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HomeMy WebLinkAboutOrd. 1506-2015 ORDINANCE NO. 1506-2015 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA AN ORDINANCE ADOPTING A DEVELOPMENT AGREEMENT TO ALLOW FOR THE INSTALLATION OF A 70 FOOT TALL, DOUBLE FACED, DIGITAL BILLBOARD ON PROPERTY LOCATED AT 101 TERMINAL COURT IN EXCHANGE FOR REMOVAL OF TWO DOUBLE SIDED BILLBOARDS ALONG EL CAMINO REAL, AND TO ALLOW AN EXISTING DOUBLE FACED, STATIC BILLBOARD ON PROPERTY LOCATED AT THE INTERSECTION OF DUBUQUE AVENUE AND GRAND AVENUE TO BE INCREASED BY 20 FEET WHEREAS, Clear Channel ("Applicant") owns or has a legal equitable interest in a property located at 101 Terminal Court (APN 015-113-160) ("Terminal Property") and a property located at the intersection of Dubuque Avenue and Grand Avenue (APN 872-41-261) ("Union Pacific Property"); and, WHEREAS, Applicant has submitted a development proposal to construct, operate and maintain an off-premise digital message center display ("Digital Billboard") at the Terminal Property ("Terminal Project"), and to increase the height of an existing static billboard("Existing Billboard") by twenty (20) feet at the Union Pacific Property("Union Pacific Project"); and, WHEREAS, the Terminal Project and Union Pacific Project may be collectively referred to herein as ("Project"); and, WHEREAS, Applicant seeks approval of an Area Plan Amendment, a Zoning Text Amendment, Relocation Agreement, Amendment to an existing Relocation Agreement, Sign Permit, and Design Review; and, WHEREAS, as part of its application, the Applicant has sought approval of a Development Agreement, which would clarify and obligate several project features and mitigation measures, including payment of existing fees (such as customary permit fees), and certain future fees (including any applicable gross receipts business license tax in the event the City enacts such a tax); and WHEREAS, approval of the Applicant's proposal is considered a "project" for purposes of the California Environmental Quality Act, Pub. Resources Code, §§ 21000, et seq. ("CEQA"); and, WHEREAS, by separate Resolution, the City Council reviewed and carefully considered the information in the Initial Study/Mitigated Negative Declaration ("IS/MND"), and adopts the IS/MND as an objective and accurate document that reflects the independent judgment and analysis of the City in the discussion of the Project's environmental impacts; and, WHEREAS, WHEREAS, on May 7, 2015 the Planning Commission for the City of South San Francisco held a lawfully noticed public hearing to solicit public comment and consider the Initial Study/Mitigated Negative Declaration ("IS/MND") and the proposed entitlements, take public testimony, at the conclusion of which, the Planning Commission recommended that the City Council adopt the IS/MND and approve the project, including the Development Agreement; and, WHEREAS, the City Council held a duly noticed public hearing on July 8, 2015 which was continued to August 26, 2015 to consider the Project entitlements and Development Agreement, and take public testimony. NOW, THEREFORE, the City Council of the City of South San Francisco does hereby ordain as follows: SECTION 1. Findings. That based on the entirety of the record before it, which includes without limitation, the California Environmental Quality Act, Public Resources Code §21000, et seq. ("CEQA") and the CEQA Guidelines, 14 California Code of Regulations §15000, et seq.; the South San Francisco General Plan and General Plan EIR; the South San Francisco Municipal Code; the Project applications; the Terminal Project Plans, as prepared by Vincent Kevin Kelly & Assoc., Inc., dated March 4, 2015; the Union Pacific Project Plans, as prepared by Vincent Kevin Kelly & Assoc., Inc., dated June 23, 2015; the Clear Channel Billboard Project and Related Zoning Amendment Initial Study/Mitigated Negative Declaration, including all appendices thereto; all site plans, and all reports, minutes, and public testimony submitted as part of the Planning Commission's duly noticed May 7, 2015 meeting, and Planning Commission deliberations; all site plans, and all reports, minutes, and public testimony submitted as part of the City Council's duly noticed July 8, 2015 meeting which was continued to August 26, 2015, and City Council deliberations; and any other evidence (within the meaning of Public Resources Code §21080(e) and §21082.2), the City Council of the City of South San Francisco hereby finds as follows: A. The foregoing Recitals are true and correct and made a part of this Ordinance. B. The proposed Development Agreement (attached as Exhibit A), is incorporated by reference and made a part of this Ordinance, as if set forth fully herein. C. The documents and other material constituting the record for these proceedings are located at the Planning Division for the City of South San Francisco, 315 Maple Avenue, South San Francisco, CA 94080, and in the custody of Chief Planner, Sailesh Mehra. D. The Owner and City have negotiated a Development Agreement pursuant to Government Code section 65864 et seq. The Development Agreement, attached hereto as Exhibit F, sets for the duration, property, project criteria, and other required information identified in Government Code section 65865.2. Based on the findings in support of the Project, the City Council finds that the Development Agreement, vesting a project for a new digital billboard and a renovation to an existing static billboard, is consistent with the objectives, policies, general land uses and programs specified in the South San Francisco General Plan, the East of 101 Area Plan as proposed for amendment, and any applicable zoning regulations. E. The City Council has independently reviewed the proposed Development Agreement, the General Plan, the South San Francisco Municipal Code, and applicable state and federal law, including Government Code section 65864, et seq., and has determined that the proposed Development Agreement complies with all applicable zoning, subdivision, and building regulations and with the General Plan. The development contemplated in the Project and Development Agreement is consistent with the Zoning and Specific Plan standards, as proposed for amendment. This finding is based upon all evidence in the Record as a whole, including, but not limited to: the City Council's independent review of these documents, oral and written evidence submitted at the public hearings on the Project, including advice and recommendations from City staff. F. The proposed Development Agreement for the Project states its specific duration. This finding is based upon all evidence in the Record as a whole, including, but not limited to: the City Council's independent review of the proposed Development Agreement and its determination that Section 2 of the Development Agreement states that the Development Agreement shall expire thirty(30) years from the effective date of this Ordinance. G. The proposed Development Agreement incorporates the permitted uses, density and intensity of use for the property subject thereto, as reflected in the proposed Project (P12- 0021), Area Plan Amendments (GPA15-0002), Zoning Text Amendment (ZA12-0001), Design Review (DR12-0008), Sign Permit (SIGNS12-0013) Development Agreement (DA15-0001), Terminal Project Relocation Agreement and Union Pacific Project Relocation Agreement Amendment. This finding is based upon all evidence in the Record as a whole, including, but not limited to, the City Council's independent review of the proposed Development Agreement and its determination that the Development Agreement sets forth the Project approvals, development standards, and the documents constituting the Project. H. The proposed Development Agreement states the maximum permitted height and size of proposed sign structures on the property subject thereto. This finding is based upon all evidence in the Record as a whole, including, but not limited to, the City Council's independent review of the proposed Development Agreement and its determination that the Development Agreement sets forth the documents which state the maximum permitted height and size of sign structures. I. The proposed Development Agreement states specific provisions for reservation or dedication of land for public purposes. This finding is based on all evidence in the Record as a whole, including, but not limited to the City Council's independent review of the Development Agreement. SECTION 2. Approval of Development Agreement. A. The City Council of the City of South San Francisco hereby approves the Development Agreement with Clear Channel attached hereto as Exhibit A and incorporated herein by reference. B. The City Council further authorizes the City Manager to execute the Development Agreement, on behalf of the City, in substantially the form attached as Exhibit A, and to make revisions to such Agreement, subject to the approval of the City Attorney, which do not materially or substantially increase the City's obligations thereunder. SECTION 3. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid or unconstitutional, the remainder of this Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council of the City of South San Francisco hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. SECTION 4. Publication and Effective Date. Pursuant to the provisions of Government Code Section 36933, a summary of this Ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council meeting at which this Ordinance is scheduled to be adopted, the City Clerk shall (1) publish the Summary, and (2) post in the City Clerk's Office a certified copy of this Ordinance. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the summary, and (2) post in the City Clerk's Office a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against this Ordinance or otherwise voting. This Ordinance shall become effective thirty (30) days from and after its adoption. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the 26th day of August, 2015. Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the City Council held the 9th day of September, 2015 by the following vote: AYES: Councilmembers Karyl Matsumoto, Pradeep Gupta, and Liza Normandy Vice Mayor Mark N. Addiego and Mayor Richard A. Garbarino NOES: None ABSTAIN: None ABSENT: None TTES \_F// / ITIrrinelli, City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this 9th day of September, 2015. „.„/ Richard A. 'arbarino, Mayor Exhibit A Development Agreement 2514732.1 Recording Requested By: CITY OF SOUTH SAN FRANCISCO When Recorded Mail To: CITY OF SOUTH SAN FRANCISCO 400 Grand Avenue South San Francisco, CA 94083 Attn: City Clerk Mail Tax Statements To: Clear Channel Outdoor, Inc. 2325 East Camelback Road, Suite 400 Phoenix, AZ 85016 Attn: General Counsel (Space above this line for Recorder's use) This instrument is exempt from recording fees pursuant to Government Code Sec. 27383. Documentary Transfer Tax is S 0.00 (exempt per Rev. & Taxation Code Sec. 11922, Transfer to Municipality). DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND CLEAR CHANNEL OUTDOOR, INC. FOR CLEAR CHANNEL DIGITAL BILLBOARD DEVELOPMENT AGREEMENT This DEVELOPMENT AGREEMENT is dated as of 2015 ("Agreement") and is entered into between: (i) CLEAR CHANNEL OUTDOOR, INC., a Delaware corporation ("Clear Channel") and (ii) the CITY OF SOUTH SAN FRANCISCO, a municipal corporation organized and existing under the laws of the State of California (the "City"). Clear Channel and the City are sometimes collectively referred to herein as "Parties." RECITALS A. WHEREAS, California Government Code ("Government Code") Sections 65864 through 65869.5 authorize the City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property or on behalf of those persons having same; and, B. WHEREAS, pursuant to Government Code Section 65865, the City has adopted rules and regulations, embodied in Chapter 19.60 of the South San Francisco Municipal Code ("Municipal Code"), establishing procedures and requirements for adoption and execution of development agreements; and, C. WHEREAS, this Agreement concerns two properties: (1) a property located at 101 Terminal Court (APN 015-113-160) ("Terminal Property") as identified and more fully described in attached Exhibit A; and (2) a property located at the intersection of Dubuque Avenue and Grand Avenue (APN 872-41-261) ("Union Pacific Property") as identified and more fully described in attached Exhibit B, such properties may be collectively referred to herein as ("Properties"); and, D. WHEREAS, Clear Channel has a legal or equitable interest in the Terminal Property and has a legal or equitable interest in the Union Pacific Property; and, E. WHEREAS, Clear Channel has submitted a development proposal to the City, including requests for various amendments to the City's Zoning Code (the "Zoning Code Amendment") that would permit Clear Channel to construct, operate and maintain an off-premise digital message center display ("Digital Billboard"), the specifications of which are set forth in Exhibit C, at the Terminal Property ("Terminal Project"); and, F. WHEREAS, the development proposal to the City also includes a request for amendments to the City's General Plan (the "General Plan Amendment"), that would permit Clear Channel to increase the height of the existing static billboard ("Existing Billboard") by twenty (20) feet, the specifications of which are set forth in Exhibit D, at the Union Pacific Property ("Union Pacific Project"); and, Page 1 of Development Agreement Clear Channel Outdoor ,2015 G. WHEREAS, the project located at the Terminal Property and the project located at the Union Pacific Property may be collectively referred to herein as the "Projects" or the "Billboard Project"; and, H. WHEREAS, Clear Channel will enter into a separate relocation agreement with the City ("Relocation Agreement") for the removal/relocation of existing billboards, which is identified in Exhibit E; and, L WHEREAS, The City and Clear Channel agree and acknowledge that the outdoor advertising sign relocation contemplated by the Terminal Project complies with, and serves the purposes enumerated in, Business & Professions Code sections 5200 et seq. (the "California Outdoor Advertising Act"), including, but not limited to, Sections 5412 and 5443.5 thereof, and, J. WHEREAS, the Terminal Project is contingent upon approvals from the California Department of Transportation ("CalTrans"); and, K. WHEREAS, Clear Channel will enter into an amendment to its existing relocation agreement with the City regarding the Union Pacific Property in accordance with Section 5443 of the Outdoor Advertising Act; (the "Amendment"); and, L. WHEREAS, the Union Pacific Project is contingent upon approvals from the California Department of Transportation ("CalTrans"); and, M. WHEREAS, Clear Channel and the City seek to enter into this Agreement to set forth the rights and obligations of the Parties relating to the development of the Properties; and, N. WHEREAS, all proceedings necessary for the valid adoption and execution of this Agreement have taken place in accordance with Government Code Sections 65864 through 65869.5, the California Environmental Quality Act ("CEQA"), and Chapter 19.60 of the Municipal Code; and, O. WHEREAS, the City Council and the Planning Commission have found that this Agreement is consistent with the objectives, policies, general land uses and programs specified in the South San Francisco General Plan as adopted on October 13, 1999 and as amended from time-to-time; and, P. WHEREAS, on , 2015, the City Council adopted Ordinance No. approving and adopting this Agreement and the Ordinance thereafter took effect on , 2015. Page 2 of Development Agreement Clear Channel Outdoor ,2015 AGREEMENT NOW, THEREFORE, the Parties, pursuant to the authority contained in Government Code Sections 65864 through 65869.5 and Chapter 19.60 of the Municipal Code and in consideration of the mutual covenants and agreements contained herein, agree as follows: 1. Effective Date Pursuant to Section 19.60.140 of the Municipal Code, notwithstanding the fact that the City Council adopts an ordinance approving this Agreement, this Agreement shall be effective and shall only create obligations for the Parties from and after the date that the ordinance approving this Agreement takes effect (the "Effective Date"). 2. Duration This Agreement shall be in effect for an initial term, commencing on the Effective Date and ending on the date which is thirty (30) years after the Commencement Date (as hereinafter defined). The "Commencement Date" is the first day of the month following the date on which all of the following have occurred: (a) this Agreement is fully executed and effective; (b) the Relocation Agreement is fully executed and effective; (c) the Amendment is effective; (d) the Zoning Ordinance Amendment is effective; (e) the General Plan Amendment is effective; (f) Clear Channel has obtained all local and state governmental permits and approvals and any other required permits and approvals for both Projects, including but not limited to the Terminal Project Approvals as defined in Section 3(a) below, and the Union Pacific Project Approvals, as defined in Section 4(a) below (collectively, "Permits"); and (g) the Digital Billboard is fully operational with a permanent power supply. This Agreement may be terminated by Clear Channel with respect to either the Terminal Project or the Union Pacific Project, individually if the following occurs: (1) Clear Channel loses its legal or equitable interest in the respective Property, (2) Clear Channel is unable to obtain or maintain any required Permit for the respective Project, (3) a legal challenge, or (4) a significant obstruction of a display occurs due to a circumstance beyond Clear Channel's control. In the event of such termination with respect to either Project, this Agreement shall continue in full force and effect with respect to the other Project. In the event of the occurrence of any of the forgoing events prior to the Commencement Date, Clear Channel may terminate this Agreement with respect to the affected Project, and the Commencement Date shall be the date all of the requirements with respect to the unaffected Project have been satisfied. 3. Project Description for Terminal Project; Development Standards for Terminal Project The Terminal Project shall consist of the construction, operation and maintenance of the Digital Billboard the specifications of which are set forth in Exhibit C, and shall be located at Terminal Property. Page 3 of Development Agreement Clear Channel Outdoor ,2015 (a) The permitted use, the maximum height, location, and total area of the Digital Billboard, and all environmental impact mitigation measures imposed as approval conditions for the Project shall be exclusively those provided in Sign Permit No. SIGNSI2-0013, Design Review No. DR12-0008, Zoning Amendment No. ZA12- 0001, General Plan Amendment No. GPA15-0002 and Negative Declaration No. ND12-0002 all as set forth in Exhibit G to this Agreement, and the applicable ordinances in effect as of the Effective Date (including, but not limited to, the applicable provisions of the Municipal Code in effect as of the Effective Date), except as modified in this Agreement (hereafter "Terminal Project Approvals"). (b) Subject to Clear Channel's fulfillment of its obligations under this Agreement and the Relocation Agreement being effective, upon the Effective Date of this Agreement, the City hereby grants to Clear Channel a vested right to develop and construct on the Terminal Property all the improvements for the Terminal Project authorized by, and in accordance with the Terminal Project Approvals and the terms of this Agreement. (c) Except as authorized by this Agreement, upon such grant of right, no future amendments to the City's General Plan, the City Zoning Code, the Municipal Code, or other City ordinances, policies or regulations in effect as of the Effective Date shall apply to the Terminal Project, except such existing ordinances, policies or regulations and such future modifications (if any) that are not in conflict with and do not prevent or materially inhibit the development or operation of the Terminal Project;provided, however, that nothing in this Agreement shall prevent or preclude the City from adopting any land use regulations or amendments expressly permitted herein or otherwise required by State or Federal Law. (d) In developing the Terminal Project, Clear Channel shall implement the mitigation measures set forth in the Mitigation Monitoring and Reporting Program (the "MMRP") attached hereto as part of Exhibit F and incorporated herein by this reference, which MMRP was approved concurrently with the approval of this Agreement for the Project. 4. Project Description for Union Pacific Project; Development Standards for Union Pacific Project The Union Pacific Project shall consist of increasing the Existing Billboard height by twenty feet (20'), the specifications of which are set forth in Exhibit D, at the Union Pacific Property. The height increase is necessary to create clear visibility of the north face of the Existing Billboard. (a) The permitted use, the maximum height, and all environmental impact mitigation measures imposed as approval conditions for the Union Pacific Project shall be exclusively those provided in Sign Permit No. SIGNS 12-0013, Design Review Page 4 of Development Agreement Clear Channel Outdoor ,2015 No. DR12-0008, Zoning Amendment No. ZA12-0001, General Plan Amendment No. GPA15-0002 and Categorical Exemption No. ND12-0002 all as set forth in Exhibit G to this Agreement, and the applicable ordinances in effect as of the Effective Date (including, but not limited to, the applicable provisions of the Municipal Code in effect as of the Effective Date), except as modified in this Agreement (hereafter "Union Pacific Project Approvals"). (b) Subject to Clear Channel's fulfillment of its obligations under this Agreement the Relocation Agreement being effective, upon the Effective Date of this Agreement, the City hereby grants to Clear Channel a vested right to increase the height of the Existing Billboard at the Union Pacific Property and complete all the improvements for the Union Pacific Project authorized by, and in accordance with the Union Pacific Project Approvals and the terms of this Agreement. (c) Except as authorized by this Agreement, upon such grant of right, no future amendments to the City General Plan, the City Zoning Code, the Municipal Code, or other City ordinances, policies or regulations in effect as of the Effective Date shall apply to the Union Pacific Project, except such existing ordinances, policies or regulations and future modifications (if any) that are not in conflict with and do not prevent or materially inhibit the development or operation of the Union Pacific Project; provided, however, that nothing in this Agreement shall prevent or preclude the City from adopting any land use regulations or amendments expressly permitted herein or otherwise required by State or Federal Law. 5 Building Permits for Projects City staff review of applications for building permits shall be limited to determining whether the following conditions are met: (a) Clear Channel has complied with the conditions of the City Council's approval of the Terminal Project and the Union Pacific Project, all applicable portions of this Agreement, the Relocation Agreement, the Amendment, the respective Caltrans approvals, all applicable Uniform Codes, the Municipal Code, CEQA requirements (including any required mitigation measures as set forth in the IS/MND or MMRP, as modified and/or clarified pursuant to this Agreement where applicable) applicable to the issuance of such permits, and any other applicable Federal and State Laws; and, (b) All applicable processing, administrative and legal fees have been paid subject to the provisions of this Agreement; and, (c) Clear Channel has demonstrated through proper documentation that it has proper and sufficient legal and/or equitable interests in the Properties to effectuate the Projects in accordance with the terms of this Agreement. Page 5 of Development Agreement Clear Channel Outdoor ,2015 6 Vesting of Approvals Except as provided in this Agreement, upon the City's approval of the Projects, including (without limitation) its approval of both the Terminal Project Approvals and the Union Pacific Project Approvals and this Agreement, such approvals and the land use entitlements conferred by such approvals shall vest in Clear Channel and its successors and assigns for the term of this Agreement, provided that any such successors and assigns comply with the terms and conditions of this Agreement. 7. Cooperation between Parties in Implementation of This Agreement It is the Parties' express intent to cooperate with one another and diligently work to implement all land use and building approvals for development of the Projects in accordance with the terms of this Agreement. Accordingly, Clear Channel and the City shall proceed in a reasonable and timely manner, in compliance with the deadlines mandated by applicable agreements, statutes or ordinances, to complete all steps necessary for implementation of this Agreement and development of the Projects in accordance with the terms of this Agreement. The City shall proceed, and shall cause its planners, engineers and other consultants to proceed, in an expeditious manner to complete all City actions required for the approval and development of the Projects, including, but not limited to, the following: (a) Scheduling all required public hearings by the City Council and City Planning Commission; and (b) Processing and checking all maps, plans, permits, building plans and specifications and other plans relating to development and/or improvement of the Properties filed by Clear Channel or its nominee, successor or assign as necessary for development of the Projects; and (c) Inspecting and providing acceptance of or comments on all work by Clear Channel that requires acceptance or approval by the City. Clear Channel shall provide or submit, and shall cause its planners, engineers and other consultants to provide or submit, to the City in a timely manner all documents, applications, plans and other information necessary for the City to carry out its obligations hereunder. Clear Channel shall make a deposit as determined by the City and shall pay all of the City's staff, legal and consultants costs incurred in implementing this section. 8. Fees and Taxes (a) Clear Channel shall pay customary permit fees and any applicable gross receipts business license tax, in the event the City enacts such a tax. No additional fees, mitigations, conditions, exactions, dedications, fees or otherwise, whether adopted Page 6 of Development Agreement Clear Channel Outdoor ,2015 through the exercise of police power, the taxing power or any other authority, shall be imposed by the City with respect to the construction, operation or maintenance of the Digital Billboard or the height increase at the Existing Billboard except as provided for herein. Notwithstanding anything to the contrary, no fee or permit shall be required for any change of copy in connection with the Digital Billboard. (b) For and in consideration of the mutual rights and responsibilities provided in this Agreement, as long as Clear Channel operates such Digital Billboard faces, Clear Channel agrees to pay the City the annual amount of forty thousand dollars ($40,000) per Digital Billboard face per year ("Terminal Annual Payment"), payable on the first day of the month following the Commencement Date and on the anniversary of such date each succeeding year. At the conclusion of the first five (5) years of the Terminal Annual Payment, the Terminal Annual Payment will increase by 15% and will continue to increase by 15% every five (5) years until the expiration of this Agreement. If the City ever adopts a gross receipts tax, Clear Channel's annual payment of such gross receipts tax shall be deducted from this Terminal Annual Payment obligation. In the event Clear Channel's annual payment of the City's gross receipts tax is less than Terminal Annual Payment, Clear Channel shall pay the remainder to the City, resulting in an annual payment to the City of not less than the Terminal Annual Payment for the Digital Billboard as illustrated below: If the Terminal Annual Payment equals $80,000 and the gross receipts tax obligation equals $20,000, Clear Channel will pay the City $20,000 for the gross receipts tax obligation and $60,000 for the Terminal Annual Payment obligation for a total payment of$80,000. In the event Clear Channel ceases to operate a Digital Billboard face due to (1) the loss of Clear Channel's legal or equitable interest in the Terminal Property, (2) the failure to obtain or maintain any required Permit for the Digital Billboard or the Terminal Project, (3) a legal challenge or (4) a significant obstruction of Digital Billboard face occurs which is beyond Clear Channel's control, the Terminal Annual Payment for such face shall cease and no further amounts shall be due or payable by Clear Channel to the City with respect to such face after such date under this Section 8(b). In the event Clear Channel elects in its sole discretion under the Relocation Agreement to to replace a Digital Face on the Digital Billboard with a static billboard face beyond those four reasons enumerated above, Clear Channel's obligation to pay the full Terminal Annual Payment ($80,000 per year) shall continue. (c) For and in consideration of the mutual rights and responsibilities provided in this Agreement , as long as Clear Channel continues to operate the Existing Billboard, Clear Channel agrees to pay the City the annual amount of sixty thousand dollars Page 7 of Development Agreement Clear Channel Outdoor ,2015 ($60,000.00)per year ("Union Pacific Annual Payment"), payable on the first day of the month following completion of reconstruction of the Existing Billboard and final inspection approval by the City of the reconstructed Existing Billboard and on the anniversary of such date each succeeding year. At the conclusion of the first five (5) years of the Union Pacific Annual Payment, the Union Pacific Annual Payment will increase by 15% and will continue to increase by 15% every five (5) years until the expiration of this Agreement. If the City ever adopts a gross receipts tax, Clear Channel's annual payment of such gross receipts tax shall be deducted from this Union Pacific Annual Payment obligation. In the event Clear Channel's annual payment of the City's gross receipts tax is less than the Union Pacific Annual Payment, Clear Channel shall pay the remainder to the City, resulting in an annual payment to the City of not less than the Union Pacific Annual Payment for the Existing Billboard as illustrated below: If the Union Pacific Annual Payment is $60,000 and the gross receipts tax obligation is $10,000, Clear Channel will pay the City $10,000 for the gross receipts tax obligation and $50,000 for the Union Pacific Annual Payment obligation for a total payment of$60,000. In the event Clear Channel ceases to operate the Existing Billboard due to (1) the loss of Clear Channel's legal or equitable interest in the Union Pacific Property, (2) the failure to obtain or maintain any required Permit for the Existing Billboard or the Union Pacific Project, (3) a legal challenge or(4) a significant obstruction of the Union Pacific Project occurs which is beyond Clear Channel's control, following removal or restoration of the Existing Billboard to its prior condition, the Union Pacific Annual Payment shall cease and no further amounts shall be due or payable by Clear Channel to the City with respect to such Existing Billboard after such date under this Section 8(c). (d) For and in consideration of the mutual rights and responsibilities provided in this Agreement, Clear Channel agrees to reimburse the City up to two hundred and fifty thousand dollars ($250,000) for the actual costs incurred by the City with respect to design and construction of City gateway sign(s) as set forth in the City's Gateway Master Plan attached as Exhibit H hereto. Clear Channel shall reimburse the City up to the foregoing amount upon receipt of a written invoice from the City after installation of the City gateway sign(s), and after the Commencement Date. 9. Additional Conditions (a) Community Service Messages. Clear Channel will provide the City with free display time on the Digital Billboard for advertising the City, City-sponsored events, or other public service announcements as more fully described in the Relocation Agreement. Page 8 of Development Agreement Clear Channel Outdoor ,2015 (b) City Branding. The architecture of the Digital Billboard will be constructed substantially in conformance with the design depicted in attached Exhibit C. (c) City Sign Regulations. Both the Digital Billboard and Existing Billboard will be consistent with City ordinances and regulations governing outdoor signs in all respects, except in relation to the exceptions articulated in this Agreement. 10. Indemnity (a) Clear Channel agrees to indemnify, defend (with counsel reasonably approved by the City) and hold harmless the City and its elected and appointed councils, boards, commissions, officers, agents, employees and representatives (collectively, the "City Indemnitees") from any and all claims, costs (including reasonable legal fees and costs) and liability for any personal injury, death or property damage (collectively, "Claims") which arise directly or indirectly as a result of any actions or inactions by Clear Channel, or any actions or inactions of Clear Channel's contractors, subcontractors, agents or employees, in connection with the construction, improvement, operation or maintenance of the Projects, provided that Clear Channel shall have no indemnification obligation with respect to any such Claims (i) to the extent such Claims are solely attributable to the gross negligence or willful misconduct of any City Indemnitee, or (ii) to the extent arising out of or in connection with the maintenance, use or condition of any public improvement after the time it has been dedicated to and accepted by the City or another public entity (except as otherwise provided in an improvement agreement or maintenance bond, if applicable). (b) The Parties' obligations under this Section 10 shall survive the expiration or earlier termination of this Agreement and shall be independent of any other applicable indemnity agreements. 11. Assignment (a) Right to Assign. Clear Channel may at any time or from time to time transfer its right, title or interest in or to all or any portion of the Properties. In accordance with Government Code Section 65868.5, with respect to either the Terminal Property or the Union Pacific Property, the burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to Clear Channel as owners of all or any portion of Clear Channel's interest in the respective Property. As a condition precedent to any such transfer, Clear Channel shall require the transferee to acknowledge in writing that transferee has been informed, understands and agrees that the burdens and benefits under this Agreement relating to such transferred property shall be binding upon and inure to the benefit of the transferee. Page 9 of Development Agreement Clear Channel Outdoor ,2015 (b) Notice of Assignment or Transfer. No transfer, sale or assignment of Clear Channel's rights, interests and obligations under this Agreement with respect to either the Terminal Property or the Union Pacific Property shall occur without prior written notice to the City and approval by the City Manager, which approval shall not be unreasonably withheld, conditioned or delayed. The City Manager shall consider and decide the matter within ten (10) days after receipt of Clear Channel's notice, provided all reasonably necessary documents, certifications and other information are provided to the City Manager. (c) Exception for Notice. Notwithstanding Section 10(b), Clear Channel may at any time, upon notice to the City but without the necessity of any approval by the City, transfer the Properties or any part thereof and all or any part of Clear Channel's rights, interests and obligations under this Agreement to: (i) any subsidiary, affiliate, parent or other entity which controls, is controlled by or is under common control with Clear Channel, (ii) any member or partner of Clear Channel or any subsidiary, parent or affiliate of any such member or partner, or (iii) any successor or successors to Clear Channel by merger, acquisition, consolidation, non-bankruptcy reorganization or government action. As used in this subsection, "control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies, whether through the ownership of voting securities, partnership interest, contracts (other than those that transfer Clear Channel's interest in the Property to a third party not specifically identified in this subsection) or otherwise. (d) Release upon Transfer. Upon the transfer, sale or assignment of all of Clear Channel's rights, interests and obligations under this Agreement pursuant to Section 10(a), Section 10(b) and/or Section 10(c) of this Agreement (as applicable), Clear Channel shall be released from all obligations under this Agreement, with respect to the Properties transferred, sold or assigned, to the extent such obligations arise subsequent to the date of the City Manager's approval of such transfer, sale or assignment or the effective date of such transfer, sale or assignment, whichever occurs later; provided, however, that if any transferee, purchaser or assignee approved by the City Manager expressly assumes any right, interest or obligation of Clear Channel under this Agreement, Clear Channel shall be released with respect to such rights, interests and assumed obligations. In any event, the transferee, purchaser or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other reasonably necessary information prior to City Manager approval. (e) Clear Channel's Right to Retain Specified Rights or Obligations. Notwithstanding Section 10(a), Section 10(c) and Section 10(d), Clear Channel may withhold from a sale, transfer or assignment of this Agreement certain rights, interests and/or obligations which Clear Channel shall retain, provided that Clear Channel specifies such rights, interests and/or obligations in a written document Page 10 of Development Agreement Clear Channel Outdoor ,2015 to be appended to or maintained with this Agreement and recorded with the San Mateo County Recorder prior to or concurrently with the sale, transfer or assignment of one or both of the Properties. Clear Channel's purchaser, transferee or assignee shall then have no interest in or obligations for such retained rights, interests and obligations and this Agreement shall remain applicable to Clear Channel with respect to such retained rights, interests and/or obligations. (f) Time for Notice. Within ten (10) days of the date escrow closes on any such transfer, Clear Channel shall notify the City in writing of the name and address of the transferee. Said notice shall include a statement as to the obligations, including any mitigation measures, fees, improvements or other conditions of approval, assumed by the transferee. Any transfer which does not comply with the notice requirements of this Section 10(f) and of Section 10(b) shall not release Clear Channel from its obligations to the City under this Agreement until such time as the City is provided notice in accordance with Section 10(b). 12. Insurance (a) General Liability Insurance. During the term of this Agreement, Clear Channel shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of not less than ten million dollars ($10,000,000.00) and a self-insured retention of not more than twenty-five thousand dollars ($25,000.00) per claim. The general liability policy so maintained by Clear Channel shall include either a severability of interest clause or cross-liability endorsement, and shall include the City and its elective and appointive boards, commissions, officers, agents, employees and representatives as additional insureds on the policy. (b) Workers' Compensation Insurance. During the term of this Agreement, Clear Channel shall maintain Workers' Compensation insurance for all of Clear Channel's employees working at the Terminal Project and Union Pacific Project sites as long as Clear Channel continues to operate the Digital Billboard or the Existing Billboard, as applicable. Clear Channel agrees to indemnify the City for any damage resulting from Clear Channel's failure to maintain any such required insurance. In addition, Clear Channel shall require each contractor and subcontractor engaged by Clear Channel for work at the Terminal Project and Union Pacific sites to provide Workers' Compensation insurance for its respective employees working at the Project site. (c) Evidence of Insurance. Prior to City Council approval of this Agreement, Clear Channel shall furnish the City satisfactory evidence of the insurance required in Sections 11(a) and 11(b) and evidence that the carrier will endeavor to give the City at least ten (10) days prior written notice of any cancellation or reduction in Page 11 of Development Agreement Clear Channel Outdoor ,2015 coverage of a policy if the reduction results in coverage less than that required by this Agreement. Further, a certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage with respect to the liabilities assumed by Clear Channel under this Agreement. 1. During the term of this Agreement, in the event of a reduction (below the limits required in this Agreement) or cancellation in coverage, Clear Channel shall, prior to such reduction or cancellation, provide at least ten (10) days prior written notice to the City, regardless of any notification by the applicable insurer. If the City discovers that the policies have been cancelled or reduced below the limits required in this Agreement and that neither the insurer nor Clear Channel has provided prior notice to the City as required under this Agreement, said failure shall constitute a material breach of this Agreement. 2. During the term of this Agreement, in the event of a reduction (below the limits required by this Agreement) or cancellation in coverage, Clear Channel shall have five (5) days in which to provide evidence of the required coverage being reinstated or replaced, during which time no persons shall enter the Properties to construct improvements thereon, including construction activities related to the landscaping and common improvements. 3. If Clear Channel fails to obtain reinstated or replacement coverage within five (5) days as required under the preceding subparagraph, the City may obtain, but is not required to obtain, substitute coverage and charge Clear Channel the cost of such coverage plus an administrative fee equal to ten percent (10%) of the premium for said coverage. 12. Covenants Run with the Land The terms of this Agreement are legislative in nature, and apply to Clear Channel's interest in the Properties as regulatory ordinances. During the term of this Agreement, all of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall run with the land and shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns, devisees, administrators, representatives, lessees and all other persons or entities acquiring Clear Channel's interest in the Properties, any lot, parcel or any portion thereof, and any interest therein, whether by sale, operation of law or other manner, and they shall inure to the benefit of the Parties and their respective successors. Page 12 of Development Agreement Clear Channel Outdoor ,2015 13. Conflict with State or Federal Law In the event that State or Federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Agreement, such provisions of this Agreement shall be modified (in accordance with Section 14 set forth below) or suspended as may be necessary to comply with such State or Federal laws or regulations. Notwithstanding the foregoing, Clear Channel shall have the right to challenge, at its sole cost, in a court of competent jurisdiction, the law or regulation preventing compliance with the terms of this Agreement and, if the challenge in a court of competent jurisdiction is successful, this Agreement shall remain unmodified and in full force and effect. 14. Procedure for Modification Because of Conflict with State or Federal Laws In the event that State or Federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the Parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such State or Federal law or regulation. Any such amendment or suspension of this Agreement shall be approved by the City Council in accordance with Chapter 19.60 of the Municipal Code. 15. Periodic Review (a) During the term of this Agreement, the City shall conduct "annual" and/or "special" reviews of Clear Channel's good faith compliance with the terms and conditions of this Agreement in accordance with the procedures set forth in Chapter 19.60 of the Municipal Code. The City may recover reasonable costs incurred in conducting said review, including staff time expended and attorneys' fees. (b) At least five (5) calendar days prior to any hearing on any annual or special review, the City shall mail Clear Channel a copy of all staff reports and, to the extent practical, related exhibits. Clear Channel shall be permitted an opportunity to be heard orally or in writing regarding its performance under this Agreement before the City Council or, if the matter is referred to the Planning Commission, then before said Commission. Following completion of any annual or special review, the City shall give Clear Channel a written Notice of Action, which Notice shall include a determination, based upon information known or made known to the City Council or the City's Planning Director as of the date of such review, whether Clear Channel is in default under this Agreement and, if so, the alleged nature of the default, a reasonable period to cure such default, and suggested or potential actions that the City may take if such default is not cured by Clear Channel. Page 13 of Development Agreement Clear Channel Outdoor ,2015 16. Amendment or Cancellation of Agreement This Agreement may be further amended or terminated only in writing and in the manner set forth in Government Code Sections 65865.1, 65867.5, 65868, 65868.5 and Chapter 19.60 of the Municipal Code; and provided that this Agreement may be terminated by Clear Channel with respect to either the Terminal Project or the Union Pacific Project individually if Clear Channel no longer is operating the Digital Billboard or the Existing Billboard, respectively due to the reasons enumerated in Section 8(b) and 8(c) above, respectively. In the event of such termination with respect to either Project, this Agreement shall continue in full force and effect with respect to the other Project. 17. Agreement is Entire Agreement This Agreement, the Relocation Agreement, the Amendment and all exhibits attached hereto or incorporated herein contain the sole and entire agreement between the Parties concerning Clear Channel's entitlements to develop and improve the Properties. The Parties acknowledge and agree that neither of them has made any representation with respect to the subject matter of this Agreement or any representations inducing the execution and delivery hereof, except representations set forth herein, and each Party acknowledges that it has relied on its own judgment in entering this Agreement. The Parties further acknowledge that all statements or representations that heretofore may have been made by either of them to the other are void and of no effect, and that neither of them has relied thereon in its dealings with the other. 18. Events of Default A Party shall be in default under this Agreement upon the happening of one or more of the following events (and the failure to cure after the expiration of the cure period in paragraph 19(e) below): (a) If a warranty, representation or statement made or furnished by such Party to the other Party in this Agreement is false or proves to have been false in any material respect when it was made; or, (b) In the case of Clear Channel, a finding and determination by the City made following an annual or special review under the procedure provided for in Government Code Section 65865.1 and Chapter 19.60 of the Municipal Code that, upon the basis of substantial evidence, Clear Channel has not complied in good faith with the terms and conditions of this Agreement or the Relocation Agreement is no longer in effect; or, (c) Such Party fails to fulfill any of its obligations set forth in this Agreement and such failure continues beyond the cure period provided in paragraph 19(e) below. Page 14 of Development Agreement Clear Channel Outdoor ,2015 19. Procedure upon Default; Legal Actions (a) Upon the occurrence of an event of default (including expiration of the cure period in paragraph (e) below), the non-defaulting Party may, at its option, institute legal proceedings as provided below or may terminate this Agreement; provided, however, that any such termination by the City shall occur only in accordance with the provisions of Government Code Section 65865.1 and of Chapter 19.60 of the Municipal Code; and provided further, a default under the provisions relating to Terminal Project shall limit the non-defaulting Party to the option of terminating this Agreement with respect to that Project only, and a default under the provisions relating to the Union Pacific Project shall limit the non-defaulting Party with the option of terminating this Agreement with respect to that Project only. (b) The City shall not be deemed to have waived any claim of defect in Clear Channel's performance if, on annual or special review, the City does not propose to terminate this Agreement. (c) No waiver or failure by either Party to enforce any provision of this Agreement shall be deemed to be a waiver of any other provision of this Agreement or of any subsequent breach of the same or any other provision. (d) Any action for breach of this Agreement shall be decided in accordance with California law. In the event that suit shall be brought by either party to this Agreement, the parties agree that venue shall be vested exclusively in San Mateo County Superior Court, or, where otherwise appropriate, exclusively in the United States District Court, Northern District of California. Any Party may institute legal action to cure, correct or remedy any default, to enforce any covenant or agreement herein, to enjoin any threatened or attempted violation, or to enforce by specific performance the obligations and rights of the parties hereto. Except as provided below, in no event shall the City or its elected or appointed officials, directors, officers, members, partners, agents, employees or representatives be liable in monetary damages for any breach or violation of this Agreement, it being expressly understood and agreed that in addition to the right of termination (at the option of the non-defaulting Party), the sole legal or equitable remedy available to Clear Channel for a breach or violation of this Agreement shall be an action in mandamus, specific performance, injunctive or declaratory relief to enforce the provisions of this Agreement and any and all other available legal and equitable remedies, including, without limitation, the right to reconstruct the Removed Billboards in their existing or comparable location and the right to any monetary damages suffered by Clear Channel in connection with the loss of the Removed Billboards to the extent reconstruction is not feasible. Page 15 of Development Agreement Clear Channel Outdoor ,2015 (e ) A Party shall give the other Party written notice of any default by such other Party under this Agreement, and the defaulting Party shall have fifteen (15) business days after the date of the notice to cure the default or to reasonably commence the procedures or actions needed to cure the default; provided, however, that if such default is not capable of being cured within such fifteen (15) business day period but a cure is commenced within such fifteen (15) business day period, the defaulting Party shall have such additional time to complete the cure as is reasonably necessary. 20. Attorneys' Fees and Costs (a) Action by Party. If legal action by either Party is brought because of breach of this Agreement or to enforce a provision of this Agreement, the prevailing Party is entitled to reasonable attorneys' fees and court costs. (b) Action by Third Party. If any person or entity not a party to this Agreement initiates any legal or equitable action or proceeding to challenge the validity of any provision of this Agreement or the validity or implementation of the Terminal Project Approvals and/or the Union Pacific Project Approvals or of the IS/MND, the Parties shall promptly notify the other Party of such claim and each party shall cooperate with the efforts of Clear Channel to defend such action or proceeding. Clear Channel agrees to pay all reasonable costs and expenses, including reasonable legal costs and reasonable attorney's fees incurred in connection therewith. The City will not voluntarily assist the opposing party in any such claim or take any position adverse to Clear Channel in connection with such claim. Clear Channel shall have the option to return any Digital Billboard face to a conventional non-digital display and the City shall not be entitled to claim any lost revenues or damages as a result of such election by Clear Channel. 21. Severability If any material term or condition of this Agreement is for any reason held by a final judgment of a court of competent jurisdiction to be invalid, and if the same constitutes a material change in the consideration for this Agreement, then either Party may elect in writing to invalidate this entire Agreement, and thereafter this entire Agreement shall be deemed null and void and of no further force or effect following such election. 22. No Third Parties Benefited No person other than the City, Clear Channel, and their respective successors is intended to or shall have any right or claim under this Agreement, this Agreement being for the sole benefit and protection of the Parties and their respective successors. Similarly, no amendment or waiver of any provision of this Agreement shall require the consent or acknowledgment of any person not a Party or successor to this Agreement. Page 16 of Development Agreement Clear Channel Outdoor ,2015 23. Binding Effect of Agreement The provisions of this Agreement shall bind and inure to the benefit of the Parties originally named herein and their respective successors and assigns. 24. Relationship of Parties It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by the City and Clear Channel and that Clear Channel is not an agent of the City. The Parties do not intend to create a partnership, joint venture or any other joint business relationship by this Agreement. The City and Clear Channel hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Clear Channel joint venturers or partners. Neither Clear Channel nor any of Clear Channel's agents or contractors are or shall be considered to be agents of the City in connection with the performance of Clear Channel's obligations under this Agreement. 25. Bankruptcy The obligations of this Agreement shall not be dischargeable in bankruptcy. 26. Mortgagee Protection: Certain Rights of Cure (a) Mortgagee Protection. This Agreement shall be superior and senior to all liens placed upon the Properties by Clear Channel or any portion thereof after the date on which this Agreement or a memorandum of this Agreement is recorded with the San Mateo County Recorder, including the lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, invalidate, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against all persons and entities, including all deed of trust beneficiaries or mortgagees ("Mortgagees"), who acquire title to Clear Channel's interest in the Properties or any portion thereof by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise. (b) Mortgagee Not Obligated. No foreclosing Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of any improvements required by this Agreement, or to pay for or guarantee construction or completion thereof. The City, upon receipt of a written request therefor from a foreclosing Mortgagee, shall permit the Mortgagee to succeed to the rights and obligations of Clear Channel under this Agreement, provided that all defaults by Clear Channel hereunder that are reasonably susceptible of being cured are cured by the Mortgagee as soon as is reasonably possible. The foreclosing Mortgagee thereafter shall comply with all of the provisions of this Agreement. Page 17 of Development Agreement Clear Channel Outdoor ,2015 (c) Notice of Default to Mortgagee. If the City receives notice from a Mortgagee requesting a copy of any notice of default given to Clear Channel hereunder and specifying the address for service thereof, the City shall deliver to the Mortgagee concurrently with service thereof to Clear Channel, all notices given to Clear Channel describing all claims by the City that Clear Channel has defaulted hereunder. If the City determines that Clear Channel is in noncompliance with this Agreement, the City also shall serve notice of noncompliance on the Mortgagee, concurrently with service thereof on Clear Channel. Until such time as the lien of the Mortgage has been extinguished, the City shall: 1. Take no action to terminate this Agreement or exercise any other remedy under this Agreement, unless the Mortgagee shall fail, within thirty (30) days of receipt of the notice of default or notice of noncompliance, to cure or remedy or commence to cure or remedy such default or noncompliance; provided, however, that if such default or noncompliance is of a nature that cannot be remedied by the Mortgagee or is of a nature that can only be remedied by the Mortgagee after such Mortgagee has obtained possession of and title to one or both of the Properties, by deed-in-lieu of foreclosure or by foreclosure or other appropriate proceedings, then such default or noncompliance shall be deemed to be remedied by the Mortgagee if, within ninety (90) days after receiving the notice of default or notice of noncompliance from the City, (i) the Mortgagee shall have acquired title to and possession of one or both of the Properties, by deed- in-lieu of foreclosure, or shall have commenced foreclosure or other appropriate proceedings, and (ii) the Mortgagee diligently prosecutes any such foreclosure or other proceedings to completion. 2. If the Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings by reason of any process or injunction issued by any court or by reason of any action taken by any court having jurisdiction over any bankruptcy or insolvency proceeding involving Clear Channel, then the times specified above for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition. (d) Performance by Mortgagee. Each Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Agreement, to do any act or thing required of Clear Channel under this Agreement, and to do any act or thing not in violation of this Agreement, that may be necessary or proper in order to prevent termination of this Agreement. All things so done and performed by a Mortgagee shall be as effective to prevent a termination of this Agreement as the same would have been if done and performed by Clear Channel instead of by the Mortgagee. No action or inaction by a Mortgagee pursuant to this Agreement shall relieve Clear Channel of its obligations under this Agreement. Page 18 of Development Agreement Clear Channel Outdoor ,2015 (e) Mortgagee's Consent to Modifications. Subject to the sentence immediately following, the City shall not consent to any amendment or modification of this Agreement unless Clear Channel provides the City with written evidence of each Mortgagee's consent, which consent shall not be unreasonably withheld, to the amendment or modification of this Agreement being sought. Each Mortgagee shall be deemed to have consented to such amendment or modification if it does not object to the proposed amendment or modification by written notice given to the City within thirty (30) days from the date written notice of such proposed amendment or modification is given by the City or Clear Channel to the Mortgagee. If such notice of the proposed amendment or modification is given solely by Clear Channel, then Clear Channel shall also provide the City with reasonable evidence of the delivery of such notice to the Mortgagee. 27. Estoppel Certificate Either Party from time to time may deliver written notice to the other Party requesting written certification that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and constitutes a binding obligation of the Parties; (ii) this Agreement has not been amended or modified either orally or in writing, or, if it has been amended or modified, specifying the nature of the amendments or modifications; and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, describing therein the nature and monetary amount, if any, of the default. A Party receiving a request hereunder shall endeavor to execute and return the certificate within ten (10) days after receipt thereof, and shall in all events execute and return the certificate within thirty (30) days after receipt thereof. Failure of a Party to return a requested certificate in a timely manner shall not be deemed a default of the Party's obligations under this Agreement and no cause of action shall arise based on such failure, but such Party shall thereupon be deemed to have certified that the statements in clauses (i) through (iii) of this Section are true, and the requesting Party and any third parties shall be entitled to rely upon such deemed certification. The City Manager shall have the right to execute any such certificate requested by Clear Channel hereunder provided the certificate is requested within six (6) months of any annual or special review. The City acknowledges that a certificate hereunder may be relied upon by permitted transferees and Mortgagees. At the request of Clear Channel, the certificates provided by the City establishing the status of this Agreement with respect to any lot or parcel shall be in recordable form, and Clear Channel shall have the right to record the certificate for the affected portion of the Property at Clear Channel's cost. 28. Force Majeure Notwithstanding anything to the contrary contained herein, either Party shall be excused for the period of any delay in the performance of any of its obligations hereunder, except the payment of money, to the extent such performance is prevented or delayed by one or more of the following specific causes beyond such Party's control: major weather Page 19 of Development Agreement Clear Channel Outdoor ,2015 differences from the normal weather conditions for the South San Francisco area, war, acts of God or of the public enemy, fires, explosions, floods, earthquakes, invasions by non-United States armed forces, failure of transportation due to no fault of the Parties, unavailability of equipment, supplies, materials or labor when such unavailability occurs despite the applicable Party's good faith efforts to obtain same (good faith includes the present and actual ability to pay market rates for said equipment, materials, supplies and labor), strikes of employees other than Clear Channel's, freight embargoes, sabotage, riots, acts of terrorism, acts of the government, and litigation initiated by a non-Party challenging this Agreement or any of the Projects' approvals or entitlements. The Party claiming such extension of time to perform shall send written notice of the claimed extension to the other Party within thirty (30) days from the commencement of the cause entitling the Party to the extension. 29. Rules of Construction and Miscellaneous Terms (a) The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. (b) Time is and shall be of the essence in this Agreement. (c) Where a Party consists of more than one person, each such person shall be jointly and severally liable for the performance of such Party's obligations hereunder. (d) The captions in this Agreement are for convenience only, are not a part of this Agreement and do not in any way limit or amplify the provisions thereof. (e) This Agreement shall be interpreted and enforced in accordance with the laws of the State of California in effect on the date thereof. 30. Exhibits Exhibit A Terminal Property Map and Description Exhibit B Union Pacific Property Map and Description Exhibit C Site Plans/Specifications for Digital Billboard Exhibit D Site Plans/Specifications for Height Increase to Existing Billboard Exhibit E Removed Billboards Exhibit F Mitigation Monitoring and Reporting Program for Digital Billboard Exhibit G Project Approvals Exhibit H City's Gateway Master Plan - Gateway Signs Page 20 of Development Agreement Clear Channel Outdoor ,2015 31. Notices All notices required or provided for under this Agreement shall be in writing and delivered in person (to include delivery by courier) or sent by certified mail, postage prepaid, return receipt requested or by overnight delivery service, and shall be effective upon actual delivery as evidenced by the return receipt or by the records of the courier, overnight delivery service or other person making such delivery. Notices to the City shall be addressed as follow: City of South San Francisco Attn: City Clerk P.O. Box 711, 400 Grand Avenue South San Francisco, CA 94080 With a copy to: Economic and Community Development Department Attn: Alex Greenwood 400 Grand Avenue South San Francisco, CA 94080 With a copy to: City Attorney 400 Grand Avenue South San Francisco, CA 94080 Page 21 of Development Agreement Clear Channel Outdoor ,2015 Notices to Clear Channel shall be addressed as follows: Clear Channel Outdoor, Inc. 555 12th Street, Suite 950 Oakland, CA 94607 Attn: Bob Schmitt, President/GM, Northern California With a copy to: Clear Channel Outdoor, Inc. 2325 East Camelback Road, Suite 400 Phoenix, AZ 85016 Attn: General Counsel A party may change its address for notice by giving notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address. Page 22 of Development Agreement Clear Channel Outdoor ,2015 IN WITNESS WHEREOF this Agreement has been executed by the Parties on the day and year first above written. CITY: CITY OF SOUTH SAN FRANCISCO By: Mike Futrell, City Manager ATTEST: Krista Martenelli, City Clerk APPROVED AS TO FORM: Steven T. Mattas, City Attorney CLEAR CHANNEL: CLEAR CHANNEL OUTDOOR, LLC By: Bryan Parker EVP —Real Estate/Operations Page 23 of Development Agreement Clear Channel Outdoor ,2015 EXHIBIT A TERMINAL PROPERTY MAP AND DESCRIPTION Page 24 of Development Agreement Clear Channel Outdoor ,2015 EXHIBIT B UNION PACIFIC PROPERTY MAP AND DESCRIPTION Page 25 of Development Agreement Clear Channel Outdoor ,2015 EXHIBIT C SITE PLAN/SPECIFICATIONS FOR DIGITAL BILLBOARD Page 26 of Development Agreement Clear Channel Outdoor ,2015 EXHIBIT D SITE PLANS/SPECIFICATIONS FOR HEIGHT INCREASE AT EXISTING BILLBOARD Page 27 of Development Agreement Clear Channel Outdoor ,2015 EXHIBIT E REMOVED/RELOCATED BILLBOARDS 1. Removed Billboards: • Billboard located at 1700 El Camino Real(Trailer Park north of El Camino Real & Mission Road) APN (010-181-020). • Billboard located at 1200 El Camino Real(Kaiser Permanente Hospital) APN (010- 292-210). 2. Relocated Billboard: Billboard located at Bayshore Freeway (US-101) on the east line of the freeway north of Grand Avenue in the Caltrain parking lot (near 600 Dubuque Avenue) APN (872-41-261). Page 28 of Development Agreement Clear Channel Outdoor ,2015 EXHIBIT F MITIGATION MONITORING AND REPORTING PROGRAM FOR THE TERMINAL PROJECT Page 29 of Development Agreement Clear Channel Outdoor ,2015 EXHIBIT G PROJECT APPROVALS [To be completed when the exact titles and resolution numbers for entitlements approved by the Planning Commission and the City Council are known.] Page 30 of Development Agreement Clear Channel Outdoor ,2015 EXHIBIT H CITY'S GATEWAY MASTER PLAN - GATEWAY SIGNS [To be attached when the Gateway Master Plan—Gateway Signs is finalized.] 2514731.1 Page 31 of Development Agreement Clear Channel Outdoor ,2015