HomeMy WebLinkAboutSIGN CO, LPINSURANCE NOT REQUIRED N-2024-039
WORK MAY PROCEED
CITY CLERK
DATE: JAN 2 4 2024
O. PGA C 0 BILLBOA "'D OPERATING AGREEMENT
CM.
This Billboard Operating Agreement (AGREEMENT".) is dated lZeP+ember -1 � , 2023 between
the City of Santa Ana, a charter city and municipal corporation ("CITY") and Sign Co, LP, a
California Limited Partnership ("OPERATOR"). collectively referred to as "the Parties'. This
AGREEMENT shall become effective on the date that OPERATOR is issued a Permit by CITY
(the "Effective Date") for the installation of a new digital billboard or conversion/reconstruction of
an existing static billboard to a digital billboard at the following subject property location: 2401
South Pullman Street, Santa Ana, California 92705 referred to as the "Subject Property'.
Public Benefit.
A. Intent. The purpose of this AGREEMENT is to collect fees for the operation of
freeway -oriented digital billboard and to provide fees for mitigation options to be used by CITY
to compensate for impacts to CITY services, residents, and/or businesses as set forth in Santa
Ana Municipal Code section 41-1100 et seq. The Parties agree that this AGREEMENT
confers substantia; private benefits on OPERATOR which should be balanced by
commensurate public benefits. As part of the city's billboard sign permit process,
OPERATOR agrees to enter into this AGREEMENT. OPERATOR has elected to execute
this AGREEMENT as it provides OPERATOR with important economic benefits. Accordingly,
the Parties intend to provide consideration to the public to balance the private benefits
conferred on OPERATOR by providing mitigation measures to the public and to pay for
economic and community -oriented services using the operating agreement fees collected.
B. Local Hiring and Sourcing. In the construction, operation, and maintenance of its
billboard, OPERATOR agrees to use its reasonable efforts to retain the services of qualified
contractors and suppliers who are located in the City of Santa Ana or who employ a significant
number of City of Santa Ana residents.
i.Economic and Community Benefits Plan:
OPERATOR may exercise, and hereby does exercise, the option to reduce the billboard removal
ratio for billboard that are nonconforming as resulting from the adoption of Ordinance No. NS-
3023, subject to detailing provisions for economic and community benefits in an Economic and
Community Benefits Plan in full accordance with Section 41-1113 of the Santa Ana Municipal
Code as detailed and approved in the BRP. The terms of the Community Benefit Plan within the
BRP shall be subject to review and approval by the City Manager as recommended by the City
Attorney and Executive Director of the Planning and Building Agency. All details of the
OPERATOR Economic and Community Benefits Plan for are detailed herein.
For new digital billboard signs to be considered for a reduction in or exemption from the
required removal ratios as outlined in Table 1, the Subject Property shall, and does, satisfy
all of the criteria enumerated below:
(1) Propose in conjunction with the development of a new or an existing tax
revenue generating business, a retail mall, or a local taxable consumer goods
retail district that is regional in nature and is able to reasonably demonstrate
regional draw of consumers from neighboring cities and counties and
competitiveness in the region, or is an established business with a national
presence having at least fifty (50) or more locations nationally demonstrating
the following economic benefits:
a. Projected annual gross taxable revenue average of at least $5,000,000
(five million); and
b. Commit to employing at least forty (40) full-time employees, of which a
minimum 20 percent (20%) of its employees who reside in Santa Ana; and
(2) Retain no less than ten percent (10%) of time slots within advertising cycle for
advertising of the business and products available on the Subject Property.
Business percentage to be programmed such that a business advertisement
is displayed once every two (2) minutes minimum; and
(3) In receipt of a preliminary approval letter of conformance from Caltrans for an
off -premise sign; and
(4) The applicant and business operator and the CITY shall enter into a Billboard
Operating Agreement as set forth in Section 41-1113 of this Chapter.
2. Effect o'F City Rg ug lat q.M ctri IJr velot mr_ai^t ®fP'oject.
Except as expressly provided in this AGREEMENT, all substantive and procedural requirements
and provisions contained in CITY's ordinances, specific plans, design guidelines, rules and
regulations, including, but not limited to zoning and building codes and approved billboard designs
on file with the Planning and Building Agency, in effect as of the effective date of this
AGREEMENT, shall apply to the construction and development of the Subject Property.
3. Oper°atinca R�iegarperots
The following covenants shall run with the: sites until such time as the billboard is removed
from the sites:
A. Covenants Regarding Operation and Maintenance. ('3PERATOR shall operate and
maintain the billboard in good working order and in accordance with all applicable laws,
including without limitation, the California Outdoor Advertising Act (California Business
and Professions Code Section 5200, et seq.) and California Department of Transportation
regulations and specifications adopted pursuant thereto (Title 4 California Code of
Regulations, Section 2240, et. seq.).
B. Maintenance. OPERATOR shall, at OPERA f OR's sole cost and expense, maintain and
repair or cause to be maintained and repaired the billboard and any and all security lighting
or appliances installed in accordance with any entitlements and building permits issued
by the CITY and any and all other applicable laws. The billboard and the sites shall be
kept free from the accumulation of debris and waste materials. All exterior painted
surfaces shall be maintained at all times in a clean and presentable manner, free from
chipping, cracking, peeling and defacing marks. All broken lights shall be immediately
repaired in order to prevent hazardous conditions and/or invitation for trespassers and
malicious mischief. Except during periods of construction, no lumber, trash, discarded
equipment or other debris shall be stored in areas visible from the street.
C. Graffiti Removal. All graffiti and defacement of any type, including marks, words and
pictures must be removed and any necessary painting or repair completed within 24 hours
of the OPERATOR becoming aware of the graffiti or the CITY reporting the graffiti to the
OPEARTOR.
D. Design of potential graffiti -attracting surfaces. OPERATOR shall design the billboard
and all associated structures visible from any public: or quasi -public place is such a
manner to consider prevention of graffiti in accordance with the Santa Ana Municipal
Code section 41-638.2(b) as the same may be amended from time -to -time hereafter.
E. Non -Operation and Removal. ¢:OPERATOR shall promptly repair the billboard in the event
of damage, defect or other cause so as to maintain operations in accordance with this
AGREEMENT. In the event that OPERATOR anticipates that a repair will require more
than 30 days to complete, OPERATOR shall notify City in writing of the anticipated
schedule and the cause of the delayed repair.
4. Operating Fee Bates for IIlboard: Payment.
OPERATOR shall pay billboard operating fees to CITY as follows:
A. OPERATOR shall pay CITY a total annual operating fee for the entire digital billboard as
follows: term year one (1) $30,000.00, term year two (2) $45,000.00, term year three (3)
$60,000.00, term year four (4) $75,000.00, term year five (5) $90,000.00. After term year
five, the annual operating fee shall only increase by three percent (3%) annually on the
anniversary month of the Commencement Date. See Exhibit A: Annual Payment
Schedule.
B. OPERATOR shall increase their remitted gross sales tax to the CITY each calendar year
by five percent (5%) over the previous year's remitted gross sales tax ("Annual Sales Tax
Increase") commencing January 1, 2024. In the event that OPERATOR is unable to
achieve the Annual Sales Tax Increase through regular business operations, OPERATOR
must remit to CITY the difference in actual remittance versus required remittance through
one (1) annual monetary payrnent ("Sales Tax Shortage Payment"). By way of example,
if OPERATOR's Annual Sales Tax Increase equated to a gross sales tax remittance total
of $5,000.00, but at the end of the subject year OPERATOR increased remitted gross
sales tax by $4,500.00, OPERATOR would owe CITY a Sales Tax Shortage Payment of
$500.00 within sixty (60) days of notice from CITY of Sales Tax Shortage Payment
activation. OPERATOR shall be solely responsible for monitoring annual gross sales and
the potential for a gross sales tax remittance: shortfall. OPERATOR is to notify CITY no
less than thirty (30) days before the end of the calendar year of any potential shortfall.
CITY shall then be solely responsible for auditing gross sales tax remittance from
OPERATOR for the year and must notify OPERATOR of Sales Tax Shortage Payment
requirement with amount due priorto OPERATOR payment (which shall be remitted within
sixty (60) days of notice). The base remitted gross sales tax threshold that shall govern
year one (1) of this AGREEMENT shall be averaged from the last five (5) years of
documented CITY received gross sales tax from OPERATOR (2019, 2020, 2021, 2022,
2023). See Exhibit B: Gross Taxes Received from Operator. For the avoidance of
confusion, if in any term year OPERATOR must remit a Sales Tax Shortage Payment,
that payment does not apply to the annual remitted gross sales tax threshold. By way of
the example above, if OPERATOR remitted $4,500.00 in gross sales tax through regular
business operations, the amount of gross sales tax to be remitted the following year would
be $4,500.00 plus five percent (5%) for a total of $4,725.00. If in any year OPERATOR
increases remitted gross sales tax by six percent (6%) or more ("Sales Tax Overage") that
Sales Tax Overage shall apply to the following year's Annual Sales Tax increase; Sales
Tax Overage shall riot carry forward beyond the immediately succeeding year. By way of
example and using the scenario above, if OPERATOR's annual gross sales tax remittance
was required to be $5,000 but instead totaled $6,000 in gross sales tax remitted, the
additional $1,000 above the required $5,000 would be credited to the next year's Annual
Sales Tax Increase amount due. In the event of an economic recession, as characterized
by a material change in the local, state, national, or global economy as effected by
recessions, depressions, pandemics (declared by an authorized Federal Agency and
agreed upon by both parties), and/or force majeure events, this Section shall be
renegotiated between CITY and OPERATOR upon written notice from OPERATOR to
CITY of economic downturn business impact. OPERATOR shall be solely responsible for
communicating to CITY when an economic downturn has affected business to the extent
that this Section must be renegotiated.
C. The annual operating fee shall be paid in annual installments (the "Yearly Operating Fee'),
due on the first day of the month in which the Commencement Date occurs. When the first
day of the month falls on a City Holiday or City Hall Closure Day, then the
reporting/remittance date shall fall on the next City business day following. The Yearly
Operating Fee shall be acknowledged and agreed by CITY to be paid timely if paid on
said date. When reporting/remitting is made by mail, the postmark date shall serve as
proof of timely reporting/remittance.
D. OPERATOR shall not add any ancillary use to the new digital billboard and shall not derive
any ancillary revenue from the Subject Property other than advertising revenue unless
agreed to in writing and approved by the City. Any approved ancillary revenue shall be
referred to as Approved Ancillary Revenue. The terms of any Approved Ancillary Revenue
shall be mutually agreed on by CITY and OPERATOR by a separate writing, provided that
the revenue share for Approved Ancillary Revenue shall not be less than 30 percent of
gross ancillary revenue received less bad debt only (not to exceed two percent of gross
ancillary revenue).
E. The "Commencement Date" is January 1, 2024. The Yearly Operating Fee shall be paid
to CITY on the first day of the month that it is due (January 1 of every term year beginning
January 1, 2025). The first payment of the Yearly Operating Fee shall be due one (1) year
after the Comrnencernent Date occurred.
5. Remittance and RetYqutins .
Beginning as set forth above and annually thereafter, OPERATOR shall report and remit
payment to CITY of the applicable billboard operating fees set forth in Section 4 of this
AGREEMENT.
At the request of the CITY, and on no more than a yearly basis, OPERATOR shall provide to
the City gross business sales revenue reports (the "Business Revenue Reports" for all product
sales at the Subject Property. Reports shall include all business product sales gross revenue
collected as of the date of the report. Report shall be provided no later than thirty (30) days
prior to the end of the calendar year. Reporting requirement shall be effective January 1, 2024.
OPERATOR shall maintain or cause to be maintained adequate accounting systems and
controls to insure that all gross revenue is recorded. OPERATOR shall keep or cause to be
kept true and accurate books and records for a period of seven years after end of the Term
as defined in Section 8 and all business transactions related to the Subject Property, and City
shall have the right, through its representatives and at all reasonable times, upon at least 7
days' prior written notice to OPERATOR, to inspect such books and records. If such books
and records are not kept and maintained within a radius of 50 miles from the main office of
the City, upon request of City, OPERATOR shall make such books and records available to
City for inspection and audit at a location within that radius or OPERATOR shall pay to City
the reasonable and actual costs incurred by City in inspecting and auditing such books and
records, including but riot lirnited to travel, lodging and subsistence costs.
6. Past due date -- past duq_g?cmlltu; Lage interest.
A. Any OPERATOR entity or individual who fail;: to pay the billboard operating fees and Sales
Tax Shortage Payments required by this AGREEMENT when due shall be subject to past
due penalties and interest as set forth herein.
i. OPERATOR shall be considered past due if the required yearly operating agreement
fee is riot paid by the last day of the month following the month for which it is due.
ii. For failure to fully pay any yearly fee when due, the following past due penalty and late
interest charges shall be added to the unpaid balance amount owing:
1) A past due penalty of Ten Percent (10%) per month;
2) A late interest charge of One and One Half Percent (1.5%) per month added to the
unpaid balance amount: owing, inclusive of any prior past due penalty or late interest
charges accrued.
B. Outside of the original Sales Tax Shortage Payment invoice, CITY is not required to send
a past due notice or, otherbill or invoice to OPERATOR, or any other person subject to
the provisions of this AGREEMENT, and fMure to send such notice, bill or invoice shall
not affect the validity of any operating fee, late penalty or late interest charge due under
the provisions of this AGREEMENT.
7. Requirements for AIII Digii a[ Billboard.
A. Civic Promotions. OPERATOR agrees to provide free advertising time on the Digital
Billboard to City for the promotion of community events, tourism activity and events, and
other civic interests of the City.
i. Amount of Advertising Time for Civic Promotions. Following the Commencement Date,
OPERATOR shall permit City to place a maximum of ten (10) different civic promotion
and/or public service announcernent advertisements, as supplied by CITY, per year with
each advertisement running for as long and as many times as requested by the City within
the parameters as uncontracted space available allows for the entire Term of the
AGREEMENT, without charge for advertising space (the "Free Advertising Space"). The
foregoing obligation of OPERATOR to provide Free Advertising Space to City for Civic
Promotions shall be and remain in effect only during those periods OPERATOR is
operating the Digital Billboard with electronic/digital technology. In the event OPERATOR
removes or is unable to operate the Digital Billboard for any reason, OPERATOR'S
obligation to provide Free Advertising Apace to City for any reason shall be suspended for
the period of time it is not operating the Digital Billboard.
ii. Process for City Requests to Utilize Advertising Space for Civic Promotions. City shall
be responsible for providing OPERATOR with its Civic Promotions, which may be updated
by City at any time, and for any costs associated with providing OPERATOR with
associated artwork in acceptable format. City shall notify Operator at least thirty (30) days
before the proposed display date of a Civic Promotion. City must submit "camera ready
art" utilizing formats and protocols acceptable to OPERATOR. All copy shall be submitted
to OPERATOR at least ten (10) business days in advance.
III. Limitations on City. City shall not charge for, or exchange goods or services for, any
advertising space on the Digital Billboard provided by OPERATOR to City pursuant to this
AGREEMENT; provided, however, that this limitation shall not be construed to prevent
City from entering into agreements to promote properties within the City in conjunction
with its tourism promotion activities, so long as City does not sell advertising for profit. In
addition, it is expressly understood and agreed that Civic Promotions may not include any
names, logos, marks, products, or services associated with any commercial entity, any
campaign for public office in the City, or any third party non -governmental person or entity
that is not located in, sponsored by or affiliated with the City. The forgoing limitation shall
not be construed to prohibit the display of names, logos, or marks of organizations
associated with City events or activities.
B. Public Safety Announcements. OPERATOR shall utilize the advertising space on the
Digital Billboard for regional emergency announcements and alerts, including but not
limited to Amber Alerts and "wanted" criminal postings from law enforcement, without
charge, as reasonably requested by the City of Santa Ana, in accordance with applicable
local, regional, and/or state protocols within the parameters as uncontracted space
available allows.
C. Unacceptable Content. OPERATOR agrees not to utilize the Digital Billboard to advertise
tobacco products, adult entertainment businesses, as defined in the Santa Ana Municipal
Code, conferences/conventions for any of the foregoing prohibited uses, sexually explicit
messages, or any violent, hate, or other obscene messaging.
8. Term.
This AGREEMENT shall continue in full force and effect for a twenty (20) year period
commencing on the Commencement Date ("Term"). OPERATOR may notify City up to
twelve months prior to the expiration date of this AGREEMENT of its desire to extend the term
of this AGREEMENT, and City and OPERATOR shall enter into negotiations and may agree
to extend the term of this AGREEMENT pursuant to a mutual ;agreement in writing upon terms
acceptable to both parties. Following termination or expiration of this AGREEMENT and
provided no extension of this AGREEMENT is agreed to, within one hundred eighty (180)
days after the date of the termination or expiration of this AGREEMENT, OPERATOR shall,
at its sole cost and expense, either (a) convert the billboard to an on -premise business sign
that will only be allowed to advertise the products, goods and services sold on the Subject
Property referenced herein or (b) secure all required permits tr:i, and shall remove and properly
transport the billboard from the Subject Property, shall return the Subject Property to its
original condition, and shall not store any portion of the rernoved billboard on the Subject
Property or any other location within City's jurisdictional boundaries. The billboard shall be
deemed to have been satisfactorily removed for purposes of this Section 8 so long as no
remnants of the sign structures remain visible above ground, all utilities are capped, and the
site is graded, secured, landscaped, and irrigated to a condition satisfactory to CITY. If CITY
is required to exercise its rights under this AGREEMENT due to OPERATOR'S failure to
remove the billboard, then CITY shall be entitled to be reimbursed by OPERATOR any and
all direct expenses incurred by CITY in exercising its rights under this subsection within no
more than thirty (30) days following CITY's delivery of an invoice demanding payment for such
expenses. Any such removal of the billboard by City shall not entitle OPERATOR to any
damages of any kind whatsoever against CITY or its agents, and OPERATOR hereby
releases and holds all City Parties harmless from indemnified claims and liabilities for any
action by any of the City Parties in removing the billboard. OPERATOR hereby consents to
CITY's entry onto the site to accomplish such removal.
9. Business License Rg_C uLir<3d.
A valid City of Santa Aria Business License is required for all entities engaged in operating
digital billboard in the City of Santa Aria.
10. Regulation by otheir Public Agencies.
It is acknowledged by the Parties that other public agencies not subject to control by the City,
including, but not limited to, Caltrans, may possess authority to regulate aspects of the digital
billboard as contemplated herein, and this AGREEMENT does not limit the authority of any of
those other public agencies. OPERATOR acknowledges and represents, in addition to City's
regulations, OPERATOR shall, at all times, comply with all applicable Federal, State, local,
and other public agency laws and regulations applicable to the billboard. To the extent any
such other public agency or agencies preclude development or maintenance of the billboard,
OPERATOR shall have the right to terminate this AGREEMENT by delivery to City of notice
of termination, along with evidence reasonably satisfactory to City that the development
and/or maintenance of the billboard has been precluded by another agency or agencies. Upon
delivery of such evidence and notice of termination to the City, this AGREEMENT shall be
deemed terminated and OPERATOR shall not be further obligated under this AGREEMENT;
provided, however, that such termination shall not affect the OPERATOR'S obligation to pay
any Development Review or Impact Fees that have already accrued, to indemnify and defend
the City and any of its agents or consultants acting on its behalf for any Indemnified Claims
and Liabilities pursuant to Section 11, and/or to convert/remove the billboard from the site in
accordance with Section 8 of this AGREEMENT, if applicable.
11. OPERATOR Indemnification of
A. OPERATOR will defend, indemnify and hold harmless CITY from any claims,
damages, injuries, or liabilities of any kind whatsoever sustained or incurred by CITY
resulting from this AGREEMENT, or OPERATTOR's performance and/or breach of this
AGREEMENT.
B. OPERATOR agrees to defend, at its sole expense, any action against CITY, its agents
or consultants, officers, and employees related to this AGREEMENT. OPERATOR
agrees to indemnify and reimburse CITY for any court costs and attorney fees that
CITY may be required to pay as a result of any legal challenge related to this
AGREEMENT" and/or CITY's approval of a Billboard Permit or Conditional Use Permit.
CITY may, at its sole discretion, participate at its own expense in the defense of any
such action, but such participation shall not relieve the OPERATOR of its obligation
hereunder.
12. Annual Review
During the term of this AGREEMENT, CITY shall annually review the extent of good faith
compliance by OPERATOR with the terms of this AGREEMENT. OPERATOR shall file an
annual report with the CITY containing detailed information regarding compliance with the
terms of this AGREEMENT no later than March 15 of each calendar year.
13. Default and Termination for Cause.
This AGREEMENT may be terminated, for good cause, by City or OPERATOR if either
gives the other Party written notice of default and if that default is not corrected (i) on or before
fifteen (15) days after receipt of the notice for non-payment of any amount due or (ii) within
thirty (30) days after receipt of the notice for any other default (except in connection with a
default which cannot be remedied or cured within said 30-day period, in which event said 30-
day period shall be extended for such time as shall be deemed mutually agreeable by City
and OPERATOR necessary to cure the same, but only if the defaulting Party, within such
30-day period, shall promptly commence avid thereafter proceed diligently and continuously
to cure such default.
If this AGREEMENT terminates due to non-performance by OPERATOR, then (i) any
remaining unpaid Yearly Operating Fee that was due for any period before the date of that
termination shall be immediately due and payable to City and (ii) OPERATOR at its sole cost,
shall either (a) convert the billboard to art on -premise business sign that will only be allowed
to advertise the products, goods and servict;s scald on the Subject Property referenced herein
or (b) immediately remove the billboard and visible supporting equipment installed pursuant
to this AGREEMENT and shall return the site to an acceptable condition wherein the billboard
and its accompanying equipment and improvements are removed, and the site is graded,
landscaped, irrigated, and secured; provided, that if OPERATOR fails to remove any of the
billboard within one hundred eighty (9180) days after this AGREEMENT is terminated
pursuant to this subsection, then City shall be entitled to remove the remaining billboard and
dispose of same. If City is required to exercise its rights under this AGREEMENT due to
OPERATOR'S failure to remove the billboard, then City shall be entitled to be reimbursed by
OPERATOR any and all direct expenses incurred by City in exercising its rights under this
subsection within no more than ten (10) business days following City's delivery of an invoice
demanding payment for such expenses. Any such removal of the billboard by City shall not
entitle OPERATOR to any damages of any kind whatsoever against any or all City Parties,
and OPERATOR hereby releases and holds all City Parties harmless from indemnified claims
and liabilities for any action by any of the City Parties in removing the billboard. OPERATOR
hereby consents to C.;ity's entry onto the site to accomplish such removal.
14. Termination Without Cause.
0
This AGREEMENT may be terminated without cause by the City or OPERATOR, upon
eighteen (18) months written notice of termination, provided that such termination cannot
occur within the initial ten (10) years from the Commencement Date. Such termination may
only occur by the City in events of intragovernrnental changes with local effect that require
such termination, enaction of preemptive laws that require such termination, natural disasters,
declared states of emergency (local, state and/or federal), war, or an event materially similar
in nature or effect to those enumerated that requires such termination. In such event, City
shall be entitled to receive, and the OPERATOR shall pay City, compensation for all Monthly
Operating Fees due to the City up to the termination date.
If this AGREEMENT terminates due to non-performance by OPERATOR, then (i) any
remaining unpaid Annual Operating Fee that was due for any period before the date of that
termination shall be immediately due and payable to City and (ii) OPERATOR at its sole cost,
shall either (a) convert the billboard to an on -premise business sign that will only be allowed
to advertise the products, goods and services sold on the Subject Property referenced herein
or (b) immediately remove the billboard and visible supporting equipment installed pursuant
to this AGREEMENT and shall return the site to an acceptable: condition wherein the billboard
and its accompanying equipment and improvements are removed, and the site is graded,
landscaped, irrigated, and secured; provided, that if OPERATOR fails to remove any of the
billboard within one hundred eighty (180) days after this AGREEMENT is terminated pursuant
to this subsection, then City shall be entitled to remove the remaining billboard and dispose
of same. if City is required to exercise its rights under this AGREEMENT due to
OPERATOR'S failure to remove the billboard, then City shall be entitled to be reimbursed by
OPERATOR any and all direct expenses incurred by City in exercising its rights under this
subsection within no more than ten (10) business days following City's delivery of an invoice
demanding payment for such expenses. Any such removal of the billboard by City shall not
entitle OPERATOR to any clamages of any kind whatsoever against any or all City Parties,
and OPERATOR hereby releases and holds all City Parties harmless from indemnified claims
and liabilities for any action by any of the City Parties in removing the billboard. OPERATOR
hereby consents to City's entry onto the site to accomplish such removal.
15. Termination - Effect on Prior Obligations.
Upon any termination of this AGREEMENT, OPERAT'OR's obligation to remit operating
agreement fees due and payable under the terms of this AGREEMENT for operation of a
billboard prior to termination of this AGREEMENT shall continue to be in effect. Past due
penalties and late interest chargers shall continue to accrue and be applicable until all
operating fees due under this AGREEMENT are paid in full. OPERATOR's liability for any
remaining unpaid past due penalties and/or late interest charges shall continue until fully
satisfied.
16. Reimbursement Clause.
In consideration of the time and costs incurred by CITY in the drafting and implementation
of this AGREEMENT, OPERATOR agrees to pay 57 500,00 to CITY within thirty (30) days
of execution of this AGREEMENT.
17. AttorneyFees and Costs.
E]
In any action or proceeding between CITY and OPERATOR brought to interpret or enforce
this AGREEMENT, or which in any way arises out of the existence of this AGREEMENT or is
based upon any term or provision contained herein, the prevailing party in such action or
proceeding shall be entitled to recover from the non -prevailing party, in addition to all other
relief to which the prevailing party may be entitled pursuant to this AGREEMENT, the
prevailing party's reasonable attorneys' fees and litigation costs. Fees and costs recoverable
pursuant to this Section 17 include: those incurred during any appeal from an underlying
judgment and in the enforcement of any judgment rendered in any such action or proceeding.
18. Notice.
Any notice, tender, demand, delivery, or other communication pursuant to this
AGREEMENT shall be in writing and shall be deemed to be properly given if delivered in
person or mailed by first class or certified mail, postage prepaid, or sent by fax or other
telegraphic communication in the rnanner provided in this Section, to the following persons:
'To CITY: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box '1988
Santa Ana, CA 92702-1988
Fax 714-647-6956
Copies to: Executive Director — Planning and Building Agency
City of Santa Ana
20 Civic Center Plaza (M ;20)
P.O. Box 1988
Santa Ana, California 92702-1988
Fax 714-973-1461
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702-1988
Fax 714-647-6515
To OPERATOR: Sign Co, LP
2401 S. Pullman St.
Santa Ana, CA 92705
A party may change its address by giving signed notice in writing to the other party.
Thereafter, any communication shall be addressed and transmitted to the new address. If
sent by mail, communication shall be effective or deemed to have been given three (3)
business days after it has been deposited in the United States mail, duly registered or certified,
with postage prepaid, and addressed as set foit.h above. If sent by fax or email document
attachment, communication shall be effective or deemed to have been given twenty-four (24)
hours after the time set forth on the transmission report issued by the transmitting facsimile
10
machine, addressed as set forth above. For purposes of calculating these time frames,
weekends, federal, state, County or City holidays, or City Hall closure dates shall be excluded.
19. Exclusivity and Amendment.
This AGREEMENT represents the complete and exclusive statement between CITY and
OPERATOR for the applicable SUbject Property identified on page one of this agreement, and
supersedes any and all other agreements, oral or written, between the parties. This
AGREEMENT may not be modified except by written instrument signed by CITY and by an
authorized representative of OPERATOR. Each party to this AGREEMENT acknowledges
that no representations, inducements, promises or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not embodied
herein.
20. Assignment.
OPERATOR may not assign or transfer any interest herein without the prior written
consent of CITY, and any such assignment or transfer without CITY's prior written consent
shall be considered null and void.
21. Discrimination.
OPERATOR shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and
prohibited by applicable law, in the recruitment, selection, training, utilization, promotion,
termination or other ernployrnent related activities. OPERATOR affirms that it is an equal
opportunity employer and shall comply with all applicable fecleral, state and local labor laws
and regulations.
22. Jurisdiction -Venue.
This AGREEMENT has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this
AGREEMENT shall be determined and governed by the laws of the State of California. Both
parties further agree that Orange County, California, shall be the venue for any action or
proceeding that may be brought or arise out of this AGREEMENT.
23. Severability.
If any part of this AGREEMENT is found to conflict with applicable local, state, or federal
laws or regulations, such part shall be inoperative, null and void insofar as it conflicts with said
laws or regulations, or may be modified or suspended as may be necessary to comply with
any local, state, or federal law or regulation, but the remainder of the AGREEMENT shall
continue in full force and effect.
24. Counterparts.
This AGREEMENT may be executed iri counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument. The execution
of this AGREEMENT may be by actual, facsimile or electronic signature.
11
25. Authority to Bind.
Each undersigned represents and warrants that its signature hereinbelow has the power,
authority and right to bind their respective parties to each of the terms of this AGREEMENT,
and shall indemnify CITY fully, including reasonable costs and attorney's fees, for any injuries
or damages to CITY in the event that such authority or power is not, in fact, held by the
signatory or is withdrawn.
(Signature page; follows)
12
IN WITNESS WHEREOF, the parties hereto have executed this ia.GREEMENT the date and year
first above written.
ATTEST:
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By: _
Soy
Qhie Msistant City Attorney
Minh Thai
Executive Director
Planning & Building Agency
CITY OF SA NTA ANA
Zv ;9
Thomas Hatch
Interim City Manager
OPERATOR
(LEGAL
NAME: Sign Cc LP
SIGNATOR
IVAME:
TITLE: q' q
TA%PAY,r—R ID: 1 3
13
EXHIBIT A: ANNUAL PAYMENT SCHEDULE
Term Year
Annual Pa. rment Remittance Amount
1
$30,000.00
2
$45, 000.00
3
$60, 000.00
4
$75,000.00
5
$90,000.00
6
$92,700.00
7
$95,481.00
8
$98, 345.43
9
;$101,295.79
_
10
_ _ _
$104,334.67
_
11
_
$107,464.71
_
12
$110,688.65
_
13
$114,009.31
14
—- $117,429.59
15 ------
---- ;$120,952.47
16 --
— — $124,581.05
17 --------
-------;j1128,318.48
18
$132,168.03
19_
_
$136,133.08
_
20 — —
$140,217.07
_ --
--
Total Agreement Term Remittance
$2,024,119.32
14
EXHIBIT B:_ GROSS TAXES RECEIVED FROM OPERATOR
Sales Tax Year
Remitted Amount
2019
$178,870
2020
$220,205
2021
--- $267,798
2022 _
$271,062
_
2023
To be inserted after January 1, 2024
5 Year Average Baseline Amount
To be inserted after January 1, 2024
'15
City of Santa Ana Billboard Operating Agreement
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
-validity of that document.
State of California
County of LOS ANGELES
On September 7th 2023 before me, )asmin Muniz Notary Public
(insert name and title of the officer)
personally appeared , Scott King
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
JASMIN M. MUNI2
Notary Public • California
*my
LosAngelesCountyCommisslon # 2335104
Comm. Expires Oct 9, 2024
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