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HomeMy WebLinkAboutORD 02 (2026)ORDINANCE NO. 02 (2026) AN ORDINANCE OF THE CITY OF DIAMOND BAR APPROVING DEVELOPMENT AGREEMENT NO. 2026=01, FOR PROPERTY COMPRISED OF APPROXIMATELY 6.08 ACRES LOCATED AT 880 SOUTH LEMON AVENUE, WALNUT, CALIFORNIA WITHIN THE JURISDICTIONAL BOUNDARIES OF THE CITY OF DIAMOND BAR (ASSESSOR'S PARCEL NUMBER 8760-015=901). WHEREAS, the property owner/co-applicant, Walnut Valley School District ("WVUSD"), and its lessee /co -applicant, Evergreen Media, LLC, ("Evergreen") entered into an Outdoor Advertising Lease Agreement dated February 15, 2023, to construct and operate a new double sided electronic billboard on a portion of the property located at 880 S. Lemon Street, ground leased to Evergreen; and WHEREAS, WVUSD and Evergreen have submitted an application with the City for approval of: the Development Agreement governing the operation and community benefits for the electronic billboard; a Development Code Amendment to allow billboards in the I (Light Industry) zone by Conditional Use Permit, and to establish development standards for billboards; a Conditional Use Permit to authorize the billboard on the property; and Development Review for sign architecture, materials, and placement of the billboard on the property; and WHEREAS, the billboard would be placed within an approximately 100-square- foot base area at the southwest corner of the 6.08-acre parcel, occupying roughly 1,500 square feet of airspace above the base. The proposed structure would be approximately 97 feet in total height, consisting of a 90400t sign with up to 7 feet of decorative architectural features. Each sign face would measure 14 feet high by 48 feet wide and display static images that change every eight seconds. Project work includes foundation excavation, installation of the monopole and superstructure, underground electrical trenching to connect to WVUSD or SCE service, removal of two pine trees along South Lemon Avenue with replacement planting of two 24-inch box crape myrtles, and minor landscape enhancements along the SR-60 frontage. The Project site's General Plan designation is School (S) and the zoning is Light Industry (1); and WHEREAS, on November 25, 2025, the Planning Commission held a duly noticed public hearing regarding proposed amendments to Title 22 ("Development Code") of the Diamond Bar City Code pertaining to billboards, Planning Case No. PL 202440, and adopted Resolution No. 2025-20, recommending City Council approval of said Development Agreement; and WHEREAS, on December 5, 2025, notification of the City Council public hearing for this project was published in the San Gabriel Valley Tribune. Public hearing notices were mailed to property owners within a 1000400t radius of the project site and notices were posted at the City's designated community posting sites; and Ordinance No. 02 (2026) WHEREAS, on December 16, 2025, the City Council held a duly noticed public hearing regarding Development Agreement No. 2026-01; and WHEREAS, pursuant to Government Code Section 65864, et seq., the City is authorized to enter into development agreements with persons having legal or equitable interests in real property located within the City; and WHEREAS, pursuant to Development Code Section 22.62 and Government Code Section 65865, the City has adopted rules and regulations for consideration of development agreements; and WHEREAS, the City is entering into a Development Agreement with the WVUSD for the purpose of establishing an agreement between the City and WVUSD setting forth obligations and benefits to the respective parties; and WHEREAS, the City Council finds that this Ordinance is subject to the California Environmental Quality Act ("CEQA") because it can be seen with certainty that the proposed Development Code Amendment will result in a project that has the potential for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA Guidelines). Environmental review for the proposed project has been conducted pursuant to CEQA, and a Mitigated Negative Declaration (MND) has been prepared, circulated, and reviewed in accordance with CEQA Section 15070 and the CEQA Guidelines Section 15105. The MND determined that, with implementation of the identified mitigation measures, the project will not have a significant effect on the environment. Therefore, the City Council finds that adoption of this Ordinance is consistent with the conclusions of the MND; and WHEREAS, the documents and materials constituting the administrative record of the proceedings upon which the City's decision is based are located at the City of Diamond Bar, Community Development Department, Planning Division, 21810 Copley Drive, Diamond Bar, CA 91765; and WHEREAS, the City Council hereby adopts the facts and reasons stated in Planning Commission Resolution No. 2025-20 recommending City Council approval of said Development Agreement, a copy of which is on file with the City Clerk and which is incorporated herein by reference with the same force and effect as if set forth in full. NOW, THEREFORE, the City Council of the City of Diamond Bar does hereby find, determine and ordains as follows: SECTION 1: The City Council hereby finds that the facts set forth in the Recitals of this Ordinance are true and correct. SECTION 2: Incompliance with CEQA, the City Council approved the initial study and Mitigated Negative Declaration and mitigation reporting and monitoring program for the project. Ordinance No. 02 k2026) Exhibit A Development Agreement No. 2026=01 [Attached] 5 Ordinance No. 02 (2026) SECTION 3: In accordance with the Development Code, Section 22.62.030(e) of the Diamond Bar City Code, the City Council makes the following findings of fact regarding Development Agreement 202&01: (a) The Development Agreement, attached hereto as Exhibit 1, would be in the best interests of the City; is consistent with the General Plan, and the Development Code; and would promote the public interest and welfare of the city; (b) The Development Agreement is in compliance with the conditions, requirements, restrictions, and terms of Development Code Sections 22.62.030(d) and 22.62.040, because the agreement contains all the mandatory provisions and permissive content required by Government Code Section 65865.2; SECTION 4: The City Manager is hereby authorized to execute the Development Agreement; SECTION 5: The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause a certified copy of this Ordinance to be posted within fifteen (15) days after this Ordinance is passed and adopted, in the Office of the City Clerk and two additional public places, together with the vote for and against the same, and forthwith transmit a certified copy of this Ordinance, by certified mail, to: Walnut Valley Unified School District, 880 South Lemon Avenue, Walnut, CA 91789. APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Diamond Bar on the 20th day of January, 2026. CITY OF DIAMOND BAR Steve Tye, Mayor ATTEST: I, Kristina Santana, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Ordinance was duly introduced at a regular meeting of the City Council of the City of Diamond Bar held on the 16th day of December, 2025, and was finally passed at a regular meeting of the City Council of the City of Diamond Bar held on the 20th day of January, 2026, by the following vote: AYES: Councilmembers: NOES: Councilmembers: Chou, Liu, Teng, M/Tye None M PT/Low None Kristina Santana, City Clerk 3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk's Office City of Diamond Bar 21810 Copley Drive Diamond Bar, CA 91765 APN: Portion of 8760-015-901 (Space above for Recorder) This document is exempt from payment of a recording fee pursuant to Govt. Code §§ 6103 & 21383. Dated: THIS DEVELOPMENT AGREEMENT (AGREEMENT") is December, 2025, by the CITY OF DIAMOND BAR, a municipal Walnut Valley Unified School District ("DISTRICT"). DISTRICT referred to as the `PARTIES" or individually as a "PARTY". RECITALS made this corporation and CITY a 16th day of ("CITY"), and e hereinafter The following recitals are a substantive part of this Development Agreement: 1. DISTRICT is the owner of property located at 880 S. Lemon Street, Walnut, California and having assessor's parcel number (��APN") 8760-015-901 (the "PROPERTY"). 2. The DISTRICT and Evergreen Media LLC (EVERGREEN" or "DEVELOPER"), a Delaware Limited Liability Company, entered into an Outdoor Advertising Lease Agreement dated February 15, 2023, attached hereto and incorporated herein as Exhibit "A" ("LEASE AGREEMENT"), to construct and operate a new double sided digital light -emitting diode ("LED") billboard ("BILLBOARD") on a portion of the Property ("PROJECT") ground leased to EVERGREEN. The billboard location is depicted in Exhibit A of the LEASE AGREEMENT. 3. Pursuant to the LEASE AGREEMENT in Exhibit "A", EVERGREEN is the applicant for any and all entitlement applications, and any requirements for the District to obtain entitlements pursuant to this AGREEMENT, shall be passed on to EVERGREEN, at EVERGREEN'S sole cost and expense. 4. The CITY and DISTRICT desire to enter into this Agreement in order to outline the CITY and DISTRCT's obligations. Page 1 of 8 5. The CITY's City Council approved a Development Code Amendment, Conditional Use Permit, and Development Review on December 16, 2025 in conjunction with this AGREEMENT. 6. The PROJECT is a development requiring the foregoing legislative and discretionary approvals by the CITY before it may be constructed. 7. Per the LEASE AGREEMENT, the DISTRICT receives lease revenue from EVERGREEN. In consideration for entitling the PROJECT, the CITY seeks to receive a Community Benefit Fee (further defined below) that is a percentage of the lease revenue received by the DISTRICT. The CITY also seeks advertising time on the digital LED BILLBOARD at no cost to the CITY. 8. Government Code Section 65864 et seq. provides the authority for CITY to enter into binding development agreements with the DISTRICT having a legal and equitable interest in real property. AGREEMENT THE PARTIES MUTUALLY AGREE AS FOLLOWS: 1. Duration. This AGREEMENT, the CUP to install and maintain the BILLBOARD, and any and all discretionary land use entitlements granted to EVERGREEN for the PROPERTY shall expire twenty (20) years from its effective date, unless any duty specified remains executory, in which case this Agreement may be renewed for a successive ten (10) year term upon notice from the DISTRICT, pursuant to law, until all duties are performed. This renewal shall not be unreasonably withheld by the CITY. 2. Exclusive Rights to Develop. Subject to the terms of this AGREEMENT, DISTRICT shall have an exclusive vested right to develop the Property in accordance with, and to the extent of, the LEASE AGREEMENT and EVERGREEN's entitlement applications. 3. Permitted Uses. The following use is permitted at the PROJECT: erecting, constructing, installing, placing, operating, maintaining, and servicing, adouble- sided digital LED BILLBOARD for advertising, including supporting structures, illumination facilities and connections, back-up panels, service ladders, telecommunication devices and other appurtenances and ancillary equipment subject to a CUP. 4. Maximum Height and Building Size. The maximum height and building size are as follows: A fourteen feet (14) x forty-eight feet (48) (Height x Width) double sided digital LED Billboard with an overall height including the supports plus sign of ninety feet (90). 5. Resolution/Material Terms. All conditions of approval as per City Council Resolution No. 2025-XX, attached hereto and incorporated herein as Exhibit��B", Page 2 of 8 are material terms of this AGREEMENT. Breach of any condition of approval shall be deemed to be a breach of this Development Agreement, 6. Reimbursement. DISTRICT shall pay CITY as follows: a. Community Benefit Fee. The CITY shall receive twenty- five percent (25%) of all revenue the DISTRICT receives pursuant to Section 4.2(c) of the LEASE AGREEMENT or any amendment to the LEASE AGREEMENT or other agreement pertaining to the installation of a Billboard or other advertising display with EVERGREEN or any other party. ("Community Benefit Fee"). The DISTRICT shall remit payment of the Community Benefit Fee to the CITY within thirty (30) days after the DISTRICT receives payment from EVERGREEN pursuant to the LEASE AGREEMENT. b. Public Safety Messages. Pursuant and subject to Section 2.5 of the LEASE AGREEMENT, Amber Alerts and other emergency and public safety announcements shall be posted on the billboard at no cost to the DISTRICT and the CITY. DISTRICT and CITY agree on shared needs for future installation of telecommunications equipment on the billboard, as necessary for public safety. c. Public Service Messages. DISTRICT shall receive approximately 12% of the available time from EVERGREEN (or any other advertising display party), equally spread throughout a 24-hour day for public service messages on the sign, on a space available basis. DISTRICT and CITY shall split that time on a 50/50 basis. The Party wishing to post public service messages shall be responsible for producing all camera-ready art- work ready to post at their cost. d. Except with respect to the display of CITY public service announcements and emergency broadcasts, District shall have sole and exclusive control over and responsibility for the content of any messages, announcements or advertisements displayed on the BILLBOARD or any other advertising display, and the CITY shall have no responsibility or authority with respect to such displays. 7. Records of Revenue. CITY shall have the right to audit the calculations, accounting, and payments to the DISTRICT, and to receive a copy of the "Annual Report" or similar report provided by EVERGREEN (or any other adverting display party) to the DISTRICT. These records will be made available at reasonable times to CITY with prior written request from the CITY. 8. Payment Due Date. The amounts due to CITY under this Agreement shall be due and payable within thirty (30) days after the DISTRICT receives payment from EVERGREEN (or any other advertising display party) pursuant to the LEASE AGREEMENT (or any amendment or other advertising display agreement). 9. Termination Provisions. This Agreement may be terminated upon the happening of any of the following events: a. Failure of DISTRICT to perform any of the provisions of this Agreement, or b. Mutual agreement of the Parties or, c. Failure of DISTRICT to cure any default under the terms and conditions of this Development Agreement or, d. DISTRICT retains the right to terminate this Agreement upon thirty (30) days' written notice to CITY in the event that the Lease Agreement is terminated or expired. e. In any event of termination, DISTRICT shall remove, or cause to be removed, the BILLBOARD or any other advertising display installed on the PROPERTY. 10. Periodic Review. CITY shall review DISTRICT'S performance every twelve (12) months at the anniversary of the adoption of this Agreement. DISTRICT shall demonstrate good faith compliance with the terms of this Agreement. If as a result of the review, CITY finds and determines, based upon substantial evidence, that DISTRICT has not taken good faith efforts to comply with terms or conditions of this Agreement, CITY may terminate or modify the Agreement. This review shall be conducted by the Director of Community Development. 11. CITY Discretion. CITY retains its right and discretion, under all applicable Codes, to approve or disapprove any item related to this PROJECT which it has not specifically agreed to via this Agreement, however such approval shall not be unreasonably withheld. DISTRICT acknowledges that it shall comply with all CITY requirements for applications and permits of any nature and that this Agreement does not relieve DISTRICT of the necessity of filing appropriate applications and obtaining appropriate permits. 12. DISTRICT Breach. Failure by DISTRICT to pay amounts specified as required by this AGREEMENT, shall result in the withholding of building permits or any other permit until the breach is remedied. 13. Non -Liability of Officials and Employees of the CITY. No official, employee or agent of CITY shall be personally liable to DISTRICT in the event of any default or breach by CITY, or for any amount that will become due to DISTRICT, or for any obligation under the terms of this Agreement. 14. Notices. All notices shall be personally delivered or mailed to the below listed address, or to such other address as may be designated by written notice and shall be deemed sufficiently given and served for all purposes when delivered personally, by generally recognized overnight courier service (provided that sender retains a receipt evidencing the date and time of delivery), or three (3) days after deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid. These addresses shall be used for delivery or service of process. Page 4 of 8 a. Address of DISTRICT is as follows: Walnut Unified School District Attention: Matt Torres Ed.D Assistant Superintendent, Business Services matorres@wvusd.org 880 S. Lemon Ave. Walnut, CA 91789 With a copy to: Orbach Huff & Henderson LLP Attn: Sarine Abrahamian sabrahamian@ohhlegal.com 1901 Avenue of the Stars, Suite 575 Los Angeles, CA 90067 b. Address of CITY is as follows: City of Diamond Bar Attention: City Clerk 21810 Copley Drive Diamond Bar, CA 91765 15. Developer Proposal. The PROJECT shall include EVERGREEN'S proposal, as modified by the City Council, including all conditions of approval contained in Planning Commission/City Council Resolution No. 2025-XX, which is incorporated herein by this reference. In the event of any inconsistency between terms of the proposal and this Agreement, this Agreement shall govern. 16. Licenses Permits Fees and Assessments. At its sole expense, EVERGREEN shall obtain all licenses, permits, and approvals as may be required by this Agreement, or by the nature of the PROJECT. 17. Time of Essence. Time is of the essence in the performance of this Agreement. 18. Successor's Interest. The provisions of this Agreement shall be binding upon and inure to successors in interest of the parties and shall be specifically binding upon any future lessees or other owners of an interest in the PROPERTY. 19. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement and that by executing this Agreement, the parties are formally bound. 20. Indemnification. DISTRICT agrees to protect, defend, and hold harmless CITY and their elective or appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses or damages of any nature, including attorneys' fees, for bodily injury or death of any person, or damage to property, or interference with use of property, or otherwise arising out of negligent acts or omissions, or willful misconduct in the performance of the Agreement by DISTRICT, DISTRICT'S agents, officers or employees, contractors and Page 5 of 8 subcontractors hired by DISTRICT. DISTRICT shall have the right to select counsel to perform the defense, subject to such counsel being reasonably acceptable to CITY. DISTRICT shall also have the ability to control strategy and resolution of such actions, provided that DISTRICT must obtain CITY's consent for any strategy or resolution that would impose an obligation on CITY (financial or otherwise) that would not be borne by DISTRICT or that would amount to a representation concerning, or an admission by, CITY. 21. Modification. This Agreement constitutes the entire agreement between the parties and supersedes any previous agreements, oral or written. This Agreement may be modified only by subsequent mutual written agreement executed by CITY and DISTRICT. 22. Remedies. The occurrence of any Event of Default shall give the nondefaulting party the right to proceed with any and all remedies set forth in this Agreement, including an action for damages, an action or proceeding at law or in equity to require the defaulting party to perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions of this Agreement, and the right to terminate this Agreement. 23. Force Majeure. Subject to the party's compliance with the notice requirements as set forth below, performance by either party hereunder shall be deemed not to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or default are due to causes beyond the control and without the fault of the party claiming an extension of time to perform, which may include, without limitation, the following: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, assaults, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, material or tools, acts or omissions of the other party, or acts or failures to act of any public or governmental entity (except that the City's acts or failure to act shall not excuse performance of the City hereunder). An extension of the time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. 24. Attorneys Fees. In addition to any other remedies provided hereunder or available pursuant to law, if either party brings an action or proceeding to enforce, protect or establish any right or remedy hereunder, the prevailing party shall be entitled to recover from the other party its costs of suit and reasonable attorney's fees. 25. Remedies Cumulative. No right, power, or remedy given by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and each other and every such right, power, remedy shall be cumulative and in addition to every other right, power, or remedy given by the terms of any such instrument, or by any statute or otherwise. Page 6 of 8 26. Waiver of Terms and Conditions. The failure of a PARTY to insist upon the strict performance of any of the provisions of this Agreement by the other PARTY, or the failure by a PARTY to exercise its rights upon the default of the other PARTY, shall not constitute a waiver of such PARTY's right to insist and demand strict compliance by the other PARTY with the terms of this Agreement thereafter. 27. Recitals. The Recitals above are hereby incorporated into this section as though fully set forth herein and each party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, these parties have executed this Agreement on the day and year shown below. "CITY" CYTY OF DIAMOND BAR, a municipal corporation Mayor Date: ATI"EST: City Clerk Date: APPROVED AS TO FORM City Attorney Date: "DISTRICT" Walnut Valley Unified School District Name: Title:_ Date A"f-f"EST: Secretary Date: APPROVED AS TO FORM: General Counsel Date: [Lwlri,1 LEASE AGREEMENT BETWEEN DISTRICT AND EVERGREEN Exhibit A EXHIBIT B CITY COUNCIL RESOLUTION NO. 2025-37 Exhibit B A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) On , 2025, before me, ,Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal)