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HomeMy WebLinkAboutcover memoCITY OF MIAMI CITY ATTORNEY'S OFFICE MEMORANDUM TO: Mayor and Members of the City Commission FROM: Maria J. Chiaro, Interim City Attorney DATE: July 2, 2004 RE: Proposed Resolution for City Commission Meeting — July 8, 2004, Approving Settlement of Mark's Classics Corp. et al. v. City of Miami and related Billboard Code Enforcement proceedings. The attached Resolution proposes a settlement in the appellate case, Marks Classics Corp. et al. v. City of Miami. It would also settle, with concurrence of the applicable Code Enforcement Hearing Officers, all related Code Enforcement proceedings. This matter arises out of the City of Miami's ("City's") efforts to enforce provisions of its Zoning Ordinance regarding the location of certain outdoor advertising signs ("signs") within the City, Since April 2001, Clear Channel Outdoor ("CCO") and other outdoor advertising companies, have disputed, in administrative code enforcement proceedings and Court, the applicability of City ordinances regulating signs. The City has contended that certain signs owned by CCO and located within the City are either improperly located in a prohibited zoning. district or otherwise violate City regulations. CCO, like other billboard companies, has disputed the City's contentions. The proposed Settlement Agreement ("Agreement") has a term of 25 years, and would resolve all disputes with CCO related to the enforcement of existing City of Miami sign regulations. The pertinent provisions of the Agreement are as follows: Removal of Outdoor Advertisins Sins: 1. As of April 2001, CCO owned 452 signs in the jurisdictional limits of the City of Miami. Since this dispute arose between the City and CCO, it has voluntarily removed 50 sign structures containing 114 billboard faces. (See Exhibit C to the Agreement). 2. CCO will remove 211 of its 452 sign structures by December 31, 2004 from the City as follows: a. By September 30, 2004, CCO will remove the 69 signs with 165 faces listed on Exhibit A located within the C-1 zoning district. This would include all CCO 8-sheets in the C-1 zoning district. b. By December 31, 2004, CCO will remove the 92 signs containing 226 faces listed on Exhibit B located within C-2 and other zoning districts. This would include all CCO 8-sheets in the C-2 zoning district. c. CCO has already removed or is currently in the process of removing 50 additional structures with 114 sign faces, as identified on Exhibit C. 3. Within 6 months of the effective date of the Agreement, CCO will remove 25% of its rooftop signs. Within 5 years thereafter, it will remove 25% of its remaining rooftop inventory. Within 20 years thereafter it will remove 50% of its remaining inventory. 4. In addition to the removal of the C-1, C-2 and Special District signs listed on Exhibits A, B and C, within twenty-five years of the effective date of this Agreement, CCO will have removed 25% of any remaining C-1 signs listed on Exhibit D. Amended Permits: 5. In recognition of CCO's removal of numerous .sign structures and waiver of compensation, the City will amend a maximum of 15 existing sign permits to allow CCO to transfer the permit rights associated with such signs to new locations in accordance with certain conditions: ' a. The City will amend up to a maximum of 15 permits based on CCO's removal of signs on a two for one basis: for every two bulletin faces removed, one bulletin face may be erected with an Amended Permit; for every four poster faces removed, two poster faces or one bulletin face may be erected with an Amended Permit. CCO shall receive no credit for removal of 8-sheets. b. Amended Permit Signs will be allowed only along certain portions of federal aid primary highways (as set forth on Exhibit E) and may be built to the height allowed by FDOT regulations. The Amended Permits will only allow the transfer of permit rights associated with such sign or signs to locations within the same or a less restrictive zoning district. c. For purposes of the Amended Permits, C-1 includes all C-1 and any Special District for which C-1 is or was the underlying district on or before the date of this Agreement, unless an ordinance creating the Special District was passed prior to the date of this Agreement and specifically prohibits all outdoor advertising signs. d. No Amended Permit will be issued by the City more than five years after the effective date of this Agreement. -2- e. During the term of the Agreement, the City shall take no action to compel CCO's Signs listed on Exhibit D or signs for which the City issues Amended Permits to come into compliance with City Sign ordinances provided CCO pays the applicable fees. The Amended Permit signs shall meet all applicable structural, electrical and engineering requirements and all FDOT requirements for outdoor advertising signs. No further City zoning authorization, building permit or other approval shall be required for Amended Permit signs. 6. CCO will pay the City a one-time permit amendment fee as follows: Twenty thousand dollars ($20,000) for each Amended Permit structure in a C-2 zoning district; and Fifty thousand dollars ($50,000) for each Amended Permit structure in a C-1 zoning district. Initial Payments to the City and Dismissal of all Litigation: 7. The City will receive initial payments from COO of $1,302,805 as follows: CCO will pay all unpaid renewal fees as follows: upon the Agreement's effective date, CCO will pay the City $152,805 for annual unpaid renewal fees owed for years 2001 — 2003. 8. Within four working days of the Agreement's effective date, the City will deliver to CCO the Amended Permits listed on Exhibit G along with a completed FDOT Form 575-070-04 certifying that each of the seven signs has been issued the necessary City permits. 9. CCO shall pay fees to the City in the amount of $350,000 for the seven Amended Permits upon CCO's receipt of the Amended Permits and fully executed FDOT Form. 10, CCO shall reimburse the City for the fees, costs and expenses incurred by the City in connection with its code enforcement efforts and defending the appeals taken there from by CCO in the amount of $800,000 as follows: a. Upon CCO's receipt of the Amended Permits and the FDOT form, CCO shall pay the City $400,000. b. Upon the earlier of the FDOT's acceptance of the completed Form 575- 070-04 for the seven signs or within 3 working days from CCO's receipt of the Amended Permits, CCO shall pay the City $400,000, 11. The sign removal requirement to obtain these Amended Permits will be satisfied by CCO's removal of (1) the 20 poster faces and 7 bulletin faces CCO has voluntarily removed since June 2000 or will voluntarily remove by September 30, 2004 and which are listed on Exhibit C; (2) the 5 bulleting faces at 1350 Biscayne Boulevard near the Performing Arts Center; and (3) the 3 C-1 Gateway bulletin -3- faces and 6 C-1 Gateway rooftop poster faces marked with an asterisk on Exhibit D. These signs will be removed before CCO commences erection of the signs subject of the Amended Permits 12. Upon the FDOT's issuance of the permits for the seven signs, CCO shall proceed with the removal of the signs in accordance with this Agreement. 13. Upon receipt of these payments, the City shall take all necessary steps to vacate and set aside the administrative code enforcement orders, and dismiss any enforcement proceedings against CCO. CCO will dismiss its pending appeals. 14. CCO will make annual payments of $250,000 for twenty-five years (totaling $6,250,000) as follows: a. provided the Amended Permits signs listed on Exhibit G have been constructed, commencing January 31, 2005 and on each anniversary thereof for 24 years thereafter, CCO will pay the City an annual settlement fee of $250,000 each year, provided the City complies with the Agreement. b. In the event one or more Amended Permit signs listed on Exhibit G are removed without CCO receiving just compensation or the signs have not been relocated, the annual settlement fee will be reduced on a pro rata basis; provided, however, CCO may relocate any such sign within the same district and within 750 feet of the original location, and in such event, the annual payments to the City will continue without pro rata reduction. To Remain Will Be Permitted, Retrofitted and Under Certain Conditions May Be Relocated: Signs Allowed 15. By December 31, 2004, CCO will provide the City with copies of all permits for its signs that will remain in the City (those listed on Exhibit D). The City will issue replacement permits for any sign without a permit; the permit replacement fees will be $150 for an 8-sheet sign structure; $2,000 for a poster sign structure; and $5,000 for a bulletin sign structure. 16. City shall allow the signs shown on Exhibit D to remain in their existing locations, subject to payment of an annual permit renewal fee. Renewal fees may be increased by the CPI cost of living index beginning in 2006, and each year thereafter. 17. Signs identified on Exhibit D or constructed pursuant to an Amended Permit shall be deemed to be legal or legal nonconforming signs as applicable, and during the term of the Agreement such signs will not be required to come into compliance with any current or future City Sign ordinances. -4- 18. As to signs on Exhibit D that are 20-feet or higher, CCO shall replace any I-beam construction with monopole construction, one structure per month, commencing July 1, 2005, until all such structures have been replaced. If CCO is unable to secure the property owner's agreement in retrofitting a Sign structure, the City will waive the retrofit requirement for Signs under 30-feet in height upon presentation of an affidavit from the President of CCO attesting that the property owner has refused to consent and that CCO does not have the contractual right to retrofit. CCO shall remove all Signs over 30-feet in height not retrofitted by 20 years after the effective date of this Agreement. 19. CCO may restore, with conditions, visual access to lawful signs that may become obstructed by a state -constructed sound wall. 20. In the event it becomes necessary for CCO to replace any C-2 Sign listed on Exhibit D during the term of the Agreement, the City will authorize CCO to replace such sign on the same site or within an allowed geographical location in the same zoning district according to relocation standards to be adopted by the City consistent with this Agreement. 21. Neither CCO nor any other outdoor advertising company may relocate any C-2 sign along the federal aid primary highway locations on Exhibit E without payment to the City of the Amended Permit fee and removal of the required number of signs to obtain an Amended Permit. Liquidated Penalties, Remedies, Compensation and Enforcement: 22. CCO will pay the City a liquidated penalty of $10,000 per day per sign for any sign it does not remove in accordance with the terms of the Agreement. Also, in the event these signs have not been voluntarily removed, CCO will, no Iaer than December 31, 2004, post a performance bond equal to the total assessed value of the remaining signs. With respect to the additional signs that must be removed by July 31, 2029, the City shall also be entitled to a liquidated penalty of $10,000 per day for each sign that CCO has failed to remove in accordance with the terms of the Agreement. 23. Under the Agreement, the City and CCO shall be entitled to all legal and equitable remedies allowed under Florida law to enforce compliance with the Agreement. 24. Nothing in the Agreement prevents the City from enforcing its police powers and safety regulations. 25. CCO is not obligated to pay its annual payments if a sign erected pursuant to an Amended Permit is removed without CCO receiving just compensation therefore under then -existing Florida law. -5- Public Service Messages/Projects: 26. CCO will, for 25 years, provide outdoor adverting space to the City as a public service, on a space available basis for advertising for City events within the City and within other major media markets throughout the State of Florida with a retail value of $50,000 per year (totaling $1,250,000 during the term of the Agreement). City shall provide the sign copy to be displayed and pay the cost of installation. 27. Commencing January 31, 2005, and on the anniversary date thereafter, for the length of the Agreement, CCO will fund a Neighborhood Enhancement Account ("NEA") of $50,000 per year (totaling $1,250,000 during the term of the Agreement) in the following manner: a. $4,285.72 annually for each structure erected in accordance with the Amended Permits issued for the Signs listed on Exhibit G, as long as such structure remains standing; b. $10,000 annually for each of the two Signs located at 1413 N.W. 1st Place and at 596 N.W. 54th Street, as long as such Signs remain standing at their respective heights as of July 31, 2004, as permitted by FDOT regulations; and c. The City and CCO will mutually agree upon the recipients from the annual distribution of the NEA account subject to Commission approval. Eligible recipients shall include 501C3 organizations operating within the districts where such signs are located and other community -based organizations and charities the parties may designate. Additional Provisions: 28. CCO waives any rights to seek compensation for removing the signs that must be removed under the Agreement. CCO's limited waiver of its statutory and constitutional rights to receive just compensation for removal of Signs identified in paragraph 6 b (ii) and (iii) is conditioned upon the City's issuance of the seven Amended Permits listed in Exhibit G. 29. The term of the Agreement shall terminate twenty-five years after its effective date unless extended by written agreement of the parties. 30. The Agreement acknowledges that the City has not waived its right to compel removal of CCO's signs through normal eminent domain or purchase proceedings; nor has CCO waived its right to compensation for such removal. 31. The City agrees not to take action against property owners as a result of the CCO signs on their property. -6- 32. The Agreement provides a "most favored nation" status for CCO, thereby providing CCO the option of being governed by terms of any future settlement agreement between the City and another billboard company. 33. The Agreement provides for the City's cooperation in execution of amendments and documents necessary to effectuate the Agreement, as well as the City's cooperation in resolving related issues, if any, with Miami -Dade County as to the relocation permits. 34. CCO must comply with electrical and building regulations when pulling reconstruction permits for signs. 35. CCO must indemnify the City against any injury, either to person or property, that results from a CCO sign structure or associated sign face. 36. In the event the City determines that any sign structure is or has become unsafe so as to pose a threat of bodily harm to the public, the City is required to notify CCO, and CCO shall immediately correct the problem the City has identified. Special Outside Counsel, Hogan and Hartson, L.L.P. has represented the City in all matters relating to the subject administrative proceedings and litigation. Said law firm and the City Manager join this Office in recommending this Settlement Agreement to you for your, consideration and approval. -7-