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HomeMy WebLinkAboutAgreementSETTLEMENT AGREEMENT This Settlement Agreement is made and entered into as of May , 2008, by and between the City of Miami (the "City"), a Florida municipality, and CBS Outdoor, Inc., a Delaware corporation, (successor -by -merger to National Advertising Company, a Delaware corporation, d/b/a Viacom, Infinity, National and CBS and Infinity Outdoor of Florida, Inc., a Florida corporation, d/b/a Viacom, Infinity and CBS) (collectively referred to as "CBS"). 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. Certain Signs which CBS 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, CBS owned or operated 53 Signs in the City. Since April 2001, disputes have arisen between CBS and the City regarding City ordinances regulating Signs, the applicability of certain City ordinances to Signsowned by CBS, 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. C. The City acknowledges that CBS has removed a number of Signs that were in CBS's inventory as of April, 2001. D. The City and CBS desire to resolve all disputes and the pending litigation between them in this Settlement Agreement ("Agreement"): FTL:2656261:3 Page I of 32 /4v1 tiv-2-- 0- 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 CBS hereby agree as follows: AGREEMENT 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 §§54-186- through 54-190 of the City of Miami Code (the "City Code"). c. As used in this Agreement, "Height" means the vertical measurement from the crown of the adjacent road (which in the case of multiple roads, the highest crown shall be used), to the highest point of the "Sign Structure". d. As used in this Agreement, "Full Permit Application" means survey, plans, site plans, structural and electrical plans, and a fully completed permit application. e. As used in this Agreement, "Gateways" means those areas of the City of Miami designated on the map attached as Exhibit "A" where, irrespective of Zoning Districts and corresponding restrictions, Signs are not permitted. Subsequent to the Effective Date of this Agreement, should the City amend its Settlement Agreement with Clear Channel Outdoor, Inc. FTL:2656261:3 Page 2 of 32 ("CCO), and a gateway map designating where Signs are not permitted is made a part of that Settlement Agreement, and said map is different than Exhibit "A", then whichever map is less restrictive shall apply to CBS under this Agreement. f. Reserved. 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 Ordinance 11000. The Zoning Districts are listed in Section 400, from most restrictive to least restrictive. The most restrictive Zoning District is (CS - Conservation), and the least restrictive is (I - Industrial). Signs are only allowed in C-1 or less restrictive Zoning Districts. Even if Ordinance 11000 is repealed, this Agreement is governed by the provisions of Ordinance 11000 which are in effect on the Effective Date of this Agreement. h. As used in this Agreement, "Termination Date" shall mean 25 years from the "Effective Date" (see paragraph 19(m)). 3. Sign Inventory and Removal of Signs. CBS owns or operates all Signs listed on Exhibits B, C and D, and to the best of CBS's knowledge, there are no other Signs within the City that are currently owned or operated by CBS or any of its subsidiaries, affiliated corporations, or affiliated entities. To the best of CBS's knowledge: (a) the information set forth in the attached Exhibits B, C and D accurately describes all of CBS's inventory of Signs within the City; and (b) Exhibits B, C and D identify the Zoning District in which each CBS Sign is located, the number of Sign faces, the location by street address and folio number, and whether the Sign is a roof Sign. With respect to any Sign or Sign structure owned by CBS which is not listed on Exhibits B, C and D, CBS 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 CBS which is not listed on FTL:2656261:3 Page 3 of 32 Exhibits B, C and D, CBS will discontinue operating/managing same as of the Effective Date of this Agreement. CBS will remove Signs from various Zoning Districts including C-1, C-2, and Special Districts, as set forth below. Immediately following the removal of any Sign under this paragraph, CBS will provide the City with written notice of the removal so the City can monitor CBS's compliance with this Agreement. The City will not require any permits for CBS to remove the Signs on the attached exhibits and described below: a. Within three (3) months of the Effective Date of this Agreement, CBS shall, at its sole cost and expense, permanently remove all of the Sign structures with the Sign faces listed on Exhibit B. Included in the Sign structures to be removed are all CBS' Sign structures currently located on SW 40th Street (Bird Road) between USl and Ponce de Leon Boulevard, as identified on Exhibit B. Also listed on Exhibit B is one (1) rooftop Sign structure to be removed, leaving one (1) rooftop Sign structure to be removed in accordance with the provisions of Paragraph 3c(i) below. Provided the City takes no action to compel either the removal of such Signs or their compliance with any City ordinances applicable to Signs during the term of this Agreement and prior to the voluntary removal deadline set forth herein, with respect to each of the Sign structures and the Sign faces listed on Exhibit B, CBS 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. b. CBS has already removed or is currently in the process of removing the Sign structures with the Sign faces listed on Exhibit C. Those Sign structures on Exhibit C not already removed will be removed not later than three (3) months following the Effective Date of FTL:2656261:3 Page 4 of 32 this Agreement. Provided the City takes no action to compel either the removal of such Signs or their compliance with any City ordinances applicable to Signs during the term of this Agreement and prior to the voluntary removal deadline set forth herein, with respect to each of the Signs listed on Exhibit C, CBS 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. Set forth on attached Exhibit D is a list of all CBS Sign structures with Sign faces which will remain in the City (subject to other provisions of this Agreement) following the removal of the Signs listed on Exhibits B and C. (i). On or before the Twenty -Fifth Anniversary (25`h) of the Effective Date, CBS will remove all the remaining rooftop Sign structure listed on Exhibit D, but in any event all remaining rooftop Signs owned by CBS. In other words, upon the Twenty -Fifth Anniversary (25th) of the Effective Date of this Agreement, no rooftop Sign structures shall remain. Provided the City takes no action to compel either the removal of the Sign faces described in this subparagraph 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, CBS 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. FCL:2656261:3 Page 5 of 32 (ii). In addition to the removal of the Signs listed on Exhibits B and C, and all rooftop Signs on Exhibit D, within twenty-five years of the Effective Date of this Agreement, CBS will have removed four (4) double faced Signs and Sign structures and one (I) single faced Sign and Sign Structures from those C-I and Special District Signs listed on Exhibit D. This removal. requirement of C-1 Signs is in addition to any other removal requirement contained in this Agreement. 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, CBS 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 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. d. CBS will immediately remove any Sign that CBS owns within the territorial limits of the City, as of the Effective Date, not listed on Exhibits B, B-1, C or D to this Agreement, and CBS 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 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. Any such extension of this Agreement will require that the fees to be paid by CBS to be renegotiated. FTL:2656261:3 Page 6 of 32 f. lf, during the term of this Agreement, any Sign listed on Exhibit D which is presently operated by CBS (but not owned) is no longer operated by CBS, then said Sign shall no longer be subject to the terms of this Agreement, but shall be subject to all applicable federal, state and local regulations. g. Within thirty (30) calendar days following CBS' removal of any Sign and/or Sign structure under this Agreement, as listed on any Exhibit to this Agreement, CBS shall notify the City of the removal. Additionally, within thirty (30) calendar days following CBS' termination of operation/management of any Sign and/or Sign structure under this Agreement, as listed on any Exhibit to this Agreement, CBS shall notify the City of such discontinuance of operation/management. 4. Amended Permits. In recognition of CBS'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 CBS to transfer the permit rights associated with such Signs to new locations with a maximum of two (2) Sign faces each on the terms and conditions set forth below: a. The City will amend up to a maximum of 15 permits for Signs based on CBS'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. The City acknowledges that CBS shall be entitled to the issuance of 7 Amended Permits upon the removal of the Signs listed on Exhibit B (the "Initial Amended Permits"). For Amended Permits 8-15, CBS shall be given credit for the thirteen (13) Signs listed on Exhibit C. After all credits for the removal of Signs listed in Exhibit C are applied, CBS shall remove the Signs Listed in Exhibit B-1 in the order designated to obtain the remaining Amended Permits, up to a total of 15 Amended Permits. CBS may substitute a FTL:2656261:3 Page 7 of 32 Sign listed in Exhibit B-1 with the City's express consent. For Signs constructed based on credits obtained for the removal of Signs listed in Exhibit B-1, the Sign shall not be erected before the designated Signs from Exhibit B-1 are removed. b. Except for the Initial Amended Permits, Amended Permits will allow Signs only along those expressway segments identified in Exhibit E. Signs built on expressway locations may be built to the Height allowed by FDOT regulations. Except for the Initial Amended Permits, no Amended Permit will allow a Sign in a City -designated "Gateway". Furthermore, except for the Initial Amended Permits, Amended Permits will not allow Signs in any Zoning District more restrictive than C-1. c. Upon application by CBS 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. For all Initial Amended Permits and Amended Permits, CBS will submit FDOT Form 575-010-04 to the City, which will be stamped on the date received. The City's signature on FDOT Form 575-010-04 shall constitute approval of the location of the sign, and no further approvals from the City shall be required. All Sign permits will be processed "first in, first out", such that no other FDOT Forms may be signed or authorized for a subsequent application which would interfere with the location secured by a previously approved FDOT Form 575-010-04. If an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application. d. Each application for an Amended Permit shall comply with all Technical Regulations and all setback and encroachment requirements. Additionally, CBS will place all columns, foundations and overhangs within the Base Building Line. CBS shall immediately FTL:2656261:3 Page 8 of 32 implement the retrofit requirements contained in this Agreement for any structure which is erected pursuant to an Amended Permit; e. CBS will pay the City a one-time permit amendment fee as follows: (a) $20,000 for each Amended Permit for a Sign structure in a C-2 Zoning District; and (b) $50,000 for each Amended Permit for a Sign 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 the underlying district on the Effective Date of this Agreement, unless the ordinance creating the Special District, and passed prior to the Effective Date of this Agreement, specifically prohibits all outdoor advertising Signs. f. During the term of this Agreement, except as set forth in 4(d), above, the City shall take no action to compel any CBS Sign which is the subject of an Initial Amended Permit or Amended Permit under this paragraph, to come into compliance with City Sign ordinances currently or formerly in effect or hereafter adopted. Subject to CBS's payment of the fees set forth herein and its compliance with all applicable FDOT regulations and the other requirements set forth in paragraphs 4(c), 4(d) and 6(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. CBS and the City acknowledge that CBS 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 CBS expressly waives FTL2656261:3 Page 9 of 32 any such claim arising out of such failure. CBS's Amended Permit rights as provided 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 (5) years after the Effective Date of this Agreement. 5. Default. a. CBS 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 CBS of each Sign it claims CBS has failed to remove and it has provided CBS 30 days to cure any such failure. To secure its obligation to remove Signs under this Agreement, CBS shall, on the later of the Effective Date of this Agreement, or 60 days from CBS's receipt of the Initial Amended Permits, post a performance bond in favor of the City and approved by the City, in the total amount of $100,000.00. The performance bond shall not be released until the Termination of this Agreement. b. No later than the Twenty -Fifth (25th) Anniversary of the Effective Date, CBS will deliver to the City a list of the four (4) double faced Signs and Sign structures and one (1) single faced Sign and Sign Structures from those C-1 or Special District Signs on Exhibit D that CBS has removed under paragraph 3c(ii) of this Agreement. If the City determines, after the Twenty -Fifth (25th) Anniversary of the Effective Date, that CBS has not removed four (4) double faced Signs and Sign structures and one (1) single faced Sign and Sign Structures from those listed on Exhibit D, the City shall promptly notify CBS and CBS shall have 30 days to cure. For each day thereafter during which CBS fails to comply, the City shall be entitled to a liquidated FTL:2656261:3 Page 10 of32 penalty of $10,000 per day for each Sign that CBS has failed to remove in accordance with this Agreement. 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 CBS fails to perform its obligations under this Agreement, after written notice and a thirty (30) day cure period, the City shall be entitled to all legal and equitable remedies allowed under Florida law, including, but not limited to, the remedies of' specific performance, and/or an action against the bond. e. In the event the City fails to perform its obligations under this Agreement, after written notice and a thirty (30) day cure period, CBS shall be entitled to all legal and equitable remedies allowed under Florida law, including those remedies provided to the City under paragraph 4d, except an action against the bond. 6. Status of Remainina Signs. Listed on Exhibit D are all of CBS's Signs which may remain in the City of Miami (subject to other provisions of this Agreement). The City shall allow these Signs to remain as constructed in their existing locations, subject to the following: a. By the later of the Effective Date of this Agreement, or 60 days after CBS's receipt of the Initial Amended Permits, CBS 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 CBS copies of permits in its possession for all other Signs listed on Exhibit D. For all Signs listed on Exhibit D, the City will issue a written determination whether a Sign is legal or legally non -conforming during the term of this Agreement, upon CBS providing certification from a licensed electrical contractor certifying compliance with applicable National Electric Code (NEC) requirements. For any Signs which neither the City nor CBS is able to locate a copy of the FTL:2656261:3 Page 11 of 32 original City 'permit. CBS will pay the City a letter issuance fee of $5,000 for each such Sign. During the term of this Agreement, any Sign for which a letter is issued under this paragraph shall be deemed a lawful Sign or lawful nonconforming Sign, as applicable, under all applicable City Codes and ordinances, but only for as long as said Sign is owned and/or operated by CBS or its assigns as assigns are defined in paragraph 19(f) below. Except as provided below, upon completion of the exchange of permits and the issuance of letters, the City shall not require CBS to obtain any further permits or approvals from the City for any of its Signs listed on Exhibit D other than the payment of annual renewal fees as specified herein. CBS shall maintain and keep in good repair its Signs listed on Exhibit D (which are not removed), and the City will issue CBS any permits which may be required for CBS to exercise its maintenance and repair obligations under this paragraph. b. Some of the Signs listed on Exhibit D may not conform with current City ordinances that, among other things, regulate the Height, distance requirements, orientation, or landscaping of Signs ("Non -conforming Signs"). As of the Effective Date of this Agreement (but only for as long as CBS owns and/or operates said Non -conforming Signs, and in no case beyond the Termination Date), all Non -Conforming Signs listed in Exhibit D and all Non -conforming Signs for which the City issues Amended Permits shall be deemed lawfully erected or 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 4(d), above, the City shall take no action to compel the Signs listed on Exhibit D or Signs for which the City issues Initial Amended Permits or Amended Permits 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 CBS owns and/or operates said Signs. In the future, the City may adopt additional FTL:2656261:3 Page 12 of 32 ordinances regulating Signs. During the term of this Agreement, however, the City, shall take no action to compel CBS'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, but only for as long as CBS owns and/or operates said Signs. During the term of this Agreement, all Signs listed on Exhibit D and Signs erected pursuant to Amended Permits 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 CBS owns and/or operates said Signs. During the term of this Agreement CBS may replace, reconstruct, repair, maintain, and upgrade (which shall not include increasing the sizes, number of faces, or any nonconformities) any Sign listed on Exhibit D and Signs erected pursuant to Amended Permits, which are not being voluntarily removed under this Agreement. The City will issue CBS any permit necessary to effectuate the purposes of this paragraph. c Any City Sign regulation adopted prior to or after the Effective Date of this Agreement shall not be applied to diminish CBS's rights under this Agreement. d. The City and CBS agree that the premises permit dated August 17, 1995, a copy of which is attached hereto as Exhibit H, shall be deemed a valid permit for the Signs listed therein, but only for so long as CBS, or its assigns, owns and/or operates said Signs. e. CBS and the City acknowledge that CBS bears the sole risk of finding, securing and maintaining the sites for the Signs it 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 CBS expressly waives any such claims. FTL:2656261:3 Page 13 of 32 7. Initial Payments to City and issuance of Initial Amended Permits. Based on the parties' respective undertakings set forth herein, CBS has agreed to make certain payments to the City and the City has agreed to issue Amended Permits to CBS as provided herein: a. On the Effective Date of this Agreement, CBS will pay the City the annual renewal permit fees for its outdoor advertising Signs for the years 2001, 2002, 2003, 2004, 2005, 2006, 2007 and 2008 totaling $54,400.00. Said fees are calculated as follows: 68 Signs listed on Exhibits B, C & D x $100.00 per Sign x 8 years. Annual permit renewal fees shall not be increased until 2008 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. b. Simultaneously with the execution of this Agreement, the City shall deliver completed and fully executed FDOT Form 575-070-04 for each Initial Amended Permit certifying that, for the address of each of these Sign locations it is or will be in compliance with all duly adopted local ordinances and has been or will be issued the necessary City permits. The executed forms and applications for the Initial Amended Permits shall constitute approval of the location of the signs which are the subject of the Initial Amended Permits, and no further approvals from the City shall be required for the Initial Amended Permits. Upon the execution of this Agreement and CBS's receipt of the FDOT Form 575-070-04, it will pay the City a total of $2,600,000 as follows: (i) a $350,000 ("Permit Fee") for the Initial Amended Permits in accordance with this. Agreement. The Permit Fee is calculated as follows: 7 Initial Amended Permit Signs x $50,000.00 per Sign. CBS shall pay the Permit Fee to the City irrespective of FTL:2656261:3 Page 14 of 32 whether or not Miami -Dade County initiates code enforcement proceedings requiring CBS to remove any Signs; (ii) a Sign Surcharge of $2,250,000. This Sign Surcharge shall be divided into five (5) equal payments of $450,000. Subject to the provisions of 7g below, the initial $450,000 payment shall be due at the same time CBS pays the Permit Fee. Thereafter, there will remain $1,800,000 due to the City for the Sign Surcharge. Subject to the provisions of paragraphs 17(b) and (c) below, CBS shall pay the City $450,000 every year for four years on the anniversary of the date CBS made the initial Sign Surcharge payment. The Sign Surcharge is for the permit rights granted or otherwise confirmed under this Agreement. c. The Sign removal requirements for the Initial Amended Permits shall be deemed satisfied by CBS's removal of the Signs listed in Exhibit B. d. As set forth in Paragraph 4(a) above, CBS shall remove the Signs identified in Exhibit B-1 on a two -for -one basis before constructing a Sign pursuant to Amended Permits 8- 15. e. The Initial Amended Permits issued under this section shall be regarded as part of, and count one for one against, the 15 Amended Permits under paragraph 3 above. f. No Amended Permit shall authorize more than two (2) Sign faces. g. The Permit Fee and the initial Sign Surcharge payment of $450,000.00 shall be placed in an interest bearing escrow account opened jointly by the City and CBS. One seventh (1/7) of the escrowed sum of $800,000.00, plus interest, shall be released to the City upon CBS' receipt of each Initial Amended Permit and the FDOT permit related thereto. If Initial Amended Permits and related FDOT permits are not received by CBS within five (5) years of the Effective Date, CBS shall receive a refund of all remaining funds in the subject escrow account. FTL:2656261:3 Page 15 of 32 8. Annual Payments to City. a. Provided that three or more of the Signs authorized by the Initial Amended Permits have been constructed, commencing on the Effective Date of this Agreement and on the anniversary date of this Agreement for 24 years thereafter, CBS will pay the City the following described annual settlement fees: (i). $150,000 on or before the 30th day following the Effective Date of this Agreement (Period 1); and then (ii). $150,000 per year for the next nine (9) years thereafter on the anniversary of the Effective Date of this Agreement (Period II); and then (iii). $175,000 per year for the next five (5) years thereafter on the anniversary of the Effective Date of this Agreement (Period III); and then (iv). $225,000 per year for the final ten (10) years thereafter on the anniversary of the Effective Date of this Agreement (Period IV). (v). In the event that CBS is unable to build Signs based on the Initial Amended Permits, the above described annual settlement fees shall be reduced by 1/7a' for each Sign not built, subject to the following: [1]. Such reduction shall not occur if the parties are able to agree to a substitute location for the construction of said Sign; or [2]. Such reduction shall not occur if the total of all Initial Amended Permit Signs constructed plus all other Amended Permit Signs constructed equal seven (7) or more. CBS shall continue to make payments to the City as set forth above, provided that at least three of the Signs contemplated by the Initial Amended Permits remains FTL:2656261:3 Page 16 of 32 erected. If a Sign erected pursuant to an Initial Amended Permit or Amended Permit issued under paragraph 4 is removed by City or state governmental action prior to the Termination Date, without CBS receiving just compensation therefor, CBS will be able to relocate such Sign structure in accordance with paragraph 8(b)(i) below, and no change in the City's Zoning ordinances shall affect CBS'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 the Termination Date, any CBS Sign for which the City has issued CBS an Initial Amended Permit is removed as a result of City or state governmental action without the payment to CBS of just compensation, and the Sign cannot be relocated as provided herein, the annual settlement fees to the City shall be reduced by I/7t for each Initial Amended Permit Sign so removed. If, prior to the Termination Date, any Sign for which the City has issued CBS an Amended Permit is removed as a result of non -governmental action, CBS will not be relieved of its obligation to pay annual settlement fees to the City. In such circumstances, however, with respect to the Sign structures: (i). CBS may relocate a Sign to a new location within the same or less restrictive Zoning District and in a location allowed under this Agreement, 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; and (ii). The City will continue to receive annual settlement payments for any such relocated Sign. FTL:2656261:3 Page 17 of 32 c. Annual permit renewal fees shall not be increased until 2008 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. 9. 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 1-beams, shall be replaced with monopole structures on a one structure per month basis, commencing the month following the Effective Date of this Agreement until all multiple 1-beam support structures have been replaced. If CBS 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 CBS attesting that the property owner has refused to consent and that CBS does not have the contractual right to retrofit. CBS shall remove all Signs over 30 feet in Height not retrofitted within 20 years after the Effective Date of this Agreement. 10. Over Height 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, CBS 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. 11. Replacement and Relocation of Signs. a. In the event it becomes necessary for CBS to replace any C-2 Sign listed on Exhibit D, the City will authorize CBS to replace such C-2 Sign on the same site or to relocate FTL:2656261:3 Page 18 of 32 such Sign within an allowed geographical location in the same Zoning District according to relocation standards which may 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 the Termination Date. During the term of this Agreement, any City Sign law promulgated prior to the Termination Date, shall not be applied retroactively to CBS. 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. CBS and the City acknowledge that CBS 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 CBS expressly waives any such claim. CBS'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. b. CBS owns a bulletin Sign located at 1200 Biscayne. Boulevard, which has been removed at the City's request. In replacement for said removed Sign, CBS is entitled to construct the Signs referenced in Exhibit G-1 hereto. CBS shall not be required to pay any permit or settlement fees related to said replacement Signs. This relocated Sign shall not be deemed to be one of the 15 Amended Permit Signs referred to in Paragraph 4 of this Agreement. With respect to this Sign, and upon receipt of all required City approvals for the relocation of this Sign, CBS 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(12), 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. Further, FTL:2656261:3 Page 19 of 32 the removal and relocation of the 1200 Biscayne Boulevard Sign shall not satisfy CBS's obligation to remove one Rooftop Sign within the first six months of the Effective Date of this Agreement under paragraph 3(c)(i) above. 12. Public Service Projects. a. For the next 25 years, CBS will, as space is available, provide outdoor advertising space to the City within the limits of the City of Miami, and within other major media markets throughout the United States, with a "minimum retail value" of no less than $50,000 per year at no cost to the City, for the display of City -prepared and approved advertising materials, subject to the following: (i) The City shall be responsible for providing CBS with any Sign copy the City would like displayed, and will pay the cost of installing Sign copy at the same rate that all other customers pay. (ii). CBS's major media markets in the United States are described in Exhibit K. (iii). If the City wishes to initiate a campaign, it will so notify CBS of the "target" market(s) and CBS shall, within ten (10) days, furnish a list of available locations in said market(s) for the City's review and approval. (iv). CBS shall be entitled to relocate the City's copy from time to time (at CBS's expense) as locations are sold to full -paying advertisers. In such event, CBS would either relocate the City's approved message to an alternate acceptable location; or, if the message is not time -critical in the sole opinion of the City, remove it until an acceptable alternate becomes available. FTL:2656261:3 Page 20 of 32 (v). If the annual $50,000 minimum retail value is not achieved by the City during a particular year due to the failure of CBS to furnish sufficient locations acceptable to the City, any unused portion of the annual minimum retail value will roll over to the following year until used by the City. (vi). If the annual minimum retail value is not achieved by the City during a particular year due to the City's failure to furnish its copy in a timely fashion or to timely select sites, then the unused portion of the annual minimum retail value will not roll over to the following year, and will be deemed abandoned. (vii). The Outdoor Rates published by CBS each year shall be utilized for calculating the retail value received by the City each year. b. Commencing 120 days following the Effective Date of this Agreement, and on each anniversary of the Effective Date of this Agreement thereafter, for so long as this Agreement remains in effect, CBS will annually fund a Neighborhood Enhancement Account ("NEA") in the amounts, and for the purposes, set forth below: (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 CBS 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 CBS may designate. The parties agree that the NEA funds should be used to assist the community needs of the citizens of Miami. If the City and CBS are unable to agree upon the recipients by March 31" of each year, the Executive Director of FTL:2656261:3 Page 21 of 32 the United Way of Miami -Dade shall select the recipients utilizing the criteria set forth in this paragraph. 13. 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 CBS's Signs, identified in Exhibits B, C & D, 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 CBS's Signs. The documents vacating and setting aside the enforcement orders and any liens shall be in a recordable form satisfactory to CBS 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 B,•C & D, with each party to bear its own costs and attorneys' fees. CBS shall take all steps necessary to immediately dismiss with prejudice all court cases and appeals it has brought against the City with each party to bear its own costs and attorneys' fees, and the City shall take all steps necessary to immediately dismiss with prejudice all appeals it has brought against CBS or property owners, with each party to bear its own costs and attorneys' fees. 14. Property Owners Protected. During the term of this Agreement, so long as CBS complies with the terms and conditions of this Agreement, the City will take no action to enforce its Sign ordinances against the ownersof the property on which CBS's Signs are located, as to CBS's Signs. Within 60 days of the Effective Date 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 CBS has been settled. The text of such notice shall be approved by CBS. FTL:2656261:3 Page 22 of 32 15. 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. 16. Non -Waiver 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, nor shall it affect CBS's obligation to comply with applicable structural, electrical and engineering requirements and other health and safety requirements. 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 CBS and CBS shall immediately correct the problem, and if CBS 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 CBS as grounds to invalidate this Agreement. Notwithstanding anything to the contrary in this Agreement, CBS's limited waiver of its statutory and constitutional rights to receive just compensation upon removal of certain Signs identified in Exhibits B and C herein is expressly conditioned upon the City's issuance of the Initial Amended Permits. b. Except as expressly provided in Paragraph 3 herein, nothing in this Agreement affects CBS's right, if any, or the City's obligation to pay, if any, just compensation if the City elects to remove any lawfully erected Sign belonging to CBS. 17. Further Assurances and Cooperation. FTL:26562 61 :3 Page 23 of 32 a. The parties recognize that the City may elect to amend the zoning ordinances and Code of the City of Miami to be consistent with this Agreement. CBS will assist in this effort as requested by the City. The City agrees to prepare and execute such additional documents, and to take such other actions as may be necessary to effectuate the purposes of this Agreement, and CBS will assist in this effort as requested by the City. As long as the City complies with this Agreement, neither CBS, nor any of its subsidiaries, affiliated corporations or entities, or parent corporations, or assignees, will sue the City on Sign issues, or 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 CBS's Signs and the Amended Permits issued pursuant to this Agreement. 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. b. If within five (5) years of the Effective Date Miami -Dade County (the "County") initiates code enforcement or other proceedings against CBS or the City to prevent the construction of a Sign under an Initial Amended Permit or an Amended Permit or to cause the removal of any expressway Sign owned or operated by CBS (collectively the "County Actions"), then (for a period of seven (7) years from the date of the first County Action) all payments subsequently due under this Agreement for the Sign Surcharge (other than the initial $450,000 payment described in Paragraph 7(b) above), shall be paid into a mutually acceptable escrow account. If the County Actions result in CBS being prevented from constructing a Sign pursuant to an Initial Amended Permit or Amended Permit or in CBS being forced to remove a Sign constructed pursuant to an Initial Amended Permit or Amended Permit or in CBS being forced to remove an expressway Sign listed in Exhibit D, then for each such affected sign there shall be FTL:2656261:3 Page 24 of 32 disbursed to CBS from the escrow account a sum of $450,000, plus any interest accrued as to that sum, but no more than currently in the escrow account. All remaining sums in the escrow account shall be disbursed as follows: (i) if the City enacts an opt -out ordinance described in Paragraph I7(c) below, then all sums in the escrow account shall be disbursed to the City immediately upon the opt -out ordinance becoming effective. (ii) if the City fails to enact an opt -out ordinance within the above - described seven (7) year period, then all sums remaining in the escrow account shall be disbursed to the City at the end of the seven (7) year period (as full consideration from CBS to the City under this Agreement), and CBS shall not be obligated to make any further payments under this Agreement (including, but not limited to, the annual payments set forth in Paragraph 8 above), except for annual permit renewal fees. Further, CBS shall have no further obligation under Paragraph 12(a) above. c. Notwithstanding the provisions of Paragraphs 7(b)(ii) and 17(b) above, in the event that the City enacts an ordinance "opting -out" of the County's Sign code, as allowed by the County's Sign code, CBS shall pay in full the remaining unpaid portion of the Sign Surcharge within thirty (30) days of the effective date of the said City ordinance. 18. 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 CBS: FTL:2656261:3 Mr. Joseph Little Director, Real Estate Southeast CBS Outdoor, Inc. 6904 Cypress Park Drive Tampa, FL 33634 Telephone: (813) 888-5541 Fax: (813) 884-3531 Page 25 of 32 with a copy to: To the City of Miami: with a copy to: David Posy, Esq. Sr. Vice President and General Counsel CBS Outdoor, Inc. 405 Lexington Avenue New York, New York 10174 Telephone: (212) 297-6400 Facsimile: (212) 370-1817 Glenn N. Smith, Esq. Ruden, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Boulevard Post Office Box 1900 Fort Lauderdale, FL 33302 Telephone: (954) 527-2466 Facsimile: (954) 333-4066 Pedro G. Hernandez, City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 Telephone: (305) 250-5300 Julie O. Bru, Esq. City Attorney City of Miami 444 S.W. 2nd Avenue Suite 945 Miami, Florida 33133 Telephone: (305) 416-1800 Facsimile: (305) 416-1801 19. Miscellaneous. a. Reserved. b. Construction and Law Governing. This Agreement was drafted by both parties, and therefore any ambiguity shall not be construed against either 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. FTL:2656261:3 Page 26 of 32 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. 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. CBS shall have the right of assignment of rights and obligations under this Agreement. However, no attempted assignment by CBS 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 CBS 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 proposed assignment if the assignee does not fully adopt the terms of this Agreement. Any such assignment shall not relieve CBS of its obligations under this Agreement, including, without limitation, the responsibility of removing four (4) double face C-1 Signs and Sign structures and one (1) single faced C-1 Sign and Sign structure from those C-1 and Special District Signs listed on Exhibit D upon the 25th Anniversary of the Effective Date. Notwithstanding the foregoing, no approval by FTL:2656261:3 Page 27 of 32 the City Commission shall be required for any assignment to any entity controlled, controlling or under common control with CBS as to the acquirer of substantially all of the assets of CBS in the City, provided such assignee assumes the obligations of CBS under this Agreement. Any attempted assignment in violation of this Section shall be void. g. CBS 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 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. h. Amendments. 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. 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 other provision hereof. The failureby 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 CBS, 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 Signs listed in FTL:2656261:3 Page 28 of 32 Exhibits B, B-1, C & D or subject to Initial Amended Permits or Amended Permits being located on property within the City limits, 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 not listed in Exhibits B, B-1, C & D, or against Signs not subject to an Initial Amended Permit or Amended Permit. In addition, the City does not waive its right to enforce its ordinances against Signs not listed in Exhibits B, B-], C & D, or against Signs not subject to an Initial Amended Permit or Amended Permit if the removal of those Signs is required by this Agreement. These release provisions shall also operate to release owners of property upon which CBS's Signs are located, to the same extent CBS is released. (ii). CBS, for itself, and for the owners of the property where its Signs are located, and to the extent CBS has been so authorized by said owners, 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, CBS 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 CBS 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. j, Compliance With Electrical and Structural Codes, Setbacks and Encroachments Indemnification. CBS acknowledges and agrees that this Agreement does not in any way alleviate CBS's responsibility to comply with all Technical Regulations in removing, relocating, maintaining, repairing or in reconfiguring any Sign face or Sign structure, and CBS shall not be excused from complying with the Technical Regulations, and set back and FTL:2656261:3 Page 29 of 32 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, CBS will ensure that all columns, foundations and overhangs are within the Base Building Line. The City will issue CBS any permits or authorization that may be required to enable CBS to comply with this paragraph. Further, CBS will indemnify and hold the City harmless and defend the City from any injury, or claim of injury, either to person or property, that results from a CBS Sign structure or associated Sign face. k. 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 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. 1. Integrated Agreement. Each party's obligations hereunder are dependent upon performance of the material obligations of the other party. m. Effective Date. This Agreement shall become effective as of the date it is approved by the City Commission of the City of Miami (following the expiration of the Mayor's veto period - unless a veto is exercised), and is signed by the City Manager and CBS (hereinafter the "Effective Date"). n. reserved. o. reserved. P. Percentages. Whenever calculations involving percentages are utilized in this Agreement, the resulting figure shall be rounded up to the nearest whole number. FTL:2656261:3 Page 30 of 32 CITY OF MIAMI CBS OUTDOOR, INC. By: By: City Manager Its: Dated: , 2008. Attest: City Clerk Dated: 2008. Approval as to form and correctness: Julie O. Bru, City Attorney Dated: , 2008. FTL:26S626i:3 Dated: , 2008. Page 31 of 32 Exhibit List Exhibit A — Gateways map Exhibit B — Signs to be Removed in Exchange for Initial Amended Permits Exhibit B-1 — Signs to be Removed in Exchange for Amended Permits 8-15 Exhibit C — Signs Already Removed or in the Process of being Removed Exhibit D — Signs to Remain/Managed Locations Exhibit E — Expressway Segments Exhibit F — Reserved Exhibit G — Reserved Exhibit G-1 - Replacements for 1200 Biscayne Boulevard Sign Exhibit H — Premises Permit Dated 8/17/95 Exhibit I - Reserved Exhibit J — Reserved Exhibit K — CBS' Major U.S. Media Markets FTL:2656261:3 Page 32 of 32