this Agreement or arising out of agreements by the indemnifying party to pay any commission or finder’s fee. [SIGNATURES ON NEXT PAGE] DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F 11 1787489.1 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first set forth above. City: CITY OF TUSTIN By: ___________________________ Nicole Bernard, Acting City Manager ATTEST: By: _________________________ Erica N. Yasuda, City Clerk APPROVED AS TO FORM: By: _________________________ David E. Kendig, City Attorney Applicant : OUTFRONT MEDIA LLC, a Delaware limited liability company By: Its: By: Its: DocuSign Envelope ID: 557DD670-3DA3-4124-8D82-13570A97468F