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HomeMy Public PortalAboutAgreement_2014-02-05_Delorenzo Family Trust_Digital Billboard Advertising and Amortization_1st AmendmentThis page is part of your document - DO NOT DISCARD 03/10/14 AT 08:OOAM P0014 FEES: 0.00 TARES: 0.00 OTHER: 0.00 PAID: 0.00 IIIIIIIII I I 1111111111111111111111111111111111111111111111111111111111111111111111111111 LEADSHEET 1111111 201403100210004 00008939210 I IIIIII VIII VIII VIII VIII VIII VIII VIII VIII IIII IIII 006072741 SEQ: 10 DAR - Title Company (Hard Copy) EQ82668 IS FORM IS NOT TO BE DUPLICATED Tss OFFICIAL BUSINESS Document exempt from recording fees pursuant to Cal. Gov. Code § 6103. 00111LITJ ON 1;MOM bifflej.1 on n rile im City of Temple City 9701 Las Tunas Drive Temple City, CA 91780 ATTN: Cormnunity Development Dept, SPACE ABOVE THIS LINE FOR RECORDING USE by and between the and TEMPLE CITY GATEWAY, LLC ASSIGNEE OF DELORENZO FAMILY TRUST Dated February 5, 2014 LA #4824-5&80-7317 v5 J AMORTIZATION _. This First Amendment to Digital BillUoard Advertising and Amortisation Agreement {"First Amendment"), which is dated for reference as indicated on the cover page, is hereby L ntered into by and between the CITY OF TEMPLE CITY, a California charter city ("City"), and the TEMPLE CITY GATEWAY, LLC ASSIGNEE OF DELORF.N70 FAMILY TRUST ("Digital Billboard Owner'''), as follows: RECITAi,S A. City and Dagitai Billboard Owner entered in a Digital Billboard Advertising and Amortisation Agreement on or about October 6, 2011 ("Agreement"). The Agreement was recorded with the Los Angeles County Recorder's Office on October 13, 2011 as Document Number 20111389480, B. On January 27, 2012, DeLorenzo Family Trust, Digital Billboard Owner under the Agreement, assigned all of its Rights, Title and Interest in the Agreement to Temple City Gateway, LLC as provided in Paragraph 6.1 of the Agreement. C. The Agreement provides that Digital Billboard Owner will provide advertising space to the City. Digital Billboard Owner and City desire to amend the Agreement to add additional information regarding the content and formatting of the City's advertising slots, and procedures for the submission of advertising slots by the City to Digital Billboard Owner. D. City and Digital Billboard Owner also desire to amend the Agreement to memorialize the City's efforts to reasonably mitigate any visual inference of the Billboard occasioned by the City's installation and maintenance of certain street trees, landscaping, and fixtures in the vicinity of the Billboard along Rosemead Boulevard. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration o£ the promises made and recited herein, the parties do hereby enter into this First Amendment which modifies and amends the Agreement as follows: 1. AMENDMENT. The Agreement is hereby modifi ed and amended as follows: 1.1 Section 1.4. Section 1.4 (Local Business Discount) is amended to read as follows: 1.4. Local Business Discount. Digital Billboard Owner agrees to offer up to twenty- five percent {25%) of the available advertising slots on the Digital Billboards, or up to two {2) slots, whichever is higher, to businesses located in the City at a fifty percent (50%) discount off of the Standard Rate Card price for the advertising slots. To qualify for this discount, a business must actually sell or lease products, or provide services, from a facility located within the City boundary and have a valid City business license. Digital Billboard Owner shall within 30 days of -2- LA 9 4824-5880-7317 v5 City's request, provide City with a report of all businesses that received the local business discount for each fiscal year (July 1 through June 30). City agrees that it will not actively advertise the availability of the local business discount through its advertisements on the Digital Billboards or through other media. Digital Billboard Owner understands that the Agreement and this Amendment are public records which must be disclosed to members of the public upon request, that the City is not prohibited from providing the Agreement and Amendment to any member of the public or community group that requests them, and that advertisement of the local business discount by any member of the public or community group shall not be deemed a violation of this provision by the City." 1.2 Attachment "E". Attachment "E" (Media Format, Scheduling, and Creative Guidelines & Specifications) to the Agreement is amended to read as shown in Exhibit "A" to this First Amendment. 1.3 Attachment "B". Attaclunent "B" (Diagram of Site) is amended to add an Attachment "B-1" read as follows: (Street Tree Diagram), which is attached hereto as Exhibit "B." 1.4 Article VII. Anew Article VII (Digital Billboard Visibility) is added to the Agreement to read as follows: "ARTICLE VII —DIGITAL BILLBOARD VISIBILITY TI Accommodations By City. The City has planted certain trees within the public right -of --way on Rosemead Boulevard that may interfere with visibility of the Digital Billboard from motorists and pedestrians on Rosemead Boulevard. These trees are generally described as: Tree 91 (approximately 280' South of Subject property located at 5402 Rosemead Boulevard, Temple City); Tree #2 (approximately 68' North of Subject property); Tree #3 (approximately 263' North of Subject property) and Tree #4 (approximately 293' North of Subject property), collectively the "Street Trees," and their location is depicted on Attachment B-1. In order to reasonably mitigate any visual interference with the Digital Billboards occasioned by the City's installation of these trees, or other improvements on Rosemead Boulevard, in the vicinity of the program, the City agrees to take the following measures: a. City shall (i) relocate Tree 41 to 15' North of the southern most edge of the existing Bump -out (final location approximately 350' South of south facing digital display); (ii) Tree 92 shall remain in its existing location (final location approximately 68' North of north facing digital display); (iii) City shall relocate Tree #3 to 15' North of the southern most edge of the existing Bump -out (final location approximately 258' North of north facing digital display; and (iv) City shall remove Tree 94 as depicted on Attachment B-2. b. City will maintain the Street Trees at a maximum height of twenty feet (20'), as measured from the base of the tree to the tallest point of the tree, and to have a maximum diameter (including branches) of no more than ten feet (10'). Notwithstanding the foregoing, in no event shall Tree #2 visibly encroach onto the bottom of the skirt or frame embellishment of the sign structure. LA'�482RS880-7317 v5 c. City will relocate the existing streetlight currently located on the corner of Olive Street and Rosemead Boulevard to the footing located at approximately twenty-seven feet (27') north of the existing street light location. d. City will not plant or install any additional tree, landscaping, or fixture in the public right-of-way along Rosemead Boulevard, from Sereno Drive to Broadway Avenue that will materially impair the visibility of the Digital Billboards. e. Digital Billboard Owner shall not be required to plant any street trees, landscaping, or place any object which would materially impair the visibility of the Digital Billboards. 7.2 Enforcement. Digital Billboard Owner may enforce the provisions of this Article VII as provided in Section 5.1 (Default) of this Agreement. If City fails to cure the Default or commence to cure the Default within the time provided in Section 5.1, City shall not be liable to Digital Billboard Owner for any damages incurred prior to the date Digital Billboard Owner delivered the required Notice of Default to City." 2, GENERAL PROVISIONS. 2.1 Remainder Unchanged. Except as specifically modified and amended in this First Amendment, the Agreement remains in full force and effect and binding upon the parties. 2.2 Integration. This First Amendment consists of pages 1 through 4 and Exhibits A and B inclusive, which constitute the entire understanding and agreement of the parties and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the transaction discussed in this First Amendment. 2.3 Effective Date. This First Amendment shall not become effective until the date it has been formally approved by the City Council and executed by the appropriate authorities of the City and Digital Billboard Owner. 2.4 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this First Amendment, 2.5 References. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this First Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contrary in this First Amendment. -4- LA #4824-5880-731 i v5 IN WITNESS `v HEKEOF, the parties hereto have executed this Pirst Amendment to the Agreement on the date and year first written above. ATTEST: P -� Peggy K o, i Clerk APPROVED AS TO OP�IvI Eric S. VaVity Attorney CITY: THE CITY OF TEMPLE CITY Tracey L.' ause, Acting City Manager DIGITAL BILLBOAR➢OWNER: TE CITY GATEW Y, LLC [notary acknowledgement required] J By: J Name:'Pj2rf DaLora to Title: f�Gv�,gGA j /lq 'Pe ,r+ -5- ie uaazasxsu-�3 n vs State of California County of !Q0.YA e 7lact & VN -C) On vJ ®fie ;�Olq. before me, DUSTIN PACKARD, NOTARY PUBLIC Date Here Insert Name and Title of the Officer ' personally appeared Pby-e-tI Names) of Signers) who proved to me on the basi tisfactory evidence to be the person whose name is are subscribed to the hin instru ent and ac owl ged to me that /she/th executed theFis e in I her/their au orized DUSTIN PACKARD capacity(i�gF\� and that by/er/thIr signature on the tr. COMM#ZDz9872W+ nstrumerft the p r srjthe entity upon half of Notary Public -California -R yr SAN BERNARDINO COUt'll which the persona d, executed the instrument. M Comm. EzP. Jun. 20, 2017 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS hand and o ficial seal. Place Notaryseal Above Signature ignature of Notary Pub c OPTIONAL Though the information below is not required by taw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Gy`d Title or Type of Document:FSYfW �,i VAA uQ _ SI VI Document Date: 0 ;L/©S� / �� Number of Pages: Signers) Other Than Named Above: Capacity(ies) Claimed by Signers) �s�igner's Name: & 'rP.rl uc "Lo 2L Individual ❑ Corporate Officer—Title(s): ❑ Partner— El Limited ❑ General ❑ Attorney in Fact OF ❑ Trustee ❑ Guardian or Conservator ElOther: Is Representing: SIGNER II on Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): ❑ Partner —❑ Limited 71General ❑ Attorney in Fact Trustee Guardian or Conservator ❑ Other: Signerls Representing: RIGHT'fHUMBRRINTI DF'SIGRER m200�National Notary Associaticn•9350 De Soto Ave.,P.O. Box 24o2•Chatsworth, CA 91313-2402•www.NationalNotaryorg Item k6901 ReoNer:Call Toll-Free1-600Ar6-692] EXI3IBIT "A" ATTACHMENT "E" (Media Format, Scheduling, and Creative Guidelines & Specifications) A. Cty_of Temple City —Time Allocation 1. North -Facing and South -Facing 14'x48' Digital Billboards will each be distributing general advertising of approximately six (b) seconds each slot. 2. City shall be granted one (1) out of every eight (8) slots on both the North -Facing Digital Billboard and South -Facing Digital Billboard. B. Custom Template Design I. Digital Billboard Owner will initially design five (5) custom templates for any category pre -defined by the City (City to provide all artwork and logos) at no cost to City_ Example Categories May Include: City Events • City Announcements City Activities • City Civic • City Community 2. City is not required to use the custom design templates provided by Digital Billboard Owner. 3. Digital Billboard Owner will, during the term of the Agreement, create additional advertising or promotional ads for the City at $150 per ad (City to provide all artwork and logos). Beginning in July, 2015, and each year thereafter, Digital Billboard Owner may increase the cost per ad by the lesser of; (i) the increase in the Consumer Price Index (All Consumers for the Los Angeles, Urban Consumers, not seasonally adjusted, for the Los Angeles -Riverside -Orange -County area published by the U.S Department of Labor, Bureau of Labor Statistics) over the prior fiscal year; or (ii) a fixed rate of 2%. C. Pre -Existing Advertisements 1. City may distr bite any pre-existing advertisement or promotional image. D. Production Deadli nes 1. All files including City's design, artwork, and other content ("Creative") must be submitted as provided in the Creative Guidelines & Specifications below. E. Monthly Scheduling 1. Digital Billboard Owner shall program all content to the Digital Billboards based on the monthly scheduling plan. 2. Digital Billboard Owner will allow the City to distribute multiple advertising, promotional or informational spots within the City's allotted time. -7- LA t�4824-5880-7317 v5 ■ ,1 F. Creative LA Guidelines & Specifications 1. Notwithstanding these Creative Guidelines & Specifications, Digital Billboard Owner shall provide City with an Emergency Notification Process for the scheduling of City's Emergency Creative, as provided in the section G. below. 2. Digital files containing City's Creative must be supplied to Digital Billboard Owner to frlesa.axisdigitalmedia.com within five (5) business days prior to the first (1') day of each month to allow the Digital Billboard Owner to approve Creative and post. 3. Each advertisement will be displayed according to the designated monthly distribution schedule. Once the designated monthly distribution schedule is programmed, City may update any given spot throughout the month by emailing fil_es@c�axisdiaitalmedia.com anytime Monday through Friday between 9:00am and 5:00pm PST provided that any such update shall be delivered at least three (3) days prior to its posting. 4. All Creative submitted by City shall meet the below specifications ("File Type"): o Size: 200 pixels high x 704 pixels wide o Formats: JPEG, PNG, BMP o Color Mode: RGB o Resolution: 72 DPI 5. Digital Billboard Owner may, upon 30 days prior written notice make reasonable non- material changes to the Creative Guidelines & Specifications. Digital Billboard Owner shall not make any material change to the Creative Guidelines & Specifications without first giving City thirty (30) days advance written notice specifying all of the proposed changes and the reasons for such changes, and then obtaining City's written agreement to the changes, which the City will not unreasonably withhold. Notwithstanding the foregoing, Digital Billboard Owner shall, upon thirty (30) days prior written notice to City, have the right to change its file type specifications and software applications, or Creative distribution methods, without City's consent. 6. City warrants that all Creative provided to Digital Billboard Owner shall not infringe upon any trademark or copyright, state or federal and agrees to defend, indemnify and hold Digital Billboard Owner free and harmless from any and all loss, liability, and claims, including reasonable attorney's fees, arising therefrom. 7. City shall not display Creative which advocates or expresses a political view, a political endorsement, religious view, or expresses a position contrary to the United States Constitution. Political and religious views, include but are not limited to abortion, same sex marriage, and gun control. Digital Billboard Owner agrees that reference to City sponsored events and programs, and City public service announcements related to awareness of public health, safety and welfare concerzrs (including but not limited to general voting and polling place information, literacy programs, anti-smoking, anti - tobacco, and anti -underage drinking laws, ordinances, and programs, teen pregnancy awareness programs, and similar matters) are not prohibited or restricted under this Agreement or the Creative Guidelines and Specifications in this Attachment "E". 8. City shall not engage in commercial advertising nor display of any Creative which would inherently compete with Digital Billboard Owner for advertising revenues. City shall not display any Creative claiming or depicting the City, its employees, agents, contractors or vendors to be the operator of the Digital Billboards. 9. City shall not sublet, resell, transfer, donate or assign any of City's advertising slots. 10. City shall not incorporate RS or live feeds in any of City's Creative. .8. 448245880-7317 v5 1L Digital Billboard Owner reserves the right to reject or withdraw any Creative where it reasonably determines that the Creative is inconsistent with the terms of this Agreement, the Creative Guidelines & Specifications set forth in this Attachment "E", or that the display of the Creative would cause significant injury to, or unreasonable interference with, Digital Billboard Owner's business, or would compromise the integrity of its network. G. Emergency Notification Process Digital Billboard Owner shall provide City with an Emergency Notification Process by creating a separate web page specifically for City's priority communication to Digital Billboard Owner for scheduling of City's Emergency Creative within the City's allotted time. Digital Billboard Owner shall provide City with a Username and Password for the Emergency Notification Page. Upon City's access of the Emergency Notification Page, City shall upload all requisite Emergency Creative and provide specific scheduling instructions to Digital Billboard Owner, Digital Billboard Owner shall use its best efforts to schedule and publish all requisite Emergency Creative in a priority and timely manner. In the event Digital Billboard Owner's emergency notification page is temporarily inaecessible or a change in Billboard Owner's software applications, network, or other system hardware renders Billboard Owner incapable of providing City with this specific process of Emergency Notification; Digital Billboard Owner shall provide City with an alternative emergency notification process to ensure Digital Billboard Owner's timely response for scheduling and publishing of City's Emergency Creative. -9- LA #4Rz4-5880-7317 v5 ATTACHMEl>1T "B-1" (existing Street Tree Diagram) 10 - LA Y�48245880-7317 v5 ��OCe��nD tilr��ye.. I�� i�►�.Ii:Ylfii;�i ATTACHMENT "B-2" (Final Street Tree Location Aerial Diagram) LA #4824-5880-7317 v5 r j