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3 Streetlight Pole Use Agreement
Between the City of Menifee and
Mt. San Jacinto Community College District
Banner Program
This Streetlight Pole Use Agreement (“Agreement") is between Mt. San Jacinto Community College District (“District”) and the City of Menifee (“City”), each individually referred to as a “Party” and collectively referred to as the “Parties.”
RECITALS
A.WHEREAS, the District opened its Menifee Valley campus (the “Campus”) in the fall of 1990, beginning with its Allied Health and Fine Arts Program; and B.WHEREAS, since that time, the District has continued to invest in the Campus; and C.WHEREAS, the District opened the Business & Technology Center at the Campus in 2008, which provides instruction in geographic information systems, multimedia, and photography; and
D.WHEREAS, the District opened a new Humanities and Social Sciences building at the Campus in 2012; and
E.WHEREAS, the District opened a 60,000 square foot science, technology, engineering, and math facility and a 5,000-seat football stadium and kinesiology center at the Campus which serves as the largest on-field event center in the region; and F.WHEREAS, the City is proud to be home to the Campus and an educational partner of the student community; and
G.WHEREAS, the Campus serves the higher education needs of City residents, developing the local workforce and serving as an economic driver in the community; and H.WHEREAS, the educational programs and amenities at the Campus differentiate the City from other communities in the region, helping to establish the City’s unique identity in alignment with the City’s strategic plan; and
I.WHEREAS, the City is committed to expanding access to higher education which contributes to the City’s educational and economic growth and overall prosperity; and J.WHEREAS, accordingly, the City desires to permit the District, and the District desires to hang promotional banners on certain City streetlight poles identified herein in order to promote the Campus, subject to the terms and conditions of this Agreement.
NOW THEREFORE, the Parties agree as follows:
AGREEMENT
Section 1. Term
This Agreement shall be for a five (5) year term commencing on November 7, 2024, and terminating on November 7, 2029 (the “Term”). This Agreement will be re-evaluated for renewal prior to the termination date.
Section 2. Use
A. During the Term, and subject to the terms and conditions of this Agreement, the City hereby grants the District a nonexclusive license to hang banners relating exclusively to Campus’ facilities, students, and programming (the “Banners”) on City streetlight poles (“Poles”) in the locations indicated on Exhibit “A” (attached) hereto and incorporated herein by this reference.
In no event shall the District be authorized to sell or otherwise offer use of the Poles for any banners unrelated to the matters set forth in this Paragraph. The District shall endeavor to keep the Banners and associated hardware displayed on the Poles well-maintained throughout the Term. This excludes periods when Banners are being replaced or repaired per the terms of this Agreement. District will be responsible for the production, hanging, replacement, and removal of the Banners and any associated hardware per the requirements of this Agreement and Chapter 9.220 of the Menifee Development Code.
B. The District shall be responsible for complying with all applicable local, State, and Federal laws, rules, and regulations, including obtaining all permits, licenses, or other approvals required by local, State, and Federal law, rule, or regulation for the Banners and all associated hardware. The District shall fully comply with the requirements of such permits, licenses, or other approvals. Due to the City providing the District permission to hang the Banners on the Poles as provided hereunder, the City has determined that the Banners will not require a temporary sign permit pursuant to Chapter 9.220 of the Menifee Development Code. The City will notify the District when revisions are made to Chapter 9.220 of the Menifee Development Code.
C. For reference purposes only, a copy of the current Chapter 9.220 of the Menifee Development Code is attached hereto as Exhibit “C”, however, the District shall be required to comply with the current version of the Menifee Development Code at all times, which may include future amendments not shown. In addition to the foregoing, the hardware must be removable and not permanently affixed to the Poles. All Banners and associated hardware shall comply with the requirements set forth on Exhibit “B” (attached hereto and incorporated herein by this reference). The Banners and all associated hardware shall be removed by the District on or before the end of the Term. Damaged Banners shall be removed, satisfactorily repaired, or replaced by the District as soon as possible, but in no event more than five (5) business days after the District becomes aware of such damage. The District shall engage, at its sole cost, employees or contractors with demonstrated experience, skill, and competence in all work related to the Banners.
D. Due to the role the Poles play in the City’s infrastructure, the District acknowledges that the City may remove the Banners, including any damaged or nonapproved Banners, and any 3 | P a g e
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3 associated hardware where the City Manager or designee deems removal to be necessary to protect the public health, safety, and welfare, including, but not limited to where removal of the Banners is necessary to preserve the functionality of the Poles. The City will endeavor to provide notice to the District of any necessary removal and will use commercially reasonable efforts not to damage the Banners or hardware. Notwithstanding the foregoing, the City shall not be liable to the District for any cost associated with damaged Banners or hardware impacted under this Section.
Section 3. Independent Contractor Status
This Agreement is between two independent entities and is not intended to and shall not be construed to create the relationship of agent, employee, partnership, joint venture, or association.
Section 4. Indemnification, Risk, Limitation of Liability The District and the City will mutually protect, indemnify, and hold each other harmless from and against any costs, losses, claims, demands, suits, actions, payments and judgments, or other liabilities or expenses, including legal and attorney’s fees, and including but not limited to consequential damages, loss of use, and extra expense, that may arise out of or result from, in whole or in part of that party’s performance of this Agreement. Neither party shall have the obligation to indemnify, defend, or hold the other party harmless for the other party’s sole negligence or willful misconduct. This indemnity section shall survive the termination of the Agreement and is in addition to any other rights or remedies that the Parties may have under the law or this Agreement.
A. The District agrees that the City is permitting the District to hang the Banners from the Poles due to the District’s reputation as a responsible partner, and the District assumes full risk and responsibility for the production, hanging, maintenance, and removal of Banners.
B. The District shall be financially responsible to the City for any damage caused to the Poles or surrounding City property resulting from the District’s activities hereunder. In no event shall the City be liable to the District for any damage arising from the District’s activities hereunder.
Section 5. Insurance
The District shall maintain the following insurance at all times during the term of this Agreement, as indicated below:
A.Comprehensive Liability Insurance. Comprehensive liability insurance, including protective, completed operations and broad form contractual liability, property damage, and personal injury coverage, and comprehensive automobile liability including owned, hired, and non-owned automobile coverage. The limits of such coverage shall be at a minimum: (1) bodily injury including death, $1,000,000 for each person and each occurrence and $2,000,000 in the aggregate; and (2) property damage, $1,000,000 for each occurrence and $2,000,000 in the aggregate.
B.Workers' Compensation and Employer's Liability Insurance. The minimum limit of Workers' Compensation Insurance shall comply with the limits required by California law. The limit of employer's liability coverage shall be $1,000,000.
C.Property Insurance. The District shall maintain appropriate insurance against loss or damage to any part of the Poles and underlying City property against all perils included within the classification of fire, extended coverage, vandalism, and malicious mischief.
D.Additional Insured. The District shall name the City, its officers, officials, and employees as additional insureds on all aforementioned insurance policies with respect to liability arising out of work or operations performed by or on behalf of the District, including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the District or its contractor(s). The policies shall provide that the insurance company or the insured party may affect no cancellation, major change in coverage or expiration without first giving the City written notice prior to the effective date of such cancellation or change in coverage.
E.Changes or Cancellations. In the event of any change or cancellation of coverage, the District shall provide the City with substitute certificates of insurance evidencing that the insurance required hereunder will continue throughout the Term. In the event the District does not provide such proof of coverage, the City may immediately terminate this Agreement by providing written notice to the District and provide at least thirty (30) days for the District to remove the Banners and associated hardware as further required by Section 6 hereof.
F.Contractors. The District shall require and verify that all contractors maintain insurance meeting all the requirements stated herein, and the District shall ensure that the City is an additional insured on insurance required from contractors.
Section 6. Termination, Removal
Either Party may terminate this Agreement at any time, for any reason, by providing thirty (30) day written notice. The District will be responsible for removing all Banners and hardware from the Poles prior to the termination date. In the event the District fails to remove the Banners and/or any associated hardware, the City may opt to perform the necessary removals to its satisfaction and invoice the District for the City’s actual costs. The District shall pay such invoice within thirty (30) days. Exhibit “D” provides an approximate hourly cost of the vendor the City currently utilizes; the actual rate will depend on the contractor and fiscal year.
Section 7. Notices
All notices and other communications to be given by either Party must be in writing and may be effective by personal delivery, overnight courier, or first class or certified mail, return receipt requested and addressed to the appropriate Party as follows:
To the District: To the City:
Mt. San Jacinto Community College District
41888 Motor Car Parkway
Temecula, CA 92591
Attention: Vice President of Business Services
City of Menifee
29844 Haun Rd.
Menifee, CA 92586
Attention: City Manager
Notice shall be deemed received on the date personally delivered or, if mailed, three (3) days after deposit in the mail. Notice provided by overnight delivery shall be deemed received on the next business day after delivery by the overnight delivery service. A Party may change its address and/or addressee by written notice to the other Party at any time. 5 | P a g e
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3 Section 8. Remedies and Resolution
Subject to the foregoing requirements, the Parties agree that any controversy or claim, including any claim of misrepresentation, arising out of or related to this Agreement, or Parties’ rights and obligations under this Agreement, shall be settled by arbitration under the then current rules of the American Arbitration Association. The Parties agree to equally share in the arbitration fees and costs. Any arbitration hereunder shall be held in Riverside, California.
Section 9. Subcontract and Assignment
Neither the City nor the District shall assign its rights, duties, or privileges under this Agreement, nor shall the City or District subcontract or attempt to confer any of its rights, duties, or privileges under this Agreement on any third party without the written consent of the other Party. Any such attempt without the other Party's written consent shall be void.
Section 10. Survival
All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between the Parties shall survive the expiration or termination of this Agreement.
Section 11. Time
Time is of the essence in this Agreement and for the performance of this Agreement.
Section 12. Applicable Law
This agreement shall be interpreted and enforced under the laws of the State of California, County of Riverside.
Section 13. Severability
If any term, provision, covenant, or condition of this Agreement shall be determined to be invalid, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected to the extent the remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement.
Section 14. Waiver
The waiver by either Party of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, condition, or any subsequent breach of the same or any other term, covenant, or condition herein contained.
Section 15. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors, and assigns.
Section 16. Captions
The captions contained in this Agreement are for convenience only and shall not in any way affect the meaning or interpretation hereof or serve as evidence of the interpretation hereof, or of the intention of the Parties hereto.
Section 17. Entire Agreement, Amendment, Construction
This Agreement is the entire agreement of the Parties and supersedes all prior negotiations and agreements whether written or oral. This Agreement may be amended only by written agreement signed by the Parties and no purported oral amendment to this Agreement shall be valid. 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. Exhibits “A” and “B” are incorporated herein by reference.
Section 18. Authority to Execute.
The persons executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other agreement to which said Party is bound.
Section 19. Counterparts
This Agreement and all amendments and supplements to it may be executed in counterparts, and all counterparts together shall be construed as one document. 7 | P a g e
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3 IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective on the day and year first above written.
CITY OF MENIFEE MT. SAN JACINTO COLLEGE
DISTRICT
Armando G. Villa, City Manager Signed
Attest: Printed Name
Title
Stephanie Roseen, Acting City Clerk
Date
Approved as to Form:
Jeffery T. Melching, City Attorney
Exhibit “A”
EXHIBIT “A”
Banner Locations
Exhibit “B”
EXHIBIT "B”
Banner and Hardware Requirements
•Two 16-ounce matte vinyl, double-stitched hem banners with ultraviolet coating, sewn back-to-back for a total weight of 32 ounces
•Reinforced grommets
•Recommended hardware:
oWindbreaker ™ banner system with adjustable band
oBand-It™ strapping material, buckles and tools
oWithstand sustained 70 mph winds
Exhibit “C”
EXHIBIT “C”
Menifee Development Code Chapter 9.220 as of March 8, 2024.
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
Exhibit “C”
EXHIBIT “D”
City Vendor Hourly Rate for Banner Removal as of July 1, 2024