The URL can be used to link to this page

Home My WebLink AboutRDA Agenda Packet 032310ARCHIVE COPY CITY CLERK CITY OF ATASCADERO COMMUNITY REDEVELOPMENT AGENCY SPECIAL MEETING AGENDA Tuesday, March 23, 2010 CLOSED SESSION 5 00 P M REGULAR SESSION 6 00 P M City Hall Council Chambers 6907 EI Camino Real Atascadero, California CLOSED SESSION 5.00 P M (City Council Closed Session to immediately follow) 1 PUBLIC COMMENT — CLOSED SESSION 2. CALL TO ORDER a. Conference with Legal Counsel — Anticipated Litigation (Govt. Code Sec 54956 9 (c)) Initiation of Litigation - One Potential Case 3 ADJOURN CLOSED SESSION REPORT REGULAR SESSION 6 00 P M M 0 ROLL CALL Chairperson Kelley Vice Chairperson Clay Board Member Beraud Board Member Fonzi Board Member O'Malley APPROVAL OF AGENDA. Roll Call COMMUNITY FORUM (This portion of the meeting is reserved for persons wanting to address the Board on any matter not on this agenda and over which the Board has jurisdiction Speakers are limited to three minutes Please state your name and address for the record before making your presentation The Board may take action to direct the staff to place a matter of business on a future agenda A maximum of 30 minutes will be allowed for Community Forum, unless changed by the Board ) A. CONSENT CALENDAR. (All items on the consent calendar are considered to be routine and non -controversial by City staff and will be approved by one motion if no member of the Agency Board or public wishes to comment or ask questions If comment or discussion is desired by anyone, the item will be removed from the consent calendar and will be considered in the listed sequence with an opportunity for any member of the public to address the Agency Board concerning the item before action is taken DRAFT MINUTES Agency meeting draft minutes are listed on the Consent Calendar for approval of the minutes Should anyone wish to request an amendment to draft minutes, the item will be removed from the Consent Calendar and their suggestion will be considered by the Agency Board If anyone desires to express their opinion concerning issues included in draft minutes, they should share their opinion during the Community Forum portion of this meeting ) 1 Community Redevelopment Agency Draft Special Meeting Minutes — January 26, 2010 ■ Board Secretary Recommendation. Board approve the Community Redevelopment Agency minutes of January 26, 2010 [Board Secretary] 2. Community Redevelopment Agency Draft Special Meeting Minutes — February 23, 2010 ■ Board Secretary Recommendation. Board approve the Community Redevelopment Agency minutes of February 23, 2010 [Board Secretary] B PUBLIC HEARINGS None. 2 R C MANAGEMENT REPORTS 1 Consideration by Community Redevelopment Agency of Proposed Marketing Agreement Regarding Billboards ■ Fiscal Impact: Cost to design the signs that would be placed on the 10 feet by 14 feet spaces on three billboard faces, and cost to replace the Agency signs if the Agency chooses to replace the signs at a time different from the sign change out otherwise performed by Smith/Branch ■ Recommendation. If the Agency decides to approve the proposed Marketing Agreement, then the appropriate action would be Motion finding that the Proposed Marketing Agreement Regarding Billboards Between Atascadero Community Redevelopment Agency and Cliff Branch and James Smith is a sign program pursuant to Municipal Code Section 9-15 003 (c) (14) and to approve the proposed Agreement. [Agency Counsel] BOARD ANNOUNCEMENTS AND REPORTS (On their own initiative, the Board Members may make a brief announcement or a brief report on their own activities. Board Members may ask a question for clarification, make a referral to staff or take action to have staff place a matter of business on a future agenda The Board may take action on items listed on the Agenda ) D ADJOURNMENT TO CITY COUNCIL MEETING cm 3 9 on ITEM NUMBER. RA A-1 DATE. 03/23/10 lEl�l i=�ldl1979 CITY OF - • COMMUNITY REDEVELOPMENT AGENCY SPECIAL MEETING DRAFT MINUTES Tuesday, January 26, 2010 REGULAR SESSION 6 00 P M City Hall Council Chambers 6907 EI Camino Real Atascadero, California REGULAR SESSION 6 00 P M Chairperson Kelley called the meeting to order at 6 02 p m ROLL CALL. Present: Board Members Beraud, O'Malley, Fonzi, Vice Chairperson Clay and Chairperson Kelley Others Present: Board Secretary Marcia McClure Torgerson Staff Present: Executive Director Wade McKinney, Assistant Executive Director Jim Lewis, Community Development Director Warren Frace, Public Works Director Russ Thompson, and City Attorney Brian Pierik. RDA Draft Minutes 01/26/10 Page 1 of 3 .19 APPROVAL OF AGENDA. Roll Call MOTION By Vice Chairperson Clay and seconded by Board Member Fonzi to approve the agenda. Motion passed 5.0 by a roll -call vote. COMMUNITY FORUM None A. CONSENT CALENDAR. Communitv Redevelopment Aaencv Draft Special Meetina Minutes — November 24, 2009 ■ Board Secretary Recommendation. Board approve the Community Redevelopment Agency minutes of November 24, 2009 [Board Secretary] 2 Community Redevelopment Agency Draft Special Meeting Minutes — December 8, 2009 ■ Board Secretary Recommendation. Board approve the Community Redevelopment Agency minutes of December 8, 2009 [Board Secretary] 3 Downtown Streetscape Phase Ilb Change Order Approval ■ Fiscal Impact: The fiscal impact of authorizing payment of Change Order 18 and Souza Is claim is $99,827 42 in budgeted redevelopment funds ■ Recommendations. Agency Board 1 Authorize Administrative Services Director to process Change Order 18 in the amount not to exceed $71,76916 to pay for additional construction costs in excess of the Redevelopment Agency approved project budget; and, 2 Authorize the payment of $24,666 72 for right-of-way delay costs to Souza Construction Inc , and, 3 Direct staff to work with the Agency Counsel to explore the possibility of filing a claim against Rick Engineering for design errors and omissions, and, 4 Authorize the Executive Director to expend up to $4,000 for additional minor construction or construction administration change orders to complete the project. [Public Works] MOTION By Board Member Fonzi and seconded by Vice Chairperson Clay to approve the Consent Calendar Motion passed 5.0 by a roll -call vote. B PUBLIC HEARINGS None. 5 in C MANAGEMENT REPORTS 1 Proposed Local Business Stimulus Program for Restaurants ■ Fiscal Impact: $4,000 of Redevelopment Agency funds have been budgeted for this program ■ Recommendation. Agency Board approve the Local Business Stimulus Program for Restaurants (LBSPR) and direct staff to implement the program [Executive Director] Assistant Executive Director Jim Lewis gave the staff report and answered questions from the Council PUBLIC COMMENT None MOTION By Vice Chairperson Clay and seconded by Board Member O'Malley to approve the Local Business Stimulus Program for Restaurants (LBSPR) and direct staff to implement the program Motion passed 5.0 by a roll -call vote. BOARD ANNOUNCEMENTS AND REPORTS None ADJOURNMENT TO CITY COUNCIL MEETING Chairperson Kelley adjourned the meeting at 6 25 p m MINUTES PREPARED BY Marcia McClure Torgerson, C M C City Clerk / Board Secretary 05 ITEM NUMBER. RA A-2 DATE. 03/23/10 CITY OFATASCADERO COMMUNITY REDEVELOPMENT AGENCY SPECIAL MEETING DRAFT MINUTES Tuesday, February 23, 2010 CLOSED SESSION 5 00 P M REGULAR SESSION 6 00 P M City Hall Council Chambers 6907 EI Camino Real Atascadero, California CLOSED SESSION 5 00 P M (City Council Closed Session to immediately follow) Chairperson Kelley called the meeting to order at 5 00 p m 1 PUBLIC COMMENT — CLOSED SESSION - None 2. CALL TO ORDER a. Conference with Legal Counsel — Anticipated Litigation (Govt. Code Sec. 54956 9 (c)) Initiation of Litigation - One Potential Case 3 ADJOURN CLOSED SESSION REPORT City Attorney Brian Pierik announced that there was no reportable action taken RDA Draft Minutes 02/23/10 Page 1 of 4 14 REGULAR SESSION 6 00 P M Chairperson Kelley called the meeting to order at 6 03 p m ROLL CALL Present: Board Members Beraud, O'Malley, Fonzi, Vice Chairperson Clay and Chairperson Kelley Others Present: Board Secretary Marcia McClure Torgerson Staff Present: Executive Director Wade McKinney, Assistant Executive Director Jim Lewis, Police Chief Jim Mulhall, Community Development Director Warren Frace, Administrative Services Director Rachelle Rickard, and City Attorney Brian Pierik. APPROVAL OF AGENDA. Roll Call MOTION By Board Member 136raud and seconded by Board Member Fonzi to approve the agenda. Motion passed 5:0 by a roll -call vote. COMMUNITY FORUM None A. CONSENT CALENDAR. 1 Community Redevelopment Agency Draft Special Meeting Minutes — January 12, 2010 ■ Board Secretary Recommendation. Board approve the Community Redevelopment Agency minutes of January 12, 2010 [Board Secretary] 2 Lease Agreement with City of Atascadero ■ Fiscal Impact: The City of Atascadero will tender $31,133 00 each month of the Agreement for a total of $1,058,522.00 over the term of the Lease ■ Recommendation. Board authorize Chairperson to execute the renewed Lease Agreement between the Atascadero Community Redevelopment Agency and the City of Atascadero [Executive Director] MOTION By Board Member Fonzi and seconded by Vice Chairperson Clay to approve the Consent Calendar Motion passed 5:0 by a roll -call vote. (#A-2. Contract No. RA001-2010) 9 B PUBLIC HEARINGS None C MANAGEMENT REPORTS 1 National Historic Register Building - Atascadero Printery Building Update - Mothballing Requirements and Bidding Process ■ Fiscal Impact: Up to $50,000, depending upon Board's action ■ Recommendations. Agency Board 1 Determine if the Agency continues to support the use of Redevelopment Funds for the mothballing of the Historic Atascadero Printery Building, and, 2 If the Board is prepared to proceed with mothballing, direct staff to advertise for bids for the mothballing of the Historic Atascadero Printery Building based on Unique Perspectives 12/31/09 mothballing requirements, and return the bids for Agency authorization to proceed [Community Development] Community Development Director Warren Frace gave the staff report and answered questions from the Board PUBLIC COMMENT Joan O'Keefe expressed her concern that nothing has been done so far to preserve the Printery and asked the Board to mothball the Printery building Len Colamarino urged the Board to preserve the Printery building Lon Allan explained the history of the Printery building to the Board He urged the Board to spend the money to preserve the Printery Jim Wilkins, President of the Historical Society, confirmed that they have pledged $10,000 towards the preservation of the Printery building Sheryle Machado expressed her support for the mothballing of the Printery building Mike Jackson asked that the City remove all the concrete from the former skate park instead of just breaking it up Mike Brennler stated that he is appalled at how long it has taken to get to this point. Chairperson Kelley closed the Public Comment period. MOTION By Board Member O'Malley and seconded by Board Member Beraud to direct staff to 1 Direct Staff to advertise for bids for the mothballing of the Historic Atascadero Printery Building based on Unique En 10 Perspectives 12/31/09 mothballing requirements, and return the bids for Agency authorization to proceed, and, 2. Authorize going forward with some form of a historic mural, possibly 4 feet x 8 feet, that tells the story of the Printery The Board can discuss how to implement the mural, possibly allowing the Historical Society to take the lead and hopefully paying for the mural with donations Motion passed 5:0 by a roll -call vote. 2 Fiscal Year 2008-2009 Audit ■ Fiscal Impact: None ■ Recommendation. Board review and accept the financial audit for the period ended June 30, 2009 [Executive Director] Administrative Services Director Rachelle Rickard gave the staff report and answered questions from the Board PUBLIC COMMENT None MOTION By Board Member Fonzi and seconded by Board Member Beraud to accept the financial audit for the period ended June 30, 2009 Motion passed 5:0 by a roll -call vote. BOARD ANNOUNCEMENTS AND REPORTS None D ADJOURNMENT TO CITY COUNCIL MEETING Chairperson Kelley adjourned the meeting at 6 53 p m MINUTES PREPARED BY Marcia McClure Torgerson, C M C City Clerk / Board Secretary 11 n In gn ITEM NUMBER. RA C-1 DATE. 03/23/10 Community Redevelopment Agency of Atascadero Staff Report - Agency Counsel Consideration by Community Redevelopment Agency of Proposed Marketing Agreement Regarding Billboards RECOMMENDATION The decision of whether to approve the proposed Marketing Agreement is within the discretion of the Agency In order to approve the proposed Marketing Agreement, the Agency must find that the proposed Marketing Agreement is a sign program pursuant to Municipal Code Section 9-15 003 (c) (14) as more fully described in the Discussion section of this Report. If the Agency decides to approve the proposed Marketing Agreement, then the appropriate action would be Motion finding that the Proposed Marketing Agreement Regarding Billboards Between Atascadero Community Redevelopment Agency and Cliff Branch and James Smith is a sign program pursuant to Municipal Code Section 9-15 003 (c) (14) and to approve the proposed Agreement. DISCUSSION Background On May 12, 2009, the Agency adopted Resolution No RA 2009-001 approving the transfer of a Marketing Agreement that was entered into by the Agency with the Carlton LLC on August 12, 2003 ("Agreement") The Resolution is Attachment 1 to this Report. The Agreement is attached to the Resolution as Exhibit A. The transfer approved by the Resolution was from the Carlton Hotel Investments, LLC to James E Smith and Clifford Branch The transfer was approved by the Agency pursuant to Paragraph 4 of the Agreement. 12 Billboards are generally prohibited in the City of Atascadero pursuant to Municipal Code Section 9-15 003(d)(1) subject to certain exceptions One of those exceptions is Section 9-15 003(c)(14) which 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 " The Agreement was entered in 2003 as a sign program to market downtown Atascadero and the City of Atascadero pursuant to the provisions of Atascadero Municipal Code Section 9-15 003(c)(14) Summary of Current Marketing Agreement: The current Agreement requires three sign faces to be dedicated to the Carlton Hotel The other three sign faces are permitted to be leased under certain restrictions including Section 3 E which prohibits advertising of Tobacco, Pornography, Profanity or Alcoholic Beverages except for Wine, Winery Tasting Rooms or Vineyards The 6 faces of the 3 billboards are 40 feet by 14 feet. Under the current Marketing Agreement, only the Carlton is advertised on 3 of the faces The City has banners on 6 faces, but the Agency is only entitled under the current Agreement to have banners on 3 faces The banners are allowed by the current Agreement to be 3 feet by 40 feet. However, we understand that the actual size of the banners is 3 feet by 30 feet. The three banners can be changed from 4 to 8 times per year at the expense of the Carlton Hotel (James Smith and Cliff Branch) Attachment 2 to this Report is a photograph of one of the existing billboards and the yellow banner is shown at the bottom of the billboard The Term of the current Marketing Agreement is 15 years from August 2003 and continues through August 2018 plus two 7 -year extensions at the option of James Smith and Cliff Branch could extend the Agreement through August 2032 The current Agreement will terminate upon any of the three events described in Section 1 A (Exhibit A to Attachment 1) or upon the Carlton Hotel closure for longer than six months (Section 10 C) Summary of Proposed Agreement: Cliff Branch and James Smith ("Branch/Smith") are proposing to terminate the existing Marketing Agreement and replace that Agreement with a new Agreement, which is Attachment 3 to this Report. The proposed Agreement would include, among other provisions, the following 13 rn 1 Billboard Faces M Branch/Smith are proposing to provide the Agency on three billboard faces a space of 10 feet by 14 feet which is 25% of the face Six computer simulated pictures depicting possible billboard messages for the 10 feet by 14 feet space will be found in Attachment 4 to this Report. The Agency would not be permitted to sell the 10 feet by 14 feet space without the prior written approval of Branch/Smith 2 Cost to Change Out Signs The Agency would be required to design its own signs Branch/Smith agree to change out the Agency signs at no cost to the Agency if the change is in rotation when the balance of the sign is changed Otherwise, the Agency would have to pay the change out cost. 3 Right of First Refusal and Discounts A. Carlton has the first right of refusal and a 10% discount for all six faces B Other hotels have the next right of refusal and a 10% discount for all six faces C Other Atascadero businesses are next in line at the 'Rate Card" price, no discount. 4 Term of Agreement The base term of the Agreement would be through August 12, 2018, the same as the current Agreement. The new Agreement proposes to Increase from seven years in the current Agreement to 10 years for each of the two extensions so the Agreement could be extended through August 2038 The proposed Agreement would not include the termination provision of the current Agreement which states that the Agreement terminates if the Carlton ceases operations for more than six (6) months 5 Restrictions on Advertising Same as the existing Agreement which prohibits advertising of Tobacco, Pornography, Profanity or Alcoholic Beverages except for Wine, Winery Tasting Rooms or Vineyards In addition, the proposed Agreement would not permit Branch/Smith to advertise other cities without the prior written approval of the Agency However, the limitation on advertising of other cities would not prevent Smith/Branch from selling advertising space to a business located in another city 0n 14 6 Content of Agency Signs The Agency shall have editorial and artistic control over any message in the 10 feet by 14 feet space subject to the limitations set forth in the Agreement. 7 Other Terms There are additional terms in the proposed Agreement which you will find in Attachment 3 for your review and consideration FISCAL IMPACT The cost which would be incurred by the Agency would be 1 Cost to design the signs that would be placed on the 10 feet by 14 feet spaces on three billboard faces 2 Cost to replace the Agency signs if the Agency chooses to replace the signs at a time different from the sign change out otherwise performed by Smith/Branch ALTERNATIVES 1 The Agency Board could decide not to approve the proposed Marketing Agreement which means that the existing Marketing Agreement will remain in effect. ATTACHMENTS 1 Agency Resolution No 2009-001 and attached Marketing Agreement 2 Photograph of one existing billboard 3 Proposed Marketing Agreement 4 Six Computer Simulated Photographs of 10 feet by 14 feet sections with sample Agency messages 15 F5 05 Attachment 1 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 6907 EL CAMINO REAL ATASCADERO, CA 93422 (805) 461-5000 FAX (805) 461-7612 16 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. Smith, 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) (Swath 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. 17 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, C116t. Board Secretary APPRO AS TO F RM. Brian A. Pierik, Agency Counsel In ATASCADERO COMMUNITY NEVELOPME AGENCY Tom O'Malley, d Chairperson Community Redevelopment Agency of Atascadero 1�-dmmunity Redevelopment Resolution No. RA 2009-001 Agency of Atascadero Page 3 Contract ii 0-1 -?003 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 onClu la- 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 a , 2003 (the "Initial Term'). Carlton Hotel shall have the option to And 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 term 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 (1), two (2) and three (3) and the subsequent removal or dismantling of the above referenced billboards. 3 Termination of this 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)-inghway advertising billboards within the city limits of the City of Atascadero. EXHIBIT A Wi In Community Redevelopment Agency of Atascadero '-toommunity Redevelopment Resolution No. RA 2009-001 Agency of Atascadero Page 4 Contract 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. The northbound face shall also include an "extension/tag-on sign" to promote Downtown Atascadero and/or City of Atascadero. Dimensions for the "extensionhag-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 Camaro Real east of Highway 101 The billboard sign faces shall be a maximum of fourteen I on 2 20 �NVAW Community Redevelopment Agency of Atascadero -Community 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 tunes 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 vehicular traffic or other properties. Illumination systems shall be kept in good working order at all times for dusk -to -dawn illumination. 3 21 M Community Redevelopment Agency of Atascadero Community 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. $. 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 22 Community Redevelopment Agency of Atascadero -d+ Community Redevelopment Page 7 Resolution No. RA 2009-001 Agency of Atascadero Page 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 in any manner affect those engaged or employed on the work described by this 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, mantal status, gender, citizenship or sexual orientation. 5 23 M Community Redevelopment Agency of Atascadero Ifto Resolution No. RA 2009-001 Community Redevelopment Page 8 Agency of Atascadero Contract 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 of ATASCADERO By- _O& 6, A4 Wade G. McKinney, Executive I rector Date: APP VEDAS F RM. B• Roy ey, City/Agenfy Counsel ATTEST B: Marcia Torgerson, City Clerk M -6- CARLTON Hotel Investments, LLC Califo Lunited Liab' 't ompany By- A - 041 Title: Date: 24 m W E "J Attachment 3 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 401 K 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 401K 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 E5 CAM #4836-4190-2853 v1 2 29 on 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 CAM #4836-4190-2853 v1 3 30 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, 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 Illumination systems shall be kept in good working order at all times for dusk -to -dawn illumination CAM #4836-4190-2853 v1 4 31 E5 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 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, CAM #4836-4190-2853 v1 5 32 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 three existing Carlton 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 10' wide on these three faces of the Billboards, namely- Billboard No 1 southbound face, Billboard No 2 northbound face and Billboard No 3 under the following terms and conditions CAM #4836-4190-2853 v1 6 33 on 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 30' space The City shall have the right to independently change the messages within the 14'X 10' 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 B The Agency shall have editorial and artistic control over any message placed in the 14' X 10' 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 10' 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 10' space 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 CAM #4836-4190-2853 v1 7 34 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 10%, 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 (herein "Hotel') will have first right of refusal to lease any of the six billboard faces at the Rate Card price, less 10%, 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 CAM #4836-4190-2853 v1 8 35 E5 on billboard faces at the Rate Card price 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 member of the Atascadero Chamber of Commerce The Agency shall notify Branch/Smith in writing to exercise this option and shall provide the mailing labels for Chamber Members 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 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. CAM #4836-4190-2853 v1 9 36 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 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 CAM #4836-4190-2853 v1 10 37 05 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 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 CAM #4836-4190-2853 v1 11 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective as of March 23, 2010 ATASCADERO COMMUNITY REDEVELOPMENT AGENCY am Wade McKinney, Executive Director CAM #4836-4190-2853 v1 12 39 In 09 APPROVED AS TO FORM Brian A. Pierik, Agency Counsel Clifford Branch James Smith CAM #4836-4190-2853 v1 13 40 F5 Attachment 4 In 42 �„ ��;� - �_ _.-_ ,. Y i 2� \ � \ i ƒ /» ;\ LJ O 0 F— §. \ \� 40\ .. ca \.C—) ƒ: ~ \ \ 45 F5 In W. 47