HomeMy WebLinkAboutOrd. 1624-2021 (21-501)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
- City Council
Ordinance: ORD 1624-2021
File Number: 21-501 Enactment Number: ORD 1624-2021
ORDINANCE ADOPTING A DEVELOPMENT
AGREEMENT TO ALLOW FOR THE INSTALLATION
OF AN 80 FOOT TALL, DOUBLE-FACED, DIGITAL
BILLBOARD ON PROPERTY LOCATED AT 345
SHAW ROAD.
WHEREAS, Clear Channel Outdoor LLC ("Applicant") owns or has a legal equitable interest in
a property located at 345 Shaw Road (APN 015-165-050) ("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 Property ("Project"); and,
WHEREAS, in order to construct and operate the Project, Applicant seeks approval of a
Relocation Agreement, and Sign Permit; 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, the City Council adopted an Initial Study / Mitigated Negative Declaration
("IS/NIND") on August 26, 2015 (State Clearinghouse number 2013062062) in accordance with the
provision of CEQA and CEQA Guidelines, which analyzed the potential environmental impacts of
billboards along the west side of U.S. Highway 101; and,
WHEREAS, on June 14, 2017, the City Council determined that the modifications to the sign
height, increasing the height to a total of 114 feet above grade, were minor in nature, the approval of
which would not result in any new significant environmental effects or a substantial increase in the
severity of any previously identified effects beyond those disclosed and analyzed in the IS/MND adopted
by the City Council, nor would it require additional environmental review; and,
WHEREAS, the Project is within the IS/MND area, is within the parameters analyzed within the
IS/MND and would not result in any new significant environmental effects or a substantial increase in
the severity of any previously identified effects beyond those disclosed and analyzed in the IS/MND
adopted by the City Council, nor would it require additional environmental review; and,
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File Number: 21-501 Enactment Number: ORD 1624-2021
WHEREAS, on January 16, 2020, the Planning Commission for the City of South San Francisco
held a properly noticed public hearing, at which time interested parties had the opportunity to be heard,
to review the Project, as well as supporting documents, at the conclusion of which the Planning
Commission recommended that the City Council find that the 2015 IS/MND is the appropriate
environmental document and approve the Project, including the Development Agreement; and,
WHEREAS, the City Council held a duly noticed public hearing on June 9, 2021 to consider the
2015 IS/MND, Development Agreement, Relocation Agreement and Sign Permit and take public
testimony; and,
WHEREAS, by separate Resolution, the City Council reviewed and carefully considered the
information in the 2015 IS/MND and finds that the 2015 IS/MND is the appropriate environmental
document.
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 Project
Plans, as prepared by AMZ Engineering, dated April 29, 2019; 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 January 16, 2020 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
June 9, 2021 meeting, 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 the Planning Manager.
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 A, 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,
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File Number: 21-501 Enactment Number: ORD 1624-2021
vesting a project for a new digital billboard, is consistent with the objectives, policies, general land uses
and programs specified in the South San Francisco General Plan 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
standards. 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 (P19-0043), Development
Agreement (DA19-0001), and Relocation Agreement. 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 Outdoor LLC 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.
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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 9th day
of June 2021.
At a meeting of the City Council on 6/23/2021, a motion was made by Vice Mayor Nagales, seconded by
Councilmember Coleman, that this Ordinance be adopted. The motion passed.
Yes: 5 Mayor Addiego, Vice Mayor Nagales, Councilmember Nicolas, Councilmember
Coleman, and Councilmember Flores
Attest by L190 �L "—..o
4sa Govea Acosta, City Clerk
lam+ v
Mark Addiego, Mayor
City of South San Francisco Page 4
Exhibit
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, LLC
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 $ 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, LLC
FOR
CLEAR CHANNEL DIGITAL BILLBOARD
1
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT is dated as of '2021 ("Agreement') and
is entered into between: (i) CLEAR CHANNEL OUTDOOR, LLC., a Delaware limited liability company
("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 the property located at 345 Shaw Road (APN 015-165-050)
("Property") as identified and more fully described in attached Exhibit A ; and,
D. WHEREAS, Section 5412 of the Outdoor Advertising Act (Bus. & Profs. Code,§ 5200 et seq)
encourages local governments and owners of billboards to enter into relocation agreements,
pursuant to which local governments can continue development in a planned manner without
expenditure of public funds, while allowing the continued maintenance of private investment
and a medium of public communication; and,
E. WHEREAS, Clear Channel has a legal or equitable interest in the Property; and
F. WHEREAS, Clear Channel has submitted a development proposal to the City that would permit
Clear Channel to construct, operate, repair, and maintain an off -premise digital message center
display including digital displays, supporting structures, service ladders, underground utilities,
fixture connections, electrical supply and connections, panels, signs, lights, electronics, copy
and any additional equipment, appurtenances, and accessories necessary for the operation of the
digital message center display ("Digital Billboard"), the specifications of which are set forth
in Exhibit B, at the Property ("Digital Billboard Project"); and,
G. WHEREAS, Clear Channel will enter into a separate relocation agreement with the City
("Relocation Agreement') for the removal/relocation of an existing billboard, which is identified
in Exhibit C ("Removed Billboard"); and,
H. WHEREAS, The City and Clear Channel agree and acknowledge that the outdoor advertising sign
relocation contemplated by the Digital Billboard Project complies with, and serves the purposes
enumerated in, Business & Professions Code sections 5200 et seq. (the "California Outdoor
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Advertising Act"), including, but not limited to, planned development for the public benefit, in
Sections 5412 and 5443.5 thereof, and,
I. WHEREAS, the Digital Billboard Project is contingent upon approvals from the California
Department of Transportation ("CalTrans"); and,
J. WHEREAS, Clear Channel shall take down the Removed Billboard prior to commencing live
operations of the Digital Billboard Project; and,
K. WHEREAS, in -lieu of Clear Channel removing sufficient existing billboards in order to satisfy
the 2:1 removal -to -placement ratio requirement, as set forth in the City's Zoning Code section
20.360.002.A.6.b, Clear Charnel has elected to make an in -lieu payment to the City in order to
promote the public health, safety, and welfare of the City in accordance with section
20.360.002.A.6.b; and,
L. 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 Property; and,
M. 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,
N. 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,
O. WHEREAS, the City Council and the Planning Commission have found, based on substantial
information in the administrative record, that: this Agreement is in the best public interest of
the City and its residents; adopting this Agreement constitutes a present exercise of the City's
police power; that the Digital Billboard Project is compatible with the uses authorized in, and
the regulations prescribed for, the land use district in which the real property is located; and that
the terms of the Agreement are in conformity with, and will not be detrimental to, the public's
health, safety, convenience, and general welfare. This Agreement and the Digital Billboard
Project will achieve a number of City objectives including the elimination of non -conforming
signage, and facilitation of the orderly development, relocation, and distribution of existing
displays to more appropriate locations within the City, while allowing for the incorporation of
modern technology into relocated displays that, in part, provide the City with a means of
advertising the City, its events, and public service announcements; and,
P. WHEREAS, on , 2021, the City Planning Commission recommended the adoption of
Ordinance No. approving and adopting this Agreement after a duly noticed public
hearing; and,
Q. WHEREAS, on , 2021, the City Council, after a duly noticed public hearing, adopted
Ordinance No. approving and adopting this Agreement and the Ordinance thereafter
took effect on , 2021; and,
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Clear Channel Outdoor
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R. WHEREAS, the City finds and determines that all actions required of City precedent to the
approval of this Agreement by Ordinance No. of the City Council have been duly
and regularly taken; and,
S. WHEREAS, in exchange for the benefits to the City described in the Agreement together with
other public benefits that will result from the development of the Digital Billboard Project,
Clear Channel will receive by this Agreement assurance that it may proceed with the Digital
Billboard Project in accordance with the Digital Billboard Project Approvals, as defined below,
and therefore desires to enter into this Agreement.
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 calendar 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) Clear Channel has obtained all local
and state governmental permits and approvals and any other required permits and approvals for
the Digital Billboard Project, including but not limited to the Digital Billboard Project Approvals
as defined in Section 3(a) below, (collectively, "Permits"); and (d) the Digital Billboard is fully
operational with a permanent power supply. This Agreement may be terminated by Clear Channel
if the following occurs: (1) Clear Channel loses its legal or equitable interest in the Property, (2) In
Clear Channel's reasonable discretion, Clear Channel is unable to obtain or maintain any required
Permit for the Digital Billboard Project, (3) a legal challenge to the Project Approvals or the Digital
Billboard Project, including without limitation a Project Approval Challenge as defined in Section
20, (4) a significant obstruction of a display face on the Digital Billboard occurs due to a
circumstance beyond Clear Channel's control, or (5) Clear Channel is prevented by law or
government order or action from constructing, operating, repairing or maintaining the Digital
Billboard, or otherwise implementing the Project, including but not limited to, the failure of
government agencies to issue all approvals or a governmental agency's decision to condemn the
Property.
Upon expiration or early termination of this Agreement, Clear Channel shall, at its sole cost
and expense, remove the above -ground portions of the Digital Billboard Project within ninety
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(90) days, unless Clear Channel and City have entered into a subsequent written agreement,
upon terms mutually acceptable to both Parties, that allows the Digital Billboard Project to
remain.
3. Project Description for the Dieital Billboard Project; Development Standards for Digital
Billboard Project
The Digital Billboard Project shall consist of the construction, operation, repair and maintenance
of the Digital Billboard, the specifications of which are set forth in Exhibit B, and shall be located
at the Property.
(a) The permitted use, the design, 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 this Agreement, the
Relocation Agreement as set forth in Exhibit C, and Negative Declaration No. ND 12-
0002 (the "IS/NMD") as set forth in Exhibit D to this Agreement, and the applicable laws
in effect as of the Effective Date (including, but not limited to, the applicable
provisions of the City's General Plan, Municipal Code, and all other City resolutions,
codes, rules, laws, regulations, and policies governing topics that include without
limitation the height, location, size, bulk, area, design, improvement and construction
standards of billboards and public utilities in effect as of the Effective Date), except
as modified in this Agreement (hereafter and collectively the "Digital Billboard
Project Approvals").
(b) The use permitted by this Agreement is for a digital billboard as defined in Section
20.360.015(1) of the South San Francisco Municipal Code, and the Digital Billboard
Project Approvals provide that the maximum height of the Digital Billboard is eighty
(80) feet and that the maximum surface area for each display panels is limited to
seventeen feet seven inches (17',7") in height by fifty nine (59') feet in width.
(c) 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 Property
all the improvements for the Digital Billboard Project authorized by, and in accordance
with the Digital Billboard Project Approvals and the terms of this Agreement and the
Relocation Agreement.
(d) 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, adopted or otherwise in effect as of the Effective Date
shall apply to the Digital Billboard Project, except such existing ordinances, policies,
planning documents, codes, rules, laws, resolutions or regulations, adopted or otherwise
in effect after the Effective Date 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
Digital Billboard 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.
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4. Building Permits for Digital Billboard Prosect
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 (1) the conditions and design of the Digital Billboard
Project as specified in the City Council's approval of the Digital Billboard Project and the
final, non -appealable (with no appeal having been filed) Digital Billboard Project
Approvals, (2) all applicable provisions of the Uniform Codes (i.e. building, fire, and
electric codes) incorporated into the City's Municipal Code, (4) the applicable
requirements of the Municipal Code and CEQA requirements (including any required
mitigation measures as set forth in the IS/MND), (4) any other applicable Federal and State
laws, as modified and/or clarified pursuant to this Agreement where applicable, and as
each of the foregoing are applicable to the issuance of building permits; 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 Property to effectuate the Digital Billboard
Digital Billboard Project in accordance with the terms of this Agreement.
Notwithstanding anything in this Section 4, the City agrees that the issuance of a building permit
is not a discretionary decision triggering further CEQA review of the Digital Billboard Project, and
that the above provisions of this Agreement pertaining to building permit issuance shall not be
interpreted to require discretionary review or further CEQA review, but that staff are limited to
determining, ministerially, whether the conditions and building standards in the foregoing
subsections, entitlements and regulations have been satisfied. Upon obtaining a City Building
permit, Clear Channel shall diligently pursue the obtainment of all Caltrans/state permits and
approvals.
5. Vesting of Approvals
Except as provided in this Agreement and subject to Clear Channel's fulfillment of its obligations
under this Agreement, and the Relocation Agreement being effective, upon the City's approval of
the Digital Billboard Project, Clear Channel and its successors and assigns shall have a vested right
in the Digital Billboard Project Approvals for the term of this Agreement, provided that any such
successors and assigns comply with the terms and conditions of this Agreement.
6. 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 Digital Billboard Project 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
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1
Agreement and development of the Digital Billboard Project 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 Digital Billboard Project, 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 Property filed by Clear
Channel or its nominee, successor or assign as necessary for development of the Digital
Billboard Project; and
(c) Inspecting and providing acceptance of or comments on all work by Clear Channel that
requires acceptance or approval by the City; and
(d) Providing any necessary documents within the City's possession or preparing documents
or written consents that are, in the City's sole discretion, reasonably necessary for Clear
Channel to secure approvals for the Digital Billboard from other public agencies, such as
Caltrans. Notwithstanding the foregoing, this provision is not intended to restrict the
City's discretion in considering or evaluating the Digital Billboard Project Approvals.
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. Notwithstanding the foregoing, the parties understand and
agree that the ultimate responsibility to obtain the required Approvals and state permits and
approvals are the sole obligations and burdens of Clear Channel.
7. 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 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, repair or maintenance of the Digital Billboard except
as provided for herein. Notwithstanding anything to the contrary, no fee or permit shall be
required for any change of copy, or customary, routine maintenance 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 fifty one thousand dollars ($51,000) per Digital
Billboard face per year ("Annual Payment"), payable on the first business 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 Annual Payment, the Annual
Payment will increase by fifteen percent (15%) and will continue to increase by fifteen
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percent (15%) every five (5) years until the earlier of the expiration of this Agreement or
the date upon which this Agreement or the Relocation Agreement is terminated. If the City
ever adopts a gross receipts tax, Clear Channel's annual payment of such gross receipts tax
shall be deducted from this Annual Payment obligation. In the event Clear Channel's
annual payment of the City's gross receipts tax is less than Annual Payment, Clear Channel
shall pay the remainder to the City, resulting in an annual payment to the City of not less
than the Annual Payment for the Digital Billboard as illustrated below:
If the Annual Payment equals $102,000 and the gross receipts tax obligation equals
$20,000, Clear Channel will pay the City $20,000 for the gross receipts tax obligation and
$82,000 for the Annual Payment obligation for a total payment of $102,000.
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 Property, (2) the failure to obtain or
maintain any required Permit for the Digital Billboard or the Digital Billboard Project, (3)
a legal challenge to the Digital Billboard Project Approvals, or the Digital Billboard
Project, including without limitation a Project Approval Challenge as defined in Section
20, (4) a significant obstruction of Digital Billboard face occurs which is beyond Clear
Channel's control, or (5) Clear Channel is prevented by law or government order or action
from constructing, operating, or maintaining the Digital Billboard or otherwise
implementing the Project, including but not limited to the failure of government agencies
to issue all approvals or a government agency's decision to condemn the Property, the
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 replace a Digital Face on the Digital Billboard with a printed billboard face
beyond those four reasons enumerated above, Clear Channel's obligation to pay the full
Annual Payment ($102,000 per year) shall continue.
(c) For and in consideration of the mutual rights and responsibilities provided in this
Agreement and the Relocation Agreement, Clear Channel agrees to pay the City a one-
time non-refundable payment of one hundred and forty thousand dollars ($140,000.00),
payable within one hundred and eighty (180) days of the Commencement Date.
(d) In -lieu of Clear Channel removing sufficient existing billboards in order to satisfy the 2:1
removal -to -placement ratio requirement, as set forth in the City's Zoning Code section
20.360.002.A.6.b, Clear Channel has elected to and shall provide the City with a one-time
payment of five hundred fifty thousand dollars ($550,000.00), in -lieu of removal of two
billboard faces in order to promote the public health, safety, and welfare of the City in
accordance with section 20.360.002.A.6.b. Such payment will be made prior to the
Commencement Date but provided that the conditions precedent for the Commencement
Date have occurred (i.e. completion of construction of the Digital Billboard Project so that
it is fully operational and capable of displaying digital advertising and connected to a
permanent power supply, with all final Approvals having been obtained).
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(e) Notwithstanding anything to the contrary, any sums already paid to the City by Clear
Channel during the year in which early termination or expiration has occurred shall be final
and Clear Channel shall not be entitled to any reimbursement for those sums.
8. Additional Conditions
(a) Community Service Messages. Clear Channel will provide the City with free display time
on the Digital Billboard for advertising City -sponsored events announcements and non-
commercial public service announcements to promote the civic interests of the City
("Community Service Messaging") as follows: consistent with and as further described
in the terms of the Relocation Agreement, the City shall be guaranteed, for purposes of
Community Service Messaging, one (1) advertising spot lasting no more than eight (8)
seconds in the standard rotation of eight (8) spots on one (1) digital display face, where
such Community Service Messaging shall be so displayed for two (2) weeks in duration
("Two -Week Advertising Spot"). The City shall be limited to one (1) Two -Week
Advertising Spot for each calendar quarter.
(b) Sign Desian. The architecture of the Digital Billboard will be constructed substantially in
conformance with the design depicted in attached Exhibit B.
(c) City Sign Regulations. Subject to the vested rights acquired by Clear Channel in this
Agreement, including but not limited to those vested right articulated in paragraphs 3.b and
5, the Digital 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.
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9. Indemnity
(a) Clear Channel agrees to indemnify, defend and hold harmless the City and its elected
and appointed councils, boards, commissions, officers, agents, employees and
representatives (collectively, "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") resulting from 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 Digital Billboard Project, 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 sole or gross
negligence or willful misconduct of any City Indemnitee, (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
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applicable); or (iii) to the extent arising out of the City's use of Community Services
Messages under Section 8 of this Agreement.
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.
10. Assip-nment
(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 Property. In accordance with Government Code
Section 65868.5, with respect to either the Property or the Digital Billboard, 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.
(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 the Property or the
Digital Billboard 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 its
interest in the Property or the Digital Billboard 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 interests, including
the Property and Digital Billboard, transferred, sold or assigned, to the extent such
obligations arise subsequent to the date of the City Manager's approval of such transfer,
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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 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 the Property. 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(fl 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).
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11. Insurance
(a) General Liability Insurance. During the term of this Agreement, Clear Channel shall
maintain commercial general liability insurance with coverage at least as broad as
Insurance Services Office form CG 00 01, in an amount not less than Five Million
Dollars ($5,000,000) per occurrence for bodily injury, personal injury, and property
damage, including without limitation, blanket contractual liability. If a general
aggregate limit applies, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be twice the required occurrence
limit. The general liability policy so maintained by Clear Channel shall be primary and
non-contributory and beendorsed using Insurance Services Office form CG 20 10 to
provide that City and its officers, officials, employees, and agents shall be additional
insureds under such 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 Digital Billboard Project site as long as Clear Channel continues to
operate the Digital Billboard. In addition, Clear Channel shall require each contractor
and subcontractor engaged by Clear Channel for work at the Digital Billboard Project
site to provide Workers' Compensation insurance for its respective employees working
at the Project site.
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kc) 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 I I(a) and I I(b) and evidence that the carrier will endeavor to give the City
thirty (30) days' (ten (10) days for non-payment of premium) prior written notice in
the event coverage is substantially changed, canceled, or non -renewed. Further, an
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.
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.
ii. 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.
iii. 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
Property and Digital Billboard 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
Property, the Digital Billboard, 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.
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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) The director of community development shall give Clear Channel thirty (30) calendar
days' advance notice of annual review or special review, by placing such notice to the
developer into the U.S. Mail, first class, postage prepaid, and addressed to Clear
Channel.
(c) 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. If the City finds and determines on the
basis of the evidence given that Clear Channel has complied in good faith with the terms
and conditions of the agreement during the period under review, the review for that
period shall be concluded. If Clear Channel is determined to not be in good faith
compliance with the terms of this Agreement and the Notice of Action includes a
determination that Clear Channel is in default, the City shall specify the alleged nature
of the default, set forth suggested or potential actions that the City may take if such
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default is not cured; otherwise, the provisions of Sections 18 and 19 shall govern the
Parties' rights.
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 if Clear
Channel no longer is operating the Digital Billboard due to the reasons enumerated in Section 7(b)
above. Upon expiration or early termination of this Agreement, Clear Channel shall, at its sole
cost and expense, remove the above -ground portions of the Digital Billboard Project within
ninety (90) days, unless Clear Channel and City have entered into a subsequent written
agreement, upon terms mutually acceptable to both Parties, that allows the Digital Billboard
Project to remain.
17. A¢reement is Entire Agreement
This Agreement, the Relocation Agreement, 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 Property, and construct, operate, repair, and maintain the Digital
Billboard. This document supersedes all prior or contemporaneous agreements, representations,
and negotiations (written, oral, express or implied) and this Agreement may be modified only in
accordance with Section 16 of this Agreement. 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 ofthe 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 related to this Agreement or compliance
therewith made or furnished by such Party to the other Party in this Agreement that 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.
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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 the Digital Billboard Project
shall limit the non -defaulting Party to the option of terminating this Agreement.
(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 reimbursement in
connection with the loss of the Removed Billboards to the extent reconstruction is not
feasible.
(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 thirty (30) 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 thirty (30) business day period but a cure is commenced within such
thirty (30) business day period, the defaulting Party shall have such additional time to
complete the cure as is reasonably necessary.
(f) In the event that either Party elects to terminate this Agreement due to default of the other
Party, then Clear Channel agrees that it shall remove the above -ground portions of the
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Digital Billboard Project within ninety (90) days from the date of termination, unless Clear
Channel and City have entered into a subsequent written agreement, upon terms mutually
acceptable to both Parties, that allows the Digital Billboard Project to remain.
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 Digital Billboard Project Approvals or
of the IS/MND ("Project Approval Challenge"), 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. In the
event of a Project Approval Challenge, 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.
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. Relationshh) 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
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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. The Parties hereto agree that this Agreement shall not prevent
or limit Clear Channel from encumbering the Property or any portion thereof or any
improvement thereon by any mortgage, deed of trust or other security device to
securing financing. The City acknowledges that the lenders providing such financing
may require certain Agreement modifications and City agrees upon request, from time
to time, to meet with Clear Channel and representatives of such lenders to negotiate in
good faith any such request for modification. This Agreement shall be superior and
senior to all liens placed upon the Property 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 Property 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.
(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
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the Mortgagee, concurrently with service thereof on Clear Channel. Until such time as the
lien of the Mortgage has been extinguished, the City shall:
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 the Property, 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 the
Property, 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.
ii. 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.
(e) Mortimee'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.
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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
(a) 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 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, pandemics, epidemics,
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 Digital Billboard Project' 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. Eminent Domain
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30.
31
32.
If the Digital Billboard or the Property, or any part thereof, is condemned by proper
authorities; taken without the exercise of eminent domain, whether permanently or
temporarily; or any right-of-way from which the Digital Billboard is visible is relocated,
Clear Channel shall have the option to terminate this Agreement consistent with the terms of
Section 2. The Parties agree that the Digital Billboard is owned solely by Clear Channel and
that the underlying leasehold interest in the Property belongs solely to Clear Channel, and the
City shall assert no rights in such interests held by Clear Channel, though the City shall not be
prevented from asserting any rights against the condemning authority. Notwithstanding the
above, nothing in this Agreement shall operate as a waiver of any rights Clear Channel might
have to just compensation and other remedies provided by law in the event of an eminent
domain action.
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.
Exhibits
Exhibit A Property Map and Description
Exhibit B Site Plans/Specifications for Digital Billboard
Exhibit C Relocation Agreement
Exhibit D Mitigation Monitoring and Reporting Program for Digital Billboard
Exhibit E Project Approvals
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.
Page 19 of 23
Development Agreement
Clear Channel Outdoor
, 2021
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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
Notices to Clear Channel shall be addressed as follows:
Clear Channel Outdoor, LLC
555 12th Street, Suite 950
Oakland, CA 94607
Attn: Bob Schmitt, President/GM, Northern California
With a copy to:
Clear Channel Outdoor, LLC
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 20 of 23
Development Agreement
Clear Channel Outdoor
.2021
IN WITNESS WHEREOF this Agreement has been executed by the Parties on the day and year first
above written.
ATTEST:
, City Clerk
APPROVED AS TO FORM:
CITY:
CITY OF SOUTH SAN FRANCISCO
LN
City Attorney
CLEAR CHANNEL:
CLEAR CHANNEL OUTDOOR, LLC
By:
Bryan Parker
EVP — Real Estate and Public Affairs
Page 21 of 23
Development Agreement
Clear Channel Outdoor
, 2021
L
fl
EXHIBIT A
PROPERTY MAP AND DESCRIPTION
Development Agreement
Clear Channel Outdoor
2021
EXHIBIT B
.l
SITE PLAN/SPECIFICATIONS FOR DIGITAL BILLBOARD
___ = ____. I Yat- ?•�_�..
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iE
Development Agreement
Clear Channel Outdoor
, 2021
1
1
u
EXHIBIT C
RELOCATION AGREEMENT
Development Agreement
Clear Channel Outdoor
, 2021
EXHIBIT D
MITIGATION MONITORING AND REPORTING PROGRAM FOR
THE DIGITAL BILLBOARD PROJECT
MITIGATION MONITORING AND REPORTING PROGRAM
101 Terminal Court Clear Channel Billboard Project and Related Zoning Amendment,
City of South San Francisco
This Mitigation Monitoring and Reporting Program (MMRP) was prepared based on the fundings of the Recirculated Initial Study and
Mitigated Negative Declaration (IS/MND) for the Project, which was circulated in June/July 2013. This MMRP is in compliance with
Section 15097 of the CEQA Guidelines, which requires that the Lead Agency "adopt a program for monitoring or reporting an the
revisions which it has required in the project and the measures it has imposed to mitigate or avoid significant environmental effects."
The MMRP lists mitigation measures recommended in the IS/MND and identifies mitigation monitoring requirements, including
implementation timing and responsibility as well as monitoring responsibility and actions.
1
101 TERMINAL COURT CLEAR CHANNEL BILLBOARD PROJECT AND RELATED ZONING AMENDMENT- MMRP PAGE 1
Development Agreement
Clear Channel Outdoor
2021
J
101 Terminal Court Clear Channel Billboard Project and Related Zoning Amendment: Mitigation Monitoring and
Reporting Program
Verification
Timing/ ImplementationI
Mitigation Measure Monitoring i Date
schedule Responsibility Monitoring
Responsibilit- Complete
Action
y d
Visual -1: Billboard Brightness Field Testing. The Applicant
shall demonstrate through field testing compliance with a 0.3
footcandle increase over ambient light at ?50 feel during nighttime
conditions upon initial start-up, cat 6 months of operation and at the
request of the City for the life ofthe billboard. The Appliwnr
shall fund field testing by an independent contractor or City staff
trained in the use ofa handheld phorometer to demonstrate
continued compliance. The City shall consider titian complaints
consisting of direct personal impacts as cause forrequesting field Prior to operations
testing. then per the
if increases in ambient light are fund to be above the 03 eonditious
footcandle level, the dimming level shall be adjusted until this indicated.
level can be demonstrated. This mus[ be completed and
demonstrated through follow-up field testing within 24 hours or
the billboard shall not be operated until the lighting levels can be
brought into aimpliance.
If nc above -threshold levels have been measured in the prior three
tests, field testing shall be requested no more often than twin
,yearly. Otherwise, field tests can be requested up to once monthly.
Applicant, as
coordinated by
City
Reviewoffield SSi+Planning
testing results
by City Division
PAGE 2
Development Agreement
Clear Channel Outdoor
,2021
.Url: Basle Construedon Management Practices. The Project
j Verit,
issuance
shat] demonswPrior to tr proposed compliance with all applicable Applicant,
ofbuilding
l mquiremenrs
regulations and operating pra:edures prior to issuance of specifically the
permus
are included in SSF Building
i demolition, building or grading permits, including implementation corutruaion
g
ronstructinn Division
of the following BA.AQMD `Basic Cooskvctioo A•litigatien contractor
construction
contracts and
Measures",
met durmg
101 TERMINAL COURT CLEAR CHANNEL BILLBOARD PROJECT AND RELATED ZONING AMENDMENT — MMRP
PAGE 2
Development Agreement
Clear Channel Outdoor
,2021
101 Terminal Court Clear Channel Billboard Project and Related Zoning Amendment: Mitigation Monitoring and
Reporting Program
Mitigation Measure
i. All exposed surfaces Ic.g., parking areas, staging areas, sou
piles, graded areas, and unpaved access roads) shall be
watered two times per day.
ii. All haul trucks transporting wil. sanai or other loose
material oft -site shall be covered.
iii. All visible mud or din neck wt onto adjacent public roadi
shall be removed using wet power vacuum street sweepers
at least once per day. The use of dry power sweeping is
prohibited.
iv. All vehicle speeds on unpaved mads shall be limited to 15
mph.
v. All roadways, driveway& and sidewalks to be paved shall
eompletod as sewn as possible. Building pads shall be laid
soon as possible after grading unless seeding or soil binder
arc —d.
vi. Idling times shall be minimised either by shutting
equipment off when not in use or reducing the maximum
idling time to 5 minutes (as required by to California
airborne toxics control measure Title 13, Se -tion 2485 of
California Cud. of Regulalions [CCR)). Clea signage shell
be provided for construction workers at ell —s pours.
vii. All cwrinaw tion equipment shall he maintained and properly
Lured in accordance with manufactures s specifications. All
equipment shall be checked by a certified mechanic and
determined to be running in proper condition prior to
operation.
viii. Post a publicly visible sign with the telephone number and
101 TERMINAL COURT CLEAR CHANNEL BILLBOARD PROJECT AND RELATED ZONING AMENDMENT — MMRP
Verif ation
Monitoring Monhoring Date
Aedon Retponsiblk Compleb
Y d
construction
PAGE 3
Development Agreement
Clear Channel Outdoor
,2021
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101 Terminal Court Clear Channel Billboard Project and Related Zoning Amendment: Mitigation Monitoring and
Reporting Program
Mitigation Measure Timing/
Schedule
Verification
mplementation
MonitoringI
Accton Date
Responsibility Monitoring
Responsibilit Complete
Y d
Person to contact at the Lead Agency regarding dust
complaints. This person shall respond and take corrective
action within 49 hours, The Air District's phone number
shall also be visible to ensure compliance with applicable
regulations.
Cultural -1: Cultural Monitoring and Mitigation Plan. The
Project applicant shall fund preparation snd implememation of.
cultural monitoring and mitigation plan by a qualified
archaeologist to address the potential for presence and disturbance
Halt
of Native Americom archaeological resLurces or remains during
m if
excavation of the billboard pole footing. This will include at a
mnatntcti
minimum monitoring during excavation ofthe billboard pole
Dung
resources are
found and SSF Building
(Doting and may also include but is not limited to additional
construction
Applicant
coordinate with Division
archival research, hand auger sampling, shovel test units,
appropriate
geoarchaeological anahsis, or other comm.. methods used to
authorithe
or
identify the Presence of archaeological resources to be determined
prmf"ty
rnhssi°nal
per the recommendation of the qualified archaeologist. The
archaeologist and construction conmicrors shalt follow the
appmpriate procedures should my cultural resources or human
remains he discovered during ground disturbance.
11aa-1: Phe x I andlor Phase t,. 11 ReporPrior to issuance of
Prior to issuance
Review, of
construction permits, the City of South SanPrancisco shall require
of building
Applicant
reports by City
SSF Building
the Project applicant to submit a Phase I environmental site
permits, if
and, if
D'nision
assessment report, and a Phase II report ifwarranted by the Phase
requested by the
applicable.
—
101 TERMINAL COURT CLEAR CHANNEL BILLBOARD PROJECT AND RELATED ZONING AMENDMENT — MMRP
1
PAGE 4
Development Agreement
Clear Channel Outdoor
, 2021
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101 Terminal Court Clear Channel Billboard Project and Related Zoning Amendment: Mitigation Monitoring and
Reporting Program
Verification
— Timing/ jimpleminnitaticHni
Mitigation Measure Monitoring Date
Schedule I Responsibility Monitofing
Action Responsibilit Complete
y d
I report for the Projen site. The reports shall make City verification of
recommendations for remedial action in accordance with State and —mmended
Federal laws, if appropriate, and should be signed by a Registered measures in
Environmental Assessor, Professional Geologist, or Professional concoction
Engineer. The Applicant shall comply with these contracts
recommendations.
Hiu�2: E-Waste Disposa4 Electronic components of the e
billboard may contain materials considered'.-waste' when R�l� Applicabll
disposed of due to potentially hazardous metals, fume retardants, Ongoing during !.bee by the
ry
and other chemicals. The operator shall be required to follow operations Applicant City andfo disposal
applicable regulations regarding proper disposal and:'or recycling, eornpavia
as appropriate, as components are replaced or removed over time
101 TERMINAL COURT CLEAR CHANNEL BILLBOARD PROJECT AND RELATED ZONING AMENDMENT — MMRP PAGE $
Development Agreement
Clear Channel Outdoor
2021
1
101 Terminal Court Clear Channel Billboard Project and Related Zoning Amendment: Mitigation Monitoring and
Reporting Program
Mitigation Measure
Verification
Timing/ Implementation
Monitorirg Date
Schedule Responsibility Monitoring
ResponsibHit complete
Action
I
v d
inf-l: Annual Report. The operator of the digital billboani
shall submit to the City, within thirty days following June 30 of
each year, a written report regarding operation of each digital
billboard during the preceding period of July I m June 30. The
operator may submit a combined report for all such digital
billboards operated by such operator within the City limits. *1 he
report shall, when appropriate, identify incidents or facts that
relate to specific digital billboards. The repent shall be submitted
to the Dirw, or of the Economic and Community Development
Department and shall include information relating to the
fo➢owing:
a. Status of the operator's license as requited by Califomia
Business and professions Code §§5300 ct seq.;
Annually during Applicant! Review of SSF Planning
h. Status of the required permit for individual digital hillbnards, j
as required by California Business and Professions Code operations Operator Annual Report Division
§§5350 et seq.;
a Comphaua with thc Califomia Dutdmr Advertising Act, j
California Business and Professions Code §§5200 and all
regulations adopted pursuant to such .Act;
d. Compliance with Califomin Vehicle Code §§21166.5 and
21167;
e. Compliance with provision of written agreements ben—
the L.S. Department of Transportation and the California
Department of Pransportation pursuant to the federal
Highway Beautification Act(23 L.S.C. §131);
L Compliance with mitigation measwas identified in the
Mitigated Negative Declaration adopted as pan ofProject
101 TERMINAL COURT CLEAR CHANNEL BILL90ARD PROJECT AND RELATED ZONr% AMENDMENT— MMRP
PAGE 6
Development Agreement
Clear Channel Outdoor
2021
101 Terminal Court Clear Channel Billboard Project and Related Zoning Amendment: Mitigation Monitoring and
Reporting Program
Verification
Mitigation Measure Timing/ Implierhontation Monitoring Date
Schedule Responsibility Monitoring
Responsibilit Complete
Action y d
approval;
g. Each mitten or oral complaint received by the operator, or
conveyed to the operator by any government agency or any
other person, regarding operation of each digital billboard
included in the report;
h. Each malfunction or failure of each digital billboard included
in the report. which shall include only those malfunctions or
failures that are visible to the naked cyc, including reason for
the malfunction, duration and contrmatioa of repair, and
i. Opemung status of each digital billboard included in the
report, including estimated date of repair and retum m
normal operation of any digital billboard identified in the
report as not operating in normal mode.
Tnt 2: Operational Safety. The operation ofthe digital
billboard shall —ply with the fallowing at all times:
d So special visual effects that include moving or flashing
lights shall accompany any message or The amuibon between
two successive messages;
b. The operator shall not install or implement any technologyIncluded in
Qngoing during Appliant / SSF Planning
that would allow interaction with drivers, vehicles any operations Opera— Review of Division
device located in vehicles, including, but not limited d m a .4tmual Report
radio frequency identification device, geographic positions
system, nr other device without prior approval ofthe City of
South San Francisco, taking into consideration technical
studies and s:alTrans or US DOT policies and guidance
available at the time ofthe request.
101 TERMINAL COURT CLEAR CHANNEL BILLBOARD PROJECT AND RELATED Zohmm AMENDMENT — MMRP
PA,E 7
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Clear Channel Outdoor
, 2021
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EXHIBIT E
PROJECT APPROVALS
LTO BE INSERTED]
Development Agreement
Clear Channel Outdoor
2021