The City and the City’ s elected officials, officers, employees, and agents may enter upon and inspect the Premises at any time to determine OOM's compliance with this Sublease.
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20. Indemnification; Exculpation.
20.1 OOM agrees to indemnify, defend (with attorneys reasonably acceptable to the City) and hold harmless the City and City’s officers, employees and agents (each, an “Indemnitee” and, collectively, the “ Indemnitees”) from any “Claims” (as defined below) arising f rom or in connection with, or caused by (a) the use or occupancy of the Premises by OOM or any person claiming through OOM, (b) any injury or death of any person or damage to or destruction of property occurring in, on or about the Premises, (c) any activity or work permitted or suffered in or about the Property by OOM or any persons or entities claiming by, through or under OOM, or any of their respective employees, agents, or contractors, (d) any failure of OOM to observe or perform any of its obligations hereunder or (e) any act, omission or negligence on the part of OOM or any persons or entities claiming by, through or under OOM or any of their respective employees, agents, or contractors which includes any litigation concerning the Lease restriction ag ainst placement of political advertising. For purposes of this Sublease, the term “ Claims” means any and all losses, claims, actions, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and costs). OOM further agrees to indemnify, defend, and hold harmless the City from any and all claims or litigation arising out of the approval of this Sublease, including claims or litigation based on the California Environmental Quality Act, or actions brought to challenge the validity of this Sublease or the validity of the Governmental Approvals. OOM’s obligations under this Section 20 will survive this Sublease. Notwithstanding anything herein to the contrary, the indemnities contained in this Section 20 shall not apply to any Claim caused by the gross negligence or the willful misconduct of any Indemnitee or for Claims or litigation arising from the posting of City Messages or where a third party challenges the City’s regulation of advertising content under Section 5.
20.2 Neither City nor the other Indemnitees shall be liable to OOM or any persons or entities claiming by, through or under OOM, or any of their respective employees, agents, or contractors for injury to or death of any person or for loss of use of or damage to property in or about the Premises or Property, whether the damage or injury results from co nditions arising upon the Premises or upon other portions of the Property of which the Premises are a part, or from other sources.
21. Assignment. This Sublease shall not be assigned, subleased or encumbered by OOM without the prior written consent of the City, which shall not be unreasonably withheld. An assignment of this Sublease in connection with the sale, lease or sublease by OOM of substantially all of its assets in the San Francisco Bay Area or as a result of any dissolution, merger, consolidation, or other reorganization of OOM, or its successors, or other transaction which results in a change of control of OOM, or its successors, shall not require the prior written consent of the City. An assignment, transfer, or sublease made contrary to this Section 21 is void. This Sublease binds and inures to the benefit of the, successors and assigns of the parties. This Section 21 does not constitute the City's consent to any assignment of this Sublease or any interest in the Sublease, or to any sublease of the Premises or any part of the Premises, or to any sublease of the Sign or any part of the Sign.
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22. Default and Remedies.
22.1 In the event of a default by OOM with respect to any of the provisions of this Sublease or its obligations under it, including the payment of the Rent or any amounts due and payable to the City under the terms and conditions of this Sublease, OOM shall have fifteen (15) business days fro m its receipt of written notice of default from the City in which to cure any monetary default and thirty (30) days from such notice to cure any non-monetary default, unless curative action cannot reasonably be accomplished within such thirty (30) day period, in which event said period to cure such default shall be automatically extended as long as OOM promptly commences such cure and diligently pursues and completes such curative action within ninety (90) days. The failure of OOM to cure a default after written notice from the City and the applicable cure period shall be a breach of this Sublease. In the event of OOM’s breach of this Sublease, the City may, but is not obligated to, either: (a) perform such duty or obligation necessary to cure a non-monetary default on OOM’s behalf, to be reimbursed by OOM for the reasonable costs and expenses of such curative action to be upon OOM’s receipt of an invoice and supporting documentation of such costs and expenses; or (b) terminate this Sublease and be entitled to seek all damages in accordance with applicable law.
22.2 In the event of a default by the City with respect to any of the provisions of this Sublease or its obli gations under it, the City shall have thirty (30) days from its receipt of written notice of default from OOM to cure any default, unless curative action cannot be reasonably accomplished within such thirty (30) day period, in which event said period to cu re such default shall be automatically extended so long as the City commences such cure and diligently pursues and completes such curative action within ninety (90) days. The failure of the City to cure a default after written notice from OOM and the appl icable cure period shall be a breach of this Sublease. The failure of the City to cure a default after written notice from the OOM and the applicable cure period shall be a breach of this Sublease. In the event of City’s breach of this Sublease, and without waiving any other rights granted to it in law or equity, OOM shall have the right, but not the obligation, to terminate this Sublease.
22.3 Any default under the Master Lease by the City beyond any applicable cure period provided for therein shall be a default hereunder and the City shall not be subject to any cure period by the City. In the event of the City’s breach of the Master Lease as set forth in this Section 22.3, OOM may, but is not obligated to, either: (a) perform such duty or obligation necessary to cure such default on the City’s behalf, with the costs and expenses thereof to be reimbursed by the City upon the City’s receipt of an invoice and supporting documentation of such costs and expenses; or (b) terminate this Sublease.
22.4 Notwithstanding anything to the contrary contained in this Sublease, in no event shall City be liable to OOM for lost profits, lost business revenue that is not direct or extra- contractual damages, lost opportunity costs or other consequential damages under this Sublease or otherwise.
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23. Waiver of Breach. A party’s failure to insist on strict performance of this Sublease or to exercise any right or remedy upon the other party’s breach of this Sublease will not constitute a waiver of the performance, right, or remedy. A party’s waiver of the other party’s breach of any provision in this Sublease will not constitute a continuing waiver or a waiver of any subsequent breach of the same or any other provis ion. A waiver is binding only if set forth in writing and signed by the waiving party.
24. Relationship of the Parties . This Sublease does not create any relationship or association between the City and OOM other than that of landlord and tenant. For example, and without limiting the previous sentence, this Sublease does not create between the City and OOM the relationship of principal and agent, nor does it create a partnership or joint venture.
25. Attorney’s Fees. The party prevailing in any litigation conce rning this Sublease, the Premises, or any improvements to the Premises (including the Sign) will be entitled to an award by the court of reasonable attorneys' fees and litigation costs through final resolution on appeal in addition to any other relief that may be granted in the litigation. If the City is the prevailing party, then this Section 23 will apply whether the City is represented in the litigation by the Office of the City Attorney or by outside counsel.
26. Severability. If a court with jurisdiction holds any provision of this Sublease to be invalid, void, or unenforceable, then the remaining provisions will remain in full force.
27. Counterparts. The parties may execute this Sublease in counterparts.
28. Memorandum of Sublease. Either the City or OOM may record with the San Mateo County Clerk/Recorder, using the form set forth as Exhibit G, a memorandum summarizing this Sublease.
29. Further Assurances . Each party shall execute all additional documents or instruments and take all necessary action that either party reasonably considers necessary to carry out the proper purposes of this Sublease.
30. Time of Essence. Time is of the essence of this Sublease.
31. Governing Law. This Sublease is to be interpreted and applied in accordance with California law, without regard to conflict-of-laws principles, except that the rule of interpretation in California Civil Code section 1654 will not apply.
32. Integration, and Modification . This Sublease, the Master Lease and the separately executed Relocation Agreement set forth the parties’ entire understanding regarding the matters addressed. Together these documents supersede all prior or contemporaneous agreements, representations, and negotiations (writt en, oral, express, or implied) and each may be modified only by another written agreement signed by both parties.
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33. City’s Warranty . The City hereby warrants and represents to OOM as of the Effective Date that the City holds either fee simple title to or ex clusive leasehold rights to the Property free and clear of any liens or encumbrances.
34. City Taxes . If the City enacts, imposes or levies any tax or other imposition relating to OOM’s use of the Premises or operation of the Sign (a “ City Tax”), OOM shall be entitled to a credit against any amounts of Rent to be paid hereunder in the amount of such City Tax paid by OOM, except to the extent it is commercially reasonable for OOM to pass such City Tax on to its advertisers and OOM is reimbursed for such amounts by such advertisers.
35. Master Lease.
35.1 The City covenants and agrees that, if requested by OOM, it shall deliver to OOM a duly executed non-disturbance agreement from the Master Landlord in form and substance satisfactory to OOM or shall otherwise ensure that the Master Lease contains such terms assuring the rights of OOM under this Sublease will be recognized and not disturbed upon the breach by the City under the Master Lease or upon ter mination of the Master Lease for any other reason so long as OOM is not in default under this Sublease beyond the period of notice and opportunity to cure provided herein. In the event the City fails to provide OOM with such a non-disturbance agreement if requested by OOM, OOM may terminate this Sublease upon notice to the City.
35.2 In the event that the City fails to perform any obligation of the City as required pursuant to the Master Lease and the City has received a notice from Master Landlord demanding a cure of said default within any applicable time period pursuant to the Master Lease and the City fails to so cure such default , OOM may, but shall not be obligated to, elect to take over such obligation under the Master Lease upon written notice to both the City and the Master Landlord. If OOM so elects, the City shall be obligated to pay to OOM its reasonable out-of- pocket costs and expenses of the same . The City shall ensure the above-referenced right s are contained in the Master Lease . During such period that OOM assumes such obligations , OOM shall be entitled to offset any Rent payable to the City hereunder but only to the extent the obligation is not otherwise payable to City under the Sublease.
35.3 OOM agrees, that in connection with each payment of Rent to the City pursuant to Section 10, OOM will also pay to the City an amount equal to the “Rent” (as such term is defined in the Master Lease) which the City is required to pay to the Master Landlord pursuant to Section 9 of the M aster Lease (which “Rent” initially is contemplated under the Master Lease to be sixty thousand dollars ($60,000.00) per calendar year. Any failure of the City to make such payments pursuant to Section 9 of the Master Lease within the time periods required thereunder shall be an immediate default under this Agreement.
36. Subordination; Estoppel Certificate.
36.1 Subject to Section 35.2, this Sublease shall be subject and subordinate to all existing and future ground or underlying leases, mortgages, trust deeds and other encumbrances
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against the Property, all renewals, extensions, modifications, consolidations and replacements thereof (each such de ed of trust or other security agreement, a “ Security Agreement”), and all advances made upon the security of such mortgages or trust deeds, unless in each case the holder of such Security Agreement (each, a “ Security Holder”) requires in writing that this Sublease be superior thereto. Upon any termination or foreclosure (or any delivery of a deed in lieu of foreclosure) of any Security Agreement, OOM, upon request, shall attorn, without deduction or set-off, to the Security Holder or purchaser or any successor thereto and shall recognize such party as the lessor hereunder, provided that such party agrees not to disturb OOM’s occupancy so long as OOM timely pays the Rent and otherwise performs its obligations hereunder. Within ten (10) business days after the Master Landlord’s request, OOM shall execute such further instruments as the Master Landlord may reasonably deem necessary to evidence the subordination or superiority of this Sublease to any Security Agreement. Within ten ( 10) business days after the Master Landlord’s request, OOM shall execute and deliver to Lessor a commercially reasonable estoppel certificate in favor of such parties as the Landlord may reasonably designate, including current and prospective Security Holders and prospective purchasers.
[Remainder of Page Intentionally Blank – Signature Pages and Exhibits Follow]
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IN WITNESS WHEREOF, the parties, duly authorized, have executed this Sublease as of the day and year first above written.
CITY
CITY OF SAN CARLOS,
a California municipal corporation
By:
Name:
Title:
OOM
Pallco Enterprises Inc a California S Corporation DBA
ORION OUTDOOR MEDIA
By:
Name: Beau Palley
Title: CEO & Chairman
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EXHIBIT A
THE PROPERTY
Address of Property:
611 Industrial Road
San Carlos, CA 94070
San Mateo County Assessor Parcel #
046-090-370
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EXHIBIT B
THE PREMISES
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Attachment: Sublease - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement) 42 ” Pole
State R/W F
enc
e
Nor
th P/L
South P/L
14’x 48’ FULL FLAG @ 64.5‘
30’ V-BUILD WITH ENCLOSURE
DIGITAL FACES BOTH SIDES/672 sq. ft. PER SIDE
APN#045-080-036-000
ZONING: PD-C
LAND AREA: ENTIRE PARCEL 1.7 ACRES
BUILDING AREA: 6’ x 6’ AREA FOR SIGN COLUMN
PROPERTY OWNER:
West Marine Plaza LP ET AL
APPLICANT:
LAW OFFICE OF JOHN DAVID PEREIRA
LAW OFFICE OF JOHN DAVID PEREIRA
4445 GRANITE DRIVE ( I-80 W/O SIERRA COLLEGE )
14’x 48’ FACES @ 55ft high from FW Grade
V-BUILD STRUCTURE
DIGITAL FACES BOTH SIDES/672 sq. ft. PER SIDE
APN# 046-090-370
ZONING: H-I ( Heavy Industrial )
LAND AREA: ENTIRE PARCEL 29,925 sq. ft.
BUILDING AREA: 6’ x 6’ AREA FOR SIGN COLUMN
PROPERTY OWNER:
R & M Associates, LLC
APPLICANT:
ORION OUTDOOR MEDIA
ORION OUTDOOR, LLC
611 INDUSTRIAL RD. ( HWY 101 S/O HOLLY )
ARIAL SITE PLAN OF 611 INDUSTRIAL SITE • FOR 55FT DIGITAL SIGN • COMMERCIAL AND NON-COMMERCIAL USE 6’x7
’ Pole C
over
with
City Slogan
Camer
a
Came
ra
Parking S
talls
Hwy 101Edge of P
avemen
t
Existing Building
Nor
th Face 14’h x 48’L
South F
ace 14’h x 48’L
3’ from edgeof si
gn to pr
ope
rty line
Building 58’
wide
42 ‘
4’ abo
ve building grade
29’
36’
18 ’
Exhibit B
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EXHIBIT C
SIGN CONCEPTUAL DRAWING
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EXHIBIT D
HAZARDOUS SUBSTANCES
As used in this Exhibit D, “Environmental Laws” means any statute, ordinance, regulation, rule, order, decree, or other law or requirement that is enacted, promulgated, or issued by any federal, state, or local government entity (whether before, on, or after the Effective Date) and:
• regulates, relates to, or imposes liability or standards of conduct concerning any Hazardous Substance (defined below);
• regulates land use or regulates or protects the environment, including air, soil, soil vapor, surface water, groundwater, flora, or fauna; or
• pertains to occupational health or industrial hygien e or to occupational or environmental conditions on, under, or about the Premises.
Without limiting the generality of the foregoing, “Environmental Laws” includes the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) (42 U.S.C. § 9601 et seq.); the Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C. § 6901 et seq.); the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. § 1251 et seq.); the Toxic Substances Control Act (TSCA) (15 U.S.C. § 2601 et seq.); the Hazardous Materials Transportation Act (HMTA) (49 U.S.C. § 1801 et seq.); the Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.); the Superfund Amendments and Reauthorization Act (SARA) (42 U.S.C. § 6901 et seq.); the Clean Air Act (42 U.S.C. § 7401 et seq.); the Safe Drinking Water Act (42 U.S.C. § 300f et seq.); the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.); the Emergency Planning and Community Right to Know Act (42 U.S.C. § 11001 et seq .); the Occupational Safety and Health Act (OSHA) (29 U.S.C. §§ 655 and 657); the California Underground Storage of Hazardous Substance Act (Cal. Health & Saf. Code, § 25280 et seq.); the California Hazardous Waste Control Act (Cal. Health & Saf. Code, § 25100 et seq.); the California Safe Drinking Water and Toxic Enforcement Act (Cal. Health & Saf. Code, § 24249.5 et seq.); and the Porter -Cologne Water Quality Act (Cal. Water Code, § 13000 et seq.), together with any amendments of these statutes and regulations promulgated under them (whether enacted or promulgated before, on, or after the Effective Date).
For purposes of this Sublease, “Hazardous Substance” means:
(1) any substance defined as a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,” “toxic waste,” “solid waste,” “pollutant,” or “contaminant” under Environmental Laws (defined above);
(2) any substance listed as hazardous substances in 49 C.F.R. § 172.101 or its successor by the U.S. Department of Transportation or in 40 C.F.R. Part 302 or its successor by the U.S.
Environmental Protection Agency;
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(3) any other substance, material, or waste that is or becomes regulated or classified as hazardous or toxic under Environmental Laws (defined above);
(4) any material, waste, or substance that is (a) a petroleum or refined petroleum product, (b) asbestos or asbestos-containing materials, (c) polychlorinated biphenyl, (d) designated as a hazardous substance under 33 U.S.C. § 1321 or its successor or listed under 33 U.S.C. § 1317 or its successor, (e) a flammable explosive, (f) a radioactive material, or (g) a lead - based paint;
(5) any substance listed by the State of California under subdivision (a) of California Health and Safety Code section 25249.8, as amended, or under any successor to that statute, as a chemical known by the state to cause cancer or reproductive toxicity;
(6) any material that, because of its characteristics or interaction with one or more other substances, chemical compou nds, or mixtures, threatens to damage health, safety, or the environment or is required by any law or public agency to be remediated;
(7) any material that, if present, would require remediation under the guidelines set forth in California’s Leaking Under ground Fuel Tank Field Manual, regardless of whether the presence of the material resulted from a leaking underground fuel tank;
(8) any pesticide regulated under the federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §136 et seq.) or its successor;
(9) any material regulated under the federal Occupational Safety and Health Act (29 U.S.C. § 651 et seq.) or California’s Occupational Safety and Health Act (Health & Saf. Code, § 63000 et seq.), or their successors;
(10) any material regulated un der the federal Clean Air Act (42 U.S.C. 7401 et seq.) or under division 26 of the California Health and Safety Code, or their successors;
(11) any material that qualifies as an “extremely hazardous waste,” “hazardous waste,” or “restricted hazardous wast e” under section 25115, 25117, or 25122.7 of the California Health and Safety Code, or as “medical waste” under section 25281, 25316, 25501, 25501.1, 25023.2, or 39655 of the California Health and Safety Code, or their successors; and
(12) any material listed or defined as a “hazardous waste,” “extremely hazardous waste,” or an “acutely hazardous waste” under chapter 11 of title 22 of the California Code of Regulations or any successor to that chapter.
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EXHIBIT E
AMBER ALERT GUIDELINES
• In coordination with the Federal Bureau of Investigation, the National Center for Missing & Exploited Children and the OAAA, Orion Outdoor Media utilizes its digital networks around the country to display real-time AMBER Alert information on missing children.
The AMBER Alert system has been activated over 800 times since the beginning of the digital billboard program.
• This market is part of a nationwide effort to provide AMBER Alert information on digital billboards in the event of an alert.
• When an AMBER Alert occurs, the Alert will be displayed on the digital billboard for at least an hour exclusively, followed by the Alert going into regular rotation on the board for a period of 24-48 hours, or until the Alert is cancelled.
• This service is being provided at no charge.
• The system is automated. This market is receiving information from a central server operated by the Outdoor Advertising Association of America which receives its information from the National Center for Missing & Exploited Children.
• The system provides a standardized national template which bears the trademarked AMBER Alert logo. This way, drivers from Oregon to Florida and all points in between will see the same type of AMBER Alert, making it instantly recognizable.
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EXHIBIT F
CITY SIGN LOGO
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EXHIBIT G
MEMORANDUM OF SUBLEASE
WHEN RECORDED MAIL TO:
ORION OUTDOOR MEDIA
P.O. Box 6341
Folsom, CA 95763-6341
________________________________________________________________________
MEMORANDUM OF SUBLEASE
This is a Memorandum of Sublease by and between the City of San Carlos , a California municipal corporation (“ City”), and Pallco Enterprises Inc a California S Corporation DBA ORION OUTDOOR MEDIA (“OOM”), upon the following terms:
R & M Dean Associates, LLC (“Master Lessor”) is the owner of the Premises (as defined below). Pursuant to the terms of a Lease dated as of ___________, 2022 (the “Master Lease ”), Master Lessor leases the Premises to City, and City leases the Premises from Lessor. Pursuant to the Master Lease, Master Lessor has consented to City leasing the Premises to OOM and for OOM to lease the Premises from City for an initial term of twenty (20) years, commencing on the Commencement Date (as defined in the Sublease). OOM has one (1) option to extend the term for an additional ten (10) years. The lease of the Premises to OOM is on all of the terms and conditions set forth in the Sublease, which is incorporated in this Memorandum by reference.
This Memorandum is prepared for the purpose of recordation, and in no way modifies the provisions of the Sublease. In the event of any inconsistency between this Memorandum and the Sublease, the Sublease shall govern.
Premises:
Legal Description
ForAPN/ParcelID(s): 046-090-370
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SAN CARLOS, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
PARCEL TWO AS DESIGNATED ON THAT CERTAIN MAP ENTITLED "PARCEL MAP BEING A SUBDIVISION OF THE LANDS OF ROBERT WEST RECORDED IN VOL. 5128 OF OFFICIAL
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RECORDS, PAGE 616, SAN MATEO COUNTY RECORDS, CITY OF SAN CARLOS, SAN MATEO
COUNTY, CALIFORNIA, WHICH PARCEL MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON MAY 29, 1975 IN BOOK 28 OF PARCEL MAPS AT PAGE 14.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR THE CONSTRUCTION, REPAIR AND MAINTENANCE OF A SANITARY SEWER LINE OVER AND ACROSS THE FOLLOWING DESCRIBED LANDS:
A STRIP OF LAND 7.00 FEET WIDE LYING EQUALLY ON EACH SIDE OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE WESTERLY CORNER OF THE LANDS DESCRIBED IN PARCEL TWO IN THE
DEED FROM BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION AND ANN LEISTER TO ROBERT A. WEST AND RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, IN VOLUME 5128 OF OFFICIAL RECORDS AT PAGE 616; THENCE FROM SAID POINT OF BEGINNING SOUTH 47° 7' 20" WEST 27.31 FEET; THENCE SOUTH 48° 55' 40" EAST 19.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE FROM SAID TRUE POINT OF BEGINNING NORTH 48° 1' 18" EAST 310.00 FEET.
EXCEPTING FROM PARCEL TWO:
ANY PORTION THEREOF LYING WITHIN PARCEL ONE ABOVE.
PARCEL THREE:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS THE FOLLOWING DESCRIBED PARCEL OF LAND:
BEGINNING AT THE WESTERLY CORNER OF THE LANDS DESCRIBED IN PARCEL TWO IN THE
DEED FROM BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION AND ANN LEISTER TO ROBERT A. WEST AND RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, IN VOLUME 5128 OF OFFICIAL RECORDS AT PAGE 616; THENCE FROM SAID POINT OF BEGINNING SOUTH 47° 7' 20" WEST 27.31 FEET; THENCE SOUTH 48° 55' 40" EAST 20.11 FEET; THENCE NORTH 47° 7' 20" EAST 198.58 FEET; THENCE NORTH 60° 15' 8" EAST 96.66 FEET; THENCE NORTH 42° 00' WEST 20.47 FEET; THENCE SOUTH 60° 15' 8" WEST 94.62 FEET; THENCE SOUTH 47° 7' 20" WEST 175.69 FEET TO THE POINT OF BEGINNING.
PARCEL FOUR:
A NON-EXCLUSIVE EASEMENT FOR THE CONSTRUCTION, REPAIR & MAINTENANCE OF WATER
AND GAS PIPE LINES AND OTHER UNDERGROUND PUBLIC UTILITIES OVER AND ACROSS THE FOLLOWING DESCRIBED LANDS:
A STRIP OF LAND, 10' WIDE, LYING ADJACENT TO AND SOUTHEASTERLY OF THE FOLLOWING DESCRIBED LINE:
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BEGINNING AT A POINT WHICH BEARS S 47° 7' 20" W 27.31 FEET FROM THE WESTERLY
CORNER OF THE LANDS DESCRIBED IN PARCEL TWO IN THE DEED FROM BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION AND ANN LEISTER TO ROBERT A, WEST AND
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA IN VOLUME 5128 OF OFFICIAL RECORDS AT PAGE 616; THENCE N 47° 7' 20" E, 315.48 FEET.
EXCEPTING FROM PARCEL FOUR:
ANY PORTION THEREOF LYING WITHIN PARCEL ONE ABOVE. PARCEL FIVE:
AN EASEMENT TO BUILD, REPAIR, AND MAINTAIN A SIGN OVER THE SOUTHWESTERLY 1 FOOT OF THE NORTHWESTERLY 15 FEET OF PARCEL 1 AS DESIGNATED ON THAT CERTAIN MAP ENTITLED "PARCEL MAP BEING A SUBDIVISION OF THE LANDS OF ROBERT WEST RECORDED IN VOL. 5128 OF OFFICIAL RECORDS, PAGE 616, SAN MATEO COUNTY RECORDS, CITY OF SAN CARLOS, SAN MATEO COUNTY, CALIFORNIA", WHICH PARCEL MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON MAY 29, 1975 IN BOOK 28 OF PARCEL MAPS AT PAGE 14.
JPN: 046-009-090-32-01A
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OTAD\54300\1253944.11 4
SJ - San Jose #4895-9838-2865 v1
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IN WITNESS WHEREOF, OOM and City have executed this Memorandum of Sublease as of the ____ day of _________, 20___.
CITY
CITY OF SAN CARLOS,
a California municipal corporation
By:
Name:
Title:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On ______________________ before me, ______________________________, Notary Public, personally appeared __________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity up on behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
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OTAD\54300\1253944.11 5
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OOM
Pallco Enterprises Inc a California S Corporation DBA
ORION OUTDOOR MEDIA
By:
Name: Beau Palley
Title: CEO & Chairman
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On ______________________ before me, ______________________________, Notary Public, personally appeared __________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/the y executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
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Attachment: Sublease - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement) Attachment 1-R
Year(s) Min. Annual
Guarantee to City
SubLease Annual
Rent Amount
Total Annual Rent Amount to City
of San Carlos
1 $210,000 $60,000 $270,000
2 $210,000 $61,200 $271,200
3 $210,000 $62,424 $272,424
4 $210,000 $63,672 $273,672
5 $210,000 $64,946 $274,946
6 $236,250 $66,245 $302,495
7 $236,250 $67,570 $303,820
8 $236,250 $68,921 $305,171
9 $236,250 $70,300 $306,550
10 $236,250 $71,706 $307,956
11 $265,781 $73,140 $338,921
12 $265,781 $74,602 $340,383
13 $265,781 $76,095 $341,876
14 $265,781 $77,616 $343,397
15 $265,781 $79,169 $344,950
16 $299,004 $80,752 $379,756
17 $299,004 $82,367 $381,371
18 $299,004 $84,014 $383,018
19 $299,004 $85,695 $384,699
20 $299,004 $87,409 $386,413
21 $336,380 $89,157 $425,536
22 $336,380 $90,940 $427,320
23 $336,380 $92,759 $429,139
24 $336,380 $94,614 $430,994
25 $336,380 $96,506 $432,886
26 $378,428 $120,000 $498,428
27 $378,428 $122,400 $500,828
28 $378,428 $124,848 $503,276
29 $378,428 $127,345 $505,773
30 $378,428 $129,892 $508,320
Annual Rent Schedule to City of San Carlos Years 1-20 & 21-30
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BILLBOARD RELOCATION AGREEMENT
BETWEEN THE CITY OF SAN CARLOS AND
PALLCO ENTERPRISES INC DBA ORION OUTDOOR MEDIA.
This BILLBOARD RELOCATION AGREEMENT ("AGREEMENT") is made and entered into as of this ___ day of___________, 2022, by and between the CITY OF SAN CARLOS, a California municipal corporation ("CITY") with its principal place of business located at 600 Elm Street, San Carlos, CA 94070 and Pallco Enterprises Inc. DBA Orion Outdoor Media , a California corporation, registered in the State of California, with its principal place of business located at 3161 Cameron Park Drive Ste #221, Cameron Park, CA 95682. CITY and Orion Outdoor Media may be referred to individually as a "PARTY" or collectively as the "PARTIES" to this AGREEMENT.
RECITALS
A. Orion Outdoor Media shall agree to remove those certain billboards located within the County of Shasta commonly described and shown by maps in EXHIBIT "A", and that certain billboards have been removed within the City entitled "REMOVED BILLBOARDS," attached hereto and incorporated herein by this reference (hereafter the "REMOVED BILLBOARDS") on the terms and conditions provided herein; and
B. This AGREEMENT will serve the public interests of the CITY by allowing it to continue its development in a planned manner without the expenditures of public funds for which may have otherwise been required ; furthermore, the CITY certifies that the fulfillment of the terms and conditions of this AGREEMENT are consistent with the City's General Plan and City Code (hereinafter "CODE") including Section 12.28.085 and Sections 18.22.050 and 18.22.080 of the CODE which expressly permit billboards on CITY property pursuant to an agreement from the City Council, and will result in the removal of two (2) billboard structures within a Landscape Freeway Segment within the State of California; and
C. In consideration for the removal of the REMOVED BILLBOARDs in accordance with the terms of this AGREEMENT, CITY is willing to allow Orion Outdoor Media to erect a new, V-shaped LED outdoor advertising sign with 14’ x 48’ display faces as described in EXHIBIT "B" (hereafter "NEW BILLBOARD") all pursuant to and in accordance with the terms set forth below; and
D. Orion Outdoor Media acknowledges that the outdoor advertising sign relocation described and consented to herein complies with, and serves the purposes enumerated in, the California Outdoor Advertising Act (other than landscaping), including, but not limited to, Sections 5412 and, 5443 (A) (b)
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1 and 2, and section 5443.5 thereof and that the NEW BILLBOARD complies with and is permitted under the CODE; and
E. The NEW BILLBOARD will be erected on a C I T Y p r o p e r t y i n t e r e s t located at 611 Industrial Road in the City of San Carlos, California (APN 046-090-370) (the "PROPERTY"), such property being CITY property pursuant to a Le a s e A g r e e m e n t ( “L E A S E” ) by a n d b e t w e e n the C I T Y and R & M Dean Associates, LLC, a California limited liability company ( “OWNER”) in the form attached hereto as EXHIBIT “C” , and incorporated by this reference, and subleased by the CITY to Orion Outdoor Media pursuant to the S u b l ease Agreement ("SUBLEASE") between th e PARTIES in the form attached hereto as EXHIBIT "D", and incorporated by this reference; and
F. The CITY has prepared an Initial Study pursuant to the California Environmental Quality Act. Based on the Initial Study, the CITY has prepared, posted, circulated and, on February 22 nd, 2022 , adopted a mitigated negative declaration (File No. 2022-000038) which confirms based on substantial evidence that Orion Outdoor Media proposed removal of the REMOVED BILLBOARDS, as more fully described in EXHIBIT "A" hereto, and construction of the NEW BILLBOARD, as more fully described in EXHIBIT "B" hereto, in accordance with this AGREEMENT would not have the potential for any significant environmental impacts and further that the NEW BILLBOARD would be compatible with the existing industrial character of the project site and the general project area; and
G. WHEREAS, on February 22nd, 2022, the Planning Commission conducted a duly noticed public hearing on O r i o n O u t d o o r M e d i a’ s proposal to remove the REMOVED BILLBOARDS and to construct the NEW
BILLBOARD as further set forth herein and the Planning Commission granted design review approval to Orion Outdoor Media to construct the NEW BILLBOARD and made the requisite findings as set forth in Section
18.22.050(D) of the CODE based on substantial evidence all as more particularly described and for all the reasons set forth in that report from the Planning Director to the Planning Commission dated February 16 th, 2022; and
H. WHEREAS, on August 8 th, 2022, after conducting a duly noticed public hearing, the City Council adopted a resolution approving this AGREEMENT with Orion Outdoor Media and authorizing the City Manager to sign this AGREEMENT on behalf of the CITY; and
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I. WHEREAS, the CITY believes that the fulfillment of the terms and conditions of this AGREEMENT will preserve or further the public health, safety and welfare.
The PARTIES acknowledge that the foregoing recitals are true and correct and are incorporated herein as a part of this AGREEMENT.
SECTION 2. ORION OUTDOOR MEDIA AND CITY AUTHORITY AND STATUS.
A. ORION OUTDOOR MEDIA hereby represents and warrants for the benefit of CITY all of the following:
1. That the information in this AGREEMENT is true and accurate to the best of ORION OUTDOOR MEDIA’S knowledge after a diligent inquiry; and
2. That ORION OUTDOOR MEDIA is a duly organized, validly existing corporation in good standing under the laws of its place of incorporation and of the State of California; and
3. That ORION OUTDOOR MEDIA’S execution of this AGREEMENT is authorized by resolution, bylaws, or constitution of ORION OUTDOOR MEDIA, which resolution, bylaw or constitution is currently in full force and effect, to execute this AGREEMENT on ORION OUTDOOR
MEDIA’S behalf and bind ORION OUTDOOR MEDIA thereby; and
4. That ORION OUTDOOR MEDIA is duly authorized to perform or to cause to be performed all of the obligations of ORION OUTDOOR MEDIA, or ORION OUTDOOR MEDIA’S contractors, subcontractors or other agents, under and in accordance with the terms and conditions of this AGREEMENT; and.
5. That ORION OUTDOOR MEDIA is duly authorized to remove or cause to be removed the REMOVED BILLBOARDS from the real property where it is located on the terms and conditions specified herein.
B. CITY hereby represents and warrants for the benefit of ORION OUTDOOR MEDIA all of the following:
1. That the information in this AGREEMENT is true and accurate to the best of CITY'S knowledge after a diligent inquiry; and
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2. That CITY'S execution of this AGREEMENT is authorized by resolution, which resolution, is currently in full force and effect, to execute this AGREEMENT on the CITY 'S behalf and bind the CITY thereby; and
3. That the CITY is duly authorized to perform or to cause to be performed all of the obligations of CITY under and in accordance with the terms and conditions of this AGREEMENT.
SECTION 3. EFFECTIVE DATE OF AGREEMENT.
A. The AGREEMENT shall become effective upon (i) approval of the AGREEMENT by the City Council by resolution, (ii) The CITY'S authorization of the removal of the REMOVED BILLBOARDS in accordance with the timeline and provisions herein , (iii) the issuance of building permits for the construction of the NEW BILLBOARD, (iv) the execution of the L E A S E b y C I T Y a n d O W N E R , ( v ) t h e e x e c u t i o n o f t h e S U B LEASE by CITY and ORION OUTDOOR MEDIA and (vi) the execution of this AGREEMENT (the completion of the last to occur of such requirements shall be deemed the "EFFECTIVE DATE").
B. The AGREEMENT shall commence upon the EFFECTIVE DATE and terminate when the last of the following terms and conditions are fully satisfied:
1. When the REMOVED BILLBOARDS ARE removed as provided herein;
2. When the NEW BILLBOARD is fully constructed and advertising copy is posted;
3. When the LEAS E com men ces; and
4. Wh en th e S UBLEASE commences.
SECTION 4. BILLBOARD STATUS.
The PARTIES hereto acknowledge that ORION OUTDOOR MEDIA will permanently remove the REMOVED BILLBOARDS a s p r o v i d e d h e r e i n in consideration of approval to construct the NEW BILLBOARD, on or before___________, 2022. The REMOVED BILLBOARDS and any right title and interest therein or right to place a billboard, whether by lease, license or other right, at the location of the REMOVED BILLBOARD shall be forever terminated and shall not be or have been assigned, transferred or given to any other entity, affiliate, subsidiary, person or party. ORION OUTDOOR MEDIA represents and warrants
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all of the following for the benefit of the CITY, and the CITY is specifically relying upon each and every one of ORION OUTDOOR MEDIA’S representations and warranties in its decision to enter into this AGREEMENT:
A. The NEW BILLBOARD will at all times be maintained lawfully and in a manner that is in full compliance with federal, state and local laws, rules and regulations; and
B. ORION OUTDOOR MEDIA’S fulfillment of the terms and conditions of this AGREEMENT will not violate and will not result in the violation of any federal, state or local laws, rules or regulations; and the CITY acknowledges that the following provisions of the CODE shall be interpreted as follows with respect to the NEW BILLBOARD:
C. Provided the NEW BILLBOARD is operated in accordance with the operating requirements set forth in EXHIBIT "E" hereof, it shall not be deemed to be an animated or flashing sign under the CODE.
1. The NEW BILLBOARD shall be permitted and authorized by City Council under Section 12.28.050 and Sections 18.22.050 and 18.22.080(M) of the CODE.
2. The NEW BILLBOARD shall not be deemed to be prohibited under Section 18.22.110 of the CODE including subsections (D), (G), (K) or (L).
3. Copy shall be permitted to be changed on the NEW BILLBOARD faces without a permit notwithstanding the provisions of Section 18.22.050(B) of the CODE.
SECTION 5. TIM E FOR REMOVAL OF BILLBOARDS
ORION OUTDOOR MEDIA shall permanently remove the REMOVED BILLBOARDS as provided below, on or before ________20 22 ("REMOVAL DATE"), p r o v i d ed t h at ORION OUTDOOR MEDIA ( i ) h a s r e c ei v e d all required approvals and permits (“PERMITS") to construct the NEW BILLBOARD from the CITY and California Department of Transportation (CalTrans), (ii) the LEASE h a s b e e n e x e c u t e d ; a n d ( i i i ) t h e S U B L E A S E has been executed. Removal shall include the complete removal of the billboard face, support structures other than one I-beam upon which the landowner of the property on which the REMOVED BILLBOARDS are located.
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SECTION 6. THE PARTIES' RIGHTS AND OBLIGATIONS.
A. ORION OUTDOOR MEDIA shall not be obligated to remove the REMOVED BILLBOARDS or permitted to erect the NEW BILLBOARD pursuant to this AGREEMENT unless and until ORION OUTDOOR MEDIA has received all required CITY approvals and permits for the removal or erection, as applicable of such billboards within the jurisdictional boundaries of the City of San Carlos, and all State of California approvals and permits for billboards required by CalTrans.
B. The CITY shall cooperate with ORION OUTDOOR MEDIA, if necessary, to obtain approvals from Cal Trans and any other oversight agency for the construction of the NEW BILLBOARD and permanent removal of the REMOVED BILLBOARDS.
SECTION 7. RELATIONSHIP OF PARTIES.
Under no circumstances shall this AGREEMENT be construed as one of agency, partnership, joint venture or employment between ORION OUTDOOR MEDIA and the CITY, notwithstanding that concurrently the PARTIES will be entering into the LEASE. Each PARTY acknowledges and agrees that it neither has, nor will it give, the appearance or impression of having any legal authority to bind or commit the other PARTY in any way, notwithstanding that this AGREEMENT is binding on and between the PARTIES.
SECTION 8. INSURANCE REQUIREMENTS.
ORION OUTDOOR MEDIA agrees to have and maintain the policies set forth in EXHIBIT "F" entitled "INSURANCE," attached hereto and incorporated herein by this reference.
SECTION 9. RELEASE.
Other than any claims related to a breach, enforcement, or interpretation of this AGREEMENT and the S U BLEASE which are expressly reserved by the PARTIES, upon receipt of the PERMITS, ORION OUTDOOR MEDIA releases and forever discharges the CITY, its past and present officers, officials, employees, partners, agents, predecessors, successors, consultants, attorneys , and assigns, from any and all claims, demands, damages, actions, or suits, relating to, arising out of, or in any way connected with the permanent removal of the REMOVED BILLBOARDS, including but not limited to claims for condemnation, eminent domain, or just compensation.
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SECTION 10. INDEMNIFICATION AN D HOLD HARMLESS.
ORION OUTDOOR MEDIA agrees to protect, defend at its expense, indemnify and hold harmless the CITY, its officers, attorneys, employees and agents (collectively, "INDEMNIFIED PARTIES") from any and all third party liabilities, losses, damages, suits, actions; or claims, including reasonable attorneys' fees, (collectively, "CLAIMS"), which CLAIMS are alleged or claimed to have arisen out of or in connection with, in whole or in part, directly or indirectly:
A. The performance of ORION OUTDOOR MEDIA’S obligations under this AGREEMENT (including any amendments hereto) by ORION OUTDOOR MEDIA, its employees, agents, representatives or subcontractors;
B. The failure of ORION OUTDOOR MEDIA , its employees, agents, representatives or subcontractors to comply and conform with applicable laws in the performance of ORION OUTDOOR MEDIA’S obligations under this AGREEMENT;
C. Any negligent act or omission of ORION OUTDOOR MEDIA , i t s employees, agents, representatives or subcontractors, in the performance of ORION OUTDOOR MEDIA’S obligations under this AGREEMENT, whether or not such negligence is claimed to be either solely that of ORION OUTDOOR MEDIA, its employees, agents, representatives or subcontractors , or to be in conjunction with the actual negligence of others;
D. Any reckless or intentional wrongful act or omission of ORION OUTDOOR MEDIA, its employees, agents, representatives or subcontractors in the performance of ORION OUTDOOR MEDIA’S obligations under this AGREEMENT; or any injury, medical condition, illness, disease, or death caused, in whole or in part, or aggravated, by ORION OUTDOOR MEDIA’S construction, operation or maintenance of the NEW BILLBOARD;
E. Any and all CLAIMS against the CITY from third PARTIES related to ORION OUTDOOR MEDIA’S obligations under this AGREEMENT , including those arising out of the approval of this AGREEMENT, approval of entitlements and the permanent removal of the REMOVED BILLBOARDS, including CLAIMS by landlord of the REMOVED BILLBOARDS, and construction, operation and installation of the NEW BILLBOARDS. If such a claim is brought, the PARTIES shall promptly notify the other PARTY of such claim and each PARTY shall cooperate with the efforts of the ORION OUTDOOR MEDIA to defend such claim.
The CITY will not voluntarily assist the opposing PARTY in any such claim or take any position adverse to ORION OUTDOOR MEDIA in
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connection with such claim.
Notwithstanding any other provision of this AGREEMENT, ORION OUTDOOR MEDIA shall not have the obligation to protect, defend, indemnify or hold harmless any of the INDEMNIFIED PARTIES from CLAIMS to the extent they arise in whole or in part, directly or in directly, or are alleged to have arisen out of the negligence or reckless or intentional wrongful act or omission of any of the INDEMNIFIED PARTIES.
SECTION 11. TERMINATION.
A. If ORION OUTDOOR MEDIA or the CITY fails to perform any of its material obligations under this AGREEMENT after written notice of same and an opportunity to cure such failure, in addition to all other remedies provided by law or in equity, the other PARTY may terminate this AGREEMENT upon thirty days' written notice to the other PARTY.
B. In the event of a dispute concerning a PARTIES right to terminate this AGREEMENT under this SECTION, the PARTIES agree to attempt resolution this matter through mediation through an agreed neutral mediator with JAMS or ADR, Inc., in San Francisco, San Mateo or Santa Clara Counties. The PARTIES agree to be bound by the decision made by the arbitrator. If ORION OUTDOOR MEDIA is required to stop work due to termination of this AGREEMENT, all work shall stop immediately, except for all work necessary to prevent an immediate danger or hazard or to secure a building site.
SE CTION 12. NOTICES.
Any communication or notice which either PARTY is required to send to the other or which either PARTY desires to send to the other, shall be in writing and shall be either personally delivered or mailed using the United States Postal Service, postage prepaid, to the respective PARTY addressed as follows:
TO THE CITY: City Manager
City of San Carlos
600 Elm Street
San Carlos, CA 94070
Gregory J. Rubens, City Attorney
600 Elm Street,
San Carlos, CA 94070
TO ORION OUTDOOR MEDIA: ORION OUTDOOR MEDIA
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3161 Cameron Park Drive, Suite 221
Cameron Park, CA 96682
Attention: Beau Palley
WITH A COPY TO: John David Pereira Esq.
3450 Palmer Drive Ste#4-298
Cameron Park, CA 95682
Attention: General Counsel
Either PARTY may change its address by sending notice of the new address to the other PARTY pursuant to this SECTION.
SECTION 13. ENTIRE AGREEMENT.
This AGREEMENT, including its exhibits, represents the entire understanding of the PARTIES as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder.
SECTION 14. AUTHORITY; RIGHTS; SEVERABILITY.
The PARTIES agree and acknowledge:
A. This AGREEMENT was negotiated and entered into by the CITY pursuant to the authority conferred upon it by law including the purposes enumerated in, the California Outdoor Advertising Act, including, but not limited to, Sections 5412 and 5443.5 thereof, which provides in part that: "Cities. . . are specifically empowered to enter into relocation agreements on whatever terms are agreeable to the display owner and the city . . . and to adopt ordinances or resolutions providing for the relocation of displays."
B. That the rights conferred upon ORION OUTDOOR MEDIA under this AGREEMENT are vested as of the EFFECTIVE DATE, and as such, any future sign regulation that may otherwise alter the terms of this AGREEMENT, or diminish ORION OUTDOOR MEDIA’S rights with respect to maintaining and operating its NEW BILLBOARD, shall respect and preserve such vested rights;
C. That, if any provision of this AGREEMENT is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, then said provision shall be severed, and the remaining provisions shall remain in full force and effect. Notwithstanding any provision declared illegal,
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invalid, or unenforceable, this AGREEMENT has valid purposes, which include inter alia facilitating the net reduction of billboard signs in the CITY in order to preserve and improve urban aesthetics and traffic safety while also properly balancing private property and commercial speech rights;
D. That nothing in this AGREEMENT shall be read to impermissibly interfere with the lawful exercise of the CITY’S police powers to protect the public from serious threats to health or safety; and
E. That this SECTION shall apply to all portions of this AGREEMENT; and to the extent any language in this AGREEMENT is deemed inconsistent or contrary to this SECTION, the language contained in this SECTION shall con trol.
SECTION 15. MISCELLANEOUS PROVISIONS.
A. The PARTIES agree that this AGREEMENT shall be governed and construed in accordance with the laws of the State of California. In the event that suit shall be brought by either PARTY to this AGREEMENT, the PARTIES agree that venue shall be exclusively vested in the state courts of the County of San Mateo, or, where otherwise appropriate, exclusively in the United States District Court, Northern District of California.
B. The headings of the sections and subsections of this AGREEMENT are inserted for convenience only. They do not constitute a part of this AGREEMENT and shall not be used in its construction.
C. The PARTIES acknowledge that this AGREEMENT is the product of negotiation and compromise on the part of both PARTIES, and the PARTIES agree, that since both PARTIES have participated in the negotiation and drafting of this AGREEMENT, this AGREEMENT shall not be construed as if prepared by one of the PARTIES, but rather according to its fair meaning as a whole, as if both PARTIES had prepared it.
D. The waiver by any PARTY to this AGREEMENT of a breach or violation of any provision of this AGREEMENT shall not be deemed a continuing waiver, a waiver of any other term or condition contained herein, or a waiver of any subsequent breach or violation of that or any other provision of this AGREEMENT.
E. Any and all exhibits that are referred to in this AGREEMENT are
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incorporated herein by reference and are deemed a part of this AGREEMENT.
F. This AGREEMENT may be amended only by written agreement executed by both PARTIES.
G. Where this AGREEMENT refers to the CITY and no officer of the CITY is named, the City Manager of the CITY shall have the authority to act on behalf of the CITY.
(Signature page to follow)
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WITNESS THE EXECUTION HEREOF as of the date first hereinabove written.
Approved as to form:
________________________________
Name:
City Attorney
Attest:
_____________________________
City Clerk
CITY OF SAN CARLOS,
CALIFORNIA
a California municipal corporation
By:______________________________
Name:
City Manager
Pallco Enterprises Inc. DBA Orion Outdoor Media
A California Corporation
By: _
Beau Palley
CEO & Chairman
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EXHIBIT “A”
REMOVED BILLBOARD
ORION OUTDOOR MEDIA shall remove the following REMOVED
BILLBOARDS in accordance with the terms and conditions of this AGREEMENT:
Billboards to be Removed
Located at:
I-5 Freeway
County of Shasta
City of Redding
State Post mile 12.48R
State Permit# 22024
12’ x 56’
Located at:
I-5 Freeway
County of Shasta
City of Shasta Lake
State Post mile 20.37L
State Permit# 40260
12’ x 40’
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EXHIBIT “ B”
NEW BILLBOARD
ORION OUTDOOR MEDIA shall construct a new billboard ("NEW BILLBOARD") in accordance with the terms and conditions of this AGREEMENT and S U BLEASE such that it has the following characteristics:
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Attachment: Relocation Agreement - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement) SJ - San Jose #4888-2022-2212 v1
08344-0000
DRAFT
|
EXHIBIT "D"
SUBLEASE
AGREEMENT
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SJ - San Jose #4895-9838-2865 v1
08344-0022
DRAFT
Sublease Agreement
Lease No. ______
THIS SUBLEASE AGREEMENT (“Sublease”) is dated as of _____________, 2022 (the “Effective Date”), by and between the CITY OF SAN CARLOS (the “City”), a California municipal corporation, and Pallco Enterprises Inc. a California S Corporation DBA ORION OUTDOOR MEDIA (“OOM”).
RECITALS
WHEREAS, the City has entered into a Lease Agreement dated as of _______________, 202 2 (the “Master Lease”) with, R & M Dean Associates, LLC a California limited liability company (the “Master Landlord”) whereby the City is leasing property and airspace along US Highway 101, located at 611 Industrial Road, San Carlos, California 94070 (APN 046-090-370), as further described and depicted in Exhibit A attached hereto and incorporated herein (the “ Property”); and WHEREAS, OOM is in the business of outdoor advertising; WHEREAS, the City and OOM desire to enter into this Sublease to allow OOM to construct an outdoor adverti sing structure, including, without limitation, two (2) 14’ x 48’ LED (Light Emitting Diode) displays (the “ Digital Displays”), fixture connections, electrical supply, and connections, copy and any other equipment and accessories as OOM may place thereon (collectively, the “ Sign”) on a portion of the Property as shown generally on Exhibit B attached hereto and incorporated herein (the “Premises”), to the extent necessary for placement of the Sign; WHEREAS, the City and OOM have agreed that development of the Premises for the Sign’s use is in furtherance of the City’s desire to promote civic purposes and commerce, make community announcements and develop the City as an attractive location for customers and business owners; and
NOW, THEREFORE, for and in consideration of the faithful performance of the City and OOM of the terms, covenants and conditions hereof and of the payments herein provided to be made by OOM, the City and OOM hereby agree as follows:
AGREEMENTS
1. Use. The City hereby Subleases the Premises exclusively to OOM for the purpose of conducting outdoor advertising, erecting, maintaining, operating, improving, supplementing, posting, painting, illuminating, repairing, reconstructing, repositioning and/or removing the Sign, or any portion thereof. This Sublease includes all rights of ingress and egress over the Property necessary for OOM to legally access the Sign from a public roadway. OOM may license the use of the Sign, or any portion thereof, for any lawful purpose. The City makes no representations or warranties of any kind; express or implied, written or oral, about any of the following: the physical condition of the Premises; the suitability of the Premises for OOM’s anticipated use; any
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Attachment: Relocation Agreement - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement)
OTAD\54300\1253944.11 2
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08344-0022
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limitations on OOM’s use of the Premises, including limitations arising from zoning laws, environmental laws, or other laws, regulations, or governmental requirements; the costs of conducting OOM’s business on the Premises; or the condition of the soils or ground waters of the Premises. By taking possession of the Premises, OOM accepts the Premises “as is” and acknowledges that the Premises is satisfactory for OOM’s purposes. OOM has ascertained the condition of the Premises through its own independent investigation and has relied solely on that independent investigation when entering into this Sublease. Notwithstanding anything herein to the contrary, to the extent the Master Landlord makes any representations or warranties to the City with respect to the Premises concerning the subject matters described in this Section 1 or Master Landlord’s ownership of the Premises , OOM acknowledges the representations and warranties made by Master Lessor with respect to the condition and ownership of the Premises and any such representations and warranties, though nothing in this paragraph shall be construed as a waiver of any rights OOM may have against the Master Lessor. The City agrees tha t, in the event that any of the representations and warranties made by Master Landlord regarding the Premises are materially incorrect or misleading and could result in any impairment of OOM’s intended use of the Premises as contemplated herein, the City will assign its rights to enforce the Master Lease to OOM for the temporary and limited purpose of to permit OOM to use the Premises as contemplated herein, and pursuing any action against the Master Landlord and recovering any losses, liabilities, fines, penalties, forfeitures, costs or damages which OOM may incur as a result of such materially incorrect or misleading representations and warranties. This assignment will expire at the conclusion of the actions for recovery as set forth above and shall in no event act to prevent City from seeking recovery of any losses, liabilities, fines, penalties, forfeitures, costs or damages resulting from such materially incorrect or misleading representations and warranties from Master Lessor or any and all remedies it may have against OOM.
2. Term.
2.1 The term of this Sublease shall commence on the Commencement Date and continue to a date which is twenty (20) years from the Commencement Date (the “ Initial Term”). OOM may extend the Initial Term for one (1) additional ten (10) year period (the “Extension Term ”) by providing written notice to the City at least ninety (90) days prior to the expiration of the Initial Term of OOM’s election to extend the Initial Term. Suc h Extension Term shall commence on the date imm ediately following the twent ieth anniversary of the Commencement Date and continue to the date which is the thirtieth anniversary of the Commencement Date (any Extension Term and, together with the Initial Ter m, is sometimes referred to herein as the “ Term”). The City agrees that, if OOM exercises its right to extend the Initial Term, City shall exercise its corresponding right under the Master Lease. Furthermore, in accordance with the Master Lease, OOM may exercise such right to extend the Initial Term by providing notice to both the City and the Master Landlord and any such notice from OOM shall be deemed to be the exercise by the City of its intent to extend the term of the Master Lease.
2.2 The “ Commencement Date ” is the first day of the calendar month following the date when (i) OOM has obtained of all local, municipal and state governmental permits and approvals ( collectively, the “Governmental Approvals ”) necessary or required for
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Attachment: Relocation Agreement - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement)
OTAD\54300\1253944.11 3
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the erection, maintenance, and operation of the Sign, including , but not limited to , compliance with the California Environmental Quality Act (“ CEQA”) and CalT rans requirements, (ii) the construction of the Sign is complete, and (iii) the Sign is fully operational (i.e. the Sign is legally and functionally capable of displaying advertising on the Digital Displays, including meeting all state and federal regulations and requirements ). If the Commencement Date has not occurred within two (2) years of the Effective Date, OOM or City may terminate this Sublease upon providing thirty (30) days written notice to the other party. This Sublease expires automatically at the end of the Term (including if OOM does not exercise its right to extend the Initial Term as set forth in Section 2.1 above). Any holding over after expiration will not constitute a renewal of this Sublease (or the Master Lease) but will result in a tenancy at sufferance, and City and/or the Master Landlord may, without limiting their other rights and remedies, immediately pursue eviction of OOM. Except as provided herein, this Sublease may not be construed as creating an expectation of renewal or a right to hold over after the Term has expired.
3. Permits. OOM agrees to use commercially reasonable efforts to obtain the Governmental Approvals necessary to construct the Sign at its sole cost and expense, and the City shall reasonably cooperate with OOM to obtain the Governmental Approvals from other agencies having jurisdiction to approve such a Sign. The City shall use reasonable efforts to issue all required Governmental Approvals as are necessary to allow OOM to construct, operate, and maintain the Sign within the City’s authority to review and issue (“City Permits”), pursuant to the City’s established processes and procedures. All Governmental Approvals shall remain the property of OOM. The City shall diligently process OOM’s applications for all City Permits. This Sublease does not commit the City in advance to approve the City Permits; and this Sublease does not constrain the City’s discretion to act in its governmental capacity.
4. Sign. Subject to a Force Majeure Event, within one hundred eighty (180) days, which may be reasonably extended by OOM with City approval an additional one hundred eighty (180) days, after receipt of all necessary Governmental Approvals, OOM shall commence construction of the Sign and shall thereafter complete such construction with diligence. The final design and height, final plans and specifications, and location on the Premises for the Sign shall be substantially similar to the Sign Conceptual Drawing attached hereto as Exhibit C and incorporated herein, provided that any material changes to such Sign Conceptual Drawing shall be subject to Governmental Approvals and City’s and the Master Landlord’s approval, not to be unreasonably withheld , conditioned or delayed; and provided, further, that unless such proposed changes result in a material and adverse effect on the operation of the Property, the Master Landlord shall be deemed to have approved such material change in the Sign Conceptual Drawing if City approves such change. OOM may operate the Sign from approximately 6:00 A.M. to 11:59 P.M. local time daily, and in a manner which is sufficient to render it visible at night to passing vehicles. The Digital Displays on the sign may not be illuminated during the hours of 12:00 A.M. to 5:59 A.M. local time daily without specific authorization from the City. For purposes hereof, a “Force Majeure Event” means a cause of delay that is not the fault of the party who is required to perform under this Lease and is beyond that party’s reasonable control, including the elements (including floods, earthquakes, windstorms, and unusually severe weather), fire, energy shortages or rationing, riots, acts of terrorism (including the results of such acts), war or war -defense conditions, acts of any public enemy, epidemics, the actions or inactions of any governmental entity (excluding the City ) or that entity’s agents, litigation, labor
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Attachment: Relocation Agreement - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement)
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SJ - San Jose #4895-9838-2865 v1
08344-0022
DRAFT
shortages (including shortages caused by strikes or walkouts), and materials shortages. Except for the construction of the Sign as provided above, OOM may not make any improvement, alteration, addition or change to the Premises without the City’s and Master Landlord’s prior written consent.
5. Content.
5.1 All advertising content displayed by OOM on the Digital Displays shall comply with all applicable laws and regulations, including but not limited to laws and regulations pertaining to outdoor advertising, and shall comply with the restrictions set forth in Sections 5.2(a) through 5.2(f) below.
5.2 Following written notice from the City, OOM, within a reasonable time following written request therefor, shall remove from the Sign any advertising message that, in the reasonable judgment of the City:
(a) Is inherently false, misleading, or libelous (i.e., speech that is incapable of being presented in a manner that is not misleading);
(b) Directly promotes the sale or use of tobacco products, illegal drugs or products, marijuana or Cannabis products containing THC content greater than 0.3 percent;
(c) Contains “obscene matter,” as that term is defined in California Penal Code section 311 as of the Effective Date;
(d) advertises an adult entertainment establishment;
(e) Promotes or opposes a candidate or individual for public office or who is running for office, or promotes or opposes a ballot measure; or
(f) Contains language that is obscene, vulgar, profane, or scatological, or that presents a clear -and-present danger of causing riot, disorder, or other imminent threat to public safety, peace, or order.
5.3 OOM may, from time to time, provide an image or representation of any proposed advertising message in advance of placement on the Sign (each a “Proposed Ad”). Within seven (7) business days following receipt by City of a Proposed Ad, City shall notify OOM whether, in the City’s reasonable judgment, the advertisement violates the restrictions set forth in Section 5.2 (each, a “ Content Notice ”). If the City deems the Proposed Ad to violate the restrictions set forth in Section 5.2, OOM shall not place the Proposed Ad on the Sign without first obtaining the City’s express or deemed approval to the Proposed Ad as it may thereafter be revised.
If the City fails timely to provide any Content Notice within such seven (7) business day time period, such Proposed Ad shall be deemed approved. Notwithstanding the foregoing, solely in the event an Proposed Ad is deemed approved pursuant to this Section 5.3 and after such Proposed Ad has been placed on the Sign, if City reasonably determines that such Proposed Ad violates the
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restrictions set forth in Sections 5.2(a) through 5.2(f) above then City may request in writing that OOM remove such Proposed Ad from being displayed on the Sign which notice shall include an explanation for City’s determination and requested removal. OOM shall then remove such Proposed Ad within two (2) business days of OOM’s receipt of such notice requesting removal.
6. Prohibited Uses.
6.1 Hazardous Substances . OOM shall not use, handle, store, transport, generate, release or dispose of any Hazardous Substances on, under, or about the Premises, except as follows: OOM may use Hazardous Substances that OOM needs to install, operate, maintain, repair, improve, reposition, or remove the Sign in accordance with this Sublease, if the City has consented in writing before the Hazardous Substances are brought on the Premises and OOM will comply with all applicable environmental laws . Within ten (10) days of receiving the City’s written request, OOM shall disclose in writing all Hazardous Substances then being used on the Premises, the purpose and duration of the use, and the manner of storage and disposal. “Hazardous Substances” means any material or substance identified on Exhibit D attached hereto.
6.2 Unlawful Activities. OOM shall not use or permit the Premises to be used (including the operation of the Sign) in any way that violates this Sublease, the Master Lease or any statute, ordinance, regulation, rule, or order of any federal, state, or local governmental entity (including the City) (collectively, the “ Legal Requirements”), and nothing shall be done on said Premises which will suspend the insurance upon the Sign owned by OOM. OOM shall not maintain or commit, or permit the maintenance or commission of any public or private nuisance as defined by any law applicable to the Premises . OOM hereby waives any rights to compensation it may have against the City if a court finds that the Sign constitutes a public or priv ate nuisance under any valid and applicable federal, state, or local law and for that reason orders OOM to remove or modify the Sign or to limit its operation , except that, in such event, all Rent (as defined below) amounts due hereunder shall be abated for the entirety of any period during which the Sign cannot be operated as a result of such court finding. This waiver will not apply if the court’ s finding of nuisance is in an action brought by the City or under a City ordinance.
6.3 Encumbrances. OOM shall not encumber, or permit to be encumbered, the Premises or any part of the Premises, for any purpose, without the City’s and the Master Lessor’s prior written consent, which, in the case of the City, the City may withhold for any reason (except for any encumbrances necessary for the construction and operation of the Sign, in which case, City shall not unreasonably withhold, condition or delay such consent), and in the case of the Master Lessor, shall be in the Master Lessor’s sole and absolute discretion (except for any encumbrances necessary for the construction and operation of the Sign, in which case, the Master Lessor shall not unreasonably withhold, condition or delay such consent). OOM shall keep the Premises free of all liens and other encumbrances other than those, if any, to which the City consents.
6.4 Compliance with Laws. OOM shall, at all times during the Term, at no cost to City, promptly comply with all Legal Requirements relating to (a) the operation of the Sign, or (b) the use, condition, configuration or occupancy of the Premises. In addition, if a change to the
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Property becomes required under any Legal Requirements as a result of any alterations, additions or improvements to the Premises, the Master Landlord shall perform all such compliance work, at OOM’s sole cost and expense. OOM shall pay to the Master Landlord the cost of such compliance work within ten (10) business d ays of receiving written notice from the Master Landlord of the amount of same (along with such supporting documentation thereof requested by OOM) and prior to the date the Master Landlord commences such compliance work.
7. Exclusivity. Except for the City’s right to display outdoor advertising relating to City purposes on the City Displays (as hereafter defined), OOM shall have the exclusive right to display outdoor advertising on the Premises. Without limiting the foregoing, City shall not permit the Premises or any adjacent Property owned or controlled by City to be used for off -premise advertising.
8. City Messages.
8.1 City Guaranteed Spots. OOM agrees to provide to the City at no cost with one (1) guaranteed spot in a standard rotation on each of the Digital Displays four (4) times per calendar year during the Term; provided that only one (1) spot may be used each quarter. Each spot will run no more than eight (8) seconds in the standard rotation of eight (8) spots per Digital Display and such spot shall only continue to be displayed for a maximum of two (2) weeks in duration (or a minimum of 14,000 spots during each two (2) week period). The City shall provide two (2) weeks notice prior to requesting a spot. OOM shall use commercially reasonable efforts to accommodate such requested time periods. In addition, at the request of the City Manager or the City Manager’s designee, OOM may make the Sign available to the City, on a space available basis, as reasonably determined by OOM, for display of City Messages (defined below). Display of City Messages on a space available basis may be terminated by OOM at any time, without prior notice to the City, in the event that the space is sold or will otherwise be used by OOM in the normal course of business.
8.2 City Messages. Each of the guaranteed spots and additional space above (each, a “City Message”) shall be used by the City for the purpose of displaying the City’s own non- commercial messages, which may include such matters as events sponsored by the City or located in the City and conducted by local non -profit organizations so long as the aforesaid local non -profit organizations are not a past, current, or prospective client of OOM. Each City Message must meet OOM’s graphics-arts standards previously delivered to the City (which the City hereby acknowledges having received a copy of such standards), and as such standards may be updated by OOM from time to time, so that the City Messages are “display ready,” at no cost to OOM. OOM shall duplicate (e.g., digitalize), install, and display each City Message at no additional cost to the City. The City Messages shall be put in rotation and receive equal distribution throughout the days the messages are in place.
The City shall supply proposed advertising copy at least five (5) days prior to the posting date in a “display ready” art condition. OOM and City agree to work together on a cooperative basis.
8.3 City Indemnification. The City shall and hereby does agree to indemnify, defend and hold harmless OOM and each of its officers, directors, employees and agents for, from and against, any claims, costs (including, but not limited to, court costs and reasonable attorneys’
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fees), losses, actions or liabilities arising from or in connection with any allegation that any portion of any City Message infringes or violat es the rights, including, but not limited to, copyright, trademark, trade secret or any similar right, of any third party.
8.4 Amber Alert Messages. OOM shall make the Sign available at no cost to the California Highway Patrol, San Mateo County Sheriff, San Carlos Police Bureau, (or San Carlos Police Department if in existence) and/or CalTrans for the purpose of displaying “ Amber Alert” messages in accordance with the Amber Alert Guidelines set forth in Exhibit E attached hereto.
8.5 City Sign and Logo. Following the City’s written request therefore, OOM shall install, operate, maintain, and repair a City sign on each side of the Sign Structure so that such City sign faces the same direction as a display area on the Sign. The size and design of the City sign and logo shall substantially comply with the criteria set forth in Exhibit F attached hereto.
9. OOM Displays.
9.1 The City acknowledges and agrees that OOM shall be entitled to sell advertising space on the remaining rotating messages displayed on the Sign. City agrees that OOM may preempt messaging at any time in order to display emergency messages from federal, state, or local authorities or agencies, including the City of San Carlos or agencies which the City may have contracts to provide police, fire or other emergency services.
9.2 If, at any time during the Term, OOM is unable to obtain or maintain any necessary Governmental Approval for the ope ration of the Sign as a digital advertising structure (“Digital Operation”), or the Digital Operation of the Sign is otherwise prohibited by applicable law, OOM shall have the right a t any time thereafter to convert one or both Digital Displays to traditional, non-digital displays and to modify the Sign in any way deemed necessary by OOM in connection therewith, by providing to the City prior notice thereof. Upon the City’s receipt of such notice, the parties shall negotiate in good faith a change in Rent and other applicable provisions herein in connection with such conversion. If the parties are unable to reach agreement on such new terms and conditions within thirty (30) days of the City’s receipt of such notice pursuant to this Section 9.2, OOM shall have the right to terminate this Sublease by written notice to the City and, upon such termination, if any, the City shall refund to OOM any unused portion of prepaid monthly Rent.
10. Rent.
10.1 On the Commencement Date, OOM shall pay the City a one (1) time non - refundable payment in the amount of one hundred and fifty thousand dollars ($150,000).
10.2 Beginning on the Commencement Date, OOM shall pay the City rent each year of the Term (the “Rent”) equal to the greater of : (a) two hundred and ten thousand dollars ($210,000.00) (the “Minimum Annual Guarantee” or “ MAG”) per calendar year or (b) thirty-two percent (32.0%) of any income actually received by OOM for the Premises (net of any commissions
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paid by OOM to advertising agencies, not to exceed 16-2/3%, and any taxes paid or payable by Orion Outdoor in connection with the sign other than income taxes) in such calendar year for advertising placed on the Sign (“Percentage Rent”). The Rent shall be prorated for each partial year during the Term. On January 1st of the year immediately following the fifth (5th) anniversary of the Commencement Date, and on every January 1st of each fifth (5) year thereafter , the MAG s hall increase by twelve and one-half percent (12.5%) over the MAG then payable by OOM pursuant to this Sublease. The minimum annual rental payments owed to the City of San Carlos during the term of this Agreement are outlined in Attachment 1-R.
10.3 The MAG for each year during the Term shall be paid in twelve (12) monthly installments in advance. The first MAG payment shall be paid on the Commencement Date. With respect to the Percentage Rent, the calculation thereof will be calculated by OOM in its reasonable discretion and OOM will provide the City with a full and accurate statement of such calculation within forty-five (45) days following the end of each calendar year. Upon request, the City shall be entitled to an independent audit of such accounting within thirty days of receipt, at the expense of OOM if such audit discloses an underpayment of greater than 3%. The accounting of annual revenues and any audit shall be kept strictly confidential by the City, subject to the California Public Records Act (Govt. Code Section 6250 et seq.) Notwithstanding the above, City may share the results of the Audit with Master Landlord. The City shall inform OOM of any public records act requests requesting such documents within a reasonable time after receipt and before providing documents responsive to such request. OOM agrees that, if the Percentage Rent in any calendar year exceeds the MAG paid by OOM to the City for such calendar year, the difference by which the Percentage Rent exceeds the MAG shall be paid to the City within forty-five (45) days following the end of the calendar year.
10.4 Notwithstanding any contrary provision hereof, to the extent that City is required to pay any amounts pursuant to Section 9.3 of the Master Lease, then OOM agrees to reimburse City for (or, if OOM and City mutually agree, OOM shall pay directly to the Mas ter Landlord) each of the following to the extent levied against the Master Landlord or the Property, but only to the extent that any of the following strictly relate to the Sign and/or the use of the Premises for the construction and operation of the Sign: (a) any tax based upon or measured by the cost or value of the Sign or other personal property of City or OOM which strictly relates to the Sign, (b) any rent tax, sales tax, service tax, transfer tax, value added tax, use tax, business tax, gross income tax, gross receipts tax, or other tax, assessment, fee, levy or charge measured solely by the Rent (as defined in the Master Lease) or any of City’s rights or obligations described or provided in or under the Master Lease; (c) any tax assessed upon the p ossession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by City or OOM of any portion of the Property; and (d) any tax assessed on this transaction or on any document to which City is a party that creates an interest or estate in the Premises.
11. Ownership; Maintenance.
11.1 OOM is the owner of the Sign, including the Digital Displays and all City permits, entitlements and state permits . Within one hundred twenty (120) days of the expiration or termination of this Sublease, OOM shall remove the Digital Displays and remove the portion
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of the sign structure that is above grade , as well as the foundation if required by the property owner, at OOM sole cost and expense.
11.2 If for any reason, the Sign is removed, materially damaged or destroyed, all prospective Rent payments shall abate until the Sign is reconstructed and operational .
Following any such damage or destruction, OOM shall use commercially reasonable efforts to repair and rebuild the Sign, subject to compliance with the City’s then -current building and electrical code standards. In addition, if OOM is prevented from illuminating the Sign by applicable law, or other cause beyo nd OOM’s control, provided that OOM makes commercially reasonable efforts to re-illuminate and repair the Sign, the payment of Rent may be suspended for such period of non -illumination. OOM shall, at its sole cost, keep and maintain the Sign, all advertising thereon and appurtenances and every part thereof in good and sanitary order, condition and repair and in accordance with the industry standards for similar display structures in the San Francisco Bay Area. The City shall not be required to repair or maintain any portion of the Sign.
12. Insurance. OOM shall provide comprehensive general liability, which shall be primary insurance covering any liability to the City, its officers, officials, employees, and volunteers with respect to the liabilities assumed by OOM under this Agreement, in the amounts set forth below:
Insurance Category Minimum Limits
Workers’ Compensation statutory minimum
Employer’s Liability $1,000,000 per accident for bodily injury or disease
Commercial General $1,000,000 per occurrence
Liability $2,000,000 aggregate for bodily
injury, personal injury and property
damage
Automobile Liability $1,000,000 per accident for bodily injury and property damage
(coverage required to the extent
applicable to OOM’s vehicle usage in
performing services hereunder) and
Advertising Risk $1,000,000 per occurrence
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Such amounts may be reasonably adjusted to the City’s standard coverage requirements every five (5) years during the Term. The aforesaid liability insurance shall also name the Master Landlord and its partners, property manager, and any other parties reas onably designated by the Master Landlord, as additional insureds.
Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the OOM’s insurance and shall not contribute with it with respect to the liabilities assumed by OOM under this agreement. An originally executed certificate or endorsement evidencing such insurance coverage shall be filed with City prior to the Commencement Date and said document shall provide that such insurance coverage will not be canceled or materially changed without at least thirty (30) days’ prior written notice to the City. Prior to the expiration of any such policy, a certificate showing that such insurance coverage has been renewed or extended shall be filed with City. If such coverage is canceled or reduced, OOM shall, within fifteen (15) days after receipt of written notice from the City of such cancellation or reduction of coverage, but in no event later than the date of such cancellation or reduction, file with City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, the City may without further written notice and at its option procure such insurance coverage at OOM's expense and OOM shall promptly reimburse the City for such expense.
13. Obstruction and Off Premise Signs. The City shall not, and shall not permit it s agents, employees or other persons acting on City’s behalf, to place or maintain any object on the Property, or any adjacent property owned or controlled by the City, which, in OOM’s reasonable opinion, would obstruct the view to the face of either Digita l Display on the Sign. If City fails to remove such obstruction within five (5) days after notice from OOM, OOM may in its sole discretion: (a) terminate this Sublease upon ninety (90) days written notice and remove the Sign in accordance with this Sublea se or (b) remove such obstruction, such removal being at the cost and expense of the City and reimbursable to OOM upon demand. OOM may trim any trees and vegetation currently on the Pr operty and on any neighboring property owned or controlled by the City as often as OOM in its sole discretion deems appropriate to prevent obstructions. The City shall not permit the Pr operty or any immediately adjacent parcel owned or controlled by City to be used for off-premise advertising. City shall not be responsible for any such obstructions or Off Premise signs, but shall ensure that the Master Lease contains similar conditions and obligations of the Master Landlord.
14. Interference. If, in OOM’s reasonable opinion: (a) the view of the Sign’s advertising messages becomes entirely or partially obstructed by an object or vegetation not on the Property or any neighboring property owned or controlled by the City and is not otherwise covered by Section 13 above; (b) electrical service becomes unavailable; (c) the Premises cannot safely be used for the erection or maintenance of the Sign for any reason; (d) the Premises becomes unsightly; (e) there is a diversion, reduction or change in directional flow of traffic from the street or streets currently adjacent to or leading to or past the Premises; (f) the Sign’s value for advertising purposes is substantially diminished for any reason such that the required Rent payments are not feasible, in OOM’s sole discretion; (g) OOM is unable to obtain or maintain any necessary permit
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for the erection, use and/or maintenance of the Sign; or (h) the Sign’s use is prevented or restricted by law, or OOM is required by any governmental entity, regulation or ordinance to reduce the number of billboards operated by it in the city, county or state in which the Sign is located (whether or not OOM is specifically required to remove the Sign ), then, in the case of any of (a) through (h), OOM may after ninety (90) days written notice terminate this Sublease.
15. Utilities. OOM shall be responsible for providing and paying for all utilities to the Sign required for OOM’s use. OOM shall obtain a separate meter for such electrical service.
16. Sublease for Cell Service . OOM shall not be entitled to sublease space on the Premises for cellular, data, telephone or other similar use without the prior written consent of City, which consent shall not be unreasonably withheld if the respective, proposed sublease provides that 50% of the respective sublessee’s base rent is to be paid to the City.
17. Notices. All notices required or permitted to be given under this Sublease shall be sufficiently given if personally delivered, or mailed by registered or certified United States mail, postage prepaid, addressed to the party as specified on below:
OOM:
ORION OUTDOOR MEDIA
P.O. Box 6341
Folsom, CA 95763-6341
With a copy to:
GENERAL COUNSEL
John David Pereira Esq.
3450 Palmer Drive Ste 4-298
Cameron Park, CA 95682
CITY :
City of San Carlos
Attention: City Manager
600 Elm Street
San Carlos, CA 94070
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With a copy to:
City of San Carlos
Attention: City Attorney
600 Elm Street
San Carlos, CA 94070
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MASTER LANDLORD:
R & M Dean Associates, LLC
c/o Sequoia Realty Services
1629 Main Street
Redwood City, CA 94063
If mailed, the written notice shall be deemed received and shall be effective on the earlier of the date of actual receipt by the addressee or three (3) business days after deposit in the United States mail in the State of California. If either party gives notice in writing to the other party of any change in said address, then and in that event such notice shall be given at the changed address specified in such notice.
18. Eminent Domain. If the Sign or the Premises, or any part thereof, is condemned by proper authorities; taken without the exercise of eminent domain, whether permanently or temporarily; or any right-of-way from which the Sign is visible is relocated, OOM shall have the option to relocate the Sign on the City’s remaining leased portion of the Property or to terminate this Sublease upon not less than thirty (30) days’ notice and to receive all prepaid Rent for any unexpired term of this Sublease. OOM shall be entitled to a ll compensation and other remedies provided by law, including, without limitation, just compensation for the taking of the Sign Structure, Digital screens, City and State Permits, loss of income and OOM’s leasehold interest in this Sublease, and/or relocat ion assistance. City shall assert no rights in such interests held by OOM, but City shall not be prevented from asserting its rights against the condemning authority, including any rights to payment as allowed by law for the value of the Rent and other payments it was to receive during the unexpired term of the Sublease. If condemnation proceedings are initiated, the City shall use its best efforts to include OOM as a party thereto.
No right of termination set forth anywhere in this Sublease may be exercised prior to the sale to any entity with the power of eminent domain or by or for the benefit of any entity with the power of eminent domain.
19. Authority. The City represents that it holds a long term lease or otherwise has exclusive rights to use the Property, and has the right to enter into this Sublease to bind the City hereby. The City represents and warrants that it is duly authorized under all applicable laws and regulations currently in full force and effect to perform or cause to be perfor med all of the obligations of the City under and in accordance with the terms and conditions of this Sublease.
The parties signing below warrant that they have the specific authority from their respective principals to execute this Sublease on their behalf and agree to provide such resolutions or other documents reasonably necessary to satisfy the other party of such authority. This Sublease is binding upon the heirs, assigns and successors of both the City and OOM. Neither the City nor OOM shall be bound by any terms, conditions or oral representations that are not set forth in this Sublease, the Relocation Agreement of which it is a part, and the respective exhibits. This Sublease represents the entire agreement of OOM and City with respect to the terms stated herein.
The City and the City’ s elected officials, officers, employees, and agents may enter upon and inspect the Premises at any time to determine OOM's compliance with this Sublease.
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20. Indemnification; Exculpation.
20.1 OOM agrees to indemnify, defend (with attorneys reasonably acceptable to the City) and hold harmless the City and City’s officers, employees and agents (each, an “Indemnitee” and, collectively, the “ Indemnitees”) from any “Claims” (as defined below) arising f rom or in connection with, or caused by (a) the use or occupancy of the Premises by OOM or any person claiming through OOM, (b) any injury or death of any person or damage to or destruction of property occurring in, on or about the Premises, (c) any activity or work permitted or suffered in or about the Property by OOM or any persons or entities claiming by, through or under OOM, or any of their respective employees, agents, or contractors, (d) any failure of OOM to observe or perform any of its obligations hereunder or (e) any act, omission or negligence on the part of OOM or any persons or entities claiming by, through or under OOM or any of their respective employees, agents, or contractors which includes any litigation concerning the Lease restriction ag ainst placement of political advertising. For purposes of this Sublease, the term “ Claims” means any and all losses, claims, actions, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and costs). OOM further agrees to indemnify, defend, and hold harmless the City from any and all claims or litigation arising out of the approval of this Sublease, including claims or litigation based on the California Environmental Quality Act, or actions brought to challenge the validity of this Sublease or the validity of the Governmental Approvals. OOM’s obligations under this Section 20 will survive this Sublease. Notwithstanding anything herein to the contrary, the indemnities contained in this Section 20 shall not apply to any Claim caused by the gross negligence or the willful misconduct of any Indemnitee or for Claims or litigation arising from the posting of City Messages or where a third party challenges the City’s regulation of advertising content under Section 5.
20.2 Neither City nor the other Indemnitees shall be liable to OOM or any persons or entities claiming by, through or under OOM, or any of their respective employees, agents, or contractors for injury to or death of any person or for loss of use of or damage to property in or about the Premises or Property, whether the damage or injury results from co nditions arising upon the Premises or upon other portions of the Property of which the Premises are a part, or from other sources.
21. Assignment. This Sublease shall not be assigned, subleased or encumbered by OOM without the prior written consent of the City, which shall not be unreasonably withheld. An assignment of this Sublease in connection with the sale, lease or sublease by OOM of substantially all of its assets in the San Francisco Bay Area or as a result of any dissolution, merger, consolidation, or other reorganization of OOM, or its successors, or other transaction which results in a change of control of OOM, or its successors, shall not require the prior written consent of the City. An assignment, transfer, or sublease made contrary to this Section 21 is void. This Sublease binds and inures to the benefit of the, successors and assigns of the parties. This Section 21 does not constitute the City's consent to any assignment of this Sublease or any interest in the Sublease, or to any sublease of the Premises or any part of the Premises, or to any sublease of the Sign or any part of the Sign.
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22. Default and Remedies.
22.1 In the event of a default by OOM with respect to any of the provisions of this Sublease or its obligations under it, including the payment of the Rent or any amounts due and payable to the City under the terms and conditions of this Sublease, OOM shall have fifteen (15) business days fro m its receipt of written notice of default from the City in which to cure any monetary default and thirty (30) days from such notice to cure any non-monetary default, unless curative action cannot reasonably be accomplished within such thirty (30) day period, in which event said period to cure such default shall be automatically extended as long as OOM promptly commences such cure and diligently pursues and completes such curative action within ninety (90) days. The failure of OOM to cure a default after written notice from the City and the applicable cure period shall be a breach of this Sublease. In the event of OOM’s breach of this Sublease, the City may, but is not obligated to, either: (a) perform such duty or obligation necessary to cure a non-monetary default on OOM’s behalf, to be reimbursed by OOM for the reasonable costs and expenses of such curative action to be upon OOM’s receipt of an invoice and supporting documentation of such costs and expenses; or (b) terminate this Sublease and be entitled to seek all damages in accordance with applicable law.
22.2 In the event of a default by the City with respect to any of the provisions of this Sublease or its obli gations under it, the City shall have thirty (30) days from its receipt of written notice of default from OOM to cure any default, unless curative action cannot be reasonably accomplished within such thirty (30) day period, in which event said period to cu re such default shall be automatically extended so long as the City commences such cure and diligently pursues and completes such curative action within ninety (90) days. The failure of the City to cure a default after written notice from OOM and the appl icable cure period shall be a breach of this Sublease. The failure of the City to cure a default after written notice from the OOM and the applicable cure period shall be a breach of this Sublease. In the event of City’s breach of this Sublease, and without waiving any other rights granted to it in law or equity, OOM shall have the right, but not the obligation, to terminate this Sublease.
22.3 Any default under the Master Lease by the City beyond any applicable cure period provided for therein shall be a default hereunder and the City shall not be subject to any cure period by the City. In the event of the City’s breach of the Master Lease as set forth in this Section 22.3, OOM may, but is not obligated to, either: (a) perform such duty or obligation necessary to cure such default on the City’s behalf, with the costs and expenses thereof to be reimbursed by the City upon the City’s receipt of an invoice and supporting documentation of such costs and expenses; or (b) terminate this Sublease.
22.4 Notwithstanding anything to the contrary contained in this Sublease, in no event shall City be liable to OOM for lost profits, lost business revenue that is not direct or extra- contractual damages, lost opportunity costs or other consequential damages under this Sublease or otherwise.
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23. Waiver of Breach. A party’s failure to insist on strict performance of this Sublease or to exercise any right or remedy upon the other party’s breach of this Sublease will not constitute a waiver of the performance, right, or remedy. A party’s waiver of the other party’s breach of any provision in this Sublease will not constitute a continuing waiver or a waiver of any subsequent breach of the same or any other provis ion. A waiver is binding only if set forth in writing and signed by the waiving party.
24. Relationship of the Parties . This Sublease does not create any relationship or association between the City and OOM other than that of landlord and tenant. For example, and without limiting the previous sentence, this Sublease does not create between the City and OOM the relationship of principal and agent, nor does it create a partnership or joint venture.
25. Attorney’s Fees. The party prevailing in any litigation conce rning this Sublease, the Premises, or any improvements to the Premises (including the Sign) will be entitled to an award by the court of reasonable attorneys' fees and litigation costs through final resolution on appeal in addition to any other relief that may be granted in the litigation. If the City is the prevailing party, then this Section 23 will apply whether the City is represented in the litigation by the Office of the City Attorney or by outside counsel.
26. Severability. If a court with jurisdiction holds any provision of this Sublease to be invalid, void, or unenforceable, then the remaining provisions will remain in full force.
27. Counterparts. The parties may execute this Sublease in counterparts.
28. Memorandum of Sublease. Either the City or OOM may record with the San Mateo County Clerk/Recorder, using the form set forth as Exhibit G, a memorandum summarizing this Sublease.
29. Further Assurances . Each party shall execute all additional documents or instruments and take all necessary action that either party reasonably considers necessary to carry out the proper purposes of this Sublease.
30. Time of Essence. Time is of the essence of this Sublease.
31. Governing Law. This Sublease is to be interpreted and applied in accordance with California law, without regard to conflict-of-laws principles, except that the rule of interpretation in California Civil Code section 1654 will not apply.
32. Integration, and Modification . This Sublease, the Master Lease and the separately executed Relocation Agreement set forth the parties’ entire understanding regarding the matters addressed. Together these documents supersede all prior or contemporaneous agreements, representations, and negotiations (writt en, oral, express, or implied) and each may be modified only by another written agreement signed by both parties.
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33. City’s Warranty . The City hereby warrants and represents to OOM as of the Effective Date that the City holds either fee simple title to or ex clusive leasehold rights to the Property free and clear of any liens or encumbrances.
34. City Taxes . If the City enacts, imposes or levies any tax or other imposition relating to OOM’s use of the Premises or operation of the Sign (a “ City Tax”), OOM shall be entitled to a credit against any amounts of Rent to be paid hereunder in the amount of such City Tax paid by OOM, except to the extent it is commercially reasonable for OOM to pass such City Tax on to its advertisers and OOM is reimbursed for such amounts by such advertisers.
35. Master Lease.
35.1 The City covenants and agrees that, if requested by OOM, it shall deliver to OOM a duly executed non-disturbance agreement from the Master Landlord in form and substance satisfactory to OOM or shall otherwise ensure that the Master Lease contains such terms assuring the rights of OOM under this Sublease will be recognized and not disturbed upon the breach by the City under the Master Lease or upon ter mination of the Master Lease for any other reason so long as OOM is not in default under this Sublease beyond the period of notice and opportunity to cure provided herein. In the event the City fails to provide OOM with such a non-disturbance agreement if requested by OOM, OOM may terminate this Sublease upon notice to the City.
35.2 In the event that the City fails to perform any obligation of the City as required pursuant to the Master Lease and the City has received a notice from Master Landlord demanding a cure of said default within any applicable time period pursuant to the Master Lease and the City fails to so cure such default , OOM may, but shall not be obligated to, elect to take over such obligation under the Master Lease upon written notice to both the City and the Master Landlord. If OOM so elects, the City shall be obligated to pay to OOM its reasonable out-of- pocket costs and expenses of the same . The City shall ensure the above-referenced right s are contained in the Master Lease . During such period that OOM assumes such obligations , OOM shall be entitled to offset any Rent payable to the City hereunder but only to the extent the obligation is not otherwise payable to City under the Sublease.
35.3 OOM agrees, that in connection with each payment of Rent to the City pursuant to Section 10, OOM will also pay to the City an amount equal to the “Rent” (as such term is defined in the Master Lease) which the City is required to pay to the Master Landlord pursuant to Section 9 of the M aster Lease (which “Rent” initially is contemplated under the Master Lease to be sixty thousand dollars ($60,000.00) per calendar year. Any failure of the City to make such payments pursuant to Section 9 of the Master Lease within the time periods required thereunder shall be an immediate default under this Agreement.
36. Subordination; Estoppel Certificate.
36.1 Subject to Section 35.2, this Sublease shall be subject and subordinate to all existing and future ground or underlying leases, mortgages, trust deeds and other encumbrances
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against the Property, all renewals, extensions, modifications, consolidations and replacements thereof (each such de ed of trust or other security agreement, a “ Security Agreement”), and all advances made upon the security of such mortgages or trust deeds, unless in each case the holder of such Security Agreement (each, a “ Security Holder”) requires in writing that this Sublease be superior thereto. Upon any termination or foreclosure (or any delivery of a deed in lieu of foreclosure) of any Security Agreement, OOM, upon request, shall attorn, without deduction or set-off, to the Security Holder or purchaser or any successor thereto and shall recognize such party as the lessor hereunder, provided that such party agrees not to disturb OOM’s occupancy so long as OOM timely pays the Rent and otherwise performs its obligations hereunder. Within ten (10) business days after the Master Landlord’s request, OOM shall execute such further instruments as the Master Landlord may reasonably deem necessary to evidence the subordination or superiority of this Sublease to any Security Agreement. Within ten ( 10) business days after the Master Landlord’s request, OOM shall execute and deliver to Lessor a commercially reasonable estoppel certificate in favor of such parties as the Landlord may reasonably designate, including current and prospective Security Holders and prospective purchasers.
[Remainder of Page Intentionally Blank – Signature Pages and Exhibits Follow]
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IN WITNESS WHEREOF, the parties, duly authorized, have executed this Sublease as of the day and year first above written.
CITY
CITY OF SAN CARLOS,
a California municipal corporation
By:
Name:
Title:
OOM
Pallco Enterprises Inc a California S Corporation DBA
ORION OUTDOOR MEDIA
By:
Name: Beau Palley
Title: CEO & Chairman
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EXHIBIT A
THE PROPERTY
Address of Property:
611 Industrial Road
San Carlos, CA 94070
San Mateo County Assessor Parcel #
046-090-370
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EXHIBIT B
THE PREMISES
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Attachment: Relocation Agreement - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement) 42 ” Pole
State R/W F
enc
e
Nor
th P/L
South P/L
14’x 48’ FULL FLAG @ 64.5‘
30’ V-BUILD WITH ENCLOSURE
DIGITAL FACES BOTH SIDES/672 sq. ft. PER SIDE
APN#045-080-036-000
ZONING: PD-C
LAND AREA: ENTIRE PARCEL 1.7 ACRES
BUILDING AREA: 6’ x 6’ AREA FOR SIGN COLUMN
PROPERTY OWNER:
West Marine Plaza LP ET AL
APPLICANT:
LAW OFFICE OF JOHN DAVID PEREIRA
LAW OFFICE OF JOHN DAVID PEREIRA
4445 GRANITE DRIVE ( I-80 W/O SIERRA COLLEGE )
14’x 48’ FACES @ 55ft high from FW Grade
V-BUILD STRUCTURE
DIGITAL FACES BOTH SIDES/672 sq. ft. PER SIDE
APN# 046-090-370
ZONING: H-I ( Heavy Industrial )
LAND AREA: ENTIRE PARCEL 29,925 sq. ft.
BUILDING AREA: 6’ x 6’ AREA FOR SIGN COLUMN
PROPERTY OWNER:
R & M Associates, LLC
APPLICANT:
ORION OUTDOOR MEDIA
ORION OUTDOOR, LLC
611 INDUSTRIAL RD. ( HWY 101 S/O HOLLY )
ARIAL SITE PLAN OF 611 INDUSTRIAL SITE • FOR 55FT DIGITAL SIGN • COMMERCIAL AND NON-COMMERCIAL USE 6’x7
’ Pole C
over
with
City Slogan
Camer
a
Came
ra
Parking S
talls
Hwy 101Edge of P
avemen
t
Existing Building
Nor
th Face 14’h x 48’L
South F
ace 14’h x 48’L
3’ from edgeof si
gn to pr
ope
rty line
Building 58’
wide
42 ‘
4’ abo
ve building grade
29’
36’
18 ’
Exhibit B
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EXHIBIT C
SIGN CONCEPTUAL DRAWING
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EXHIBIT D
HAZARDOUS SUBSTANCES
As used in this Exhibit D, “Environmental Laws” means any statute, ordinance, regulation, rule, order, decree, or other law or requirement that is enacted, promulgated, or issued by any federal, state, or local government entity (whether before, on, or after the Effective Date) and:
• regulates, relates to, or imposes liability or standards of conduct concerning any Hazardous Substance (defined below);
• regulates land use or regulates or protects the environment, including air, soil, soil vapor, surface water, groundwater, flora, or fauna; or
• pertains to occupational health or industrial hygien e or to occupational or environmental conditions on, under, or about the Premises.
Without limiting the generality of the foregoing, “Environmental Laws” includes the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) (42 U.S.C. § 9601 et seq.); the Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C. § 6901 et seq.); the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. § 1251 et seq.); the Toxic Substances Control Act (TSCA) (15 U.S.C. § 2601 et seq.); the Hazardous Materials Transportation Act (HMTA) (49 U.S.C. § 1801 et seq.); the Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.); the Superfund Amendments and Reauthorization Act (SARA) (42 U.S.C. § 6901 et seq.); the Clean Air Act (42 U.S.C. § 7401 et seq.); the Safe Drinking Water Act (42 U.S.C. § 300f et seq.); the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.); the Emergency Planning and Community Right to Know Act (42 U.S.C. § 11001 et seq .); the Occupational Safety and Health Act (OSHA) (29 U.S.C. §§ 655 and 657); the California Underground Storage of Hazardous Substance Act (Cal. Health & Saf. Code, § 25280 et seq.); the California Hazardous Waste Control Act (Cal. Health & Saf. Code, § 25100 et seq.); the California Safe Drinking Water and Toxic Enforcement Act (Cal. Health & Saf. Code, § 24249.5 et seq.); and the Porter -Cologne Water Quality Act (Cal. Water Code, § 13000 et seq.), together with any amendments of these statutes and regulations promulgated under them (whether enacted or promulgated before, on, or after the Effective Date).
For purposes of this Sublease, “Hazardous Substance” means:
(1) any substance defined as a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,” “toxic waste,” “solid waste,” “pollutant,” or “contaminant” under Environmental Laws (defined above);
(2) any substance listed as hazardous substances in 49 C.F.R. § 172.101 or its successor by the U.S. Department of Transportation or in 40 C.F.R. Part 302 or its successor by the U.S.
Environmental Protection Agency;
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(3) any other substance, material, or waste that is or becomes regulated or classified as hazardous or toxic under Environmental Laws (defined above);
(4) any material, waste, or substance that is (a) a petroleum or refined petroleum product, (b) asbestos or asbestos-containing materials, (c) polychlorinated biphenyl, (d) designated as a hazardous substance under 33 U.S.C. § 1321 or its successor or listed under 33 U.S.C. § 1317 or its successor, (e) a flammable explosive, (f) a radioactive material, or (g) a lead - based paint;
(5) any substance listed by the State of California under subdivision (a) of California Health and Safety Code section 25249.8, as amended, or under any successor to that statute, as a chemical known by the state to cause cancer or reproductive toxicity;
(6) any material that, because of its characteristics or interaction with one or more other substances, chemical compou nds, or mixtures, threatens to damage health, safety, or the environment or is required by any law or public agency to be remediated;
(7) any material that, if present, would require remediation under the guidelines set forth in California’s Leaking Under ground Fuel Tank Field Manual, regardless of whether the presence of the material resulted from a leaking underground fuel tank;
(8) any pesticide regulated under the federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §136 et seq.) or its successor;
(9) any material regulated under the federal Occupational Safety and Health Act (29 U.S.C. § 651 et seq.) or California’s Occupational Safety and Health Act (Health & Saf. Code, § 63000 et seq.), or their successors;
(10) any material regulated un der the federal Clean Air Act (42 U.S.C. 7401 et seq.) or under division 26 of the California Health and Safety Code, or their successors;
(11) any material that qualifies as an “extremely hazardous waste,” “hazardous waste,” or “restricted hazardous wast e” under section 25115, 25117, or 25122.7 of the California Health and Safety Code, or as “medical waste” under section 25281, 25316, 25501, 25501.1, 25023.2, or 39655 of the California Health and Safety Code, or their successors; and
(12) any material listed or defined as a “hazardous waste,” “extremely hazardous waste,” or an “acutely hazardous waste” under chapter 11 of title 22 of the California Code of Regulations or any successor to that chapter.
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EXHIBIT E
AMBER ALERT GUIDELINES
• In coordination with the Federal Bureau of Investigation, the National Center for Missing & Exploited Children and the OAAA, Orion Outdoor Media utilizes its digital networks around the country to display real-time AMBER Alert information on missing children.
The AMBER Alert system has been activated over 800 times since the beginning of the digital billboard program.
• This market is part of a nationwide effort to provide AMBER Alert information on digital billboards in the event of an alert.
• When an AMBER Alert occurs, the Alert will be displayed on the digital billboard for at least an hour exclusively, followed by the Alert going into regular rotation on the board for a period of 24-48 hours, or until the Alert is cancelled.
• This service is being provided at no charge.
• The system is automated. This market is receiving information from a central server operated by the Outdoor Advertising Association of America which receives its information from the National Center for Missing & Exploited Children.
• The system provides a standardized national template which bears the trademarked AMBER Alert logo. This way, drivers from Oregon to Florida and all points in between will see the same type of AMBER Alert, making it instantly recognizable.
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EXHIBIT F
CITY SIGN LOGO
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EXHIBIT G
MEMORANDUM OF SUBLEASE
WHEN RECORDED MAIL TO:
ORION OUTDOOR MEDIA
P.O. Box 6341
Folsom, CA 95763-6341
________________________________________________________________________
MEMORANDUM OF SUBLEASE
This is a Memorandum of Sublease by and between the City of San Carlos , a California municipal corporation (“ City”), and Pallco Enterprises Inc a California S Corporation DBA ORION OUTDOOR MEDIA (“OOM”), upon the following terms:
R & M Dean Associates, LLC (“Master Lessor”) is the owner of the Premises (as defined below). Pursuant to the terms of a Lease dated as of ___________, 202 2 (the “Master Lease”), Master Lessor leases the Premises to City, and City leases the Premises from Lessor. Pursuant to the Master Lease, Master Lessor has consented to City leasing the Premises to OOM and for OOM to lease the Premises from City for an initial term of twenty (20) years, commencing on the Commencement Date (as defined in the Sublease). OOM has one (1) option to extend the term for an additional ten (10) years. The lease of the Premises to OOM is on all of the terms and conditions set forth in the Sublease, which is incorporated in this Memorandum by reference.
This Memorandum is prepared for the purpose of recordation, and in no way modifies the provisions of the Sublease. In the event of any inconsistency between this Memorandum and the Sublease, the Sublease shall govern.
Premises:
Legal Description
ForAPN/ParcelID(s): 046-090-370
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SAN CARLOS, COUNTY OF SAN MATEO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
PARCEL TWO AS DESIGNATED ON THAT CERTAIN MAP ENTITLED "PARCEL MAP BEING A SUBDIVISION OF THE LANDS OF ROBERT WEST RECORDED IN VOL. 5128 OF OFFICIAL
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RECORDS, PAGE 616, SAN MATEO COUNTY RECORDS, CITY OF SAN CARLOS, SAN MATEO
COUNTY, CALIFORNIA, WHICH PARCEL MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON MAY 29, 1975 IN BOOK 28 OF PARCEL MAPS AT PAGE 14.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR THE CONSTRUCTION, REPAIR AND MAINTENANCE OF A SANITARY SEWER LINE OVER AND ACROSS THE FOLLOWING DESCRIBED LANDS:
A STRIP OF LAND 7.00 FEET WIDE LYING EQUALLY ON EACH SIDE OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE WESTERLY CORNER OF THE LANDS DESCRIBED IN PARCEL TWO IN THE
DEED FROM BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION AND ANN LEISTER TO ROBERT A. WEST AND RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, IN VOLUME 5128 OF OFFICIAL RECORDS AT PAGE 616; THENCE FROM SAID POINT OF BEGINNING SOUTH 47° 7' 20" WEST 27.31 FEET; THENCE SOUTH 48° 55' 40" EAST 19.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE FROM SAID TRUE POINT OF BEGINNING NORTH 48° 1' 18" EAST 310.00 FEET.
EXCEPTING FROM PARCEL TWO:
ANY PORTION THEREOF LYING WITHIN PARCEL ONE ABOVE.
PARCEL THREE:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS THE FOLLOWING DESCRIBED PARCEL OF LAND:
BEGINNING AT THE WESTERLY CORNER OF THE LANDS DESCRIBED IN PARCEL TWO IN THE
DEED FROM BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION AND ANN LEISTER TO ROBERT A. WEST AND RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, IN VOLUME 5128 OF OFFICIAL RECORDS AT PAGE 616; THENCE FROM SAID POINT OF BEGINNING SOUTH 47° 7' 20" WEST 27.31 FEET; THENCE SOUTH 48° 55' 40" EAST 20.11 FEET; THENCE NORTH 47° 7' 20" EAST 198.58 FEET; THENCE NORTH 60° 15' 8" EAST 96.66 FEET; THENCE NORTH 42° 00' WEST 20.47 FEET; THENCE SOUTH 60° 15' 8" WEST 94.62 FEET; THENCE SOUTH 47° 7' 20" WEST 175.69 FEET TO THE POINT OF BEGINNING.
PARCEL FOUR:
A NON-EXCLUSIVE EASEMENT FOR THE CONSTRUCTION, REPAIR & MAINTENANCE OF WATER
AND GAS PIPE LINES AND OTHER UNDERGROUND PUBLIC UTILITIES OVER AND ACROSS THE FOLLOWING DESCRIBED LANDS:
A STRIP OF LAND, 10' WIDE, LYING ADJACENT TO AND SOUTHEASTERLY OF THE FOLLOWING DESCRIBED LINE:
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BEGINNING AT A POINT WHICH BEARS S 47° 7' 20" W 27.31 FEET FROM THE WESTERLY
CORNER OF THE LANDS DESCRIBED IN PARCEL TWO IN THE DEED FROM BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION AND ANN LEISTER TO ROBERT A, WEST AND
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA IN VOLUME 5128 OF OFFICIAL RECORDS AT PAGE 616; THENCE N 47° 7' 20" E, 315.48 FEET.
EXCEPTING FROM PARCEL FOUR:
ANY PORTION THEREOF LYING WITHIN PARCEL ONE ABOVE. PARCEL FIVE:
AN EASEMENT TO BUILD, REPAIR, AND MAINTAIN A SIGN OVER THE SOUTHWESTERLY 1 FOOT OF THE NORTHWESTERLY 15 FEET OF PARCEL 1 AS DESIGNATED ON THAT CERTAIN MAP ENTITLED "PARCEL MAP BEING A SUBDIVISION OF THE LANDS OF ROBERT WEST RECORDED IN VOL. 5128 OF OFFICIAL RECORDS, PAGE 616, SAN MATEO COUNTY RECORDS, CITY OF SAN CARLOS, SAN MATEO COUNTY, CALIFORNIA", WHICH PARCEL MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON MAY 29, 1975 IN BOOK 28 OF PARCEL MAPS AT PAGE 14.
JPN: 046-009-090-32-01A
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IN WITNESS WHEREOF, OOM and City have executed this Memorandum of Sublease as of the ____ day of _________, 20___.
CITY
CITY OF SAN CARLOS,
a California municipal corporation
By:
Name:
Title:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On ______________________ before me, ______________________________, Notary Public, personally appeared __________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity up on behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
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OOM
Pallco Enterprises Inc a California S Corporation DBA
ORION OUTDOOR MEDIA
By:
Name: Beau Palley
Title: CEO & Chairman
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On ______________________ before me, ______________________________, Notary Public, personally appeared __________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/the y executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
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Year(s) Min. Annual
Guarantee to City
SubLease Annual
Rent Amount
Total Annual Rent Amount to City
of San Carlos
1 $210,000 $60,000 $270,000
2 $210,000 $61,200 $271,200
3 $210,000 $62,424 $272,424
4 $210,000 $63,672 $273,672
5 $210,000 $64,946 $274,946
6 $236,250 $66,245 $302,495
7 $236,250 $67,570 $303,820
8 $236,250 $68,921 $305,171
9 $236,250 $70,300 $306,550
10 $236,250 $71,706 $307,956
11 $265,781 $73,140 $338,921
12 $265,781 $74,602 $340,383
13 $265,781 $76,095 $341,876
14 $265,781 $77,616 $343,397
15 $265,781 $79,169 $344,950
16 $299,004 $80,752 $379,756
17 $299,004 $82,367 $381,371
18 $299,004 $84,014 $383,018
19 $299,004 $85,695 $384,699
20 $299,004 $87,409 $386,413
21 $336,380 $89,157 $425,536
22 $336,380 $90,940 $427,320
23 $336,380 $92,759 $429,139
24 $336,380 $94,614 $430,994
25 $336,380 $96,506 $432,886
26 $378,428 $120,000 $498,428
27 $378,428 $122,400 $500,828
28 $378,428 $124,848 $503,276
29 $378,428 $127,345 $505,773
30 $378,428 $129,892 $508,320
Annual Rent Schedule to City of San Carlos Years 1-20 & 21-30
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|
EXHIBIT "E"
OPERATING REQUIREMENTS FOR DIGITAL BILLBOARD
FACES
DIGITAL BILLBOARD means an off-site sign utilizing digital message technology, capable of changing the static message or copy on the sign electronically. A DIGITAL BILLBOARD may be internally or externally illuminated. DIGITAL BILLBOARDS shall contain static messages only, and shall not have animation, movement, or the appearance or optical illusion of movement, of any part of the sign structure, design, or pictorial segment of the sign. Each static message shall not include flashing lighting or the varying of light intensity.
a. Operational Limitations. Such displays shall contain static messages only, and shall not have movement, or the appearance or optical illusion of movement during the static display period, of any part of the sign structure, design, or pictorial segment of the sign, including the movement or appearance of movement. Each static message shall not include flashing lighting or the varying of light intensity.
b. Minimum display time. Each message on the sign must be displayed for a minimum of (8) eight seconds.
c. DIGITAL BILLBOARDS shall not operate at brightness levels of more than 0.3 foot candles above ambient light, as measured using a foot candle meter at a pre-set distance.
d. The pre-set distance to measure the foot candles shall be two hundred and fifty feet (250').
e. Each display must have a light sensing device that will adjust the brightness as ambient light conditions change.
f. The technology currently being deployed for DIGITAL BILLBOARDS is LED (light emitting diode), but there may be alternate, preferred and superior technology available in the future. Any other technology that operates under the maximum brightness stated in “c.” of this Exhibit above shall not require an ordinance change for approval, unless the commission finds it in the best interest of the public to do so. The CITY shall expedite any required approvals for technology that is superior in energy efficiency over previous generations or types.
g. The DIGITAL BILLBOARD shall be operated with systems and monitoring in place to either turn the display off or show a "full black" image on the display in the event of a malfunction.
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Attachment: Relocation Agreement - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement) SJ - San Jose #4888-2022-2212 v1
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EXHIBIT "F"
INSURANCE
INSURANCE COVERAGE REQUIREMENTS
Without limiting the Contractor's indemnification of the CITY, and prior to commencing any of the Services required under this AGREEMENT, the Contractor shall purchase and maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 each occurrence,
$2,000,000 aggregate for bodily injury, personal injury and property damage
$1,000,000 General aggregate
$1,000,000 Products/Completed Operations aggregate
$1,000,000 Personal Injury
These amounts shall be reasonably adjusted to the CITY'S then standard required coverages every five years, at the option of CITY.
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this AGREEMENT:
a. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and
b. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and
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hired autos.
C. WORKERS’ COMPENSATION
1. Workers' Compensation Insurance Policy as required by statute and employer's liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Contractor included in this AGREEMENT shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers' Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of San Carlos, its City Council, commissions, officers, employees, volunteers and agents.
D. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and CITY agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other PARTY involved with the Services who is brought .onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor. Contractor agrees that upon request by CITY, all insurance compliance documents provided by such subcontractors and others engaged in the project will be submitted to CITY for review.
2. Contractor agrees to be responsible for ensuring that no contract used by any PARTY involved in any way with the project and for which Contractor is directly responsible reserves the right to charge CITY or Contractor for the cost of additional insurance coverage required by this AGREEMENT. Any such provisions are to be deleted with reference to CITY. It is not the intent of CITY to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against CITY for payment of premiums or other amounts with respect thereto.
3. Except as to workers' compensation, all liability insurance required herein shall be evidenced by certificates and endorsements reasonably acceptable to the CITY. By endorsement, such insurance shall name the CITY, its officers, officials, agents and employees as additional insured and provide that the CITY’S insurance is excess and non-contributing with respect to operations of Contractor or Subcontractor or the liabilities assumed under written contract with CITY.
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ASSIGNMENT AND ASSUMPTION OF
GROUND LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (this “Assignment”) is entered into this __TH day of ___________, 202 2 (the “Effective Date ”) by and between Pallco Enterprises Inc. a California S Corporation DBA Orion Ou tdoor Media (“Assignor”), having an address at 3161 Cameron Park Drive Ste #221, Cameron Park, C alifornia, and, (ii) the City of San Carlos, a municipal corporation , having an address at 600 Elm Street, San Carlos, California (“Assignee”), and acknowledged by R & M Dean Associates, LLC a California limited liability company (the “ Owner”). Assignor and Assignee are each sometimes individually referred to in this Assignment as a “Party” and collectively as the “Parties”.
WHEREAS, Assignor has certain rights and interests in property owned by the Owner as set forth in a Ground Lease dated December 21st, 2019 (“Original Lease”), including subsequent amendments to the Ground Lease, the most recent of which is the first Amendment to the Ground Lease dated June 6th, 2022 (“Amendments”), for real property located at 611 Industrial Road, San Carlos, California, 94070 (Original Lease and Amendments shall be collectively referred to as “Ground Lease”).
WHEREAS, Assignor executed the Ground Lease for the purpose of installing a Digital Billboard, subject to approval by Assignee.
WHEREAS, Assignor now desires to assign all of its rights and interests in and pursuant to the Ground Lease, and all the obligations of Assignor under the Ground Lease, to Assignee, and Assignee desires to accept such assignment, subject to the terms and conditions set forth herein;
NOW THEREFORE , pursuant to the foregoing and in consideration of the mutual promises set forth herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows:
1. Recitals. The foregoing Recitals are true and correct, and incorporated by reference herein.
2. Assignment to and Assumption by Assignee. Assignor hereby transfer s and assigns to Assignee, effective as of the Effective Date of this Assignment , all of Assignor’ s rights and interest in and under the Ground Lease, and all of the obligations of Assignor under the Ground Lease arising from and after the Effective Date of this Assignment. Assignee hereby accepts such assignment, transfer and conveyance, and assumes all of Assignor ’s obligations and liabilities under the Ground Lease (to the extent such obligations and liabilities arise from and after the Effective Date) and agrees to perform all obligations of Assignor as “Lessee” under the Ground Lease.
3. Acknowledgment and Acceptance by O wner. Owner Acknowledges and Accepts the Assignment to Assignee.
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Attachment: Assignment and Assumption of Ground Lease - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement)
4. Modifications and Waivers . No modification, waiver, amendment, discharge, change or termination of this Assignment shall be valid unless the same is in writing and sig ned by all of the Parties.
5. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Electronic, .pdf, and facsimile signatures sha ll constitute original signatures under this Assignment.
6. Governing Law. This Assignment shall be governed by the laws of the State of California.
7. Severability. If any provision of th is Assignment is held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions shall remain in full force and effect and shall not be affected, impaired or invalidated.
8. Notice to Lessee . The “Notice to Lessee” portion of paragraph two (2) on page five (5) of the Ground Lease is hereby deleted in its entirely and replaced with the following:
“Notice to Lessee: City of San Carlos
Attn: Jeff Maltbie, City Manager
600 Elm Street
San Carlos, CA 94070”
[Signatures are on the following page]
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Attachment: Assignment and Assumption of Ground Lease - 611 Industrial Digital Billboard (611 Industrial Billboard Agreement)
IN WITNESS WHEREOF, the Parties have executed this Assignment as of the Effective Date.
ASSIGNOR:
By:
Orion Outdoor Media
Its: _________________________________
ASSIGNEE:
By:
CITY OF SAN CARLOS
Jeff Maltbie, City Manager
ACKNOWLEDGED AND ACCEPTED BY
THE OWNER :
R & M Dean Associates, LLC:
By: ______________________________
Its: __________________________________,
APPROVED AS TO FORM:
Gregory J. Rubens, City Attorney
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CITY COUNCIL
STAFF REPORT
MEETING DATE: August 8, 2022
ITEM TITLE: Consideration of Introducing an Ordinance Amending San Carlos Municipal Code Chapter 2.24 Commissions by Repealing Section 2.24.300 Transportation and Circulation Commission, Removing References to the Commission, and Amending Section 2.24.140 Planning Commission – Powers and Duties.
RECOMMENDATION:
Staff recommends that the City Council introduce an Ordinance amending San Carlos Municipal Code Chapter 2.24 “Commissions” by repealing Section 2.24.300 “Transportation and Circulation Commission ” (“T&CC”) and removing references to the Commission, and also amending Section 2.24.140 “Planning Commission – Powers and Duties”.
FISCAL IMPLICATIONS:
There are no fiscal implications associated with introducing the Ordinance.
BACKGROUND:
The T&CC has been charged with serving as the advisory body to the City Council, Planning Commission, and the Public Works and Community Development Departments as related to motorized and non-motorized transportation matters in the city. The T&CC has also been tasked with examining the need for bicycle and pedestrian transportation, serves as the City’s Bicycle and Pedestrian Advisory Commission, and promotes bicycle and pedestrian programs. T&CC also rev iews and comments on all significant street, sidewalk, or street related capital improvement projects planned in the city.
While T&CC has provided helpful input on transportation and circulation issues, the T&CC has consistently struggled to hold re gular meetings due to a lack of quorum. Some of this may be explained by commissioners moving out of the area or a change in their work or family statuses.
Recruiting for commissioners has been challenging. The time commitment to serve on the T&CC and the uncertainty of the COVID pandemic may have limited the number of applications from potential candidates.
To ensure that the functions of the T&CC continue, staff recommends that the City Council consider assigning the T&CC functions to the Planning Commission.
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2 ANALYSIS:
Section 2.24.300 in the San Carlos Municipal Code describes the five functions of the T&CC.
These functions are related to traffic, circulation, bicycle , and pedestrian improvements.
Following is an excerpt of Section 2.24.300 “Transportation and Circulation Commission” in the Municipal Code, Section A which describes the five functions.
2.24.300 Transportation and Circulation Commission.
A. The City of San Carlos establishes a Transportation and Circulation Commission to advise the City Council and other City agencies on motorized and non -motorized transportation matters consistent with this section. The Transportation and Circulation Commission shall advise and act on the following:
1. Receive and evaluate complaints and ot her matters having to do with traffic and circulation, including pedestrian and bicycling matters.
2. Recommend to the City Council and staff ways and means for improving traffic and circulation conditions, including bicycle and pedestrian conditions, and en courage use of alternative modes of transportation in the City.
3. Periodically review and advise the City Council and Planning Commission and staff on matters related to the Circulation Element of the City’s General Plan.
4. Advise the City Council, Planning Commission and staff with respect to specific development projects which are referred to the Transportation and Circulation Commission for review, on traffic and circulation matters including bicycle and pedestrian conditions.
5. Review and comment on prelim inary plans for all capital improvement programs related to any and all modes of transportation.
If the Council were to dissolve the T&CC and follow the recommendation of staff, these five functions would be reassigned to the Planning Commission u nder 2.24.140 (F) “Planning Commission – Powers and Duties ”. However, on closer examination, functions 3 and 4 are similar to the duties that the Planning Commission currently performs. Therefore, staff would recommend only reassigning functions 1, 2, and 5.
2.24.140 Planning Commission - Powers and duties.
The Planning Commission shall have the following powers and duties:
A. Prepare and recommend a comprehensive General Plan for the future development of the City, and, from time to time, review the provisions of such plan and make a report of its findings and recommendations to the City Council.
B. Initiate, from time to time, a review of the zoning ordinances codified in Title 18 and make a report of its findings and recommendations to the City Council.
C. Receive and act upon applications authorized and specified in Title 18.
D. Hear and decide appeals where it is alleged there is an error in any order, requirement,
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3 decision or determination made by any City official in the interpreta tion and enforcement of Title 18.
E. Appoint one member to serve on the Residential Design Review Committee.
F. Perform such other duties as are now or may hereafter be designated by State statutes or this Code.
G. At the initial meeting of the Planning Commission, and yearly thereafter, the members shall elect the Chairperson and Vice Chairperson. The Vice Chairperson shall perform the duties of the Chairperson when the Chairperson is absent. In the event of a vacancy in the Chairperson’s position, the Vice Chairperson shall succeed as Chairperson for the balance of the Chairperson’s term and the Commission shall elect a successor to fill the vacancy of the Vice Chairperson. The Commission shall also annually appoint one member of the Planning Commission as a member of the Residential Design Review Committee, who shall serve as Chair of the Committee.
H. The Planning Commission is subject to the California Brown Act (Government Code Section 56900 et seq.), and all meetings shall be open to th e public, except as provided by law. All meetings of a quorum of the Commission must be held pursuant to the noticing provisions of the Brown Act, and are open to the public. A majority of the members shall constitute a quorum. Meeting minutes shall be tak en of each official meeting of the Commission.
Next Steps
Should the City Council introduce the Ordinance as proposed or with amendments, a second reading of the Ordinance would be held on August 22, 2022, and if passed, the proposed amendments would become effective September 22, 2022.
ALTERNATIVES:
Options available to the City Council include:
1. Introduce an Ordinance amending San Carlos Municipal Code Chapter 2.24 “Commissions” by repealing Section 2.24.300 “Transportation and Circulation Commission” and removing references to the Commission, and also amending Section
2.24.140 “Planning Commission – Powers and Duties”; or
2. Do not introduce the Ordinance; or
3. Provide staff with alternative direction.
Respectfully submitted by:
Steven Machida,
Public Works Director
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4 Approved for submission by:
_________________________
Jeff Maltbie, City Manager
ATTACHMENT(S):
1. Ordinance
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ORDINANCE NO. _______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CARLOS AMENDING SAN CARLOS MUNICIPAL CODE CHAPTER 2.24 COMMISSIONS BY REPEALING SECTION 2.24.300 TRANSPORTATION AND CIRCULATION COMMISSION, REMOVING REFERENCE TO THE COMMISSION, AND AMENDING SECTION 2.24.140 PLANNING COMMISSION – POWERS AND DUTIES.
SECTION 1: Findings. The City Council of the City of San Carlos hereby finds and declares as follows:
WHEREAS, San Carlos Municipal Code Chapter 2.24 establishes the Commissions and Boards in San Carlos; and
WHEREAS, the Transportation and Circulation Commission (“ T&CC”) has provided helpful input on transportation and circulation issues, but has consistently struggled to hold regular meetings due to a lack of quorum; and
WHEREAS, two of the five functions performed by the T&CC are also currently performed by the Planning Commission; and
WHEREAS, the City Council has determined that San Carlos Municipal Code Section
2.24.300 Transportation and Circulation Commission should be repealed and the duties of the T&CC transferred to the Planning Commission; and
NOW, THEREFORE, the City Council of the City of San Carlos does ordain as follows:
SECTION 2: The City Council hereby amends Chapter 2.24 – Commissions, by repealing Section
2.24.300 Transportation and Circulation Commission, removing references to the Commission in Sections 2.24.010 - Creation of Commissions and Section 2.24.020 - Membership, and approving the Municipal Code Ordinance amendments to Section 2.24.140 Planning Commission - Powers and Duties, as follows (new language is shown with bold underline and removed language is shown in strikethrough):
2.24.300 Transportation and Circulation Commission.
A. The City of San Carlos establishes a Transportation and Circulation Commission to advise the City Council and other City agencies on motorized and non -motorized transportation matters consistent with this section. The Transportation and Circulation Commission shall advise and act on the following:
1. Receive and evaluate complaints and other matters having to do with traffic and circulation, including pedestrian and bicycling matters.
2. Recommend to the City Council and staff ways and means for improving traffic and circulation conditions, including bicycle and pedestrian conditions, and encourage use of alternative modes of transportation in the City.
3. Periodically review and advise the City Council and Planning Commission and staff on matters related to the Circulation Element of the City’s General Plan.
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4. Advise the City Council, Planning Commission and staff with respect to specific development projects which are referred to the Transportation and Circulation Commission for review, on traffic and circulation matters including bicycle and pedestrian conditions.
5. Review and comment on preliminary plans for all capital improvement programs related to any and all modes of transportation.
B. Commission Composition. The Transportation and Circulation Commission shall consist of five voting members approved by the City Council and may include an alternate member. At least one member of the Transportation and Circulation Commission shall be a bicyclist and at least one other member who understands the range of transportation needs of bicyclists and pedestrians. A majority of the members shall be San Carlos residents, preferably from varying San Carlos neighborhoods. All members have one vote.
The alternate member participates as a voting, participating member only in the event of an absence of a voting member or in the event that a member abstains from a matter due to a conflict of interest.
C. Organization and Terms of Office.
1. The members of the Transportation and Circulation Commission shall annually elect the Chairperson and Vice Chairperson. The Vice Chairperson shall perform the duties of the Chairperson when the Chairperson is absent. In the event of a vacancy in the Chairperson’s position, the Vice Chairperson shall succeed as Chairperson for the balance of the Chairperson’s term and the Commission shall elect a successor to fill the vacancy of the Vice Chairperson.
2. The Transportation and Circulation Commission shall establish rules and regulations for its own procedures and shall meet when necessary as determined by the Commission.
The Transportation and Circulation Commission shall meet a minimum of four times per year. All meetings shall, except as provided by law, be open to the public.
3. The Transportation and Circulation Commission is subject to the California Brown Act.
All meetings of a quorum of the Commission must be held pursuant to the noticing provisions of the Brown Act, and are open to the public. A majori ty of the total members of the Commission shall constitute a quorum. Meeting minutes shall be taken at each meeting of the Commission.
4. The terms of each member of the Transportation and Circulation Commission shall be as set forth in Section 2.24.040. (Ord. 1555 § 2 (Exh. A (part)), 2019: Ord. 1454 § 2 (part), 2013: Ord. 1383 § 3, 2007)
2.24.010 Creation of commissions.
There are established the following commissions and boards in the City and outside agencies that the City has appointees on:
A. Planning Commission;
B. Parks, Recreation and Culture Commission;
C. Transportation and Circulation Commission;
D.C. Youth Advisory Council;
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E.D. Residential Design Review Committee;
F.E. Economic Development Advisory Commission;
G.F. Museum of San Carlos History Board of Directors; H.G. San Mateo County Mosquito and Vector Control District Board of Trustees.
2.24.020 Membership.
Each commission or board established in Section 2.24.010 shall have five members, unless otherwise designated in this chapter or in the resolution, ordinance, or by-laws establishing the commission. The term “commission” shall include commissions, boards and committees. All commission members shall be residents living in the incorporated area of the City of San Carlos unless otherwise specified by the City Council in the ordinance or resolution establishing the commission.
The City Council may also designate an alternate member to the following commissions:
A. Economic Development and Advisory Commission;
B. Parks, Recreation and Culture Commission;
C. Transportation and Circulation Commission.
Alternates serve as a voting, participating member only in the event of an absence of a voting member or in the event that a member abstains from a matter due to a conflict of interest.
2.24.140 Planning Commission — Powers and duties.
The Planning Commission shall have the following powers and duties:
A. Prepare and recommend a comprehensive General Plan for the future development of the City, and, from time to time, review the provisions of such plan and make a report of its findings and recommendations to the City Council.
B. Initiate, from time to time, a review of the zoning ordinances codified in Title 18 and make a report of its findings and recommendations to the City Council.
C. Receive and act upon applications authorized and specified in Title 18.
D. Hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by any City official in the interpretation and enforcement of Title 18.
E. Appoint one member to serve on the Residential Design Review Committee.
F. Receive and evaluate complaints and other matters having to do with traffic and circulation, including pedestrian and bicycling matters.
G. Recommend to the City Council and staff ways and means for improving traffic and circulation conditions, including bicycle and pedestrian conditions, and encourage use of alternative modes of transportation in the city.
H. Review and comment on preliminary plans for all capital improvement programs
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related to any and all modes of transportation.
I. Perform such other duties as are now or may hereafter be designated by State statutes or this Code.
J. At the initial meeting of the Planning Commission, and yearly thereafter, the members shall elect the Chairperson and Vice Chairperson. The Vice Chairperson shall perform the duties of the Chairperson when the Chairperson is absent. In the event of a vacancy i n the Chairperson’s position, the Vice Chairperson shall succeed as Chairperson for the balance of the Chairperson’s term and the Commission shall elect a successor to fill the vacancy of the Vice Chairperson. The Commission shall also annually appoint one member of the Planning Commission as a member of the Residential Design Review Committee, who shall serve as Chair of the Committee.
K. The Planning Commission is subject to the California Brown Act (Government Code Section 56900 et seq.), and all meetings shall be open to the public, except as provided by law. All meetings of a quorum of the Commission must be held pursuant to the noticing provisions of the Brown Act, and are open to the public. A majority of the members shall constitute a quorum. Meeting minutes shall be taken of each official meeting of the Commission. (Ord. 1555 § 2 (Exh. A (part)), 2019: Ord. 1454 § 2 (part), 2013: Ord. 1431 § 2 (part), 2011: Ord. 864 (part), 1980)
SECTION 3: CEQA. this Ordinance is exempt from additional environmental review pursuant to California Environmental Quality Act (“CEQA”) Guidelines Section 15061(b)(3); under the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 4: Severability. That the City Council hereby declares that it would have passed this Ordinance sentence by sentence, paragraph by paragraph, and section by section, and does hereby declare that any provisions of this Ordinance are severable, and, if for any reason any sentence, paragraph or section of this Ordinance shall be h eld invalid, such decision shall not affect the validity of the remaining parts of this Ordinance.
SECTION 5: Publication. This Ordinance shall be published and posted according to law and shall take effect and be in force from and after 30 days after its passage and adoption.
* * * *
I, City Clerk Crystal Mui, hereby certify that the foregoing Ordinance was i ntroduced on the 8th day of August, 2022 and passed and adopted as an Ordinance of the City Council of the City of San Carlos at a regular meeting ther eof held on the ____day of ____________, 2022 by the following vote:
AYES, COUNCIL MEMBERS: ________________________________________________
NOES, COUNCIL MEMBERS: ________________________________________________
ABSENT, COUNCIL MEMBERS: _______________________________________________
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CITY CLERK of the City of San Carlos
APPROVED:
MAYOR of the City of San Carlos
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