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HomeMy WebLinkAboutMemorandumCITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: George K. Wysong III, City Attorney k.Afrs,t2z- DATE: September 25, 2025 RE: City Commission Meeting —September 25, 2025 Proposed Authorization to Settle Litigation in the Matter of Jorge M. Perez Art Museum of Miami -Dade County, Inc., d/b/a Perez Art Museum Miami v. City of Miami, Case No. 2024-12120-CA-01 to Include a Minimum Annual Payment of $500,000.00 by Perez Art Museum Miami to City of Miami, Limitations on the Operation of the Digital Sign, and Penalties for Violations of the Limitations, in Exchange for the City Manager's Consent to the License Agreement Between Perez Art Museum and Orange Barrel Media Pursuant to Section 16.1 of the Lease, in Full and Complete Settlement of Any and All Claims and Demands Between the Parties, Including All Claims for Attorneys' Fees and Costs for Each Party, Upon the Execution of a General Release of all Claims and Demands Pending and Dismissals with Prejudice. The attached proposed Resolution seeks authorization to enter into the above - described Settlement Agreement in the Matter of Jorge M. Perez Art Museum of Miami - Dade County, Inc., d/b/a Perez Art Museum Miami v. City of Miami, Case No. 2024- 12120-CA-01, which shall include a minimum annual payment of $500,000.00 by Perez Art Museum to the City of Miami, limitations on the operation of the Digital Sign at issue in the litigation, and penalties for violations of the limitations, in exchange for the Manager's consent to the License Agreement between Perez Art Museum Miami and Orange Barrel Media pursuant to Section 16.1 of the Lease, in full and complete settlement of any and all claims and demands between the parties, including all claims for attorneys' fees and costs for each party, upon the execution of a general release of all claims and demands pending and dismissals with prejudice of the parties' respective claims against each other. This lawsuit was brought by Perez Art Museum Miami against the City of Miami following the City's issuance of a Notice of Default pursuant to Section 20.1 of the Lease between the City and Perez Art Museum Miami ("the Lease") based on, inter alia, Perez Art Museum Miami's failure to provide the City with a copy of the License Agreement that it entered into with non-party Orange Barrel Media, LLC (OBM) ("the License Agreement") before executing same. The License Agreement with OBM was aimed at erecting and operating a large digital commercial sign on Perez Art Museum Miami's leased premises owned by the City. Perez Art Museum Miami filed a lawsuit alleging a claim for declaratory and injunctive relief. The City, in turn, filed an Answer asserting several affirmative defenses as well as a counterclaim for declaratory relief against Perez Art Museum Miami. The Office of the City Attorney has investigated and evaluated this case and has approved the recommendation of this settlement. cc: Art Noriega, V, City Manager Miriam M. Santana, Agenda Coordinator Attachment(s) GKW/KRJ City of Miami Legislation Resolution Enactment Number: R-25-0414 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 18137 Final Action Date:9/25/2025 A RESOLUTION OF THE MIAMI CITY COMMISSION AUTHORIZING THE SETTLEMENT OF JORGE M. PEREZ ART MUSEUM OF MIAMI-DADE COUNTY, INC., D/B/A PEREZ ART MUSEUM MIAMI VS. CITY OF MIAMI, IN THE CIRCUIT COURT IN AND FOR MIAMI-DADE COUNTY, CASE NUMBER 2024-12120-CA-01, SETTLEMENT TO INCLUDE A MINIMUM ANNUAL PAYMENT OF $500,000.00 BY PEREZ ART MUSEUM TO CITY OF MIAMI, LIMITATIONS ON THE OPERATION OF THE DIGITIAL SIGN, AND PENALTIES FOR VIOLATIONS OF THE LIMITATIONS, IN EXCHANGE FOR THE MANAGER'S CONSENT TO THE LICENSE AGREEMENT BETWEEN PEREZ ART MUSEUM AND ORANGE BARREL MEDIA PURSUANT TO SECTION 16.1 OF THE LEASE, IN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS BETWEEN THE PARTIES, INCLUDING ALL CLAIMS FOR ATTORNEYS' FEES AND COSTS FOR EACH PARTY, UPON THE EXECUTION OF A GENERAL RELEASE OF ALL CLAIMS AND DEMANDS PENDING AND DISMISSALS WITH PREJUDICE. WHEREAS, Jorge M. Perez Art Museum of Miami -Dade County, Inc. ("PAMM") entered into a license agreement with Orange Barrel Media, LLC ("LICENSE AGREEMENT"), for the operation of dual -sided free-standing digital sign (the "DIGITAL SIGN") on July 15, 2022; and WHEREAS, the Lease Agreement (Miami Art Museum Project) ("LEASE") between PAMM and the City of Miami ("City"), specifically Section 16.1, requires written consent from the City for license agreements between PAMM and any third party; and WHEREAS, the City did not provide PAMM with written consent to enter into the LICENSE AGREEMENT and a Notice of Default was sent on May 30, 2024, noting the lack of compliance with LEASE Section 16.1; and WHEREAS, the DIGITAL SIGN is a non -conforming improvement; and WHEREAS, PAMM filed a declaratory and injunctive action in the Circuit Court in and for Miami -Dade County, Case Number 2024-12120-CA-01, based upon the Notice of Default and to which the City filed a counterclaim for declaratory relief; and WHEREAS, the parties have reached a settlement of each party's action, including terms of the CITY's consent to the LICENSE AGREEMENT and the non -conforming status of the DIGITAL SIGN; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as fully set forth in this Section. Section 2. PAMM shall make an annual payment to the City of Miami with a payment of $500,000.00 for 2025 which shall increase by 2% each year throughout the term of the LICENSE AGREEMENT. Section 3. PAMM shall ensure the DIGITAL SIGN shall be fully darkened nightly between the hours of 11:OOpm and 7:00am. Section 4. PAMM shall ensure from sunset to sunrise, the DIGITAL SIGN shall be modulated so that the brightness does not exceed 500 nits. The time of sunset to sunrise shall be established by the Miami Office of the National Weather Service. The DIGITAL SIGN face must have ambient light monitors to automatically adjust the brightness level of the DIGITAL SIGN face based upon the ambient lighting conditions. The maximum increase to ambient lighting shall be less than 0.3 foot-candles at 250 feet from the DIGITAL SIGN face. Section 5. Violations of Section 2, 3 and 4 herein shall be subject to a penalty as set forth in Chapter 2, Article 10 of the City Code and be subject to the appellate procedures provided in the same. Section 6. The parties agree that the DIGITAL SIGN is a nonconforming improvement. Section 7. The City Manager is authorized' to enter into a release, including indemnity and hold harmless by PAMM of the City of Miami regarding the operation and use of the DIGITAL SIGN, including the terms within the settlement agreement. Section 8. The City Manager is authorized' to execute a settlement agreement, in a form acceptable to the City Attorney, and is further authorized to consent to the LICENSE AGREEMENT on these terms. Section 9. This Resolution shall become effective immediately upon its adoption. APPROVED AS TO FORM AND CORRECTNESS: 1 The herein authorization is further subject to compliance with all legal requirements that may be imposed, including but not limited to, those prescribed by applicable City Charter and City Code provisions.