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HomeMy WebLinkAboutExhibit 1 04-21-11SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made and entered into as of this day of April, 2011, by and between South Florida Equitable Fund LLC ("SFEF") and the City of Miami ("City") hereinafter sometimes collectively referred to as "the Parties"). Santiago D. Echemendia ("Echemendia"), Harkley Thornton ("Thornton"), Stacy J. Thornton ("Stacy Thornton"), and Outlook Media of South Florida, LLC ("Outlook") (hereinafter collectively the "Joining Parties"), join in this Agreement for the purpose, inter alia, of: (a) waiving their rights against the City; (b) releasing the City from liability, and from claims (as more fully specified herein); (c) resolving pending litigation matters referenced herein; and (d) providing further assurances (as more specifically provided herein). RECITALS A. The City has adopted ordinances that, among other things, regulate the size, height, appearance, lighting, and landscaping requirements for Outdoor Advertising Signs ("Signs"), structures ("Sign structures"), and the faces placed thereon ("Sign faces"). See specifically, ss. 62-618.1 through 62-618.7 of the Code of the City of Miami, Florida, as amended ("Code"). B. As of the Effective Date of this Agreement, SFEF owned the Outdoor Advertising Sign and Sign structure located at 555 N.W. 79`h Street (the "Boardworks Sign"). The Boardworks Sign is currently the subject of Code Enforcement administrative enforcement proceedings, now on appeal before the Miami -Dade County Circuit Court, Appellate Division, i.e., South Florida Equitable Fund, LLC v. City of Doc 270637 -1- fno�kr ID --:t q0 Miami, Case No. AP 10-192 ("Code Enforcement Proceeding"). The City's allegation, which SFEF disputes, is that the sign was constructed without a finalized building permit. C. As of the Effective Date of this Agreement, SFEF has acquired rights to the Outdoor Advertising Sign and Sign structure located at N.W. 54th Street and N.W. 17th Avenue, identified on Exhibit D to the Settlement Agreement between the City and Clear Channel Outdoor Inc. ("CCO Settlement Agreement"), as Sign No. 140 (the "CCO Sign"). The CCO Sign contains four (4) poster -size Sign faces. Prior to the Effective Date of this Agreement, SFEF purchased all of the right, title, and interest in and to the CCO Sign and all FDOT and City permits for same from CCO; SFEF is the successor -in -interest to the existing CCO Sign, and with regard to this Sign, and agrees to be bound by the terms and conditions of the CCO Settlement Agreement as applied to any Sign listed on Exhibit D to the CCO Settlement Agreement. D. Disputes have arisen between SFEF and the City regarding City ordinances regulating Signs. These disputes have resulted in the Code Enforcement Proceeding and in the filing of the civil litigation in South Florida Equitable Fund -LLC v.—Cityy ofMiami,—Case No.--1-0=29032=Civ-Ungaro,-m-the- United- tates — ----- -- District Court for the Southern District of Florida, which has been resolved by Final Judgment in favor of the City, and which has been appealed to the United States Court of Appeals, Eleventh Circuit ("the Federal Litigation") E. This Agreement will resolve, inter alfa, the Code Enforcement Proceeding and 1. the Federal Litigation. Doc 270637 -2- F. The parties desire to resolve all disputes, including the pending litigation, between them in this 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 parties agree as follows: 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated into and made part of this Agreement. 2. Definitions. a. As used in this Agreement, the terms "Sign regulation', "Sign law", and "Sign ordinance" mean ordinances adopted by the City that, among other things, regulate the size, height, appearance, location, lighting, and landscaping requirements for Signs; however, said terms do not mean ordinances relating to structural, electrical and/or engineering requirements, or other health and safety requirements (the "Technical Regulations"). . b. As used in this Agreement, the term "Base Building Line" shall have the meaning set forth in ss. 54-186 through 54-190 of the Code. C. As used in this Agreement, the definition of "Height" shall be that ---_-.---.-- definition -promulgated by-FDOT--regulation--or-Florida -Statute,--as--it -may—apply--to - Outdoor Advertising Signs, and as it may be amended from time to time. d. As used in this Agreement, "Full Permit Application' means survey, plans, site plans, structural and electrical plans, proof of owner consent, and a fully completed building permit application. Doc 270637 -3- e. As used in this Agreement, the definition of "Gateway" shall be the definition provided in s. 62-618.2 of the Code. f. As used in this Agreement, "Effective Date" means the date this Agreement becomes effective, which is the date is it signed by the last of the City Manager, SFEF, and each of the Joining Parties. g. As used in this Agreement, "Zoning District" means the divisions -of the City pursuant to the Zoning Ordinance of the City of Miami, currently Miami 21. As provided in s. 62-618.5(5) of the Code, Outdoor Advertising Signs are only allowed in certain Zoning Districts. Even if Miami 21 is superseded, this Agreement shall be governed by the provisions of s. 62-618.1 through 62-618.7 of the Code, but only to the extent those provisions are in effect on the Effective Date of this Agreement. h. As used in this Agreement, "Termination Date" shall mean the date this agreement terminates, which is twenty-five (25) years from the "Effective Date" [see paragraph 17(m)]. i. As used in this Agreement, "affiliated entity" means any legal entity owned, controlled or managed by any of the parties to this agreement, or any party joining in this agreement. As used -in -this A- eement--"CCO"-._shall-mean--Clear-Channel-------------- Outdoor, anne----------- Outdoor, Inc., a Delaware corporation, registered in Florida as CC Outdoor, Inc., d/b/a Clear Channel Outdoor. k. As used in this Agreement, the definition of "Mural" shall be the definition provided in s. 62-602 of the Code. Doc 270637 -4- 1. As used in this Agreement, the definition of "Media Tower(s)" shall be the definition provided in s. 62-618.21 of the Code. M. As used in this Agreement, the definition of "Outdoor Advertising Sign" shall be the definition provided in s. 62-618.2 of the Code. In this agreement the terms "Sign" and "Outdoor Advertising Sign" are used interchangeably. n. As used in this Agreement, the definition of "Centerline" shall be the official centerline as described in ss. 54-187 to 54-190 of the Code. o. As used in this Agreement, the definition of "Neighborhood Sign" shall be a Sign located within the territorial limits of the City that is not within 600 feet of the right-of-way of the state roadways and interstate highways listed in s. 62-618.5(1) of the Code. P. As used in this Agreement, the definition of "Proposed Site" shall mean any site SFEF submits to the City on a FDOT Form 575-010-04, which the City has signed -off on. 3. Sign Inventory and Removal of Sums. As of the Effective Date, SFEF owns or operates the Boardworks Sign and the CCO Sign, and to the best of SFEF's knowledge, there are no other Signs or Sign Structures within the City that are currently owned or operated -by SFEF;-its members; officers or directors; or- any oftheir- respective---- --- - - subsidiaries, affiliated corporations, or affiliated entities. With respect to any Sign or Sign structure owned by SFEF, or owned by the Joining Parties, which is not disclosed in this paragraph, SFEF and/or the Joining Parties will immediately remove said Sign and/or Sign Structure as of the Effective Date of this Agreement. With respect to any Sign operated or managed by SFEF and/or the Joining Parties which is not disclosed in this Doc 270637 -5- —.. ---- -- —- paragraph, SFEF and/or the Joining Parties will discontinue operating/managing same as of the Effective Date of this Agreement. SFEF will remove the Boardworks Sign and the CCO Sign as set forth below. Immediately following the removal of the Boardworks Sign and the CCO Sign under this paragraph, SFEF will provide the City with written notice of the removal so the City can monitor SFEF's compliance with this Agreement. The City will not require any permits for SFEF to remove the Boardworks Sign or the CCO Sign as described below: a. Within three (3) months of the Effective Date of this Agreement, but prior to the application for the Building Permit contemplated herein, SFEF shall, at its sole cost and expense, permanently remove the Boardworks Sign, including the Sign structure and all Sign faces. Provided the City takes no action to compel either the removal of such Sign or its compliance with any City ordinances applicable to Signs prior to the voluntary removal deadline set forth herein, SFEF hereby expressly waives any right to receive from the City just compensation or any other relief therefore, 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 local, state or federal b. Within three (3) months of the Effective Date of this Agreement, but prior to the application for the Building Permit contemplated herein, SFEF shall, at its sole cost and expense, permanently remove the CCO Sign, including the Sign structure and all Sign faces. Provided the City takes no action to compel either the removal of such Sign or its compliance with .any City.. ordinances applicable to Signs prior to the Doc 270637 -6- voluntary removal deadline set forth herein, SFEF hereby expressly waives any right to receive from the City just compensation or any other relief therefore, 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 local, state or federal law. C. Reserved. d. SFEF and/or the Joining Parties will immediately remove any Sign that SFEF and/or the Joining Parties owns within the territorial limits of the City, as of the Effective Date, not listed in this Agreement, and SFEF and the Joining Parties, hereby expressly waives any right to receive from the City just compensation therefore, 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: e. The parties shall, five (5) years prior to the Termination Date, enter into negotiations to extend this Agreement, upon mutually acceptable terms. f. Reserved. — Within-thi 30 calendar -da s followin SFEF's-removal--of-an g, ny-(�) y - g y -------- Sign and/or Sign structure under this Agreement (other than the Boardworks Sign or CCO Sign, which has another deadline for providing notice - see para. 3 above), SFEF shall notify the City of the removal. Additionally, within thirty (30) calendar days following SFEF's termination of operation/management of any Sign and/or Sign structure Doc 270637 -7- under this Agreement, SFEF shall notify the City of such discontinuance of operation/management. 4. Amended Permit. a. In recognition of SFEF's agreement to remove the Boardworks Sign, the CCO Sign, and other Signs, and its waiver of just compensation therefor (see below), and its surrender to the City and permanent cancellation of the corresponding permits issued by the City for the Sign structures and Sign faces being removed, in compliance with ss. 62-618.1 thru 62-618.7 of the Code, the City will amend existing Sign permits to allow SFEF to relocate and reconstruct the permit rights associated with such Signs to a location permitted by ss. 62-618.1 thru 62-618.7 of the Code, with a maximum of two (2) externally illuminated bulletin -size. Billboard Sign faces on the terms and conditions set forth below: (1) The City will amend a maximum of nine (9) permits for Signs based on SFEF's removal of Signs on a one for one basis, i.e.: in compliance with s. 62-618.5(3)(b), of the Code, for an Amended Permit allowing the relocation and reconstruction of one (1) Sign structure with two -(2) externally illuminated bulletin -size Billboard Sign faces, SFEF - — " shall remove one (1) -existing; legal,- and--freestanding-Sign--structure-wrt - -- two (2) bulletin -size Billboard Sign faces. The City acknowledges that SFEF shall be entitled to the issuance of one (1) Amended Permit described in the preceding sentence upon the removal of the Boardworks Sign, one (1) Amended Permit described in the preceding sentence upon the removal -of the CCO Sign, and one (1) Amended Permit described in Doc 270637 -8- the preceding sentence upon the removal of other future acquired Signs. Any Sign and Sign structure removed as a condition precedent to obtaining an Amended Permit to relocate a Sign shall: (a) not be an illegal Sign at the time of removal; and (b) shall be: (i) a Neighborhood Sign; or (ii) if not a Neighborhood Sign, shall be a Sign other than a Sign that has been issued a permit for the Sign from the Florida Department of Transportation for an interstate highway or state roadway listed in s. 62- 618.5(1) of the Code. Notwithstanding the foregoing, provided CBS Outdoor, Inc. ("CBS") relinquishes and waives any claims that it may have in and to that certain sign know as the Hampton Inn Sign under the existing CSB Settlement Agreement with the City ("Hampton Inn Sign"), SFEF shall have the right to utilize the Hampton Inn Sign for the purposes of satisfying the removal requirements as set forth above. (2) The Amended Permits issued to SFEF will allow a Sign only along those expressway segments identified in ss. 62-618.1 thru 62- 618.7 of the Code. The Sign relocated on an expressway location may be built to the Height allowed by FDOT regulations. The Amended Permits -_—issued-to'-SFEF-will--not allow -a Sign--within-those--areas designated--in-s—­-- 62-618.5(2) of the Code. (3) SFEF and Outlook hereby expressly waive any right to receive from the City just compensation or any other relief for the removal of, and cancellation of the permit for, the Boardworks Sign and CCO Sign, or any other. sign, whether such claim for just compensation is predicated Doc 270637 -9- 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. The Signs built by SFEF shall be built substantially conforming to the generic sign plans attached as Exhibit A to this Agreement. C. The Building Permit application for any Amended Permit shall comply with all Technical Regulations and all setback and encroachment requirements. Additionally, SFEF will place all columns, foundations and overhangs within the Base Building Line. The City agrees to timely and in good faith process the Building Permit application submitted by SFEF. d. After the Effective Date of this Agreement, SFEF may submit Florida Department of Transportation Form ("FDOT") 575-010-04 ("FDOT Application") to the City seeking local government approval of a proposed site ("Proposed Site"). The City will stamp the FDOT Application on the date it is received. The FDOT Application will be timely and in good faith processed by the City "first in, first out", such that no FDOT Forms may be signed or authorized for a subsequent application which would interfere with the locafion secured- by -a previously-signed-FDOT--Form-575=010-04-ir-t ere -is -no– -- -- previous application, which would interfere with the location requested, and if the Proposed Site meets the City's standards found in ss. 62-618.1 through 62-618.7 of the Code, the City shall within five (5) business days of receipt deliver back to SFEF a completed and fully executed FDOT Application for the Amended Permit for a Sign at the Proposed.Site requested in the FDOT Application. If an FDOT permit is not issued Doc 270637 -10- within 280 days of the City's signature, the City's approval will become null and void for that particular application. Following approval of the FDOT Application, and issuance of a FDOT permit and tag, and after the removal of the required Sign structure and Sign faces as called for in this Agreement, SFEF may submit a Full Permit Application to the City which shall comply with all ordinances relating to structural, electrical and/or engineering requirements, or other health and safety requirements (hereinafter the "Technical Regulations") and all setback and. encroachment requirements. Additionally, SFEF will place all columns, foundations and overhangs within the Base Building Lines as that is defined in §§54.196 through 54-190 of the Code. Upon submission of a Full Permit Application, the City shall issue the building permit within ten (10) business days. e. 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, including the City if the City is the owner of the real property where the Sign will be located. The Parties acknowledge that SFEF bears the sole risk of finding, securing and maintaining the sites for its Amended Permit, and that its failure to find and secure a suitable site 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 SFEF- expressly waives any suclt-claim arising out --of- such ---- failure. SFEF's Amended Permit rights as provided herein are not dependent in any way on its ability to find or secure a site for the Signs subject to the Amended Permits. At the time of submitting the "FDOT Application" to the City for local government approval, SFEF shall also provide proof of the consent of the owner of the property upon which the Sign structure is proposed to be relocated. Doc 270637 -11- f. The City will not issue the Amended Permits under this paragraph more than five (5) years after the Effective Date of this Agreement. 5. Reserved. 6. Default. a. SFEF agrees to pay the City a liquidated penalty of $10,000 per day per Sign for any Sign, which it does not remove in accordance with the terms of this Agreement, set forth herein. The City shall not be entitled to receive the per diem penalty set forth in this paragraph until it has notified SFEF of each Sign it claims SFEF has failed to remove and it has provided SFEF 30 days to cure any such failure. b. Reserved. C. Nothing contained in this paragraph shall prevent the City from enforcing its police powers and safety regulations in a manner not inconsistent with this Agreement. d. In the event SFEF fails to perform its respective obligations under this Agreement, after written notice and a thirty (30) day cure period, the City shall be entitled the remedy of specific performance. e. In the event the City fails to perform its obligations under this — ----- -- ------ Agreement, after written notice and a thirty(30)-day cure period; SFEF shall be entitled- to ntitle to the remedy of specific performance. 7. Status of Signs. a. SFEF shall maintain and keep in good repair its Sign and Sign faces (which are relocated pursuant to this Agreement), and the City will issue SFEF any Doc 270637 -12- permits, which may be required for SFEF to exercise its maintenance and repair obligations under this paragraph. b. As of the Effective Date of this Agreement, the Signs for which the City issues Amended Permits shall be deemed lawfully erected or a lawful non- conforming Signs, as applicable, with respect to any nonconformities, as of the Effective Date of this Agreement. During the term of this Agreement, except as provided in Paragraph 3(a), above, the City shall take no action to compel the Sign for which the City issues the Amended Permit to be removed or to come into compliance with City Sign ordinances currently or formerly in effect or hereafter adopted, but only for as long as SFEF (or its permitted assigns) owns and/or operates said Sign In the future, the City may adopt additional ordinances regulating Signs. During the term of this Agreement, all Signs relocated and reconstructed pursuant to the Amended Permit may remain as lawful, lawful non -conforming uses, or lawful non -conforming characteristics of use as currently or hereafter constructed, but only for so long as SFEF (or its permitted assigns) owns and/or operates said Sign. During the term of this Agreement, SFEF may replace, reconstruct, repair, maintain, and upgrade (which shall not include increasing the sizes, number of faces, type of illumination, or any nonconformities) the Sign erected pursuant to an Amen e Permit, w -ic is nbt etrig vo untarily-removed-un er this Agreement. --- The City will issue SFEF any permit necessary to effectuate the purposes of this paragraph. C. SFEF be shall bound to comply with ss. 62-618.1 thru 62-618.7 of the Code; however, any City Sign regulation adopted after the Effective Date of this Agreement shall not be applied to diminish SFEF's.rights under this Agreement. Doc 270637 -13- d. Reserved. e. The Parties acknowledge that SFEF bears the sole risk of finding, securing and maintaining the sites for the Signs SFEF owns and/or operates, and that its failure to maintain said sites shall not give rise to any claim for compensation or other relief from the City, including code enforcement actions by Miami -Dade County, and SFEF expressly waives any such claims against the City. 8. . Payments to City.. Based on the parties'. respective undertakings set forth herein, SFEF has agreed, to make certain payments to the City as provided herein: a. At the time of submission of a Full Permit Application, SFEF shall pay to the City a Sign Permit Fee in the amount of $500.00. b. Once the Sign structure is constructed and all permits and approvals are final and non -appealable, SFEF will pay the City an annual permit renewal fee Permit Renewal Fee of $1,500 for each Amended Permit issued by the City to SFEF pursuant to this Agreement ("the "Permit Renewal Fee"), and again on October I" of each year thereafter during the term of this Agreement, but only for so long as the Sign structure relocated and reconstructed pursuant to the Amended Permit remains erected. Annual permit renewal fees shall not be increased until 2015 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. The Parties and the Joining Parties agree that the Permit Renewal Fee contemplated in this subparagraph is not: (i) a "Sign permit fee"; (ii) a payment required as a condition for building, erecting, inspecting, renewing, maintaining, operating, relocating, or reconstructing a Sign; or (iii) required pursuant to any agreement, Doc 270637 -14- ordinance, or resolution that includes any provision relating to the issuance of a Sign permit or otherwise authorizing the building, erection, inspection, renewal, maintenance, operation, relocation, or reconstruction of a Sign. C. SFEF will pay the City a one-time only permit amendment fee in the amount of $49,500 (the "Permit Amendment Fee") for each Amended Permit issued by the City to SFEF pursuant to this Agreement. The Permit Amendment Fee shall be due to the City within thirty (30) days_ after all permits and approvals required for the building and construction of the relocated and reconstructed Sign are final and non - appealable, but in any event before any construction of the Sign structure is commenced. The Parties and the Joining Parties agree that the Permit Amendment Fee contemplated in this subparagraph is not: (i) a "Sign permit fee"; (ii) a payment required as a condition for building, erecting, inspecting, renewing, maintaining, operating, relocating, or reconstructing a Sign; or (iii) required pursuant to any agreement, ordinance, or resolution that includes any provision relating to the issuance of a Sign permit or otherwise authorizing the building, erection, inspection, renewal, maintenance, operation, relocation, or reconstruction of a Sign. d. SFEF will pay the City a one-time only Sign Surcharge of $25,000 (the "Sign -Surcharge ")-for each -Amended Permit-issued-bythe Cityto SFEF pursuant -to this Agreement. The Sign Surcharge is for the permit rights granted or otherwise confirmed under this Agreement. The Sign Surcharge shall be due to the City as follows: (1) $12,500 upon submission of a Full Amended Permit Application; and (2) $12,500 within thirty (30) days after all permits and approvals required for the building and construction of the relocated and reconstructed Sign are final. and non -appealable, but in Doc 270637 -15- any event before any construction of the Sign structure is commenced. The Parties and the Joining Parties agree that the Sign Surcharge contemplated in this subparagraph is not: (i) a "Sign permit fee"; (ii) a payment required as a condition for building, erecting, inspecting, renewing, maintaining, operating, relocating, or reconstructing a Sign; or (iii) required pursuant to any agreement, ordinance, or resolution that includes any provision relating to the issuance of a Sign permit or otherwise authorizing the building, erection, inspection,. renewal, maintenance, operation, relocation, or reconstruction of a Sign. e. In order to promote the right of the people to the natural, scenic, historic and aesthetic qualities of the environment, SFEF will pay the City a one-time only $50,000 Public Benefit Fee ("Public Benefit Fee") of $50,000 for each Amended Permit issued by the City to SFEF pursuant to this Agreement. The Public Benefit Fee shall be due to the City within thirty (30) days after all permits and approvals required for the building and construction of the relocated and reconstructed Sign are final and non - appealable, but in any event before any construction of the Sign structure is commenced. The Parties and the Joining Parties agree that the Public Benefit Fee contemplated in this subparagraph is not: (i) a "Sign permit fee"; (ii) a payment required as a condition for building, erecting, inspecting, renewing, maintaining, operating, relocating, or -----._reconstiucting a- Sign;o--(i._) --iequired Pursuant to -any agreenent, ordinance, - or resolution that includes any provision relating to the issuance of a Sign permit or otherwise authorizing the building, erection, inspection,. renewal, maintenance, operation, relocation, or reconstruction of a Sign. f Commencing on the first anniversary of the Effective Date of this Agreement and on each anniversary thereafter, for so long.. as this Agreement..remains in Doc 270637 -16- effect, SFEF will annually fund a Neighborhood Enhancement Account ("NEA") in the amounts, and for the purposes, set forth below ("NEA Payments"): (i). $4,285.72 for each of the Amended Permits, as long as such Sign Structures remain standing, or a Sign has been erected in a substitute location; and (ii) The City and SFEF 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 SFEF may designate. The parties agree that the NEA funds should be used to assist the community needs of the citizens of the City. If the City and SFEF are unable to agree upon the recipients by March 3I5t of each year, the Executive Director of the United Way of Miami -Dade shall select the recipients utilizing the criteria set forth in this paragraph. (iii). The Parties and the Joining Parties agree that the NEA Payments contemplated in this subparagraph are not: (a) a "Sign permit fee'; (b) a payment required as a condition for building, erecting, inspecting, renewing, maintaining, operating, relocating, or reconstructing a Sign; or (c) requjred pursuanfto any agreement, - -" ordinance, or resolution that includes any provision relating to the issuance of a Sign permit or otherwise authorizing the building, erection, inspection, renewal, maintenance, operation, relocation, or reconstruction of a Sign. 9. Replacement and Relocation of Signs. Doc 270637 -17- After a Proposed Site has been legally constructed ("SFEF Site"), in the event it becomes necessary for SFEF to replace the Sign located on the SFEF Site, the City will authorize SFEF to replace such SFEF Site on the same site or to relocate such Sign within an allowed geographical location in the same or less restrictive Zoning District according to relocation standards found in ss. 62-618.1 through 62-618.7 of the Code, and the prior approval of the location of the Sign by the City Commission. This right to maintain, replace, and relocate the Sign shall expire and terminate on the Termination Date. 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. The Parties acknowledge that SFEF bears the sole risk of finding, securing and maintaining the sites for its Sign, including any replacement Sign, 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 SFEF expressly waives any such claim. SFEF'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. 10. Reserved. 11. Pendine Cases, Vacating of Liens. Within thirty (30) clays of the Effective Date of this Agreement, SFEF shall take all steps necessary to dismiss with prejudice all court cases and appeals it has brought against the City, including the Code Enforcement Proceeding and the Federal Litigation with each party to bear its own costs and attorney's fees, and the City shall take all steps necessary to vacate and set aside the Final Administrative Enforcement Orders, and all Notices of Liens, for the Boardworks Doc 270637 -18- Sign, and take all appropriate actions to record the satisfaction of, and set aside, any liens imposed against property owners who have been the subject of enforcement proceedings as a result of SFEF's Boardworks Sign, with each party to bear its own costs and attorney's fees. The documents vacating and setting aside the enforcement orders and any liens shall be in a recordable form satisfactory to SFEF. The City shall make all efforts to ensure that the relevant permits are processed in a good faith, fair dealing and expeditious manner. 12. Property Owners Protected. During the term of this Agreement, so long as SFEF complies with the terms and conditions of this Agreement, the City will take no action to enforce its Sign ordinances against the owners of the property on which SFEF's relocated Sign is located, as to SFEF's Sign. Within sixty (60) days of the Effective Date, the City will notify the Boardworks Sign's property owner subject to the Code Enforcement Orders, that the Order has been vacated and that the dispute with SFEF has been settled. The text of such notice shall be approved by SFEF. 13. Term and Expiration. This Agreement, and all rights and obligations of the parties hereunder, shall terminate and expire twenty-five (25) years after its Effective Date, unless extended by Agreement of the parties. 14. Non -Waiver of Legal POSIii0ns; C6ndemnatWi ---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. This covenant shall be binding on all persons or entities joining in this Agreement. Doc 270637 -19- a. Nothing in this Agreement shall affect in any way the City's right to condemn a Sign or Sign structure in accordance with applicable eminent domain laws, nor shall it affect SFEF's obligation to comply with applicable structural, electrical and engineering requirements and other health and safety requirements. If the City determines that SFEF's relocated Sign structure has become unsafe so as to pose a threat of bodily harm to the public, the City shall so notify SFEF and SFEF shall immediately correct the problem, and if SFEF fails to immediately correct the problem, the City may take any such enforcement action as allowed by its police powers for the protection of public safety and health. Any such action by the City shall not be used by SFEF as grounds to invalidate this Agreement. Notwithstanding anything to the contrary in this Agreement, SFEF's limited waiver of its statutory and constitutional rights to, receive just compensation upon removal of the Boardworks Sign and CCO Sign is expressly conditioned upon the City's issuance of the Amended Permit. b. Except as expressly provided in Paragraph 2 herein, nothing in this Agreement affects SFEF's right, if any, or the City's obligation to pay, if any, just compensation if, during the term of this Agreement, the City elects to remove any Sign lawfully erected under this Agreement belonging to SFEF, or their respective assigns. 15. Further Assurances and Cooperation. a. The parties recognize that the City may elect to amend the zoning ordinances and the Code to be consistent with this Agreement, if necessary, but that the City has no obligation whatsoever to do so. Should the City choose to do so, SFEF will assist in this effort as requested by the City. Doc 270637 -20- b. Assurances to the City. Neither SFEF, nor the Joining Parties, nor any of SFEF's or the Joining Parties' respective subsidiaries, affiliated corporations, affiliated entities, or parent corporations, members, officers, directors, managing members, stockholders, agents, attorneys, officers or employees, or assignees (hereinafter the "Assuring parties"), will: sue the City on Outdoor Advertising Sign or Mural issues; challenge the validity or constitutionality of the City's ordinances regulating Outdoor Advertising Signs, Murals. or Media Towers;. challenge the validity of any existing settlement agreements relating to Outdoor Advertising Signs; challenge the procurement of, or validity of, or legality of, any lease, or license concerning City property to be used for outdoor advertising purposes; challenge any permit, Amended Permit, or building permit to be issued to SFEF by the City pursuant to this Agreement; challenge any permit to be issued to SFEF by FDOT; assert any claim against the City under the Burt J. Harris, Jr., Private Property Rights Protection Act, as amended, s. 70.001, F.S., claiming damages related to an Outdoor Advertising Sign or Sign Structure; or provide financial or in-kind support to others who sue the City regarding the aforementioned matters and issues. Furthermore, the Assuring parties will not have any participation in, create, or form a new legal entity that may sue the City regarding the aforementioned matters and issues. - --- - C. City to Cooperate. The City will reasonably cooperate to resolve issues, if any, raised by Miami -Dade County regarding SFEF's sign and the Amended Permit issued pursuant to this Agreement. Doc 270637 -21- d. No Obligation to Amend Zoning Ordinance. The failure of the City to amend its zoning ordinances and Code as set forth in this paragraph, shall not affect the validity and enforceability of this Agreement. e. Indemnification. SFEF hereby agrees to defend, indemnify, and hold harmless the City from any and all claims, suits, actions, and causes of action of whatever nature that may be brought by CBS against the City arising from the City's entry into this Agreement, and from and against allcosts, attorney's fees, expenses and liabilities incurred in and about the defense of any such claims. SFEF shall be entitled to select counsel to defend the City in accordance with this paragraph, subject to the City's approval, which approval shall not be unreasonably withheld, conditioned, or delayed. The parties agree that the City may reasonably withhold it consent to counsel selected who is a party to this Agreement, or to counsel who is employed by, or is a member of a law firm associated with any party to this Agreement, in which case SFEF shall select other counsel, subject to the City's approval. 16. 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 SFEF, Outlook and Santiago D. Echemendia individually, As to SFEF, Outlook, Harkley Thornton, Individually, and Stacy J. Thornton, individually To the City of Miami: Santiago D. Echemendia 1441 Brickell Avenue Four Seasons Tower, 15`s Floor Miami, FL 33131 Tel: (305) 536-1112 Harkley R. Thornton 2295 S. Hiawassee Road, Suite 203 Orlando, FL 32835 Tel: (407) 363-1212 City Manager City of Miami 3500 Pan American Drive Doc 270637 -22- Miami, Florida 33133 Telephone: (305) 250-5300 with a copy to: City Attorney City of Miami 444 S.W. 2"d Avenue Suite 945 Miami, Florida 33133 Telephone: (305) 416-1800 17. Reserved. 18. Miscellaneous. a. Reserved. b. Construction and Law Governing. This Agreement was drafted by all parties, and therefore any ambiguity shall not be construed against any party. In addition, 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. Reserved. 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. Assignments/Binding Nature. This Agreement will be binding upon and will inure to the benefit of any successor or permitted assigns of the parties Doc 270637 -23- hereto. SFEF shall have the right of assignment of rights and obligations under this Agreement. However, no attempted assignment by SFEF will be valid unless: (1) the assignee shall execute an Agreement to be bound by the terms and conditions of this Agreement and to accept all of the rights and obligations of SFEF under this Agreement and (2) the assignment is approved in writing by the City Commission, which approval shall not be unreasonably withheld, delayed or conditioned. The parties acknowledge that the City Commission shall have the. right to. reject a proposed assignment if the assignee does not fully adopt the terms of this Agreement. Any attempted assignment in violation of this Section shall be void. g. SFEF hereby represents and warrants that it: (a) is a limited liability company in good standing under the laws of the State of Florida; (b) is duly authorized to transact business in the State of Florida; and (c) has taken all 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. h. Amendments. No change in, or addition to, this Agreement shall -- -- '-----------be be enforceable_ unless evidenced by a writing executed by the parties, Any such--- - - - ---- - - enforceable amendment(s) shall become effective on the date stipulated therein. i. 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 Doc 270637 -24- 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. (1). The City hereby releases and forever discharges SFEF, its agents, employees, officers, directors, subsidiaries, affiliated corporations or entities, stockholder and parent corporations from any and all claims, actions, causes of action, damages and costs arising from violations, alleged or actual, of the City's Sign regulations resulting from the Boardworks Sign, which have been or might have been, brought as of the Effective Date of this Agreement. The City does not waive its right to enforce its ordinances against Signs other than the Boardworks Sign. In addition, the City does not waive its right to enforce its ordinances against Signs other than the Boardworks Sign once the removal of those Signs is required by this Agreement. These release provisions shall also operate to release the owners -of property upon which SFEF's Boardworks Sign is located, to the same extent SFEF is released. (2). SFEF, and the Joining Parties, for themselves, their agents, employees, officers, directors, subsidiaries, affiliated corporations or affiliated entities, members, stockholder and parent corporations, and for the owners of the property where its Sign is located, and the persons or entities joining in this Agreement, hereby release and forever discharge the City, its agents, officers, employees, and elected officials, from any and all claims, actions, causes of action raised in the Federal Litigation, and from any and all claims, actions, causes of action, damages and costs arising out of the City's existing Zoning Code, Outdoor Advertising Sign regulations, Media Tower regulations, and Mural regulations, or enforcement thereof, and the lease, license or use of City property by third parties for outdoor advertising; any claim under the Burt J. Harris Act, Doc 270637 -25 as amended, relating to outdoor advertising signs, sites, or locations, and without limiting the generality of the foregoing, SFEF, the Joining Parties, and the persons and entities joining in -this Agreement, and their affiliated entities, specifically release and waive the right to challenge the validity, constitutionality or enforceability of the City's Outdoor Advertising Sign regulations, Media Tower regulations, and Mural regulations in effect on the date of this Agreement, and in the future. (3). Neither SFEF 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 through an appropriate motion to enforce. j. Compliance With Electrical and Structural Codes, Setbacks and Encroachments Indemnification. SFEF acknowledges and agrees that this Agreement does not in any way alleviate SFEF's responsibility to comply with all Technical Regulations in removing, relocating, maintaining, repairing or in reconfiguring any Sign face or Sign structure,. and SFEF shall not be excused from complying with the Technical Regulations, and set back and encroachment requirements, in effect at the time a building or electrical permit application filed in connection with construction or reconstruction of an existing Sign. Additionally, SFEF will ensure that all columns, - - foifndations and overhangs are within the-Base-Ftuijding-Line. The City will --issue SFEF - - --- - - any permits or authorization that may be required to enable SFEF to comply with this paragraph. Further, SFEF will indemnify and hold the City harmless and defend the City from any injury, or claim of injury or death, either to person or property, that results from a SFEF Sign structure or associated Sign face, even if it is alleged that the City was negligent. Doe 270637 -26- k. Invalidity. Except for paragraph 8, which goes to the heart of this Agreement, 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. If paragraph 8 of this Agreement, or any portion thereof, is for any reason held invalid or unconstitutional by any court of competenent jurisdiction, this entire Agreement shall be deemed null and void ab initio, and of no force and effect, and then the parties hereto shall be returned to their respective positions as such existed on the date one day prior to the Effective Date of this Agreement. The Parties and the Joining Parties hereby release and waive any claim they may have to challenge this Agreement in any Court or before any administrative agency or Board based upon any County, State or Federal law, based upon any changes to County, State or Federal law, or based upon the U.S. Constitution, the Florida Constitution, or the Miami -Dade County Charter. However, except as limited by paragraph 6 herein, the Parties do not waive their respective rights to bring an action in the proper court to enforce the terms and conditions of this Agreement. 1. Integrated Agreement. Each party's obligations hereunder are - - - --- dependent upon perforinance of the -material -obligations -of the other party. - - M. Reserved. n. Percentages. Whenever calculations involving percentages are utilized in this Agreement, the resulting figure shall be rounded up to the nearest whole number. Doc 270637 -27- o. Indemnity and Hold Harmless. This Amendment contemplates the removal of existing Sign structures in exchange for the right to relocate and reconstruct an existing Sign structure from one property to another within the City of Miami. It is recognized that SFEF may have lease agreements with property owners (the "SFEF Property Owners") relating to such existing Sign structure that SFEF is voluntarily obligating itself to remove, or may elect to remove, under the terms of this Agreement. Consequently, SFEF agrees to indemnify the City from any lawsuit, and shall defend with counsel designated by SFEF (and reasonably acceptable to the City), and hold the City harmless, against any claim asserted by a SFEF Property Owner arising from the removal of the Signs and Sign structure under the terms of this Agreement. 19. Condition Subsequent. This Agreement shall be null and void, and of no further force or effect, if, prior to May 15, 2011, the Florida Legislature enacts legislation which establishes a maximum payment that may be charged by a local government as a condition for building, erecting, inspecting, renewing, maintaining, operating, relocating, or reconstructing a sign, meaning any sign, wall mural, or media tower as defined in s. 479.01 or as defined by a local government agreement, resolution or ordinance. CITY OF MIAMI SOUTH FLORIDA EQUITABLE FUND, LLC. LIN City Manager I: Its: Dated: , 2011. Dated: .2011. Doc 270637 -28- Attest: City Clerk Dated: 2011. Approval as to form and correctness: Julie O. Bru, City Attorney Dated: 2011. Doc 270637 -29- JOINDER BY THIRD PARTIES The following entities or persons join in this Agreement for the purpose of contractually binding themselves to the various covenants and promises of SFEF found in this Agreement, as if they themselves were specifically named as a party to this Agreement instead of SFEF, but only to the extent specifically provided in this Agreement. In addition, should the following entities or persons joined be named in this Agreement, to contractually bind themselves to the various covenants and promises concerning themselves made in this Agreement. OUTLOOK MEDIA OF SOUTH FLORIDA, LLC. Its: Dated: 12011. SANTIAGO D. ECHEMENDIA LIN ....Dated: 2 1-1 -- --- - - ---------- --- ------ -- HARKLEY THORNTON STACY J. THORNTON Dated: .2011 Dated: -2011 Doc 270637 -30-