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2007-020 RESOLUTION NO. 2007-20 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA AUTHORIZING THE CITY MANAGER TO EXECUTE AND OTHERWISE ENTER INTO THAT CERTAIN AMENDMENT TO AGREEMENT, AS ATTACHED HERETO, BY AND BETWEEN THE CITY OF AVENTURA AND CLEAR CHANNEL OUTDOOR, INC., RELATING TO COMMERCIAL ADVERTISING SIGN; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO CARRY OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, THAT: Section 1. The City Manager is hereby authorized on behalf of the City to execute and otherwise enter into that certain Amendment to Agreement, as attached hereto, by and between the City of Aventura and Clear Channel Outdoor, Inc. relating to commercial advertising sign. Section 2. The City Manager is hereby authorized to do all things necessary and expedient to carry out the aims of this Resolution. Section 3. This Resolution shall become effective immediately upon adoption. The foregoing resolution was offered by Commissioner Joel, who moved its adoption. The motion was seconded by Commissioner Auerbach, and upon being put to a vote, the vote was as follows: Commissioner Zev Auerbach yes Commissioner Bob Diamond yes Commissioner T eri Holzberg yes Commissioner Billy Joel yes Commissioner Luz Urbaez Weinberg yes Vice Mayor Michael Stern yes Mayor Susan Gottlieb yes Resolution No. 2007-...l!> Page 2 PASSED AND ADOPTED this 10th day of April, 2007. ATTEST: APPROVED AS TO LEGAL SUFFICIENCY: r-i~kA CITY ATTORNEY EMS/tms AMENDMENT TO AGREEMENT CONCERNING COMMERCIAL ADVERTISING SIGN THIS AMENDMENT TO AGREEMENT is entered into this day of April, 2007 by and between the City of Aventura, a Florida municipal corporation (the "City") and Clear Channel Outdoor, Inc., a Florida corporation ("Clear Channel"). WIT N E SSE T H: 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 vanance 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 vanance, 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 subsequently requested that the Condition 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, III accordance with Commission procedures and rules; and WHEREAS, in accordance with the Agreement Concerning Commercial Advertising Sign! Charter School Revenue (the" Agreement") which was entered into between the City and Clear Channel on September 6, 2005, Clear Channel subsequently applied for modification ofthe Condition (the "Modification"); and WHEREAS, on November 1, 2005, the Modification was granted pursuant to Resolution No. 2005-70, so as to enable the placement of commercial advertising on the southernmost panel of the rear (west) face of the Billboard, subject to the requirements and conditions stated in said Resolution; and WHEREAS, Section 1 of the Agreement of September 6, 2005, expressly recognized that further revisions to the requirements concerning the use of the Billboard Back may be subsequently authorized by the City Commission; and WHEREAS, Clear Channel now desires to request the further modification (the "Further Modification") of the Condition, as previously modified, so as to enable the entire rear (west) face of the Billboard, including both the southernmost and northernmost panels of the rear of the Billboard to be utilized for commercial advertising purposes, subject to the requirement that one half of the net revenue derived from the placement or sale of advertisements upon any portion of the rear (west) panels of the Billboard (the "Billboard Back") shall be provided to the City for City's use for any City purposes as determined by the City Manager, subject to the City Commission's approval of the Further Modification of the Condition, in accordance with Commission procedures and rules. 2 NOW, THEREFORE, IN CONSIDERA TION OF THE COVENANTS HEREOF, THE PARTIES HERETO DO COVENANT AND AGREE AS FOLLOWS: I. Purpose. Clear Channel desires to apply to City for a further modification of the Conditions of the variance granted pursuant to City Resolution No. 2003-06, as subsequently modified by Resolution No. 2005-70 (collectively, the "Resolution"), for the purpose of enabling the entire Billboard Back, as depicted on Exhibit "A" attached hereto and incorporated herein, to be utilized for commercial advertising purposes, and enabling the discontinuance of the "Welcome to the City of A ventura" sign copy. Specifically, if the Further Modification of the Condition is granted by the City Commission pursuant to Section II(b) herein, the entire Billboard Back may be used for commercial advertising purposes, subject to the conditions, limitations and restrictions referenced herein. II. Obligations of Clear Channel. A. Within thirty (30) days after execution of this Amendment to Agreement, Clear Channel shall apply to the City for the Further Modification of the Condition of the variance concerning the Billboard, as described above. B. Clear Channel shall diligently pursue such Further Modification of the Condition and shall provide any necessary data or information in support of such Further Modification application, as requested by the City Manager. 3 C. In the event that the City Commission grants the Further Modification, Clear Channel shall proceed to market and sell space on the Billboard Back as authorized herein and by such approved Further 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, but shall pay to City not less than One Hundred Fifty Thousand ($150,000.00) Dollars of annual revenue received by Clear Channel from the Billboard Back. Revenue due and payable to City hereunder shall be paid in equal monthly installments by Clear Channel to the City and shall be utilized by City for any City purposes 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, casino or slot machine gambling, adult entertainment uses, or any use which is reasonably objectionable to City 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 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. 4 III. Obligations of City. A. City shall promptly process Clear Channel's Further Modification application pursuant to Section 31-76(f) of the City Code. B. The City Commission shall make its decision upon the Further 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 Further Modification, the City Manager shall confirm in writing to Clear Channel that Clear Channel is authorized to use 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 for any City purposes, as determined by the City Manager. E. Promptly upon submittal of the proposed advertising display copy or proof in accordance with Section 1I( 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 Clear Channel shall be' made within three (3) business days of receipt of the proposed copy from Clear Channel. IV. Term of Agreement. Except as otherwise specified herein, this Amendment to Agreement shall be in full force and effect commencing upon the date of execution hereof by both parties, and 5 shall terminate upon full performance of each of the covenants hereof. However, in the event that the Further Modification is not granted, this Amendment to Agreement shall terminate on the day following rendition of the denial of such Further Modification request, and shall be of no further force or effect. The Agreement of September 6, 2005, shall remain in full force and effect in the event that this Amendment to Agreement is terminated, as described above, upon denial of the Further Modification. V. Governing Law. This Amendment to 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 Amendment to Agreement or a breach of this Amendment to Agreement. Venue for any court action between the parties for any such controversy arising from or related to this Amendment to 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 Further Modification application is a quasi-judicial governmental matter, Clear Channel recognizes that nothing in this Amendment to Agreement shall be construed to commit City to grant the Further Modification and that, instead, City solely covenants that it shall process and consider the application for Further Modification in accordance with the City Code and applicable law. 6 B. Clear Channel recognizes that City 1 S grant, if any, of the Further Modification described herein shall not establish any precedent which supports or justifies the grant of any other or subsequent modification. VII. Entirety of Agreement. A. This Amendment to Agreement incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein. The parties hereto agree that, except as to the Agreement of September 6, 2005, and as to other covenants or agreements referenced herein, there are no commitments, agreements or understandings concerning the subject matter of this Amendment to Agreement that are not contained in this Amendment to Agreement, and that this Amendment to 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 Amendment to Agreement shall be of no force or effect, and that this Amendment to Agreement may be modified, altered or amended only by written agreement duly executed by both parties hereto or their authorized representatives. B. Nothing in this Amendment to Agreement shall be construed to affect or impair those certain previous agreements of the parties, including the September 3, 2002 Agreement Concerning Commercial Advertising Signs, the February 14, 2003 Covenant, and the Agreement of September 6, 2005, each of which is on file in the Office of the City Clerk, except that if the Further Modification is granted this Amendment to Agreement shall supersede solely the Agreement of September 6, 2005. 7 VIII. Headings. Captions and headings in this Amendment to Agreement are for ease of reference only and do not constitute a part of this Amendment to Agreement and shall not affect the meaning or interpretation of any provisions herein. IX. Rights of Others. Nothing in this Amendment to 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 Amendment to Agreement. X. Representation by Clear Channel. Clear Channel represents that: (1) this Amendment to Agreement has been duly authorized, executed and delivered by Clear Channel; and (2) it has the required capacity and authority to perform this Amendment to Agreement and to bind itself to the provisions hereof. XI. Representation by City. City represents that: (1) this Amendment to Agreement has been duly authorized, executed and delivered by the City; and (2) it has the required power and authority to perform this Amendment to Agreement and to bind itself to the provisions thereof. XII. Waiver. There shall be no waiver of any right related to this Amendment to Agreement unless in writing, signed by the party waiving such right. No delay or failure to exercise a right under this Amendment to 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 Amendment to Agreement. XIII. Invalidity of Provisions, Severability. 8 Wherever possible, each provision of this Amendment to Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment to 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 remainder of such provision or the remaining provisions of this Amendment to Agreement, provided that the material purposes of this Amendment to 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 A ventura 19200 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. A. Clear Channel Event of Default. Without limitation, failure by Clear Channel to substantially fulfill any of its material obligations in accordance with this 9 Amendment to 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: 1. The right to declare that this Amendment to 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. 2. Any and all rights provided under the laws of Florida. B. City Event of Default. Without limitation, the failure by City to substantially fulfill any of its material obligations in accordance with this Amendment to Agreement, shall constitute a "City Event of Default". If a City Event of Default should 10 occur, Clear Channel shall have the following rights and remedies which it may exercise singly or in combination: 1. The right to declare that this Amendment to 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 defined to consist of default that shall occur by 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 (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) 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. 2. 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 11 APPROVED AS TO FORM AND LEGA~C~ ~ City Attorney CLEAR CHANNEL OUTDOOR, INC. By: (Seal) Name: Title: RC-Sii?t:A.J1 :]C ~vJ a ''-1 s.~?- ../0'..~ e--:/vc/ ,,':'~ (Print Name 328001 \agreernents\Concerning Commercial Advertising Sign2 (03-14-07) 12 ATTEST: 7' Secretary (' ............_-~.. .,l, ~ ~ .-. .. ,M/ y,,'14A ,~! 5 . '.( (j.l /1 C ,) (Print Name)