HomeMy WebLinkAbout2014-03-25 - AGENDA REPORTS - EDWARDS OUTDOOR ADVERTISING (2)NEW BUSINESS
DATE:
SUBJECT:
DEPARTMENT:
Agenda Item: 14
CITY OF SANTA CLARITA
AGENDA REPORT
City Manager Approval:
Item to be presented by:
March 25, 2014
tii t
AGREEMENT WITH EDWARDS OUTDOOR ADVERTISING,
INC. FOR THE VOLUNTARY REMOVAL OF BILLBOARDS
Community Development
RECOMMENDED ACTION
City Council approve the Agreement for Voluntary Removal of Billboards (Agreement) with
Edwards Outdoor Advertising, Inc.; determine that approval of the Agreement is exempt from
California Environmental Quality Act (CEQA); and authorize the City Manager or his designee
to implement the agreement, including the payment of up to $1.3 million to Edwards Outdoor
Advertising, Inc.
BACKGROUND
The City has been working for a number of years to reduce the number of billboards within the
City as a means to enchance community beautification. Negotiations began with Edwards
Outdoor Advertising, Inc. (Edwards) to discuss the removal of their billboard structures within
the City of Santa Clarita in 2007 and resumed again in early 2013. As a result of the
negotiations, the attached Agreement has been agreed to by Edwards.
The Agreement includes a three-year phased removal period of the billboard structures owned by
Edwards, whereby 19 boards will be removed in the first year, 15 boards will be removed the
second year, and the remaining boards will be removed the third year. With the exception of the
first year, the order in which the billboards are to be removed is at the discretion of Edwards,
provided that all boards owned by Edwards located within the METRO right -of -way are 100%
removed by year two. This was requested by Edwards as a practical matter related to their
existing lease agreements with their customers.
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In exchange for the removal of the billboards, the Agreement provides a compensation amount
of up to $1.3 million. The exact payment amount will be determined by applying a multiplier to
the 2013 gross income of Edwards as identified on their final 2013 tax return. Payments will be
made on a per billboard, pro -rata basis over three years.
Under the Agreement, Edwards is responsible for all removal activities and associated costs, and
is required to obtain all necessary permits and insurance required for such removals. Edwards is
required to indemnify the City for any and all claims associated with the removals, although the
extent of their indemnification is limited to the policy limits of their insurance (for covered
claims) or the amount to be paid by the City under the Agreement (for claims not covered by
insurance). Edwards also covenants that it will not attempt to reinstall any billboards once
removed.
This project is exempt from the California Environmental Quality Act (CEQA) per Article 19,
Section 15301: Existing Facilities, Class 1. Class 1 exemptions include the minor alteration of
existing private structures involving a negligible or no expansion of existing use, including
demolition and removal of existing small structures.
ALTERNATIVE ACTIONS
Other actions as determined by City Council.
FISCAL IMPACT
The total cost of the Agreement will not exceed $1.3 million. While not anticipated, lawsuits that
exceed the scope of Edwards' indemnification obligations could result in a cost to the City,
which cost cannot be quantified at this time. Payments will be made in monthly installments.
Money will be appropriated in the annual budget process based upon the schedule provided in
the Agreement.
ATTACHMENTS
Agreement for Voluntary Removal of Billboards
Exhibit A to Agreement for Voluntary Removal of Billboards
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AGREEMENT FOR VOLUNTARY REMOVAL OF BILLBOARDS
This Agreement for the Voluntary Removal of Billboards ("Agreement") is effective this
day of , 2014, by and between the CITY OF SANTA CLARITA, a California
municipal corporation ("City") and EDWARDS OUTDOOR ADVERTISING, INC., a
California corporation ("Edwards"), with respect to the following:
1. DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly provided or unless the
context requires:
1.1 "Agreement" means this Agreement and all attachments and/or exhibits hereto,
and all amendments and modifications thereto.
1.2 "Billboard Removal" means Edwards' voluntary removal of the Existing
Edwards Billboards identified on Exhibit A pursuant to the schedule set forth in
Section 3.1.3. Removal of the Existing Edwards Billboards includes removing
the billboards and their supporting structures, obtaining all Necessary Permits and
Approvals, proper disposal/recycling of materials, and restoration of sites as may
be required.
1.3 "City" means the City of Santa Clarita, a California municipal corporation.
1.4 "Edwards" means Edwards Outdoor Advertising, Inc., a California corporation.
1.5 "Effective Date" is the date on which this Agreement is attested to by the City
Clerk of the City of Santa Clarita after execution by Edwards and the Mayor or
City Manager of the City of Santa Clarita.
1.6 "Existing Edwards Billboards" means the existing forty-seven (47) Outdoor
Advertising Structures that are located within the City's boundaries at the
Existing Edwards Billboard Sites as specifically described in Exhibit A, and any
additional billboards within the City determined to be owned by Edwards as of
the Effective Date.
1.7 "Existing Edwards Billboard Sites" means the forty-seven (47) locations of the
Existing Edwards Billboards described in Exhibit A attached hereto and the sites
within the City of any additional billboards determined to be owned by Edwards
as of the Effective Date.
1.8 "Necessary Permits and Approvals" means the permits, approvals, plans,
inspections, certificates, documents, licenses, and all other actions required to be
taken by Edwards to execute the Billboard Removal, including without limitation,
demolition permits, encroachment permits, and other similar permits and
approvals which are required by any of Edwards' landlords, licensors, any
governmental entities, the Santa Clarita Municipal Code and Billboard Removal
plans to implement the Billboard Removal.
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1.9 "Outdoor Advertising Structure" means and includes an "off-site sign" as
defined in Chapter 17.11 of the Santa Clarita Municipal Code and an "advertising
structure" as defined in Business and Professions Code Section 5203.
1.10 "Parties" means collectively Edwards and the City. Each will be referred to in
the singular as a "Party."
1.11 "Prevailing Wage Laws" means California Labor Code §§ 1720 et seq.
1.12 "Term" means the period of time for which this Agreement will be effective in
accordance with Section 5.2 hereof.
2. RECITALS OF PREMISES, PURPOSE AND INTENT.
2.1 General Purpose of this Agreement.
2.1.1 The City generally prohibits the construction and operation of new
Outdoor Advertising Structures or billboards in the City under Santa
Clarita Municipal Code ("SCMC") Chapter 17.51 ("Sign Code") and
Chapter 11. 12, and has been working with property owners and outdoor
advertising companies for a number of years to reduce the number of
billboards within the City.
2.1.2 The Existing Edwards Billboards are all located within the City.
2.1.3 In consideration of Edwards' voluntary removal of the Existing Edwards
Billboards as provided in this Agreement, the City is willing to
compensate Edwards up to $1,300,000, the exact amount to be
determined as provided in this Agreement and as defined in Section
3.2.1.
2.1.4 The City maintains that the removal of the Existing Edwards Billboards
will improve the appearance of the City and thereby improve community
aesthetics, a substantial government interest.
2.1.5 Edwards and the City desire to enter into this Agreement in order to
provide for the staged removal of the Existing Edwards Billboards.
3. AGREEMENT AND ASSURANCES.
3.1 Agreement and Assurance on the Part of Edwards. In consideration for the
City entering into this Agreement, and as an inducement for the City to obligate
itself to carry out the covenants and conditions set forth in this Agreement, and in
order to effectuate the promises, purposes and intentions set forth in Section 2 of
this Agreement, Edwards hereby agrees as follows:
3.1.1 Diligence. Edwards agrees that it will diligently execute the Billboard
Removal in accordance with the terms and conditions of this Agreement.
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3.1.2 Representations and Warranties. Edwards hereby represents and
warrants to the City that, Edwards owns all of the Existing Edwards
Billboards and has the legal right to remove all of the Existing Edwards
Billboards from the Existing Edwards Billboards Sites consistent with
the terms of this Agreement.
3.1.3 Removal of Existing Edwards Billboards.
3.1.3.1 Year 1. During the first year following the Effective Date of
this Agreement, Edwards will cause the removal of a total of
eighteen (18) of the Existing Edwards Billboards including
sixteen (16) that are located within the right of way ("ROW') of
the Los Angeles County Metropolitan Transportation Authority
("Metro").
3.1.3.1 Year 2. During the second year following the Effective Date of
this Agreement, Edwards will cause the removal of a total of
fifteen (15) of the Existing Edwards Billboards including six
(6), the number of remaining Existing Edwards Billboards that
lie within the Metro ROW.
3.1.3.2 Year 3. During the third year following the Effective Date of
this Agreement, Edwards will cause the removal of the
remaining Existing Edwards Billboards.
3.1.4 Waiver of Compensation for Removal of Existing Edwards
Billboards. Except as provided in this Agreement, Edwards waives all
claims for compensation Edwards has or may have in the future against
the City or the City's officials, officers, employees and agents that are
related to or arise from Edwards's removal of the Existing Edwards
Billboards. This waiver includes, but is not limited to, any claims made
or arising under the California Government Claims Act (California
Government Code § 810 and following), the Outdoor Advertising Act
(California Business and Professions Code § 5200 and following, and in
particular § 5412), the California Constitution, or the United States
Constitution.
3.1.5 Release of Claims for Removal of Existing Edwards Billboards.
Edwards unconditionally and forever releases and discharges the City
and the City's elected officials, officers, employees, and agents from
liabilities, claims, demands, damages, and reasonable costs (including
reasonable attorneys' fees and litigation costs through final resolution on
appeal) that arise from, or are connected with, Edwards' removal of the
Existing Edwards Billboards. Edwards releases and forever discharges
the City, together with its respective officers, officials and employees,
and each of them (the "City Releasees"), on behalf of itself, its
authorized agents, representatives, successors -in -interest ("Edwards
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Releasors"), from any claim it may have against the City Releasees
under California Business and Professions Code section 5400 et seq.,
any federal, state or local relocation laws, including without limitation,
Chapter 16 (commencing with section 7260 of Division 7 of Title 1) of
the California Government Code: Article 9 of Chapter 4 of Division 24
of the California Health and Safety Code, federal requirements titled
"Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970", as amended, and any and all implementing regulations;
and any ordinance or regulation of the City relating to the Billboard
Removal. This release and discharge covers all claims, rights, liabilities,
demands, obligations, duties, promises, reasonable costs, expenses,
damages, and other losses or rights of any kind, past, present, and future,
whatever the theory of recovery, including goodwill, relocation
assistance, etc., whether known or unknown, patent or latent, suspected
or unsuspected, fixed or contingent, or matured or unmatured. This
release shall not release or relieve the City or any of the City Releasees
from any and all obligations with respect the full performance of this
Agreement. Edwards hereby waives all rights it has or may have in the
future under California Civil Code section 1542, which provides as
follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
or her favor at the time of executing the release,
which if known by him or her must have materially
affected his or her settlement with the debtor."
3.1.6 Indemnity for Claims Arising from the Removal of Existing
Edwards Billboards. In addition to the indemnity provided in Sections
3.1.9, 3.1.11 and 5.7.1, and, subject to the total aggregate liability
limitations set forth herein, Edwards agrees to indemnify, defend (upon
the City's written request with counsel reasonably acceptable to the
City), and hold harmless the City and the City's officials, officers,
employees, and agents from liabilities, claims, demands, damages, and
reasonable costs (including reasonable attorneys' fees and litigation costs
through final resolution on appeal) (collectively, "claims") that arise
from, or are connected with the acts or omissions of Edwards or
Edwards's officers, employees, or authorized agents in removing or
causing the removal of the Existing Edwards Billboards. Edwards
agrees that it shall be responsible for and it shall indemnify and hold
harmless the City from claims, suits or actions of every kind on account
of injuries and death of any person, including Edwards, or damage to
property of any kind, caused by the acts or omissions of Edwards, its
officers, employees or authorized agents related to the Billboard
Removal. Edwards will defend with counsel reasonably acceptable to
the City, indemnify and hold harmless the City and its respective
officers, officials and employees, and each of them, from claims,
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including but not limited to, relating to compensation for the removal of
the Existing Edwards Billboards, inverse condemnation, relocation
expenses, and business goodwill and any debts, liabilities, demands,
obligations, reasonable costs and expenses, reasonable attorneys' fees,
actions, and causes of action of any nature, character and description
whether known or unknown, directly or indirectly arising out of any
matter, fact, and/or allegation contained in or otherwise related to the
removal of the Existing Edwards Billboards, whether such claims are
brought by Edwards or the owner(s) of the property upon which the
Existing Edwards Billboards are presently located. The foregoing
indemnity and duty to defend shall not include claims or liabilities
arising from or in any way involving the negligence, acts, gross
negligence or willful misconduct of the City, its officials, officers,
agents, or employees. Notwithstanding anything to the contrary
contained in this Agreement, the liability of Edwards to the City and the
City's officials, officers, employees, and agents under this Agreement
shall be limited so that (1) as to those "claims" which are of the sort that
Edwards' current insurance covers, the total aggregate liability of
Edwards to the City, et al. shall not exceed the coverage of the insurance
required by this Agreement; and (2) as to those "claims" which are not
of the sort that Edwards' current insurance covers, including but not
limited to any such claims under this Section or Sections 3.1.9, 3. 1.11 or
5.7.1, the total aggregate liability of Edwards to the City et al. under this
Agreement shall not exceed the compensation to be paid to Edwards by
the City under Section 3.2.1 of this Agreement. This limitation is
intended to apply to any and all liability or cause of action however
alleged or arising, unless otherwise prohibited by law.
3.1.7 Processing Fees. Edwards must pay all Processing Fees for Necessary
Permits and Approvals related to the Billboard Removal.
3.1.8 No Re -Installations. Edwards warrants that, following the removal of
any or all of the Existing Edwards Billboards, no attempt will be made
to re -install any Outdoor Advertising Structures at any of the Existing
Edwards Billboard Sites as prohibited by Santa Clarita Municipal Code
§ 17.51.080(U)(12).
3.1.9 Prevailing Wage Law Compliance. Edwards agrees that, pursuant to
requirements of the California Labor Code, prevailing wages will be
paid in connection with the Billboard Removal or any portion thereof.
Further, Edwards agrees to defend with counsel reasonably acceptable to
the City, and, subject to the total aggregate liability limitations set forth
in Section 3.1.6, indemnify and hold the City harmless from any claims
or liabilities arising from or as a result of the Billboard Removal
constituting such public work, including but not limited to claims arising
under California Labor Code § 1726 and § 1771.6
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3.1.10 No Assignments. Each party agrees that it will not voluntarily or by
operation of law assign or transfer any of its obligations or
responsibilities under this Agreement.
3.1.11 Defense in the Event of Legal Challenge. In the event of any legal
action instituted by any officer, director, employee, client or authorized
agent of Edwards challenging the validity of any provision of this
Agreement, or the approval thereof by the City, Edwards agrees to
defend the Agreement and its approval and to defend and, subject to the
total aggregate liability limitations set forth in Section 3.1.6, indemnify
the City in such action with counsel reasonably acceptable to City.
3.2 Agreement and Assurance on the Part of City. In consideration for Edwards
entering into this Agreement, and as an inducement for Edwards to obligate itself
to carry out the actions, covenants and conditions set forth in this Agreement, and
in order to effectuate the promises, purposes and intentions set forth in Section 2
of this Agreement, the City hereby agrees as follows:
3.2.1 Computation of Compensation for Removal of Existing Edwards
Billboards. The City will compensate Edwards up to $1,300,000 for the
removal of the Existing Edwards Billboards. The exact amount of
compensation will be determined by applying a multiple of 4.643 to
2013 gross revenue less any applicable advertising agency commissions
as reflected on information contained in Edwards' final 2013 tax returns
and will be paid on a pro rata basis (per billboard, based on the total
number of Existing Edwards Billboards) on the thirtieth (30`s) day of
each calendar month of the term hereof, based pro rata on the number of
billboards removed for the then preceding month. Also, in the event it is
determined that Edwards is the owner of junior billboards, as that term is
customarily defined in the outdoor advertising industry, within the City
not listed in Exhibit A, then Edwards will be obligated to remove such
billboards not later than Year 3 of the schedule set forth in Section 3.1.3,
and no additional compensation shall be due from the City for such
removal.
3.2.2 Offsets to Compensation After exhaustion of the notice and cure
procedures set forth in Section 4.1 of this Agreement, the City shall be
entitled to offset against any compensation owed, or seek reimbursement
of any compensation paid by the City to Edwards, any reasonable and
documented costs incurred by the City as a result of Edwards failure to
perform its obligations under the Agreement, including, but not limited
to those set forth in Sections 3.1 and 5.7.
3.2.3 Representations and Warranties. The City has the right, power, legal
capacity and authority to enter into and perform its obligations under this
Agreement, and no further approvals or consents of any persons or
entities are necessary in connection with it. The execution and delivery
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of this Agreement by the undersigned have been duly authorized by all
necessary municipal action.
3.2.4 Cooperation. The City agrees to cooperate with Edwards, and on
Edward's reasonable request, to execute all documents and take all
actions as reasonably necessary to effectuate the purposes of this
Agreement, including but not limited to assisting Edwards in the event
that one or more landowners seeks to prevent the removal of one or
more Existing Edwards Billboards.
3.2.5 Release of Claims for Removal of Existing Edwards Billboards.
Subject to the terms of this Agreement the City unconditionally and
forever releases and discharges Edwards and Edwards' officers,
directors, owners, employees, and agents from all liabilities, claims,
demands, damages, and costs (including reasonable attorneys' fees and
litigation costs through final resolution on appeal) that in any way arise
from, or are connected with, the Existing Edwards Billboards. The City
releases and forever discharges Edwards, together with its officers,
directors, owners, employees and agents, and each of them (the
"Edwards Releasees"), on behalf of itself, its agents, representatives,
successors -in -interest ("City Releasors"), from any claim it may have
against the Releasees under any and all any ordinances or regulations of
the City relating to the Existing Edwards Billboards or their removal.
This release and discharge covers all claims, rights, liabilities, demands,
obligations, duties, promises, costs, expenses, damages, and other losses
or rights of any kind, past, present, and future, whatever the theory of
recovery, whether known or unknown, patent or latent, suspected or
unsuspected, fixed or contingent, or matured or unmatured. This release
shall not release or relieve Edwards or any of the Edwards Releasees
from any and all obligations with respect the full performance of this
Agreement, nor shall this release apply to any Billboard owned by
Edwards as of the Effective Date that is not removed by Edwards
pursuant to the terms of this Agreement. The City hereby waives all
rights it has or may have in the future under California Civil Code
section 1542, which provides as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his
or her settlement with the debtor."
4. DEFAULT PROVISIONS
4.1 Default by Edwards.
4. 1.1 Default. In the event Edwards does not perform its obligations under
this Agreement in a timely manner, the City will have all rights and
remedies provided by this Agreement, which include compelling the
specific performance of the obligations of Edwards under this
Agreement provided that the City has first complied with the procedures
in Section 4.1.2.
4.1.2 Notice of Default. The City must first submit to Edwards a written
notice of default stating with specificity those obligations which have
not been performed. Upon receipt of the notice of default, Edwards
must promptly commence to cure the identified default(s) at the earliest
reasonable time after receipt of the notice of default and must complete
the cure of such default(s) not later than sixty (60) days after receipt of
the notice of default, or such longer period as is reasonably necessary to
remedy such default(s), provided that Edwards must continuously and
diligently pursue such remedy at all times until such default(s) is cured.
In the case of a dispute as to whether Edwards has cured the default, the
Parties must submit the matter to dispute resolution pursuant to Section
5_4 of this Agreement.
4.2 Default by City.
4.2.1 Default. In the event the City does not pay compensation to Edwards as
required by Section 3.2.1, or the City otherwise defaults under the
provisions of this Agreement, Edwards will have all rights and remedies
provided herein or by applicable law, which will include compelling the
specific performance of the City's obligations under this Agreement,
provided that Edwards has first complied with the procedures in Section
4.2.2. No part of this Agreement may be deemed to abrogate or limit
any immunities or defenses the City may otherwise have with respect to
any claims.
4.2.2 Notice of Default. Edwards must first submit to the City a written
notice of default stating with specificity those obligations which have
not been performed. Upon receipt of the notice of default, the City must
promptly commence to cure the identified default(s) at the earliest
reasonable time after receipt of the notice of default and must complete
the cure of such default(s) not later than sixty (60) days after receipt of
the notice of default, or such longer period as is reasonably necessary to
remedy such default(s), provided that the City must continuously and
diligently pursue such remedy at all times until such default(s) is cured.
In the case of a dispute as to whether the City has cured the default, the
Parties must submit the matter to dispute resolution pursuant to Section
5_4 of this Agreement.
5. GENERAL PROVISIONS.
5.1 Effective Date. This Agreement will be effective as set forth in Section 1.5
above.
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5.2 Term of Agreement; Time of Performance. The Tenn of this Agreement will
commence on the Effective Date and will extend until the completion of the
Billboard Removal in accordance with the schedule stated in Section 3.1.3. The
expiration of the Term of this Agreement will not affect any right or duty
regarding indemnification provided herein. The Term of this Agreement and the
time for Edwards' completion of the Billboard Removal will automatically be
extended for the period of time of any actual delay resulting from any moratoria,
or from legal actions, administrative proceedings such as appeals or delays of
ministerial actions, or appeals which enjoin performance under this Agreement or
act to stay performance under this Agreement (other than bankruptcy or similar
procedures), or for the period of time during which a third -party lawsuit or
litigation (including appeals) relating to the Billboard Removal, including this
Agreement, has been filed and is pending in a court of competent jurisdiction.
5.3 Enforced Delay; Extension of Time of Performance. In addition to specific
provisions of this Agreement and subject to the notice requirements set forth in
this subsection, whenever a period of time, including a reasonable period of time,
is designated within which any Party hereto is required to do or complete any act,
matter or thing, the time for the doing or completion thereof will be extended by a
period of time equal to the number of days during which such Party is actually
prevented from, or is unreasonably interfered with, the doing or completion of
such act, matter or thing because of causes beyond the reasonable control of the
Party to be excused, including: war; insurrection; riots; floods; earthquakes; fires;
casualties; acts of God; litigation and administrative proceedings against the
Billboard Removal (not including any administrative proceedings contemplated
by this Agreement in the normal course of affairs); any approval required by the
City or other governmental entity (not including any period of time normally
expected for the processing of such approvals in the ordinary course of affairs);
enactment of conflicting state or federal laws or regulations; judicial decisions; or
similar bases for excused performance which is not within the reasonable control
of the Party to be excused (financial inability excepted). This Section will not be
applicable to any proceedings with respect to bankruptcy or receivership initiated
by Edwards. If written notice of such delay is given to any Party within thirty (30)
days of the commencement of such delay, an extension of time for such cause
may be granted in writing for the period of the enforced delay, or longer as may
be reasonable or mutually agreed upon.
5.4 Dispute Resolution.
5.4.1 Dispute Resolution Proceedings. Any dispute, claim or controversy
arising out of or relating to this Agreement or the breach, termination,
enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this Agreement to
arbitrate, shall be determined by arbitration in Los Angeles, California.
The arbitration shall be administered by J.A.M.S./ENDISPUTE or its
successor ("JAMS") pursuant to the United States Arbitration Act, 9
U.S.C. Section 1, et seq. and its Comprehensive Arbitration Rules and
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Procedures (Streamlined Arbitration Rules and Procedures). The parties
to the dispute shall cooperate with JAMS and with each other in
promptly selecting a single arbitrator from JAMS's panel of neutrals. If
the parties fail to select an arbitrator within thirty (30) days following
the date of either party's notice of demand to conduct arbitration, then
JAMS shall appoint an arbitrator in accordance with the JAMS Rules.
Judgment on the award may be entered in any court having jurisdiction.
The arbitrator may, in the award, allocate all or part of the costs of the
arbitration, including the fees of the arbitrator and the reasonable
attorneys' fees of the prevailing party. The arbitrator shall base its
award on the terms of this Agreement, and shall follow the law and
judicial precedents that a United States District Judge sitting in the
Central District of California would apply to the dispute. The arbitrator
shall render its award in writing and shall include the findings of fact
and conclusions of law upon which its award is based. Judgment upon
the arbitration award may be entered by any court of competent
jurisdiction.
5.4.2 Extension of Term. The Term of this Agreement as set forth in Section
5_2 may be extended by the arbitration proceedings for the period of
time in which progress on the execution of the Billboard Removal was
delayed by the City if the arbitration proceedings result in a
determination that Edwards was not in default under this Agreement.
5.5 Applicable Law. This Agreement will be construed and enforced in accordance
with the laws of the State of California.
5.6 Amendments. This Agreement may be amended from time to time by mutual
consent in writing of the Parties to this Agreement.
5.7 Indemnification and Insurance.
5.7.1 Indemnification by Edwards. Subject to the total aggregate liability
limitations set forth in Section 3.1.6, Edwards agrees to indemnify the
City, its officials, officers, employees, and agents against, and will hold
and save them and each of them harmless from, actions, suits, claims,
damages to persons or property, losses, reasonable costs, penalties,
obligations, or liabilities (herein "claims or liabilities") that may be
asserted or claimed by any person, firm, or entity arising out of or in
connection with the work, operations, or activities of Edwards, its
authorized agents, employees, subcontractors, or invitees, arising under
this Agreement and in furtherance of the Billboard Removal, whether or
not there is current passive or active negligence on the part of the City,
its officers, agents, or employees and in connection therewith. Edwards
will defend any action or actions filed in connection with any of said
claims or liabilities with counsel reasonably acceptable to the City and
will pay reasonable costs and expenses, including legal costs and
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reasonable attorneys' fees incurred in connection therewith. Edwards
will promptly pay any judgment rendered against the City, its officials,
officers, agents, or employees for any such claims or liabilities arising
out of or in connection with the work, operations, or activities of
Edwards, arising under this Agreement and in furtherance of the
Billboard Removal, and Edwards agrees to save and hold the City, its
officers, agents, and employees harmless therefrom. In the event the
City, its officials, officers, agents, or employees are made a party to the
action or proceeding filed or prosecuted against for such damages or
other claims arising out of or in connection with operation or activities
of Edwards hereunder, Edwards agrees to pay the City, its officials,
officers, agents, or employees all reasonable costs and expenses incurred
by the City, its officers, agents, or employees in such action or
proceeding, including by not limited to reasonable legal costs and
reasonable attorneys' fees.
5.7.1.1 Exceptions. The foregoing indemnity and duty to defend shall
not include claims or liabilities arising from or in any way
involving the gross negligence or willful misconduct of the
City, its officials, officers, agents, or employees.
5.7.1.2 Additional Coverage. Without limiting the generality of the
foregoing, said indemnity will include any liability arising by
reason of any failure of Edwards to comply with performance of
all of the provisions of this Agreement.
5.7.2 Period of Indemnification. The obligations for indemnity and defense
under this Agreement, including those in Section 3.1 and this Section 5.7
begin upon the Effective Date and will terminate upon termination of
this Agreement; provided, however, that the duties of indemnification
and defense will continue to apply to all claims or liabilities arising
during that period asserted within 12 months of the termination of this
Agreement.
5.7.3 Insurance. For claims or liabilities for personal injury or death, or
property damage relating to this Agreement, Edwards must obtain such
insurance and post such bonds as is normally required to obtain the
Necessary Permits and Approvals (whether from the City, Metro or
otherwise) for the removal of the Existing Edwards Billboards.
Additionally, for purposes of the defense and indemnification
obligations as described herein, Edwards shall at all times during the
Term of this Agreement maintain insurance that satisfies the following
requirements:
Liability Insurance: During the entire term of this agreement, Edwards
agrees to procure and maintain General Liability insurance at its sole
expense. Such General Liability insurance shall be maintained in the
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following minimum limits: A combined single limit liability policy in
the amount of $2,000,000 or a commercial general liability policy with a
$2,000,000 occurrence limit and a $4,000,000 aggregate limit will be
considered equivalent to the required minimum limits.
Worker's Compensation Insurance: Edwards shall procure and maintain,
at its sole expense, Worker's Compensation Insurance in the amount of
$1,000,000 per occurrence or in such amount as will fully comply with
the laws of the State of California and which shall indemnify, inure and
provide legal defense for both Edwards and the CITY against any loss,
claim or damage arising from any injuries or occupational diseases
happening to any worker employed by Edwards in the course of carrying
out the work within the Agreement. Such insurance shall also contain a
waiver of subrogation naming the City of Santa Clarita.
Automotive Insurance: Edwards shall procure and maintain, at its sole
expense, throughout the term of this Agreement, and any extension
thereof, public liability and property damage insurance coverage for
automotive equipment with coverage limits of not less than $1,000,000
combined single limit. All such insurance shall be primary insurance
and shall name the City of Santa Clarita as an additional insured.
All of such insurance shall be primary insurance and, shall name the
City of Santa Clarita as additional insured. Insurance must be placed
with insurers admitted to do business in California, with a current A.M.
Best Company Rating equivalent to at least a Rating of "A:VII". A
Certificate of Insurance and an additional insured endorsement (for
general and automobile liability) using form GECG 602 (01/11) or
similar, evidencing the above insurance coverage with a company
acceptable to the City's Risk Manager shall be submitted to City prior to
Edwards undertaking any work pursuant to this Agreement.
5.8 Notices. Any notice or communication required hereunder between the Parties
must be in writing, and must be given either personally or by registered or
certified mail, return receipt requested. If given by registered or certified mail,
the same will be deemed to have been given and received on the first to occur of
(i) actual receipt by any of the addressees designated below as the Parry to whom
notices are to be sent, or (ii) five (5) days after a registered or certified letter
containing such notice, properly addressed, with postage prepaid, is deposited in
the United States mail. If personally delivered, a notice will be deemed to have
been given when delivered to the Party to whom it is addressed. Any Party hereto
may at any time, by giving ten (10) days' written notice to the other Party hereto,
designate any other address in substitution of the address, or any additional
address, to which such notice or communication may be given. Such notices or
communications must be given to the Parties at their addresses set forth below:
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To City: City of Santa Clarita
Santa Clarita City Hall
23920 Valencia Boulevard
Suite 300
Santa Clarita, CA 91355
Attn: Director of Community Development
To Edwards: Edwards Outdoor Advertising, Inc.
Post Office Box 220417
Newhall, CA 91322
Attention: Julie Edwards -Sanchez
5.9 Severability. If any provisions, conditions, or covenants of this Agreement, or
the application thereof to any circumstances of any Party, is held invalid or
unenforceable, the remainder of this Agreement or the application of such
provision, condition, or covenant to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable will not be affected thereby
and will be valid and enforceable to the fullest extent permitted by law.
5.10 Time of the Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
5.11 Waiver. No waiver of any provision of this Agreement will he effective unless in
writing and signed by a duly authorized representative of the Party against whom
enforcement of a waiver is sought and refers expressly to this Section. No waiver
of any right or remedy with respect to any occurrence or event will be deemed a
waiver of any right or remedy with respect to any other occurrence or event.
5.12 No Third Party Beneficiaries. The only Parties to this Agreement are the City
and Edwards, and their successors -in -interest, transferees, or assignees, as the
case may be. There are no third party beneficiaries and this Agreement is not
intended, and will not be construed to benefit or be enforceable by any other
person whatsoever.
5.13 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties and there are no oral or written
representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein or therein (or
any such representations, understandings or ancillary covenants, undertakings or
agreements are integrated in this Agreement) and no testimony or evidence of any
such representations, understandings, or covenants will be admissible in any
proceedings of any kind or nature to interpret or determine the provisions or
conditions of this Agreement.
5.14 Legal Advice; Neutral Interpretation; Headings. Each Party acknowledges
that it has received independent legal advice from its attorneys with respect to the
advisability of executing this Agreement and the meaning of the provisions
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13
hereof. The provisions of this Agreement will be construed as to their fair
meaning, and not for or against any Party based upon any attribution to such Party
as the source of the language in question. The headings used in this Agreement
are for the convenience of reference only and will not be used in construing this
Agreement.
5.15 Expedited Processing of Legal Actions. Each Party agrees to cooperate in the
expedited processing of any legal action seeking specific performance,
declaratory relief or injunctive relief, to set court dates at the earliest practicable
date(s) and not cause delay in the prosecution/defense of the action, provided such
cooperation will not require any Party to waive any rights.
5.16 Nonliability of City Officials. No officer, official, member, employee, attorney,
agent, or representatives of the City will be liable for any amounts due hereunder,
and no judgment or execution thereon entered in any action hereon relative to any
amounts due hereunder will be personally enforced against any such officer,
official, member, employee, attorney, agent, or representative.
5.17 No Brokers. Each Party represents and warrants to the other that it has not
employed any broker and/or finder to represent its interest in this transaction.
Each Party agrees to indemnify and hold the other free and harmless from and
against any and all liability, loss, cost, or expense (including court costs and
reasonable attorney's fees) in any manner connected with a claim asserted by any
individual or entity for any commission or finder's fee in connection with this
Agreement arising out of agreements by the indemnifying party to pay any
commission or finder's fee.
5.18 Counterparts. This Agreement may be executed in duplicate originals, each of
which is deemed to be an original. This Agreement, not counting the Cover Page,
consists of _ pages and (__) Exhibits.
5.19 Attorneys' Fees. If any party to this Agreement brings an action or proceeding to
enforce the terms of this Agreement or declare rights under this Agreement, the
prevailing party in any such proceeding, action, or trial or appeal, shall be entitled
to reasonable attorney's fees to be paid by the losing party as fixed by the Court.
Such fees may be awarded in the same suit or recovered in a separate suit,
whether or not such action or proceeding is pursued to decision or judgment. The
term, "prevailing party" shall include, without limitation, a party who
substantially obtains or defeats the relief sought, as the case may be, whether by
compromise, settlement, judgment, or the abandonment by the other party of its
claim or defense. The attorney's fee award shall not be computed in accordance
with any court fee schedule, but shall be such as to reimburse all attorneys' fees
reasonably incurred.
16
14
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
ATTEST:
IM
City Clerk
APPROVED AS TO FORM:
M
City Attorney
City: CITY OF SANTA CLARITA
Mayor
EDWARDS OUTDOOR ADVERTISING,
INC.
ma
LN
[End of signatures]
15
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EXHIBIT A
1.
Newhall Ave. west line 2000' s/Race St.
6'x12'
F/N
John Murray
(used car lot)
6'x12'
F/S
John Murray
3.
Newhall Ave. west line 877' s/Race St.
8'x12'
F/N
Dr. Soleimani
(arklin)
8'x12'
F/S
Kurt Bohmer
4.
Newhall Ave. west line 590' s/Race St.
6'x12'
F/N
KHTS
(arklin)
6'x12'
F/S
Dr. Soleimani
5.
Newhall Ave. west line 331' s/Race St.
8'x12'
F/N
John Murray
(arklin)
6'x12'
F/S
SCV TV
6.
Newhall Ave. west line 343' n/Pine St.
6'x12'
F/N
Available
(old union oil)
6'x12'
F/S
Miss SCV
7.
Newhall Ave. west line 100' s/51h St.
6'x12'
F/N
Sid's Available
(sub shop)
6'x8'
F/S
Sid's (available)
8.
Railroad Ave.west line 110' n/11'h St
6'x12'
F/N 25
Score Card (available)
(newhalllumber)
6'x12'
F/S
Available
9.
Railroad Ave.west line 18' s/12" St.
6'x12'
F/N
Dr. Solemani
10.
Railroad Ave.west line 226' n/12'h St.
6'x12'
F/N
**available**
(insurance bldg)
6'x12'
F/S
Pell Solar
11.
Railroad Ave.west line 750' n/15111 St.
6'x12'
F/N
plumbing authority
(motel)
8'x12'
F/S
Harley David
12.
Railroad Ave.west line 900' n/15'h St.
6'x12'
F/N
Saunders Construction
6'x12'
F/S
PSD Soils
13.
Railroad Ave.west line 1250' n/151h St.
6'x12'
F/N
Rowland Air
(Open lot)
6'x12'
F/S
KurtBohmer
14.
Railroad Ave.west line 1750' n/1 5'11 St.
6'x12'
F/N
Viking
(ahroundas)
6'x12'
F/S
Rowland Air
15.
Railroad Ave.west line 2150' n/15°i St.
6'x12'
F/N
Pell Solar
6'x12'
F/S
Nick Air
16.
Railroad Ave.west line 2300' n/15°i St.
6'x12'
F/N
Guardian Pool Fence
6'x12'
F/S
Bridge to Home
17.
Railroad Ave.west line 2550' n/15'h St.
6'x12'
F/N
Bridge to Home
(ahroundas)
6'x12'
F/S
25 Score
18.
Railroad Ave.west line 2800' n/15'h St.
6'x12'
F/N
Dr. Gin
(ahroundas)
6'x12'
F/S
Rowland Air
EOA Location list as of 03-06-14 1 �V
EXHIBIT A
19.
Railroad Ave.east line 650' n/circlej
8'x12'
F/N
available+
(railroad)
8'x12'
F/S
don cucos available
20.
Railroad Ave.east line 1200' n/circlej
8'x12'
F/N
available
(railroad)
8'x12'
F/S
available
21.
Railroad Ave.east line 1600' s/drayton
6'x12'
F/N
Available
(railroad)
6'x12'
F/S
B&R
22.
Railroad Ave.east line 300' s/drayton
6'x12'
F/N
Available
(railroad/lumber)
6'x12'
F/S
Available
23.
Railroad Ave.east line corner magic
6'x8'
F/N
All American Bail
(Saugussuperette)
6'x8'
F/S
Rowland Air
24.
Railroad Ave.east line 1077' n/magic
6'x12'
F/N
Wing Stop
(railroad)
6'x12'
F/S
Available
25.
Railroad Ave.east line 1278'n/magic
6'x12'
F/N
Massage Envy
(railroad)
6'x12'
F/S
Del Taco
26.
Bouquet Cyn Rd. east line 1496' s/soledad
6'x12'
F/N
Wingstop
(railroad)
6'x12'
F/S
Cinema Park
27.
Bouquet Cyn Rd. east line 885' s/soledad
6'x12'
F/N
Ski Outlet
(nextel)
6'x12'
F/S
All American Bail
28.
soledad Cyn Rd. south line 225' e/bouquet
6'x12'
F/W
Legacy
(chevron)
6'x12'
F/S
Kisho's
29.
soledad Cyn Rd. south line 1584' w/golden oak
8'x12'
F/W
Miss SCV
(railroad)
6'x12'
F/E
25 Score
30.
soledad Cyn Rd. south line 1055' w/golden oak
6'x12'
F/W
Bridge to Home
(railroad)Gladding Way?
6'x12'
F/E
Rowland Air
31.
soledad Cyn Rd. south line 805' w/golden oak
8'x12'
F/W
**available**
(railroad)
8'x12'
F/E
**available**
32.
soledad Cyn Rd. south line 480' w/golden oak
6'x12'
F/W
Line Drive
(railroad)
6'x12'
HE
Available
33.
soledad Cyn Rd. south line 230' w/golden oak
6'x12'
F/W
beer 98c (available)
(railroad)
6'x12'
F/E
Harley David
34.
soledad Cyn Rd. south line 452' e/golden oak
6'x12'
F/ W
Dr. Gin
(railroad)
6'x12'
F/E
Wingstop
35. soledad Cyn Rd. south line 951' a/golden oak 6'x12' F/W Philly's Best
6'x12' F/E Philly's Best
EOA Location list as of 03-06-14 2 \C\
EXHIBIT A
36. soledad Cyn Rd. south line 268' w/hope way 6'x12' F/W Massage Envy
6'x12' F/E Available
37. soledad Cyn Rd. south line 400' w/valley ctr 6'x12' F/W Available
6'x12' F/E Available
38. soledad Cyn Rd. south line @ valley center 6'x12' F/W G Stage
6'x12' F/E G -Stage
39. soledad Cyn Rd. south line 355' w/oak 6'x12' F/W Golden State Storage
6'x12' F/E Available
40. soledad Cyn Rd. south line 120' w/ruether 6'x12' F/W Shower Door
6'x12' F/E Miss SCV
57. soledad Cyn Rd. south line 150' e/ruether 6'x12' F/W available(Margarita's)
(Home depot) 8'x12' F/E available
41. soledad Cyn Rd. south line 250' e/ruether 6'x12' F/W Available+
(pep boys) 6'x12' F/E **available**
42. soledad Cyn Rd. s/line 1200'w/camp plenty 8'x12' F/W KurtBohmer
6'x12' F/E Available
43. Soledad Cyn Rd. n/line 230' w/camp plenty 6'x12' F/W (taken by prop owner
who does not control permit)
44. soledad Cyn Rd. south line 190' e/sand cyn 8'x12' F/W Kurt Bohmer
6'x12' F/E John Murray
45. Sand Cyn Rd. east line 325' s/soledad cyn 6'x12' F/N John Murray
6'x12' F/S Available
46. Sierra Hwy west line 886' s/soledad cyn 6'x12' F/N Rite Way Homes
6'x12' F/S Rite Way Homes
47. Sierra Hwy west line 1061' s/soledad cyn 8'x12' F/N Kurt Bohmer
8'x12' F/S John Murray
EOA Location list as of 03-06-14 3 /a�