HomeMy WebLinkAboutExhibit 7.23.09 SUBvYJ IN CtUt
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FIRST AMENDMENT TO SETTLEMENT AGREEMENT
THIS FIRST AMENDMENT to the July 8, 2004 Settlement Agreement (this
"Amendment") is made and entered into as of this day of , 2009 (the
"Amendment Effective Date"), by and between the City of Miami (the "City"), a
Florida municipality, and Clear Channel Outdoor, Inc., a Delaware corporation ("CCO").
RECITALS
A. The City and CCO are Parties to that certain Settlement Agreement dated July
8, 2004 (the "Agreement").
B. The City and CCO wish to, and by this Amendment hereby agree to, amend
the terms of the Agreement as set forth herein. Capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the Agreement.
C. There is currently pending a lawsuit styled Jackson Soul Food, Inc. et al, v.
Southeast OvertownlPark West Community Redevelopment Agency, Case No. 05-09022
CA 11 in which CCO has intervened (the "Litigation"). In the Litigation, the Southeast
Overtown/Park West Community Redevelopment Agency (the "CRA") claims that
CCO's billboard located at 936 NW 3rd Avenue, Tax Folio Number 01-0102070-1020
(the "JEJ Properties, Inc. Sign") was erected in violation of a covenant restricting the
use of the property solely for parking, which CCO strongly denies. Each of the
covenants, agreements and obligations of the parties under this Amendment are expressly
subject to and conditioned upon the dismissal with prejudice of the Litigation so as to
allow the JEJ Properties, Inc. Sign to remain (the "Dismissal").
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the City and CCO agree to amend the Agreement as
follows:
1. Incorporation of Recitals. The above recitals are true and correct and are
incorporated into and made part of this Amendment and the Agreement.
2. Voluntary Removal of Bird Road Signs. CCO shall, at its sole cost
and expense, permanently and voluntarily remove its Signs and all apparatus associated
therewith ("Sign Structures") listed on Exhibit H, and shall do so in accordance with
and subject to the terms and conditions set forth in Recital C and Sub -section 6.10 hereof.
In fulfilling this commitment, CCO shall comply with any and all local requirements,
including permit requirements and the City shall issue any and all necessary permits
associated therewith.
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3. Voluntary Removal of Signs on Exhibit I. CCO shall, at its sole cost
and expense, permanently and voluntarily, remove its Signs and Sign Structures listed on
Exhibit I, and shall do so in accordance with and subject to the terms and conditions set
forth in Recital C and Sub -section 6.10 hereof. In fulfilling this commitment, CCO shall
comply with any and all local requirements, including permit requirements and the City
shall issue any and all necessary permits associated therewith.
4. Waiver of Just Compensation. CCO hereby expressly waives any right
to receive from the City just compensation for the removal of any Signs or Sign
Structures pursuant to this Amendment and the Agreement, whether such a claim for just
compensation is predicated on Section 70.001, 70.20(9) or 479.15(2), Florida Statutes;
Article X, Section 6 of the Florida Constitution; or any other authority under local, state
or federal law.
5. Payment in Lieu of Removal. Within five (5) days following the
issuance of all necessary final governmental approvals, authorizations and permits
necessary for the replacement of four (4) Signs faces and one (1) poster size Sign face
with five(5) LED Signs faces, i.e., Sign faces having the characteristics described in
Sections 6.5 through 6.8 hereof ("LED Sign faces"), as provided in Section 6 hereof,
CCO shall pay the CRA a one-time only payment of eighty thousand dollars ($80,000.00)
(the "CRA Payment"). Moreover, the City shall give CCO a one-time credit of forty
thousand dollars ($40,000.00) against CCO's NEA payment due to the City for the year
in which the CRA Payment is made per Section 11(b) of the Agreement (the "NEA
Credit"), but only after the CRA confirms receipt of the CRA Payment. The City agrees
to indemnify and hold harmless CCO from any claims that may be made by the NEA or
beneficiaries of the NEA as a result of the NEA Credit.
6. LED Sign faces.
6.1 Notwithstanding anything to the contrary contained in the Agreement,
CCO shall be permitted to replace four (4) existing Sign faces and one (1) existing poster
size Sign face with LED Sign faces at the following "Designated Locations" within the
City of Miami in accordance with this Section 6: 1) I-95 W/S 100ft S/O SW 8"' Street
F/N, 818 SW 0' Avenue , Folio No. 0102060001020; 2) I-95 E/S 75ft S/O NW lOtn
Street F/S, 936 NW 3rd Avenue, Folio No. 0101020701020; 3) I-395 N/S .35mi E/O I-95
F/W, 1413 NW 1St Place, Folio No. 0131360510590; 4)_I-95 W/L 25 ft S/O NW 79"
Street, 7836 NW 6th Court, Folio No. 0131120170380; and 5) I-95 E/S 150 ft N/O NW
3rd Street, 401 NW 3rd Avenue, Folio No. 0101070501091.
6.2 CCO will pay to the NEA program an additional annual payment in the
amount of $15,000.00 for years 1 through 6 of this Amendment, $20,000.00 for years 7
through 13 of this Amendment, and $25,000.00 for years 14 through the termination of
the Agreement (the "NEA LED Payment") for each LED Sign face per year for each
LED Sign face erected for so long as such LED Sign face remains erected. For further
clarity, the first annual NEA LED Payment for a LED Sign face is due immediately upon
the City's issuance of the Building Permit for the erection of that LED Sign face. If,
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however, the City's Building Permit expires without the LED Sign face being constructed
or erected, then the City will promptly refund to CCO the first annual NEA LED
Payment with fifteen days of expiration. Subsequent NEA LED Payments are due on the
anniversary of the first NEA LED Payment, unless the first NEA LED Payment has been
refunded. The NEA LED Payment shall be adjusted annually, either up or down, based
upon the consumer price index for the Metropolitan Miami -Dade area (the "CPI
Adjustment"). The CPI Adjustment shall begin on the third anniversary date of the first
NEA LED Payment.
6.3 In addition, the City will have access to use the LED Sign faces through
the State of Florida's Office of Emergency Management (the "OEM"), upon official
activation of the OEM for certain limited emergency reasons such as hurricanes, amber
alerts, and police or fire emergency situations. Such access shall be subject to the
agreements CCO has in place from time to time with the FBI, State of Florida and the
OEM.
6.4 In the event the view of any LED Sign face is substantially impaired
from the roadway, highway or expressway from which it is intended to be viewed, or
CCO is unable to install and/or operate an LED Sign at a Designated Location through no
fault of CCO, then CCO shall have the right to relocate the affected LED Sign face to
another location of similar value for outdoor advertising purposes within the City of
Miami along an expressway at which CCO then owns a Sign and Sign Structure as
selected by CCO, subject to the approval of such other location by the City Commission.
The City shall not impose, as a condition for its approval of a relocation under this
paragraph, that: (a) CCO make any payment to the City; (b) that CCO take down any
additional Signs or Sign Structures; (c) that CCO reduce the size or height of the LED
Sign(s) so relocated; or (d) that CCO operate the LED Sign(s) so relocated in any manner
that is materially inconsistent with the previous operation of the LED Sign(s) by CCO,
including, without limitation, requirements (i) that CCO reduce the hours of operation of
the LED Sign(s), (ii) that CCO display advertising in increments that are greater than
eight seconds or increments permitted by FDOT regulations (whichever increment is
greater); (iii) that CCO limit the amount or frequency of commercial advertising
displayed on the LED Sign(s); or (iv) except as required by Section 6.3 hereof, that CCO
display messages benefitting any entity or cause. The term "expressway" shall mead I-
95, I-195, I-395, SR 112, SR 826 and SR 836. If required, the City shall issue all
necessary approvals and permits to CCO to so relocate the affected LED Sign and LED
Sign Structure.
6.5 In addition to FDOT's spacing requirements, LED Sign faces facing in
the same direction shall be placed at a minimum of six hundred (600) feet apart,
irrespective of whether they are placed on the same or different sides of the roadway,
highway or expressway. In the case of LED Sign faces located on opposite sides of the
roadway, highway or expressway, the six hundred (600) feet shall be measured excluding
the width of the roadway, highway or expressway.
6.6 LED Sign faces are restricted to one (1) LED Sign face per Sign
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Structure.
6.7 The four (4) LED Sign faces shall have digital advertising faces no
larger than 14' x 48'. The one (1) LED poster size Sign face shall have a digital
advertizing face no larger than 14' x 24'. The four (4) LED Sign structures and the one
(1) poster size LED Sign structure shall be constructed in the manner depicted and
described in Exhibit K, attached and incorporated hereto.
6.8 LED Sign faces shall allow for display of remotely changeable off -
premise advertising in increments of eight seconds, or increments permitted by FDOT
regulations, whichever increment is greater.
6.9 If an existing Sign Structure at one or more of the Designated
Locations is insufficient to support an LED Sign face, CCO may replace the Sign
Structure with a Sign Structure which is sufficient to support an LED Sign face. If
required, the City shall issue all necessary approvals and permits to CCO to so replace
such Sign Structure.
6.10 CCO may only submit one building permit for an LED Sign face at
a time. The first building permit may only be submitted following the dismissal with
prejudice of the Litigation. Within fifteen (15) days after CCO's receipt of all necessary
final governmental approvals, authorizations and permits (including, without limitation,
all necessary governmental approvals, authorizations and permits from FDOT) for the
erection, installation and operation of the first LED Sign face, CCO shall, at its sole cost
and expense, permanently and voluntarily remove (if not already theretofore removed)
the following Signs and Sign Structures: the two (2) Signs and Sign Structures listed on
Exhibit H and Sign numbers 162 and 163 listed on Exhibit I. CCO may not apply for a
building permit for the second LED Sign face until it has completed the removal of the
Signs and Sign Structures listed in the immediately preceding sentence of this Sub -
Section. Within fifteen (15) days after CCO's receipt of all necessary final governmental
approvals, authorizations and permits (including, without limitation, all necessary
goveriunental approvals, authorizations and permits from FDOT) for the erection,
installation and operation of the second LED Sign face, CCO shall at its sole cost and
expense, permanently and voluntarily remove (if not already theretofore removed) the
following Signs and Sign Structures: Sign numbers 247, 105, 118 & 174 listed on Exhibit
I. CCO may not apply for a building permit for the third LED Sign face until it has
completed the removal of the Signs and Sign Structures listed in the immediately
preceding sentence of this Sub -Section. Within fifteen (15) days after CCO's receipt of
all necessary final governmental approvals, authorizations and permits (including,
without limitation, all necessary governmental approvals, authorizations and permits
from FDOT) for the erection, installation and operation of the third LED Sign face, CCO
shall at its sole costs and expense, permanently and voluntarily remove (if not already
theretofore removed) the following Signs and Sign structures: Sign numbers 71, 27, 133
& 47 listed on Exhibit I. CCO may not apply for a building permit for the fourth LED
Sign face until it has completed the removal of the Signs and Sign Structures listed in the
immediately preceding sentence of this Sub -Section. Within fifteen (15) days after
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CCO's receipt of all necessary final governmental approvals, authorizations and permits
(including, without limitation, all necessary governmental approvals, authorizations and
permits from FDOT) for the erection, installation and operation of the third LED Sign
face, CCO shall at its sole costs and expense, permanently and voluntarily remove (if not
already theretofore removed) the following Signs and Sign structures: Sign numbers 105,
235, 174 & 5 listed on Exhibit I. CCQ may not apply for a building permit for the fifth
poster size LED Sign face until it has completed the removal of the Signs and Sign
Structures listed in the immediately preceding sentence of this Sub -Section.
7. Gateway Map to be Added. Section 3.b of the Agreement is amended to
include the following additional language:
A map designating "Gateways" as that term is used in Exhibit E is
attached hereto as Exhibit E-1 and is on file with the City Cleric's Office.
As used in this Agreement, "Gateways" means those areas of the City of
Miami designated on the map attached as Exhibit E-1 where, irrespective
of Zoning Districts and corresponding restrictions, CCO Signs, are not
permitted. In the event CCO's existing Sign and Sign structures are in the
Gateways area, such Sign and Sign structures shall be permitted to remain
in those areas at the sole discretion of CCO, but only if those Signs and
Sign structures are listed on Exhibit D or were erected with an Amended
Permit or an Initial Amended Permit.
8. Assignments/Binding Nature. Paragraph 19.f, of the Agreement is
deleted and replaced with the following language:
f. Assignments/Binding Nature. This Agreement will be
binding upon and will inure to the benefit of any successor or permitted
assigns of the parties hereto. CCO agrees not to assign, transfer or convey
(collectively "assignment") any ownership in any CCO Sign identified in
Exhibit D unless the assignee shall execute an agreement to be bound by
the terms and conditions of this Agreement.
9. Selection of Signs to be Removed for Amended Permits. There shall
be added sub -paragraphs 3.i. and 3.j. to the Agreement which shall read as follows:
i. Notwithstanding anything to the contrary in this Agreement,
for the issuance of the 15t" Amended Permit, the City may select the Signs
and Sign structures to be removed by CCO from those Signs listed on
Exhibit J.
j. No Sign or Sign structure shall be erected based on an
Amended Permit until the Signs and Sign structures required to be
removed pursuant to the Agreement are removed.
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10. Governing Law/JurisdictionNenue. Paragraph 19.b. of the
Agreement shall be deleted and replaced with the following language:
b. Governing Law. This Agreement shall be construed and
controlled by the laws of the State of Florida, and the Parties further
consent to jurisdiction, if available, and venue in the federal district courts
sitting in Miami -Dade County, Florida. If, and only if, the federal district
court lacks jurisdiction, the parties consent to jurisdiction and venue in the
state circuit court in Miami -Dade County, Florida. CCO waives all
defenses of lack of personal jurisdiction and forum non conveniens.
Process may be served on either Party in the manner authorized by
applicable law or court rule.
11. Correction to Exhibit D. Exhibit D to the Agreement shall be amended
to reflect that: (a) Sign #1 bears an incorrect address; the correct address is 3010 SW 37
Avenue; (b) Sign #180 bears an incorrect folio number; the correct folio number is 01-
4121-004-0040; (c) Sign #181 bears an incorrect address; the correct address is 3635 S.
Dixie Highway.
12. CCO to Indemnify and Hold Harmless the City. This Amendment
contemplates the removal of existing Signs and Sign Structures in exchange for CCO's
right to replace existing Sign faces with LED Sign faces in prime expressway locations.
It is recognized that CCO may have lease agreements with property owners (the
"Property Owners") relating to existing Signs and Sign Structures that CCO is voluntarily
obligating itself to remove, or may elect to remove, under the terms of this Amendment
and the Agreement. Consequently, CCO agrees to indemnify the City from any lawsuit,
and shall defend with counsel designated by CCO and reasonably acceptable to the City,
and hold the City harmless, against any claim asserted by an affected Property Owner
arising from the removal of the Signs and Sign Structures that are removed after the
Amendment Effective Date under the terms of this Amendment or the Agreement.
13. Future LED Sign Regulation. CCO agrees to comply with and be bound
by all federal, State of Florida, Miami -Dade County and City sign regulations regarding
LED Signs adopted prior to or after the date of this Amendment, but, during the term of
the Agreement, any City regulation now in effect or adopted after the date of this
Amendment shall not be applied to diminish CCO's rights to maintain and operate the
four LED Sign faces and one (1) poster size LED Sign face (including any LED Sign
faces relocated pursuant to Section 6.4 hereof) granted under this Amendment.
14. No Further Amendment. Except as expressly modified by this
Amendment, the Agreement shall remain unmodified and in full force and effect, and the
Parties hereby ratify their respective obligations thereunder.
15. Entire Agreement. The Agreement, as expressly modified by this
Amendment, shall constitute the entire agreement among the Parties with respect to the
subject matter hereof and merges all prior and contemporaneous communications.
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16. Severability. If any provision of this Amendment shall be held by a court
of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions
shall remain in frill force and effect.
17. Representations and Warranties. CCO hereby represents and warrants
that it: (a) is a corporation in good standing under the laws of the State of Delaware; (b)
is duly authorized to transact businesses in the State of Florida; and (c) has taken all
corporate actions necessary to authorize execution and performance of this Amendment.
The City hereby represents and warrants that: (a) it is empowered to enter into this
Amendment; and (b) this Amendment has been duly authorized by the City Commission
of the City of Miami pursuant to the requirements of Florida law.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be
executed by their duly authorized representatives as of the Amendment Effective Date
shown above.
CITY OF MIAMI CLEAR CHANNEL OUTDOOR, INC.
City Manager
Dated: , 2009
Attest:
City Clerk
Dated: , 2009.
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. Bru
City Attorney
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itz
Its:
Dated: )2009.
APPROVED AS TO INSURANCE
REQUIREMENTS:
LeeAnn Brehm
Risk Management Director
Exhibit H
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Sign
No.
Street Address of
Sign
Tax Folio No.
Location
So ign
type
No.
Face
s
Zoning
70
1
3010 SW 37 Ave
01-4117-003-1730
Bird Rd SS 1130ft W/O Douglas Rd F/W -3
2
71
179
3820 Bird Road
01-4117-003-1900
Bird Rd SS 80ft E/O SW 38 Ct F/E — 1
1
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Clear Channel _City of Miami
CCO Signs already removed or in the process to be removed
Exhibit I
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Sign
No.
Street Address of Sign
Tax Folio No.
Location
Sign
Type
72
162
7889 N Bayshore Drive
01-3208-008-0530
NE 79th St. SS 10'W/0 NE 11th Ave
73
163
1165 NE 79 St
01-3208-011-0060
NE 11 Av ES 50'N/0 NE 79 St. SF -E
74
247
1177 NE 79 St
01-3208-011-0080
NE 79 St. NS 50'W/0 NE 12 Av F/E-2
75
105
2148 NW 10 Ave.
01-3126-054-0060
NW 10 Av WS 100' N/O NW 21 St F/S-1
76
118
1781 NW N River Dr.
01-3134-000-0060
N River Dr NS 30'W/0 NW 18 Av F/E-1
77
174
7011 NW 7 Ave.
01-3113-024-1060
NW 7 Ave ES 280' S/O NW 71 St
78
65
737 NW 4 St
01-0200-010-3010
NW 5 St BRG SL 100' E/O NW 8 Av
79
71
800 NW 12 Av
01-3135-022-0060
NW 12 Ave WL 300'N/0 NW 7 St
80
27
25 NW 57Av
01-4106-015-0170
NW 57 Av ES 100' N/0 Flagler St F/S-4
81
133
5211 NW 17th Av
01-3122-052-0560
NW 17 Av ES 100' S/0 NW 53 St F/N-1
82
47
717 SW 17 Av
01-4102-012-0070
SW 17 Av ES 100' N/O SW 8 St F/N-1
83
105
2148 NW 10 Ave
01-3126-054-0060
NW 10 Av W/S 100' N/O NW 21 St
84
235
1096 NW 54 Street
01-3123-006-1141
NW 54 St S/L 50' E/O NW 11 Ave
85
174
7011 NW 7 Ave
01-3113-024-1060
NW 7 Av ES 280' S/O NW 71 St
86
5
3206-08 Grand Ave
01-4121-007-4480
Grand Av SS 100' W/O Commodore
Plaza
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EXHIBIT J
Loc. Descri tion
2-4
Exhibit D #
Grand Av SS 25ft W/O Margaret St FIE -1
Miami
7
Grand Av SS 25ft W/O Margaret St F/W -1
Miami
7
Grand Av SS 100ft W/O Commodore PI F/N - 1
Miami
5
Grand Av SS 100ft W/O Commodore PI F/N - 2
Miami
5
Le Jeune Rd ES 288ft S/0 NW 9th St FIN -1
Miami
199
Le Jeune Rd ES 288ft S/0 NW 9th St F/S - 2
Miami
199
NW 27th Av WS 85ft SIO NW 4th St F/N - 2
Miami
39 & 202
NW 27th Av WS 85ft S/0 NW 4th St F/S -1
Miami
39 & 202
NW 22nd Av WS 50ft S/0 NW 3rd St FIS -1
Miami
13
NW 22nd Av WS 50ft SIO NW 3rd St FIS - 2
Miami
13
NW 22nd Av WS 50ft S/O NW 3rd St FIN - 3
Miami
13
NW 22nd Av WS 50ft S/0 NW 3rd St FIN - 4
Miami
13
NW 62nd St NS 10ft W/O N Miami Av FIE -1
Miami
151 & 152
N Miami Av WS 10ft NIO NW 62nd St FIS - 1
Miami
151 & 152
N Miami Av WS 50ft NIO NW 62nd St FIS - 1
Miami
151 &152
NW 62nd St NS 25ft W/O N Miami Av F/W - 1
Miami
1151 & 152
NW 62nd St NS 25ft W/O N Miami Av FIW - 2
Miami
151 & 152
N Miami Av ES 200ft N/0 NE 73rd St F/N -1
Miami
166
N Miami Av ES 200ft NIO NE 73rd St FIN - 2
Miami
166
N Miami Av ES 200ft N/O NE 73rd St FIS - 3
Miami
166
N Miami Av ES 200ft N/O NE 73rd St FIS - 4
Miami
166
NW 7th Av WS 50ft SIO NW 75th St F/N - 2
Miami
170
NW 7th Av WS 50ft S/O NW 75th St FIS -1
Miami
170
NW 75th St SS 100ft W/O NW 7th Av FIE -1
Miami
170
NW 7th Av WS 50ft N/O NW 70th St FIN - 2
Miami
173
NW 7th Av WS 50ft N/0 NW 70th St FIS - 1
Miami
173
EXHIBIT J
Loc. Description
citv
Exhibit D #
Le Jeune Rd ES 50ft S/O NW 9th St FIN - 1
Miami
198
Le Jeune Rd ES 50ft S/0 NW 9th St F/S - 2
Miami
198
Le Jeune Rd E/L 288ft S/0 NW 9th St. -1
Miami
197
Le Jeune Rd E/L 288ft S/0 NW 9th St.- 2
Miami
197
Le Jeune Rd ES 225ft NIO NW 9th St F/N - 1
Miami
194
Le Jeune Rd ES 225ft NIO NW 9th St F/S - 2
Miami
194
NE 14th St NS 75ft E/O Miami Av F/W -1
Miami
72
NW 2nd Av ES 25ft SIO NW 52nd St F/N - 1
Miami
146
NW 2nd Av ES 25ft SIO NW 52nd St F/S - 2
Miami
146
_GXI�i VF! I<
-ILLUTOINTATIEDBLUE
I ......... COVED NEON D=_CCR,
FF 2.
5Q
419�-Q
CUSTOM -7 HOLE ON 4' CENT ER
PERFORAJ`ED I ST SURFACE PANELS
OA4W-2`
cI;N.
15
VO 4V-9
FCO RE[_AINEF DECOR.
C31
i� �_mmm
z
-F
Wl; _,?,
20mm FULL COLOR
f
ffff
LED MESSAGE UNIT.
tl
ME
-ILLUTOINTATIEDBLUE
I ......... COVED NEON D=_CCR,
5Q
CUSTOM -7 HOLE ON 4' CENT ER
PERFORAJ`ED I ST SURFACE PANELS
-ILLUTOINTATIEDBLUE
I ......... COVED NEON D=_CCR,
CUSTOM -7 HOLE ON 4' CENT ER
PERFORAJ`ED I ST SURFACE PANELS
PAINTED METALLIC SILVER. OVERLAY
cI;N.
ON PANTED BLACK BASE.
FCO RE[_AINEF DECOR.
i� �_mmm
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-F
oUTLE
A-4 E DIG! -IAL B!LLBOAR.D
SCOPE 0F IqG-PK-- SCALE:
YESCO MANUFACTURE (2) 20MIM FULL COLOR LED MESSAGE DISPLA(-S
FOR DOUBLE FACE DIGITAL BILLBOARD. MATRIX: 200 X 704
FABRICATE BRUSHED ALUMINUM FRAME FOR LED DISPLAY UNIT, TRIM DECORAND POLE COVER.
FINAL
FIRST AMENDMENT TO SETTLEMENT AGREEMENT
TkIIS FIRST AMENDMENT to the July 8, 2004 Settlement Agreement (this
"Amendment") is made and entered into as of this day of , 2009 (the
"Amendin
Effective Date"), by and between the City of Miami (the "City"), a
Florida m \Ci
and Clear Channel Outdoor, Inc., a Delaware corporation ("CCO").
RECITALS
A. Tand CCO are Parties to that certain Settlement Agreement dated July
8, 2004 (the ent").
B. The City anX CCO wish to, and by this Amendment hereby agree to, amend
the terms of the Agreem nt as set forth herein. Capitalized terms used herein and not
otherwise defined herein s all have the meanings set forth in the Agreement.
C. There is currentlending a lawsuit styled Jackson Soul Food, Inc. et al, v.
Southeast OvertownlPark Wes Community Redevelopment Agency, Case No. 05-09022
CA I 1 in which CCO has irate ned (the "Litigation"). In the Litigation, the Southeast
Overtown/Park West Communi Redevelopment Agency (the "CRA") claims that
CCO's billboard located at 936 N 3rd Avenue, Tax Folio Number 01-0102070-1020
(the "JEJ Properties, Inc. Sign") erected in violation of a covenant restricting the
use of the property solely far par g, which CCO strongly denies. Each of the
covenants, agreements and obligations the parties under this Amendment are expressly
subject to and conditioned upon the dis ssal with prejudice of the Litigation so as to
allow the JEJ Properties, Inc. Sign to rema (the "Dismissal").
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein and other good and valuable co sideration, the receipt and sufficiency of
which is hereby acknowledged, the City and CO agree to amend the Agreement as
follows:
1. _Incorporation of Recitals. The abo e recitals are true and correct and are
incorporated into and made part of this Amendment kd the Agreement.
2. Voluntary Removal of Bird Road k' ns. CCO shall, at its sole cost
and expense, permanently and voluntarily remove its S', ns and all apparatus associated
therewith ("Sign Structures") listed on Exhibit H, and all do so in accordance with
and subject to the terms and conditions set forth in Recital d Sub -section 6.10 hereof.
In fulfilling this commitment, CCO shall comply with any d all local requirements,
including permit requirements and the City shall issue any d all necessary permits
associated therewith.
3. Voluntary Removal of Signs on Exhibit 1. CCO shall, at its sole cost
and expense, permanently and voluntarily, remove its Signs and Sign Structures listed on
Exhibit 1, and shall do so in accordance with and subject to the terms and conditions set
forth in Recital C and Sub -section 6.10 hereof. In fulfilling this commitment, CCO shall
comply with any, and all local requirements, including permit requirements and the City
shall issue any an all necessary permits associated therewith.
4. Waiv` r of Just Compensation. CCO hereby expressly waives any right
to receive from the City just compensation for the removal of any Signs or Sign
Structures pursuant tos 1.jnendment and the Agreement, whether such a claim for just
compensation is predic�ed on Section 70.001, 70.20(9) or 479.15(2), Florida Statutes;
Article X, Section 6 of to Florida Constitution; or any other authority under local, state
or federal law.
5. Payment in Lieu of Removal. Within five (5) days following the
issuance of all necessary final governmental approvals, authorizations and permits
necessary for the replacement othree (3) Signs faces with three (3) LED Signs faces,
i.e., Sign faces having the chara �eristics described in Sections 6.5 through 6.8 hereof
("LED Sign faces"), as provided ins ection 6 hereof, CCO shall pay the CRA a one-time
only payment of eighty thousand dol s ($80,000.00) (the "CRA Payment"). Moreover,
the City shall give CCO a one-time c dit of forty thousand dollars ($40,000.00) against
CCO's NEA payment due to the City fo the year in which the CRA Payment is made per
Section 11(b) of the Agreement (the " A Credit"), but only after the CRA confirms
receipt of the CRA Payment. The Cityrees to indemnify and hold harmless CCO
from any claims that may be made by the A or beneficiaries of the NEA as a result of
the NEA Credit.
6. LED Sign faces.
6.1 Notwithstanding anything to the co trary contained in the Agreement,
CCO shall be permitted to replace three (3) existingn faces with LED Sign faces at
the following "Designated Locations" within the City o Miami in accordance with this
Section 6: 1) I-95 W/S 100ft SIO SW 8t' Street FIN, 81 • SW 4`' Avenue , Folio No,
0102060001020; 2) I-95 E/S 75ft S/0 NW 10th Street F/S, 9 6 NW 3`d Avenue, Folio No,
0101020701020; 3) I-395 NIS .35mi E/0 1-95 F/W, 1413 NW 1St Place, Folio No.
0131360510590.
6.2 CCO will pay to the NEA program an additional ual payment in the
amount of $15,000.00 (the "NEA LED Payment") for each LED S n face per year for
each LED Sign face erected for so long as such LED Sign face rema'�s erected. For
further clarity, the first annual NEA LED Payment for a LED S face is due
immediately upon the City's issuance of the Building Permit for the ere
n of that LED
Sign face. If, however, the City's Building Permit expires without the L D Sign face
being constructed or erected, then the City will promptly refund to CCO the rst annual
NEA LED Payment with fifteen days of expiration. Subsequent NEA LED ayments
are due on the anniversary of the first NEA LED Payment, unless the first NEA LED
Payment has been refunded. The NEA LED Payment shall be adjusted annually, either
up or doom, based upon th consumer price index for the Metropolitan Miami -Dade area
(the "CPI Adjustment"). he CPI Adjustment shall begin on the third anniversary date
of the first NEA LED Pavme t.
6.3 In addition, the City will have access to use the LED Sign faces through
the State of Florida's Office of Emergency Management (the "OEM"), upon official
activation of the OEM for certA, limited emergency reasons such as hurricanes, amber
alerts, and police or fire emerge'hcy situations. Such access shall be subject to the
agreements CCO has in place from time to time with the FBI, State of Florida and the
OEM.
6.4 In the event the view\pf any LED Sign face is substantially impaired
from the roadway, highway or expressOay from which it is intended to be viewed, or
CCO is unable to install and/or operate an lED Sign at a Designated Location through no
fault of CCO, then CCO shall have the right to relocate the affected LED Sign face to
another location of similar value for outdoor advertising purposes within the City of
Miami along an expressway at which CCO \t en owns a Sign and Sign Structure as
selected by CCO, subject to the approval of such, other location by the City Commission.
The City shall not impose, as a condition for r s approval of a relocation under this
paragraph, that: (a) CCO make any payment to e City; (b) that CCO take down any
additional Signs or Sign Structures; (c) that CCO r duce the size or height of the LED
Sign(s) so relocated; or (d) that CCO operate the LE \\Sign(s) so relocated in any manner
that is materially inconsistent with the previous opera%'on of the LED Sign(s) by CCO,
including, without limitation, requirements (i) that CCOeduce the hours of operation of
the LED Sign(s), (ii) that CCO display advertising in idrements that are greater than
eight seconds or increments permitted by FDOT regulathgns (whichever increment is
greater); (iii) that CCO limit the amount or frequency , f commercial advertising
displayed on the LED Sign(s); or (iv) except as required by SS,tion 6.3 hereof, that CCO
display messages benefitting any entity or cause. The term "e ressway" shall mean I-
95, I-195, I-395, SR 112, SR 826 and SR 836. If required, e City shall issue all
necessary approvals and permits to CCO to so relocate the affecto LED Sign and LED
Sign Structure.
6.5 In addition to FDOT's spacing requirements, LED Sig faces facing in
the same direction shall be placed at a minimum of six hundred (6 0) feet apart,
irrespective of whether they are placed on the same or different sides of e roadway,
highway or expressway. In the case of LED Sign faces located on opposite 'des of the
roadway, highway or expressway, the six hundred (600) feet shall be measured xcluding
the width of the roadway, highway or expressway.
6.6 LED Sign faces are restricted to one (1) LED Sign face pe Sign
Structure.
6.7 LED Sign faces shall have digital advertising faces no larger
14' x 48'.
6.8 LED Sign faces shall allow for display of remotely changeable off -
premise advertising in increments of eight seconds, or increments permitted by FDOT
regulations, whichever inurement is greater.
6.9 If ar;existing Sign Structure at one or more of the Designated
Locations is insufficient to.. support an LED Sign face, CCO may replace the Sign
Structure with a Sign Structure which is sufficient to support an LED Sign face. If
required, the City shall issue all necessary approvals and permits to CCO to so replace
such Sign Structure,
6.10 CCO may only submit one building permit for an LED Sign face at
a time. The first building permit riiay only be submitted following the dismissal with
prejudice of the Litigation. Within fifteen (15) days after CCO's receipt of all necessary
final governmental approvals, authorisations and permits (including, without limitation,
all necessary governmental approvals, a%hthorizations and permits from FDOT) for the
erection, installation and operation of the first LED Sign face, CCO shall, at its sole Cost
and expense, permanently and voluntarily remove (if not already theretofore removed)
the following Signs and Sign Structures: the fwo (2) Signs and Sign Structures listed on
Exhibit H and Sign numbers 162 and 163 liste�. on Exhibit I. CCO may not apply for a
building permit for the second LED Sign face lil it has completed the removal of the
Signs and Sign Structures listed in the immediately preceding sentence of this Sub -
Section. Within fifteen (15) days after CCO's receiKof all necessary final governmental
approvals, authorizations and permits (including, 'ac
ou" limitation, all necessary
governmental approvals, authorizations and permitm FDOT) for the erection,
installation and operation of the second LED Sign faCO shall at its sole cost and
expense, permanently and voluntarily remove (if not lr• dy theretofore removed) the
following Signs and Sign Structures: Sign numbers 247, 105, 18 & 174 listed on Exhibit
I. CCO may not apply for a building permit for the third L D Sign face until it has
completed the removal of the Signs and Sign Structures list d in the immediately
preceding sentence of this Sub -Section. Within fifteen (15) days��er CCO's receipt of
all necessary final governmental approvals, authorizations and1��,er�mits (including,
without limitation, all necessary governmental approvals, authorizafi ns and permits
from FDOT) for the erection, installation and operation of the third LED ign face, CCO
shall at its sole costs and expense, permanently and voluntarily remove kf not already
theretofore removed) the following Signs and Sign structures: Sign numbers 71, 27, 133
& 47 listed on Exhibit I.
7. Gateway Man to be Added. Section 3.b of the Agreement is amendld to
include the following additional language:
A map designating "Gateways" as that term is used in Exhibit E is
attached hereto as Exhibit E-1 and is on file with the City Clerk's Office.
As used in this Agreement, "Gateways" means those areas of the City of
4
Miami designA, ed
of Zoning Dist jct
permitted. In the..•e
Gateways area, suc
in those areas at tl
Sign structures are
Permit or an Initial
on the map attached as Exhibit E-1 where, irrespective
s and corresponding restrictions, CCO Signs, are not
vent CCO's existing Sign and Sign structures are in the
,h Sign and Sign structures shall be permitted to remain
i'e sole discretion of CCO, but only if those Signs and
listed on Exhibit D or were erected with an Amended
Amended Permit.
S. Assignmen
deleted and replaced with the
f. AssianmentsB
binding upon and will inure''lc
assigns of the parties hereto. C,
(collectively "assignment") an}
Exhibit D unless the assignee
the terms and conditions of this
Paragraph 19.f. of the Agreement is
language:
ading _ Nature. This Agreement will be
the benefit of any successor or permitted
'0 agrees not to assign, transfer or convey
;ownership in any CCO Sign identified in
1411 execute an agreement to be bound by
9. Selection of Signs to be Removed for Amended Permits. There shall
be added sub -paragraphs 31 and 3.j. to the Agreement which shall read as follows:
i. Notwithstanding anything t6 Oe contrary in this Agreement,
for the issuance of the 15 Amended Permil the City may select the Signs
and Sign structures to be removed by CCU from those Signs listed on
Exhibit J.
j. No Sign or Sign structure shall b`• erected based on an
Amended Permit until the Signs and Sign strues required to be
removed pursuant to the Agreement are removed.tur
10. Governing Law/JurisdictionNenue. Pkagraph 19,b. of the
Agreement shall be deleted and replaced with the following langu e:
b. Governing Law. This Agreement shall be cnstrued and
controlled by the laws of the State of Florida, and the Partes further
consent to jurisdiction, if available, and venue in the federal district courts
sitting in Miami -Dade County, Florida. If, and only if, the federal district
court lacks jurisdiction, the parties consent to jurisdiction and venue \'n the
state circuit court in Miami -Dade County, Florida. CCO waives all
defenses of lack of personal jurisdiction and forum non convene
Process may be served on either Party in the manner authorized b�
applicable law or court rule.
11. Correction to Exhibit D. Exhibit D to the Agreement shall be amenad
to reflect that: (a) Sign #1 bears an incorrect address; the correct address is 3010 SW 37�
Avenue; (b) Sign #180 bears an incorrect folio number; the correct folio number is 01-
5
4121-004-0040; (c) Sign 4181 bears an incorrect address; the correct address is 3635 S.
Dixie Highway. \.
12. CCO to. Indemnify and Hold Harmless the City. This Amendment
contemplates the removal of existing Signs and Sign Structures in exchange for CCO's
right to replace existing Sign faces with LED Sign faces in prime expressway locations.
It is recognized that CCp may have lease agreements with property owners (the
"Property Owners") relatingto existing Signs and Sign Structures that CCO is voluntarily
obligating itself to remove, or may elect to remove, under the terms of this Amendment
and the Agreement, Consequently, CCO agrees to indemnify the City from any lawsuit,
and shall defend with counsel designated by CCO and reasonably acceptable to the City,
and hold the City harmless, against any claim asserted by an affected Property Owner
arising from the removal of the Signs and Sign Structures that are removed after the
Amendment Effective Date under the terms of this Amendment or the Agreement.
13. Future LED Sign Regulation. CCO agrees to comply with and be bound
by all federal, State of Florida, Miami -Dade County and City sign regulations regarding
LED Signs adopted prior to or after the date of this Amendment, but, during the term of
the Agreement, any City regulation now in effect or adopted after the date of this
Amendment shall not be applied to diminish CCO's rights to maintain and operate the
three LED Sign faces (including any LED Sign faces relocated pursuant to Section 6.4
hereof) granted under this Amendment.
14. No Further Amendment. Except as expressly modified by this
Amendment, the Agreement shall remain unmodified,and in full force and effect, and the
Parties hereby ratify their respective obligations thereunder.
15. Entire Agreement. The Agreement, as expressly modified by this
Amendment, shall constitute the entire agreement among the Parties with respect to the
subject matter hereof and merges all prior and contemporaneous communications.
16. Severability. If any provision of this Amendment;shall be held by a court
of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions
shall remain in full force and effect.
17. Representations and Warranties. CCO hereby represents and warrants
that it: (a) is a corporation in good standing under the laws of the State of Delaware; (b)
is duly authorized to transact businesses in the State of Florida; and (c) has taken all
corporate actions necessary to authorize execution and performance of this Amendment.
The City hereby represents and warrants that: (a) it is empowered to enterinto this
Amendment; and (b) this Amendment has been duly authorized by the City Commission
of the City of Miami pursuant to the requirements of Florida law.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be,
executed by their duly authorized representatives as of the Amendment Effective Date
shown above.
i
6 \
1
CITY OF MIAMI
By:
City Manager
Dated:
Attest:
City Clerk
Dated:
2009
2009
APPROVED AS TO FORM AND
CORRECTNESS:
Julie 0. Bru
City Attorney
CLEAR CHANNEL OUTDOOR, INC,
By:
Its:
Dated: , 2009,
APPROVED AS TO INSURANCE
REQUIREMENTS:
LecAnn Brehm
Risk, Management Director
7
s
Exhibit H
Sign
No.
Street Addres of
Sign
Tax Folio No.
Location
Sign
type
No.
Face
s
Zoning
70
1
3010 SW 37 Ave
D1-4117-003-1730
Bird Rd SS 1130ft W/0 Douglas Rd FNV -3
2
71
179
3820 Bird Road
01-41170
Bird Rd SS 80ft E/0 SW 38 Ct F/E —1
1
Clear Channel -City of Miami
CCO Signs already removed or in the process to be removed
Exhibit I
Sign
No.
Streel•.Qddress of Sign
I
Tax Folio No,
Location
Sign
Type
72
162
7889 N 9yshore brive
01-3208-008-0530
NE 79th St. 5S 10' Wl0 NE 11th Ave
73
163
1165 NF 79 St
01-3208-011-0060
NE 11 Av ES 50'N/0 NE 79 St. SF -E
74
247
1177 NE\79 St
01.3208-011-0080
NE 79 St. NS 50'W/0 NE 12 Av F/E-2
75
76
105
2148 NW 1� Ave.
Qer
01-3126-054-0060
NW 10 Av WS 100' N/0 NW 21 St F/S-1
77
118
174
1781 NW N Dr,
7011 NW 7 Acv ,
01-3134-000-0060
01-3113-024-1060
N River Dr NS 30'W/0 NW 18 Av F/E-1
NW 7 Ave ES 280' S/O NW 71 St
78
65
737 NW 4 St \
01-0200-010-3010
NW 5 St BRG SL 100' E/O NW 8 Av
79
71
800 NW 12 Av \
01-3135-022-0060
NW 12 Ave WL 300'N/0 NW 7 St
80
27
25 NW 57Av
01-4106-015-0170
NW 57 Av ES 100' N/0 Flagler St FIS -4
81
133
5211 NW 17th Av
\01-3122-052-0560
NW 17 Av ES 100'S/0 NW 53 St F/N-1
82
47
717 SW 17 Av
1-4102-012-0070
SW 17 Av ES 100' N/O SW 8 St F/N-1
EXHIBIT J
i�xi�-�; ertY
t...oc_ Oe ori So
Gi
Exhl it #
G,rand Av SS 25ft VV/q Mar arat St F/E - 1
Miami
7
Grand Av SS 25ft W/O arat St F/W - 1
Miami
7
\Mar
Grand Av SS 10Oft W/O cammcodore Pi F/N - 1
Miami
5
Grand Av SS 100ft W/O bjomrnudcaro PI FIN - 2
Mlarrti
5
Le Jeune Rd eS 288ft S/O NVV 9th St F/N - T
Miami
199
Le Jaune Rd ES 288ft SIO N 9th St F/S - 2
Miami
199,
NW 27th AV WS 85ft S/O NW ' th St F/N - 2
Miami
39 S 202
NW 27th Av WS 85ft S/G7 NW 4 (� St F/S - 1
Miami
39 S. 202
1
NW 22nd Av WS 50ft 5/ONW 3ri3 St F/S - 1
Miami
! 3
NW 22nd Av WS O NW 3rd 5Qft S/t FIS - 2
Miami
13
NW 22nd Av WS 50ft S/C7 NW 3rd Sl F/N - 3
Miami
13
NW 22nd Av WS 50ft S/O
Miami
13
NW 62nd St NS 1Oft VV/C) N Miami Av F/E - 1
Miami
151 8c 1.52
N Miami Av WS 1 Oft N/O NW 432nd Sf F!S - 1
Miami
-1 8. '152
N Miami Av WS 50ft N/O NW 62nd St F18,- 1
Miami
151 L'.. 1S2
NW 82r)d St NS 25ft W/O N Miam{ Av FfW, 1
Miami
151 S. 152
NW 62nd St NS 25ft VV/CO N Miami Av F/W =,2
Miami
151 $ 152
N Miami Av ES 200ft N/O NI_ 73rd St F/N - 1Miami
`\
766
N Miami Av ES 2QOft N/O NE 73rd St F/N - 2
-Miami
106
N Miami Av ES 200ft N/O NE 73rd St F/S - 3
Miami
-166
N Miami Av ES 2006 N/O NE 73rd St F/S - 4 \
Miami
166
NW 7th Av W5 60ft S/O NW 75th St F/N - 2
Miami
770
NVV 7titi Av WS 50ft SAD NW 75th St FIS - 1
Niiami
970
NW 75th St SS 10Oft W/O NW 7th Av F/E - 1
Miami
170
NW 7th Av WS 50ft N/O NW 70th St F/N - 2
Miami
173
NW 7thAV WS 60ft N/O NW 70th St F/S - 1
'Miami
773
10