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2005-039 RESOLUTION NO. 2005-39 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, APPROVING THAT CERTAIN "AGREEMENT CONCERNING COMMERCIAL ADVERTISING SIGN, CHARTER SCHOOL REVENUE", BETWEEN THE CITY OF AVENTURA AND CLEAR CHANNEL OUTDOOR, INc., CONCERNING PROCESSING OF APPLICATION FOR AMENDMENT OF CONDITION APPLICABLE TO PREVIOUSLY APPROVED BILLBOARD; PROVIDING FOR A PORTION OF COMMERCIAL ADVERTISING REVENUE TO BE UTILIZED FOR CITY OF A VENTURA CHARTER SCHOOL PROGRAM, IN THE EVENT THAT MODIFICATION OF CONDITION IS AUTHORIZED BY THE CITY COMMISSION; PROVIDING FOR IMPLEMENTATION; PROVIDING FOR EFFECTIVE DATE. WHEREAS, the City Commission of the City of Aventura, Florida, finds that the approval of the attached Agreement Concerning Commercial Advertising Sign, Charter School Revenue (the "Agreement") is in the best interest of the City. NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COMMISSION OF THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS: Section 1. Recitals. That the above stated recital is hereby confirmed and adopted. Section 2. A!!reement Approved. That the attached Agreement, in substantially the form attached hereto, is hereby approved, and the City Manager is authorized to execute the Agreement on behalf of the City, once approved as to form and legal sufficiency by the City Attorney. Section 3. Implementation. That the City Manager is authorized to take any action which is necessary in order to implement the purposes of this Resolution and the Agreement. Section 4. Effective Date. That this Resolution shall become effective immediately upon adoption hereof. The foregoing Resolution was offered by Commissioner Joel, who moved its adoption. The motion was seconded by Commissioner Diamond, and upon being put to a vote, the vote was as follows: Commissioner Bob Diamond Commissioner Billy Joel Commissioner Harry Holzberg Commissioner Michael Stem Commissioner Luz Urbáez Weinberg Vice Mayor Zev Auerbach Mayor Susan Gottlieb yes yes yes yes yes yes yes Resolution No. 2005-;19 Page 2 PASSED AND ADOPTED this 6th day of September, 2005. Attest: Approved as to Form and Legal Sufficiency: r~ City Attorney 2 AGREEMENT CONCERNING COMMERCIAL ADVERTISING SIGN CHARTER SCHOOL REVENUE THIS AGREEMENT is entered into this day of September, 2005 by and between the City of Aventura, a Florida municipal corporation (the "City") and Clear Channel Outdoor, Inc., a Florida corporation ("Clear Channel"). WITNESSETH: WHEREAS, pursuant to the City Resolution No. 2003-06 as adopted on January 7, 2003, the City Commission granted Clear Channel's application for a variance to enable the modification of that certain billboard which was situated at the southwest comer of the intersection of Biscayne Boulevard (U.S. 1) and Ives Diary Road in the City; and WHEREAS, pursuant to the variance Clear Channel has implemented and installed a billboard (the "Billboard") at such location which is in compliance with the variance; and WHEREAS, pursuant to the variance, the City imposed a condition (the "Condition") that no advertising copy would be placed on the back of the billboard (the "Billboard Back"), other then a "Welcome to the City of A ventura" message if desired by the City; and WHEREAS, Clear Channel desires the Condition to be modified so that the Billboard Back may also be utilized for a commercial advertising purpose by Clear Channel, subject to the requirement that one half of the net revenue derived from the placement or sale of advertisements upon the Billboard Back shall be provided to the City for the use of the City of Excellence Charter Schools of the City, subject to the City Commission's approval of modification of the Condition, in accordance with Commission procedures and rules. NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS HEREOF, THE PARTIES HERETO DO COVENANT AND AGREE AS FOLLOWS: I. Purpose. Clear Channel desires to apply to City for modification of the Conditions of the variance granted pursuant to City Resolution No. 2003-06 (the "Resolution"), for the purpose of enabling the Billboard Back, as depicted on Exhibit "An attached hereto and incorporated herein, to be utilized for commercial advertising purposes, along with the "Welcome to the City of A ventura" message on the Billboard Back. Specifically, if the modification of the Condition is granted, the southern most panel of the Billboard Back may be used for commercial advertising purposes, while the northern most panel shall be utilized for the "Welcome to the City of Aventura" message, unless the City Commission, at its discretion, subsequently determines to authorize the entire Billboard Back to be utilized for such commercial advertising purposes, as described herein. II. Obligations of Clear Channel. a. Within thirty (30) days after execution of this Agreement, Clear Channel shall apply to the City for modification (the "Modification") of the Condition of the variance concerning the Billboard as described above. b. Clear Channel shall diligently pursue such Modification of the Condition of the Resolution and shall provide any necessary data 2 or information in support of such Modification application, as requested by the City Manager. c. In the event that the City Commission grants the Modification, Clear Channel shall proceed to market and sell space on the Billboard Back as authorized herein and by such approved Modification, and shall dedicate and pay to City at least fifty (50%) percent of all net revenue received from the use of the Billboard Back for commercial advertising purposes. Revenue payable to City hereunder shall be paid in monthly installments by Clear Channel to the City and shall be utilized by City solely for purposes of the operational or capital expenses of the City of Excellence Charter Schools of the City as determined by the City Manager. d. Clear Channel specifically agrees that the Billboard Back shall not be utilized for commercial advertisements which include or refer to alcoholic beverages, tobacco products, pari-mutuel gaming, adult entertainment uses, or any use which is reasonably objectionable to City in light of promotion in proximately to the "Welcome to the City of Aventura" message or in light of City's interest in the health, safety and welfare of its residents. Prior to displaying or installing any commercial advertising copy which may contravene the restrictions stated herein above, Clear Channel shall first provide a copy or proof of such proposed advertisement to the City 3 III. Manager for his review in accordance with the provisions of Section III(e) of this Agreement. Clear Channel shall not display any advertising copy which is timely objected to by the City Manager. Obligations of City. a. City shall promptly process Clear Channel's Modification application pursuant to Section 31- 76(f) of the City Code. b. The City Commission shall make its decision upon the Modification in accordance with the pertinent variance Condition Modification criteria provided by Section 31-76(f) of the City Code, and the quasi-judicial procedures of the City. c. In the event that the City Commission grants the Modification, the City Manager shall confirm in writing to Clear Channel that Clear Channel is authorized to use the designated portion of the Billboard Back for commercial advertising purposes. d. The City's share of advertising revenue provided by Clear Channel to City pursuant to this Agreement, shall be utilized by City solely for the purpose of operational or capital expenditure items for the City Charter School program, as determined by the City Manager. e. Promptly upon submittal of the proposed advertising display copy or proof in accordance with Section II (d) above, the City Manager shall advise Clear Channel in writing, as to whether the City has any objection to the proposed display. This written response to 4 Clear Channel shall be made within three (3) business days of receipt of the proposed copy from Clear Channel. IV. Term of Agreement. This Agreement shall be in full force and effect commencing upon the date of execution hereof by both parties, and shall terminate upon full performance of each of the covenants hereof. However, in the event that the Modification is not granted, this Agreement shall terminate on the day following rendition of the denial of such Modification request, and shall be of no further force or effect. V. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The parties agree to submit to service of process and jurisdiction in the State of Florida for any controversy or claim between the parties which arises out of or is related to this Agreement or a breach of this Agreement. Venue for any court action between the parties for any such controversy arising from or related to this Agreement shall be in the Eleventh Judicial Circuit Court, in and for Miami-Dade County, Florida. The parties hereby voluntarily waive any right to trial by jury for any litigation arising hereunder between the parties. VI. No Precedent; No Admission. A. Since the approval or denial of the Modification application is a quasi-judicial governmental matter, Clear Channel recognizes that nothing in this Agreement shall be construed to commit City to grant the Modification and that, instead, City solely covenants that it shall process and consider the application for Modification in accordance with the City Code and applicable law. 5 B. Clear Channel recognizes that City's grant, if any, of the Modification described herein shall not establish any precedent which supports or justifies the grant of any other or subsequent Modification. Entirety of Agreement. VII. A. This Agreement incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein. The parties hereto agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this Agreement, and that this Agreement contains the entire agreement between the parties as to the matters contained herein. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that any oral representations or modifications concerning this Agreement shall be of no force or effect, and that this Agreement may be modified, altered or amended only by written agreement duly executed by both parties hereto or their authorized representatives. Nothing in this Agreement shall be construed to affect or impair B. those certain previous agreements of the parties, including the September 3, 2002 Agreement Concerning Commercial Advertising Signs and the February 14, 2003 Covenant, each of which is on file in the Office of the City Clerk. VIII. Headings. 6 Captions and headings in this Agreement are for ease of reference only and do not constitute a part of this Agreement and shall not affect the meaning or interpretation of any provisions herein. IX. Rights of Others. Nothing in this Agreement expressed or implied is intended to confer upon any person other than the parties hereto, any rights or remedies under or by reason of this Agreement. x. Representation by Clear Channel. Clear Channel represents that: (1) this Agreement has been duly authorized, executed and delivered by Clear Channel; and (2) it has the required capacity and authority to perform this Agreement and to bind itself to the provisions hereof. XI. Representation by City. City represents that: (1) this Agreement has been duly authorized, executed and delivered by the City; and (2) it has the required power and authority to perform this Agreement and to bind itself to the provisions thereof. XII. Waiver. There shall be no waiver of any right related to this Agreement unless in writing, signed by the party waiving such right. No delay or failure to exercise a right under this Agreement shall impair such right or shall be construed to be a waiver thereof. Any waiver shall be limited to the particular right so waived and shall not be deemed a waiver of the same right at a later time, or of any other right under this Agreement. XIII. Invalidity of Provisions, Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the 7 remainder of such provision or the remaining provisions of this Agreement, provided that the material purposes of this Agreement can be determined and effectuated. XIV. Notice. Notices to Clear Channel provided for herein shall be sufficient if sent by federal express or certified mail, return receipt requested, postage pre-paid, addressed to: Clear Channel Outdoor Jeff Andres, Vice President 5800 N.W. 77th Court Miami, FL 33166 and notices to City, if sent by federal express or certified mail, return receipt requested, postage pre-paid addressed to: Mr. Eric M. Soroka, City Manager City of Aventura 1900 West Country Club Drive Aventura, FL 33180 or such other respective address as the parties may designate to each other in writing from time to time. xv. Successors Each party hereto and their successors and assigns are hereby bound to the provisions hereof. XVI. Default. 1. Clear Channel Event of Default. Without limitation, failure by Clear Channel to substantially fulfill any of its material obligations in accordance with this Agreement, shall constitute a "Clear Channel Event of Default". If a Clear Channel Event of Default should occur, City shall have all of the following rights and remedies which it may exercise singly or in combination: 8 a. The right to declare that this Agreement together with all rights granted to Clear Channel hereunder are terminated, effective upon such date as is designated by City; provided, however, that an Event of Default shall be defined to consist of a default that shall occur by the default in performance of any of the covenants and conditions required herein to be kept and performed by Clear Channel and such default continues for a period of fifteen (15) days after receipt of written notice from City of said default. Provided that (1) if the nature of the default is such that it cannot be cured in a period of fifteen (15) days from the date of the default and (2) Clear Channel shall commence good faith efforts to cure such default no later than fifteen (15) days after such notice, and (3) such efforts are prosecuted to completion, to City's reasonable satisfaction, then it shall be deemed that no Event of Default shall have occurred under the provisions of this paragraph. b. Any and all rights provided under the laws of Florida. 2. City Event of Default. Without limitation, the failure by City to substantially fulfill any of its material obligations in accordance with this Agreement, shall constitute a "City Event of Default". If a City Event of Default should occur, Clear Channel shall have the following rights and remedies which it may exercise singly or in combination: a. The right to declare that this Agreement together with all rights granted to City hereunder are terminated, effective upon such date as designated by Clear Channel; provided, however, that an Event of Default shall be defmed to consist of default that shall occur by 9 the default in performance of any of the covenants and conditions required herein to be kept and performed by City and such default continues for a period of fifteen (15) days after receipt of written notice from Clear Channel of said default. Provided that (I) if the nature of the default is such that it cannot be cured in a period of fifteen (IS) days from the date of the default, and (2) City shall commence good faith efforts to cure such default, no later than fifteen (15) days after such notice, and (3) such efforts are diligently prosecuted to completion to Clear Channel's reasonable satisfaction, then it shall be deemed that no Event of Default shall have occurred under the provisions of this paragraph. b. Any and all rights provided under the laws of the State of Florida. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written, in several counterparts, each of which shall be deemed an original, but all constituting only one agreement. CITY OF A VENTURA: ATTEST: By: By: City Manager City Clerk APPROVED AS TO FORM AND LErn/~N Y: City Attorney CLEAR CHANNEL OUTDOOR, INC. ATTEST: 10 By~F ~ (Seal) Name: .;JÄ.5f7at-- ::fðW~¡J Title: ?~-;IO&:Jr, b 1 ~M $;PL cL,=, :5 32800llagreementslConceming Conuneroial Advertising Sign 7.28.05 11 Secretary (Print Name) i? ::T