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R-13-12-05-H2 - 12/5/2013RESOLUTION NO. R -13-12-05-H2 WHEREAS, the City of Round Rock ("City") has adopted Chapter 30 of the Code of Ordinances, (2010 Edition) (the "Code") which regulates signs in the City; and WHEREAS, Sec. 30-13 of the Code lists types of signs that are prohibited in the City, which includes off -premises signs and billboards; and WHEREAS, Lamar Advantage Holding Company ("Lamar") has several existing billboards that are now non -conforming billboards under the terms of the Code; and WHEREAS, the City and Lamar have reached an agreement whereby Lamar will remove two existing non -conforming billboards in exchange for the City permitting Lamar to upgrade one existing billboard to a digital display; and WHEREAS, the City Council desires to enter into an agreement with Lamar, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Agreement to Eliminate Non -Conforming Billboards with Lamar Advantage Holding Company, a copy of said Agreement being attached hereto as Exhibit "A" and incorporated herein. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 5th day of December, 2013. /,/ ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Clerk 0112.1304, 00287359 EXHIBIT 1 AGREEMENT TO ELIMINATE NON -CONFORMING BILLBOARDS This Agreement to Eliminate Non -Conforming Billboards, (the "Agreement") is made and entered into this day of , 2013 by and between Lamar Advantage Holding Company, a vJq re corporation, ("Lamar"), and the City of Round Rock, Texas, a Texas home rule municipality, ("City"). WHEREAS, the City has adopted Chapter 30 of the Code of Ordinances, City of Round Rock (2010 Edition) (the "Code") which regulates signs in the City; and WHEREAS, Sec. 30-13 of the Code lists types of signs that are prohibited in the City, which includes off - premises signs and billboards; and WHEREAS, Lamar has several existing billboards that are now non -conforming billboards under the terms of the Code; and WHEREAS, the City and Lamar have reached an agreement whereby Lamar will remove two existing non -conforming billboards in exchange for the City permitting Lamar to upgrade one existing billboard to a digital display; NOW THEREFORE, in consideration of the mutual benefits and promises and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, City and Lamar agree as follows: 1. Existing Non -Conforming Billboards. Lamar is the owner of the following non -conforming billboards located in the City: a. Billboard located at 510 IH 35; b. Billboard located at 1201 Palm Valley Blvd.; and c. Billboard located at 16912 % IH 35. 2. Removal of Non -Conforming Billboards. Lamar agrees to remove the two billboards located at 510 IH 35 and at 1201 Palm Valley Blvd. in exchange for the City's agreement to permit Lamar to upgrade the billboard located at 16912 1/2 IH 35 to a digital display. The removal of the two billboards shall include the concrete pads above the surface of the adjacent grade level, pole structure and all related equipment and facilities. The billboard removal area shall be re -vegetated so that it is similar to the surrounding area. 3. Upgrade of Non -Conforming Billboard. Once the above two billboards are removed, Lamar may apply for a permit from the Director of Planning and Development Services to replace and/or upgrade the billboard at 16912 1/2 IH 35 to include a digital display. The application for the permit must be accompanied with a survey, an amended Texas Department of Transportation Digital Billboard Permit, and written consent from the property owner. The Director will issue the aforesaid permit upon determining that all appropriate requirements of this Agreement have been met and that the Building Official has issue all required building permits. The upgraded billboard must comply with all Texas 00284713.DOCX Department of Transportation's regulations regarding billboards, as amended. In addition, the upgraded billboard shall comply with the following requirements: a. The billboard shall have only one digital face that is no more than 14 feet high and no more than 48 feet wide. b. The overall height of the existing billboard shall not be increased. c. The digital face of the billboard shall automatically adjust so that the brightness of the display is no more than 0.3 foot candles over the ambient light conditions at a distance of 250 feet from the display. d. The construction of the upgraded billboard shall comply with all of the City building codes. e. The electric service to the billboard shall be installed underground. 4. Advertising and Information Requirements. Lamar agrees that the digital face of the billboard shall not contain any flashing or scrolling information and all messages must comply with the Electronic Messaging Center standards in the Code and with all applicable TxDOT regulations, as amended. In the event that the Code and TxDOT regulations are not the same, the more restrictive regulation shall apply. The digital face shall not include any advertising that could be considered obscene, offensive or otherwise not in keeping with community standards of the City. Lamar agrees to remove any such advertising within 48 hours of receiving notice of same from the City. Lamar agrees that it will comply with 43 Texas Administrative Code, §21.258 regarding the display of emergency information important to the traveling public. Lamar agrees to coordinate with the City to establish procedures to quickly display such emergency messages. Lamar also agrees to provide templates to the City that will allow for rapid displays of emergency and other time sensitive messages. In addition, Lamar agrees to reserve time slots on the digital display for the City to advertise and/or inform the public of City sponsored events. Lamar agrees that the digital display will have no more than six (6) time slots for messaging. The aforementioned time slots shall change every eight (8) seconds. Lamar will reserve one of these slots for the City for a minimum of sixty (60) days per calendar year. For the purposes of this agreement, twenty-four (24) consecutive hours of use shall be defined as one (1) day. The City shall have the right to designate the days during which to utilize its reserved time slots for City events; provided however, the City agrees to give Lamar at least sixty (60) days written notice of said designated days. Lamar agrees to provide artwork as needed at no cost to the City. Lamar also agrees to offer additional time slots, free of charge, to the City as and if available. 5. Annual Audit. The City will perform an annual inspection and audit to verify that Lamar is in complete compliance with the terms of this Agreement. Lamar agrees to pay to the City an annual fee of $500.00 on the anniversary date of this Agreement to reimburse the City for the cost of performing this audit. As part of this annual audit, Lamar agrees to provide the City with a copy of its annual permit from TxDot. 2 6. Term. This Agreement will be for a term of ten (10) years and will end on the 31st day of December, 2023. 7. Default. If Lamar should default in the performance of any obligations of this Agreement, City shall provide Lamar written notice of the default, and a minimum period of thirty (30) days to cure such default. If after 30 days, Lamar has not cured the default to the satisfaction of the City, the City shall have the right to declare this Agreement terminated and in that event, Lamar shall remove the billboard at 16912 1/2 IH 35 within thirty (30) days after receiving written notice of such termination. 8. Miscellaneous. a. Attorney's Fees. If any legal action or proceeding is commenced in a court of competent jurisdiction between the City and Lamar to enforce provisions of this Agreement and recover damages for breach, the prevailing party in such legal action shall be entitled to recover its reasonable attorney's fees and expenses incurred by such action, to the extent allowed by law. b. Entire Agreement. This Agreement contains the entire agreement between the parties. This Agreement may only be amended, altered or revoked by written instrument signed by the City and Lamar. c. Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. d. Assignment. Lamar may not assign all or part of its rights and obligations to a third party without the express written consent of the City. e. Amendment. This Agreement may be amended by the mutual written agreement of the parties. f. Notice. Any notice and or statement required and permitted to be delivered shall be deemed delivered by actual delivery, facsimile with receipt of confirmation, or by depositing the same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses: If to City: City of Round Rock 221 E. Main Street Round Rock, TX 78664 Attn: City Manager Phone: (512) 218-5400 Email: snorwood@roundrocktexas.gov 3 With a required copy to: If to Lamar: Sheets & Crossfield 309 E. Main Street Round Rock, TX 78664 Attn: Stephan L. Sheets Phone: (512) 255-8877 Email: steve@scrrlaw.com Lamar Advantage Holding Company 7020 Hwy. 290 East Austin, Texas 78723 Attn: Alan B. Reeder Phone: (512) 451-1945 Email: areeder@lamar.com Either party may designate a different address upon written notice to the other party. g. Interpretation. Each of the parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, however its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any party. h. Applicable Law. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Texas and venue shall lie in Williamson County, Texas. J. Severability. In the event any provisions of this Agreement are illegal, invalid or unenforceable under present or future laws, and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected. It is also the intention of the parties of this Agreement that in lieu of each clause and provision that is found to be illegal, invalid or unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. k. No Third Party Beneficiaries. This Agreement is not intended to confer any rights, privileges or causes of action upon any third party. EXECUTED to be effective as of the day of , 2013 (the "Effective Date"). 4 APPROVED as to form: Stephan L. Sheets, City Attorney CITY OF ROUND ROCK, TEXAS, By: Alan McGraw, Mayor LAMAR ADVANTAGE HOLDING COMPANY By:�'�•-e•�'�• Alan B. Reeder, its Vice President and General Mgr. 5 City of Round Rock Agenda Item Summary Agenda Number: H.2 Title: Consider a resolution authorizing the Mayor to execute an Agreement to Eliminate Non -Conforming Billboards with Lamar Advantage Holding Company. Type: Resolution Governing Body: City Council Agenda Date: 12/5/2013 Dept Director: Brad Wiseman, Planning and Development Services Director Cost: Indexes: Attachments: Resolution, Exhibit A, Map Department: Planning and Development Services Department Text of Legislative File 13-796 This is a 10 -year agreement between the City of Round Rock and Lamar Advantage Holding Company (Lamar). According to Chapter 30 of the Code of Ordinances pertaining to signs, billboards are not permitted. Therefore, any existing billboards within the City limits are non -conforming and cannot be upgraded. This agreement would allow Lamar to upgrade its existing billboard located at 16912 1/2 IH 35 to include one (1) digital face, in exchange for the removal of two (2) other billboards located at 510 IH 35 and at 1201 Palm Valley Blvd. The agreement outlines requirements associated with upgrading the billboard and for the removal of the specified billboards. As part of this agreement, Lamar agrees to reserve one (1) of six (6) timeslots on the digital display for a minimum of sixty (60) days per year for use by the City to advertise and/or inform the public of City sponsored events. Lamar will also allow the City to display emergency information. Lamar also agrees not to display any messages that could be considered obscene, offensive, or otherwise not in keeping with community standards and will remove such messages within 48 hours of receiving notice from the City. The City will perform an annual audit to verify that Lamar is in compliance with the terms of this Agreement. Lamar agrees to pay to the City an annual fee of $500.00 on the anniversary date of the agreement to reimburse the City for the cost of performing this audit and provide the City with a copy of its annual billboard permit from TxDOT. Staff recommends approval. City of Round Rock Page 1 Printed on 12/3/2013 EXECUTED ORIGINAL DOCUMEN1S FOLLOW 0 AGREEMENT TO ELIMINATE NON -CONFORMING BILLBOARDS This Agreement to Eliminate Non -Conforming Billboards, (the "Agreement") is made and entered into this '0j qday of %la/160013 by and between Lamar Advantage Holding Company, a e]eywa r- corporation, ("Lamar"), and the City of Round Rock, Texas, a Texas home rule municipality, ("City"). WHEREAS, the City has adopted Chapter 30 of the Code of Ordinances, City of Round Rock (2010 Edition) (the "Code") which regulates signs in the City; and WHEREAS, Sec. 30-13 of the Code lists types of signs that are prohibited in the City, which includes off - premises signs and billboards; and WHEREAS, Lamar has several existing billboards that are now non -conforming billboards under the terms of the Code; and WHEREAS, the City and Lamar have reached an agreement whereby Lamar will remove two existing non -conforming billboards in exchange for the City permitting Lamar to upgrade one existing billboard to a digital display; NOW THEREFORE, in consideration of the mutual benefits and promises and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, City and Lamar agree as follows: 1. Existing Non -Conforming Billboards. Lamar is the owner of the following non -conforming billboards located in the City: a. Billboard located at 510 IH 35; b. Billboard located at 1201 Palm Valley Blvd.; and c. Billboard located at 169121/: IH 35. 2. Removal of Non -Conforming Billboards. Lamar agrees to remove the two billboards located at 510 IH 35 and at 1201 Palm Valley Blvd. in exchange for the City's agreement to permit Lamar to upgrade the billboard located at 16912 A IH 35 to a digital display. The removal of the two billboards shall include the concrete pads above the surface of the adjacent grade level, pole structure and all related equipment and facilities. The billboard removal area shall be re -vegetated so that it is similar to the surrounding area. 3. Upgrade of Non -Conforming Billboard. Once the above two billboards are removed, Lamar may apply for a permit from the Director of Planning and Development Services to replace and/or upgrade the billboard at 16912 % IH 35 to include a digital display. The application for the permit must be accompanied with a survey, an amended Texas Department of Transportation Digital Billboard Permit, and written consent from the property owner. The Director will issue the aforesaid permit upon determining that all appropriate requirements of this Agreement have been met and that the Building Official has issue all required building permits. The upgraded billboard must comply with all Texas 00284713.DOCX 11'15- 1'2- -(1. Rte' 0 o Department of Transportation's regulations regarding billboards, as amended. In addition, the upgraded billboard shall comply with the following requirements: a. The billboard shall have only one digital face that is no more than 14 feet high and no more than 48 feet wide. b. The overall height of the existing billboard shall not be increased. c. The digital face of the billboard shall automatically adjust so that the brightness of the display is no more than 0.3 foot candles over the ambient light conditions at a distance of 250 feet from the display. d. The construction of the upgraded billboard shall comply with all of the City building codes. e. The electric service to the billboard shall be installed underground. 4. Advertising and Information Requirements. Lamar agrees that the digital face of the billboard shall not contain any flashing or scrolling information and all messages must comply with the Electronic Messaging Center standards in the Code and with all applicable TxDOT regulations, as amended. In the event that the Code and TxDOT regulations are not the same, the more restrictive regulation shall apply. The digital face shall not include any advertising that could be considered obscene, offensive or otherwise not in keeping with community standards of the City. Lamar agrees to remove any such advertising within 48 hours of receiving notice of same from the City. Lamar agrees that it will comply with 43 Texas Administrative Code, §21.258 regarding the display of emergency information important to the traveling public. Lamar agrees to coordinate with the City to establish procedures to quickly display such emergency messages. Lamar also agrees to provide templates to the City that will allow for rapid displays of emergency and other time sensitive messages. In addition, Lamar agrees to reserve time slots on the digital display for the City to advertise and/or inform the public of City sponsored events. Lamar agrees that the digital display will have no more than six (6) time slots for messaging. The aforementioned time slots shall change every eight (8) seconds. Lamar will reserve one of these slots for the City for a minimum of sixty (60) days per calendar year. For the purposes of this agreement, twenty-four (24) consecutive hours of use shall be defined as one (1) day. The City shall have the right to designate the days during which to utilize its reserved time slots for City events; provided however, the City agrees to give Lamar at least sixty (60) days written notice of said designated days. Lamar agrees to provide artwork as needed at no cost to the City. Lamar also agrees to offer additional time slots, free of charge, to the City as and if available. 5. Annual Audit. The City will perform an annual inspection and audit to verify that Lamar is in complete compliance with the terms of this Agreement. Lamar agrees to pay to the City an annual fee of $500.00 on the anniversary date of this Agreement to reimburse the City for the cost of performing this audit. As part of this annual audit, Lamar agrees to provide the City with a copy of its annual permit from TxDot. 2 0 0 6. Term. This Agreement will be for a term of ten (10) years and will end on the 31st day of December, 2023. 7. Default. If Lamar should default in the performance of any obligations of this Agreement, City shall provide Lamar written notice of the default, and a minimum period of thirty (30) days to cure such default. If after 30 days, Lamar has not cured the default to the satisfaction of the City, the City shall have the right to declare this Agreement terminated and in that event, Lamar shall remove the billboard at 16912 %: IH 35 within thirty (30) days after receiving written notice of such termination. 8. Miscellaneous. a. Attorney's Fees. If any legal action or proceeding is commenced in a court of competent jurisdiction between the City and Lamar to enforce provisions of this Agreement and recover damages for breach, the prevailing party in such legal action shall be entitled to recover its reasonable attorney's fees and expenses incurred by such action, to the extent allowed by law. b. Entire Agreement. This Agreement contains the entire agreement between the parties. This Agreement may only be amended, altered or revoked by written instrument signed by the City and Lamar. c. Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. d. Assignment. Lamar may not assign all or part of its rights and obligations to a third party without the express written consent of the City. e. Amendment. This Agreement may be amended by the mutual written agreement of the parties. f. Notice. Any notice and or statement required and permitted to be delivered shall be deemed delivered by actual delivery, facsimile with receipt of confirmation, or by depositing the same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses: If to City: City of Round Rock 221 E. Main Street Round Rock, TX 78664 Attn: City Manager Phone: (512) 218-5400 Email: snorwood@roundrocktexas.gov 3 With a required copy to: If to Lamar: Sheets & Crossfield 309 E. Main Street Round Rock, TX 78664 Attn: Stephan L. Sheets Phone: (512) 255-8877 Email: steve@scrrlaw.com Lamar Advantage Holding Company 7020 Hwy. 290 East Austin, Texas 78723 Attn: Alan B. Reeder Phone: (512) 451-1945 Email: areeder@lamar.com Either party may designate a different address upon written notice to the other party. g. Interpretation. Each of the parties has been represented by counsel of their choosing in the negotiation and preparation of this Agreement. Regardless of which party prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute, however its meaning or application, be interpreted fairly and reasonably and neither more strongly for or against any party. h. Applicable Law. This Agreement is made, and shall be construed and interpreted, under the laws of the State of Texas and venue shall lie in Williamson County, Texas. J. Severability. In the event any provisions of this Agreement are illegal, invalid or unenforceable under present or future laws, and in that event, it is the intention of the parties that the remainder of this Agreement shall not be affected. It is also the intention of the parties of this Agreement that in lieu of each clause and provision that is found to be illegal, invalid or unenforceable, a provision be added to this Agreement which is legal, valid or enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. Paragraph Headings. The paragraph headings contained in this Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of the various and several paragraphs. k. No Third Party Beneficiaries. This Agreement is not intended to confer any rights, privileges or causes of action upon any third party. EXECUTED to be effective as of the CJ 'day of f1 �/Y"� 2013 (the "Effective Date"). 4 APPED as t• form Stepha L. Sheets, City Attorney CITY OF ROUND ROCK, TEXAS, By: Alan McGraw, Mayor LAMAR ADVANTAGE HOLDING COMPANY By: Alan B. Reeder, its Vice President and General Mgr. 5 a 0 AFFIDAVIT STATE OF LOUISIANA PARISH OF EAST BATON ROUGE BEFORE ME, the undersigned authority, personally came and appeared: JAMES R. McILWAIN, Secretary of Lamar Advertising Company, who declared that: The Lamar Company, L.L.C. is a subsidiary of Lamar Advertising Company and owns 100 percent of the outstanding stock of TLC Properties, Inc., a Louisiana corporation. Signed this day of October, 2013, at Baton Rouge, Louisiana. i Ldefr S ' . McILWAIN retary of Lamar Advertising Company. SWORN TO AND SUBSCRIBED before me this 02'/1c, day of October, 2013. otary Public My C . mmission Expires: at death. Krlsii _. VVi!liams c;t%a's �- Hc No. 67017 Of c.isiana Feliciana ,_;. Commission !s For Life.