HomeMy WebLinkAboutOrd. 1564-2018 (18-870)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
' Ordinance: ORD 1564 -2018
File Number: 18 -870 Enactment Number: ORD 1564 -2018
ORDINANCE ADOPTING A DEVELOPMENT 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.
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, Zoning Text Amendment and Relocation Agreement; 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 /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 Outfront Media Digital Billboard Project ( "2018 Addendum ") analyzing the potential impacts of
billboards along the east side of U.S. Highway 101, which was considered and recommended 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
lawfully noticed public hearing to solicit public comment and consider the 2018 Addendum and the
proposed
City of South San Francisco Page 1
File Number: 18 -870 Enactment Number: ORD 1564 -2018
entitlements, take public testimony, 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, including the Development Agreement; and,
WHEREAS, the City Council held a duly noticed public hearing on July 25, 2018 which was continued
to September 12, 2018, to consider the Project entitlements and Development Agreement, and take
public testimony.
WHEREAS, by separate Resolution, the City Council reviewed and carefully considered the information
in the 2015 IS /MND and the 2018 Addendum to the IS /MND ( "2018 Addendum "), and finds that the
2018 Addendum is the appropriate environmental document; and,
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 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. 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,
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, the East of 101 Area Plan as proposed
City of South San Francisco Page 2
File Number: 18 -870 Enactment Number: ORD 1564 -2018
for amendment, and any applicable zoning regulations.
E. The City Council has independently reviewed the proposed Development Agreement, the General
Plan, the South San Francisco Municipal Code, and applicable state and federal law, including
Government Code section 65864, et seq., and has determined that the proposed Development Agreement
complies with all applicable zoning, subdivision, and building regulations and with the General Plan.
The development contemplated in the Project and Development Agreement is consistent with the Zoning
and Specific Plan standards, as proposed for amendment. This finding is based upon all evidence in the
Record as a whole, including, but not limited to: the City Council's independent review of these
documents, oral and written evidence submitted at the public hearings on the Project, including advice
and recommendations from City staff.
F. The proposed Development Agreement for the Project states its specific duration. This finding is
based upon all evidence in the Record as a whole, including, but not limited to: the City Council's
independent review of the proposed Development Agreement and its determination that Section 2 of the
Development Agreement states that the Development Agreement shall expire thirty (30) years from the
effective date of this Ordinance.
G The proposed Development Agreement incorporates the permitted uses, density and intensity of use
for the property subject thereto, as reflected in the proposed Project (P17- 0065), Area Plan Amendments
(GPA17- 0003), Zoning Text Amendment (ZA17- 0005), Development Agreement (DA17- 0003), 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 Outfront Media 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
City of South San Francisco Page 3
File Number. 18 -870
increase the City's obligations thereunder.
SECTION 3. Severability.
Enactment Number: ORD 1564 -2018
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 12th day of
September 2018.
At a meeting of the City Council on 9/26/2018, a motion was made by Mark Addiego, seconded by Pradeep
Gupta, that this Ordinance be adopted. The motion passed.
Yes: 5 Mayor Normandy, Mayor Pro Tem Matsumoto, Councilmember Garbarino,
Councilmember Gupta, and Councilmember Addiego
Attest by
IKista.Martinelli j
Liza Normandy, Mayor
City of South San Francisco Page 4
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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:
OUTFRONT MEDIA LLC
1695 Eastshore Highway
Berkeley, CA 94710
Attention: Jeff McCuen
(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
OUTFRONT MEDIA LLC
FOR
OUTFRONT MEDIA DIGITAL
BILLBOARD
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DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT is dated as of ____________, 2018
(“Agreement”) and is entered into between: (i) OUTFRONT MEDIA LLC, a Delaware limited
liability company (“Outfront Media”) and (ii) the CITY OF SOUTH SAN FRANCISCO, a
municipal corporation organized and existing under the laws of the State of California (the
“City”). Outfront Media and the City are sometimes collectively referred to herein as
“Parties.”
R E C I T A L S
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 a property located at 180 South Airport
Boulevard (APN 015-122-070) (“Property”) as identified and more fully described in
attached Exhibit A; and,
D. 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, Outfront Media has a legal or equitable leasehold interest in the Property;
and,
F. WHEREAS, Outfront Media has submitted a development proposal to the City,
including requests for various amendments to the City’s Zoning Code (the “Zoning
Code Amendment”) that would permit Outfront Media 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, the development proposal to the City also includes a request for
amendments to the City’s East of 101 Area Plan (the “Area Plan Amendment”), that
would permit Outfront Media to construct, operate repair, and maintain the Digital
Billboard Project at the Property; and,
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H. WHEREAS, Outfront Media will enter into a separate relocation agreement with the
City (“Relocation Agreement”) for the removal/relocation of existing billboards,
which is identified in Exhibit C (“Removed Billboards”); and,
I. WHEREAS, The City and Outfront Media 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 Advertising Act”), including, but not
limited to, Sections 5412 and 5443.5 thereof; and,
WHEREAS, the Digital Billboard Project is contingent upon approvals from the
California Department of Transportation (“CalTrans”); and,
J. WHEREAS, Outfront Media shall take down the Removed Billboards prior to
commencing live operations of the Digital Billboard Project; and,
K. WHEREAS, in-lieu of Outfront Media 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, Outfront Media has voluntarily elected to enter
into this Agreement on the terms set forth herein in order to promote the public health,
safety, and welfare of the City in accordance with section 20.360.002.A.6.b as
amended by the Zoning Code Amendment; and,
L. WHEREAS, Outfront Media and the City seek to enter into this Agreement to set forth
the rights and obligations of the Parties relating to the development of the Properties;
and,
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, with
adoption of the Zoning Code and Area Plan Amendments, 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 reduction of visual clutter, 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
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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 ___________, 2018, 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 ___________, 2018, the City Council, after a duly noticed public
hearing, adopted Ordinance No. _______ approving and adopting this Agreement and
the Ordinance thereafter took effect on __________, 2018; and,
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, Outfront Media 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.
A G R E E M E N T
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) the Zoning Code Amendment is effective; (d) the Area Plan
Amendment is effective; (e) Outfront Media 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 (f)
the Digital Billboard is fully operational with a permanent power supply. This
Agreement may be terminated by Outfront Media with respect to the Digital Billboard
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Project if the following occurs: (1) Outfront Media loses its legal or equitable interest
in the respective Property, (2) in Outfront’s reasonable discretion, Outfront Media is
unable to obtain or maintain any required Permit for the respective 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 occurs due to a circumstance beyond Outfront Media’s control,
or (5) Outfront Media 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 government
agencies to issue all approvals or a governmental agency’s decision to condemn the
Property .
Upon expiration or early termination of this Agreement, Outfront Media shall, at its
sole cost and expense, remove the above-ground portions of the Digital Billboard
Project within ninety (90) days, unless Outfront Media 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 Digital 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 to the specifications of which are set forth in
Exhibit B, and shall be located at 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, Zoning Amendment No.
ZA__-____, Area Plan Amendment No. GPA__-____ and Negative Declaration
No. ND__-____ all 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, East of 101 Area 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(J) of the South San Francisco Municipal Code, and the
Digital Billboard Project Approvals provide that the maximum height of the
Digital Billboard is 60 feet and that the maximum surface area for each display
panels is limited to 672 square feet.
c. Subject to Outfront Media’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 Outfront Media a vested right to develop
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and construct on the Property all the improvements for the Digital Billboard
Project 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, East of 101 Area Plan, the Cit y Zoning
Code, the Municipal Code, or other City ordinances, policies, planning
documents, codes, rules, laws, resolutions, or regulations adopted or otherwise
in effect after the Effective Date shall apply to the Digital Billboard Project,
except any future modifications to ordinances, policies or regulations (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 by this Agreement
or otherwise required by State or Federal Law.
e. In developing the Digital Billboard Project, Outfront Media shall implement the
mitigation measures set forth in the Mitigation Monitoring and Reporting
Program (the “MMRP”) attached hereto as part of Exhibit D and incorporated
herein by this reference, which MMRP was approved concurrently with the
approval of this Agreement for the Project.
4. Building Permits for Project
City staff review of applications for building permits shall be limited to determining
whether the following conditions are met:
a. Outfront Media 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 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, (3) the applicable
requirements of the Municipal Code and MMRP, (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. Outfront Media has demonstrated through proper documentation that it has
proper and sufficient legal and/or equitable interests in the Property to effectuate
the 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
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regulations have been satisfied. Upon obtaining a City building permit, Outfront 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 Outfront Media’s fulfillment of its
obligations under this Agreement and the Relocation Agreement being effective , upon
the City’s approval of the Digital Billboard Project, Outfront Media 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 Project in
accordance with the terms of this Agreement. Outfront Media and the City shall
proceed in a reasonable and timely manner, in compliance with the deadlines mandated
by applicable agreements, statutes or ordinances, to complete all steps necessary
for implementation of this Agreement and development of the 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 a reasonably expeditious manner to
complete all City actions required for the approval and development of the 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 Properties filed by Outfront Media or its nominee, successor or assign as
necessary for development of the Projects; and,
c. Inspecting and providing acceptance of or comments on all work by Outfront
Media 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 Outfront Media to secure approvals for the Digital Billboard
Project 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.
Outfront Media 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. Outfront Media shall make a deposit as determined by the City
and shall pay all of the City’s staff, legal and consultants reasonable costs incurred in
implementing this section. Notwithstanding the foregoing, the parties understand and
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agree that the ultimate responsibility to obtain the required Approvals and state permits
and approvals are the sole obligations and burdens of Outfront Media.
7. Fees and Taxes
a. Outfront Media 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 Outfront Media operates such Digital Billboard faces,
Outfront Media agrees to pay the City the annual amount of forty thousand
dollars ($40,000) 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 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, Outfront
Media’s annual payment of such gross receipts tax shall be deducted from this
Annual Payment obligation. In the event Outfront Media’s annual payment of
the City’s gross receipts tax is less than the Annual Payment, Outfront Media
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 $80,000 and the gross receipts tax obligation
equals $20,000, Outfront Media will pay the City $20,000 for the gross
receipts tax obligation and $60,000 for the Annual Payment obligation for a
total payment of $80,000.
In the event Outfront Media ceases to operate a Digital Billboard face due to
(1) the loss of Outfront Media’s legal or equitable interest in the Property,
(2) the failure to obtain or maintain any required Permit for the Digital
Billboard, (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 Outfront Media’s control; or (5)
Outfront Media 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
government agencies to issue all approvals or a governmental agenc y’s
decision to condemn the Property, the Payment for such face shall cease and
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no further amounts shall be due or payable by Outfront Media to the City
with respect to such face after such date under this Section 7(b). In the event
Outfront Media elects in its sole discretion under the Relocation Agreement
to replace a Digital Face on the Digital Billboard with a static billboard
face beyond those four reasons enumerated above, Outfront Media’s
obligation to pay the full Annual Payment ($80,000 per year) shall continue.
c. For and in consideration of the mutual rights and responsibilities provided in this
Agreement and the Relocation Agreement, Outfront Media agrees to provide the
City with a one-time, non-refundable payment of one hundred and forty
thousand dollars ($140,000) within one hundred and eighty (180) days of the
Commencement Date.
d. In-lieu of Outfront Media 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, Outfront Media has elected to and shall
provide the City with a one-time payment of four hundred thousand dollars
($400,000) in order to promote the public health, safety, and welfare of the City
in accordance with section 20.360.002.A.6.b as amended by the Zoning Code
Amendment. Such payment will be made prior to commencing live operations
of the Digital Billboard Project.
e. Notwithstanding anything to the contrary, any sums already paid to CITY by
Outfront Media during the year in which early termination or expiration has
occurred shall be final and Outfront shall not be entitled to any reimbursement
for those sums.
8. Additional Conditions
a. Community Service Messages. Outfront Media will provide the City with free
display time on the Digital Billboard for City-sponsored event 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 (collectively, the “Two-Week
Advertising Spot”). The City shall be limited to one (1) Two-Week Advertising
Spot for each calendar quarter.
b. City Branding. The architecture of the Digital Billboard will be constructed
substantially in conformance with the design depicted in attached Exhibit C.
c. City Sign Regulations. Subject to the vested rights acquired by Outfront Media
in this Agreement, including but not limited to those vested rights 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. Outfront Media 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
Media, or any actions or inactions of Outfront Media’s contractors,
subcontractors, agents or employees, in connection with the construction,
improvement, operation or maintenance of the Digital Billboard Project,
provided that Outfront Media 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 applicable); or (iii) to the
extent arising out of the City’s use of Community Services Messages under
Section 8 of this Agreement.
b. The Parties’ obligations under this Section 9 shall survive the expiration or
earlier termination of this Agreement and shall be independent of any other
applicable indemnity agreements.
10. Assignment
a. Right to Assign. Outfront Media 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
Outfront Media as owners of all or any portion of Outfront Media’s interest in
the Property or Digital Billboard. As a condition precedent to any such transfer,
Outfront Media 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 Outfront
Media’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 Outfront
Media’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), Outfront Media may at
any time, upon notice to the City but without the necessity of any approval by
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the City, transfer its interest in the Property or Digital Billboard or any part
thereof and all or any part of Outfront Media’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 Outfront
Media, (ii) any member or partner of Outfront Media or any subsidiary, parent
or affiliate of any such member or partner, or (iii) any successor or successors to
Outfront Media 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 Outfront
Media’s interest in the Property of Digital Billboard 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 Outfront
Media’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), Outfront Media 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, 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 Outfront Media under this Agreement, Outfront Media 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. Outfront Media’s Right to Retain Specified Rights or Obligations.
Notwithstanding Section 10(a), Section 10(c) and Section 10(d), Outfront Media
may withhold from a sale, transfer or assignment of this Agreement certain
rights, interests and/or obligations which Outfront Media shall retain, provided
that Outfront Media 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 one or both of the Properties. Outfront
Media’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 Outfront Media 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, Outfront Media shall notify the City in writing of the name and address
of the transferee. Said notice shall include a statement as to the
obligations, including any mitigation measures, fees, improvements or other
conditions of approval, assumed by the transferee. Any transfer which does not
comply with the notice requirements of this Section 10(f) and of Section 10(b)
shall not release Outfront Media from its obligations to the City under this
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Agreement until such time as the City is provided notice in accordance with
Section 10(b).
11. Insurance
a. General Liability Insurance. During the term of this Agreement, Outfront Media
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 Media shall be primary and 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 Media shall maintain Workers’ Compensation insurance for all of
Outfront Media’s employees working at the Digital Billboard Project site as long
as Outfront Media continues to operate the Digital Billboard. In addition,
Outfront Media shall require each contractor and subcontractor engaged by
Outfront Media for work at the Digital Billboard Project site to provide
Workers’ Compensation insurance for its respective employees working at the
Project site.
c. Evidence of Insurance. Prior to City Council approval of this Agreement,
Outfront Media shall furnish the City satisfactory evidence of the insurance
required in Sections 11(a) and 11(b) and evidence that the carrier will endeavor
to give the City 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 Media 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 Media 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 Media 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
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the limits required by this Agreement) or cancellation in coverage,
Outfront Media shall have five (5) days in which to provide evidence
of the required coverage being reinstated or replaced, during which
time no persons shall enter the Properties to construct improvements
thereon, including construction activities related to the landscaping and
common improvements.
3. If Outfront Media 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 Media 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 Outfront Media’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 Outfront Media’s interest in the
Property, 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.
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, Outfront Media 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
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a. During the term of this Agreement, the City shall conduct “annual”
and/or “special” reviews of Outfront Media’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 Outfront 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
Outfront.
c. At least five (5) calendar days prior to any hearing on any annual or special
review, the City shall mail Outfront Media a copy of all staff reports and, to the
extent practical, related exhibits. Outfront Media 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 Outfront Media 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 Outfront Media is in default under this
Agreement. Outfront Media. If the City finds and determines on the basis of
the evidence given that Outfront Media 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 Outfront Media is determined to
not be in good faith compliance with the terms of this Agreement and the Notice
of Action includes a determination that Outfront Media 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 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 Outfront Media if Outfront Media no longer is operating the Digital
Billboard, respectively due to the reasons enumerated in Section 7(b).
Upon expiration or early termination of this Agreement, Outfront Media shall, at its
sole cost and expense, remove the above-ground portions of the Digital Billboard
Project within ninety (90) days, unless Outfront Media 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. Agreement is Entire Agreement
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This Agreement, the Relocation Agreement, and all exhibits attached hereto or
incorporated herein contain the sole and entire agreement between the Parties
concerning Outfront Media’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 of
the following events (and the failure to cure after the expiration of the cure period in
paragraph 19(e) below):
a. If a warranty, representation or statement related to this Agreement or
compliance therewith is 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 Outfront Media, 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, Outfront Media 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.
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 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 Outfront
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Media’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 Outfront Media 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 locations 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 Outfront Media agrees that it shall remove the above-ground portions
of the Digital Billboard Project within ninety (90) days from the date of termination,
unless Outfront Media 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
17
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 Outfront Media to defend such
action or proceeding. Outfront Media 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 Outfront Media
in connection with such claim. In the event of a Project Approval Challenge,
Outfront Media 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 Outfront Media.
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, Outfront Media, 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. Relationship of Parties
It is understood that this Agreement is a contract that has been negotiated and
voluntarily entered into by the City and Outfront Media and that Outfront Media is not
an agent of the City. The Parties do not intend to create a partnership, joint venture or
any other joint business relationship by this Agreement. The City and Outfront Media
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 Outfront Media joint
venturers or partners. Neither Outfront Media nor any of Outfront Media’s agents or
contractors are or shall be considered to be agents of the City in connection with
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the performance of Outfront Media’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 Outfront Media 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 Outfront 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 Properties by Outfront Media 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
Outfront Media’s interest in the Properties or any portion thereof by foreclosure,
trustee’s sale, deed in lieu of foreclosure or otherwise.
b. Mortgagee Not Obligated. No foreclosing Mortgagee shall have any obligation
or duty under this Agreement to construct or complete the construction of any
improvements required by this Agreement, or to pay for or guarantee
construction or completion thereof. The City, upon receipt of a written request
therefor from a foreclosing Mortgagee, shall permit the Mortgagee to succeed to
the rights and obligations of Outfront Media under this Agreement, provided
that all defaults by Outfront Media 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 Outfront Media hereunder
and specifying the address for service thereof, the City shall deliver to the
Mortgagee concurrently with service thereof to Outfront Media, all notices given
to Outfront Media describing all claims by the City that Outfront Media has
defaulted hereunder. If the City determines that Outfront Media is in
noncompliance with this Agreement, the City also shall serve notice of
noncompliance on the Mortgagee, concurrently with service thereof on Outfront
Media. Until such time as the lien of the Mortgage has been extinguished, the
City shall:
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1. Take no action to terminate this Agreement or exercise any other
remedy under this Agreement, unless the Mortgagee shall fail, within
thirty (30) days of receipt of the notice of default or notice of
noncompliance, to cure or remedy or commence to cure or remedy such
default or noncompliance; provided, however, that if such default or
noncompliance is of a nature that cannot be remedied by the Mortgagee
or is of a nature that can only be remedied by the Mortgagee after such
Mortgagee has obtained possession of and title to one or both of the
Properties, by deed-in-lieu of foreclosure or by foreclosure or other
appropriate proceedings, then such default or noncompliance shall be
deemed to be remedied by the Mortgagee if, within ninety (90) days
after receiving the notice of default or notice of noncompliance from the
City, (i) the Mortgagee shall have acquired title to and possession of one
or both of the Properties, by deed- in-lieu of foreclosure, or shall have
commenced foreclosure or other appropriate proceedings, and (ii) the
Mortgagee diligently prosecutes any such foreclosure or other
proceedings to completion.
2. If the Mortgagee is prohibited from commencing or
prosecuting foreclosure or other appropriate proceedings by reason of
any process or injunction issued by any court or by reason of any action
taken by any court having jurisdiction over any bankruptcy or
insolvency proceeding involving Outfront Media, 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 Outfront Media 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 Outfront
Media instead of by the Mortgagee. No action or inaction by a Mortgagee
pursuant to this Agreement shall relieve Outfront Media of its obligations under
this Agreement.
e. Mortgagee’s Consent to Modifications. Subject to the sentence immediately
following, the City shall not consent to any amendment or modification of this
Agreement unless Outfront Media provides the City with written evidence of
each Mortgagee’s consent, which consent shall not be unreasonabl y 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
Outfront Media to the Mortgagee. If such notice of the proposed amendment or
modification is given solely by Outfront Media, then Outfront Media shall also
provide the City with reasonable evidence of the delivery of such notice to the
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Mortgagee.
27. Estoppel Certificate
Either Party from time to time may deliver written notice to the other Party requesting
written certification that, to the knowledge of the certifying Party, (i) this Agreement is
in full force and effect and constitutes a binding obligation of the Parties; (ii)
this Agreement has not been amended or modified either orally or in writing, or, if it
has been amended or modified, specifying the nature of the amendments or
modifications; and (iii) the requesting Party is not in default in the performance of its
obligations under this Agreement, or if in default, describing therein the nature and
monetary amount, if any, of the default. A Party receiving a request hereunder shall
endeavor to execute and return the certificate within ten (10) days after receipt thereof,
and shall in all events execute and return the certificate within thirty (30) days after
receipt thereof. Failure of a Party to return a requested certificate in a timely manner
shall not be deemed a default of the Party’s obligations under this Agreement and no
cause of action shall arise based on such failure, but such Party shall thereupon be
deemed to have certified that the statements in clauses (i) through (iii) of this Section
are true, and the requesting Party and any third parties shall be entitled to rely upon
such deemed certification. The City Manager shall have the right to execute any such
certificate requested by Outfront Media 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 Outfront Media, 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 Outfront Media shall have the right to record the certificate for
the affected portion of the Property at Outfront Media’s cost.
28. Force Majeure
Notwithstanding anything to the contrary contained herein, either Party shall be
excused for the period of any delay in the performance of any of its obligations
hereunder, except the payment of money, to the extent such performance is prevented
or delayed by one or more of the following specific causes beyond such Party’s
control: major weather 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, windstorms, 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 Outfront Media’s, freight embargoes, sabotage, riots, acts of terrorism, acts
of the government, and litigation initiated by a non-Party challenging this Agreement
or any of the Projects’ approvals or entitlements. The Party claiming such extension of
time to perform shall send written notice of the claimed extension to the other Party
within thirty (30) days from the commencement of the cause entitling the Party to the
extension.
29. Eminent Domain
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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, Outfront Media 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 Outfront and that the underlying leasehold interest in the Property belongs solely to
Outfront, and the City shall assert no rights in such interests held by Outfront Media,
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 Outfront might have to just compensation and other remedies
provided by law in the event of an eminent domain action.
30. 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.
31. Exhibits
Exhibit A Property Map and Description
Exhibit B Site Plans/Specifications for Digital Billboard
Exhibit C Removed Billboards
Exhibit D Mitigation Monitoring and Reporting Program for Digital Billboard
Exhibit E Project Approvals
32. Recordation of Agreement
Within ten days after the effective date of the development agreement, the City Clerk
shall have the agreement recorded with the county recorder.
33. Notices
22
All notices required or provided for under this Agreement shall be in writing
and delivered in person (to include delivery by courier) or sent by certified mail,
postage prepaid, return receipt requested or by overnight delivery service, and shall be
effective upon actual delivery as evidenced by the return receipt or by the records of the
courier, overnight delivery service or other person making such delivery.
Notices to the City shall be addressed as follows:
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 Outfront Media shall be addressed as follows:
OUTFRONT MEDIA LLC
Attention: Jeff McCuen
1695 Eastshore Highway
Berkeley, CA 94710
With a copy to:
Rich Sauer
EVP, General Counsel
Outfront Media
405 Lexington Avenue
New York, NY 10174
and
Miller Starr Regalia
Attention: Anthony Leones
1331 N. California Boulevard, Fifth Floor
Walnut Creek, CA 94596
23
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.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
24
IN WITNESS WHEREOF this Agreement has been executed by the Parties on the day and year
first above written.
CITY:
CITY OF SOUTH SAN FRANCISCO
By:
Mike Futrell, City Manager
ATTEST:
Krista Martenelli, City Clerk
APPROVED AS TO FORM:
Jason Rosenberg, City Attorney
OUTFRONT MEDIA:
OUTFRONT MEDIA OUTDOOR, LLC
By:
Its:
__________________________________
25
EXHIBIT A
PROPERTY MAP AND DESCRIPTION
26
51 OTAD\54217\1258760.10
EXHIBIT B
SITE PLAN/SPECIFICATIONS FOR DIGITAL BILLBOARD
28 OTAD\54217\1258760.10
EXHIBIT C
REMOVED/RELOCATED 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 (____________).
29 OTAD\54217\1258760.10
EXHIBIT D
MITIGATION MONITORING AND REPORTING PROGRAM FOR
THE DIGITAL BILLBOARD PROJECT
30 OTAD\54217\1258760.10
EXHIBIT E
PROJECT APPROVALS
[To be completed when the exact titles and resolution numbers for entitlements approved
by the Planning Commission and the City Council are known.]
2964787.1