HomeMy WebLinkAbout2016-142 1 RESOLUTION NO. 2016-142
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO ADOPTING A CATEGORICAL EXEMPTION AND
3 APPROVING CONDITIONAL USE PERMIT 16-03 AND A LICENSE AGREEMENT
4 TO ALLOW THE DEVELOPMENT, ESTABLISHMENT AND OPERATION OF A
FREESTANDING FREEWAY-ORIENTED ELECTRONIC MESSAGE CENTER
5 SIGN LOCATED AT 1630 S. "E" STREET (APN: 0141-253-02) WITHIN THE
COMMERCIAL GENERAL (CG-1) ZONE
6
7 WHEREAS, on February 4, 2016, pursuant to the requirements of Chapter 19.42,
8 §19.36.020 and §19.22.080(7) of the City of San Bernardino Development Code, an
9 application for Development Code Amendment 16-02 and Conditional Use Permit 16-03 was
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duly submitted by:
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12 Property Owner: E Street Holdings, LLC
13 11873 Sandra Court
Loma Linda, CA 92354
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Project Applicant: Lamar Central Outdoor, LLC
15 24541 Redlands Boulevard
16 Loma Linda, CA 92354
17 Parcel Address: 1630 S. "E" Street
APN: 0141-253-02
18 Lot Area: 3.3 acres
19 WHEREAS, Development Code Amendment 16-02 is a request to amend §19.22.080
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relating to off-site signs; and
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22 WHEREAS, Conditional Use Permit 16-03 is a request to allow the development,
23 establishment and operation of a freestanding freeway-oriented electronic message center sign
24 that is approximately fifty (50) feet in height with two (2) displays (double-sided) containing
25 approximately 672 (14' x 48') square feet each, on a parcel containing approximately 3.3
26 acres; and
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1 WHEREAS, as part of the application for Conditional Use Permit 16-03, the applicant
2 has permanently removed the existing billboard located at 1775 Devore Road (APN: 0349-
3 169-03), within the City's sphere of influence; and
4 WHEREAS, as part of the application for Conditional Use Permit 16-03, the applicant
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is also proposing to permanently remove the existing billboards at the following locations: 1)
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7 2601 E. Highland Avenue (APN: 1191-111-01); 2) 901 W. 9th Street (APN: 0140-151-26); 3)
8 2147 W. Highland Avenue (APN: 0269-041-35); 4) 1499 W. 5th Street (APN: 0138-173-08);
9 and, 5) 1010 W. Baseline Avenue (APN: 0144-232-06); and
10 WHEREAS, as part of the application for Conditional Use Permit 16-03, the applicant
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has submitted a "License Agreement Between the City of San Bernardino and Lamar Central
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13 Outdoor, LLC for Off-Site Electronic Message Center Freeway Sign," as required pursuant to
14 §19.22.080(2)(G) of the City of San Bernardino Development Code; and
15 WHEREAS, the Planning Division of the Community Development Department has
16 reviewed Development Code Amendment 16-02 and Conditional Use Permit 16-03 for
17 consistency with the City of San Bernardino General Plan and compliance with the City of
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San Bernardino Development Code; and
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20 WHEREAS, pursuant to requirements of §15060(c) of the California Environmental
21 Quality Act, the Planning Division of the Community Development Department evaluated
22 Development Code Amendment 16-02 and Conditional Use Permit 16-03; and
23 WHEREAS, on March 10, 2016, pursuant to the requirements of §19.36.030 of the
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City of San Bernardino Development Code, the Development and Environmental Review
25
26 Committee reviewed the application and moved the Categorical Exemption and Conditional
27 Use Permit 16-03 to the Planning Commission for consideration; and
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1 WHEREAS, on April 20, 2016, pursuant to the requirements of §19.52.040 of the
2 City of San Bernardino Development Code, the Planning Commission held the duly noticed
3 public hearing at which interested persons had an opportunity to testify in support of, or
4 opposition to the Categorical Exemption, Development Code Amendment 16-02 and
5
Conditional Use Permit 16-03, and at which meeting the Planning Commission adopted
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7 Resolution No. 2016-015 recommending to the Mayor and Common Council the adoption of
8 the Categorical Exemption and the approval of Development Code Amendment 16-02 and
9 Conditional Use Permit 16-03; and
10 WHEREAS, pursuant to the requirements of Chapters 19.36 and 19.42 of the City of
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San Bernardino Development Code, the Mayor and Common Council has the authority to take
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13 action on the Categorical Exemption, Development Code Amendment 16-02 and Conditional
14 Use Permit 16-03; and
15 WHEREAS, notice of the July 5, 2016 public hearing for the Mayor and Common
16 Council's consideration of the proposed Resolution was published in The Sun newspaper on
17 June 25, 2016, and was mailed to property owners within a 500 foot radius of the project site
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in accordance with Development Code Chapter 19.52.
19
20 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
21 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
22 SECTION 1. The Mayor and Common Council find that the above-stated Recitals
23 are true and hereby adopt and incorporate them herein.
24
25 SECTION 2. Findings of Fact—Development Code Amendment 16-02.
26
27 Finding No. 1: The proposed amendment is consistent with the General Plan.
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I Finding of Fact: The proposed amendment will result in removing the existing
2 regulations for off-site freeway signs that are no longer imposed by the
3 California State Transportation Agency (Caltrans), and the proposed
4 amendment will provide for the accommodation of the development,
5
establishment and operation of a freestanding freeway-oriented
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7 electronic message center sign consistent with the City's Development
8 Code.
9 Finding No. 2: The proposed amendment would not be detrimental to the public
10 interest, health, safety, convenience, or welfare of the City.
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Finding of Fact: The proposed amendment will not be detrimental to the public interest,
12
13 health, safety, convenience, or welfare of the City in that amendment to
14 remove the existing regulations for off-site freeway signs that are no
15 longer imposed by the California State Transportation Agency
16 (Caltrans) will facilitate the development, establishment and operation
17 of a freestanding freeway-oriented electronic message center sign
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19 consistent with the City's Development Code. The project site has
20 direct access from "E" Street, will be fully served by utility providers,
21 will be construction in accordance with all applicable codes and
22 regulations, and will not result in the need for the excessive provision
23 of services.
24
SECTION 3. Findings of Fact—Conditional Use Permit 16-03.
25
26 Finding No. 1: The proposed use is conditionally permitted within, and would not
27 impair the integrity and character of the subject land use district and
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1 complies with all of the applicable provisions of the Development
2 Code.
3 Finding of Fact: The proposed freestanding freeway-oriented electronic message center
4 sign is a conditionally permitted use, pursuant to Development Code
5
§19.22.080(7). The project site is located within the Commercial
6
7 General (CG-1) zone and is substantially surrounded by existing
8 commercial uses and adjacent to the Interstate (215) Freeway. The
9 proposal complies with all applicable Development Code standards for
10 electronic message center signs. Therefore, the proposed project would
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not impair the integrity and character of the subject land use district or
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13 be detrimental to surrounding properties.
14 Finding No. 2: The proposed use is consistent with the General Plan.
15 Finding of Fact: The proposal freestanding freeway-oriented electronic message center
16 sign is consistent with several General Plan goals and policies, as
17 follows: Goal 4.1 — "Encourage economic activity that capitalizes on
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the transportation and locational strengths of San Bernardino," Goal 4.3
19
20 — "Continue and expand the City's marketing and promotional
21 campaigns," and Community Design Policy 5.2.6 — "Ensure
22 implementation of sign regulations which address issues of scale, type,
23 design, materials, placement, compatibility and maintenance."
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Therefore the proposed project would be compatible with surrounding
25
26 land uses and consistent with the General Plan.
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1 Finding No. 3 Approval of the Conditional Use Permit for the proposed use is in
2 compliance with the requirements of the California Environmental
3 Quality Act (CEQA) and §19.20.03 0(6) of the Development Code.
4 Finding of Fact: The project is exempt from environmental review under CEQA §15332
5
(In-Fill Development Projects), and complies with the requirements of
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7 Development Code §19.22.080(7). The project location is an infill site
8 located within an urbanized area and is substantially surrounded by
9 existing commercial uses and adjacent to the Interstate (215) Freeway.
10 Approval of the proposed freestanding freeway-oriented electronic
11
message center sign would not result in any impacts on the
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environment.
13
14 Finding No. 4 There will be no potentially significant negative impacts upon
15 environmental quality and natural resources that could not be properly
16 mitigated and monitored.
17 Finding of Fact: The project site is an in-fill lot adjacent to the Interstate (215) Freeway
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and the surrounding area is urbanized. Therefore, no significant
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20 negative impacts on the environment are anticipated to result from the
21 proposed freestanding freeway-oriented electronic message center sign.
22 Finding No. 5: The location, size, design, and operating characteristics of the proposed
23 use are compatible with the existing and future land uses within the
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general area in which the proposed use is to be located and will not
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26 create significant noise, traffic or other conditions or situations that may
27 be objectionable or detrimental to other permitted uses in the vicinity or
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1 adverse to the public interest, health, safety, convenience, or welfare of
2 the City.
3 Finding of Fact: The proposed freestanding freeway-oriented electronic message center
4 sign is in compliance with the Development Code requirements, and is
5
designed to showcase and promote local businesses. The project site is
6
7 located at an optimum location to display an electronic message center
8 sign that will attract Interstate (215) Freeway travelers to the
9 surrounding area. The proposed freestanding freeway-oriented
10 electronic message center sign will not generate additional noise,
11
traffic, or other conditions that would be detrimental or objectionable to
12
13 other uses in the vicinity or adverse to the public health, safety,
14 convenience, or welfare of the City.
15 Finding No. 6: The subject site is physically suitable for the type and density/intensity
16 of use being proposed.
17 Finding of Fact: The site is physically suitable for the proposed freestanding freeway-
18
19 oriented electronic message center sign as evidenced by project
20 compliance with all applicable Development Code Standards.
21 Finding No. 7 There are adequate provisions for public access, water, sanitation, and
22 public utilities and services to ensure that the proposed use would not
23 be detrimental to public health and safety.
24
Finding of Fact: The site has direct access off of"E" Street. All agencies responsible for
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26 reviewing access and providing water, sanitation and other public
27 services to the site have had the opportunity to review the proposal, and
28 none indicated inability to serve the project site. Establishment of the
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1 proposed project, subject to Conditions of Approval, will not be
2 detrimental to public services or public health and safety.
3 SECTION 4. Compliance with the California Environmental Quality Act.
4 The Mayor and Common Council has independently reviewed, analyzed and exercised
5
judgment in finding that Development Code Amendment 16-02 and Conditional Use Permit
6
7 16-03 is exempt under §15061(b)(2) (Review for Exemption) of the California Environmental
8 Quality Act (CEQA), pursuant to §15332 (In-Fill Development Projects) of CEQA.
9 SECTION 5. — Development Code Amendment 16-02, as approved by Ordinance, is
10 incorporated herein by reference.
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SECTION 6. — Conditional Use Permit 16-03, subject to the Conditions of Approval
12
13 attached hereto as Exhibit A and incorporated herein by reference, is hereby approved.
14 SECTION 7. — License Agreement between the City of San Bernardino and Lamar
15 Central Outdoor, LLC for Off-Site Electronic Message Center Freeway Sign, attached hereto
16 as Exhibit B and incorporated herein by reference, is hereby approved.
17 SECTION 8. - Notice of Exemption: The Planning Division of the Community
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Development Department is hereby directed to file a Notice of Exemption with the County
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20 Clerk of the County of San Bernardino certifying the City's compliance with California
21 Environmental Quality Act in adopting the Categorical Exemption.
22 SECTION 9. Severability: If any section, subsection, subdivision, sentence, or
23 clause or phrase in this Resolution or any part thereof is for any reason held to be
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unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision
25
26 shall not affect the validity or effectiveness of the remaining portions of this Resolution or any
27 part thereof. The Mayor and Common Council hereby declares that it would have adopted
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1 each section irrespective of the fact that any one or more subsections, subdivisions, sentences,
2 clauses, or phrases be declared unconstitutional, invalid, or ineffective.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO ADOPTING A CATEGORICAL EXEMPTION AND
2 APPROVING CONDITIONAL USE PERMIT 16-03 AND A LICENSE AGREEMENT
TO ALLOW THE DEVELOPMENT, ESTABLISHMENT AND OPERATION OF A
3 FREESTANDING FREEWAY-ORIENTED ELECTRONIC MESSAGE CENTER
4 SIGN LOCATED AT 1630 S. "E" STREET (APN: 0141-253-02) WITHIN THE
COMMERCIAL GENERAL (CG-1) ZONE
5
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a regular meeting thereof, held on the
7
5`" day of July, 2016, by the following vote to wit:
8
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 x
MARQUEZ
11 x
12 BARRIOS
13
VALDIVIA x
14 SHORETT x
15 NICKEL x
16 x
RICHARD
17
18
MULVIHILL x
19
20 Georgedn Hanna, CMC, City Clerk
21 The foregoing Resolution is hereby approved this day of Jul , 2016.
22
23 R. CAREY D IS, May�or`'
24 City of San Bernardino
Approved as to form:
25 Gary D. Saenz, City Attorney
26
27 By: 00 2_
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2016-142
LICENSE AGREEMENT BETWEEN
THE CITY OF SAN BERNARDINO AND
LAMAR CENTRAL OUTDOOR,LLC FOR
OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
This License Agreement (the "AGREEMENT") is entered into this 5th day of July
20__LO O BY AND BETWEEN:
the City of San Bernardino, a Charter City organized under the laws of the State of
California, with an address of 300 N. "D" Street, San Bernardino, California (the
"CITY");
AND,
Lamar Central Outdoor, LLC, a Limited Liability Company, incorporated under the laws
of the State of Delaware (individually CITY or OWNER may be referred to as a
"PARTY" and collectively CITY and OWNER may be referred to as the "PARTIES").
WITNESSETH :
WHEREAS, Owner is the lessee of that real property in the San Bernardino County,
California, more particularly described in Exhibit"A" attached hereto and incorporated herein by
this reference (the"PROPERTY"); and
WHEREAS,the Mayor and Common Council of CITY have determined that an Off-Site
Electronic Message Center Freeway Sign (the "SIGN") is an appropriate use of the PROPERTY;
and,
WHEREAS, the SIGN will provide additional advertising opportunities for CITY
businesses and provide a medium for the CITY to communicate important civil and community
events to CITY residents and interested individuals; and,
WHEREAS, this AGREEMENT is intended to set forth the terms and conditions
regarding the development, maintenance, and use of the SIGN on the PROPERTY and the
agreed upon revenue sharing arrangement; and,
WHEREAS, CITY will receive benefits from this AGREEMENT in the form of (i)
revenue sharing from the SIGN; and (ii) the CITY's opportunity to display community-oriented
messages, informational announcements, and to promote the overall positive image of the City of
San Bernardino on the SIGN - all as set forth in this AGREEMENT; and,
WHEREAS, on July 5, 2016, the Mayor and Common Council of the City approved
Conditional Use Permit No. 16-03, to allow construction of the SIGN on the PROPERTY; and,
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
Page 1 of 10
2016-142
WHEREAS, both Development Code Section 19.22.080(7)(G) and Conditional Use
Permit No. 16-03, require that the SIGN be subject to a license agreement with the CITY as
approved by the Mayor and Common Council of CITY; and,
WHEREAS, this AGREEMENT satisfies that requirement for a license agreement as
stated in Development Code Section 19.22.080(7)(G) and Conditional Use Permit No. 16-03.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein, the PARTIES hereby agree as follows:
1. COMMENCEMENT.
As used in this AGREEMENT, the "Commencement Date" shall be the date on or by which all
of the following matters have occurred:
(a) CITY has issued Building Permit(s) for construction of the SIGN; and,
(b) OWNER has notified CITY in writing that the SIGN has been fully constructed,
tested and is ready for immediate commercial use; and
(c) CITY has approved Final Inspection of the construction of the SIGN.
2. SIGN INSTALLATION AND OPERATION.
2.1 Installation. Owner agrees to install and maintain in good condition the SIGN
visible to motorists on I-215 as approved by the CITY with Conditional Use
Permit No. 16-03.
2.2 Approvals. Such SIGN shall be subject to all licenses and permits and approval of
all applicable governmental agencies which approvals shall not be unreasonably
withheld. As of the Commencement Date of this Agreement, City acknowledges
that the Sign complies with all applicable ordinances, orders, and all other
requirements of the City.
2.3 Construction. CITY shall have no responsibility whatsoever for the selection of
the contractors, for the construction work on said SIGN, nor responsibility for the
finished product.
2.4 CITY Use of SIGN/Annual Monetary Value. For the term of this AGREEMENT,
the CITY shall be permitted the right to place public service messages on the
SIGN; provided, however, that such public service messages shall be limited to
one (1) showing every minute (not to exceed 43,200 showings in any given year).
Public service messages may include various community-oriented messages,
informational announcements, and messages intended to promote the overall
positive image of the City of San Bernardino. CITY and OWNER hereby agree
that the monetary value of the CITY's right to place public service messages on
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
Page 2 of 10
2016-142
the SIGN shall be equal to the greater of (1) five thousand dollars ($5,000.00)per
year or (2) five percent (5%) of the gross annual income realized from operation
of the SIGN ("Annual Monetary Value"). For each year that CITY does not
exercise its right to post public service messages on the SIGN, CITY shall be
entitled to the Annual Monetary Value which shall be paid pursuant to Section 2.5
below. OWNER may grant additional airtime to CITY on a "space available
basis" or otherwise at OWNER'S sole discretion. All other uses of the SIGN shall
be at OWNER's sole and absolute discretion in accordance with the provisions of
this AGREEMENT and all applicable Federal, State and local laws and
regulations. CITY may not sell or otherwise allow any of its allotted time to be
used by any other third party without the express written consent of OWNER,
which consent may be withheld in OWNER's sole and absolute discretion. All
uses of the SIGN by the CITY will be submitted to the OWNER by the City
Manager in a medium and format acceptable to OWNER and provided at the
CITY's sole expense. The City Manager shall submit the CITY's messages and
announcements to OWNER, or designee, at least 48 hours prior to scheduled
display of the message on the SIGN.
2.5 Payment of Annual Monetary Value. Annual Monetary Value shall be calculated
at the end of each year as required pursuant to Section 4 above, for the term of the
Agreement. Owner shall make any required Annual Monetary Value Payment
within thirty (30) days after the end of each year of the Agreement. Payments
shall be delivered to the CITY in conformity with Section 9, herein. OWNER
shall prepare a report at the end of each year of the term of this AGREEMENT
reflecting the calculation of the Annual Monetary Value. The Annual Monetary
Value report shall be delivered to the CITY not later than thirty (30) days
following the end of each year of the term of this AGREEMENT, in years where
payable, accompanying the Annual Monetary Value Payment. OWNER shall
maintain accurate financial books and records for the operation of the SIGN. Said
books and records shall be maintained in accordance with normal business
standards and good accounting practice. OWNER agrees to make any and all
records and accounts available to CITY for inspection at all reasonable times, so
that CITY can determine OWNEWs compliance with this AGREEMENT.
2.6 Sign Content. OWNER and CITY agree to comply with all applicable laws, rules,
ordinances and regulations concerning the content of any and all messages
displayed on the SIGN. Further, OWNER agrees not to display messages with
content advertising adult entertainment, tobacco products, marijuana or alcoholic
beverages, with the exception that OWNER may advertise events or other
functions that are sponsored by companies affiliated with alcoholic beverages.
CITY and OWNER agree to meet at least once a year to, in good faith, negotiate
and discuss the ban on allowing alcoholic beverages advertisements and other
content restrictions. OWNER shall have at its sole option and discretion the right
to approve any and all content of messages to be displayed on the SIGN in
accordance with the provisions of this AGREEMENT and all applicable Federal,
State and local laws and regulations.
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
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2016-142
3. TERM; TERMINATION.
3.1 Term. The term of this AGREEMENT shall be from the Commencement Date, as
defined in Section 1 above, and shall continue for so long as the SIGN remains in
existence,unless terminated sooner pursuant to Section 3.2, herein.
3.2 Termination. This AGREEMENT may be terminated at any time by thirty (30)
days written notice by OWNER. CITY may terminate this AGREEMENT only
upon material breach of the AGREEMENT by OWNER and then only after CITY
has provided notice to OWNER of the breach and a reasonable opportunity for
OWNER to cure the breach. An opportunity shall be considered reasonable if
OWNER is afforded at least 30 days to cure any alleged breach except that as to
any breach related to SIGN content, in which case OWNER shall immediately
cure the breach upon notice provided by CITY. The terms of this contract shall
remain in force unless mutually amended. In the event of termination of this
AGREEMENT, OWNER shall remove the SIGN within 30 days.
4. INDEMNITY.
OWNER agrees to and shall indemnify and hold the CITY, its elected officials, employees,
agents, or representatives, free and harmless from all claims, actions, damages and liabilities of
any kind and nature arising from bodily injury, including death, or property damage, based or
asserted upon any actual or alleged act or omission of OWNER, its employees, agents, or
subcontractors, relating to or in any way connected with the accomplishment of the work or
performance of services under this Agreement, unless the bodily injury or property damage was
actually caused by the sole negligence of the CITY, its elected officials, employees, agents or
representatives. As part of the foregoing indemnity, OWNER agrees to protect and defend at its
own expense, including attorney's fees, the CITY, its elected officials, employees, agents or
representatives from any and all legal actions based upon such actual or alleged acts or
omissions. OWNER hereby waives any and all rights to any types of express or implied
indemnity against the CITY, its elected officials, employees, agents or representatives, with
respect to third party claims against the OWNER relating to or in any way connected with the
accomplishment of the work or performance of services under this Agreement.
5. INSURANCE.
5.1 Minimum Scope and Limits of Insurance. OWNER shall obtain and maintain
during the life of this Agreement all of the following insurance coverage:
(a) Comprehensive general liability, including premises-operations,
products/completed operations, broad form property damage, blanket
contractual liability, personal injury with a policy limit of not less than One
Million Dollars ($1,000,000.00), combined singles limits, per occurrence and
aggregate.
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
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(b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with
a policy limit of not less than One Million Dollars ($1,000,000.00), combined
single limits, per occurrence and aggregate.
(c) Worker's compensation insurance as required by the State of California.
5.2 Endorsements. The comprehensive general liability insurance policy shall contain
or be endorsed to contain the following provisions:
(a) Additional insureds: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insureds with
respect to this subject project and contract with City."
(b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced, until thirty(30) days after written notice is given to City."
(c) Other insurance: "Any other insurance maintained by the City of San
Bernardino shall be excess and not contributing with the insurance provided
by this policy."
5.3 Certificates of Insurance. OWNER shall provide to CITY certificates of insurance
showing the insurance coverages and required endorsements described above, in a
form and content approved by CITY, prior to performing any services under this
Agreement.
5.4 Non-limiting. Nothing in this Section shall be construed as limiting in any way,
the indemnification provision contained within this Agreement, or the extent to
which OWNER may be held responsible for payments of damages to persons or
property.
6. NON-DISCRIMINATION.
In the performance of this Agreement and in the hiring and recruitment of employees, OWNER
shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in
employment of persons because of their race, religion, color, national origin, ancestry, age,
mental or physical disability, medical condition, marital status, sexual gender or sexual
orientation, or any other status protected by law.
7. INDEPENDENT CONTRACTOR.
OWNER shall perform work tasks provided by this Agreement, but for all intents and purposes
OWNER shall be an independent contractor and not an agent or employee of the CITY.
OWNER shall secure, at its expense, and be responsible for any and all payment of Income Tax,
Social Security, State Disability Insurance Compensation, Unemployment Compensation, and
other payroll deductions for OWNER and its officers, agents, and employees, and all business
license, if any are required, in connection with the services to be performed hereunder.
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
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8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
OWNER warrants that it possesses or shall obtain prior to execution of this Agreement, and
maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any
other licenses, permits, qualifications, insurance and approval of whatever nature that are legally
required of OWNER to practice its business or profession.
9. NOTICES.
Any notices, documents, correspondence, or other communication concerning this Agreement or
the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally
delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by
U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after deposit in the U.S.
Mail as reflected by the official U.S. postmark.
TO THE CITY: TO THE OWNER:
City Manager E Street Holdings, LLC
300 N. "D" Street, 6th Floor 11873 Sandra Court
San Bernardino, CA 92418 Loma Linda, CA 92354
Either PARTY may change the address for delivery of notices by sending notice of the change to
the other PARTY in conformity with this Section.
10. ATTORNEYS' FEES
In the event that litigation is brought by any PARTY in connection with this Agreement, the
prevailing party shall be entitled to recover from the opposing party all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its
rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions
hereof. The costs, salary and expenses of the City Attorney and members of his/her office in
enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the
purposes of this paragraph.
11. ASSIGNMENT.
OWNER may assign or transfer the OWNER's interest in this Agreement without CITY's prior
written consent so long as OWNER notifies CITY in writing of the assignment or transfer within
ten(10)business days in conformity with Section 9.
12. VENUE.
The parties hereto agree that all actions or proceedings arising in connection with this Agreement
shall be tried and litigated in the Superior Court of the State of California for the County of San
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
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Bernardino. The aforementioned choice of venue is intended by the parties to be mandatory and
not permissive in nature.
13. GOVERNING LAW.
This Agreement shall be governed and construed under the laws of the State of California
without giving effect to that body of laws pertaining to conflict of laws.
14. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the PARTIES to this Agreement
and their respective heirs, representatives, successors, and assigns.
15. HEADINGS.
The subject headings of the sections of this Agreement are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its
provisions.
16. SEVERABILITY.
If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid or unenforceable for any reason, such determination shall not affect the validity or
enforceability of the remaining terms and provisions hereof or of the offending provision in any
other circumstance, and the remaining provisions of this Agreement shall remain in full force
and effect.
17. REMEDIES; WAIVER.
All remedies available to either PARTY for one or more breaches by the other PARTY are and
shall be deemed cumulative and may be exercised separately or concurrently without waiver of
any other remedies.
The delay or failure of either PARTY to require performance or compliance of the other of any
of its obligations under this Agreement shall in no way be deemed a waiver of those rights to
require such performance or compliance. No waiver of any provision of this Agreement shall be
effective unless made in writing and signed by a duly authorized representative of the PARTY
against whom it is sought. The waiver of any right or remedy with respect to any occurrence or
event shall not be deemed a waiver of such right or remedy with respect to any future
occurrences or events and shall not be deemed a continuing waiver.
18. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement and the understanding between the PARTIES,
and supersedes any prior agreements and understandings relating to the subject matter of this
Agreement.
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
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2016-142
19. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be deemed to be an
original, but all of which, taken together, shall constitute one and the same agreement. In the
event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf'
format data file, such signature shall create a valid and binding obligation of the PARTY
executing (or on whose behalf such signature is execute) with the same force and effect as if
such facsimile or".pdf' signature page were an original thereof
20. AMENDMENT.
No amendment to this Agreement will be effective unless it is in writing and signed by both
PARTIES.
21. CORPORATE AUTHORITY.
Each person executing this Agreement on behalf of the PARTIES hereto warrant that they are
duly authorized to execute this Agreement on behalf of said PARTIES and that by doing so, the
PARTIES hereto are formally bound to the provisions of this Agreement.
22. COMPLIANCE WITH LAW
OWNER agrees to abide by all federal, state, and local laws, ordinances and regulations.
23. FORCE MAJEURE.
A PARTY shall not be liable for any failure or delay in the performance of this Agreement for
the period that such failure or delay is due to causes beyond its reasonable control, including but
not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any
other force majeure event.
24. ORDER OF PRECEDENCE.
In the event of any inconsistency or conflict in this Agreement and any of the attached Exhibits
or Attachments, the terms set forth in this Agreement shall prevail.
25. REGULATORY AUTHORITY
OWNER acknowledges and agrees that CITY, acting not as Party to this AGREEMENT but in
its governmental regulatory capacity, has certain governmental regulatory authority over the
PROPERTY and SIGN and nothing in this AGREEMENT binds the CITY to exercise its
discretionary governmental authority in any particular manner. OWNER, in the use and
operation of the PROPERTY and SIGN, shall at all times comply with all applicable laws in the
performance of this AGREEMENT and agrees that "all applicable laws" as used herein includes
any legal requirement imposed by CITY acting not as a Party to this AGREMENT but in its
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
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capacity as a governmental regulatory body. OWNER agrees that all costs in complying with
applicable laws are the sole responsibility of OWNER.
26. CONSTRUCTION.
The PARTIES have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises with respect to this Agreement,
this Agreement shall be construed as if drafted jointly by the PARTIES and in accordance with
its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any
Party by virtue of authorship of any of the provisions of this Agreement.
27. CONDEMNATION
If any legally, constituted authority condemns the PROPERTY or SIGN or such part thereof
which shall make the PROPERTY or SIGN unsuitable for the purposes contemplated by this
AGREEMENT, this AGREEMENT shall cease when the public authority takes possession. Such
termination shall be without prejudice to the rights of either PARTY to recover compensation
from the condemning authority for any loss or damage caused by the condemnation including
money spent on capital improvements to the PROPERTY or SIGN. Neither PARTY shall have
any rights in or to any award made to the other by the condemning authority.
28. PUBLIC RECORDS DISCLOSURE
All information received by CITY concerning this AGREEMENT, including the AGREEMENT
itself, may be treated as public information subject to disclosure under the provisions of the
California Public Records Act, Government Code Section 6250 et seq. (the "Public Records
Act"). The PARTIES understand that although all materials received in connection with this
AGREEMENT are intended for the exclusive use of the PARTIES, they are potentially subject
to disclosure under the provisions of the Public Records Act.
[signature page follows]
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
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LICENSE AGREEMENT BETWEEN
THE CITY OF SAN BERNARDINO AND
LAMAR CENTRAL OUTDOOR, LLC FOR
OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
and date set forth below.
Dated: , 2016 OWNER: Lamar Central Outdoor, LLC
By:
Its:
Dated , 2016 CITY OF SAN BERNARDINO
By:
Mark Scott, City Manager
APPROVED AS TO FORM:
Gary D. Saenz, City Attorney
By.
LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND LAMAR CENTRAL
OUTDOOR,LLC FOR OFF-SITE ELECTRONIC MESSAGE CENTER FREEWAY SIGN
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