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HomeMy WebLinkAboutCRA-R-09-0024 Backup• • • 03.23.09 FIRST AMENDMENT TO SETTLEMENT AGREEMENT THIS FIRST AMENDMENT to the July 8, 2004 Settlement Agreement (this "Amendment") is made and entered into as of this day of , 2009 (the "Amendment Effective Date"), by and between the City of Miami (the "City"), a Florida municipality, and Clear Channel Outdoor, Inc., a Delaware corporation ("CCO"). RECITALS A. The City and CCO are Parties to that certain Settlement Agreement dated July 8, 2004 (the "Agreement"). B. The City and CCO wish to, and by this Amendment hereby agree to, amend the terms of the Agreement as set forth herein. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Agreement. C. There is currently pending a lawsuit styled Jackson Soul Food, Inc. et al, v. Southeast Overtown/Park West Community Redevelopment Agency, Case No. 05-09022 CA 11 in which CCO has intervened (the "Litigation"). In the Litigation, the Southeast Overtown/Park West Community Redevelopment Agency (the "CRA") claims that CCO's billboard located at 936 NW 3rd Avenue, Tax Folio Number 01-0102070-1020 (the "JEJ Properties, Inc. Sign") was erected in violation of a covenant restricting the use of the property solely for parking, which CCO strongly denies. Each of the covenants, agreements and obligations of the parties under this Amendment are expressly subject to and conditioned upon the dismissal with prejudice of the Litigation so as to allow the JEJ Properties, Inc. Sign to remain. NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and CCO agree to amend the Agreement as follows: 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated into and made part of this Amendment and the Agreement. 2. Voluntary Removal of Bird Road Signs. CCO shall, at its sole cost and expense, permanently and voluntarily remove its Signs and all apparatus associated therewith ("Sign Structures") listed on Exhibit H, and shall do so in accordance with and subject to the terms and conditions set forth in sub -section 6.10 hereof. In fulfilling this commitment, CCO shall comply with any and all local requirements, including permit requirements. 3. Voluntary Removal of Signs on Exhibit I. CCO shall, at its sole cost and expense, permanently and voluntarily, remove its Signs and Sign Structures listed on Exhibit I, and shall do so in accordance with and subject to the terms and conditions set forth in subsection Page I • • • 6.10 hereof. In fulfilling this commitment, CCO shall comply with any and all local requirements, including permit requirements. 4. Waiver of Just Compensation. CCO hereby expressly waives any right to receive from the City just compensation for the removal of any Signs or Sign Structures pursuant to this Amendment and the Agreement, whether such a claim for just compensation is predicated on Section 70.001, 70.20(9) or 479.15(2), Florida Statutes; Article X, Section 6 of the Florida Constitution; or any other authority under local, state or federal law. 5. Payment in Lieu of Removal. Within five (5) days following the issuance of all necessary final governmental approvals, authorizations and permits necessary for the replacement of the Signs for LED Signs as provided in Section 6 hereof, CCO shall pay the CRA a one-time only payment of eighty thousand dollars ($80,000.00)(the "CRA Payment"). Moreover, the City shall give CCO a one-time credit of forty thousand dollars ($40,000.00) against CCO's NEA payment due to the City for 2009 per Section 11(b) of the Agreement (the "NEA Credit"), but only after the CRA confirms receipt of the CRA Payment. The City agrees to indemnify and hold harmless CCO from any claims that may be made by the NEA or beneficiaries of the NEA as a result of the NEA Credit. 6. LED Signs. 6.1 Notwithstanding anything to the contrary contained in the Agreement, CCO shall be permitted to replace three (3) existing Sign faces with LED Sign faces at the following "Designated Locations" within the City of Miami in accordance with Section 6 hereof: 1) 1-95 W/S 100ft S/O SW 8th Street F/N, 818 SW 4th Avenue , Folio No. 0102060001020; 2) I-95 E/S 75ft S/O NW loth Street F/S, 936 NW 3`d Avenue, Folio No. 0101020701020; 3) I-395 N/S .35mi E/O I-95 F/W, 1413 NW 1st Place, Folio No. 0131360510590. 6.2 CCO will pay to the NEA program an additional annual payment in the amount of $15,000.00 (the "NEA LED Payment") for each LED Sign face per year for each LED Sign erected for so long as such LED Sign remains erected. The first annual NEA LED Payment for each of the three LED Signs is due immediately upon the City's issuance of the Permit for the erection of that LED Sign. Subsequent NEA LED Payments are due on the anniversary of the first NEA LED Payment. The NEA LED Payment shall be adjusted annually, either up or down, based upon the consumer price index for the Metropolitan Miami -Dade area (the "CPI Adjustment"). The CPI Adjustment shall begin on the third anniversary date of the first NEA LED Payment. 6.3 In addition, the City will have access to use the LED Signs through the State of Florida's Office of Emergency Management (the "OEM"), upon official activation of the OEM for certain limited emergency reasons such as hurricanes, amber alerts, and police or fire emergency situations. Such access shall be subject to the agreements CCO has in place from time to time with the FBI, State of Florida and the OEM. 6.4 In the event the view of any LED Sign face is substantially impaired from the roadway, highway or expressway from which it is intended to be viewed, the City shall permit Page 2 • • • CCO to relocate the affected LED Sign to another mutually agreeable location of similar value for outdoor advertising purposes within the City of Miami at which CCO then owns a Sign and Sign Structure. If required, the City shall issue all necessary approvals and permits to CCO to relocate the affected LED Sign and LED Sign Structure. 6.5 In addition to FDOT's spacing requirements, LED Signs facing in the same direction shall be placed at a minimum of six hundred (600) feet apart, irrespective of whether they are placed on the same or different sides of the roadway, highway or expressway. In the case of LED Signs located on opposite sides of the roadway, highway or expressway, the six hundred (600) feet shall be measured excluding the width of the roadway, highway or expressway. 6.6 LED Signs are restricted to one (1) LED face per Sign structure. 6.7 LED Signs shall have digital advertising faces no larger than 14' x 48'. 6.8 LED Signs may allow for display of remotely changeable off -premise advertising in increments of eight seconds or more, or increments permitted by FDOT regulations, whichever increment is greater. 6.9 If an existing Sign Structure at one or more of the Designated Locations is insufficient to support an LED Sign face, CCO may replace the Sign Structure with a Sign Structure which is sufficient to support an LED Sign face. 6.10 CCO may only submit one building permit for an LED Sign at a time. The first building permit may only be submitted following the dismissal with prejudice of the Litigation. Within fifteen (15) days after CCO's receipt of all necessary final governmental approvals, authorizations and permits (including, without limitation, all necessary governmental approvals, authorizations and permits from FDOT) for the erection, installation and operation of the first LED Sign, CCO shall at its sole cost and expense, permanently and voluntarily remove (if not already theretofore removed) the following Signs and Sign Structures: the two (2) Signs and Sign Structures listed on Exhibit H and Sign numbers 162 and 163 listed on Exhibit I. CCO may not apply for a building permit for the second LED Sign until it has completed the removal of the Signs and Sign Structures listed in the immediately preceding sentence of this Sub - Section. Within fifteen (15) days after CCO's receipt of all necessary final governmental approvals, authorizations and permits (including, without limitation, all necessary governmental approvals, authorizations and permits from FDOT) for the erection, installation and operation of the second LED Sign, CCO shall at its sole cost and expense, permanently and voluntarily remove (if not already theretofore removed) the following Signs and Sign Structures: Sign numbers 247, 14, 15 & 154 listed on Exhibit I. CCO may not apply for a building permit for the third LED Sign until it has completed the removal of the Signs and Sign Structures listed in the immediately preceding sentence of this Sub -Section. Within fifteen (15) days after CCO's receipt of all necessary final governmental approvals, authorizations and permits (including, without limitation, all necessary governmental approvals, authorizations and permits from FDOT) for the erection, installation and operation of the third LED Sign, CCO shall at its sole costs and expense, permanently and voluntarily remove (if not already theretofore removed) the Page 3 • • following Signs and Sign structures: Sign numbers 71, 27, 133 & 47 listed on Exhibit I. 7. Gateway Map to be Added. Section 3.b of the Agreement is amended to include the following additional language: A map designating "Gateways" as that term is used in Exhibit E is attached hereto as Exhibit E-1 and is on file with the City Clerk's Office. As used in this Agreement, "Gateways" means those areas of the City of Miami designated on the map attached as Exhibit E-I where, irrespective of Zoning Districts and corresponding restrictions, Signs are not permitted. In the event CCO's existing Sign and Sign structures are in the Gateways area, such Sign and Sign structures shall be permitted to remain in those areas at the sole discretion of CCO, but only if those Signs and Sign structures are listed on Exhibit D or were erected with an Amended Permit or an Initial Amended Permit. S. Assignments/Binding Nature. Paragraph 191 of the Agreement is deleted and replaced with the following language: f. Assignments/Binding Nature. This Agreement will be binding upon and will inure to the benefit of any successor or permitted assigns of the parties hereto. CCO agrees not to assign, transfer or convey (collectively "assignment") any ownership in any CCO Sign identified in Exhibit D unless the assignee shall execute an agreement to be bound by the terms and conditions of this Agreement. 9. Selection of Signs to be Removed for Amended Permits. There shall be added sub -paragraphs 3.i. and 3.j. to the Agreement which shall read as follows: i. Notwithstanding anything to the contrary in this Agreement, for the issuance of the 15th Amended Permit, the City may select the Signs and Sign structures to be removed by CCO from those Signs listed on Exhibit J. j. No Sign or Sign structure shall be erected based on an Amended Permit until the Signs and Sign structures required to be removed pursuant to the Agreement are removed. 10. Governing Law/Jurisdiction/Venue. Paragraph 19.b. of the Agreement shall be deleted and replaced with the following language: b. Governing Law. This Agreement shall be construed and controlled by the laws of the State of Florida. and the Parties further consent to jurisdiction and venue in the federal district courts sitting in Miami -Dade County, Florida. CCO waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either Party in the manner authorized by applicable law or court rule. Page 4 • • • 11. Correction to Exhibit D. Exhibit D to the Agreement shall be amended to reflect that: (a) Sign #1 bears an incorrect address; the correct address is 3010 SW 37 Avenue; (b) Sign #180 bears an incorrect folio number; the correct folio number is 01-4121-004-0040; (c) Sign #181 bears an incorrect address; the correct address is 3635 S. Dixie Highway. 12. CCO to Indemnify and Hold Harmless the City. This Amendment contemplates the removal of existing Signs and Sign Structures in exchange for CCO's right to replace existing Sign faces with LED Sign faces in prime expressway locations. It is recognized that CCO may have lease agreements with property owners (the "Property Owners") relating to existing Signs and Sign Structures that CCO is obligating itself to remove, or may elect to remove, under the terms of this Amendment or the Agreement. Consequently, CCO agrees to indemnify the City from any lawsuit, and shall defend with counsel designated by CCO and reasonably acceptable to the City, and hold the City harmless, against any claim asserted by an affected Property Owners arising from the removal of the Signs and Sign Structures removed under the terms of this Amendment or the Agreement. 13. Future LED Sign Regulation. Any federal, state or local sign regulation regarding LED Signs adopted prior to or after the date of this Amendment will be binding on CCO, but, during the term of the Agreement, any CITY regulation adopted after the date of this Amendment shall not be applied to diminish CCO's rights to maintain and operate the three LED Signs granted under this Amendment. 14. No Further Amendment. Except as expressly modified by this Amendment, the Agreement shall remain unmodified and in full force and effect and the Parties hereby ratify their respective obligations thereunder. 15. Entire Agreement. The Agreement as expressly modified by this Amendment shall constitute the entire agreement among the Parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. 16. Severability. If any provision of this Amendment shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. 17. Representations and Warranties. CCO hereby represents and warrants that it: (a) is a corporation in good standing under the laws of the State of Delaware; (b) is duly authorized to transact businesses in the State of Florida; and (c) has taken all corporate actions necessary to authorize execution and performance of this Amendment. The City hereby represents and warrants that: (a) it is empowered to enter into this Amendment; and (b) this Amendment has been duly authorized by the City Commission of the City of Miami pursuant to the requirements of Florida law. IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their duly authorized representatives as of the Amendment Effective Date shown above. Page 5 o • • CITY OF MIAMI CLEAR CHANNEL OUTDOOR, INC. By: City Manager Dated: Attest: City Clerk Dated: , 2009 , 2009. By: Its: Dated: , 2009. APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Julie O. Bru City Attorney LeeAnn Brehm Risk Management Director Page 6 • • o Exhibit H Sign No. Street Address of Sign Tax Folio No. Location Sign type No. Face s Zoning 70 1 3010 SW 37 Ave 01-4117-003-1730 Bird Rd SS 1130ft WIO Douglas Rd ENV -3 2 71 179 3820 Bird Road 01-4117-003-1900 Bird Rd SS 80ft E/O SW 38`" Ct FIE — 1 1 Page 7 e • • Clear Channel —City of Miami CCO Signs already removed or in the process to be removed Exhibit I Sign No. Street Address of Sign Tax Folio No. Location Sign Type 72 162 7889 N Bayshore Drive 01-3208-008-0530 NE 79th SISS 10ft W/O NE 11th Av FNV 73 163 1165 NE 79 St 01-3208-011-0080 NE 11th Av ES 50ft N/O NE 79th St F/S 74 247 1177 NE 79 St 01-3208-011-0080 NE 79th St 14550 ft WI0 NE 12th Av FE 75 14 2180 SW I St 014103-014-2330 SW 22 Av ES 2Sft S10 SW 1st SI FIS Roof 76 15 2180 SW I St 014103-014-2330 SW 1st St SS 25 ft E/O SW 22nd Av FM Roof Biscayne Blvd ES 50ft SJO NE 80th St 77 154 7935-45 Biscayne Blvd 01-3207-016-3400 FIS Roof NW 5th St BRG NL SOF W/O MIAMI 78 51 737 NW 4 St 01-0200-010-3010 RIVER 79 71 800 NW 12 Av 01-3135-022-0060 NW 12 Ave WS 300— N/0 NW 7 St NW 57th Av ES 100ft 5/0 NW 53rd St 80 27 25 NW S7Av 014106-015-0170 FIN NW 17th Av ES 100ft 3/0 NW 53rd St 81 133 5211 NW 17th Av 01-3122-052-0560 FIN 82 47 717SW 17 Av 01-4102-012-0070 SW 17 Av ES 100' NIO SW8 St Page 8 • • • EXHIBIT J Page 9