HomeMy WebLinkAboutReso 143-2018 (18-831)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 143 -2018
File Number: 18 -831 Enactment Number: RES 143 -2018
RESOLUTION APPROVING OF AN AMENDMENT TO THE EAST
OF 101 AREA PLAN AND A RELOCATION AGREEMENT TO
ALLOW FOR THE INSTALLATION OF A 60 FOOT TALL, DOUBLE
FACED, DIGITAL BILLBOARD ON PROPERTY LOCATED AT 180 S
AIRPORT IN EXCHANGE FOR REMOVAL OF ONE
DOUBLE -SIDED BILLBOARD ALONG SAN MATEO AVE (AT
LOWRIE AVE) AND ONE SINGLE -SIDED BILLBOARD ON EL
CAMINO REAL NORTH OF ARROYO BLVD, TOGETHER WITH
OTHER CONSIDERATIONS.
WHEREAS, Outfront Media ( "Applicant ") owns or has a legal equitable interest in a property located at
180 South Airport (APN 015 -122 -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 an Area Plan
Amendment, a Zoning Text Amendment, Development Agreement, and Relocation Agreement; 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 /MND ") 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, pursuant to CEQA Guidelines Section 15164, an addendum to the IS /MND was prepared
for the Project ( "2018 Addendum ") which analyzed the potential environmental impacts of billboards
along the east side of U.S. Highway 101 and was presented to the Planning Commission for
recommendation to the City Council for approval by a separate resolution of the Planning Commission;
and,
WHEREAS, on June 7, 2018 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 and the 2018 Addendum, as well as supporting documents, at the conclusion of which
the Planning Commission recommended that the City Council find that the 2018 Addendum is the
appropriate environmental document and approve the Project; and,
City of South San Francisco Page 1
File Number. 18 -831 Enactment Number: RES 143 -2018
WHEREAS, the City Council held a duly noticed public hearing on July 25, 2018 which was continued
to September 12, 2018, to consider the 2018 Addendum, the Area Plan Amendment, Zoning Text
Amendment, Development Agreement and Relocation Agreement and take public testimony; and,
WHEREAS, the City Council reviewed and carefully considered the information in the 2015 IS /MND
and the 2018 Addendum, and by separate resolution, finds that the 2018 Addendum is the appropriate
environmental document; and,
NOW,, THEREFORE, BE IT RESOLVED 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 RMG Outdoor Inc., dated March 29, 2017; the
Clear Channel Billboard Project and Related Zoning Amendment Initial Study /Mitigated Negative
Declaration, including all appendices thereto; the 2018 Addendum to Initial Study /Mitigated Negative
Declaration; all site plans, and all reports, minutes, and public testimony submitted as part of the
Planning Commission's duly noticed June 7, 2018 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 25, 2018 meeting which was continued to September 12, 2018, 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. General Findings
1. The foregoing recitals are true and correct.
2. The Exhibits attached to this Resolution, including the Conditions of Project Approval (Exhibit A),
the East of 101 Area Plan Amendment (Exhibit B), the Project Plans (Exhibit C), and the Relocation
Agreement (Exhibit D) are each incorporated by reference and made a part of this Resolution, as if set
forth fully herein.
3. 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.
B. East of 101 Area Plan Amendment
1. The Area Plan, as proposed for amendment, implements and is consistent with the General Plan. The
1999 General Plan includes policies encouraging the City to consider opportunities for enhancement of
financing tools in order to fund various economic development initiatives and to actively market South
San Francisco. The Project would amend the East of 101 Area Plan to allow for the installation of new
digital off-site billboards in the U.S. Highway 101 corridor subject to the removal of existing static
billboards in other areas of the City, and includes provisions for additional revenue for a period of 30
City of South San Francisco Page 2
File Number: 18 -831
Enactment Number: RES 143 -2018
years, subject to the terms of the Project entitlements including the proposed Development Agreement
and Relocation Agreement. Further, approval of the Project, including the proposed Development
Agreement and Relocation Agreement, will not impede achievement of, and is consistent with,
applicable General Plan policies.
2. The Area Plan, as proposed for amendment, implements and is consistent with other provisions of
the East of 101 Area Plan, which the General Plan identifies as the guide for detailed implementation of
General Plan policies. Policy LU -1 states that developments should be evaluated based on their merits
and the net benefits they will provide to the East of 101 Area and the City as a whole. The Project
requires an amendment to the East of 101 Area Plan to allow for the installation of new digital off -site
billboards in the U.S. Highway 101 corridor subject to the removal of existing static billboards in other
areas of the City, and includes provisions for additional revenue to the City for a period of 30 years,
subject to the terms of the Project entitlements including the proposed Development Agreement and
Relocation Agreement. In addition, the proposed Project is consistent with the Design Policies of the
East of 101 Area Plan.
3. The Area Plan, as proposed for amendment, will not be detrimental to the public interest, health,
safety, convenience, or welfare of the City, because the amendments would allow for new off -site digital
commercial billboards only on parcels immediately adjacent to Highway 101, only upon approval of a
relocation agreement, and would not otherwise revise the prohibition on new static billboards in the East
of 101 area. Any revisions to existing billboard signage would continue to be required to be developed
in conformance with the applicable standards included in Chapter 20.110 (Employment Districts) and
Chapter 20.360 (Signs).
4. The Area Plan, as proposed for amendment, is physically suitable for the type and intensity of the
land use being proposed, because the amendments would allow for new off -site digital commercial
billboards only on parcels immediately adjacent to Highway 101, upon approval of a relocation
agreement. The presence of a billboard on such parcels would not preclude the allowance of land uses
permitted within any of the respective zoning districts.
C. Relocation Agreement
1. Approval and execution of the Relocation Agreement will accomplish the purposes of Chapter
20.360 better than the status quo of existing billboards that currently exist.
2. The Digital Billboard is located within a property located at 180 South Airport Boulevard (APN
015- 122 -050), which is within the Freeway Commercial zoning district, which is a non - residential
district, and is immediately adjacent to U.S. Highway 101.
3. The Applicant and City have negotiated a Development Agreement to allow the installation of the
Digital Billboard with two billboard faces at the Property, and the removal of the existing double -faced
billboard at 21 San Mateo Avenue and the existing single -face billboard at 1340 El Camino Real.
City of South San Francisco Page 3
File Number: 18 -831
Enactment Number: RES 143 -2018
4. Installation of the Digital Billboard will advance adopted policies contained in the General Plan and
East of 101 Area Plan, including maximizing the City's financing tools and actively marketing South San
Francisco.
5. The Digital Billboard is operated in accordance with the operating standards set forth in Section
20.360.006(Q), because the project has been evaluated against, and found to be consistent with, each of
the ten operating standards.
NOW, THEREFORE, BE IT FURTHER RESOLVED that subject to the Conditions of Approval,
attached as Exhibit A to this resolution, the City Council of the City of South San Francisco hereby
makes the findings contained in this Resolution, and adopts the East of 101 Area Plan Amendments, as
set forth in Exhibit B, attached hereto.
BE IT FURTHER RESOLVED that subject to the Conditions of Approval, attached as Exhibit A to this
resolution, the City Council hereby approves the Relocation Agreement between the City of South San
Francisco and Outfront Media, LLC attached hereto as Exhibit D, incorporated herein by reference.
BE IT FURTHER RESOLVED that the City Council further authorizes the City Manager to execute the
Relocation Agreement on behalf of the City, in substantially the form attached as Exhibit D, and to make
revisions to such Agreements, subject to the approval of the City Attorney, which do not materially or
substantially increase the City's obligations thereunder.
Be it further resolved that the approvals stated herein are conditioned upon the City Council's adoption
of the Zoning Ordinance Chapter 20.360 Signs Amendments and the approval and execution of the
Development Agreement between the City of South San Francisco and Outfront Media, LLC.
BE IT FURTHER RESOLVED that this Resolution shall become effective immediately upon its passage
and adoption.
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At a meeting of the City Council on 9/12/2018, a motion was made by Pradeep Gupta, seconded by Mark
Addiego, that this Resolution be approved. The motion passed.
Yes: 4 Mayor Normandy, Mayor Pro Tem Matsumoto, Councilmember Gupta, and
Councilmember Addiego
Absen
City of South San Francisco Page 4
DRAFT CONDITIONS OF APPROVAL
P17-0065: ZA17-0005, DA17-0003 and GPA17-0003
OUTFRONT MEDIA DIGITAL BILLBOARD – 180 S AIRPORT
(As recommended by Planning Commission on June 7, 2018)
A) Planning Division requirements shall be as follows:
1. The applicant shall comply with the Planning Divisions standard Conditions and
Limitations for Commercial, Industrial, Mixed-Use and Multi-Family Residential
Projects.
2. The construction drawings for the Project shall substantially comply with the City
Council approved plans, prepared by RMG Outdoor Inc., dated March 29, 2017, as
amended by the conditions of approval.
3. The developer shall comply with all applicable mitigation measures outlined in the
Mitigation Monitoring and Reporting Program and the Clear Channel Billboard Project
and Related Zoning Amendment IS/MND. Prior to issuance of a building permit the
applicant shall prepare a checklist outlining mitigation measures and status of
implementation, for review and approval by the Chief Planner or designee.
4. Prior to issuance of any building or construction permits for grading improvements, the
applicant shall submit final grading plans for review and approval by the City Engineer
and Chief Planner.
Planning Division contact: Billy Gross, Senior Planner, (650) 877-8535
GENERAL PLAN AMENDMENTS FOR EAST OF 101 AREA PLAN POLICIES
The proposed General Plan Amendments provide recommended policy updates to the City of
South San Francisco’s existing East of 101 Area Plan, including design element policies upon
which proposed Billboard measures and actions are based. The General Plan Amendments
include edits and additions to existing text and policies in the following elements:
Land Use
The proposed East of 101 Area Plan Amendments are provided in the attached document in
redlined format.
East of 101 Area Plan
Chapter 8: Design Element – Section C. East of 101 Area-Wide Design Policies
Subsection 6. Billboards
As shown in Figure B, the billboards and advertising signs in the East of 101 Area create
a visual barrier and negative first impression, especially for viewers travelling north on
Highway 101. Removal of these signs should be encouraged and no additional signs
shall be allowed. Funds are available in some cases through Caltrans to aid in financing
removal costs, provided that cities make regulations prohibiting future-sign
replacement. The following design policies encourage the removal of billboards from
the East of 101 Area.
Policy DE-32. No new off-site static commercial advertising signs or billboards shall be
permitted in the East of 101 Area. New off-site digital commercial
billboards may be permitted on parcels immediately adjacent to Highway
101, only upon approval of a Relocation Agreement. Existing static and
digital billboards may be renovated, replaced or relocated, only if the City
finds that the change would improve the visual character of the billboard
and area.
Policy DE-33. The City should work to remove all existing off-site static commercial
advertising signs and billboards from the East of 101 area.
ON
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ON
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LAND SURVEYING GEOGRAPHIC INFORMATION SYSTEMS
CHAPPELL SURVEYING SERVICES CSS680 ESTHER WAY OAKDALE, CA, 95361
PHONE: (209) 845 9694 FAX: (209) 845 9654
[email protected] SOUTH AIRPORT BOULEVARD
FOR OUTFRONT MEDIA
SITE PLAN FOR DIGITAL BILLBOARD
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BILLBOARD RELOCATION AGREEMENT BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND OUTFRONT MEDIA LLC.
This Billboard Relocation Agreement (“AGREEMENT”) is made and entered into as of this
__________________, 2018, by and between the City of South San Francisco, a municipal
corporation (“CITY”), and Outfront Media LLC, a Delaware limited liability company
(“OUTFRONT”) (collectively the “Parties”).
RECITALS
(A) WHEREAS, OUTFRONT has proposed to remove those certain billboards located
within the City of South San Francisco commonly described and shown by maps in
Exhibit “A,” entitled “Removed Billboards,” attached hereto and incorporated herein by
this reference (hereafter the “REMOVED BILLBOARDS”); and,
(B) WHEREAS, CITY is willing to allow OUTFRONT to construct, operate, repair and
maintain a new, off-premise digital message center display including two Digital
Displays (as defined below) arranged in a V-shape configuration, 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 (collectively, the “DIGITAL BILLBOARD”), where the Digital Billboard’s
digital message center displays have the following dimensions: a display face size of
forty-eight feet (48’) wide and fourteen feet (14’) high (the “DIGITAL DISPLAYS”)
with an elevation of sixty feet (60’) above the adjacent freeway grade. The exact
specifications of the DIGITAL BILLBOARD are set forth in Exhibit “B” attached hereto.
The DIGITAL BILLBOARD will be constructed at the property located at 180 South
Airport Boulevard (APN 015-122-070), which is further described and depicted in
Exhibit “C” (the “PROPERTY”). Such DIGITAL BILLBOARD will also be constructed
pursuant to and in accordance with the terms and conditions of Chapter 20.360 of the
City of South San Francisco Municipal Code, as amended pursuant to Zoning
Amendment No. ______________ (the “ZONING CODE AMENDMENT”), and the
City’s East of 101 Area Plan, as amended pursuant to General Plan Amendment No.
______________ (the “AREA PLAN AMENDMENT”); and,
(C) WHEREAS, in consideration for the removal of the REMOVED BILLBOARDS in
accordance with the terms of this AGREEMENT, the benefits derived by the CITY from
the construction, operation and maintenance of the DIGITAL BILLBOARD, including
the promotion of business and commerce within the CITY, which construction, operation
and maintenance are specifically permitted and encouraged by Section 5412 and Section
5443.5 of the California Outdoor Advertising Act (Bus. and Prof Code § 5200 et seq.),
and the CITY’s sign regulations, and for valuable consideration more fully set forth
herein and in the development agreement attached as Exhibit “D” hereto
(“DEVELOPMENT AGREEMENT”) related to the DIGITAL BILLBOARD , CITY will
grant OUTFRONT the right to construct, operate and maintain the DIGITAL
BILLBOARD as provided in this AGREEMENT; and,
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(D) WHEREAS, the DIGITAL BILLBOARD together with the removal of the REMOVED
BILLBOARDS, ZONING CODE AMENDMENT, AREA PLAN AMENDMENT,
DEVELOPMENT AGREEMENT, and this AGREEMENT are collectively referred to
herein as the DIGITAL BILLBOARD PROJECT; and,
(E) WHEREAS, CITY has made the following findings under its police and regulatory
powers regarding the DIGITAL BILLBOARD PROJECT: that the construction,
operation, repair, and maintenance of the DIGITAL BILLBOARD as proposed and as
more-fully described and depicted in Exhibits B, C and E, are in compliance with all
CITY regulations, plans and codes, as amended by the ZONING CODE AMENDMENT
and AREA PLAN AMENDMENT; and that the DIGITAL BILLBOARD will not
unreasonably interfere with traffic sight distances, nearby residences or traffic flow; and,
(F) WHEREAS, the DIGITAL BILLBOARD PROJECT is contingent upon approvals from
the California Department of Transportation (“CalTrans”); and,
(G) WHEREAS, OUTFRONT shall take down the REMOVED BILLBOARDS prior to
commencing live operations of the DIGITAL BILLBOARD PROJECT; and,
(H) WHEREAS, CITY has prepared an Addendum to the Initial Study and Mitigated
Negative Declaration (“ADDENDUM TO THE NEGATIVE DECLARATION”)
pursuant to the California Environmental Quality Act. On August 26, 2015, the City
adopted the 101 Terminal Court Initial Study and Mitigated Negative Declaration (File
No. ND12-0002), and on __________ [date] the City prepared, posted, considered, and
adopted the ADDENDUM TO THE NEGATIVE DECLARATION, which confirms
based on substantial evidence that the DIGITAL BILLBOARD PROJECT, as more fully
described in this AGREEMENT, would not have the potential for any significant
environmental impacts; and,
(I) WHEREAS, CITY on ____________ [date] approved OUTFRONT’s application for the
DIGITAL BILLBOARD PROJECT upon terms and conditions set forth in such
approval; and,
(J) WHEREAS, the City Council of South San Francisco has found that this
AGREEMENT, and the construction, operation and maintenance of the DIGITAL
BILLBOARD PROJECT as provided for herein, meet the requirements of the City’s
Municipal Code, as amended by the ZONING CODE AMENDMENT, are consistent
with the City’s General Plan, including the East of 101 Area Plan, as amended by the
AREA PLAN AMENDMENT and all other applicable regulations, codes and plans, and
will preserve and promote the public health, safety and welfare; and,
(K) WHEREAS, the City’s Planning Commission has conducted a duly noticed public
hearing on the DIGITAL BILLBOARD PROJECT; and,
(L) WHEREAS, on _____________ [date], after conducting duly noticed public hearings,
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the City Council approved the ADDENDUM TO THE NEGATIVE DECLARATION,
introduced and conducted a first reading of ordinances approving the ZONING CODE
AMENDMENT and DEVELOPMENT AGREEMENT (the “ORDINANCES”), adopted
and approved the AREA PLAN AMENDMENT, and otherwise approved the DIGITAL
BILLBOARD PROJECT; and,
(M) WHEREAS, on _____________ [date] the City Council conducted a second reading of
the ORDINANCES, and adopted the ORDINANCES and on ___________ [date] the
ZONING CODE AMENDMENT and DEVELOPMENT AGREEMENT became
effective; and,
(N) WHEREAS, this AGREEMENT will serve the public interest by allowing the CITY to
continue its development in a planned manner and promoting business and commerce
within the CITY, and will result in an overall reduction of billboards along the surface
streets in the CITY.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by both Parties, the Parties hereto agree as follows:
SECTION 1. RECITALS AND EXHIBITS.
The foregoing recitals are true and correct, express the intent of the Parties, and are incorporated
herein as contractual terms. All exhibits to this AGREEMENT are essential to this
AGREEMENT and are hereby deemed a part hereof.
SECTION 2. OUTFRONT AND CITY AUTHORITY AND STATUS.
A. OUTFRONT hereby represents and warrants for the benefit of CITY all of the following:
1. That the information provided by OUTFRONT in this AGREEMENT is true and
accurate to the best of OUTFRONT’s knowledge after a diligent inquiry; and,
2. That OUTFRONT is a duly organized, validly existing corporation, and is in good
standing under the laws of its place of incorporation and is in good standing in the
State of California; and,
3. That OUTFRONT’s signatory to this AGREEMENT is authorized by resolution,
bylaws, constitution or other authorization of OUTFRONT, which resolution, bylaw,
constitution or other authorization is currently in full force and effect, to execute this
AGREEMENT on OUTFRONT’s behalf and bind OUTFRONT thereby; and,
4. That OUTFRONT has legal or equitable interest in the PROPERTY sufficient to
construct, operate and maintain the DIGITAL BILLBOARD at that location; and,
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5. That OUTFRONT is duly authorized to perform or to cause to be performed all of the
obligations of OUTFRONT, or OUTFRONT’s contractors, subcontractors or other
agents, under and in accordance with the terms and conditions of this AGREEMENT.
B. CITY hereby represents and warrants for the benefit of OUTFRONT all of the following:
1. That the information in this AGREEMENT is true and accurate to the best of CITY’s
knowledge after a diligent inquiry; and,
2. That CITY’s execution of this AGREEMENT is authorized by resolution, which
resolution, is currently in full force and effect, to execute this AGREEMENT on the
CITY’s behalf and bind the CITY thereby; and,
3. That the CITY is duly authorized to perform or to cause to be performed all of the
obligations of CITY under and in accordance with the terms and conditions of this
AGREEMENT.
SECTION 3. EFFECTIVE DATE OF AGREEMENT.
The effective date of this AGREEMENT shall be the later of the effective date of the resolution
approving this AGREEMENT and the effective date of the two ORDINANCES (the
“EFFECTIVE DATE”). This AGREEMENT shall not take effect unless all three approvals are
effective.
SECTION 4. TERM OF AGREEMENT/EARLY TERMINATION.
A. The term of this AGREEMENT shall commence on the EFFECTIVE DATE and end on
the date which is thirty (30) years after the COMMENCEMENT DATE (as hereinafter
defined). The “COMMENCEMENT DATE” shall be the Commencement Date under the
DEVELOPMENT AGREEMENT attached as Exhibit “D” hereto.
B. This AGREEMENT may be terminated early by OUTFRONT in the following
circumstances:
i. OUTFRONT loses its legal or equitable in the respective Property;
ii. A legal challenge is filed that challenges this Agreement or any governmental
approvals, permits, leases, and licenses necessary for the Project (the
“APPROVALS”);
iii. In OUTFRONT’s reasonable discretion, OUTFRONT is unable to obtain the
requisite APPROVALS within 180 days of the EFFECTIVE DATE;
iv. If OUTFRONT 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 by the failure of
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government agencies to issue all APPROVALS or a governmental agency’s
decision to condemn the Property; or
v. A significant obstruction of a display occurs due to a circumstance beyond
OUTFRONT’s control.
C. This AGREEMENT may be terminated early by CITY in the following circumstances:
i. OUTFRONT fails to pay any sum due under this AGREEMENT or the
DEVELOPMENT AGREEMENT, subject to default procedures set forth in the
aforesaid agreements; or
ii. OUTFRONT fails to comply with any of its obligations pursuant to this
AGREEMENT or the DEVELOPMENT AGREEMENT, subject to default
procedures set forth in the aforesaid agreements.
Notwithstanding the above, nothing in this Agreement shall operate as a waiver of any rights
OUTFRONT might have to just compensation and other remedies provided by law.
Upon the expiration or earlier termination of this AGREEMENT,
i. All entitlements and obligations associated with the DIGITAL BILLBOARD
PROJECT shall immediately terminate,
ii. OUTFRONT shall forfeit any sums already paid to CITY during the year in
which termination or expiration has occurred and shall not be entitled to any
reimbursement,
iii. OUTFRONT shall, at its sole cost and expense, remove the above-ground
portions of the DIGITAL BILLBOARD within ninety (90) days, unless
OUTFRONT and CITY have entered into a subsequent written agreement, upon
terms mutually acceptable to both Parties, that allows the DIGITAL
BILLBOARD to remain.
iv. The associated DEVELOPMENT AGREEMENT will terminate within thirty (30)
days of such termination or expiration of this AGREEMENT, except for the
Parties’ obligations pertaining to indemnification, hold harmless, and insurance,
which shall survive any termination of either this AGREEMENT or the
DEVELOPMENT AGREEMENT.
Notwithstanding anything else in this AGREEMENT, this Section 4 shall survive any
termination or expiration of this AGREEMENT.
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SECTION 5. BILLBOARD REMOVAL.
The Parties hereto acknowledge and agree that OUTFRONT will permanently remove the
REMOVED BILLBOARDS within 180 days of OUTFRONT’s receipt of all required
APPROVALS and such APPROVALS becoming final, irrevocable, and unappealable.
Consistent with the above, the Parties agree that OUTFRONT may toll the demolition and
removal of the REMOVED BILLBOARDS in the event that there is a legal challenge to this
AGREEMENT or to any APPROVAL. The tolling period shall last until the date upon which
any legal challenge is resolved such that OUTFRONT may proceed with full implementation of
the DIGITAL BILLBOARD PROJECT, unless this AGREEMENT is terminated as set forth in
Section 4 of this AGREEMENT, in which case the obligation to demolish and remove the
REMOVED BILLBOARDS become null and void. Except as otherwise provided in this
AGREEMENT, upon removal of the REMOVED BILLBOARDS, any right, title and interest
therein or right to place a billboard, whether by lease, license or other right, at the location of the
REMOVED BILLBOARDS shall be forever terminated and shall not be or have been assigned,
transferred or given to any other entity, affiliate, subsidiary, person or party by OUTFRONT.
Notwithstanding anything to the contrary, OUTFRONT understands and agrees that under no
circumstances may OUTFRONT commence live operations of the DIGITAL BILLBOARD
PROJECT until the REMOVED BILLBOARDS have been removed as contemplated in Section
5 of this Agreement.
SECTION 6. BILLBOARD CONSTRUCTION.
The Parties hereto acknowledge and agree that OUTFRONT may construct, operate and maintain
the DIGITAL BILLBOARD at the location described in Exhibit B, that the DIGITAL
BILLBOARD shall be constructed to the specifications outlined in Exhibit C, and that
OUTFRONT will at all times operate and maintain the DIGITAL BILLBOARD in compliance
with this AGREEMENT, the DEVELOPMENT AGREEMENT and all applicable state and local
laws. OUTFRONT acknowledges and agrees that the design of the DIGITAL BILLBOARD
will be constructed substantially in conformance with the design depicted in attached Exhibit E.
SECTION 7. OUTFRONT’S RIGHTS AND OBLIGATIONS.
A. OUTFRONT obligations under this AGREEMENT are contingent upon (i) OUTFRONT
receiving all required APPROVALS, including but not limited to APPROVALS from
Caltrans and the CITY; and (ii) the foregoing APPROVALS being final, irrevocable, and
unappealable.
B. CITY agrees that it will reasonably assist OUTFRONT in connection with any
APPROVALS required from the CITY and Caltrans, and any other governmental
agencies, but OUTFRONT understands and agrees that the obligation and burden of
obtaining said APPROVALS is solely an obligation and burden of OUTFRONT.
C. Provided that OUTFRONT submits all necessary documentation satisfactory to CITY,
CITY will use reasonable efforts to timely issue all APPROVALS necessary for
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OUTFRONT’s timely compliance with this AGREEMENT including, but not limited to,
construction of the DIGITAL BILLBOARD and permanent removal of the REMOVED
BILLBOARDS.
D. OUTFRONT may replace a DIGITAL DISPLAY on the DIGITAL BILLBOARD with a
static billboard face from time to time in OUTFRONT’s sole and absolute discretion.
E. OUTFRONT shall pay, up to eighty thousand dollars ($80,000), for all reasonable CITY
costs for CITY staff and consultants incurred to process CITY APPROVALS.
OUTFRONT has made an initial payment of twenty-five thousand, seven hundred and
fifty dollars ($25,750), and shall pay future costs upon receipt of invoice, subject to the
foregoing cap, i.e. up to fifty-four thousand, two hundred and fifty dollars ($54,250).
Any delay caused by the CITY in its issuance of APPROVALS shall not result in a
default or failure of performance by OUTFRONT for the period of time delay caused by
CITY. OUTFRONT’s obligations to pay for customary permit fees pursuant to Section
7(a) of the Development Agreement and its obligations to pay legal fees and costs
pursuant to Sections 9, 15 and 20 of the Development Agreement are not included in the
calculation of the eighty thousand dollar ($80,000) cap discussed in this section.
F. As long as OUTFRONT operates a DIGITAL DISPLAY on the DIGITAL
BILLBOARD, OUTFRONT shall agree to use one (1) guaranteed spot in a standard
rotation on one Digital Display for four (4) “blocks” of time, during each calendar year
following the COMMENCEMENT DATE to display CITY-sponsored event
announcements and non-commercial public service announcements to promote the civic
interests of the CITY (“CITY MESSAGES”) with no charge for advertising space. Each
“block” will consist of one (1) advertising spot of no greater than eight (8) seconds in the
standard rotation of eight (8) spots on one Digital Display, where such CITY
MESSAGES shall be so displayed for two (2) weeks in duration (collectively, the “Two-
Week Advertising Spot”). The City shall be limited to one (1) Two-Week Advertising
Spot for each calendar quarter. The blocks of time are subject to the following conditions
and parameters:
(i) The CITY shall provide the requested time periods to OUTFRONT for the
following year prior to November 1 of the preceding year. CITY shall be
responsible for providing OUTFRONT with its CITY MESSAGES and for any
costs associated with providing OUTFRONT associated artwork in acceptable
format, and will be subject to OUTFRONT’s standard advertising copy rejection
and removal policies which allow OUTFRONT the right in its sole discretion to
approve or disapprove copy and remove copy once posted or displayed. If
OUTFRONT rejects or removes CITY MESSAGES, OUTFRONT will give
CITY a reasonable opportunity to revise CITY MESSAGES and resubmit them to
OUTFRONT in order to ensure CITY is granted its four (4) blocks of time per
calendar year.
(ii) The CITY shall not charge for, or exchange goods or services for, any sign space
granted on the DIGITAL DISPLAYS.
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(iii) The CITY must submit “camera ready art” utilizing formats and protocols
acceptable to OUTFRONT from time to time or pay production costs. All copy
shall be submitted to OUTFRONT at least ten (10) business days in advance.
(iv) If at any time in the future OUTFRONT removes the DIGITAL DISPLAY(s)
from the sign structure or OUTFRONT is unable to operate the DIGITAL
DISPLAY(s), for any reason, the advertising spot commitments in this section
shall be automatically terminated and rendered null and void, and OUTFRONT
shall be under no obligation whatsoever to provide the City with any type of free
advertising space. However, at any time OUTFRONT operates the Digital
Display(s) with electronic/digital technology, the advertising spot commitment
shall remain in place.
(v) It is expressly understood and agreed that CITY MESSAGES may not include
any names, logos or marks associated with any third party non-governmental
person or entity or any products or any services associated with any third party
non-governmental person or entity.
(vi) Any unused space will be forfeited and shall not roll over. In the event CITY
does not provide OUTFRONT with a space request for the following year by
November 1 of the prior year, or in the event the CITY fails to use any space,
nothing herein shall be deemed to prevent or prohibit OUTFRONT from using
such spots for promoting OUTFRONT’S business, promoting charitable
enterprises, or from actively seeking advertisers for unsold or unused spots, even
though that may result in the shortening of advertising time that would otherwise
have been available to the CITY under this AGREEMENT.
(vii) In addition to the guaranteed space described above, OUTFRONT also agrees to
provide the CITY with one spot in a standard eight spot rotation during periods
other than the two week periods when the CITY has a guaranteed spot, on a space
available basis and provided that such spots may be pre-empted by OUTFRONT
for any reason, including without limitation the use of such spots for promoting
OUTFRONT’S business, promoting charitable enterprises, or from actively
seeking advertisers for such spots.
(viii) Notwithstanding anything else in this AGREEMENT, the CITY shall and hereby
does agree to indemnify, defend and hold harmless OUTFRONT for, from and
against, any claims, costs (including, but not limited to, court costs and reasonable
attorneys’ fees), losses, actions or liabilities arising from or in connection with
any third party allegation concerning any CITY MESSAGE, including but not
limited to a claim that any portion of any CITY MESSAGE infringes or violates
the rights, including, but not limited to, copyright, trademark, trade secret or any
similar right, of any third party. This indemnity shall not include an obligation for
CITY to be responsible for compensating OUTFRONT for any lost profits or
consequential damages or any similar remedy that Outfront may assert against any
third party. Notwithstanding anything else in this AGREEMENT, this Section
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7(F)(viii) shall survive any termination or expiration of this AGREEMENT.
G. OUTFRONT shall pay customary permit fees, fees imposed pursuant to the
DEVELOPMENT AGREEMENT and any applicable gross receipts 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 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 in connection with the DIGITAL BILLBOARD.
H. 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 permits and approvals for the DIGITAL
BILLBOARD or of the ADDENDUM TO THE NEGATIVE DECLARATION, the
Parties shall promptly notify the other Party of such claim and each party shall cooperate
with the efforts of OUTFRONT to defend such action or proceeding. OUTFRONT
agrees to pay all reasonable costs and expenses, including reasonable legal costs and
reasonable attorney’s fees incurred in connection therewith, as set forth in more detail in
Section 11 of this AGREEMENT. CITY will not voluntarily assist the opposing party in
any such claim or take any position adverse to OUTFRONT in connection with such
claim. In the event that 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, during the pendency of such action, OUTFRONT shall have the
option to return any DIGITAL DISPLAY to a conventional non-digital display and CITY
shall not be entitled to claim any lost revenues or damages as a result of such election by
OUTFRONT.
SECTION 8. RELATIONSHIP OF PARTIES.
Under no circumstances shall this AGREEMENT be construed as one of agency, partnership,
joint venture or employment between OUTFRONT and the CITY. Each party acknowledges and
agrees that it neither has, nor will it give the appearance or impression of having, any legal
authority to bind or commit the other Party in any way, notwithstanding that this AGREEMENT
is binding on and between the Parties.
SECTION 9. INSURANCE REQUIREMENTS.
A. General Liability Insurance. During the term of this AGREEMENT, OUTFRONT 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 OUTFRONT shall be primary and
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non-contributory, and be endorsed 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, OUTFRONT
shall maintain Workers’ Compensation insurance for all of OUTFRONT’s employees
working on the DIGITAL BILLBOARD PROJECT site. In addition, OUTFRONT shall
require each contractor and subcontractor engaged by OUTFRONT for work on the
DIGITAL BILLBOARD PROJECT site to provide Workers’ Compensation insurance
for its respective employees working at the DIGITAL BILLBOARD PROJECT site.
C. Evidence of Insurance. Prior to City Council approval of this AGREEMENT,
OUTFRONT shall furnish the CITY satisfactory evidence of the insurance required in
Sections 9(a) and 8(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 OUTFRONT 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, OUTFRONT
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
OUTFRONT 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, OUTFRONT
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
PROPERTY to construct improvements thereon, including construction activities
related to the landscaping and common improvements.
3. If OUTFRONT 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 OUTFRONT the cost of
such coverage plus an administrative fee equal to ten percent (10%) of the
premium for said coverage.
SECTION 10. INDEMNIFICATION AND HOLD HARMLESS.
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A. OUTFRONT agrees to indemnify, defend, 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 OUTFRONT, or any actions or inactions of OUTFRONT ’s
contractors, subcontractors, agents or employees, in connection with the construction,
improvement, operation or maintenance of the DIGITAL BILLBOARD, provided that
OUTFRONT shall have no indemnification obligation with respect to any such CLAIMS
(i) to the extent such CLAIMS are solely attributable to the negligence or willful
misconduct of any CITY INDEMNITEES, 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).
OUTFRONT shall defend such CLAIMS with joint counsel selected by OUTFRONT but
subject to the approval of the CITY, where such approval shall not be reasonably
withheld.
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.
SECTION 11. NOTICES.
Any communication or notice which either of the Parties is required to send to the other, or
which either of the Parties desires to send to the other, shall be in writing and shall be either:
personally delivered; mailed using the United States Postal Service, postage prepaid, return
receipt requested; delivered by a recognized overnight courier service; or sent by facsimile to the
office of the respective Parties as identified below:
TO THE CITY: City Manager, City Clerk and City Attorney
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
TO OUTFRONT: Outfront Media LLC
Attention: Jeff McCuen
1695 Eastshore Hwy
Berkeley, CA 94710
With copies to: Rich Sauer
EVP, General Counsel
Outfront Media
405 Lexington Avenue
New York, NY 10174
and
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Miller Starr Regalia
Attention: Anthony Leones
1331 N. California Boulevard, Fifth Floor
Walnut Creek, CA 94596
Either of the Parties may change its address by sending notice of the new address to the other
pursuant to this section.
SECTION 12. ENTIRE AGREEMENT.
This AGREEMENT and the DEVELOPMENT AGREEMENT, including exhibits, represent the
entire understanding of the Parties as to those matters contained herein. No prior oral or written
understanding shall be of any force or effect with respect to those matters covered hereunder.
SECTION 13. MISCELLANEOUS PROVISIONS.
A. The parties agree that this AGREEMENT shall be governed and construed in accordance
with the laws of the State of California. 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.
B. The headings of the sections and subsections of this AGREEMENT are inserted for
convenience only. They do not constitute a part of this AGREEMENT and shall not be
used in its construction.
C. No provision of this AGREEMENT will be deemed waived by either Party unless
expressly waived in a writing signed by the waiving Party. No waiver shall be implied by
delay or any other act or omission of either Party. The waiver by any party to this
AGREEMENT of a breach or violation of any provision of this AGREEMENT shall not
be deemed a continuing waiver, a waiver of any other term or condition contained herein,
or a waiver of any subsequent breach or violation of that or any other provision of this
AGREEMENT.
D. Any and all exhibits that are referred to in this AGREEMENT are incorporated herein by
reference and are deemed a part of this AGREEMENT.
E. This AGREEMENT may be amended only by written agreement executed by both
Parties.
F. If a court of competent jurisdiction adjudges any provision of this AGREEMENT as void
or unenforceable, the remaining provisions shall not be affected thereby and shall remain
in full force and effect to the maximum possible extent.
G. Where this AGREEMENT refers to the CITY and no officer of the CITY is named, the
City Manager of the CITY shall have the authority to act on behalf of the CITY.
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H. The provisions of this AGREEMENT shall be binding upon and inure to the benefit of
the successors and assigns of each Party.
I. This AGREEMENT may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute a single instrument.
J. In the event either Party is in default of any provision hereof, the non-defaulting Party, as
a condition precedent to the exercise of its remedies, shall be required to give the
defaulting Party written notice of the same pursuant to this AGREEMENT.
Unless otherwise specified herein, the defaulting Party shall have thirty (30) calendar
days from the receipt of such notice to cure the default, or, if the default cannot be cured
within thirty (30) calendar days, to commence and diligently pursue a cure. If the
defaulting Party timely cures the default, then the default shall be deemed waived and this
AGREEMENT shall continue in full force and effect.
If OUTFRONT is in default of this AGREEMENT and/or is in default of any payment
provision under the DEVELOPMENT AGREEMENT with respect to the DIGITAL
BILLBOARD PROJECT and does not timely cure such payment default, the CITY shall
be entitled to pursue all of its remedies available at law or equity, including, but not
limited to, termination of this AGREEMENT and specific performance, and in the event
the CITY elects to terminate this AGREEMENT, OUTFRONT shall remove the above-
ground portions of the DIGITAL BILLBOARD as provided below.
In the event that either Party elects to terminate this AGREEMENT due to default of the
other Party, then OUTFRONT agrees that it shall remove the above-ground portions of
the DIGITAL BILLBOARD within ninety (90) days from the date of termination, unless
OUTFRONT and CITY have entered into a subsequent written agreement, upon terms
mutually acceptable to both Parties, that allows the DIGITAL BILLBOARD to remain.
K. Except as otherwise expressly provided in this Agreement, if the performance of any act
required by this Agreement to be performed by either OUTFRONT or Caltrans is
prevented or delayed because of a Force Majeure Event, as defined below, then the time
for performance will be extended for a period equivalent to the period of delay, and
performance of the act during the period of delay will be excused. An extension of time
for any such Force Majeure Event will be for the period of the enforced delay and will
commence to run from the time of the commencement of the cause, if notice by the party
claiming such extension is sent to the other Party within thirty (30) days of the
commencement of the cause. Times of performance under this Agreement may also be
extended in writing by the mutual agreement of City and OUTFRONT. “Force Majeure
Event,” for purposes of this Agreement, means a cause of delay that is not the fault of the
Party who is required to perform under this Agreement and is beyond that Party’s
reasonable control, including the elements (including floods, earthquakes, windstorms,
and unusually severe weather), fire, energy shortages or rationing, riots, acts of terrorism,
war or war-defense conditions, acts of any public enemy, epidemics, the actions or
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inactions of any governmental entity or that entity’s agents, litigation, labor shortages
(including shortages caused by strikes or walkouts), and materials shortages.
L. 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 OUTFRONT 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 at its 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.
This provision does not waive any of OUTFRONT’s remedies for causes of action that
do not arise out of a breach or violation of this AGREEMENT, including such causes of
action that arise statutorily or provide for a constitutional right to just compensation, such
as a taking.
M. In the event of litigation, the prevailing Party in any action filed to enforce this
Agreement will be entitled to recover costs, attorneys ’ fees, and all other expenses
incurred or arising out of any effort to enforce this AGREEMENT.
WITNESS THE EXECUTION HEREOF as of the date first hereinabove written.
CITY:
CITY OF SOUTH SAN FRANCISCO
By:______________________________
Mike Futrell, City Manager
ATTEST:
___________________________
Krista Martinelli, City Clerk
APPROVED AS TO FORM:
___________________________
Jason Rosenberg, City Attorney
OUTFRONT:
OUTFRONT OUTDOOR, LLC
By:_________________________________
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EXHIBIT A
REMOVED BILLBOARDS
REMOVED BILLBOARDS:
• Billboard (one face) located at 1340 El Camino Real (n/o Arroyo Drive) APN
(____________).
• Billboard (two faces) located at 21 San Mateo Avenue (n/o San Mateo Avenue &
Lowrie Avenue) APN (____________).
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EXHIBIT B
DIGITAL BILLBOARD PROPERTY MAP AND DESCRIPTION OF LOCATION
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EXHIBIT C
DIGITAL BILLBOARD SITE PLANS/SPECIFICATIONS
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EXHIBIT D
DEVELOPMENT AGREEMENT
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EXHIBIT E
DESIGN OF DIGITAL BILLBOARD
2964790.1