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2002-053RESOLUTION NO. 2002-53 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED AGREEMENT BETWEEN THE CITY OF AVENTURA AND CLEAR CHANNEL COMMUNICATIONS, INC. CONCERNING COMMERCIAL ADVERTISING SIGNS; 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 to execute the attached Agreement between the City of Aventura and Clear Channel Communications, Inc. concerning commercial advertising signs. Section 2. The City Manager is authorized to do all things necessary to carry out the aims of this resolution. Section 3. This Resolution shall become effective immediately upon its adoption. The foregoing Resolution was offered by Commissioner Rogers-Libert, who moved its adoption. The motion was seconded by Vice Mayor Berger, and upon being put to a vote, the vote was as follows: Commissioner Jay R. Beskin Commissioner Ken Cohen Commissioner Manny Grossman Commissioner Harry Holzberg Commissioner Patricia Rogers-Libert Vice Mayor Arthur Berger Mayor Jeffrey M. Perlow yes yes yes yes yes yes yes Resolution No. 2002-53 Page 2 PASSED AND ADOPTED this 3'd day of September, 2002. ~PI~E'~' IV~. PERLOW, MAYO---F~ ATTEST: TE~AL~M. SO~~, C~C, CITY CLERK APPROVED AS TO LEGAL SUFFICIENCY: CITY ATTORNEY AGREEMENT CONCERNING COMMERCIAL ADVERTISING SIGNS THIS AGREEMENT is entered into this 3 day of September, 2002, by and between the City of Aventura, a Florida municipal corporation (the "City") and Clear Channel Inc., a Florida corporation ("Clear Channel"). WITNESSETIt: WHEREAS, Clear Channel presently owns several commercial advertising signs (the "Billboards") within the City 1/mits; and WHEREAS, Clear Channel desires to remove certain Billboards from within the City, conditioned upon Clear Channel being authorized by City to modify and alter one existing legally non-conforming Billboard by raising the height of the Billboard, as described herein. 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 a variance (the "Variance") from the provision of City Code Section 31-193(e)(1), as authorized by Section 31-76 of the City Code, for the purpose of enabling Billboard No. 2, as depicted on Exhibit "A," attached hereto and incorporated herein, presently situated below the Biscayne Boulevard flyover, to be modified and elevated to a height of up to sixty-five (65') feet (as measured from the bottom of the base of the support structure of the Billboard to the top of the Billboard face), as depicted in the computer generated rendition, which is attached hereto and incorporated herein as Exhibit "B," so as to be visible to motorists from the Biscayne Boulevard flyover. OBLIGATIONS OF CLEAR CHANNEL A. Within thirty (30) days after execution of this Agreement, Clear Channel shall apply to City for the Variance necessary to modify Billboard No. 2, as described above. B. Clear Channel shall diligently pursue such Variance application and shall provide any necessary data or information in support of such application, as requested by the City Manager. C. In the event that the City Commission grants the Variance and Clear Channel receives a building perrdt and any other governmental authorizations required for the modification of Billboard No. 2 (collectively, the "Permits"), Clear Channel shall, within thirty (30) days after issuance of the Permits, demolish and completely remove Billboard No. 1, which is depicted on Exhibit "C," attached hereto and incorporated herein, and demolish and completely remove Billboard No. 6, which is depicted on Exhibit "D," attached hereto and incorporated herein. All demolition and removal shall be completed prior to modifying Billboard No. 2. D. Within ten (10) days after approval, if any, of the Variance, and at any time thereafter as requested by City, Clear Channel shall advise the Florida East Coast Railway Company (the "FEC") that Clear Channel has no objection to the obstruction, if any, of the visibility of those certain Billboards of Clear Channel (the "Obstructed View Billboards") which are situated upon the ground or upon any buildings or structures located on or near the FEC right-of-way in the vicinity 2 of Biscayne Boulevard and NE 187th Street, as depicted on Exhibit "E," attached hereto and incorporated herein, to the extent, if any, that such obstruction of visibility is caused by landscaping installed by City upon the FEC right-of-way, and shall fully cooperate with City's continued retention of such landscaping. However, in no event shall the preceding sentence waive any rights of Clear Channel with respect to the obstruction of visibility, if any, of any of Clear Channel's other Billboards by City landscaping, which other Billboards are not provided for herein. Further, in the event that City grants the Variance, Clear Channel shall be deemed to have waived and released any claim or cause of action against City in any way arising from a claim that Clear Channel's Obstructed View Billboards were or are obstructed by City landscaping, and Clear Channel hereby covenants not to sue City on any such claim. This covenant by Clear Channel applies solely to the City landscaping on the FEC right-of-way at the Obstructed View Billboards at the location depicted in Exhibit "E," and includes continued normal growth of such landscaping. Clear Channel shall not install, or permit the installation of Billboards, in replacement of the Billboards (No. 1 and No. 6) which are removed pursuant to this Agreement. Further, Clear Channel shall not install or permit the installation of any Billboards at any location in the City. This shall not be construed to prohibit the modification of Billboard No. 2 as provided herein. Upon the gram, if any, of the Variance, Clear Channel recognizes that it shall not be entitled to any compensation from the City for the Billboards which are removed pursuant to this Agreement. 3 G. Clear Channel shall apply for and use its best efforts to obtain all necessary Permits for the modification of Billboard No. 2, if the Variance is granted. OBLIGATIONS OF CITY A. City shall promptly process Clear Channel's Variance application pursuant to Section 31-76 of the City Code. B. The City Commission shall make its decision upon the Variance in accordance with the criteria provided by Section 31-76(e) of the City Code, and the quasi judicial procedures of the City. Accordingly, since the approval or denial of the Variance application is a quasi judicial governmental matter, Clear Channel recognizes that nothing in this Agreement shall be construed to commit City to grant the Variance and that, instead, City solely covenants that it shall process and consider the Variance application in accordance with the City Code and applicable law. C. In the event that the City Commission grants the Variance, the City Manager shall authorize the building official of the City to issue City building permits for the modification of Billboard No. 2, subject to Clear Channel complying with the Building Code, and subject to Clear Channel receiving any necessary permit or approval from the State Department of Transportation. D. Subsequent to the execution of this Agreement, City shall use its best efforts to avoid installing any new City landscaping which may obstruct the visibility of other Billboards of Clear Channel which exist upon the effective date of this Agreement. In the event that Clear Channel reasonably finds that landscaping hereatter installed by City obstructs the visibility of other Billboards of Clear 4 Channel which exist upon the effective date of this Agreement, Clear Channel shall promptly notify City, and City shall, within twenty (20) days thereafter, provide for the remediation of such obstruction by adjustment of such landscaping. This provision requiring City to adjust its landscaping shall not be applicable to any City landscaping which City installs with the written consent of Clear Channel or to any City landscaping for which City provides notice of to Clear Channel prior to the installation, by submittal of a landscape plan prepared by City's landscape architect, under circumstances in which Clear Channel fails to provide its written objection concerning such landscape plan to City within 30 days after receipt of such notice. IV. TERM OF AGREEMENT This Agreement shall be in full force and effect commencing upon the date of execution hereof by both parties and terminating upon performance of each of the covenants hereof, except that the covenants provided by Sections II (D,E,F), III(D), VI and XV hereof, shall survive the termination of this Agreement. However, in the evem that the Variance is not granted, this Agreement shall terminate on the day following rendition of the denial of such Variance 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 arising out of or relating 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 waive any trial by jury. VL NO PRECEDENT~ NO ADMISSION Clear Channel recognizes that City's grant, if any, of the Variance described herein shall not establish any precedent which supports or justifies the grant of any other or subsequent variance. This Agreement serves to provide a means to settle disputed matters and shall not constitute an admission by either party. VII. ENTIRETY OF AGREEMENT 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. vm. HEADINGS Captions and headings in this Agreement are for ease of reference only and do not constitute a pa~ of this Agreement and shall not affect the moaning or interpretation of any provisions herein. 6 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 tLrne, 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 o£this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without ~nvalidating the remainder of such provision or the 7 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 JeffAndres, 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. hereof. XVI. SUCCESSORS Each party hereto and their successors and assigns are hereby bound to the provisions WARRANTY OF CLEAR CHANNEL Clear Channel hereby warrants and represents that if the Variance is granted, it shall obtain all necessary permits for demolition of the Billboards required to be demolished pursuant to this Agreement, and further covenants that it has the lawful authority to accomplish such demolition. 8 XVII. DEFAULT 1. Clear Channel Event of Default. Without limitation, failure by Clear Channel to substantially fulfill any of its material obhgations 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: 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) iftbe 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 shah 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 Evem of Default. Without l'nnitation, the failure by City to substantially fulfill any of its material obligations in accordance with this Agreement, shall constitute a "City Evem of 9 Default". Ifa 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 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. b. Any and all rights provided under the laws of the State of Florida. [REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK] 10 1N 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 agreemem. LEGAL SUFFICIENCY: City Attorney ATTEST: ~-CityCler~ / CLEAR CHANNEL ~O~,,~,.%~,2CA2[©N$, INC.: ATTEST: Title: i ~ ~ Secreta~ (Seal) (Print l~ame~ r (Print Name) 328001 ~agreement s~co miner cial advertising signs-clear channel (revised) 11