RECOMMENDATION TO CITY COUNCIL

Transcription

1 14-K TO: ATTENTION: FROM: SUBJECT: Honorable Mayor and Members of the City Council Jeffrey L. Stewart, City Manager Len Gorecki, Assistant City Manager/Director of Public Works Consideration and possible action to authorize the City Manager to execute Agreement File No. 794, in a form approved by the City Attorney, with, for benefits and services related to the displacement of a billboard on Bellflower Boulevard. DATE: March 12, 2018 EXECUTIVE SUMMARY Approval of Agreement File No. 794 (Agreement) would provide Lamar Central Outdoor, LLC (Lamar) with certain benefits related to the displacement of its billboard on Bellflower Boulevard. The billboard s displacement is necessitated by the Bellflower Boulevard Widening Project. RECOMMENDATION TO CITY COUNCIL 1) Authorize the City Manager to execute Agreement File No. 794, in a form approved by the City Attorney; or 2) Alternatively, discuss and take other action related to this item. FISCAL IMPACT The total amount payable to Lamar under this Agreement is $7,291.50, which includes the compensation of lost business revenue due to the billboard s displacement. The total cost is budgeted with Measure R Highway Programs grant funds in the Bellflower Boulevard Widening Project Account No DISCUSSION To construct the Bellflower Boulevard Widening Project, the City has acquired property along the west side of Bellflower Boulevard between Artesia Boulevard and the SR-91. These acquisitions have displaced tenants on the properties, including Lamar s billboard on Bellflower Boulevard. Approving this Agreement will compensate Lamar for the loss of business revenue over the next two years, which is estimated at $7, In exchange, the City will reasonably cooperate with Lamar to issue a permit for the billboard at a future replacement site, so long as it is properly zoned for new billboards. The City will not compensate Lamar for the replacement site, billboard relocation costs, or other benefits such as goodwill or FF&E payments. Under this Agreement, Lamar will have up to 10 years to identify a replacement site properly zoned for new billboards within the City. ATTACHMENT Agreement File No

2 BILLBOARD SETTLEMENT AGREEMENT FILE NO. 794 CITY OF BELLFLOWER AND LAMAR CENTRAL OUTDOOR, LLC THIS BILLBOARD SETTLEMENT AGREEMENT ( Settlement Agreement or Agreement ) is entered into as of this 12 th date of March, 2018, by and between the CITY OF BELLFLOWER ( City ) and LAMAR CENTRAL OUTDOOR, LLC, a Delaware limited liability company ( Lamar ). Hereafter, City and Lamar are sometimes individually referred to as Party or collectively as the Parties. RECITALS WHEREAS, City is engaged in an infrastructure project located along Bellflower Boulevard, involving the widening of Bellflower Boulevard between Artesia Boulevard and the SR-91 Freeway ( Project ), and has acquired an interest in the parcel known as Bellflower Boulevard, Bellflower, CA, described as Los Angeles County Assessor s Parcel Number (the Property ) for purposes of so doing; and WHEREAS, Lamar owns and operates one (1) double-faced, outdoor advertising display structure ( Existing Billboard ) as described and depicted in Exhibit A, together with a leasehold interest in the Property upon which it is situated; and WHEREAS, City had made a prelitigation offer to acquire private property pursuant to California Government Code Section , which is a prerequisite to adopting a Resolution of Necessity and filing an eminent domain action to acquire the Property for the Project against Lamar and others; and WHEREAS, based on the prelitigation offer and threat of potential eminent domain litigation, Lamar has agreed to remove the Existing Billboard located on the Property in a timely manner with the intent of relocating the subject Billboard to another suitable location; and WHEREAS, the California Outdoor Advertising Act [Business & Professions Code, Section 5200, et. seq], encourages local entities and billboard owners to enter into relocation agreements which allow local entities to continue development in a planned manner without expenditure of public funds while allowing the continued maintenance of private investment and a medium of public communications; and which specifically empowers and encourages local agencies to enter into relocation agreements on whatever terms are agreeable to City and billboard owners, and to adopt ordinances and resolutions providing for relocation of such billboards; and WHEREAS, Section of the California Outdoor Advertising Act, Business & Professions Code, permits the California Department of Transportation to allow a legally permitted display situated on property being acquired for a public use to be relocated, subject to the approval, among other things, of the jurisdiction in which the display will be relocated so long as the relocation would not cause a reduction in federal-aid highway funds or increase the number of nonconforming displays within the jurisdiction of a governmental entity; and WHEREAS, the Parties have agreed upon a compensation amount to be paid by City to Lamar for loss of business revenue only; and Page 1 of 6-2-

3 Page 2 of 6 WHEREAS, Lamar desires to relocate the Existing Billboard to a location to be determined by Lamar in the future and, with the exception of loss of business revenue, is willing to forego just compensation in exchange for concurrence and acknowledgement from City that Lamar may relocate the Existing Billboard; and WHEREAS, City is willing to cooperate with Lamar in the future, as necessary and reasonable, regarding the relocation of the Existing Billboard, including with regard to the issuance of the requisite permits therefor; and WHEREAS, City and Lamar now wish to enter into this Settlement Agreement to memorialize the terms and conditions upon which Lamar will agree to remove the Existing Billboard and forego just compensation Lamar is otherwise entitled to in exchange for City s payment for loss of business revenue and recognition of Lamar s desire to relocate the Existing Billboard subject to the terms, conditions and provisions of applicable law and this Agreement. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by reference, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the mutual covenants set forth herein, the Parties hereby agree as follows: 1. Term of Agreement. Unless terminated earlier as provided in this Settlement Agreement, this Agreement shall continue in full force and effect for so long as any obligation is owed by either Party, pursuant to the terms of this Agreement, but not longer than 10 years from the effective date of this Agreement. 2. Effective Date. This Agreement shall become binding and effective when it has been executed by both Lamar and City. 3. Billboard Relocation. Lamar shall remove the Existing Billboard and associated materials from the Property within thirty (30) days of execution of this Agreement. If Lamar has not removed the Existing Billboard within thirty (30) days of execution of this Agreement, Existing Billboard will be destroyed by the City. The Parties acknowledge that Lamar shall have the right, consistent with all applicable federal, state and local laws, to relocate the Existing Billboard in the future when a suitable relocation site is identified. Lamar shall be solely responsible for obtaining all permits and approvals authorizing relocation of the Existing Billboard. Lamar shall also be solely responsible for all costs associated with this relocation. Lamar s ability to successfully relocate the Existing Billboard is not a condition of the forbearance of compensation and release of City provided for in Section 5 and Section 6 below. 4. City Cooperation. City shall reasonably cooperate with Lamar in obtaining the issuance of all discretionary and non-discretionary permits required for the removal of the Existing Billboard and the relocation of the Existing Billboard to the extent Lamar requests such cooperation. If the Billboard is relocated within the City, it shall be in a location mutually agreeable to the parites hereto. If the Billboard is relocated within the -3-

4 Page 3 of 6 City, Lamar shall have 10 years from the effective date of this Agreement to relocate the Billboard within the City. 5. Forbearance. In exchange for the representations and commitments of City in this Agreement, Lamar covenants and agrees to forbear the receipt of any just compensation Lamar is otherwise entitled to for the removal and loss of the Existing Billboard. This forbearance does not include compensation for lost business revenue in the amount of Seven Thousand Two Hundred Ninety One Dollars and Fifty Cents ($7,291.50). City shall remit payment of the compensation for lost business revenue within thirty (30) days of the effective date of this Agreement. 6. Settlement. This Agreement shall represent complete and final settlement of any and all claims to compensation of any kind and nature which Lamar had, now has, or may assert in the future against City relating to the Property and Project, including, but not limited to, any and all claims for pre-condemnation damages, loss of goodwill, lost rents, or losses or damage to fixtures, equipment, personal property, litigation expenses, attorneys fees, costs and any other claims Lamar may have under the California Eminent Domain Law. 7. General Provisions. a. Assignment. Lamar may only assign or otherwise transfer this Agreement to any other person, firm, or entity, upon approval of City of an assignment and assumption agreement in a form reasonably acceptable to City with such approval not unreasonably withheld. After assignment as permitted by this Section, City shall look solely to such assignee or transferee for compliance with the provisions of this Agreement which have been assigned or transferred. b. Waiver. The waiver by any Party of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any other term, covenant or condition, or of any subsequent breach of the same term, covenant or condition. c. Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be sent by: (a) certified or registered mail, postage pre-paid, return receipt requested, (b) personal delivery, or (c) a recognized overnight carrier that provides proof of delivery, and shall be addressed as follows: If to Lamar: Lamar Central Outdoor Attn: Ray Baker, General Manager 1121 South Boyle Avenue, Suite 201 Los Angeles, CA With a Copy to: Stream Kim Hicks Wrage & Alfaro Attn: Theodore Stream, Esq Tenth Street, Suite 700 If to City: City of Bellflower Attn: Len Gorecki Civic Center Drive Bellflower, CA With a Copy to: Hensley Law Group Attn: Karl H. Berger, Esq W. Olive Avenue -4-

5 Page 4 of 6 Riverside, CA Burbank, CA Notices shall be deemed effective upon receipt or rejection only. d. Authority to Enter Agreement. All Parties have the requisite power and authority to execute, deliver and perform the Agreement. All Parties warrant that the individuals who have signed the Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. e. Amendment/Modification. No supplement, modification, or amendment of this Settlement Agreement shall be binding unless executed in writing and signed by all Parties. f. Attorneys Fees. In the event of litigation between the Parties arising out of this Settlement Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys fees and other costs and expenses incurred, including attorneys fees on appeal, and all other reasonable costs and expenses for investigation of such action, including the conducting of discovery, in addition to whatever other relief to which it may be entitled. g. Time is of the Essence. Time is of the essence of each and every provision of this Relocation and Forbearance Agreement. h. Integration. This Settlement Agreement embodies the entire agreement between the Parties and supersedes any prior or contemporaneous understandings between the Parties related to the Settlement Agreement. i. Governing Law. This Settlement Agreement shall be interpreted and enforced according to, and the Parties rights and obligations governed by, the domestic law of the State of California, without regard to its laws regarding choice of applicable law. j. Severability. If any provision of this Settlement Agreement is held to be invalid, the balance shall remain binding upon the Parties. This Settlement Agreement shall be interpreted in accordance with its plain meaning, and not in favor of or against either Party.Counterparts. This Settlement Agreement may be signed in counterparts, each of which shall constitute an original. k. Municipal Powers. Nothing in this Agreement is intended to, nor can it, act as a limitation on City s present or future exercise of municipal powers in accordance with the California Constitution and applicable law. l. Compromise, Settlement, and Release. Except to the extent that City may exercise its police powers to enforce applicable law after the Agreement is approved, in consideration of the mutual terms and conditions set forth in this Agreement, the Parties compromise and settle any and all past, present, or future claims, demands, obligations, or causes of action for compensatory or punitive damages, costs, losses, expenses, and compensation, whether based on tort, contract, or other theories of recovery, that the Parties have or might accrue arising from the Dispute. Further, the Parties, on their respective behalves and those of their heirs, executors, administrators, and assigns fully release the other Party, its elected and -5-

6 Page 5 of 6 appointed officials, employees, agents, and all other persons and associations, known or unknown, from any obligation or liability arising from the Dispute. The Parties agree that this compromise, settlement, and release constitutes a bar to any claim involving the Dispute. m. General Release of All Known or Unknown Claims. The Parties acknowledge and agree that this Agreement applies to all claims that the Parties may have against each other arising out of the Dispute for injuries, damages, or losses to person and property, real or personal, whether those injuries, damages, or losses are known or unknown, foreseen or unforeseen, or patent or latent. n. Civil Code The Parties, or their representatives, certify that he or she read Civil Code 1542, set forth below, and indicates that fact by initialing here: [CITY] [LAMAR]. A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the tiem of executin the release, which if known by him or her must have materially affected his or her settlement with the debtor. o. Waiver of 1542 Protections. After reading and understanding Civil Code 1542, City and Lamar voluntarily waive their application to this Agreement. City and Lamar understand and acknowledge that the significance and consequence of this waiver is that even if City or Lamar should eventually suffer additional damages arising out of the Dispute, City and Lamar will not be permitted to make any claim against the other Party for those damages. Furthermore, City and Lamar acknowledge that City and Lamar intend these consequences even as to claims for damages that may exist, and which, if known, would materially affect City s and Lamar s decision to execute this Agreement, regardless of whether City s or Lamar s lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause. p. Legal Advice. Each Party warrants and represents that in executing this Agreement, each Party sought legal advice from the attorney of their choice, that the terms of this Agreement and its consequences were completely read and explained to each Party by that attorney, and that each Party fully understands the terms of this Agreement. q. Full Disclosure. Each Party acknowledges and represents that each Party was apprised of all relevant information and data relevant to the Dispute and this Agreement, including, without limitation, future risks, complications, and costs. Each Party further acknowledges and represents that, in executing this Agreement, the Party has not relied on any inducements, promises, or representations made by the other Party or any representative of the other Party. (Signatures on the next page) -6-

7 Page 6 of 6 IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to be executed on the date first hereinabove written. CITY CITY OF BELLFLOWER: By: Jeffrey L. Stewart, City Manager APPROVED AS TO FORM: By: Karl H. Berger, City Attorney LAMAR LAMAR CENTRAL OUTDOOR By: Ray Baker, General Manager APPROVED AS TO FORM: By: THEODORE STREAM -7-

8 City of Bellflower Agreement File No Exhibit A DESCRIPTION OF EXISTING BILLBOARD The Existing Billboard is described as one (1) double-faced, outdoor advertising display located upon Los Angeles County Assessor s Parcel Number [ ], Bellflower Boulevard, Bellflower, CA. -8-