HomeMy WebLinkAboutCity Council Agenda Item No. 13CITY OF
LADE o LSINOIZE
DREAM EXTREME-
REPORT TO CITY COUNCIL
TO: HONORABLE MAYOR
AND MEMBERS OF THE CITY COUNCIL
FROM: THOMAS P. EVANS
INTERIM CITY MANAGER
DATE: SEPTEMBER 25, 2012
SUBJECT: DEVELOPMENT AGREEMENT — GENERAL OUTDOOR
ADVERTISING — DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF LAKE ELSINORE AND GENERAL
OUTDOOR ADVERTISING TO PERMIT THE PLACEMENT OF AN
OFF -SITE SIGN ADJACENT TO INTERSTATE 15 IN THE
GENERAL VICINITY OF EAST FRANKLIN STREET; IN
ACCORDANCE WITH THE PROVISIONS CONTAINED WITHIN
THE PROPOSED AMENDMENT TO SECTION 17.196.100 OF THE
LAKE ELSINORE MUNICIPAL CODE
Recommendation
1. Waive further reading and introduce by title only: ORDINANCE NO. 2012 -1307,
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE
APPROVING A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY
OF LAKE ELSINORE AND GENERAL OUTDOOR ADVERTISING, by roll call
vote.
Background
In anticipation of approval of Zoning Ordinance Text Amendment No. 2012 -02, which
amends the Lake Elsinore Municipal Code to allow off -site signage with approval of a
development agreement, General Outdoor Advertising, which has partnered with
Diamond Stadium Group, filed a development agreement application that would allow
for the construction and operation of an electronic billboard sign along Interstate 15 in
the general vicinity of East Franklin Street.
At its regular meeting on September 5, 2012, the City of Lake Elsinore Planning
Commission approved (4 -1 vote) Resolution No. 2012 -31 recommending that the City
Council approve the Development Agreement by and between the City of Lake Elsinore
and General Outdoor Advertising.
AGENDA ITEM NO. 13
Page 1 of 82
Development Agreement — General Outdoor Advertising
September 25, 2012
Page 2 of 4
Discussion
The Planning Commission discussed several items of concern which are:
• The Commission asked for clarification as to what would happen if operation of
the sign was terminated by its owner(s). City Attorney Barbara Leibold
responded that terms would be added to the Development Agreement regarding
operation and maintenance and requiring removal of the sign if the owner(s)
failed to keep the sign operational.
• The Commission expressed its opinion that the City should be entitled to post
Public Service Messages more frequently than one eight (8) second message on
each face (for a total of 16 seconds) every ten (10) minutes. Staff explained that
the Development Agreement provides for not less than sixteen (16) seconds
every minute of every day for the promotion of Lake Elsinore Diamond Stadium,
the Lake Elsinore Storm, and games, events and activities sponsored by the
Storm and or occurring in and around the stadium. Inasmuch as this promotion
benefits the City of Lake Elsinore, the City was obtaining a benefit that actually
exceeds the 16 seconds every 10 minutes. The Commission made no specific
recommendation regarding this item.
• The Commission discussed whether lighting intensity and sign changes from one
advertisement to another would adversely affect drivers and/or homes that have
views of the sign. David Oster, representing the Lake Elsinore Storm, explained
that the lighting in the display is less intense at night because lower levels of light
are needed to make the display visible at night and that the electronic sign
panels are oriented towards the freeway and not towards existing homes.
Following the Planning Commission hearing, Staff followed up with Tim Lynch
from General Outdoor Advertising who provided the following additional
information regarding operation of the electronic displays:
• The LED panels have a much more sophisticated dimming system than just day
& night. There are 100 dimming increments that are continuously monitored
using ambient and direct light photocells. So the dimming system doesn't just
factor in sunlight but also other factors such as local ambient light, direct sunlight
as in the case of sunrise and sunset on east and west facing panels, clouds and
fog, and anything else that might affect the relative amount of light in the area.
And the system is constantly updating so the transitions are very gradual and
hardly noticeable.
• There is also a backup system with an almanac of sunrise and sunset times
throughout the year in the unlikely event of a photocell failure.
• The LED panels operate at a maximum daytime standard of 7500 lumens per
square meter and at a maximum nighttime standard of 500 lumens per square
meter.
• The proposed signage will comply with all Caltrans regulations and requirements
regarding location and operation.
Page 2 of 82
Development Agreement — General Outdoor Advertising
September 25, 2012
Page 3 of 4
• The Commission discussed the Development Agreement's prohibition on the
advertising of gambling (Section 3.7.a). The Commission was concerned that
the prohibition against any advertising for gambling or gambling services would
prevent the Casino in Lake Elsinore from advertising on this sign. Therefore, the
Planning Commission made the recommendation to allow the sign to be used for
advertising gambling and gambling services.
Following the Planning Commission hearing, the applicant has inquired whether the
limitation on advertising alcohol might also be eliminated or relaxed to allow alcohol
sponsors in the Lake Elsinore Diamond Stadium to promote a designated driver
program or a "don't drink and drive" message. The Diamond Stadium Group also has a
"Thirsty Thursday" promotion that the Storm will want to advertise during the advertising
time designated for Stadium /Storm promotion. Staff seeks direction from the City
Council on this issue.
Environmental Determination
The vesting of the right to construct and operate the Sign through the Development
Agreement is exempt from the California Environmental Quality Act (Cal. Publ. Res.
Code § §21000 et seq.: "CEQA ") and the State CEQA Guidelines (14. Cal. Code Regs
§ §15000 et seq.), specifically pursuant to Section 15332 (Class 32 — In -Fill
Development Projects) because the Sign on the Property is consistent with the
applicable General Plan designation and policies, as well as zoning designation and
regulations, the Sign and the Property is within the City's boundaries and on a site less
than five acres surrounded by urban uses — most notably Interstate 15, the Property has
no value as habitat, and approval of the Sign will not result in any significant effects
relating to traffic, noise, air quality, or water quality and the Sign is adequately served by
all required utilities and public services.
Fiscal Impact
No negative fiscal impact. The Development Agreement guarantees at no cost to the
City, the opportunity for the City to place civic public service messages, including those
sponsored by non - profit organizations, on the Sign.
Prepared by: Richard J. MacHott, LEED Green Associate�t�/'/
Senior Planner �� /
Reviewed by: Warren Morelion, AICP\
Acting Community Develop ent Director
Approved by: Thomas P. Evans
Interim City Manager
Page 3 of 82
Development Agreement — General Outdoor Advertising
September 25, 2012
Page 4 of 4
Attachments:
1. Vicinity Map
2. City Council Ordinance No. 2012 -& Approving a Development Agreement by and
between the City of Lake Elsinore and General Outdoor Advertising
3. Development Agreement by and between the City of Lake Elsinore and General Outdoor
Advertising.
4. Draft Minutes of the Planning Commission Hearing on September 4, 2012
5. Planning Commission Staff Report, September 4, 2012
Page 4 of 82
Page 6 of 82
ORDINANCE NO. 2012 -1307
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
LAKE ELSINORE APPROVING A DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF LAKE ELSINORE AND
GENERAL OUTDOOR ADVERTISING
WHEREAS, Government Code Sections 65864 through 65869.5
authorizes municipalities to enter into development agreements with persons
having a legal or equitable interest in real property in order to strengthen the
public planning process, provide greater certainty in the development process
and reduce the economic costs of development; and
WHEREAS, pursuant to Government Code Section 65865 the City of
Lake Elsinore ( "City ") has adopted rules and regulations establishing procedures
and requirements for consideration of development agreements as set forth in
Chapter 19.12 of the Lake Elsinore Municipal Code( "LEMC "); and
WHEREAS, an application has been filed with the City by General
Outdoor Advertising for a Development Agreement pursuant to LEMC Section
19.12; and
WHEREAS, the proposed Development Agreement will allow the
applicant, General Outdoor Advertising, to process a sign permit application in
order to install an off -site digital sign ( "Sign ") on a 0.77 -acre site ( "Property")
generally bordered on the north by Interstate 15 and in the general vicinity of
East Franklin Street to the south and Rancho Street to the west (APN 377 -330-
011; and
WHEREAS, following a duly noticed public hearing on September 4, 2012,
the Planning Commission of the City of Lake Elsinore approved Resolution No.
2012- 31 making certain findings and recommending approval of the proposed
Development Agreement by the City Council.
THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA,
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City Council held a duly noticed public hearing on the
Development Agreement on September 25, 2012 and based on the information
presented, the City Council makes the following findings in accordance with
Section 19.12.080 of the LEMC:
1. The proposed Development Agreement is consistent with the objectives,
policies, general land uses and programs specified in the General Plan.
The Development Agreement is consistent with the project site's "General
Commercial" land use designation and with Goal 4 of the Ballpark District
Plan of the General Plan in that the proposed Development Agreement
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CITY COUNCIL ORDINANCE NO. 2012 -1307
PAGE 2 OF 4
will assist in achieving the City's goal to "Promote the stadium, "Dream
Extreme" sports activities and other recreational opportunities ".
2. The proposed Development Agreement is compatible with the uses
authorized in, and the regulations prescribed for, the land use district in
which the real property is located.
The property that is subject to the proposed Development Agreement is
zoned C -2 (General Commercial) and is property to the south and west.
Interstate 15 is located immediately north and east of the property. The
use of the subject property for an off -site sign is compatible with these
zoning classifications.
3. The proposed Development Agreement conforms to the public
convenience and general welfare and reflects good land use practices.
The proposed Development Agreement conforms to the public
convenience and general welfare because the Agreement guarantees at
no cost to the City, the opportunity for the City to place civic public service
messages, including those sponsored by non - profit organizations, on the
Sign.
4. The proposed Development Agreement will not be detrimental to the
health, safety and general welfare of the community.
The proposed Development Agreement will not be detrimental to the
health, safety and general welfare of the community because the
Agreement includes the provision that General Outdoor Advertising
commits itself and any successors and assigns to a requirement that any
advertising displayed on the Sign shall not contain any advertising for
adult entertainment - related uses, alcohol or tobacco products of any type,
gambling or gambling services, or any political messages or advertising.
5. The proposed Development Agreement is consistent with the provisions of
Government Code Sections 65864 through 65869.5.
The form and content of the proposed Development Agreement is
consistent with the requirements of the Govemment Code.
SECTION 2. The City has properly reviewed and assessed the
Development Agreement pursuant to the California Environmental Quality Act
(Cal. Pub[. Res. Code § §21000 et seq.), the State CEQA Guidelines (14. Cal.
Code Regs § §15000 et seq.) and the City's Procedures for Implementing the
State CEQA Guidelines (hereinafter collectively referred to as "CEQA "); and finds
and determines that the proposed Development Agreement is exempt from
CEQA, specifically pursuant to Section 15332 (Class 32 — In -Fill Development
Projects) because the City Council finds that the Sign on the Property is
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CITY COUNCIL ORDINANCE NO. 2012 -1307
PAGE 3OF4
consistent with the applicable General Plan designation and policies, as well as
zoning designation and regulations, the Sign and the Property is within the City's
boundaries and on a site less than five acres surrounded by urban uses — most
notably Interstate 15, the Property has no value as habitat, and approval of the
Sign will not result in any significant effects relating to traffic, noise, air quality, or
water quality and the Sign is adequately served by all required utilities and public
services.
SECTION 3. The City Council hereby approves the Development
Agreement by and between the City of Lake Elsinore and General Outdoor
Advertising, submitted to the City Council, on file with the City Clerk and
incorporated herein by reference. The Mayor and City Clerk are hereby
authorized and directed to execute and attest, respectively, the Development
Agreement on behalf of the City of Lake Elsinore.
SECTION 4. The City Clerk is directed to transmit the Development
Agreement to the County Recorder for recordation no later than ten (10) days
after the adoption of this ordinance.
SECTION 5. This Ordinance shall take effect thirty (30) days after the date
of its final passage or such later date as may be designated by the City Council.
The City Clerk shall certify as to adoption of this Ordinance and cause this
Ordinance to be published and posted in the manner required by law.
PASSED, APPROVED, AND INTRODUCED at a regular meeting of the
City Council of the City of Lake Elsinore, California, on the 25th day of
September, 2012, and adopted at a regular meeting of the City Council of the
City of Lake Elsinore, California, on the th day of , 2012.
Brian Tisdale, Mayor
City of Lake Elsinore City Council
ATTEST:
Virginia Bloom, City Clerk
APPROVED AS TO FORM:
Barbara Leibold, City Attorney
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CITY COUNCIL ORDINANCE NO. 2012 -1307
PAGE 4 OF 4
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF LAKE ELSINORE )
1, VIRGINIA BLOOM, City Clerk of the City of Lake Elsinore, California,
hereby certify that Ordinance No. 2012- was introduced at a regular meeting
of the City Council of the City of Lake Elsinore on the 25 day of September,
2012, and was finally passed at a regular meeting of the City Council of the City
of Lake Elsinore held on the day of , 2012, by the following roll
call vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Virginia Bloom, CMC
City Clerk
Page 10 of 82
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
City of Lake Elsinore )
130 South Main Street )
Lake Elsinore, California 92530 )
Attention: City Clerk )
(Space above for Recorder's use.)
(Exempt from Recording Fees Per Govt Code §27383.)
DEVELOPMENT AGREEMENT WITH
LONG -TERM OPERATING COVENANTS
by and between
CITY OF LAKE ELSINORE
and
SAN DIEGO OUTDOOR ADVERTISING, INC., a California corporation dba
GENERAL OUTDOOR ADVERTISING
Stadium Billboard Sign Development Agreement 091712 REDLINE
Page I I of 82
DEVELOPMENT AGREEMENT WITH LONG -TERM OPERATING COVENANTS
This Development Agreement With Long -Term Operating Covenants (the
" Agreement ") is made this 9th day of October, 2012, by and between the CITY OF LAKE
ELSINORE, a municipal corporation organized and existing under the laws of the State of
California (the "C "), and SAN DIEGO OUTDOOR ADVERTISING, INC., a California
corporation dba GENERAL OUTDOOR ADVERTISING (the " Vested Party The City and
the Vested Party are hereinafter sometimes referred to individually as a " Party " and collectively
as the " Parties ." In consideration of the mutual covenants and agreements contained in this
Agreement, the Parties hereto agree as follows:
RECITALS
A. Government Code Sections 65864, et seq. (the " Development Agreement
Statutes ") authorize the City to enter into an agreement with any person or business entity having
a legal or equitable interest in real property regarding the future development of such property.
B. Government Code Section 65864 states that the lack of certainty in the approval
process can result in a waste of resources and escalate the cost of development. Assurance to the
applicant through a development agreement that the applicant may proceed with development in
accordance with existing policies, rules and regulations, and subject to conditions of approval,
will strengthen the public planning process, encourage private participation in comprehensive
planning and reduce the economic costs of development.
C. Pursuant to Government Code Section 65865, the City has adopted the following
rules and regulations establishing procedures and requirements for consideration of development
agreements: Lake Elsinore Municipal Code (LEMC) Chapter 19.12 (the " Development
Agreement Procedures "). This Agreement has been processed, considered and executed in
accordance with the Development Agreement Statutes and the Development Agreement
Procedures.
D. The property which is the subject of this Agreement (the "Pro a ") consists of
approximately 0.77 acres of vacant land generally bordered on the north by Interstate 15 and in
the general vicinity of East Franklin Street to the south and Rancho Street to the west and lies
within the General Plan's Riverview District with a zoning designation of "General Commercial"
of "C -2" as defined in Section 17.125.110 of the LEMC. The Property is more particularly
described as 377 - 330 -011 and as set forth in the Legal Description attached hereto as Exhibit
"A" and incorporated herein by reference.
E. The Vested Party is a California corporation authorized to do business in the State
of California. The Vested Party holds a license coupled with a real property interest in a portion
of the Property pursuant to that certain Sign License Agreement dated as of August 10, 2012 by
and between Vested Party and the fee owner of the Property, DCH California Investments LLC,
( "Owner ") a California limited liability company ( "Sign License Agreement), a copy of which is
1
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on file and available for public inspection at the office of the City Clerk of the City of Lake
Elsinore, 130 S. Main Street, Lake Elsinore, California.
F. In 2007, the former Redevelopment Agency of the City of Lake Elsinore
( " Former Agencv entered into that certain Stadium Lease, License and Management
Agreement (the " Stadium Lease ") with Diamond Stadium Group LLC ( "DSG ") with respect to
the lease and operation of the Lake Elsinore Diamond. Pursuant to AB I x 26, the City elected to
serve as the "Successor Agency" to the Former Agency. In connection with the Stadium Lease,
the parties thereto were to engage in a collaborative effort to identify a site and construct and
operate a "roadside electronic billboard" near Diamond Drive and Interstate 15.
G. Vested Party has established a business relationship with DSG such that DSG will
utilize the proposed Sign described in Recital K herein for purposes generally consistent with
the roadside electronic billboard contemplated in the Stadium Lease and City seeks to
acknowledge the Former Agency's obligation under the Stadium Lease and collaborate in such
effort.
H. Through this Agreement, the Vested Party and the City intend to vest the right to
place an electronic billboard sign on the Property and in doing so, bring certainty and stability to
the government regulations applicable to the use of a billboard sign on the Property which, upon
the Effective Date, is permitted with a development agreement under the City's General Plan and
Zoning Code.
I. The vesting of the right to construct and operate the Sign through this Agreement
is exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15332 because
the Sign on the Property is consistent with the applicable General Plan designation, policies as
well as zoning designation and regulations, the Sign and the Property is within the City's
boundaries and on a site less than five acres surrounded by urban uses — most notably Interstate
15, the Property has no value as habitat, and approval of the Sign will not result in any
significant effects relating to traffic, noise, air quality, or water quality and the Sign is adequately
served by all required utilities and public services.
J. The City deems the approval and implementation of this Agreement to be in the
public's best interest and intends that the adoption of this Agreement be considered an exercise
of the City's police powers to regulate the Sign and the Property.
K. The Parties desire to enter into this Agreement relating to the Property in
conformance with the provisions of the Development Agreement Statutes, the Development
Agreement Procedures, the LEMC and existing City laws, rules, regulations, and official policies
to allow the construction, operation and use of an electronic billboard sign as contemplated under
the Sign License Agreement and as further described in the Sign Construction Drawings attached
as Exhibit `B" (the "Sign "), upon the terms and conditions set forth herein and in the promotion
of the public health, safety and general welfare of the City. The Vested Party shall be entitled to
proceed with the construction and operation of the Sign on the Property in accordance with this
Agreement and the City's laws, rules, regulations, and official policies in force on the Effective
Date of this Agreement.
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L. On September 4, 2012, the City Planning Commission held a duly noticed public
hearing on the Vested Party's application for the Development Agreement and recommended to
the City Council approval of this Agreement.
M. On September 25, 2012, the City Council held a duly noticed public hearing on
the Vested Party's application for the Development Agreement and on October 9, 2012, the City
Council adopted Ordinance No. 2012 -_ approving this Agreement (the " Ordinance "). The
Ordinance shall become effective on November 15, 2012 (the " Effective Date ").
N. The Vested Party has applied to the City in accordance with applicable procedures
for approval of this mutually binding Agreement. The Planning Commission and City Council
of the City have given public notice of intention to consider this Agreement, have conducted
public hearings thereon pursuant to the Development Agreement Statutes, have found that the
provisions of this Agreement are consistent with, and fulfill the objectives of, the General Plan
and the Zoning Ordinance; and have made all of the other required findings, including, but not
limited, the findings set forth in Section 19.12.080 of the LEMC.
O. This Agreement is consistent with the public health, safety, and welfare needs of
the residents of the City.
P. This Agreement will bind the City to the terms and obligations specified in this
Agreement and will limit, to the degree specified in this Agreement and under State law, the
future exercise of the City's ability to change the Applicable Rules (as hereinafter defined),
hinder, delay, postpone, preclude or regulate the Sign on the Property, except as provided for
herein.
THEREFORE, the Parties agree as follows:
AGREEMENT
1. Definitions In this Agreement, unless the context otherwise requires:
1.1. " Agreement " means this Development Agreement entered into between
the City and the Vested Party as of the Effective Date.
1.2. " Applicable Rules means the development standards and restrictions set
forth in Section 3 of this Agreement which shall govern the construction and operation of the
Sign on the Property.
1.3. " City General Plan or " General Plan shall mean the General Plan of the
City of Lake Elsinore.
1.4. " Community Development Director shall mean the Director of
Community Development of the City of Lake Elsinore, or designee.
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1.5. " Effective Date is the effective date of this Agreement which is
November 15, 2012, the date the Ordinance approving this Agreement becomes effective.
1.6. " Future Approvals means any action to authorize construction of the Sign
on the Property pursuant to the Applicable Rules, including without limitation, issuance of a sign
permit pursuant to LEMC Section 17.196.030, building permits pursuant to LEMC Chapter
15.04 and electrical permits pursuant to LEMC Chapter 15.38.
1.7. "Laws" or "Law," or any reference to "laws" or `law" in this Agreement
includes all applicable federal and California statutes regulations, including without
limitation the California Outdoor Advertising Act (Business and Professions Code Sections 5200
et seq.) and CALTRANS regulations specifications adopted pursuant thereto (Title 4 California
Code of Regulations Section s 2240 et sea.) and case law, and any City laws, ordinances,
resolutions, rules, regulations, policies, motions, directives, mitigation measures, conditions,
standards, specifications, dedications, fees, taxes (including without limitation general, special
and excise taxes), assessments, liens, other exactions and impositions, or any other action,
whether enacted or adopted by the City or its electorate through the initiative or referendum
process.
1.8 " LEMC " mean the Lake Elsinore Municipal Code.
Recital D.
1.9. " Property " is the real property covered by this Agreement identified in
1.10 " Sign " is defined in Recital K of this Agreement.
1.11 " Zoning Code means Title 17 of the LEMC as of the Effective Date.
2. General Provisions
2.1. Agreement Personal to Vested Party The qualifications and identity of
the Vested Party are of particular concern to the City. Therefore, this Agreement and all of its
terms and conditions are personal to Vested Party and the benefits and burdens of this
Agreement shall only inure to those affiliated entities, assigns, heirs, successors, devises,
administrators, representatives, lessees and other persons as may be permitted by Vested Party
consistent with the provisions of Section 10 et seq. of this Agreement.
2.2. Negation of Agency The Parties acknowledge that, in entering into and
performing under this Agreement, each is acting as an independent entity and not as an agent of
the other in any respect. Nothing contained herein or in any document executed in connection
herewith shall be construed as making the City and the Vested Party joint venturers, partners,
agents of the other, or employer /employee.
2.3. Amendments The term "this Agreement" or "Development Agreement"
herein shall include all amendments properly approved and executed pursuant to Section 6.4 and
all changes, adjustments or clarifications by Operating Memoranda as set forth in Section 7.
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2.4. Enforcement of Agreement This Agreement shall be enforceable by each
and any Party or any successor(s) or assign(s) (as provided in Sections 2.1 and 10), in accordance
with the Applicable Rules notwithstanding any subsequent change in or addition to the
applicable general plan, zoning, subdivision, land use, building or occupancy resolutions,
ordinances, orders, actions, initiatives, referenda, policies, plans or regulations, or any other
conditions applicable to the Sign on the Property except as provided in Section 3 of this
Agreement..
3. Development of Sign on Property; Applicable Rules; Operating Covenants The
following development standards and restrictions set forth in this Section govern the construction
and use of the Sign on the Property, and shall constitute the Applicable Rules
3.1. Rules, Regulations, Official Policies Except as otherwise set forth in this
Agreement, as to Future Approvals and construction of the Sign on the Property, the City
(including all employees, officials, agencies, commissions, boards, bureaus and departments
thereof) rules, regulations, ordinances, resolutions, orders, actions, laws, general plans,
conditions of approval and official policies governing and all other conditions and exactions
applicable to the construction of the Sign on the Property are expressly acknowledged and agreed
by the Parties to be those in force and effect upon the Effective Date (the " Applicable Rules
Rules:
3.2. Applicable Rules The following Laws shall be part of the Applicable
a. The City's General Plan and Map as it exists on the Effective Date;
b. The environmental impact report ( "EIR ") and subsequent
environmental documents adopted in connection with the General Plan;
Date;
C. The City's Zoning Code and Map, as it exists on the Effective
d. Such other laws, ordinances, rules, regulations, and official
policies governing signs on the Property allowed under the Applicable Rules; and
e. Any subsequently enacted law, regulation or policy expressly
agreed to by the Vested Party in writing to the City.
The following Laws shall not be part of the Applicable Rules:
a. Regulations governing construction standards and specifications,
including without limitation, the City's Building Code, Plumbing Code, Mechanical Code,
Electrical Code and Fire Code;
b. Regulations governing development impact fees;
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b. Revisions and amendments to the Applicable Rules if the City
determines that the failure of the City to make such revisions or amendments would place the
residents of the City in a condition dangerous to their health and safety, or both;
C. Revisions and amendments to the Applicable Rules mandated by
changes in laws, regulations, plans or policies to the extent that such changes are mandated and
required by changes in state or federal laws or regulations;
d. Changes in citywide land use regulations, ordinances, policies,
programs adopted after the Effective Date that are not in conflict with the Applicable Rules as
provided herein; and
C. Procedural regulations related to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and any
other matter of procedures not otherwise set forth herein.
3.3. Future Entitlement Approvals by Owner Notwithstanding this
Agreement, the Property may also be used and developed as additionally authorized by any
future entitlements requested by the Owner, including but not limited to vesting tentative and
final subdivision maps, general plan amendments, zone changes, variances, conditional use
permits, lot line adjustments, grading plans, building permits and certificates of occupancy which
are not governed by this Agreement and, accordingly, shall be subject to any Laws in effect at
that time. Additionally, such future request for entitlements shall be evaluated in accordance
with applicable CEQA requirements.
3.4. Consistency with Applicable Rules City finds, based upon all
information available to City prior to or concurrently with the execution of this Agreement, that
there are no Applicable Rules that would prohibit, prevent or impede the construction and
operation of the Sign on the Property.
3.5. General Development The Vested Party shall have the right to construct
and operate the Sign on the Property in accordance with applicable laws and the terms and
conditions of this Agreement and consistent with the Sign Construction Drawing as set forth in
Exhibit `B ", provided, however, that in the event the Owner requests the Sign be relocated from
its original location on the Property as depicted in Exhibit `B" pursuant to the provisions of
Section I.e. of the Sign License Agreement, Vested Party may relocate the Sign to the far
northern point of the Property subject to all Applicable Rules and submission by Vested Party of
an application for a new Sign Permit consistent with Section 3.6 and all requirements and
conditions set forth therein. Notwithstanding the foregoing, subject to the provisions of Section
5.5, the Vested Party shall have no liability under this Agreement if construction of the Sign on
the Project fails to occur : n ::hole-er -in -Pan
3.6. Submission of Application for Sign Permit During the term of this
Agreement, Vested Party may submit a sign permit application to the Community Development
Department for construction of the Sign as provided in the Chapter 17.196 of the LEMC. Vested
Party's ability to construct and install the Sign is expressly conditioned upon the approval of the
ri
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Sign Permit by the Director of Community Development. An application of the sign permit shall
comply with all procedures set forth in Chapter 17.196 of the LEMC: and shall include submittal
of a plans and materials board depicting all proposed materials and colors for the Sign. Upon
receipt of the application for the Sign Permit submitted pursuant to this Agreement and in
compliance with Chapter 17.196 of the LEMC, the Director of Community Development shall
review the application to determine whether the design and setbacks of the proposed Sign is
substantially similar to the design and setbacks reflected in Exhibit `B." City shall issue the
requested Sign Permit when the Director of Community Development determined the proposed
Sign substantially conforms to the design and setbacks reflected in Exhibit `B" and Vested Party
has otherwise satisfied the requirements of Chapter 17.196 of the LEMC. Vested Party
acknowledges that, in addition to the Sign Permit, Vested Party may be required to obtain other
permits such as building and/or electrical permits from the City prior to construction and
installation of the Sign (LEMC Section 17.196.030). Vested Party further acknowledges that
prior to commencement of any construction of the Sign, Vested Party must provide verification
to the City that CALTRANS has reviewed and approved the Sign.
3.7. Long -Term Operating Covenants The following covenants shall run with
the Property until such time as the Sign is removed from the Property:
a a. Covenants Regarding Operation and Maintenance. Vested Party
shall operate and maintain the Sign in good working order and in accordance with all applicable
laws, including without limitation, the California Outdoor Advertising Act (Business and
Professions Code Sections 5200 et seq.) and CALTRANS regulations specifications adopted
pursuant thereto (Title 4 California Code of Regulations Section s 2240 et seg.).
i. Automatic Dimmers. The Sign shall contain automatic
dimmers that continuously monitor the brightness of the display using ambient and direct li rt
photocells and that maintain a maximum luminance of 7,500 lumens per square meter during the
daylight hours and a maximum luminance of 500 lumens per square meter from dusk (official
sunset) to sunrise. The Sign will also be equipped with a backup system with an almanac of
sunrise and sunset times throughout the year in the unlikely event of a photocell failure.
ii. Maintenance. Vested Party shall, at its sole cost and
expense, maintain and repair or cause to be maintained and repaired the Sign, in compliance with
all applicable provisions of the City's Municipal Code and any and all other applicable laws.
The Property and the Sign shall be kept free from the accumulation of debris and waste
materials. All exterior painted surfaces shall be maintained at all times in a clean and
presentable manner, free from chipping, cracking, peeling and defacing marks. All brokenjigbIs
shall be immediately repaired in order to prevent hazardous conditions and/or invitation for
trespassers and malicious mischief. Except during periods of construction, no lumber, trash,
discarded equipment or other debris shall be stored in areas visible from the street.
iii. Grafti Removal. All graffiti, and defacement of any
type including marks words and pictures must be removed and any necessary painting or repair
completed in accordance with Chapter 9.52 of the City's Municipal Code.
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iv. Non - Operation and Removal Vested Party shall
promptly repair the Sign in the event of damage defect or other cause so as to maintain
operations in accordance with this Agreement In the event Vested Party anticipates that a repair
will require more than 30 days to complete Vested Party shall notify City in writing of f the
anticipated schedule and the cause of the delayed repair. In the event the Sign is non operational
for a continuous period of 120 days or more City shall have the right to require removal of the
Sign within 30 days of delivery of written demand by City to Vested Party . Removal of the Sign
shall be completed by Vested Party in compliance with applicable laws and at its sole cost and
expense.
b. Covenant Regarding Advertising Limitation Vested Party
voluntarily covenants and agrees for itself, its successors and assigns, that any advertising
displayed on the Sign shall not contain any advertising for adult entertainment or nudity
including, but not limited to, topless bars, nightclubs, establishments that feature nude dancing,
mud wrestling, any adult business featuring retail sales of adult novelty items, books, magazines,
videos and tapes, or any material that could reasonably be considered pornographic. Further,
Vested Party voluntarily covenants and agrees for itself, its successors and assigns that any
advertising displayed on the Sign shall not contain any advertising for alcohol or tobacco
products of any type, gambling or g mw"n r any political messages or advertising.
Notwithstanding the foregoing, gambling establishments may advertise iion g
entertainiiient and hospitality services-.
City further reserves the right to object to any other advertising that may
be considered detrimental to the image of the City. In such cases, City shall inform Vested Party
in writing of the offensive advertising and request that it be removed. Vested party shall
endeavor to cooperate with the City in assuring the removal of such other advertising when such
removal does not breach any existing contract or lease agreement held by Vested Party. Vested
Party's obligation herein shall survive termination of this Agreement and shall remain in full
force and effect until removal of the Sign.
bc. Covenant Regarding Stadium and Storm Promotion The Parties
agree and acknowledge that promotion of the Lake Elsinore Diamond Stadium and the Lake
Elsinore Storm are an important feature of the Sign and an essential consideration by the City in
entering into this Agreement. Vested Party voluntarily covenants and agrees for itself, its
successors and assigns, that Vested Party shall dedicate not less than sixteen (16) seconds every
minute of every day on a continuous basis to messages promoting the Lake Elsinore Diamond
Stadium, the Lake Elsinore Storm, and games, events and activities sponsored by the Lake
Elsinore Storm and or occurring in and around the Stadium.
ed. Covenant Regarding Public Service Messages and City Promotion
Vested Party voluntarily covenants and agrees for itself, its successors and assigns, that Vested
Party shall provide to City, at no cost to the City, the opportunity to place public service
announcements on the Sign, provided, however, that such public service announcements shall be
limited to civic public service messages, including those sponsored by non - profit organizations,
City promotional messages and announcement of City sponsored and co- sponsored events such
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as celebrations, festivals, special events, park and public facility openings along with public
safety announcements such as flash flood warnings, and heat advisories (hereinafter collectively
as "Public Service Messages "). The term Public Service Message shall expressly exclude the
Stadium promotional messages described in Section 3.7 b. above any message advertising any
business, company or event where such message would have a direct and tangible economic
benefit to a private, for - profit company, or any message advertising any policitical campaign or
political message. City shall be entitled to post up to one eight (8) second Public Service
Message on each face of the Sign (16 seconds total) every ten minutes of every day on a
continuous basis. For all Public Service Messages, City shall be responsible for providing Vested
Party with the advertising copy. Vested Party shall not be responsible for producing or
substantially modifying any advertising copy for a Public Service Message, and shall have 48
hours after receipt and approval of advertising copy to display the Public Service Message.
Vested Party's obligation herein shall survive termination of this Agreement and shall remain in
full force and effect until removal of the Sign.
Notwithstanding the foregoing, should City not utilize its allotment of advertising space,
Vested Party shall be entitled to lease that time for other advertising purposes as set forth herein.
In the event a Public Service Message relates to a past event and City fails to submit new
advertising copy for a new Public Service Message within three Business Days of written notice
from Vested Party in accordance with this paragraph, Vested Party may lease such advertising
time for any purpose consistent with paragraph a. of this Section 3.7 for a period of up to one
calendar month. _Written notice pursuant to this paragraph shall be addressed to the City
Manager and the Community Development Director and shall state clearly in bold capital letters
on the envelope, facsimile face sheet or subject line, as applicable, and at the top of the notice
"NOTICE REGARDING LEASE OF CITY'S PUBLIC SERVICE MESSAGE —
URGENT ". Such notice shall include a complete recital of this paragraph and may be delivered
by Vested Party to City by hand delivery, facsimile or email. Vested Party may continue to lease
such advertising space for subsequent monthly periods only following subsequent notice in
accordance with this paragraph. In addition to the foregoing, Vested Party may lease any of the
City's allotment of Public Service Message space voluntarily forfeited by the City as expressly
set forth in a written notice to the Vested Party signed by the City Manager and the Community
Development Director.
de. Amber Alerts. In addition to the foregoing, Vested Party shall
comply with and post all "Amber Alerts" in accordance with applicable guidelines and any
public safety or emergency service messaging required by applicable state o federal lag laws.
4. Acknowledgments, Agreements and Assurances on the Part of the City In order
to effectuate the provisions of this Agreement, the City hereby agrees and assures the Vested
Party that the Vested Party will be permitted to carry out and complete construction of the Sign
on the Property in accordance with the Applicable Rules. Therefore, the City hereby agrees and
acknowledges that:
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4.1. Entitlement to Develop The Vested Party is hereby granted the vested
right to construct and operate the Sign on the Property to the extent and in the manner provided
in this Agreement, subject to the Applicable Rules and the Future Approvals.
4.2. Subsequent Enactments If state or federal laws or regulations are enacted
after the Effective Date hereof, which prevent or preclude compliance with one or more of the
provisions of this Agreement, such provisions of this Agreement will be modified or suspended
as may be necessary to comply with such state or federal laws or regulations and to the extent
such laws or regulations do not render such remaining provisions impractical to enforce.
Notwithstanding the foregoing, Vested Party shall have the right to legally contest any
subsequently- enacted state or federal law or regulation at its own expense, and the City agrees to
reasonably cooperate with any such contest; provided however, such cooperation shall be at no
cost to the City.
4.3. Future Approvals The Vested Party shall submit applications for Future
Approvals consistent with this Agreement and the Applicable Rules.
4.4. Modification of Approvals Throughout the term of this Agreement, the
Vested Party shall have the right, at its election and without risk to any right that is vested
pursuant to this Agreement, to apply to the Community Development Director for minor
modifications to the Sign. The processing, review and approval by the City of any such
modifications shall proceed in accordance with Section 5.3 hereof. The approval or conditional
approval of any such minor modification shall not require an amendment to this Agreement,
provided that, in addition to any other findings that may be required in order to approve or
conditionally approve the modification, a finding is made that the modification is consistent with
this Agreement.
4.5. Timing of Construction of Sian Because the California Supreme Court
held in Pardee Construction Co. v. City of Camarillo, 37 Ca1.3d 465 (1984), that failure of the
parties to provide for the timing of development resulted in a later adopted initiative restricting
the timing of development to prevail over the parties' agreement, it is the intent of the Vested
Party and the City to cure that deficiency by acknowledging and providing that the Vested Party
shall have the right (without the obligation) to construct the Sign at such rate and at such time as
the Vested Party deems appropriate within the exercise of its subjective business judgment.
4.6. No Moratorium No future amendment of any existing City ordinance or
resolution, or future adoption of any ordinance, resolution or other action, that purports to limit
the rate or timing of development over time or alter the sequencing of development phases,
entitlements (including without limitation water and sewer service), or construction of all or any
part of the Property, whether imposed by ordinance, initiative, resolution, policy, order or
otherwise, and whether adopted or imposed by the City Council or through the initiative or
referendum process, shall apply to the construction and operation of the Sign on the Property.
4.7. Fees and Exactions This Agreement shall not be construed to limit the
authority of City to:
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a. Charge and impose fees and exactions, including, without
limitation, dedications, contributions, in lieu fees, reservations and any other fees or taxes
(including excise, construction or any other taxes) relating to development or the privilege of
developing the Property, including the Sign (the " Exactions ") that are legal and authorized by the
Applicable Rules.
b. Charge application and processing fees in effect on a citywide
basis on the Effective Date as may be amended for land use approvals, building permits, and
other similar permits and entitlements, which fees are designed to reimburse the City's actual
expenses attributable to processing such applications, provided, however, said application and
processing fees shall not exceed the fees that are charged by the City generally to applicants, on a
non - discriminatory basis for similar approvals, permits, or entitlements granted by City; or
C. Impose or levy general or special taxes, including but not limited
to, property taxes, sales taxes, transient occupancy taxes, business taxes, which may be applied
to the Property or to businesses occupying the Property; provided, however, that the tax is of
general applicability Citywide and does not burden the Property disproportionately when
compared to the development of other institutional, residential, commercial, office or retail uses
within the City. Nothing in this Agreement prohibits the adoption and application of a special
tax approved by the City's voters, provided that such tax is imposed on a City wide basis.
5. Cooperation and Implementation The City agrees that it will cooperate in good
faith and fair dealing with the Vested Party to the fullest extent to implement this Agreement,
including the following:
5.1. Further Assurances: Covenant to Sign Documents Each Party shall take
all actions and do all things, and execute, with acknowledgment or affidavit, if required, any and
all documents and writings that may be necessary or proper to achieve the purposes and
objectives of this Agreement.
5.2. Reimbursement and Apportionment Although the Parties do not
contemplate a condition of a Future Approval requiring excess capacity or size of required
dedications or public facilities beyond that required by the Applicable Rules, nothing in this
Agreement precludes the City or the Vested Party from entering into any reimbursement
agreements for the portion (if any) of the cost of any dedications, public facilities and/or
infrastructure that the City may request of Vested Party.
5.3. Processing The City hereby agrees that it will accept from the Vested
Party for processing and review all applications for Future Approvals for construction of the Sign
on the Property in accordance with this Agreement, provided that said applications are submitted
in accordance with the Applicable Rules. To the fullest extent allowed by law, the City shall
process all applications filed in connection with the Sign as expeditiously as is commercially
reasonable and complete at the earliest commercially reasonable time all steps necessary for the
implementation of this Agreement and the construction of the Sign on the Property in accordance
with this Agreement and applicable lawlaws, including without limitation the Permit
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Streamlining Act (Government Code Sections 65950 et seq.), including, but not limited to, the
following:
a. The processing of applications for and the issuance of all the
Future Approvals;
b. The holding of any required public hearings;
C. With respect to all applications for the issuance of all Future
Approvals, in particular ministerial approvals such as sign permits, grading plans, grading
permits, improvement permits, wall permits, building and electrical permits, encroachment
permits, temporary use permits, the City shall respond to the application in writing within thirty
(30) days after the application is submitted to the City; and
d. During the preparation of any drawings, plans, maps and related
documents, staff of the City and the Vested Party shall hold regular progress meetings as needed
to coordinate the preparation and review of such items, and the staff of the City and the Vested
Parry shall communicate and consult informally as frequently as is necessary to ensure that the
formal submittal of any documents to the City can receive prompt and speedy attention.
5.4. No Revocation; Disapprovals No plan, permit, Future Approval adopted
in connection with this Agreement shall be revoked or subsequently disapproved once issued by
the City provided that the Sign is consistent with such approval. Any disapproval by the City
shall state in writing the reasons for such disapproval and the suggested actions to be taken in
order for approval to be granted. Any disapproval shall be without prejudice to the Vesting Party
re- submitting the application, with modifications as appropriate, directly to the City Council
without review by any subordinate person or body, including the Planning Commission. The
City Council shall promptly notice and conduct a hearing on the re- submitted application at their
next regularly scheduled or special meeting.
5.5. Defense of Agreement and Processinp, During Third Party Litigation In
the event that a third party lawsuit relating to this Agreement is filed against the City or the
Vested Party, the Vested Party shall defend, indemnify and hold harmless the City at the Vested
Party's sole cost and expense. Vested Party may elect to terminate this Agreement as provided
by Section 6.3 provided, however, that the obligation set forth in this Section 5.5 shall survive
such termination. Subject to the Vested Party's compliance with the preceding obligation, such
lawsuit related to this Agreement shall not hinder, delay or stop the development, processing or
construction of the Sign, approval of Future Approvals unless the third party obtains a court
order preventing the activity and posts adequate security as required by law. The City shall not
stipulate to the issuance of any such order, and Vested Party, subject to its obligation herein, may
oppose such motion on behalf of the City. If this Agreement or any Applicable Rule as applied
to this Agreement is adjudicated or determined to be invalid or unenforceable, the City agrees,
subject to the City's lawful discretion and all other legal requirements, to consider all
modifications to this Agreement or the Applicable Rule which are necessary or required to
render it valid and enforceable to the extent permitted by applicable law on the condition that
Vested Party shall reimburse City for all costs and expense related thereto.
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5.6. State, Federal or Case Law Where any state, federal or case law allows
the City to exercise any discretion or to take any action with respect to that law, the City shall, in
an expeditious and timely manner, at the earliest possible time, (i) exercise its discretion in such
a way as to be consistent with, and carry out the terms of, this Agreement and (ii) take such other
actions as may be necessary to carry out in good faith the terms of this Agreement.
5.7. Processing Cooperation To the extent permitted by law, the City shall
cooperate with and assist the Vested Party in securing any and all entitlements, authorizations,
permits or approvals which may be required by any other governmental or quasi - governmental
entity in connection with the Sign. The City shall cooperate with the Vested Party in any
dealings with federal, state and other local governmental and quasi - governmental entities
concerning issues affecting the Sign. Without limiting the generality of the foregoing, the City
shall use its best commercially reasonable efforts to ensure that the actions taken and
requirements imposed by such governmental entities do not adversely impact the development of
Sign on the Property. The City shall keep the Vested Party informed with respect to its
communications with such agencies which could impact the Sign.
6. Compliance; Termination; Modifications and Amendments
6.1. Review of Compliance The City Council shall review pursuant to
Government Code Section 65865.1 this Development Agreement once each year, on or before
each anniversary of the Effective Date ( " Periodic Review ") in order to review the extent of the
good faith substantial compliance by the Vested Party with the terms and provision of this
Agreement as well as the performance by the City of its obligations under this Agreement. At
the commencement of each Periodic Review, the City shall notify the Vested Party in writing
that said Periodic Review is or has been commenced. The Periodic Review shall cover only
those parcels of the Property owned by the Vested Parry. The permitted transferor, if any, shall
be responsible for Periodic Review with respect to the transferred parcels in accordance with
Section 10 below.
a. Prima Facie Compliance During each Periodic Review, the City
Council may determine, in writing, that the Vested Party and the City are in prima facie
compliance with this Agreement. For purposes of this Agreement, the phrase " prima facie
compliance shall mean that the City and the Vested Parry have acted in a commercially
reasonable manner (taking into account the circumstances which then exist) and in good faith in
attempting to adhere to the substance of this Agreement. Precise or technical adherence to each
term or provision of this Agreement shall not be required in order for a Party to be in prima facie
compliance; and the failure of any Party to agree with the City in connection with the
determination or implementation of any Future Approval shall not demonstrate a lack of prima
facie compliance.
b. Information to be Provided the Vested Party If the City Council
does not determine the Vested Party to be in prima facie compliance with this Agreement, the
City shall deliver to the Vested Party a copy of all documentation prepared in. connection with
the Periodic Review which demonstrates that the Vested Party is not in prima facie compliance
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with this Agreement in no event later than twenty (20) business days after the commencement of
the Periodic Review. The Vested Party shall be given a full and adequate opportunity to be
heard before the City Council orally and in writing regarding its performance and, at its option,
the City's performance under this Agreement prior to the completion of the City Council's
Periodic Review. Within thirty (30) days of the submission by the Vested Party of its response,
or the hearing date, whichever is later, the City Council shall issue its Periodic Review statement
and may conclude that substantial compliance with this Agreement has been met.
C. Notice Of Non-Compliance; Cure Rights If at the completion of
any Periodic Review, the City Council reasonably concludes on the basis of substantial evidence
that (i) the Vested Party has not demonstrated that it is in prima facie compliance with this
Agreement, AND (ii) that the Vested Party is out of compliance with a specific substantive term
or provision of this Agreement, then the City Council may issue and deliver to the Vested Party a
written notice ( " Notice of Non - Compliance ") detailing the specific reasons for non - compliance
(including references to sections and provisions of this Agreement and the Applicable Rules
which allegedly have been breached) with a complete statement of all facts demonstrating such
non - compliance. That Party shall then have sixty (60) calendar days following receipt of the
Notice of Non - Compliance to cure said failure(s) or to provide evidence of Force Majeure as
defined in Section 16 hereof, provided, however, if any one or more of the item(s) of non-
compliance set forth in the Notice of Non - Compliance cannot reasonably be cured within said
sixty (60) -day period, then that Party shall not be in breach of this Agreement if it commences to
cure said item(s) within said sixty (60) -day period and diligently prosecutes said cure to
completion; provided, however such cure shall be completed within not more than one hundred
twenty (120) days, or such time as the parties mutually agree is appropriate for the type of cure at
issue.
d. Failure of Periodic Review The City's failure to review at least
annually compliance by the Vested Party with the terms and conditions of this Agreement shall
not constitute or be asserted by any Party as a breach by any other Party of this Agreement, or of
Vested Party's lack of compliance with this Agreement.
6.2. Termination of Development Agreement As To Breaching Part v If the
Vested Party fails to timely cure any item(s) of non - compliance set forth in a Notice of Non -
Compliance, then the City shall have the right but not the obligation to initiate proceedings for
the purpose of terminating this Agreement in accordance with Government Code Section 65865.
If the City commences such termination proceedings, it shall give not less than thirty (30) days
prior written notice thereof to the Vested Party, which notice shall specify the Property and the
precise grounds for termination and shall set a date, time and place for a public hearing before
the City Council on the issue, all in compliance with the Development Agreement Statutes. At
the noticed public hearing, the Vested Party and/or its designated representative, shall be given
an opportunity to make a full and public presentation to the City. If, following the taking of
evidence and the hearing of testimony at said public hearing, the City finds, based upon
substantial evidence, that the Vested Party has not demonstrated prima facie compliance with
this Agreement and that the Vested Party is out of compliance with a specific, substantive term
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or provision of this Agreement, then the City may (unless the Parties otherwise agree in
writing) terminate this Agreement.
6.3. Termination of Development Agreement Notwithstanding the provisions
of Section 6.2, the Parties may mutually agree in writing to terminate the Agreement. For
example, it is the express intent of the parties to automatically terminate this Agreement if,
during the term of this Agreement, Vested Party submits written notice to City that it, or an
affiliated entity, no longer has a valid real property interest in the Property. In this event, it is the
parties' intention that this Agreement shall be deemed terminated as of the date Vested Party
delivers to City the written notice described herein. For purpose of this Agreement, the phrase
"affiliated entity" shall mean an entity which controls, is controlled by, or under common control
with Vested Party or is a partnership or joint venture involving Vested Party or one or more of
Vested Party's principals and in which Vested Party or its principals exercise operational
controls. In addition, it is the express intent of the parties to automatically terminate this
Agreement if Vested Party submits written notice to City that it is terminating this Agreement
due to the filing of any third party litigation relating to this Agreement.
6.4. Modification or Amendment of Development Agreement Subject to the
notice and hearing requirements of the Development Agreement Statutes, this Agreement may be
modified or amended from time to time only with the written consent of the Vested Party and the
City or their successors and assigns in accordance with the provisions of the LEMC and Sections
65867 and 65868 of the Government Code.
7. Operating Memoranda The provisions of this Agreement require a close degree
of cooperation between the City and the Vested Party. The construction process for the Sign and
subsequent operations may demonstrate that clarifications to this Agreement and the Applicable
Rules are appropriate with respect to the details of performance of the City and the Vested Party.
To the extent allowable by law, the Vested Parry shall retain a certain degree of flexibility as
provided herein with respect to all matters, items and provisions covered in general under this
Agreement, except for those which relate to the (i) term or (ii) permitted uses. When and if the
Vested Party finds it necessary or appropriate to make changes, adjustments or clarifications to
matters, items or provisions not enumerated in (i) through (ii) above, the Parties shall effectuate
such changes, adjustments or clarifications through operating memoranda (the " Operating
Memoranda' approved by the Parties in writing which reference this Section 7. Operating
Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial
clarifications; therefore public notices and hearings shall not be required. The City Manager
shall be authorized, upon consultation with, and approval of, the Vested Parry, to determine
whether a requested clarification may be effectuated pursuant to this Section or whether the
requested clarification is of such character to constitute an amendment to this Agreement which
requires compliance with the provisions of Section 6.4 above.
8. Term of Agreement This Agreement shall become operative and commence
upon the Effective Date. It shall remain in effect until five (5) years from and after the Effective
Date, unless this Agreement is terminated, modified, or extended upon mutual written consent of
the Parties hereto or as otherwise provided in this Agreement. Following the expiration or
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termination of the term hereof, this Agreement shall be deemed terminated and of no further
force and effect; provided, such expiration or termination shall not automatically affect any right
or duty of the City or the Vested Party arising from City approvals or actions relating to the sign
approved or issued prior to the expiration or termination of the term. The Parties acknowledge
and agree that the long -tern operating covenants set forth in Section 3.7 shall survive
termination of this Agreement and shall remain in full force and effect until permanent removal
of the Sign.
9. Notice of Compliance
9.1. Request For Notice Within thirty (30) days following any written request
that the Vested Party may make from time to time, the City shall execute and deliver to the
Vested Party a written notice ( " Notice of Compliance "), in recordable form, duly executed and
acknowledged by the City, that certifies:
a. That this Agreement is unmodified and in full force and effect and
is a binding obligation of the Parties, or if there have been modifications thereto, that this
Agreement is in full force and effect as modified and stating the date and nature of such
modifications;
b. That there are no current uncured defaults under this Agreement
or, if such are asserted, specifying the dates and nature of any such default;
C. That this Agreement has been terminated with respect to a parcel,
and such parcel has been released from this Agreement; and
d. Such other reasonable information requested by the Vested Parry.
9.2. Failure To Deliver The failure of the City to deliver such a Notice of
Compliance within such time shall constitute a conclusive presumption against the City that this
Agreement is in full force and effect without modification except as may be represented by the
Vested Party and that there are no uncured defaults in the performance of the Vested Party,
except as may be represented by the Vested Party. The Vested Party shall have the right, at the
Vested Party's sole discretion, to record the Notice of Compliance. The City Manager shall be
authorized to execute, on behalf of the City, any Notice of Compliance requested by the Vested
Party.
10. Transfers and Assignments The rights and obligations of Vested Party
hereunder shall not be assigned or transferred, except that on thirty (30) days written notice to
City, Vested Party, may assign all or a portion of Vested Party's rights and obligations
thereunder to any person or persons, partnership or corporation who purchases all or a portion of
Vested Party's right, title and interest in the Sign, provided such assignee or grantee assumes in
writing each and every obligation of Vested Party hereunder yet to be performed. The notice to
City shall include the identity of any such assignee, evidence of the assignee's right, title and
interest in the Sign and a copy of the written assumption of the assignor's obligations hereunder
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pertaining to the portion assigned or transferred. After such notice and the receipt of such
consent, the assignor shall have no further obligations or liabilities hereunder.
11. Mortgagee Protection The Parties hereto agree that this Agreement shall not
prevent or limit the Vested Party, in any manner, at the Vested Parry's sole discretion, from
encumbering the Sign or Property or any portion thereof or any improvements thereon by any
mortgage, deed of trust or other security device. The City acknowledges that the
lender(s) providing such financing may require certain Agreement interpretations and
modifications and agrees, upon request, from time to time, to meet with the Vested Party and
representatives of such lender(s) to negotiate in good faith any such request for interpretation or
modification. The City will not unreasonably withhold its consent to any such requested
interpretation or modification provided such interpretation or modification is consistent with the
intent and purposes of this Agreement.
12. Not a Public Dedication Except as otherwise expressly provided herein, nothing
herein contained shall be deemed to be a gift or dedication of either the Sign or the Property, or
any portion thereof, to the general public, for the general public, or for any public use or purpose
whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly
limited to and for the purposes herein expressed. The Vested Party shall have the right to
prevent or prohibit the use of the Sign, or any portion thereof, by any person for any purpose
inimical to the permitted uses. City shall not take or permit to be taken (if within the power or
authority of the City) any action or activity with respect to the Sign that would deprive the
Vested Party of the material benefits of this Agreement or would materially and unreasonably
interfere with the construction and use of the Sign on the Property as contemplated by this
Agreement.
13. Notices Except as provided otherwise in Section 3.7.c, all notices under this
Agreement shall be in writing and shall be deemed delivered when personally received by the
addressee, or within three (3) calendar days after deposit in the United States mail by registered
or certified mail, postage prepaid, return receipt requested, to the following parties and their
counsel at the addresses indicated below, provided, however, if any Party to this Agreement
delivers a notice or causes a notice to be delivered to any other Party to this Agreement, a
duplicate of that notice shall be concurrently delivered to each other Party and their respective
counsel.
To City: City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attention: City Manager
With a Copy to: Barbara Zeid Leibold
Leibold McClendon & Mann, P.C.
23422 Mill Creek Drive, Suite 105
Laguna Hills, CA 92653
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To the Vested Party: General Outdoor Advertising
632 S. Hope Avenue
Ontario, CA 91761
With a Copy to William J. Ward
Ward & Ward
685 E. Carnegie Drive, Suite 140
San Bernardino, CA 92408
Notice given in any other manner shall be effective when received by the addressee. The
addresses for notices maybe changed by notice given in accordance with this provision.
14. Severability and Termination If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this
Agreement is superseded or rendered unenforceable according to any law which becomes
effective after the Effective Date, the Vested Party may elect either (i) to have the remaining
provisions of this Agreement remain in full force and effect and continue to be binding on both
Parties, (ii) to propose an amendment of this Agreement, subject to the mutual consent of the
Parties, or (iii) to declare that this Agreement shall become null and void as to all obligations
then remaining unperformed and that this Agreement shall be terminated.
15. Time of Essence Time is of the essence for each provision of this Agreement of
which time is an element.
16. Force Maieure Changed conditions, changes in local, state or federal laws or
regulations, floods, earthquakes, delays due to strikes or other labor problems, acts of any third
party, moratoria enacted by governmental entities or agencies other than the City, injunctions
issued by any court of competent jurisdiction, the inability to obtain materials, civil commotion,
fire, invasion, acts of God, or other circumstances which substantially interfere with the
construction of and operation of the sign, or which substantially interfere with the ability of any
of the Parties to perform its obligations under this Agreement shall collectively be referred to as
" Events of Force Majeure Each Party shall promptly notify the other Party to this Agreement
upon learning of any such Event of Force Majeure. If any Party to this Agreement is prevented
by an Event or Events of Force Majeure from performing its obligations under this Agreement,
then on the condition that the Party claiming the benefit of said Event(s) of Force Majeure (i) did
not cause said Event(s) and (ii) said Event(s) was beyond said Party's reasonable control, the
time for performance by said Party of its obligations under this Agreement and the term shall be
extended by a number of days equal to the number of days that said Event(s) of Force Majeure
continued in effect, or by the number of days it takes to repair or restore the damage caused by
said Event(s) to the condition which existed prior to the occurrence of said Event(s), whichever
is longer, or longer as the Parties may mutually agree. An Event of Force Majeure shall not
include economic or market conditions.
18
Page 29 of 82
17. Waiver No waiver of any provision of this Agreement shall be effective unless
in writing and signed by a duly authorized representative of the Party against whom enforcement
of such waiver is sought.
18. No Third Party Beneficiaries This Agreement is made and entered into for the
sole protection and benefit of the Vested Parry and the City and their successors and assigns. No
other person shall have any right of action based upon any provision of this Agreement.
19. Attorneys' Fees If any Party : commences any action for the interpretation,
enforcement, termination, cancellation or rescission of this Agreement, or for specific
performance for the breach hereof, the prevailing Party shall be entitled to its reasonable
attorneys' fees, litigation expenses and costs. Attorneys' fees under this Section shall include
attorneys' fees on any appeal as well as any attorneys' fees incurred in any post judgment
proceedings to collect or enforce the judgment.
20. Incorporation of Exhibits The following exhibits which are part of this
Agreement are attached hereto and each of which is incorporated herein by this reference as
though set forth in full:
Exhibit "A" -- Property Legal Description
Exhibit `B" Sign Construction Drawing
21. Authority to Execute; Binding Effect The City and the Vested Party each
represents and warrants that it has the power and authority to execute this Agreement and, once
executed, this Agreement shall be final and binding on the Parties. The Parties represent that the
signatories to this Agreement are duly authorized to sign on behalf of the respective Party and
bind such Party.
22. Entire Agreement; Conflicts This Agreement represents the entire understanding
and agreement of the Parties. This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements
between the Parties with respect to all or any part of the subject matter hereof. Should any or all
of the provisions of this Agreement be found to be in conflict with any other provision or
provisions found in the Applicable Rules, then the provisions of this Agreement shall prevail.
There are no oral or written representations, understandings, or ancillary covenants, undertakings
or agreements which are not expressly contained 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.
23. Counterparts The Parties may execute this Agreement on separate signature
pages which, when attached hereto, shall constitute one complete Agreement.
24. Applicable Law This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
IN
Page 30 of 82
25. Further Actions Each Parry shall cooperate with and provide reasonable
assistance to the other Party to the extent contemplated 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 or desirable under the terms of this Agreement
or to evidence or consummate the transactions contemplated by this Agreement.
26. Recording The City Clerk shall cause a copy of this Agreement (including all
Exhibits) to be executed by the City and recorded with the Office of the County Recorder of
Riverside County, California within ten (10) days after passage by the City Council of the
Ordinance.
[SIGNATURES ON NEXT PAGE]
Kc
Page 31 of 82
IN WITNESS WHEREOF, the Parties have each executed this Agreement as of the date
first written above.
CITY OF LAKE ELSINORE,
a California municipal corporation
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
SAN DIEGO OUTDOOR ADVERTISING,
INC., a California corporation dba GENERAL
OUTDOOR ADVERTISING
Its:
Its:
21
Page 32 of 82
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
[To Be Attached]
Exhibit "A"
Page 33 of 82
Page 34 of 82
EXHIBIT `B"
SIGN CONSTRUCTION DRAWINGS
[To Be Attached and to include both design and location with approved setbacks]
Exhibit `B"
Page 35 of 82
CITY OF LAKE ELSINORE
PLANNING COMMISSION REGULAR MEETING
MINUTES OF SEPTEMBER 4, 2012
CALL TO ORDER
Chairman Morsch called the meeting to order at 6:00 p.m.
PLEDGE OF ALLEGIANCE
Commissioner Blake led the Pledge of Allegiance.
ROLL CALL
Present: Chairman Morsch
Vice Chairperson O'Neal
Commissioner Blake
Commissioner Gray
Commissioner Jordan
Absent: None
Also present: Acting Community Development Director Morelion, Public Works
Director Seumalo, Senior Planner MacHott City Attorney Leibold, and Office
Specialist Herrington.
PUBLIC COMMENTS — NON A GENDIZED ITEMS — 3 MINUTES
Grace Sandlin stated that she is part of.the Studio 395 Artist Co -op. She stated
that their focus is to enhance the daily °life using art. She also stated that in the
past she was involved in the revitalization of both the historic downtown Santa
Ana, and,, Pomona artist.districts: and would like to form an "Arts Task Force" for
Lake Elinore. Their #tgpe is' that the Planning Commission evaluates this
suggestion' which could "contribute to the "Dream Extreme" branding that is
already in place.,,=
Robin Golden stated that she is a local mural artist and,is involved in the Studio
395 Artist Co -op. She stated that they would like to bring more public art and art
education to the City and would like the Planning Commission to consider
designing a Review Board who would be reviewing, and making suggestions for
permanent and temporary signage, murals and public art to promote cultural
diversity and harmony within the City.
CONSENT CALENDAR ITEM(S)
None.
Page 36 of 82
City of Lake Elsinore
Planning Commission Regular Meeting
Minutes of September 4, 2012
Page 2 of 7
PUBLIC HEARING ITEMS)
2. Development Agreement — General Outdoor Advertising Development
Agreement by and between the City of Lake Elsinore and General
Outdoor Advertising to permit the placement of an off site sign adjacent to
Interstate 15 In the General vicinity of East Franklin Street in accordance
with the provisions contained within the proposed amendment to Section
17.196.100 of the Lake Elsin Municipal Code
Recommendation
Adopt a resolution recommending to the City Council of the City of Lake
Elsinore approval of a Development Agreemeritsby and between the City
of Lake Elsinore and General Outdoor Advertising.
Planning Consultant MacHott presented the staff report. He stated that the
Development Agreement was negotiated with various terms which were not
reflected in the staff report at the time of distribution and he noted the change to
the Commission regarding the timing of the electronic'' public service message.
(The amendment would be that the City will be entitled to one eight- second
public service message on each ofthe two faces of sign every ten minutes).
Vice Chairman O'Neal asked who pays for the signs electricity. Senior Planner
MacHott stated that it would be General: Outdoor Advertising. Commission
O'Neil stated that the reason he brought this up was that when the sign at the
Outlet Center was originally- approved, the City was supposed to be advertised,
and he hasn't seen any advertisements regarding the City, and the sign has been
turned off.
City AttomeyLeibold stated .that it w otild be appropriate to add a provision that in
the event of non -use for a period of time, the sign would need to be repaired and
operational within a rea period of time, and failure to operate within some
period otAime, would require the sign to be removed.
Vice Chairman" O'Neil asked that since it is a Development Agreement between
the City and the-.sign company, why is Storm Stadium involved. City Attorney
Leibold stated thaf?the agreement specifically provides for 16 seconds every
minute for Storm and Stadium promotion and referred to the Section in the
Development Agreement regarding the Covenant Regarding Stadium and Storm
Promotion.
Commissioner Jordan asked if the agreement is only good for five years. City
Attorney Leibold stated that the vested right to build a sign in this location is only
good for five years. If the sign company fails to build it within the next five years,
they have no rights and then explained the process.
Page 37 of 82
City of Lake Elsinore
Planning Commission Regular Meeting
Minutes of September 4, 2012
Page 3 of 7
Commissioner Blake and Chairman Morsch asked about Franklin being a
potential interchange at some time. Chairman Morsch asked if the sign would
have to be moved. Public Works Director Seumalo stated that it would depend
on where the interchange would be and indicated that the existing overcross for
Franklin would stay in place and the interchange will be located 600 to 1000 feet
north towards Main Street so if the locations conflict then Caltrans will require the
City to move it.
Ms. Ryan stated that there was a City Ordinance that business owners were not
allowed to put up billboard signs and asked if this is opening up for other people
to put up billboard signs. City Attorney Leibold stated that off premise signs
(billboards) are prohibited, with the exception of a specific plan, overlay zone, or
some other section of the City's Code and as added by the previous agenda item
a sign permitted by way of a Development Agreement fora - specific project. Ms.
Ryan stated that Main Street business owners would like to have a billboard.
Kim Cousins asked if the City was going to pursue having an Auto Mall sign
located in the space between the Casino sign, and the new sign. City Attorney
Leibold stated that under the Caltrans mapping, the current location is the only
location for it but if it's on the Auto Dealer's property then it is an "on premise"
sign with different requirements.
Mr. Cousins let the Commission knc
working again. Also, he requested c
services, specifically on the„ Lake Elsin
Elsinore Hotel Casino ad.refers to
considered a gambling message. He
and the new sign.
Lake. "Elsinore Outlet sign is
n the gambling and gambling
ign. He indicated that the Lake
k ", etc. He asked if this is
clarity between the Outlet sign
City Attorney '"Leibold stated "that with'< respect to this sign, if the Commission
s,
believes "that this .not a ""benefit and would recommend a change in the
modification to the prov"i"sion 66t is a draft for their consideration. With respect
to the existing Outlet Center sign, she is not familiar with an agreement relating
to that. She"stated that this was a voluntary provision and assumed that they are
complying with whatever: parameters were placed on the advertising; therefore,
the City can go back and look at that.
Chairman O'Neal .stated that he doesn't have a problem the sign and would
generate sales tax revenue for the City. City Attorney Leibold stated that there is
not a prohibition against advertising the Hotel, the Casino, or the entertainment
but the prohibition is advertising specific gaming.
Mr. Cousins stated that on behalf of the Board of Directors of the Chamber of
Commerce, they are in full support of the sign. This is a huge opportunity on the
Corridor which will bring more revenue for the City.
Page 38 of 82
City of Lake Elsinore
Planning Commission Regular Meeting
Minutes of September 4, 2012
Page 4 of 7
Commissioner Blake stated that he is in opposition of the sign because of visual
pollution and the houses in the area have to look down at the multi - colored lights
and advertising changing every eight seconds. He doesn't think this is a great
thing to bring into the community. He would prefer the sign to be off of Main
Street. He thinks it is detrimental to the health, safety and general welfare of the
community.
Commissioner Gray stated that one, eight- second public service announcement
every ten minutes doesn't seem like much time compared to 16 seconds every
minute for the Storm, and it seems that the City has very little benefit to this. City
Attorney Leibold stated that the primary purpose of the" =sign from the City's
perspective was Stadium and Storm promotion. She why the City
chose the length of time for the advertisements in the'agreement and indicated
that if the Commission doesn't think that this is sufffcient; =then the Commission
can revise and the Commission's recommendation will be presented to the City
Council.
Commissioner Gray suggested having more time for advertising and it will tell the
motorist going by on Interstate 15 that the City of Lake Elsinore is actually here.
Commissioner Jordan stated that she liked the sign and doesn't have any issues
with it.
Vice Chairman O'Neal asked what the cost of the sign was. Dave Oster,
President of the Storm Stadium, stated that the entire sign will cost close to one
million dollars once it is put- p. Vice Chairman O'Neal asked about the cost of
advertising on theA gn. Mr. Oster stated'he doesn't have an exact cost because
it is all tied into the packaging but depending on the economy, it will take at least
five years to make the -nn oney back. Chairman O'Neal asked about the sign's
brightnes.s and is th ,are any,�kind of measurement used. Public Works Director
�
Seuma stated i�6tr"Galtrarrg monitors this and the brightness is a safety factor.
Mr. er stated that: puce the? sign is up, there is capability to control the
Chairman O Neal stated' that he appreciates the visual pollution argument;
however, he knows that there is no way to advertise the Storm Stadium. Mr.
Oster stated that alot of people know about Storm baseball, but they don't know
if there are playoff games and that is part of the reason for the Storm Stadium
eyes on the sign because they do light up when there is a home game or an
activity going on. The reason they placed the sign at the car dealership location
is that it is Caltrans driven and there are very few spots to locate the signs. They
are trying to find ways to drive traffic to the stadium and promote what is going on
in the town, and create revenue to help pay for the sign.
Chairman O'Neal stated that he doesn't like the sign but he knows that the City
and the businesses in the City need to be advertised. He would like to see the
sign more liberalized in terms of content. He knows General Outdoor Advertising
Page 39 of 82
City of Lake Elsinore
Planning Commission Regular Meeting
Minutes of September 4, 2012
Page 5 of 7
needs to maximize their profit and he would also like to see more time advertised
regarding the "Dream Extreme" activities in the City. Mr. Oster stated that the
difficult and fine line is that the City wants to promote the special messages that
are going on in Lake Elsinore but they cannot afford to give out free messages to
every business in town. Chairman O'Neal asked how much of an impact would it
be, in terms of revenue, if the sign were to be turned off at a certain time, such as
1:00 a.m. Mr. Oster stated that it's all based on people driving on Interstate 15,
and they drive on it 2417.
Chairman Morsch asked regarding the business model, if there is a different rate
during prime time hours from 4:00 a.m. to 6:00 a.m. and rush hour in the
evening, as opposed to 3:00 a.m. Mr. Oster stated that it would depend on the
number of ads that they would get and they would rotate at various times of the
day and night, all on a rotational basis.
Chairman Morsch had some questions regarding intensity of lighting at different
times of the day and night and the impact to the community, and various
questions regarding the amount of advertising time. Mr. Oster stated that their
sign person couldn't attend the meeting but he would refer these questions to
him as he has the expertise in this area and will follow up with the Commission.
Mr. Oster stated that he agreed W#h.,Mr. Cousins, as the City doesn't have local
television, and no great newspaper =and radio resources, therefore, the City
needs a big screen advertising sign to promote the great resources that the City
offers.
Chairman Morsch asked what will be displayed on the billboard. Mr. Oster stated
that they can put the promotions that are going on at the Storm Stadium and any
other special events that happen in the City. Chairman Morsch stated that he is
in agreement with this.
Vice Chairman O'Neal suggested continuing this item until the next meeting and
perhaps „ address sorge;,of tHk*ncerns that Commissioner Blake has, and
address any other issues' that were discussed previously. Mr. Oster stated that
this was passed in 2009: but is happy to bring back more information to the
Commission fot addition questions and concerns. He did note that he would
like to continue to::move this forward and get the sign up before Opening Day of
next year.
Chairman O'Neal asked if this can be brought back to the Commission on the
September 18, 2012, Planning Commission meeting. City Attorney Leibold
stated the September 18, 2012, Planning Commission meeting was tentatively
cancelled but doesn't have to be. If there is a regular meeting on that day, this
would be the only item on the Agenda.
Commissioner Blake stated that he is opposed to it and coming back in a few
weeks will not change his opposition. He stated that he believes that these kinds
of signs are outdated. He is concerned about the light pollution for the people
Page 40 of 82
City of Lake Elsinore
Planning Commission Regular Meeting
Minutes of September 4, 2012
Page 6 of 7
driving on Interstate 15, and if this does go through, there should be Notice given
to the residents in the area regarding the light impact. He discussed the design
of the sign, and noted that there should be a limitation on the angle that the light
diffuses or impacts across Interstate 15.
Mr. Oster stated that he would be happy to provide the Commission with this
information and he understands the lighting issue. He noted that they will always
be promoting and using the sign.
Vice Chairman O'Neal said that he asked for a continuance in order to address
Commissioner Blake's concerns, but since they cannot, he was withdrawing his
request for a continuance.
Commissioner Gray stated that he is in favor of this.
Commissioner Jordan stated that she is in favor of this.
Motion by Commissioner Jordan and seconded by Commissioner Gray to
approve Resolution No. 2012 -31, a Resolution of the Planning Commission of
the City of Lake Elsinore, California, recommendi fig ,:to the City Council of the City
of Lake Elsinore, approval of a Development Agreement by and between the City
of Lake Elsinore and General Outdoor "Advertising with a,correction in the body of
the Resolution to read Public Notice of the Development Agreement, not
Development Amendment; also that the Planning..Commission would recommend
adding a provision with- respect to maintenance and' removal of the sign in the
event of non - operation; lastly; remove prohibition on the language that was used
regarding gambling, Motion passed 4 -1 with Commissioner Blake opposing.
Mr. Oster stated that hemill go back to his' partner and study the lighting and will
follow upwitmhe:,Commission with a'reoort_
CITY ATTORNEY COMMENTS
PLANNING COMMISSIONER'S COMMENTS
ADJOURNMENT
The Lake Elsinore Planning Commission will adjourn to a regular meeting to be
held on Tuesday, September 18, 2012, at 6:00 p.m. to be held at the Cultural
Center located at 183 N. Main Street, Lake Elsinore, CA 92530.
Page 41 of 82
City of Lake Elsinore
Planning Commission Regular Meeting
Minutes of September 4, 2012
Page 7 of 7
Rick Morsch, Chairman
City of Lake Elsinore
Attest:
Warren Morelion
Acting Community Development Director
Page 42 of 82
CITY OF
LSII`IORE
DREAM EXTREME.
REPORT TO PLANNING COMMISSION
TO: HONORABLE CHAIRMAN
AND MEMBERS OF THE PLANNING COMMISSION
FROM: WARREN MORELION, AICP
ACTING COMMUNITY DEVELOPMENT DIRECTOR
DATE: SEPTEMBER 4, 2012
SUBJECT: DEVELOPMENT AGREEMENT —
rwrcr"wuvaa - vcvccvrmcwi rwnccnciv or ruvv
BETWEEN THE CITY OF LAKE ELSINORE AND GENERAL
OUTDOOR ADVERTISING TO PERMIT THE PLACEMENT OF
AN OFF -SITE SIGN ADJACENT TO INTERSTATE 15 IN THE
GENERAL VICINITY OF EAST FRANKLIN STREET; IN
ACCORDANCE WITH THE PROVISIONS CONTAINED WITHIN
THE PROPOSED AMENDMENT TO SECTION 17.196.100 OF
THE LAKE ELSINORE MUNICIPAL CODE
APPLICANT: GENERAL OUTDOOR ADVERTISING, 632 S. HOPE AVENUE,
ONTARIO, CA 91761
Background
One of the important visitor destinations within the City of Lake Elsinore is Diamond
Stadium, the home of the Lake Elsinore Storm Baseball team, which hosts a number of
events throughout the year. The stadium is located approximately '/2 mile from
Interstate 15. Although there is no current freeway signage, such signage has been
contemplated for several years.
In 2007, the former Redevelopment Agency of the City of Lake Elsinore entered into a
Stadium Lease, License and Management Agreement with Diamond Stadium Group
LLC ( "DSG ") with respect to the lease and operation of the Lake Elsinore Diamond.
The City is now serving as the "Successor Agency" to the former Redevelopment
Agency. In connection with the Stadium Lease, the parties are to engage in a
collaborative effort to identify a site and construct and operate a "roadside electronic
billboard" near Diamond Drive and Interstate 15.
Recently, DSG has partnered with billboard advertising specialist General Outdoor
Advertising to construct and operate an electronic billboard sign along Interstate 15. A
suitable location was found and following negotiations with the property owner, General
Outdoor Advertising entered into a license agreement with the owner.
Page 43 of 82
DEVELOPMENT AGREEMENT — GENERAL OUTDOOR ADVERTISING
SEPTEMBER 4, 2012
PAGE 2 OF 3
Pursuant to LEMC Chapter 17.196 (Signs - Advertising Structures) permanent signs are
currently limited to on -site signs only. Section 17.196.100 (Prohibited signs) of the
LEMC prohibits all signs that are not specifically permitted by Chapter 17.196 or
specifically allowed by a specific plan, overlay district or other section of the LEMC. The
amendment to Section 17.196.100 which is on tonight's Planning Commission agenda
as a separate public hearing item adds "development agreement" to the list of
documents that can specifically allow such off -site signs.
In anticipation of this amendment to the LEMC, General Outdoor Advertising filed a
development agreement application that would allow for an electronic billboard sign
adjacent to Interstate 15.
Discussion
The proposed Development Agreement will allow the applicant, General Outdoor
Advertising, to process a sign permit application in order to install an off -site digital sign
on a 0.77 -acre site (see attached location map) generally bordered on the north by
Interstate 15 and in the general vicinity of East Franklin Street to the south and Rancho
Street to the west (APN 377 - 330 -011).
o The Development Agreement enables the City to meet its obligations under the
terms of the Stadium Lease to work with the DSG to identify a site and enable
the construction and operation of an electronic billboard near Interstate 15.
The Development Agreement guarantees at no cost to the City, the opportunity
for the City to place civic public service messages, including those sponsored by
non -profit organizations, on the Sign. City shall be entitled to post up to one six
(6) second Public Service Message every minute on the Sign on a continuous
basis.
Pursuant to the terms of the Development Agreement, General Outdoor
Advertising commits itself and any successors and assigns to a requirement that
any advertising displayed on the Sign shall not contain any advertising for adult
entertainment- related uses, alcohol or tobacco products of any type, gambling or
Page 44 of 82
The Development Agreement provides three major benefits to the City..
DEVELOPMENT AGREEMENT — GENERAL OUTDOOR ADVERTISING
SEPTEMBER 4, 2012
PAGE 3 OF 3
gambling services, or any political messages or advertising, although gambling
establishments may advertise non - gaming entertainment and hospitality
services. The City also reserves the right to object to any other advertising that
may be considered detrimental to the image of the City and General Outdoor
Advertising commits to work with the City for the removal of any such advertising.
Environmental Determination
The vesting of the right to construct and operate the Sign through the Development
Agreement is exempt from the California Environmental Quality Act (Cal. Publ. Res.
Code § §21000 et seq.: °CEQA ") and the State CEQA Guidelines (14. Cal. Code Regs
§ §15000 et seq.), specifically pursuant to Section 15332 (Class 32 — In -Fill
Development Projects) because the Sign on the Property is consistent with the
applicable General Plan designation and policies, as well as zoning designation and
regulations, the Sign and the Property is within the City's boundaries and on a site less
than five acres surrounded by urban uses — most notably Interstate 15, the Property has
no value as habitat, and approval of the Sign will not result in any significant effects
relating to traffic, noise, air quality, or water quality and the Sign is adequately served by
all required utilities and public services.
Recommendation
Staff recommends that the Planning Commission take the following actions:
Adopt Resolution No. 2012 -_, recommending to the City Council of the City of
Lake Elsinore approval of a development agreement by and between the City of
Lake Elsinore and General Outdoor Advertising.
Prepared by: Richard J. MacHott, LEED Green Associate
Senior Planner
Approved by: Warren Morelion, AICP
Acting Community Development Director
Attachments
1. Location Map
2. Aerial Photograph
3. Resolution No. 2012 - recommending to the City Council of the City of Lake Elsinore
approval of a development agreement by and between the City of Lake Elsinore and
General Outdoor Advertising.
4. Development Agreement by and between the City of Lake Elsinore and General Outdoor
Advertising.
Page 45 of 82
RESOLUTION NO.2012-
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF LAKE ELSINORE, CALIFORNIA, RECOMMENDING TO
THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE
APPROVAL OF A DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF LAKE ELSINORE AND GENERAL
OUTDOOR ADVERTISING
WHEREAS, an application has been filed with the City of Lake Elsinore by
General Outdoor Advertising for a Development Agreement pursuant to Section
19.12 of the Lake Elsinore Municipal Code ( "LEMC "); and
WHEREAS, the proposed Development Agreement will allow the
applicant, General Outdoor Advertising, to process a sign permit application in
order to install an off -site digital sign ( "Sign ") on a 0.77 -acre site ( "Property ")
generally bordered on the north by Interstate 15 and in the general vicinity of
East Franklin Street to the south and Rancho Street to the west (APN 377 -330-
011; and
WHEREAS, Government Code Section 65867 requires that the Planning
Commission review the proposed development agreement and make a
recommendation to the City Council regarding whether to approve the
amendment and whether the amendment is consistent with the City's general
plan; and
WHEREAS, the Planning Commission of the City of Lake Elsinore has
been delegated with the responsibility of making recommendations to the City
Council pertaining to approval of Development Agreements pursuant to Section
19.12.070 of the LEMC; and
WHEREAS, public notice of the Development Amendment has been
given, and the Planning Commission has considered evidence presented by the
Community Development Department and other interested parties at a public
hearing held with respect to this item on September 4, 2012.
NOW THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
LAKE ELSINORE DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
FOLLOWS:
SECTION 1. The Planning Commission has considered the proposed
Development Agreement and finds and determines that the proposed
Development Agreement is exempt from the California Environmental Quality Act
(Cal. Publ. Res. Code § §21000 et seq., "CEQA ") and the State CEQA Guidelines
(14. Cal. Code Regs § §15000 et seq.), specifically pursuant to Section 15332
(Class 32 — In -Fill Development Projects) because the Planning Commission
finds that the Sign on the Property is consistent with the applicable General Plan
designation and policies, as well as zoning designation and regulations, the Sign
Page 48 of 82
PLANNING COMMISSION RESOLUTION NO. 2012-_
PAGE 2 OF 4
and the Property is within the City's boundaries and on a site less than five acres
surrounded by urban uses — most notably Interstate 15, the Property has no
value as habitat, and approval of the Sign will not result in any significant effects
relating to traffic, noise, air quality, or water quality and the Sign is adequately
served by all required utilities and public services.
SECTION 2. That in accordance with Government Code Section 65864-
65869.5 and requirements of the City of Lake Elsinore Municipal Code, the
Planning Commission makes the following findings recommending to the City
Council approval of the Development Agreement:
1. The proposed Development Agreement is consistent with the objectives,
policies, general land uses and programs specified in the General Plan.
The Development Agreement is consistent with the project site's °General
Commercial" land use designation and with Goal 4 of the Ballpark District
Plan of the General Plan in that the proposed Development Agreement
will assist in achieving the City's goal to "Promote the stadium, `Dream
Extreme" sports activities and other recreational opportunities ". .
2. The proposed Development Agreement is compatible with the uses
authorized in, and the regulations prescribed for, the land use district in
which the real property is located.
The property that is subject to the proposed Development Agreement is
zoned C-2 (General Commercial) and is property to the south and west.
Interstate 15 is located immediately north and east of the property. The
use of the subject property for an off -site sign is compatible with these
zoning classifications.
The proposed Development Agreement conforms to the public
convenience and general welfare and reflects good land use practices.
The proposed Development Agreement conforms to the public
convenience and general welfare because the Agreement guarantees at
no cost to the City, the opportunity for the City to place civic public service
messages, including those sponsored by non -profit organizations, on the
Sign.
4. The proposed Development Agreement will not be detrimental to the
health, safety and general welfare of the community.
The proposed Development Agreement will not be detrimental to the
health, safety and general welfare of the community because the
Agreement includes the provision that General Outdoor Advertising
commits itself and any successors and assigns to a requirement that any
Page 49 of 82
PLANNING COMMISSION RESOLUTION NO. 2012 -
PAGE 3 OF 4
advertising displayed on the Sign shall not contain any advertising for
adult entertainment- related uses, alcohol or tobacco products of any type,
gambling or gambling services, or any political messages or advertising.
5. The proposed Development Agreement is consistent with the provisions of
Government Code Sections 65864 through 65869.5.
The form and content of the proposed Development Agreement is
consistent with the requirements of the Government Code.
SECTION 3. Based upon the evidence presented, both written and
testimonial, and the above findings, the Planning Commission hereby
recommends approval of the proposed Development Agreement by and between
the City of Lake Elsinore by General Outdoor Advertising.
SECTION 4. This Resolution shall take effect from and after the date of its
passage and adoption.
PASSED, APPROVED AND ADOPTED this 4th day of September, 2012,
by the following vote:
AYES:
COMMISSIONERS:
NOES:
COMMISSIONERS:
ABSENT:
COMMISSIONERS:
ABSTAIN:
COMMISSIONERS:
Rick Morsch, Chairman
City of Lake Elsinore
ATTEST:
Warren Morellon, AICP
Acting Community Development Director
Page 50 of 82
PLANNING COMMISSION RESOLUTION NO. 2012 -
PAGE 4 OF 4
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE SS
CITY OF LAKE ELSINORE
I, WARREN MORELION, Acting Community Development Director of the
City of Lake Elsinore, California, hereby certify that Resolution No. was
adopted by the Planning Commission of the City of Lake Elsinore at a regular
meeting held on the 4th day of September 2012, and that the same was adopted
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Warren Morelion, AICP
Acting Community Development Director
Page 51 of 82
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
City of Lake Elsinore )
130 South Main Street )
Lake Elsinore, California 92530 )
Attention: City Clerk )
)
(Space above for Recorder's use.)
(Exempt from Recording Fees Per Govt Code §27383.)
DEVELOPMENT AGREEMENT WITH
LONG -TERM OPERATING COVENANTS
by and between
CITY OF LAKE ELSINORE
and
SAN DIEGO OUTDOOR ADVERTISING, INC., a California corporation dba
GENERAL OUTDOOR ADVERTISING
Stadium Billboard Sign Development Agreement 083012
Page 52 of 82
DEVELOPMENT AGREEMENT WITH LONG -TERM OPERATING COVENANTS
This Development Agreement With Long -Tenn Operating Covenants (the
" Agreement ") is made this 9th day of October, 2012, by and between the CITY OF LAKE
ELSINORE, a municipal corporation organized and existing under the laws of the State of
California (the "CiV ), and SAN DIEGO OUTDOOR ADVERTISING, INC., a California
corporation dba GENERAL OUTDOOR ADVERTISING (the " Vested Party The City and
the Vested Party are hereinafter sometimes referred to individually as a " Pailf ' and collectively
as the " Parties ." In consideration of the mutual covenants and agreements contained in this
Agreement, the Parties hereto agree as follows:
RECITALS
A. Government Code Sections 65864, et seq. (the " Development Agreement
Statutes ") authorize the City to enter into an agreement with any person or business entity having
a legal or equitable interest in real property regarding the future development of such property.
B. Government Code Section 65864 states that the lack of certainty in the approval
process can result in a waste of resources and escalate the cost of development. Assurance to the
applicant through a development agreement that the applicant may proceed with development in
accordance with existing policies, rules and regulations, and subject to conditions of approval,
will strengthen the public planning process, encourage private participation in comprehensive
planning and reduce the economic costs of development.
C. Pursuant to Government Code Section 65865, the City has adopted the following
rules and regulations establishing procedures and requirements for consideration of development
agreements: Lake Elsinore Municipal Code (LEMC) Chapter 19.12 (the " Development
Agreement Procedures "). This Agreement has been processed, considered and executed in
accordance with the Development Agreement Statutes and the Development Agreement
Procedures.
D. The property which is the subject of this Agreement (the " Property consists of
approximately 0.77 acres of vacant land generally bordered on the north by Interstate 15 and in
the general vicinity of East Franklin Street to the south and Rancho Street to the west and lies
within the General Plan's Riverview District with a zoning designation of "General Commercial"
of "C -2" as defined in Section 17.125.110 of the LEMC. The Property is more particularly
described as 377 - 330 -011 and as set forth in the Legal Description attached hereto as Exhibit
"A" and incorporated herein by reference.
E. The Vested Party is a California corporation authorized to do business in the State
of California. The Vested Party holds a license coupled with a real property interest in a portion
of the Property pursuant to that certain Sign License Agreement dated as of August 10, 2012 by
and between Vested Party and the fee owner of the Property, DCH California Investments LLC,
( "Owner ") a California limited liability company ( "Sign License Agreement), a copy of which is
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on file and available for public inspection at the office of the City Clerk of the' City of Lake
Elsinore, 130 S. Main Street, Lake Elsinore, California.
F. In 2007, the former Redevelopment Agency of the City of Lake Elsinore
" Former Aaenoy ") entered into that certain Stadium Lease, License and Management
Agreement (the " Stadium Lease ") with Diamond Stadium Group LLC ( "DSG ") with respect to
the lease and operation of the Lake Elsinore Diamond. Pursuant to AB lx 26, the City elected to
serve as the "Successor Agency" to the Former ;Agency. In connection with the Stadium Lease,
the parties thereto were to engage in a collaborative effort to identify a site and construct and
operate a "roadside electronic billboard" near Diamond Drive and Interstate 15.
G. Vested Party has established a business relationship with DSG such that DSG will
utilize the proposed Sign described in Recital K herein for purposes generally consistent with
the roadside electronic billboard contemplated in the Stadium Lease and City seeks to
acknowledge the Former Agency's obligation under the Stadium Lease and collaborate in such
effort.
H. Through this Agreement, the Vested Parry and the City intend to vest the right to
place an electronic billboard sign on the Property and in doing so, bring certainty and stability to
the government regulations applicable to the use of a billboard sign on the Property which, upon
the Effective Date, is permitted with a development agreement under the City's General Plan and
Zoning Code.
I. The vesting of the right to construct and operate the Sign through this Agreement
is exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15332 because
the Sign on the Property is consistent with the applicable General Plan designation, policies as
well as zoning designation and regulations, the Sign and the Property is within the City's
boundaries and on a site less than five acres surrounded by urban uses — most notably Interstate
15, the Property has no value as habitat, and approval of the Sign will not result in any
significant effects relating to traffic, noise, air quality, or water quality and the Sign is adequately
served by all required utilities and public services.
J. The City deems the approval and implementation of this Agreement to be in the
public's best interest and intends that the adoption of this Agreement be considered an exercise
of the City's police powers to regulate the Sign and the Property.
K. The Parties desire to enter into this Agreement relating to the Property in
conformance with the provisions of the Development Agreement Statutes, the Development
Agreement Procedures, the LEMC and existing City laws, rules, regulations, and official policies
to allow the construction, operation and use of an electronic billboard sign as contemplated under
the Sign License Agreement and as further described in the Sign Construction Drawings attached
as Exhibit `B" (the "Sign "), upon the terms and conditions set forth herein and in the promotion
of the public health, safety and general welfare of the City. The Vested Party shall be entitled to
proceed with the construction and operation of the Sign on the Property in accordance with this
Agreement and the City's laws, rules, regulations, and official policies in force on the Effective
Date of this Agreement.
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Page 54 of 82
L. On September 4, 2012, the City Planning Commission held a duly noticed public
hearing on the Vested Party's application for the Development Agreement and recommended to
the City Council approval of this Agreement.
M. On September 25, 2012, the City Council held a duly noticed public hearing on
the Vested Party's application for the Development Agreement and on October 9, 2012, the City
Council adopted Ordinance No. 2012 - approving this Agreement (the " Ordinance '). The
Ordinance shall become effective on November 15, 2012 (the " Effective Date ").
N. The Vested Party has applied to the City in accordance with applicable procedures
for approval of this mutually binding Agreement. The Planning Commission and City Council
of the City have given public notice of intention to consider this Agreement, have conducted
public hearings thereon pursuant to the Development Agreement Statutes, have found that the
provisions of this Agreement are consistent with, and fulfill the objectives of, the General Plan
and the Zoning Ordinance; and have made all of the other required findings, including, but not
limited, the findings set forth in Section 19.12.080 of the LEMC.
O. This Agreement is consistent with the public health, safety, and welfare needs of
the residents of the City.
P. This Agreement will bind the City to the terms and obligations specified in this
Agreement and will limit, to the degree specified in this Agreement and under State law, the
future exercise of the City's ability to change the Applicable Rules (as hereinafter defined),
hinder, delay, postpone, preclude or regulate the Sign on the Property, except as provided for
herein.
THEREFORE, the Parties agree as follows:
AGREEMENT
Definitions In this Agreement, unless the context otherwise requires:
I.I. " Agreement " means this Development Agreement entered into between
the City and the Vested Party as of the Effective Date.
1.2. " Applicable Rules means the development standards and restrictions set
forth in Section 3 of this Agreement which shall govern the construction and operation of the
Sign on the Property.
1.3. " City General Plan or " General Plan shall mean the General Plan of the
City of Lake Elsinore.
1.4. " Community Develog_ment Director shall mean the Director of
Community Development of the City of Lake Elsinore, or designee.
Page 55 of 82
1.5. ` Effective Date is the effective date of this Agreement which is
November 15, 2012, the date the Ordinance approving this Agreement becomes effective.
1.6. " Future Approvals means any action to authorize construction of the Sign
on the Property pursuant to the Applicable Rules, including without limitation, issuance of a sign
permit pursuant to LEMC Section 17.196.030, building permits pursuant to LEMC Chapter
15.04 and electrical permits pursuant to LEMC Chapter 15.38.
1.7. "Laws" or "Law," or any reference to "laws" or "law" in this Agreement
includes all applicable federal and California statutes and case law, and any City laws,
ordinances, resolutions, rules, regulations, policies, motions, directives, mitigation measures,
conditions, standards, specifications, dedications, fees, taxes (including without limitation
general, special and excise taxes), assessments, liens, other exactions and impositions, or any
other action, whether enacted or adopted by the City or its electorate through the initiative or
referendum process.
1.8 " LEMC " mean the Lake Elsinore Municipal Code.
1.9. " Property " is the real property covered by this Agreement identified in
Recital D.
1.10 " Sign " is defined in Recital K of this Agreement.
1.11 " Zoning Code means Title 17 of the LEMC as of the Effective Date.
2. General Provisions
2.1. Agreement Personal to Vested Pariv The qualifications and identity of
the Vested Party are of particular concern to the City. Therefore, this Agreement and all of its
terms and conditions are personal to Vested Party and the benefits and burdens of this
Agreement shall only inure to those affiliated entities, assigns, heirs, successors, devises,
administrators, representatives, lessees and other persons as may be permitted by Vested Party
consistent with the provisions of Section 10 et seq. of this Agreement.
2,2. Negation of Agency The Parties acknowledge that, in entering into and
performing under this Agreement, each is acting as an independent entity and not as an agent of
the other in any respect. Nothing contained herein or in any document executed in connection
herewith shall be construed as making the City and the Vested Party joint venturers, partners,
agents of the other, or employer /employee.
2.3. Amendments The term "this Agreement" or "Development Agreement"
herein shall include all amendments properly approved and executed pursuant to Section 6.4 and
all changes, adjustments or clarifications by Operating Memoranda as set forth in Section 7.
2.4. Enforcement of Agreement This Agreement shall be enforceable by each
and any Party or any successor(s) or assign(s) (as provided in Sections 2.1 and 10), in accordance
0
Page 56 of 82
with the Applicable Rules notwithstanding any subsequent change in or addition to the
applicable general plan, zoning, subdivision, land use, building or occupancy resolutions,
ordinances, orders, actions, initiatives, referenda, policies, plans or regulations, or any other
conditions applicable to the Sign on the Property except as provided in Section 3 of this
Agreement..
3.
The
following development standards and restrictions set forth in this Section govern the construction
and use of the Sign on the Property, and shall constitute the Applicable Rules
3.1. Rules, Regulations, Official Policies Except as otherwise set forth in this
Agreement, as to Future Approvals and construction of the Sign on the Property, the City
(including all employees, officials, agencies, commissions, boards, bureaus and departments
thereof) rules, regulations, ordinances, resolutions, orders, actions, laws, general plans,
conditions of approval and official policies governing and all other conditions and exactions
applicable to the construction of the Sign on the Property are expressly acknowledged and agreed
by the Parties to be those in force and effect upon the Effective Date (the " Applicable Rules
3.2. Applicable Rules The following Laws shall be part of the Applicable
Rules:
a. The City's General Plan and Map as it exists on the Effective Date;
b. The environmental impact report ( "BIR ") and subsequent
environmental documents adopted in connection with the General Plan;
C. The City's Zoning Code and Map, as it exists on the Effective
Date;
d. Such other laws, ordinances, rules, regulations, and official
policies governing signs on the Property allowed under the Applicable Rules; and
e. Any subsequently enacted law, regulation or policy expressly
agreed to by the Vested Party in writing to the City.
The following Laws shall not be part of the Applicable Rules:
a. Regulations governing construction standards and specifications,
including without limitation, the City's Building Code, Plumbing Code, Mechanical Code,
Electrical Code and Fire Code;
b. Regulations governing development impact fees;
b. Revisions and amendments to the Applicable Rules if the City
determines that the failure of the City to make such revisions or amendments would place the
residents of the City in a condition dangerous to their health and safety, or both;
Page 57 of 82
C. Revisions and amendments to the Applicable Rules mandated by
changes in laws, regulations, plans or policies to the extent that such changes are mandated and
required by changes in state or federal laws or regulations;
d. Changes in citywide land use regulations, ordinances, policies,
programs adopted after the Effective Date that are not in conflict with the Applicable Rules as
provided herein; and
e. Procedural regulations related to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and any
other matter of procedures not otherwise set forth herein.
3.3. Future Entitlement Approvals by Owner Notwithstanding this
Agreement, the Property may also be used and developed as additionally authorized by any
future entitlements requested by the Owner, including but not limited to vesting tentative and
final subdivision maps, general plan amendments, zone changes, variances, conditional use
permits, lot line adjustments, grading plans, building permits and certificates of occupancy which
are not governed by this Agreement and, accordingly, shall be subject to any Laws in effect at
that time. Additionally, such future request for entitlements shall be evaluated in accordance
with applicable CEQA requirements.
3.4. Consistency with Applicable Rules City finds, based upon all
information available to City prior to or concurrently with the execution of this Agreement, that
there are no Applicable Rules that would prohibit, prevent or impede the construction and
operation of the Sign on the Property.
3.5. General Development The Vested Party shall have the right to construct
and operate the Sign on the Property in accordance with the terms and conditions of this
Agreement and consistent with the Sign Construction Drawing as set forth in Exhibit "B ",
provided, however, that in the event the Owner requests the Sign be relocated from its original
location on the Property as depicted in Exhibit `B" pursuant to the provisions of Section Le. of
the Sign License Agreement, Vested Party may relocate the Sign to the far northern point of the
Property subject to all Applicable Rules and submission by Vested Party of an application for a
new Sign Permit consistent with Section 3.6 and all requirements and conditions set forth
therein. Notwithstanding the foregoing, subject to the provisions of Section 5.5, the Vested Party
shall have no liability under this Agreement if construction of the Sign on the Project fails to
occur in whole or in part.
3.6. Submission of Application for Sign Permit During the term of this
Agreement, Vested Party may submit a sign permit application to the Community Development
Department for construction of the Sign as provided in the Chapter 17.196 of the LEMC. Vested
Party's ability to construct and install the Sign is expressly conditioned upon the approval of the
Sign Permit by the Director of Community Development. An application of the sign permit shall
comply with all procedures set forth in Chapter 17.196 of the LEMC. Upon receipt of the
application for the Sign Permit submitted pursuant to this Agreement and in compliance with
Chapter 17.196 of the LEMC, the Director of Community Development shall review the
Si
Page 58 of 82
application to determine whether the design and setbacks of the proposed Sign is substantially
similar to the design and setbacks reflected in Exhibit "B." City shall issue the requested Sign
Permit when the Director of Community Development determined the proposed Sign
substantially conforms to the design and setbacks reflected in Exhibit `B" and Vested Party has
otherwise satisfied the requirements of Chapter 17.196 of the LEMC. Vested Party
acknowledges that, in addition to the Sign Permit, Vested Party may be required to obtain other
permits such as building and/or electrical permits from the City prior to construction and
installation of the Sign (LEMC Section 17.196.030).
3.7. Long -Term Operating Covenants The following covenants shall run with
the Property until such time as the Sign is removed from the Property:
a. Covenant Regarding Advertising Limitation Vested Party
voluntarily covenants and agrees for itself, its successors and assigns, that any advertising
displayed on the Sign shall not contain any advertising for adult entertainment or nudity
including, but not limited to, topless bars, nightclubs, establishments that feature nude dancing,
mud wrestling, any adult business featuring retail sales of adult novelty items, books, magazines,
videos and tapes, or any material that could reasonably be considered pornographic. Further,
Vested Party voluntarily covenants and agrees for itself, its successors and assigns that any
advertising displayed on the Sign shall not contain any advertising for alcohol or tobacco
products of any type, gambling or gambling services, or any political messages or advertising.
Notwithstanding the foregoing, gambling establishments may advertise non - gaming
entertainment and hospitality services.
City further reserves the right to object to any other advertising that may
be considered detrimental to the image of the City. In such cases, City shall inform Vested Party
in writing of the offensive advertising and request that it be removed. Vested party shall
endeavor to cooperate with the City in assuring the removal of such other advertising when such
removal does not breach any existing contract or lease agreement held by Vested Party. Vested
Party's obligation herein shall survive termination of this Agreement and shall remain in full
force and effect until removal of the Sign.
b. Covenant Regarding Stadium and Storm Promotion The Parties
agree and acknowledge that promotion of the Lake Elsinore Diamond Stadium and the Lake
Elsinore Storm are an important feature of the Sign and an essential consideration by the City in
entering into this Agreement. Vested Party voluntarily covenants and agrees for itself, its
successors and assigns, that Vested Parry shall dedicate not less than sixteen (16) seconds every
minute of every day on a continuous basis to messages promoting the Lake Elsinore Diamond
Stadium, the Lake Elsinore Storm, and games, events and activities sponsored by the Lake
Elsinore Storm and or occurring in and around the Stadium.
C. Covenant Regarding Public Service Messages and City Promotion
Vested Party voluntarily covenants and agrees for itself, its successors and assigns, that Vested
Party shall provide to City, at no cost to the City, the opportunity to place public service
announcements on the Sign, provided, however, that such public service announcements shall be
7
Page 59 of 82
limited to civic public service messages, including those sponsored by non - profit organizations,
City promotional messages and announcement of City sponsored and co- sponsored events such
as celebrations, festivals, special events, park and public facility openings along with public
safety announcements such as flash flood warnings, and heat advisories (hereinafter collectively
as "Public Service Messages "). The term Public Service Message shall expressly exclude the
Stadium promotional messages described in Section 3.7 b. above any message advertising any
business, company or event where such message would have a direct and tangible economic
benefit to a private, for -profit company, or any message advertising any policitical campaign or
political message. City shall be entitled to post up to one eight (8) second Public Service
Message on each face of the Sign (16 seconds total) every ten minutes of every day on a
continuous basis. For all Public Service Messages, City shall be responsible for providing Vested
Parry with the advertising copy. Vested Party shall not be responsible for producing or
substantially modifying any advertising copy for a Public Service Message, and shall have 48
hours after receipt and approval of advertising copy to display the Public Service Message.
Vested Party's obligation herein shall survive termination of this Agreement and shall remain in
full force and effect until removal of the Sign.
Notwithstanding the foregoing, should City not utilize its allotment of advertising space,
Vested Party shall be entitled to lease that time for other advertising purposes as set forth herein.
In the event a Public Service Message relates to a past event and City fails to submit new
advertising copy for a new Public Service Message within three Business Days of written notice
from Vested Party in accordance with this paragraph, Vested Party may lease such advertising
time for any purpose consistent with paragraph a. of this Section 3.7 for a period of up to one
calendar month. Written notice pursuant to this paragraph shall be addressed to the City Manager
and the Community Development Director and shall state clearly in bold capital letters on the
envelope, facsimile face sheet or subject line, as applicable, and at the top of the notice
"NOTICE REGARDING LEASE OF CITY'S PUBLIC SERVICE MESSAGE —
URGENT ". Such notice shall include a complete recital of this paragraph and may be delivered
by Vested Party to City by hand delivery, facsimile or email. Vested Party may continue to lease
such advertising space for subsequent monthly periods only following subsequent notice in
accordance with this paragraph. In addition to the foregoing, Vested Party may lease any of the
City's allotment of Public Service Message space voluntarily forfeited by the City as expressly
set forth in a written notice to the Vested Party signed by the City Manager and the Community
Development Director.
d. Amber Alerts. In addition to the foregoing, Vested Party shall comply with and
post all "Amber Alerts" in accordance with applicable guidelines and any public safety
messaging required by applicable state or federal law.
4. Acknowledements Agreements and Assurances on the Part of the Citv In order
to effectuate the provisions of this Agreement, the City hereby agrees and assures the Vested
Party that the Vested Party will be permitted to carry out and complete construction of the Sign
on the Property in accordance with the Applicable Rules. Therefore, the City hereby agrees and
acknowledges that:
Page 60 of 82
4.1. Entitlement to Develop The Vested Party is hereby granted the vested
right to construct and operate the Sign on the Property to the extent and in the manner provided
in this Agreement, subject to the Applicable Rules and the Future Approvals.
4.2. Subsequent Enactments If state or federal laws or regulations are enacted
after the Effective Date hereof, which prevent or preclude compliance with one or more of the
provisions of this Agreement, such provisions of this Agreement will be modified or suspended
as may be necessary to comply with such state or federal laws or regulations and to the extent
such laws or regulations do not render such remaining provisions impractical to enforce.
Notwithstanding the foregoing, Vested Party shall have the right to legally contest any
subsequently - enacted state or federal law or regulation at its own expense, and the City agrees to
reasonably cooperate with any such contest; provided however, such cooperation shall be at no
cost to the City.
4.3. Future Approvals The Vested Party shall submit applications for Future
Approvals consistent with this Agreement and the Applicable Rules.
4.4. Modification of Approvals Throughout the term of this Agreement, the
Vested Party shall have the right, at its election and without risk to any right that is vested
pursuant to this Agreement, to apply to the Community Development Director for minor
modifications to the Sign. The processing, review and approval by the City of any such
modifications shall proceed in accordance with Section 5.3 hereof. The approval or conditional
approval of any such minor modification shall not require an amendment to this Agreement,
provided that, in addition to any other findings that may be required in order to approve or
conditionally approve the modification, a finding is made that the modification is consistent with
this Agreement.
4.5. Timing of Construction of Sian Because the California Supreme Court
held in Pardee Construction Co. v. City of Camarillo, 37 Ca1.3d 465 (1984), that failure of the
parties to provide for the timing of development resulted in a later adopted initiative restricting
the timing of development to prevail over the parties' agreement, it is the intent of the Vested
Party and the City to cure that deficiency by acknowledging and providing that the Vested Party
shall have the right (without the obligation) to construct the Sign at such rate and at such time as
the Vested Party deems appropriate within the exercise of its subjective business judgment.
4.6. No Moratorium No future amendment of any existing City ordinance or
resolution, or future adoption of any ordinance, resolution or other action, that purports to limit
the rate or timing of development over time or alter the sequencing of development phases,
entitlements (including without limitation water and sewer service), or construction of all or any
part of the Property, whether imposed by ordinance, initiative, resolution, policy, order or
otherwise, and whether adopted or, imposed by the City Council or through the initiative or
referendum process, shall apply to the construction and operation of the Sign on the Property.
4.7. Fees and Exactions This Agreement shall not be construed to limit the
authority of City to:
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Page 61 of 82
a. Charge and impose fees and exactions, including, without
limitation, dedications, contributions, in lieu fees, reservations and any other fees or taxes
(including excise, construction or any other taxes) relating to development or the privilege of
developing the Property, including the Sign (the ` Exactions ") that are legal and authorized by the
Applicable Rules.
b. Charge application and processing fees in effect on a citywide
basis on the Effective Date as may be amended for land use approvals, building permits, and
other similar permits and entitlements, which fees are designed to reimburse the City's actual
expenses attributable to processing such applications, provided, however, said application and
processing fees shall not exceed the fees that are charged by the City generally to applicants, on a
non - discriminatory basis for similar approvals, permits, or entitlements granted by City; or
C. Impose or levy general or special taxes, including but not limited
to, property taxes, sales taxes, transient occupancy taxes, business taxes, which may be applied
to the Property or to businesses occupying the Property; provided, however, that the tax is of
general applicability Citywide and does not burden the Property disproportionately when
compared to the development of other institutional, residential, commercial, office or retail uses
within the City. Nothing in this Agreement prohibits the adoption and application of a special
tax approved by the City's voters, provided that such tax is imposed on a City wide basis.
5. Cooperation and Implementation The City agrees that it will cooperate in good
faith and fair dealing with the Vested Party to the fullest extent to implement this Agreement,
including the following:
5.1. Further Assurances; Covenant to Sign Documents Each Party shall take
all actions and do all things, and execute, with acknowledgment or affidavit, if required, any and
all documents and writings that may be necessary or proper to achieve the purposes and
objectives of this Agreement.
5.2. Reimbursement and Apportionment Although the Parties do not
contemplate a condition of a Future Approval requiring excess capacity or size of required
dedications or public facilities beyond that required by the Applicable Rules, nothing in this
Agreement precludes the City or the Vested Party from entering into any reimbursement
agreements for the portion (if any) of the cost of any dedications, public facilities and/or
infrastructure that the City may request of Vested Party.
5.3. Processing The City hereby agrees that it will accept from the Vested
Party for processing and review all applications for Future Approvals for construction of the Sign
on the Property in accordance with this Agreement, provided that said applications are submitted
in accordance with the Applicable Rules. To the fullest extent allowed by law, the City shall
process all applications filed in connection with the Sign as expeditiously as is commercially
reasonable and complete at the earliest commercially reasonable time all steps necessary for the
implementation of this Agreement and the construction of the Sign on the Property in accordance
with this Agreement and applicable law, including without limitation the Permit Streamlining
Act (Government Code Sections 65950 et seq.), including, but not limited to, the following:
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a. The processing of applications for and the issuance of all the
Future Approvals;
b. The holding of any required public hearings;
C. With respect to all applications for the issuance of all Future
Approvals, in particular ministerial approvals such as sign permits, grading plans, grading
permits, improvement permits, wall permits, building and electrical permits, encroachment
permits, temporary use permits, the City shall respond to the application in writing within thirty
(30) days after the application is submitted to the City; and
d. During the preparation of any drawings, plans, maps and related
documents, staff of the City and the Vested Party shall hold regular progress meetings as needed
to coordinate the preparation and review of such items, and the staff of the City and the Vested
Party shall communicate and consult informally as frequently as is necessary to ensure that the
formal submittal of any documents to the City can receive prompt and speedy attention.
5.4. No Revocation, Disaporovals No plan, permit, Future Approval adopted
in connection with this Agreement shall be revoked or subsequently disapproved once issued by
the City provided that the Sign is consistent with such approval. Any disapproval by the City
shall state in writing the reasons for such disapproval and the suggested actions to be taken in
order for approval to be granted. Any disapproval shall be without prejudice to the Vesting Party
re- submitting the application, with modifications as appropriate, directly to the City Council
without review by any subordinate person or body, including the Planning Commission. The
City Council shall promptly notice and conduct a hearing on the re-submitted application at their
next regularly scheduled or special meeting.
5.5. Defense of AgLe=ent .and Piocossine During Third Patty Litigat ion In
the event that a third party lawsuit relating to this Agreement is filed against the City or the
Vested Party, the Vested Party shall defend, indemnify and hold harmless the City at the Vested
Party's sole cost and expense. Vested Party may elect to terminate this Agreement as provided
by Section 6.3 provided, however, that the obligation set forth in this Section 5.5 shall survive
such termination. Subject to the Vested Party's compliance with the preceding obligation, such
lawsuit related to this Agreement shall not hinder, delay or stop the development, processing or
construction of the Sign, approval of Future Approvals unless the third party obtains a court
order preventing the activity and posts adequate security as required by law. The City shall not
stipulate to the issuance of any such order, and Vested Party, subject to its obligation herein, may
oppose such motion on behalf of the City. If this Agreement or any Applicable Rule as applied
to this Agreement is adjudicated or determined to be invalid or unenforceable, the City agrees,
subject to the City's lawful discretion and all other legal requirements, to consider all
modifications to this Agreement or the Applicable Rule which are necessary or required to
render it valid and enforceable to the extent permitted by applicable law on the condition that
Vested Party shall reimburse City for all costs and expense related thereto.5.6. State, Federal
or Case Law Where any state, federal or case law allows the City to exercise any discretion or
to take any action with respect to that law, the City shall, in an expeditious and timely manner, at
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the earliest possible time, (i) exercise its discretion in such a way as to be consistent with, and
carry out the terms of, this Agreement and (ii) take such other actions as may be necessary to
carry out in good faith the terms of this Agreement.
5.7. Processing Cooperation To the extent permitted by law, the City shall
cooperate with and assist the Vested Party in securing any and all entitlements, authorizations,
permits or approvals which may be required by any other governmental or quasi - governmental
entity in connection with the Sign. The City shall cooperate with the Vested Party in any
dealings with federal, state and other local governmental and quasi - governmental entities
concerning issues affecting the Sign. Without limiting the generality of the foregoing, the City
shall use its best commercially reasonable efforts to ensure that the actions taken and
requirements imposed by such governmental entities do not adversely impact the development of
Sign on the Property. The City shall keep the Vested Party informed with respect to its
communications with such agencies which could impact the Sign.
6. Compliance: Termination• Modifications and Amendments
6.1. Review of Compliance The City Council shall review pursuant to
Government Code Section 65865.1 this Development Agreement once each year, on or before
each anniversary of the Effective Date (" Periodic Review in order to review the extent of the
good faith substantial compliance by the Vested Party with the terms and provision of this
Agreement as well as the performance by the City of its obligations under this Agreement. At
the commencement of each Periodic Review, the City shall notify the Vested Party in writing
that said Periodic Review is or has been commenced. The Periodic Review shall cover only
those parcels of the Property owned by the Vested Party. The permitted transferor, if any, shall
be responsible for Periodic Review with respect to the transferred parcels in accordance with
Section 10 below.
a. Prima Facie Compliance During each Periodic Review, the City
Council may determine, in writing, that the Vested Party and the City are in prima facie
compliance with this Agreement. For purposes of this Agreement, the phrase " prima facie
compliance shall mean that the City and the Vested Party have acted in a commercially
reasonable manner (taking into account the circumstances which then exist) and in good faith in
attempting to adhere to the substance of this Agreement. Precise or technical adherence to each
term or provision of this Agreement shall not he required in order for a Party to be in prima facie
compliance; and the failure of any Party to agree with the City in connection with the
determination or implementation of any Future Approval shall not demonstrate a lack of prima
facie compliance.
b. Information to be Provided the Vested Party If the City Council
does not determine the Vested Party to be in prima facie compliance with this Agreement, the
City shall deliver to the Vested Party a copy of all documentation prepared in connection with
the Periodic Review which demonstrates that the Vested Party is not in prima facie compliance
with this Agreement in no event later than twenty (20) business days after the commencement of
the Periodic Review. The Vested Party shall be given a full and adequate opportunity to be
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heard before the City Council orally and in writing regarding its performance and, at its option,
the City's performance under this Agreement prior to the completion of the City Council's
Periodic Review. Within thirty (30) days of the submission by the Vested Party of its response,
or the hearing date, whichever is later, the City Council shall issue its Periodic Review statement
and may conclude that substantial compliance with this Agreement has been met.
C. Notice Of Non - Compliance; Cure Rights If at the completion of
any Periodic Review, the City Council reasonably concludes on the basis of substantial evidence
that (i) the Vested Party has not demonstrated that it is in prima facie compliance with this
Agreement, AND (ii) that the Vested Party is out of compliance with a specific substantive term
or provision of this Agreement, then the City Council may issue and deliver to the Vested Party a
written notice ( " Notice of Non - Compliance detailing the specific reasons for non - compliance
(including references to sections and provisions of this Agreement and the Applicable Rules
which allegedly have been breached) with a complete statement of all facts demonstrating such
non - compliance. That Party shall then have sixty (60) calendar days following receipt of the
Notice of Non - Compliance to cure said failure(s) or to provide evidence of Force Majeure as
defined in Section 16 hereof, provided, however, if any one or more of the item(s) of non-
compliance set forth in the Notice of Non - Compliance cannot reasonably be cured within said
sixty (60) -day period, then that Party shall not be in breach of this Agreement if it commences to
cure said item(s) within said sixty (60) -day period and diligently prosecutes said cure to
completion; provided, however such cure shall be completed within not more than one hundred
twenty (120) days, or such time as the parties mutually agree is appropriate for the type of cure at
issue.
d. Failure of Periodic Review The City's failure to review at least
annually compliance by the Vested Party with the terms and conditions of this Agreement shall
not constitute or be asserted by any Party as a breach by any other Party of this Agreement, or of
Vested Party's lack of compliance with this Agreement.
6.2. Termination of Development Agreement As To Breaching Party If the
Vested Party fails to timely cure any item(s) of non - compliance set forth in a Notice of Non -
Compliance, then the City shall have the right but not the obligation to initiate proceedings for
the purpose of terminating this Agreement in accordance with Government Code Section 65865.
If the City commences such termination proceedings, it shall give not less than thirty (30) days
prior written notice thereof to the Vested Party, which notice shall specify the Property and the
precise grounds for termination and shall set a date, time and place for a public hearing before
the City Council on the issue, all in compliance with the Development Agreement Statutes. At
the noticed public hearing, the Vested Party and/or its designated representative, shall be given
an opportunity to make a full and public presentation to the City. If, following the taking of
evidence and the hearing of testimony at said public hearing, the City finds, based upon
substantial evidence, that the Vested Party has not demonstrated prima facie compliance with
this Agreement and that the Vested Party is out of compliance with a specific, substantive term
or provision of this Agreement, then the City may (unless the Parties otherwise agree in
writing) terminate this Agreement.
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6.3. Termination of Development Agreement Notwithstanding the provisions
of Section 6.2, the Parties may mutually agree in writing to terminate the Agreement. For
example, it is the express intent of the parties to automatically terminate this Agreement if,
during the term of this Agreement, Vested Party submits written notice to City that it, or an
affiliated entity, no longer has a valid real property interest in the Property. In this event, it is the
parties' intention that this Agreement shall be deemed terminated as of the date Vested Party
delivers to City the written notice described herein. For purpose of this Agreement, the phrase
"affiliated entity" shall mean an entity which controls, is controlled by, or under common control
with Vested Party or is a partnership or joint venture involving Vested Party or one or more of
Vested Party's principals and in which Vested Party or its principals exercise operational
controls. In addition, it is the express intent of the parties to automatically terminate this
Agreement if Vested Party submits written notice to City that it is terminating this Agreement
due to the filing of any third party litigation relating to this Agreement.
6.4. Modification or Amendment of Development Agreement Subject to the
notice and hearing requirements of the Development Agreement Statutes, this Agreement may be
modified or amended from time to time only with the written consent of the Vested Party and the
City or their successors and assigns in accordance with the provisions of the LEMC and Sections
65867 and 65868 of the Government Code.
7. Operating Memoranda The provisions of this Agreement require a close degree
of cooperation between the City and the Vested Party. The construction process for the Sign and
subsequent operations may demonstrate that clarifications to this Agreement and the Applicable
Rules are appropriate with respect to the details of performance of the City and the Vested Party.
To the extent allowable by law, the Vested Party shall retain a certain degree of flexibility as
provided herein with respect to all matters, items and provisions covered in general under this
Agreement, except for those which relate to the (i) term or (ii) permitted uses. When and if the
Vested Party finds it necessary or appropriate to make changes, adjustments or clarifications to
matters, items or provisions not enumerated in (i) through (ii) above, the Parties shall effectuate
such changes, adjustments or clarifications through operating memoranda (the " Operating
Memoranda") approved by the Parties in writing which reference this Section 7. Operating
Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial
clarifications; therefore public notices and hearings shall not be required. The City Manager
shall be authorized, upon consultation with, and approval of, the Vested Party, to determine
whether a requested clarification may be effectuated pursuant to this Section or whether the
requested clarification is of such character to constitute an amendment to this Agreement which
requires compliance with the provisions of Section 6.4 above.
8. Term of Agreement This Agreement shall become operative and commence
upon the Effective Date. It shall remain in effect until five (5) years from and after the Effective
Date, unless this Agreement is terminated, modified, or extended upon mutual written consent of
the Parties hereto or as otherwise provided in this Agreement. Following the expiration or
termination of the term hereof, this Agreement shall be deemed terminated and of no further
force and effect; provided, such expiration or termination shall not automatically affect any right
or duty of the City or the Vested Party arising from City approvals or actions relating to the sign
14
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approved or issued prior to the expiration or termination of the term. The Parties acknowledge
and agree that the long -term operating covenants set forth in Section 3.7 shall survive
termination of this Agreement and shall remain in full force and effect until permanent removal
of the Sign.
9. Notice of Compliance
9.1. Request For Notice Within thirty (30) days following any written request
that the Vested Party may make from time to time, the City shall execute and deliver to the
Vested Party a written notice (" Notice of Compliance in recordable form, duly executed and
acknowledged by the City, that certifies:
a. That this Agreement is unmodified and in full force and effect and
is a binding obligation of the Parties, or if there have been modifications thereto, that this
Agreement is in full force and effect as modified and stating the date and nature of such
modifications;
b. That there are no current uncured defaults under this Agreement
or, if such are asserted, specifying the dates and nature of any such default;
C. That this Agreement has been terminated with respect to a parcel,
and such parcel has been released from this Agreement; and
d. Such other reasonable information requested by the Vested Party.
9.2. Failure To Deliver The failure of the City to deliver such a Notice of
Compliance within such time shall constitute a conclusive presumption against the City that this
Agreement is in full force and effect without modification except as may be represented by the
Vested Party and that there are no uncured defaults in the performance of the Vested Party,
except as may be represented by the Vested Party. The Vested Party shall have the right, at the
Vested Party's sole discretion, to record the Notice of Compliance. The City Manager shall be
authorized to execute, on behalf of the City, any Notice of Compliance requested by the Vested
Party.
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10. Transfers and Assignments The rights and obligations of Vested Party
hereunder shall not be assigned or transferred, except that on thirty (30) days written notice to
City, Vested Party, may assign all or a portion of Vested Party's rights and obligations
thereunder to any person or persons, partnership or corporation who purchases all or a portion of
Vested Party's right, title and interest in the Sign, provided such assignee or grantee assumes in
writing each and every obligation of Vested Party hereunder yet to be performed. The notice to
City shall include the identity of any such assignee, evidence of the assignee's right, title and
interest in the Sign and a copy of the written assumption of the assignor's obligations hereunder
pertaining to the portion assigned or transferred. After such notice and the receipt of such
consent, the assignor shall have no further obligations or liabilities hereunder.
11. Mortgagee Protection The Parties hereto agree that this Agreement shall not
prevent or limit the Vested Party, in any manner, at the Vested Party's sole discretion, from
encumbering the Sign or Property or any portion thereof or any improvements thereon by any
mortgage, deed of trust or other security device. The City acknowledges that the
lender(s) providing such financing may require certain Agreement interpretations and
modifications and agrees, upon request, from time to time, to meet with the Vested Party and
representatives of such lender(s) to negotiate in good faith any such request for interpretation or
modification. The City will not unreasonably withhold its consent to any such requested
interpretation or modification provided such interpretation or modification is consistent with the
intent and purposes of this Agreement.
12. Not a Public Dedication Except as otherwise expressly provided herein, nothing
herein contained shall be deemed to be a gift or dedication of either the Sign or the Property, or
any portion thereof, to the general public, for the general public, or for any public use or purpose
whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly
limited to and for the purposes herein expressed. The Vested Party shall have the right to
prevent or prohibit the use of the Sign, or any portion thereof, by any person for any purpose
inimical to the permitted uses. City shall not take or permit to be taken (if within the power or
authority of the City) any action or activity with respect to the Sign that would deprive the
Vested Party of the material benefits of this Agreement or would materially and unreasonably
interfere with the construction and use of the Sign on the Property as contemplated by this
Agreement.
13. Notices Except as provided otherwise in Section 3.7.c, all notices under this
Agreement shall be in writing and shall be deemed delivered when personally received by the
addressee, or within three (3) calendar days after deposit in the United States mail by registered
or certified mail, postage prepaid, return receipt requested, to the following parties and their
counsel at the addresses indicated below, provided, however, if any Party to this Agreement
delivers a notice or causes a notice to be delivered to any other Party to this Agreement, a
duplicate of that notice shall be concurrently delivered to each other Party and their respective
counsel.
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To City:
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attention: City Manager
With a Copy to:
Barbara Zeid Leibold
Leibold McClendon & Mann, P.C.
23422 Mill Creek Drive, Suite 105
Laguna Hills, CA 92653
To the Vested Party:
General Outdoor Advertising
632 S. Hope Avenue
Ontario, CA 91761
With a Copy to
William J. Ward
Ward & Ward
685 E. Carnegie Drive, Suite 140
San Bernardino, CA 92408
Notice given in any other manner shall be effective when received by the addressee. The
addresses for notices maybe changed by notice given in accordance with this provision.
14. Severability and Termination If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this
Agreement is superseded or rendered unenforceable according to any law which becomes
effective after the Effective Date, the Vested Party may elect either (i) to have the remaining
provisions of this Agreement remain in full force and effect and continue to be binding on both
Parties, (ii) to propose an amendment of this Agreement, subject to the mutual consent of the
Parties, or (iii) to declare that this Agreement shall become null and void as to all obligations
then remaining unperformed and that this Agreement shall be terminated.
15. Time of Essence Time is of the essence for each provision of this Agreement of
which time is an element.
16. Force Majeure Changed conditions, changes in local, state or federal laws or
regulations, floods, earthquakes, delays due to strikes or other labor problems, acts of any third
party, moratoria enacted by governmental entities or agencies other than the City, injunctions
issued by any court of competent jurisdiction, the inability to obtain materials, civil commotion,
fire, invasion, acts of God, or other circumstances which substantially interfere with the
construction of and operation of the sign, or which substantially interfere with the ability of any
of the Parties to perform its obligations under this Agreement shall collectively be referred to as
" Events of Force Maieure Each Party shall promptly notify the other Party to this Agreement
upon learning of any such Event of Force Majeure. If any Party to this Agreement is prevented
by an Event or Events of Force Majeure from performing its obligations under this Agreemert,
then on the condition that the Party claiming the benefit of said Event(s) of Force Majeure (i) did
17
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not cause said Event(s) and (ii) said Event(s) was beyond said Party's reasonable control, the
time for performance by said Party of its obligations under this Agreement and the term shall be
extended by a number of days equal to the number of days that said Event(s) of Force Majeure
continued in effect, or by the number of days it takes to repair or restore the damage caused by
said Event(s) to the condition which existed prior to the occurrence of said Event(s), whichever
is longer, or longer as the Parties may mutually agree. An Event of Force Majeure shall not
include economic or market conditions.
17. Waiver No waiver of any provision of this Agreement shall be effective unless
in writing and signed by a duly authorized representative of the Party against whom enforcement
of such waiver is sought.
18. No Third Party Beneficiaries This Agreement is made and entered into for the
sole protection and benefit of the Vested Party and the City and their successors and assigns. No
other person shall have any right of action based upon any provision of this Agreement.
19. Attorneys' Fees If any Party commences any action for the interpretation,
enforcement, termination, cancellation or rescission of this Agreement, or for specific
performance for the breach hereof, the prevailing Party shall be entitled to its reasonable
attorneys' fees, litigation expenses and costs. Attorneys' fees under this Section shall include
attorneys' fees on any appeal as well as any attorneys' fees incurred in any post judgment
proceedings to collect or enforce the judgment.
20. Incorporation of Exhibits The following exhibits which are part of this
Agreement are attached hereto and each of which is incorporated herein by this reference as
though set forth in full:
Exhibit "A" -- Property Legal Description
Exhibit `B" -- Sign Construction Drawing
21. Authority to Ba ccute:> Binding_. Effect The City and the Vested Party each
represents and warrants that it has the power and authority to execute this Agreement and, once
executed, this Agreement shall be final and binding on the Parties. The Parties represent that the
signatories to this Agreement are duly authorized to sign on behalf of the respective Party and
bind such Party.
22. Entire Agreement; Conflicts This Agreement represents the entire understanding
and agreement of the Parties. This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements
between the Parties with respect to all or any part of the subject matter hereof. Should any or all
of the provisions of this Agreement be found to be in conflict with any other provision or
provisions found in the Applicable Rules, then the provisions of this Agreement shall prevail.
There are no oral or written representations, understandings, or ancillary covenants, undertakings
or agreements which are not expressly contained 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.
18
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23. Counterparts The Parties may execute this Agreement on separate signature
pages which, when attached hereto, shall constitute one complete Agreement.
24. Applicable Law This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
25. Further Actions Each Party shall cooperate with and provide reasonable
assistance to the other Party to the extent contemplated 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 or desirable under the terms of this Agreement
or to evidence or consummate the transactions contemplated by this Agreement.
26. Recording The City Clerk shall cause a copy of this Agreement (including all
Exhibits) to be executed by the City and recorded with the Office of the County Recorder of
Riverside County, California within ten (10) days after passage by the City Council of the
Ordinance.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties have each executed this Agreement as of the date
first written above.
CITY OF LAKE ELSINORE,
a California municipal corporation
Its:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
SAN DIEGO OUTDOOR ADVERTISING,
INC., a California corporation dba GENERAL
OUTDOOR ADVERTISING
By:
Its:
By:
Its:
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EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
[To Be Attached]
Exhibit "A"
Page 73 of 82
EXHIBIT "B"
SIGN - CONSTRUCTION DRAWINGS
[To Be Attached and to include both design and location with approved setbacks]
Exhibit `B"
Page 74 of 82
632 S. HOPE AVE., ONTARIO, CALIFORNIA 91761 -1823
(909) 983 -4414 • FAX (909) 983 -7579
Property Owner:
DCH Corporation
955 Route 9 North
South Amboy, NJ 08879
Vacant
Cell
Parcel Information:
APN 377- 330 -011 -3
Size: 0.77 Acres
Thomas Bros Map Pg. 866 G -5
Vacant
Contact:
Tim Lynch
(General Outdoor Advertising)
909 - 983 -4414
Applicant:
General Outdoor Advertising
632 S. Hope Ave.
Ontario, CA 91761
Closed Landfill
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Vacant
Lake
Chevrolet
Califomla State Contractors License #292643
Page 75 of 82
632 S. HOPE AVE., ONTARIO, CALIFORNIA 91761 -1823
(909) 983 -4414 • FAX (909) 983 -7579
r.
Parcel Information:
APN 377 - 330 -011 -3
C -2 Zone
Size: 0.77 Acres
Thomas Bros Map Pg. 866 G -5
Top Structure
Cell TowerU�
Edison Power Pole
Likely Edison Service
Support Column
Likely Construction! Service
Access Route From Street
California State Contractors License #292643
Page 76 of 82
Page 77 of 82
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Page 78 of 82
632 S. HOPE AVE., ONTARIO, CALIFORNIA 91761 -1823
(909) 983 -4414 • FAX (909) 983 -7579
Property Owner:
DCH Corporation
955 Route 9 North
South Amboy, NJ 08879
Parcel information:
APN 377 - 330 -011 -3
Size: 0.77 Acres
Thomas Bros Map Pg. 866 G -5
Applicant:
General Outdoor Advertising
632 S. Hope Ave.
Ontario, CA 91761
Contact:
Tim Lynch
(General Outdoor Advertising)
909 - 983 -4414
Closed Landfill
califomia State Contractors Cleanse #292643
Page 79 of 82
632 S. HOPE AVE., ONTARIO, CALIFORNIA 91761 -1823
(909) 983 -4414 • FAX (909) 983 -7579
Parcel Information:
APN 377 - 330 -011 -3
C -2 Zone
Size: 0.77 Acres
Thomas Bros Map Pg. 866 G -5
Cell Tower.A&L u4 ' r(y FrtaArt
Edison Power Pole
Likely Edison Service Feed
Structure
Support Column
Likely Construction / Service
Access Route From Street
` Californla State Contractors License #292643 -
Page 80 of 82
Page 81 of 82
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