HomeMy WebLinkAboutORD 1539 (2023)
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Ordinance No. 1539
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ORDINANCE NO. 1539
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
APPROVING DEVELOPMENT AGREEMENT 2023-0001 BETWEEN THE CITY
OF TUSTIN AND OUTFRONT MEDIA, LLC. IN ASSOCIATION WITH
CONDITIONAL USE PERMIT 2023-0008 FOR A FREEWAY ADJACENT
DIGITAL DISPLAY BILLBOARD AT THE CITY-OWNED PROPERTY LOCATED
AT 1021 EDINGER AVENUE
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council finds and determines as follows:
A. That a proper application has been submitted by David Ryan of Outfront
Media, LLC for the replacement of an existing static billboard with a new
ninety-foot-tall (90’) freeway adjacent digital display board with two (2) sign
faces measuring twenty feet (20’) by sixty feet (60’) each. The project also
includes the removal of three (3) off-site static billboards located at 1631 El
Camino Real, 1501 Nisson Road, and 14092 Red Hill Avenue.
B. That pursuant to Tustin City Code (TCC) Section 9404(b)(7) and
Ordinance No. 1505, freeway adjacent digital display billboards require
approval of a Conditional Use Permit (CUP), Development Agreement
(DA) and public benefits.
C. That DA 2023-0001 serves to identify public benefits in association with
CUP 2023-0008 for a freeway adjacent digital display billboard at 1021
Edinger Avenue.
D. That a public hearing was duly called, noticed, and held on said
application on October 24, 2023, by the Planning Commission. The
Planning Commission adopted Resolution No. 4480 recommending that
the City Council adopt Ordinance No. 1539 and approve the proposed
CUP.
E. That a public hearing was duly called, noticed, and held on said
application on November 21, 2023, by the City Council.
F. That the City Council determined the subject project to be exempt from
the California Environment Quality Act (CEQA) pursuant to State CEQA
Guidelines Section 15162. Section 15162 states that, when a negative
declaration has been adopted for a project, no subsequent
environmental impact report (EIR) shall be prepared for that project
under certain conditions. In February 2020, the City adopted Ordinance
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Ordinance No. 1539
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No. 1505 and related Initial Study/Mitigated Negative Declaration
(adopted MND) to allow the conversion of static freeway adjacent
billboards to digital billboards subject to complying with development
standards and obtaining a CUP and DA. CEQA compliance for the
digitization and relocation of the proposed billboard was documented
throughout the adopted MND. The project will be required to comply with
applicable mitigation measures identified in the adopted MND.
Accordingly, the project qualifies for the Section 15162 exemption
because:
1. There are no substantial changes proposed which will require major
revisions of the previous negative declaration as there are no new
significant environmental effects nor a substantial increase in the
severity of previously identified significant effects;
2. There are no substantial changes with respect to the circumstances
under which the project is undertaken which require major revisions of
the previous negative declaration due to the involvement of new
significant environmental effects or a substantial increase in the
severity of previously identified significant effects; and,
3. There is no new information of substantial importance which was not
known and could not have been known with the exercise of reasonable
diligence at the time the previous negative declaration was adopted.
G. That the DA can be supported by the following findings:
1. The project is consistent with the objectives, policies, general land
uses and programs specified in the General Plan and the Pacific
Center East Specific Plan in that the proposed freeway adjacent digital
display billboard use is a conditionally permitted use that supports City
programs and generates revenue.
2. The project is compatible with the uses authorized in the district in
which the real property is located in that the existing static billboard is
the only sign that qualifies for replacement with a digital display
billboard pursuant to TCC 9404(b)(7).
3. The project is in conformity with the public necessity, public
convenience, general welfare, and good land use practices in that the
agreement incorporates public benefits in the form of advertisements
for city events and financial contributions to the City. Moreover, three
(3) existing static billboards located elsewhere in the City will be
removed as a public benefit.
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Ordinance No. 1539
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4. The project will not be detrimental to the health, safety, and general
welfare in that the proposed digital display billboard is replacing an
existing static billboard and will comply with the mitigation measures
established with Ordinance No. 1505, which codified TCC 9404(b)(7).
5. That, as conditioned, the billboard structure and use will not be
detrimental to health, safety, and general welfare.
6. The project will not adversely affect the orderly development of
property in that the proposed sign is located closer to the southwestern
corner of the site to maximize the amount of square footage available
for future development.
7. The project will have a positive fiscal impact on the City in that the
provisions of the proposed DA and conditions of approval will ensure
that the project will have a positive fiscal impact on the City.
H. That the City Council makes the following findings pursuant to TCC
9404(b)(7):
1. That the proposed sign complies with the requirements of TCC
9404(b)(7) and Chapter 4 of Article 9 of the TCC;
2. That the proposed sign will not create a traffic or safety hazard;
3. That the proposed sign will not create a nuisance to adjacent property;
and,
4. That the proposed sign will not result in any undue or significant
increase in visual clutter in the area surrounding the parcel upon which
the freeway adjacent digital display billboard will be located.
SECTION 2. The City Council hereby approves DA-2023-0001 attached hereto as
Exhibit A and subject to final approval of the City Attorney.
SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or
portion of this ordinance is for any reason held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council of the City of Tustin hereby declares that it
would have adopted this ordinance and each section, subsection,
sentence, clause, phrase, or portion thereof irrespective of the fact that
any one or more sections, subsections, sentences, clauses, phrases, or
portions be declared invalid or unconstitutional.
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Ordinance No. 1539
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PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin
on this 21st of November, 2023.
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AUSTIN LUMBARD,
Mayor
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ERICA N. YASUDA,
City Clerk
APPROVED AS TO FORM:
_______________________________
DAVID E. KENDIG,
City Attorney
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
I, Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of
Tustin, California, does hereby certify that the whole number of the members of the
City Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1539
was duly and regularly introduced at a regular meeting of the Tustin City Council, held
on the 21st day of November, 2023 and was given its second reading, passed, and
adopted at a regular meeting of the City Council held on the ___ day of _ _,
2023, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
COUNCILMEMBER RECUSED:
ERICA N. YASUDA,
City Clerk
Exhibit A: Development Agreement 2023-0001
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5th December
Lumbard, Clark, Gallagher, Gomez, Schnell (5)
(0)
(0)
(0)(0)
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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 NO.
This Development Agreement (“Agreement”) is entered into this ___ day of
______________, 2023, (“Effective Date”) by and between the CITY OF TUSTIN
(“City”) and OUTFRONT MEDIA LLC, a Delaware limited liability company (“Applicant ”). City
and Applicant are sometimes collectively referred to in this Agreement as the “Parties.”
RECITALS
A. Applicant currently operates a double-sided static billboard display (“Existing
Sign”) in the City near the northeast intersection of Edinger Avenue and State Route 55 on City-
owned property that Applicant leases from the City, which is described and depicted on the
attached Exhibit “A”.
B. Tustin City Code Section 9404(b)(7) permits the replacement of an existing
freeway oriented static display with a digital display billboard upon the approval of a conditional
use permit and development agreement and subject to certain restrictions and criteria.
C. Applicant, with City approval, desires to replace the Existing Sign with a freeway
adjacent digital display billboard, adjacent to and visible from the state route 55 Freeway (“Digital
Billboard”). This replacement would allow the Applicant to expand the scope of advertisements
and messages permitted on the sign, subject to the limits of this Agreement and the California
Outdoor Advertising Act (Bus. and Prof. Code Sections 5200 et seq.)
D. In approving a development agreement for any freeway adjacent digital display
billboard, the City Council must find that the agreement will confer a substantial public benefit
to the City and to the general public. Such public benefits may include, without limitation, the
removal of additional legal non-conforming billboards, advertising of City events and public
service announcements, and/or financial contributions to the City.
E. On October 24, 2023, the City Planning Commission recommended approval of
Conditional Use Permit (“CUP 2023-0008”) to the City Council to authorize the removal of the
Existing Sign and the construction of the Digital Billboard.
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F. On October 24, 2023 the City Planning Commission, at a duly noticed public
hearing to consider the approval of this Agreement, adopted Resolution No. 4480 recommending
approval of this Agreement to the City Council and finding the Digit al Billboard project
categorically exempt from the provisions of the California Environmental Quality Act (“CEQA”)
pursuant to Section 15162 regarding projects consistent with prior adopted environmental analysis
and documentation.
G. On November 21, 2023, the City Council of the City, at a duly noticed public
hearing to consider the approval of this Agreement, considered the proposal and heard testimony
relating to this Agreement.
H. On __________, 2023, the City Council conducted the second reading of Ordinance
No. 1539, thereby approving this Agreement.
I. City finds and determines that all actions required of City precedent to approval of
this Agreement by Ordinance No. 1539 of the City Council have been duly and regularly taken.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
1. GENERAL PROVISIONS
1.1 Incorporation of Recitals. The foregoing recitals are true and correct and are
incorporated herein by this reference.
1.2 Permitted Replacement of Existing Sign. Subject to the terms and conditions of
this Agreement, Applicant is hereby authorized to replace the Existing Sign with the Digital
Billboard, which is a freeway adjacent digital display billboard.
1.3 Interest in Site and Development Approvals – Conditions Precedent. City and
Applicant acknowledge and agree that Applicant has a legal or equitable interest in the site of the
Existing Sign, as more particularly depicted and described on Exhibit “A” (hereafter “Site”) and
thus is qualified to enter into and be a party to this Agreement under the Development Agreement
Law. Applicant shall maintain its interest in the Site for the entire term of this Agreement.
1.4 Binding Effect of Agreement. From and following the Effective Date, actions by
the City and Applicant with respect to the Digital Billboard project, including actions by the City
on any applications for local government approvals (i.e., land use permits, building permits, etc..)
affecting such Site, shall be subject to the terms and provisions of this Agreement.
1.5 No Assignment. Applicant may only assign or otherwise transfer this Agreement,
or its interest in the Site, to any other person, firm, or entity, upon presentation to the City of an
assignment and assumption agreement in a form reasonably acceptable to the City Attorney and
receipt of the City’s written approval of such assignment or transfer by the City Manager, which
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approval may be withheld for any reason at the sole discretion of the City.
1.6 Term of Agreement. Unless earlier terminated, this Agreement shall run
concurrently with that certain Digital Displa y Billboard Lease made and entered into on [date] by
and between the Parties (the “Digital Lease”), which is incorporated herein by reference.
Notwithstanding the foregoing, City and Applicant may agree to extend the term of this Agreement
pursuant to an agreement in writing upon terms acceptable to both Parties. Within 30 calendar days
after the expiration or termination of this Agreement, the Parties shall execute a written
cancellation of this Agreement which shall be recorded with the County Recorder pursuant to
Section 6.1.
1.7 Public Benefits. Applicant shall also provide the following community benefits
during the entire t erm of this Agreement, for as long as the Digital Billboard is operated:
1.7.1 Removal of Static Display Billboards. Within ninety (90) calendar days
following the Effective Date, and at no cost to the City, Applicant shall permanently
remove the three (3) existing static display billboards depicted on attached Exhibit “B,”
located approximately at 1631 El Camino Real, 1501 Nisson Road, and 14092 Red Hill
Avenue.
1.7.2 Reimbursement of Environmental Review Costs Incurred by the City to
Comply with CEQA. Within thirty (30) calendar days following the Effective Date,
Applicant shall pay to City $38,800.00 (Thirty-Eight Thousand Eight Hundred Dollars) as
reimbursement for costs incurred by City to complete analysis under CEQA in connection
with the adoption of Ordinance No. 1505 relating to Freeway Adjacent Digital Display
Billboards on February 4, 2020.
1.7.3 City’s Messaging and City Identification. At no cost to the City, Applicant
shall provide the City exclusive use of up to ten percent (10%) of the total advertising time
for the Digital Billboard during any month of the Term (“City Usage”). City may use such
time t o promote any purpose that City, in its sole discretion determines best serves the
needs of the City and residents, including but not limited to advertising City events and
programs, including City-sponsored civic events and programs. City Usage will be
allocated by Applicant , in Applicant’s reasonable discretion, on a fair and consistent basis
with other advertisers during the operating hours the Digital Billboard is available. The
City shall provide at least ten (10) business days advance notice of its intent to book City
Usage; once booked, the time allocated to City Usage shall be distributed proportionally
throughout a 24-hour period. To the extent that the City does not use the 10% availability
so pledged and made available during any rolling 15-day period, it shall lapse; it cannot be
accumulated beyond such rolling 15-day period. City will submit “camera ready” artwork
to Applicant , at no cost to Applicant, for display purposes. City agrees that for any City
Usage pursuant to this Section 1.7.3: (i) as noted above, City will provide Applicant with
prior written notice of its desire for City Usage, (ii) City will provide Applicant with the
copy or text of such messages not less than ten (10) business days prior to the date such
messages are to appear on the Digital Billboard, and (iii) City Usage shall be limited to
messages for the civic and public purposes described in this Section 1.7.3 and will not be
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used directly or indirectly for any types of messaging or advertising which Applicant would
otherwise be able to sell to third parties in the ordinary course of Applicant ’s business. City
represents and warrants that all advertising materials and content supplied by City to
Applicant for display in connection with City Usage, (i) are owned or duly licensed by City
and do not infringe or misappropriate the rights of any other person or entity, (ii) comply
with all applicable federal, state, and local laws, rules and regulations and any industry
codes or rules by which the Parties may be bound and do not contain any obscene, libelous,
slanderous or otherwise defamatory materials or refer in an offensive manner to the gender,
race or ethnicity of any individual or group; (iii) are not false; and (iv) do not infringe upon
any copyright, trademark or other intellectual property or privacy right of any third party.
Applicant shall also incorporate an identification of the City, such as its seal or
other emblem acceptable to both parties, on the two display sides of the Digital Billboard
(“City Identification”). The design and location of City Identification on the Digital
Billboard shall be approved by the City in the City’s Design Review process.
1.7.4 Emergency Notifications. Without any offset in the City Usage described
above and at no cost to the City, Applicant shall make the Digital Billboard available to
Caltrans and the California Highway Patrol for “Amber Alerts” and for emergency or
disaster notifications by local, state or federal agencies.
1.8 Regulation by Other Public Agencies. It is acknowledged by the Parties that other
public agencies not subject to control by City possess authority to regulate aspects of the Site and
the Digital Billboard, and this Agreement does not limit the authority of such other public agencies.
2. DEVELOPMENT AND IMPLEMENTATION
2.1 Effect of Agreement on Land Use Regulations. For the entire effective term of
this Agreement, except as otherwise provided under the terms of this Agreement, the rules,
regulations and official policies governing permitted uses of the Site, the density and intensity of
use of the Site, the maximum height and size of the propo sed Digital Billboard structure, and the
design, and improvement and construction standards and specifications applicable to the Site shall
be limited to those set forth in applicable land use regulations, including without limitation
ordinances, resolutio ns, codes, rules, regulations and official policies of the City, including, but
not limited to, the City’s General Plan, Municipal Code and Zoning Code, which govern
development and use of the Digital Billboard Site, the California Outdoor Advertising Act
(Business & Professions Code § 5200 et seq.) and Regulations (4 Cal. Code of Regulations § 2240
et seq.), and any approvals from the California Department of Transportation Outdoor Advertising
Division which are in fu ll force and effect as of the Effective Date of this Agreement.
2.2 Changes to Display. Nothing herein shall cause Applicant to be in Default if it
upgrades or replaces the digital display of the Digital Billboard during the term of this Agreement
to incorporate newer technology; provided Applicant shall secure all applicable ministerial permits
to do so and such upgrade is consistent with the dimensions and standards for the displays, as
provided under this Agreement, the Tustin City Code, the California Outdoor Advertising Act
(Business & Professions Code § 5200 et seq.) and Regulations (4 Cal. Code of Regulations § 2240
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et seq.)
3. REVIEW FOR COMPLIANCE
3.1 Annual Compliance Review. By no later than January 31st of each year, the City
Economic Development Director, or their designee, shall conduct a review to ascertain the good
faith compliance by Applicant with the terms of this Agreement (“Compliance Review”). The
Compliance Review will not require a public hearing unless amendments to this Agreement are
being requested by Applicant or recommended by City. However, no failure on the part of City to
conduct or complete a Compliance Review as provided herein shall have any impact on the validity
of this Agreement. Applicant shall cooperate with the City in the conduct of such Compliance
Review and provide the following information and documentation to the City by December 31st
of each year: (1) copy of a current and valid CalTrans permit; (2) description of any complaints
from CalTrans or the City regarding the Digital Billboard ; (3) description of any complaints from
the public regarding the display unrelated to any content of the messages displayed; and (4) a list
of all City Messages displayed during the preceding year of the Term per Section 1.7.3 and a
description of the time and duration of such displays.
4. DEFAULT AND REMEDIES
4.1 Termination of Agreement.
4.1.1 Termination of Agreement for Material Default of Applicant. City may
terminate this Agreement for any failure of Applicant to perform any material duty or
obligation of Applicant hereunder or to comply in good faith with the material terms of this
Agreement (hereinafter, such failure by either party being referred to as “Default ” or
“Breach”); provided, however, City may terminate this Agreement pursuant to this Section
only after (a) providing a thirty (30) calendar day notice to cure to Applicant , and (b)
Applicant ’s failure to cure the Default or Breach during the 30-day cure period ; provided
if any such Default or Breach would reasonably require more than thirty (30) days to cure,
such termination right shall not accrue unless Applicant fails to commence curing with the
thirty (30) day notice period or fails thereafter to promptly, effectively, and continuously
proceed with the cure of such failure. In the event of termination of this Agreement by
City under this Section, Applicant acknowledges and agrees that City may retain all
reimbursement costs paid by the Applicant to the City pursuant to Section 1.7.2. and
application fees paid by the Applicant to the City prior to the date of termination.
4.1.2 Termination of Agreement for Material Default of City. Applicant , in its
discretion, may terminate this Agreement for any Default or Breach by City; provided,
however, Applicant may terminate this Agreement pursuant to this Section only after (a)
providing a thirty (30) day notice to cure to City, and (2) City’s failure to cure the Default
or Breach during the 30-day cure period; provided if any such Default or Breach would
reasonably require more than thirty (30) days to cure, such termination right shall not
accrue unless City fails to commence curing with the thirty (30) day notice period or fails
thereafter to promptly, effectively, and continuously proceed with the cure of such failure.
In the event of a termination by Applicant under this Section, Applicant acknowledges and
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agrees that City may retain all reimbursement costs paid by the Applicant to the City
pursuant to Section 1.7.2. and application fees paid by the Applicant to the City prior to
the date of termination.
4.1.3 Termination of Agreement following Revocation of CUP. This Agreement
shall immediately terminate upon revocation of Conditional Use Permit No. ______
(approved immediately prior to or concurrently with this Agreement) authorizing the
replacement of the Existing Sign with the Digital Billboard. In the event o f termination
under this Section, Applicant acknowledges and agrees that City may retain all
reimbursement costs paid by the Applicant to the City pursuant to Section 1.7.2. and
application fees paid by the Applicant to the City prior to the date of termination.
4.1.4 Termination of Agreement following Expiration or Earlier Termination
of Digital Lease. Notwithstanding the foregoing. This Agreement shall immediately
terminate upon the expiration or earlier termination of the Digital Lease.
5. INDEMNIFICATION
Applicant agrees to indemnify, defend, and hold harmless City, its elected and appointed
officials, boards, commissions, agents, contractors, and employees from and against any and all
actions, suits, claims, liabilities, losses, damages, penalties, obligations and expenses (including
but not limited to attorney’s fees and costs) which may arise, directly or indirectly, from the acts,
omissions, or operations of Applicant or Applicant’s agents, contractors, subcontractors, agents or
employe es in connection with the performance of this Agreement, the use and occupation of the
Site, and the use and operation of the Digital Billboard, but excluding any loss resulting from the
sole negligence or willful misconduct of the City, or its elected and appointed officials, boards,
commissions, officers, agents, contractors and employees. Not withstanding the foregoing, City
shall have the right to select and retain counsel to defend any action or actions and Applicant shall
pay the reasonable cost thereof. The indemnity provisions set forth in this Agreement shall survive
termination of this Agreement.
6. MISCELLANEOUS PROVISIONS
6.1 Recordation of Agreement. This Agreement shall be recorded with the County
Recorder by the City Clerk within 10 calendar days of execution, as required by Government Code
Section 65868.5. Amendments approved by the Parties, and any cancellation, shall be similarly
recorded.
6.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties with respect to the subject matter set forth herein, and
there are no oral or written representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony or evidence of
any such representations, understandings or covenants shall be admissible in any proceeding of
any kind or nature to interpret or determine the terms or conditions of this Agreement.
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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 Digital Billboard to be permitted and operated
and to provide public benefits to the City; otherwise, this Agreement shall t erminate in its entirety,
unless the Parties otherwise agree in writing, which agreement shall not be unreasonably withheld.
6.4 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed as a whole according to its fair language and common meaning,
to achieve the objectives and purposes of the Parties hereto. The rule of construction, to the effect
that ambiguities are to be resolved against the drafting party or in favor of the non-drafting party,
shall not be employed in interpreting this Agreement, all Parties having been represented by
counsel in the negotiation and preparation hereof.
6.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
6.6 Singular and Plural. As used herein, the singular of any word includes the plural.
6.7 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element.
6.8 Waiver. Failure of a party to insist upon the strict performance of any of the
provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon
the Default of the other party, shall not constitute a waiver of such party’s rig ht to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
6.9 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit for the Parties and their successors and assigns. No other person shall
have any right of action based upon any provision of this Agreement.
6.10 Force Majeure. Neither party shall be deemed to be in Default where failure or
delay in performance of any of its obligations under this Agreement is caused by earthquakes,
other acts of God, fires, rains, winds, wars, terrorism, riots or similar hostilities, strikes and other
labor difficulties beyond the party’s control (including the party’s employment force), government
actions and regulations (other than those of the City), court actions (such as restraining orders or
injunctions), or other causes beyond the party’s reasonable control. If any such events shall occur
except as otherwise provided herein, the term of this Agreement and the time for performance shall
be extended for the duration of each such event, provided that the term of this Agreement shall not
be extended under any circumstances for more than five (5) years and further provided that if such
delay is longer than six (6) months, Applicant may terminate this Agreement upon written notice
to City and City shall return to Applicant any portion of the cont ribution paid for any period after
the effective date of such termination.
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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 o f any of
this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of
California, or such other appropriate court in said county. Service of process on City shall be made
in accordance with California law. Service of process on Applicant shall be made in any manner
permitted by California law and shall be effective whether served inside or outside California. In
the event of any action between City and Applicant seeking enforcement of any of the terms and
conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to
such relief to which such party is entitled under this Agreement, its reasonable litigation costs and
expenses, including without limitation its expert witness fees and reasonable attorneys’ fees.
6.13 Covenant Not to Sue. The Parties to this Agr eement, and each of them, agree that
this Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to this
Agreement, and each of them, hereby covenant and agree that each of them will not commence,
maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any
ot her party to this Agreement, in law or in equity, which is based on an allegation, or assert in any
such action, that this Agreement or any term hereof is void, invalid, or unenforceable.
6.14 Project as a Private Undertaking. It is specifically understood and agreed by and
between the Parties hereto that the Digital Billboard project is a private development, that neither
party is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between City and Applicant is that of a government entity
regulating the development of private property, on the one hand, and the holder of a legal or
equitable interest in such property on the other hand. City agrees that by its approval of, and
entering into, this Agreement, that it is not taking any action which would transform this private
development into a “public work” project, and that nothing herein shall be interpreted t o convey
upon Applicant any benefit which would transform Applicant’s private project into a public work
project, it being understood that this Agreement is entered into by City and Applicant upon the
exchange of consideration described in this Agreement, including the Recitals to this Agreement
which are incorporated into this Agreement and made a part hereof, and that City is receiving by
and through this Agreement the full measure of benefit in exchange for the burdens placed on
Applicant by this Agreement.
6.15 Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either party at any time, the other party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such required instruments
and writings and take any actions as may be reasonably necessary under the terms of this
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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 P arties hereto represent and warrant that (i) such party, if not an individual, is duly organized
and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said
party, (iii) by so executing this Agreement such party is formally bound to the provisions of this
Agreement, and (iv) the entering into this Agreement does not violate any provision of any other
agreement to which such party is bound.
6.19 Notices. All notices under this Agreement shall be effective when delivered by
United States Postal Service mail, registered or certified, postage prepaid return receipt requested
or overnight courier ; a nd addressed to the respective Parties as set forth below or as to such other
address as the P arties may from time to time designate in writing by providing notice to the other
party:
To City: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: City Manager
With Copy to:
Woodruff & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
Attn: David Kendig , Esq.
To Applicant : Outfront Media LLC
Attention: Collin Smith
1731 Workman Street
Los Angeles, CA 90031
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6.20 Nonliability of City Officials. No officer, official, member, employee, agent, or
representatives of City shall be liable for any amounts due hereunder, and no judgment or
execution thereon entered in any action hereon shall be personally enforced against any such
officer, official, member, employee, agent, or representative.
6.21 No Brokers. City and Applicant represent and warrant to the other that neither has
employed any broker and/or finder to represent its interest in this transaction. Each party agrees to
indemnify and hold the other free and harmless from and against any and all liability, loss, cost,
or expense (including court costs and reasonable attorneys’ fees) in any manner connected with a
claim asserted by any individual or entity for any commission or finder ’s fee in connection with
this Agreement or arising out of agreements by the indemnifying party to pay any commission or
finder’s fee.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day
and year first set forth above.
City: CITY OF TUSTIN
By: ___________________________
Nicole Bernard, Acting City Manager
ATTEST:
By: _________________________
Erica N. Yasuda, City Clerk
APPROVED AS TO FORM:
By: _________________________
David E. Kendig, City Attorney
Applicant :
OUTFRONT MEDIA LLC, a Delaware limited
liability company
By:
Its:
By:
Its:
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