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HomeMy WebLinkAboutRA 002-2010 Marketing Agreement Branch & Smith0 PR 1! I 1F iPR �1 &C) is MARKETING AGREEMENT BETWEEN THE ATASCADERO COMMUNITY REDEVELOPMENT AGENCY OF AND CLIFFORD BRANCH, TRUSTEE OF THE CLIFFORD BRANCH TRUST DATED JANUARY 11, 2006 AS TO AN UNDIVIDED 50% AND JAMES E SMITH, TRUSTEE OF THE JAMES E SMITH LAW FIRM 401K PROFIT SHARING PLAN AS TO AN UNDIVIDED 50% This Agreement, ("Agreement") is made on March 23, 2010, by and between the Atascadero Community Redevelopment Agency ("Agency") and Clifford Branch, Trustee of the Clifford Branch Trust dated January 11, 2006 as to an undivided 50% ("Branch") and James E Smith, Trustee of the James E Smith Law Firm 401K Profit Sharing Plan as to an undivided 50% ("Smith") Branch and Smith will be collectively referred to in this Agreement as "Branch/Smith" The Agency and Branch/Smith will be collectively referred to in this Agreement as the "Parties" Section 1. Termination of Marketing Agreement of August 12, 2003 On May 12, 2009, the Agency adopted Resolution No RA 2009-1 approving the transfer of a Marketing Agreement that was entered into by the Agency with the Carlton LLC on August 12, 2003, a true copy of said Resolution is attached as Exhibit 1 to this Agreement and hereby incorporated by reference The Marketing Agreement of August 12, 2003 is attached to the Resolution as Exhibit A. The transfer approved by the Resolution was from the Carlton Hotel Investments, LLC to Clifford Branch, Trustee of the Clifford Branch Trust dated January 11, 2006 as to an undivided 50% and James E Smith, Trustee of the James E Smith Law Firm 401 K Profit Sharing Plan as to an undivided 50% The transfer was approved by the Agency pursuant to Paragraph 4 of the Agreement. The Parties hereby agree to terminate the Marketing Agreement of August 12, 2003 which termination shall become effective upon the execution of this CAM #4836-4190-2853 v1 1 Agreement by all parties Section 2. Billboards Pursuant to the terms of the Marketing Agreement of August 12, 2003, Carlton Hotel Investments, LLC obtained sites, all entitlements including but not limited to State and local permits, and provided for the construction, maintenance and ownership and/or leasehold of three highway -advertising billboards designated as Billboards 1, 2 and 3 Each billboard has two faces, a northbound face and southbound face Each billboard face is a maximum of fourteen (14) feet in height, forty (40) feet in width and the structure is a maximum of thirty-five (35) feet in height and these dimension restrictions shall also apply to this Agreement. The three Billboards are described as follows A. Billboard # 1 was constructed on property located at 2650 EI Camino Real, Atascadero, CA (APN 049-201-014) B Billboard #2 was constructed along State Highway 10 1 in the southerly portion of the City on property located at 8981 La Lina Street, Atascadero, CA (APN 056-051-029) C Billboard #3 was constructed along State Highway 101 in the northern portion of the City on property located at 1516 EI Camino Real Atascadero, CA (APN049-131-073) Section 3. Term of Agreement A. Initial Term The initial term of this Agreement shall be for a period of March 23, 2010 to CAM #4836-4190-2853 v1 2 August 12, 2018 (the "Initial Term") B Options to Extend Initial Term Branch/Smith shall have the option to extend the Initial Term for two (2) successive terms of ten (10) years each C Termination of Agreement This Agreement may be terminated for the following reasons 1 Upon loss of State entitlements for any Billboards If Branch/Smith lose State entitlements for any of the billboards, then this Agreement shall terminate as to each Billboard for which State entitlement is lost. 2 Upon written agreement by the Parties 3 Upon order or judgment of a court of competent jurisdiction Section 4. Status of Billboards Upon Expiration of Term of Agreement or Upon Termination of Agreement. A. Upon the expiration or termination of this Agreement, Branch/Smith, at their sole expense, shall remove the Billboards, including the Billboard faces and any supporting structures, lighting and other improvements, in their entirety, no later than 90 days following said expiration or termination B The Parties, at their sole discretion, may enter into a new Marketing Agreement upon the expiration or termination of this Agreement provided that the ,-�\i CAM #4836-4190-2853 v1 3 Parties are able to agree upon the terms of a new Agreement. Nothing in this Agreement requires any of the Parties to enter into a new Agreement upon the expiration or termination of this Agreement. Section 5. Maintenance of Billboard Faces and Structure The Billboard Faces and Structure shall be maintained at all times in good condition, reasonable wear and tear excepted, by Branch/Smith at their sole expense Section 6. Restrictions on Advertising A. Branch/Smith agree not to allow any advertising of Tobacco, Pornography, Profanity, and Alcoholic Beverages (except Wine, Winery Tasting Rooms or Vineyards) on any sign face Branch/Smith also agree not to advertise any other city or county, other that the City of Atascadero, without the prior written approval of the Agency except that Branch/Smith may advertise businesses in other cities or counties B Agency agrees not to sell any advertising space on any of the billboards without the prior written approval of Branch/Smith Section 7. Lighting of Billboards. Any illumination of signs on the Billboards shall be installed under the sign, diverted upward and shall be confined to the billboard face and shall not cause any glare to vehicular traffic or other properties All costs of illumination shall be paid by Branch/Smith Illumination systems shall be kept in good working order at least for dusk -to -midnight illumination However, Branch/Smith may, at their sole discretion, CAM #4836-4190-2853 v1 4 \I illuminate the signs on the Billboards after midnight. Section 8. Leases with Landowners Branch/Smith agree that the leases with the Landowners where the Billboards are located shall include the terms of this Section A. No Obstructions to View of Billboards The Landowners shall not allow any obstructions to exist which hinder the full view of the Billboards from both the northbound and southbound lanes of Highway 101 including, but not limited to, any trees, vegetation, structures or any other obstructions B Access The Landowners shall allow Branch/Smith access to each Billboard as necessary for- (1) the repair and maintenance of the billboards, (2) to trim any existing trees or other vegetation that may block the view of the billboards from any lane of Highway 101, and (3) Access to Branch/Smith and the Agency for the installation of billboard advertising materials Section 9. Assignment or Transfer Branch/Smith shall not assign or transfer any interest in this Agreement, whether by assignment or otherwise, to any person without the prior express written consent of Agency, which consent shall not be unreasonably withheld, conditioned or delayed CAM #4836-4190-2853 v1 5 Section 10. Indemnification A. Branch/Smith shall indemnify, defend, and hold harmless the Agency, its officers, officials, agents and employees from and against any and all claims, damages, liability costs, losses, and expenses including, without limitation, to court costs and reasonable attorney's fees arising out of or in connection with the negligent performance of work hereunder or its negligent failure to comply with any of its obligations contained in this Agreement by Branch/Smith, or their employees, agents, contractors or representatives, except for any loss or damage which was caused by the negligence or willful misconduct of the Agency B The Agency shall indemnify, defend, and hold harmless the Smith/Branch, its officers, officials, agents and employees and the Landowners, from and against any and all claims, damages, liability costs, losses, and expenses including, without limitation, to court costs and reasonable attorney's fees arising out of or in connection with the negligent performance of work hereunder or its negligent failure to comply with any of its obligations contained in this Agreement by the Agency, or its employees, agents, contractors or representatives, except for any loss or damage which was caused by the negligence or willful misconduct of the Smith/Branch Section 11. Space for Agency on Billboards Branch/Smith agree that the Agency shall have the exclusive use of a portion of the six existing billboard faces at the three existing locations, at all times during the course of the Agreement, and at no cost to the Agency, except as provided by this Agreement, which portion shall consist of an area 14' high and 8' wide on these six CAM #4836-4190-2853 v1 6 faces of the Billboards, under the following terms and conditions A. Branch/Smith shall pay for the cost for printing the vinyl art work and for installing the vinyl on the Billboard face, so long as the Agency provides the suitable electronic artwork 45 days in advance to Branch/Smith and so long as Branch/Smith can install the City's artwork simultaneously with the change of the existing artwork on the adjoining 14' X 32' space The City shall have the right to independently change the messages within the 14' X8' area at anytime at its own expense, so long as it does not harm any message in the larger area In no event shall Branch/Smith be responsible for the cost of the creation of Agency art, or the accuracy of the message contained in the Agency art or message Branch/Smith agree to provide the Agency with at least 90 days written notice of any proposed change out of any messages A sample billboard depicting the appearance of the 14' X 8' area, for illustration purposes only and not restricting the content of the message, is shown in the simulated photograph attached hereto as Exhibit 2 B The Agency shall have editorial and artistic control over any message placed in the 14' X 8' area, without approval from Branch/Smith, so long as the Agency message is limited to text copy, maps, drawings, City Logo, icons, artwork, images, and/or renderings C The Agency may include in the 14' X 8' areas photographs, hot/glow or fluorescent colors only with the prior written approval by Branch/Smith D Any and all messages placed on the billboards by the Agency shall be contained within the boundaries of the 14'X 8' space CAM #4836-4190-2853 v1 7 E The Agency must use this space exclusively to promote the Agency, the City of Atascadero and downtown Atascadero Section 12. Advertisements by Entities with Multiple Locations. Branch/Smith agree that advertisements by entities with multiple locations shall include the following information if the entity has a business located in Atascadero A. Instructions to take the proper exit off the 101 freeway to access the business in Atascadero, or B The Street location or other information about "business location" in Atascadero Section 13. Atascadero Businesses A. Carlton Hotel During the term of this Agreement, The Carlton Hotel shall have the first right of refusal to rent any of the six billboard faces described in this Agreement. Furthermore, The Carlton shall have the right to lease any billboard face at the Rate Card price, less 20%, so long as the Carlton Hotel gives Branch/Smith written notice 90 (ninety) days prior to the expiration of any existing contract with any existing advertiser The termination dates of all existing contracts on the billboards shall be available during normal business hours B Other Atascadero Hotels and Businesses During the term of this Agreement, and providing that the Carlton Hotel has not exercised its First Right of Refusal in the above paragraph, then any other Atascadero Hotel, Motel and/or B&B CAM #4836-4190-2853 v1 8 (herein "Hotel") will have first right of refusal to lease any of the six billboard faces at the Rate Card price, less 20%, so long as they give Branch/Smith written notice 90 (ninety) days prior to the expiration of any existing contract with an existing advertiser In the event that neither the Carlton or any other Hotel wants any billboard face, then all other Atascadero Businesses shall have the first right of refusal to lease any of the six billboard faces at the Rate Card price, less 20%, so long as they give Branch/Smith notice 90 (ninety) days prior to the expiration of any existing contract. "Local Businesses" shall be defined as any business with an Atascadero Address and an Atascadero Business License The termination dates of existing contracts on all Billboards shall be available during normal business hours C Published Rate Card At least once per year, Branch/Smith shall publish a rate card, in writing, listing all the costs and details for purchasing billboard space on any of the six billboards in the Agreement (herein "Rate Card") The Rate Card shall be available during normal business hours by contacting Branch/Smith by phone or in writing At the Agency's Option, Branch/Smith shall distribute the Rate Card, at least once per year, by mailing the Rate Card along with the information contained in the Agreement (pursuant to the first right of refusal and discount information) to every business with a City of Atascadero address The Agency shall notify Branch/Smith in writing to exercise this option and shall provide the mailing labels for every business with an Atascadero address at no cost. Branch/Smith shall be able to list their phone number on all Billboards for obtaining the Rate Card information Section 14. Right to Advertise -,, ' CAM #4836-4190-2853 v1 9 Branch/Smith shall have the right to work directly with all prospective advertisers, or at Branch/Smith's sole option, with the advertiser's agency or agent, and shall have the right to accept advertising from non-Atascadero advertisers on all six Billboard faces subject to the terms and conditions of this Agreement. Section 15. Notices. A. All written notices required or permitted to be given under this Agreement will be deemed made when received by the other party at its respective address as follows To Agency- Atascadero Community Redevelopment Agency 6907 EI Camino Real Atascadero, California 93422 Attention Executive Director Telephone No 805-470-3400 Fax No 805-461-7612 Copy To Agency Counsel Atascadero Community Redevelopment Agency 6907 EI Camino Real Atascadero, California 93422 To Branch/Smith Cliff Branch 755 Santa Rosa Street, Suite 310 San Luis Obispo, CA 93401 Telephone No 805-544-3030 Fax No 805-544-1840 B Notice will be deemed effective on the date personally delivered or transmitted by facsimile If the notice is mailed, notice will be deemed given three days after deposit of the same in the custody of the United States Postal Service, postage prepaid, for first class delivery, or upon delivery if using a major courier service with tracking capabilities CAM #4836-4190-2853 v1 10 C Any party may change its notice information by giving notice to the other party in compliance with this section Section 16. General Provisions. A. Authority to Execute Each party represents and warrants that all necessary action has been taken by such party to authorize the undersigned to execute this Agreement and to bind it to the performance of its obligations hereunder B Binding Effect. This Agreement is binding upon the heirs, executors, administrators, transferees, successors and assigns of the Parties If Agency is not in existence at the time of the expiration or termination of this Agreement, then the City of Atascadero is hereby designated as the successor to the Agency for purposes of this Agreement unless the Agency gives notice to Branch/Smith of a different successor C Entire Agreement. This Agreement, including the attached Exhibit 1, is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed in this Agreement and supersedes all other agreements or understandings, whether oral or written, between Parties prior to the execution of this Agreement. D Modification of Agreement. No amendment to or modification of this Agreement will be valid unless made in a writing executed by the Parties The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver will be void 1 CAM #4836-4190-2853 v1 11 E Facsimile Signatures Amendments to this Agreement will be considered executed when the signature of a party is delivered by facsimile transmission Such facsimile signature will have the same effect as an original signature F Waiver Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement will not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement will not constitute a waiver of any other provision, or a waiver of any subsequent breach or violation of any provision of this Agreement. G Interpretation This Agreement will be interpreted, construed and governed according to the laws of the State of California Each party has had the opportunity to review this Agreement with legal counsel The Agreement will be construed simply, as a whole, and in accordance with its fair meaning It will not be interpreted strictly for or against either party H Severability If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement will not be affected and the Agreement will be read and construed without the invalid, void or unenforceable provision I Venue In the event of litigation between the parties, venue will be in the San Luis Obispo County Superior Court. \CAM #4836-4190-2853 v1 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective as of March 23, 2010 ATASCADERO COMMUNITY REDEVELOPMENT AGENCY WJ By Wade McKinney, Executive P irector APPROVED AS TO FORM i Brian A. Pierik, Agency Counsel Clifford Branch mith "\ CAM #4836-4190-2853 v1 13 CITY OFATAsCADERO Brian Pierik, Attorney at Law Burke, Williams & Sorensen, LLP 2310 East Ponderosa Drive, Suite 25 Camarillo, California 93010-4747 CERTIFICATION I, Marcia McClure Torgerson, City Clerk of the City of Atascadero, hereby certify that the foregoing is a true and correct copy of Resolution No. RA 2009-001, adopted by the Atascadero Community Redevelopment Agency at a regular meeting thereof held on May 12, 2009 DATED- May 14, 2009 Marcia McClure Torgerson, C.M.C. City Clerk City of Atascadero, California FWANNks] \' 6907 EL CAMINO REAL ATASCADERO, CA 93422 (805) 461-5000 FAX (805) 461-7612 RESOLUTION NO RA 2009-001 A RESOLUTION OF THE CITY OF ATASCADERO COMMUNITY REDEVELOPMENT AGENCY APPROVING THE TRANSFER OF THE MARKETING AGREEMENT FOR DOWNTOWN ATASCADERO AND THE CITY OF ATASCADERO THE ATASCADERO COMMUNITY REDEVELOPMENT AGENCY RESOLVES AS FOLLOWS SECTION 1 The Agency finds as follows A. The Atascadero Community Redevelopment Agency (Agency) has received from Carlton Hotel Investments, LLC (Carlton) a request for the Agency to consent to the transfer of the Marketing Agreement for Downtown Atascadero and the City of Atascadero, dated August 12, 2003 (Marketing Agreement), a true copy of which is attached hereto as Exhibit "A", and hereby incorporated by this reference. B The proposed transfer is by the Carlton to James E. Snuth, Trustee of the James E. Smith Law Firm 401k Profit Sharing Plan as to an undivided 50% (Smith) and Clifford Branch, Trustee of the Clifford Branch Trust dated January 11, 2006, as to an undivided 50% (Branch) (Smith and Branch are collectively referred to as Transferees). C. Paragraph 4 of the Marketing Agreement reads as follows. "4 Carlton Hotel shall not assign or transfer any interest in this contract whether by assignment or novation to any person without the prior written consent of Agency, which consent shall not be unreasonably withheld, conditioned or delayed." D Billboards in the City of Atascadero are governed by Atascadero Municipal Code Title 9, Chapter 15 entitled "Signs" E. Atascadero Municipal Code Section 9-15 003(d)(1) prohibits billboards in the City of Atascadero, subject to certain exemptions. F Atascadero Municipal Code Section 9-15 003(c)(14) 'Exempt Signs" provides for an exemption from the billboard prohibition and reads as follows. "(14) Redevelopment Projects. Any sign program approved and entered into by the Community Redevelopment Agency so long as the program is otherwise consistent with the General Plan of the City of Atascadero." G The Marketing Agreement was entered pursuant to the provisions of Atascadero Municipal Code 9-15.003(c)(14) as a program of the Agency to market downtown Atascadero and the City of Atascadero. Community Redevelopment Agency of Atascadero Resolution No. RA 2009-001 Page 2 H. If the Marketing Agreement is terminated for any reason, then the billboards referenced in the Marketing Agreement must be removed as the billboards would no longer be an authorized exemption to the prohibition on billboards unless there is another Agreement entered by the Agency pursuant to Atascadero Municipal Code Section 9- 15 003(c)(14) SECTION 2. The Agency hereby approves the proposed transfer of the Marketing Agreement from the Carlton to Transferees. PASSED AND ADOPTED at the regular meeting of the Atascadero Community Redevelopment Agency held on the 12th of May, 2009 ATTEST Marcia McClure Torgerson, C. Board Secretary APPRO D AS TO F RM. Brian A. Pierik, Agency Counsel 1J ATASCADERO COMMUNITY EVELOPMENT, AGENCY Tom O'Malley, Beddlf Chairperson Community Redevelopment Agency of Atascadero immunity Redevelopment Resolution No. RA 2009-001 Agency of Atascadero Page 3 Contract XAy& 2 .?00-4 MARKETING AGREEMENT FOR DOWNTOWN ATASCADERO and CITY OF ATASCADERO BETWEEN THE COMMUNITY REDEVELOPMENT AGENCY OF ATASCADERO AND CARLTON HOTEL INVESTMENTS, LLC. This Agreement, ("Agreement") is made on /a-- 2003, by and between the Community Redevelopment Agency o Atascadero ("Agency"), and Carlton Hotel Investments, LLC, a California Limited Liability Company ("Carlton Hotel"). 1 The term of this Agreement shall be for a period of fifteen (15) years, commencing on I a , 2003 (the "Initial Term"). Carlton Hotel shall have the option to e4lend the Initial Term for two (2) successive terms of seven (7) years each. A. Termination. This Agreement may be terminated prior to the end of the then existing tern as follows: 1 Upon the Carlton Hotel ceasing operation, unless this Agreement is extended by mutual agreement of the parties, 2. Upon loss of State entitlements for Billboards one (l), two (2) and three (3) and the subsequent removal or dismantling of the above referenced billboards. 3 Termination of flus Agreement shall be accompanied by removal of billboard display materials promoting Downtown Atascadero and the City of Atascadero 2. Agency appoints and designates Carlton Hotel as its agent to market Downtown Atascadero and City of Atascadero through the use of three (3) -highway advertising billboards within the city limits of the City of Atascadero. EXHIBIT A Community Redevelopment Agency of Atascadero *-dommunity Redevelopment Resolution No. RA 2009-001 Agency of Atascadero Page 4 Contract i 3 Carlton Hotel, at its sole expense, shall obtain appropriate sites, obtain all entitlements including but not limited to State and local permits, and provide for the construction, maintenance and ownership and/or leasehold of three highway - advertising billboards as described below - A. Billboard #1 (Exhibit A) shall be constructed on property located at 2600 El Camino Real located east of State Highway 101 The billboard sign faces shall be a maximum of fourteen (14) feet in height, forty (40) feet in width, and the structure shall be a maximum of thirty-five (35) feet in height. The southbound sign face pursuant to Section 3.E below, shall contain a display promoting the Carlton Hotel. The southbound face shall also include an "extension/tag-on sign" to promote Downtown Atascadero and/or City of Atascadero Dimensions for the "extension/tag-on sign" shall be forty feet wide by three feet high (40'x 3'). The northbound sign face shall be leased by the owner for advertising pursuant to Section 3 G of this Agreement. B Billboard #2 (Exhibit B) shall be constructed along State Highway 101 in the southerly portion of the City on property located at 8981 La Linia Street. The billboard sign faces shall be a maximum of fourteen (14) feet in height, forty (40) feet in width, and the structure a maximum of thirty-five (35) feet in height. The northbound sign face shall contain a display promoting the Carlton Hotel. Ibe northbound face shall also include an "extension/tag-on sign" to promote Downtown Atascadero and/or City of Atascadero Dimensions for the "extension/tag-on sign" shall be forty feet wide by three feet high (40'x 3'). The southbound sign face may be leased by the owner for advertising pursuant to Section 3 G of this Agreement. C. Billboard #3 (Exhibit C) shall be constructed along State Highway 101 in the northern portion of the City on property located at 1516 El Camino Real east of Highway 101 The billboard sign faces shall be a maximum of fourteen Community Redevelopment Agency of Atascadero ommunity Redevelopment Resolution No. RA 2009-001 Agency of Atascadero Page 5 Contract (14) feet in height, forty (40) feet in width, and the structure a maximum of thirty-five (35) feet in height. The southbound sign face shall contain a display promoting the Carlton Hotel. The southbound sign face shall also include an "extension/tag-on sign" to promote Downtown Atascadero and/or City of Atascadero. Dimensions for the city "extension/tag-on sign" shall be forty feet wide by three feet high (40'x 3') The northbound sign face may be leased by the owner for advertising pursuant to Section 3 G of this Agreement. D The sign faces shall be maintained at all times in good condition, reasonable wear and tear excepted, by Carlton Hotel at its sole expense and Carlton Hotel shall change the signs and "extension/tag-on" signs periodically at its sole expense. "Extension/tag-on" signs, if requested by Agency, shall be changed no less than 4 times a year, and no more than 8 times a year to promote Downtown Atascadero or City of Atascadero events and marketing campaigns. E. Carlton Hotel agrees not to allow any advertising of Tobacco, Pornography, Profanity, and Alcoholic Beverages (except Wine, Winery Tasting Rooms or Vineyards) on any sign face. F Any illumination of signs shall be installed under the sign, diverted upward and shall be confined to the billboard face(s) and shall not cause any glare to velucular traffic or other properties. Illumination systems shall be kept in good working order at all times for dusk -to -dawn illumination. 3 V Community Redevelopment Agency of Atascadero Community mmunity Redevelopment Resolution No. RA 2009-001 Agency of Atascadero Page 6 Contract G Prior to issuance of sign permits, Carlton Hotel shall provide certificates of site control and consent by the owners of all sites to the termination provisions of this agreement. The owners shall agree that they will be estopped from asserting any right to maintain the billboards in the event of any default described in paragraph 10 below 4 Carlton Hotel shall not assign or transfer any interest in this contract whether by assignment or novation, to any person without the prior express written consent of Agency, which consent shall not be unreasonably withheld, conditioned or delayed. 5 Carlton shall indemnify, defend, and hold harmless the Agency, its officers, officials, agents and employees from and against any and all claims, damages, liability costs, losses, and expenses including without limitation to court costs and reasonable attorney's fees arising out of or in connection with the Carlton Hotel's negligent performance of work here under or its negligent failure to comply with any of its obligations contained in this Agreement, except for any loss or damage which was caused by the negligence or willful misconduct of the Agency 6 This Agreement may be amended only by a writing signed by each of the parties. 7 if any term or provision hereof shall be held invalid or unenforceable, the remainder of this Agreement and any application of the terms and provisions thereof shall not be affected thereby, but shall be valid and enforceable. 8. The waiver of any breach of any of the provisions of this Agreement by Agency shall not be a continuing waiver or a waiver of any subsequent breach by Carlton Hotel either of the same or any other provisions of this Agreement. 9 Time is of the essence of this Agreement 4 \i Community Redevelopment Agency of Atascadero *4w# Resolution No. RA 2009-001 Community Redevelopment Page 7 Agency of Atascadero g Contract 10 The express permission of the Community Redevelopment Agency of Atascadero and the City of Atascadero for CARLTON Hotel Investments LLC to own, operate and lease the aforementioned billboards is immediately revocable upon any of the following events. A. Failure by CARLTON Hotel Investments LLC to complete construction of hotel project by December 31, 2004, B. Failure to open and operate hotel by April 30, 2005, or C. Closure of hotel, after opening, lasting longer than 6 months. 11 Miscellaneous Provisions: A. The Carlton Hotel shall designate a project manager who at all times shall represent the Carlton Hotel before the Agency on all matters .relating to this Agreement. B. The Carlton Hotel shall keep itself fully informed of, shall observe and comply with, and shall use reasonable efforts to cause any and all persons, firms or corporations employed by it or under its control to observe and comply with, applicable federal, state, county and municipal laws, ordinances, regulations, orders and decrees which in any material manner affect those engaged or employed on the work described by this Agreement or the materials used or which in any way affect the conduct of the work. C. Carlton Hotel shall not engage in unlawful employment discrimination, which to any manner affect those engaged or employed on the work described by thts agreement. Such unlawful employment discrimination includes, but is not limited to, employment discrimination based upon a person's race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, gender, citizenship or sexual orientation. Community Redevelopment Agency of Atascadero Ifto Resolution No. RA 2009-001 Community Redevelopment Page 8 Agency of Atascadero Contmct D This Contract shall be interpreted and governed by the laws of the State of California. Any action arising out of this Contract shall be brought in San Luis Obispo County, California, regardless of where else venue may lie. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. COMMUNITY REDEVELOPMENT AGENCY ofATASCADERO By. rvr ` Wade G. McKinney, Executive I rector Date: APP VEDAS F RM B Roy I,?— y, City/Agen Counsel ATTEST Marcia Torgerson, City Clerk ILI -6 CARLTON Hotel Investments, LLC CalifoLimited Liab' t ompany By A Title Date: ow ��c.Msx..ryw.v cn — � .00 _ W Z - ow ��c.Msx..ryw.v