HomeMy WebLinkAbout25F - AGMT - OUTDOOR ADVERTISING SRVSREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
NOVEMBER 18, 2014
TITLE:
AGREEMENT WITH ALL VISION LLC FOR
OUTDOOR ADVERTISING MANAGEMENT
SERVICES {STRATEGIC PLAN NOS, 4,3; 6,
1; 3,4)
CITY NIANA�
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on I" Reading
❑ Ordinance on 2ntl Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute the attached agreement with All
Vision LLC ( "All Vision ") for consulting and management services for outdoor advertising for a
period of five years, subject to non - substantive changes approved by the City Manager and City
Attorney.
BACKGROUND
In November 2013, the Development and Transportation Council Committee recommended that
staff begin exploring new opportunities for outdoor advertising, especially in the field of digital
technology through electronic message displays (digital billboards). Since then, the City Council
approved Zoning Ordinance Amendment No. 2013 -02 to allow the creation of regional planned
sign programs and the use of electronic message displays for select commercial centers and
attractions citywide. On May 30, 2014, the City released a request for proposals (RFP) seeking a
qualified firm to provide outdoor advertising management services. The services detailed in the
RFP were as follows:
• Assist the City in developing an outdoor advertising ordinance.
• Evaluate and analyze advertising opportunities on behalf of the City based on
development feasibility and revenue potential.
• Assist in developing a master plan for outdoor advertising that maximizes the City's ability
to generate revenue through the pre - identification of the best situated billboard locations.
• Assist in developing a long -term strategy for the design, construction, maintenance,
operation and use of outdoor advertising assets.
• Fully implement, manage, and facilitate the proposed plan(s) and development processes
upon approval from the City.
• Meet with all applicable local stakeholders and regulatory agencies.
• Negotiate, enter into and manage agreements with sales organizations, where applicable,
to sell advertising on behalf of the City.
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Agreement with All Vision
November 18, 2014
Page 2
Assist in developing a plan for outdoor advertising on bus shelters in order to develop a
revenue source that can be used to expand the number of bus shelters, provide for the
ongoing maintenance of the bus shelters, and fund the design and construction of unique
bus shelters that can be used as public realm improvements and placemaking tools.
Ensure that the program results in no additional cost for the City.
After receiving two proposals, staff carefully evaluated the responses and selected All Vision as the
firm that is most able to respond to and address the City's criteria and long -term needs. All Vision
staff has the requisite specialized skills and expertise in the area of program management and
implementation, off -site advertising on digital billboards and bus shelters particularly with respect
to long -term management post- construction and the firm's demonstrated ability to generate
revenue for a variety of agencies. It is recommended that the All Vision outdoor advertising
management services contract be approved to provide a means to supplement the Planning and
Building Agency's efforts to identify additional opportunities for outdoor advertising and revenue
generation for the City without incurring additional costs.
DISCUSSION
The proposed agreement would allow the City to work with All Vision to analyze the feasibility of
new outdoor advertising opportunities citywide. All Vision would propose an Outdoor Advertising
Strategic Plan that would include current competitive market analyses and site evaluations for
potential digital billboard signage, components of a future billboard overlay zone and ordinance,
analysis of transit shelter furniture with advertising, and formulating means for the City to use
advertising revenues to fund expansion of existing transit shelter furniture citywide.
Outdoor Advertising Strategic Plan
The first component of the agreement would result in All Vision developing an Outdoor
Advertising Strategic Plan to analyze development of new outdoor advertising locations citywide.
To prepare the Strategic Plan, All Vision will work with City staff to identify existing outdoor
advertising structures in Santa Ana along city streets and freeways, analyze City -owned
properties suitable for potential digital billboard development, and develop a plan for construction
of new outdoor advertising structures through digital billboards and /or transit shelter furniture.
The Strategic Plan will contain multiple components, including: an analysis of sign development
opportunities based on development feasibility and revenue potential; evaluation of current and
potential value of signs located on City property best situated for revenue generation; current
market research and competitive analyses; analysis of a potential new overlay zone and
ordinance for private development of digital billboards; analysis and recommendations for the
strategic placement of new transit shelter furniture with advertising components that incorporate
unique designs for placemaking and community- oriented design; and evaluation of bundling
opportunities for development of different types of outdoor advertising. These components will
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Agreement with All Vision
November 18, 2014
Page 3
assist the City with identifying City -awned or private sites suitable for the development of new
digital billboards, as well as identifying locations for new transit shelter advertising installments
whose revenues could be used to fund construction and maintenance of additional transit shelter
locations.
Once potential sites have been identified by the City and All Vision for new outdoor advertising
opportunities, All Vision would work with the City to pursue specific sites for entitlement,
construction, licensing, and ongoing operations and maintenance. In the proposed development
model, All Vision would lead construction of a signage installation opportunity and then license
the sales of advertising to an outdoor advertising sales company. All Vision would recover its
costs over an initial five -year period, after which the City would own the advertising structures.
During the five -year initial cost recovery period, the City will be guaranteed a minimum
compensation; the amount will increase once All Vision recovers its initial costs at the end of the
five -year cost recovery period.
Digital Billboards
All Vision will analyze potential sites for City -owned or private development of digital billboards.
Should options be limited for development of structures on City property, All Vision will prepare,
as part of its Outdoor Advertising Strategic Plan, a proposal for a billboard overlay zone and
ordinance that would allow for private -party digital billboard development and /or conversion of
static billboards to digital technology in viable areas, subject to an entitlement process and
development standards. All Vision would also draft recommendations for a fee structure to
capture revenue from new or converted billboards, which could be used to expand or enhance
transit shelter furniture installations citywide.
Transit Shelters
Through its Outdoor Advertising Strategic Plan, All Vision will also analyze opportunities for
expanded transit shelter advertising and furniture installations citywide. All Vision would identify a
franchisee to work with the City to maintain current transit shelters and street furniture. A key
component of the program would identify new bus shelters and street furniture placement
opportunities using designs that will also serve as a "placemaking" tool that represent the diverse
communities and neighborhoods in Santa Ana.
The City's current agreement for bus shelters and street furniture maintenance will expire in June
2015. The agreement provides for providing, maintaining, and repairing bus shelters and street
furniture in tandem with outdoor advertising. Under the proposed agreement, All Vision would
identify a franchisee for a new long -term agreement that would continue to provide, maintain, and
repair bus shelters and street furniture. The shelters and furniture would incorporate outdoor
advertising, and the franchisee would pay the City a minimum amount per month per transit
shelter. This fee structure will allow for additional revenues as the number of transit shelter
installations increases over time.
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Agreement with All Vision
November 18, 2014
Page 4
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet Goal No. 4 City Financial Stability,
Objective No. 3 (achieve a structurally balanced budget with appropriate reserve levels); Goal
No. 6 Community Facilities & Infrastructure, Objective No. 1 (establish and maintain a
Community Investment Plan for all City assets); and Goal No. 3 Economic Development,
Objective No. 4 (leverage private investment that results in tax base expansion and job creation
citywide).
FISCAL IMPACT
All Vision's consulting services, including preparation of the Outdoor Advertising Strategic Plan
and its associated components, come at no cost to the City. Should the City pursue the digital
billboards and /or transit shelters components, All Vision would collect percentages of revenues
from advertising licenses.
Digital 8iilboards
The agreement with All Vision for outdoor advertising management services comes at no
additional cost to the City. Based on preliminary staff analysis of the All Vision proposal, the
licensing of current bus shelters, and the development of several new signage installation
opportunities citywide would generate potential revenues to the City. As proposed, the
development model guarantees a minimum $200,000 annually per two-sided digital billboard or
60% of revenues from advertising licenses on digital billboards after the five -year cost recovery
period ends. During the five -year cost recovery period, All Vision guarantees the City a minimum
$100,000 annually per two -sided digital billboard.
Transit Shelters
In addition, the Outdoor Advertising Strategic Plan would assist the City in identifying a
franchisee that would guarantee a minimum amount and revenue allocation program for transit
shelters citywide. If the City adopts All Vision's proposed Strategic Plan's transit shelter
advertising components, All Vision would collect 30% of any revenues from advertising in excess
of $95 per year for the first five years of the program's implementation. Combined, the digital
billboards and bus shelters revenue could exceed one million dollars annually, depending on the
ultimate build -out of bus shelters and signage installations throughout Santa Ana. Revenues
received from these two components will be deposited into Outdoor Advertising revenue account
(01116002- 50055).
APPROVED AS TO FUNDS AND ACCOUNTS:
vv .O
Karen Haluza
Interim Executive Director
Planning and Building Agency
AP:rb M ;Reports \SteB Reports for CCNIlvision RFCA 111814
Exhibit: 1. Agreement
T 1\h mz --
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
i
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OUTDOOR ADVERTISING SERVICES AGREEMENT
This Outdoor Advertising Services Agreement (this "Agreement "), made and entered into this
day of . 2014, by and between All Vision, LLC, a Delaware limited liability company ( "All
Vision "), and the City of Santa Ana, a charter city and municipal corporation of the State of California
"City").
Recitals
A. All Vision is engaged in the business of advising property owners regarding the use of
their property for the installation and operation of commercial outdoor advertising signs and
administering those signs and agreements related to the use of those signs on behalf of property
owners.
B. The City owns or has the right to use land that may be suitable for the installation of
advertising signs and desires to engage All Vision as its exclusive advisor regarding the possible
development of locations on City property for the City.
C. The City further wishes to engage All Vision to assist In the possible development of a
Digital Billboard Ordinance that may include an overlay zone to permit outdoor advertising signage in
one or more areas within the City.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and
conditions hereinafter set forth, the parties agree as follows:
Article 1
BASIC PROJECT INFORMATION AND CONTRACT DOCUMENTS
1.1 Basic Project Information. The following terms have the meanings given below:
Commencement Date: The date on which this Agreement has been mutually signed and
delivered.
Expiration Date: The fifth anniversary of the Commencement Date, subject to extension in
writing for up to two extension periods of one year each in the sole and absolute discretion of the City
Manager, as provided in section 2.2 below.
City's Address for Notices: City of Santa Ana Attention: City Manager
20 Civic Center Plaza
Santa Ana, CA 92702
All Vision's Addresses for Notices: All Vision, LLC
Attention: CFO
1805 Shea Center Drive Suite 250
Highlands Ranch CO 80129
with a copy to:
All Vision, LLC
EXHIBIT 1
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Attention: President
1805 Shea Center Drive Suite 250
Highlands Ranch CO 80129
and a copy to:
All Vision, LLC
Attn: CEO
420 Lexington Avenue, Suite 1601
New York, NY 10170
1.2 Definitions. For the purposes of this Agreement, the following definitions apply:
"Billboard Overlay Zone" means an area where a digital billboard can be constructed pursuant
to a Digital Billboard Ordinance.
"Digital Billboard Ordinance" means an ordinance that contains development standards and
other parameters for the development of digital billboards within the Billboard Overlay Zone.
"City Digital Face" means a digital billboard face at least 14 feet in height by 48 feet in width,
facing freeway traffic, on a City Property Sign.
"City Property" means all real property of the City, whether owned or leased by City, located in
the City of Santa Ana, State of California.
"City Property Sign" means a Sign located or to be located on any City Property pursuant to this
Agreement and a Site Agreement.
"City Sign Location" means each portion of City Property on which a Sign is located or that is
designated for development of a City Property Sign in the approved Strategic Plan.
"Costs of Construction and Maintenance" means the reasonable, documented costs incurred by
All Vision to create any access road, construct foundations, obtain fabricated steel and digital screens,
obtain other materials for Signs, install Signs, install electrical wiring and trenching for Signs, obtain
materials for Signs themselves, obtain and install security fencing, anything required to maintain, clean
and repair the Sign, and any other related expenses, but only to the extent it is reasonable to incur such
costs for a Sign.
"Direct Expenses" means all reasonable, documented out -of- pocket expenses described on a
written budget approved in writing by the City and paid to third parties by All Vision for engineering,
surveying, drilling, geotechnical services, legal work, permit or application fees, and other reasonable
expenses of developing each Sign Location for the purposes provided in this Agreement, and any other
expense designated in this Agreement as Direct Expenses. Direct Expenses shall not include internal
costs such as compensation for the time of any directors, officers, or employees of All Vision, any
overhead or administrative expenses which may be incurred by All Vision, or any payments to any
person or entity owned by, controlled by, or under common ownership or control with All Vision unless
otherwise approved in writing by the City, in its sole discretion. Direct Expenses shall include Costs of
Construction and Maintenance, subject to the amortization requirements of Section 5.2(c).
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"Force Majeure" means severe weather, earthquake, flood, fire, natural disaster, shortages of
labor, materials, fuel, power or transportation, act of war, terrorist attack, civil unrest, or other causes
beyond the reasonable control of the parties, and any challenge to the issuance of governmental permits
and approvals by third parties, but shall not include normal delays in the processing of governmental
permits and approvals.
"Operating Permits" means any permit required by applicable law specifically for the operation
of a Sign on the Sign Location in question, including business licenses and certificates of occupancy as
applicable, as distinct from generally applicable building and construction permits.
"Sign" means any of various sizes and types of outdoor advertising displays, including static,
digital, or mechanical (including tri- vision) and all other billboards, displays, signboards and other types
of equipment and structures that may be appropriate for outdoor advertising purposes, including all
supporting structures and other attached equipment used to operate the sign, but does not include
transit furniture, transit shelters or other transit oriented assets.
"Site Agreement' means an agreement between All Vision and the City entered into under
which All Vision will construct, maintain and operate a Sign to be owned by the City and license the sales
of advertising on the Sign to a third party advertising sales company that is not owned by, controlled by,
or under common ownership or control with All Vision unless otherwise approved in writing by the City
in its sole discretion.
"Site Agreement Development Revenues" means the gross amount received by City and All
Vision from sales of advertising on a Sign developed under a Site Agreement on account of that Sign.
"Strategic Plan" means a plan that analyzes all potential outdoor advertising opportunities,
including signage and transit oriented advertising, throughout the City of Santa Ana.
Article 2
TERM OF AGREEMENT AND RELATIONSHIP OF THE PARTIES
2.1 Term. The term of this Agreement extends from the Commencement Date to the
Expiration Date, Inclusive ( "Term "). The Term may be extended or terminated as provided in this
Agreement or by mutual agreement of the parties.
2.2 Extension of Term by City Manager. The City Manager may, in the sole and absolute
discretion of the City Manager, extend the Expiration Date by up to two extension periods of one (1)
calendar year each by giving All Vision notice of that extension before the then - scheduled Expiration
Date.
2.3 Independent Contractor. The relationship established between All Vision and the City by
this Agreement is the relationship of independent contractor. This Agreement is not to be construed to
establish any partnership or joint venture between All Vision and the City, and neither All Vision nor the
City shall hold itself out to any third party as being participants in a joint venture, partnership or any
other form of joint enterprise with respect to any Signs, the Transit Oriented Advertising Program, or any
other activities pursuant to this Agreement.
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2.4 Exclusivity. The City shall not contract with any other person or entity to provide the
same services or services similar to those provided by All Vision under this Agreement during the Term,
except for services required by this Agreement that All Vision is Incapable and unwilling to perform.
Article 3
DEVELOPMENTAND MARKETING PLANNING
3.1 Outdoor Advertising Strategic Plan
(a) All Vision shall evaluate the opportunities for the marketing and development of
Signs and transit oriented advertising in potential new City Sign Locations. All Vision shall prepare and
submit to the City, within one year after the Commencement Date, a draft Strategic Plan that includes
the following matters, among others that may be reasonably requested by the City:
(1) an analysis of Sign development opportunities based on development feasibility and revenue
potential;
(2) evaluation of the current and potential value of prospective Signs and identification of the
potential advertising locations on City Property that are best situated for the generation of
advertising revenue;
(3) relevant market and /or media research, planning and competitive analyses;
(4) analysis of Billboard Overlay Zones that All Vision recommends be considered ias part of the
Digital Billboard Ordinance;
(5) analysis of a new advertising program for transit shelter and transit stop street furniture owned
or controlled by the City or its agencies and any other transit oriented advertising assets the City
or Its agencies own or control. This analysis will Include:
(a) All Vision's recommendations regarding the potential advertising uses of transit - related
City assets that would best maximize advertising revenue;
(b) any recommendations All Vision may have regarding the potential upgrade of existing
transit - related assets or acquisition of new transit - related assets that might improve
advertising revenue; and
(c) Recommendations regarding potential outdoor advertising design approaches that take
into account City aesthetic, placemaking and community design goals in light of the
value of potential new and upgraded advertising assets.
(6) . evaluation of the possibility of bundling opportunities for development of different types of
advertising media (e.g., bundling transit furniture opportunities with opportunities to develop
Signs in an overlay district); and
(7) any other matters reasonably requested by the City that are to be considered in the
development of City Sign Locations.
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(b) In the course of the preparation, evaluation, and discussion of the Strategic
Plan, and whenever otherwise appropriate in connection with All Vision's services under this
Agreement, All Vision shall meet with all City personnel, regulatory agencies, and other stakeholders,
including the California Department of Transportation and the Orange County Transportation Authority.
The City shall act reasonably in considering, reviewing and approving the proposed Strategic Plan. If the
City does not approve the Strategic Plan in its entirety, the parties shall cooperate reasonably to attempt
to modify the Strategic Plan so as to gain City's approval. All Vision may revise and resubmit any
proposed Strategic Plan to the City for approval..
3.2 City's Documents and information. City shall make reasonable efforts to, promptly
upon request, provide All Vision any and all records and documents which All Vision reasonably requests
of the City as necessary or appropriate for All Vision's preparation of the Strategic Plan, except for
documents and information that Applicable Law prohibits the City from disclosing, or which is privileged,
including attorney - client communications and attorney work product. All Vision and City shall work
cooperatively to ensure that All Vision and City's representatives are available for meetings to discuss
the proposed Strategic Plan.
3.3 Restriction Period for Prospective Sign Locations Proposed by All Vision. Except for
Signs installed pursuant to a Site Agreement, during the Term, the City shall not install, maintain or
operate, and shall not permit any third party to install, maintain or operate, any new revenue -
generating billboard or other revenue - generating advertising sign of any kind at any location on City
Property that is identified as a prospective City Sign Location in the final Strategic Plan or any draft of
the Strategic Plan submitted by All Vision under this Agreement. The foregoing restriction is not to be
construed to prohibit the City from approving requests for building, sign or other permits in its
ministerial capacity for outdoor advertising signage on privately owned property that will not result in
any payment of revenue sharing or recurring fees to the City.
3.4 Access to Property. On condition that All Vision complies with the requirements of this
Section 3.4 and any other material provisions of this Agreement pertaining to its activities on City
Property, All Vision is granted the right to have access to City Sign Locations and prospective City Sign
Locations for purposes of performing the activities contemplated by this Agreement subject to All Vision
providing written communication to the City at least two business days in advance to coordinate access
to City Property to avoid conflict between the City's operations and All Vision's services and to make any
necessary arrangements for on -site safety measures.
3.5 Separate Compensation — Transit Oriented Advertising Program. If the City adopts a
transit oriented advertising program and enters into a contract with a sales agent or other vendor for
the implementation of that program that is negotiated with All Vision's assistance, the City shall pay All
Vision 30% of the positive amount, if any, by which transit oriented advertising revenue exceeds $95.00
per month for each existing City transit shelter used to display advertising in each year during the five
year period beginning on, and including, the date the City first receives revenue from the
implementation of the transit oriented advertising program. The City shall pay the amount owed each
year within 60 days after the end of the applicable calendaryear.
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Article 4
ZONING - RELATED SERVICES
4.1 Consulting Services. During the Term, All Vision shall, In conjunction with the
preparation and implementation of the Strategic Plan, assist the City with the development of a Digital
Billboard Ordinance to permit the construction and use of the Signs to be constructed under this
Agreement and Site Agreements, which may also include the creation of an overlay zone to permit the
construction and use of billboard advertising signs on private property. All Vision's services with respect
to the development of the Digital Billboard Ordinance may include, among others the City may request
and All Vision may agree to provide:
(a) evaluation of draft ordinance provisions and related recommendations, from
the perspective of its business experience developing and managing advertising signs;
(b) recommendations regarding what areas of the City are likely to both have
property that may be valuable for development of advertising signs and have a character compatible
with advertising uses;
(c) recommendations regarding the types of sign - related regulations that are likely
to help the City enable the productive use of property for advertising purposes while mitigating possible
adverse Impacts from that use; and
(d) recommendations for a fee structure to capture revenue from new or converted
digital billboards.
Some or all of those recommendations may be included in the Strategic Plan or may be submitted
separately.
4.2 Administrative Services. If a Digital Billboard Ordinance is adopted, All Vision shall
provide the following additional services during the Term to assist the City in the administration of the
Digital Billboard Ordinance, subject to the limitation provided in section 4.5 below:
(a) Assist the City with the negotiation of terms with applicants seeking City
development agreements or other agreements for Signs to be constructed pursuant to the Digital
Billboard Ordinance;
(b) Coordinate the permit application and review process and communication
between the City and applicants relating to that process;
(c) Monitor the progress of construction of Signs for which the City has issued
permits; and
(d) Monitor and audit the payments of amounts due under the development
agreements or other agreements between Sign developers and the City.
4.3 Compensation. The City shall pay All Vision 30% of all revenues received by the City
under any development agreements or other agreements entered into by the City (except for this
Agreement and Site Agreements or other agreements under which All Vision acts as the developer of
Signs) during the Term in connection with the approval, construction, operation, or use of Signs built in
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any overlay zone or other modified zoning established pursuant to the Digital Billboard Ordinance
(excluding revenue on account of generally applicable sales, use or property taxes, but including
revenue on account of any excise tax that applies to Signs or the sale or display of outdoor advertising
that does not apply generally to the sale of services or the ownership and use of property). Payments of
that compensation shall be due on a quarterly basis, with each payment due within thirty days after the
end of the calendar quarter In which the corresponding revenues are received by the City.
4.4 Term of Compensation. Notwithstanding the expiration of the Term, the City's
obligation to pay All Vision the compensation provided In Section 4.3 above shall apply to, and survive
the Term with respect to, all City revenues pursuant to each applicable agreement from the inception of
that agreement until (a) the end of the term of that agreement and all renewals, extensions,
restatements or replacements thereof, or (b) thirty years after the Sign In question first becomes
operational for the display of commercial advertising. In either case, the revenues to be shared include
all revenues owed to the City with respect to the applicable time period that are received by the City at
any time, whether before, during or afterthe applicable time period.
4.5 Other All Vision Signs, During the Term, All Vision will not be required or permitted to
provide the services described in section 4.2 above with respect to Signs of which it is the developer that
are not on City Property. However, with the prior written consent of the City, All Vision may present
proposals for the City to consent to its participation as developer in the construction of Signs that are
not City Property Signs in the overlay zone established pursuant to the Digital Billboard Ordinance in
exchange for a mutually agreeable revenue sharing terms, and section 4.3 above will not apply to any
amounts payable to the City with respect to those Signs.
4.6 Consulting Services Do Not Include Legal Services. Without limiting the generality of
Section 15.9 below, nothing in this Article 4 is to be construed to require All Vision to provide or pay for
legal advice to the City in connection with any Digital Billboard Ordinance or any agreement with a third
party, and the City will be responsible to obtain at its expense and rely on the legal advice of its City
Attorney and any other counsel it may engage regarding any Digital Billboard Ordinance or agreement
and the legal validity and effect thereof. All comments and recommendations that All Vision may
provide with respect to proposed ordinance language are to be considered as relating to business and
operational matters only, even though they may include specific drafting recommendations and may
include comments from attorneys who are employed by or engaged by All Vision. Further, All Vision's
observation of construction activity is not intended as a substitute for any required or otherwise
appropriate inspections to be performed by a City building official.
Article 5
CITY PROPERTY SIGN DEVELOPMENT
5.1 Site Agreements. If the City approves a Strategic Plan that designates any one or more
City Sign Locations for development, the parties shall prepare and enter into a Site Agreement for each
City Sign Location in a form provided by either party and mutually approved by the City and All Vision.
5.2 Key Terms. Each Site Agreement shall include provisions based on the following key
economic terms (but providing greater detail), among the other terms specified in the approved form of
Site Agreement, unless the parties otherwise agree in writing:
(a) The term of each Site Agreement will extend for 30 years beginning on the date
the Sign is first put into operation to display commercial advertising, or the deadline in the Site
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Agreement for such commencement of operations, and shall have appropriate insurance, maintenance,
and indemnification provisions and appropriate reporting and audit provisions consistent with Article 7
below.
(b) All Vision's reasonable Direct Expenses incurred in connection with the Sign,
including reasonable amounts owed to sales agents for procurement of advertising media, out -of- pocket
expenses paid to third parties for maintenance and repair of the Sign which, under generally accepted
accounting principles consistently applied, are not required to be capitalized and amortized, costs of
electricity and telecommunications services serving the Sign, costs of insurance for the Sign equipment,
costs of electrical and telecommunications services for the Sign, and costs of obtaining and maintaining
Operating Permits and other governmental approvals, but excluding costs that must be capitalized and
depreciated under generally accepted accounting principles, will be reimbursed out of Site Agreement
Development Revenues for the Sign before sharing of net Site Agreement Development Revenues (the
amount so reimbursed, "Site Agreement Direct Expense Reimbursement ").
(c) All Vision's Costs of Construction and Maintenance of the Sign that must be
capitalized and depreciated under generally accepted accounting principles, including all actual out -of-
pocket costs paid to third parties for design, construction, bonds or other security, and payment of
claims arising out of construction, and including maintenance and repair costs that fall within that
accounting category, will be amortized in equal monthly installments over a period of five years (the
"Reimbursement Period "), beginning with the calendar month in which the Sign is first put into service
for the display of commercial advertising, and, as so amortized, will be reimbursed out of Site Agreement
Development Revenues for the Sign before sharing of net Site Agreement Development Revenues (the
amount so reimbursed, "Site Agreement Capital Expenditure Reimbursement ").
(d) All Vision shall prepare any and all applications for permits and approvals
required for any Operating Permits necessary for each proposed City Property Sign in the name of the
City, and shall obtain all construction and other permits and approvals required for the construction of
the Sign. All Vision will be entitled to terminate the Site Agreement if any required governmental
approvals cannot be obtained.
(e) All Vision will be responsible for the construction, operation and maintenance of
the City Property Sign, including the sign operation activities of sales agents engaged by All Vision. All
Vision will be required to keep the City Property Sign in good and safe condition, to repair promptly any
malfunctioning or damaged component of the City Property Sign, to replace digital screen components
when they reach the end of their useful lives, and to obtain property insurance to insure the City
Property Sign against damage. All Vision's out of pocket costs of those services and insurance will
constitute Direct Expenses and be reimbursed In accordance with the provisions of the Site Agreement.
(f) Until the capital expenditures described above have been fully reimbursed to All
Vision, All Vision will own the assets acquired or constructed with those costs (which will not be deemed
to be fixtures or accessions to the real or personal property of the City), and after that reimbursement
has been paid, those assets will at the City's option be transferred to the City.
(g) If the Sign has one or more City Digital Faces, All Vision will be required to pay
the City the greater of (1) an annual minimum fee in the amount of $50,000 per City Digital Face (that is,
$100,000 for a Sign with two City Digital Faces) during the Reimbursement Period and $100,000 per City
Digital Face (that is, $200,000 for a Sign with two City Digital Faces) for each year of the term of the Site
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Agreement thereafter or (ii) a share of Site Agreement Development Revenues determined by allocating
to the City 60% of the net Site Agreement Development Revenues remaining after deduction of Site
Agreement Direct Expense Reimbursement and Site Agreement Capital Expenditure Reimbursement. For
any other kind of Sign in a City Sign Location (including Signs with digital faces that do not conform to the
definition of City Digital Faces), no annual minimum will apply and All Vision will be required to pay the
City 60% of the net Site Agreement Development Revenues remaining after deduction of Site Agreement
Direct Expense Reimbursement and Site Agreement Capital Expenditure Reimbursement. The City and
All Vision may agree to different economic terms based on the circumstances of the proposed City Sign
Location.
(h) The Site Agreement will provide for the potential "bundling" of the sales of
advertising on the applicable Sign with sales of advertising on Signs governed by other Site Agreements
and the allocation of the advertising revenues among the Signs on which the advertising will be
displayed.
5.3 Removals. The Site Agreement will contain terms providing that if the Sign is to be
removed because of casualty, condemnation, or legal prohibition, or because the City requires the City
Sign Location for a bona fide purpose other than outdoor advertising that is incompatible with continued
operation of the Sign, and the parties fail to agree on a comparable replacement City Sign Location, then
(1) All Vision shall use diligent efforts to obtain payment of its unreimbursed operating expenses and
capital expenditures from the condemning authority or applicable insurance company, (2) All Vision will
thereafter be entitled to deduct any remaining unreimbursed operating expenses and capital
expenditures, if any, from amounts due under this Agreement or other agreements (including other Site
Agreements) between All Vision and the City, or the City may pay those amounts at the time of
termination. If the Sign is removed due to condemnation action or prohibition by the City (not acting
under any legal compulsion) or because the City requires the use of the location for another purpose,
and the parties fail to agree on a comparable replacement City Sign Location, All Vision shall be entitled
to deduct any remaining unreimbursed operating expenses and capital expenditures from amounts due
to City under this Agreement and the Site Agreements, and if the amounts due under those agreements
are not adequate for All Vision to fully recover those unreimbursed operating expenses and capital
expenditures, then the City will be obligated to reimburse them. If the Sign is removed so that the City
can develop the City Sign Location for other purposes, the City will impose a restrictive covenant for the
benefit of All Vision prohibiting the installation of outdoor advertising billboards on the property of
which that City Sign Location is a part until the earlier of five years after the date of removal or the
originally scheduled termination date of the Site Agreement.
Article 6
APPROVAL AND REMOVAL OF ADVERTISING MATERIALS
6.1 General Advertising Prohibitions. The fallowing categories of advertising are not
permitted on any Signs:
(a) advertising for any product or service that is prohibited by applicable law;
(b) advertising for any product or service prohibited by the City's written policies;
and,
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(c) advertising for any tobacco, marijuana or sexually related products or services.
6.2 Specific Advertising Prohibitions. City may impose additional advertising restrictions for
specific Signs in the Site Agreement applicable to that City Sign Location.
6.3 Removal of All Vision Advertising. If All Vision displays advertising on a Sign governed by
a Site Agreement in violation of this Article 6, All Vision shall remove the prohibited advertising material
at its risk and expense. If All Vision fails to promptly remove the advertising, City may take any
appropriate further action that may be necessary and appropriate to enforce the obligation to remove
the prohibited advertising, and the reasonable, documented costs described in writing by City to All
Vision of any actions required to enforce those obligations will be promptly paid by All Vision to City.
Article 7
ACCOUNTING RECORDS
7.1 All Vision's Records. For the duration of each Site Agreement and for three years
thereafter, All Vision shall maintain records of receipts, disbursements and withholding of amounts
received by it on account of each Site Agreement, including all Direct Expenses, and on account of each
Site Agreement looking back at least seven years. No more than once per calendar year, City and its
accountants, auditors, and /or consultants shall be entitled to audit, examine, inspect and obtain copies
of such records and documents at the City's offices during normal business hours upon not less than five
business days' prior written request, and All Vision shall, at All Vision's cost, make such records and
documents available at the City's offices for the purpose of such review. If any records are maintained
outside of the City and cannot be provided to the City at the City offices, All Vision shall be required to
provide access to such records outside the City and reimburse the City for all reasonable travel expenses
incurred by the City to inspect those records, including travel, lodging, meals, and other similar
expenses, but excluding the normal salary or hourly wages of those persons designated by the City to
conduct the audit, examination, or inspection.
7.2 The City's Records. The City shall keep records of all License Revenues received by it, and
All Vision and its accountants and consultants shall be entitled to inspect such records and documents at
the City's office where such records are regularly Kept upon not less than ten business days' prior written
request.
73 Financial Statements. No later than six months after the end of All Vision's annual
accounting cycle, All Vision shall submit an audited statement of revenues and expenses related to the
City Property Signs for the preceding fiscal year prepared by an independent Certified Public Accountant.
7.4 Audit. All Vision's staff shall cooperate fully with City or authorized agents of City when
they conduct audits, and examinations or inspections of All Vision's records In relation to Site
Agreement Development Revenues and Direct Expenses. Any audit, examination, or inspection
conducted by City under this Section will be conducted at the expense of City, except as provided under
Section 7.4. City will prepare a written report containing its findings, a copy of which will be mailed to
All Vision for its review. All Vision must reimburse City within 30 days of written notice from the City for
the expense of any such audit, examination, or inspection if, as a result of that audit, examination or
inspection, it is determined that there is a shortfall of more than four percent (4 %) in the amounts due
to the City under this Agreement. The right to audit, examine, or inspect as provided by this Section,
shall be for so long as All Vision owns the records, subject to the limitation that all amounts paid and
received and all statements rendered under this Agreement will be deemed final and conclusive at the
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end of the third year after In which the applicable receipts and payments occurred, and no adjustment
in amounts paid under this Agreement shall be made based on an audit or examination that is
commenced more than one year after the end of the calendar year in which those amounts were
received and paid.
7.5 Audit Deficiency Determinations. In the case where any inspection of records or
financial audit results in a deficiency determination in connection with any quarterly remittance due to
the City by All Vision then such deficiency shall be subject to a contract penalty of 10% and late interest
at the rate of 1% per month or fraction of a month from the date such deficiency occurred until the
principal deficiency amount, penalty, and interest are paid in full. For purposes of late interest
assessment the penalty shall be merged with the principal deficiency amount and interest shall be paid
on the combined total amount. In the event of a determination of fraud, or gross or willful negligence in
the reporting or remittance of license revenue a further penalty of 15% shall apply to such deficiency.
Every quarterly deficiency determined by the City shall be subject to separate assessment of penalty and
late interest.
Article 8
REPRESENTATIONS OF THE PARTIES
8.1 By All Vision. All Vision represents to the City as follows, as of the date of this
Agreement:
(a) All Vision is a limited liability company formed and validly existing under the
laws of the State of Delaware.
(b) All Vision has the requisite power, authority and capacity to execute, deliver and
perform this Agreement.
(c) This Agreement has been duly authorized, executed, and delivered by All Vision,
and the execution, delivery, and performance by All Vision of this Agreement does not and will not
violate or constitute a default under the organizational documents of All Vision or any other covenant,
contract, agreement, or understanding to which it is a party or by which it or any of its properties or
assets is bound or affected.
(d) All Vision has not received any notice of any actions, suits, proceedings, or
investigations pending or threatened against All Vision that individually or in the aggregate are
reasonably likely to result in any material adverse effect on the business, properties, or assets, or the
condition, financial or otherwise, of All Vision or in any impairment of All Vision's ability to perform its
obligations under this Agreement.
8.2 By The City. The City represents to All Vision as follows, as of the date of this Agreement:
(a) The City is a charter city and municipal corporation formed and validly existing
under the laws of the State of California.
(b) The City has the requisite power, authority and capacity to execute, deliver and
perform this Agreement.
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(c) This Agreement has been duly authorized, executed, and delivered by the City,
and the execution, delivery, and performance by the City of this Agreement does not and will not violate
or constitute a default under the organizational documents of the City or any other covenant, contract,
agreement, or understanding to which it is a party or by which it or any of its properties or assets is
bound or affected; provided, however, that the foregoing does not cover or include legal restrictions or
recorded documents for any proposed City Sign Location, it being understood that All Vision shall
investigate such matters with the good faith cooperation of City.
(d) The City has not received any notice of any actions, suits, proceedings, or
investigations pending or threatened against the City that individually or in the aggregate are reasonably
likely to result in any material adverse effect on the business, properties, or assets, or the condition,
financial or otherwise, of the City or in any Impairment of the City's ability to perform its obligations
under this Agreement.
(e) The City is the owner of the City Property or has a right and interest In the City
Property sufficient to empower and entitle it (1) to grant to All Vision the rights granted in this
Agreement and (2) to enter into valid and binding Site Agreements granting All Vision permission,
revocable only on the terms provided in those Site Agreements, to construct Signs in City Sign Locations
in accordance with the terms of this Agreement.
8.3 Breach of Representations. A breach by one of the parties of any of its representations
made in this Article 8 will constitute a breach of this Agreement by that party and, if uncured, will entitle
the other party to its remedies provided in this Agreement. However, the non - breaching party will not
be entitled to any tort remedies or to rescind this Agreement, regardless of whether those remedies
would otherwise be available at common law or in equity.
Article 9
CONFIDENTIALITY
9.1 Use and Disclosure of Confidential Information.
(a) Except as authorized hereunder, each party to this Agreement shall hold in
confidence, not disclose and not permit any person any direct or indirect access to any Confidential
Information of the other party except as permitted by this Agreement. As used in this Article 9, with
respect to each item of Confidential Information, the following definitions apply:
"Disclosing Party" means the party that disclosed information to the other.
"Receiving Party" means the party that received Information from the other.
"Confidential Information' means all information that is supplied or made available by or on
behalf of a party to another party, whether before or after the date hereof, that the Receiving Party
knows, or has a reasonable basis for believing, is confidential, including intellectual property, trade
secrets and the terms and conditions of this Agreement.
(b) A Receiving Party may disclose Confidential Information of a Disclosing Party to
the Receiving Party's employees, officers, governing body members, professional advisors and agents
(those persons, the Receiving Party's "Representatives ") to the extent necessary to enable that party to
perform this Agreement, enforce its rights under this Agreement, or comply with applicable law, on
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condition that the Receiving Party notifies those persons of the confidential nature of the Confidential
Information and obtains their agreement to keep that information confidential. Each Receiving Party
shall be liable for disclosures of Confidential Information of the other party made by that Receiving
Party's Representatives to the same extent as If the Receiving Party had disclosed that Confidential
Information itself.
(c) A Receiving Party shall not use, or cause, authorize or permit any other person
to use, any Confidential Information of the other party except for the purposes of this Agreement, as
permitted by this Agreement or as authorized by the Disclosing Party in writing.
(d) A Receiving Party shall protect all Confidential Information of a Disclosing Party
using the same degree of care as it uses to prevent the unauthorized use, disclosure, publication, or
dissemination of its own confidential information of a similar nature or character, but in no event using
less than a reasonable degree of care.
9.2 Exceptions. Information of a Disclosing Party will not constitute Confidential Information
in the following circumstances:
(a) the Disclosing Party advises the Receiving Party that the information disclosed is not
required to be treated as Confidential Information;
(b) the information is then or subsequently becomes generally available to or accessible by
the public through no fault or wrongdoing of the Receiving Party or its Representatives,
and the Receiving Party has no actual knowledge that the information was made
available to the public in violation of a third party's duty of confidentiality;
(c) the information is a matter of public record or in the public domain;
(d) the information was in the possession of the Receiving Party before it was disclosed by
the Disclosing Party;
(e) the information is received by the Receiving Party on a non - confidential basis from a
source other than the Disclosing Party, and the Receiving Party did not know or have
reason to know that the source was bound by a duty of confidentiality to the Disclosing
Party;
(f) the information is required to be disclosed under open public records laws or open
public meetings laws, such as the Freedom of Information Act, the California Public
Records Act, or other applicable law, by virtue of being received, generated, or disclosed
by City, and no exception to disclosure under those laws applies to that information, as
determined by counsel for the City;
(g) the information was independently developed by the Receiving Party without access to
disclosures by the Disclosing Party, as evidenced by contemporaneous written records;
or
(h) the Disclosing Party authorizes disclosure of the information (and only to the extent of
that authority).
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9.3 Compelled Disclosure. If a Receiving Party receives a subpoena, court order, or other
legal process requiring disclosure of Confidential Information, the Receiving Parry shall promptly notify
the Disclosing Party of the requirement and cooperate at the Disclosing Party's expense in any efforts the
Disclosing Party may wish to undertake to seek a protective order or other exception to the disclosure
requirement. Unless the Disclosing Party obtains a protective order or exception before the Receiving
Party is required to disclose the Confidential Information, the Receiving Party may disclose so much of
the Confidential Information as is required to comply with the disclosure requirement.
Article 10
INSURANCE AND LIABILITY
10.1 All Vision's Insurance.
(a) All Vision shall procure and maintain during the Term the following coverages
and limits of insurance, with reasonable and typical deductibles:
(1) Commercial General Liability insurance in form and substance acceptable to the City, on an
occurrence basis, with limits of at least $2,000,000 per occurrence for bodily injury, personal
injury and property damage and $4,000,000 general aggregate. Such insurance shall Include, but
not be limited to, protection against claims arising from bodily and personal injury, including
death resulting therefrom and damage to property, resulting from any act or occurrence arising
out of All Vision's operations in the performance of this Agreement, including without limitation,
acts involving vehicles.
(2) Commercial automotive liability insurance in form and substance acceptable to the City, covering
liability for any auto, with limits of at least $1,000,000 per accident for personal injury and
property damage. Such insurance shall include coverage for owned, hired and non -owned
automobiles.
(3) Workers' Compensation Insurance as required by applicable law, and Employer's Liability
Insurance with limits of at least $1,000,000 per accident, per employee.
(4) Errors and Omissions Insurance with limits of at least $2,000,000 per occurrence or per claim. If
such insurance is issued on a "claims- made" basis, All Vision shall maintain this insurance for at
least two years after the end of the Term, either by replacement policies (with a retroactive date
no later than two years before the effective date of the policy in question) or by an extended
reporting period.
(b) The City and its officers, agents, employees, volunteers, and representatives
must be named as additional insureds under All Vision's commercial general liability insurance policy
with respect to liability arising out of All Vision's activities under this Agreement. All Vision shall provide
this additional insured coverage by way of a fully executed blanket additional insured endorsement or an
endorsement specifically for the benefit of those required additional insureds.
(c) For claims arising out of services rendered by All Vision under this Agreement,
All Vision's liability insurance coverage must be primary and not contributory with the City's insurance.
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(d) Each insurance policy required by this Section 10.1 must be endorsed to state
that coverage will not be suspended, voided, canceled by the insurer or the insured, or reduced in
coverage or in limits except after thirty (30) days prior written notice has been given to the City.
(e) All Vision shall provide the City certificates of insurance and (for the
endorsements specifically required above) endorsements evidencing the issuance of the insurance
coverage required by this Agreement, which shall be approved in form by the City. Upon the City's
request, All Vision shall submit copies of all required insurance policies, including the endorsements
affecting the coverage required by this Agreement.
(f) If All Vision fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procured and is
in force and paid for and fails to correct that failure within thirty days after receipt of the City's notice to
do so, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such
termination shall not affect All Vision's right to be paid for services rendered prior to notification of
termination.
10.2 Damages. To the fullest extent permitted by law, each party hereby waives the right to
recover from the other party, in any action arising out of or related to this Agreement or the City
Property, any consequential or incidental damages and any punitive or exemplary damages whatsoever,
regardless of the legal theory or cause of action on which such claim for damages may be based and
regardless of when such claim accrues. The foregoing sentence is not to be construed to limit a party's
ability to recover direct actual damages, including lost profits to the extent they are properly categorized
as direct actual damages. The provisions of this Section 10.2 survive the expiration or other termination
of this Agreement.
10.3 All Vision Not a Guarantor. All Vision is not a guarantor of the obligations of any vendor
or other third party doing business with the City with respect to any Signs or the transit oriented
advertising program and will have no obligation to pay any amount owed by any such third parties or
otherwise cure the default of any such third party. The foregoing does not apply to sales agents engaged
by All Vision and does not limit any liability that All Vision might have to the City for the acts or omissions
of All Vision itself or such sales agents.
10.4 Indemnification. All Vision agrees to and shall indemnify and hold harmless the City, its
officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for
personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims
for personal injury, including health, and claims for property damage, which may arise due to negligent
acts, omissions or willful misconduct, from the direct or indirect operations of All Vision or its
contractors, subcontractors, agents, employees, or other persons acting on its behalf which relates to
the services described in this Agreement; and (2) from any claim that personal injury, damages, just
compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising
from, and to the extent of All Vision's, negligent acts, omissions or willful misconduct in the performance
of this Agreement.
10.5 Attorneys' Fees. In the event any dispute between the parties arising out of or related to
this Agreement becomes the subject of litigation or arbitration, the party prevailing on the more
substantial part of its claims and defenses, if any, will be entitled to recover its attorneys' fees,
disbursements and other costs incurred in connection with such proceeding.
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10.6 Waiver of Jury Trial. To the extent permitted by applicable law, the parties waive the
right to trial by jury of any dispute between them arising out of or relating to this Agreement or the
installation, operation, maintenance, use or removal of any Sign.
Article 11
DEFAULTS AND REMEDIES
11.1 Default by All Vision. The occurrence of any of the following circumstances will
constitute an "All Vision Event of Default ":
(a) All Vision falls in a material way to perform Its obligations under this Agreement and fails
to cure such default within 30 days following delivery of written notice of that failure
from the City to All Vision (or, if the default cannot reasonably be cured within that 30
day time period, but All Vision commences efforts to cure within that 30 day period and
diligently pursues such efforts and the default is not inherently incurable, then within
the longer amount of time reasonably necessary to complete such cure).
(b) All Vision commences voluntary bankruptcy or insolvency proceedings or is adjudicated
a bankrupt, becomes insolvent, makes an assignment for the benefit of creditors or
proposes or makes any arrangement for the settlement of its debts (in whole or in part)
or for the liquidation of its assets or a receiver or a receiver and manager or person with
similar authority is appointed with respect to the assets of All Vision;
(c) a material portion of the assets of All Vision is seized in satisfaction of any judgment; or
(d) any proceedings are taken for the liquidation, dissolution or winding -up of All Vision or
All Vision ceases or threatens to cease to carry on business in the ordinary course.
11.2 The City's Remedies. If an All Vision Event of Default occurs, the City may have recourse
to any one or more of the following remedies (but without any duplicative recovery), subject to the
limitations provided In Section 11.5 below:
(a) Recover its actual damages for breach of contract resulting from All Vision's default;
(b) Terminate this Agreement; and,
(c) Have recourse to any other remedies for the breach available at law or In equity, except
as limited by the provisions of this Agreement.
11.3 Default by the City. The occurrence of any of the following circumstances will constitute
a "City Event of Default ":
(a) The City fails in a material way to perform its obligations under this Agreement and fails
to cure such default within 30 days following delivery of written notice of that failure
from All Vision to the City (or, if the default cannot reasonably be cured within that 30
day time period, but the City commences efforts to cure within that 30 day period and
diligently pursues such efforts and the default is not inherently incurable, then within
the longer amount of time reasonably necessary to complete such cure).
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(b) The City commences voluntary bankruptcy or insolvency proceedings or is adjudicated a
bankrupt, becomes insolvent, makes an assignment for the benefit of creditors or
proposes or makes any arrangement for the settlement of its debts (in whole or in part)
or for the liquidation of its assets or a receiver or a receiver and manager or person with
similar authority is appointed with respect to the assets of the City;
(c) a material portion of the assets of the City is seized in satisfaction of any judgment; or
(d) any proceedings are taken for the liquidation, dissolution or winding -up of the City or
the City ceases or threatens to cease to carry on business in the ordinary course.
11.4 All Vision's Remedies. If a City Event of Default occurs, All Vision may have recourse to
any one or more of the following remedies (but without any duplicative recovery):
(a) Recover its actual damages for breach of contract resulting from the City's default;
(b) Terminate this Agreement; and,
(c) Have recourse to any other remedies for the breach available at law or in equity, except
as limited by the provisions of this Agreement.
11.5 Force Majeure. Neither party will be responsible to the other for a failure in the
performance of its obligations under this Agreement that results from Force Majeure, and the time for
each party to render performance that is delayed or interfered with by Force Majeure will be extended
for so long as the Force Majeure condition continues to delay or interfere with that party's performance,
and for so long thereafter as is reasonably necessary to remobilize or otherwise resume performance
following the abatement of the Force Majeure circumstances. The parties shall make reasonable efforts
to cooperate to mitigate the effects of any such delays.
Article 12
DISPOSITION OR ACQUISITION OF CITY PROPERTY
12.1 Disposition of Portions of the City Property, The City may sell, lease or otherwise
dispose of parts of the City Property. "Disposed Property" means the portion of the City Property so
sold, leased, licensed, abandoned, or otherwise disposed of, except that "Disposed Property" does not
include portions of the City Property with respect to which the City retains, after the sale, lease or other
disposal thereof, the right to develop, use and license signs under long -term licenses without restrictions
greater than those that applied to the City and All Vision before the transfer of the Disposed Property,
for so long as the City retains those rights. Without limiting the generality of Section 15.2, the provisions
of this Article 12 survive the end of the Term or other termination of this Agreement.
12.2 Pending Development. If the City sells or otherwise disposes of Disposed Property that
includes a City Sign Location identified in the Strategic Plan but with respect to which a Site Agreement
has not been entered into, the City at its sole discretion shall either (a) cancel the work on the evaluation
and development of that City Sign Location by notice to All Vision and, at or before the closing of the
transfer of the Disposed Property, reimburse all of All Vision's Direct Expenses incurred for its work in
connection with that prospective City Sign Location, or (b) assign its interest in this Agreement insofar as
it applies to the applicable Disposed Property to the transferee of the Disposed Property and, in the
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terms of the agreement for that sale or other transfer, require the transferee to assume the obligations
of the City hereunder with respect to the Disposed Property and City Sign Locatlons thereon.
12.3 Bulk Asset Disposition. If the City sells or otherwise disposes of Disposed Property
comprising all or substantially all of the City Sign Locations, whether to one or more transferees, the City
shall assign its rights and delegate its duties under and interest in this Agreement to the transferee(s) of
the City Property and cause its transferee(s) to assume in writing the obligations of the City under this
Agreement.
12.4 Site Agreements Not Affected. The provisions of the foregoing Sections of this Article
are not to be construed to affect any Site Agreement on Disposed Property. The effect of the transfer of
City Property on Site Agreements will be governed by those Site Agreements.
Article 13
ASSIGNMENT
13.1 By the City. The City may assign its interest in this Agreement, in whole or in part, as
provided in Article 12 above without the consent of All Vision. The City shall notify All Vision of any such
assignment within seven business days afterthe effective date of the assignment.
13.2 By All Vision. All Vision may assign this Agreement to any third party only upon City's
prior written approval, which the City shall not unreasonably withhold, condition or delay, on condition
that the third party assumes in writing the obligations of All Vision under this Agreement accruing from
and after the date of that assignment.
Article 14
NOTICES
14.1 How Delivered. To be valid, notices under this Agreement must be in writing, delivered
(a) by personal delivery, (b) by registered or certified mail, or (c) by a courier service of national repute
with delivery tracking, and addressed to the party to whom it is directed at that party's address for
notices stated in Article 1. Either party may change its address for notices by giving ten (10) days prior
written notice of such change to the other party.
14.2 When Effective. A valid notice or other communication under this Agreement will be
effective when received by the party to which it is addressed, It will be deemed to have been received as
follows:
(a) if it is delivered by hand, delivered by a national transportation company, with all fees
prepaid, or delivered by registered or certified mail, return receipt requested and
postage prepaid, upon receipt as indicated by the date on the signed receipt; and,
(b) if it is delivered by a courier service, upon delivery to the destination address as
indicated by the company's tracking records.
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Article 15
MISCELLANEOUS PROVISIONS
15.1 Governing taw. The validity and effect of this Agreement shall be determined in
accordance with the laws of the State of California, without reference to its conflicts of laws principles.
15.2 Survival of Provisions. All provisions of this Agreement that provide for actions to be
taken or amounts paid after the end of the Term survive the expiration or other termination of this
Agreement.
15.3 No Continuing Waiver. No waiver by the City or All Vision of any breach of any provision
of this Agreement will be deemed for any purpose to constitute a waiver of any breach of any other
provision hereof, nor of any continuing or subsequent breach of the same provision.
15.4 No Partnership. Nothing in this Agreement is to be construed to create a partnership
between the City and All Vision. The relationship between the City and All Vision is an Independent
contracting and licensor /licensee relationship.
15.5 Entire Agreement. This Agreement represents the complete understanding and
agreement between the parties with respect to the subject matter of this Agreement. This Agreement
may be changed only by a written amendment signed by the parties.
15.6 Successors and Assigns. This Agreement is binding on and inures to the benefit of the
successors and permitted assigns of the parties.
15.7 Deadlines on Business Days. The term "business day," as used herein, refers to days
other than Saturday, Sunday, holidays when banks in the State of California are not open for transaction
of regular business, or any days when the Santa Ana City Hall is closed. If the last day for any obligation
to be performed under this Agreement falls on a day other than a business day, that deadline will be
automatically extended to the next business day.
15.8 Time of the Essence. Time is of the essence of this Agreement.
15.9 No Regulated Services. Nothing in this Agreement is to be construed to require All
Vision to provide legal advice to the City, perform real estate brokerage services, or perform any other
activity for which any kind of professional license is required. All Vision is not a real estate brokerage
firm.
15.10 Severability. If any provision of this Agreement or the application thereof to any person
or circumstance is determined to be invalid or unenforceable, the remainder of this Agreement (and the
application of the affected provision to any other person or circumstance) will remain valid and
enforceable, except that if a provision of this Agreement that is written to apply to both parties is
determined to be invalid or unenforceable as to one party but not as to the other, that provision will be
void as to both parties.
15.11 Construction. This Agreement was negotiated between sophisticated parties, and its
provisions are to be construed without regard to which party first drafted or proposed them.
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15.12 Counterparts. This Agreement may be executed in counterparts, each of which will
constitute an original and all of which taken together will constitute one and the same instrument.
15.13 Effect on City's Governmental Rights and Powers. City is entering into this Agreement
in its proprietary capacity only, and nothing in this Agreement shall be construed to constitute a waiver
or exercise of the City's governmental rights and powers, all of which are hereby reserved.
Signed by the parties on the dates shown below:
City:
City of Santa Ana
By:
Print Name: _
Title:
Date:
ATTEST:
Print Name: _
Title:
Date:
AS TO FORM
Attorney
All Vision:
All Vision, LLC
a Delaware limited liability company
by:
Print Name:
Title:
Date:
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