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Home My Public Portal About07) 7E First Amendment to the Digital Billboard Advertising and Amortization Agreement Between the City of Temple City and Temple City Gateway, LLCDATE: TO: FROM: MANAGEMENT SERVICES DEPARTMENT MEMORANDUM February 4, 2014 AGENDA ITEM 7.E. Honorable Mayor and City Council Tracey L. Hause, Acting City Manager/Administrative Services Directo 0 By: Brian Haworth, Assistant to the City Manager/Economic Development Manager SUBJECT: FIRST AMENDMENT TO THE DIGITAL BILLBOARD ADVERTISING AND AMORTIZATION AGREEMENT BETWEEN THE CITY OF TEMPLE CITY AND TEMPLE CITY GATEWAY, LLC RECOMMENDATION: The City Council is requested to: a) Review and approve the First Amendment to the Digital Billboard Advertising and Amortization Agreement between the City and Temple City Gateway, llC; and b) Authorize the Acting City Manager to execute said Amendment with Temple City Gateway, llC. BACKGROUND: 1. On October 4, 2011, the City Council approved an advertising and amortization agreement (Agreement) (Attachment "A") with the Delorenzo Family Trust (now Temple City Gateway, llC) for the installation and operation of a digital billboard at 5402 Rosemead Boulevard. Contractual terms include a 40-year amortization period and City access-at no cost-to one of eight advertising slots per minute for civic announcements. The Agreement also provides T emple City businesses with a reduced 50% billboard advertising fee. 2. Between May and July 2013, meetings between City staff (i.e., City Attorney Eric Vail, City Manager Jose Pulido and Assistant to the City Manager/Economic Development Manager Brian Haworth) and Pierre Delorenzo (representing Temple City Gateway, llC) were conducted to further discuss use terms for programming of the City's advertisement slots , as well as to receive concerns by City Council February 4, 2014 Page 2 of 3 Mr. Delorenzo regarding possible billboard obstruction by newly planted Rosemead Boulevard street trees. 3. On August 6, 2013, City Attorney Vail and City Manager Pulido met with Mr. Delorenzo to prepare a draft Amendment (Attachment "B"), which among other things provided reasonable limitations on the City's installation of Rosemead Boulevard street trees and other fixtures so as not to potentially obstruct the billboard. 4. On December 3, 2013, the draft Amendment was presented for City Council review. The item was continued to a subsequent meeting to allow Mr. Delorenzo an opportunity to further review its proposed terms. 5. On December 19, 2013, City Attorney Vail and City Manager Pulido met with Mr. Delorenzo and his legal counsel to finalize terms of the First Amendment (Attachment "C"), which retain the provisions identified in Item 3 above and provide the City with access to the billboard's distribution software site for purposes of emergency notifications. ANALYSIS: Two years ago, the City Council approved the Digital Billboard Advertising and Amortization Agreement with an understanding that a subsequent amendment be executed to formalize conditions of the City's advertising slots, as well as to address any unforeseen circumstances. The proposed First Amendment-summarized below- defines three key operative provisions for ease of use and greater clarification on certain terms. It also memorializes the City's efforts to mitigate any visual interference of the billboard by the installation of street trees and fixtures inclusive of the Rosemead Boulevard Safety Enhancements and Beautification Project. • Section 1.4, LocaiBusiness Discount. Revised language interprets those "local businesses" that qualify for the advertising discount offered by the billboard owner. Eligible businesses must be located within city limits, hold a valid City business license and be activity operating. Language was also added whereas the City will not compete with the billboard owner in advertising the local business discount; • Attach111ent "E". Amended to read as Exhibit "A", this section provides creative guidelines and an artwork submittal process for the City's billboard advertising slots. It also sets conditions to, and provides the City remote access to the billboard's distribution software site for the timely upload of emergency notification announcements; and • ArticleVII, Accomm()dations by City. This article includes reasonable measures on City Council February 4, 2014 Page 3 of 3 the City's installment of trees, landscaping and fixtures so as not to obstruct the billboard's visibility. Provisions include City responsibilities to remove one tree, relocate two trees and a streetlight, and maintain said trees at no more than 20 feet high and 10 feet wide. CONCLUSION: City Council approval of the requested Amendment provides the City with clear protocols in the programming of its provided advertising slots, as well as the establishment of another communications tool for purposes of publicizing community events and emergency notifications. The First Amendment also proactively addresses future Rosemead Boulevard tree maintenance concerns so as not to potentially obstruct billboard visibility, while promoting local economic development by allowing Temple City businesses to prominently advertise their goods and services at a significantly reduced advertising rate. FISCAL IMPACT: The requested Amendment does not have an impact to the Fiscal Year (FY) 2013-14 adopted City Budget. However, if approved, the City would receive approximately $3.4 million in free advertising over the billboard's amortization schedule, set to expire in 2051. ATTACHMENTS: ----·-- A. Approved Agreement B. Proposed Amendment C. First Amendment OFFICIAL BUSINESS Document exempt from recording fees pursuant to Cal. Gov. Code§ 6103. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City' ofTemple City 9701 Las Tunas Drive Temple City, CA 91780 Has not bt Original wi processing ATTACHMENT A ATTN: Community Development Dept. '---.--~""'~---" SPACE ABOVE THIS LINE FOR RECORDING USE DIGITAL JBILLBOARD ADVERTISING AND AMORTIZATION AGREEMENT by and between the CITY OF TEMPLE CITY and DELORENZO FAMILY TRUST Dated ocTOBER 6 ,2011 RlV #4842p71J2-3657 v3 DIGITAL BILLBOARD ADVERTISING AND AMORTIZATION AGREEMENT This Digital Billboard Advertizing and Amortization Agreement ("Agreement"), which is dated for reference as indicated on the cover page, is hereby entered into by and between the CITY OF TEMPLE CITY, a California charter city ("City") and the DELORENZO FAMILY TRUST ("Digital Billboard Owner") on the following terms and conditions: RECITALS A. New outdoor advertizing structures (hereinafter referred to as "billboards") are prohibited in the City of Temple City except for in the M-l zone. However, Section 9329 of the Temple City Municipal Code allows existing legal non-confonning billboards to be upgraded and modemized subject to a Conditional Use Permit. B. A legal non-conforming billboard currently exists on the Property ("Existing BH!board"), as well as a self-serve car wash and automobile repair shop. The Digital Billboard Owner has applied for and obtained a Conditional Use Permit to expand and remodel the existing car wash and repair shop on the Property and to modernize the Existing Billboard as provided for in Section 9329 of the Temple City Municipal Code ("CUP 1!-!777"). C. CUP 11-1777 allows the Digital Billboard Owner to demolish the Existing Billboard and construct a dual-sided 14'x 48' LED digital billboard on the Property ("Digital Billboard"). D. Subsection (B)(4) of Section 9329 requires any person who obtains a Conditional use permit to modemize an existing billboard to enter into a written agreement with the City providing for the amortization of the new, modernized digital billboard and the provision of advertizing space to the City on the new digital billboard. E. The Digital Billboard Owner is a co-owner of the Property. The Digital Billboard Owner has submitted proof of the other co-owner's consent to the installation of the· Digital Billboard. DEFINITIONS ''Action" shall mean any suit (whether legal, equitable, or declaratory in nature), proceeding or hearing (whether administrative or judicial), arbitration or mediation (whether voluntary, court-ordered, binding, or non-binding), or other alternative dispute resolution process, and the filing, recording, or service of any process, notice, claim, demand, lien, or other instrument which is a prerequisite or prelude to commencement of the Action. "Amortizatwn Period" shall mean the period of time the Digital Billboard Owner is permitted to use the Digital Billboard, as provided for in Section 2.1 of this Agreement. "Existing Billboard" shall mean that dual-sided, externally lighted billboard located ou the Property. -1- "City" shall mean the City of Temple City, a charter city and municipal corporation fanned and existing under the laws of the State of California. The term "City" shall also include any assignee of, or successor to, its rights, powers, and responsibilities. "City Manager" shall mean the City Manager of the City and/or any person designated and authorized by the City Manager to act in the City Manager's capacity with regard to this Agreement. "Costs ami Expenses" shall mean court costs, filing, recording, and service fees, copying costs, exhibit production costs, special media rental costs, at!omeys' fees, consultants' fees, witness fees (both lay and expert), travel expenses, deposition and transcript costs, costs of preparing notices, claims, and demands, investigation costs, and any other cost or expense reasonably and necessarily incurred by the party. "CUP 11-1777" shall mean that Conditional Use Permit obtained by Digital Billboard Owner for the Project. "Default' shall mean the failure of a party to pexfonn any material action or covenant required by and within the time periods provided herein following notice and opportunity to cure, as set forth in Section 5.1 [Default] of this Agreement. A material violation of a condition of approval of CUP 1 l-1777 shall be deemed a default. "Digital Billboard" shall mean the dual-sided 14' x 48' LED billboard the Digital Billboard Owner is permitted to construct on the Property after the demolition of the Existing Billboard pursuant to Conditional Use Permit 11-1777, as depicted on the diagram attached hereto and incorporated herein by reference as Attachment "C". "Digital Billboard Owner" shall mean the Delorenzo Family Trust. The term "Digital Billboard Owner" shall, to the extent such is expressly permitted under this Agreement, include any assignee of, or successor to, the rights and responsibilities of the Digital Bi!Iboard Owner under this Agreement. "Effective Date" shall mean the date the Agreement has been formally approved by the City's governing board and executed by the appropriate authorities of the City and Digital Billboard Owner. 'Project" shall mean the total project described in CUP 11-1777, as described in more detail in Attachment "D" hereto. 'Project Approvals" shall mean any land use, development, and building approvals and entitlements required by the City for the development and construction of the Project, including, but not limited to, Conditional Use Permit No. ! l-1777. "Property" shall mean those certain parcels of real property located at 5402 Rosemead Boulevard, Temple City, California, and 90ll Olive Street, Temple City, California and commonly known as Assessor's Parcel Numbers 5388-004-014 and 5388-004-017, as more particularly described in the legal description attached hereto and incorporated herein by -2- reference as Attachment "A" and as depicted on the diagram attached hereto and incorporated herein by reference as Attachment "B". "Property Owner" shall mean the Delorenzo Family Trust and the Demarco Family Trust. "Property Owner'' shall include any successors and assignees to the Property Owner's interests in the Property." OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the mutual promises and covenants made by the parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows: ARTICLE I-PROVISION OF ADVERTISING SPACE TO CITY 1.1. Advertising Space. Digital Billboard Owner shall make advertising space on the Digital Billboard available to the City. One slot in the advertising rotation for the Digital Billboard shall be made available to the City at all times at no cost to the City. The terms upon which the Digital Billboard Owner shall make advertising space available to the City are more fully described in Attachment "E" to this Agreement. 1.1.1. City shall not sell the advertising time it is provided pursuant to this Agreement to any third party. I. 1 .2. ln the event that the Digital Billboard is offline due to general screen maintenance, screen upgrades or technology failures, there shall be no cany forward of City advertising minutes. Any failure to provide the City with advertising space due to general screen maintenance, screen upgrades or technology failures shall not be deemed a Default under this Agreement. 1.2. Non-Use By City. City shall notify Digital Billboard Owner of any planned periods of non-use of its advertising space. Notification shall be given to the Digital Billboard Owner at least thirty (30) days prior to the commencement of the plarmed period of non-use. Digital Billboard Owner may utilize the City's advertising space during any such planned period of non-use. 1.3. Operation of Digital Billboard. Digital Billboard Owner shall operate the Digital Billboard in accordance with the Project Approvals, including CUP 11-1777, a copy of which is attached as Attachment "F" to this Agreement. Advertisements and other content displayed shall be static images only, motion video is prohibited. 1.4. Local Business Discount. Digital Billboard Owner agrees to offer up to twenty- five percent (25%) of tl1e available advertising slots on the Digital Billboard, or up to two (2) slots, whichever is higher, to businesses located in Temple City at a fifty percent (50%) discount off of the Standard Rate Card price for the advertising slots. 1.5. Advertising Content. Digital Billboard Owner voluntarily agrees to limit the types of advertising content it will display on the Digital Billboard in the following manner: RIV #4842-7132-3657 v3 • 3- 1.5 .l. Digital Billboard Owner will not dis Ja d · · contains obscenity, as defined by !be United St 1 S Cp Y any ~ verttsmg content that 413 U.S. ]5. a es upreme ourt m Mlller v. California (!973) 1.5.2. Digital Billboard Owner will not dis !a d · · contains nudity, and all persons depicted on !be Digital Billbtar/sh~~j h: ~~~Jsmg ~ontent that area, buttocks and female breasts from the top of the are la d b 1 v err gemtal!a, pubJC not displayed in a sexually suggestive or prurient manne/ an e ow, covered completely and 1.5.3. Digital Billboatd Owner will not displa a d · · businesses, as that term is defined in Section 9455.2 of ~e nfe':n v~rt~~ng for a?~lt oriented regardless of whether the adult oriented business is located in Temple ~ity o:~~!;~~~al Code, ARTICLE II-A.lVlORTIZATION OF DIGITAL BILLBOARD . . 2.! · Amortization Period. Digital Billboard Owner shall be permitted to use !be ~Igrtal BJllb~;trd for a ~eriod of forty ( 40) years, commencing on the Effective Date of this greeJ?en! ( An;ortt.zatw~ . Period"). Digital Billboard Owner and City agree !bat Ibis ~~Ortizatton Penod IS anllcipated to provide Digital Billboard Owner sufficient tim t tts mvestment . th D' 't l B'llb d e o recoup . m e Igt a 1 oar . For the duration of the Amortization Period, the Digital Btllboard shall be deemed to be a legal nonconfonning sign under the Temple City Municipal Code and :he C~ty shall not seek to remove the Digital Billboard, except as may be provided under Sectwn 2.~.2 [Early Removal] of this Agreement. 2.2. Ma~ntenance. The Digital Billboard Owner covenants and agrees for itself, its successors and ass1gns, and any successor-in-interest to the Digital Billboard, or any part thereof that it will, at its sole cost and expense: ' 2.2.1. Maintain the appearance and safety of the Digital Billboard (including all improvements and fixtures related thereto) in good order, condition, and repair, and free from the accumulation of trash, waste materials, and other debris; 2.2.2. Remove all graffiti placed upon !be Digital Billboard (including all improvements and fixtures related thereto) within seventy-two (72) hours of receiving written notice as provided in this Agreement, or under the City's Municipal Code, from the City. In the event of a breach of this covenant and of a failure to cure the breach within fifteen (15) days after service of a written notice by City, the City or its agents, employees and contractors shall have the right to enter upon the Property and Digital Bll!board without further notice and to take such actions as are necessary to cure the breach. Digital Billboard Ovvner shall reimburse City for all costs associated with cure of the breach (including but not limited to, staff services, administrative costs, legal services, and third-party costs), within fifteen (J 5) days after service of a written notice by City. If Digital Billboard Owner fails to pay within the time provided, such costs shall be a lien upon the Digital Billboard, as provided by California Civil Code § 28&1. The City may enforce and foreclose such lien in any manner legally allowed. 2.2.3. Equip the Digital Billboard with automatic dimming capability, and ensure !bat the light produced by the Digital Billboard does not exceed 0.3 foot candles over ambient R1V 1¥4842-7132..3657 v3 -4- light levels. The light produced by the Digital Billboard shall be measured 250 linear feet directly in front of each of the Digital Billboard's faces at 5 feet above the ground. 2.3. Removal of Sign. 2.3.1. Removal at End of Amortization Perioc!. On or before the expiration of the Amortization Period, Digital Billboard Owner shall, at its sole cost and expense, remove the Digital Billboard from the Property to the satisfaction of the City's Community Development Director (or equivalent department head in the event such title should change). 2.3.2. Early RemovaL The City may require that Digital Billboard Owner remove the Digital Billboard prior to the expiration of the Amortization Period in any of the following events: 2.3.2.1. Uncured Default. Digital Billboard Owner fails to cure a default of this Agreement within the time provided for cure under Article V [Default) of this Agreement; 2.3.2.2. Bankruptcy. The filing against Digital Billboard Owner of a petition in bankruptcy or other similar proceeding under law for relief of debtors or the involuntary appointment of a receiver, custodian, liquidator or trustee in bankruptcy of Digital Billboard Owner's Property where such petition or appointment is not vacated or discharged within sixty (60) calendar days after the filing or making thereof. 2.3.2.3. Insolvency. Digital Billboard Owner becomes insolvent or voluntarily or involuntarily makes an assignment or transfer for the benefit of creditors other than the City, and/or the voluntary or involuntary appointment of a receiver, custodian, liquidator or trustee ?f Digital Billboard Owner's property. 2.4. Security. Digital Billboard Owner shall purchase and maintain a perfom1ance bond or other security, such as a cash deposit or irrevocable letter of credit, in accordance with the schedule contained herein, to secure the performance of its obligations under this Agreement In the event of an uncured breach of the Digital Billboard Owners' obligations under Sections 2.2 [Maintenance] or Section 2.3 [Removal of Sign] of this Agreement, City may make claim against or draw upon the bond or other security an amount equal to the costs incurred by City to remedy the breach. 2.4.1. During the first five years of this Agreement, Digital Billboard Owner shall purchase and maintain a performance bond or other security in an amount greater than or equal to five thousand dollars ($5,000). 2.4.2. During the sixth through tenth years of this Agreement, Digital Billboard Owner shall purchase and maintain a performance bond or other security in an amount greater than or equal to ten thousand dollars ($1 0,000). 2.4.3. During the eleventh through fifteenth years of this Agreement, Digital Billboard Owner shall purchase and maintain a performance bond or other security in an amount greater than or equal to fifteen thousand dollars ($15,000). RIV #4842M 7132·3657 v3 -5- ARTICLE IH-COVENANTS RUN WITH THE LAND 3 .I. The Covenants set forth herein shall run with the Property and shall be binding upon Digital Billboard Owner. The Covenants may be enforced by the City. Digital Billboard Owner shall not challenge the Covenants as set forth in this Agreement or any right of the City created under this Agreement. Digital Billboard Owner expressly acknowledges and agrees that the Covenants are reasonable restraints on Digital Billboard Owner's right to own, use, maintain, and transfer any interest in the Digital Billboard and are not and shall not be construed to be an unreasonable restraint on alienation. 3.2. The Covenants and provisions of this Agreement do not limit the right of any mortgagee, or beneficiary Wlder a deed oftrust who has provided funds for acquisition of, or construction of buildings upon the Property to foreclose or otherwise enforce any mortgage or deed of trust upon the Property or any portion thereof, or the right of any mortgagee or beneficiary under a deed of trust, to exercise any of its remedies for the enforcement of any pledge or lien upon the Property; provided, however, that, in the event of any foreclosure under any such mortgage or deed of trust or a sale pursuant to any power of sale included in any such mortgage or deed of trust, the purchaser or purchasers and their successors and assigns and the Property shall be and shall continue to be subject to all of the Covenants and provisions contained in this Agreement. Upon request of the Digital Billboard Owner, City shall exec,ute and deliver to Digital Billboard Owner an Estoppel Certificate in favor of an existing or prospective lender or a proposed assignee of Digital Billboard Owner, which sets forth the material terms of this Agreement, a representation that this Agreement is in full force and effect, and that there are no defaults hereunder. ARTICLE IV -INDEMNITY 4. I. General Indemnitv. Except as to the sole negligence, active negligence or willful misconduct of the City, Digital Billboard Owner expressly agrees to, and shall, indemnifY, defend, release, and hold the City and its officials, officers, employees, agents, and contractors harmless from and against any Action, liability, loss, damage, entry, judgment, order, lien, and Costs and Expenses which arises out of, or are in any way related to, any act or omission of Digital Billboard Owner, or its officers, directors, employees, agents, or contractors, connected with the performance Wlder this Agreement, the construction, use, or operation of the Project or Digital Billboard, notwithstanding that the City may have benefited therefrom, or any challenge to this Agreement. This Section shall apply to any acts or omissions, willfhl misconduct or negligent conduct, whether active or passive, on the part of Digital Billboard Owner's officers, directors, employees, agents and contractors. The Parties expressly agree that any payment, or Costs and Expenses the City incurs or makes to, or on behalf of, an injured employee Wlder the City's self administered workers' compensation, is included as a loss or Costs and Expenses for the purpose of this Section. The City shall not be responsible for any acts, errors or omissions of any person or entity except the City and its officers, agents, servants, employees or contractors. The Parties expressly agree that the obligations of Digital Billboard Owner under this Section shall survive the expiration or early termination of the Agreement. RIV #4842-7132-3657 V] -6- ARTICLE V-DEFAULT AND REMEDIES 5.1. Default. In the event of a Default, the injured party shall give written "Notice of Default" to the defaulting party, specifying the Default. Delay in giving such notice shall not constitute a waiver of the Default. If the defaulting party fails to cure the Default within thirty (30) days after receipt of a notice specifying the Default, or, if the Default is of a nature that cannot be cured within thirty (3 0) days, the defaulting party fails to commence to cure the Default within said thirty (30) days and thereafter diligently prosecute such cure to completion, then the defaulting party shall be liable to the injured party for any and all damages caused by such Default, unless otherwise provided for by this Agreement. 5.2. No Waiver. Failure to insist on any one o~casion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 5.3. Specific Performance. The use, maintenance, and removal of the Billboard in accordance with this Agreement is of a special and unique kind and character and the rights granted to the City, and its successors and assigns hereunder, are of a similar special and unique kind and character so that if there is an uncured default by Digital Billboard Owner of this Agreement, the City, and its successors and assigns, would not have an adequate remedy at law. Therefore, the City's rights, and those of its successors and assigns hereunder, may be enforced by an action for specific performance and such other equitable relief as is provided by the laws of the State of California. In any action seeking enforcement or interpretation of any of the terms or provisions of this Agreement, the prevailing party shall be awarded, in addition to damages, injunctive relief, or other relief, and its Litigation Expenses, as provided in Section 5.4.3 [Attorneys' Fees] ofthis Agreement. 5.4. Legal Actions. In addition to any other rights and remedies, any party may institute a legal Action to require the cure of any Default and to recover damages for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. The following provisions shall apply to any such legal Action: 5.4.1. Jurisdiction an\!_ Venne. Legal Actions must be instituted and maintained in the Superior Court of the County of Los Angeles, State of California, Northeast District, or, if appropriate, in the United States District Court for the Central District of California, Western Division. Digital Billboard Owner specifically waives any rights provided to it pursuant to California Code of Civil Procedure §394 and any federal statute or rule of similar effect. 5.4.2. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 5.4.3. Attorney's Fees. In the event either party commences an Action against the other party which arises out of a Default of, breach of, failure to perform, or that is otherwise related to, this Agreement, then the Prevailing Party (as defined herein) in the Action shall be entitled to recover its Litigation Expenses (as defined herein) from the other party in addition to R£V #4842~7132-3657 v3 -7- whatever relief to which the prevailing pru1y may be entitled. For purposes of this section, "Litigation Expenses" includes all Costs and Expenses, to the extent such are reasonable in amount, that are actually and necessarily incurred in good faith by the Prevailing Party directly related to the Action. For the purposes of this section, "Prevailing Party" shall have the meaning ascribed in §l032(a)(4) of the California Code of Civil Procedure. 5.5. Rights and Remedies are Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by a party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different time, of any other rights or remedies for the same Default or any other Default by another Party. 5.6. Termination by City. The City may terminate this Agreement upon the occurrence of any of the following events: 5.6.1. Digital Billboard Ov.'Iler (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein in violation of any provision of this Agreement, including but not limited to Section 6.1 [Assignment]; 5.6.2. Digital Billboard Owner (or any successor in interest) becomes insolvent or Digital Billboard Owner (or any successor in interest) voluntm·ily or involuntarily makes m1 assignment or transfer for the benefit of creditors other than the City, and/or Digital Billboard Owner is subject to the voluntary or involuntary appointment of a receiver, custodian, liquidator or trustee of Digital Billboard Owner's property and/or the Billboard; 5.6.3. Notwithstanding Section 5.1, if Digital Billboard Owner fails to provide advertising space to City as require by Article l of this Agreement the City may terminate this Agreement immediately; 5.6.4. Nom~thstanding Section 5.1, if Digital Billboard Owner fails to provide the security required by Section 2.5 of this Agreement the City may terminate this Agreement immediately; 5.6.5. Digital Billboard Owner is otherwise in Default ofthis Agreement and fails to cure such Default within the time set fo11h in Section 5.1 [Default] hereof. If, after the occurrence of any of the above-entitled events, the City elects, in its sole discretion, to tem1inate this Agreement, then all rights of Digital Billboard Owner and any person or entity claiming by or through Digital Billboard Owner arising under this Agreement or with regard to the Billboard as may arise under this Agreement shall immediately cease and be tenninated, except that any obligations of the Digital Billboard Owner to indemnify or reimburse the City or the City shall continue in full force and effect and the City shall have all of the remedies to enforce a breach or a Default of this Agreement as rnay be provided hereunder and under the Jaw. ARTICLE VI-GENERAL PROVISIONS 6.1. Assignment. Digital Billboard Owner shall make no assignment, conveyance, or other transfer ("Assignment") of any of its rights or obligations under this Agreement, without RIV #4842.7!32·3657 v3 -8-. first obtaining the City's written consent, which consent the City will not umeasonably withhold, provided the assignment is necessary to effectuate the intent of the Agreement, to facilitate a sale of the Digital Billboard Owner's interest in the Digital Billboard, to effectuate an estate plan of the Digital Billboard Owner, and/or the assignee is detennined by the City, in its sole discretion, to be capable of carrying out the purpose and intent of the Agreement. Notwithstanding the foregoing, no transfer of Digital Billboard Owner's rights hereunder to an affiliate entity or entity owned or controlled by the Digital Billboard Owner or any of its trustees or beneficiaries shall be deemed an assignment hereunder. 6.2. Non-liability of City Officials and Employees. No board member, official, consultant, attorney, or employee of the City shall be personally liable to Digital Billboard Owner, or any successor, or assign, or any person claiming under or through them, in the event of any Default or breach by the City or for any amount which may become due to Digital Billboard Owner or to its successor, or on any obligations arising under this Agreement. 6.3. Conflicts of Interest. No City Council member, offi.cia!, consultant, attorney, or employee of the City shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is, directly or indirectly, interested. 6.4. No Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the City and Digital Billboard Owner. No other patties or entities are intended to be, or shall be considered, a beneficiary of the performance of any of the parties' obligations under this Agreement. 6.5. Integration. This Agreement consists of pages I through II, inclusive, and Attachments "A" through "F" attached hereto and incorporated herein by this reference, 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 subject matter hereof. 6.6. Recitals and Definitions, The Recitals and Definitions set forth at the beginning of this Agreement are a substantive and integral part of this Agreement and are incorporated by reference in the Operative Provisions of this Agreement. 6.7. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or any of its terms. Reference to section nwnbers are to sections in this Agreement unless expressly stated otherwise. 6.8. Interpretation. The City and Digital Billboard Owner acknowledge that this Agreement is the product of mutual arms-length negotiation and drafting and each represents and warrants to the other that it has been represented by legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of construction, which provides the ambiguities in a document, shall be construed against the drafter of that docwnent shall have no application to the interpretation and enforcement of this Agreement. In any Action or proceeding to interpret or enforce this Agreement, the finder of fact may refer to such extrinsic evidence riot in direct RlV #4g'4l-7132~3657 v3 conflict with any specific provision of this Agreement to determine and give effect to the intention of the parties hereto. 6.9. Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and/or in part, in this Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Agreement and shall not affect any other provision, term, condition, covenant, and/or restriction of this Agreement and the remainder of the Agreement shall continue in full force and effect. 6.1 0. Amendments to Agreement Any amendments to this Agreement must he in writing and signed by the appropriate authorities of the City and Digital Billboard Owner. 6.! 1. Administration. Following approval of this Agreement by the City Council, the City shall exercise its rights, perform its obligations, and otherwise administer this Agreement through the Office of the City Manager. The City Manager shall have the authority to issue interpretations and to make minor amendments to this Agreement on behalf of the City provided such actions do not materially increase the obligations of the City or Digital Billboard Owner, make a commitment of funds to be paid by or costs to be incurred by the City, or result in a discretionary extension of time in excess of thirty (30) days. All other changes, modifications, and amendments shall require the prior approval of the City Council. 6.12. Notices, Demands and Communications Between the Parties. Formal notices, demands and communications between the parties shall be given in writing and personally served or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the parties, as designated in this Section, or telefaxed to the facsimile number listed below followed by dispatch as above described. Such written notices, demands, and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section. Any such notice shall be deemed to have been received (i) upon the date personal service is effected, if given by personal service, (ii) upon the expiration of one (I) business day, iftelefaxed, or (iii) upon the expiration of three '(3) business days after mailing, if given by certified mail, return receipt requested, postage prepaid. If notice is to be made to the City: City of Temple City Attn: City Manager 970 I Las Tunas Drive Temple City, California 91780 Facsimile transmission may be made to: (626) 285-8192 With a copy to: Burke, Williams & Sorensen, LLP Attn: Eric S. Vail, Temple City City Attorney -10- 2280 Market Street, Suite 300 Riverside, California 92501 If notice is to be made to Digital Billboard Owner: Delorenzo Family Trust 2566 Wagon Train Lane Diamond Bar, CA 9!765 Facsimile transmission may be made to: (909) 396-0830 6.13. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens) and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in Government Code § 6700 and § 670 l. If any act is to be done by a particular time during a day, that time shall be Pacific Standard Zone time. 6.14. Authoritv. The individuals executing this Agreement on behalf of Digital Billboard Owner and the instruments referenced on behalf of Digital Billboard Owner represent and warrant that they have the legal power, right and actual authority to bind Digital Billboard Owner to the terms and conditions hereof and thereof. 6.15. Counterpart Originals. This Agreement may be executed in duplicate originals, each of which is deemed to be an original. 6.16. Effective Date of Agreement. This Agreement shall not become effective until the date it has been formally approved by the City's Governing Board and executed by the appropriate authorities of the City and Digital Billboard Owner. IN WITNESS WHEUEOF, the parties hereto have executed this Agreement on the dale and year first-above written. CITY; CITY OF TEMPLE CITY ATTEST: By: .tncu(f K. 1~-~ RIV #4842·7132-3657 V3 -11- Mary Flandrick City Clerk APPROVED AS TO FORM (Notary Acknowledgement Required] [Notary Acknowledgement Required] RIV #4&42-7132-3657 v3 -------·-·--- DIGITAL BILLBOARD OWNER: DELORENZO FAMILY TRUST By:rtp/~&~ I(;-6-II -!2- ACKNOWLEDGMENT DIGITAl" BILLBOARD ADVERTING AND Title of Document: AMORTIZATION AGREEMENT Date of Document: OCTOBER G, 2011 ----~------------ State of CALIFORNIA County of LOS ANGELES On OCTOBER 6, 2011 before me, JANET C. TRAM a Notal)' Public, personally appeared TONY DELORENZO and ELIZABETH DELORENZO 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 ad<now!edged to me that he/shefthey executed the same in his/her/their authorized capaclty(ies), and that by hls/herjthe!r 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 PENAln' Of PERJURY under the laws of the State of California L'lat the foregoing paragraph Is true and correct. WITNESS~~ Signature -~..;:,..~«~::-'-~-""f,l---~YL=-"-------------- Name: JANET C. TRAM, notary public (typed or p~nted) --------~ -~--- (Area reserved for offielal notarial seal) ATTACHMENT "A" (Legal Description of Site) SUBJECT PROPERTY IS SITUATION IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES AND IS DESCRJBED AS FOLLOWS: LOT 3, BLOCK C, OF TRACT NO. 112!8 AS PER MAP RECORDED IN BOOK 202 PAGES 471HROUGH 48 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. RJV #4842~7132·3657 v3 -1- RIV #4842-7132-3657 v3 ATTACHMENT "B" (Diagram of Site) ATTACHMENT "B" (Diagram of Site) ATTACHMENT "B" (Diagram of Site) ~---\------- I ,_ ~~ ~l J ~'( ~$) ~~ ( -- RJV #4842~7132~3657 v3 ATTACHMENT "C" (Diagram of Billboard) ATTACHMENT "C" (Diagram of Billboard) ATTACHMENT "C" (Diagram of Billboard) -1- L. 0~~ 12"-(r 9'-0'" o="' ·~ Patio w;~ j,9 t""-I landscaping 1 ~~ SupP-t?rt 14-' X 48' Screen(above)~ Exis!ir:;g ~~!1 !' V-ehicle , l ! 2 SetVice center ~ I ; ; . ------ Approx. 1,050 sf ROSEMEAD BOULEVARD Paved Svrtaoo Paved Sli'feca ALLEY /' / // /.' / /i ... ,:;. 4§ t;- ~"' rY /,/ / / / _./ ,/ .:/ / I / _./· / / / / / / / COMPREHENSIVE SITE PLAN+ FLOOR PLAN / TEMPLE CITY GATEWAY I / / / • I ··y· / N ~<~=--"· .• ,.,c_·. Scale: 118' = 1'-0' / BUILDING RE-FACADE & STOREFRONT ADDITION Nadel Architects, Inc. / ----·--·---·---~---·-·----··----·---·--· _______ ., ________ ... -.. ---·------------~----... ........:. ....... --....... ---·------------------------. -----------------· ----------------__________ ,_ --------... ---"' ·------..---·-···---------______________ .............. --- t WEST SOUTH '14' ;>~ 46' lED Screen ,--------Metal ?ane!s (Frame)~ Brushed Finish r--·---Stool Svpports-Brushed Finish ,-----Architectural Metal Pa~ls - r--Me1a! Canopy • Paln~ed "Custom Orange~ Vehicle Service Center· 4 Bays ,-----Channel letters • P.gln!nd & Backlit "Regal Slug• r---· S1eol Supports-Brushed Finish ,----ArchttectrJrm Me!al Panels---~ Pafnted 'Pearl Gray" Vehicle Car Wash-4 Bays Archl1ccturar Metal Panels-PaintOO "Peart Gray" Metal Panels {Frame)-Brushed Finish ~----------Alumlnu;n!Giass Slorefront Addition· Brushed Finish Vehicle Service Center~ 4 Bays New Storefront Addition ,--------Metal Canopy-Pa\n!ed "Custom Orar.ge" / Sleel Supp:ms-Brushed Finish r----~-Channt3! !.etters -P<~fnled & BackHI"Rcgaf Blue· Archifedural Metal PaneJ.q- Painted "Pearl Gra'( Vehicle Car Wash-4 Bays BUILDING ELEVATIONS TEMPLE CITY GA TEW/W BUILDING RE-FACADE & STOREFRONT ADDITION Z -, rJ "'\ N c'"""'~~-,\ \'\, '') \ .. ,~\, ....... / Scale: 1/16" = 1'-O" Nadel Architects, Inc. Proiect Summary ATTACHMENT "D" (Project f Timeline) Phase I-5402 Rosemead Blvd. & 90H Olive Street • Removal of the Existing Billboard Structure. • 500 Sqft Storefront Addition & Expansion of Vehicle Service Shop Area • Complete Re-fas:ade and Modernization of the Vehicle Service Building and Car Wash Structure Phase H-:5402 Rosemead Blvd. • Installation of a New Dual-Sided Digital Billboard Support Structure • Installation of the Brushed Aluminum Architectural Billboard Frames. • Installation ofthe North-bound Facing l4'x 4&' Digital Screen (South Elevation). • Installation of the South-bound Facing Backlit Panaflex Screen (North Elevation). Phase HI -5402 Rosemead Blvd. • Installation of the South-bound Facing 14'x 48' Digital Screen (North Elevation). Phase IV-5402 Rosemead Blvd. & 9011 Olive Street • Installation of the "Temple City Gateway" Overhand Spanning from the West-end Vehicle Service Building Parcel tot eh East-end Car Wash Structure Parcel. • Installation of the "Temple City Gateway" Channel Letters. • Installation of Architectural Outdoor Lighting Focused on Illuminating the "Temple City Gateway" Overhand, Building Elements and Landscaped Areas. • New Designated Landscaped Areas within the West-end Service Center Building Parcel and East-end Car Wash Structure ParceL Project Times Phase I & H • Within 12 months commencing upon removal of the existing billboard. Phases III& IV • Within 18 months commencing upon removal of the existing billboard. RlV #4842-7 !32~3657 v3 -2- ATTACHMENT "E" (Media Format and Scheduling) City of Temple City Time Allocation • North-facing and south-facing 14'x48' screens will each be distributing general advertising of approximately six ( 6) seconds each slot. • City shall be granted one (J) out of every eight (8) slots on both the north-facing and south-facing digital screens. Custom Template Design • 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). • The City will have the ability to remotely update the content being broadcasted to each screen. Example Categories May Include: • City Events • City Announcements • City Activities • City Civic • City Community · Pre-Existing Advertisements • City may distribute any pre-existing advertisement or promotional image. • Digital Billboard Owner shall prove the City with creative guidelines and specs. New Content Creation • Digital Billboard Owner can create additional advertising or promotional ads for the City at $150 per ad (City to provide all artwork and logos). Production Deadlines • All files or artwork must be submitted at least five (5) business days prior to run dates. Monthly Scheduling • Digital Billboard Owner to deliver all content to the digital billboards based on the monthly scheduling plan. • Digital Billboard Owner will allow the City to distribute multiple advertising, promotional or informational spots within the City's allotted time. -3- RJV #4842-7!32-3657 v3 ATTACHMENT "F" (CUP ll-1777) ATTACHMENT "F" (CUP 11-1777) ATTACHMENT "F" (CUP 11-1777) -4- RESOLUTION NO. 11-2332 PC A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TEMPLE CITY APPROVING THE FOLLOWING PROJECT: CUP 11-1777 -A CONDITIONAL USE PERMIT TO ALLOW THE FOLLOWING IMPROVEMENTS AT PROPERTY ADDRESSED AS 5402 ROSEMEAD BLVD. AND 9011 OLIVE ST: 1. CONSTRUCTION OF A 500 SQUARE FOOT ADDITION TO AN EXISTING AUTO REPAIR BUILDING; 2. EXTERIOR REMODEL OF AN EXISTING AUTO REPAIR BUILDING; 3. EXTERIOR REMODEL OF AN EXISTING SELF-SERVE CAR WASH BUILDING; 4. CONSTRUCTION OF AN ARCHITECTURAL CANOPY SPANNING THE DISTANCE BETWEEN THE AUTO REPAIR BUILDING AND THE SELF-SERVE CAR WASH BUILDING; 5. REPLACEMENT OF A 14' BY 48' OUTDOOR ADVERTISING STRUCTURE (BILLBOARD) WITH A NEW 14' BY 48' DIGITAL LED (LIGHT EMITIING DIODE) OUTDOOR ADVERTISING STRUCTURE (DIGITAL BILLBOARD). (PIERRE DELORENZO I DELORENZO & DEMARCO FAMILY TRUSTS) (CUP 11-1777) The Planning Commission of the City of Temple City does hereby resolve: SECTION 1. Based upon information presented in a Staff Report dated September 13, 2011, and based upon a Public Hearing on September 13, 2011 to consider a Conditional Use Permit, the Planning Commission makes the following findings: Conditional Use Permit Findinqs: 1. That the site for the proposed use is adequate in size, shape, topography and circumstances in that the site contains 14,677 square feet of land area, which is adequate for the proposed project which includes a 500 square foot addition to an existing auto repair use, exterior improvements to an existing auto repair use and self-serve car wash, and the upgrade and replacement of an existing billboard; ang 2. That the site does have sufficient access to streets, adequate in width and pavement type to carry the quantity and quality of the traj'fic generated by the proposed use in that the site is accessed by Rosemead Boulevard and from Olive Street. Rosemead Boulevard is a "primary road" as identified by the City's General Plan, which will have the capacity to carry the quantities of the traffic that will be generated by the proposed uses; and 3. That the proposed use will not have an adverse effect upon the use, enjoyment or valuation of adjacent or neighboring properties or upon the public welfare in that the proposed development is consistent with its land use designation, is consistent with Ordinance No. 11-941 regarding upgrading existing billboards, and the conditions of approval included for this project will be more than adequate to address any perceived impacts to the surrounding neighborhood. Resolution No. 11-2332 PC 5402 Rosemead Blvd. & 9011 Olive St. Page2 of 7 Required Findings Pursuant to Ordinance No. 11-941: 1. The outdoor advertising structure must be modemized and upgraded to meet the criteria listed in Section 9411.1 of the Temple City Municipal Code, except that: a. The maximum height of the outdoor advertising structure measured from grade level of the lot upon which such structure is located to the highest point of the structure may be up to, but shall not exceed, 45 feet. Finding: The proposed billboard is 43 feet, 6 inches tall. b. The outdoor advertising structure may be located within 200 feet of a residential zone, but only if the existing outdoor advertising structure is being dismantled and a new structure is being constructed on the same site and the City determines that the benefit of the new structure outweighs the impact of its proximity on the residential zone. Finding: The existing billboard on the property is being dismantled and a new digital billboard is proposed to be constructed approximately 120 feet from R-2 zoned property. The impact of the proposed new digital billboard on the R-2 zoned property is outweighed by the benefit the new billboard will provide because the new billboard is more aesthetically pleasing than the existing billboard and will contribute to the revitalization of the area surrounding the R·2 property. 2. The outdoor advertizing structure must be modernized and upgraded to meet the following requirements in addition to those in Section 9411.1. a. The outdoor advertising structure must remain in the same location or be dismantled and a new structure constructed at another location on the same lot, provided the City determines the new structure provides public benefits not provided by the old structure. The outdoor advertising structure shall not be moved to a different lot Finding: The existing billboard is proposed to be dismantled and a new digital billboard is proposed to be located approximately 20 feet north of where the existing billboard is located. The proposed digital billboard will provide public benefits not provided by the existing billboard because it will advertise City events on a rotating basis and will contribute to the overall revitalization ofthe area. -------------- KesoiUtion No. 11-2332 PC 5402 Rosemead Blvd. & 9011 Olive St. Page 3 of 7 b. The message surface area of the outdoor advertising structure shall not exceed 700 square feet Finding: The proposed billboard screen (each .side) is 672 square feet c. The outdoor advertising structure shall be compatible with uses and structures on the site and in the surrounding area. Finding: The proposed billboard features a decorative brushed aluminum frame which will be architecturally compatible with the remodeled buildings on the site. The proposed billboard is also compatible with uses and structures in the surrounding area because it is located in a heavy commercial area. d. The outdoor advertising structure must display content digitally on an LED screen or by equivalent technology. Any digital outdoor advertising structure shall display content for ·at least 6 seconds before changing screen displays. No flashing digital content is permitted. Finding: The conditions of approval for this project will require digital content to be displayed for at least 6 seconds and prohibit flashing content. e. The outdoor advertising structure shall not create a traffic or safety problem with regard to on-site access, circulation or visibility. Finding: The proposed billboard will be located and designed in such a way to comply with this requirement, . in fact it will be supported by a single arm which wit! not interfere with circulation or visibility. f. The outdoor advertising structure shall not interfere with on-site parking or landscaping required by City ordinance or permit Finding: The proposed billboard will be located and designed in such a way to comply with this requirement, in fact it will be supported by a single arm which will not interfere with onsite parking or landscaping. g. The existing outdoor advertising structure must be capable of being safely modernized and upgraded or the existing structure must be completely removed before construction of the new outdoor advertising structure may commence. If more than six months passes between the removal of the existing structure and the commencement Resolution No. 11-2332 PC 5402 Rosemead Blvd. & 9011 Olive St Page 4 of? of the construction of !he new structure, such lapse shall not be deemed a discontinuance of the utilization of a nonconforming use for the purposes of Section 9273(A)(3) of this Code.·. ' Finding: The conditions of approval for the: project require the existing billboard to be completely dismantled before construction on the new digital billboard may commence. 3. If the applicant for a CUP to modernize an existing outdoor advertising structure does not own the property on which the outdoor advertising structure is located, the applicant must submit proof of the landowner's consent to the proposed modernized outdoor advertising structure. Finding: The applicant for this project is also one of the property owners, and all property owners on title will be required to submit consent. . 4. Any person who obtains a CUP to modernize an existing outdoor advertising structure pursuant to this section shall be required to enter into a written agreement with the City providing !or the amortization of the outdoor advertising structure and the provision of advertising space to the City. Finding: The applicant intends to sign the amortization agreement approved by the City Council. SECTION 2. This project should result in no significant effects upon the environment, a Negative Declaration has been prepared for this Conditional Use Permit (CUP 11-1777) and the Planning Commi.ssion hereby adopts a Negative Declaration in accordance with the State CEQA Guidelines. The initial statement as prepared indicates that there is no potential for adverse impact to the environment as it relates to all wild animals, birds, plants, lish, amphibians and related ecological communities, including the habitat upon which the wildlife depends for its continued viability. SECTION 3. Based upon the above findings, the Planning Commission hereby approves Conditional Use Permit 11-1777, subject to the following conditions: 1. The proposed development, including the addition to the auto repair building, exterior improvements to the auto repair building and self serve :car wash, and the installation of the upgraded outdoor advertising structure (billboard) shall be constructed in substantial compliance with the submitted plans date stamped March 15,2011. Resolution No. 11-2332 PC 5402 Rosemead-Blvd. & 9011 Olive St Page 5 of? 2. The applicant and/or property owner shall be required to enter into a written agreement with the City providing for the amortization of the outdoor advertising structure and the provision of advertising space to the City. . 3. The property shall be consistently maintained and kept free of weeds trash debris abandoned vehicles, vacated equipment, etc. to the satisfaction of th~ Com~ unity ' Development Department. 4. Detailed Sign Plans shall be submitted prior to issuance of building permits for all exterior signage. No "canned" signs shall be allowed at the project site. All onsite signage shall be in compliance with the City's sign ordinance. All signage reviewed and approved by the Community Development Department shall require appropriate Building permits and approvals by the Community Development Department. 5. Any graffiti or acts of vandalism shall be removed or repaired within 24 hours. 6. A detailed landscape and irrigation plan prepared by a licensed Landscape Architect shall be submitted and approved by the .Community Development Director or his designee prior to the issuance of building permits. Said landscaping shall be continuously maintained. · 7. Street trees and parkway landscaping shall be provided to the satisfaction of the Community Development Director and Parks and Recreation Director. 8. The conditions of approval contained in this Resolution may be enforced by the Sheriff's Office as well as by City staff. Any violation of any condition is a misdemeanor and may be processed directly by criminal complaint. The indemnity and enforcement provisions of the Conditional Use Permit shall also be enforced as set forth therein. 9. All proposed mechanical equipment should be screened from public view at all times. The location of such equipment shall be approved by the Community Dev.elopment Department. 10. All activities and functions at the site shall be subject to the City's noise Ordinance. Any violation of the City's noise Ordinance as contained in Sections 9280 to 9282.1 shall be grounds for revocation of this Conditional Use Permit. 11. Disposal of Construction Waste: No construction activity waste material of any kind, including plaster, cement, paint, mud, or any other type of debris or liquid shall be allowed to be disposed of in the street or gutter, storm drain or sewer system. All debris spills sha!l be removed daily and the subject site shall use necessary dust control measures. Failure to comply with this condition will result in charges being filed with the District Attorney. (TCMC 3400-3411) ------------- Resolution No. 11-2332 PC 5402 Rosemead Blvd & 9011 Olive St. Page 6 ol7 12. This Conditional Use Permit shall expire 24 months from the date of approval if said approval is not exercised within that time. If the project is not commenced prior to the expiration date, the applicant may apply in writing for an extension of lime at least forty (40) days before the expiration date. 13. Any modification to this application shall require a separate public hearing and a modification to this Conditional Use Permit 14. The building construction plans shall include a blue-line sheet(s) showing each page of this Resolution including all conditions of approval contained herein. 15. This Resolution shall not become valid until such time that the applicant and property owner has signed a copy of the Resolution acknowledging acceptance of the Conditions of Approval. 16. Any digital outdoor advertising structure shall display content for at least 6 seconds before changing screen displays. No flashing digital content is permitted. 17. The existing outdoor advertising structure on the property must be completely dismantled and removed before construction may commence on a new digital outdoor advertising structure on the property. SECTION 4. The Secretary shall certify to the adoption of \his Resolution, and forward a copy to the City Council. ~ak I hereby certify that the foregoing Resolution was adopted by the Planning Commission of the City of Temple City at a regular meeting held on the 13\h of September 2011, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Commissioner-Leung, 0' Leary, Seibert Commissioner-Horton Commissioner-Cordes Commissioner-None S cretary Resolution No. 11-2332 PC 5402 Rosemead Blvd & 9011 Ol'rve St. Page 7 of 7 READ, APP!)OVE,9JAND CONDITIONS ACCEPTED: -~~m~ f!t . .."I:.I£.E:k·~ 10-t-It De~Samily TrustF Date Pro y Own.ler / i,. . dtd ~ Utll;t& ;0'-0;/ I_]) e (/11 a:u _/0____:_-!_-_(__:.__( ____ _ DeMarco Family Trust Dale rt:',~~ L. " --~f--J--+-Ll--1:1~ _\:E:~~ vv1 -~-\ oJ 1 I 1 1 Pierre Delorenzo 1 {/ 'tate I Applicant -p·, ... n .e.. tlcz..L.o(I:>-A 1-<> a~ F\ ~t."-\ 'l)e.N\C).no fv,.,..~\-1 \'I'J::O-t OV\.d l)elor l!.n1..0 ~ov••i\'{ \TII::.i' OFFICIAL BUSINESS Document exempt from recording fees pursuant to Cal. Gov. Code § 6103. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Temple City 9701 Las Tunas Drive Temple City, CA 91780 AT1N: Community Development Dept. ATTACHMENT 8 SPACE ABOVE THIS LINE FOR RECORDING USE FIRST AMENDMENT TO DIGITAL BILLBOARD ADVERTISING AND AMORTIZATION AGREEMENT by and between the CITY OF TEMPLE CITY and TEMPLE CITY GATEWAY, LLC ASSIGNEE OF DELORENZO FAMILY TRUST Dated December 4, 2013 FIRST AMENDMENT TO DIGITAL BILLBOARD ADVERTISING AND AMORTIZATION AGREEMENT This First Amendment to Digital Billboard Advertising and Amortization Agreement ("First Amendment"), which is dated for reference as indicated on the cover page, is hereby entered into by and between the CITY OF TEMPLE CITY, a California charter city ("City"), and the TEMPLE CITY GATEWAY, LLC ASSIGNEE OF DELORENZO FAMILY TRUST ("Digital Billboard Owner"), as follows: A. RECITALS Cizy and Digital Billboard Owner entered in a Digital Billboard Advertising,-=an=d:..__ __ Amortization 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 . The City and Digital Billboard Owner also des ire to amend the Agreement to memorialize the City's efforts to reasonably mitigate any visual interference to the Digital Billboard occasioned by the City's installation and maintenance of certain street trees, landscaping, and fixtures in the vicinity of the Digital Billboard along Rosemead Blvd. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of 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 modified 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¢,e 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 -2- LA #4824-5 880-73 17 v4 boundary and have a valid City business license. Digital Billboard Owner shall within 30 days of 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". Attachment "B" (Diagram of Site) is amended to add an Attachment "B-1" (Street Tree Diagram), which is attached hereto as Exhibit "B." 1.4 Article VII. A new A1ticle VII (Digital Billboard Visibility) is added to the Agreement to read as follows: "ARTICLE VII-DIGITAL BILLBOARD VISIBILITY 7.1 Accommodations by City. The City has planted certain trees within the public right-of-way on Rosemead Boulevard that are may interfere with the visibility of the Digital Billboard from motorists and pedestrians on Rosemead Blvd. These trees are generally described as: Tree #1 (approx 280' South ofthe Property); and Tree #2 (approx 68' North of the Property), collectively the "Street Trees," and their locations are depicted on Attachment B-1. In order to reasonably mitigate any visual interference with the Digital Billboard occasioned by the City's installation of the Street Trees, or other improvements on Rosemead Blvd, in the vicinity of the Property, the City agrees to take the following n1easures: a. 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 maximmn diameter (including branches) of no more than ten feet (10'). b. City will explore moving the existing street light currently located on the corner of Olive Street and Rosemead Blvd east to Olive Street subject to meeting mininlun1 traffic standards per the City's lighting engineer. c. 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 A venue that will materially impair the visibility of the Digital Billboard. 7.2 Enforcement. Digital Billboard Ovvner may enforce the provisions of this A1ticle VII as provided in Section 5.1 (Default) of this Agreement. If City fails to cure the Default or -3- LA#4824-5880-73l7 v4 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 5 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. IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII [signatures on following page] LA #4824-5 880-7317 v4 -4- IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above. CITY: THE CITY OF TEMPLE CITY By: -------_______ --...::::L:.""Jo~s-e"'i'P<=uT'li"'~'ao=,=>c""t';""ty=;M;""Pan=a=g=e=r ====~------- ATTEST: Peggy Kuo, City Clerk APPROVED AS TO FORM Eric S. Vail, City Attorney DIGITAL BILLBOARD OWNER: TEMPLE CITY GATEWAY, LLC [notary ackilowledgement required] By: --------------- Name: ------------ Title: ------------ -5- LA #4824-5880-7317 v4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF On ------_ . ____ _.. __ before me, personally appeared ~ proved to me on the basis of satisfactory evidence to be the person(s) whose names(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 instnunent. 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 Signature: OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMEI\T D INDIVIDUAL D CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) D PARTNER(S) D LIMITED D GENERAL NUMBER OF PAGES D ATTORNEY~IN~FACT D TRUSTEE(S) D GUARDIAN/CONSERVATOR D OTHER ----- DATE OF DOCUYLENT SIGNER IS REPRESENTING: (NAME OF PERSON(S) OR ENTITY(IES)) SIGNER(S) OTHER THAN NAMED ABOVE -6- LA #4824-5880-7317 v4 EXHIBIT "A" ATTACHMENT "E" (Media Fonnat, Scheduling, and Creative Guidelines & Specifications) A. City of Temple City -Time Allocation 1. North-Facing and South-Facing 14'x48' Digital Billboards will each be distributing general advertising of approximately six (6) seconds each slot. 2 . City shall be granted one (1) out of evety eight (8) slots on both the. North Fac~ Digital ____ _ Billboard and South Facing Digital Billboard. I B. Custom Template Design 1. 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 provid~ 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 Departri:lent 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 distribute any pre-existing advertisement or promotional image. D. Production Deadlines 1. All files including City's design, artwork,. and other content ("Creative") IP.Ust be submitted as provided in the Creative Guidelines & Specifications below. -7- LA #4824-5880-7317 v4 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. F. Creative Guidelines & Specifications 1. Notwithstanding these Creative Guidelines & Specifications, City shall be permitted to advertise its Creative on the Digital Billboards using the alternative City's User Access, as provided in the section G. below. 2. Digital files containing City's Creative must be supplied to Digital Billboard Owner to fi!es({ilaxisdigitalmedia.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 files@axisdigitalmedia.com anytime Monday through Friday between 9:00am and 5:00pm PST provided that any such update shall be delivered at least (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 thilty (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 distJ.ibution methods, without City's consent. 6. City warnmts 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 aud harmless from any and all loss, liability, and claims, including reasonable attomey' s fees, arising therefrom. -8- LA#4824-5880-73l7 v4 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 religions 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 annonncements related to awareness of public health, safety and welfare conccms (including but not limited to general voting and polling place information, literacy programs, anti-smoking, anti- tobacco, and anti-nnderage drinking laws, ordinances, and programs, teen pregnancy awareness programs, and similar matters) are not prohibited or restricted nnder this Agreement or the Creative Guidelines and Specifications in this Attachment "E". 8. In general, all Creative provided by City shall consist of at least Seventy Five (75%) Percent English Language which includes Modern Latin Letters "A, B, C, D, E, F, G, H, I, J, K, L, M, N, 0, P, Q, R, S, T, U, V, W, X, Y, Z" and, if the content is numeric in nature, at least Seventy Five (75%) Percent Hindu Arabic Numbers "0, 1, 2, 3, 4, 5, 6, 7, 8, 9". However, Digital Billboard Owner recognizes that City's residents and business community includes a large percentage of non-English speaking or non-English native speakers, that City is permitted, from time to time, but no more than twenty (20%) percent of City's entire allocated time in any given 30 day period, display Creative that is I 00% non-English language, non Modern Latin Letters, including but not limited to Mandarin, Cantonese, Vietnamese, Thai, Tagalong, Spanish, and similar languages. 9. 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. 10. City shall not sublet, resell, transfer, donate or assign any of City's advertising slots. 11. City shall not incorporate RSS or live feeds in any of City's Creative. 12. Digital Billboard Owner reserves the right to reject or withdraw any Creative where it reasonably determines that the Creative is inconsistent with the tenus of this Agreement, the Creative Guidelines & Specifications set forth in this Attaclunent "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. City's User Access I. Digital Billboard Owner shall allow City restricted user access to the Digital Billboard Owner's distribution software (herein referred to as "Controller") solely for the purpose of scheduling and updating of the City's creative. Digital Billboard Owner shall create a separate User Acconnt for the City for that limited purpose. -9- LA #4824-5880-7317 v4 2. City shall designate a specific City person employed or hired by the City (herein referenced as a "Single User") to operate the Controller. City shall provide Digital Billboard Owner with the name and contact information of the designated Single User. The Single User shall be properly trained prior to any access and operations of tbe Controller. City shall in no event allow any 3'd Party other than the Single User access or operations of the Controller. City shall have the right to change the identity of the Single User and shall notify Digital Billboard Owner of such change, subject to the above provisions. Digital Billboard Owner reserves the right to reject or remove any creative, either before or after posting. 3. Digital Billboard Owner shall not provide any such Controller access to the City until such time the Single User has proven its ability to properly operate tbe Controller, based on the successful completion of a pre-operational pilot test. 4. Digital Billboard Owner may, (i) upon City's violation of the terms oftbis Section G, revoke City's user access, after Billboard Owner affords City notice and opportunity cure pursuant to section 5.1 of the Agreement, and City fails to timely cure; (ii) in the event Digital Billboard Owner's Controller is tempormi1y inaccessible or disabled, suspend City's User access until tbe problem is remedied, or (iii) in the event a change in Billboard Owner's software applications, network, or other system hardware renders Billboard Owner incapable of providing City witb User access, terminate City User access. Under any of these circumstances City will retain access in accordance with the Creative Guidelines & Standards provided in Section F above. Billbomd Owner shall provide City of prompt notice of circun1stance (ii) above and shall provide City with thirty (30) days advance written notice of circumstance (iii) above. -10- LA #4824-5880-7317 v·4 OFFICIAL BUSINESS Document exempt from recording fees pursuant to Cal. Gov. Code§ 6103. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Temple City 9701 Las Tunas Drive Temple City, CA 91780 ATTN: Community Development Dept. ATTACHMENT C SPACE ABOVE THIS LlNE FOR RECORDING USE FIRST AMENDMENT TO DIGITAL BILLBOARD ADVERTISING AND AMORTIZATION AGREEMENT by and between the CITY OF TEMPLE CITY and TEMPLE CITY GATEWAY, LLC ASSIGNEE OF DELORENZO FAMILY TRUST Dated February 5, 2014 LA #4824-5880-7317 v5 FIRST AMENDMENT TO DIGITAL BILLBOARD ADVERTISING AND AMORTIZATION AGREEMENT This First Amendment to Digital Billboard Advertising and Amortization Agreement ("First Amendment"), which is dated for reference as indicated on the cover page, is hereby entered into by and between the CITY OF TEMPLE CITY, a California charter city ("City"), and the TEMPLE CITY GATEWAY, LLC ASSIGNEE OF DELORENZO FAMILY TRUST ("Digital Billboard Owner"), as follows: RECITALS A. City and Digital Billboard Owner entered in a Digital Billboard Advertising and Amortization 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 Bill board 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 of 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 modified 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 #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 l 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 connnunity 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". Attachment "B" (Diagram of Site) is amended to add an Attachment "B-1" (Street Tree Diagram), which is attached hereto as Exhibit "B." 1.4 Article VII. A new Article VII (Digital Billboard Visibility) is added to the Agreement to read as follows: "ARTICLE VII-DIGITAL BILLBOARD VISIBILITY 7.1 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 fi·om motorists and pedestrians on Rosemead Boulevard. These trees are generally described as: Tree #l (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-l. 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 #l 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 #2 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 #4 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 #4824-5880-7317 v5 0 -~- 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 tl1e 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 #4824-5880-7317 v5 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above. CITY: THE CITY OF TEMPLE CITY By:=----.-y-y-~~____,=c-~---Tracey L. Hause, Acting City Manager ATTEST: Peggy Kuo, City Clerk APPROVED AS TO FORM Eric S. Vail, City Attorney DIGITAL BILLBOARD OWNER: TEMPLE CITY GATEWAY, LLC [notary acknowledgement required] By: ____________ _ Name: ___________ _ Title: __________ _ -5- LA #4824-5880-73 17 v5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF On before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(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. Signature: ________________ _ OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form CAP A CITY CLAIMED BY SIGNER D INDIVIDUAL 0 CORPORATE OFFICER TITLE(S) PARTNER(S) D D ATTORNEY-IN-FACT TRUSTEE(S) LIMITED GENERAL D D D D D GUARD!AN/CONSERV ATOR OTHER~--------------------- SIGNER IS REPRESENTING: (NAME OF PERSON(S) OR ENTITY(IES)) -6- LA #4824-5880-7317 v5 DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE EXHIBIT "A" ATTACHMENT "E" (Media Fonnat, Scheduling, and Creative Guidelines & Specifications) A. City of Temple City-Time Allocation 1. North-Facing and South-Facing 14'x48' Digital Billboards will each be distributing general advertising of approximately six (6) seconds each slot. 2. City shall be granted one (I) out of every eight (8) slots on both the North-Facing Digital Billboard and South-Facing Digital Billboard. B. Custom Template Design 1. Digital Billboard Owner will initially design five (5) custom templates for any category pre-defmed 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 Consun1er 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 of2%. C. Pre-Existing Advertisements I. City may distribute any pre-existing advertisement or promotional image. D. fro<Juction Deadlines 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 I. 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 #4824-5880-7317 v5 F. Creative 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 files@axisdigitalmedia.com within five (5) business days prior to the first (1 st) 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 files@axisdigitalmedia.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 C ity shall meet the b elow 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 & S pecifications 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 fil e type specifications and software applications, or Creative distribution methods, without City's consent. 6. City waiTants 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 maiTiage, 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 concerns (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 RSS or live feeds in any of City 's Creative. -8- LA #4824-5880-7317 v5 11. 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 umeasonable 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 comm1mication 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 inaccessible 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 #4824-5880-7317 v5 LA #4824-5880-7317 v5 EXHIBIT "B" ATTACHMENT "B-1" (Existing Street Tree Diagram) -10- ~e... EXHIBIT "B" ATTACHMENT "B-2" (Final Street Tree Location Aerial Diagram) -II- LA #4824-5880-7317 v5