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HomeMy WebLinkAbout2008 CON CDC CBS Outdoor - Signage ProgramEXCLUSIVE NEGOTIATION AGREEMENT BY AND BETWEEN COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ANI) CBS OUTDOOR THIS EXCLUSIVE NEGOTIATING AGREEMENT (the "Agreement') is entered in this 17`h day of June 2008, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic (the "Agency"), and CBS OUTDOOR, INC., a Delaware corporation (the "Contractor"), on the terms and provisions set forth below. RECITALS WHEREAS, on May 1, 2007, the City Council of the City of National City (the "City") adopted the City's 5-Year Strategic Plan; WHEREAS, The City's 5-Year Strategic Plan 8b sets out to Update the City's Comprehensive Signage Program; and WHEREAS, the purpose of the Comprehensive Signage Program is to modernize the City's image, promote the City's assets, add value to the City's Urban Landscape, and stimulate economic investment; and WHEREAS, the Contractor is interested in developing a Comprehensive Signage Program (the "Project" for the City of National City; and WHEREAS, the Agency and the Contractor desire to enter into this Agreement to initiate exclusive negotiations during a 150 day period commencing on the effective date of this Agreement until November 13, 2008 (the "Negotiation Period") for the purposes of (i) undertaking due diligence activities regarding the Project; (ii) designing the Project; (iii) negotiating the responsibilities, schedule, and financial parameters for development of the Project; (iv) preparing studies which may be required for Project implementation; (v) processing Project entitlements; and (vi) negotiating and drafting an agreement with relevant parties/ agencies in connection with the Project. NOW, THEREFORE, in consideration of the recitals and mutual covenants and conditions contained herein, the parties hereto agree as follows: ARTICLE I SITE The Project Area constitutes City of National City's Redevelopment Project Area. The exact project locations of the Project Area will be determined during the Project Area planning activities outlined below. The Project Area is depicted on Exhibit "A", which is attached hereto and incorporated herein by this reference. ARTICLE II NEGOTIATION PERIOD 2.1. Comprehensive Signage Program Development /Due Diligence The Negotiation Period shall commence upon the date Agency approves and executes this Agreement (the "Commencement Date") and proceed for a period of 150 days. During the first sixty (60) days of the Negotiation Period (the 'First Due Diligence Period"), the parties agree to negotiate in good faith to formulate the plan for development of the Project (the "Comprehensive Signage Program"') and conduct due diligence activities. The Comprehensive Signage Program shall include and delineate the following elements: (a) A preliminary Project plan; (b) The interface of a phased development with the complete build out/ implementation of the Comprehensive Signage Program; (c) Required on and off -site infrastructure improvements; (d) Project, infrastructure, and state and local regulatory requirement costs; (e) Funding responsibilities and sources for development of the Project; (f) business community; (g) development activities; and Possible participation by one or more residents or members of the The parties/entities responsible for the various Project (h) A detailed Comprehensive Signage Program Proposal and implementation schedule. During the First Due Diligence Period, the Agency and Contractor, as applicable, shall conduct their respective due diligence activities, including, but not limited to: (i) Contractor's timely delivery and submission to Agency of sufficient evidence that the Contractor has the required experience to complete the Project; (j) Contractor's timely review of preliminary signage inventory report prepared for the Project; (k) Contractor's timely investigation of the Project Area; (1) Contractor to address all legal, financial and appropriateness issues surrounding the proposed Comprehensive Signage Program; 2 (m) Agency, with contractor's assistance, to resolve any and all issues pertaining to signage location, procedures, revenue and, to the extent legally permissible, messaging content, consistent with the City's Sign Ordinance (Chapter 18.62 of the National City Municipal Code), State of Calitbrnia requirements, CAI; TRANS regulations, pending Legislation (AB830), property ownership and signage placement, National City Redevelopment Plan requirements, CA Outdoor Advertising Act, appropriate approvals from the City's Building & Safety, Planning, and Engineering Departments; (n) Agency, with contractor's assistance, to coordinate, as appropriate, with existing freeway signage owners such as the Mile of Cars Business Association, and the Chamber of Commerce; and (o) Contractor's timely submission of the specific project locations for the Comprehensive Signage Program to the CDC for review and comment. 2.2. Assessments! Review! Entitlements Upon the close of the First Due Diligence Period, the Agency agrees to negotiate exclusively with the Contractor for the remaining term of the Negotiation Period (the "Second Due Diligence Period") in order to finalize the Comprehensive Signage Program Agreement. During the Second Due Diligence Period, the Contractor shall (i) submit a refined Comprehensive Signage Program Plan which shall consist of signage types and locations, preliminary concept drawings and schematics clearly showing signage footprints, elevations, design theme, preliminary landscaping, signage lighting, vehicular and pedestrian access ways and exits, and other factors fully descriptive of the proposed project, all to scale; and (ii) prepare and begin processing with the City the environmental studies, as necessary, and land use entitlements necessary for development of the Project, including, without limitation, an amendment to the City's Sign Ordinance, zoning amendment(s), as appropriate. The Agency staff and the Contractor shall work cooperatively before the Planning Commission and City Council in any applications for land use permits and in any Zoning Ordinance amendments that may be required. The Contractor shall supply all information to the Agency and to the City of National City, and shall process all documents necessary to satisfy requirements of CALTRANS, the City's Sign Ordinance, and any other legal entities, if necessary. If, at the close of the Negotiation Period, the Contractor has not executed and submitted a Comprehensive Signage Program Agreement to the Agency, this Agreement shall automatically terminate unless the Negotiation Period has been mutually extended in writing for up to an additional one hundred and twenty (120) days by the Agency's Executive Director, in his or her sole discretion, and Contractor. 2.3. Execution of Comprehensive Signage Agreement Upon submittal of the executed Comprehensive Signage Program by the Contractor to the Agency, and provided that all environmental and entitlement applications necessary for the Project have been submitted by Contractor to the City, the Negotiation Period shall be extended for an additional sixty (60) days ("Third Due Diligence Period) to enable the Agency and the City to: 3 Process environmental and entitlement applications through the City's Planning Commission and City Council. The Agency agrees that during the Negotiation Period, the Agency shall not negotiate or enter into an agreement with any other person or entity regarding development of the Comprehensive Signage Program. The obligation to negotiate in good faith requires the respective parties to communicate with each other with respect to those issues for which agreement has not been reached, and in such communication to follow reasonable negotiation procedures, including meetings, telephone conversations, and correspondence. The parties understand that final accord on all issues may not be reached. It is also understood that (1) neither party is under any obligation to reach agreement on the Project area and that (2) each party reserves the right to approve or reject a Comprehensive Signage Program Agreement, the Project, or any disposition of the Project Area in its sole discretion, as more particularly set forth in Part IV of this Agreement. 2.3 Agency and Contractor Obligations During the Negotiation Period, Agency and Contractor obligations shall include, but not be limited to, the following: (a) Agency Obligations (i) Negotiate through its staff exclusively with Contractor in connection with the development of the Project Area and Comprehensive Signage Program; (ii) Review the Project plans and determine consistency with the General Plan, City's Sign Ordinance, CALTRANS and local zoning and other relevant land use regulations on the proposed Project Area; (iii) Provide the Contractor with documents in Agency's possession that would assist the Contractor with the clue diligence activities described in this Agreement; (iv) Upon Agency's acceptance of the Comprehensive Signage Program and completion of CEQA requirements, Agency and Contractor shall negotiate and enter into a Comprehensive Signage Program Agreement. (b) Contractor Obligations (i) Use its best efforts to investigate the Project Area; (ii) Submit the Comprehensive Signage Program, including specific signage locations, elevations, schematic drawings, detailed Project costs, Project proformas for individual product types as well as a pro forma summarizing the total Project and respective returns and other documents necessary for Agency and City review; (iii) Coordinate the Project with the community way finding signage improvements planned for the City; 4 ARTICLE III RETENTION OF DISCRETION TO APPROVE TILE PROJECT AND COMPREHENSIVE SIGNAGE PROGRAM AGREEMENT; NO PRE-CONLVIITMENT It is anticipated that the Comprehensive Signage Program Project and the Comprehensive Signage Program Agreement providing for its implementation will be presented to the Agency Board for approval. The parties understand that the Agency is reserving the right to exercise its discretion as to all matters which it is, by law, entitled or required to exercise its discretion, including, but not limited to the following: 3.1. Approval by the Agency of the Final Project as Contained in the Comprehensive Signage Program Agreement The parties understand that the Agency has the complete and unfettered discretion to reject the Project Area and/or Comprehensive Signage Program Agreement without explanation or cause. The risk of loss of all processing, design and developmental costs incurred by the Contractor prior to the Comprehensive Signage Program Agreement approval and execution shall be absorbed entirely by Contractor. 3.2. Review and Approval by the Agency of all Discretionary Findings and Conclusions "I'he decision by each of the Agency and Contractor to enter into the Comprehensive Signage Program Agreement shall be conditioned upon the successful review and approval of all necessary findings and conclusions which the Agency Board is required to make, including all necessary findings and determinations required under CEQA, state and local land use provisions, and the California Community Redevelopment Law. As to any matter regarding which the Agency may be required to exercise its discretion in approving and executing the Comprehensive Signage Program, neither anything herein, nor to be contained in the Comprehensive Signage Program Agreement shall obligate the Agency to exercise its discretion in any particular manner, and any exercise of discretion reserved hereunder or required by law, shall not be deemed to constitute a breach of Agency duties under this Agreement. 3.3. No Pre -Commitment by Agency By its execution of this Agreement, the Agency is not committing itself or agreeing to undertake any activity requiring the subsequent exercise of discretion by the Agency, or any department thereof, including, but not limited to, the approval and execution of a Comprehensive Signage Program Agreement; the proposal, amendment, or approval of any land use regulation governing the Project Area; the provision of financial assistance for the development of any public or private interest in real property; the authorization or obligation to use the Agency's eminent domain authority; or any other such activity. This Agreement does not constitute a disposition of property or exercise of control over property by the Agency. Agency execution of this Agreement is merely an 5 agreement to enter into a period of' exclusive negotiations according to the terms hereof, reserving final discretion and approval by each of the Agency and the Contractor as to any proposed Comprehensive Signage Program Agreement and all proceedings and decisions in connection therewith. ARTICLE IV TIIE CONTRACTOR 4.1. Contractor Experience As a condition precedent to Agency' s execution of this Agreement, Contractor shall have submitted to Agency a detailed description of the project experience of the Contractor and its principals, associates, employees, partners, and joint venturers. 4.2. Offices of the Contractor The principal offices of Contractor are located at: CBS OUTDOOR Attention: John R Clements, Executive Vice President Real Estate/ Acquisitions 3150 South 48th Street, Suite 200 Phoenix, AZ, 85040 The Contractor's project manager will be Steve Chatham or another project manager to be named prior to execution of the Comprehensive Signage Program Agreement by the Contractor. Other prime Contractors, employees, consultants, or representatives who are proposed to be directly involved in the Project will be determined by Contractor and submitted to Agency upon any such determination. 4.3. Full Disclosure The Contractor shall maintain full disclosure to the Agency of its principals, officers, stockholders, partners, joint ventures, and all other pertinent information concerning the Contractor. 4.4. Assignment The Contractor without prior written approval of the Agency may not assign this Agreement. The Agency agrees that, notwithstanding the foregoing, the Contractor may assign its rights under this Agreement to a corporation, trust, or partnership of which the Contractor owns the majority beneficial interest and operational control. ARTICLE V (:ENERAI. PROVISIONS 5.1. Applicable Law 6 The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 5.2. Acceptance of Service of Process In the event that any legal action is commenced by Contractor against Agency, service of process on Agency shall be made by personal service upon the Executive Director or Secretary of Agency, or in such other manner as may be provided by law. In the event that any legal action is commenced by Agency against Contractor, service of process on Contractor shall be made by personal service upon Contractor or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. 5.3. Rights and Remedies are Cumulative Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 5.4. Attorney's Fees If either party to this Agreement initiates or defends litigation in any way connected with this Agreement, the prevailing party in such litigation, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to its actual and reasonable attorney's fees. As used herein, the term "attorney's fees" shall include attorney's fees incurred related to the foregoing described litigation and for any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, retaining expert witnesses, taking depositions and discovery, and all other necessary costs incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 5.5. Termination Rights Notwithstanding the nominal Negotiation Period hereinabove set forth, either party may terminate this Agreement if the other party has materially defaulted in its obligations herein set forth, and the terminating party has provided the defaulting party with written notification of such determination, and the defaulting party has refused to cure same. The written notification shall set forth the nature of the actions required to cure such default if curable. The defaulting party shall have thirty (30) clays from the date of the written notification to cure such default. If such default is not cured within the thirty (30) days, the termination shall be deemed effective. For purposes of this paragraph, the parties hereby acknowledge that time is of the essence. Each party shall also have the right to terminate this Agreement in the event that (a) Agency or Contractor determines that the Project is infeasible, based on financial or environmental impact considerations, or not in the public interest; or (h) the parties reach an impasse in their negotiation of the Comprehensive Signage Program Agreement. 5.6. Indemnity 7 Contractor shall indemnify, protect, defend and hold harmless Agency and City and Agency's and City's respective elected officials, officers, employees, representatives, members, and agents from and against any and all challenges to this Agreement, and any and all losses, liabilities, damages, claims or costs (including attorneys' fees) arising from Contractor's negligent acts, errors, or omissions with respect to its obligations hereunder, excluding any such losses arising from the sole negligence or sole willful misconduct of the Agency or the conduct of third parties outside the control of the Contractor. This indemnity obligation in connection with events occurring prior to the termination of this Agreement shall survive the termination of this Agreement. 5.7. Notices, Demands and Communications Between the Parties Formal notices, demands, and communications between Agency and Contractor shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) or by mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To Agency: With copy to: To Contractor: Brad Raulston, Executive Director Community Development Commission of National City 1243 National City Blvd. National City, CA 91950 George H. Eiser, III, City/CDC Attorney 1243 National City Blvd. National City, CA 91950 John R Clements, Executive Vice President Real Estate/ Acquisitions CBS Outdoor 3150 South 48'h Street, Suite 200 Phoenix, AZ, 85040 Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. 5.8. Nonliability of City and Agency Officials and Employees No member, official, employee, or contractor of City or Agency shall be personally liable to Contractor in the event of any default or breach by Agency or for any amount, which may become due to Contractor or on any obligations under the terms of the Agreement. 5.9. Interpretation 8 The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The part and paragraph headings used in this Agreement are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. 5.10. Entire Agreement, Waivers, and Amendments 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. All waivers of the provisions of this Agreement must he in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of Agency and Contractor. 5.11. Counterparts This Agreement may be executed in counterparts, each of which, after all the parties hereto have signed this Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 5.12. Successors; Assignment This Agreement shall be binding upon and shall inure to the benefit of the permitted successors of each of the parties hereto. This Agreement shall not be assigned by Contractor without the prior written consent of Agency. 5.13. Severabi l ity In the event any section or portion of this Agreement shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the parties as to all provisions set forth in this Agreement. 5.14. Time is of the Essence Time is of the essence for each of the parties' obligations under this Agreement. 5.15. Confidentiality Contractor acknowledges and agrees that Agency is a public entity with a responsibility and, in many cases, legal obligation to conduct its business in a manner open and available to the public. Accordingly, any information provided by Contractor to Agency with respect to the Site, the Project or Contractor may be disclosed to the public either purposely, inadvertently, or as a result of a public demand or order. With respect to any information provided that Contractor reasonably deems and identifies in writing as proprietary and confidential in nature, Agency agrees to exercise its best efforts to keep such information confidential. 9 IN WITNESS WHEREOF, the Agency and the Contractor have signed this Agreement on the respective dates set forth below. AGENCY: COMMUNITY DEVELOPMENT COMMISSION OF TH$k: CITY OF NATIONAL CITY on Morrison, Chairman ATTEST: APPROVED AS TO FORM: George II. Eiser, III Legal Counsel Dated: L140 8 CONTRACTOR: CBS OUTDO Jo ffr► Clements, Executive Vice President, Real Estate/ Acquisitions Steve Chatham, Vice President Transit/Real Estate Dated: 40( < O (O g 10 EXHIBIT "A" REDEVELOPMENT PROJECT AREA RESOLUTION NO. 2008 — 122 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN EXCLUSIVE NEGOTIATING AGREEMENT WITH CBS OUTDOOR REGARDING THE CITY'S COMPREHENSIVE SIGNAGE PROGRAM WHEREAS, the City of National City's 5-Year Strategic Plan 8b and 2 set out to Update the City's Comprehensive Signage Program and attain Fiscal Sustainability, respectively; and WHEREAS, the City is exploring electronic message boards to modernize existing signage, integrate the City's branding efforts, and create additional revenue opportunities; and WHEREAS, updating the City's signage will help to modernize the City's image, promote the City's assets, add value to the City's urban landscape, and stimulate economic investment into the City; and WHEREAS, On April 24, 2008, the CDC issued a Request for Qualifications (RFQ) to solicit proposals from outdoor signage firms for the City's Comprehensive Signage Program; and WHEREAS, the purpose of the RFQ was to select a qualified firm to Enter into an Exclusive Negotiating Agreement (ENA) with the CDC for 150 days for presenting a proposal advantageous to the City for the Comprehensive Signage Program; and WHEREAS, a City Review Committee and Ad Hoc Committee evaluated the RFQ submittals based on criteria identified in the RFQ document; and WHEREAS, based on a comprehensive evaluation of the RFQ submittals, staff recommends entering into an ENA with CBS Outdoor; and WHEREAS, CBS Outdoor was selected based on the company's assessed ability to fully deliver on the scope of services as identified in the RFQ document and on its extensive experience with outdoor signage. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute the Exclusive Negotiating Agreement with CBS Outdoor regarding the City's Comprehensive Signage Program. Said Exclusive Negotiating Agreement is on file in the office of the City Clerk. --- Signature Page to Follow -- Resolution No. 2008 — 122 June 17, 2008 Page 2 PASSED and ADOPTED this 17th day of June,, on Morrison, Chairman ATTEST: Brad R APPROVED AS TO FORM: George H. Eiser, Ill Legal Counsel Passed and adopted by the Community Development Commission of the City of National City, California, on June 17, 2008, by the following vote, to -wit: Ayes: Commissioners Morrison, Parra, Ungab, Zarate. Nays: None. Absent: Commissioner Natividad. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission Secretary, velopment Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2008-122 of the Community Development Commission of the City of National City, California, passed and adopted on June 17, 2008. Secretary, Community Development Commission By: Deputy Coy . Yt • v i City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE June 17, 2008 29 AGENDA ITEM NO. ITEM TITLE A RESOLUTION OF TIIE COMMUNITY DEVELOPMENT COMMISSION OF TIIE CITY OF NATIONAL CITY (CDC) APPROVING AN EXCLUSIVE NEGOTIATING AGREEMENT WITH CBS OUTDOOR REGARDING THE CITY'S COMPREHENSIVE SIGNAGE PROGRAM AND AUTHORIZING THE Cf [AIRMAN TO EXECUTE THE AGREEMENT PREPARED BY DEPARTMENT Jacqueline Reynoso Economic Development Community Development Coordinator Strategic Action Plan 8b and 2 EXPLANATION As part of the City of National City's 5-Year Strategic Plan 8b to Update the City's Comprehensive Signage Program and to attain Fiscal Sustainability (Strategic Action Plan 2), the City is exploring electronic message boards to modernize existing signage, integrate the City's branding efforts, and create additional revenue opportunities. One possible opportunity for additional revenue may be from electronic freeway signage, other off -site signage, and other signage opportunities (i.e. bus shelters). On April 24, 2008, the CDC issued a Request for Qualifications (RFQ) to solicit proposals from outdoor signage firms for the City's Comprehensive Signage Program. The purpose of the RFQ is to select a qualified firm to enter into an Exclusive Negotiating Agreement (ENA) with the CDC for 150 days for presenting a proposal advantageous to the City for the Comprehensive Signage Program. Based on a comprehensive evaluation of the RFQ submittals, the City's review committee and dHOC committee, including stakeholders, recommend entering into an ENA with CBS Outdoor. Environmental Review n/a Financial Statement n/a Account No S STAFF RECOMMENDATION Adopt the resolution and authorize the Chairman to enter into an ENA with CBS Outdoor, and approve prospective proposals from American Outdoor Advertising and Media Management as secondary and tertiary options, respectively. BOARD / COMMISSION RECOMMENDATION n/a ATTACHMENTS 1. Staff Report 2. RFQ for Comprehensive Signage Program 3. ENA with CBS Outdoor J Resolution No. City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 June 25, 2008 Mr. John Clements Executive Vice President CBS Outdoor, Inc. 3150 South 48th Street, Suite 200 Phoenix, AZ 85040 Dear Mr. Clements, On June 17th, 2008, Resolution No. 2008-122 was passed and adopted by the Community Development Commission of the City of National City, executing an Exclusive Negotiation Agreement with CBS Outdoor, Inc. We are enclosing for your records a certified copy of the above Resolution and a fully executed original Agreement. Sincerely, ichael R. Dalla, CMC City Clerk Enclosures cc: Community Development Commission ® Recycled Paper