HomeMy WebLinkAboutA5097 - HIGHWAY 111 BEAUTIFICATION AGR RELOCATE 10 OUTDOOR DISPLAYS SECOND AMENDMENT TO
HIGHWAY 111 BEAUTIFICATION AGREEMENT
This Second Amendment to Highway 111 Beautification Agreement ("Second
Amendment") is entered into as of May 27, 2009, by and between Lamar Central
Outdoor, LLC, a Delaware Limited Liability Company, doing business as Lamar of Palm
Springs ("Lamar") and the City of Palm Springs, a California charter city ("City"),
(Hereinafter collectively "Parties"), as follows,-
RECITALS
A. In or about May of 2005, the Parties entered into that certain "Highway
111 Beautification Agreement" ("Agreement") which allowed Lamar to remove ten (10)
outdoor advertising structures from Highway 111 between Windy Point and the City
limits and relocate them to areas along Interstate 10 within the City subject to certain
provisions as contained therein.
B. In or about May of 2007, the Parties entered into a First Amendment to the
Agreement ("First Amendment") and Lamar agreed to remove an additional four (4)
Outdoor advertising structures ("Existing Signs") from Highway 111 extending from
Windy Point to Snow Creek Road and to relocate them to areas along Interstate 10,
thus furthering the goals to "beautify, enhance the visual aesthetics and otherwise
improve the westerly entry statement of this gateway to the City" as stated in the
Agreement.
C. Lamar and the City desire to extend the First Amendment for two years
thereby providing Lamar an additional two years to relocate the Existing Signs.
D. The City and Lamar desire to enter into this Second Amendment subject
to the terms and conditions of the Agreement as set forth below.
NOW THEREFORE, in consideration of the mutual promises set forth herein,
and for good and valuable consideration the sufficiency and receipt of which is hereby
acknowledged, the Parties do agree as follows:
1. Section 2.1.1 of the First Amendment is amended to read:
2.1.1 Relocation
Lamar shall immediately commence the relocation of its four (4) Existing
Signs as set forth in Exhibit "A" attached hereto from Highway 111 to locations
along the Interstate 10 corridor as it passes through the City's limits. Lamar shall
complete these relocations by June 1, 2011 ("Relocation Period"). If Lamar is
unable to complete these relocations within this time frame, it shall be subject to
the provisions paragraph-2-q4(d) of the Agreement.
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2. Except as otherwise provided in this Second Amendment, the provisions of the
Agreement and the First Amendment shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective on
the day and year first above written. The undersigned hereby warrant that they are
legally authorized and entitled to make the promises, covenants and representations
herein.
CITY OF PALM SPRINGS LAMAR CENTRAL OUTDOOR
a municipal corporation DISPLAYS, LLC �7
City Manager
Name: /4'am 1,3 Luc% rr
Title: I/ce
ATTEST: rrau it a�erg
ity Clerk �g�t3oa p APPROVED BY CITY COUNCIL
PROVED AS TO FORM:
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City ttorne��
639458 1
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FIRST AMENDMENT TO
HIGHWAY 111 BEAUTIFICATION AGREEMENT
This First Amendment to Highway 111 Beautification Agreement ("First
Amendment') is entered into as of Mayes, 2007, by and between Lamar Central
Outdoor, LLC, a Deleware Limited Liability Company, doing business as Lamar
of Palm Springs ("Lamar") and the City of Palm Springs, a California charter city
("City"), (hereinafter collectively "Parties"), as follows:
RECITALS
A. In or about May of 2005, the Parties entered into that certain "Highway
111 Beautification Agreement' ("Agreement') which allowed Lamar to remove ten
(10) outdoor advertising structures from Highway 111 between Windy Point and
the City limits and relocate them to areas along Interstate 10 within the City
subject to certain provisions as contained therein,
B. Lamar desires to remove an additional four (4) outdoor advertising
structures ("Existing Signs") from Highway 111 extending from Windy point to
Snow Creek Road relocate them to areas along Interstate 10, thus furthering the
goals to "beautify, enhance the visual aesthetics and otherwise improve the
westerly entry statement of this gateway to the City" as stated in the Agreement.
C. The City and Lamar desire to enter into this First Amendment subject to
the terms and conditions of the Agreement as set forth below.
NOW THEREFORE, in consideration of the mutual promises set forth
herein, and for good and valuable consideration the sufficiency and receipt of
which is hereby acknowledged, the Parties do agree as follows:
1.0 INCORPORATION OF RECITALS
The above stated recitals are expressly made part of this
amendment.
2.0 AMENDMENT TERMS
2A Obligations of the Parties
2.1.1 Relocation
Lamar shall immediately commence the relocation of its four
(4) Existing Signs as set forth in Exhibit "A" attached hereto from
Highway 111 to locations along the Interstate 10 corridor as it
passes through the City's limits. Lamar shall complete these
relocations within two years after execution of this Amendment by
all Parties ("Relocation Period"). If Lamar is unable to complete
these relocations within this time frame, it shall be subject to the
provisions paragraph 2.3.3(d) of the Agreement.
2.1.2 No New Permits
Lamar agrees that it will not apply for outdoor advertising
permits along Highway 111 within the legal jurisdictions of the City
or the County of Riverside between Interstate 10 and San Raphael
Road for a period of not less than twenty (25) years.
2.1.3 Incorporation of Agreement
But for this Amendment, all terms and conditions of the
Agreement shall prevail expressly including, but not limited to,
Paragraphs 3.1 and 4.0 as it relates to waivers of claims and
release of claims.
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement effective on the day and year first above written. The undersigned
hereby warrant that they are legally authorized and entitled to make the
promises, covenants, and representations herein.
CITY OF PALM SPRINGS,
a municipal corporation
By.
- City Manage
ATTEST:
A APPROVED BY CITY COUNCIL
City Clerk
APPRO,/ AS TO FORM: LAMAR CENTRAL OUTDOOR
DISPL S, LLC
y , 4
City Attorney Name:
Title: I/L(C e-
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Lamar Central Outdoor, LLC
s
Highway Beautification Agr
Relocate 10 Outdoor Displays
AGREEMENT#5097
MO 7671, 5-11-05
HIGHWAY 111 BEAUTIFICATION AGREEMENT
This Highway 111 Beautification Agreement ("Agreement") is entered into as of May
2005, by and between Lamar Central Outdoor, LLC, a Delaware Limited Liability
Company, doing business as Lamar of Palm Springs, ("Lamar") and the City of Palm
Springs, a California charter city ("City'), (hereinafter collectively `Parties"), as follows:
RECITALS
A. Lamar is the owner of Ten (10) lawfully nonconforming outdoor advertising
display locations geographically located within the County of Riverside located along
Highway 111 within the City and between the: city limits of the City and a location
generally referred to as Windy Point as more particularly set forth on Exhibit "A" attached
hereto and incorporated herein by this reference ("Existing Signs").
B. It is the desire of the City to remove these Existing Signs from this scenic
corridor in order to beautify, enhance the visual aesthetics and otherwise improve the
westerly entry statement of this gateway into the City.
C. California Business & Professions Code § 5412 ("California Law") provides
that governmental entities may not compel the removal of outdoor advertising displays
without just compensation to the display owners thereof.
D. California Law sets forth that it is the policy of this State to encourage local
entities and display owners to enter into relocation agreements which allow local entities
to continue development in a planned manner without the expenditure of public funds
while allowing the continued maintenance of private investment and a medium of public
communication.
E. The California legislature specifically empowered local entities to enter into
relocation agreements on whatever terms are agreeable to the display owner and the
local entity.
F. The City and Lamar desire to enter into this Agreement pursuant to the
foregoing provisions to affect relocation of the Existing Signs in a mutually agreeable
manner as provided and allowed pursuant to California law referenced above.
NOW THEREFORE, in consideration of the mutual promises set forth herein, and
for good and valuable consideration the sufficiency and receipt of which is hereby
acknowledged, the Parties do hereby agree as follows:
I
TERMS
1.0 INCORPORATION OF RECITALS
The above stated recitals are expressly made part of this Agreement.
2.0 AGREEMENT TERMS
2.1 Obligations of the Parties
2.1.1 Relocation
Lamar shall immediately commence the relocation of its ten (10)
Existing Signs, as set forth in Exhibit "A", to ten (10) locations along the
Interstate 10 corridor as it passes through the City's limits. Lamar shall
complete these relocations within two (2) years after execution of this
Agreement by all parties ("Relocation Period").
2.1.2 Construction of Relocated Outdoor Advertising Displays
The relocated outdoor advertising displays may be, at the discretion of
Lamar, double faced illuminated monopole outdoor advertising displays with a
display face dimension of up to fourteen feet by forty eight feet (14' x 48'), and
located in compliance with all applicable federal and state laws regulating
outdoor advertising.
2.1.3 Conditions for Relocation
2.1.3(a) Change of Zoning
Prior to the issuance of building permits by City for the
relocations set forth herein, Lamar shall use its best efforts to work with
property owners of the parcels upon which Lamar's outdoor advertising
displays are proposed to be relocated, to file a request for a change of
zone, if applicable, with City for the purpose of bringing these parcels
into substantial compliance with the California Department of
Transportation's outdoor advertising regulations ("State Regulations")
subject to the following:
2.1.3(b) Cooperation by City
The City Manager shall in good faith and consistent with
authority conferred upon him by the City Council advise and/or direct
City Staff to recommend to the Planning Commission and/or City
Council that owners of the parcels upon which Lamar's outdoor
advertising displays are to be relocated should be allowed to re-zone
these parcels in substantial compliance with State Regulations.
2.1.3(c) Acknowledgment by Lamar
Lamar hereby acknowledges, understands, and agrees that this
Agreement does not bind the discretionary determination of either the
Planning Commission and/or the City Council with respect to re-zoning,
2
and further, that if said re-zoning is not approved by City on one or
more parcels and Lamar is not be able to relocate its Existing Sign or
Signs to such parcel or parcels which are not otherwise in compliance
with State Regulations as set forth herein, Lamar will not be able to
relocate its Existing Sign or Signs.
2.1.3(d) Remaining Existing Signs
If, at the expiration of the Relocation Period, Lamar is unable to
relocate one or more of its Existing Signs, through no fault of Lamar,
Lamar shall be allowed to keep such remaining Existing Sign or Signs
until relocation is made possible pursuant to the terms of this
Agreement or any extension thereof.
3.1 Mutual Waivers
3.1.1 Waiver of City Claims
Execution of this Agreement shall constitute a waiver pursuant to
California Civil Code Section 1542 which effectively waives any claims City
may raise now or in the future, whether known or unknown, against Lamar, or
any of its political subdivisions, officers, employees, volunteers, attorneys, etc.
regarding the relocation of Lamar's Existing Signs as set forth herein.
3.2.2 Waiver of Claims
Execution of this Agreement shall constitute a waiver pursuant to
California Civil Code Section 1542 which effectively waives any claims Lamar
may raise now or in the future, whether known or unknown, against the City, or
any of its political subdivisions, officers, employees, volunteers, attorneys, etc.
regarding payment of just compensation by City for the compelled removal of
Lamar's Existing Signs as set forth herein.
4.0 RELEASE OF CLAIMS
4.1 Mutual and General Release Between City and Lamar
This Agreement shall constitute a mutual and general release of each and
every claim, demand, damage, liability, cost, attorney's fees, obligation, expenditure,
lien, right of arbitration, right of action and cause of action of every kind and nature
whatsoever, whether joint or several, now known or unknown, suspected or
unsuspected which City and Lamar have, or at any time prior to the date of this
Agreement may have against each other and any of their respective agents, partners,
joint ventures, servants, employees, attorneys, successors, heirs, executors,
administrators, assigns, transferees and predecessors-in-interest, concerning the
subject matter of this Agreement.
4.2 Waiver of California Civil Code Section 1542
With respect to the matters set forth in this Agreement, all Parties
acknowledge that they understand the meaning of California Civil Code Section 1542
which provides as follows:
3
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Parties expressly waive and relinquish any rights or benefits which
they now have or may in the future have under Section 1542 of the California Civil
Code. In connection with such waiver and relinquishment, the Parties acknowledge
that they are aware that their attorneys or agents may hereafter discover claims or
facts in addition to or different than those which the Parties now know or believe to
exist with respect to such matters, but it is their intention to hereby fully, finally and
forever settle and release all matters, disputes and differences, known or unknown,
suspected or unsuspected, which may exist or heretofore have existed between each
of the Parties and each of their respective agents, partners, joint ventures, servants,
employees, attorneys, both past and present, successors, heirs, executors,
administrators, assigns, transferees, and predecessors-in-interest, and each of them,
arising out of the Action. In furtherance of such intention, the release herein given
shall be and remain in effect as a full and complete release not withstanding the
discovery or existence of any such additional or different claims or facts. This waiver
shall apply to all releases set forth in this Agreement.
5.0 GENERAL PROVISIONS
5.1 Entire Agreement
5.1.1 The terms of this Agreement are intended by the Parties as a final
expression of their Agreement, and constitute and contain the entire
Agreement and understanding as between the Parties with respect to such
terms as are included herein, and may not be contradicted by evidence of any
prior agreement or contemporaneous oral agreement. In addition, this
Agreement supersedes and replaces all prior settlement negotiations,
proposed settlement agreement or agreements, written or oral, as it relates to
this matter and upon execution of this Agreement, City and Lamar owe no
further duties and have no further obligations of any nature to each other
except as set forth and required by this Agreement.
5.1.2 The Parties further intend that this Agreement constitutes a
complete and exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial or other proceeding, if any,
involving this Agreement. City and Lamar acknowledge that neither has made
any promise, representation or warranty whatsoever, expressed or implied,
written or oral, not contained herein concerning the subject matter hereof, to
induce the execution of this instrument. City and Lamar acknowledge that
they have not executed this instrument in reliance on any promise or
representation or warranty not contained herein.
4
5.2 Modifications
Neither this Agreement, nor any term or provision thereof, may be waived,
modified, or amended except by written agreement signed by all Parties.
5.3 Attorneys' Fees
If any action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, each party shall be responsible for their respective costs, including
attorneys' fees. The prevailing party shall not be entitled to recover its attorneys' fees
or related costs.
6.4 Applicable Law
This Agreement shall, in all respects, be interpreted, enforced and governed by
and under the laws of the State of California.
5.5 Jointly Drafted
It is agreed between the Parties that this Agreement was jointly negotiated and
jointly drafted by the Parties and their respective attorneys, and that it shall not be
interpreted or construed in favor or against any Party on the ground that said Party
drafted the Agreement. It is also agreed and represented by all Parties that this
Agreement was the result of extended negotiations between the Parties and counsel
for the Parties hereto, and that said Parties were of equal or relatively equal
bargaining power. In no way whatsoever shall it be deemed that this Agreement is a
contract of adhesion, unreasonable or unconscionable. The language of this
Agreement shall be construed as a whole according to its fair and logical meaning and
not strictly for or against any of the Parties.
5.6 Independent Legal Counsel
Party acknowledges that it has retained independent legal counsel of its own
choice throughout all of the negotiations which preceded the execution of this
Agreement, and that each Party has executed this Agreement with the consent and on
the advice of such independent legal counsel.
5.7 Assignment of Claims
All Parties warrant and represent to the other that no claims they might have, or
do have, and which are otherwise referenced and released by this Agreement have
been assigned to any other person or entity.
5.8 Severability
If any part of this Agreement is said to be unlawful or not effective, the
remainder of this Agreement shall remain in full force and effect.
5.9 Titles
The headings of the sections of this Agreement are included for purposes of
convenience only and shall not affect the construction or interpretation of any of its
provisions.
5
5.10 Gender
Whenever in this Agreement the context so requires the masculine or feminine
or neuter gender and the singular and plural number shall each be deemed to refer
and include the other.
6.11 Additional Documents
To the extent that it is necessary or appropriate to prepare and execute any
additional documents in order to effectuate this Agreement, the Parties agree to do so
in a timely manner.
5.12 Counterparts
This Agreement may be executed in one or more identical counterparts, each
of which shall be deemed an original hereof.
5.13 Binding On Successors
This Agreement shall be binding on and inure to the benefit of the Parties
hereto and their respective heirs, legal representatives, successors and assigns.
5.14 Authority
Any Party signing this Agreement on behalf of an entity or other than
themselves, hereby represents and warrants that such Party has authority to sign on
behalf of the indicated entity.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective on the day and year first above written. The undersigned hereby warrant that
they are legally authorized and entitled to make the promises, covenants, and
representations set forth herein.
LAMAR CENTRAL OUTDOOR, LLC, A DELAWARE LIMITED LIABILITY COMPANY
9�j . G4a�r r t ��rl i`a Card, i. > `pie. Bbiesxc(�e�'
By:
Date: MA'� 'too
As Its: PlIPS1614eh -
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Date:
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CITY OF PALM SPRINGS
By: � `��� �—J Date:
David H. Ready J
City Manager APPROVED BY CITY C'"
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APPROVED AS TO FORM ATTEST:
B y: ar6h a 4
Dougla�C. Holland mes Thompson, CiEy Clerk
City Attorney
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