HomeMy WebLinkAboutexhibit 1SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into as of this 8th day of July,
2004, by and between the City of Miami (the "City"), a Florida municipality, and Clear Channel
Outdoor, Inc. ("CCO"), a Delaware corporation, registered in Florida as CC Outdoor, Inc. d/b/a
Clear Channel Outdoor.
RECITALS
A. The City has adopted ordinances that, among other things, regulate the size,
height, appearance, lighting, and landscaping requirements for outdoor advertising structures
("Signs"). City ordinances have permitted Signs in certain zoning districts and prohibited them
in others. Signs which CCO erected in accordance with the City's former zoning ordinances do
not conform with the City's current Sign regulations.
B. As of April 2001, CCO owned 452 Signs in the City. Since April 2001, disputes
have arisen between CCO and the City regarding City ordinances regulating Signs, the
applicability of certain City ordinances to Signs owned by CCO, and the effect of State laws on
City ordinances and on the enforcement of such ordinances. These disputes have resulted in
enforcement actions and litigation now pending in the Appellate Division of the 11 th Circuit
Court in and for Miami -Dade County: Marks Classics Corp., et al. v. City of Miami, Appellate
Case Nos. 02-284-AP; 02-330-AP; and 02-477-AP.
C. The City and CCO desire to resolve all such disputes and the pending litigation
between them in this Settlement Agreement ("Agreement"):
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the City and CCO hereby agree as follows:
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AGREEMENT
1. Incorporation of Recitals. The above recitals are true and correct and are
incorporated into and made part of this Agreement.
2. Sign Inventory and Removal of Signs. CCO owns all Signs listed on Exhibits A,
B, and D, and to the best of CCO's knowledge there are no other Signs within the City that are
currently owned by CCO or any of its subsidiaries, affiliated corporations, or entities. To the
best of CCO's knowledge: (a) the information set forth in the attached Exhibits A, B, and D
accurately describes all of CCO's inventory of Signs within the City; (b) Exhibits A, B, and D
identify the zoning district in which each CCO Sign is located; and (c) CCO has already removed
or is in the process of removing the Signs listed in Exhibit C. To resolve this dispute with the
City and based on the City's undertakings herein, CCO will initially remove a total of 211 Signs
containing 505 Sign faces, as set forth below. The Signs to be removed will include all Sign
types (8-sheets, posters, and bulletins) and will be from various zoning districts including C-1,
C-2, and Special Districts. For each Sign to be removed, CCO has provided the City, on the
exhibits attached to this Agreement, the street address, the tax folio number, the location, the
type, the number of faces, and the zoning district information from CCO's files. The City of
Miami will not require any permits for CCO to remove the Signs on the attached exhibits and
described below:
a. By September 30, 2004, CCO will remove the 69 Sign structures with 165
Sign faces listed on Exhibit A. Provided the City takes no action to compel either the removal of
such Signs or their compliance with any City ordinances applicable to Signs prior to the
voluntary removal deadline set forth herein, with respect to each of the 69 structures with 165
Sign faces listed on Exhibit A, CCO expressly waives any right to receive from the City just
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compensation or any other relief therefor, whether such 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; Amendments V and XIV of the United States Constitution; or any other authority
under state or federal law.
b. Unless an alternative arrangement is approved by the City Commission,
by December 31, 2004, CCO will remove the 92 Sign structures with 226 Sign faces listed on
Exhibit B. Provided the City takes no action to compel either the removal of such Signs or their
compliance with any City ordinances applicable to Signs prior to the voluntary removal deadline
set forth herein, with respect to each of the 92 structures with 226 Sign faces listed on Exhibit B,
CCO hereby expressly waives any right to receive from the City just compensation or any other
relief therefor, whether such 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;
Amendments V and XIV of the United States Constitution; or any other authority under state or
federal law.
c. CCO has already removed or is currently in the process of removing the
50 structures with 114 Sign faces listed on Exhibit C. Those signs on Exhibit C not already
removed will be removed by December 31, 2004. Provided the City takes no action to compel
either the removal of such Signs or their compliance with any City ordinances applicable to
Signs prior to the voluntary removal deadline set forth herein, with respect to each of the 50
structures with 114 Sign faces listed on Exhibit C, CCO hereby expressly waives any right to
receive from the City just compensation or any other relief therefor, whether such claim for just
compensation is predicated on Section 70.001, 70.20(9) or 479.15(2), Florida Statutes; Article X,
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Section 6 of the Florida Constitution; Amendments V and XIV of the United States Constitution;
or any other authority under state or federal law.
d. Set forth on attached Exhibit D is a list of all CCO Signs which will
remain in the City following the removal of the Signs listed on Exhibits A, B, and C.
(i) Within six months of the effective date of this Agreement, CCO
will remove 25% of its rooftop signs. Within five years thereafter it will remove 25% of its
remaining rooftop inventory. Within twenty years thereafter, it will remove 50% of its
remaining rooftop inventory. Provided the City takes no action to compel either the removal of
the Sign faces described in this subparagraph 2.d.(i) or their compliance with any City
ordinances applicable to Signs prior to the voluntary removal deadline set forth herein, with
respect to each of the rooftop Sign structures removed under this subparagraph 2.d.(i) CCO
hereby expressly waives any right to receive from the City just compensation or any other relief
therefor, whether such 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; Amendments V and
XIV of the United States Constitution; or any other authority under state or federal law.
(ii) 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 its C-1 Signs listed on Exhibit D. Provided the City
takes no action to compel either the removal of such Signs or their compliance with any City
ordinances applicable to Signs prior to the voluntary removal deadline set forth herein, with
respect to each of the Sign structures removed under this subparagraph 2.d.(ii), CCO hereby
expressly waives any right to receive from the City just compensation therefor, whether such
claim for just compensation is predicated on Section 70.001, 70.20(9) or 479.15(2), Florida
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Statutes; Article X, Section 6 of the Florida Constitution; Amendments V and XIV of the United
States Constitution; or any other authority under state or federal law.
3. Amended Permits. In recognition of CCO's removal of the numerous Sign
structures and Sign faces described in this Agreement and waiver of just compensation therefor,
the City will amend a maximum of 15 existing Sign permits (the "Amended Permits") to allow
CCO to transfer the permit rights associated with such Signs to new locations on the terms and
conditions set forth below:
a. The City will amend up to a maximum of 15 permits for Signs 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 will be given
credit toward Amended Permit applications tor all Signs on Exhibit C other than 8-sheets. No
credit toward Amended Permits will be given for the removal of 8-sheets;
b. Amended Permits will allow Signs only along those portions of Federal
Aid Primary Highways listed on Exhibit E, and such Signs may be built to the height allowed by
FDOT regulations;
c. Upon application by CCO, showing compliance with the provisions of this
paragraph, the City will amend existing Sign permits to allow the transfer of permit rights
associated with such Sign or Signs to locations within the same or a less restrictive zoning
district;
d, Each application for an Amended Permit shall comply with applicable
structural, electrical and engineering requirements and all FDOT requirements for outdoor
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advertising signs. CCO shall immediately implement the retrofit requirements of paragraph 8 for
any structure which is erected pursuant to an Amended Permit;
e. CCO will pay the City a one-time permit amendment fee as follows: (a)
$20,000 for each Amended Permit structure in a C-2 zoning district; and (b) $50,000 for each
Amended Permit structure in a C-1 zoning district. For purposes of the limited number of
Amended Permits under this Agreement, 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 the
ordinance creating the Special District, and passed prior to the date of this Agreement,
specifically prohibits all outdoor advertising signs.
£ During the term of this Agreement, the City shall take no action to compel
any CCO Sign which is the subject of an Amended Permit under this paragraph to come into
compliance with City Sign ordinances currently or formerly in effect or hereafter adopted.
Subject to CCO's payment of the fees set forth herein and its compliance with all applicable
FDOT regulations and the other requirements set forth in paragraphs 3(c), 3(d) and 5(a), no
further City zoning authorization, building permit, or other approval of any kind shall be required
for any Sign which is the subject of an Amended Permit.
g•
Nothing contained in this Agreement shall be construed to permit the
relocation, construction, or installation of a Sign without the consent of the owner of the real
property where it will be located. CCO and the City acknowledge that CCO bears the sole risk
of finding, securing and maintaining the sites for its Amended Permits, and that its failure to find
and secure suitable sites or to take advantage of the Amended Permit rights granted herein shall
not give rise to any claim for compensation or other relief from the City, and CCO expressly
waives any such claim arising out of such failure. CCO's Amended Permit rights as provided
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herein are not dependent in any way on its ability to find or secure sites for the Signs subject to
the Amended Permits.
h. The City will not issue Amended Permits under this paragraph more than
five years after the effective date of this Agreement.
4. Default.
a. CCO agrees to pay the City a liquidated penalty of $10,000 per day per
Sign for any Sign listed on Exhibits A, B, and C which it does not remove in accordance with the
terms set forth herein. The City shall not be entitled to receive the per diem penalty set forth in
this paragraph until it has notified CCO of each Sign it claims CCO has failed to remove and it
has provided CCO 30 days notice within which to remove such Sign or Signs. To secure its
obligation to remove Signs under this Agreement, CCO shall, on the later of December 31, 2004
or 60 days from CCO's receipt of the Amended Permits on Exhibit G, post a performance bond
equal to the total assessed value of each Sign listed on Exhibits A, B, and C that still remains in a
C-1, C-2, or Special District. In the event CCO fails to perform its obligations under this
Agreement, the City also shall be entitled to all legal and equitable remedies allowed under
Florida law, including the remedies of specific performance and injunctive relief.
b. No later than July 31, 2029 CCO will deliver to the City a list of the C-1
Signs on Exhibit D comprising the 25% of such C-1 Signs that CCO has removed under this
Agreement. If the City determines that CCO has not removed 25% of the C-1 Signs on Exhibit
D, the City shall promptly notify CCO and CCO shall have 30 days following receipt of such
notice to comply. For each day thereafter CCO fails to comply, the City shall be entitled to a
liquidated penalty of $10,000 per day for each Sign that CCO has failed to remove in accordance
with this Agreement.
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c. Nothing contained in this paragraph 4 shall prevent the City from
enforcing its police powers and safety regulations in a. manner not inconsistent with this
Agreement.
d. In the event the City fails to perform its obligations under this Agreement
or otherwise defaults after notice and a reasonable opportunity to cure, CCO shall be entitled to
all legal and equitable remedies allowed under Florida law including those remedies provided to
the City under paragraph 4.a.
5. Status of Remaining Signs. Listed on Exhibit D are all of CCO's Signs which
may remain in the City of Miami following removal of the Signs listed on Exhibits A, B, and C.
The City of Miami shall allow these Signs to remain as constructed in their existing locations,
subject to the following:
a. By the later of December 31, 2004 or 60 days atter CCO's receipt of the
Amended Permits listed on Exhibit G, CCO will provide the City with copies of all permits in its
possession for the Signs that are listed on Exhibit D. Thirty days after such delivery, the City
will provide to CCO copies of permits in its possession for all other Signs Listed on Exhibit D.
The City will issue replacement permits for any Signs for which neither the City nor CCO is able
to locate a copy of the original City permit, For each such replacement permit issued, CCO will
pay the City of Miami a permit replacement fee of $150 for each 8-sheet Sign structure, $2,000
for each poster Sign structure, and $5,000 for each bulletin Sign structure. Any Sign for which a
replacement permit is issued under this paragraph shall be deemed a lawful Sign or lawful
nonconforming Sign, as applicable, under all applicable City Codes and ordinances. Except as
provided below, upon completion of the exchange of permits and the issuance of replacement
permits, the City of Miami shall not require CCO to obtain any further permits or approvals from
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the City for any of its Signs listed on Exhibit D other than the payment of annual renewal fees as
specified herein. CCO may maintain and keep in good repair its Signs listed on Exhibit D and
the City will issue CCO any permits which may be required for CCO to exercise its maintenance
and repair rights under this paragraph.
b. Some of the Signs listed on Exhibit D do not conform with current City
ordinances that, among other things, regulate the height, distance requirements, orientation, or
landscaping of Signs. As of the effective date of this Agreement all Signs listed in Exhibit D and
all Signs for which the City issues Amended Permits shall be deemed lawful or lawful
nonconforming Signs, as applicable, with respect to any nonconformities as of July 31, 2004.
The City shall take no action to compel their removal or their compliance with City Sign
ordinances currently or formerly in effect or hereafter adopted. In the future, the City may adopt
additional ordinances regulating Signs. During the term of this Agreement, however, the City,
however, 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 currently or
formerly in effect or hereafter adopted. All Signs listed on Exhibit D and Signs erected pursuant
to Amended Permits may remain as lawful, lawful nonconforming uses, or lawful noncon-
forming characteristics of use as currently or hereafter constructed. CCO may replace, repair,
maintain, and upgrade (which shall not include increasing the sizes, number of faces, or any
nonconformities) of any Sign not being voluntarily removed under this Agreement. The City
will issue CCO any permit necessary to effectuate the purpose of this paragraph.
c. Any City Sign regulation adopted prior to or after the date of this
Agreement shall not be applied to diminish CCO's rights under this Agreement.
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6. Initial Payments to City and Issuance of Initial Amended Permits. Based on the
parties' respective undertakings set forth herein, CCO has agreed to make certain payments to
the City and the City has agreed to issue Amended Permits to CCO to resolve the dispute
between the parties:
a. On the effective date of this Agreement, CCO will pay the City the annual
renewal fees for its outdoor advertising Signs for the years 2001, 2002, and 2003, totaling
$152,805.
b. Within four working days of the effective date of this Agreement, the City
will deliver to CCO the Amended Permits reflecting the new addresses shown on Exhibit G
along with a completed and fully executed FDOT Form 575-070-04 for each Amended Permit
certifying that for the new addresses each of these seven Sign locations is or will be in
compliance with all duly adopted local ordinances and has been or will be issued the necessary
City permits. Upon CCO's receipt of the foregoing, it will pay the City $350,000 for the seven
Amended Permits shown on Exhibit G and an Initial Sign Surcharge of $400,000, for a total of
$750,000. The Sign removal requirements for the seven Amended Permits shall be deemed
satisfied by CCO's removal of:
(i) the 20 poster faces and 7 bulletin faces that CCO has voluntarily
removed since June 2000 or will voluntarily remove by September 30, 2004 and which are listed
in Exhibit C;
(ii) the five bulletin faces at 1350 Biscayne Blvd. near the PAC; and
(iii) the three C-1 Gateway bulletin faces and 6 C-1 Gateway rooftop
poster faces marked with an asterisk on Exhibit D.
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c. CCO shall remove the Signs identified in subparagraphs (i) — (iii) before
constructing any Sign pursuant to an Amended Permit.
d. Upon the earlier of FDOT's acceptance of the completed Form 575-070-
04 for each of the seven signs or three days after the City's issuance of the seven Amended
Permits, CCO will pay the City the Final Sign Surcharge of $400,000. Following FDOT's
issuance of the permits for the Signs corresponding to the Amended Permits, CCO shall proceed
with the removal of the Signs identified in paragraph 6(b)(ii) and (iii) in accordance therewith.
The Initial and Final Sign Surcharges are for the permit rights granted or otherwise confirmed
under this Agreement.
7. Annual Payments to City.
a. Provided that the Amended Permit Signs listed on Exhibit G have been
constructed, commencing January 31, 2005 and on the anniversary date for 24 years thereafter
through July 31, 2029, CCO will pay the City an annual settlement fee of $250,000 provided that
(i) the City complies with the Settlement Agreement; and (ii) no Sign erected pursuant to an
Amended Permit has been removed by governmental action prior to July 31, 2029 without CCO
receiving just compensation therefor. If a Sign erected pursuant to an Amended Permit issued
under paragraph 3 is removed prior to July 31, 2029, without CCO receiving just compensation
therefor, CCO will be able to relocate such sign structure in accordance with paragraph 7(b), and
no change in the City's Zoning ordinance shall affect CCO's right to relocate under this
paragraph. For purposes of this Agreement, just compensation shall be determined by then -
existing standards established by Florida law.
b. If, prior to July 31, 2029, any CCO Sign for which the City has issued
CCO an Amended Permit is removed as a result of governmental action without the payment to
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CCO of just compensation, CCO will be relieved of its obligation to pay annual settlement fees
to the City by the amount of S50,000 per Amended Permit sign so removed. If, prior to July 31,
2029, any Sign for which the City has issued CCO an Amended Permit is removed as a result of
non -governmental action, CCO will not be relieved of its obligation to pay annual settlement
fees to the City. In such circumstances, however, with respect to the seven Sign structures listed
on Exhibit G, CCO may relocate the Sign which is the subject of the Amended Permit to a new
location within the same zoning district and within 750 feet of the previous location without
payment of any additional permit or settlement fees to or the requirement of any further approval
from the City, and the City shall amend the permit to reflect the new location. The City will
continue to receive annual settlement payments for such relocated Sign.
c. Annual permit renewal fees shall not be increased until 2006 when they
may be increased by the CPI cost of living increase from the prior year. The City may increase
annual permit renewal fees each year thereafter by an amount not to exceed the CPI cost of
living.
8. Retrofitting of Signs to Remain. Except for those Signs that are under 20 feet in
height, all Signs on Exhibit D that are currently supported by multiple I -beams, shall be replaced
with monopole structures on a one structure per month basis, commencing July 1, 2005 until all
multiple I-beam support 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.
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9. Overheight Signs. The State of Florida has built and is currently building sound
walls along certain federal aid primary highways. These sound walls obstruct or will obstruct
visual access to certain lawfully erected Signs in the City. For those Signs to which visual access
is or becomes obstructed by State -constructed sound walls, CCO may raise their elevation to
such height necessary to restore visual access so long as any such elevation complies with
applicable FDOT regulations and provided that the top of the Sign shall under no circumstances
exceed 65-feet above the crown of the adjoining highway.
10. Replacement and Relocation of Sims.
a. In the event it becomes necessary for CCO to replace any C-2 Sign listed
on Exhibit D, the City will authorize CC.O to replace such C-2 Sign on the same site or to
relocate such Sign within an allowed geographical location in the same zoning district according
to relocation standards to be adopted by the City consistent with this Agreement. This right to
maintain, replace, and relocate C-2 Signs listed on Exhibit D shall expire and terminate on July
31, 2029. Any City Sign Iaw promulgated prior to this date shall not be applied retroactively to
CCO. Nothing contained in this Agreement shall be construed to permit the relocation,
reconstruction, or installation of a Sign without the consent of the owner of the real property
where it will be located. CCO and the City acknowledge that CCO bears the sole risk of finding,
securing and maintaining the sites for its Signs, including any replacement Signs, and that its
failure to find and secure suitable sites or to take advantage of the replacement right granted
herein shall not give rise to any claim for compensation or other relief from the City, and CCO
expressly waives any such claim. CCO's obligation to remove its Signs as provided herein is not
dependent in any way on its ability to find or secure sites for replacement signs.
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b. CCO owns a bulletin Sign Structure located at 5600 Biscayne Boulevard.
The City recently approved a new development at this location and has requested that CCO
remove this lawfully erected Sign and relocate it along the east side of 1-95, but not on Biscayne
Boulevard. CCO has agreed to such relocation, and the City will issue to CCO all permits
necessary for such relocation, with no permit fees or any other payments required for such
relocation. With respect to this Sign, and upon receipt of all required City approvals for the
relocation of the Sign, CCO expressly waives any right to receive from the City just
compensation or any other relief therefor, whether such 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; Amendments V and XIV of the United States Constitution; or any other authority
under state or federal law. It is further understood that this Sign is not one of the 15 Amended
Permit Signs referred to in paragraph 3 of this Agreement.
11. Public Service Project.
a. For the next 25 years, CCO will, as space is available, provide outdoor
advertising space to the City within the City and within other major media markets throughout
the State of Florida with a retail value of $50,000 per year, for the display of City -prepared
advertising materials for City events. The City shall be responsible for providing CCO with any
sign copy it would like displayed, and will pay for the cost of installing the sign copy.
b. Commencing January 31, 2005, and on the anniversary date thereafter, for
so long as this Agreement remains in effect, CCO will fund a Neighborhood Enhancement
Account ("NEA") in the amounts and for the purposes set forth below:
(i) $4,285.72 for each of the seven Amended Permits issued for the
Signs listed on Exhibit G, as long as such structures remain standing;
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(ii) $10,000 annually for each of the two Signs located on 1-395 at
1413 N.W. lst Place, City of Miami Permit No. 99-5012720; FDOT Permit No. BW544, and on
1-95 at 596 N.W. 54th, City of Miami Permit No. 97-5011673; FDOT Permit Nos. BQ662 and
BQ663, as long as such Signs remain standing at their respective heights as of July 31, 2004, as
permitted by FDOT regulations; and
(iii) The City and CCO will mutually agree upon the recipients of the
annual distributions from the NEA account, which distributions shall be approved by the City
Commission. Eligible recipients shall include, but shall not be limited to, 501(c)3 organizations
operating within the districts where the foregoing Signs are located and such other community -
based organizations and charities as the City and CCO may designate. The parties agree that the
NEA funds should be used to assist the community needs of the citizens of Miami.
12. Pending Cases; Vacating of Liens. Within 30 days of the effective date of this
Agreement, the City shall take all steps necessary to vacate and set aside the Final
Administrative Enforcement Orders and all Notices of Liens for CCO's Signs, including those
which are attached hereto as composite Exhibit F, and take all appropriate actions to satisfy and
set aside any liens imposed against property owners who have been the subject of enforcement
proceedings as a result of CCO's Signs. The documents vacating and setting aside the
enforcement orders and any liens shall be in a recordable form satisfactory to CCO and the
property owner. The parties will also dismiss, with prejudice, all code enforcement notices of
violation, code enforcement orders, court cases, and appeals regarding the applicable Signs listed
in Exhibits A-D.
13. Property Owners Protected. So long as CCO complies with the terms and
conditions of this Agreement, the City will take no action to enforce its Sign ordinances against
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the owners of the property on which CCO's Signs are located, as to CCO's Signs. Within 60
days of the execution of this Agreement, the City will notify each of the property owners subject
to the Code Enforcement Orders, that the Orders have been vacated and that the dispute with
CCO has been settled. The text of such notice shall be approved by CCO.
14. Term and Expiration. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate and expire twenty-five years after its effective date unless
extended by agreement of the parties.
15. Nonwaiver of Legal Positions; Condemnation Rights; Unsafe Structures. The
parties acknowledge that this Agreement is a compromise resolution of disputed claims and
agree that it shall never be treated as an admission or evidence of liability by either of them for
any purpose whatsoever.
a. Nothing in this Agreement shall affect in any way the City's right to
condemn a Sign in accordance with applicable eminent domain laws. If the City determines that
any Sign structure has become unsafe so as to pose a threat of bodily harm to the public, the City
shall so notify CCO and CCO shall immediately correct the problem. Any such action by the
City shall not be used by CCO as grounds to invalidate this Agreement. Notwithstanding
anything to the contrary in this Agreement, CCO's limited waiver of its statutory and
constitutional rights to receive just compensation upon removal of certain Signs identified in
paragraphs 6(b)(ii) and (iii) herein is expressly conditioned upon the City's issuance of the
Amended Permits listed in Exhibit G.
b. Except as expressly provided in Paragraph 2 herein, nothing in this
Agreement affects CCO's right, or the City's obligation to pay, just compensation if the City
elects to remove any Iawfully erected Sign belonging to CCO.
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16. Further Assurances and Cooperation. The parties recognize that it may be
necessary to amend the zoning ordinances and Code of the City of Miami in order to effectuate
the purpose of this Agreement. The City will work cooperatively to draft any necessary Code
amendments and ordinance revisions necessary to effectuate this Agreement, and CCO will
assist in this effort as requested by the City. The City agrees to prepare and execute such
additional documents, resolutions, ordinances, and other actions as may be necessary to
effectuate the purposes of this Agreement and CCO will assist in this effort as requested by the
City. The City will take all actions necessary to effectuate the dismissal, with prejudice, of all
code enforcement notices of violation, code enforcement orders, court cases, and appeals
regarding the Signs listed in Exhibits A-D, with each side to bear its respective attorneys' fees
and costs and CCO will assist in this effort as requested by the City. As long as the City
complies with this Agreement, CCO covenants not to sue the City, or to provide financial or in -
kind support to others who sue the City regarding the City's Sign regulations. The City will
reasonably cooperate to resolve issues, if any, raised by Miami -Dade County regarding Amended
Permits issued pursuant to this Agreement.
17. Notice. All notices or other communications required or permitted hereunder
shall be in writing and shall be delivered to the persons listed below:
As to Clear Channel Outdoor:
Mr. Jasper Johnson
President and General Manager
Clear Channel Outdoor
South Florida Division
5800 N.W. 77 Court
Miami, Florida 33166
Telephone: (305) 592-6250
Facsimile: (305) 714-3519
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with a copy to:
To the City of Miami:
with a copy to:
Laura C. Toncheff
Executive Vice President
Clear Channel Outdoor
2850 E. Camelback Road
Suite 300
Phoenix, Arizona 85016
Telephone: (602) 957-8116
Facsimile: (602) 957-8602
Douglas M. Halsey
White & Case LLP
Wachovia Financial Center
200 South Biscayne Boulevard
Suite 4900
Miami, Florida 33131-2352
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
Joe Arriola, City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
Telephone: (305) 250-5300
Mr. Alejandro Vilarello
City Attorney
City of Miami
444 S.W. 2nd Avenue
Suite 945
Miami, Florida 33133
Telephone: (305) 416-1800
Facsimile: (305) 714-3519
18. Most Favored Nation. In the event the City shall reach a settlement with any
other billboard owner, CCO may elect to be governed by all terms, conditions, covenants, and
restrictions contained in that settlement agreement. If CCO so elects to be governed, it shall give
written notification of its election to the City Attorney or his/her designee within 60 days of
CCO's receipt of notification of such agreement. The election shall be effective as of the date of
the election and shall not be retroactive
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19. Miscellaneous.
a. Attorneys' Fees. If litigation is instituted between the parties with respect
to this Agreement, the prevailing party therein shall be entitled to recover, in addition to all other
relief obtained, all reasonable costs, expenses and fees (including reasonable attorneys' fees,
paraprofessional fees and expert witness fees), incurred in such litigation or appeal and in any
post -judgment proceedings.
b. Construction. This Agreement has been executed and delivered in, and
shall be interpreted, construed, and enforced pursuant to and in accordance with, the laws of the
State of Florida.
c. Counterparts, If multiple counterparts of this Agreement are executed,
each shall be deemed an original, but all counterparts together shall constitute one and the same
instrument.
d. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
e. Entire Agreement. This Agreement sets forth all the promises,
agreements, conditions and understandings among the parties hereto as to the subject matters
referenced herein, and supersede all prior and contemporaneous agreements, understandings,
inducements or conditions expressed or implied, oral or written, except as herein contained.
f. 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 transfer
or convey any ownership in any CCO Sign identified in Exhibits A-D unless the transferee shall
execute an agreement to be bound by the terms and conditions of this Agreement. CCO hereby
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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 business in the State of Florida; and (c) has taken
all corporate actions necessary to authorize execution and performance of this Agreement. The
City hereby represents and warrants that: (a) it is empowered to enter into this Agreement; and
(b) this Agreement has been duly authorized by the Board of City Commissioners of the City of
Miami pursuant to the requirements of Florida law.
g. Amendments. This Agreement constitutes the entire agreement between
the parties respecting the subject matter hereof. No oral statement or prior written material
related to the subject matters hereof and not specifically mentioned herein shall be of any force
or effect. No change in or addition to this Agreement shall be enforceable unless evidenced by a
writing executed by the parties. Any such enforceable amendment(s) shall become effective on
the date stipulated therein.
h. Release and Waiver. Any condition to a party's obligation hereunder may
be waived by that party, provided such waiver is in writing. However, the waiver by any party
of a breach or violation of any provision of this Agreement shall not operate as, or be construed
to be, a waiver of any subsequent breach of the same or any other provision hereof. The failure
by any party to timely enforce any of the provisions of this Agreement shall not be deemed a
waiver thereof.
(i) The City hereby releases and forever discharges CCO, its agents
and employees, from any and all claims, actions, causes of action, damages and costs arising
from violations, alleged or actual, of the City's Sign regulations, which have been or might have
been, brought as of the effective date of this Agreement.
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(ii) CCO, for itself and the owners of the property where its Signs are
Located and on whose behalf CCO has been so authorized, hereby releases and forever discharges
the City, its agents and employees and elected officials, from any and all claims, actions, causes
of action, damages and costs arising out of the City's existing Sign regulations, or enforcement
thereof, and without limiting the generality of the foregoing, CCO specifically waives the right to
challenge the validity, constitutionality or enforceability of the City's Sign regulations in effect
on the date of this Agreement.
(iii) Neither CCO nor the City shall be deemed to have waived any
right to bring an action to enforce the terms, conditions and limitations of this Agreement.
i. Compliance With Electrical and Structural Codes; Indemnification, CCO
acknowledges and agrees that this Agreement does not in any way alleviate CCO's responsibility
to comply with all applicable safety and/or construction requirements in removing, relocating,
maintaining, repairing or in reconfiguring any Sign face or Sign structure, and CCO shall not be
excused from complying with the requirements of any electrical and structural building codes
and rules and regulations of general application in effect at the time a building or electrical
permit application is filed in connection with reconstruction of an existing Sign. The City will
issue CCO any permits or authorization that may be required to enable CCO to comply with this
paragraph. CCO will indemnify and hold the City harmless from any injury, either to person or
property, that results from a CCO Sign structure or associated Sign face.
j. Invalidity. If any section, phrase, or portion of this Agreement is for any
reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions hereof. In the event this Agreement is invalidated by a third
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party, then the parties hereto shall be returned to their respective legal positions as such existed
on the date one day prior to the effective date of this Agreement.
k. Integrated Agreement. Each parry's obligations hereunder are dependent
upon performance of the material obligations of the other party.
1. Effective Date. This Agreement shall become effective as of the date it is
approved by the Board of Commissioners for the City of Miami and is signed by the City
Manager and CCO.
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CITY OF MIAMI CLEAR CHANNEL OUTDOOR, INC.
By:
City Manager
Dated:
Attest:
, 2004.
City Clerk
Dated: , 2004.
Approval as to form:
Alejandro Vilarello, City Attorney
Dated: , 2004.
By:
Its:
Dated: , 2004.
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