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HomeMy WebLinkAbout08 SECOND READING AND ADOPTION OF ORDINANCE NO. 1539 - OUTFRONT MEDIA LLCDocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 AGENDA REPORT P68_1 , MEETING DATE TO FROM DECEMBER 5, 2023 NICOLE BERNARD, ACTING CITY MANAGER ERICA N. YASUDA, CITY CLERK Agenda Item 8 Reviewed: DS City Manager Finance Director N/A SUBJECT: SECOND READING AND ADOPTION OF ORDINANCE NO. 1539 (DEVELOPMENT AGREEMENT 2023-0001 BETWEEN THE CITY OF TUSTIN AND OUTFRONT MEDIA, LLC. — 1021 EDINGER AVENUE) SUMMARY: Adoption of Ordinance No. 1539 approves 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. At the last meeting, Council Member Schnell asked about the ability of the digital billboard to transmit an emergency message immediately upon notice. While the actual process and timing on displaying emergency messages is still being developed, Outfront Media is committed to working with the City on displaying emergency messages as soon as possible. RECOMMENDATION: That the City Council have second reading by title only and adoption of Ordinance No. 1539. BACKGROUND: On November 21, 2023, the City Council had first reading by title only of Ordinance No. 1539. 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 Attachment: 1. Ordinance No. 1539 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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 Ordinance No. 1539 Page 1 of 4 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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. Accordingly, the project qualifies for the Section 15162 exemption because: 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: 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. Ordinance No. 1539 Page 2 of 4 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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 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): 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. Ordinance No. 1539 Page 3 of 4 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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: DocuSigned by: DA EE37KENOIG, 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 Ordinance No. 1539 Page 4 of 4 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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] 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." 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. 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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 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. 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. 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 2 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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 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 term 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 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 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 3 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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 proposed 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, resolutions, 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 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 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 4 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 et seq.) 3. REVIEW FOR COMPLIANCE 3.1 Annual Compliance Review. By no later than January 3 Pt 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 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 5 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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 AgreementfollowingRevocation 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 of 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 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 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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 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 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 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 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 contribution paid for any period after the effective date of such termination. 7 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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 of 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 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 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 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 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 8 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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 Parties hereto represent and warrant that (i) such party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bound. 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 Kendig, Esq. To Applicant: Outfront Media LLC Attention: Collin Smith 1731 Workman Street Los Angeles, CA 90031 9 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 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] 10 1787489.1 DocuSign Envelope ID: 63BOC69D-1BFD-4B3F-8FDF-D6C835E73DF6 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first set forth above. ATTEST: Erica N. Yasuda, City Clerk APPROVED AS TO FORM: 10 David E. Kendig, City Attorney 1787489.1 II City: CITY OF TUSTIN I: Nicole Bernard, Acting City Manager Applicant: OUTFRONT MEDIA LLC, a Delaware limited liability company By: Its: By: Its: