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Ordinance No. 1243 (7)- /ED J U N 01 2017 CITY CLERK'S OFFICE STAFF REPORT PUBLIC WORKS DEPARTMENT DATE: June 6, 2017 I AV._- CEIVED MAY 3 12017 '"'OMINISTRATION CF14- TO: Honorable Mayor and City Council skA FROM: Kevin Wilson, InteriKi Dire or of Public Works Originator: Sergio Canalesssistant Planner RE: Ordinance Approving a Static Billboard Development Agreement and a Digital Billboard Development Agreement between the City of Vernon and Magellan Atlantic I, LLC., to Replace an Existing Static Billboard and Convert an Existing V-shape Static Billboard to a V-Shape Digital Billboard Along the I-710 Freeway Recommendation A. Find that the proposed action is exempt under the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15302, because the proposed development of the Billboards contemplates only replacement or reconstruction of existing structures or facilities on the same Site having substantially the same size, purpose, and capacity; and B. Open the Public Hearing and receive any comments from the public regarding the Development Agreements, and thereafter close the Public Hearing; and C. Approve the first reading, and adopt at a subsequent meeting, an ordinance approving a Static Billboard Development Agreement and a Digital Billboard Development Agreement between the City of Vernon and Magellan Atlantic I, LLC., to replace an existing static billboard and convert an existing V-shape static billboard to a V-shape digital billboard along the I-710 Freeway. Background The proposed site is located at 3030 Atlantic Boulevard and is approximately 14.7 acres in size and contains a 200,000 square foot industrial building. It also includes an underdeveloped 6.8 acre parcel located to the rear of the property. The proposed site is located in the C-1 Commercial Overlay District of the I -Zone, Industrial. Three billboard signs currently exist on the subject property. For the past year the City has been in negotiations with the property owner of 3030 Atlantic Boulevard, Magellan Atlantic I, LLC (Magellan), on two development agreements to replace an existing V-shape formation two (2) sided static billboards with two (2) new single -sided 14x48 billboard with one (1) single -sided 14x48 foot static display, which are both oriented towards the I-710 freeway. The third billboard will be removed and not replaced. Magellan is also proposing to increase the height of signs along the I-710 Freeway from thirty five (35) feet to fifty (50) feet as measured from the elevation of the adjacent roadway. The increase in height will allow better visibility as the sign is viewed from both sides of the I-710 Freeway. Pursuant to Section 26.9.2 of the City's Zoning Code, billboards are allowed subject to approval of a Development Agreement. The applicant, Magellan, is, therefore, requesting approval of the subject Development Agreements to allow the replacement and operation of a static billboard and V-shape digital billboard on the subject property. The Ordinance and both Development Agreements have been approved as to form by the City Attorney's office. Development A reement Terms Term of Agreement and Renewal Unless terminated earlier as provided in this Agreement, this Agreement shall continue in full force and effect from the Effective Date until the earlier of. (i) thirty (30) years from the Effective Date; or (ii) when the New Digital Billboards are permanently removed (other than removal for repair or replacement) (the "Term"). At least thirty (30) days prior to the end of the Term, the Parties shall come to agreement on whether this Agreement is to be renewed for an additional term of years to be determined or is to expire by its own terms. If this Agreement expires on its own terms or is otherwise terminated, the Developer must remove the New Digital Billboards at the Developer's sole cost and expense. Processing Fee Upon submission of its application for the approvals granted by this Agreement, the Developer has paid to the City a processing fee ("Processing Fee") in the amount of Five Thousand Dollars ($5,000) for the New Digital Billboards and $5,000 for the static billboard. The City shall retain and use the Processing Fee, or any part thereof, for any public purpose within the City's discretion. The Processing Fee shall be separate from all fees which are standard and uniformly applied to similar projects in the City, including, but not limited to, business license fees (due by Developer to the City annually), one-time plan check fees and building permit fees, and any other fees imposed by Los Angeles County, as may be applicable. Development Fee The potential impacts of the Development on the City and surrounding community are difficult to identify and calculate. The Developer and the City agree that an annual development fee paid by the Developer to the City would adequately mitigate all such potential impacts. The Parties therefore agree that the Developer shall pay an annual development fee to the City, subject to the obligation to pay the Alternative Fee per Section 2.6.2 below. The Development Fee for the digital billboard shall be Forty Thousand Dollars ($40,000) per calendar year of the Term for each face of the two (2) New Digital Billboards i.e., $80,000 per year total for the New Digital Billboards). The Development Fee for the static billboard shall be $12,500 per year. The Development Fee shall be increased every three (3) years (each, an "Adjustment Period") in proportion to the adjustment over the same time to the U.S. all items Consumer Price Index for All Urban Consumers (CPI-U) for the Los Angeles -Orange -Riverside area, base period 1982- 1984, based upon the most recent month of publicly available CPI data available as of January 31 of the year of such increase; provided, however, that any CPI increase shall not exceed six percent (6%) of the Development Fee per Adjustment Period (each, a "CPI Increase"). For the Page 2 of 4 percent (6%) of the Development Fee per Adjustment Period (each, a "CPI Increase"). For the avoidance of doubt, should the Parties inadvertently fail to apply a CPI Increase at the end of any given Adjustment Period, such shall not be deemed a waiver of that particular CPI Increase, but rather, shall be added to any subsequent CPI lncrease(s). Notwithstanding the foregoing, if any one or more digital faces of the New Digital Billboards is permanently reduced, removed (other than removal for repair or replacement) or destroyed (in its entirety), the Developer shall not be required to pay that portion of the Development Fee attributable to such face. Instead, the Developer shall pay the Development Fee for each face of the New Digital Bill boards -turned - static as prescribed under the Static Billboard Agreement and prorated from the date the digital face(s) is/are permanently removed. Development Fee Payments. Alternative Fee For any calendar year of the Term where the Alternative Fee exceeds the Development Fee for the New Digital and static billboards, the Developer shall pay to the City the Alternative Fee, which is defined as an amount equal to eight percent (8%) of the gross advertising revenue from the Billboards during the preceding calendar year of the Term (the "Alternative Fee"). Gross advertising revenue shall specifically exclude advertising agency fees paid to the advertiser's advertising agency and/or brokerage fees paid to the sales brokers other than Developer and/or Operator. Furthermore, the gross advertising revenue is based solely on the basic advertising size, as recorded on the City's building permits, and does not include free -form cut-outs, solid extensions, back -lit displays, 3D presentations, tri-vision, stretch faces, additional art work reproductions or any other special treatment or appurtenances as required by the advertiser. Acknowledgment by Operator In the event the Developer enters into a contract or lease agreement with an Operator to operate the New Digital Billboards, such contract or lease agreement shall provide for Operator's acknowledgment of and consent to be bound by this Agreement. Upon execution of such a contract or lease agreement, the Developer shall deliver a copy to the City for its records. Prohibited Use Developer shall not utilize any of the displays on the New Digital Billboards to advertise tobacco, marijuana, hashish, any adult or sexually oriented businesses as defined in VMC Section 5.81.2, any products or services thereof, or show sexually oriented images or language, or as may be prohibited by any City ordinance existing as of the Effective Date of this Agreement. Safety and Appearance In addition to the requirements set forth in VMC Section 26.9.3-6 and under Section 26.9.3-6(f), the brightness of the New Digital Billboards shall be such that the difference of ambient light measurement and the New Digital Billboards light turned on to full white copy shall be no greater than 0.3 foot-candles when measured from a distance of 150 feet from the base of the New Digital Billboards. City Discount Businesses that are members of the Chamber and the Chamber itself shall be entitled to a 10% discount (from the "rate card" rates) for advertising on the New Digital Billboards. Page 3 of 4 City Use of New Digital Billboards Subject to availability (except in the case of an Emergency Situation, as defined below), the City may, free of charge, post public service announcements ("PSAs") on the New Digital Billboards for up to a maximum of five (5) weeks (i.e., 840 hours) every calendar year during the Term ("PSA Time"). PSA Time may be subdivided at the sole discretion of the City. In the case of a public safety emergency or natural disaster, including but not limited to a chemical or hazardous waste incident, explosion, earthquake, flood, or criminal incident (e.g., Amber Alerts) (each, an "Emergency Situation"), the City's PSA shall preempt any and all existing commercial advertising until the Emergency Situation has been abated and, in the reasonable discretion of the City, the PSA is no longer necessary to preserve the health and/or safety of the public. Emergency Situation PSAs shall not be charged to the City's PSA time. The City shall not, under any circumstances, be liable to the Developer or any third party for any losses incurred due to the City's posting of an Emergency Situation PSA. City Acknowledgement The Developer has agreed to display the City's name and logo on the skirt of both billboards. The terms in both Development Agreements establish the amount and timing of revenues that would flow to the City from the billboard operations. Once installed the Digital and Static Billboards will create a minimum revenue stream for the City of $92,500 per year, increasing annually in accordance with the consumer price index. Attachment(s) 1. Ordinance approving a Static Billboard Development Agreement and a Digital Billboard Development Agreement Page 4of4 City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 (323)583-8811 NOTICE OF PUBLIC HEARING APPROVING A STATIC BILLBOARD DEVELOPMENT AGREEMENT AND A DIGITAL BILLBOARD DEVELOPMENT AGREEMENT BETWEEN THE CITY OF VERNON AND MAGELLAN ATLANTIC I, LLC The City Council of the City of Vernon will conduct a Public Hearing, which you may attend. PLACE: Vernon City Hall, City Council Chambers 4305 Santa Fe Avenue Vernon, CA 90058 DATE & Tuesday, June 6, 2017 at 9:00 a.m. TIME: (or as soon thereafter as the matter can be heard) APPLICANT: Magellan Atlantic I, LLC REQUEST: To adopt an ordinance approving a Static Billboard Development Agreement and a Digital Billboard Development Agreement between the City of Vernon and Magellan Atlantic I, LLC to replace an existing static billboard and convert an existing V-shape static billboard to a V-shape digital billboard along the 710 freeway. PROPERTY 3030 Atlantic Boulevard, Vernon, CA 90058 INVOLVED: REVIEW OF THE FILE: The Static Billboard Development Agreement and the Digital Billboard Development Agreement supporting information are available for public review during normal business hours in the Vernon Public Works Department, located at 4305 Santa Fe Avenue, Vernon, CA 90058, between the hours of 7:15 a.m. and 5:15 p.m. Monday through Thursday. PROPOSED Staff plans to recommend that the Vernon City Council determine that CEQA the proposal will not have a significant effect on the environment and is FINDING: exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15302, because the proposed development of the Billboards contemplates only replacement or reconstruction of existing structures or facilities on the same Site having substantially the same size, purpose, and capacity. If you challenge the granting of the Static Billboard Development Agreement or the Digital Billboard Development Agreement, or any provisions thereof in court, you may be limited to raising only those issues you or someone else raised at the hearing described in this notice or in written correspondence delivered to the City of Vernon at, or prior to, the meeting. The hearing may be continued or adjourned or cancelled and rescheduled to a stated time and place without further notice of a public hearing. Dated. 5/23/2017 Maria Ava City e ORDINANCE NO. 1243 AN UNCODIFIED ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING A STATIC BILLBOARD DEVELOPMENT AGREEMENT AND A DIGITAL BILLBOARD DEVELOPMENT AGREEMENT BETWEEN THE CITY OF VERNON AND MAGELLAN ATLANTIC I, LLC WHEREAS, Magellan Atlantic I, LLC (the "Developer") has an ownership interest in that certain portion of real property within the City of Vernon (the "City"), located adjacent to, and on the western side of the I-710 freeway, commonly known as 3030 S. Atlantic Boulevard (the "Site"); and WHEREAS, there currently exist three (3) static billboard structures on the Site - one of which is a double -facing billboard in a "V" formation and the other two of which are single -sided billboards; and WHEREAS, the City and Developer desire for Developer to replace the existing "V" formation static billboards with two (2) new single -sided 14x48 foot digital displays placed in an identical "V" formation (together, the "Digital Billboards"), replace one existing static billboard with one (1) single -sided 14x48 foot static display which is oriented toward the I-710 freeway (the "Static Billboard" and together with the Digital Billboards, the "Billboards"), and remove the other existing billboard altogether; and WHEREAS, the City and the Developer have negotiated and prepared the form of the attached Static Billboard Development Agreement and Digital Billboard Development Agreement (together, the "Development Agreements"), the purpose of which is to memorialize, among other things, the respective duties of the parties with respect to development of the Billboards, as well as the benefits that will inure to each of the parties during the term of the Development Agreements; and WHEREAS, the City Council of the City of Vernon desires to approve the Development Agreements. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF VERNON HEREBY ORDAINS: SECTION 1: Recitals. The City Council hereby finds and determines that all of the foregoing recitals are true and correct. SECTION 2: Purpose and Authority. The purpose of this Ordinance is to approve a Static Billboard Development Agreement and a Digital Billboard Development Agreement with Magellan Atlantic I, LLC. This ordinance is authorized pursuant to Government Code Section 65864 through 65860.5. SECTION 3: Findings. In adopting this ordinance, the City Council makes the following findings: a) Approval of the Development Agreements is categorically exempt from review under the California Environmental Quality Act ("CEQA") under CEQA Guidelines section 15302, because the proposed development of the Billboards contemplates only replacement or reconstruction of existing structures or facilities on the same Site having substantially the same size, purpose, and capacity; and b) The proposed Development Agreements are consistent with the objectives, policies, and general land uses and programs of the City of Vernon General Plan; and c) The proposed Development Agreements will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, or detrimental to the general welfare of residents of the City as a whole; and - 2 - d) The proposed Development Agreements is consistent with the provisions of Government Code Sections 65864 through 65869.5; and e) The City Council has held a duly noticed public hearing on the proposed Development Agreements, and has considered the testimony presented at such public hearing. SECTION 4: Action. The City Council hereby approves the Static Billboard Development Agreement and a Digital Billboard Development Agreement, in substantially the form presented to the City Council, and attached hereto as Exhibits A and B. The Mayor or Mayor Pro-Tem is hereby authorized and directed to execute the Development Agreements for and on behalf of, the City of Vernon, and the City Clerk, or Deputy City Clerk, shall attest thereto. SECTION 5: Severability. If any chapter, article, section, subsection, subdivision, paragraph, sentence, clause, phrase, or word in this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have adopted this Ordinance and each chapter, article, section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more chapters, articles, sections, subsections, subdivisions, paragraphs, sentences, clauses, phrases or words be declared unconstitutional, or invalid, or ineffective. SECTION 6: Book of Ordinances. The City Clerk, or Deputy City Clerk, shall attest and certify to the adoption of this Ordinance and shall cause this Ordinance and the City Clerk's, or Deputy City - 3 - Clerk's, certification to be entered in the Book of Ordinances of the Council of this City. The City Clerk, or Deputy City Clerk, shall cause this ordinance to be published or posted as required by law. SECTION 7: This Ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage. APPROVED AND ADOPTED this 20th day of June, 2017. ATTEST: City Clerk / Deputy City Clerk APPROVED A FORM; Brianrun, ep t� City Attorney - 4 - Name: Title: Mayor / Mayor Pro-Tem STATE OF CALIFORNIA COUNTY OF LOS ANGELES 1, - ) ss City Clerk / Deputy City Clerk of the City of Vernon, do hereby certify that the foregoing Ordinance, being Ordinance No. 1243 was duly and regularly introduced at a regular meeting of the City Council of the City of Vernon, held in the City of Vernon on Tuesday, June 6, 2017, and thereafter adopted at a meeting of said City Council held on Tuesday, June 20, 2017, by the following vote: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: And thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of June, 2017, at Vernon, California. (SEAL) - 5 - City Clerk / Deputy City Clerk EXHIBIT A [Exempt From Recording Fee Per Gov. Code §6103] STATIC BILLBOARD DEVELOPMENT AGREEMENT This Static Billboard Development Agreement (hereinafter "Static Billboard Agreement" or "Agreement") is entered into this day of , 2017 (hereinafter the "Effective Date"), by and between the City of Vernon, a California chartered City and municipal corporation of the State of California (hereinafter "City"), and Magellan Atlantic I, LLC, a California limited liability company (hereinafter "Magellan"). RFCTTAiS A. California Government Code Sections 65864 et seq. (the "Development Agreement Law") authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purposes of strengthening the public planning process, encouraging private participation and comprehensive planning, and identifying the economic costs of such development. B. Owner (as defined in Section 1.1.21 below) has an ownership interest in that certain portion of real property, located adjacent to, and on the western side of, the south -bound lanes of the 710 Freeway, commonly known as 3030 S. Atlantic Blvd. in the City of Vernon, Assessor Parcel Number 6314-033-002, as more specifically described in Exhibit "A" and depicted at Exhibit "C", attached hereto and incorporated herein, upon which the Development (as defined below) is located (the "Site"). C. Developer (as defined in Section 1.1.11 below) seeks to install two (2) new single - sided 14 x 48 foot digital displays placed in a "V" formation (together, the "New Digital Billboards") and one (1) single -sided 14 x 48 foot static display (the "New Static Billboard") which is oriented toward the 710 Freeway, as depicted in Exhibit "C" (collectively the New Digital Billboards and New Static Billboard are referred to as the "New Billboards"). D. Given the different terms and conditions of the New Billboards, the Parties have agreed to execute two separate and independent agreements for each of (i) the New Digital Billboards and (ii) the New Static Billboard. The agreement for the New Digital Billboards shall be referred to as the "Digital Billboard Agreement". E. Owner has consented to Developer's application for this Agreement, and Developer, as the owner of a leasehold, license or easement interest in the Development, has a legal and/or equitable interest in a portion of the Site and thus qualifies to enter into this Agreement in accordance with the Development Agreement Law. F. In exchange for the City approvals sought by Developer for the New Static Billboard as provided herein, Developer is agreeable to, among other things, paying to the City an annual Development Fee or Alternative Fee for the New Static Billboard, whichever is greater, as defined and provided in Sections 2.6.1 and 2.6.2 below, for the cost to the City to mitigate the impact of the installation of the New Static Billboard. 1062963.03/LA 297 944-00207/6-1 -17/j d/sne G. The Site is located within the City's Industrial Zone, and, pursuant to section 26.9.2 of the Vernon Municipal Code ("VMC"), may be developed by installing, constructing, modifying, or replacing the New Static Billboard, subject to, among other things, City Council approval of this Agreement. H. Developer and the City agree that a development agreement should be approved and adopted to memorialize the property expectations of the City and Developer, as more particularly described herein. I. The City Council finds 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, and this Agreement is consistent with the City's General Plan and with the VMC in all respects. Further, the City Council has found that approval of this Agreement and the Development itself are categorically exempt from review under the California Environmental Quality Act ("CEQA") under CEQA Guidelines section 15302, because the Development contemplates only replacement or reconstruction of existing structures or facilities on the same site having substantially the same size, purpose, and capacity. This Agreement and the proposed Development will achieve a number of City objectives, including utilizing the Site for a revenue -generating use. J. The purpose of this Agreement is to set forth the rules and regulations applicable to the Development, which shall be accomplished in accordance with this Agreement, including the Scope of Development (Exhibit "B"), which sets forth a description of the Development and the Schedule of Performance (Exhibit "D"). COVENANTS NOW, THEREFORE, in consideration of the above preamble and recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Developer and Owner agree as follows: 1. DEFINITIONS AND EXHIBITS. 1.1 Definitions. This Agreement uses a number of terms having specific meanings, as defined below. These specially defined terms are distinguished by having the initial letter capitalized, when used in the Agreement. In addition to the terms defined in the Recitals above, the defined terms include the following: 1.1.1 "Agreement" means this Static Billboard Development Agreement and all attachments and exhibits hereto. 1.1.2 "Alternative Fee" shall have the meaning set forth at Section 2.6.2. 1.1.3 "Amendment" shall have the meaning set forth at Section 2.3. 1.1.4 "Caltrans" means the California Department of Transportation. 1.1.5 "CEQA" means the California Environmental Quality Act (Public Resources Code Section 21000 et seq.), as it may be amended from time to time. 1062963.03/LA 297944-00207/6-1-17/j d/sne -2- 1.1.6 "Chamber" means the Vernon Chamber of Commerce. 1.1.7 "City" means the City of Vernon, a California chartered City and municipal corporation. 1.1.8 "City Council" means the City Council of the City. 1.1.9 "Commencement Date" shall have the meaning set forth at Section 2.6.1. 1.1.10 "County Recorder" means the Los Angeles County Registrar -Recorder / County Clerk. 1.1.11 "Developer" means any party holding the exclusive leasehold, license or easement interest in the Development. If there is no party holding an exclusive leasehold, license or easement interest in the Development, the Developer shall be the Owner. The current Developer is Magellan, and its successors and assigns. 1.1.12 "Development" means the design and installation of the New Static Billboard on the Site. 1.1.13 "Development Approval" means approval of this Agreement and all necessary variances or code amendments related thereto, collectively, by any and all applicable governmental agencies, including the City, and as applicable, Caltrans. 1.1.14 "Development Fee" shall have the meaning set forth at Section 2.5. 1.1.15 "Director of Public Works" shall mean the City's Director of Public Works (whether interim or permanent) or his/her designee. 1.1.16 "Effective Date" means the date inserted into the preamble of this Agreement, which is thirty (30) days following Development Approval #3. 1.1.17 "Final Permits" means any and all required permits to maintain and operate the New Static Billboard as contemplated in Section 3.3 (including, without limitation, all utilities required by the New Static Billboard), which such permits have been "finaled" by the applicable inspectors. 1.1.18 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of the City, including, but not limited to, the City's General Plan and VMC, including, but not limited to, the Zoning Code [VMC, Ch. 26], which govern development and use of the Site, including, without limitation, the permitted use of the Site, the density or intensity of use, subdivision requirements, the maximum height and size of the New Billboards and the design, improvement and construction standards and specifications applicable to the Development or the Site which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement. Land Use Regulations shall also include the federal National Pollutant Discharge Elimination System ("NPDES") regulations and approvals from the California Department of Transportation Outdoor Advertising Division, to the extent applicable. 1062963.03/LA 297944-00207/6-1-17/j d/sne -3 - 1.1.19 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security device, a lender or each of their respective successors and assigns. 1.1.20 "Operator" means the person or entity who operates the New Static Billboard, contracts directly with advertisers, and collects revenues directly from advertisers. The Owner or Developer may be the Operator. 1.1.21 "Owner" means the party holding the fee interest in the Site. The current Owner is Magellan, and its successors and assigns. 1.1.22 "Party" means Owner, Developer or City. 1.1.23 "Parties" means, collectively, Owner, Developer and City. 1.1.24 "Site" shall have the meaning provided in Recital B. 1.1.25 "Schedule of Performance" means the Schedule of Performance attached hereto as Exhibit "D" and incorporated herein. 1.1.26 "Scope of Development" means the Scope of Development attached hereto as Exhibit "B" and incorporated herein. 1.1.27 "Subsequent Land Use Regulations" means any Land Use Regulations effective after the Effective Date of this Agreement (whether adopted prior to or after the Effective Date of this Agreement) which govern development and use of the Site. 1.1.28 "Subsequent Development Approvals" means any approval sought by Developer in connection with future changes desired to be made by Developer to the Development following its initial completion. 1.1.29 "Term" shall have the meaning provided in Section 2.3, unless earlier terminated as provided in this Agreement. 1.1.30 "VMC" shall mean the Vernon Municipal Code, as such shall be amended from time to time. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit "A" (Legal Description of Site), Exhibit "B" (Scope of Development), Exhibit "C" (Site Plan and Elevations), Exhibit "D" (Schedule of Performance), and Exhibit "E" (City's Equal Employment Opportunity Practice Provisions). 2. GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Developer with respect to the Development, including actions by the City on applications for Subsequent Development Approvals affecting the Site, shall be subject to the terms and provisions of this Agreement; provided, however, that nothing in this Agreement shall be deemed or construed: (i) to bind or restrict Developer with respect to its ownership or operation of the Development, except as expressly set forth in this Agreement, or (ii) to impose any 1062963.03/LA 297944-00207/6-1-17/jd/sne -4- obligation whatsoever on Owner with respect to the Development, except as expressly set forth in this Agreement. 2.2 Interest in Site. The City and Developer acknowledge and agree that Developer has a legal and/or equitable interest in the Site, and thus is qualified to enter into and be a party to this Agreement under the Development Agreement Law. 2.3 Term of Agreement and Renewal. Unless terminated earlier as provided in this Agreement, this Agreement shall continue in full force and effect from the Effective Date until the earlier of: (i) thirty (30) years from the Effective Date; or (ii) when the New Static Billboard is permanently removed (other than removal for repair or replacement) (the "Term"). At least thirty (30) days prior to the end of the Term, the Parties shall come to agreement on whether this Agreement is to be renewed for an additional term of years to be determined or is to expire by its own terms. If the Parties agree to renew this Agreement, the Parties shall execute a written amendment to this Agreement ("Amendment"), which shall be approved by the City Council. If the Parties have agreed to enter into the Amendment prior to the expiration of the Term, then the Term shall automatically be extended to the day prior to the effective date of the Amendment. If this Agreement expires on its own terms or is otherwise terminated earlier pursuant to Section 5 of this Agreement, then within thirty (30) days after the termination of this Agreement, the Developer and the City shall execute a written cancellation of this Agreement which shall be recorded with the County Recorder pursuant to Section 8.1 below. If no Amendment is agreed to following termination of the Agreement (but by no later than the recording of the written cancellation of the Agreement), the New Static Billboard shall be removed at Developer's sole cost and expense. 2.4 Processing Fee. Upon submission of its application for the approvals granted by this Agreement, Developer has paid to the City a processing fee ("Processing Fee") in the amount of Five Thousand Dollars ($5,000) for the New Static Billboard. The City shall retain and use the Processing Fee, or any part thereof, for any public purpose within the City's discretion. The Processing Fee shall be separate from all fees which are standard and uniformly applied to similar projects in the City, including, but not limited to, business license fees (due by Developer to the City annually), one-time plan check fees and building permit fees, and any other fees imposed by Los Angeles County, as may be applicable. 2.5 Development Fee. The potential impacts of the Development on the City and surrounding community are difficult to identify and calculate. Developer and the City agree that an annual development fee paid by Developer to the City would adequately mitigate all such potential impacts. The Parties therefore agree that Developer shall pay an annual development fee to the City, subject to the obligation to pay the Alternative Fee per Section 2.6.2 below. The development fee shall be Twelve Thousand Five Hundred Dollars ($12,500) per calendar year of the Term for the New Static Billboard (the "Development Fee"). The Development Fee shall be increased every three (3) years (each, an "Adjustment Period") in proportion to the adjustment over the same time to the U.S. all items Consumer Price Index for All Urban Consumers (CPI-U) for the Los Angeles -Orange -Riverside area, base period 1982-1984, based upon the most recent month of publicly available CPI data available as of January 31 of the year of such increase; provided, however, that any CPI Increase shall not exceed six percent (6%) of the Development Fee per Adjustment Period (each, a "CPI Increase"). For the avoidance of doubt, should the Parties inadvertently fail to apply a CPI Increase at the end of any given Adjustment Period, such shall 1062963.03/LA 297944-00207/6-1 -17/j d/sne -$- not be deemed a waiver of that particular CPI Increase, but rather, shall be added to any subsequent CPI Increase(s). Notwithstanding the foregoing, if the face of the New Static Billboard is removed (other than removal for repair or replacement) or destroyed (in its entirety), Developer shall not be required to pay the Development Fee otherwise payable by Developer for the New Static Billboard. If the face of the New Static Billboard is permanently reduced, Developer shall be required to pay the greater of the Development Fee, less the percentage of the Development Fee correlative to the percentage reduction in the size of the face of the New Static Billboard, and the Alternative Fee. 2.6 Development Fee Payments. 2.6.1 Development Fee: The Development Fee for the prior calendar year shall be due and payable no later than March 31 of the following calendar year, with the first installment prorated and due no later than the first March 31 after the initial calendar year Developer receives the Development Approval for the New Billboards from the applicable governmental authorities and the Final Permits. Developer shall provide notice to the City within five (5) business days of its receipt of all Final Permits. The initial Development Fee (or Alternative Fee per Section 2.6.2) shall be calculated from the day the City receives such notice (the "Commencement Date"). Nothing herein relieves the City from its contractual duty to issue all municipal building permits that are associated with the Development if Developer is in compliance with the terms of this Agreement. 2.6.2 Alternative Fee: For any calendar year of the Term where the Alternative Fee, as defined in this Section 2.6.2, exceeds the Development Fee described at Section 2.6.1 above for the New Static Billboard, Developer shall pay to the City the Alternative Fee, which is defined as an amount equal to eight percent (8%) of the gross advertising revenue from the New Static Billboard during the preceding calendar year of the Term (the "Alternative Fee"). If the Development Fee is greater than the Alternative Fee for any calendar year, then the Developer shall pay to the City the Development Fee. Within ninety (90) days following the end of each calendar year of the Term hereof, and ending within ninety (90) days after the end of the Term or earlier termination of the Agreement, Developer shall furnish to the City a statement in writing, certified by Developer (and/or Operator, as applicable) to be correct, showing the total gross advertising revenues made from the New Static Billboard during the preceding calendar year of the Term. Gross advertising revenue shall specifically exclude advertising agency fees paid to the advertiser's advertising agency and/or brokerage fees paid to the sales brokers other than Developer and/or Operator. Furthermore, the gross advertising revenue is based solely on the basic advertising size, as recorded on the City's building permits, and does not include free -form cut- outs, solid extensions, back -lit displays, 3D presentations, tri-vision, stretch faces, additional art work reproductions or any other special treatment or appurtenances as required by the advertiser. 2.7 Audit of Alternative Fee. With prior written notice to Developer of not less than ten (10) business days, the City shall have the right to audit gross advertising revenue for the New Static Billboard and to view those portions of any advertising space contracts or invoices that relate to the New Static Billboard, at Developer's (and/or Operator's, as applicable) office, on normal workdays between 9:00 a.m. and 4:00 p.m. once a year. Prior to the audit, the City shall, at Developer's (and/or Operator's, as applicable) request, sign a confidentiality agreement regarding the advertising space contracts and invoices. If the statement of total gross advertising revenue previously provided to the City is found by the City to be inaccurate for the prior calendar year of the Term, then, and in that event, there shall be an adjustment and within ten (10) business days 1062963.03/LA 297944-00207/6-1-17/j d/sne -6- upon receiving written demand, one party shall pay to the other such sums as may be necessary to settle in full the accurate underpayment or overpayment of the Alternative Fee, if any, that should have been paid for the period covered by such inaccurate statement. If said audit discloses an underpayment of greater than five percent (5%) with respect to the amount of total gross advertising revenue reported for the period of said report, then Developer (and/or Operator, as applicable) shall immediately pay to the City the cost of such audit, plus ten percent (10%) interest per annum on the amount underpaid from the date of submission of the Development Fee or the Alternative Fee, as applicable. If the audit does not disclose an underpayment of greater than five percent (5%) with respect to the amount of total gross advertising revenue reported for the period of said report, the cost of such audit shall be paid by the City and no interest payment is due thereon. 2.8 Acknowledgment by Operator. In the event Developer enters into a contract or lease agreement with an Operator to operate the New Static Billboard, such contract or lease agreement shall provide for Operator's acknowledgment of and consent to be bound by this Agreement, including but not limited to Sections 2.6, 2.7, 2.9, 2.10, and 4.2. Upon execution of such a contract or lease agreement, Developer shall deliver a copy to the City for its records. 2.9 Prohibited Use. Developer shall not utilize the New Static Billboard to advertise tobacco, marijuana, hashish, any adult or sexually oriented businesses as defined in VMC Section 5.81.2, any products or services thereof, or show sexually oriented images or language, or as may be prohibited by any City ordinance existing as of the Effective Date of this Agreement. 2.10 City Discount. Businesses that are members of the Chamber and the Chamber itself shall be entitled to a 10% discount (from the "rate card" rates) for advertising on the New Static Billboard. 3. DEVELOPMENT AND IMPLEMENTATION OF THE DEVELOPMENT. 3.1 Rights to Develop. Subject to and during the Term of this Agreement, Owner and Developer shall have the right to develop the Site in accordance with, and to the extent of, the Development Approval, the Land Use Regulations and this Agreement, provided that nothing in this Agreement shall be deemed to modify or amend any of the pre-existing Land Use Regulations, as more particularly set forth in Section 3.2 below. 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, the rules, regulations and official policies governing the density and intensity of use of the New Static Billboard on the Site, the maximum height and size of the New Static Billboard on the Site, and the design, improvement and construction standards and specifications applicable to the New Static Billboard shall be as set forth in the Land Use Regulations which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement. 3.3 Development Approval. Developer, at its own expense and before commencement of demolition, construction or development of the New Static Billboard or other work of improvement upon the Site, shall secure or cause to be secured the Development Approval, a Conditional Use Permit and/or variances, as necessary, and building permit(s), as necessary, from the City, and any and all permits and approvals which may be required by any other 1062963.03/LA 297944-00207/6-1-17/jd/sne -7- governmental agency or utility affected by such construction, development or work to be performed by Developer, including but not limited to Caltrans, pursuant to the Scope of Development. Not by way of limiting the foregoing, in developing and constructing the Development, Developer shall comply with all: (1) applicable development standards in the VMC, (2) applicable NPDES requirements pertaining to the Development, (3) applicable conditions placed on the Development by Caltrans, and (4) applicable building codes, except as may be permitted through approved variances and modifications. Developer shall pay all normal and customary fees and charges applicable to such permits, and the Development Fee or Alternative Fee, as applicable. 3.4 Timing of Development; Scope of Development. Developer shall commence the Development within the time set forth in the Schedule of Performance, attached hereto as Exhibit "D". "Commencement" of the Development is defined herein as commencement of construction or improvements under the City building permit(s) for the construction of the New Static Billboard on the Site, which shall occur as soon as possible following Developer's receipt of the Development Approval and Final Permits. In the event that Developer fails to meet the schedule for Commencement of the Development, then after mutual compliance with Section 4.3, either the City or Developer may terminate this Agreement by delivering written notice to the other party, and, in the event of such termination, neither the City nor Developer shall have any further obligation hereunder. However, if circumstances within the scope of Section 8.11 delay the Commencement or completion of the Development, then such delays shall not constitute grounds for any termination rights found within this Agreement. In such case, the timeline to commence or complete the relevant task shall be extended in the manner set forth at Section 8.11. Notwithstanding the above, Developer shall, at all times, comply with all other obligations set forth in this Agreement regarding the construction or improvement of the New Static Billboard on the Site. Developer shall also maintain the New Static Billboards at all times during the Term in accordance with the maintenance provisions set forth in Section 3 of the Scope of Development, attached as Exhibit `B" herein. 3.5 Changes and Amendments. Developer may determine that changes to the Development Approval are appropriate and desirable. In the event Developer makes such a determination, Developer may apply in writing for an amendment to the Development Approval to effectuate such change(s). The Parties acknowledge that the City shall be permitted to use its inherent land use authority in deciding whether to approve or deny any such amendment request; provided, however, that in exercising the foregoing reasonable discretion, the City shall not apply a standard different than that used in evaluating requests of other similarly situated developers. Accordingly, under no circumstance shall the City be obligated in any manner to approve any amendment to the Development Approval. The City Administrator or his/her designee shall be authorized to approve any non -substantive amendment to the Development Approval without processing an amendment to this Agreement. All other amendments may require the approval of the City Council. Nothing herein shall cause Developer to be in default if it upgrades the New Static Billboard pursuant to this Agreement during the Term of this Agreement to incorporate newer technology; provided, however, Developer shall secure all applicable ministerial permits to do so and such upgrade is consistent with the dimensions and standards for the display, as provided under this Agreement, Land Use Regulations and Subsequent Land Use Regulations and does not involve changing the New Static Billboard into a digital billboard. 1062963.03/LA 297944-00207/6-1 -17/j d/sne -8- 3.6 Reservation of Authority. 3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the Development: (a) Processing fees and charges imposed by the City to cover the estimated actual costs to the City of processing applications for Subsequent Development Approvals relating to the Development. (b) Procedural regulations consistent with this Agreement relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. (c) Changes to the California Building Code, California Fire Code, California Plumbing Code, California Mechanical Code, and California Electrical Code, as adopted by the City as Subsequent Land Use Regulations, if adopted prior to the issuance of a building permit for development of the New Billboards. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. (d) Regulations that are not in conflict with the Development Approval or this Agreement. (e) Regulations that are in conflict with the Development Approval or this Agreement, provided Developer has given written consent to the application of such regulations to the Development. (f) Applicable federal, state, county and multi jurisdictional laws and regulations which the City is required to enforce against the Site or the Development, and that do not have an exception for existing signs or legal nonconforming uses. 3.6.2 Future Discretion of the City. This Agreement shall not prevent the City from denying or conditionally approving any application for a Subsequent Development Approval on the basis of the Land Use Regulations or Subsequent Land Use Regulations then in effect. 3.6.3 Modification or Suspension by Federal, State, County, or Multi - Jurisdictional Law. In the event that applicable federal, state, county or multi jurisdictional laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, and there is no exception for the legal nonconforming use, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such federal, state, county or multi jurisdictional laws or regulations, and this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining 1062963.03/LA 297944-00207/6-1-17/j d/sne -9- provision impractical to enforce. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 3.7 Regulation by Other Public Agencies. It is acknowledged by the Parties that other public agencies not subject to control by the City may possess authority to regulate aspects of the Development as contemplated herein, and this Agreement does not limit the authority of such other public agencies. Developer and Owner acknowledge and represent that, in addition to the Land Use Regulations, Developer and Owner shall, at all times, comply with all applicable federal, state and local laws and regulations applicable to the Development and that do not have an exception for a legal nonconforming use. To the extent such other public agencies preclude development or maintenance of the Development and do not have an exception for a legal nonconforming use, Developer and Owner shall not be further obligated under this Agreement except as provided in Section 4.1. Notwithstanding the foregoing, if such action by another public agency materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, then (a) Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City, or (b) if moving the New Static Billboard to another location on the Site would reduce the impact of such public agency action, Developer or Owner (at their sole cost and expense) may relocate the New Static Billoboard to another location on the Site as reasonably determined by Developer or Owner, and the City shall reasonably cooperate with such relocation of the New Static Billboard (e.g., if Caltrans widens the 710 Freeway in such a manner that necessitates removal/relocation of the New Static Billboard, Developer or Owner can relocate the New Static Billboard on the Site), and if requested by Developer or Owner, the City shall enter into a relocation agreement with the Developer or Owner pursuant to Section 5412 of the California Outdoor Advertising Act. 3.8 Public Improvements. Notwithstanding any provision herein to the contrary, the City shall retain the right to condition any Subsequent Development Approvals on the requirement that Developer pay subsequently required development fees, and/or construct certain subsequently required public infrastructure ("Exactions") at such time as the City shall determine, subject to the following conditions: 3.8.1 The payment or construction must be to alleviate an impact caused by the Development or be of benefit to the Development; and 3.8.2 The timing of the Exaction should be reasonably related to the development of the Development, and said public improvements shall be phased to be commensurate with the logical progression of the development of the Development, as well as the reasonable needs of the public. 3.8.3 It is understood, however, that if there is a material increase in cost to Developer or Owner, or such action by the City otherwise materially impacts Developer or Owner or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 3.9 Fees, Taxes and Assessments. During the Term of this Agreement, the City shall not, without the prior written consent of Developer, impose any additional fees, taxes or 1062963.03/LA 297944-00207/6-1-17/j d/sne -1 �- assessments on all or any portion of the Development, except such fees, taxes and assessments as are described in or required by this Agreement and/or the Development Approval. However, this Agreement shall not prohibit the application of fees, taxes or assessments upon the Site only and not on the New Static Billboard or Developer directly, as follows: 3.9.1 Developer shall be obligated to pay those fees, taxes or City assessments and any increases in same which exist as of the Effective Date or are included in the Development Approval; 3.9.2 Developer shall be obligated to pay any fees or taxes, and increases thereof, imposed on a City-wide basis including, but not limited to, business license fees or taxes or utility taxes; 3.9.3 Developer shall be obligated to pay all fees applicable to a permit application as charged by the City at the time such application is filed by Developer; and 3.9.4 Developer shall be obligated to pay any fees imposed pursuant to any Uniform Code that existed when the permit application is filed by Developer or that exists when Developer applies for any Subsequent Development Approval. 3.10 Changes. Notwithstanding anything to the contrary herein, if there is a change in such fees as compared to those fees in effect as of the Effective Date, or if any additional fees are charged and such additional or increased fees materially change Developer or Owner's costs or otherwise materially impact their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 4. REVIEW FOR COMPLIANCE. 4.1 Annual Review. The City Council shall have the right to review this Agreement annually at the City's sole cost, on or before the anniversary of the commencement of the Term, to ascertain the good faith compliance by Developer with the terms of this Agreement ("Annual Review"). However, no failure on the part of the City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement or serve as a waiver of the City's right to conduct an Annual Review in a year subsequent to a year in which an Annual Review was not conducted. Developer shall cooperate with the City in the conduct of any such Annual Review and, upon written request, provide the following information and documentation to the City at least thirty (30) days before the anniversary of the commencement of the Term: (a) any updates to Developer's contact information related to complaints concerning the New Static Billboard, as required in the conditions at Exhibit "B", Section 6 herein, (b) status and amount of all payment obligations to the City required under this Agreement for the year in question and cumulatively beginning from the commencement of the Term, (c) any easement changes that could in any way materially impact the City or Developer's obligations under this Agreement, (d) any utility changes that could in any way materially impact the City or Developer's obligations under this Agreement, and (e) any maintenance issues addressed or needing to be addressed per the requirements of Exhibit "B". 4.2 City's Rights of Physical Access. The City and its officers, employees, agents and contractors shall have the right, at their sole risk and expense and upon reasonable notice to 1062963.03/LA 297944-00207/6-1-17/jd/sne -1 1- Developer, to enter the Site without interfering with any railroad or other right-of-way, and at all reasonable times with as little interference as possible, for the purpose of inspecting the New Static Billboard. Such inspection must be conducted from a lift operated by Developer, its employees, agents, or contractors, at no additional cost to Developer. Any damage or injury to the Site or to the improvements constructed thereon resulting from such entry shall be promptly repaired at the sole expense of the City. 4.3 Procedure. Each Party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with this Agreement, to explain the basis for such assertion, and to receive from the other Party a justification of its position on such matters. If, on the basis of the Parties' review of any terms of this Agreement, either Party concludes that the other Party has not complied in good faith with the terms of this Agreement, then such Party may serve a written "Notice of Non -Compliance" specifying the grounds therefor and all facts demonstrating such non-compliance. The Party receiving a Notice of Non -Compliance shall have thirty (30) days to cure or remedy the non-compliance identified in the Notice of Non -Compliance, but if such cure or remedy is not reasonably capable of being cured or remedied within such thirty (30)-day period, then the Party receiving a Notice of Non -Compliance shall commence to cure or remedy the non-compliance within such thirty (30)-day period and thereafter diligently and in good faith prosecute such cure or remedy to completion. If the Party receiving the Notice of Non - Compliance does not believe it is out of compliance and contests the Notice of Non -Compliance, it shall do so by responding in writing to said Notice of Non -Compliance within thirty (30) days after receipt of the Notice of Non -Compliance. If the response to the Notice of Non -Compliance has not been received in the office of the Party alleging the non-compliance within the prescribed time period, the Notice of Non -Compliance shall be conclusively presumed to be valid. If a Notice of Non -Compliance is contested, the Parties shall, for a period of not less than fifteen (15) days following receipt of the response, seek to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice of Non -Compliance. In the event that a cure or remedy is not timely completed, the Party alleging the non-compliance may thereupon pursue the remedies provided in Section 5; provided, however, that if the Notice of Non -Compliance is contested and the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15)-day period, then either Party shall have the right to seek a judicial determination of such contested matter. Neither Party hereto shall be deemed in breach if the reason for non-compliance is due to "force majeure" as defined in, and subject to the provisions of, Section 8.11. 4.4 Certificate of Agreement Compliance. If, at the conclusion of an Annual Review, Developer is found to be in compliance with this Agreement, the City shall, upon request by Developer, issue within ten (10) days of receipt of the request, a written confirmation ("Certificate") to Developer stating that, after the most recent Annual Review, and based upon the information known or made known to the City Administrator and the City Council, that (a) this Agreement remains in effect, and (b) Developer is in compliance with same. The Certificate shall be in recordable form if requested by Developer, and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer may record the Certificate with the County Recorder. Additionally, in the event a Certificate issues or will issue, Developer may, at any time, request from the City a Certificate stating, in addition to the foregoing, which specific obligations under this Agreement have been fully satisfied with respect to the Site, and City shall respond within ten (10) days of receipt of the request. If the City fails to respond to 1062963.03/LA 297944-00207/6-1-17/jd/sne -12- Developer's request pursuant to this Section 4.4, Developer shall be deemed to be in compliance with this Agreement or any obligation that is the subject of Developer's request. 5. DEFAULT AND REMEDIES. 5.1 Termination of Agreement. 5.1.1 Termination of Agreement for Material Default of Developer. The City, in its discretion, may terminate this Agreement for any material failure of Developer to perform any material duty or obligation of Developer hereunder or to comply in good faith with the terms of this Agreement; provided, however, the City may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 4.3. In the event of a termination by the City under this Section 5.1.1, Developer acknowledges and agrees that the City may retain all fees accrued up to the date of the termination, including the Processing Fee and any Development Fees or Alternative Fees, as applicable, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee or Alternative Fee, as applicable, within sixty (60) days after the date of termination that equates to the percentage of time elapsed in the year of the Term at the time of termination. 5.1.2 Termination of Agreement for Material Default of the City. Developer, in its discretion, may terminate this Agreement for any material failure of the City to perform any material duty or obligation of the City hereunder or to comply in good faith with the terms of this Agreement; provided, however, Developer may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 4.3. In addition, Developer may terminate this Agreement if, despite Developer's good faith efforts, (a) it is unable to secure the Development Approval, Final Permits and/or compliance with requirements under laws necessary to effectuate the Development, or (b) any governmental agency has concluded a taking or regulatory taking of the Site and/or the Development, or (c) it is unable to profitably operate the Development after two (2) full years from the Commencement Date. In the event of a termination by Developer under this Section 5.1.2, Developer acknowledges and agrees that the City may retain all fees, including the Processing Fee and any Development Fees or Alternative Fees, as applicable, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee or Alternative Fee, as applicable, within sixty (60) days after the date of termination that equates to the percentage of time elapsed in the year of the Term at the time of termination. 5.1.3 Rights and Duties Following Termination. Upon the termination of this Agreement, no Party shall have any further right or obligation hereunder except with respect to (a) any obligations to have been performed prior to said termination, (b) any default in the performance of the provisions of this Agreement which has occurred prior to said termination, (c) Developer's obligation to remove the New Static Billboard pursuant to Section 2.3, or (d) any continuing obligations to indemnify the other Party. 1062963.03/LA 297944-00207/6-1-17/jd/sne -13- 6. INSURANCE, INDEMNIFICATION AND WAIVERS. 6.1 Insurance. 6.1.1 Types of Insurance. (a) Liability Insurance. Beginning on the Effective Date hereof and until completion of the Term, Developer shall, at its sole cost and expense, keep or cause to be kept in force for Developer comprehensive broad form general liability insurance against claims and liabilities covered by the indemnification provisions of Section 6.2. Developer has agreed to indemnify the City to the extent of the liability insurance coverage with respect to its use, occupancy, or improvements, or for property damage, providing protection of at least One Million Dollars ($1,000,000) for bodily injury or death to any one person, at least Two Million Dollars ($2,000,000) for any one accident or occurrence, and at least One Million Dollars ($1,000,000) for property damage. Developer shall also furnish or cause to be furnished to the City evidence that any contractors with whom Developer has contracted for the performance of any work for which Developer is responsible maintains the same coverage required of Developer. (b) Worker's Compensation. Developer shall also furnish or cause to be furnished to the City evidence that any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries worker's compensation insurance as required by law. (c) Insurance Policy Form, Sufficiency, Content and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies qualified to do business in California with an AM Best Rating of no less than "A". All such policies shall be non -assignable and shall contain language, to the extent obtainable, to the effect that (i) the insurer waives the right of subrogation against the City and against the City's agents and representatives except as provided in this Section; (ii) the policies are primary and noncontributing with any insurance that may be carried by the City, but only with respect to the liabilities assumed by Developer under this Agreement; and (iii) the policies cannot be canceled or materially changed except after written notice by the insurer to the City as expeditiously as the insurance company agrees to provide such notice. Developer shall furnish the City with certificates evidencing the insurance required to be procured by the terms of this Agreement. 6.1.2 Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to the City, in the manner required for notices, copies of certificates of all insurance policies required of each policy within the following time limits: (a) For insurance required above, within ten (10) business days after the Effective Date or consistent with the requirements of Exhibit "D" (Schedule of Performance), Item No. 7. (b) The City may request to see updated copies of the current certificates of all insurance policies required. The City reserves the right to obtain copies of the entire insurance policy, including endorsements. 1062963.03/LA 297944-00207/6-1-17/j d/sne -14- If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish the City with required proof that the insurance has been procured and is in force and paid for, the City, after complying with the requirements of Section 4.3, may view such failure or refusal to be a default hereunder. 6.2 Indemnification. 6.2.1 General. To the extent of its liability coverage required under Section 6.1.1(a) above, Developer shall indemnify the City and Owner, and their respective City Councilmembers, commission members, directors, officers, employees, and agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein "Claims or Liabilities") that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the work, operations, or activities of Developer, its agents, employees, subcontractors, or invitees, hereunder, upon the Site relating to the Development; provided, however, such indemnification obligation shall not be applicable to (a) the mere discovery of any pre-existing adverse physical condition at the Site, except to the extent Developer aggravates such pre-existing condition, or (ii) any Claims or Liabilities arising as a result of the gross negligent or intentional misconduct of City or Owner or their respective City Councilmembers, commission members, directors, officers, employees or agents. (a) Subject to Developer's written approval, Developer will defend any action or actions filed against the City or Owner in connection with any of said Claims or Liabilities covered by the indemnification provisions herein and will pay all costs and expenses, including reasonable legal costs and attorneys' fees incurred in connection therewith, which attorneys will be the attorneys hired by the insurance company where insurance coverage applies. (b) Developer will promptly pay any final non -appealable judgment rendered against the City or Owner, or their respective City Councilmembers, commission members, directors, officers, agents, or employees for any such Claims or Liabilities arising out of or in connection with such work, operations, or activities of Developer upon the Site, and Developer agrees to save and hold the City and Owner and their respective City Councilmembers, commission members, directors, officers, agents, and employees harmless therefrom. (c) Notwithstanding anything herein to the contrary, City shall indemnify Developer and Owner, and their respective directors, officers, employees, and agents against, and will hold and save them and each of them harmless from any Claims or Liabilities that may be asserted by a City employee or agent arising out of or in connection with such City employee's or agent's entrance onto the Site (including, without limitation, for any inspection of the New Static Billboard); provided, however, such indemnification obligation shall not be applicable to any Claims or Liabilities arising as a result of the gross negligent or intentional misconduct of Developer or Owner or their respective directors, officers, employees or agents. 6.2.2 Loss and Damage. Except as set forth below, the City shall not be liable for any damage to property of Developer, Owner or of others located on the Site, nor for the loss of or damage to any property of Developer, Owner or others by theft or otherwise. Except as set forth below, the City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the 1062963.03/LA 297944-00207/6-1-17/jd/sne -1 5- Site or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Site, or by any other cause of whatsoever nature. The foregoing two (2) sentences shall not apply (i) to the extent the City or its agents, employees, subcontractors, invitees or representatives causes such injury or damage when accessing the Site, or (ii) under the circumstances set forth in Section 6.2.1 above. 6.2.3 Period of Indemnification. The obligations for indemnity under this Section 6.2 shall begin upon the Effective Date and shall survive termination of this Agreement. 6.3 Waiver of Subrogation. Developer, Owner and the City mutually agree that neither shall make any claim against, nor seek to recover from the other or its agents, servants, or employees, for any loss or damage to Developer, Owner or the City, except as specifically provided hereunder, which include but is not limited to a Claim or Liability to the extent arising from the negligence or willful misconduct of the City, Owner or Developer, as the case may be, or their respective officers, agents, or employees who are directly responsible to the City, Owner and Developer, as the case may be. 7. MORTGAGEE PROTECTION. The Parties hereto agree that this Agreement shall not prevent or limit Developer or Owner, in any manner, at Developer or Owner's sole discretion, from encumbering the Site or any portion thereof or the Development or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Site. The City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and the City agrees upon request, from time to time, to meet with Developer or Owner and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. Subject to compliance with applicable laws, the City will not unreasonably withhold its consent to any such requested interpretation or modification, provided the City determines such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Site shall be entitled to the following rights and privileges: (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Development or Site made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Development or Site, or any part thereof, which Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from the City of any default by Developer in the performance of Developer's obligations under this Agreement. (c) If the City timely receives a request from a Mortgagee requesting a copy of any Notice of Non -Compliance given to Developer under the terms of this Agreement, the City shall make a good faith effort to provide a copy of that Notice of Non -Compliance to the Mortgagee within ten (10) business days of sending the Notice of Non -Compliance to Developer. The Mortgagee shall have the right, but not the obligation, to cure the non-compliance during the period 1062963.03/LA 297944-00207/6-1-17/jd/sne -1 6- that is the longer of (i) the remaining cure period allowed such party under this Agreement, or (ii) sixty (60) days. (d) Any Mortgagee who comes into possession of the Development or the Site, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Development or the Site, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance; except that (i) to the extent that any covenant to be performed by Developer is a condition precedent to the performance of a covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Development or the Site acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such Mortgagee shall strictly comply with all of the terms, conditions and requirements of this Agreement and the Development Approvals applicable to the Development or the Site or such part thereof so acquired by the Mortgagee. 8. MISCELLANEOUS PROVISIONS. 8.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within ten (10) days of execution, as required by Government Code Section 65868.5. Amendments approved by the Parties, and any cancellation, shall be similarly recorded. The provisions of this Agreement to the extent permitted by law shall constitute covenants which shall run with the Land, and the benefits of this Development Agreement shall bind and inure to the benefit of the parties and all successors in interest to the parties hereto. 8.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 8.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable. 8.4 Assignment. Developer and/or Owner shall have the sole and absolute right to assign any of its rights, title and interest, and delegate any of its duties and obligations, under this Agreement. In the event of any such assignment or delegation, Developer and/or Owner shall provide written notice to the City within ten (10) days of execution of such assignment or delegation. 8.5 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California, without regard to its conflict of laws principles. This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the 1062963.03/LA 297944-00207/6-1-17/j d/sne -1 %- parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting Party or in favor of the non -drafting Party, shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 8.6 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 8.7 Singular and Plural. As used herein, the singular of any word includes the plural and vice versa. 8.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 8.9 Waiver. Failure of a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 8.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the Parties and their respective successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 8.11 Force Majeure. Notwithstanding any provision to the contrary herein, neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations (other than obligations to make payments when due) under this Agreement is caused by an event or circumstance that could not reasonably have been foreseen or avoided, mitigated or remedied, and is beyond the Party's reasonable control. Examples of Force Majeure include: acts of God, earthquakes, fires, rains, winds, wars, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control (including the Party's employment force), government actions and regulations (other than those of the City), and court actions (such as restraining orders or injunctions). Force Majeure shall not include general economic or other conditions affecting financial markets generally. If any such events shall occur during the term of this Agreement, the Party claiming Force Majeure (the "Nonperforming Party") shall promptly notify the other Party (the "Performing Party") of occurrence of that Force Majeure Event, its effect on performance, and how long that Party expects it to last. Thereafter, the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure event, the Nonperforming Party shall use reasonable efforts to limit damages to the Performing Party and to resume its performance under this Agreement. the time for performance shall be extended for the duration of each such event or circumstance, provided that the Term of this Agreement shall not be extended under any circumstances for more than five (5) years beyond the date it would have otherwise expired, and further provided that if such delay is longer than six (6) months, Developer may terminate this Agreement upon written notice to the City and the City shall return to Developer any portion of the Development Fees or Alternative Fees, as applicable, paid for any period after the effective date of such termination. 1062963.03/LA 297 944-00207/6-1 -17/j d/sne -18- 8.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 8.13 Counterparts and Originals. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. There shall be two (2) fully signed copies of this Agreement, each of which shall be deemed an original. 8.14 Litigation. Any action at law or in equity arising under this Agreement or brought by any Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Los Angeles, State of California, or such other appropriate court in said county. Service of process on the City shall be made in accordance with California law. Service of process on Developer or Owner shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between the City, Owner or Developer seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys' fees. 8.15 Covenant Not To Sue. The Parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other Party to this Agreement, in law or in equity, which is based on an allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable. 8.16 Development as a Private Undertaking. It is specifically understood and agreed by and between the Parties that the Development is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and Developer is that of a government entity regulating the development of private property, on the one hand, and the holder of a legal or equitable interest in such private property on the other hand. The City agrees that by its approval of, and entering into, this Agreement, that it is not taking any action which would transform this private development into a "public work" development, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer's private development into a public work project, it being understood that this Agreement is entered into by the City and Developer upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement, which are incorporated into this Agreement and made a part hereof, and that the City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Developer by this Agreement. 8.17 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. 1062963 03/LA 297944-00207/6-1-17/jd/sne -1 9- Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 8.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by the City of its power of eminent domain or Developer or Owner's rights to seek and collect just compensation or any other remedy available to them. 8.19 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of the Parties specifically approving the amendment and in accordance with the Government Code provisions for the amendment of development agreements, as well as with VMC section 26.6.8-7. The Parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non -material modifications may be approved on behalf of the City by the City Administrator upon reasonable approval by the City Attorney and without approval by the City Council 8.20 Corporate Authority. The person(s) executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such Party is bound. 8.21 Notices. All notices under this Agreement shall be effective when delivered by (a) United States Postal Service mail, registered or certified, postage prepaid return receipt requested, or (b) a generally recognized overnight carrier regularly providing proof of delivery, and addressed to the respective Parties as set forth below, or to such other address as either Party may from time to time designate in writing by providing notice to the other party: If to the City: City of Vernon 4305 Santa Fe Ave. Vernon, CA 90058 Attn: Carlos Fandino, City Administrator If to Developer: Magellan Atlantic 1, LLC 1800 Ave of the Stars, #105 Los Angeles, CA 90067 Attn: Martin Slusser If to Owner: Magellan Atlantic 1, LLC 1800 Ave of the Stars, #105 Los Angeles, CA 90067 Attn: Martin Slusser 1062963.03/LA 297944-00207/6-1-17/jd/sne -20- 8.22 Nonliability of Individuals. No officer, official, member, employee, agent, or representatives of the City, Owner or Developer shall be personally liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative. 8.23 No Brokers. The City and Developer each represent and warrant to the other that it has not employed any broker and/or finder to represent its interest in this transaction. Each Party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorneys' fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder's fee in connection with this Agreement or arising out of agreements by the indemnifying party to pay any commission or finder's fee. 8.24 No Conflict. Owner and Developer hereby represent, warrant and certify that no member, officer or employee of either is a director, officer or employee of the City, or a member of any of the City's boards, commissions or committees, except to the extent permitted by law. 8.25 Equal Employment Opportunity. Owner and Developer hereby certify and represent that, during the Term of this Agreement, they and any other parties with whom they may subcontract, shall adhere to equal employment opportunity practices to assure that applicants, employees and recipients of service are treated equally and are not discriminated against because of their race, religion, color, national origin, ancestry, disability, sex, age, medical condition, sexual orientation or marital status. Owner and Developer further agree to comply with The Equal Employment Opportunity Practices provisions as set forth in Exhibit "E" attached hereto and incorporated herein by reference. 1062963.03/LA 297944-00207/6-1-17/jd/sne -2 1- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. CITY: CITY OF VERNON, a California charter City and California municipal corporation Melissa Ybarra, Mayor ATTEST: Maria E. Ayala, City Clerk APPROVED AS TO FORM: Brian Byun, Deputy City Attorney [Signatures Continue on Following Page] 1062963.03/LA 297944-00207/6-1 -17/j d/sne -22- MAGELLAN: MAGELLAN ATLANTIC I, LLC, a Delaware limited liability company By: GAVI ATLANTIC MEMBER, LLC, a Delaware limited liability company, its Co -managing member By: PRINCIPAL REAL ESTATE INVESTORS, LLC, a Delaware limited liability company, authorized signatory IN IN By: MAGELLAN ATLANTIC PARTNERS I, LLC, a limited liability company, its managing member By: MAGELLAN INDUSTRIAL FUND I, LP, a Delaware limited partnership, its member By: MAGELLAN PARTNERS, LLC a Delaware limited liability company, its general partner By: Kevin Staley Its: member By: Martin Slusser Its: member [end of signatures] 1062963.03/LA 297944-00207/6-1-17/j d/sne -23 - A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) On , 201_, before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public [SEAL] 1062963.03/LA 297944-00207/6-1-17/jd/sne -24 EXHIBIT "A" LEGAL DESCRIPTION OF SITE 1062963.03/ 1,A -25 - 2 97944-00207/5 -3 1 -Mid/sne PARCEL 1: THAT PORTION OF LOT 110 OF RANCHO LAGUNA (SO CALLED) IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED AS EXHIBIT "A" IN CASE NO. B 25296 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAID COUNTY, AND THAT PORTION OF THE RANCHO SAN ANTONIO, AS SHOWN ON MAP RECORDED IN BOOK 1 PAGE 389 OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN THE FOLLOWING DESCRIBED BOUNDARIES: BEGINNING AT THE SOUTHEASTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A LENGTH OF 556.40 FEET AND A BEARING OF NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST IN PARCEL 1 OF DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24, 1957 IN BOOK 53458 PAGE 311, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID COURSE, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, A DISTANCE OF 538.02 FEET TO A POINT ON A CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 450 FEET: THENCE NORTHEASTERLY FROM A TANGENT WHICH BEARS NORTH 53 DEGREES 11 MINUTES 11 SECONDS EAST, ALONG SAID CURVE THROUGH AN ANGLE OF 10 DEGREES 31 MINUTES 39 SECONDS, AN ARC DISTANCE OF 82.68 FEET TO A POINT ON A LINE PARALLEL WITH AND DISTANT 5.00 FEET SOUTHEASTERLY. MEASURED AT RIGHT ANGLES FROM THE SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD; THENCE TANGENT NORTH 63 DEGREES 42 MINUTES 50 SECONDS EAST, ALONG SAID PARALLEL LINE, A DISTANCE OF 274.58 FEET: THENCE NORTH 73 DEGREES 05 MINUTES 20 SECONDS EAST, A DISTANCE OF 85.84 FEET: THENCE NORTH 73 DEGREES 48 MINUTES 34 SECONDS EAST, A DISTANCE OF 115.58 FEET; THENCE NORTH 85 DEGREES 07 MINUTES 44 SECONDS EAST, A DISTANCE OF 196.25 FEET: THENCE EASTERLY AND SOUTHERLY ALONG A TANGENT CURVE CONCAVE SOUTHERLY AND WESTERLY AND HAVING A RADIUS OF 149.50 FEET THROUGH AN ANGLE OF 77 DEGREES 42 MINUTES 51 SECONDS AN ARC DISTANCE OF 202.78 FEET; THENCE TANGENT SOUTH 17 DEGREES 09 MINUTES 25 SECONDS EAST, A DISTANCE OF 174.28 FEET TO A POINT ON A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 698.86 FEET; THENCE SOUTHWESTERLY FROM A TANGENT THAT BEARS SOUTH 53 DEGREES 52 MINUTES 46 SECONDS WEST, ALONG SAID CURVE THROUGH AN ANGLE OF 7 DEGREES 57 MINUTES 22 SECONDS AN ARC DISTANCE OF 97.04 FEET TO THE MOST NORTHERLY CORNER OF THAT STRIP OF LAND DESCRIBED AS PARCEL 7 IN DEED TO THE CHANSLOR-CANFIELD MIDWAY OIL COMPANY, RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS; THENCE TANGENT SOUTH 45 DEGREES 55 MINUTES 24 SECONDS WEST, ALONG THE NORTHWESTERLY LINE OF SAID STRIP OF LAND SO DESCRIBED AS PARCEL 7, A DISTANCE OF 128.36 FEET: THENCE STILL ON SAID LAST MENTIONED NORTHWESTERLY LINE, SOUTHWESTERLY ALONG THE ARC OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 455.34 FEET THROUGH AN ANGLE OF 42 DEGREES 57 MINUTES 44 SECONDS, AN ARC DISTANCE OF 341.43 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM THAT PORTION OF SAID LOT 110 INCLUDED IN THE LAND DESCRIBED IN THE QUITCLAIM DEED RECORDED ON JANUARY 24, 2012 AS INSTRUMENT NO. 20120124062, OF OFFICIAL RECORDS. EXCEPT THEREFROM ALL SUBSURFACE RIGHTS, TITLE AND INTEREST IN AND TO ALL SUBSURFACE MINERAL RIGHTS EXISTING IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT TO ENTER UPON OR USE THE SURFACE OF SAID LAND FOR THE DEVELOPMENT, EXTRACTION AND REMOVAL OF MINERALS THEREUNDER, OR FOR ANY OTHER PURPOSE OR PURPOSES, AS DEED TO CHANSLOR-CANFIELD MIDWAY OIL COMPANY. BY DEED RECORDED IN BOOK 23513 PAGE 240, OFFICIAL RECORDS. PARCEL 2: THOSE PORTIONS OF LOTS 109, 110 AND 115 OF RANCHO LAGUNA (SO CALLED) IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED AS EXHIBIT "A" IN CASE NO. B 25296 OF SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAID COUNTY, AND THAT PORTION OF THE RANCHO SAN ANTONIO, AS SHOWN ON MAP RECORDED IN BOOK 1 PAGE 389 OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN THE FOLLOWING DESCRIBED BOUNDARIES: BEGINNING AT THE NORTHWESTERLY TERMINUS OF THAT CERTAIN CURVE DESCRIBED AS HAVING A RADIUS OF 6577.22 FEET AND AN ARC LENGTH OF 2244.08 FEET IN PARCEL 2 OF DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24, 1957 IN BOOK 53458 PAGE 311, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID CURVE BEING ON THE NORTHEASTERLY LINE OF THE 100 FOOT STRIP OF LAND CONVEYED TO THE CITY OF LOS ANGELES, DEPARTMENT OF WATER AND POWER, BY DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS; THENCE TANGENT TO SAID CURVE, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, ALONG SAID NORTHEASTERLY LINE, A DISTANCE OF 621.63 FEET TO A POINT ON A CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 468.34 FEET; THENCE NORTHEASTERLY FROM A TANGENT WHICH BEARS NORTH 16 DEGREES 19 MINUTES 07 SECONDS WEST, ALONG SAID CURVE THROUGH AN ANGLE OF 73 DEGREES 37 MINUTES 57 SECONDS, AN ARC DISTANCE OF 601.88 FEET; THENCE SOUTH 21 DEGREES 52 MINUTES 38 SECONDS EAST, A DISTANCE OF 268.32 FEET; THENCE SOUTH 27 DEGREES 05 MINUTES 17 SECONDS EAST, A DISTANCE OF 506.74 FEET; THENCE SOUTH 29 DEGREES 50 MINUTES 54 SECONDS EAST, A DISTANCE OF 210.27 FEET; THENCE SOUTH 35 DEGREES 45 MINUTES 42 SECONDS EAST, 269.32 FEET TO A POINT ON SAID NORTHEASTERLY LINE CURVED, HEREINABOVE DESCRIBED AS HAVING A RADIUS OF 6577.22 FEET; DISTANT THEREON 355.22 FEET SOUTHEASTERLY FROM SAID POINT OF BEGINNING; THENCE NORTHWESTERLY ALONG SAID CURVE LINE THROUGH AN ANGLE OF 3 DEGREES 05 MINUTES 40 SECONDS, AN ARC DISTANCE OF 355.22 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM ALL MINERALS, PETROLEUM, GASES AND OTHER HYDROCARBON SUBSTANCES EXISTING IN AND UNDER SAID LAND WITHOUT THE RIGHT TO ENTER UPON OR USE THE SURFACE OF SAID LAND FOR THE EXTRACTION AND REMOVAL OF SUCH SUBSTANCES OR FOR ANY OTHER PURPOSE OR PURPOSES, AS RESERVED IN DEED FROM CHANSLOR-CANFIELD MIDWAY OIL COMPANY, RECORDED ON JULY 18, 1944 IN BOOK 21013 PAGE 131, OFFICIAL RECORDS. PARCEL 3: THAT CERTAIN PORTION OF LOT 110 OF SAID RANCHO LAGUNA AND ALSO A PORTION OF SAID RANCHO SAN ANTONIO, IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING A PARCEL OF LAND, 60 FEET IN WIDTH, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST WESTERLY CORNER OF THAT CERTAIN RAILROAD RIGHT OF WAY DESCRIBED AS PARCEL 7 IN DEED RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE FROM SAID POINT OF BEGINNING, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, ALONG THE NORTHEASTERLY LINE AND ITS NORTHWESTERLY PROLONGATION OF THE 100 FOOT WIDE RIGHT OF WAY OF THE CITY OF LOS ANGELES, AS DESCRIBED IN DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS, 471.47 FEET, MORE OR LESS, TO THE SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD, AS DESCRIBED IN DEED RECORDED IN BOOK 864 PAGE 317, OFFICIAL RECORDS: THENCE NORTHEASTERLY ALONG SAID STREET LINE TO THE MOST WESTERLY CORNER OF THAT CERTAIN PROPERTY DESCRIBED IN DEED TO THE UNITED STATES OF AMERICA, RECORDED IN BOOK 20047 PAGE 238, OFFICIAL RECORDS; THENCE ALONG THE SOUTHWESTERLY LINE OF LAST SAID PROPERTY, SOUTH 54 DEGREES 28 MINUTES 35 SECONDS EAST. TO A POINT IN THE NORTHERLY LINE OF SAID RAILROAD RIGHT OF WAY; THENCE WESTERLY ALONG LAST SAID LINE TO THE POINT OF BEGINNING. EXCEPT THREFROM THAT PORTION OF SAID LOT 110 INCLUDED IN THE LAND DESCRIBED IN THE QUITCLAIM DEED RECORDED ON JANUARY 24, 2012 AS INSTRUMENT NO. 20120124062, OF OFFICIAL RECORDS. EXCEPT ALL OIL, GAS AND OTHER PETROLEUM OR MINERAL SUBSTANCES CONTAINED IN SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE ENTRY FOR THE PURPOSE OF EXTRACTING OR REMOVING SUCH PETROLEUM OR OTHER MINERALS OR FOR ANY PURPOSE IN CONNECTION THEREWITH, AS RESERVED IN THE DEED FROM CHANSLOR-CANFIELD OIL COMPANY, RECORDED IN BOOK 20565 PAGE 1, OFFICIAL RECORDS. PARCEL 4: THAT CERTAIN TRIANGULAR SHAPED PARCEL OF LAND IN SAID RANCHO SAN ANTONIO, IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BOUNDED SOUTHWESTERLY BY THE NORTHEASTERLY LINE OF THE 100 FOOT WIDE RIGHT OF WAY OF THE CITY OF LOS ANGELES, AS DESCRIBED IN DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS, BOUNDED EASTERLY BY THE WESTERLY LINE OF THAT CERTAIN RAILROAD RIGHT OF WAY, 33 FEET IN WIDTH, DESCRIBED IN DEED RECORDED IN BOOK 8118 PAGE 72, OFFICIAL RECORDS, AND BOUNDED NORTHERLY BY THE SOUTHERLY LINE OF THAT CERTAIN RAILROAD RIGHT OF WAY GENERALLY 33 FEET IN WIDTH, DESCRIBED AS PARCEL 7, IN DEED RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS. EXCEPT ALL OIL, GAS AND OTHER PETROLEUM OR MINERAL SUBSTANCES CONTAINED IN SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE ENTRY FOR THE PURPOSE OF EXTRACTING OR REMOVING SUCH PETROLEUM OR OTHER MINERALS OR FOR ANY PURPOSE IN CONNECTION THEREWITH, AS RESERVED IN THE DEED FROM CHANSLOR-CANFIELD OIL COMPANY, RECORDED IN BOOK 20565 PAGE 1, OFFICIAL RECORDS. FXHTRTT R SCOPE OF DEVELOPMENT Developer and the City agree that the Development shall be undertaken in accordance with the terms of the Agreement, which include the following: 1. The Development. Developer shall install the New Static Billboard in accordance with the terns of this Agreement. The New Static Billboard consists of one (1) single sided 14 x 48 foot static display which is oriented toward the 710 Freeway, as depicted in Exhibit "C". If and when Developer elects to improve the Site with one or more pennanent sturctures, during such development Developer shall underground all utilities necessary for the New Static Billboard. The Site shall be maintained in accordance with the conditions at Paragraph 3 below. 2. Building Fees. Developer shall pay all applicable City building fees, as described at Section 2.4 of the Agreement, at the time that a building pen -nit is issued for the installation of the New Static Billboard on the Site. 3. Maintenance and Access. Developer, for itself and its successors and assigns, hereby covenants and agrees to be responsible for the following: (a) Maintenance and repair of the New Static Billboard (where authorized pursuant to the Agreement, and including but not limited to, all related on -site improvements and, if applicable, easements and rights -of -way, at its sole cost and expense), including, without limitation, landscaping, poles, lighting, signs and walls (as they relate to the Development) in good repair, free of graffiti, rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Site, unless those federal, state, and local bodies have an exception for a legal nonconforming use. Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal related to the Development; (ii) the care and replacement of all shrubbery, plantings, and other landscaping or the painted backing in a healthy condition if damaged by the Development; (iii) the ongoing maintenance by Developer of any access road to the New Static Billboard if damaged by the Development and to minimize dust caused by the Development; and (iv) the repair, replacement and repainting of the New Static Billboard's structures and displays as necessary to maintain such billboard in good condition and repair. (b) Maintenance of the New Static Billboard and surrounding portion of the Site in such a manner as to avoid the reasonable determination of a duly authorized official of the City that a public nuisance has been created by the absence of adequate maintenance of the Development such as to be detrimental to the public health, safety or general welfare, or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within three hundred (300) feet of the Site. (c) Developer shall reasonably coordinate with Owner or any neighboring property owners who share utilities or access roads to their separate respective billboards. The City may designate alternative access for planning purposes so long as such alternative access allows Developer to access the New Static Billboard and related utilities. 1062963.03/LA 297944-00207/5-31-17/jd/sne -2 6 - 4. Other Rights of the City. In the event of any violation or threatened violation of any of the provisions of this Exhibit "B", then in addition to, but not in lieu of, any of the rights or remedies the City may have to enforce the provisions of the Agreement, the City shall have the right, after complying with Section 4.3 of the Agreement, (i) to enforce the provisions hereof by undertaking any maintenance or repairs required by Developer under Paragraph 3 above (subject to the execution of a permit to enter in form reasonably acceptable to Owner) and charging Developer for any actual maintenance costs incurred in performing same, and (ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Development or any part thereof or interests therein as to the violating Party or one threatening violation. 5. No City Liability_. The granting of a right of enforcement to the City does not create a mandatory duty on the part of the City to enforce any provision of the Agreement. The failure of the City to enforce the Agreement shall not give rise to a cause of action on the part of any person. No officer or employee of the City shall be personally liable to Developer, its successors, transferees or assigns, for any default or breach by the City under the Agreement. 6. Conditions of Approval. The following additional conditions shall apply to the installation of the New Static Billboard and, where stated, landscaping adjacent to the New Static Billboard, which billboard and landscaping or painted backing adjacent to the billboard, respectively, shall conform to all applicable provisions of the Development Approval and the following conditions, in a manner subject to the approval of the Director of Public Works or his or her designee: (a) A building per-init(s) will be required, and structural calculations shall be prepared by a licensed civil engineer and approved by the Director of Public Works or his or her designee. (b) The New Static Billboard shall be located in the portion of the Site shown on Exhibit "C", and shall be of the dimensions described in Section 1, above. (c) The New Static Billboard pole(s) shall have a column cover as depicted in the Site Plan and Elevations within Exhibit "C". In addition, the poles of the New Static Billboard will bear the name and/or logo of the City in a reasonable size and location on the pole(s). The Developer and the City shall work cooperatively with respect to the reasonable design on the poles with the City to have ultimate approval authority. (d) Plans and specifications for the proposed installation of the New Static Billboard shall be submitted to the City for plan check and approval prior to the issuance of building permits. Plans and specifications for the proposed installation of the undergrounding of all utilities shall be submitted to the City for plan check and approval prior to the issuance of electrical permits. (e) Prior to the approval of the final inspection, all applicable conditions of approval and all mandatory improvements shall be completed to the reasonable satisfaction of the City. 1062963.03/L.A _� 297944-00207/5-31-17Jd/sne (f) Developer shall maintain the New Static Billboard and use thereof in full compliance with all applicable codes, standards, policies and regulations imposed by the City, county, state or federal agencies by any duly and valid City, county or state ordinance with jurisdiction over the facilities, unless the Development is exempted as a legal nonconfonning use. (g) Developer shall, at all times, comply with the approval for the New Static Billboard from the California Department of Transportation Outdoor Advertising Division, and shall maintain acceptable clearance between proposed billboards and Southern California Edison distribution lines. (h) Developer shall pay any and all applicable fees due to any public agency prior to the final issuance of the applicable building or electrical permits. (i) The activities proposed in the Agreement shall be conducted completely upon the Site and shall not use or encroach on any public right-of-way. 0) Developer shall ensure that all access to the New Static Billboard is kept restricted to the general public to the extent pennitted under local laws and by the Development Approval. (k) If any portion of the painted backing installed adjacent to the New Static Billboard is damaged by the Development or becomes damaged, as determined by the City's Director of Public Works or his or her designee, Developer shall repair, or cause to be repaired, such damage within thirty (30) days of written notification by the City, unless such time is extended by the City's Director of Public Works or his or her designee if Developer shows unusual circumstances requiring more time to accomplish such repair. (1) Developer shall coordinate its work with the requirements of the City's Gas & Electric Department to achieve the undergrounding of all utilities, as applicable. (m) Developer shall comply with all necessary federal National Pollutant Discharge Elimination System ("NPDES") requirements pertaining to the proposed use, to the extent applicable. (n) All graffiti shall be adequately and completely removed or painted over within 48 hours of notice to Developer of such graffiti being affixed on the Development. (o) Prior to final sign off of the building permit for the New Static Billboard, the applicable landscaping or painted backing shall be installed at the Site. (p) Developer shall comply with State law regarding the limitation of light or glare or such other standards as adopted by the Outdoor Advertising Association of America, Inc. ("OAAA"), including but not limited to, the 0.3 foot-candles limitation over ambient light levels and ensuring additional flexibility in reducing such maximum light level standard given the lighting environment, the obligation to have automatic diming capabilities, as well as providing the City's Director of Public Works or his or her designee with a designated Developer employee's phone number and/or email address for emergencies or complaints that will be monitored 24 hours a day/7 days per week. Upon any reasonable complaint by the City's Director of Public Works or 1062963.03/LA 297944-00207/5-31-17/jd/sne -2 8- his or her designee, Developer shall dim the display to meet these guidelines and further perform a brightness measurement of the display using OAAA standards and provide the City with the results of same within ten (10) business days of the City's complaint. 1062963.03/LA 297944-00207/5-31-17/jd/S ne -2 9- EXHIBIT C SITE PLAN AND BILLBOARD ELEVATIONS 1062963.03/LA _3 �_ 297944-00207/5-31-17/jd/sue 0 CD a Z 3 o o. W C-) I D D r+ CA) O O U01 n O co W N Q 42' 14' m X 7 Cl) W n C1 O O 03 CD o DC CDZ3 CO 4 CD C) m do - m � D D CD V (7 O O CD ^;. l�L 5. N � n M A. -14 CA 3 NO (n 9 n co a O _ O CD Q iS c CD � �CO� n 0 �00 <. v o 1 = rn 5mm M Wo C m (C) Cn CD O � m co < CD D m CD CD COD -t < � O V _ -P O Cb � I n W O 9v=Il m Coos ��m�Zov aoNm C. v� om D��DZAz c�pzp� ,.0i. pp�:t7D CD AOZOX �r7�OCy � m}�NDoo c�Dma '+ � v oo"mrn��x� oyy o�p 5B C) Z m a 2;9o�> O p oN N D_< -i >-M Fn�C-)20 MM-0 o CD CD cn cn CD CD Q Q G (C) O 0 a (C)lp N - N 4�h N 1 1 ol V CA cn Cl) D 0 CD CD o CD 0, Q C II o O m N N O O r- O , 1 50' rn x U) I14' O CD (0 I X Q O CD c CA LS 3 (p I (O in co L? (Q `. W D � � J fIr'z I Vj m O CD (D !� o o a Q :3 CD n 3 C/) c O CQ Q' CD W -n CD TF \Il ti Z OXIM F�Mm z o0m c zo �cc D I > z � n m 25' 1 50' 75' 14' � ;�,, , c• tip,•• � h 35' e �'�`19•y / � I m M z �Z z D � ( &cl / , m T x O oo --I Z o m � m m �7 W moz / D z xM O zz k �vtlAtlsA¢ w f N_ /$ < o w 'C / ' m _ 85' 14' 50' 14' m co M. 00 9 At Z O € W - t 00. .lql 4 lz O �� ` : z 0 , f z LLI J �$ %9 MM M f. low 0 171 a rwp N rl O • O �;Y N O)U cz J O a Y N N d-J i EXHIBIT D SCHEDULE OF PERFORMANCE ITEM OF PERFORMANCE TIME FOR REFERENCE PERFORMANCE 1. [INTENTIONALLY LEFT BLANK] 2. Effective Date of this Agreement. 30 days following City 1.1.16 Council's second reading and adoption of ordinance approving Agreement 3. Developer prepares and submits to Within 120 days of City 3.4 City working drawings Council's second reading and specifications and engineering, the adoption of ordinance approving City commences approval process. Agreement 4. City to approve all construction and Within 30 days of City's receipt engineering drawings and of Developer's construction specifications with a plan check drawings and specifications approval, and issue a building addressing all of City's permit and an electrical permit. comments. City agrees to any necessary building or electrical permits needed for Developer to acquire the Caltrans approvals. Developer agrees not to commence construction until it receives the applicable Caltrans approvals. 5. Developer to provide copy of Prior to commencing any 3.3, 3.4 Caltrans approval to City. inspections and work on the Development. 1062963.03l1,A 297944-00207/5-31-17/jd/sne -3 1 - ITEM OF PERFORMANCE TIME FOR REFERENCE PERFORMANCE 6. Developer to submit proof of Prior to commencing any 6.1.2 insurance to City. inspections and work on the Development 7. Developer obtains unfinalled Prior to commencing work on 2.6.1 versions of the Final Permits and the Development provides notice to City of same. 8. Developer pays City first March 31 after Commencement 2.6.1 and 2.6.2 installment of Development Fee or Date Alternative Fee, if applicable, if Developer receives Final Permits 9. Developer pays City second March 31, two years after 2.6 installment and subsequent annual Commencement Date, and installments of the Development continuing throughout the Term. Fee if Developer receives Final Each payment occurring by Permits. March 31 of the year following the payment year of operation during the Term 10. Developer pays the Alternative Fee Within 90 days of the end of 2.7 if in excess of the Development each calendar year of the Term Fee. It is understood that this Schedule of Performance is subject to all of the teens and conditions of the text of the Agreement. The summary of the items of performance in this Schedule of Performance is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Schedule of Performance and the text of the Agreement, the Agreement shall govern. The time periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both Developer and the City. Notwithstanding any extension of the Term in the manner described herein, and subject to the provisions of Section 3.5 of the Agreement, the City Administrator shall have the 1062963.03/LA -3 2- 297944-00207/5-31-17/jd/sne authority to approve extensions of time set forth in this Schedule of Performance without action of the City Council, not to exceed a cumulative total of 180 clays. 1062963.03/LA 297944-00207/5-31-17/jd/sne -3 3 - RXNTRIT F EOUAL EMPLOYMENT OPPORTUNITY PRACTICES PROVISIONS A. Developer and Owner certify and represent that, during the performance of this Agreement, Developer and each subcontractor shall adhere to equal opportunity employment practices to assure that applicants and employees are treated equally and are not discriminated against because of their race, religious creed, color, national origin, ancestry, handicap, sex, or age. Developer and Owner further certify that they will not maintain any segregated facilities. B. Developer and Owner agree that they shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of Developer or Owner, state that they are `Equal Opportunity Employers" or that all qualified applicants will receive consideration for employment without regard to their race, religious creed, color, national origin, ancestry, handicap, sex or age. C. Developer and Owner agree that they shall, if requested to do so by the City, certify that they have not, in the performance of this Agreement, discriminated against applicants or employees because of their membership in a protected class. D. Developer and Owner agree to provide the City with access to, and, if requested to do so by City, through its awarding authority, provide copies of all of their records pertaining or relating to their employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law. E. Nothing contained in this Agreement shall be construed in any manner as to require or permit any act which is prohibited by law. 1062963.03/LA 297944-00207/5 -3 1 -17/jd/sne - 3 4- EXHIBIT B [Exempt From Recording Fee Per Gov. Code §6103] DIGITAL BILLBOARD DEVELOPMENT AGREEMENT This Digital Billboard Development Agreement (hereinafter "Digital Billboard Agreement" or "Agreement") is entered into this day of , 2017 (hereinafter the "Effective Date"), by and between the City of Vernon, a California chartered City and municipal corporation of the State of California (hereinafter "City"), and Magellan Atlantic I, LLC, a California limited liability company (hereinafter "Magellan"). 'PVC1TAT,C A. California Government Code Sections 65864 et seq. (the "Development Agreement Law") authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purposes of strengthening the public planning process, encouraging private participation and comprehensive planning, and identifying the economic costs of such development. B. Owner (as defined in Section 1.1.21 below) has an ownership interest in that certain portion of real property, located adjacent to, and on the western side of, the south -bound lanes of the 710 Freeway, commonly known as 3030 S. Atlantic Blvd. in the City of Vernon, Assessor Parcel Number 6314-033-002, as more specifically described in Exhibit "A" and depicted at Exhibit "C", attached hereto and incorporated herein, upon which the Development (as defined below) is located (the "Site"). C. Developer (as defined in Section 1.1.11 below) seeks to install two (2) new single - sided 14 x 48 foot digital displays placed in a "V" formation (together, the "New Digital Billboards") and one single sided 14 x 48 foot static display (the "New Static Billboard") which is oriented toward the 710 Freeway, as depicted in Exhibit "C" (collectively the New Digital Billboards and New Static Billboard are referred to as the "New Billboards"). In addition, Developer intends to remove, at its sole cost and expense, one existing static display on the Site (the "Defunct Billboard"). D. Given the different terms and conditions of the New Billboards, the Parties have agreed to execute two separate and independent agreements for each of (i) the New Digital Billboards and (ii) the New Static Billboard. The agreement for the New Static Billboard shall be referred to herein as the "Static Billboard Agreement," and together with this Digital Billboard Agreement, the "Agreements." E. Owner has consented to Developer's application for this Agreement, and Developer, as the owner of a leasehold, license or easement interest in the Development, has a legal and/or equitable interest in a portion of the Site and thus qualifies to enter into this Agreement in accordance with the Development Agreement Law. F. In exchange for the City approvals sought by Developer for the New Digital Billboards as provided herein, Developer is agreeable to, among other things, paying to the City an annual Development Fee or Alternative Fee for the New Digital Billboards, whichever is 1030199.07/LA 297944-00207/6-1-17/tbrn/sne greater, as defined and provided in Sections 2.6.1 and 2.6.2 below, for the cost to the City to mitigate the impact of the installation of the New Digital Billboards. G. The Site is located within the City's Industrial Zone, and, pursuant to section 26.9.2 of the Vernon Municipal Code ("VMC"), may be developed by installing, constructing, modifying, or replacing the New Digital Billboards, subject to, among other things, City Council approval of this Agreement. H. Developer and the City agree that a development agreement should be approved and adopted to memorialize the property expectations of the City and Developer, as more particularly described herein. I. The City Council finds 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, and this Agreement is consistent with the City's General Plan and with the VMC in all respects. Further, the City Council has found that approval of this Agreement and the Development itself are categorically exempt from review under the California Environmental Quality Act ("CEQA") under CEQA Guidelines section 15302, because the Development contemplates only replacement or reconstruction of existing structures or facilities on the same site having substantially the same size, purpose and capacity. This Agreement and the proposed Development will achieve a number of City objectives, including utilizing the Site for a revenue -generating use. J. The purpose of this Agreement is to set forth the rules and regulations applicable to the Development, which shall be accomplished in accordance with this Agreement, including the Scope of Development (Exhibit `B"), which sets forth a description of the Development and the Schedule of Performance (Exhibit "D"). COVENANTS NOW, THEREFORE, in consideration of the above preamble and recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Developer and Owner agree as follows: 1. DEFINITIONS AND EXHIBITS. 1.1 Definitions. This Agreement uses a number of terms having specific meanings, as defined below. These specially defined terms are distinguished by having the initial letter capitalized, when used in the Agreement. In addition to the terms defined in the Recitals above, the defined terms include the following: 1.1.1 "Agreement" means this Digital Billboard Development Agreement and all attachments and exhibits hereto. 1.1.2 "Alternative Fee" shall have the meaning set forth at Section 2.6.2. 1.1.3 "Amendment" shall have the meaning set forth at Section 2.3. 1.1.4 "Caltrans" means the California Department of Transportation. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -2- 1.1.5 "CEQA" means the California Environmental Quality Act (Public Resources Code Section 21000 et seq. ), as it may be amended from time to time. 1.1.6 "Chamber" means the Vernon Chamber of Commerce. 1.1.7 "City" means the City of Vernon, a California chartered City and municipal corporation. 1.1.8 "City Council" means the City Council of the City. 1.1.9 "Commencement Date" shall have the meaning set forth at Section 2.6.1. 1.1.10 "County Recorder" means the Los Angeles County Registrar -Recorder / County Clerk. 1.1.11 "Developer" means any party holding the exclusive leasehold, license or easement interest in the Development. If there is no party holding an exclusive leasehold, license or easement interest in the Development, the Developer shall be the Owner. The current Developer is Magellan, and its successors and assigns. 1.1.12 "Development" means the design and installation of the New Digital Billboards on the Site, and removal or relocation of the Defunct Billboard (as defined in Exhibit B). 1.1.13 "Development Approval" means approval of this Agreement and all necessary variances or code amendments related thereto, collectively, by any and all applicable governmental agencies, including the City, and as applicable, Caltrans. 1.1.14 "Development Fee" shall have the meaning set forth at Section 2.5. 1.1.15 "Director of Public Works" shall mean the City's Director of Public Works, Water & Development Services. 1.1.16 "Effective Date" means the date inserted into the preamble of this Agreement, which is thirty (30) days following Development Approval #3. 1.1.17 "Final Permits" means any and all required permits to maintain and operate the New Digital Billboards as contemplated in Section 3.3 (including, without limitation, all utilities required by the New Digital Billboards), which such permits have been "finaled" by the applicable inspectors. 1.1.18 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of the City, including, but not limited to, the City's General Plan and VMC, including, but not limited to, the Zoning Code [VMC, Ch. 26], which govern development and use of the Site, including, without limitation, the permitted use of the Site, the density or intensity of use, subdivision requirements, the maximum height and size of the New Billboards and the design, improvement and construction standards and specifications applicable to the Development or the Site which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement. Land Use Regulations shall also include the 1030199.07/LA 297944-00207/6-1-17/tbm/sne -3- federal National Pollutant Discharge Elimination System ("NPDES") regulations and approvals from the California Department of Transportation Outdoor Advertising Division, to the extent applicable. 1.1.19 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security device, a lender or each of their respective successors and assigns. 1.1.20 "Operator" means the person or entity who operates the New Digital Billboards, contracts directly with advertisers, and collects revenues directly from advertisers. The Owner or Developer may be the Operator. 1.1.21 "Owner" means the party holding the fee interest in the Site. The current Owner is Magellan, and its successors and assigns. 1.1.22 "Party" means Owner, Developer or City. 1.1.23 "Parties" means, collectively, Owner, Developer and City. 1.1.24 "Site" shall have the meaning provided in Recital B. 1.1.25 "Schedule of Performance" means the Schedule of Performance attached hereto as Exhibit "D" and incorporated herein. 1.1.26 "Scope of Development" means the Scope of Development attached hereto as Exhibit `B" and incorporated herein. 1.1.27 "Subsequent Land Use Regulations" means any Land Use Regulations effective after the Effective Date of this Agreement (whether adopted prior to or after the Effective Date of this Agreement) which govern development and use of the Site. 1.1.28 "Subsequent Development Approvals" means any approval sought by Developer in connection with future changes desired to be made by Developer to the Development following its initial completion. 1.1.29 "Term" shall have the meaning provided in Section 2.3, unless earlier terminated as provided in this Agreement. 1.1.30 "VMC" shall mean the Vernon Municipal Code, as such shall be amended from time to time. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit "A" (Legal Description of Site), Exhibit "B" (Scope of Development), Exhibit "C" (Site Plan and Elevations), Exhibit "D" (Schedule of Performance), and Exhibit "E" (City's Equal Employment Opportunity Practice Provisions). 2. GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Developer with respect to the Development, including actions by the City on 1030199.07/LA 297944-00207/6-1-17/tbm/sne -4- applications for Subsequent Development Approvals affecting the Site, shall be subject to the terms and provisions of this Agreement; provided, however, that nothing in this Agreement shall be deemed or construed: (i) to bind or restrict Developer with respect to its ownership or operation of the Development, except as expressly set forth in this Agreement, or (ii) to impose any obligation whatsoever on Owner with respect to the Development, except as expressly set forth in this Agreement. 2.2 Interest in Site. The City and Developer acknowledge and agree that Developer has a legal and/or equitable interest in the Site, and thus is qualified to enter into and be a party to this Agreement under the Development Agreement Law. 2.3 Term of Agreement and Renewal. Unless terminated earlier as provided in this Agreement, this Agreement shall continue in full force and effect from the Effective Date until the earlier of. (i) thirty (30) years from the Effective Date; or (ii) when the New Digital Billboards are permanently removed (other than removal for repair or replacement) (the "Term"). At least thirty (30) days prior to the end of the Term, the Parties shall come to agreement on whether this Agreement is to be renewed for an additional term of years to be determined or is to expire by its own terms. If the former, the Parties shall execute a written amendment to this Agreement ("Amendment"), which shall be approved by the City Council. If the Parties have agreed to enter into the Amendment prior to the expiration of the Term, then the Term shall automatically be extended to the day prior to the effective date of the Amendment. If this Agreement expires on its own terms or is otherwise terminated earlier pursuant to Section 5 of this Agreement, then within thirty (30) days after the termination of this Agreement, the Developer and the City shall execute a written cancellation of this Agreement which shall be recorded with the County Recorder pursuant to Section 8.1 below. If no Amendment is agreed to following termination of the Agreement (but by no later than the recording of the written cancellation of the Agreement), then Developer must remove the New Digital Billboards at Developer's sole cost and expense. 2.4 Processing Fee. Upon submission of its application for the approvals granted by this Agreement, Developer has paid to the City a processing fee ("Processing Fee") in the amount of Five Thousand Dollars ($5,000) for the New Digital Billboards. The City shall retain and use the Processing Fee, or any part thereof, for any public purpose within the City's discretion. The Processing Fee shall be separate from all fees which are standard and uniformly applied to similar projects in the City, including, but not limited to, business license fees (due by Developer to the City annually), one-time plan check fees and building permit fees, and any other fees imposed by Los Angeles County, as may be applicable. 2.5 Development Fee. The potential impacts of the Development on the City and surrounding community are difficult to identify and calculate. Developer and the City agree that an annual development fee paid by Developer to the City would adequately mitigate all such potential impacts. The Parties therefore agree that Developer shall pay an annual development fee to the City, subject to the obligation to pay the Alternative Fee per Section 2.6.2 below. The development fee shall be Forty Thousand Dollars ($40,000) per calendar year of the Term for each face of the two (2) New Digital Billboards i.e., $80,000 per year total for the New Digital Billboards) (the "Development Fee"). The Development Fee shall be increased every three (3) years (each, an "Adjustment Period") in proportion to the adjustment over the same time to the U.S. all items Consumer Price Index for All Urban Consumers (CPI-U) for the Los Angeles - Orange -Riverside area, base period 1982-1984, based upon the most recent month of publicly 1030199.07/LA 297944-00207/6-1-17/tbm/sne -5 - available CPI data available as of January 31 of the year of such increase; provided, however, that any CPI Increase shall not exceed six percent (6%) of the Development Fee per Adjustment Period (each, a "CPI Increase"). For the avoidance of doubt, should the Parties inadvertently fail to apply a CPI Increase at the end of any given Adjustment Period, such shall not be deemed a waiver of that particular CPI Increase, but rather, shall be added to any subsequent CPI Increase(s). Notwithstanding the foregoing, if any one or more digital faces of the New Digital Billboards is permanently reduced, removed (other than removal for repair or replacement) or destroyed (in its entirety), Developer shall not be required to pay that portion of the Development Fee attributable to such face. Instead, Developer shall pay the Development Fee for each face of the New Digital Billboards -turned -static as prescribed under the Static Billboard Agreement and prorated from the date the digital face(s) is/are permanently removed. 2.6 Development Fee Payments. 2.6.1 Development Fee: The Development Fee for the prior calendar year shall be due and payable no later than March 31 of the following calendar year, with the first installment prorated and due no later than the first March 31 after the initial calendar year Developer receives the Development Approval for the New Billboards from the applicable governmental authorities and the Final Permits. Developer shall provide notice to the City within five (5) business days of its receipt of all Final Permits. The initial Development Fee (or Alternative Fee per Section 2.6.2) shall be calculated from the day the City receives such notice (the "Commencement Date"). Nothing herein relieves the City from its contractual duty to issue all municipal building permits that are associated with the Development if Developer is in compliance with the terms of this Agreement. 2.6.2 Alternative Fee: For any calendar year of the Term where the Alternative Fee, as defined in this Section 2.6.2, exceeds the Development Fee described at Section 2.6.1 above for the New Digital Billboards, Developer shall pay to the City the Alternative Fee, which is defined as an amount equal to eight percent (8%) of the gross advertising revenue from the New Digital Billboards during the preceding calendar year of the Term (the "Alternative Fee"). If the Development Fee is greater than the Alternative Fee for any calendar year, then the Developer shall pay to the City the Development Fee. Within ninety (90) days following the end of each calendar year of the Term hereof, and ending within ninety (90) days after the end of the Term or earlier termination of the Agreement, Developer (and/or Operator, as applicable) shall furnish to the City a statement in writing, certified by Developer to be correct, showing the total gross advertising revenues made from the New Digital Billboards during the preceding calendar year of the Term. Gross advertising revenue shall specifically exclude advertising agency fees paid to the advertiser's advertising agency and/or brokerage fees paid to the sales brokers other than Developer and/or Operator. Furthermore, the gross advertising revenue is based solely on the basic advertising size, as recorded on the City's building permits, and does not include free -form cut- outs, solid extensions, back -lit displays, 3D presentations, tri-vision, stretch faces, additional art work reproductions or any other special treatment or appurtenances as required by the advertiser. 2.7 Audit of Alternative Fee. With prior written notice to Developer of not less than ten (10) business days, the City shall have the right to audit gross advertising revenue for the New Digital Billboards and to view those portions of any advertising space contracts or invoices that relate to the New Digital Billboards, at Developer's (and/or Operator's, as applicable) office, on normal workdays between 9:00 a.m. and 4:00 p.m. once a year. Prior to the audit, the City shall, 1030199.07/LA 297944-00207/6-1-17/tbm/sne -6- at Developer's (and/or Operator's, as applicable) request, sign a confidentiality agreement regarding the advertising space contracts and invoices. If the statement of total gross advertising revenue previously provided to the City is found by the City to be inaccurate for the prior calendar year of the Term, then, and in that event, there shall be an adjustment and within ten (10) business days upon receiving written demand, one party shall pay to the other such sums as may be necessary to settle in full the accurate underpayment or overpayment of the Alternative Fee, if any, that should have been paid for the period covered by such inaccurate statement. If said audit discloses an underpayment of greater than five percent (5%) with respect to the amount of total gross advertising revenue reported for the period of said report, then Developer (and/or Operator, as applicable) shall immediately pay to the City the cost of such audit, plus ten percent (10%) interest per annum on the amount underpaid from the date of submission of the Development Fee or the Alternative Fee, as applicable. If the audit does not disclose an underpayment of greater than five percent (5%) with respect to the amount of total gross advertising revenue reported for the period of said report, the cost of such audit shall be paid by the City and no interest payment is due thereon. 2.8 Acknowledgment by Operator. In the event Developer enters into a contract or lease agreement with an Operator to operate the New Digital Billboards, such contract or lease agreement shall provide for Operator's acknowledgment of and consent to be bound by this Agreement, including but not limited to Sections 2.6, 2.7, 2.9, 2.10, 2.11, 2.12, and 4.2. Upon execution of such a contract or lease agreement, Developer shall deliver a copy to the City for its records. 2.9 Prohibited Use. Developer shall not utilize any of the displays on the New Digital Billboards to advertise tobacco, marijuana, hashish, any adult or sexually oriented businesses as defined in VMC Section 5.81.2, any products or services thereof, or show sexually oriented images or language, or as may be prohibited by any City ordinance existing as of the Effective Date of this Agreement. 2.10 Safety and Appearance. In addition to the requirements set forth in VMC Section 26.9.3-6 and under Section 26.9.3-6(f), the brightness of the New Digital Billboards shall be such that the difference of ambient light measurement and the New Digital Billboards light turned on to full white copy shall be no greater than 0.3 foot-candles when measured from a distance of 150 feet from the base of the New Digital Billboards. 2.11 City Discount. Businesses that are members of the Chamber and the Chamber itself shall be entitled to a 10% discount (from the "rate card" rates) for advertising on the New Digital Billboards. 2.12 City Use of New Digital Billboards. Subject to availability (except in the case of an Emergency Situation, as defined below), the City may, free of charge, post public service announcements ("PSAs") on the New Digital Billboards for up to a maximum of five (5) weeks (i. e., 840 hours) every calendar year during the Term ("PSA Time"). PSA Time may be subdivided at the sole discretion of the City. In the case of a public safety emergency or natural disaster, including but not limited to a chemical or hazardous waste incident, explosion, earthquake, flood, or criminal incident (e.g., Amber Alerts) (each, an "Emergency Situation"), the City's PSA shall preempt any and all existing commercial advertising until the Emergency Situation has been abated and, in the reasonable discretion of the City, the PSA is no longer necessary to preserve the health 1030199.07/LA 297944-00207/6-1-17/tbm/sne -7- and/or safety of the public. Emergency Situation PSAs shall not be charged to the City's PSA time. The City shall not, under any circumstances, be liable to Developer or any third party for any losses incurred due to the City's posting of an Emergency Situation PSA. 3. DEVELOPMENT AND IMPLEMENTATION OF THE DEVELOPMENT. 3.1 Rights to Develop. Subject to and during the Term of this Agreement, Owner and Developer shall have the right to develop the Site in accordance with, and to the extent of, the Development Approval, the Land Use Regulations and this Agreement, provided that nothing in this Agreement shall be deemed to modify or amend any of the pre-existing Land Use Regulations, as more particularly set forth in Section 3.2 below. 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, the rules, regulations and official policies governing the density and intensity of use of the New Digital Billboards on the Site, the maximum height and size of the New Digital Billboards on the design, improvement and construction standards and specifications applicable to the Site and the New Digital Billboards shall be as set forth in the Land Use Regulations which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement. 3.3 Development Approval. Developer, at its own expense and before commencement of demolition, construction or development of the New Digital Billboards, removal of the Defunct Billboard, or other work of improvement upon the Site, shall secure or cause to be secured the Development Approval, a Conditional Use Permit and/or variances, as necessary, and building permit(s), as necessary, from the City, and any and all permits and approvals which may be required by any other governmental agency or utility affected by such construction, development or work to be performed by Developer, including but not limited to Caltrans, pursuant to the Scope of Development. Not by way of limiting the foregoing, in developing and constructing the Development, Developer shall comply with all: (1) applicable development standards in the VMC, (2) applicable NPDES requirements pertaining to the Development, (3) applicable conditions placed on the Development by Caltrans, and (4) applicable building codes, except as may be permitted through approved variances and modifications. Developer shall pay all normal and customary fees and charges applicable to such permits, and the Development Fee or Alternative Fee, as applicable. 3.4 Timing of Development; Scope of Development. Developer shall commence the Development within the time set forth in the Schedule of Performance, attached hereto as Exhibit "D". "Commencement" of the Development is defined herein as commencement of construction or improvements under the City building permit(s) for the construction of the New Digital Billboards on the Site, which shall occur as soon as possible following Developer's receipt of the Development Approval and Final Permits. In the event that Developer fails to meet the schedule for Commencement of the Development, then after mutual compliance with Section 4.3, either the City or Developer may terminate this Agreement by delivering written notice to the other party, and, in the event of such termination, neither the City nor Developer shall have any further obligation hereunder. However, if circumstances within the scope of Section 8.11 delay the Commencement or completion of the Development, then such delays shall not constitute grounds for any termination rights found within this Agreement. In such case, the timeline to commence or complete the relevant task shall be extended in the manner set forth at Section 8.11. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -8- Notwithstanding the above, Developer shall, at all times, comply with all other obligations set forth in this Agreement regarding the construction or improvement of the New Digital Billboards on the Site. Developer shall also maintain the New Digital Billboards at all times during the Term in accordance with the maintenance provisions set forth in Section 3 of the Scope of Development, attached as Exhibit "B" herein. 3.5 Changes and Amendments. Developer may determine that changes to the Development Approval are appropriate and desirable. In the event Developer makes such a determination, Developer may apply in writing for an amendment to the Development Approval to effectuate such change(s). The Parties acknowledge that the City shall be permitted to use its inherent land use authority in deciding whether to approve or deny any such amendment request; provided, however, that in exercising the foregoing reasonable discretion, the City shall not apply a standard different than that used in evaluating requests of other similarly situated developers. Accordingly, under no circumstance shall the City be obligated in any manner to approve any amendment to the Development Approval. The City Administrator or his/her designee shall be authorized to approve any non -substantive amendment to the Development Approval without processing an amendment to this Agreement. All other amendments may require the approval of the City Council. Nothing herein shall cause Developer to be in default if it upgrades the New Digital Billboards pursuant to this Agreement during the Term of this Agreement to incorporate newer technology; provided, however, Developer shall secure all applicable ministerial permits to do so and such upgrade is consistent with the dimensions and standards for the displays, as provided under this Agreement, Land Use Regulations and Subsequent Land Use Regulations. 3.6 Reservation of Authority. 3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the Development: (a) Processing fees and charges imposed by the City to cover the estimated actual costs to the City of processing applications for Subsequent Development Approvals relating to the Development. (b) Procedural regulations consistent with this Agreement relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. (c) Changes to the California Building Code, California Fire Code, California Plumbing Code, California Mechanical Code, or California Electrical Code, as adopted by the City as Subsequent Land Use Regulations, if adopted prior to the issuance of a building permit for development of the New Billboards. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -9- (d) Regulations that are not in conflict with the Development Approval or this Agreement. (e) Regulations that are in conflict with the Development Approval or this Agreement, provided Developer has given written consent to the application of such regulations to the Development. (f) Applicable federal, state, county and multi jurisdictional laws and regulations which the City is required to enforce against the Site or the Development, and that do not have an exception for existing signs or legal nonconforming uses. 3.6.2 Future Discretion of the City. This Agreement shall not prevent the City from denying or conditionally approving any application for a Subsequent Development Approval on the basis of the Land Use Regulations or Subsequent Land Use Regulations then in effect. 3.6.3 Modification or Suspension by Federal, State, County, or Multi - Jurisdictional Law. In the event that applicable federal, state, county or multi jurisdictional laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, and there is no exception for the legal nonconforming use, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such federal, state, county or multi -jurisdictional laws or regulations, and this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provision impractical to enforce. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 3.7 Regulation by Other Public Agencies. It is acknowledged by the Parties that other public agencies not subject to control by the City may possess authority to regulate aspects of the Development as contemplated herein, and this Agreement does not limit the authority of such other public agencies. Developer and Owner acknowledge and represent that, in addition to the Land Use Regulations, Developer and Owner shall, at all times, comply with all applicable federal, state and local laws and regulations applicable to the Development and that do not have an exception for a legal nonconforming use. To the extent such other public agencies preclude development or maintenance of the Development and do not have an exception for a legal nonconforming use, Developer and Owner shall not be further obligated under this Agreement except as provided in Section 4.1. Notwithstanding the foregoing, if such action by another public agency materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, then (a) Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City, or (b) if moving the New Digital Billboards to another location on the Site would reduce the impact of such public agency action, Developer or Owner (at their sole cost and expense) may relocate the New Digital Billoboards to another location on the Site as reasonably determined by Developer or Owner, and the City shall reasonably cooperate with such relocation of the New Digital Billboards (e.g., if Caltrans widens the 710 Freeway in such a manner that necessitates removal/relocation of the New Digital Billboards, Developer or Owner can relocate the New Digital Billboards on the Site), and if requested by Developer or 1030199.07/LA 297944-00207/6-1-17/tbn/sne -1 �- Owner, the City shall enter into a relocation agreement with the Developer or Owner pursuant to Section 5412 of the California Outdoor Advertising Act. 3.8 Public Improvements. Notwithstanding any provision herein to the contrary, the City shall retain the right to condition any Subsequent Development Approvals on the requirement that Developer pay subsequently required development fees, and/or construct certain subsequently required public infrastructure ("Exactions") at such time as the City shall determine, subject to the following conditions: 3.8.1 The payment or construction must be to alleviate an impact caused by the Development or be of benefit to the Development; and 3.8.2 The timing of the Exaction should be reasonably related to the development of the Development, and said public improvements shall be phased to be commensurate with the logical progression of the development of the Development, as well as the reasonable needs of the public. 3.8.3 It is understood, however, that if there is a material increase in cost to Developer or Owner, or such action by the City otherwise materially impacts Developer or Owner or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety'(90) days prior written notice to the City. 3.9 Fees, Taxes and Assessments. During the Term of this Agreement, the City shall not, without the prior written consent of Developer, impose any additional fees, taxes or assessments on all or any portion of the Development, except such fees, taxes and assessments as are described in or required by this Agreement and/or the Development Approval. However, this Agreement shall not prohibit the application of fees, taxes or assessments upon the Site only and not on the New Digital Billboards or Developer directly, as follows: 3.9.1 Developer shall be obligated to pay those fees, taxes or City assessments and any increases in same which exist as of the Effective Date or are included in the Development Approval; 3.9.2 Developer shall be obligated to pay any fees or taxes, and increases thereof, imposed on a City-wide basis including, but not limited to, business license fees or taxes or utility taxes; 3.9.3 Developer shall be obligated to pay all fees applicable to a permit application as charged by the City at the time such application is filed by Developer; and 3.9.4 Developer shall be obligated to pay any fees imposed pursuant to any Uniform Code that existed when the permit application is filed by Developer or that exists when Developer applies for any Subsequent Development Approval. 3.10 Changes. Notwithstanding anything to the contrary herein, if there is a change in such fees as compared to those fees in effect as of the Effective Date, or if any additional fees are charged and such additional or increased fees materially change Developer or Owner's 1030199.07/LA 297944-00207/6-1-17/tbm/sne -1 1- costs or otherwise materially impact their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 4. REVIEW FOR COMPLIANCE. 4.1 Annual Review. The City Council shall have the right to review this Agreement annually at the City's sole cost, on or before the anniversary of the commencement of the Term, to ascertain the good faith compliance by Developer with the terms of this Agreement ("Annual Review"). However, no failure on the part of the City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement or serve as a waiver of the City's right to conduct an Annual Review in a year subsequent to a year in which an Annual Review was not conducted. Developer shall cooperate with the City in the conduct of any such Annual Review and, upon written request, provide the following information and documentation to the City at least thirty (30) days before the anniversary of the commencement of the Term: (a) any updates to Developer's contact information related to complaints concerning the New Billboards, as required in the conditions at Exhibit `B", Section 6 herein, (b) status and amount of all payment obligations to the City required under this Agreement for the year in question and cumulatively beginning from the commencement of the Term, (c) any easement changes that could in any way materially impact the City or Developer's obligations under this Agreement, (d) any utility changes that could in any way materially impact the City or Developer's obligations under this Agreement, and (e) any maintenance issues addressed or needing to be addressed per the requirements of Exhibit "B". 4.2 City's Rights of Physical Access. The City and its officers, employees, agents and contractors shall have the right, at their sole risk and expense and upon reasonable notice to Developer, to enter the Site without interfering with any railroad or other right-of-way, and at all reasonable times with as little interference as possible, for the purpose of inspecting the New Digital Billboards. Such inspection must be conducted from a lift operated by Developer, its employees, agents, or contractors, at no additional cost to Developer. Any damage or injury to the Site or to the improvements constructed thereon resulting from such entry shall be promptly repaired at the sole expense of the City. 4.3 Procedure. Each Party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with this Agreement, to explain the basis for such assertion, and to receive from the other Party a justification of its position on such matters. If, on the basis of the Parties' review of any terms of this Agreement, either Party concludes that the other Party has not complied in good faith with the terms of this Agreement, then such Party may serve a written "Notice of Non -Compliance" specifying the grounds therefor and all facts demonstrating such non-compliance. The Party receiving a Notice of Non -Compliance shall have thirty (30) days to cure or remedy the non-compliance identified in the Notice of Non -Compliance, but if such cure or remedy is not reasonably capable of being cured or remedied within such thirty (30)-day period, then the Party receiving a Notice of Non -Compliance shall commence to cure or remedy the non-compliance within such thirty (30)-day period and thereafter diligently and in good faith prosecute such cure or remedy to completion. If the Party receiving the Notice of Non - Compliance does not believe it is out of compliance and contests the Notice of Non -Compliance, it shall do so by responding in writing to said Notice of Non -Compliance within thirty (30) days after receipt of the Notice of Non -Compliance. If the response to the Notice of Non -Compliance has not been received in the office of the Party alleging the non-compliance within the prescribed 1030199.07/LA 297944-00207/6-1-17/tbm/sne -12- time period, the Notice of Non -Compliance shall be conclusively presumed to be valid. If a Notice of Non -Compliance is contested, the Parties shall, for a period of not less than fifteen (15) days following receipt of the response, seek to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice of Non -Compliance. In the event that a cure or remedy is not timely completed, the Party alleging the non-compliance may thereupon pursue the remedies provided in Section 5; provided, however, that if the Notice of Non -Compliance is contested and the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15)-day period, then either Party shall have the right to seek a judicial determination of such contested matter. Neither Party hereto shall be deemed in breach if the reason for non-compliance is due to "force majeure" as defined in, and subject to the provisions of, Section 8.11. 4.4 Certificate of Agreement Compliance. If, at the conclusion of an Annual Review, Developer is found to be in compliance with this Agreement, the City shall, upon request by Developer, issue within ten (10) days of receipt of the request, a written confirmation ("Certificate") to Developer stating that, after the most recent Annual Review, and based upon the information known or made known to the City Administrator and the City Council, that (a) this Agreement remains in effect, and (b) Developer is in compliance with same. The Certificate shall be in recordable form if requested by Developer, and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer may record the Certificate with the County Recorder. Additionally, in the event a Certificate issues or will issue, Developer may, at any time, request from the City a Certificate stating, in addition to the foregoing, which specific obligations under this Agreement have been fully satisfied with respect to the Site, and City shall respond within ten (10) days of receipt of the request. If the City fails to respond to Developer's request pursuant to this Section 4.4, Developer shall be deemed to be in compliance with this Agreement or any obligation that is the subject of Developer's request. 5. DEFAULT AND REMEDIES. 5.1 Termination of Agreement. 5.1.1 Termination of Agreement for Material Default of Developer. The City, in its discretion, may terminate this Agreement for any material failure of Developer to perform any material duty or obligation of Developer hereunder or to comply in good faith with the terms of this Agreement; provided, however, the City may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 4.3. In the event of a termination by the City under this Section 5.1.1, Developer acknowledges and agrees that the City may retain all fees accrued up to the date of the termination, including the Processing Fee and any Development Fees or Alternative Fees, as applicable, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee or Alternative Fee, as applicable, within sixty (60) days after the date of termination that equates to the percentage of time elapsed in the year of the Term at the time of termination. 5.1.2 Termination of Agreement for Material Default of the City. Developer, in its discretion, may terminate this Agreement for any material failure of the City to perform any material duty or obligation of the City hereunder or to comply in good faith with the terms of this Agreement; provided, however, Developer may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 4.3. In addition, Developer may terminate this Agreement if, despite Developer's good faith efforts, (a) it is unable to secure the Development 1030199.07/LA 297944-00207/6-1-17/1bm/sne -13- Approval, Final Permits and/or compliance with requirements under laws necessary to effectuate the Development, or (b) any governmental agency has concluded a taking or regulatory taking of the Site and/or the Development, or (c) it is unable to profitably operate the Development after two (2) full years from the Commencement Date. In the event of a termination by Developer under this Section 5.1.2, Developer acknowledges and agrees that the City may retain all fees, including the Processing Fee and any Development Fees or Alternative Fees, as applicable, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee or Alternative Fee, as applicable, within sixty (60) days after the date of termination that equates to the percentage of time elapsed in the year of the Term at the time of termination. 5.1.3 Rights and Duties Following Termination. Upon the termination of this Agreement, no Party shall have any further right or obligation hereunder except with respect to (a) any obligations to have been performed prior to said termination, (b) any default in the performance of the provisions of this Agreement which has occurred prior to said termination, (c) Developer's obligation to remove the New Digital Billboards pursuant to Section 2.3, or (d) any continuing obligations to indemnify the other Party. 6. INSURANCE, INDEMNIFICATION AND WAIVERS. 6.1 Insurance. 6.1.1 Types of Insurance. (a) Liability Insurance. Beginning on the Effective Date hereof and until completion of the Term, Developer shall, at its sole cost and expense, keep or cause to be kept in force for Developer comprehensive broad form general liability insurance against claims and liabilities covered by the indemnification provisions of Section 6.2. Developer has agreed to indemnify the City to the extent of the liability insurance coverage with respect to its use, occupancy, or improvements, or for property damage, providing protection of at least One Million Dollars ($1,000,000) for bodily injury or death to any one person, at least Two Million Dollars ($2,000,000) for any one accident or occurrence, and at least One Million Dollars ($1,000,000) for property damage. Developer shall also furnish or cause to be furnished to the City evidence that any contractors with whom Developer has contracted for the performance of any work for which Developer is responsible maintains the same coverage required of Developer. (b) Worker's Compensation. Developer shall also furnish or cause to be furnished to the City evidence that any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries worker's compensation insurance as required by law. (c) Insurance Policy Form, Sufficiency, Content and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies qualified to do business in California with an AM Best Rating of no less than "A". All such policies shall be non -assignable and shall contain language, to the extent obtainable, to the effect that (i) the insurer waives the right of subrogation against the City and against the City's agents and representatives except as provided in this Section; (ii) the policies are primary and noncontributing with any insurance that may be carried by the City, but only with respect to the liabilities assumed by Developer under this Agreement; and (iii) the policies cannot be canceled 1030199.07/LA 297944-00207/6-1-17/tbm/sne -14- or materially changed except after written notice by the insurer to the City as expeditiously as the insurance company agrees to provide such notice. Developer shall furnish the City with certificates evidencing the insurance required to be procured by the terms of this Agreement. 6.1.2 Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to the City, in the manner required for notices, copies of certificates of all insurance policies required of each policy within the following time limits: (a) For insurance required above, within ten (10) business days after the Effective Date or consistent with the requirements of Exhibit "D" (Schedule of Performance), Item No. 7. (b) The City may request to see updated copies of the current certificates of all insurance policies required. The City reserves the right to obtain copies of the entire insurance policy, including endorsements. If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish the City with required proof that the insurance has been procured and is in force and paid for, the City, after complying with the requirements of Section 4.3, may view such failure or refusal to be a default hereunder. 6.2 Indemnification. 6.2.1 General. To the extent of its liability coverage required under Section 6.1.1(a) above, Developer shall indemnify the City and Owner, and their respective City Councilmembers, commission members, directors, officers, employees, and agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein "Claims or Liabilities") that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the work, operations, or activities of Developer, its agents, employees, subcontractors, or invitees, hereunder, upon the Site relating to the Development; provided, however, such indemnification obligation shall not be applicable to (a) the mere discovery of any pre-existing adverse physical condition at the Site, except to the extent Developer aggravates such pre-existing condition, or (ii) any Claims or Liabilities arising as a result of the gross negligent or intentional misconduct of City or Owner or their respective City Councilmembers, commission members, directors, officers, employees or agents. (a) Subject to Developer's written approval, Developer will defend any action or actions filed against the City or Owner in connection with any of said Claims or Liabilities covered by the indemnification provisions herein and will pay all costs and expenses, including reasonable legal costs and attorneys' fees incurred in connection therewith, which attorneys will be the attorneys hired by the insurance company where insurance coverage applies. (b) Developer will promptly pay any final non -appealable judgment rendered against the City or Owner, or their respective City Councilmembers, commission members, directors, officers, agents, or employees for any such Claims or Liabilities arising out of or in connection with such work, operations, or activities of Developer upon the Site, and 1030199.07/LA 297944-00207/6-1-17/tbm/sne -15- Developer agrees to save and hold the City and Owner and their respective City Councilmembers, commission members, directors, officers, agents, and employees harmless therefrom. (c) Notwithstanding anything herein to the contrary, City shall indemnify Developer and Owner, and their respective directors, officers, employees, and agents against, and will hold and save them and each of them harmless from any Claims or Liabilities that may be asserted by a City employee or agent arising out of or in connection with such City employee's or agent's entrance onto the Site (including, without limitation, for any inspection of the New Digital Billboards); provided, however, such indemnification obligation shall not be applicable to any Claims or Liabilities arising as a result of the gross negligent or intentional misconduct of Developer or Owner or their respective directors, officers, employees or agents. 6.2.2 Loss and Damage. Except as set forth below, the City shall not be liable for any damage to property of Developer, Owner or of others located on the Site, nor for the loss of or damage to any property of Developer, Owner or others by theft or otherwise. Except as set forth below, the City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Site or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Site, or by any other cause of whatsoever nature. The foregoing two (2) sentences shall not apply (i) to the extent the City or its agents, employees, subcontractors, invitees or representatives causes such injury or damage when accessing the Site, or (ii) under the circumstances set forth in Section 6.2.1 above. 6.2.3 Period of Indemnification. The obligations for indemnity under this Section 6.2 shall begin upon the Effective Date and shall survive termination of this Agreement. 6.3 Waiver of Subrogation. Developer, Owner and the City mutually agree that neither shall make any claim against, nor seek to recover from the other or its agents, servants, or employees, for any loss or damage to Developer, Owner or the City, except as specifically provided hereunder, which include but is not limited to a Claim or Liability to the extent arising from the negligence or willful misconduct of the City, Owner or Developer, as the case may be, or their respective officers, agents, or employees who are directly responsible to the City, Owner and Developer, as the case may be. 7. MORTGAGEE PROTECTION. The Parties hereto agree that this Agreement shall not prevent or limit Developer or Owner, in any manner, at Developer or Owner's sole discretion, from encumbering the Site or any portion thereof or the Development or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Site. The City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and the City agrees upon request, from time to time, to meet with Developer or Owner and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. Subject to compliance with applicable laws, the City will not unreasonably withhold its consent to any such requested interpretation or modification, provided the City determines such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Site shall be entitled to the following rights and privileges: 1030199.07/LA 297944-00207/6-1-17/tbm/sne -16- (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Development or Site made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Development or Site, or any part thereof, which Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from the City of any default by Developer in the performance of Developer's obligations under this Agreement. (c) If the City timely receives a request from a Mortgagee requesting a copy of any Notice of Non -Compliance given to Developer under the terms of this Agreement, the City shall make a good faith effort to provide a copy of that Notice of Non -Compliance to the Mortgagee within ten (10) business days of sending the Notice of Non -Compliance to Developer. The Mortgagee shall have the right, but not the obligation, to cure the non-compliance during the period that is the longer of (i) the remaining cure period allowed such party under this Agreement, or (ii) sixty (60) days. (d) Any Mortgagee who comes into possession of the Development or the Site, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Development or the Site, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance; except that (i) to the extent that any covenant to be performed by Developer is a condition precedent to the performance of a covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Development or the Site acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such Mortgagee shall strictly comply with all of the terms, conditions and requirements of this Agreement and the Development Approvals applicable to the Development or the Site or such part thereof so acquired by the Mortgagee. 8. MISCELLANEOUS PROVISIONS. 8.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within ten (10) days of execution, as required by Government Code Section 65868.5. Amendments approved by the Parties, and any cancellation, shall be similarly recorded. The provisions of this Agreement to the extent permitted by law shall constitute covenants which shall run with the Land, and the benefits of this Development Agreement shall bind and inure to the benefit of the parties and all successors in interest to the parties hereto. 8.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -1 %- 8.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable. 8.4 Assignment. Developer and/or Owner shall have the sole and absolute right to assign any of its rights, title and interest, and delegate any of its duties and obligations, under this Agreement. In the event of any such assignment or delegation, Developer and/or Owner shall provide written notice to the City within ten (10) days of execution of such assignment or delegation. 8.5 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California, without regard to its conflict of laws principles. This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting Party or in favor of the non -drafting Party, shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 8.6 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 8.7 Singular and Plural. As used herein, the singular of any word includes the plural and vice versa. 8.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 8.9 Waiver. Failure of a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 8.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the Parties and their respective successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 8.11 Force Mai eure. Notwithstanding any provision to the contrary herein, neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations (other than obligations to make payments when due) under this Agreement is caused by an event or circumstance that could not reasonably have been foreseen or avoided, mitigated or remedied, and is beyond the Party's reasonable control. Examples of Force Majeure include: acts of God, earthquakes, fires, rains, winds, wars, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control (including the Party's employment force), government actions and regulations (other than those of the City), and court actions (such as restraining orders or injunctions). Force Majeureshall not include general economic or other conditions affecting financial markets generally. If any such events shall occur during the term of this Agreement, the 1030199.07/LA 297944-00207/6-1-17/tbm/sne - 18- Party claiming Force Majeure (the "Nonperforming Party") shall promptly notify the other Party (the "Performing Party") of occurrence of that Force Majeure Event, its effect on performance, and how long that Party expects it to last. Thereafter, the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure event, the Nonperforming Party shall use reasonable efforts to limit damages to the Performing Party and to resume its performance under this Agreement. the time for performance shall be extended for the duration of each such event or circumstance, provided that the Term of this Agreement shall not be extended under any circumstances for more than five (5) years beyond the date it would have otherwise expired, and further provided that if such delay is longer than six (6) months, Developer may terminate this Agreement upon written notice to the City and the City shall return to Developer any portion of the Development Fees or Alternative Fees, as applicable, paid for any period after the effective date of such termination. 8.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 8.13 Counterparts and Originals. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. There shall be two (2) fully signed copies of this Agreement, each of which shall be deemed an original. 8.14 Litigation. Any action at law or in equity arising under this Agreement or brought by any Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Los Angeles, State of California, or such other appropriate court in said county. Service of process on the City shall be made in accordance with California law. Service of process on Developer or Owner shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between the City, Owner or Developer seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys' fees. 8.15 Covenant Not To Sue. The Parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other Party to this Agreement, in law or in equity, which is based on an allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable. 8.16 Development as a Private Undertaking. It is specifically understood and agreed by and between the Parties that the Development is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and Developer is that of a government entity regulating the development of private property, on the one hand, and the holder of a legal or equitable interest in 1030199.07/LA 297944-00207/6-1-17/tbm/sne -19- such private property on the other hand. The City agrees that by its approval of, and entering into, this Agreement, that it is not taking any action which would transform this private development into a "public work" development, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer's private development into a public work project, it being understood that this Agreement is entered into by the City and Developer upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement, which are incorporated into this Agreement and made a part hereof, and that the City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Developer by this Agreement. 8.17 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 8.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by the City of its power of eminent domain or Developer or Owner's rights to seek and collect just compensation or any other remedy available to them. 8.19 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of the Parties specifically approving the amendment and in accordance with the Government Code provisions for the amendment of development agreements, as well as with VMC section 26.6.8-7. The Parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non -material modifications may be approved on behalf of the City by the City Administrator upon reasonable approval by the City Attorney and without approval by the City Council 8.20 Corporate Authority. The person(s) executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such Party is bound. 8.21 Notices. All notices under this Agreement shall be effective when delivered by (a) United States Postal Service mail, registered or certified, postage prepaid return receipt requested, or (b) a generally recognized overnight carrier regularly providing proof of delivery, and addressed to the respective Parties as set forth below, or to such other address as either Party may from time to time designate in writing by providing notice to the other party: 1030199.07/LA 297944-00207/6-1-17/tbm/sne -20- If to the City: City of Vernon 4305 Santa Fe Ave. Vernon, CA 90058 Attn: Carlos Fandino, City Administrator If to Developer: Magellan Atlantic I, LLC 1800 Ave of the Stars, #105 Los Angeles, CA 90067 Attn: Martin Slusser If to Owner: Magellan Atlantic I, LLC 1800 Ave of the Stars, #105 Los Angeles, CA 90067 Attn: Martin Slusser 8.22 Nonliability of Individuals. No officer, official, member, employee, agent, or representatives of the City, Owner or Developer shall be personally liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative. 8.23 No Brokers. The City and Developer each represent and warrant to the other that it has not employed any broker and/or finder to represent its interest in this transaction. Each Party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorneys' fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder's fee in connection with this Agreement or arising out of agreements by the indemnifying party to pay any commission or finder's fee. 8.24 No Conflict. Owner and Developer hereby represent, warrant and certify that no member, officer or employee of either is a director, officer or employee of the City, or a member of any of the City's boards, commissions or committees, except to the extent permitted by law. 8.25 Equal Employment Opportunity. Owner and Developer hereby certify and represent that, during the Term of this Agreement, they and any other parties with whom they may subcontract, shall adhere to equal employment opportunity practices to assure that applicants, employees and recipients of service are treated equally and are not discriminated against because of their race, religion, color, national origin, ancestry, disability, sex, age, medical condition, sexual orientation or marital status. Owner and Developer further agree to comply with The Equal Employment Opportunity Practices provisions as set forth in Exhibit "E" attached hereto and incorporated herein by reference. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -21- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. CITY: CITY OF VERNON, a California charter City and California municipal corporation Melissa Ybarra, Mayor ATTEST: Maria E. Ayala, City Clerk APPROVED AS TO FORM: Brian Byun, Deputy City Attorney DEVELOPER: Magellan Atlantic I, LLC a California limited liability company By: Name:Martin Slusser Its: OWNER: Magellan Atlantic I, LLC a California limited liability company By: Name: Martin Slusser Its: [end of signatures] 1030199.07/LA 297944-00207/6-1-17/tbm/sne -22- A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) On , 201, before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public [SEAL] 1030199.07/LA 297944-00207/6-1-17/tbm/sne -23 - EXHIBIT "A" LEGAL DESCRIPTION OF SITE 1030199.07/LA -24- 297944-00207/5-31-17/tbm/s nc PARCEL 1: THAT PORTION OF LOT 110 OF RANCHO LAGUNA (SO CALLED) IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED AS EXHIBIT "A" IN CASE NO. B 25296 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAID COUNTY, AND THAT PORTION OF THE RANCHO SAN ANTONIO, AS SHOWN ON MAP RECORDED IN BOOK 1 PAGE 389 OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN THE FOLLOWING DESCRIBED BOUNDARIES: BEGINNING AT THE SOUTHEASTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A LENGTH OF 556.40 FEET AND A BEARING OF NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST IN PARCEL 1 OF DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24, 1957 IN BOOK 53458 PAGE 311, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID COURSE, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, A DISTANCE OF 538.02 FEET TO A POINT ON A CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 450 FEET: THENCE NORTHEASTERLY FROM A TANGENT WHICH BEARS NORTH 53 DEGREES 11 MINUTES 11 SECONDS EAST, ALONG SAID CURVE THROUGH AN ANGLE OF 10 DEGREES 31 MINUTES 39 SECONDS, AN ARC DISTANCE OF 82.68 FEET TO A POINT ON A LINE PARALLEL WITH AND DISTANT 5.00 FEET SOUTHEASTERLY. MEASURED AT RIGHT ANGLES FROM THE SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD; THENCE TANGENT NORTH 63 DEGREES 42 MINUTES 50 SECONDS EAST, ALONG SAID PARALLEL LINE, A DISTANCE OF 274.58 FEET: THENCE NORTH 73 DEGREES 05 MINUTES 20 SECONDS EAST, A DISTANCE OF 85.84 FEET: THENCE NORTH 73 DEGREES 48 MINUTES 34 SECONDS EAST, A DISTANCE OF 115.58 FEET; THENCE NORTH 85 DEGREES 07 MINUTES 44 SECONDS EAST, A DISTANCE OF 196.25 FEET: THENCE EASTERLY AND SOUTHERLY ALONG A TANGENT CURVE CONCAVE SOUTHERLY AND WESTERLY AND HAVING A RADIUS OF 149.50 FEET THROUGH AN ANGLE OF 77 DEGREES 42 MINUTES 51 SECONDS AN ARC DISTANCE OF 202.78 FEET; THENCE TANGENT SOUTH 17 DEGREES 09 MINUTES 25 SECONDS EAST, A DISTANCE OF 174.28 FEET TO A POINT ON A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 698.86 FEET; THENCE SOUTHWESTERLY FROM A TANGENT THAT BEARS SOUTH 53 DEGREES 52 MINUTES 46 SECONDS WEST, ALONG SAID CURVE THROUGH AN ANGLE OF 7 DEGREES 57 MINUTES 22 SECONDS AN ARC DISTANCE OF 97.04 FEET TO THE MOST NORTHERLY CORNER OF THAT STRIP OF LAND DESCRIBED AS PARCEL 7 IN DEED TO THE CHANSLOR-CANFIELD MIDWAY OIL COMPANY, RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS; THENCE TANGENT SOUTH 45 DEGREES 55 MINUTES 24 SECONDS WEST, ALONG THE NORTHWESTERLY LINE OF SAID STRIP OF LAND SO DESCRIBED AS PARCEL 7, A DISTANCE OF 128.36 FEET: THENCE STILL ON SAID LAST MENTIONED NORTHWESTERLY LINE, SOUTHWESTERLY ALONG THE ARC OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 455.34 FEET THROUGH AN ANGLE OF 42 DEGREES 57 MINUTES 44 SECONDS, AN ARC DISTANCE OF 341.43 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM THAT PORTION OF SAID LOT 110 INCLUDED IN THE LAND DESCRIBED IN THE QUITCLAIM DEED RECORDED ON JANUARY 24, 2012 AS INSTRUMENT NO. 20120124062, OF OFFICIAL RECORDS. EXCEPT THEREFROM ALL SUBSURFACE RIGHTS, TITLE AND INTEREST IN AND TO ALL SUBSURFACE MINERAL RIGHTS EXISTING IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT TO ENTER UPON OR USE THE SURFACE OF SAID LAND FOR THE DEVELOPMENT, EXTRACTION AND REMOVAL OF MINERALS THEREUNDER, OR FOR ANY OTHER PURPOSE OR PURPOSES, AS DEED TO CHANSLOR-CANFIELD MIDWAY OIL COMPANY. BY DEED RECORDED IN BOOK 23513 PAGE 240, OFFICIAL RECORDS. PARCEL 2: THOSE PORTIONS OF LOTS 109, 110 AND 115 OF RANCHO LAGUNA (SO CALLED) IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED AS EXHIBIT "A" IN CASE NO. B 25296 OF SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAID COUNTY, AND THAT PORTION OF THE RANCHO SAN ANTONIO, AS SHOWN ON MAP RECORDED IN BOOK 1 PAGE 389 OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN THE FOLLOWING DESCRIBED BOUNDARIES: BEGINNING AT THE NORTHWESTERLY TERMINUS OF THAT CERTAIN CURVE DESCRIBED AS HAVING A RADIUS OF 6577.22 FEET AND AN ARC LENGTH OF 2244.08 FEET IN PARCEL 2 OF DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24, 1957 IN BOOK 53458 PAGE 311, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID CURVE BEING ON THE NORTHEASTERLY LINE OF THE 100 FOOT STRIP OF LAND CONVEYED TO THE CITY OF LOS ANGELES, DEPARTMENT OF WATER AND POWER, BY DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS; THENCE TANGENT TO SAID CURVE, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, ALONG SAID NORTHEASTERLY LINE, A DISTANCE OF 621.63 FEET TO A POINT ON A CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 468.34 FEET; THENCE NORTHEASTERLY FROM A TANGENT WHICH BEARS NORTH 16 DEGREES 19 MINUTES 07 SECONDS WEST, ALONG SAID CURVE THROUGH AN ANGLE OF 73 DEGREES 37 MINUTES 57 SECONDS, AN ARC DISTANCE OF 601.88 FEET; THENCE SOUTH 21 DEGREES 52 MINUTES 38 SECONDS EAST, A DISTANCE OF 268.32 FEET; THENCE SOUTH 27 DEGREES 05 MINUTES 17 SECONDS EAST, A DISTANCE OF 506.74 FEET; THENCE SOUTH 29 DEGREES 50 MINUTES 54 SECONDS EAST, A DISTANCE OF 210.27 FEET; THENCE SOUTH 35 DEGREES 45 MINUTES 42 SECONDS EAST, 269.32 FEET TO A POINT ON SAID NORTHEASTERLY LINE CURVED, HEREINABOVE DESCRIBED AS HAVING A RADIUS OF 6577.22 FEET; DISTANT THEREON 355.22 FEET SOUTHEASTERLY FROM SAID POINT OF BEGINNING; THENCE NORTHWESTERLY ALONG SAID CURVE LINE THROUGH AN ANGLE OF 3 DEGREES 05 MINUTES 40 SECONDS, AN ARC DISTANCE OF 355.22 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM ALL MINERALS, PETROLEUM, GASES AND OTHER HYDROCARBON SUBSTANCES EXISTING IN AND UNDER SAID LAND WITHOUT THE RIGHT TO ENTER UPON OR USE THE SURFACE OF SAID LAND FOR THE EXTRACTION AND REMOVAL OF SUCH SUBSTANCES OR FOR ANY OTHER PURPOSE OR PURPOSES, AS RESERVED IN DEED FROM CHANSLOR-CANFIELD MIDWAY OIL COMPANY, RECORDED ON JULY 18, 1944 IN BOOK 21013 PAGE 131, OFFICIAL RECORDS. PARCEL 3: THAT CERTAIN PORTION OF LOT 110 OF SAID RANCHO LAGUNA AND ALSO A PORTION OF SAID RANCHO SAN ANTONIO, IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING A PARCEL OF LAND, 60 FEET IN WIDTH, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST WESTERLY CORNER OF THAT CERTAIN RAILROAD RIGHT OF WAY DESCRIBED AS PARCEL 7 IN DEED RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE FROM SAID POINT OF BEGINNING, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, ALONG THE NORTHEASTERLY LINE AND ITS NORTHWESTERLY PROLONGATION OF THE 100 FOOT WIDE RIGHT OF WAY OF THE CITY OF LOS ANGELES, AS DESCRIBED IN DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS, 471.47 FEET, MORE OR LESS, TO THE SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD, AS DESCRIBED IN DEED RECORDED IN BOOK 864 PAGE 317, OFFICIAL RECORDS: THENCE NORTHEASTERLY ALONG SAID STREET LINE TO THE MOST WESTERLY CORNER OF THAT CERTAIN PROPERTY DESCRIBED IN DEED TO THE UNITED STATES OF AMERICA, RECORDED IN BOOK 20047 PAGE 238, OFFICIAL RECORDS; THENCE ALONG THE SOUTHWESTERLY LINE OF LAST SAID PROPERTY, SOUTH 54 DEGREES 28 MINUTES 35 SECONDS EAST. TO A POINT IN THE NORTHERLY LINE OF SAID RAILROAD RIGHT OF WAY; THENCE WESTERLY ALONG LAST SAID LINE TO THE POINT OF BEGINNING. EXCEPT THREFROM THAT PORTION OF SAID LOT 110 INCLUDED IN THE LAND DESCRIBED IN THE QUITCLAIM DEED RECORDED ON JANUARY 24, 2012 AS INSTRUMENT NO. 20120124062, OF OFFICIAL RECORDS. EXCEPT ALL OIL, GAS AND OTHER PETROLEUM OR MINERAL SUBSTANCES CONTAINED IN SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE ENTRY FOR THE PURPOSE OF EXTRACTING OR REMOVING SUCH PETROLEUM OR OTHER MINERALS OR FOR ANY PURPOSE IN CONNECTION THEREWITH, AS RESERVED IN THE DEED FROM CHANSLOR-CANFIELD OIL COMPANY, RECORDED IN BOOK 20565 PAGE 1, OFFICIAL RECORDS. PARCEL 4: THAT CERTAIN TRIANGULAR SHAPED PARCEL OF LAND IN SAID RANCHO SAN ANTONIO, IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BOUNDED SOUTHWESTERLY BY THE NORTHEASTERLY LINE OF THE 100 FOOT WIDE RIGHT OF WAY OF THE CITY OF LOS ANGELES, AS DESCRIBED IN DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS, BOUNDED EASTERLY BY THE WESTERLY LINE OF THAT CERTAIN RAILROAD RIGHT OF WAY, 33 FEET IN WIDTH, DESCRIBED IN DEED RECORDED IN BOOK 8118 PAGE 72, OFFICIAL RECORDS, AND BOUNDED NORTHERLY BY THE SOUTHERLY LINE OF THAT CERTAIN RAILROAD RIGHT OF WAY GENERALLY 33 FEET IN WIDTH, DESCRIBED AS PARCEL 7, IN DEED RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS. EXCEPT ALL OIL, GAS AND OTHER PETROLEUM OR MINERAL SUBSTANCES CONTAINED IN SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE ENTRY FOR THE PURPOSE OF EXTRACTING OR REMOVING SUCH PETROLEUM OR OTHER MINERALS OR FOR ANY PURPOSE IN CONNECTION THEREWITH, AS RESERVED IN THE DEED FROM CHANSLOR-CANFIELD OIL COMPANY, RECORDED IN BOOK 20565 PAGE 1, OFFICIAL RECORDS. EXHIBIT R SCOPE OF DEVELOPMENT Developer and the City agree that the Development shall be undertaken in accordance with the terms of the Agreement, which include the following: 1. The Development. Developer shall install the New Digital Billboards in accordance with the terins of this Agreement. The New Digital Billboards consist of one (1) 50' tall (75' from top of the sign to grade), "bulletin" size freeway -oriented billboard with a total of two (2) digital displays (each display measuring 14' x 48' within the billboard frame), and the angle created at the "V" of the two displays shall be the same angle as the existing "V" of the two existing static billboards — all as more specifically set forth in Exhibit "C,". Development shall also include removal, at Developer's sole cost and expense, of the one existing static display on the Site (the "Defunct Billboard"). If and when Developer elects to improve the Site with one or more permanent stuuctures, during such development Developer shall underground all utilities necessary for the New Digital Billboards, and the Site shall be maintained in accordance with the conditions at Paragraph 3 below. 2. Building. Developer shall pay all applicable City building fees, as described at Section 2.4 of the Agreement, at the time that a building pen -nit is issued for the installation of the New Digital Billboards on the Site. 3. Maintenance and Access. Developer, for itself and its successors and assigns, hereby covenants and agrees to be responsible for the following: (a) Maintenance and repair of the New Digital Billboards (where authorized pursuant to the Agreement, and including but not limited to, the displays installed thereon, and all related on -site improvements and, if applicable, easements and rights -of -way, at its sole cost and expense), including, without limitation, landscaping, poles, lighting, signs and walls (as they relate to the Development) in good repair, free of graffiti, rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Site, unless those federal, state, and local bodies have an exception for a legal nonconforming use. Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal related to the Development; (ii) the care and replacement of all shrubbery, plantings, and other landscaping or the painted backing in a healthy condition if damaged by the Development; (iii) the ongoing maintenance by Developer of any access road to the New Digital Billboards if damaged by the Development and to minimize dust caused by the Development; and (iv) the repair, replacement and repainting of the New Digital Billboards' structures and displays as necessary to maintain such billboards in good condition and repair. (b) Maintenance of the New Digital Billboards and surrounding portion of the Site in such a manner as to avoid the reasonable determination of a duly authorized official of the City that a public nuisance has been created by the absence of adequate maintenance of the Development such as to be detrimental to the public health, safety or general welfare, or that such 1030199.074 A 297944-00207/5-31-17/tb iu/s ne -2 5 - a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within three hundred (300) feet of the Site. (c) Developer shall reasonably coordinate with Owner or any neighboring property owners who share utilities or access roads to their separate respective billboards. The City may designate alternative access for planning purposes so long as such alternative access allows Developer to access the New Digital Billboards and related utilities. 4. Other Rights of the City. In the event of any violation or threatened violation of any of the provisions of this Exhibit "B," then in addition to, but not in lieu of, any of the rights or remedies the City may have to enforce the provisions of the Agreement, the City shall have the right, after complying with Section 4.3 of the Agreement, (i) to enforce the provisions hereof by undertaking any maintenance or repairs required by Developer under Paragraph 3 above (subject to the execution of a permit to enter in form reasonably acceptable to Owner) and charging Developer for any actual maintenance costs incurred in performing same, and (ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Development or any part thereof or interests therein as to the violating Party or one threatening violation. 5. No City Liability. The granting of a right of enforcement to the City does not create a mandatory duty on the part of the City to enforce any provision of the Agreement. The failure of the City to enforce the Agreement shall not give rise to a cause of action on the part of any person. No officer or employee of the City shall be personally liable to Developer, its successors, transferees or assigns, for any default or breach by the City under the Agreement. 6. Conditions of Approval. The following additional conditions shall apply to the installation of the New Digital Billboards and, where stated, landscaping adjacent to the New Digital Billboards, which billboards and landscaping or painted backing adjacent to the billboards, respectively, shall conform to all applicable provisions of the Development Approval and the following conditions, in a manner subject to the approval of the Director of Public Works or his or her designee: (a) A building permit(s) will be required, and structural calculations shall be prepared by a licensed civil engineer and approved by the Director of Public Works or his or her designee. (b) The New Billboards shall be located in the portion of the Site shown on Exhibit "C", and shall be of the dimensions described in Section 1, above. (c) The New Digital Billboard pole(s) shall have a column cover as depicted in the Site Plan and Elevations within Exhibit "C". In addition, the poles of both New Billboards will bear the name and/or logo of the City in a reasonable size and location on the pole(s). The Developer and the City shall work cooperatively with respect to the reasonable design on the poles with the City to have ultimate approval authority. (d) Plans and specifications for the proposed installation of the New Digital Billboards shall be submitted to the City for plan check and approval prior to the issuance of 1030199.07/1,A -26- 297944-00207/5- 3 1 -17/tbm/sne building permits. Plans and specifications for the proposed installation of the undergrounding of all utilities shall be submitted to the City for plan check and approval prior to the issuance of electrical permits. (e) Prior to the approval of the final inspection, all applicable conditions of approval and all mandatory improvements shall be completed to the reasonable satisfaction of the City. (f) Developer shall maintain the New Digital Billboards and use thereof in full compliance with all applicable codes, standards, policies and regulations imposed by the City, county, state or federal agencies by any duly and valid City, county or state ordinance with jurisdiction over the facilities, unless the Development is exempted as a legal nonconfonning use. (g) Developer shall, at all times, comply with the approval for the New Digital Billboards and New Static Billboard from the California Department of Transportation Outdoor Advertising Division, and shall maintain acceptable clearance between proposed billboards and Southern California Edison distribution lines. (h) Developer shall pay any and all applicable fees due to any public agency prior to the final issuance of the applicable building or electrical permits. (i) The activities proposed in the Agreement shall be conducted completely upon the Site and shall not use or encroach on any public right-of-way. 0) Developer shall ensure that all access to the New Digital Billboards is kept restricted to the general public to the extent permitted under local laws and by the Development Approval. (k) If any portion of the painted backing installed adjacent to the New Digital Billboards is damaged by the Development or becomes damaged, as detennined by the City's Director of Public Works or his or her designee, Developer shall repair, or cause to be repaired, such damage within thirty (30) days of written notification by the City, unless such time is extended by the City's Director of Public Works or his or her designee if Developer shows unusual circumstances requiring more time to accomplish such repair. (1) Developer shall coordinate its work with the requirements of the City's Gas & Electric Department to achieve the undergrounding of all utilities, as applicable. (m) Developer shall comply with all necessary federal National Pollutant Discharge Elimination System ("NPDES") requirements pertaining to the proposed use, to the extent applicable. (n) All graffiti shall be adequately and completely removed or painted over within 48 hours of notice to Developer of such graffiti being affixed on the Development. (o) Prior to final sign off of the building permit for the New Digital Billboards, the applicable landscaping or painted backing shall be installed at the Site. 1030199.07/LA 297944-00207/5-31-17hbm/sne -27- (p) Developer shall comply with State law regarding the limitation of light or glare or such other standards as adopted by the Outdoor Advertising Association of America, Inc. ("OAAA"), including but not limited to, the 0.3 foot-candles limitation over ambient light levels and ensuring additional flexibility in reducing such maximum light level standard given the lighting environment, the obligation to have automatic diming capabilities, as well as providing the City's Director of Public Works or his or her designee with a designated Developer employee's phone number and/or email address for emergencies or complaints that will be monitored 24 hours a day/7 days per week. Upon any reasonable complaint by the City's Director of Public Works or his or her designee, Developer shall dim the display to meet these guidelines and further perform a brightness measurement of the display using OAAA standards and provide the City with the results of same within ten (10) business days of the City's complaint. 1030199.07/LA -2 g- 297944-00207/5-31-17/ Ibm/s ne EXHIBIT C SITE PLAN AND BILLBOARD ELEVATIONS 1030199.07/LA 297944-00207/5-31-17/Ibm/sne -29- v CD o Z 3 Wo 0 CA)0 cn CD � D W C� w o CD co N Q 42' 14' m x. Ct) m n O O Cn On O D = 5 4 rT 00 o ID Z'CCD m c D D -I K n O .Ot D5 —_ 2) 4- 0. CDN C7 7 cMn, r m (n � N 7 NO _� =i, C? 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A ti t Aft 0 z LLI L ^ca cri co a iI C CL N 4-j i 'IW AW N O� ° ° PON* No -:.:-W Pik P; t N I 1 L� U) c W 0- cz cz 2-1 _j I EXHIBIT D SCHEDULE OF PERFORMANCE ITEM OF PERFORMANCE TIME FOR REFERENCE PERFORMANCE 1. [INTENTIONALLY LEFT BLANK] 2. Effective Date of this Agreement. 30 days following City 1.1.15 Council's second reading and adoption of ordinance approving Agreement 3. Developer prepares and submits to Within 120 days of City 3A City working drawings Council's second reading and specifications and engineering, the adoption of ordinance approving City commences approval process. Agreement 4. City to approve all construction and Within 30 days of City's receipt engineering drawings and of Developer's construction specifications with a plan check drawings and specifications approval, and issue a building addressing all of City's pen -nit and an electrical permit. comments. City agrees to any necessary building or electrical permits needed for Developer to acquire the Caltrans approvals. Developer agrees not to commence construction until it receives the applicable Caltrans approvals. 5. Developer to provide copy of Prior to commencing any 3.3, 3.4 Caltrans approval to City. inspections and work on the Development. 1030199.07/1.A -30- 297944-00207/ 5-31-17/tbm/s ne ITEM OF PERFORMANCE TIME FOR REFERENCE PERFORMANCE 6. Developer to submit proof of Prior to commencing any 6.1.2 insurance to City. inspections and work on the Development 7. Developer obtains unfinalled Prior to commencing work on 2.6.1 versions of the Final Permits and the Development provides notice to City of same. 8. Developer pays City first March 31 after Commencement 2.6.1 and 2.6.2 installment of Development Fee or Date Alternative Fee, if applicable, if Developer receives Final Permits 9. Developer pays City second March 31, two years after 2.6 installment and subsequent annual Commencement Date, and installments of the Development continuing throughout the Tenn. Fee if Developer receives Final Each payment occurring by Permits. March 31 of the year following the payment year of operation during the Term 10. Developer pays the Alternative Fee Within 90 days of the end of 2.7 if in excess of the Development each calendar year of the Term Fee. It is understood that this Schedule of Perfonnance is subject to all of the terms and conditions of the text of the Agreement. The summary of the items of performance in this Schedule of Perfonnance is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Schedule of Perfonnance and the text of the Agreement, the Agreement shall govern. The time periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both Developer and the City. 1030199.07J A 297944-00207/5-31-17/tbm/sne -31- Notwithstanding any extension of the Term in the manner described herein, and subject to the provisions of Section 3.5 of the Agreement, the City Administrator shall have the authority to approve extensions of time set forth in this Schedule of Performance without action of the City Council, not to exceed a cumulative total of 180 days. 1030199.074 A _3 �_ 297944-00207/5-31-17/Lbm/s ne FXTTTRTT F UAL EMPLOYMENT OPPORTUNITY PRACTICES PROVISI A. Developer and Owner certify and represent that, during the performance of this Agreement, Developer and each subcontractor shall adhere to equal opportunity employment practices to assure that applicants and employees are treated equally and are not discriminated against because of their race, religious creed, color, national origin, ancestry, handicap, sex, or age. Developer and Owner further certify that they will not maintain any segregated facilities. B. Developer and Owner agree that they shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of Developer or Owner, state that they are `Equal Opportunity Employers" or that all qualified applicants will receive consideration for employment without regard to their race, religious creed, color, national origin, ancestry, handicap, sex or age. C. Developer and Owner agree that they shall, if requested to do so by the City, certify that they have not, in the performance of this Agreement, discriminated against applicants or employees because of their membership in a protected class. D. Developer and Owner agree to provide the City with access to, and, if requested to do so by City, through its awarding authority, provide copies of all of their records pertaining or relating to their employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law. E. Nothing contained in this Agreement shall be construed in any manner as to require or permit any act which is prohibited by law. 1030199, 07 / LA 297944-00207/5-31-17/(bm/sne - 3 3 - E 4.` NAM31A/ - �41�� `O� f ,' ate} JUN 01 2017 'VLF `/'0MiNISTRATION CITY CLERK'S OMCE STAFF REPORT crrl x#- PUBLIC WORKS DEPARTMENT DATE: ,June 6, 2017 TO: Honorable Mayor and City Council 5Vuj FROM- Kevin Wilson, InlerDir� r of Public Works Originator: Sergio Canal*istant Planner RE: Ordinance Approving a Static Billboard Development Agreement and a Digital Billboard Development Agreement between the City of Vernon and Magellan Atlantic I, LLC., to Replace an Existing Static Billboard and Convert an Existing V-shape Static Billboard to a V-Shape Digital Billboard Along the I-710 Freeway Recommendation A. Find that the proposed action is exempt under the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15302, because the proposed development of the Billboards contemplates only replacement or reconstruction of existing structures or facilities on the same Site having substantially the same size, purpose, and capacity; and B. Open the Public Hearing and receive any comments from the public regarding the Development Agreements, and thereafter close the Public Hearing; and C. Approve the first reading, and adopt at a subsequent meeting, an ordinance approving a Static Billboard Development Agreement and a Digital Billboard Development Agreement between the City of Vernon and Magellan Atlantic I, LLC., to replace an existing static billboard and convert an existing V-shape static billboard to a V-shape digital billboard along the I-710 Freeway. Background The proposed site is located at 3030 Atlantic Boulevard and is approximately 14.7 acres in size and contains a 200,000 square foot industrial building. It also includes an underdeveloped 6.8 acre parcel located to the rear of the property. The proposed site is located in the C-1 Commercial Overlay District of the I -Zone, Industrial. Three billboard signs currently exist on the subject property. For the past year the City has been in negotiations with the property owner of 3030 Atlantic Boulevard, Magellan Atlantic I, LLC (Magellan), on two development agreements to replace an existing V-shape formation two (2) sided static billboards with two (2) new single -sided 14x48 billboard with one (1) single -sided 14x48 foot static display, which are both oriented towards the I-710 freeway. The third billboard will be removed and not replaced. Magellan is also proposing to increase the height of signs along the I-710 Freeway from thirty five (35) feet to fifty (50) feet as measured from the elevation of the adjacent roadway. The increase in height will allow better visibility as the sign is viewed from both sides of the I-710 Freeway. Pursuant to Section 26.9.2 of the City's Zoning Code, billboards are allowed subject to approval of a Development Agreement. The applicant, Magellan, is, therefore, requesting approval of the subject Development Agreements to allow the replacement and operation of a static billboard and V-shape digital billboard on the subject property. The Ordinance and both Development Agreements have been approved as to form by the City Attorney's office. Development Agreement Terms Term of Agreement and Renewal Unless terminated earlier as provided in this Agreement, this Agreement shall continue in full force and effect from the Effective Date until the earlier of. (i) thirty (30) years from the Effective Date; or (ii) when the New Digital Billboards are permanently removed (other than removal for repair or replacement) (the "Term"). At least thirty (30) days prior to the end of the Term, the Parties shall come to agreement on whether this Agreement is to be renewed for an additional term of years to be determined or is to expire by its own terms. If this Agreement expires on its own terms or is otherwise terminated, the Developer must remove the New Digital Billboards at the Developer's sole cost and expense. Processing Fee Upon submission of its application for the approvals granted by this Agreement, the Developer has paid to the City a processing fee ("Processing Fee") in the amount of Five Thousand Dollars ($5,000) for the New Digital Billboards and $5,000 for the static billboard. The City shall retain and use the Processing Fee, or any part thereof, for any public purpose within the City's discretion. The Processing Fee shall be separate from all fees which are standard and uniformly applied to similar projects in the City, including, but not limited to, business license fees (due by Developer to the City annually), one-time plan check fees and building permit fees, and any other fees imposed by Los Angeles County, as may be applicable. Development Fee The potential impacts of the Development on the City and surrounding community are difficult to identify and calculate. The Developer and the City agree that an annual development fee paid by the Developer to the City would adequately mitigate all such potential impacts. The Parties therefore agree that the Developer shall pay an annual development fee to the City, subject to the obligation to pay the Alternative Fee per Section 2.6.2 below. The Development Fee for the digital billboard shall be Forty Thousand Dollars ($40,000) per calendar year of the Term for each face of the two (2) New Digital Billboards i.e., $80,000 per year total for the New Digital Billboards). The Development Fee for the static billboard shall be $12,500 per year. The Development Fee shall be increased every three (3) years (each, an "Adjustment Period") in proportion to the adjustment over the same time to the U.S. all items Consumer Price Index for All Urban Consumers (CPI-U) for the Los Angeles -Orange -Riverside area, base period 1982- 1984, based upon the most recent month of publicly available CPI data available as of January 31 of the year of such increase; provided, however, that any CPI increase shall not exceed six percent (6%) of the Development Fee per Adjustment Period (each, a "CPI Increase"). For the Page 2 of 4 percent (6%) of the Development Fee per Adjustment Period (each, a "CPI Increase"). For the avoidance of doubt, should the Parties inadvertently fail to apply a CPI Increase at the end of any given Adjustment Period, such shall not be deemed a waiver of that particular CPI Increase, but rather, shall be added to any subsequent CPI Increase(s). Notwithstanding the foregoing, if any one or more digital faces of the New Digital Billboards is permanently reduced, removed (other than removal for repair or replacement) or destroyed (in its entirety), the Developer shall not be required to pay that portion of the Development Fee attributable to such face. Instead, the Developer shall pay the Development Fee for each face of the New Digital Billboards -turned - static as prescribed under the Static Billboard Agreement and prorated from the date the digital face(s) is/are permanently removed. Development Fee Payments. Alternative Fee For any calendar year of the Term where the Alternative Fee exceeds the Development Fee for the New Digital and static billboards, the Developer shall pay to the City the Alternative Fee, which is defined as an amount equal to eight percent (8%) of the gross advertising revenue from the Billboards during the preceding calendar year of the Term (the "Alternative Fee"). Gross advertising revenue shall specifically exclude advertising agency fees paid to the advertiser's advertising agency and/or brokerage fees paid to the sales brokers other than Developer and/or Operator. Furthermore, the gross advertising revenue is based solely on the basic advertising size, as recorded on the City's building permits, and does not include free -form cut-outs, solid extensions, back -lit displays, 3D presentations, tri-vision, stretch faces, additional art work reproductions or any other special treatment or appurtenances as required by the advertiser. Acknowledgment by Operator In the event the Developer enters into a contract or lease agreement with an Operator to operate the New Digital Billboards, such contract or lease agreement shall provide for Operator's acknowledgment of and consent to be bound by this Agreement. Upon execution of such a contract or lease agreement, the Developer shall deliver a copy to the City for its records. Prohibited Use Developer shall not utilize any of the displays on the New Digital Billboards to advertise tobacco, marijuana, hashish, any adult or sexually oriented businesses as defined in VMC Section 5.81.2, any products or services thereof, or show sexually oriented images or language, or as may be prohibited by any City ordinance existing as of the Effective Date of this Agreement. Safety and Appearance In addition to the requirements set forth in VMC Section 26.9.3-6 and under Section 26.9.3-6(f), the brightness of the New Digital Billboards shall be such that the difference of ambient light measurement and the New Digital Billboards light turned on to full white copy shall be no greater than 0.3 foot-candles when measured from a distance of 150 feet from the base of the New Digital Billboards. City Discount Businesses that are members of the Chamber and the Chamber itself shall be entitled to a 10% discount (from the "rate card" rates) for advertising on the New Digital Billboards. Page 3 of 4 City Use of New Digital Billboards Subject to availability (except in the case of an Emergency Situation, as defined below), the City may, free of charge, post public service announcements ("PSAs") on the New Digital Billboards for up to a maximum of five (5) weeks (i.e., 840 hours) every calendar year during the Term ("PSA Time"). PSA Time may be subdivided at the sole discretion of the City. In the case of a public safety emergency or natural disaster, including but not limited to a chemical or hazardous waste incident, explosion, earthquake, flood, or criminal incident (e.g., Amber Alerts) (each, an "Emergency Situation"), the City's PSA shall preempt any and all existing commercial advertising until the Emergency Situation has been abated and, in the reasonable discretion of the City, the PSA is no longer necessary to preserve the health and/or safety of the public. Emergency Situation PSAs shall not be charged to the City's PSA time. The City shall not, under any circumstances, be liable to the Developer or any third party for any losses incurred due to the City's posting of an Emergency Situation PSA. City Acknowledgement The Developer has agreed to display the City's name and logo on the skirt of both billboards. Fiscal Impact The terms in both Development Agreements establish the amount and timing of revenues that would flow to the City from the billboard operations. Once installed the Digital and Static Billboards will create a minimum revenue stream for the City of $92,500 per year, increasing annually in accordance with the consumer price index. Attachment(s) Ordinance approving a Static Billboard Development Agreement and a Digital Billboard Development Agreement Page 4 of 4 ORDINANCE NO. 1243 AN UNCODIFIED ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING A STATIC BILLBOARD DEVELOPMENT AGREEMENT AND A DIGITAL BILLBOARD DEVELOPMENT AGREEMENT BETWEEN THE CITY OF VERNON AND MAGELLAN ATLANTIC I, LLC WHEREAS, Magellan Atlantic I, LLC (the "Developer") has an ownership interest in that certain portion of real property within the City of Vernon (the "City"), located adjacent to, and on the western side of the I-710 freeway, commonly known as 3030 S. Atlantic Boulevard (the "Site"); and WHEREAS, there currently exist three (3) static billboard structures on the Site - one of which is a double -facing billboard in a "V" formation and the other two of which are single -sided billboards; and WHEREAS, the City and Developer desire for Developer to replace the existing "V" formation static billboards with two (2) new single -sided 14x48 foot digital displays placed in an identical "V" formation (together, the "Digital Billboards"), replace one existing static billboard with one (1) single -sided 14x48 foot static display which is oriented toward the I-710 freeway (the "Static Billboard" and together with the Digital Billboards, the "Billboards"), and remove the other existing billboard altogether; and WHEREAS, the City and the Developer have negotiated and prepared the form of the attached Static Billboard Development Agreement and Digital Billboard Development Agreement (together, the "Development Agreements"), the purpose of which is to memorialize, among other things, the respective duties of the parties with respect to development of the Billboards, as well as the benefits that will inure to each of the parties during the term of the Development Agreements; and WHEREAS, the City Council of the City of Vernon desires to approve the Development Agreements. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF VERNON HEREBY ORDAINS: SECTION 1: Recitals. The City Council hereby finds and determines that all of the foregoing recitals are true and correct. SECTION 2: Purpose and Authority. The purpose of this Ordinance is to approve a Static Billboard Development Agreement and a Digital Billboard Development Agreement with Magellan Atlantic I, LLC. This ordinance is authorized pursuant to Government Code Section 65864 through 65860.5. SECTION 3: Findings. In adopting this ordinance, the City Council makes the following findings: a) Approval of the Development Agreements is categorically exempt from review under the California Environmental Quality Act ("CEQA") under CEQA Guidelines section 15302, because the proposed development of the Billboards contemplates only replacement or reconstruction of existing structures or facilities on the same Site having substantially the same size, purpose, and capacity; and b) The proposed Development Agreements are consistent with the objectives, policies, and general land uses and programs of the City of Vernon General Plan; and c) The proposed Development Agreements will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, or detrimental to the general welfare of residents of the City as a whole; and - 2 - d) The proposed Development Agreements is consistent with the provisions of Government Code Sections 65864 through 65869.5; and e) The City Council has held a duly noticed public hearing on the proposed Development Agreements, and has considered the testimony presented at such public hearing. SECTION 4: Action. The City Council hereby approves the Static Billboard Development Agreement and a Digital Billboard Development Agreement, in substantially the form presented to the City Council, and attached hereto as Exhibits A and B. The Mayor or Mayor Pro-Tem is hereby authorized and directed to execute the Development Agreements for and on behalf of, the City of Vernon, and the City Clerk, or Deputy City Clerk, shall attest thereto. SECTION 5: Severability. If any chapter, article, section, subsection, subdivision, paragraph, sentence, clause, phrase, or word in this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have adopted this Ordinance and each chapter, article, section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more chapters, articles, sections, subsections, subdivisions, paragraphs, sentences, clauses, phrases or words be declared unconstitutional, or invalid, or ineffective. SECTION 6: Book of Ordinances. The City Clerk, or Deputy City Clerk, shall attest and certify to the adoption of this Ordinance and shall cause this Ordinance and the City Clerk's, or Deputy City - 3 - Clerk's, certification to be entered in the Book of Ordinances of the Council of this City. The City Clerk, or Deputy City Clerk, shall cause this ordinance to be published or posted as required by law. SECTION 7: This Ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage. APPROVED AND ADOPTED this day of , 2017. ATTEST: City Clerk / Deputy City Clerk APPROVED AS TO FORM: Brian Byun, Deputy City Attorney - 4 - Name: Title: Mayor / Mayor Pro-Tem STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, , City Clerk / Deputy City Clerk of the City of Vernon, do hereby certify that the foregoing Ordinance, being Ordinance No. 1243 was duly and regularly introduced at a regular meeting of the City Council of the City of Vernon, held in the City of Vernon on Tuesday, June 6, 2017, and thereafter adopted at a meeting of said City Council held on Tuesday, , by the following vote: AYES: Councilmembers: NOES: Councilmembers: ABSENT: Councilmembers: And thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of , 2017, at Vernon, California. (SEAL) - 5 - City Clerk / Deputy City Clerk EXHIBIT A [Exempt From Recording Fee Per Gov. Code §6103] STATIC BILLBOARD DEVELOPMENT AGREEMENT This Static Billboard Development Agreement (hereinafter "Static Billboard Agreement" or "Agreement") is entered into this day of , 2017 (hereinafter the "Effective Date"), by and between the City of Vernon, a California chartered City and municipal corporation of the State of California (hereinafter "City"), and Magellan Atlantic I, LLC, a California limited liability company (hereinafter "Magellan"). RFCTTAiS A. California Government Code Sections 65864 et seq. (the "Development Agreement Law") authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purposes of strengthening the public planning process, encouraging private participation and comprehensive planning, and identifying the economic costs of such development. B. Owner (as defined in Section 1.1.21 below) has an ownership interest in that certain portion of real property, located adjacent to, and on the western side of, the south -bound lanes of the 710 Freeway, commonly known as 3030 S. Atlantic Blvd. in the City of Vernon, Assessor Parcel Number 6314-033-002, as more specifically described in Exhibit "A" and depicted at Exhibit "C", attached hereto and incorporated herein, upon which the Development (as defined below) is located (the "Site"). C. Developer (as defined in Section 1.1.11 below) seeks to install two (2) new single - sided 14 x 48 foot digital displays placed in a "V" formation (together, the "New Digital Billboards") and one (1) single -sided 14 x 48 foot static display (the "New Static Billboard") which is oriented toward the 710 Freeway, as depicted in Exhibit "C" (collectively the New Digital Billboards and New Static Billboard are referred to as the "New Billboards"). D. Given the different terms and conditions of the New Billboards, the Parties have agreed to execute two separate and independent agreements for each of (i) the New Digital Billboards and (ii) the New Static Billboard. The agreement for the New Digital Billboards shall be referred to as the "Digital Billboard Agreement". E. Owner has consented to Developer's application for this Agreement, and Developer, as the owner of a leasehold, license or easement interest in the Development, has a legal and/or equitable interest in a portion of the Site and thus qualifies to enter into this Agreement in accordance with the Development Agreement Law. F. In exchange for the City approvals sought by Developer for the New Static Billboard as provided herein, Developer is agreeable to, among other things, paying to the City an annual Development Fee or Alternative Fee for the New Static Billboard, whichever is greater, as defined and provided in Sections 2.6.1 and 2.6.2 below, for the cost to the City to mitigate the impact of the installation of the New Static Billboard. 1062963.03/LA 297 944-00207/6-1 -17/j d/sne G. The Site is located within the City's Industrial Zone, and, pursuant to section 26.9.2 of the Vernon Municipal Code ("VMC"), may be developed by installing, constructing, modifying, or replacing the New Static Billboard, subject to, among other things, City Council approval of this Agreement. H. Developer and the City agree that a development agreement should be approved and adopted to memorialize the property expectations of the City and Developer, as more particularly described herein. I. The City Council finds 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, and this Agreement is consistent with the City's General Plan and with the VMC in all respects. Further, the City Council has found that approval of this Agreement and the Development itself are categorically exempt from review under the California Environmental Quality Act ("CEQA") under CEQA Guidelines section 15302, because the Development contemplates only replacement or reconstruction of existing structures or facilities on the same site having substantially the same size, purpose, and capacity. This Agreement and the proposed Development will achieve a number of City objectives, including utilizing the Site for a revenue -generating use. J. The purpose of this Agreement is to set forth the rules and regulations applicable to the Development, which shall be accomplished in accordance with this Agreement, including the Scope of Development (Exhibit "B"), which sets forth a description of the Development and the Schedule of Performance (Exhibit "D"). COVENANTS NOW, THEREFORE, in consideration of the above preamble and recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Developer and Owner agree as follows: 1. DEFINITIONS AND EXHIBITS. 1.1 Definitions. This Agreement uses a number of terms having specific meanings, as defined below. These specially defined terms are distinguished by having the initial letter capitalized, when used in the Agreement. In addition to the terms defined in the Recitals above, the defined terms include the following: 1.1.1 "Agreement" means this Static Billboard Development Agreement and all attachments and exhibits hereto. 1.1.2 "Alternative Fee" shall have the meaning set forth at Section 2.6.2. 1.1.3 "Amendment" shall have the meaning set forth at Section 2.3. 1.1.4 "Caltrans" means the California Department of Transportation. 1.1.5 "CEQA" means the California Environmental Quality Act (Public Resources Code Section 21000 et seq.), as it may be amended from time to time. 1062963.03/LA 297944-00207/6-1-17/j d/sne -2- 1.1.6 "Chamber" means the Vernon Chamber of Commerce. 1.1.7 "City" means the City of Vernon, a California chartered City and municipal corporation. 1.1.8 "City Council" means the City Council of the City. 1.1.9 "Commencement Date" shall have the meaning set forth at Section 2.6.1. 1.1.10 "County Recorder" means the Los Angeles County Registrar -Recorder / County Clerk. 1.1.11 "Developer" means any party holding the exclusive leasehold, license or easement interest in the Development. If there is no party holding an exclusive leasehold, license or easement interest in the Development, the Developer shall be the Owner. The current Developer is Magellan, and its successors and assigns. 1.1.12 "Development" means the design and installation of the New Static Billboard on the Site. 1.1.13 "Development Approval" means approval of this Agreement and all necessary variances or code amendments related thereto, collectively, by any and all applicable governmental agencies, including the City, and as applicable, Caltrans. 1.1.14 "Development Fee" shall have the meaning set forth at Section 2.5. 1.1.15 "Director of Public Works" shall mean the City's Director of Public Works (whether interim or permanent) or his/her designee. 1.1.16 "Effective Date" means the date inserted into the preamble of this Agreement, which is thirty (30) days following Development Approval #3. 1.1.17 "Final Permits" means any and all required permits to maintain and operate the New Static Billboard as contemplated in Section 3.3 (including, without limitation, all utilities required by the New Static Billboard), which such permits have been "finaled" by the applicable inspectors. 1.1.18 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of the City, including, but not limited to, the City's General Plan and VMC, including, but not limited to, the Zoning Code [VMC, Ch. 26], which govern development and use of the Site, including, without limitation, the permitted use of the Site, the density or intensity of use, subdivision requirements, the maximum height and size of the New Billboards and the design, improvement and construction standards and specifications applicable to the Development or the Site which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement. Land Use Regulations shall also include the federal National Pollutant Discharge Elimination System ("NPDES") regulations and approvals from the California Department of Transportation Outdoor Advertising Division, to the extent applicable. 1062963.03/LA 297944-00207/6-1-17/j d/sne -3 - 1.1.19 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security device, a lender or each of their respective successors and assigns. 1.1.20 "Operator" means the person or entity who operates the New Static Billboard, contracts directly with advertisers, and collects revenues directly from advertisers. The Owner or Developer may be the Operator. 1.1.21 "Owner" means the party holding the fee interest in the Site. The current Owner is Magellan, and its successors and assigns. 1.1.22 "Party" means Owner, Developer or City. 1.1.23 "Parties" means, collectively, Owner, Developer and City. 1.1.24 "Site" shall have the meaning provided in Recital B. 1.1.25 "Schedule of Performance" means the Schedule of Performance attached hereto as Exhibit "D" and incorporated herein. 1.1.26 "Scope of Development" means the Scope of Development attached hereto as Exhibit "B" and incorporated herein. 1.1.27 "Subsequent Land Use Regulations" means any Land Use Regulations effective after the Effective Date of this Agreement (whether adopted prior to or after the Effective Date of this Agreement) which govern development and use of the Site. 1.1.28 "Subsequent Development Approvals" means any approval sought by Developer in connection with future changes desired to be made by Developer to the Development following its initial completion. 1.1.29 "Term" shall have the meaning provided in Section 2.3, unless earlier terminated as provided in this Agreement. 1.1.30 "VMC" shall mean the Vernon Municipal Code, as such shall be amended from time to time. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit "A" (Legal Description of Site), Exhibit "B" (Scope of Development), Exhibit "C" (Site Plan and Elevations), Exhibit "D" (Schedule of Performance), and Exhibit "E" (City's Equal Employment Opportunity Practice Provisions). 2. GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Developer with respect to the Development, including actions by the City on applications for Subsequent Development Approvals affecting the Site, shall be subject to the terms and provisions of this Agreement; provided, however, that nothing in this Agreement shall be deemed or construed: (i) to bind or restrict Developer with respect to its ownership or operation of the Development, except as expressly set forth in this Agreement, or (ii) to impose any 1062963.03/LA 297944-00207/6-1-17/jd/sne -4- obligation whatsoever on Owner with respect to the Development, except as expressly set forth in this Agreement. 2.2 Interest in Site. The City and Developer acknowledge and agree that Developer has a legal and/or equitable interest in the Site, and thus is qualified to enter into and be a party to this Agreement under the Development Agreement Law. 2.3 Term of Agreement and Renewal. Unless terminated earlier as provided in this Agreement, this Agreement shall continue in full force and effect from the Effective Date until the earlier of: (i) thirty (30) years from the Effective Date; or (ii) when the New Static Billboard is permanently removed (other than removal for repair or replacement) (the "Term"). At least thirty (30) days prior to the end of the Term, the Parties shall come to agreement on whether this Agreement is to be renewed for an additional term of years to be determined or is to expire by its own terms. If the Parties agree to renew this Agreement, the Parties shall execute a written amendment to this Agreement ("Amendment"), which shall be approved by the City Council. If the Parties have agreed to enter into the Amendment prior to the expiration of the Term, then the Term shall automatically be extended to the day prior to the effective date of the Amendment. If this Agreement expires on its own terms or is otherwise terminated earlier pursuant to Section 5 of this Agreement, then within thirty (30) days after the termination of this Agreement, the Developer and the City shall execute a written cancellation of this Agreement which shall be recorded with the County Recorder pursuant to Section 8.1 below. If no Amendment is agreed to following termination of the Agreement (but by no later than the recording of the written cancellation of the Agreement), the New Static Billboard shall be removed at Developer's sole cost and expense. 2.4 Processing Fee. Upon submission of its application for the approvals granted by this Agreement, Developer has paid to the City a processing fee ("Processing Fee") in the amount of Five Thousand Dollars ($5,000) for the New Static Billboard. The City shall retain and use the Processing Fee, or any part thereof, for any public purpose within the City's discretion. The Processing Fee shall be separate from all fees which are standard and uniformly applied to similar projects in the City, including, but not limited to, business license fees (due by Developer to the City annually), one-time plan check fees and building permit fees, and any other fees imposed by Los Angeles County, as may be applicable. 2.5 Development Fee. The potential impacts of the Development on the City and surrounding community are difficult to identify and calculate. Developer and the City agree that an annual development fee paid by Developer to the City would adequately mitigate all such potential impacts. The Parties therefore agree that Developer shall pay an annual development fee to the City, subject to the obligation to pay the Alternative Fee per Section 2.6.2 below. The development fee shall be Twelve Thousand Five Hundred Dollars ($12,500) per calendar year of the Term for the New Static Billboard (the "Development Fee"). The Development Fee shall be increased every three (3) years (each, an "Adjustment Period") in proportion to the adjustment over the same time to the U.S. all items Consumer Price Index for All Urban Consumers (CPI-U) for the Los Angeles -Orange -Riverside area, base period 1982-1984, based upon the most recent month of publicly available CPI data available as of January 31 of the year of such increase; provided, however, that any CPI Increase shall not exceed six percent (6%) of the Development Fee per Adjustment Period (each, a "CPI Increase"). For the avoidance of doubt, should the Parties inadvertently fail to apply a CPI Increase at the end of any given Adjustment Period, such shall 1062963.03/LA 297944-00207/6-1 -17/j d/sne -$- not be deemed a waiver of that particular CPI Increase, but rather, shall be added to any subsequent CPI Increase(s). Notwithstanding the foregoing, if the face of the New Static Billboard is removed (other than removal for repair or replacement) or destroyed (in its entirety), Developer shall not be required to pay the Development Fee otherwise payable by Developer for the New Static Billboard. If the face of the New Static Billboard is permanently reduced, Developer shall be required to pay the greater of the Development Fee, less the percentage of the Development Fee correlative to the percentage reduction in the size of the face of the New Static Billboard, and the Alternative Fee. 2.6 Development Fee Payments. 2.6.1 Development Fee: The Development Fee for the prior calendar year shall be due and payable no later than March 31 of the following calendar year, with the first installment prorated and due no later than the first March 31 after the initial calendar year Developer receives the Development Approval for the New Billboards from the applicable governmental authorities and the Final Permits. Developer shall provide notice to the City within five (5) business days of its receipt of all Final Permits. The initial Development Fee (or Alternative Fee per Section 2.6.2) shall be calculated from the day the City receives such notice (the "Commencement Date"). Nothing herein relieves the City from its contractual duty to issue all municipal building permits that are associated with the Development if Developer is in compliance with the terms of this Agreement. 2.6.2 Alternative Fee: For any calendar year of the Term where the Alternative Fee, as defined in this Section 2.6.2, exceeds the Development Fee described at Section 2.6.1 above for the New Static Billboard, Developer shall pay to the City the Alternative Fee, which is defined as an amount equal to eight percent (8%) of the gross advertising revenue from the New Static Billboard during the preceding calendar year of the Term (the "Alternative Fee"). If the Development Fee is greater than the Alternative Fee for any calendar year, then the Developer shall pay to the City the Development Fee. Within ninety (90) days following the end of each calendar year of the Term hereof, and ending within ninety (90) days after the end of the Term or earlier termination of the Agreement, Developer shall furnish to the City a statement in writing, certified by Developer (and/or Operator, as applicable) to be correct, showing the total gross advertising revenues made from the New Static Billboard during the preceding calendar year of the Term. Gross advertising revenue shall specifically exclude advertising agency fees paid to the advertiser's advertising agency and/or brokerage fees paid to the sales brokers other than Developer and/or Operator. Furthermore, the gross advertising revenue is based solely on the basic advertising size, as recorded on the City's building permits, and does not include free -form cut- outs, solid extensions, back -lit displays, 3D presentations, tri-vision, stretch faces, additional art work reproductions or any other special treatment or appurtenances as required by the advertiser. 2.7 Audit of Alternative Fee. With prior written notice to Developer of not less than ten (10) business days, the City shall have the right to audit gross advertising revenue for the New Static Billboard and to view those portions of any advertising space contracts or invoices that relate to the New Static Billboard, at Developer's (and/or Operator's, as applicable) office, on normal workdays between 9:00 a.m. and 4:00 p.m. once a year. Prior to the audit, the City shall, at Developer's (and/or Operator's, as applicable) request, sign a confidentiality agreement regarding the advertising space contracts and invoices. If the statement of total gross advertising revenue previously provided to the City is found by the City to be inaccurate for the prior calendar year of the Term, then, and in that event, there shall be an adjustment and within ten (10) business days 1062963.03/LA 297944-00207/6-1-17/j d/sne -6- upon receiving written demand, one party shall pay to the other such sums as may be necessary to settle in full the accurate underpayment or overpayment of the Alternative Fee, if any, that should have been paid for the period covered by such inaccurate statement. If said audit discloses an underpayment of greater than five percent (5%) with respect to the amount of total gross advertising revenue reported for the period of said report, then Developer (and/or Operator, as applicable) shall immediately pay to the City the cost of such audit, plus ten percent (10%) interest per annum on the amount underpaid from the date of submission of the Development Fee or the Alternative Fee, as applicable. If the audit does not disclose an underpayment of greater than five percent (5%) with respect to the amount of total gross advertising revenue reported for the period of said report, the cost of such audit shall be paid by the City and no interest payment is due thereon. 2.8 Acknowledgment by Operator. In the event Developer enters into a contract or lease agreement with an Operator to operate the New Static Billboard, such contract or lease agreement shall provide for Operator's acknowledgment of and consent to be bound by this Agreement, including but not limited to Sections 2.6, 2.7, 2.9, 2.10, and 4.2. Upon execution of such a contract or lease agreement, Developer shall deliver a copy to the City for its records. 2.9 Prohibited Use. Developer shall not utilize the New Static Billboard to advertise tobacco, marijuana, hashish, any adult or sexually oriented businesses as defined in VMC Section 5.81.2, any products or services thereof, or show sexually oriented images or language, or as may be prohibited by any City ordinance existing as of the Effective Date of this Agreement. 2.10 City Discount. Businesses that are members of the Chamber and the Chamber itself shall be entitled to a 10% discount (from the "rate card" rates) for advertising on the New Static Billboard. 3. DEVELOPMENT AND IMPLEMENTATION OF THE DEVELOPMENT. 3.1 Rights to Develop. Subject to and during the Term of this Agreement, Owner and Developer shall have the right to develop the Site in accordance with, and to the extent of, the Development Approval, the Land Use Regulations and this Agreement, provided that nothing in this Agreement shall be deemed to modify or amend any of the pre-existing Land Use Regulations, as more particularly set forth in Section 3.2 below. 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, the rules, regulations and official policies governing the density and intensity of use of the New Static Billboard on the Site, the maximum height and size of the New Static Billboard on the Site, and the design, improvement and construction standards and specifications applicable to the New Static Billboard shall be as set forth in the Land Use Regulations which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement. 3.3 Development Approval. Developer, at its own expense and before commencement of demolition, construction or development of the New Static Billboard or other work of improvement upon the Site, shall secure or cause to be secured the Development Approval, a Conditional Use Permit and/or variances, as necessary, and building permit(s), as necessary, from the City, and any and all permits and approvals which may be required by any other 1062963.03/LA 297944-00207/6-1-17/jd/sne -7- governmental agency or utility affected by such construction, development or work to be performed by Developer, including but not limited to Caltrans, pursuant to the Scope of Development. Not by way of limiting the foregoing, in developing and constructing the Development, Developer shall comply with all: (1) applicable development standards in the VMC, (2) applicable NPDES requirements pertaining to the Development, (3) applicable conditions placed on the Development by Caltrans, and (4) applicable building codes, except as may be permitted through approved variances and modifications. Developer shall pay all normal and customary fees and charges applicable to such permits, and the Development Fee or Alternative Fee, as applicable. 3.4 Timing of Development; Scope of Development. Developer shall commence the Development within the time set forth in the Schedule of Performance, attached hereto as Exhibit "D". "Commencement" of the Development is defined herein as commencement of construction or improvements under the City building permit(s) for the construction of the New Static Billboard on the Site, which shall occur as soon as possible following Developer's receipt of the Development Approval and Final Permits. In the event that Developer fails to meet the schedule for Commencement of the Development, then after mutual compliance with Section 4.3, either the City or Developer may terminate this Agreement by delivering written notice to the other party, and, in the event of such termination, neither the City nor Developer shall have any further obligation hereunder. However, if circumstances within the scope of Section 8.11 delay the Commencement or completion of the Development, then such delays shall not constitute grounds for any termination rights found within this Agreement. In such case, the timeline to commence or complete the relevant task shall be extended in the manner set forth at Section 8.11. Notwithstanding the above, Developer shall, at all times, comply with all other obligations set forth in this Agreement regarding the construction or improvement of the New Static Billboard on the Site. Developer shall also maintain the New Static Billboards at all times during the Term in accordance with the maintenance provisions set forth in Section 3 of the Scope of Development, attached as Exhibit `B" herein. 3.5 Changes and Amendments. Developer may determine that changes to the Development Approval are appropriate and desirable. In the event Developer makes such a determination, Developer may apply in writing for an amendment to the Development Approval to effectuate such change(s). The Parties acknowledge that the City shall be permitted to use its inherent land use authority in deciding whether to approve or deny any such amendment request; provided, however, that in exercising the foregoing reasonable discretion, the City shall not apply a standard different than that used in evaluating requests of other similarly situated developers. Accordingly, under no circumstance shall the City be obligated in any manner to approve any amendment to the Development Approval. The City Administrator or his/her designee shall be authorized to approve any non -substantive amendment to the Development Approval without processing an amendment to this Agreement. All other amendments may require the approval of the City Council. Nothing herein shall cause Developer to be in default if it upgrades the New Static Billboard pursuant to this Agreement during the Term of this Agreement to incorporate newer technology; provided, however, Developer shall secure all applicable ministerial permits to do so and such upgrade is consistent with the dimensions and standards for the display, as provided under this Agreement, Land Use Regulations and Subsequent Land Use Regulations and does not involve changing the New Static Billboard into a digital billboard. 1062963.03/LA 297944-00207/6-1 -17/j d/sne -8- 3.6 Reservation of Authority. 3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the Development: (a) Processing fees and charges imposed by the City to cover the estimated actual costs to the City of processing applications for Subsequent Development Approvals relating to the Development. (b) Procedural regulations consistent with this Agreement relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. (c) Changes to the California Building Code, California Fire Code, California Plumbing Code, California Mechanical Code, and California Electrical Code, as adopted by the City as Subsequent Land Use Regulations, if adopted prior to the issuance of a building permit for development of the New Billboards. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. (d) Regulations that are not in conflict with the Development Approval or this Agreement. (e) Regulations that are in conflict with the Development Approval or this Agreement, provided Developer has given written consent to the application of such regulations to the Development. (f) Applicable federal, state, county and multi jurisdictional laws and regulations which the City is required to enforce against the Site or the Development, and that do not have an exception for existing signs or legal nonconforming uses. 3.6.2 Future Discretion of the City. This Agreement shall not prevent the City from denying or conditionally approving any application for a Subsequent Development Approval on the basis of the Land Use Regulations or Subsequent Land Use Regulations then in effect. 3.6.3 Modification or Suspension by Federal, State, County, or Multi - Jurisdictional Law. In the event that applicable federal, state, county or multi jurisdictional laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, and there is no exception for the legal nonconforming use, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such federal, state, county or multi jurisdictional laws or regulations, and this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining 1062963.03/LA 297944-00207/6-1-17/j d/sne -9- provision impractical to enforce. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 3.7 Regulation by Other Public Agencies. It is acknowledged by the Parties that other public agencies not subject to control by the City may possess authority to regulate aspects of the Development as contemplated herein, and this Agreement does not limit the authority of such other public agencies. Developer and Owner acknowledge and represent that, in addition to the Land Use Regulations, Developer and Owner shall, at all times, comply with all applicable federal, state and local laws and regulations applicable to the Development and that do not have an exception for a legal nonconforming use. To the extent such other public agencies preclude development or maintenance of the Development and do not have an exception for a legal nonconforming use, Developer and Owner shall not be further obligated under this Agreement except as provided in Section 4.1. Notwithstanding the foregoing, if such action by another public agency materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, then (a) Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City, or (b) if moving the New Static Billboard to another location on the Site would reduce the impact of such public agency action, Developer or Owner (at their sole cost and expense) may relocate the New Static Billoboard to another location on the Site as reasonably determined by Developer or Owner, and the City shall reasonably cooperate with such relocation of the New Static Billboard (e.g., if Caltrans widens the 710 Freeway in such a manner that necessitates removal/relocation of the New Static Billboard, Developer or Owner can relocate the New Static Billboard on the Site), and if requested by Developer or Owner, the City shall enter into a relocation agreement with the Developer or Owner pursuant to Section 5412 of the California Outdoor Advertising Act. 3.8 Public Improvements. Notwithstanding any provision herein to the contrary, the City shall retain the right to condition any Subsequent Development Approvals on the requirement that Developer pay subsequently required development fees, and/or construct certain subsequently required public infrastructure ("Exactions") at such time as the City shall determine, subject to the following conditions: 3.8.1 The payment or construction must be to alleviate an impact caused by the Development or be of benefit to the Development; and 3.8.2 The timing of the Exaction should be reasonably related to the development of the Development, and said public improvements shall be phased to be commensurate with the logical progression of the development of the Development, as well as the reasonable needs of the public. 3.8.3 It is understood, however, that if there is a material increase in cost to Developer or Owner, or such action by the City otherwise materially impacts Developer or Owner or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 3.9 Fees, Taxes and Assessments. During the Term of this Agreement, the City shall not, without the prior written consent of Developer, impose any additional fees, taxes or 1062963.03/LA 297944-00207/6-1-17/j d/sne -1 �- assessments on all or any portion of the Development, except such fees, taxes and assessments as are described in or required by this Agreement and/or the Development Approval. However, this Agreement shall not prohibit the application of fees, taxes or assessments upon the Site only and not on the New Static Billboard or Developer directly, as follows: 3.9.1 Developer shall be obligated to pay those fees, taxes or City assessments and any increases in same which exist as of the Effective Date or are included in the Development Approval; 3.9.2 Developer shall be obligated to pay any fees or taxes, and increases thereof, imposed on a City-wide basis including, but not limited to, business license fees or taxes or utility taxes; 3.9.3 Developer shall be obligated to pay all fees applicable to a permit application as charged by the City at the time such application is filed by Developer; and 3.9.4 Developer shall be obligated to pay any fees imposed pursuant to any Uniform Code that existed when the permit application is filed by Developer or that exists when Developer applies for any Subsequent Development Approval. 3.10 Changes. Notwithstanding anything to the contrary herein, if there is a change in such fees as compared to those fees in effect as of the Effective Date, or if any additional fees are charged and such additional or increased fees materially change Developer or Owner's costs or otherwise materially impact their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 4. REVIEW FOR COMPLIANCE. 4.1 Annual Review. The City Council shall have the right to review this Agreement annually at the City's sole cost, on or before the anniversary of the commencement of the Term, to ascertain the good faith compliance by Developer with the terms of this Agreement ("Annual Review"). However, no failure on the part of the City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement or serve as a waiver of the City's right to conduct an Annual Review in a year subsequent to a year in which an Annual Review was not conducted. Developer shall cooperate with the City in the conduct of any such Annual Review and, upon written request, provide the following information and documentation to the City at least thirty (30) days before the anniversary of the commencement of the Term: (a) any updates to Developer's contact information related to complaints concerning the New Static Billboard, as required in the conditions at Exhibit "B", Section 6 herein, (b) status and amount of all payment obligations to the City required under this Agreement for the year in question and cumulatively beginning from the commencement of the Term, (c) any easement changes that could in any way materially impact the City or Developer's obligations under this Agreement, (d) any utility changes that could in any way materially impact the City or Developer's obligations under this Agreement, and (e) any maintenance issues addressed or needing to be addressed per the requirements of Exhibit "B". 4.2 City's Rights of Physical Access. The City and its officers, employees, agents and contractors shall have the right, at their sole risk and expense and upon reasonable notice to 1062963.03/LA 297944-00207/6-1-17/jd/sne -1 1- Developer, to enter the Site without interfering with any railroad or other right-of-way, and at all reasonable times with as little interference as possible, for the purpose of inspecting the New Static Billboard. Such inspection must be conducted from a lift operated by Developer, its employees, agents, or contractors, at no additional cost to Developer. Any damage or injury to the Site or to the improvements constructed thereon resulting from such entry shall be promptly repaired at the sole expense of the City. 4.3 Procedure. Each Party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with this Agreement, to explain the basis for such assertion, and to receive from the other Party a justification of its position on such matters. If, on the basis of the Parties' review of any terms of this Agreement, either Party concludes that the other Party has not complied in good faith with the terms of this Agreement, then such Party may serve a written "Notice of Non -Compliance" specifying the grounds therefor and all facts demonstrating such non-compliance. The Party receiving a Notice of Non -Compliance shall have thirty (30) days to cure or remedy the non-compliance identified in the Notice of Non -Compliance, but if such cure or remedy is not reasonably capable of being cured or remedied within such thirty (30)-day period, then the Party receiving a Notice of Non -Compliance shall commence to cure or remedy the non-compliance within such thirty (30)-day period and thereafter diligently and in good faith prosecute such cure or remedy to completion. If the Party receiving the Notice of Non - Compliance does not believe it is out of compliance and contests the Notice of Non -Compliance, it shall do so by responding in writing to said Notice of Non -Compliance within thirty (30) days after receipt of the Notice of Non -Compliance. If the response to the Notice of Non -Compliance has not been received in the office of the Party alleging the non-compliance within the prescribed time period, the Notice of Non -Compliance shall be conclusively presumed to be valid. If a Notice of Non -Compliance is contested, the Parties shall, for a period of not less than fifteen (15) days following receipt of the response, seek to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice of Non -Compliance. In the event that a cure or remedy is not timely completed, the Party alleging the non-compliance may thereupon pursue the remedies provided in Section 5; provided, however, that if the Notice of Non -Compliance is contested and the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15)-day period, then either Party shall have the right to seek a judicial determination of such contested matter. Neither Party hereto shall be deemed in breach if the reason for non-compliance is due to "force majeure" as defined in, and subject to the provisions of, Section 8.11. 4.4 Certificate of Agreement Compliance. If, at the conclusion of an Annual Review, Developer is found to be in compliance with this Agreement, the City shall, upon request by Developer, issue within ten (10) days of receipt of the request, a written confirmation ("Certificate") to Developer stating that, after the most recent Annual Review, and based upon the information known or made known to the City Administrator and the City Council, that (a) this Agreement remains in effect, and (b) Developer is in compliance with same. The Certificate shall be in recordable form if requested by Developer, and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer may record the Certificate with the County Recorder. Additionally, in the event a Certificate issues or will issue, Developer may, at any time, request from the City a Certificate stating, in addition to the foregoing, which specific obligations under this Agreement have been fully satisfied with respect to the Site, and City shall respond within ten (10) days of receipt of the request. If the City fails to respond to 1062963.03/LA 297944-00207/6-1-17/jd/sne -12- Developer's request pursuant to this Section 4.4, Developer shall be deemed to be in compliance with this Agreement or any obligation that is the subject of Developer's request. 5. DEFAULT AND REMEDIES. 5.1 Termination of Agreement. 5.1.1 Termination of Agreement for Material Default of Developer. The City, in its discretion, may terminate this Agreement for any material failure of Developer to perform any material duty or obligation of Developer hereunder or to comply in good faith with the terms of this Agreement; provided, however, the City may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 4.3. In the event of a termination by the City under this Section 5.1.1, Developer acknowledges and agrees that the City may retain all fees accrued up to the date of the termination, including the Processing Fee and any Development Fees or Alternative Fees, as applicable, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee or Alternative Fee, as applicable, within sixty (60) days after the date of termination that equates to the percentage of time elapsed in the year of the Term at the time of termination. 5.1.2 Termination of Agreement for Material Default of the City. Developer, in its discretion, may terminate this Agreement for any material failure of the City to perform any material duty or obligation of the City hereunder or to comply in good faith with the terms of this Agreement; provided, however, Developer may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 4.3. In addition, Developer may terminate this Agreement if, despite Developer's good faith efforts, (a) it is unable to secure the Development Approval, Final Permits and/or compliance with requirements under laws necessary to effectuate the Development, or (b) any governmental agency has concluded a taking or regulatory taking of the Site and/or the Development, or (c) it is unable to profitably operate the Development after two (2) full years from the Commencement Date. In the event of a termination by Developer under this Section 5.1.2, Developer acknowledges and agrees that the City may retain all fees, including the Processing Fee and any Development Fees or Alternative Fees, as applicable, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee or Alternative Fee, as applicable, within sixty (60) days after the date of termination that equates to the percentage of time elapsed in the year of the Term at the time of termination. 5.1.3 Rights and Duties Following Termination. Upon the termination of this Agreement, no Party shall have any further right or obligation hereunder except with respect to (a) any obligations to have been performed prior to said termination, (b) any default in the performance of the provisions of this Agreement which has occurred prior to said termination, (c) Developer's obligation to remove the New Static Billboard pursuant to Section 2.3, or (d) any continuing obligations to indemnify the other Party. 1062963.03/LA 297944-00207/6-1-17/jd/sne -13- 6. INSURANCE, INDEMNIFICATION AND WAIVERS. 6.1 Insurance. 6.1.1 Types of Insurance. (a) Liability Insurance. Beginning on the Effective Date hereof and until completion of the Term, Developer shall, at its sole cost and expense, keep or cause to be kept in force for Developer comprehensive broad form general liability insurance against claims and liabilities covered by the indemnification provisions of Section 6.2. Developer has agreed to indemnify the City to the extent of the liability insurance coverage with respect to its use, occupancy, or improvements, or for property damage, providing protection of at least One Million Dollars ($1,000,000) for bodily injury or death to any one person, at least Two Million Dollars ($2,000,000) for any one accident or occurrence, and at least One Million Dollars ($1,000,000) for property damage. Developer shall also furnish or cause to be furnished to the City evidence that any contractors with whom Developer has contracted for the performance of any work for which Developer is responsible maintains the same coverage required of Developer. (b) Worker's Compensation. Developer shall also furnish or cause to be furnished to the City evidence that any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries worker's compensation insurance as required by law. (c) Insurance Policy Form, Sufficiency, Content and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies qualified to do business in California with an AM Best Rating of no less than "A". All such policies shall be non -assignable and shall contain language, to the extent obtainable, to the effect that (i) the insurer waives the right of subrogation against the City and against the City's agents and representatives except as provided in this Section; (ii) the policies are primary and noncontributing with any insurance that may be carried by the City, but only with respect to the liabilities assumed by Developer under this Agreement; and (iii) the policies cannot be canceled or materially changed except after written notice by the insurer to the City as expeditiously as the insurance company agrees to provide such notice. Developer shall furnish the City with certificates evidencing the insurance required to be procured by the terms of this Agreement. 6.1.2 Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to the City, in the manner required for notices, copies of certificates of all insurance policies required of each policy within the following time limits: (a) For insurance required above, within ten (10) business days after the Effective Date or consistent with the requirements of Exhibit "D" (Schedule of Performance), Item No. 7. (b) The City may request to see updated copies of the current certificates of all insurance policies required. The City reserves the right to obtain copies of the entire insurance policy, including endorsements. 1062963.03/LA 297944-00207/6-1-17/j d/sne -14- If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish the City with required proof that the insurance has been procured and is in force and paid for, the City, after complying with the requirements of Section 4.3, may view such failure or refusal to be a default hereunder. 6.2 Indemnification. 6.2.1 General. To the extent of its liability coverage required under Section 6.1.1(a) above, Developer shall indemnify the City and Owner, and their respective City Councilmembers, commission members, directors, officers, employees, and agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein "Claims or Liabilities") that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the work, operations, or activities of Developer, its agents, employees, subcontractors, or invitees, hereunder, upon the Site relating to the Development; provided, however, such indemnification obligation shall not be applicable to (a) the mere discovery of any pre-existing adverse physical condition at the Site, except to the extent Developer aggravates such pre-existing condition, or (ii) any Claims or Liabilities arising as a result of the gross negligent or intentional misconduct of City or Owner or their respective City Councilmembers, commission members, directors, officers, employees or agents. (a) Subject to Developer's written approval, Developer will defend any action or actions filed against the City or Owner in connection with any of said Claims or Liabilities covered by the indemnification provisions herein and will pay all costs and expenses, including reasonable legal costs and attorneys' fees incurred in connection therewith, which attorneys will be the attorneys hired by the insurance company where insurance coverage applies. (b) Developer will promptly pay any final non -appealable judgment rendered against the City or Owner, or their respective City Councilmembers, commission members, directors, officers, agents, or employees for any such Claims or Liabilities arising out of or in connection with such work, operations, or activities of Developer upon the Site, and Developer agrees to save and hold the City and Owner and their respective City Councilmembers, commission members, directors, officers, agents, and employees harmless therefrom. (c) Notwithstanding anything herein to the contrary, City shall indemnify Developer and Owner, and their respective directors, officers, employees, and agents against, and will hold and save them and each of them harmless from any Claims or Liabilities that may be asserted by a City employee or agent arising out of or in connection with such City employee's or agent's entrance onto the Site (including, without limitation, for any inspection of the New Static Billboard); provided, however, such indemnification obligation shall not be applicable to any Claims or Liabilities arising as a result of the gross negligent or intentional misconduct of Developer or Owner or their respective directors, officers, employees or agents. 6.2.2 Loss and Damage. Except as set forth below, the City shall not be liable for any damage to property of Developer, Owner or of others located on the Site, nor for the loss of or damage to any property of Developer, Owner or others by theft or otherwise. Except as set forth below, the City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the 1062963.03/LA 297944-00207/6-1-17/jd/sne -1 5- Site or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Site, or by any other cause of whatsoever nature. The foregoing two (2) sentences shall not apply (i) to the extent the City or its agents, employees, subcontractors, invitees or representatives causes such injury or damage when accessing the Site, or (ii) under the circumstances set forth in Section 6.2.1 above. 6.2.3 Period of Indemnification. The obligations for indemnity under this Section 6.2 shall begin upon the Effective Date and shall survive termination of this Agreement. 6.3 Waiver of Subrogation. Developer, Owner and the City mutually agree that neither shall make any claim against, nor seek to recover from the other or its agents, servants, or employees, for any loss or damage to Developer, Owner or the City, except as specifically provided hereunder, which include but is not limited to a Claim or Liability to the extent arising from the negligence or willful misconduct of the City, Owner or Developer, as the case may be, or their respective officers, agents, or employees who are directly responsible to the City, Owner and Developer, as the case may be. 7. MORTGAGEE PROTECTION. The Parties hereto agree that this Agreement shall not prevent or limit Developer or Owner, in any manner, at Developer or Owner's sole discretion, from encumbering the Site or any portion thereof or the Development or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Site. The City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and the City agrees upon request, from time to time, to meet with Developer or Owner and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. Subject to compliance with applicable laws, the City will not unreasonably withhold its consent to any such requested interpretation or modification, provided the City determines such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Site shall be entitled to the following rights and privileges: (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Development or Site made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Development or Site, or any part thereof, which Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from the City of any default by Developer in the performance of Developer's obligations under this Agreement. (c) If the City timely receives a request from a Mortgagee requesting a copy of any Notice of Non -Compliance given to Developer under the terms of this Agreement, the City shall make a good faith effort to provide a copy of that Notice of Non -Compliance to the Mortgagee within ten (10) business days of sending the Notice of Non -Compliance to Developer. The Mortgagee shall have the right, but not the obligation, to cure the non-compliance during the period 1062963.03/LA 297944-00207/6-1-17/jd/sne -1 6- that is the longer of (i) the remaining cure period allowed such party under this Agreement, or (ii) sixty (60) days. (d) Any Mortgagee who comes into possession of the Development or the Site, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Development or the Site, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance; except that (i) to the extent that any covenant to be performed by Developer is a condition precedent to the performance of a covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Development or the Site acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such Mortgagee shall strictly comply with all of the terms, conditions and requirements of this Agreement and the Development Approvals applicable to the Development or the Site or such part thereof so acquired by the Mortgagee. 8. MISCELLANEOUS PROVISIONS. 8.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within ten (10) days of execution, as required by Government Code Section 65868.5. Amendments approved by the Parties, and any cancellation, shall be similarly recorded. The provisions of this Agreement to the extent permitted by law shall constitute covenants which shall run with the Land, and the benefits of this Development Agreement shall bind and inure to the benefit of the parties and all successors in interest to the parties hereto. 8.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 8.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable. 8.4 Assignment. Developer and/or Owner shall have the sole and absolute right to assign any of its rights, title and interest, and delegate any of its duties and obligations, under this Agreement. In the event of any such assignment or delegation, Developer and/or Owner shall provide written notice to the City within ten (10) days of execution of such assignment or delegation. 8.5 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California, without regard to its conflict of laws principles. This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the 1062963.03/LA 297944-00207/6-1-17/j d/sne -1 %- parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting Party or in favor of the non -drafting Party, shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 8.6 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 8.7 Singular and Plural. As used herein, the singular of any word includes the plural and vice versa. 8.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 8.9 Waiver. Failure of a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 8.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the Parties and their respective successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 8.11 Force Majeure. Notwithstanding any provision to the contrary herein, neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations (other than obligations to make payments when due) under this Agreement is caused by an event or circumstance that could not reasonably have been foreseen or avoided, mitigated or remedied, and is beyond the Party's reasonable control. Examples of Force Majeure include: acts of God, earthquakes, fires, rains, winds, wars, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control (including the Party's employment force), government actions and regulations (other than those of the City), and court actions (such as restraining orders or injunctions). Force Majeure shall not include general economic or other conditions affecting financial markets generally. If any such events shall occur during the term of this Agreement, the Party claiming Force Majeure (the "Nonperforming Party") shall promptly notify the other Party (the "Performing Party") of occurrence of that Force Majeure Event, its effect on performance, and how long that Party expects it to last. Thereafter, the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure event, the Nonperforming Party shall use reasonable efforts to limit damages to the Performing Party and to resume its performance under this Agreement. the time for performance shall be extended for the duration of each such event or circumstance, provided that the Term of this Agreement shall not be extended under any circumstances for more than five (5) years beyond the date it would have otherwise expired, and further provided that if such delay is longer than six (6) months, Developer may terminate this Agreement upon written notice to the City and the City shall return to Developer any portion of the Development Fees or Alternative Fees, as applicable, paid for any period after the effective date of such termination. 1062963.03/LA 297 944-00207/6-1 -17/j d/sne -18- 8.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 8.13 Counterparts and Originals. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. There shall be two (2) fully signed copies of this Agreement, each of which shall be deemed an original. 8.14 Litigation. Any action at law or in equity arising under this Agreement or brought by any Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Los Angeles, State of California, or such other appropriate court in said county. Service of process on the City shall be made in accordance with California law. Service of process on Developer or Owner shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between the City, Owner or Developer seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys' fees. 8.15 Covenant Not To Sue. The Parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other Party to this Agreement, in law or in equity, which is based on an allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable. 8.16 Development as a Private Undertaking. It is specifically understood and agreed by and between the Parties that the Development is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and Developer is that of a government entity regulating the development of private property, on the one hand, and the holder of a legal or equitable interest in such private property on the other hand. The City agrees that by its approval of, and entering into, this Agreement, that it is not taking any action which would transform this private development into a "public work" development, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer's private development into a public work project, it being understood that this Agreement is entered into by the City and Developer upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement, which are incorporated into this Agreement and made a part hereof, and that the City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Developer by this Agreement. 8.17 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. 1062963 03/LA 297944-00207/6-1-17/jd/sne -1 9- Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 8.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by the City of its power of eminent domain or Developer or Owner's rights to seek and collect just compensation or any other remedy available to them. 8.19 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of the Parties specifically approving the amendment and in accordance with the Government Code provisions for the amendment of development agreements, as well as with VMC section 26.6.8-7. The Parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non -material modifications may be approved on behalf of the City by the City Administrator upon reasonable approval by the City Attorney and without approval by the City Council 8.20 Corporate Authority. The person(s) executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such Party is bound. 8.21 Notices. All notices under this Agreement shall be effective when delivered by (a) United States Postal Service mail, registered or certified, postage prepaid return receipt requested, or (b) a generally recognized overnight carrier regularly providing proof of delivery, and addressed to the respective Parties as set forth below, or to such other address as either Party may from time to time designate in writing by providing notice to the other party: If to the City: City of Vernon 4305 Santa Fe Ave. Vernon, CA 90058 Attn: Carlos Fandino, City Administrator If to Developer: Magellan Atlantic 1, LLC 1800 Ave of the Stars, #105 Los Angeles, CA 90067 Attn: Martin Slusser If to Owner: Magellan Atlantic 1, LLC 1800 Ave of the Stars, #105 Los Angeles, CA 90067 Attn: Martin Slusser 1062963.03/LA 297944-00207/6-1-17/jd/sne -20- 8.22 Nonliability of Individuals. No officer, official, member, employee, agent, or representatives of the City, Owner or Developer shall be personally liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative. 8.23 No Brokers. The City and Developer each represent and warrant to the other that it has not employed any broker and/or finder to represent its interest in this transaction. Each Party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorneys' fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder's fee in connection with this Agreement or arising out of agreements by the indemnifying party to pay any commission or finder's fee. 8.24 No Conflict. Owner and Developer hereby represent, warrant and certify that no member, officer or employee of either is a director, officer or employee of the City, or a member of any of the City's boards, commissions or committees, except to the extent permitted by law. 8.25 Equal Employment Opportunity. Owner and Developer hereby certify and represent that, during the Term of this Agreement, they and any other parties with whom they may subcontract, shall adhere to equal employment opportunity practices to assure that applicants, employees and recipients of service are treated equally and are not discriminated against because of their race, religion, color, national origin, ancestry, disability, sex, age, medical condition, sexual orientation or marital status. Owner and Developer further agree to comply with The Equal Employment Opportunity Practices provisions as set forth in Exhibit "E" attached hereto and incorporated herein by reference. 1062963.03/LA 297944-00207/6-1-17/jd/sne -2 1- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. CITY: CITY OF VERNON, a California charter City and California municipal corporation Melissa Ybarra, Mayor ATTEST: Maria E. Ayala, City Clerk APPROVED AS TO FORM: Brian Byun, Deputy City Attorney [Signatures Continue on Following Page] 1062963.03/LA 297944-00207/6-1 -17/j d/sne -22- MAGELLAN: MAGELLAN ATLANTIC I, LLC, a Delaware limited liability company By: GAVI ATLANTIC MEMBER, LLC, a Delaware limited liability company, its Co -managing member By: PRINCIPAL REAL ESTATE INVESTORS, LLC, a Delaware limited liability company, authorized signatory IN IN By: MAGELLAN ATLANTIC PARTNERS I, LLC, a limited liability company, its managing member By: MAGELLAN INDUSTRIAL FUND I, LP, a Delaware limited partnership, its member By: MAGELLAN PARTNERS, LLC a Delaware limited liability company, its general partner By: Kevin Staley Its: member By: Martin Slusser Its: member [end of signatures] 1062963.03/LA 297944-00207/6-1-17/j d/sne -23 - A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) On , 201_, before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public [SEAL] 1062963.03/LA 297944-00207/6-1-17/jd/sne -24 EXHIBIT "A" LEGAL DESCRIPTION OF SITE 1062963.03/ 1,A -25 - 2 97944-00207/5 -3 1 -Mid/sne PARCEL 1: THAT PORTION OF LOT 110 OF RANCHO LAGUNA (SO CALLED) IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED AS EXHIBIT "A" IN CASE NO. B 25296 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAID COUNTY, AND THAT PORTION OF THE RANCHO SAN ANTONIO, AS SHOWN ON MAP RECORDED IN BOOK 1 PAGE 389 OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN THE FOLLOWING DESCRIBED BOUNDARIES: BEGINNING AT THE SOUTHEASTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A LENGTH OF 556.40 FEET AND A BEARING OF NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST IN PARCEL 1 OF DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24, 1957 IN BOOK 53458 PAGE 311, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID COURSE, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, A DISTANCE OF 538.02 FEET TO A POINT ON A CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 450 FEET: THENCE NORTHEASTERLY FROM A TANGENT WHICH BEARS NORTH 53 DEGREES 11 MINUTES 11 SECONDS EAST, ALONG SAID CURVE THROUGH AN ANGLE OF 10 DEGREES 31 MINUTES 39 SECONDS, AN ARC DISTANCE OF 82.68 FEET TO A POINT ON A LINE PARALLEL WITH AND DISTANT 5.00 FEET SOUTHEASTERLY. MEASURED AT RIGHT ANGLES FROM THE SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD; THENCE TANGENT NORTH 63 DEGREES 42 MINUTES 50 SECONDS EAST, ALONG SAID PARALLEL LINE, A DISTANCE OF 274.58 FEET: THENCE NORTH 73 DEGREES 05 MINUTES 20 SECONDS EAST, A DISTANCE OF 85.84 FEET: THENCE NORTH 73 DEGREES 48 MINUTES 34 SECONDS EAST, A DISTANCE OF 115.58 FEET; THENCE NORTH 85 DEGREES 07 MINUTES 44 SECONDS EAST, A DISTANCE OF 196.25 FEET: THENCE EASTERLY AND SOUTHERLY ALONG A TANGENT CURVE CONCAVE SOUTHERLY AND WESTERLY AND HAVING A RADIUS OF 149.50 FEET THROUGH AN ANGLE OF 77 DEGREES 42 MINUTES 51 SECONDS AN ARC DISTANCE OF 202.78 FEET; THENCE TANGENT SOUTH 17 DEGREES 09 MINUTES 25 SECONDS EAST, A DISTANCE OF 174.28 FEET TO A POINT ON A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 698.86 FEET; THENCE SOUTHWESTERLY FROM A TANGENT THAT BEARS SOUTH 53 DEGREES 52 MINUTES 46 SECONDS WEST, ALONG SAID CURVE THROUGH AN ANGLE OF 7 DEGREES 57 MINUTES 22 SECONDS AN ARC DISTANCE OF 97.04 FEET TO THE MOST NORTHERLY CORNER OF THAT STRIP OF LAND DESCRIBED AS PARCEL 7 IN DEED TO THE CHANSLOR-CANFIELD MIDWAY OIL COMPANY, RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS; THENCE TANGENT SOUTH 45 DEGREES 55 MINUTES 24 SECONDS WEST, ALONG THE NORTHWESTERLY LINE OF SAID STRIP OF LAND SO DESCRIBED AS PARCEL 7, A DISTANCE OF 128.36 FEET: THENCE STILL ON SAID LAST MENTIONED NORTHWESTERLY LINE, SOUTHWESTERLY ALONG THE ARC OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 455.34 FEET THROUGH AN ANGLE OF 42 DEGREES 57 MINUTES 44 SECONDS, AN ARC DISTANCE OF 341.43 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM THAT PORTION OF SAID LOT 110 INCLUDED IN THE LAND DESCRIBED IN THE QUITCLAIM DEED RECORDED ON JANUARY 24, 2012 AS INSTRUMENT NO. 20120124062, OF OFFICIAL RECORDS. EXCEPT THEREFROM ALL SUBSURFACE RIGHTS, TITLE AND INTEREST IN AND TO ALL SUBSURFACE MINERAL RIGHTS EXISTING IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT TO ENTER UPON OR USE THE SURFACE OF SAID LAND FOR THE DEVELOPMENT, EXTRACTION AND REMOVAL OF MINERALS THEREUNDER, OR FOR ANY OTHER PURPOSE OR PURPOSES, AS DEED TO CHANSLOR-CANFIELD MIDWAY OIL COMPANY. BY DEED RECORDED IN BOOK 23513 PAGE 240, OFFICIAL RECORDS. PARCEL 2: THOSE PORTIONS OF LOTS 109, 110 AND 115 OF RANCHO LAGUNA (SO CALLED) IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED AS EXHIBIT "A" IN CASE NO. B 25296 OF SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAID COUNTY, AND THAT PORTION OF THE RANCHO SAN ANTONIO, AS SHOWN ON MAP RECORDED IN BOOK 1 PAGE 389 OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN THE FOLLOWING DESCRIBED BOUNDARIES: BEGINNING AT THE NORTHWESTERLY TERMINUS OF THAT CERTAIN CURVE DESCRIBED AS HAVING A RADIUS OF 6577.22 FEET AND AN ARC LENGTH OF 2244.08 FEET IN PARCEL 2 OF DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24, 1957 IN BOOK 53458 PAGE 311, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID CURVE BEING ON THE NORTHEASTERLY LINE OF THE 100 FOOT STRIP OF LAND CONVEYED TO THE CITY OF LOS ANGELES, DEPARTMENT OF WATER AND POWER, BY DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS; THENCE TANGENT TO SAID CURVE, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, ALONG SAID NORTHEASTERLY LINE, A DISTANCE OF 621.63 FEET TO A POINT ON A CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 468.34 FEET; THENCE NORTHEASTERLY FROM A TANGENT WHICH BEARS NORTH 16 DEGREES 19 MINUTES 07 SECONDS WEST, ALONG SAID CURVE THROUGH AN ANGLE OF 73 DEGREES 37 MINUTES 57 SECONDS, AN ARC DISTANCE OF 601.88 FEET; THENCE SOUTH 21 DEGREES 52 MINUTES 38 SECONDS EAST, A DISTANCE OF 268.32 FEET; THENCE SOUTH 27 DEGREES 05 MINUTES 17 SECONDS EAST, A DISTANCE OF 506.74 FEET; THENCE SOUTH 29 DEGREES 50 MINUTES 54 SECONDS EAST, A DISTANCE OF 210.27 FEET; THENCE SOUTH 35 DEGREES 45 MINUTES 42 SECONDS EAST, 269.32 FEET TO A POINT ON SAID NORTHEASTERLY LINE CURVED, HEREINABOVE DESCRIBED AS HAVING A RADIUS OF 6577.22 FEET; DISTANT THEREON 355.22 FEET SOUTHEASTERLY FROM SAID POINT OF BEGINNING; THENCE NORTHWESTERLY ALONG SAID CURVE LINE THROUGH AN ANGLE OF 3 DEGREES 05 MINUTES 40 SECONDS, AN ARC DISTANCE OF 355.22 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM ALL MINERALS, PETROLEUM, GASES AND OTHER HYDROCARBON SUBSTANCES EXISTING IN AND UNDER SAID LAND WITHOUT THE RIGHT TO ENTER UPON OR USE THE SURFACE OF SAID LAND FOR THE EXTRACTION AND REMOVAL OF SUCH SUBSTANCES OR FOR ANY OTHER PURPOSE OR PURPOSES, AS RESERVED IN DEED FROM CHANSLOR-CANFIELD MIDWAY OIL COMPANY, RECORDED ON JULY 18, 1944 IN BOOK 21013 PAGE 131, OFFICIAL RECORDS. PARCEL 3: THAT CERTAIN PORTION OF LOT 110 OF SAID RANCHO LAGUNA AND ALSO A PORTION OF SAID RANCHO SAN ANTONIO, IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING A PARCEL OF LAND, 60 FEET IN WIDTH, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST WESTERLY CORNER OF THAT CERTAIN RAILROAD RIGHT OF WAY DESCRIBED AS PARCEL 7 IN DEED RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE FROM SAID POINT OF BEGINNING, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, ALONG THE NORTHEASTERLY LINE AND ITS NORTHWESTERLY PROLONGATION OF THE 100 FOOT WIDE RIGHT OF WAY OF THE CITY OF LOS ANGELES, AS DESCRIBED IN DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS, 471.47 FEET, MORE OR LESS, TO THE SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD, AS DESCRIBED IN DEED RECORDED IN BOOK 864 PAGE 317, OFFICIAL RECORDS: THENCE NORTHEASTERLY ALONG SAID STREET LINE TO THE MOST WESTERLY CORNER OF THAT CERTAIN PROPERTY DESCRIBED IN DEED TO THE UNITED STATES OF AMERICA, RECORDED IN BOOK 20047 PAGE 238, OFFICIAL RECORDS; THENCE ALONG THE SOUTHWESTERLY LINE OF LAST SAID PROPERTY, SOUTH 54 DEGREES 28 MINUTES 35 SECONDS EAST. TO A POINT IN THE NORTHERLY LINE OF SAID RAILROAD RIGHT OF WAY; THENCE WESTERLY ALONG LAST SAID LINE TO THE POINT OF BEGINNING. EXCEPT THREFROM THAT PORTION OF SAID LOT 110 INCLUDED IN THE LAND DESCRIBED IN THE QUITCLAIM DEED RECORDED ON JANUARY 24, 2012 AS INSTRUMENT NO. 20120124062, OF OFFICIAL RECORDS. EXCEPT ALL OIL, GAS AND OTHER PETROLEUM OR MINERAL SUBSTANCES CONTAINED IN SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE ENTRY FOR THE PURPOSE OF EXTRACTING OR REMOVING SUCH PETROLEUM OR OTHER MINERALS OR FOR ANY PURPOSE IN CONNECTION THEREWITH, AS RESERVED IN THE DEED FROM CHANSLOR-CANFIELD OIL COMPANY, RECORDED IN BOOK 20565 PAGE 1, OFFICIAL RECORDS. PARCEL 4: THAT CERTAIN TRIANGULAR SHAPED PARCEL OF LAND IN SAID RANCHO SAN ANTONIO, IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BOUNDED SOUTHWESTERLY BY THE NORTHEASTERLY LINE OF THE 100 FOOT WIDE RIGHT OF WAY OF THE CITY OF LOS ANGELES, AS DESCRIBED IN DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS, BOUNDED EASTERLY BY THE WESTERLY LINE OF THAT CERTAIN RAILROAD RIGHT OF WAY, 33 FEET IN WIDTH, DESCRIBED IN DEED RECORDED IN BOOK 8118 PAGE 72, OFFICIAL RECORDS, AND BOUNDED NORTHERLY BY THE SOUTHERLY LINE OF THAT CERTAIN RAILROAD RIGHT OF WAY GENERALLY 33 FEET IN WIDTH, DESCRIBED AS PARCEL 7, IN DEED RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS. EXCEPT ALL OIL, GAS AND OTHER PETROLEUM OR MINERAL SUBSTANCES CONTAINED IN SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE ENTRY FOR THE PURPOSE OF EXTRACTING OR REMOVING SUCH PETROLEUM OR OTHER MINERALS OR FOR ANY PURPOSE IN CONNECTION THEREWITH, AS RESERVED IN THE DEED FROM CHANSLOR-CANFIELD OIL COMPANY, RECORDED IN BOOK 20565 PAGE 1, OFFICIAL RECORDS. FXHTRTT R SCOPE OF DEVELOPMENT Developer and the City agree that the Development shall be undertaken in accordance with the terms of the Agreement, which include the following: 1. The Development. Developer shall install the New Static Billboard in accordance with the terns of this Agreement. The New Static Billboard consists of one (1) single sided 14 x 48 foot static display which is oriented toward the 710 Freeway, as depicted in Exhibit "C". If and when Developer elects to improve the Site with one or more pennanent sturctures, during such development Developer shall underground all utilities necessary for the New Static Billboard. The Site shall be maintained in accordance with the conditions at Paragraph 3 below. 2. Building Fees. Developer shall pay all applicable City building fees, as described at Section 2.4 of the Agreement, at the time that a building pen -nit is issued for the installation of the New Static Billboard on the Site. 3. Maintenance and Access. Developer, for itself and its successors and assigns, hereby covenants and agrees to be responsible for the following: (a) Maintenance and repair of the New Static Billboard (where authorized pursuant to the Agreement, and including but not limited to, all related on -site improvements and, if applicable, easements and rights -of -way, at its sole cost and expense), including, without limitation, landscaping, poles, lighting, signs and walls (as they relate to the Development) in good repair, free of graffiti, rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Site, unless those federal, state, and local bodies have an exception for a legal nonconforming use. Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal related to the Development; (ii) the care and replacement of all shrubbery, plantings, and other landscaping or the painted backing in a healthy condition if damaged by the Development; (iii) the ongoing maintenance by Developer of any access road to the New Static Billboard if damaged by the Development and to minimize dust caused by the Development; and (iv) the repair, replacement and repainting of the New Static Billboard's structures and displays as necessary to maintain such billboard in good condition and repair. (b) Maintenance of the New Static Billboard and surrounding portion of the Site in such a manner as to avoid the reasonable determination of a duly authorized official of the City that a public nuisance has been created by the absence of adequate maintenance of the Development such as to be detrimental to the public health, safety or general welfare, or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within three hundred (300) feet of the Site. (c) Developer shall reasonably coordinate with Owner or any neighboring property owners who share utilities or access roads to their separate respective billboards. The City may designate alternative access for planning purposes so long as such alternative access allows Developer to access the New Static Billboard and related utilities. 1062963.03/LA 297944-00207/5-31-17/jd/sne -2 6 - 4. Other Rights of the City. In the event of any violation or threatened violation of any of the provisions of this Exhibit "B", then in addition to, but not in lieu of, any of the rights or remedies the City may have to enforce the provisions of the Agreement, the City shall have the right, after complying with Section 4.3 of the Agreement, (i) to enforce the provisions hereof by undertaking any maintenance or repairs required by Developer under Paragraph 3 above (subject to the execution of a permit to enter in form reasonably acceptable to Owner) and charging Developer for any actual maintenance costs incurred in performing same, and (ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Development or any part thereof or interests therein as to the violating Party or one threatening violation. 5. No City Liability_. The granting of a right of enforcement to the City does not create a mandatory duty on the part of the City to enforce any provision of the Agreement. The failure of the City to enforce the Agreement shall not give rise to a cause of action on the part of any person. No officer or employee of the City shall be personally liable to Developer, its successors, transferees or assigns, for any default or breach by the City under the Agreement. 6. Conditions of Approval. The following additional conditions shall apply to the installation of the New Static Billboard and, where stated, landscaping adjacent to the New Static Billboard, which billboard and landscaping or painted backing adjacent to the billboard, respectively, shall conform to all applicable provisions of the Development Approval and the following conditions, in a manner subject to the approval of the Director of Public Works or his or her designee: (a) A building per-init(s) will be required, and structural calculations shall be prepared by a licensed civil engineer and approved by the Director of Public Works or his or her designee. (b) The New Static Billboard shall be located in the portion of the Site shown on Exhibit "C", and shall be of the dimensions described in Section 1, above. (c) The New Static Billboard pole(s) shall have a column cover as depicted in the Site Plan and Elevations within Exhibit "C". In addition, the poles of the New Static Billboard will bear the name and/or logo of the City in a reasonable size and location on the pole(s). The Developer and the City shall work cooperatively with respect to the reasonable design on the poles with the City to have ultimate approval authority. (d) Plans and specifications for the proposed installation of the New Static Billboard shall be submitted to the City for plan check and approval prior to the issuance of building permits. Plans and specifications for the proposed installation of the undergrounding of all utilities shall be submitted to the City for plan check and approval prior to the issuance of electrical permits. (e) Prior to the approval of the final inspection, all applicable conditions of approval and all mandatory improvements shall be completed to the reasonable satisfaction of the City. 1062963.03/L.A _� 297944-00207/5-31-17Jd/sne (f) Developer shall maintain the New Static Billboard and use thereof in full compliance with all applicable codes, standards, policies and regulations imposed by the City, county, state or federal agencies by any duly and valid City, county or state ordinance with jurisdiction over the facilities, unless the Development is exempted as a legal nonconfonning use. (g) Developer shall, at all times, comply with the approval for the New Static Billboard from the California Department of Transportation Outdoor Advertising Division, and shall maintain acceptable clearance between proposed billboards and Southern California Edison distribution lines. (h) Developer shall pay any and all applicable fees due to any public agency prior to the final issuance of the applicable building or electrical permits. (i) The activities proposed in the Agreement shall be conducted completely upon the Site and shall not use or encroach on any public right-of-way. 0) Developer shall ensure that all access to the New Static Billboard is kept restricted to the general public to the extent pennitted under local laws and by the Development Approval. (k) If any portion of the painted backing installed adjacent to the New Static Billboard is damaged by the Development or becomes damaged, as determined by the City's Director of Public Works or his or her designee, Developer shall repair, or cause to be repaired, such damage within thirty (30) days of written notification by the City, unless such time is extended by the City's Director of Public Works or his or her designee if Developer shows unusual circumstances requiring more time to accomplish such repair. (1) Developer shall coordinate its work with the requirements of the City's Gas & Electric Department to achieve the undergrounding of all utilities, as applicable. (m) Developer shall comply with all necessary federal National Pollutant Discharge Elimination System ("NPDES") requirements pertaining to the proposed use, to the extent applicable. (n) All graffiti shall be adequately and completely removed or painted over within 48 hours of notice to Developer of such graffiti being affixed on the Development. (o) Prior to final sign off of the building permit for the New Static Billboard, the applicable landscaping or painted backing shall be installed at the Site. (p) Developer shall comply with State law regarding the limitation of light or glare or such other standards as adopted by the Outdoor Advertising Association of America, Inc. ("OAAA"), including but not limited to, the 0.3 foot-candles limitation over ambient light levels and ensuring additional flexibility in reducing such maximum light level standard given the lighting environment, the obligation to have automatic diming capabilities, as well as providing the City's Director of Public Works or his or her designee with a designated Developer employee's phone number and/or email address for emergencies or complaints that will be monitored 24 hours a day/7 days per week. Upon any reasonable complaint by the City's Director of Public Works or 1062963.03/LA 297944-00207/5-31-17/jd/sne -2 8- his or her designee, Developer shall dim the display to meet these guidelines and further perform a brightness measurement of the display using OAAA standards and provide the City with the results of same within ten (10) business days of the City's complaint. 1062963.03/LA 297944-00207/5-31-17/jd/S ne -2 9- EXHIBIT C SITE PLAN AND BILLBOARD ELEVATIONS 1062963.03/LA _3 �_ 297944-00207/5-31-17/jd/sue 0 CD a Z 3 o o. W C-) I D D r+ CA) O O U01 n O co W N Q 42' 14' m X 7 Cl) W n C1 O O 03 CD o DC CDZ3 CO 4 CD C) m do - m � D D CD V (7 O O CD ^;. l�L 5. N � n M A. -14 CA 3 NO (n 9 n co a O _ O CD Q iS c CD � �CO� n 0 �00 <. v o 1 = rn 5mm M Wo C m (C) Cn CD O � m co < CD D m CD CD COD -t < � O V _ -P O Cb � I n W O 9v=Il m Coos ��m�Zov aoNm C. v� om D��DZAz c�pzp� ,.0i. pp�:t7D CD AOZOX �r7�OCy � m}�NDoo c�Dma '+ � v oo"mrn��x� oyy o�p 5B C) Z m a 2;9o�> O p oN N D_< -i >-M Fn�C-)20 MM-0 o CD CD cn cn CD CD Q Q G (C) O 0 a (C)lp N - N 4�h N 1 1 ol V CA cn Cl) D 0 CD mCD o CD 0, Q C II o O m N N O O r- O , 1 50' rn x U) I14' O CD (0 I X Q O CD c CA LS 3 (p I (O in co L? (Q `. W D � � J fIr'z I Vj m O CD (D !� o o a Q :3 CD n 3 C/) c O CQ Q' CD W -n CD TF \Il ti Z OXIM F�Mm z o0m c zo �cc D I > z � n m 25' 1 50' 75' 14' � ;�,, , c• tip,•• � h 35' e �'�`19•y / � I m M z �Z z D � ( &cl / , m T x O oo --I Z o m � m m �7 W moz / D z xM O zz k �vtlAtlsA¢ w f N_ /$ < o w 'C / ' m _ 85' 14' 50' 14' m co M. 00 9 At Z O € W - t 00. .lql 4 lz O �� ` : z 0 , f z LLI J �$ %9 MM M f. low 0 171 a rwp N rl O • O �;Y N O)U cz J O a Y N N d-J i EXHIBIT D SCHEDULE OF PERFORMANCE ITEM OF PERFORMANCE TIME FOR REFERENCE PERFORMANCE 1. [INTENTIONALLY LEFT BLANK] 2. Effective Date of this Agreement. 30 days following City 1.1.16 Council's second reading and adoption of ordinance approving Agreement 3. Developer prepares and submits to Within 120 days of City 3.4 City working drawings Council's second reading and specifications and engineering, the adoption of ordinance approving City commences approval process. Agreement 4. City to approve all construction and Within 30 days of City's receipt engineering drawings and of Developer's construction specifications with a plan check drawings and specifications approval, and issue a building addressing all of City's permit and an electrical permit. comments. City agrees to any necessary building or electrical permits needed for Developer to acquire the Caltrans approvals. Developer agrees not to commence construction until it receives the applicable Caltrans approvals. 5. Developer to provide copy of Prior to commencing any 3.3, 3.4 Caltrans approval to City. inspections and work on the Development. 1062963.03l1,A 297944-00207/5-31-17/jd/sne -3 1 - ITEM OF PERFORMANCE TIME FOR REFERENCE PERFORMANCE 6. Developer to submit proof of Prior to commencing any 6.1.2 insurance to City. inspections and work on the Development 7. Developer obtains unfinalled Prior to commencing work on 2.6.1 versions of the Final Permits and the Development provides notice to City of same. 8. Developer pays City first March 31 after Commencement 2.6.1 and 2.6.2 installment of Development Fee or Date Alternative Fee, if applicable, if Developer receives Final Permits 9. Developer pays City second March 31, two years after 2.6 installment and subsequent annual Commencement Date, and installments of the Development continuing throughout the Term. Fee if Developer receives Final Each payment occurring by Permits. March 31 of the year following the payment year of operation during the Term 10. Developer pays the Alternative Fee Within 90 days of the end of 2.7 if in excess of the Development each calendar year of the Term Fee. It is understood that this Schedule of Performance is subject to all of the teens and conditions of the text of the Agreement. The summary of the items of performance in this Schedule of Performance is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Schedule of Performance and the text of the Agreement, the Agreement shall govern. The time periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both Developer and the City. Notwithstanding any extension of the Term in the manner described herein, and subject to the provisions of Section 3.5 of the Agreement, the City Administrator shall have the 1062963.03/LA -3 2- 297944-00207/5-31-17/jd/sne authority to approve extensions of time set forth in this Schedule of Performance without action of the City Council, not to exceed a cumulative total of 180 clays. 1062963.03/LA 297944-00207/5-31-17/jd/sne -3 3 - RXNTRIT F EOUAL EMPLOYMENT OPPORTUNITY PRACTICES PROVISIONS A. Developer and Owner certify and represent that, during the performance of this Agreement, Developer and each subcontractor shall adhere to equal opportunity employment practices to assure that applicants and employees are treated equally and are not discriminated against because of their race, religious creed, color, national origin, ancestry, handicap, sex, or age. Developer and Owner further certify that they will not maintain any segregated facilities. B. Developer and Owner agree that they shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of Developer or Owner, state that they are `Equal Opportunity Employers" or that all qualified applicants will receive consideration for employment without regard to their race, religious creed, color, national origin, ancestry, handicap, sex or age. C. Developer and Owner agree that they shall, if requested to do so by the City, certify that they have not, in the performance of this Agreement, discriminated against applicants or employees because of their membership in a protected class. D. Developer and Owner agree to provide the City with access to, and, if requested to do so by City, through its awarding authority, provide copies of all of their records pertaining or relating to their employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law. E. Nothing contained in this Agreement shall be construed in any manner as to require or permit any act which is prohibited by law. 1062963.03/LA 297944-00207/5 -3 1 -17/jd/sne - 3 4- EXHIBIT B [Exempt From Recording Fee Per Gov. Code §6103] DIGITAL BILLBOARD DEVELOPMENT AGREEMENT This Digital Billboard Development Agreement (hereinafter "Digital Billboard Agreement" or "Agreement") is entered into this day of , 2017 (hereinafter the "Effective Date"), by and between the City of Vernon, a California chartered City and municipal corporation of the State of California (hereinafter "City"), and Magellan Atlantic I, LLC, a California limited liability company (hereinafter "Magellan"). 'PVC1TAT,C A. California Government Code Sections 65864 et seq. (the "Development Agreement Law") authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purposes of strengthening the public planning process, encouraging private participation and comprehensive planning, and identifying the economic costs of such development. B. Owner (as defined in Section 1.1.21 below) has an ownership interest in that certain portion of real property, located adjacent to, and on the western side of, the south -bound lanes of the 710 Freeway, commonly known as 3030 S. Atlantic Blvd. in the City of Vernon, Assessor Parcel Number 6314-033-002, as more specifically described in Exhibit "A" and depicted at Exhibit "C", attached hereto and incorporated herein, upon which the Development (as defined below) is located (the "Site"). C. Developer (as defined in Section 1.1.11 below) seeks to install two (2) new single - sided 14 x 48 foot digital displays placed in a "V" formation (together, the "New Digital Billboards") and one single sided 14 x 48 foot static display (the "New Static Billboard") which is oriented toward the 710 Freeway, as depicted in Exhibit "C" (collectively the New Digital Billboards and New Static Billboard are referred to as the "New Billboards"). In addition, Developer intends to remove, at its sole cost and expense, one existing static display on the Site (the "Defunct Billboard"). D. Given the different terms and conditions of the New Billboards, the Parties have agreed to execute two separate and independent agreements for each of (i) the New Digital Billboards and (ii) the New Static Billboard. The agreement for the New Static Billboard shall be referred to herein as the "Static Billboard Agreement," and together with this Digital Billboard Agreement, the "Agreements." E. Owner has consented to Developer's application for this Agreement, and Developer, as the owner of a leasehold, license or easement interest in the Development, has a legal and/or equitable interest in a portion of the Site and thus qualifies to enter into this Agreement in accordance with the Development Agreement Law. F. In exchange for the City approvals sought by Developer for the New Digital Billboards as provided herein, Developer is agreeable to, among other things, paying to the City an annual Development Fee or Alternative Fee for the New Digital Billboards, whichever is 1030199.07/LA 297944-00207/6-1-17/tbrn/sne greater, as defined and provided in Sections 2.6.1 and 2.6.2 below, for the cost to the City to mitigate the impact of the installation of the New Digital Billboards. G. The Site is located within the City's Industrial Zone, and, pursuant to section 26.9.2 of the Vernon Municipal Code ("VMC"), may be developed by installing, constructing, modifying, or replacing the New Digital Billboards, subject to, among other things, City Council approval of this Agreement. H. Developer and the City agree that a development agreement should be approved and adopted to memorialize the property expectations of the City and Developer, as more particularly described herein. I. The City Council finds 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, and this Agreement is consistent with the City's General Plan and with the VMC in all respects. Further, the City Council has found that approval of this Agreement and the Development itself are categorically exempt from review under the California Environmental Quality Act ("CEQA") under CEQA Guidelines section 15302, because the Development contemplates only replacement or reconstruction of existing structures or facilities on the same site having substantially the same size, purpose and capacity. This Agreement and the proposed Development will achieve a number of City objectives, including utilizing the Site for a revenue -generating use. J. The purpose of this Agreement is to set forth the rules and regulations applicable to the Development, which shall be accomplished in accordance with this Agreement, including the Scope of Development (Exhibit `B"), which sets forth a description of the Development and the Schedule of Performance (Exhibit "D"). COVENANTS NOW, THEREFORE, in consideration of the above preamble and recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Developer and Owner agree as follows: 1. DEFINITIONS AND EXHIBITS. 1.1 Definitions. This Agreement uses a number of terms having specific meanings, as defined below. These specially defined terms are distinguished by having the initial letter capitalized, when used in the Agreement. In addition to the terms defined in the Recitals above, the defined terms include the following: 1.1.1 "Agreement" means this Digital Billboard Development Agreement and all attachments and exhibits hereto. 1.1.2 "Alternative Fee" shall have the meaning set forth at Section 2.6.2. 1.1.3 "Amendment" shall have the meaning set forth at Section 2.3. 1.1.4 "Caltrans" means the California Department of Transportation. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -2- 1.1.5 "CEQA" means the California Environmental Quality Act (Public Resources Code Section 21000 et seq. ), as it may be amended from time to time. 1.1.6 "Chamber" means the Vernon Chamber of Commerce. 1.1.7 "City" means the City of Vernon, a California chartered City and municipal corporation. 1.1.8 "City Council" means the City Council of the City. 1.1.9 "Commencement Date" shall have the meaning set forth at Section 2.6.1. 1.1.10 "County Recorder" means the Los Angeles County Registrar -Recorder / County Clerk. 1.1.11 "Developer" means any party holding the exclusive leasehold, license or easement interest in the Development. If there is no party holding an exclusive leasehold, license or easement interest in the Development, the Developer shall be the Owner. The current Developer is Magellan, and its successors and assigns. 1.1.12 "Development" means the design and installation of the New Digital Billboards on the Site, and removal or relocation of the Defunct Billboard (as defined in Exhibit B). 1.1.13 "Development Approval" means approval of this Agreement and all necessary variances or code amendments related thereto, collectively, by any and all applicable governmental agencies, including the City, and as applicable, Caltrans. 1.1.14 "Development Fee" shall have the meaning set forth at Section 2.5. 1.1.15 "Director of Public Works" shall mean the City's Director of Public Works, Water & Development Services. 1.1.16 "Effective Date" means the date inserted into the preamble of this Agreement, which is thirty (30) days following Development Approval #3. 1.1.17 "Final Permits" means any and all required permits to maintain and operate the New Digital Billboards as contemplated in Section 3.3 (including, without limitation, all utilities required by the New Digital Billboards), which such permits have been "finaled" by the applicable inspectors. 1.1.18 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of the City, including, but not limited to, the City's General Plan and VMC, including, but not limited to, the Zoning Code [VMC, Ch. 26], which govern development and use of the Site, including, without limitation, the permitted use of the Site, the density or intensity of use, subdivision requirements, the maximum height and size of the New Billboards and the design, improvement and construction standards and specifications applicable to the Development or the Site which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement. Land Use Regulations shall also include the 1030199.07/LA 297944-00207/6-1-17/tbm/sne -3- federal National Pollutant Discharge Elimination System ("NPDES") regulations and approvals from the California Department of Transportation Outdoor Advertising Division, to the extent applicable. 1.1.19 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security device, a lender or each of their respective successors and assigns. 1.1.20 "Operator" means the person or entity who operates the New Digital Billboards, contracts directly with advertisers, and collects revenues directly from advertisers. The Owner or Developer may be the Operator. 1.1.21 "Owner" means the party holding the fee interest in the Site. The current Owner is Magellan, and its successors and assigns. 1.1.22 "Party" means Owner, Developer or City. 1.1.23 "Parties" means, collectively, Owner, Developer and City. 1.1.24 "Site" shall have the meaning provided in Recital B. 1.1.25 "Schedule of Performance" means the Schedule of Performance attached hereto as Exhibit "D" and incorporated herein. 1.1.26 "Scope of Development" means the Scope of Development attached hereto as Exhibit `B" and incorporated herein. 1.1.27 "Subsequent Land Use Regulations" means any Land Use Regulations effective after the Effective Date of this Agreement (whether adopted prior to or after the Effective Date of this Agreement) which govern development and use of the Site. 1.1.28 "Subsequent Development Approvals" means any approval sought by Developer in connection with future changes desired to be made by Developer to the Development following its initial completion. 1.1.29 "Term" shall have the meaning provided in Section 2.3, unless earlier terminated as provided in this Agreement. 1.1.30 "VMC" shall mean the Vernon Municipal Code, as such shall be amended from time to time. 1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit "A" (Legal Description of Site), Exhibit "B" (Scope of Development), Exhibit "C" (Site Plan and Elevations), Exhibit "D" (Schedule of Performance), and Exhibit "E" (City's Equal Employment Opportunity Practice Provisions). 2. GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. From and following the Effective Date, actions by the City and Developer with respect to the Development, including actions by the City on 1030199.07/LA 297944-00207/6-1-17/tbm/sne -4- applications for Subsequent Development Approvals affecting the Site, shall be subject to the terms and provisions of this Agreement; provided, however, that nothing in this Agreement shall be deemed or construed: (i) to bind or restrict Developer with respect to its ownership or operation of the Development, except as expressly set forth in this Agreement, or (ii) to impose any obligation whatsoever on Owner with respect to the Development, except as expressly set forth in this Agreement. 2.2 Interest in Site. The City and Developer acknowledge and agree that Developer has a legal and/or equitable interest in the Site, and thus is qualified to enter into and be a party to this Agreement under the Development Agreement Law. 2.3 Term of Agreement and Renewal. Unless terminated earlier as provided in this Agreement, this Agreement shall continue in full force and effect from the Effective Date until the earlier of. (i) thirty (30) years from the Effective Date; or (ii) when the New Digital Billboards are permanently removed (other than removal for repair or replacement) (the "Term"). At least thirty (30) days prior to the end of the Term, the Parties shall come to agreement on whether this Agreement is to be renewed for an additional term of years to be determined or is to expire by its own terms. If the former, the Parties shall execute a written amendment to this Agreement ("Amendment"), which shall be approved by the City Council. If the Parties have agreed to enter into the Amendment prior to the expiration of the Term, then the Term shall automatically be extended to the day prior to the effective date of the Amendment. If this Agreement expires on its own terms or is otherwise terminated earlier pursuant to Section 5 of this Agreement, then within thirty (30) days after the termination of this Agreement, the Developer and the City shall execute a written cancellation of this Agreement which shall be recorded with the County Recorder pursuant to Section 8.1 below. If no Amendment is agreed to following termination of the Agreement (but by no later than the recording of the written cancellation of the Agreement), then Developer must remove the New Digital Billboards at Developer's sole cost and expense. 2.4 Processing Fee. Upon submission of its application for the approvals granted by this Agreement, Developer has paid to the City a processing fee ("Processing Fee") in the amount of Five Thousand Dollars ($5,000) for the New Digital Billboards. The City shall retain and use the Processing Fee, or any part thereof, for any public purpose within the City's discretion. The Processing Fee shall be separate from all fees which are standard and uniformly applied to similar projects in the City, including, but not limited to, business license fees (due by Developer to the City annually), one-time plan check fees and building permit fees, and any other fees imposed by Los Angeles County, as may be applicable. 2.5 Development Fee. The potential impacts of the Development on the City and surrounding community are difficult to identify and calculate. Developer and the City agree that an annual development fee paid by Developer to the City would adequately mitigate all such potential impacts. The Parties therefore agree that Developer shall pay an annual development fee to the City, subject to the obligation to pay the Alternative Fee per Section 2.6.2 below. The development fee shall be Forty Thousand Dollars ($40,000) per calendar year of the Term for each face of the two (2) New Digital Billboards i.e., $80,000 per year total for the New Digital Billboards) (the "Development Fee"). The Development Fee shall be increased every three (3) years (each, an "Adjustment Period") in proportion to the adjustment over the same time to the U.S. all items Consumer Price Index for All Urban Consumers (CPI-U) for the Los Angeles - Orange -Riverside area, base period 1982-1984, based upon the most recent month of publicly 1030199.07/LA 297944-00207/6-1-17/tbm/sne -5 - available CPI data available as of January 31 of the year of such increase; provided, however, that any CPI Increase shall not exceed six percent (6%) of the Development Fee per Adjustment Period (each, a "CPI Increase"). For the avoidance of doubt, should the Parties inadvertently fail to apply a CPI Increase at the end of any given Adjustment Period, such shall not be deemed a waiver of that particular CPI Increase, but rather, shall be added to any subsequent CPI Increase(s). Notwithstanding the foregoing, if any one or more digital faces of the New Digital Billboards is permanently reduced, removed (other than removal for repair or replacement) or destroyed (in its entirety), Developer shall not be required to pay that portion of the Development Fee attributable to such face. Instead, Developer shall pay the Development Fee for each face of the New Digital Billboards -turned -static as prescribed under the Static Billboard Agreement and prorated from the date the digital face(s) is/are permanently removed. 2.6 Development Fee Payments. 2.6.1 Development Fee: The Development Fee for the prior calendar year shall be due and payable no later than March 31 of the following calendar year, with the first installment prorated and due no later than the first March 31 after the initial calendar year Developer receives the Development Approval for the New Billboards from the applicable governmental authorities and the Final Permits. Developer shall provide notice to the City within five (5) business days of its receipt of all Final Permits. The initial Development Fee (or Alternative Fee per Section 2.6.2) shall be calculated from the day the City receives such notice (the "Commencement Date"). Nothing herein relieves the City from its contractual duty to issue all municipal building permits that are associated with the Development if Developer is in compliance with the terms of this Agreement. 2.6.2 Alternative Fee: For any calendar year of the Term where the Alternative Fee, as defined in this Section 2.6.2, exceeds the Development Fee described at Section 2.6.1 above for the New Digital Billboards, Developer shall pay to the City the Alternative Fee, which is defined as an amount equal to eight percent (8%) of the gross advertising revenue from the New Digital Billboards during the preceding calendar year of the Term (the "Alternative Fee"). If the Development Fee is greater than the Alternative Fee for any calendar year, then the Developer shall pay to the City the Development Fee. Within ninety (90) days following the end of each calendar year of the Term hereof, and ending within ninety (90) days after the end of the Term or earlier termination of the Agreement, Developer (and/or Operator, as applicable) shall furnish to the City a statement in writing, certified by Developer to be correct, showing the total gross advertising revenues made from the New Digital Billboards during the preceding calendar year of the Term. Gross advertising revenue shall specifically exclude advertising agency fees paid to the advertiser's advertising agency and/or brokerage fees paid to the sales brokers other than Developer and/or Operator. Furthermore, the gross advertising revenue is based solely on the basic advertising size, as recorded on the City's building permits, and does not include free -form cut- outs, solid extensions, back -lit displays, 3D presentations, tri-vision, stretch faces, additional art work reproductions or any other special treatment or appurtenances as required by the advertiser. 2.7 Audit of Alternative Fee. With prior written notice to Developer of not less than ten (10) business days, the City shall have the right to audit gross advertising revenue for the New Digital Billboards and to view those portions of any advertising space contracts or invoices that relate to the New Digital Billboards, at Developer's (and/or Operator's, as applicable) office, on normal workdays between 9:00 a.m. and 4:00 p.m. once a year. Prior to the audit, the City shall, 1030199.07/LA 297944-00207/6-1-17/tbm/sne -6- at Developer's (and/or Operator's, as applicable) request, sign a confidentiality agreement regarding the advertising space contracts and invoices. If the statement of total gross advertising revenue previously provided to the City is found by the City to be inaccurate for the prior calendar year of the Term, then, and in that event, there shall be an adjustment and within ten (10) business days upon receiving written demand, one party shall pay to the other such sums as may be necessary to settle in full the accurate underpayment or overpayment of the Alternative Fee, if any, that should have been paid for the period covered by such inaccurate statement. If said audit discloses an underpayment of greater than five percent (5%) with respect to the amount of total gross advertising revenue reported for the period of said report, then Developer (and/or Operator, as applicable) shall immediately pay to the City the cost of such audit, plus ten percent (10%) interest per annum on the amount underpaid from the date of submission of the Development Fee or the Alternative Fee, as applicable. If the audit does not disclose an underpayment of greater than five percent (5%) with respect to the amount of total gross advertising revenue reported for the period of said report, the cost of such audit shall be paid by the City and no interest payment is due thereon. 2.8 Acknowledgment by Operator. In the event Developer enters into a contract or lease agreement with an Operator to operate the New Digital Billboards, such contract or lease agreement shall provide for Operator's acknowledgment of and consent to be bound by this Agreement, including but not limited to Sections 2.6, 2.7, 2.9, 2.10, 2.11, 2.12, and 4.2. Upon execution of such a contract or lease agreement, Developer shall deliver a copy to the City for its records. 2.9 Prohibited Use. Developer shall not utilize any of the displays on the New Digital Billboards to advertise tobacco, marijuana, hashish, any adult or sexually oriented businesses as defined in VMC Section 5.81.2, any products or services thereof, or show sexually oriented images or language, or as may be prohibited by any City ordinance existing as of the Effective Date of this Agreement. 2.10 Safety and Appearance. In addition to the requirements set forth in VMC Section 26.9.3-6 and under Section 26.9.3-6(f), the brightness of the New Digital Billboards shall be such that the difference of ambient light measurement and the New Digital Billboards light turned on to full white copy shall be no greater than 0.3 foot-candles when measured from a distance of 150 feet from the base of the New Digital Billboards. 2.11 City Discount. Businesses that are members of the Chamber and the Chamber itself shall be entitled to a 10% discount (from the "rate card" rates) for advertising on the New Digital Billboards. 2.12 City Use of New Digital Billboards. Subject to availability (except in the case of an Emergency Situation, as defined below), the City may, free of charge, post public service announcements ("PSAs") on the New Digital Billboards for up to a maximum of five (5) weeks (i. e., 840 hours) every calendar year during the Term ("PSA Time"). PSA Time may be subdivided at the sole discretion of the City. In the case of a public safety emergency or natural disaster, including but not limited to a chemical or hazardous waste incident, explosion, earthquake, flood, or criminal incident (e.g., Amber Alerts) (each, an "Emergency Situation"), the City's PSA shall preempt any and all existing commercial advertising until the Emergency Situation has been abated and, in the reasonable discretion of the City, the PSA is no longer necessary to preserve the health 1030199.07/LA 297944-00207/6-1-17/tbm/sne -7- and/or safety of the public. Emergency Situation PSAs shall not be charged to the City's PSA time. The City shall not, under any circumstances, be liable to Developer or any third party for any losses incurred due to the City's posting of an Emergency Situation PSA. 3. DEVELOPMENT AND IMPLEMENTATION OF THE DEVELOPMENT. 3.1 Rights to Develop. Subject to and during the Term of this Agreement, Owner and Developer shall have the right to develop the Site in accordance with, and to the extent of, the Development Approval, the Land Use Regulations and this Agreement, provided that nothing in this Agreement shall be deemed to modify or amend any of the pre-existing Land Use Regulations, as more particularly set forth in Section 3.2 below. 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, the rules, regulations and official policies governing the density and intensity of use of the New Digital Billboards on the Site, the maximum height and size of the New Digital Billboards on the design, improvement and construction standards and specifications applicable to the Site and the New Digital Billboards shall be as set forth in the Land Use Regulations which are in full force and effect as of the Effective Date of this Agreement, subject to the terms of this Agreement. 3.3 Development Approval. Developer, at its own expense and before commencement of demolition, construction or development of the New Digital Billboards, removal of the Defunct Billboard, or other work of improvement upon the Site, shall secure or cause to be secured the Development Approval, a Conditional Use Permit and/or variances, as necessary, and building permit(s), as necessary, from the City, and any and all permits and approvals which may be required by any other governmental agency or utility affected by such construction, development or work to be performed by Developer, including but not limited to Caltrans, pursuant to the Scope of Development. Not by way of limiting the foregoing, in developing and constructing the Development, Developer shall comply with all: (1) applicable development standards in the VMC, (2) applicable NPDES requirements pertaining to the Development, (3) applicable conditions placed on the Development by Caltrans, and (4) applicable building codes, except as may be permitted through approved variances and modifications. Developer shall pay all normal and customary fees and charges applicable to such permits, and the Development Fee or Alternative Fee, as applicable. 3.4 Timing of Development; Scope of Development. Developer shall commence the Development within the time set forth in the Schedule of Performance, attached hereto as Exhibit "D". "Commencement" of the Development is defined herein as commencement of construction or improvements under the City building permit(s) for the construction of the New Digital Billboards on the Site, which shall occur as soon as possible following Developer's receipt of the Development Approval and Final Permits. In the event that Developer fails to meet the schedule for Commencement of the Development, then after mutual compliance with Section 4.3, either the City or Developer may terminate this Agreement by delivering written notice to the other party, and, in the event of such termination, neither the City nor Developer shall have any further obligation hereunder. However, if circumstances within the scope of Section 8.11 delay the Commencement or completion of the Development, then such delays shall not constitute grounds for any termination rights found within this Agreement. In such case, the timeline to commence or complete the relevant task shall be extended in the manner set forth at Section 8.11. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -8- Notwithstanding the above, Developer shall, at all times, comply with all other obligations set forth in this Agreement regarding the construction or improvement of the New Digital Billboards on the Site. Developer shall also maintain the New Digital Billboards at all times during the Term in accordance with the maintenance provisions set forth in Section 3 of the Scope of Development, attached as Exhibit "B" herein. 3.5 Changes and Amendments. Developer may determine that changes to the Development Approval are appropriate and desirable. In the event Developer makes such a determination, Developer may apply in writing for an amendment to the Development Approval to effectuate such change(s). The Parties acknowledge that the City shall be permitted to use its inherent land use authority in deciding whether to approve or deny any such amendment request; provided, however, that in exercising the foregoing reasonable discretion, the City shall not apply a standard different than that used in evaluating requests of other similarly situated developers. Accordingly, under no circumstance shall the City be obligated in any manner to approve any amendment to the Development Approval. The City Administrator or his/her designee shall be authorized to approve any non -substantive amendment to the Development Approval without processing an amendment to this Agreement. All other amendments may require the approval of the City Council. Nothing herein shall cause Developer to be in default if it upgrades the New Digital Billboards pursuant to this Agreement during the Term of this Agreement to incorporate newer technology; provided, however, Developer shall secure all applicable ministerial permits to do so and such upgrade is consistent with the dimensions and standards for the displays, as provided under this Agreement, Land Use Regulations and Subsequent Land Use Regulations. 3.6 Reservation of Authority. 3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the Development: (a) Processing fees and charges imposed by the City to cover the estimated actual costs to the City of processing applications for Subsequent Development Approvals relating to the Development. (b) Procedural regulations consistent with this Agreement relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. (c) Changes to the California Building Code, California Fire Code, California Plumbing Code, California Mechanical Code, or California Electrical Code, as adopted by the City as Subsequent Land Use Regulations, if adopted prior to the issuance of a building permit for development of the New Billboards. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -9- (d) Regulations that are not in conflict with the Development Approval or this Agreement. (e) Regulations that are in conflict with the Development Approval or this Agreement, provided Developer has given written consent to the application of such regulations to the Development. (f) Applicable federal, state, county and multi jurisdictional laws and regulations which the City is required to enforce against the Site or the Development, and that do not have an exception for existing signs or legal nonconforming uses. 3.6.2 Future Discretion of the City. This Agreement shall not prevent the City from denying or conditionally approving any application for a Subsequent Development Approval on the basis of the Land Use Regulations or Subsequent Land Use Regulations then in effect. 3.6.3 Modification or Suspension by Federal, State, County, or Multi - Jurisdictional Law. In the event that applicable federal, state, county or multi jurisdictional laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, and there is no exception for the legal nonconforming use, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such federal, state, county or multi -jurisdictional laws or regulations, and this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provision impractical to enforce. Notwithstanding the foregoing, if such change materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 3.7 Regulation by Other Public Agencies. It is acknowledged by the Parties that other public agencies not subject to control by the City may possess authority to regulate aspects of the Development as contemplated herein, and this Agreement does not limit the authority of such other public agencies. Developer and Owner acknowledge and represent that, in addition to the Land Use Regulations, Developer and Owner shall, at all times, comply with all applicable federal, state and local laws and regulations applicable to the Development and that do not have an exception for a legal nonconforming use. To the extent such other public agencies preclude development or maintenance of the Development and do not have an exception for a legal nonconforming use, Developer and Owner shall not be further obligated under this Agreement except as provided in Section 4.1. Notwithstanding the foregoing, if such action by another public agency materially changes Developer or Owner's costs or otherwise materially impacts their performance hereunder, then (a) Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City, or (b) if moving the New Digital Billboards to another location on the Site would reduce the impact of such public agency action, Developer or Owner (at their sole cost and expense) may relocate the New Digital Billoboards to another location on the Site as reasonably determined by Developer or Owner, and the City shall reasonably cooperate with such relocation of the New Digital Billboards (e.g., if Caltrans widens the 710 Freeway in such a manner that necessitates removal/relocation of the New Digital Billboards, Developer or Owner can relocate the New Digital Billboards on the Site), and if requested by Developer or 1030199.07/LA 297944-00207/6-1-17/tbn/sne -1 �- Owner, the City shall enter into a relocation agreement with the Developer or Owner pursuant to Section 5412 of the California Outdoor Advertising Act. 3.8 Public Improvements. Notwithstanding any provision herein to the contrary, the City shall retain the right to condition any Subsequent Development Approvals on the requirement that Developer pay subsequently required development fees, and/or construct certain subsequently required public infrastructure ("Exactions") at such time as the City shall determine, subject to the following conditions: 3.8.1 The payment or construction must be to alleviate an impact caused by the Development or be of benefit to the Development; and 3.8.2 The timing of the Exaction should be reasonably related to the development of the Development, and said public improvements shall be phased to be commensurate with the logical progression of the development of the Development, as well as the reasonable needs of the public. 3.8.3 It is understood, however, that if there is a material increase in cost to Developer or Owner, or such action by the City otherwise materially impacts Developer or Owner or otherwise materially impacts their performance hereunder, Developer or Owner may terminate this Agreement upon ninety'(90) days prior written notice to the City. 3.9 Fees, Taxes and Assessments. During the Term of this Agreement, the City shall not, without the prior written consent of Developer, impose any additional fees, taxes or assessments on all or any portion of the Development, except such fees, taxes and assessments as are described in or required by this Agreement and/or the Development Approval. However, this Agreement shall not prohibit the application of fees, taxes or assessments upon the Site only and not on the New Digital Billboards or Developer directly, as follows: 3.9.1 Developer shall be obligated to pay those fees, taxes or City assessments and any increases in same which exist as of the Effective Date or are included in the Development Approval; 3.9.2 Developer shall be obligated to pay any fees or taxes, and increases thereof, imposed on a City-wide basis including, but not limited to, business license fees or taxes or utility taxes; 3.9.3 Developer shall be obligated to pay all fees applicable to a permit application as charged by the City at the time such application is filed by Developer; and 3.9.4 Developer shall be obligated to pay any fees imposed pursuant to any Uniform Code that existed when the permit application is filed by Developer or that exists when Developer applies for any Subsequent Development Approval. 3.10 Changes. Notwithstanding anything to the contrary herein, if there is a change in such fees as compared to those fees in effect as of the Effective Date, or if any additional fees are charged and such additional or increased fees materially change Developer or Owner's 1030199.07/LA 297944-00207/6-1-17/tbm/sne -1 1- costs or otherwise materially impact their performance hereunder, Developer or Owner may terminate this Agreement upon ninety (90) days prior written notice to the City. 4. REVIEW FOR COMPLIANCE. 4.1 Annual Review. The City Council shall have the right to review this Agreement annually at the City's sole cost, on or before the anniversary of the commencement of the Term, to ascertain the good faith compliance by Developer with the terms of this Agreement ("Annual Review"). However, no failure on the part of the City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement or serve as a waiver of the City's right to conduct an Annual Review in a year subsequent to a year in which an Annual Review was not conducted. Developer shall cooperate with the City in the conduct of any such Annual Review and, upon written request, provide the following information and documentation to the City at least thirty (30) days before the anniversary of the commencement of the Term: (a) any updates to Developer's contact information related to complaints concerning the New Billboards, as required in the conditions at Exhibit `B", Section 6 herein, (b) status and amount of all payment obligations to the City required under this Agreement for the year in question and cumulatively beginning from the commencement of the Term, (c) any easement changes that could in any way materially impact the City or Developer's obligations under this Agreement, (d) any utility changes that could in any way materially impact the City or Developer's obligations under this Agreement, and (e) any maintenance issues addressed or needing to be addressed per the requirements of Exhibit "B". 4.2 City's Rights of Physical Access. The City and its officers, employees, agents and contractors shall have the right, at their sole risk and expense and upon reasonable notice to Developer, to enter the Site without interfering with any railroad or other right-of-way, and at all reasonable times with as little interference as possible, for the purpose of inspecting the New Digital Billboards. Such inspection must be conducted from a lift operated by Developer, its employees, agents, or contractors, at no additional cost to Developer. Any damage or injury to the Site or to the improvements constructed thereon resulting from such entry shall be promptly repaired at the sole expense of the City. 4.3 Procedure. Each Party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with this Agreement, to explain the basis for such assertion, and to receive from the other Party a justification of its position on such matters. If, on the basis of the Parties' review of any terms of this Agreement, either Party concludes that the other Party has not complied in good faith with the terms of this Agreement, then such Party may serve a written "Notice of Non -Compliance" specifying the grounds therefor and all facts demonstrating such non-compliance. The Party receiving a Notice of Non -Compliance shall have thirty (30) days to cure or remedy the non-compliance identified in the Notice of Non -Compliance, but if such cure or remedy is not reasonably capable of being cured or remedied within such thirty (30)-day period, then the Party receiving a Notice of Non -Compliance shall commence to cure or remedy the non-compliance within such thirty (30)-day period and thereafter diligently and in good faith prosecute such cure or remedy to completion. If the Party receiving the Notice of Non - Compliance does not believe it is out of compliance and contests the Notice of Non -Compliance, it shall do so by responding in writing to said Notice of Non -Compliance within thirty (30) days after receipt of the Notice of Non -Compliance. If the response to the Notice of Non -Compliance has not been received in the office of the Party alleging the non-compliance within the prescribed 1030199.07/LA 297944-00207/6-1-17/tbm/sne -12- time period, the Notice of Non -Compliance shall be conclusively presumed to be valid. If a Notice of Non -Compliance is contested, the Parties shall, for a period of not less than fifteen (15) days following receipt of the response, seek to arrive at a mutually acceptable resolution of the matter(s) occasioning the Notice of Non -Compliance. In the event that a cure or remedy is not timely completed, the Party alleging the non-compliance may thereupon pursue the remedies provided in Section 5; provided, however, that if the Notice of Non -Compliance is contested and the Parties are not able to arrive at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15)-day period, then either Party shall have the right to seek a judicial determination of such contested matter. Neither Party hereto shall be deemed in breach if the reason for non-compliance is due to "force majeure" as defined in, and subject to the provisions of, Section 8.11. 4.4 Certificate of Agreement Compliance. If, at the conclusion of an Annual Review, Developer is found to be in compliance with this Agreement, the City shall, upon request by Developer, issue within ten (10) days of receipt of the request, a written confirmation ("Certificate") to Developer stating that, after the most recent Annual Review, and based upon the information known or made known to the City Administrator and the City Council, that (a) this Agreement remains in effect, and (b) Developer is in compliance with same. The Certificate shall be in recordable form if requested by Developer, and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer may record the Certificate with the County Recorder. Additionally, in the event a Certificate issues or will issue, Developer may, at any time, request from the City a Certificate stating, in addition to the foregoing, which specific obligations under this Agreement have been fully satisfied with respect to the Site, and City shall respond within ten (10) days of receipt of the request. If the City fails to respond to Developer's request pursuant to this Section 4.4, Developer shall be deemed to be in compliance with this Agreement or any obligation that is the subject of Developer's request. 5. DEFAULT AND REMEDIES. 5.1 Termination of Agreement. 5.1.1 Termination of Agreement for Material Default of Developer. The City, in its discretion, may terminate this Agreement for any material failure of Developer to perform any material duty or obligation of Developer hereunder or to comply in good faith with the terms of this Agreement; provided, however, the City may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 4.3. In the event of a termination by the City under this Section 5.1.1, Developer acknowledges and agrees that the City may retain all fees accrued up to the date of the termination, including the Processing Fee and any Development Fees or Alternative Fees, as applicable, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee or Alternative Fee, as applicable, within sixty (60) days after the date of termination that equates to the percentage of time elapsed in the year of the Term at the time of termination. 5.1.2 Termination of Agreement for Material Default of the City. Developer, in its discretion, may terminate this Agreement for any material failure of the City to perform any material duty or obligation of the City hereunder or to comply in good faith with the terms of this Agreement; provided, however, Developer may terminate this Agreement pursuant to this Section only after following the procedures set forth in Section 4.3. In addition, Developer may terminate this Agreement if, despite Developer's good faith efforts, (a) it is unable to secure the Development 1030199.07/LA 297944-00207/6-1-17/1bm/sne -13- Approval, Final Permits and/or compliance with requirements under laws necessary to effectuate the Development, or (b) any governmental agency has concluded a taking or regulatory taking of the Site and/or the Development, or (c) it is unable to profitably operate the Development after two (2) full years from the Commencement Date. In the event of a termination by Developer under this Section 5.1.2, Developer acknowledges and agrees that the City may retain all fees, including the Processing Fee and any Development Fees or Alternative Fees, as applicable, paid up to the date of termination, and Developer shall pay the prorated amount of the Development Fee or Alternative Fee, as applicable, within sixty (60) days after the date of termination that equates to the percentage of time elapsed in the year of the Term at the time of termination. 5.1.3 Rights and Duties Following Termination. Upon the termination of this Agreement, no Party shall have any further right or obligation hereunder except with respect to (a) any obligations to have been performed prior to said termination, (b) any default in the performance of the provisions of this Agreement which has occurred prior to said termination, (c) Developer's obligation to remove the New Digital Billboards pursuant to Section 2.3, or (d) any continuing obligations to indemnify the other Party. 6. INSURANCE, INDEMNIFICATION AND WAIVERS. 6.1 Insurance. 6.1.1 Types of Insurance. (a) Liability Insurance. Beginning on the Effective Date hereof and until completion of the Term, Developer shall, at its sole cost and expense, keep or cause to be kept in force for Developer comprehensive broad form general liability insurance against claims and liabilities covered by the indemnification provisions of Section 6.2. Developer has agreed to indemnify the City to the extent of the liability insurance coverage with respect to its use, occupancy, or improvements, or for property damage, providing protection of at least One Million Dollars ($1,000,000) for bodily injury or death to any one person, at least Two Million Dollars ($2,000,000) for any one accident or occurrence, and at least One Million Dollars ($1,000,000) for property damage. Developer shall also furnish or cause to be furnished to the City evidence that any contractors with whom Developer has contracted for the performance of any work for which Developer is responsible maintains the same coverage required of Developer. (b) Worker's Compensation. Developer shall also furnish or cause to be furnished to the City evidence that any contractor with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder carries worker's compensation insurance as required by law. (c) Insurance Policy Form, Sufficiency, Content and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies qualified to do business in California with an AM Best Rating of no less than "A". All such policies shall be non -assignable and shall contain language, to the extent obtainable, to the effect that (i) the insurer waives the right of subrogation against the City and against the City's agents and representatives except as provided in this Section; (ii) the policies are primary and noncontributing with any insurance that may be carried by the City, but only with respect to the liabilities assumed by Developer under this Agreement; and (iii) the policies cannot be canceled 1030199.07/LA 297944-00207/6-1-17/tbm/sne -14- or materially changed except after written notice by the insurer to the City as expeditiously as the insurance company agrees to provide such notice. Developer shall furnish the City with certificates evidencing the insurance required to be procured by the terms of this Agreement. 6.1.2 Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to the City, in the manner required for notices, copies of certificates of all insurance policies required of each policy within the following time limits: (a) For insurance required above, within ten (10) business days after the Effective Date or consistent with the requirements of Exhibit "D" (Schedule of Performance), Item No. 7. (b) The City may request to see updated copies of the current certificates of all insurance policies required. The City reserves the right to obtain copies of the entire insurance policy, including endorsements. If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish the City with required proof that the insurance has been procured and is in force and paid for, the City, after complying with the requirements of Section 4.3, may view such failure or refusal to be a default hereunder. 6.2 Indemnification. 6.2.1 General. To the extent of its liability coverage required under Section 6.1.1(a) above, Developer shall indemnify the City and Owner, and their respective City Councilmembers, commission members, directors, officers, employees, and agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein "Claims or Liabilities") that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the work, operations, or activities of Developer, its agents, employees, subcontractors, or invitees, hereunder, upon the Site relating to the Development; provided, however, such indemnification obligation shall not be applicable to (a) the mere discovery of any pre-existing adverse physical condition at the Site, except to the extent Developer aggravates such pre-existing condition, or (ii) any Claims or Liabilities arising as a result of the gross negligent or intentional misconduct of City or Owner or their respective City Councilmembers, commission members, directors, officers, employees or agents. (a) Subject to Developer's written approval, Developer will defend any action or actions filed against the City or Owner in connection with any of said Claims or Liabilities covered by the indemnification provisions herein and will pay all costs and expenses, including reasonable legal costs and attorneys' fees incurred in connection therewith, which attorneys will be the attorneys hired by the insurance company where insurance coverage applies. (b) Developer will promptly pay any final non -appealable judgment rendered against the City or Owner, or their respective City Councilmembers, commission members, directors, officers, agents, or employees for any such Claims or Liabilities arising out of or in connection with such work, operations, or activities of Developer upon the Site, and 1030199.07/LA 297944-00207/6-1-17/tbm/sne -15- Developer agrees to save and hold the City and Owner and their respective City Councilmembers, commission members, directors, officers, agents, and employees harmless therefrom. (c) Notwithstanding anything herein to the contrary, City shall indemnify Developer and Owner, and their respective directors, officers, employees, and agents against, and will hold and save them and each of them harmless from any Claims or Liabilities that may be asserted by a City employee or agent arising out of or in connection with such City employee's or agent's entrance onto the Site (including, without limitation, for any inspection of the New Digital Billboards); provided, however, such indemnification obligation shall not be applicable to any Claims or Liabilities arising as a result of the gross negligent or intentional misconduct of Developer or Owner or their respective directors, officers, employees or agents. 6.2.2 Loss and Damage. Except as set forth below, the City shall not be liable for any damage to property of Developer, Owner or of others located on the Site, nor for the loss of or damage to any property of Developer, Owner or others by theft or otherwise. Except as set forth below, the City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Site or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Site, or by any other cause of whatsoever nature. The foregoing two (2) sentences shall not apply (i) to the extent the City or its agents, employees, subcontractors, invitees or representatives causes such injury or damage when accessing the Site, or (ii) under the circumstances set forth in Section 6.2.1 above. 6.2.3 Period of Indemnification. The obligations for indemnity under this Section 6.2 shall begin upon the Effective Date and shall survive termination of this Agreement. 6.3 Waiver of Subrogation. Developer, Owner and the City mutually agree that neither shall make any claim against, nor seek to recover from the other or its agents, servants, or employees, for any loss or damage to Developer, Owner or the City, except as specifically provided hereunder, which include but is not limited to a Claim or Liability to the extent arising from the negligence or willful misconduct of the City, Owner or Developer, as the case may be, or their respective officers, agents, or employees who are directly responsible to the City, Owner and Developer, as the case may be. 7. MORTGAGEE PROTECTION. The Parties hereto agree that this Agreement shall not prevent or limit Developer or Owner, in any manner, at Developer or Owner's sole discretion, from encumbering the Site or any portion thereof or the Development or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Site. The City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and the City agrees upon request, from time to time, to meet with Developer or Owner and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. Subject to compliance with applicable laws, the City will not unreasonably withhold its consent to any such requested interpretation or modification, provided the City determines such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Site shall be entitled to the following rights and privileges: 1030199.07/LA 297944-00207/6-1-17/tbm/sne -16- (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Development or Site made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Development or Site, or any part thereof, which Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from the City of any default by Developer in the performance of Developer's obligations under this Agreement. (c) If the City timely receives a request from a Mortgagee requesting a copy of any Notice of Non -Compliance given to Developer under the terms of this Agreement, the City shall make a good faith effort to provide a copy of that Notice of Non -Compliance to the Mortgagee within ten (10) business days of sending the Notice of Non -Compliance to Developer. The Mortgagee shall have the right, but not the obligation, to cure the non-compliance during the period that is the longer of (i) the remaining cure period allowed such party under this Agreement, or (ii) sixty (60) days. (d) Any Mortgagee who comes into possession of the Development or the Site, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Development or the Site, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's obligations or other affirmative covenants of Developer hereunder, or to guarantee such performance; except that (i) to the extent that any covenant to be performed by Developer is a condition precedent to the performance of a covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use any portion of the Development or the Site acquired by such Mortgagee by foreclosure, deed of trust, or deed in lieu of foreclosure, such Mortgagee shall strictly comply with all of the terms, conditions and requirements of this Agreement and the Development Approvals applicable to the Development or the Site or such part thereof so acquired by the Mortgagee. 8. MISCELLANEOUS PROVISIONS. 8.1 Recordation of Agreement. This Agreement shall be recorded with the County Recorder by the City Clerk within ten (10) days of execution, as required by Government Code Section 65868.5. Amendments approved by the Parties, and any cancellation, shall be similarly recorded. The provisions of this Agreement to the extent permitted by law shall constitute covenants which shall run with the Land, and the benefits of this Development Agreement shall bind and inure to the benefit of the parties and all successors in interest to the parties hereto. 8.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -1 %- 8.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then that term, provision, covenant or condition of this Agreement shall be stricken and the remaining portion of this Agreement shall remain valid and enforceable. 8.4 Assignment. Developer and/or Owner shall have the sole and absolute right to assign any of its rights, title and interest, and delegate any of its duties and obligations, under this Agreement. In the event of any such assignment or delegation, Developer and/or Owner shall provide written notice to the City within ten (10) days of execution of such assignment or delegation. 8.5 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California, without regard to its conflict of laws principles. This Agreement shall be construed as a whole according to its fair language and common meaning, to achieve the objectives and purposes of the parties hereto. The rule of construction, to the effect that ambiguities are to be resolved against the drafting Party or in favor of the non -drafting Party, shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 8.6 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 8.7 Singular and Plural. As used herein, the singular of any word includes the plural and vice versa. 8.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 8.9 Waiver. Failure of a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party with the terms of this Agreement thereafter. 8.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the Parties and their respective successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 8.11 Force Mai eure. Notwithstanding any provision to the contrary herein, neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations (other than obligations to make payments when due) under this Agreement is caused by an event or circumstance that could not reasonably have been foreseen or avoided, mitigated or remedied, and is beyond the Party's reasonable control. Examples of Force Majeure include: acts of God, earthquakes, fires, rains, winds, wars, terrorism, riots or similar hostilities, strikes and other labor difficulties beyond the Party's control (including the Party's employment force), government actions and regulations (other than those of the City), and court actions (such as restraining orders or injunctions). Force Majeureshall not include general economic or other conditions affecting financial markets generally. If any such events shall occur during the term of this Agreement, the 1030199.07/LA 297944-00207/6-1-17/tbm/sne - 18- Party claiming Force Majeure (the "Nonperforming Party") shall promptly notify the other Party (the "Performing Party") of occurrence of that Force Majeure Event, its effect on performance, and how long that Party expects it to last. Thereafter, the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure event, the Nonperforming Party shall use reasonable efforts to limit damages to the Performing Party and to resume its performance under this Agreement. the time for performance shall be extended for the duration of each such event or circumstance, provided that the Term of this Agreement shall not be extended under any circumstances for more than five (5) years beyond the date it would have otherwise expired, and further provided that if such delay is longer than six (6) months, Developer may terminate this Agreement upon written notice to the City and the City shall return to Developer any portion of the Development Fees or Alternative Fees, as applicable, paid for any period after the effective date of such termination. 8.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 8.13 Counterparts and Originals. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. There shall be two (2) fully signed copies of this Agreement, each of which shall be deemed an original. 8.14 Litigation. Any action at law or in equity arising under this Agreement or brought by any Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Los Angeles, State of California, or such other appropriate court in said county. Service of process on the City shall be made in accordance with California law. Service of process on Developer or Owner shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between the City, Owner or Developer seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorneys' fees. 8.15 Covenant Not To Sue. The Parties to this Agreement, and each of them, agree that this Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to this Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other Party to this Agreement, in law or in equity, which is based on an allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid, or unenforceable. 8.16 Development as a Private Undertaking. It is specifically understood and agreed by and between the Parties that the Development is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and Developer is that of a government entity regulating the development of private property, on the one hand, and the holder of a legal or equitable interest in 1030199.07/LA 297944-00207/6-1-17/tbm/sne -19- such private property on the other hand. The City agrees that by its approval of, and entering into, this Agreement, that it is not taking any action which would transform this private development into a "public work" development, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer's private development into a public work project, it being understood that this Agreement is entered into by the City and Developer upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement, which are incorporated into this Agreement and made a part hereof, and that the City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Developer by this Agreement. 8.17 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 8.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by the City of its power of eminent domain or Developer or Owner's rights to seek and collect just compensation or any other remedy available to them. 8.19 Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of the Parties specifically approving the amendment and in accordance with the Government Code provisions for the amendment of development agreements, as well as with VMC section 26.6.8-7. The Parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non -material modifications may be approved on behalf of the City by the City Administrator upon reasonable approval by the City Attorney and without approval by the City Council 8.20 Corporate Authority. The person(s) executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party, if not an individual, is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such Party is bound. 8.21 Notices. All notices under this Agreement shall be effective when delivered by (a) United States Postal Service mail, registered or certified, postage prepaid return receipt requested, or (b) a generally recognized overnight carrier regularly providing proof of delivery, and addressed to the respective Parties as set forth below, or to such other address as either Party may from time to time designate in writing by providing notice to the other party: 1030199.07/LA 297944-00207/6-1-17/tbm/sne -20- If to the City: City of Vernon 4305 Santa Fe Ave. Vernon, CA 90058 Attn: Carlos Fandino, City Administrator If to Developer: Magellan Atlantic I, LLC 1800 Ave of the Stars, #105 Los Angeles, CA 90067 Attn: Martin Slusser If to Owner: Magellan Atlantic I, LLC 1800 Ave of the Stars, #105 Los Angeles, CA 90067 Attn: Martin Slusser 8.22 Nonliability of Individuals. No officer, official, member, employee, agent, or representatives of the City, Owner or Developer shall be personally liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative. 8.23 No Brokers. The City and Developer each represent and warrant to the other that it has not employed any broker and/or finder to represent its interest in this transaction. Each Party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorneys' fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder's fee in connection with this Agreement or arising out of agreements by the indemnifying party to pay any commission or finder's fee. 8.24 No Conflict. Owner and Developer hereby represent, warrant and certify that no member, officer or employee of either is a director, officer or employee of the City, or a member of any of the City's boards, commissions or committees, except to the extent permitted by law. 8.25 Equal Employment Opportunity. Owner and Developer hereby certify and represent that, during the Term of this Agreement, they and any other parties with whom they may subcontract, shall adhere to equal employment opportunity practices to assure that applicants, employees and recipients of service are treated equally and are not discriminated against because of their race, religion, color, national origin, ancestry, disability, sex, age, medical condition, sexual orientation or marital status. Owner and Developer further agree to comply with The Equal Employment Opportunity Practices provisions as set forth in Exhibit "E" attached hereto and incorporated herein by reference. 1030199.07/LA 297944-00207/6-1-17/tbm/sne -21- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. CITY: CITY OF VERNON, a California charter City and California municipal corporation Melissa Ybarra, Mayor ATTEST: Maria E. Ayala, City Clerk APPROVED AS TO FORM: Brian Byun, Deputy City Attorney DEVELOPER: Magellan Atlantic I, LLC a California limited liability company By: Name:Martin Slusser Its: OWNER: Magellan Atlantic I, LLC a California limited liability company By: Name: Martin Slusser Its: [end of signatures] 1030199.07/LA 297944-00207/6-1-17/tbm/sne -22- A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) On , 201, before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public [SEAL] 1030199.07/LA 297944-00207/6-1-17/tbm/sne -23 - EXHIBIT "A" LEGAL DESCRIPTION OF SITE 1030199.07/LA -24- 297944-00207/5-31-17/tbm/s nc PARCEL 1: THAT PORTION OF LOT 110 OF RANCHO LAGUNA (SO CALLED) IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED AS EXHIBIT "A" IN CASE NO. B 25296 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAID COUNTY, AND THAT PORTION OF THE RANCHO SAN ANTONIO, AS SHOWN ON MAP RECORDED IN BOOK 1 PAGE 389 OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN THE FOLLOWING DESCRIBED BOUNDARIES: BEGINNING AT THE SOUTHEASTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED AS HAVING A LENGTH OF 556.40 FEET AND A BEARING OF NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST IN PARCEL 1 OF DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24, 1957 IN BOOK 53458 PAGE 311, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID COURSE, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, A DISTANCE OF 538.02 FEET TO A POINT ON A CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 450 FEET: THENCE NORTHEASTERLY FROM A TANGENT WHICH BEARS NORTH 53 DEGREES 11 MINUTES 11 SECONDS EAST, ALONG SAID CURVE THROUGH AN ANGLE OF 10 DEGREES 31 MINUTES 39 SECONDS, AN ARC DISTANCE OF 82.68 FEET TO A POINT ON A LINE PARALLEL WITH AND DISTANT 5.00 FEET SOUTHEASTERLY. MEASURED AT RIGHT ANGLES FROM THE SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD; THENCE TANGENT NORTH 63 DEGREES 42 MINUTES 50 SECONDS EAST, ALONG SAID PARALLEL LINE, A DISTANCE OF 274.58 FEET: THENCE NORTH 73 DEGREES 05 MINUTES 20 SECONDS EAST, A DISTANCE OF 85.84 FEET: THENCE NORTH 73 DEGREES 48 MINUTES 34 SECONDS EAST, A DISTANCE OF 115.58 FEET; THENCE NORTH 85 DEGREES 07 MINUTES 44 SECONDS EAST, A DISTANCE OF 196.25 FEET: THENCE EASTERLY AND SOUTHERLY ALONG A TANGENT CURVE CONCAVE SOUTHERLY AND WESTERLY AND HAVING A RADIUS OF 149.50 FEET THROUGH AN ANGLE OF 77 DEGREES 42 MINUTES 51 SECONDS AN ARC DISTANCE OF 202.78 FEET; THENCE TANGENT SOUTH 17 DEGREES 09 MINUTES 25 SECONDS EAST, A DISTANCE OF 174.28 FEET TO A POINT ON A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 698.86 FEET; THENCE SOUTHWESTERLY FROM A TANGENT THAT BEARS SOUTH 53 DEGREES 52 MINUTES 46 SECONDS WEST, ALONG SAID CURVE THROUGH AN ANGLE OF 7 DEGREES 57 MINUTES 22 SECONDS AN ARC DISTANCE OF 97.04 FEET TO THE MOST NORTHERLY CORNER OF THAT STRIP OF LAND DESCRIBED AS PARCEL 7 IN DEED TO THE CHANSLOR-CANFIELD MIDWAY OIL COMPANY, RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS; THENCE TANGENT SOUTH 45 DEGREES 55 MINUTES 24 SECONDS WEST, ALONG THE NORTHWESTERLY LINE OF SAID STRIP OF LAND SO DESCRIBED AS PARCEL 7, A DISTANCE OF 128.36 FEET: THENCE STILL ON SAID LAST MENTIONED NORTHWESTERLY LINE, SOUTHWESTERLY ALONG THE ARC OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 455.34 FEET THROUGH AN ANGLE OF 42 DEGREES 57 MINUTES 44 SECONDS, AN ARC DISTANCE OF 341.43 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM THAT PORTION OF SAID LOT 110 INCLUDED IN THE LAND DESCRIBED IN THE QUITCLAIM DEED RECORDED ON JANUARY 24, 2012 AS INSTRUMENT NO. 20120124062, OF OFFICIAL RECORDS. EXCEPT THEREFROM ALL SUBSURFACE RIGHTS, TITLE AND INTEREST IN AND TO ALL SUBSURFACE MINERAL RIGHTS EXISTING IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT TO ENTER UPON OR USE THE SURFACE OF SAID LAND FOR THE DEVELOPMENT, EXTRACTION AND REMOVAL OF MINERALS THEREUNDER, OR FOR ANY OTHER PURPOSE OR PURPOSES, AS DEED TO CHANSLOR-CANFIELD MIDWAY OIL COMPANY. BY DEED RECORDED IN BOOK 23513 PAGE 240, OFFICIAL RECORDS. PARCEL 2: THOSE PORTIONS OF LOTS 109, 110 AND 115 OF RANCHO LAGUNA (SO CALLED) IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED AS EXHIBIT "A" IN CASE NO. B 25296 OF SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAID COUNTY, AND THAT PORTION OF THE RANCHO SAN ANTONIO, AS SHOWN ON MAP RECORDED IN BOOK 1 PAGE 389 OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, INCLUDED WITHIN THE FOLLOWING DESCRIBED BOUNDARIES: BEGINNING AT THE NORTHWESTERLY TERMINUS OF THAT CERTAIN CURVE DESCRIBED AS HAVING A RADIUS OF 6577.22 FEET AND AN ARC LENGTH OF 2244.08 FEET IN PARCEL 2 OF DEED TO THE STATE OF CALIFORNIA, RECORDED JANUARY 24, 1957 IN BOOK 53458 PAGE 311, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID CURVE BEING ON THE NORTHEASTERLY LINE OF THE 100 FOOT STRIP OF LAND CONVEYED TO THE CITY OF LOS ANGELES, DEPARTMENT OF WATER AND POWER, BY DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS; THENCE TANGENT TO SAID CURVE, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, ALONG SAID NORTHEASTERLY LINE, A DISTANCE OF 621.63 FEET TO A POINT ON A CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 468.34 FEET; THENCE NORTHEASTERLY FROM A TANGENT WHICH BEARS NORTH 16 DEGREES 19 MINUTES 07 SECONDS WEST, ALONG SAID CURVE THROUGH AN ANGLE OF 73 DEGREES 37 MINUTES 57 SECONDS, AN ARC DISTANCE OF 601.88 FEET; THENCE SOUTH 21 DEGREES 52 MINUTES 38 SECONDS EAST, A DISTANCE OF 268.32 FEET; THENCE SOUTH 27 DEGREES 05 MINUTES 17 SECONDS EAST, A DISTANCE OF 506.74 FEET; THENCE SOUTH 29 DEGREES 50 MINUTES 54 SECONDS EAST, A DISTANCE OF 210.27 FEET; THENCE SOUTH 35 DEGREES 45 MINUTES 42 SECONDS EAST, 269.32 FEET TO A POINT ON SAID NORTHEASTERLY LINE CURVED, HEREINABOVE DESCRIBED AS HAVING A RADIUS OF 6577.22 FEET; DISTANT THEREON 355.22 FEET SOUTHEASTERLY FROM SAID POINT OF BEGINNING; THENCE NORTHWESTERLY ALONG SAID CURVE LINE THROUGH AN ANGLE OF 3 DEGREES 05 MINUTES 40 SECONDS, AN ARC DISTANCE OF 355.22 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM ALL MINERALS, PETROLEUM, GASES AND OTHER HYDROCARBON SUBSTANCES EXISTING IN AND UNDER SAID LAND WITHOUT THE RIGHT TO ENTER UPON OR USE THE SURFACE OF SAID LAND FOR THE EXTRACTION AND REMOVAL OF SUCH SUBSTANCES OR FOR ANY OTHER PURPOSE OR PURPOSES, AS RESERVED IN DEED FROM CHANSLOR-CANFIELD MIDWAY OIL COMPANY, RECORDED ON JULY 18, 1944 IN BOOK 21013 PAGE 131, OFFICIAL RECORDS. PARCEL 3: THAT CERTAIN PORTION OF LOT 110 OF SAID RANCHO LAGUNA AND ALSO A PORTION OF SAID RANCHO SAN ANTONIO, IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING A PARCEL OF LAND, 60 FEET IN WIDTH, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST WESTERLY CORNER OF THAT CERTAIN RAILROAD RIGHT OF WAY DESCRIBED AS PARCEL 7 IN DEED RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE FROM SAID POINT OF BEGINNING, NORTH 54 DEGREES 28 MINUTES 35 SECONDS WEST, ALONG THE NORTHEASTERLY LINE AND ITS NORTHWESTERLY PROLONGATION OF THE 100 FOOT WIDE RIGHT OF WAY OF THE CITY OF LOS ANGELES, AS DESCRIBED IN DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS, 471.47 FEET, MORE OR LESS, TO THE SOUTHEASTERLY LINE OF ATLANTIC BOULEVARD, AS DESCRIBED IN DEED RECORDED IN BOOK 864 PAGE 317, OFFICIAL RECORDS: THENCE NORTHEASTERLY ALONG SAID STREET LINE TO THE MOST WESTERLY CORNER OF THAT CERTAIN PROPERTY DESCRIBED IN DEED TO THE UNITED STATES OF AMERICA, RECORDED IN BOOK 20047 PAGE 238, OFFICIAL RECORDS; THENCE ALONG THE SOUTHWESTERLY LINE OF LAST SAID PROPERTY, SOUTH 54 DEGREES 28 MINUTES 35 SECONDS EAST. TO A POINT IN THE NORTHERLY LINE OF SAID RAILROAD RIGHT OF WAY; THENCE WESTERLY ALONG LAST SAID LINE TO THE POINT OF BEGINNING. EXCEPT THREFROM THAT PORTION OF SAID LOT 110 INCLUDED IN THE LAND DESCRIBED IN THE QUITCLAIM DEED RECORDED ON JANUARY 24, 2012 AS INSTRUMENT NO. 20120124062, OF OFFICIAL RECORDS. EXCEPT ALL OIL, GAS AND OTHER PETROLEUM OR MINERAL SUBSTANCES CONTAINED IN SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE ENTRY FOR THE PURPOSE OF EXTRACTING OR REMOVING SUCH PETROLEUM OR OTHER MINERALS OR FOR ANY PURPOSE IN CONNECTION THEREWITH, AS RESERVED IN THE DEED FROM CHANSLOR-CANFIELD OIL COMPANY, RECORDED IN BOOK 20565 PAGE 1, OFFICIAL RECORDS. PARCEL 4: THAT CERTAIN TRIANGULAR SHAPED PARCEL OF LAND IN SAID RANCHO SAN ANTONIO, IN THE CITY OF VERNON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BOUNDED SOUTHWESTERLY BY THE NORTHEASTERLY LINE OF THE 100 FOOT WIDE RIGHT OF WAY OF THE CITY OF LOS ANGELES, AS DESCRIBED IN DEED RECORDED IN BOOK 14788 PAGE 1, OFFICIAL RECORDS, BOUNDED EASTERLY BY THE WESTERLY LINE OF THAT CERTAIN RAILROAD RIGHT OF WAY, 33 FEET IN WIDTH, DESCRIBED IN DEED RECORDED IN BOOK 8118 PAGE 72, OFFICIAL RECORDS, AND BOUNDED NORTHERLY BY THE SOUTHERLY LINE OF THAT CERTAIN RAILROAD RIGHT OF WAY GENERALLY 33 FEET IN WIDTH, DESCRIBED AS PARCEL 7, IN DEED RECORDED IN BOOK 19128 PAGE 133, OFFICIAL RECORDS. EXCEPT ALL OIL, GAS AND OTHER PETROLEUM OR MINERAL SUBSTANCES CONTAINED IN SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE ENTRY FOR THE PURPOSE OF EXTRACTING OR REMOVING SUCH PETROLEUM OR OTHER MINERALS OR FOR ANY PURPOSE IN CONNECTION THEREWITH, AS RESERVED IN THE DEED FROM CHANSLOR-CANFIELD OIL COMPANY, RECORDED IN BOOK 20565 PAGE 1, OFFICIAL RECORDS. EXHIBIT R SCOPE OF DEVELOPMENT Developer and the City agree that the Development shall be undertaken in accordance with the terms of the Agreement, which include the following: 1. The Development. Developer shall install the New Digital Billboards in accordance with the terins of this Agreement. The New Digital Billboards consist of one (1) 50' tall (75' from top of the sign to grade), "bulletin" size freeway -oriented billboard with a total of two (2) digital displays (each display measuring 14' x 48' within the billboard frame), and the angle created at the "V" of the two displays shall be the same angle as the existing "V" of the two existing static billboards — all as more specifically set forth in Exhibit "C,". Development shall also include removal, at Developer's sole cost and expense, of the one existing static display on the Site (the "Defunct Billboard"). If and when Developer elects to improve the Site with one or more permanent stuuctures, during such development Developer shall underground all utilities necessary for the New Digital Billboards, and the Site shall be maintained in accordance with the conditions at Paragraph 3 below. 2. Building. Developer shall pay all applicable City building fees, as described at Section 2.4 of the Agreement, at the time that a building pen -nit is issued for the installation of the New Digital Billboards on the Site. 3. Maintenance and Access. Developer, for itself and its successors and assigns, hereby covenants and agrees to be responsible for the following: (a) Maintenance and repair of the New Digital Billboards (where authorized pursuant to the Agreement, and including but not limited to, the displays installed thereon, and all related on -site improvements and, if applicable, easements and rights -of -way, at its sole cost and expense), including, without limitation, landscaping, poles, lighting, signs and walls (as they relate to the Development) in good repair, free of graffiti, rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Site, unless those federal, state, and local bodies have an exception for a legal nonconforming use. Such maintenance and repair shall include, but not be limited to, the following: (i) sweeping and trash removal related to the Development; (ii) the care and replacement of all shrubbery, plantings, and other landscaping or the painted backing in a healthy condition if damaged by the Development; (iii) the ongoing maintenance by Developer of any access road to the New Digital Billboards if damaged by the Development and to minimize dust caused by the Development; and (iv) the repair, replacement and repainting of the New Digital Billboards' structures and displays as necessary to maintain such billboards in good condition and repair. (b) Maintenance of the New Digital Billboards and surrounding portion of the Site in such a manner as to avoid the reasonable determination of a duly authorized official of the City that a public nuisance has been created by the absence of adequate maintenance of the Development such as to be detrimental to the public health, safety or general welfare, or that such 1030199.074 A 297944-00207/5-31-17/tb iu/s ne -2 5 - a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within three hundred (300) feet of the Site. (c) Developer shall reasonably coordinate with Owner or any neighboring property owners who share utilities or access roads to their separate respective billboards. The City may designate alternative access for planning purposes so long as such alternative access allows Developer to access the New Digital Billboards and related utilities. 4. Other Rights of the City. In the event of any violation or threatened violation of any of the provisions of this Exhibit "B," then in addition to, but not in lieu of, any of the rights or remedies the City may have to enforce the provisions of the Agreement, the City shall have the right, after complying with Section 4.3 of the Agreement, (i) to enforce the provisions hereof by undertaking any maintenance or repairs required by Developer under Paragraph 3 above (subject to the execution of a permit to enter in form reasonably acceptable to Owner) and charging Developer for any actual maintenance costs incurred in performing same, and (ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and similar matters or approvals pertaining to the Development or any part thereof or interests therein as to the violating Party or one threatening violation. 5. No City Liability. The granting of a right of enforcement to the City does not create a mandatory duty on the part of the City to enforce any provision of the Agreement. The failure of the City to enforce the Agreement shall not give rise to a cause of action on the part of any person. No officer or employee of the City shall be personally liable to Developer, its successors, transferees or assigns, for any default or breach by the City under the Agreement. 6. Conditions of Approval. The following additional conditions shall apply to the installation of the New Digital Billboards and, where stated, landscaping adjacent to the New Digital Billboards, which billboards and landscaping or painted backing adjacent to the billboards, respectively, shall conform to all applicable provisions of the Development Approval and the following conditions, in a manner subject to the approval of the Director of Public Works or his or her designee: (a) A building permit(s) will be required, and structural calculations shall be prepared by a licensed civil engineer and approved by the Director of Public Works or his or her designee. (b) The New Billboards shall be located in the portion of the Site shown on Exhibit "C", and shall be of the dimensions described in Section 1, above. (c) The New Digital Billboard pole(s) shall have a column cover as depicted in the Site Plan and Elevations within Exhibit "C". In addition, the poles of both New Billboards will bear the name and/or logo of the City in a reasonable size and location on the pole(s). The Developer and the City shall work cooperatively with respect to the reasonable design on the poles with the City to have ultimate approval authority. (d) Plans and specifications for the proposed installation of the New Digital Billboards shall be submitted to the City for plan check and approval prior to the issuance of 1030199.07/1,A -26- 297944-00207/5- 3 1 -17/tbm/sne building permits. Plans and specifications for the proposed installation of the undergrounding of all utilities shall be submitted to the City for plan check and approval prior to the issuance of electrical permits. (e) Prior to the approval of the final inspection, all applicable conditions of approval and all mandatory improvements shall be completed to the reasonable satisfaction of the City. (f) Developer shall maintain the New Digital Billboards and use thereof in full compliance with all applicable codes, standards, policies and regulations imposed by the City, county, state or federal agencies by any duly and valid City, county or state ordinance with jurisdiction over the facilities, unless the Development is exempted as a legal nonconfonning use. (g) Developer shall, at all times, comply with the approval for the New Digital Billboards and New Static Billboard from the California Department of Transportation Outdoor Advertising Division, and shall maintain acceptable clearance between proposed billboards and Southern California Edison distribution lines. (h) Developer shall pay any and all applicable fees due to any public agency prior to the final issuance of the applicable building or electrical permits. (i) The activities proposed in the Agreement shall be conducted completely upon the Site and shall not use or encroach on any public right-of-way. 0) Developer shall ensure that all access to the New Digital Billboards is kept restricted to the general public to the extent permitted under local laws and by the Development Approval. (k) If any portion of the painted backing installed adjacent to the New Digital Billboards is damaged by the Development or becomes damaged, as detennined by the City's Director of Public Works or his or her designee, Developer shall repair, or cause to be repaired, such damage within thirty (30) days of written notification by the City, unless such time is extended by the City's Director of Public Works or his or her designee if Developer shows unusual circumstances requiring more time to accomplish such repair. (1) Developer shall coordinate its work with the requirements of the City's Gas & Electric Department to achieve the undergrounding of all utilities, as applicable. (m) Developer shall comply with all necessary federal National Pollutant Discharge Elimination System ("NPDES") requirements pertaining to the proposed use, to the extent applicable. (n) All graffiti shall be adequately and completely removed or painted over within 48 hours of notice to Developer of such graffiti being affixed on the Development. (o) Prior to final sign off of the building permit for the New Digital Billboards, the applicable landscaping or painted backing shall be installed at the Site. 1030199.07/LA 297944-00207/5-31-17hbm/sne -27- (p) Developer shall comply with State law regarding the limitation of light or glare or such other standards as adopted by the Outdoor Advertising Association of America, Inc. ("OAAA"), including but not limited to, the 0.3 foot-candles limitation over ambient light levels and ensuring additional flexibility in reducing such maximum light level standard given the lighting environment, the obligation to have automatic diming capabilities, as well as providing the City's Director of Public Works or his or her designee with a designated Developer employee's phone number and/or email address for emergencies or complaints that will be monitored 24 hours a day/7 days per week. Upon any reasonable complaint by the City's Director of Public Works or his or her designee, Developer shall dim the display to meet these guidelines and further perform a brightness measurement of the display using OAAA standards and provide the City with the results of same within ten (10) business days of the City's complaint. 1030199.07/LA -2 g- 297944-00207/5-31-17/ Ibm/s ne EXHIBIT C SITE PLAN AND BILLBOARD ELEVATIONS 1030199.07/LA 297944-00207/5-31-17/Ibm/sne -29- v CD o Z 3 Wo 0 CA)0 cn CD � D W C� w o CD co N Q 42' 14' m x. Ct) m n O O Cn On O D = 5 4 rT 00 o ID Z'CCD m c D D -I K n O .Ot D5 —_ 2) 4- 0. CDN C7 7 cMn, r m (n � N 7 NO _� =i, C? CO = w 0 CD O 0- cr CD CTI CA CD 0 1I �0 �CO3 n �� `C O 0 3 G = rn r Y,m m m = m :D W0 Q Cm CQ cn CD O;:L CD cQ Ey COy Dm m m CD < >v � J A co W 0 9imn5�25� n000 zv�zm-m C mZZmn6N o� mCD o-- CD o m�v mo�� CD ��z�Zoroa ASS 7�G pOp � = ti m 7� h � Z � vTJ �• ��z�mv prczi c� z�y_rlyoA vzi � �Z>�DD �m�zp cn JnC j mM D po3�p2ME� N�JC�TI n mm-u p CD CD � (n 3 _ _ 0 0 N 1 N A N � v rn Cn Cl) D m = -a 0 m 0- a 3 (D II ° m N N O .o II 0 N O O CL l5 r� O CD m m m 4 m m 160' 70' x �' q14! I = CC cn. I X. I a0 _C cnC-7, = Ico I ? o co LP CD o5 I Z, D I� Z� _ J J Ir '^ V.7C,' c m I _ D Q IT m om-o' Win— II i II❑ °' — CD cn CD O Q- 0• m x Tmco0 ( Cn _ i m CD 0 z �XOmz 14' v_rm �' -N_I ZXxmz 14' S O � I z 3 c� 0M z 00 O (Q c 0 z (] A T O I �Z� C5- m �Z� o D m I ` 0_ i 0 _ _ — _ _ _ _ _41 co I D S p N _ _ _ _ _ _ _ _ _ _ _ _ _ m o z I 25' 50' c� 35' 50' 75' 85' O GI z cniz1 rnmvz my o 20 � a` o C n =� Z z T � / � ,/ $ � Atlantic 3lvdAN.vny�B ec"`VM1va % o k �z z Of r I a0z z w o .0 + }. A ti t Aft 0 z LLI L ^ca cri co a iI C CL N 4-j i 'IW AW N O� ° ° PON* No -:.:-W Pik P; t N I 1 L� U) c W 0- cz cz 2-1 _j I EXHIBIT D SCHEDULE OF PERFORMANCE ITEM OF PERFORMANCE TIME FOR REFERENCE PERFORMANCE 1. [INTENTIONALLY LEFT BLANK] 2. Effective Date of this Agreement. 30 days following City 1.1.15 Council's second reading and adoption of ordinance approving Agreement 3. Developer prepares and submits to Within 120 days of City 3A City working drawings Council's second reading and specifications and engineering, the adoption of ordinance approving City commences approval process. Agreement 4. City to approve all construction and Within 30 days of City's receipt engineering drawings and of Developer's construction specifications with a plan check drawings and specifications approval, and issue a building addressing all of City's pen -nit and an electrical permit. comments. City agrees to any necessary building or electrical permits needed for Developer to acquire the Caltrans approvals. Developer agrees not to commence construction until it receives the applicable Caltrans approvals. 5. Developer to provide copy of Prior to commencing any 3.3, 3.4 Caltrans approval to City. inspections and work on the Development. 1030199.07/1.A -30- 297944-00207/ 5-31-17/tbm/s ne ITEM OF PERFORMANCE TIME FOR REFERENCE PERFORMANCE 6. Developer to submit proof of Prior to commencing any 6.1.2 insurance to City. inspections and work on the Development 7. Developer obtains unfinalled Prior to commencing work on 2.6.1 versions of the Final Permits and the Development provides notice to City of same. 8. Developer pays City first March 31 after Commencement 2.6.1 and 2.6.2 installment of Development Fee or Date Alternative Fee, if applicable, if Developer receives Final Permits 9. Developer pays City second March 31, two years after 2.6 installment and subsequent annual Commencement Date, and installments of the Development continuing throughout the Tenn. Fee if Developer receives Final Each payment occurring by Permits. March 31 of the year following the payment year of operation during the Term 10. Developer pays the Alternative Fee Within 90 days of the end of 2.7 if in excess of the Development each calendar year of the Term Fee. It is understood that this Schedule of Perfonnance is subject to all of the terms and conditions of the text of the Agreement. The summary of the items of performance in this Schedule of Perfonnance is not intended to supersede or modify the more complete description in the text; in the event of any conflict or inconsistency between this Schedule of Perfonnance and the text of the Agreement, the Agreement shall govern. The time periods set forth in this Schedule of Performance may be altered or amended only by written agreement signed by both Developer and the City. 1030199.07J A 297944-00207/5-31-17/tbm/sne -31- Notwithstanding any extension of the Term in the manner described herein, and subject to the provisions of Section 3.5 of the Agreement, the City Administrator shall have the authority to approve extensions of time set forth in this Schedule of Performance without action of the City Council, not to exceed a cumulative total of 180 days. 1030199.074 A _3 �_ 297944-00207/5-31-17/Lbm/s ne FXTTTRTT F UAL EMPLOYMENT OPPORTUNITY PRACTICES PROVISI A. Developer and Owner certify and represent that, during the performance of this Agreement, Developer and each subcontractor shall adhere to equal opportunity employment practices to assure that applicants and employees are treated equally and are not discriminated against because of their race, religious creed, color, national origin, ancestry, handicap, sex, or age. Developer and Owner further certify that they will not maintain any segregated facilities. B. Developer and Owner agree that they shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of Developer or Owner, state that they are `Equal Opportunity Employers" or that all qualified applicants will receive consideration for employment without regard to their race, religious creed, color, national origin, ancestry, handicap, sex or age. C. Developer and Owner agree that they shall, if requested to do so by the City, certify that they have not, in the performance of this Agreement, discriminated against applicants or employees because of their membership in a protected class. D. Developer and Owner agree to provide the City with access to, and, if requested to do so by City, through its awarding authority, provide copies of all of their records pertaining or relating to their employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law. E. Nothing contained in this Agreement shall be construed in any manner as to require or permit any act which is prohibited by law. 1030199, 07 / LA 297944-00207/5-31-17/(bm/sne - 3 3 -