BILLBOARD RELOCATION AGREEMENT
THIS BILLBOARD RELOCATION AGREEMENT (“the Agreement”) is made and entered into as of this _____ day of ______, 2022 (the “Effective Date”), by and between the CITY OF H ESPERIA, a California municipal corporation (“the City”), and LAMAR CENTRAL OUTDOOR, LLC, a Delaware limited liability company (“the Company”). Hereafter the City and the Company are sometimes referred to as “Party” or collectively as the “Parties.”
RECITALS
WHEREAS, Company owns and operates billboard advertising structures within the city limits of City (each a “Billboard” and collectively the “Billboards”); and WHEREAS, the California Outdoor Advertising Act, Business and Professions Code, Section 5200, et. Seq. (in particular Bus. & Prof. Code Section 5412) , encourages local entities and display owners to enter into relocation agreements which allow local entities to continue development in a planned manner without expenditure of public funds while allowing the continued maintenance of private investm ent and a medium of public communications; and
WHEREAS, the California Outdoor Advertising Act specifically empowers and encourages local agencies to enter into relocation agreements on whatever terms are agreeable to the City and display owners, and to adopt ordinances and resolutions providing for relocation of billboards; and
WHEREAS, the Hesperia Municipal Code Section 16.36.100(C) allows an existing legal, non-conforming billboard to be relocated pursuant to a Billboard Relocation Agreement and converted to a digital advertising display at a ratio of three (3) sign faces to one (1); and
WHEREAS, Company desires to remove the Billboards as identified in Exhibit “A” to this Agreement comprising of three (3) faces (the “Original Billboards”), in exchange for the right to erect one (1) digital advertising display in compliance with the City Municipal Code on the property identified in Exhibit “B” (the “Relocated Billboard”); and
WHEREAS, City and Company now wish to enter into an agreement to memorialize the terms and conditions upon which Company will have the right to remove the Original Billboards and erect the Relocated Billboard.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by reference, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the mutual covenants set forth herein, the Parties hereby agree as follows:
1. Term of Agreement. Unless earlier terminated as provided for herein, this Agreement shall continue in full force and effect for so long as any obligation is owed by either Party pursuant to the terms of this Agreement.
2. P ermanent Removal of Original Billboards.
a. In exchange for the ability to develop the Relocated Billboard identified in Exhibit “B”, Company shall permanently remove those Original Billboards identified in Exhibit “A”. Each of the Original Billboards currently holds the status of a legal non- conforming use as the term is defined by the City Development Code. The Company shall, at its sole cost and expense, secure all required permits necessary to remove the Original Billboards, including but not limited to, the City’s demolition permits. Company intends that the Relocated Billboard will remove old, obsolete displays and allow for modernized displays in the City.
b. The Company shall complete removal of the Original Billboards within one-hundred eighty (180) days of the Effective Date of the City’s approval of sign permits for the Relocated Billboard. For purposes of this Section 2.b, the term “Effective Date” means : (1) the expiration of all administrative appeal periods provided for by the City Development Code and applicable to the City’s approval of sign permits; or (2) if an administrative appeal is filed, the date upon which either the Planning Commission and/or City Council approval becomes final; and (3) if a judicial action is filed challenging the City’s action in regards to the permits, the date upon which any superior court action or district court action becomes final. If a lower court’s decision is appealed and an appellate court reverses the judgment of a lower court, the Company agrees to abide by the ruling of any appeals court including (but not limited to) returning to the previous status quo by removing and dismantling the electronic billboards erected pursuant to this Agreement.
Notwithstanding the foregoing, the Company shall not be entitled to commence construction and installation of the Relocated Billboard prior to the removal of all of the Original Billboards. The Company shall have no obligation to remove any of the Original Billboards, pursuant to the terms of this Agreement, if the City does not approve the Company’s sign permit application for the Relocated Billboard, or if a court of competent jurisdiction invalidates the City’s approval of the sign permits. Should the City fail to approve the Company’s sign permit application or should said approvals be invalidated, the obligations of the Parties under this Agreement shall terminate, and the Agreement shall be of no further force and effect.
3. Relocated Billboard. Upon the permanent removal of the Original Billboards, Company shall be entitled to construct the Relocated Billboard upon the property identified in Exhibit “B”, the precise location of which shall be determined within the sole discretion of Company. The Relocated Billboards may include Digital Displays as defined within Hesperia Municipal Code Section 16.36.020. The Relocated Billboard shall comply with all the development standards set forth in Section 16.36.100 of the Hesperia Municipal Code.
4. On
e -Time Payment to City. As material consideration for City allowing Company to construct and operate the Relocated Billboard, Company shall pay the City a one-time payment of Two -Hundred and Fifty Thousand Dollars ($250,000.00) for the benefit of the City’s Ranchero Interchange public art project, due to the City when the Relocated Billboard is fully operational.
5. Indemnity. Company, as a material part of the consideration to be rendered to City under this Agreement, shall indemnify City, its agents and employees and any successors or assigns to the City’s rights under this Agreement (collectively “City Parties”) and shall hold and save them and each of them harmless from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (hereinafter “Indemnified Claims and Liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the use and maintenance of the Relocated Billboard by Company, its officers, agents and employees (collectively “Company Parties”), but only to the extent any such Indemnif ied Claims and Liabilities arise from (a) the failure of the Company to keep the Billboard in good condition and repair, (b) the negligent acts or omissions of Company hereunder, or (c) Company’s negligent performance of or failure to perform any term or covenant of this Agreement, and in connection with the foregoing indemnity:
a. Company shall defend any action or actions filed in connection with any of said Indemnified Claims and Liabilities and will pay all costs and expenses, including legal costs and at torneys’ fees incurred in connection therewith; and
b. Company shall promptly pay any judgment rendered against the City and the City Parties for any such Indemnified Claims and Liabilities; and Company shall save and hold City and City Parties harmless therefrom; and
c. In the event City Parties are made a party to any action or proceeding filed or prosecuted against Company Parties for such Indemnified Claims and Liabilities, Company shall pay to City any and all costs and expenses incurred by City Parties in such action or proceeding, including but not limited to, legal costs and attorneys’ fees.
Company and City further acknowledge that Company shall not indemnify City Parties for any Indemnified Claims and Liabilities caused by or arising out of the gross negligence or willful misconduct of City Parties.
6. Company’s Advertising Policy. The Parties acknowledge that public advertising is an important form of public communication. City desires to preserve this type of communication while preserving the character of the community and prevent exposure of its residents to advertising which City’s residents might find offensive .
Accordingly, Company shall be prohibited from displaying such offensive advertising material including, but not limited to, advertising for adult businesses, cabarets, and strip clubs or lingerie.
7. G
eneral Provisions.
a. Assignment . Company may only assign or otherwise transfer this Agreement to any other person, firm, or entity, upon presentation to the City of an assignment and assumption agreement in a form reasonably acceptable to the City Attorney and upon receipt of City’s written approval of such assignment or transfer by City Manager; provided, however, that Company may, from time to time and one or more times, assign this Agreement to one or more persons or entities without City approval, but with written notice to City, as long as Lamar Central Outdoor, LLC or entities owned or controlled by it have and maintain at least a twenty percent (25%) ownership interest in such entities who are the assignees or transferees. After a transfer or assignment as permitted by this Section, City shall look solely to such assignee or transferee for compliance with the provisions of this Agreement which have been assigned or transferred. b. Waiver. The waiver by any Party of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any other term, covenant or condition, or of any subsequent breach of the same term, covenant or condition.
c. N
otices . All notices and other communications required or permitted to be given hereunder shall be in writing and shall be sent by: ( a) certified or registered mail, postage pre -paid, return receipt requested, (b) personal delivery, or ( c) a recognized overnight carrier that provides proof of delivery, and shall be addressed as follows:
If to Company:
Lamar Central Outdoor, LLC
Attn: Jim Moran
P.O. Box 829
Lancaster, CA 93584
With a Copy to:
If to City:
City of Hesperia
Attn: City Manager
9700 Seventh Ave.
Hesperia, CA 92345
With a Copy to:
Stream Kim Hicks Wrage Alfaro
Attn: Theodore Stream, Esq.
3403 Tenth Street, Suite 700
Riverside, CA 92501
Aleshire & Wynder, LLP
Attn: Eric Dunn, Esq.
3880 Lemon Street, Suite 520
Riverside, California 92501
Notices shall be deemed effective upon receipt or rejection only. d. Authority to Enter Agreement . All Parties warrant that the individuals who have signed the Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
e. A
mendment/Modification . No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by all Parties.
f. A
ttorneys’ F ees. In the event of litigation between the parties arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs and expenses incurred, including attorneys’ fees on appeal, and all other reasonable costs and expenses for investigation of such action, including the conducting of discovery, in addition to whatever other relief to which it may be entitled. g. Time is of the Essence. Time is of the essence of each and every provision of this Agreement.
h. M iscellaneous . This Agreement embodies the entire Agreement between the Parties and supersedes any prior or contemporaneous understandings between the Parties related to the Agreement. In the event of a dispute between the Parties hereto, the prevailing party shall be entitled to recover its attorney’s fees and other costs and expenses incurred in connection therewith, whether or not suit is filed or is pursued to judgment and including any such fees or costs incurred in connection with any appeal, or any bankruptcy proceeding. If any provision of this Agreement is held to be invalid, the balance shall remain binding upon the Parties. This Agreement shall be interpreted in accordance with its plain meaning, and not in favor of or against either Party. This Agreement shall be construed according to the laws of the State of California. i. C
ounterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date set forth below.
ATTEST:
“CITY”:
CITY OF HESPERIA
By: ________________________________
City Manager
By: __________________________________
City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By: __________________________________
City Attorney
“COMPANY”
LAMAR CENTRAL OUTDOOR
By: ________________________________
By: Jim Moran
Its: Vice President & General Manager
Exhibit “A”
Billboard
#
Location Size (HxW) Type Faces
1. I-15 EL 2000’ S/O Oak Hills Road 14’x48’ Static 1
2. I-15 EL ¼ Mile S/O Oak Hills Road 14’x48’ Static 1
3. I-15 EL ¼ Mile S/O Oak Hills Road
14’x48’ Static 1
Billboard Face#1:
Billboard Face #2:
Billboard Face #3:
9 Exhibit “B”
SITE FOR RELOCATED BILLBOARD
Location Size (HxW) Type Faces
1. I-15 EL 2020’ S/O Oak Hills Road 14’ x 48’ Electronic 1