RIGHT-OF-WAY USE AGREEMENT FOR WAYFINDING SIGNS
This RIGHT-OF-WAY USE AGREEMENT FOR WAYFIDING SIGNS ("Agreement") dated as of June 1, 2021, is made by and between City of San Jacinto, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 595 South San Jacinto Avenue, San Jacinto, California 92583 ("City") and The Building Industry Association of Southern California, a non-profit association in the State of California with its principal place of business at 24 Executive Park, Suite 100, Irvine, CA 92614 ("BIA") (City and BIA are collectively referred to as the "Parties").
RECITALS
A. The BIA and the City seek to establish a mutually acceptable program of wayfinding signage within the City that provides assistance to motorists and pedestrians and directions to destinations within the City, as well as providing directions to new residential subdivisions in the City's jurisdictional boundaries.
B. BIA is a nonprofit corporation with a mission of increasing City's home supply and promoting homeownership and home affordability. BIA sponsors sign programs within other jurisdictions in the State of California. Such sign programs include placement of semi-permanent signs in the public right-of-way ("ROW") that navigate motorists and pedestrians to new residential subdivisions ("Wayfinding Signs"). The purpose of BlA's Wayfinding Signs is to direct prospective homebuyers toward new residential subdivisions in a manner that maximizes visibility while minimizing visual clutter, reducing unnecessary traffic through established neighborhoods, and providing an orderly, attractive, high-quality image of City. BIA will establish, operate, and maintain Wayfinding Signs consistent with the City of San Jacinto Municipal Code ("SJMC").
C. The State of California is experiencing a housing crisis caused by a shortage of housing stock. Facilitating the sale and efficient occupancy of newly constructed housing stock within the City is a legislatively-declared issue of statewide concern and advances the goal of addressing the housing shortage.
D. Pursuant to the Subdivision Map Act, Government Code Section 66410 et seq., City is responsible for regulating and controlling the design and improvement of residential subdivisions within City. In carrying out its functions, City approves the residential subdivisions that are displayed on BIA's Wayfinding Signs. The City has economic and aesthetic interests in ensuring that residential subdivisions approved by and located within City are successful. BIA's wayfinding program furthers those interests.
E. By this Agreement, City and BIA desire to set forth the terms under which BIA will establish, operate and maintain Wayfinding Signs in the City's ROW.
NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, City and BIA agree as follows:
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AGREEMENT
1. Recitals. The above Recitals to this Agreement are declared by the Parties to be true and correct in all material aspects and are hereby incorporated into this Agreement as if fully set forth below.
2. Terms of Use of ROW. BIA may install, operate, and maintain Wayfinding Signs upon obtaining appropriate approvals from the City and at locations approved by the City. The Wayfinding Signs shall be installed, operated and maintained in accordance with the following standards:
a. Each Wayfinding Sign is approximately 110 inches by 72 inches in size. A Wayfinding Sign may not be enlarged or expanded without the express written consent of the City Manager or his or her designee.
A Wayfinding Sign may only contain City's name, the name of a City- approved subdivision, name of a City facility, name of a regional tourist destinations located in the City, and a directional arrow.
Notwithstanding this provision, and as part of the consideration of this Agreement, the City may utilize up to 25 percent of the sign panels for providing directional signs to City amenities or City public service announcements. BIA and the City shall work together to facilitate any City request to utilize space on the Wayfinding Signs pursuant to this section. The Parties understand that the primary purpose of the Wayfinding Sign is to facilitate the sale and efficient occupancy of newly constructed housing stock within the City ("Primary Purpose"). In the event a Wayfinding Sign no longer is necessary to achieve the Primary Purpose, BIA may cause it to be removed from the ROW, notwithstanding its use by the City pursuant to this subsection b.
C. No Wayfinding Sign may contain tags, streamers, devices, display boards, or any appurtenances that protrude beyond the Wayfinding Sign's approved dimensions.
This is not, and will not be interpreted to be, a grant of a fee interest or any permanent possessory right in the ROW. The City reserves all rights attendant to its ownership of the ROW, including but not limited to, the use and enjoyment of the ROW for all purposes not inconsistent with the terms and conditions of this Agreement. BIA shall not cause liens of any kind to be placed against the ROW. e. BIA shall be responsible for any damage to the ROW resulting from any exercise of the rights herein granted. BIA shall, at its sole cost and expense, immediately repair (or cause to be repaired) such damage and restore (or cause to be restored) the ROW to a condition at least equal to the pre-Wayfinding Sign condition.
Upon termination of this Agreement or revocation in accordance with Section 11 of this Agreement, BIA shall promptly remove all -2-
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Wayfinding Signs from the ROW and restore the ROW to the state it was prior to any rights conferred to BIA herein, except normal wear and tear. In the event BIA fails to meet the requirements of this Section, BIA shall be responsible for any costs incurred by the City to return the ROW to the condition required herein.
g. Final design shall be approved in writing by City Manager, or his/her designee prior to fabrication or installation of any signs. h. Weekend Signs: Notwithstanding any other provision herein, BIA may avail itself of the rights afforded by this Agreement to install temporary weekend signs, in substantial conformance to the terms and standards provided in Exhibit C.
3. Scope. BIA promises and agrees to furnish all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and a cost adequately install, operate, and maintain the Wayfinding Signs at no cost to the City ("Services"), except as provided in Exhibit "B" ("Removal of Existing Signs"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations, including, but not limited, to the SJMC. In addition to the items identified on Exhibit A, the Services shall contemplate the following:
• BIA shall contact all builders who may be interested in participating in the Wayfaring Sign program contemplated by this Agreement ("Program") and register them in the Program if they so desire.
• BIA shall act as the point of contact for all builders who are involved in the Program and shall be responsible for all builder concerns and transactions. • BIA shall act as the point of contact for the City and handle all City concerns and requests.
• BIA shall directly invoice all Program participants for participation in the Program.
• BIA shall arbitrate any differences between its agents, officers, employees, subcontractors or representatives and Program participants. • The City shall not have any contractual relationship with any Program participant.
Within 48 hours of notification, BIA shall repair or remove any and all sign panels damaged due to theft, vandalism, graffiti, fading, or any other damage not mentioned herein.
4. Term. The term of this Agreement shall be from June 1, 2021, to June 30, 2023, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement for five additional one-year terms. -3-
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BIA shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.
Termination. Either party may cancel this Agreement, with or without cause, by giving 30 (thirty) days' notice to the other party.
BIA Not Employee of City. BIA shall not be deemed to be an employee of the City. BIA shall determine the means, methods and details of performing the Services subject to the requirements of this Agreement. BIA retains the right to perform similar or different services for others during the term of this Agreement. The City retains the right to employ other vendors to perform similar services as BIA during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of BIA shall also not be employees of City and shall at all times be under BIA's exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of BIA or any of BIA's officers, employees, or agents, except as set forth in this Agreement. Notwithstanding this provision, any other Wayfinding Signs installed within the ROW of the City not covered by this Agreement or other City-issued approval or permit shall be deemed to constitute a nuisance subject to removal/abatement under the procedures set forth in the SJMC.
Standard of Care. BIA shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.
Indemnification. To the fullest extent permitted by law, BIA shall fully defend (with counsel reasonably acceptable to the City), indemnify and hold harmless City, its officials, officers, employees, consultants, contractors, legal counsel, and agents ("Indemnified Parties"), from and against any and all liabilities, claims, suits, causes of action, fines, penalties, proceedings, damages, injuries, losses, costs, or expenses of any name, kind or description ("Action" or "Actions"), specifically including all attorneys' fees and costs ("Liabilities"), to the extent arising out of the City's decision to enter into this Agreement, City's granting of permission for BIA to place Wayfinding Signs in the ROW, BIA's installation, maintenance or operation of signage in the ROW, or the actions of BIA's contractors, subcontractors, agents, employees, or other persons acting on BIA's behalf with respect to the Wayfinding Signs.
8.1. BIA shall pay and satisfy any judgment, award, or decree that may rendered against the Indemnified Parties or any settlement as part of any Action.
BIA shall reimburse the City for all Liabilities that the City incurs as a result of the Actions.
8.2. To the extent the City incurs Liabilities related to an Action covered by Section 8 herein, BIA shall remit payment to City within thirty (30) days of receipt after a written request therefor accompanied by an invoice and written documentation substantiating such Liabilities. BIA's indemnification obligations shall not be limited to the amount of any insurance coverage that may be available to BIA, and shall not otherwise be restricted or confined by the presence or absence of any policy of insurance held by City or BIA. BIA's obligation to indemnify shall survive expiration or termination of this Agreement. -4-
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8.3. Notwithstanding the foregoing, BIA shall not be obligated to indemnify and hold the Indemnified Parties harmless from Actions arising from the sole negligence or willful misconduct of the Indemnified Parties.
9. Insurance. BIA shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, BIA shall not allow any sub-consultant to commence work on any sub-contract for Services until it has provided evidence satisfactory to the City that the sub-consultant has secured all insurance required under this section.
9.1. Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, BIA, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, BIA agrees to amend, supplement or endorse the policies to do so.
9.1.1. Commercial General Liability: Commercial General Liability Insurance which affords coverage with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate for bodily injury, personal injury and property damage, at least as broad as Insurance Services Office Commercial General Liability most recent Occurrence Form CG 00 01.
9.1.2. Automobile Liability Insurance: Automobile Liability Insurance with covering bodily injury and property damage including coverage for owned, non-owned and hired vehicles for all activities with limits of not less than $1,000,000 combined limit for each occurrence at least as broad as most recent Insurance Services Office Form Number CA 00 01 covering automobile liability, Code 1 (any auto).
9.1.3. Workers Compensation. Workers' Compensation Insurance in compliance with applicable statutory requirements and Employer's Liability Coverage of at least $1,000,000 per occurrence.
9.1.4. Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
9.1.5. Evidence of Insurance. BIA, as a condition precedent to the effectiveness of this Agreement, shall deliver or cause to be delivered either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy.
9.1.6. Miscellaneous. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against the City, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow BIA or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Coverage provided by BIA shall be primary and any insurance or self- -5-
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insurance procured or maintained by City shall not be required to contribute with it.
9.2 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VI I and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
Permits. The City agrees to promptly, to the extent reasonably possible, process any City permits necessary for installation of the Wayfinding Signs and/or the Services. BIA agrees to comply with the terms of any such permits.
11. Revocation of Right to Use Public Right-of-Way/Sign Removal for Emergencies. Subject to any relevant provisions of the SJMC or any other relevant provision of law, including proper statutory or common law process, the City Manager may revoke BIA's right to maintain or place Wayfinding Signs in the ROW at any time -- for good cause. -- by providing BIA fifteen (15) days' written notice of City's election to revoke such permission. The City Manager's decision to revoke BIA's permission to maintain or place Wayfinding Signs in the ROW shall have the effect of terminating this Agreement, including, without limitation, any ongoing obligations, excluding the obligation to indemnify the City as set forth in section 3 and obligations subject to survival in section
12. In the event of an emergency imminently affecting health, safety and welfare, City may remove or cause to be remove any Wayfaring Sign without notice to BIA ("Emergency Removal").
12. Survival. The obligations of BIA pursuant to this Agreement shall continue to be the liability and obligation of BIA, binding upon BIA until the final resolution of all Actions covered by this Agreement and final payment of all fees and costs, including attorneys' fees, required by this Agreement.
13. Discharge. No dissolution, liquidation, insolvency, bankruptcy or other matter with respect to BIA shall affect any of BIA's obligations hereunder.
14. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement, or the application of any such provision to any person or circumstance, shall, to any extent, be held to be invalid, illegal or unenforceable under applicable law, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is invalid, illegal or unenforceable, shall not be affected thereby.
15. Notice to Parties. All notices and demands or other communications hereunder shall be in writing, and shall be deemed to have been sufficiently given or served for all purposes when presented personally or sent by generally recognized overnight delivery service, with postage prepaid, addressed to BIA or City, as applicable, at the addresses stated below, or at such other address of which either BIA or City may hereafter notify the other in writing:
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BIA: Building Industry Association of Southern California 17192 Murphy Ave. #14445
Irvine, CA 92623
Attn: Craig Foster
City: City of San Jacinto
595 S. San Jacinto Avenue
San Jacinto, CA 92583
Attn: City Manager
Each notice or demand so given or served shall be deemed given and effective, (a) if personally delivered, on the day of actual delivery or refusal and (b) if sent by generally recognized overnight delivery service, on the next business day. Notwithstanding the foregoing, service of any notice of default provided or required by law shall, if mailed as required by law, shall be deemed given and effective forty-eight (48) hours after the date of mailing.
16. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the law of the State of California, without regard to principles of conflicts of law.
17. Entire Agreement. This Agreement contains the entire understanding of the Parties, and there are no further or other Agreements or understandings in effect between the Parties hereto relating to the subject matter hereof, and any prior understanding or Agreement of the Parties shall not be binding unless set forth herein, and, except to the extent expressly provided for herein, no amendments of this Agreement may be made without the written consent of both Parties hereto
18. Changes and Modifications. This Agreement cannot be changed or modified, except by a written instrument signed by BIA and City.
19. Legal Construction. This Agreement shall be given a fair and reasonable construction in accordance with the intentions of the Parties and without regard for or aid from any canons requiring construction against the party drawing this Agreement. As used in this Agreement, (a) the terms "herein," "hereto," "hereof" or "hereunder" or similar terms used in this Agreement refer to this Agreement as a whole and not to any particular provision and (b) the word "including" shall mean "including, without limitation". Unless otherwise stated, all references herein to Sections are references to Sections of this Agreement.
20. Attorneys' Fees and Court Venue. Should either party to this Agreement bring legal action against the other, (formal judicial proceeding, mediation or arbitration), the case shall be handled in Riverside County, California, and the party prevailing in such action shall be entitled to a reasonable attorneys' fee which shall be fixed by the judge, mediator or arbitrator hearing the case and such fee shall be included in the judgment, together with all costs.
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21. Opportunity to Cure. If the City determines that, for any reason, BIA has not complied with any provision of this Agreement, the City shall notify BIA and afford BIA thirty (30) days to cure such failure to comply.
22. Successors and Assigns; Assignment. The covenants, agreements and obligations of BIA hereunder shall be binding upon BIA and BIA's respective successors and assigns, and the rights, remedies and benefits of the Indemnified Parties hereunder shall inure to the benefit of the Indemnified Parties and their respective successors and assigns. BIA shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City.
Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
23. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same document.
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SIGNATURE PAGE TO RIGHT-OF-WAY USE AGREEMENT FOR WAYFINDING
SIGNS BY AND BETWEEN THE CITY OF SAN JACINTO AND BUILDING
INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA
IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of the date first above written.
City: BIA:
City of San Jacinto, Building Industry Association of
Southern California
a municipal corporatior
a California nonprofit corporation
on FAM
Name: Robert A. Johnson By.
Title: City Manager Name: Craig Foster
Title: Executive Vice President
ATTEST:
By Julia (spinora
City Clerk Julia Espinoza
Deputy aty clerk
PPROVED AS/TO FORN
By
City Attorney
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SIGNATURE PAGE TO RIGHT-OF-WAY USE AGREEMENT FOR WAYFINDING
SIGNS BY AND BETWEEN THE CITY OF SAN JACINTO AND BUILDING
INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA
IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of the date first above written.
City: BIA:
City of San Jacinto, Building Industry Association of
Southern California
a municipal corporation
a California nonprofit corporation
By_
By Craig Foster 6/9/21
Name: Robert A. Johnson
Title: City Manager Name: Craig Foster
Title: Executive Vice President
ATTEST:
By-
City Clerk
APPROVED AS TO FORM:
By
City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
INTRODUCTION
The Building Industry Association for Southern California welcomes the opportunity to respond to the City of San Jacinto's request for proposal for a new residential and business kiosk program. The BIA Directional Sign Program has been in existence since the 1980s, providing wayfinding signs for home builders, commercial projects, and apartment communities in over 43 municipalities throughout Southern California.
Municipalities have partnered with the BIA to help manage the need for signage in a uniform way, BIA operates and manages the sign program from installation to maintenance. Throughout the decades, the program has been effective in providing directional assistance at key intersections and thoroughfares, assisting individuals in locating new subdivisions, homes, businesses and places of interest.
Given BIA's years of success operating a directional sign program, BIA believes its experience and team will be an invaluable asset to the City of San Jacinto's proposed kiosk program.
STATEMENT OF SERVICES
As part of the overall marketing effort for the City of San Jacinto, the planned sign program will serve to:
• Reinforce the image of the community. Consistent use of logo, colors and design reinforces the marketing and distinctive character of the City. The BIA Sign Program team will work with the City to finalize a new kiosk design that is compatible with the surrounding environment, to enhance the existing appearance of the community.
• Maximize sign durability by specifying design, construction and materials that are both weather resistant and aesthetically pleasing.
• Communicate specific information regarding the location of new residential communities, businesses and other City points of interest. Work with the City to identify any new potential locations of benefit to interested parties. • Proactive sales strategy with the development community to encourage builders to participate in the program.
• Work with internal team to ensure that all stipulations of the formal agreement are met.
• Comply with the sign ordinances of the City.
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EXHIBIT "B"
REMOVAL OF EXISTING SIGNS
COMPENSATION
Within 30 days of execution of the agreement, the BIA shall remove all existing Kiosk signs throughout the City. Compensation shall be limited to a one-time payment of up to $70 per sign, up to 44 signs total, and not to exceed $3,080.
No other compensation shall be provided by the City for the implementation, maintenance and operation of the kiosk program.
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EXHIBIT "C"
WEEKEND SIGN PROGRAM
Weekend temporary signs may be placed in the public right of way during the period beginning at 4:00 p.m. Friday and ending at 7:00 p.m. Sunday. Signs in place outside this period will be subject to removal. In the event of a three-day holiday, such signs can be erected no earlier than 4:00 p.m. on Thursday if the holiday is on a Friday, and must be removed no later than 7:00 p.m. Monday, if the holiday is on a Monday. Signs in place outside these hours will be subject to removal and disposal by the City and may result in revocation of this program.
Temporary Sign Size, Materials, and Maintenance Criteria. All temporary signs place in the right of way must:
1. Be free-standing and securely mounted on a wooden or metal stake;
2. Be no higher than four (4) feet above grade;
3. Be no larger than six (6) square feet and no more than three (3) feet in either height or width;
4. Be constructed of substantial sturdy, durable, and weather-proof material;
5. Be kept in good repair;
6. Be non-illuminated;
7. Be free of streamers, tags, or any additions other than the approved, specified design.
8. Shall in no way conflict or impede vehicle or pedestrian movement.
9. Shall not be located in any location that would block or limit visibility (i.e. near driveways or intersections).
10. Include the contact name and phone number of the personal responsible for the sign in a clearly legible manner, either on the front or back of the sign. -12-
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