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HomeMy WebLinkAbout25A - AGMT - OUTDOOR ADVERTISINGREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: NOVEMBER 18, 2014 TITLE: OUTDOOR ADVERTISING CONCESSION AGREEMENT WITH ALL VISION LLC (STRATEGIC PLAN NOS. 4,3; 6, 1; 3,4) CITY MANA ER CLERK OF COUNCIL USE ONLY: 022a *AM#_W ❑ As Recommended ❑ As Amended ❑ Ordinance on 10 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO n4LZlo , oe,(3111° FILE NUMBER g��rrr1� RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute a concession agreement with All Vision LLC ("All Vision ") for a period of five years, subject to non - substantive changes approved by the City Manager and City Attorney. Any services provided by All Vision LLC will be paid through a percentage of revenues from any funding advertising sales. 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. 25A -1 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 25A -2 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. 25A -3 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 25A -4 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 25A -5 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). 2 25A -6 "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. 3 25A -7 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. 4 25A -8 (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. 5 25A -9 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 6 25A -10 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 7 25A -11 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 8 25A -12 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, 0 25A -13 (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 10 25A -14 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. 11 25A -15 (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 Ffa 25A -16 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). 13 25A -17 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. 14 25A -18 (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. 15 25A -19 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). 16 25A -20 (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 17 25A -21 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. Ftd 25A -22 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. 19 25A -23 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: 20 25A -24 CORRESPONDENCE ITEM 25A 25A -25 562- 470 -6666 ' 02:52:26 p.m. 11 -14 -2014 2/2 2G t� tlJCY ly CALIFORNIA STATE fJUT S Ah�T� ;��) ADVERTISING ASSQCI I F OF f;nul NC i November 14, 2014 vid Cavazos 'ity Manager anta Ana Center Plaza, 8th Floor a, CA 92702 Cavazos, 1215 K Street, Suite 1500 Sacramento, CA 95814 (916) 446 -7843 Fax(916)442.5961 www.CSOAA.com Via Fax Fax (714) 647 -6954 i The California State Outdoor Advertising Association ( CSOAA) is a California association of bijlboard companies. We represent approximately ninety percent of all billboards in California. I understand that there will be an item on the November 18, 2014 City Council meeting regarding Allvision. I respectively ask that you seek to table this issue until our State Association can meet and d cuss this issue with you. I would like to discuss how and why other cities have not approved this type oP an agreement with Allvision, over staff recommendations, and why the city would be forfeiting millions in proceeds if they did approve the agreement. I would also like to bring a couple of my members to discuss what happened in these other cities, inFluding Santa Clarita wherein Allvision's proposal has resulted in an approximate 2 million dollar loss to;the City. To be clear, I believe the City of Santa Ana should hire an outdoor advertising consultant if thpt is their pleasure, and there are several good ones that are used by various cities, but it would be wise toltable this issue so that we can discuss the issues surrounding Allvision. Therefore, my request is simple. Please table this item until you and some of my members can aet so that we can relay some facts and documents to your Staff so that they can conduct some important additional research prior to making this important decision? I think this is a reasonable proach so that no one is later embarrassed or caught off guard. If after your research, you choose to cinfinue with recommending Allvision that would be your choice, as it would be for others to oppose it. However, I will always be grateful for the opportunity that you have provided to the CSOAA prior to moving forward on this issue. S�ncerely, ri�ark A. Kudler 000AA President ec. Mr. Dennis Loper CSOAA Executive Director The Honorable Mayor and City Co2fiA-26 Mitre - Ramirez, Norma From: Huizar, Maria Sent: Tuesday, November 18, 2014 9:48 AM e7 To: Cavazos, David; Haluza, Karen; Carvalho, Sonia R. r— `-1 � Cc: Mitre - Ramirez, Norma; Trujillo, Rose Ann; Orozco, Norma r*i-f Subject: FW: OUTDOOR ADVERTISING PROPOSAL C t Attachments: Santa Ana Ltr - T boydston[4].pdf ) co Entered into the record. 1 From: Cathie Piacentini [m a ilto•cathieig c csgmail net] Sent: Tuesday, November 18, 2014 9:44 AM To: Pulido, Miguel; Sarmiento, Vince; Martinez, Michele; Amezcua, Angelica; Benavides, David; Reyna, Roman; Tinajero, Sal; Cavazos, David; Huizar, Maria Subject: OUTDOOR ADVERTISING PROPOSAL PLEASE SEE ATTACHED LETTER FROM TimBen Boydston, Councilman, Santa Clarita. Cathie Piacentini Capitol Strategies Group 1215 K Street, Suite 1500 Sacramento, Ca 95814 (916) 446 -7843 Fax: (916) 442 -5961 This email has been scanned by the Boundary Defense for Email Security System. For more information please visit http://www.apptix.com/email-security/antispam-virL,s 25A -27 November 15, 2014 Mayor Miguel Pulido and Councilmembers Santa Ana City Council 20 Civic Center Plaza n P.O. Box 1988, M31 Santa Ana, CA 92701 rn k Sent via email: citycouneil @santa - ana.org ° c — r7- Dear Honorable Mayor Pulido & Councilmembers, I understand that you are considering creating a revenue stream for your city using oil (Y. ar advertising. As a Santa Clarita City Councilmember who has recently gone through ac tentigs ordinance adoption, referendum process and ballot measure that was ultimately defeated by our residents, I wish to share my experience with you about one of your potential consultants, Allvision. The proposal before our Council was brought by the Metropolitan Transportation Agency, which uses Allvision to handle its outdoor advertising. MTA/Allvision would take down a significant number of billboards along the railroad right -of -way in exchange for building three digital billboards along the I -5 and CA -14 freeways and a 50 -year exclusivity on the operation of those boards. Highlighted in their presentation was the possibility that the city could make millions of dollars from ad revenue, which would have been split between Metro, Allvision and the City, with the City responsible for the lion's share of expenses. The Allvision company hired lobbyists who harassed me and my supporters, in an aggressive and unnecessary manner. They also falsified documents given to the State saying that a billboard site was zoned as commercial when in reality it was actually open space. After a majority of the Council approved the proposal, a referendum process began, which successfully gathered 18,000 signatures, forcing the council to either retract the ordinance or put it to a vote of the people. That election took place Nov. 4 and Measure S, as it was named, was defeated by a majority vote of 56 percent to 44 percent of the voters. While this may sound like a perfect example of democracy at work, the process was fraught with conflict, deception and violence, all of which was traced back to Allvision through their expenditures, acting as an agent of Metro. The Council was informed by Allvision that MTA could rebuild billboards on its property, even though this is against California law (5405.6 Business and Professional Code, enacted Oct. 2001). When this was brought to their attention, Allvision insisted that the signs could be rebuilt. It wasn't until the California State Outdoor Advertising Association provided a letter from Senator Richard Polanco, (who wrote SB 919 that resulted in the law), as well as an analysis from the Legislative Council informing the City that Allvision finally agreed their assertion was wrong. Repeated attempts by the public to examine and have input on the proposal were rejected out of hand. "Public" input was only solicited at private, membership -based meetings, such as the Chamber of Commerce. No public town hall forums were ever held. Representatives of the 25A -28 billboard companies asked to have the process slowed down so that they could bring in competing offers for our City, but the offers were ignored. When the referendum process started, Allvision sent "blockers" to try and stop signature gatherers from talking to people. Blockers followed and harassed both petitioners and signers with loud verbal confrontations or placed themselves between the petitioner and signers. Some physical altercations occurred, resulting in arrests and more than one petitioner sought medical attention for injuries. In the 30 -day petition period, Allvision spent $120,000 to pay the blockers to take away the Constitutional right of voters to petition their government. I was outraged that a company that we might be doing business with would act in such a manner. The Inspector General of Metro investigated the claims of abuse by the blockers and on April 24, the blockers were told to stop interfering with the signature- gathering process. They ignored the order, and the abuse continued into May, when the petitions were turned in. The City incurred additional sheriff's expenses of time responding to these incidents and for additional patrols to ward off potential confrontations. When the issue was placed on the ballot, Allvision completely financed the "Yes on S" campaign, for an amount of $164,000, producing mailers and ads that were placed on radio, newspapers, and various websites in Santa Clarita. The mailers were misleading and sometimes patently false. On November 4, the people spoke and the Allvision deal was killed. This issue turned neighbor against neighbor and destroyed the trust many people had in their government. I hope that Santa Ana does not invite this predatory group into their community, and that you benefit from our experience. I encourage you look carefully at all possible partners, and if you choose to move forward with an outdoor advertising contract, let competition work to give your citizens the best deal which they have had input on. If you have any questions, please feel free to contact me In the Peoples Service, TimBen Boydston Councilman (not writing on behalf of the Council as a whole) timbenboydston@yahoo.com 25A -29 Mitre - Ramirez, Norma From: Sent: Cc: Subject: Attachments: Categories: Huizar, Maria Tuesday, November 18, 2014 11:19 AM Cavazos, David; Haluza, Karen; Carvalho, Sonia R.; Lawrence, Mark; Flores, Alma; Garcia, Jorge (CMO); Foulkes, Matt C7 N CSOAA letter to the City Council re Agenda Item 25F r— • 1 CSOAA Letter to the Santa Ana Mayor and Council re Allvision - 341'18 -1 :pdf �x ':� –n Correspondence Correspondence received and entered into the record. c:) -- °,-t J — From: Mark K (ma!Ito Ito: mark. kftbulletindisplays.com] Sent: Tuesday, November 18, 2014 10:53 AM To: Pulido, Miguel; Sarmiento, Vince; Martinez, Michele; Amezcua, Angelica; Benavides, David; Reyna, Roman; Tinajero, Sal Cc: Cavazos, David; Huizar, Maria Subject: CSOAA letter to the City Council re Agenda Item 25F on the City Council Agenda for Nov 18 2014 Honorable Mayor Miguel Pulido and City Council, I have attached a letter for your consideration. Thank You, Mark A. Kudler President i 'CRairiveOvfgwn AimEttrisimP 3127 E. South Street, Ste. B Long Beach, CA 90805 (310) BULLETIN [285.53841 (562) 470 -6680 * Fax (562) 470 -6686 www.Bu Ileti nDisp lays. co m Mark.KAB ulletinD is plays.co m Notice: Please take notice that the information contained in this email is intended only for the persons or entities named above. This message may contain confidential and legally privileged communications. If you are not the intended recipient, please be notified that you have this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us Immediately by e -mail and delete the original email. Thank you. 25AY 30 I Hk1 CALIFORNIA STATE OUTDO, ADVERTISING ASSOCIATI 1215 K Street, Suite 1500 Sacramento, CA 95814 (916) 446.7843 1 Fax (916) 442 -5961 www.CSOAA.com Sent Via Email November 18, 2014 Mayor Miguel Pulido and City Council City of Santa Ana 20 Civic Center Plaza, 8th Floor Santa Ana, CA 92702 RE: Item 25F on City Council Agenda for November 18, 2014 Dear Honorable Mayor Pulido and City Council, N PlJb7 }g 4 27 C �LFRK0,nr ,'n The California State Outdoor Advertising Association ( CSOAA) is a California association of billboard companies. We represent approximately ninety percent of all billboards in California. Item 25F on the November 18, 2014 City Council meeting is in reference to a potential contract between the City of Santa Ana and a private company named Allvision. We respectively request that you: 1. Pull the item from the Consent Calendar 2. Table this issue until our State Association can meet and discuss this issue with you and the rest of the City Council. We would like to discuss how the city would be forfeiting millions in proceeds if they approve the agreement and why cities after cities have not approved this type of an agreement with Allvision, despite staff recommendations. We would also like to bring to your attention what happened in Santa Clarita wherein Allvision's proposal has resulted in an approximate $2 million cost to the City. To be clear, we are not opposed to the City of Santa Ana hiring an outdoor advertising consultant if that is your pleasure, and there are several exceptional ones that are used by various cities. However, we ask that you table this item so that we can discuss the concerns about this contract and Allvision's proposed roles. Therefore, our request is simple. Please continue this item from further council action until CSOAA members can have an opportunity to meet with you, councilmembers and city staff to share with you the policy and legal concerns that are involved in this proposed agenda item. On behalf of our association members, we thank you in advance for your consideration to table Item 25F until we have a chance to meet with you. Sincerelv, Mark A. Kudler CSOAA President CC. City Manager David Cavazos City Clerk Maria D. Huizar CSOAA Executive Director, Mr, Dennis Loper CSOAA Members 25A -31 Mitre - Ramirez, Norma From: Huizar, Maria Sent: Tuesday, November 18, 2014 2:11 PM To: Mitre - Ramirez, Norma Cc: Trujillo, Rose Ann; Orozco, Norma Subject: FW: City Council Agenda Item No. 25F - Advertising Management Services Attachments: Santa Ana - City Clerk Protest Letter.pdf Norma, please enter into the record. Thank you. From: Steve Shinn [mai Ito: sshinn()TRAdvisors com] Sent: Tuesday, November 18, 2014 2:08 PM To: Huizar, Maria Agreement with All Vision, LLC for Outdoor Cc: !City Council; Haluza, Karen; Pezeshkpour, Ali; Hodge, Ryan Subject: City Council Agenda Item No. 25F - Agreement with All Vision, LLC for Outdoor Advertising Management Services Ms. Huizar, Attached is our letter regarding the above subject item to be considered at tonight's city council meeting. I trust this will be distributed to the council members prior to the meeting and will be part of the public record. I'm not able to attend the meeting in person, but would be available to meet with city representatives in the near future. Regards, Steve Steve Shinn I Managing Director TRA 1 503 Redwood Avenue, Corte Madera, CA 94925 Main: +1415 309 0503 I Fax: +1 017 482 0210 www.TRAdvisors.com i 25A1 -32 rR4 November 18, 2014 Maria Hulzar Clerk of the Council City of Santa Ana ( 'City") 20 Civic Center Plaza, 8" Floor Santa Ana, CA 92702 Re: City Council Agenda Item No. 25F Agreement with All Vision, LLC for Outdoor Advertising Management Services Dear Ms. Huizar, The purpose of this letter is to express our concerns with the staff recommendation and the proposed agreement for the above referenced Item. As noted in the staff report, the City received two proposals in response to the Request for Proposal (RFP) for Outdoor Advertising Management Services Issued on May 30, 2014. I am the Managing Director for TR Advisors, LLC, who submitted the other proposal in response to the RFP. We have a number of issues with the proposed agreement: The proposed agreement provides that All Vision may develop, construct and maintain signs on City property. This right to be granted to All Vision directly contradicts the RFP. The RFP states in the Introduction that the successful proposer "may not be directly affiliated with any company whose primary business is the construction or operation of outdoor advertising products." The proposed agreement, with an expanded scope now allowing this dual role of independent consultant and interested developer, cannot be the product of this solicitation. The RFP, as issued, seeks an independent consultant to advise the City and work solely on its behalf in the policies, plans and management for its outdoor advertising, program. TRA proposed to fill only that advisory role and was deemed qualified. We stand ready and able to negotiate a contract based on our response to this RFP. If the City, despite the potential conflicts, now wants both an advisor and developer, a new RFP must be issued to open the development piece to the competitive process. To now allow the proposer to develop sites not only flies in the face of the independent advisory role but also introduces an opportunity specifically excluded from the RFP and never opened to full competition. The dual role presents a potential conflict of interest which the RFP, as issued, sought to avoid. The City is allowing All Vision to provide consulting services which gives it a significant role in setting policy for an Outdoor Advertising Strategic Plan, while at the same time granting All Vision the right to develop sites per Its own recommendations. o This would violate Section 10365.5 of the California Public Contract Code which states: "No contractor who has been awarded a consulting services agreement may submit a bid for, nor be awarded a contract for the provision of services, procurement of goods or supplies or any other related action which is required, suggested or otherwise deemed appropriate in the end product of the original consulting services contract." Although this code is applicable to State agencies, the wisdom of this good government policy should be followed. 'N4v±u. V"d l� LL=SGli.: +i G. 25A -33 TRA o The type of conflict -of- interest code required for all public agencies under the California Political Reform Act appears to require that All Vision, because it will participate in making governmental decisions, must submit a disclosure Form 700 Statement of Economic Interests that may give rise to any conflict of interest in performing the full scope of this proposed contract. To our knowledge, no such disclosure has been made. For the above stated reasons, the City should: (a) reject the proposed agreement with All Vision as contrary to the RFP and negotiate a contract with TRA consistent with Its response; (b) reject the proposed contract with All Vision on the basis that it presents a potential conflict of interest; or (c) issue a new RFP to reflect the desired dual role and to open both opportunities to the competitive process. Thank you for your consideration. Tly, hinn Managing Director CC; City Council Members Ryan 0, Hodge, Assistant City Attorney Karen Haluza, Interim Executive Director Planning and Building Manager Ali Pezeshkpour, Assistant Planner I 25A -34 Mitre - Ramirez, Norma From: Huizar, Maria Sent: Tuesday, November 18, 2014 8:35 PM To: Mitre - Ramirez, Norma Cc: Trujillo, Rose Ann; Orozco, Norma Subject: FW: Santa Ana City Council Agenda Item Vision, LLC No. 25F -- Proposed Agreement with All Attachments: Canon DEE2BB_Exchange_11 -18 -2014 16- 58- 51.pdf Please enter into the record. From: Ruga, Dylan [mailto:druaa(&steotoe com] Sent: Tuesday, November 18, 2014 5:21 PM To: Carvalho, Sonia R.; Hodge, Ryan; scarvalho(&bbklaw.com; Huizar, Maria Cc: 'Mark Kudler' (mark.kcabbulletindisplays com) (mark, kLabulletindisplays com) Subject: Santa Ana City Council Agenda Item No. 25F -- Proposed Agreement with All Vision, LLC Dear Ms. Carvalho, Ms. Huizar, and Mr. Hodge, Please see the attached letter on behalf of the California State Outdoor Advertising Association with respect to City Council Agenda Item No. 25F. Thank you. Dylan Ruga Dylan Ruga Partner druaa aAsteotoe.com Steptoe +1310 734 3228 direct +1 310 734 3229 fax Steptoe & Johnson LLP 2121 Avenue of the Stars Suite 2800 Los Angeles, CA 90067 www.steptoe.com This message and any attached documents contain information from the law firm Steptoe & Johnson LLP that may be confidential and /or privileged. If you are not the intended recipient, please do not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the sender immediately by reply e-mail and then delete this message. 25A135 Dylen Ruga 310 734 3228 druga@steptoe.com 2121 Avenue of the Stars Suite 2800 Los Angeles, CA 90067 310 734 3200 main www,steptoe.com November 18, 2014 Via HAND DELIVERY Stemoe STEPTOE & JOHNSON LLP Sonia R. Carvalho The Honorable City Council Members City Attorney 20 Civic Center Plaza 20 Civic Center Plaza Santa Ana, California 92701 Santa Ana, California 92701 Re: City Council Agenda for November 18, 2014 Consent Agenda Item No. 25F Dear Ms. Carvalho and Hon. City Council Members, We write on behalf of the California State Outdoor Advertising Association to urge City Council to reject the proposed Outdoor Advertising Service Agreement (the "Agreement ") with All Vision, LLC ( "AV "), which is on the City Council's Consent Agenda for November 18, 2014 as Item No. 25F. Simply put, the Agreement is a bad deal for the City and will expose it to significant litigation risk, given the myriad procedural and substantive shortcomings in the procurement process and the Agreement itself. First, the Agreement was the result of an unusually —and unnecessarily —short RFP process. The RFP was issued on May 30, 2014 and the submittal deadline was on June 12, 2014, a mere 9 business days later. As you know, Section 2 -806 of the Santa Ana Municipal Code requires RFPs to be issued "a reasonable time prior to the date set forth therein for the opening of bids The extremely short timeframe here was not reasonable, particularly given the lack of an emergency or other exigency requiring a shortened bidding process. Second, the Agreement allows AV to deduct all "Direct Expenses" and "Costs of Construction and Maintenance" before the City sees a dime from revenue generated by billboards on City property. The definitions of these terms are purposefully vague and provide AV with every incentive to run up the costs of the projects rather than minimize them. For this 25A -36 Ms. Carvalho and Hon. City Council Members November 18, 2014 Page 2 Steptoe 9TLPi0E d JONNION LV reason, other cities — including Buena Park, Pomona and Fullerton —have rejected similar proposals by AV. Third, the Agreement reveals that AV will control all billboards on City property for 30 years. This lengthy encumbrance of City property is unnecessary and a bad deal for City taxpayers. Indeed, the length of the Agreement's term itself violates Section 1301 of the Santa Ana Charter, which states that franchises granted by the City "shall not exceed twenty -five (25) years," Accordingly, there is no good reason to have such a long term in the contemplated Site Agreements. Fourth, the Agreement impermissibly delegates the City's authority to AV by failing to provide adequate safeguards to prevent abuse of third - parties' free speech rights. Specifically, the Agreement contemplates that AV "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." See Ag'mt at § 5.2(e). This delegation of authority flies in the face of the RFP, which specifically states that the successful proposer "may not be directly affiliated with any company whose primary business is the construction or operation of outdoor advertising products." Signing the Agreement would allow AV —a Caltrans- licensed sign operator —to stifle competition by designing a Strategic Plan that heavily regulates or prohibits altogether competing billboards on private property. The City has no safeguards in place —much less adequate ones —to prevent this potential misconduct. Kugler v. Yocum, 69 Cal. 2d 371, 381 (1968) (explaining that any delegation of authority must be accompanied by "safeguards adequate to prevent its abuse. "). Fifth, the Agreement invites future litigation regarding the constitutionality of the City's regulation of billboards and its potential monopoly over any off -site billboard advertising. According to the Agreement, if the City adopts AV's proposed Strategic Plan, then all new billboards on City property will be constructed by AV and belong to the City. Unless the City changes current law to similarly and liberally allow off -site billboards on private property, the City will have established itself and AV as monopolists over, and censors of, an entire medium of commercial advertising. Simply put, the City cannot decide that off -site commercial signs are permissible on City property and then forbid anyone else from speaking unless they pay the City. If free speech in the form of advertising on billboards is allowed, then all persons (not just the City) must have an opportunity to participate in the dialogue. Finally, the City should not be fooled into believing that AV merely is a consultant that wishes to assist the City with creating a well thought -out, balanced outdoor advertising strategic plan. To the contrary, as noted above, AV is a Caltrans - licensed sign operator that is offering its "consulting" services gratis so that it can generate massive revenues in the construction and operation of City -owned signs. Said another way, AV's economic interest presents a clear conflict of interest with respect to its consulting services. The City should unbundle these services so that the outdoor advertising strategic plan is balanced and not infected by a private corporation's economic motive. 25A -37 Ms. Carvalho and Hon. City Council Members November 18, 2014 Page 3 Steptoe Ii A PTO' I JOHNSON LIP For each of these reasons, we urge City Council to reject the Agreement altogether. At a minimum, City Council should remove the Agreement from the Consent List and put the matter over to another time when the issues addressed in this letter can be debated and analyzed. It almost goes without saying that City Council cannot responsibly bind its citizens to an agreement governing free expression for the next third of a century without an open hearing and vigorous debate. Should City Council choose to ignore this letter and approve the Agreement without revision, the California State Outdoor Advertising Association reserves all of its rights, remedies and claims with respect to a legal challenge of the Agreement and the associated procurement process. ins _ Dylan Ruga 25A -38