HomeMy WebLinkAbout10 DEVELOPMENT AGREEMENT 2024-0007 AMENDING DEVELOPMENT AGREEMENT 2020-0001 REGARDING TERMS AND PUBLDocusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930
MEETING DATE:
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AGENDA REPORT City Manager ^Initial
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FEBRUARY 4, 2025
ALDO E. SCHINDLER, CITY MANAGER
JUSTINA L. WILLKOM, COMMUNITY DEVELOPMENT DIRECTOR
DEVELOPMENT AGREEMENT 2024-0007, AMENDING DEVELOPMENT
AGREEMENT 2020-0001 REGARDING TERMS AND PUBLIC BENEFIT
The applicant, the Tustin Auto Center Merchants Association, is requesting approval of
Development Agreement (DA) 2024-0007 to amend the term and sponsorship
contributions previously established in DA 2020-0001. The proposed amendment will
extend the term of the agreement and establish a methodology for calculating the annual
sponsorship contribution. The Planning Commission held a public hearing on December
10, 2024, and adopted Resolution No. 4511, recommending that the City Council adopt
Ordinance No. 1560 to approve DA 2024-0007.
PROPERTY OWNER JOHN PATTERSON
AND APPLICANT: TUSTIN AUTO CENTER MERCHANTS ASSOCIATION
C/O POWERSTONE PROPERTY MANAGEMENT
9060 IRVINE CENTER DRIVE
IRVINE, CA 92618
LOCATION: ASSESSOR PARCEL NO. 500-181-08
(REAR OF 40 & 44 AUTO CENTER DR.; NO STREET
ADDRESS)
GENERAL PLAN: PLANNED COMMUNITY COMMERCIAL BUSINESS
(PCCB)
ZONING: PLANNED COMMUNITY COMMERCIAL (PC COM)
RECOMMENDATION:
That the City Council:
1. Conduct first reading by title only for Ordinance No. 1560, approving DA 2024-
0007 to amend the term and sponsorship contribution previously established by
DA 2020-0001, and,
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City Council Agenda Report
DA 2024-0007, Tustin Auto Center DA Amendment
February 4, 2025
Page 2
2. Set the second reading for the next available Council meeting.
ENVIRONMENTAL REVIEW:
This project is Categorically Exempt (Class 1) pursuant to Section 15301 of the California
Environmental Quality Act (CEQA).
FISCAL IMPACT:
The proposed amendment would have a positive fiscal impact, as it includes an escalated
financial contribution from the Tustin Auto Center Merchants Association based on the
average annual growth rate of car sales tax, providing proportional increases to the City's
public benefit funding for Parks and Recreation events and programming.
CORRELATION TO THE STRATEGIC PLAN:
This amendment supports Strategic Plan Goal A — Economic and Neighborhood
Development, by enabling business growth and fostering economic vitality through
strategic public -private partnerships. Additionally, it aligns with Goal C — Financial
Strength, by ensuring increased fiscal contributions proportional to economic growth, and
Goal D — Strong Community and Regional Relationships, by maintaining collaborative
partnerships with local businesses.
APPROVAL AUTHORITY:
Pursuant to Tustin City Code (TCC) 9613 to 9615, the City Council is authorized to
consider amendments to a DA following recommendation by the Planning Commission.
BACKGROUND:
The Tustin Auto Center's freeway -oriented digital billboard has undergone several key
actions and approvals by the City:
• April 24, 1985: The Planning Commission approved the original freeway -oriented
static sign under Resolution No. 2343 as part of the Auto Center's Master Sign
Program.
• December 22, 2003: The Planning Commission adopted Resolution No. 3904,
permitting the installation of a digital reader board for Auto Center -related
advertisements. Off -site advertising was prohibited.
• February 4, 2020: The City Council adopted Ordinance No. 1505, establishing
regulations that allow freeway -adjacent digital billboards to display off -site advertising
via CUP, subject to the granting of a substantial public benefits.
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City Council Agenda Report
DA 2024-0007, Tustin Auto Center DA Amendment
February 4, 2025
Page 3
• May 11, 2020: The Planning Commission recommended City Council approval of
CUP 2020-0006 and DA 2020-0001 through Resolution No. 4403.
• June 16, 2020: The City Council approved DA 2020-0001 through Ordinance No.
1507, authorizing off -site advertising on the digital billboard in exchange for public
benefits such as annual sponsorship contributions and City advertising opportunities.
• December 10, 2024: The Planning Commission reviewed and recommended
approval to the City Council of this request, DA 2024-0007, through Resolution No.
4511.
The freeway -oriented sign for the Tustin Auto
Center (Auto Center) was initially approved in 1985
as a static display. Over time, the sign evolved to
include digital reader board functionality, allowing
advertisements for Auto Center businesses. In
2020, a Development Agreement (DA 2020-0001)
was established, permitting off -site advertising in
exchange for public benefits. The public benefit
included $25,000 annual sponsorship contributions
to support City Parks and Recreation events and
public service announcements on the billboard for
City activities. DA 2020-0001 expired on December
31, 2024. The current amendment seeks to extend
the agreement's term, establish a renewable five-
year period, and introduce a growth -based
methodology for determining annual contributions,
tied to the average annual growth rate of car sales
tax revenue from the prior five years.
DISCUSSION:
The original Development Agreement (DA 2020-0001), approved in 2020, provided the
framework for allowing off -site advertising on the Auto Center's digital billboard. It
included the following key provisions:
1. Term: The agreement was effective until December 31, 2024, unless mutually
extended.
2. Sponsorship Contribution: An annual $25,000 contribution to the City's Parks &
Recreation Department to support four major community events, with the Auto
Center receiving name recognition as a major sponsor.
3. City Advertising: The City was granted public service announcements and/or
advertising of City events and programs annually.
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City Council Agenda Report
DA 2024-0007, Tustin Auto Center DA Amendment
February 4, 2025
Page 4
4. Adjustment Methodology: While the agreement allowed for annual reviews of
the sponsorship contribution, it did not establish a clear basis for determining
adjustments.
Building upon the original agreement, DA 2024-0007 proposes several amendments that
enhance the agreement and address limitations of the original DA:
Table 1. Comparison of Existing and Proposed Agreement Terms
Provision
DA 2020-0001
DA 2024-0007
(Existing Agreement)
(Proposed Agreement)
Term
Effective until December 31, 2024,
Renewable five-year term,
unless mutually extended.
automatically extending unless
terminated by either party.
Sponsorship
Annual $25,000 contribution to
Contribution adjusted upwards
Contribution
Parks & Recreation Department to
or downwards based on the
support four major community
average annual growth rate of
events.
car sales tax revenue from the
preceding five years. In no
event shall the contribution fall
below $25,000.
City
Granted public service
Continuation of advertising
Advertising
announcements and/or advertising
opportunities and
of City events and programs
announcements on the digital
annually.
billboard valued at
approximately $2,500 per
month.
Adjustment
Annual reviews contemplated but
Growth -based methodology
Methodology
no clear basis for adjustments
eliminates the need for annual
established.
renegotiations and ensures
proportional contributions.
While it can vary from year to year, the Auto Center currently generates approximately $8
million per year in sales tax revenue to the City's General Fund, which equates to
approximately 23% of the anticipated sales tax revenue, and 8% of all revenue for Fiscal
Year 2024/2025. A new Kia dealership is under construction at the Auto Center, which
will likely increase the sales tax revenue. The opportunity to have City messaging on the
Auto Dealer digital billboard is currently at no cost under the DA, but the Auto Dealers
value this at approximately $2,500 per month ($30,000 per year). The Auto Center is also
active in the Tustin community, contributing regularly to City nonprofits and other
community groups.
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City Council Agenda Report
DA 2024-0007, Tustin Auto Center DA Amendment
February 4, 2025
Page 5
Staff and the Auto Center evaluated a number of options to ensure that the annual
contribution increases would be reflective of the Auto Center industry, while also
recognizing the Auto Center's direct and indirect benefit to the City. It is worth noting that
although sales tax revenue to the City generated by the Auto Center generally grows year
over year, the Auto Center's profits are not escalating at the same rate. Increased car
prices leading to higher sales tax do not reflect the increased cost of parts, salaries and
benefits for the Auto Center. DA 2024-0007 recognizes the large impact the Auto Center
has on community events and the City's fiscal health, while ensuring that the Auto
Center's contribution to the City directly corresponds to the average increase or decrease
in sales tax over a five (5) year period.
DA 2024-0007 addresses the need for financial predictability while ensuring contributions
remain equitable and proportional to the economic growth of the Auto Center. The
renewable term and growth -based contribution methodology eliminate inefficiencies in
renegotiations, allowing for smoother implementation and planning. Additionally, the
continuation of public benefits, such as City advertising valued at $2,500 per month,
ensures that the partnership remains mutually beneficial.
Planning Commission Action
On December 10, 2024, the Planning Commission held a public hearing to consider DA
2024-0007. The Commission adopted Resolution No. 4511, recommending that the City
Council adopt Ordinance No. 1560, approving the proposed amendment to the DA.
PUBLIC NOTICE:
Mailers were sent to property owners within 300 feet of the subject property, and a public
notice was published in the Tustin News on January 23, 2025, informing the public of the
City Council meeting. In addition, the public notice was posted at Tustin City Hall, the
Tustin Library, and the Tustin Area Senior Center.
CONCLUSION:
Development Agreement (DA) 2024-0007, the first amendment to DA 2020-0001,
provides public benefits to the City in the form of increased visibility of City events and
financial contributions. Accordingly, staff recommend that the City Council conduct first
reading for Ordinance No. 1560, recommending that the City Council approve DA 2024-
0007, and schedule second reading for the next available City Council meeting.
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City Council Agenda Report
DA 2024-0007, Tustin Auto Center DA Amendment
February 4, 2025
Page 6
Signed by:
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Justina L. Willkom
Community Development Director
Signed by:
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Kenneth Piguee
Real Property Manager
Attachments:
Signed by:
C3F97677838E410...
Jay Eastman
Assistant Community Development
Director - Planning
1. Location Map
2. PC Resolution No. 4511
3. PC Hearing Minutes, December 10, 2024
4. Executed DA 2020-0001
5. Proposed DA 2024-0007
6. Ordinance No. 1560 — DA 2024-0007
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Attachment 2
RESOLUTION NO. 4511
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF TUSTIN, CALIFORNIA, RECOMMENDING THAT THE
TUSTIN CITY COUNCIL APPROVE DEVELOPMENT
AGREEMENT 2024-0007 AMENDING THE TERM AND
SPONSORSHIP CONTRIBUTION PREVIOUSLY ESTABLISHED
BY DEVELOPMENT AGREEMENT 2020-0001 REGARDING
THE FREEWAY ADJACENT DIGITAL DISPLAY BILLBOARD AT
THE TUSTIN AUTO CENTER.
The Planning Commission of the City of Tustin does hereby resolve as follows:
The Planning Commission finds and determines as follows:
A. That the previously approved Development Agreement (DA) 2020-0001 term
expires on December 31, 2024.
B. That DA 2020-0001 provided public benefits in the form of a $25,000 annual
contribution towards four (4) Parks & Recreation events and it was understood
the contribution would be negotiated annually.
C. That DA 2020-0001 did not establish a methodology for the annual negotiation
of the sponsorship contribution.
D. That a public hearing was duly called, noticed, and held on said application
on December 10, 2024, by the Planning Commission.
E. That DA 2024-0007 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 Auto Center Planned
Community regulations in that the proposed freeway adjacent digital
display billboard use is a conditionally permitted use that supports the
Tustin Auto Center and City programs.
2. The project is compatible with the uses authorized in the district in which
the real property is located in that the site is approved for a freeway digital
display billboard and the proposed project is a minor expansion of the
allowed use.
3. The project is inconformity 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 City programs.
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Resolution No. 4511
Page 2
4. The project will not be detrimental to the health, safety, and general
welfare in that the freeway adjacent digital display billboard structure is
existing. 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 existing and surrounding properties are already improved with
landscaping, signage and multiple automobile dealerships.
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.
F. That this project has been determined to be Categorically Exempt pursuant
to Section 15301 (Class 1) of the California Environmental Quality Act in
that the subject project involves no physical modifications to an existing
structure and results in negligible expansion of an existing use.
The Planning Commission hereby adopts Resolution No. 4451 recommending that
the City Council approve DA 2024-0007, attached hereto as Exhibit A and amends
the term and methodology previously established by DA 2020-0001.
PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular
meeting on the 10th day of December 2024.
Signed by:
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D148F2661EF34A4.._
ERIC HIGUCHI
ESigned by: Chairperson
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JUSTINA L. WILLKOM
Planning Commission Secretary
APPROVED AS TO FORM -
EA
MICHAEL DAUDT
Assistant City Attorney
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Resolution No. 4511
Page 3
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF TUSTIN
I, Justina L. Willkom, the undersigned, hereby certify that I am the Planning Commission
Secretary of the City of Tustin, California; that Resolution No. 4511 was duly passed and
adopted at a regular meeting of the Tustin Planning Commission, held on the 10th day of
December, 2024.
PLANNING COMMISSIONER AYES:
PLANNING COMMISSIONER NOES:
PLANNING COMMISSIONER ABSTAINED:
PLANNING COMMISSIONER ABSENT:
Signed by:
tkz' n.u.. c4. OWK041-1,
ED45DA2623&54A5...
JUSTINA L. WILLKOM
Planning Commission Secretary
Douthit, Higuchi, Kozak, Mello (4)
Mason (1)
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EXHIBIT A
RESOLUTION NO. 4511
DEVELOPMENT AGREEMENT 2024-0007
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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 2024-007
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT 2020-0001
This Amendment, Development Agreement 2024-0007, to Development Agreement 2020-0001
("Amendment") is entered into to be effective this day of , 2025, by and between the CITY
OF TUSTIN ("City") and TUSTIN AUTO CENTER MERCHANTS ASSOCIATION, a non-profit
California Corporation ("Applicant"). City and Applicant are sometimes hereinafter individually referred
to as a "Party" and hereinafter collectively referred to as the "Parties."
RECITALS
A. The City and Applicant entered into that certain Development Agreement dated as of July
22, 2020, and recorded in the Official Records, Orange County, as Document No. 2020000352604 (the
"Development Agreement") pursuant to which, among other things, the City agreed to allow the Applicant
to expand the scope of advertisements and messages permitted on their freeway adjacent digital display
billboard. Initially capitalized terms not defined herein shall have the respective meanings assigned to
such terms in the Development Agreement.
B. Unless extended by mutual written agreement, the Development Agreement will expire on
December 31, 2024.
C. The Parties desire to amend the Development Agreement to extend its term and modify the
Public Benefits provided by Applicant to the City as set forth herein.
D. On , 2024, the City Planning Commission, at a duly noticed public hearing to
consider this Amendment, adopted Resolution No. recommending approval of this Amendment to
the City Council.
E. On , 2025, the City Council of the City, at a duly noticed public hearing to consider
the approval of this Amendment, considered the proposal and heard testimony relating to this Amendment.
F. On , 2025, the City Council conducted the second reading of Ordinance No,
thereby approving this Amendment.
G. City finds and determines that all actions required of City precedent to approval of this
Amendment by Ordinance No. of the City Council have been duly and regularly taken.
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NOW, THEREFORE, in consideration of the mutual promises and covenants herein, the Parties
agree as follows:
1. Incorporation of Recitals. The above -referenced Recitals are hereby incorporated into
this Amendment as though fully set forth herein and made part of the Amendment and each Party
acknowledges and agrees that such Parry is bond, for purposes of this Amendment by the same.
2. Term. Section 1.6 of the Development Agreement is hereby amended and restated in its
entirety to read as follows:
"Section 1.6 Term of Agreement. Unless earlier terminated as provided in Section 4.1
of this Agreement, this Agreement shall continue in full force and effect for an initial term ending
on December 31, 2024. Commencing January 1, 2025, the Agreement shall automatically renew
for additional five-year terms (each a "Successive Term") and shall continue in perpetuity, unless
(a) terminated as provided in Section 4.1 of this Agreement, or (b) until either Parry provides
written notice of non -renewal to the other Parry within ninety (90) calendar days prior to the
expiration of the then current Successive Term. Within thirty (30) calendar days after the
termination or expiration 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. Following
the termination or expiration of the Agreement, Applicant will limit advertisements and messages
on the Existing Sign to businesses, products, persons, or subjects related to the Tustin Auto Center
in accordance with CUP 03-023."
3. Public Benefits. Subsections 1.7.2 and 1.7.3 of the Development Agreement are hereby
amended and restated in their entirety to read as follows:
"1.7.2 Annual Sponsorship Contribution. Applicant shall make an Annual Sponsorship
Contribution ("Contribution") to the City's Parks & Recreation Department to support community
events. The initial Contribution for Calendar Years 2020 through 2024 was $25,000. The
Contribution for the next five calendar years, 2025 through 2029, will be calculated by utilizing
car sales tax data from the current five years, Fiscal Year ("FY") 2019-2020 to FY 2023-2024,
specifically the last FY, in this case FY 2023-2024, against the base FY 2018-2019. The base FY
is the FY prior to the current five years. The base year (A), in this case FY 2018-2019, will serve
as the denominator, and the last FY of the current five-year period (B), in this case FY 2023-2024,
will serve as the numerator. The calculation minus the number one equals the percentage
difference (C) from the five-year period against the base FY, and then it is divided by the number
of calendar years in the term (D). The percentage derived, or average annual growth rate (E), will
be applied against the initial contribution of $25,000 (F) to determine the increase (G). The sum
of the Contribution and increase amount equals the New Contribution (H) and will remain fixed
for the five subsequent years, 2025 through 2029. At the next five years, 2030 through 2034, the
calculation will consider the current five years of change. The FY prior to the current five years
will serve as the denominator and the last FY of the current five years will serve as the numerator.
The calculation minus one will be divided by five and that percentage is applied against the 2025
— 2029 Contribution, thus becoming the next 5-year Contribution. This manner of calculating the
annual Contribution will be applied for each Successive Term. The Parties acknowledge that the
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Contribution amount may be reduced because of reductions in car sales tax; however, in no event
shall the annual Contribution paid by Applicant be less than $25,000. An example of this
calculation is provided in the table below.
EXAMPLE:
Calendar Years 2020 through 2024
(A)
(B)
(C)
Base Fiscal Year
Ending Fiscal Year
Percent Change (B) / (A) -1
Example Calculations
2018-2019
2023-2024
2018-19 to 2023-24
Car Sales Tax Growth Rate
$5,000,000
$6,250,000
25%
(C)
Percent Change
(D)
Calendar Years
(E)
Avg. Annual Growth Rate (C)/(D)
Average Annual Growth Rate
25%
5
5%
(E)
Avg. Annual Growth Rate
(F)
Base Contribution
(G)
Contribution Increase (E) x (F)
Contribution Increase
5%
$25,000
$1,250
(F)
Initial Contribution
(G)
Contribution Increase
(H)
New Contribution (F) + (G)
Revised Annual Contribution
$25,000
$1,250
$26,250
$26,250 is the new Contribution for five years based on the example scenario. However,
if there is no growth between a five-year period, the Contribution for the next five years will be
equal to the Contribution from the previous five years.
The Contribution will support four (4) major Parks & Recreation events. The City reserves
the right to cancel community events, and the amount of the Contribution shall not be offset or
pro -rated in the event of any such cancellation.
1.7.2.1 Payment Schedule. The City shall provide to Applicant the City's
calculation of car sales tax and the resulting annual Contribution by November 1st of any
year where the Agreement is subjectto renewal for an additional five-year Successive Term
(e.g. car sales tax calculation to be provided in November 2029, for annual Contribution
amount commencing on January 31, 2030). The Contribution shall be paid annually, with
the first installment payable by no later than forty-five days after the second reading of
Ordinance No. ("First Due Date"). Subsequent annual Contribution payments shall
be due no later than the January 31 of that year ("Subsequent Due Date(s)"). The First Due
Date and Subsequent Due Date(s) are individually and collectively referred to hereafter as
the "Due Date."
1.7.2.2 Late Payment. Failure by Applicant to pay the Contribution to City within
thirty (30) calendar days following the Due Date is considered a material Breach of this
Agreement subject to termination in accordance with Section 4.1.1.
1.7.3 Annual Review of Public Benefits. By no later than March I" of each year, the
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City Manager or their designee, and Applicant will consider revisions to the City's share of visual
time on the Digital Billboard per Section 1.7.1. The City Manager or their designee is authorized
to approve, by written addendum to this Agreement, adjustments to the quantity of City display
time on the Digital Billboard, provided that the City Manager may not approve a reduction in the
City's allotment of display time on the Digital Billboard ("Reduction in Public Benefit"). Any
Reduction in Public Benefit may only be approved by action of the City Council. The City Manager
may, at their discretion, forward any other proposed modification of Public Benefits to the City
Council."
4. Review for Compliance. Section 3.1 of the Development Agreement is hereby amended
and restated in their entirety to read as follows:
113.1 Annual Review. The City Manager or their designee shall review this Agreement
annually, by no later than March lst of each year, to ascertain the good faith compliance by
Applicant with the terms of the Agreement ("Annual Review"). The Annual 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 an Annual
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 Annual Review and provide the following
information and documentation to the City on or before February lst of each year: (1) copy of a
current and valid CalTrans permit; (2) description of all complaints from CalTrans or the City
regarding the Digital Billboard; (3) description of all complaints from the public regarding the
display unrelated to any content of the message displayed; and (4) a list of all City Messages
displayed during the preceding year of the Term per Section 1.7.1 and a description of the time
and duration of such displays."
5. No Other Changes. This Amendment is supplemental to the Development Agreement
and is by reference made part of said Development Agreement. All provisions of the Development
Agreement not specifically amended herein shall remain in full force and effect. In the event of any
conflict or inconsistency between the provisions of this Amendment and any provisions of the
Development Agreement, the provisions of this Amendment shall in all respect govern and control. Unless
otherwise specifically defined herein, terms used in this Amendment shall have the same meaning as
ascribed to them in the Development Agreement. The execution and delivery of this Amendment shall
not operate as a waiver of or, except as expressly set forth herein, an amendment of any right, power or
remedy of either Parry in effect prior to the date hereof.
6. Counterparts. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and any of the Parties hereto may
execute this Amendment by signing any such counterpart.
7. Recordation of Amendment. This Amendment 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. Any future amendments approved by the Parties, and any cancellation, shall be similarly
recorded.
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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:
David E. Kendig, City Attorney
/msd/
5
City: CITY OF TUSTIN
By:
Austin Lumbard, Mayor
Applicant: TUSTIN AUTO CENTER
MERCHANTS ASSOCIATION,
By:
Its:
By:
Its:
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ATTACHMENT 3
MINUTES
COUNCIL CHAMBER & VIDEO CONFERENCE
TUSTIN PLANNING COMMISSION
MEETING
DECEMBER 10, 2024
7:02 p.m. CALL TO ORDER:
Given. PLEDGE OF ALLEGIANCE: Commissioner Kozak
All present. ROLL CALL: Chair Higuchi
Chair Pro Tern Douthit
Commissioners Kozak, Mason, Mello
(Mason arrived at 7:16 p.m.)
None. PUBLIC INPUT:
CONSENT CALENDAR:
None. Hurtado confirmed no public input was received for the Consent Calendar.
1. APPROVAL OF MEETING MINUTES— NOVEMBER 12, 2024
RECOMMENDATION:
That the Planning Commission approve the Minutes of the November
12, 2024 Planning Commission meeting, as provided.
Motion: It was moved by Mello, seconded by Kozak, to approve the Minutes of the
November 12, 2024 Planning Commission meeting. Motion carried 4-0-1.
Mason was not present.
Adopted
Reso. No.
4511, as
provided.
PUBLIC HEARING:
2. DEVELOPMENT AGREEMENT 2024-0007: FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT 2020-0001.
PROPERTY OWNER/ Tustin Auto Center Merchants
APPLICANT: Association
ATTN: John Patterson
C/O Powerstone Property Management
9060 Irvine Center Drive
Irvine, CA 92618
Minutes — Planning Commission Meeting — December 10, 2024 — Page 1
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ENVIRONMENTAL:
This project Is Categorically Exempt (Class 1) pursuant to Section
15301 of the California Environmental Quality Act.
REQUEST:
A request to amend the terms and sponsorship contribution previously
established by Development Agreement 2020-0001 for the Tustin
Auto Center freeway adjacent digital display billboard.
RECOMMENDATION:
That the Planning Commission adopt Resolution No. 4511
recommending the City Council approve Development Agreement
(DA) 2024-0007, amending the terms and sponsorship contribution
previously established by DA 2020-0001 for the Tustin Auto Center
freeway adjacent digital billboard.
Craig Presentation given.
Mello Mello's questions generally included: the basis for the 25-thousand-dollar
annual sponsorship amount; commended staff for capturing the operational
profitability; and he asked if staff negotiated with Tustin Auto Center the
possibility of increasing the sponsorship amount due to inflation.
Craig In response to Mello's question, Craig's response generally included: the 25
thousand dollars was an amount agreed to five years ago between Tustin
Auto Center and the City; the idea was that the sponsorship amount would
be for major events as part of the City's Parks & Recreation activities;
discussions were had between the City and Tustin Auto Center about
increasing the sponsorship amount; the City has experienced inflation and
the amount will increase due to sales tax increase; staff tried to approach the
matter as a partnership whereas if the applicant is doing well, the City
benefits, and if the applicant is not doing well, then the City does not benefit
as much; and Tustin Auto Center also sponsors many other agencies as well
as a variety of other activities.
Higuchi Higuchi inquired on the car sales tax amount for the past five years as well as
the percentage that goes to the City.
Craig Craig stated that in 2024, there was approximately 7.7 million dollars in car
sales tax, which went to the City. The starting point was approximately 5.1
million dollars in car sales tax (approximately a 10 percent increase).
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Hurtado Hurtado confirmed no public input was received on this item.
Commission's The Commission's closing comments generally included: Kozak was in
closing support of the recommended action; Mello voiced his concern with the
comments. downside, in terms of inflation, and the 25K base; he suggested
recommending to the City Council that the amount be increased; Douthit was
also in support of the recommended action; Higuchi had concerns with the
sponsored amounts, stating "we take for granted the amount of tax revenue
generated by Tustin Auto Center", and he would like Mr. Patterson and his
associates to increase their donation to the various City of Tustin events.
John The applicant, John Patterson, commented on the following, in general: Tustin
Patterson Auto Center is grateful for their relationship with the City; the Auto Center's
annual donations include: Dino Dash and OC Rescue Mission; every one of the
dealers is committed to the City and public schools; he confirmed that the
price of cars has increased, which raises tax revenue, but clarified that the cost
of wages have increased significantly; he stated that it might appear that
dealer profits are increasing because car prices have increased, but the cost
of doing business has also increased significantly, so the profit on each car
has remained unchanged; and he is excited to announce that Tustin Kia store
will also be opening soon in Tustin.
Motion It was moved by Douthit, seconded by Kozak, to adopt Resolution No. 4511,
as presented. Motion carried: 4-0-1 with Mason abstaining from the vote.
Adopted Reso. 3. CONDITIONAL USE PERMIT (CUP) 2024-0012
No. 4510, as
provided.
APPLICANT:
Anthony Lee
Westcliff University
17877 Von Karman Avenue
Irvine, CA 92614
PROPERTY OWNER:
Steven Short
15101 Red Hill Partners, LLC
6850 Brockton Avenue, Suite 211
Riverside, CA 92508
LOCATION: 15101 Red Hill Avenue
ENVIRONMENTAL:
This project is Categorically Exempt pursuant to Section 15301 (Class 1
— existing facilities) of the California Environmental Quality Act.
Minutes — Planning Commission Meeting — December 10, 2024 — Page 3
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REQUEST:
A CUP to authorize the establishment of a professional school (law
school) within an existing two-story 50,686 square foot office building.
RECOMMENDATION:
That the Planning Commission adopt Resolution No. 4510, approving
CUP 2024-0012 to authorize the establishment of a professional school
(law school) within a two-story 50,686 square foot office building.
Salman Presentation given.
Higuchi Higuchi disclosed his ex parte communication with the applicant prior to the
meeting.
Anthony Lee The applicant, Anthony Lee, introduced himself and provided background
information regarding Westcliff Law School.
Mello Mello was referring to the VMT report and asked the applicant the terms for
"qualifying transit".
Eastman Eastman's response generally included: qualifying transit would be the
Metrolink Station or two bus routes that intersect with a 20-minute headway
during peak hours (i.e. high frequency bus routes); he explained that "headway"
means the time between when buses arrive at a stop along a route; and he
clarified that many of the bus routes in the City are east -west and do not
intersect, and that Red Hill and Edinger Avenues do not have the volume of
stops during peak hours to qualify.
Hurtado. Hurtado confirmed no public input was received for this item.
Commission The Commission was in support of the proposed project and favorable
comments were made to the applicant.
Motion: It was moved by Mason, seconded by Kozak, to adopt Resolution No. 4510, as
presented. Motion carried 5-0.
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Adopted Reso.
No. 4512, as
provided.
Valle
Douthit
4. CONDITIONAL USE PERMIT (CUP) 2024-0016
APPLICANT:
Yen Nam
Fluffy Tail Cafe, LLC
13664 Red Hill Avenue
Tustin, CA 92780
PROPERTY OWNER:
Gardena Strawberry Center, LLC
2973 Harbor Boulevard, Suite 150
Costa Mesa, CA 92626
LOCATION: 13562 Newport Avenue
ENVIRONMENTAL:
This project Is Categorically Exempt pursuant to the California
Environmental Quality Act (CEQA) Section 15301 (Class 1).
REQUEST:
To establish an animal boarding facility in conjunction with a proposed
coffee shop located at 13562 Newport Avenue.
RECOMMENDATION:
That the Planning Commission adopt Resolution No. 4512 approving
CUP 2024-0016 to establish an animal boarding facility in conjunction
with a proposed coffee shop at 13562 Newport Avenue.
Presentation given. A public comment (letter) was received on December 9,
2024, and staff provided a response to that letter prior to the meeting.
Douthit asked the applicant if there is a separate admission fee just to access
the cat area.
Yen Nam The applicant, Yen Nam, confirmed there is a separate fee to access the cat area
only unless a coffee is purchased (with a coffee the admission is included). She
also went into greater detail regarding the overall operations. Ms. Nam also
stated there are cat cafe locations in San Diego and Palm Springs.
Mason Mason commented on the parking and the concern with separating out the
businesses and the available parking.
Barragan In response to Mason, Principal Planner Barragan stated, as part of the
application, the City did receive the title report for the property, which showed
there is reciprocal access for parking and for access to each property (i.e.
Minutes — Planning Commission Meeting — December 10, 2024 — Page 5
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Barragan ample parking for the entire shopping center). Staff looked at the most
intensive portion of the use, which would be the coffee shop. In this instance
the cafe (and animal boarding) is replacing another general retail use (tattoo
parlor) with the same parking requirements. Therefore, no additional parking
is required.
Kozak Kozak asked if there are other similar uses in Tustin.
Valle In response to Kozak's question, Valle stated this would be the only cat cafe
in the City of Tustin and the second ever in Orange County. There was a cat
cafe in Laguna Beach that shut down during COVID pandemic.
Mello Mello asked about the number of employees and the ratio of staff to each cat.
Yen There will be at least one employee on the boarding side and one on the
coffee side of the proposed location.
Higuchi Higuchi's questions generally included: if staff received any input from
Orange County Health Care Agency (OCHCA); if the proposed project was
purely a coffee shop, what would the process and parking requirements be
and if a business license requires a title report to be provided.
Valle Valle confirmed staff did reach out to OCHCA and had various conversations
with them. OCHCA's only concern was with the preparation of food and
wanted to ensure the food preparation was completely separate from the cat
area. If the proposed project was a coffee shop only, there would not have
been a public hearing and the project would be approved by right and the
applicant would go directly to Business License (the item would not have to
go through the Zoning Administrator or Planning Commission process).
Parking requirements would have been the same (one space per 250 square
feet = 6 stalls). A parking study would have only been required if the use
were a more intensive use. In summary, the proposed project does not require
additional parking, however staff does look at parking during the planning
review process.
Public Larry Karlin, representative of Karlin Law firm, commented on the following,
comments: in general: parking along Newport Avenue; commended the Commission and
the City of Tustin; the report is unclear on the parking and the number of
seating inside the proposed project; the reciprocal parking information is not
accurate; and favorable comments regarding the project.
Mason Mason asked the applicant about the maximum occupancy with the number
of people visiting the cats inside the cafe.
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Yen Per Ms. Yen, the cafe would require reservations. The maximum number of
cats is 12. Regarding the seating, the project's concept is for customers to
interact with the cats (i.e. standing, sitting on the floor with the cats — this is
not a regular coffee shop with seating). The maximum number of people
interacting with the cats is 12 for one hour maximum.
Hurtado Hurtado confirmed no additional public input was received.
Commission Commission's final comments generally included: commended staff for being
thorough in the research of the project; and encouraged the applicant and
staff to communicate with the neighboring business to better understand the
parking and to have open lines of communication.
Motion: It was moved by Mello, seconded by Mason, to adopt Resolution No. 4512,
as provided. Motion carried 5-0.
REGULAR BUSINESS:
Received & 5. HISTORIC PRESERVATION UPDATE — DEVELOPMENT OF GIS-
filed. BASED STORYMAP
A presentation regarding the new historic preservation tool which
visually maps the results of the City's 2021 Historic Preservation
Survey through a GIS-based StoryMap, making the survey results,
along with other information, more accessible to the public. This tool
is the next step forward in modernizing Tustin's historic preservation
information.
Demkowicz Presentation given.
Willkom Willkom informed the Commission this is the first of many efforts staff is
making to modernize how the public can access information. The next project
will include a listing of current projects (i.e. new GIS map). Staff is also
working very hard on getting the City's zoning and general plan maps
available on the City's website using the new GIS technology.
Mason Mason gave kudos to the Historic Preservation Team. She asked if other cities
are doing this and if the City can get recognized for their best practices (i.e.
State, nationwide).
Mello Mello made favorable comments.
Minutes — Planning Commission Meeting — December 10, 2024 — Page 7
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Douthit Douthit made favorable comments about the new GIS mapping. He had
questions regarding the 6Z designation for properties.
Demkowicz Per Demkowicz, 6Z designation means the property owner is ineligible for
Local, designation. It is still included on the survey in the event renovations are
made and the designation changes.
Higuchi Higuchi's comments generally included: commended staff on a job well done;
suggested inviting other Commissions to participate on the historic walking
tours of Tustin (i.e. Parks & Recreation's Arts Commission); advocated for
Tustin's military history (i.e. preservation of the control tower); and suggested
adding a note to the historic service survey referencing the new streets in
Tustin being named after fallen military soldiers.
Mello Mello asked if the historic structures (i.e. hangars) in the MCAS area had links
included in the survey.
Demkowicz Per Demkowicz, currently, there is no link to the historic structures, but staff
could definitely think about adding a link to the same historic preservation
webpage that contains the survey results.
Willkom Willkom added the following, in general: the history of the Hangars in on the
Tustin Legacy webpage, has historical information, but it is not linked to
Historic Preservation; staff can take a look at getting that information linked
to the survey.
Douthit Douthit asked if the City wanted to include the hangars in the survey link, if it
would be possible. He asked how often the historic surveys are completed.
Willkom Willkom confirmed that resources about the hangars could be added to the
HP survey webpage. She suggested linking the historic resources to the City's
HP webpage and how often the surveys are done depending upon funding,
due to high costs, updates take place as funds allow.
Mello Mello referred to Lennar creating movie clips referencing some hangars
resources when they were selling units at the Tustin Legacy.
Higuchi Higuchi also mentioned having City events archived as well (i.e. past Chili
Cook -Off events). He added memorializing the businesses around the MCAS
(i.e. Seafood Landing).
Motion: Received and filed.
Minutes — Planning Commission Meeting — December 10, 2024 — Page 8
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OTHER BUSINESS:
Willkom Willkom provided the following updates: On December 5, 2024, the Zoning
Administrator approved a CUP for an ABC License at Inka Mama's (Newport
Boulevard / El Camino Real); and on November 19, 2024, the City Council
approved an ordinance to revise the start time of the regular City Council and
Planning Commission meetings from 7pm to 6pm. Happy holidays!
PLANNING COMMISSION COMMENTS AND REPORTS:
Mason Mason wished staff happy holidays and what a phenomenal year it was! Kudos
to Willkom for being a great leader and for her great Team! Kudos to Improv
City in Old Town.
Mello Mello thanked staff and the investors of the City of Tustin for continued growth
within the City. He wished everyone happy holidays. Mello asked about bus
stops around Tustin and who is responsible for the maintenance. He referred
to the bus stop at First Street and Centennial Way being in need of cleaning.
Willkom Public Works may be the manager of the contract with OCTA. She will direct
the concern with Public Works staff.
Kozak Kozak thanked staff for support of the Commission in 2024 and he is looking
forward to 2025. He attended the City of Tustin's Christmas Tree Lighting on
December 6, 2024. Happy holidays and happy New Year!
Douthit Douthit stated 2024 was a great year. He appreciated the City's willingness to
work with applicants (i.e. cat cafe) and encouraged staff to continue asking
questions of applicants in 2025.
Higuchi Higuchi is thankful for his fellow Commissioners and Staff. Happy holidays?
8:24 p.m. ADJOURNMENT:
The next regular meeting of the Planning Commission is scheduled for
Tuesday, December 24, 2024.
Signed by:
fmfm ou
C3F97677838E410...
Signed by:
For: JUSTINA L. WILLKOM
Planning Commission Secretary D148F9601FF34A4
ERIC HIGUCHI
Chairperson
Minutes — Planning Commission Meeting — December 10, 2024 — Page 9
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ATTACHMENT 4
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Tustin
300 Centennial Way
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
I 1111I IIIIIII 1111111111111 1�111 111111111111111 1111 IIIII 1�111 1�11 I I 1111111 NO FEE
*$ R 0 0 1 1 8 6 3 0 2 2 $ *
2020OW3526041:23 pm 07/22120
227 NCR2 Al2 15
0.00 0.00 0.00 0.00 42.00 0.00 0.000.000.00 0.00
Tustin, CA 92780
Attn: City Clerk
(Exempt From Recording Fee Per Gov. Code §6103]
%3CS27383
This Development Agreement ("Agreement") is entered into thisZ7+dday of
M 2020; ("Effective Date") by and between the CITY OF TUSTIN
("City") and TUSTIN AUTO CENTER MERCHANTS ASSOCIATION, a non-profit California
Corporation ("Applicant"). City and Applicant are sometimes collectively referred to in this
Agreement as the "Parties."
A. The Tustin Auto Center located at 1-50 Auto Center Drive, consists of twelve (12)
auto dealerships on approximately (50) acres.
B. On December 22, 2003, the City Planning Commission approved Conditional Use
Permit 03-023 ("CUP 03-023") authorizing amendments to the Tustin Auto Center Master Sign
Program allowing for a new electronic changeable copy sign located adjacent to and visible from
X the Interstate 5 freeway, as more particularly depicted on Attachment "1" appended hereto
("Existing Sign").
C. On April 12, 2011, the City Planning Commission approved Conditional Use
Permit 2011-06 ("CUP 2011-06"), superseding CUP 03-023, and authorizing additional
amendments to the Tustin Auto Center Master Sign Program.
D. The Tustin Auto Center Master Sign Program, as amended by CUP 201 l -06, limits
displays on the Existing Sign to advertising members of the Auto Center Association and messages
relating to dealer or center -wide special events, digital images of current vehicles (without
indication of "sale or value pricing"), and dealership hours of operations.
E. Tustin City Code Section 9404(b)(7) permits the conversion of an existing freeway
oriented electronic changeable copy sign to freeway adjacent digital display billboard upon the
approval of a development agreement and subject.to certain restrictions and criteria.
F. Applicant, with City approval, desires to convert -the Existing Sign to a freeway
adjacent digital display billboard ("Digital Billboard"). This conversion would not necessitate a
physical modification to the Existing Sign. Instead, the conversion would allow Applicant to
expand the scope of advertisements and messages permitted on the sign, subject to the limits of
1491099.4
Docusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930
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]
GCS27383
DEVELOPMENT AGREEMENT NO,
Diis Development Agreement ("Agreement") is entered into this 7-74Aday of
J , 2020; ("Effective Date") by and between the CITY OF TUSTIN
("City") and fUSTIN AUTO CENTER MERCHANTS ASSOCIATION, a non-profit California
Corporation ("Applicant"). City and Applicant are sometimes collectively referred to in this
Agreement as the "Parties."
RECITALS
A. The Tustin Auto Center located at 1-50 Auto Center Drive, consists of twelve (12)
auto dealerships on approximately (50) acres.
B. On December 22, 2003, the City Planning Commission approved Conditional Use
Permit 03-023 ("CUP 03-023") authorizing amendments to the Tustin Auto Center Master Sign
Program allowing for a new electronic changeable copy sign located adjacent to and visible from
the Interstate 5 freeway, as more particularly depicted on Attachment "I" appended hereto
("Existing Sign").
C. On April 12, 2011, the City Planning Commission approved Conditional Use
Permit 2011-06 ("CUP 2011-06"), superseding CUP 03-023, and authorizing additional
amendments to the Tustin Auto Center Master Sign Program.
D. The Tustin Auto Center Master Sign Program, as amended by CUP 2011-06, limits
displays on the Existing Sign to advertising members of the Auto Center Association and messages
relating to dealer or center -wide special events, digital images of current vehicles (without
indication of "sale or value pricing"), and dealership hours of operations.
E. Tustin City Code Section 9404(b)(7) permits the conversion of an existing freeway
oriented electronic changeable copy sign to freeway adjacent digital display billboard upon the
approval of a development agreement and subject to certain restrictions and criteria.
F. Applicant, with City approval, desires to convert -the Existing Sign to a freeway
adjacent digital display billboard ("Digital Billboard"). This conversion would not necessitate a
physical modification to the Existing Sign. Instead, the conversion would allow Applicant to
expand the scope of advertisements and messages permitted on the sign, subject to the limits of
Docusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930
this Agreement and the California Outdoor Advertising Act (Bus, And Prof. Code Sections 5200
et seq.)
G. On May 11, 2020, the City Planning Commission, at a duly noticed public hearing
to consider the approval of this Agreement, adopted Resolution No. 4403 recommending approval
of this Agreement to the City Council and finding the Project, as defined below, categorically
exempt from the provisions of the California Environmental Quality Act ("CEQA") pursuant to
Section 15301 regarding minor modification of existing structures.
H. On June 2, 2020, 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.
I. On June 16, 2020, the City Council conducted the second reading of Ordinance No.
1507, thereby approving this Agreement.
J. City finds and determines that all actions required of City precedent to approval of
this Agreement by Ordinance No. 1507 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 Conversion of Existing Sign. Subject to the terms and conditions of
this Agreement, Applicant is hereby authorized to convert the Existing Sign to a freeway adjacent
digital display billboard ("Digital Billboard").
1.3 Binding Effect of Agreement. From and following the Effective Date, actions by
the City and Applicant with respect to the Project, including actions by the City on applications
for Subsequent Development Approvals affecting such Site, shall be subject to the terms and
provisions of this Agreement.
1.4 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 described in Attachment "2" (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.
1.5 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
1481099.4
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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
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 continue in
full force and effect through December 31, 2024. 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. Following the expiration of the
term and provided no extension of this Agreement is agreed to, then Applicant will limit the scope
and subject of advertisements and messages on the Digital Billboard in accordance with Section
IV.F.2 of the Tustin -Auto Center Master Sign Program, as amended by CUP 2011-06.
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 City's Display Time on Digital Billboard. Applicant shall provide a
minimum reserved share of visual displays on the Digital Billboard free of charge to City
for public service announcements and/or advertising of city -sponsored civic events and
programs ("City Messages") as specified herein. The City Messages shall receive an 8
second spot in every 80 second rotation, at week long intervals, for a minimum of 16 weeks
per each calendar year of the Agreement. For the period extending from the Effective Date
through December 31", �020, the amount of minimum reserved share of visual displays
allotted for City Messages shall be prorated. Further, Applicant shall offer to display City
Messages on an "as available" basis free of charge to City, with first right of refusal for
available share of visual displays afforded to City. City will be responsible for providing
appropriate artwork for the City Messages pursuant to reasonable art specifications as may
be specified by Applicant from time to time. City Messages may only display third -party
names or logos of City event sponsors when those logos are part of the City Message.
Advertising space for City Messages may not be sold or exchanged for consideration of
any kind to a non -governmental third party.
1.7.2 Annual Sponsorship Contribution. , Applicant shall make an annual
sponsorship contribution ("Contribution") to the City's Parks & Recreation Department to
support community events, as specified herein. The Contribution may be applied to the
following community events: (1) Tustin Chili Cook -.Off, (2) Concerts in the Park, (3)
Fourth of July, and/or (4) Tiller Days, and the Applicant will receive name recognition as
a sponsor of the events. The City reserves the right to cancel or discontinue any of the
above -referenced community events. The amount of the Contribution shall not be offset
or pro -rated in the event of any such cancellation or discontinuation.
The Contribution for the period ending December 315t, 2020 shall be $25,000, In
recognition of the Applicant's 2020 sponsorship of City community events totaling
$12,000 prior to the Effective Date ("Previous Payments"), the City agrees to offset the
payment for the first Contribution by the amount of the Previous Payments. Accordingly,
1481009.4
Docusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930
the amount owing and payable to the City by Applicant as the Contribution for the first
calendar year shall total $13,000.
The Contribution for calendar years 2021 through 2024 shall be determined
pursuant to Section 1.7.3 below.
1.7.2.1 Payment Schedule. The Contribution shall be paid annually, with
the first installment payable no later than 90 calendar days following the Effective
Date ("First Due Date"). Subsequent Contribution installments shall be payable on
February 281h of each successive calendar year ("Subsequent Due Date(s)"). The
First Due Date and the Subsequent Due Date(s) are individually and collectively
referred to hereafter as the "Due Date."
1.7.2.2 Late Payment. Failure by Applicant to pay the Contribution to the
City within 30 calendar days following the Due Date is considered a material
Breach of this Agreement subject to termination in accordance with Section 4.1.l.
1.7.3 Annual Review of Public Benefits. By no later than January 31St of each
year, the City Manager or their designee, and Applicant will review and negotiate the
amount of Contribution payable to the City per Section 1.7.2 and consider revisions to the
City's share of visual time on the Digital Billboard per Section 1.7.1. The City Manager
or their designee is authorized to approve, by written addendum to this Agreement,
adjustments to the Contribution amounts and/or the quantity of City display time on the
Digital Billboard, provided that the City Manager may not approve a Contribution of less
than $25,000 or a reduction in the City's allotment of display time on the Digital Billboard
(".Reduction in Public Benefit"), Any Reduction in Public Benefit may only be approved
by action of the City Council. The City Manager may, at their discretion, forward any
other proposed modification of Public Benefits to the City Council.
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. 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 as 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
1-1810QW.-I.
Docusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930
Agreement.
21 Changes to Display. Nothing herein shall cause Applicant to -be in Default if it
upgrades or replaces the digital display 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 et seq.)
3. REVIEW FOR COMPLIANCE
3.1 Annual Compliance Review. By no later than January 31" 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 the 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 3Is'
of each year: (1) copy of a current and valid CalTrans permit; (2) description of all complaints
from CalTrans or the City regarding the Digital Billboard; (3) description of all complaints from
the public regarding the display unrelated to any content of the message displayed; and (4) a list
of all City Messages displayed during the preceding year of the Term per Section 1.7.1 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 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) day
notice to cure to Applicant, and (2) Applicant's failure to cure the Default or Breach during
the 30-day, cure period. In the event of Termination by City under this Section, Applicant
acknowledges and agrees that City may retain all fees, including the Processing Fee and
the Contribution paid 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 failure of City to perform any material
duty or obligation of City hereunder or to comply in good faith with the material terms of
this Agreement (hereinafter referred to as "Default" or "Breach"); 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. In the event of a termination by Applicant under this Section,
Applicant acknowledges and agrees that City may retain all fees, including the Processing
1:IS] ON..I.
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Fee and the Contribution, Applicant paid up to the date of termination, and Applicant shall
pay the prorated amount of the Contribution within. 60 calendar days after the date of
termination that equates to the percentage of time elapsed in the year of the Term at the
time of termination.
4.1.3 Termination of Agreement following Revocation of CUP.
Notwithstanding the foregoing. This Agreement shall immediately terminate upon
revocation of Conditional Use Permit No. 2020-0006 (approved immediately prior to or
concurrently with this Agreement) authorizing the conversion of the Existing Sign to the
Digital Billboard. In the event of Termination by City under this Section, Applicant
acknowledges and agrees that City may retain all fees accrued up to the date of the
termination, including the Processing Fee and the Contribution paid up to the date of
termination, and Applicant shall pay the prorated amount of the Contribution within 60.
calendar days after the date of termination that equates to the percentage of time elapsed in
the year of the Term prior to the date of termination. -
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 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.
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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 Development to be permitted and operated and to
provide the Contribution 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.
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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 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 Development of the Project is a private Development, that
neither party is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between City and 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
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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;
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, Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
Attn: David Kendig, Esq.
To Applicant: .
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
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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.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day
and year first set forth above.
ATTEST:
By:
Erica N. YasUd City Clerk
David E Kendig, Al
City: CITY O'TUSTIN
Dr. Mlbn Bernstein, Mayor
Applicant: TUSTIN AUTO CENTER
MERCHANTS ASSOCIATION,
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DA-2020-0001: Attachment I — Elevation and Site Plan
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A E ELEVATION DOUBLE FACE IDENTIFICATION AND FLECTR NICIMSPLAY
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DA-2020-0001: Attachment 2
LEGAL, DESCRIPTION
Real property in the City of Tustin, County of Orange, State of California, described as follows:
PARCEL 8 OF PARCEL MAP NO. 87-201, RECORDED IN BOOK 240, PAGES 8 THROUGH 10 OF PARCEL
MAPS, OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING UNTO GRANTOR, ITS SUCCESSORS AND ASSIGNS, TOGETHER WITH THE RIGHT TO GRANT
AND TRANSFER ALL OR A PORTION OF THE SAME, AS FOLLOWS:
A, ANY AND ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS AND OTHER
HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM OR OTHER RESOURCES, AND
ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE
LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING OR EXPLORING AND
OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM THE LAND OR ANY OTHER
LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS
OTHER THAN THOSE CONVEYED HEREBY, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH
OR ACROSS THE SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR
DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH. OR BEYOND THE
EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR DEEPEN AND
OPERATE ANY SUCH WELLS, OR MINES; WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE,
EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE: OF
THE LAND,
B. ANY AND ALL WATER, RIGHTS OR INTERESTS THEREIN, NO MATTER HOW .ACQUIRED BY GRANTOR,
AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH RESPECT TO THE LAND,
TOGETHER WITH THE RIGHT AND POWER TO EXPLORE, DRILL, REDRILL, REMOVE AND STORE THE
SAME FROM THE LAND OR. TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, RIGHTS OR INTEREST
ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER. RIGHTS SHALL
BE RIPARIAN, OVERLAYING, APPROPRIATWE, LITTORAL, PERCOLATING, PRESCRIPTIVE,
ADJUDICATED, STATUTORY OR CONTRACTUAL; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER
UPON THE SURFACE OF THE LAND IN THE EXERCISE OF SUCH RIGHTS.
C. NONEXCLUSIVE EASEMENTS IN GROSS ON, OVER, UNDER OR ACROSS THE LAND FOR THE:
PURPOSES SHOWN AS EXISTING OR PROPOSED ON ANY RECORDED PARCEL OR TRACT MAP OF THE
LAND OR ANY PORTION THEREOF EXISTING ON THE DATE HEREOF, INCLUDING BUT NOT LIMITED TO
THE INSTALLATION, EMPLACEMENT AND MAINTENANCE OF ELECTRIC, GAS, TELEPHONE, CABLE
TELEVISION, WATER, SANITARY SEWER LINES, DRAINAGE FACILITIES OR ANY OTHER UTILITIES,
TOGETHER. WITH THE RIGHT TO ENTER UPON THE LAND (WITHOUT UNREASONABLY INTERFERING
WITH GRANTEE'S REASONABLE USE AND ENJOYMENT THEREOF) IN ORDER TO SERVICE, MAINTAIN',
REPAIR, RECONSTRUCT, RELOCATE OR REPLACE ANYOF SUCH LINES OR FACILITIES.
D. NON-EXCLUSIVE EASEMENTS AS SHOWN ON PARCEL MAP NO. 87-201, RECORDED IN BOOK 240,
PAGES 8 THROUGH 10, INCLUSIVE OF PARCEL MAPS, IN THE OFFICIAL RECORDS OF ORANGE COUNTY,
CALIFORNIA, ON, OVER, UNDER OR ACROSS THE LAND WITHIN FIVE (5) FEET FROM ALL PROPERTY
LINES WHICH BORDER ON A PUBLIC OR PRIVATE STREET FOR THE INSTALLATION OR EMPLACEMENT
OF ELECTRIC, GAS, TELEPHONE, CABLE TELEVISION, WATER, SANITARY SEWER LINES, DRAINAGE
FACILITIES OR ANY OTHER UTILITIES,
APN: 500-181-08
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California ORANGE
County of )
On 06/05/2020
before me, Leticia Cervantes, notary public
(insert name and title of the officer)
personally appeared John C. Patterson
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Sign
LE MIA CEIWANTES
Notary Public - California Z
Qmy
Orange County
Commission N 2268380
Comm, Expires Nov 23, 2022
(Seal)
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ATTACHMENT 5
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Tustin
300 Centennial Way
Tustin, CA 92780 Attn:
Citv Clerk
[Exempt From Recording Fee Per Gov. Code §6103]
DEVELOPMENT AGREEMENT 2024-007
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT 2020-0001
This Amendment, Development Agreement 2024-0007, to Development Agreement 2020-0001
("Amendment") is entered into to be effective this day of , 2025, by and between the CITY
OF TUSTIN ("City") and TUSTIN AUTO CENTER MERCHANTS ASSOCIATION, a non-profit
California Corporation ("Applicant"). City and Applicant are sometimes hereinafter individually referred
to as a "Party" and hereinafter collectively referred to as the "Parties."
RECITALS
A. The City and Applicant entered into that certain Development Agreement dated as of July
22, 2020, and recorded in the Official Records, Orange County, as Document No. 2020000352604 (the
"Development Agreement") pursuant to which, among other things, the City agreed to allow the Applicant
to expand the scope of advertisements and messages permitted on their freeway adjacent digital display
billboard. Initially capitalized terms not defined herein shall have the respective meanings assigned to
such terms in the Development Agreement.
B. Unless extended by mutual written agreement, the Development Agreement will expire on
December 31, 2024.
C. The Parties desire to amend the Development Agreement to extend its term and modify the
Public Benefits provided by Applicant to the City as set forth herein.
D. On _, 2024, the City Planning Commission, at a duly noticed public hearing to
consider this Amendment, adopted Resolution No. recommending approval of this Amendment to
the City Council.
E. On , 2025, the City Council of the City, at a duly noticed public hearing to consider
the approval of this Amendment, considered the proposal and heard testimony relating to this Amendment.
F. On , 2025, the City Council conducted the second reading of Ordinance No, ,
thereby approving this Amendment.
G. City finds and determines that all actions required of City precedent to approval of this
Amendment by Ordinance No. of the City Council have been duly and regularly taken.
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NOW, THEREFORE, in consideration of the mutual promises and covenants herein, the Parties
agree as follows:
1. Incorporation of Recitals. The above -referenced Recitals are hereby incorporated into
this Amendment as though fully set forth herein and made part of the Amendment and each Party
acknowledges and agrees that such Party is bond, for purposes of this Amendment by the same.
2. Term. Section 1.6 of the Development Agreement is hereby amended and restated in its
entirety to read as follows:
"Section 1.6 Term of Agreement. Unless earlier terminated as provided in Section 4.1
of this Agreement, this Agreement shall continue in full force and effect for an initial term ending
on December 31, 2024. Commencing January 1, 2025, the Agreement shall automatically renew
for additional five-year terms (each a "Successive Term") and shall continue in perpetuity, unless
(a) terminated as provided in Section 4.1 of this Agreement, or (b) until either Party provides
written notice of non -renewal to the other Party within ninety (90) calendar days prior to the
expiration of the then current Successive Term. Within thirty (30) calendar days after the
termination or expiration 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. Following
the termination or expiration of the Agreement, Applicant will limit advertisements and messages
on the Existing Sign to businesses, products, persons, or subjects related to the Tustin Auto Center
in accordance with CUP 03-023."
3. Public Benefits. Subsections 1.7.2 and 1.7.3 of the Development Agreement are hereby
amended and restated in their entirety to read as follows:
"1.7.2 Annual Sponsorship Contribution. Applicant shall make an Annual Sponsorship
Contribution ("Contribution") to the City's Parks & Recreation Department to support community
events. The initial Contribution for Calendar Years 2020 through 2024 was $25,000. The
Contribution for the next five calendar years, 2025 through 2029, will be calculated by utilizing
car sales tax data from the current five years, Fiscal Year ("FY") 2019-2020 to FY 2023-2024,
specifically the last FY, in this case FY 2023-2024, against the base FY 2018-2019. The base FY
is the FY prior to the current five years. The base year (A), in this case FY 2018-2019, will serve
as the denominator, and the last FY of the current five-year period (B), in this case FY 2023-2024,
will serve as the numerator. The calculation minus the number one equals the percentage
difference (C) from the five-year period against the base FY, and then it is divided by the number
of calendar years in the term (D). The percentage derived, or average annual growth rate (E), will
be applied against the initial contribution of $25,000 (F) to determine the increase (G). The sum
of the Contribution and increase amount equals the New Contribution (H) and will remain fixed
for the five subsequent years, 2025 through 2029. At the next five years, 2030 through 2034, the
calculation will consider the current five years of change. The FY prior to the current five years
will serve as the denominator and the last FY of the current five years will serve as the numerator.
The calculation minus one will be divided by five and that percentage is applied against the 2025
— 2029 Contribution, thus becoming the next 5-year Contribution. This manner of calculating the
annual Contribution will be applied for each Successive Term. The Parties acknowledge that the
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Contribution amount may be reduced because of reductions in car sales tax; however, in no event
shall the annual Contribution paid by Applicant be less than $25,000. An example of this
calculation is provided in the table below.
EXAMPLE:
Calendar Years 2020 through 2024
(A)
(B)
(C)
Base Fiscal Year
Ending Fiscal Year
Percent Change (B) / (A) -1
Example Calculations
2018-2019
2023-2024
2018-19 to 2023-24
Car Sales Tax Growth Rate
$5,000,000
$6,250,000
25%
(C)
Percent Change
(D)
Calendar Years
(E)
Avg. Annual Growth Rate (C)/(D)
Average Annual Growth Rate
25%
5
5%
(E)
Avg. Annual Growth Rate
(F)
Base Contribution
(G)
Contribution Increase E x F
Contribution Increase
5%
$25,000
$1,250
(F)
Initial Contribution
(G)
Contribution Increase
(H)
New Contribution F + G
Revised Annual Contribution
$25,000
$1,250
$26,250
$26,250 is the new Contribution for five years based on the example scenario. However,
if there is no growth between a five-year period, the Contribution for the next five years will be
equal to the Contribution from the previous five years.
The Contribution will support four (4) major Parks & Recreation events. The City reserves
the right to cancel community events, and the amount of the Contribution shall not be offset or
pro -rated in the event of any such cancellation.
1.7.2.1 Payment Schedule. The City shall provide to Applicant the City's
calculation of car sales tax and the resulting annual Contribution by November Pt of any
year where the Agreement is subject to renewal for an additional five-year Successive Term
(e.g. car sales tax calculation to be provided in November 2029, for annual Contribution
amount commencing on January 31, 2030). The Contribution shall be paid annually, with
the first installment payable by no later than forty-five days after the second reading of
Ordinance No. ("First Due Date"). Subsequent annual Contribution payments shall
be due no later than the January 31 of that year ("Subsequent Due Date(s)"). The First Due
Date and Subsequent Due Date(s) are individually and collectively referred to hereafter as
the "Due Date."
1.7.2.2 Late Payment. Failure by Applicant to pay the Contribution to City within
thirty (30) calendar days following the Due Date is considered a material Breach of this
Agreement subject to termination in accordance with Section 4.1.1.
1.7.3 Annual Review of Public Benefits. By no later than March 1st of each year, the
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City Manager or their designee, and Applicant will consider revisions to the City's share of visual
time on the Digital Billboard per Section 1.7.1. The City Manager or their designee is authorized
to approve, by written addendum to this Agreement, adjustments to the quantity of City display
time on the Digital Billboard, provided that the City Manager may not approve a reduction in the
City's allotment of display time on the Digital Billboard ("Reduction in Public Benefit"). Any
Reduction in Public Benefit may only be approved by action of the City Council. The City Manager
may, at their discretion, forward any other proposed modification of Public Benefits to the City
Council."
4. Review for Compliance. Section 3.1 of the Development Agreement is hereby amended
and restated in their entirety to read as follows:
113.1 Annual Review. The City Manager or their designee shall review this Agreement
annually, by no later than March 1st of each year, to ascertain the good faith compliance by
Applicant with the terms of the Agreement ("Annual Review"). The Annual 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 an Annual
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 Annual Review and provide the following
information and documentation to the City on or before February 1st of each year: (1) copy of a
current and valid CalTrans permit; (2) description of all complaints from CalTrans or the City
regarding the Digital Billboard; (3) description of all complaints from the public regarding the
display unrelated to any content of the message displayed; and (4) a list of all City Messages
displayed during the preceding year of the Term per Section 1.7.1 and a description of the time
and duration of such displays."
5. No Other Changes. This Amendment is supplemental to the Development Agreement
and is by reference made part of said Development Agreement. All provisions of the Development
Agreement not specifically amended herein shall remain in full force and effect. In the event of any
conflict or inconsistency between the provisions of this Amendment and any provisions of the
Development Agreement, the provisions of this Amendment shall in all respect govern and control. Unless
otherwise specifically defined herein, terms used in this Amendment shall have the same meaning as
ascribed to them in the Development Agreement. The execution and delivery of this Amendment shall
not operate as a waiver of or, except as expressly set forth herein, an amendment of any right, power or
remedy of either Party in effect prior to the date hereof.
6. Counterparts. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and any of the Parties hereto may
execute this Amendment by signing any such counterpart.
7. Recordation of Amendment. This Amendment 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. Any future amendments approved by the Parties, and any cancellation, shall be similarly
recorded.
4
4862-2930-7122, v. 1
Docusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year
first set forth above.
ATTEST:
LE
Erica N. Yasuda, City Clerk
APPROVED AS TO FORM:
LE
David E. Kendig, City Attorney
/msd/
5
4862-2930-7122, v. 1
City: CITY OF TUSTIN
I:
Austin Lumbard, Mayor
Applicant: TUSTIN AUTO CENTER
MERCHANTS ASSOCIATION,
By:
Its:
By:
Its:
Docusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930 ATTACHMENT 6
ORDINANCE NO. 1560
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, APPROVING DEVELOPMENT
AGREEMENT 2024-0007 AMENDING THE TERM AND
SPONSORSHIP CONTRIBUTION PREVIOUSLY
ESTABLISHED BY DEVELOPMENT AGREEMENT 2020-0001
BETWEEN THE CITY OF TUSTIN AND TUSTIN AUTO
CENTER MERCHANTS ASSOCIATION FOR A FREEWAY
ADJACENT DIGITAL DISPLAY BILLBOARD AT THE TUSTIN
AUTO CENTER
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 on June 16, 2020, the City Council adopted Ordinance No. 1507
approving Development Agreement (DA) 2020-001, which established
terms and conditions addressing public benefits and annual performance
review in conjunction with the operation of a freeway adjacent digital
display billboard at the Tustin Auto Center.
B. That the DA 2020-0001 term expires on December 31, 2024.
C. That DA 2020-0001 provided public benefits in the form of a $25,000
annual contribution towards four (4) Parks & Recreation events and it was
understood the contribution would be negotiated annually.
D. That DA 2020-0001 did not establish a methodology for the annual
negotiation of the sponsorship contribution.
E. That a public hearing was duly called, noticed, and held on December
10, 2024, by the Planning Commission. The Planning Commission
adopted Resolution No. 4511 recommending that the City Council adopt
Ordinance No.1560.
F. That a public hearing was duly called, noticed, and held on said
application on February 4, 2025, by the City Council.
G. That this project has been determined to be Categorically Exempt
pursuant to Section 15301 (Class 1) of the California Environmental
Quality Act in that the subject project involves no physical modifications
to an existing structure and results in negligible expansion of an existing
use.
Ordinance No. 1560
DA 2024-0007
Page 1
Docusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930
H. 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 Auto Center
Planned Community regulations in that the proposed freeway adjacent
digital display billboard use is a conditionally permitted use that
supports the Tustin Auto Center and City programs.
2. The project is compatible with the uses authorized in the district in
which the real property is located in that the site is approved for a
freeway digital display billboard and the proposed project is a minor
expansion of the allowed use.
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 City programs.
4. The project will not be detrimental to the health, safety, and general
welfare in that the freeway adjacent digital display billboard structure
is existing. 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 existing and surrounding properties are already
improved with landscaping, signage and multiple automobile
dealerships.
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.
SECTION 2. The City Council hereby approves DA 2024-0007 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. 1560
DA-2024-0007
Page 2
Docusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin
on this February 4t", 2025.
AUSTIN LUMBARD
Mayor
ERICA N. YASUDA
City Clerk
APPROVED AS TO FORM:
DocuSigned by:
D�,W&&X&NDIG
City Attorney
Ordinance No. 1560
DA 2024-0007
Page 3
Docusign Envelope ID: ECC776D0-50E5-49AD-B095-50BB8D28F930
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
ORDINANCE NO. 1560
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. 1560
was duly and regularly introduced at a regular meeting of the Tustin City Council, held
on February 4, 2025, and was given its second reading, passed, and adopted at a
regular meeting of the City Council held on , 2025, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
COUNCILMEMBER RECUSED:
ERICA N. YASUDA
City Clerk
Ordinance No. 1560
DA-2024-0007
Page 4