SETTLEMENT STIPULATION
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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL
CIRCUIT IN AND FOR PINELLAS COUNTY, 'FLORIDA
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CITY OF CLEARWATER, a Florida )
municipal corporation )
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PATRICK MEDIA GROUP, INC.,
a Delaware corporation
Plaintiff,
vs.
Civil Case No. 93-174-CI (21)
Defendant.
RECEIVED
CIVIL COURT RECORDS
SETTLEMENT STIPULATION BETWEEN CITY OF
AND ELLER MEDIA COMPANY
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7 H)0.JI
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ARWAi:J.imI 1"=. De BLA+<ER
C:LERK CIRCUIT COURT
Deputy Clerk
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THIS SETTLEMENT STIPULATION (" Stipulation") ,is made as of this
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~ by and between the CITY OF
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CLEARWATER, FLORIDA (herein "City"), and ELLER MEDIA COMPANY, also
day of
known as Patrick Media Group, Inc. (herein "Eller").
WIT N E SSE T H:
WHEREAS, in 1985, the City enacted Ordinance No. 4035-85 which
adopted specific land development regulations relating to the
physical characteristics and location of signs in the City (the
"1985 Sign Regulations"), which regulations have been subsequently
amended and/or supplemented from time to time (the 1985 Sign
Regulations as subsequently amended and/or supplemented from time
to time are hereinafter referred to as the "Sign Regulations II); and
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WHEREAS, the Sign R~gulations require that nonconforming signs
must be removed within seven (7) years after adoption of certain of
the Sign Regulations; and
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WHEREAS, Eller is the owner of certain signs as described in
Exhibit IIA" attached hereto and made a part hereof (the "Eller
Signs II ) which are alleged by the City to be nonconforming under the
Sign Regulations, and which have not been removed as of the date of
this Stipulation; and
WHEREAS, the City has brought numerous code enforcement cases
and has levied fines as described in Exhibit 11811 attached hereto
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and made a part hereof against Eller for Eller's failure to remove
the Eller Signs' as allegedly required by the Sign Regulations
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(IICode Enforcement Actionsll); and
WHEREAS, Eller has brought legal actions in federal and state
court as described in Exhibit "C" attached hereto and made a part
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hereof regarding' the Sign Regulations and the enforcement of the
Sign Regulations in connection with the Eller Signs (the IILaw
Suitsll); and
WHEREAS, Eller and the pinellas Suncoast Transit Authority
(IIPSTA") entered an agreement dated February 28, 1995, a true and
correct copy of'which is attached hereto as Exhibit liD" and is made
a part hereof by this reference (the "PSTA Agreementll), wherein
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Eller was granted the aut.:i1ority by the PSTA to install and maintain
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transit shelters incorporating advertising space within the
territorial jurisdiction of the PSTA, which jurisdiction includes
the City; and
WHEREAS, the Sign Regulations currently prohibit advertising
to be located on transit shelters located within the City; and
WHEREAS,
the City has agreed to adopt an ordinance
incorporating the terms and provisions described in Exhibit "Ell
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attached hereto and made a part hereof allowing Eller to erect
transit shelters inc9rporating advertising space within the
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corporate limits of the City in accordance with the requirements of
the PSTA Agreement (the IITransit Shelter Ordinancell); and
WHEREAS, Eller has agreed to remove certain of the Eller Signs
which the City contends are not protected from the application of
the Sign Regulations by State or Federal law as hereinafter
described; and
WHEREAS, the City and Eller have agreed to resolve all other
disputes relating to the Code Enforcement Actions and Law Suits
pursuant to the terms of this Stipulation; and
WHEREAS, the City has determined that this Stipulation, the
adoption of the Transit Shelter Ordinance, and the resolution of
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all disputes relating to..the Code Enforcement Actions and Law Suits
pursuant to the terms hereof will preserve, promote and improve the
public health, safety, comfort, appearance, convenience and general
welfare of the City as the result of the removal of signs that do
not conform with the Sign Regulations, the erection of transit
shelters for public transportation,
and providing for the
transmission of information to the traveling public by allowing
advertising within the transit shelters.
NOW, THEREFORE, in consideration of the recitals set forth
above, and other good and valuable consideration, the receipt and
sufficiency of which are hereby confirmed by the parties hereto,
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the City and Eller hereby agree as follows:
1. The recitals.' set forth above are true and correct and are
hereby incorporated intQ the body of this Stipulation as
if fully set forth herein.
2. This Stipulation is expressly conditioned upon, and shall
be deemed effective as of the day and year that the City
enacts, the Transit Shelter Ordinance consistent with the
terms and provisions contained in Exhibit "Ell attached
hereto and made a part hereof by this reference (herein
the "Effective Date").
In addition to the terms and
conditions set forth in Exhibit IIEII attached hereto, the
Transit Shelter Ordinance shall be consistent with the
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following in order for this Stipulation to be deemed
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effect~ve: (a) the Transit Shelter Ordinance shall
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expressly allow advertising to be placed on the transit
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shelters erected by Eller in accordance with terms and
conditions set forth in the PSTA Agreement; (b) the Sign
Regulations shall be amended by the Transit Shelter
Ordinance to expressly allow advertising on transit
shelters erected by Eller in accordance with the Transit
Shel ter Ordinance and the PSTA Agreement; (c) the Trans i t
Shel ter Ordinance shall not contain performance standards
or other restrictions regarding the location, placement
and erection.of transit shelters which deviate materially
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from Exhibit liE II to this Stipulation or the design and
construction standards set forth in the PSTA Agreement;
and (d) the .Transit Shelter Ordinance shall not contain
requirements, regulations or standards which would
prohibit Eller from erecting a reasonable number of
transit shelters at designated PSTA bus stops in the
corporate limits of the City. Eller shall be allowed to
provide input to the City Staff (as is also the case with
the general public) in connection with the drafting of
the Transit Shelter Ordinance and participate in all
public hearings and meetings in connection with the
adoption with the Transit Shelter Ordinance. For
purposes of this Stipulation (including Exhibit IIEII) , all
references to the PSTA Agreement shall be deemed
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references to ~he PSTA Agreement dated.February 28, 1995
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which is attached hereto as Exhibit "D". No subsequent
change~ or amendments to the PSTA Agreement dated
February 28, 1995 shall be deemed to affect or modify the
Transit Shelter Ordinance or the requirements applicable
to the erection of transit shelters by Eller within the
City, unless the City agrees to such changes.
3. Commencing on the Effective Date of this Stipulation and
continuing thereafter over an eighteen (18) month period,
Eller agrees to remove the Eller Signs in three (3)
stages as follows:
(a) Eller shall remove seven (7) of
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the Eller Signs on or before six (6) months after the
Effective Date hereof;
(b) Eller shall remove an
additional seven (7) Eller Signs on or before twelve (12)
months after the Effective Date hereof; and (c) Eller
shall remove an additional seven (7) Eller Signs on or
before eighteen (18) months after the Effective Date
hereof; At least fifteen (15) days prior to each of the
three (3) scheduled removal dates set forth above, Eller
shall provide the City with a written list of Eller Signs
that have either been removed over the prior six (6)
month period or will be removed on or before the
scheduled removal date.
The number of Eller Signs
described on this list shall equal the number of Eller
Signs that Eller has agreed to remove at a given stage as
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provided abov~~ In order to secure Ell~r's performance
of its agreement to remove the Eller Signs as set forth
above, Eller shall provide the City with a letter of
credit, performance or surety bond or similar security in
the amount of $50,000.00.
If Eller removes the Eller
Signs as provided in this Stipulation, then the City
shall return such security to Eller upon verification of
removal of the Eller Signs by the City.
4. If Eller fails to remove any of the Eller Signs which
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Eller has designated for removal by a scheduled removal
date, then t:i1e City shall have the right to remove such
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signs with the cost of such removal to be borne by Eller.
If the City believes that Eller has failed to remove any
of the Eller Signs by a scheduled removal date, then the
City agrees to give fifteen (15) days prior written
notice, to Eller before the City removes any of the Eller
Signs.
In the event the City removes any of the Eller
Signs which were not scheduled for removal, then the City
agrees that it will be responsible to Eller for the cost
of reinstallation of any such signs wrongfully removed by
the City.
5. The two (2) signs described as Sign Nos. 15 and 16 in
Exhibit IIAII attached hereto, which are located on State
Road 60 to the east of U.S. Highway 19, shall be removed
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by Eller on or before one of the scheduled removal dates
pursuant to the procedure described in Section 3 hereof;
provided, however, the City shall allow Eller a one (1)
time right to replace each of these two (2) signs at
anytime within seven (7) years from the date(s) of the
removal of the respective signs with two (2) signs to be
erected by Eller at any two (2) locations along U. S.
Highway 19 within the corporate limits of the City (the
"Replacement Signs") in conformance with applicable State
and Federal laws and regulations. However, Eller shall
use reasonable efforts to erect both of the Replacement
Signs a minimum of twenty (20) feet from the right-of-way
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line of U.S. Highway 19; provided, however, if Eller,
after using reasonable efforts, is unable to secure
locations for either or both of the Replacement Signs
twenty (20) feet or more from the right-of~way line of
U,S. Highway 19, then the City shall permit the erection
of either or both of the Replacement Signs at locations
meeting
Federal
minimum
setback
the
State
or
requirements. The size of the sign areas on the two (2)
Replacement Signs may equal, but shall not exceed, ten
(10) feet by forty (40) feet in size.
Further, the
height of the Replacement Signs, measured from the crown
of the road at the applicable location on U.S. Highway
19, may equal, but shall not exceed, the height of Sign
No. 15 and Sign No. 16 measured from the crown of the
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road at the ~ocation of these signs on Gulf to Bay
Boulevard (State Road 60)
The City agrees to issue
whatever written approval is necessary to allow the
erection of these two (2) replacement signs along U.S.
Highway 19 within the corporate limits of the City,
including,
without
limitation,
such
written
documentation, permits or letters as may be required by
the Florida Department of Transportation.
The cost of
removing the two (2) existing signs located on State Road
60, east of U.S. Highway 19, and erecting the two (2)
replacement signs along U.S. Highway 19, shall be borne
by Eller, but the City agrees to waive 'any City building
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permit: fees for the erection of the two (2) replacement
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signs ~long U.S. Highway 19.
6. Any fines levied by the City against Eller or any other
person~ (including, without limitation, the fee simple
owners or ground lessors of the parcels of land on which
the Eller Signs have been erected) relative to any of the
Eller ,Signs and/or pursuant to any of the Code
Enforcement Actions described in Exhibit liB II
attached
hereto are hereby waived by the City and the City shall
take whatever steps are necessary to remove any liens or
otherwise demonstrate that such fines have been waived,
including, without limitation, the preparation, execution
and recording of one or more written instruments in the
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PublicRecord~of Pinellas County, Florida, terminating
all Code Enforcement Actions and waiving any fines or
liens by the City in connection with the Eller Signs.
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7. Eller and the City agree that all litigation in
connection with the Law Suits as described in Exhibit "C"
attached hereto and made a part hereof shall be stayed
and abated by both parties until the City adopts the
Transit Shelter Ordinance in accordance with the terms of
this Stipulation. 'In connection therewith, both the City
and Eller hereby agree that neither party shall take
further actiQn in connection with any of the Law Suits or
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file any new legal action of any nature relating to the
Sign Regulations and the Eller Signs. In the event the
Ci ty fails to adopt the Transit Shelter Ordinance in
accordance with the terms of this Stipulation, then the
agreement of Eller and the City regarding the abatement
of the Law Suits shall be deemed null and void and of no
further force and effect.
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8. From and after the date Eller executes this Stipulation,
and as long as Eller is proceeding in accordance with the
terms of this Stipulation, including, without limitation,
the removal of certain of the Eller Signs in accordance
with Section 3 hereof, the City hereby agrees that it
shall take no further enforcement action of any nature in
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connection with any of the Eller Signs including the
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levying of fines in connection with any of the Eller
Signs (unless Eller fails to timely repair any damage to
the Eller Signs and such damage is deemed a nuisance or
otherwise a danger to the public's health, safety and
welfare by the City); and the City and Eller hereby agree
to the abatement of all existing Code Enforcement Actions
and the waiver of fines and liens in connection therewith
in accordance with Section 6 hereof. Further, the City
shall permit Eller to repair and maintain any of the
Eller Signs until such sign is removed on or before its
scheduled removal date as designated by Eller to the City
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in accordance with Section 3 hereof.
In the event the
City fails to enact a Transit Shelter Ordinance in
accordance with Section 3 and Exhibit liE" hereof which
allows!for the reasonable placement of transit shelters
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in the ,City by Eller, the agreement of the City and Eller
regarding the abatement of existing or future Code
Enforcement Actions shall be deemed null and void and of
no further force and effect.
9. The City hereby agrees that it will provide such written
documentation or letters to the Florida Department of
Transportation, Eller and such other third parties or
governmental authorities as Eller may reasonably require
in order for Eller to conduct regular and routine repair
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and maintenance activities and to obtain all necessary
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State :and Federal permits or approvals for any Eller
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Signs presently existing within the IIControlled area" as
defined in Chapter 479, Florida Statutes, of any portion
of the State Highway System, interstate or federal aid
primary system.
~ 10. Eller and the City hereby agree that each party shall
bear its own attorneys' fees and costs in connection with
the Law Suits, provided that they are dismissed in
accordance with the terms of this Stipulation.
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11. In con~ection with the adoption of the Transit Shelter
Ordinance by the City, Eller hereby agrees that Eller
shall be solely responsible for compliance with the terms
of the PSTA Agreement, including any limitations on the
types of advertisement allowed pursuant to the PSTA
Agreement. Eller agrees and acknowledges that Eller will
not bring any claim or cause of action against the City
in the event the PSTA rej ects any proposed advertising or
removes any advertising from transit shelters erected by
Eller pursuant to the Transit Shelter Ordinance.
12. Eller hereby represents and warrants that: (a) Eller is
a corporation in good standing under the laws of the
State of Delaware; (b) Eller is duly authorized to
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transabt busiq~ss in the State of Florida; (c) Eller has
taken all corporate actions necessary to authorize the
execution of this Stipulation; and (d) the undersigned
officer has full right and authority to execute this
Stipulation on behalf of Eller and to effectuate the
terms of this Stipulation.
13. The City hereby represents and warrants to Eller that:
(a) th~ City is empowered to enter into this Stipulation
pursuant to Article VIII of the Florida Constitution, the
Charter of the City, and other applicable State and local
laws and regulations; (b) the execution of this
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Stipul~tion has been authorized by the City Commission of
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the City at a public hearing held pursuant to the
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requirements of Florida law; and (c) the undersigned as
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Mayor of the City has full right and authority to execute
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this Stipulation on behalf of the City and to effectuate
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the teims of this Stipulation.
14. All, notices, demands or other communications of any type
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(herein "Noticesll) to be given by either the City or
Eller pursuant to the terms of this Stipulation shall be
void and of no effect unless given in accordance with the
provisions of this Section 14. All Notices shall be in
writing and delivered to the person to whom the Notice is
directed either: (a) in person; (b) by United States
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mail, !certifi~d with return, receipt requested; (c)
delivered by delivery service; or (d) sent by telex or
telecopy with a confirmation receipt. Notices delivered
by mail shall be deemed given three (3) days after
deposit in a post office or other depository under the
care or custody of the United States Postal Service,
enclosed in a wrapper, addressed properly with postage
affixed. All Notices shall be addressed as follows:
If to Eller:
Eller Media Company
5555 Ulmerton Road
Clearwater, FL 34620
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Attn: S. Wayne Mock
Telephone: 813-571-2224
Telecopy: 813-571-1564
With a copy to:
Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A.
One Harbour Place
Tampa, Florida 33602
Attention: Gwynne A. Young
Telephone: 813-223-7000
Telecopy: 813-229-4133
If to the City:
Pam Akin, Esquire
City of Clearwater
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112 South Osceola
With a copy to:
Clearwater, Florida 33516
Telephone: (813) 562-4010
Telecopy: (813) 562-6426
Charles L. Siemon, Esquire
Siemon, Larsen & Marsh
433 Plaza Real, Suite 339
Boca Raton, Florida 33432
Telephone: (561) 368-3808
Telecopy: (561) 368-4008
Either party hereto may change the address for Notices
specified above by giving the other party ten (10) days
advance written Notice of such change of address.
Notices given otherwise than by mail shall be deemed
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given upon actual receipt thereof.
15. This Stipulation shall be submitted to the Sixth Judicial
Circuit Court in and for Pinellas County (the "Court")
for entry of an order ("0rder") approving the terms of
settlement as contained herein in Patrick Media Group,
Inc.
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v.
City of Clearwater,
Civil Case No.
93-174-CI
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(21), which case is currently pending in the Court. Said
order shall provide that the Court shall retain
jurisdiction to enforce this Stipulation; and a copy of
the Order is attached hereto as Exhibit "G" and is made
a part hereof by this reference. Upon satisfaction of
the terms and conditions of this Stipulation by both
Eller and the City, Eller and the City shall file motions
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for dismissal pf all law suits with prejudice in the form
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attached hereto as Exhibit "F".
In the event of any
litigation to enforce the terms of this Stipulation, the
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prevailing party shall be entitled to recover its
attorneys' fees and costs in connection with any such
litigation, including any appellate proceedings thereof.
16. Prior to the satisfaction of the terms of this
Stipulation by the City and Eller, if the City enters
into an agreement with another outdoor advertising
company owning billboards in the City regarding such
billboards, the City will promptly provide Eller with a
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copy of such an agreement (or a complete description of
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its terms if the agreement is oral); and if Eller so
chooses, the City shall agree to amend this Stipulation
to be consistent with terms of the agreement between the
City and the other outdoor advertising company.
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THIS SETTLEMENT STIPULATION is executed as of the date and
year first set forth above.
Approved as to
legal sufficiency and form
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(/,1. . f" /)7-
Pamela K~ Akin
City Attorney
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Attest:
~kL~
ELLER MEDIA COMPANY,
also known as
Patrick Media Group, Inc.
By : S\.\,Ul'l.\ ~\Ai V\.:l\I"('.I,~
Name : ~I'ItX:B<.xXMIDx:m: S. Wayne Mock
Its: President, Tampa Bay
Operations
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: " SENT 'r.rt : CFWESC-FAXROOM
! ;.~-18-98 ; 11 : 4:3AM ; CARLTON, f I ELDS-:TAMt'A->::!-15til;:JtH:St:l:UUl:hji:ltJO!( ; 1f- uf 0
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", EXHIBI1 "A"
THE "ELLER SIGNS"
(LIST SUBJECT TO REVIEW AND CONFIRMATION OF ELLER. NOT AnON:';
CONCERNING SIGNS TIIATMA Y HAVE BEEN REMOVED OR SIGNS THAT
MAYBE PROTECTED APPEAR IN BOLD AFTER TIm LOCA nON OF EACH
SIGN)
SIGN NO,'
PROPERTY ADDRESS
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L ! DREW ST. NIL IS' W/O TERRACE
(2288 DREW ST.)
2. HERCULES WIL 500' SlO SUNSET PT.
(1880 NO. HERCULES)
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3. ' DREW ST. SIL 200' EtO MERCURY
(2071 DREW ST.) (105 NIMERCURY)
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4. MISSOURI ElL .2 MI. SIO LAKEVIEW
(1317 SO. MISSOURI AVE.)
5. . SO. FT. HARRISON FJL 20' SID F AIRMONT .
(1625 N. FT. HARIUSON)
6. FT. HARRISON WIL .2 MI. NIO BELLEAIR
(1556 S. FT. HARRlS~N)
'. FT. HARRISON W/L 150' SIO EDRIDGE
(606N. FT. HARRISON)
8. MISSOURI ElL 50' N/O FRANKLIN CIRCLE
(1200 FRANKLIN CIRCLE)
7.
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9. COACHMAN NIL 100' W/OBELCHER
(2198 N.E.COACHMAN RD.)
10. SUNSET PT. NIL IOO'EtO ATLANTIS
(2320 SUNSET POINT ROAD)
11. . GULF TO BAY SIL 75' WIO KEYSTONE
(1637 - GULF TO BAY BLVD.)
:' SENT, 'BY: CfWESC-fAXROOM,
;d,'1..-18-98 ;11:44AM ;CARLTON,fIELDS-TAMPA-+9-15613684.1'l8-336517;# 4/ (j
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PROPERTY ADDRESS
12. GULF TO BAY NIL 200' E.O PARK ST.
(1390 GULF TO BAY BLVD.)
13. GULF TO BAY N/L.S MI. W/O U.S. 19
(2456 - GULF TO BAY BLVD.)
14. GULF TO BAY NIL 100' E/O NIMBUS
(2046 - GULF TO BAY BL YD.)
15. GULF TO BAY NIL .2 MI. FiO McMULLEN
(3158 - GULF TO BA YDL VD.) ,
16. GULF TO BA Y NIL .2 MI. WIO McMULLEN
(2960 - GULF TO BAY BLVD.)
17. ,GULFTOBAYS/L.2MI. W/OU.S.19
(2525 -, GULF TO BAY BL YD.)
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18 GULF TO BAY S/L .S Ml. WIO U.S. 19
i (2275 - GULF TOBA Y BLVD.)
19. GUL'F, TO BAY S/L .4 MI. WIO BELCHER
(2061 - GULF TO BAY BL VD.)Stonn Damaged I Removed
20. 'GULF TO BAY NIL 100' WIO SATURN
(1736 - GULF TO SAY BLVD.)
21.1 GULF TO BAY NIL 100' WIO KEYSTONE
. (1628. GULF TO BAY BLVD.)
Sign No. IS and Sign No. 16 shall be relocated ,or replaced with lWo(2} new signs on u.s. Highwa.... 19
pursuant to Section S of the Agreement. ,,'
Sign No. 19 was destroyed by srann damage and was removed on 10/31/97.
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EXHIBIT "B"
Fines are calculated as of December 31, 1997
CODE ENFORCEMENT ACTIONS
Case Name Lien Fine Status Inspector
Recorded
20-95 Gary & Phillips Wood 8/1 0/95 $15,050 N M. Furlong
1556 S. Ft. Harrison Ave.
LESSEE - Patrick Media
. (301 days @ $50/day)
Abated accrual 9/25/96
19-96 M. Lenore Holcombe 5/5/96 $29,250 N D. Bohr
1880 N. Hercules Avenue
LESSEE - Patrick Media
(585 days @ $50/day)
20-96 Cengiz Gokcen 7/5/96 $29,250 N D. Bohr
2288 Drew Street
LESSEE - Patrick Media Group .'
(585 days @ $50/day)
21-96 William & Mary Moran 7/5/96 $29,250 N D. Bohr
1390 Gulf to Bay Blvd.
LESSEE - Patrick Media Group
(585 days @ $50/day)
27-96 Wass Associates/Holmquist Prop Mgt./S 9/5/96 $24,700 N D. Bohr
Holmquist
2198 NE Coachman Rd.
LESSEE -Patrick Media/CT Corp
(494 days @ $50/day)
C Now in Compliance, total fine as of date violation corrected.
N Not in Compliance.
F Board authorized Foreclosure. (Foreclosure proceedings may be authorized
after three months if not paid). (F.S. 162.09)
EXHIBIT "e"
THE "LAW SUITS"
1. Patrick Media Group. Inc. v. City of Clearwater, Circuit Court, Civil Case No.
93-174-Cl-21 (6th Judicial Circuit);
2. Patrick Media Group. Inc. v. City of Clearwater, United States District Court,
Middle District of Florida, Case No. 93-103-Civ-T-178;
3. Patrick Media Group. Inc. v. City of Clearwater, Circuit Court, Civil Case No.
96-6602-CI-15 (6th Judicial Circuit);
4. Patrick Media Group. Inc. v. City of Clearwater, Florida Second District Court
of Appeal, Case No. 96-4488;
5. Patrick Media Group. Inc. v. Municipal Code Enforcement Board of the City of
Clearwater, Circuit Court, Civil Case No. 96-6113-CI-88A (6th Judicial Circuit);
and
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6. Patrick Media Group. Inc. v. Municipal Code Enforcement Board of the City of
Clearwater, Circuit Court, Civil Case No. 96-4654-CI-88A (6th Judicial Circuit).
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EXHIBIT "D"
THE "PSTA AGREEMENT"
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The sign ordinances in effect in Pinellas County and various municipalities located
throughout PSTA's service area do not presently allow the placement of advertisements
on transit shelters, without approval from the governing bodies of Pinellas County and
th~ various municipalities. ".
PSTA has decided, to enter into an Advertising Transit Shelter Program with the
Contractor which will allow the number of transit shelters to be significantly maintained,
expanded, and improved. ""
Under this Program and in accordance with the terms and conditions of this Agreement,
the Contractor will use its best efforts to obtain the necessary approvals from the
governing bodies of Pinellas County and mu~cipalities in Pinellas County to allow for
advertising on PSTA's transit shelters; and provide, install and maintain at its expense
a large number of new transit shelters throughout the county in exchange for the right
to sell and use specified portions of the shelters' exterior panels for advertising space.
NOW THEREFORE, the parties have agreed as follows:
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5.
6.
7.
ADVERTISING TRANSIT SHELTER AGREEMENT
THIS AGREEMENT is made and entered into by and between the PINELLAS SUNCOAST
TRANSIT AUTHORITY hereinafter referred to as "PSTA" located at 14840 49th Street,
Clearwater, Florida 34622-2893 and PATRICK MEDIA GROUP, INC., located at 5555
Ulmerton Road, Clearwater, Florida 34620, hereinafter referred to as "Contractor".
1.
PST A currently owns and maintains approximately one hundred fifty (150) bus shelters
throughout Pinellas County.
There is a need for additional transit shelters along PST A bus routes. There are limited
funds available to expand and upgrade these shelters in the foreseeable future.
It is costly for PSTA to clean and maintain the existing transit shelters, and these efforts
drain fmancial and administrative resources from other PSTA projects.
For a number of years PSTA has received revenues from the sale of advertising space
on the outside and inside of its buses. A number of other transit agencies through the
country also sell advertising space on their transit shelters and on the back of their bus
stop benches.
2.
3..
4.
r. GRANT OF ADVERTISING TRANSIT SHELTER RIGHTS AND PRIVILEGES:
A. Incorporation of RFP:
PSTA RFP 94-021P, Bus Shelter Advertising, all addendum thereto and
Contractor's proposal in response to said RFP, attached hereto as Exhibit "A",
are incorporated herein as if set forth in full and shall be binding on the parties,
except to the extent of a direct conflict with a provision of this Agreement. In
the case of such a direct conflict, this Agreement shall take precedence.
:,', .<'
B. Rights Granted:
Contractor is hereby granted the exclusive right to erect and maintain transit
shelters with advertising on them in PSTA's service area during the term of this
Agreement in accordance with the provisions contained hereon. Provided,
however, nothing contained herein shall prevent PSTA from erecting and
maintaining transit shelters at no expense to Contractor without paid advertising
throughout its service area. It is understood and agreed that Contractor or its
employees or approved subcontractors will sell advertising space on the shelters
to individual advertisers.
C. Rights Retained:
1. Advertising
PSTA retains and reserves all advertising rights which are not specifically
granted by this Agreement. The rights retained and reserved by PSTA
include, but are not limited to, the right to use, display and/or license or
otherwise provide for the use of its own name,trade name, trademark,
and/or other identifying device or symbol used, owned or registered by
PSTA and to display informational notices and materials for its patrons,
including instructions, schedules and route maps. This agreement
specifically excludes advertising which may appear on benches which are
not located at a bus shelter. '
.'
2. Telephone Revenues
The Contractor 'shall have the right to' install telephones in the transit
shelters, with PSTA's approval. PSTA shall receive a percentage of all
revenues received by, the Contractor from any telephones installed in the
transit shelters equal,to the percentage of net advertising revenues PST A
will receive under Paragraph I.F.l and 2 of.this Agreement.
D. Ownership:
The transit shelters provided by Contractor at Contractor's expense shall be the
property of Contractor until this Agreement is terminated. Upon termination of
this Agreement, if PSTA elects to take title to any or all such shelters, PSTA
shall pay for those shelters it elects to keep as provided in paragraph VIII.D of
this Agreement. Title to the shelters purchased by PSTA shall vest in PSTA.
E. Authorized Advertisinl! Transit Shelters:
1. In accordance with the exclusive right to erect and maintain advertising
transit shelters within the PSTA territorial jurisdiction and for exclusive
advertising rights, PSTA authorizes shelters and advertising set forth as
follows.
2
2. Number of Shelters:
The, ,maXiIntlIIltotaLnumber of shelters to be built and installed at
Contractor's expense under this Agreement is five hundred, (500)
advertising shelters. PSTA may elect to expand the program to a total of
up to one thousand (1,000) advertising shelters. If PSTA wishes to
expand the program, the terms and conditions, including the time table for
installing the additional transit shelters, shall be agreed to by PSTA and
the Contractor.
3. Locations:
PSTAi'$baU,..,.cetain,~the'~right~~,to:"approve'aIl shelter locations, which
approval shall not be unreasonably withheld. 'It shall be the Contractor's
responsibility to determine the specific siting of shelters and to present
location drawings, other required information and permit fees to the
appropriate officials of each City/County in which the shelters are located.
PSTA shall cooperate with the Contractor in determining shelter siting.
If' a site is found by the Contractor to be unsuitable or economically
infeasible to construct a shelter, the Contractor may appeal to the PSTA
Executive Director for site abandonment and site substitution.
PSTA shall.have the right to require the Contractor, at its sole cost, to
remove or relocate shelters for the convenience of business, pedestrians
and/or transit patrons or because of a change 'in bus stop location, with
thirty (30),' days, notice. The Contractor may not relocate or remove a
shelter ,without:,PSTA's,writtenipermission. -
PSTA shall have final authority to approve or deny the installation of any
shelter, in PST A's reasonable judgment, notwithstanding the fact that any
proposed installation otherwise complies with the terms of this Agreement.
PSTA shall have the authority to cause a transit shelter to be remqved or
relocated from any location at no cost to PST A, if Contractor fails to
remove said shelter after receiving notice as provided above,
notwiths~ding the fact that any such shelter otherwise complies with this
Agreement, permit requirements, or 'any otherwise applicable provision of
law.
4. Disolays:
PSTA authorizes Contractor to use the "downstream" end wall (furthest
from approaching transit vehicles) for a two-sided or flared and secured
panel to display advertising material. In no case shall advertising be
displayed on the end wall closest to the approaching transit vehicle. Such
material shall be back-lit. No advertising poster shall exceed twenty-four
(24) square feet in area, or be greater than six fe,et (6') in height and four
feet (4') in width.
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F. Compensation to PST A:
1. Prior to the Start Date, as hereinafter defined, PST A shall receive from
Contractor a fee equal to fifteen percent (15 %) of the net advertising
revenues, as defined below. As a guaranteed minimum against the
compensation to be paid under this subparagraph, Contractor shall pay to
PST A a payment for each shelter pennit secured of Four Hundred Dollars
($400.00) per permit per year.
2. PSTA shall receive from Contractor a fee equal to fifteen percent of the
net advertising revenues, as defmed below, during the first five years of
this Agreement, after,the Start Date. PSTA shall receive from Contractor
a fee equal to 18 percent (18%) of tIre'net advertising revenues during the
last five (5) years of this Agreement, after the Start Date.
3. Contractor shall pay to PST A an advance of Two Hundred Fifty Thousand
Dollars ($250,000.00) ,against the compensation' due to PST A . under
subparagraph 1 above within thirty (30) days after Contractor secures the
first one hundred fifty (150) shelter pennits.. An additional advance of
Two Hundred Fifty Thousand Dollars ($250,000.00) shall be paid by
Contractor to PST A within thirty (30) days of securing the second one
hundred fifty (150) permits or a total of three hundred (300) shelter
permits. ALthe termination of this Agreement, any portion of any
advance made to PSTA under this paragraph'lPat is unearned under this
Agreement, shall be'refunded to the Contractor byPSTA.
4, As a guaranteed minimum against the compensation to be" paid under
subparagraph 2 above, Contractor shall pay to PST A a payment for each
shelter permit secured for each year of this Agreement as follows: Four
. Hundred Dollars ($400.00) per permit ,per year in year -l after the Start
Date; Five Hundred 'Dollars ($500.00) per permit per year in year 2 after
the Start Date; Six Hundred Dollars ($600.00) per pennit per year in year
3 after the Start Date; Eight Hundred Dollars ($800.00) per permit per
year in years 4 and 5 after the Start Date; Eight Hundred Fifty Dollars
, ($850.00) per permit per year in year 6 after the Start Date; Nine
Hundred Dollars ($900.00) per permit per year in year 7 after the Start
Date; ,Nine hundred Fifty Dollars ($950.00) per permit per year in year
8 after the Start Date; and One Thousand Dollars ($1,000.00) per permit
per year in years .9 and 10 after the Start Date.
5. Net advertising revenues shall mean the total revenues paid for the
advertising less any commissions paid to an outside advertising agency.
6. The fees provided for above shall be paid monthly as follows:
a. With regard to the fees provided in subparagraphs 1, 2, and 4, on
or before the 20th of each calendar month during the term of this
Agreement, Contractor shall deliver to PST A a statement
identifying all of Contractor's net advertising revenues from the
preceding calendar month, indicating the number of permits
received to date, the amount due to PSTA, the amount credited
4
towards the advance paid to PST A under subparagraph 3 above,
and the total amount to date credited to the advance paid to PSTA.
Simultaneously with the delivery of each monthly statement,
Contractor shall pay to PSTA the fees due to PSTA as shown in
said statement.
b. Within twenty (20) days after the yearly anniversary date of each
year during the term of this Agreement, the Contractor shall
provide to PSTA an accounting reconciling the amounts due to
PSTA under subparagraph 2 with the amounts paid to PSTA under
subparagraphs 3 and/or 4.
7. Contractor shall keep true and accurate records of all transactions
pertaining to this Agreement. Such records shall be open to audit by
PSTA at PSTA's request. All records pertaining to this Agreement shall
be retained by Contractor for a minimum of 3 years after the expiration
of each year of this Agreement. Contractor shall provide PSTA with a
monthly report' showing the dates of installation of each shelter by site.
II. CHANGES IN AUTHORIZED ADVERTISING:
It is mutually acknowledged and understood that advertising and the grant of advertising
rights provided for herein, are only incidental to PSTA's tran,sportation business, which
may undergo changes affecting the advertising rights granted herein. PSTA accordingly
shall have no liability to Contractor for any change in its routes or in the number of
transit vehicles operated by it or ridership or for any other change in its business
activities which may ,affect. the level ,or scope of advertising authorized by PSTA.
Contractor acknowledges that the space available for advertising on shelters may vary
from time to time for various reasons, including policy decisions by PST A relative to the
desirability of advertising on some of the transit shelters. Contractor agrees that any and
all contracts it enters into with advertisers shall contain a clause permitting cancellation
by Contractor or its assignee without penalty, except for proration of fee, upon sixty (60)
days' notice.
III. SPACE ALLOCATION AND UTILIZATION:
A. General:
Notwithstanding the provisions of Section I of this Agreement, PSTA, at no
charge to PSTA except as specifically set forth herein, shall also have the option
to use certain advertising space which has not been sold, as set forth more
specifically in this section.
B. Unused S{Jace:
PSTA shall have the right to use any unused advertising spaces on a "Space
Available" basis. PSTA shall bear the co'st of providing posters printed and ready
for posting. PSTA's Director of Marketing shall notify Contractor at lease thirty
(30) days prior to the date on which PSTA's use will begin.
5
~. .. ' .
C. Promotion of Adve~isilll! Space:
Contractor may, with PSTA's approval, use at Contractor's sole cost and expense
available unsold advertising space for its own advertisement and promotion
designed to increase the sale of advertising space on the transit shelters erected
pursuant to this Agreement. '
D. Non-Commercial Advertising Space:
Exclusive of all commercial advertising space referred to in this Agreement,
PSTA reserves the right to place on all transit shelters informative material such
as set forth in the Technical Specifications. Such informative material shaH be
displayed and posted by Contractor at no'.cost to PSTA as set forth in the
Technical Specifications. PSTA shall not sell such space to advertisers either
directly or through any intermediary.
E. Public Service Announcements:
Contractor shall have the right, with PSTA's, approval (which shall not be
unreasonably withheld), to display free of charge upon any spaces not contracted
for use by paid advertisers, certain public, educational, and charitable displays.
F. Design Considerations and Use of Materials:
It is the intent of both PSTA and Contractor to provide an advertising program
which is effective and aesthetically pleasing and which will be beneficial to both
parties. The parties accordingly agree: (1) to maintain through the term of this '
Agreement a continual liaison and exchange of plans and information to assure
its successful implementation; and, (2) to use materials and technology presently
available or subsequently developed' for advertising that will enhance the
appearance and image of the shelters.
IV. INSTALLATION AND MAINTENANCE OF SHELTERS:
A. Contractor shall install shelters in the locations approved by PST A. Contractor
shall be responsible for adhering to statewide building and electrical code
standards and any applicable standards for shelter design, construction and
installation. PSTA personnel shall be entitled to inspect the work and oversee the
enforcement of these standards.
Internal electrical components and' hook-up procedures shall be arranged and
performed by the Contractor in accordance with the statewide electrical code.
The Contractor shall bear the full cost of installing, providing, and maintaining
electrical services to each shelter. All liability related to electriCal connection,
installation, or repair for shelter construction, operation, and maintenance shall
be the sole responsibility of the Contractor. Contractor, at its own expense, shall
obtain local encroaclunent permits as required.
6
B. Maintenance. Repair~. Replacement:
1. General:
Contractor shall maintain, repair and replace all transit advertising shelters
installed under this Agreement as set forth below. '
2. Maintenance Schedule:
Contractor shall conform with the maintenance and repair standards set
forth in this Agreement and be responsible for maintaining shelters in a
properly-maintained condition throughout the life of the Agreement,
including cleaning, refurbishing" reconditioning, and, if necessary ~
replacing shelters. ;rb<:."1~ntractor~,shall,;developa' . log fot:'shelter
inspections and maintenance work performed and submit the log to PSTA
at the end of every month or as required by PSTA's Director of
Operations. If the Contractor does not maintain its routine inspection and
maintenance schedule or remedy outstanding deficiencies within forty-
eight (48) hours of notification, PST A shall be' entitled to. correct the
deficiencies and bill the Contractor for the work performoo., In addition,
the Contractor shall furnish to the Director of Operations a. monthly
narrative summary of its maintenance operations, noting, problem areas
and corrective actions taken.
3.
Inspection and Cleanup: ' ' ,
The Contractor shall make routine inspection calls on each shelter site
twice per week. ,The Contractor 'shall make more calls if conditions
warrant. At each inspection call the Contractor shalL collect, trash and
clean and wash each shelter.site,';JlS,needed. Additionally, the Contractor
shall inspect the lighting fixtures and replace defective lights and remove
all graffiti, stickers, extraneous posters; litter, dust and 'dirt, and weeds
from each shelter site and from a fifteen foot (15') radius sUrrounding the
shelter site. Where it is obvious that additional debris is originating from
a specific shelter location, Contractor shall clean that litter up even if it
exceeds the 15' radius. '
.,
4. Repair and Replacement:
The Contractor shall repair or replace within forth-eight (48) hours of
notification any damage, vandalism or graffiti found on or around the
shelter site, exclusive of other street furniture and private property. If the
shelter damage, vandalism or graffiti is of an emergency or hazardous
nature, or if light sources need replacing, the Contractor shall repair,
replace or remove the same within twenty-four (24) hours of notification
or as needed. If the shelter is destroyed or harmful to the public, the
Contractor shall remove the shelter remains or damage as soon as
possible, and in any case no more than twenty-four (24) hours after
notification and replace the shelter within fifteen (15) days of notification.
7
, .'
5. Contractor's F~ilure to PerfonTI Services:
If Contractor fails to provide maintenance, clean-up andlor repairs within
time periods specified above, PSTA may, in PSTA's sole discretion and
without prejudice to any'other legal remedy. for breach of this Agreement
to which PST A may be entitled, provide any or all of the omitted services
and bill Contractor for all expenses incurred. Contractor shall pay all
such billings within thirty (30) days of receipt of PSTA's invoice.
V. APPROVAL AND PROPRIETY OF ADVERTISING MATERIAL: REMOVAL:
A. PSTA resetves'theright,:to,'approve-'all advertising, exhibit material -or
announcements and their manner of presentation, which approval shall not be
unreasonably withheld.
B. No advertising promoting the sale of alcohol, tobacco, or political or socially
embarrassing subject shall be allowed in the bus shelters.
C. No advertisement, exhibit material or announcement shall be accepted by
Contractor for display in the bus shelters which is to the knowledge of the
Contractor:
1. False, misleading or deceptive;, or .
2. Clearly defamatory or likely to hold up to scorii or ridicule any person or
group of persons; or
3. Obscene, or pomogmphicl, or
4. In advocacy 'of imminent lawlessness or unlawful violent action; or
5. All or any combination of the foregoing.
D. Before displaying any advertising, exhibit material or announcement which
Contractor reasonably believes may be objectionable to PST A, Contractor shall
first submit the material to PSTA for PSTA's review. PSTA shall have the right
to deny the use of any transit shelter advertising space for any material which it
reasonably determines to be objectionable.
E. Reasonable proof or clarification of statements contained in an advertisement,
exhibit material or announcement may be required by PST A as a condition of use
or continued use of transit shelter advertising space.
F. Advertisements of a political or editorial or election nature are prohibited.
G. Contractor shall immediately remove from any transit shelter, at Contractor's sole
cost and expense, upon written demand of PSTA or its authorized representative,
any display, sign, poster or other advertising material, including advertising
content, which does not meet with PSTA's reasonable approval. In the event that
such matter is not removed within three (3) working days of receipt of tile written
demand, PST A or its authorized representative may remove said material or
display and Contractor shall pay any costs incurred by such action. PST A or its
8
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authorized representat~ve shall not in any way be held responsible or liable for
any damage to the transit shelter or materials so removed.
H. Contractor.-shaIL.establish.,aischedule..oL-rates ,to.,be"applied.to the advertising :in.
,transit shelters. Suchrates!sfiiiR;be forwarded to PSTA initially and immediately
upon any changes during the course of this Agreement. The Contractor will use
its best efforts to sell advertising on shelters at the scheduled rates while
recognizing that economic factors may exist sometimes where selling at a lower
rate is economically justifiable in the market place. '
1. Contractor shall have the right to.~trade 'uncommitted advertising .space for an
equivalent market value of advertising space or time on other advertising media
or other goods and services providing: . . ",
1. Such trade agreements are in written-form with copies provided to PSTA.
2. Contractor shall use its best efforts to sell advertising space for cash and
to minimize unsold or traded space.
3. 'The value of the trade 'agreement shall be credited as the equivalent of
cash and considered as part' of the net advertising revenue utilized to
determine the compensation due PST A under Paragraph 1.F of this
Agreement. The value of the trade agreement shall be equal to the rate
that would be charged for the advertising as pro.vided by the schedule of
rates established under ,Paragraph V.H of this Agreement.
J. Advertisements displaye(b~with1'.(fated' content shall be removed by Contractor
within ten (10) working days of the expiration or obsolescence of the ad content
unless otherwise mutually agreed upon.
VI. ' GENERAL STATEMENT OFSERVICE TO BE FURNISHED BY CONTRACTOR:
Contractor, or its employees and approved subcontractor shall:
A. Make a good faith effort to have enacted amendments to various sign ordinances
or obtain the necessary approvals of the cities and Pinellas County to allow the
erection of the advertising transit shelters described herein;
B. Make a continuous full-time, and good faith effort to sell the greatest practical
amount of advertising on PSTA's shelters;
C. Be responsible for obtaining all necessary approvals and permits for the
installation of the transit shelters and providing all necessary information to obtain
all such approvals and permits;
D. ContinuoU$ly maintain in a clean, safe, and properly-maintained condition during
, the entire term of this Agreement all shelters installed under this Agreement;
E.' Place, replace and maintain in a clean, safe, and properly maintained condition
during the entire term of this Agreement all shelters and, advertising copy,
advertisements, suitors, transit information and display materials;
9
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F. Provide an adequate s~les force with the capability to acquire national advertising
accounts; I
G. Contractor shall be responsible for ensuring that all advertising meets all
applicable laws and .regulations, including, but not limited to Sections 337.407
and 337.408, Fla. Stats., and city/county sign codes and building codes;
H. Maintain its own offices and shop facilities in the Tampa Bay area;
1. Assure the best possible in design and construction of exhibits and advertising
material to be installed or used in said displays;
J. Erect all shelters and insert all advertising matter" PST A transit information and
poster art whenever possible at hours of minimum transit passenger activity or at
such hours as are ~pproved by PST A; and
K. Provide the necessary personnel to ensure the correct maintenance of shelters and
advertising matter contained therein.
VII. SHELTER INSTALLATION. DESIGN AND CONSTRUCTION:
A. Permit Approval:
The Contractor shall submit site plans (as described in paragraph VII.C.3) for at
least twenty (20) shelter sites at one time, to PSTA's Executive Director before
Contractor applies for permits for the installation of any transit shelters. PSTA
will review the site drawings and inspect the sites for each group of at least
twenty (20) shelter sites prior to granting approval to install the shelters. The
Contractor ,shall secure PSTA's ,wrlttenauthorization for each shelter prior to
applying for a ,permit for installation of said shelter.
B. Installation Schedule:
Contractor shall begin installation of each shelter within thirty (30) days after
issuance of PST A's written authorization and issuance of all required City/County
permits .
C. Shelter Installation:
1. Placement
No shelter shall be constructed on a parkway or sidewalk dedication less
than ten feet (10') wide, except in specific cases that are approved by
PSTA. .
Shelter placement shall comply with Americans With Disabilities Act
(ADA) guidelines. No shelter shall be placed such that, in the opinion of
PST A, it affects the performance of any traffic control device. If PST A
determines that the shelter can be allowed by altering the traffic control
device, Contractor shall, at its sole expense, be responsible for any
necessary alteration if the site is still desired.
10
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....
No part of any shelter shall be placed within forty-five feet (45') of any
adjacent point of curb return or driveway unless adequate site distance can
be provided to the satisfaction of PSTA.
For safety reasons, shelters shall not be installed on any island designated
to separate or regulate vehicular traffic unless otherwise approved by
PSTA.
Shelters shall not normally be installed on steep streets of over 1: 12
grade. Where the shelter has been found to be desirable on steep streets,
the design of the shelter and its placement may be required to be altered
in a manner acceptable to PST A.
Public or private land adjacent to the sidewalk shall not be utilized for
shelter. siting without written approval from the PSTA Executive Director.
In addition, Contractor shall secure the necessary legal instruments from
the affected landowner(s) authorizing such use of the property. All such
legal instruments shall name PSTA as a successor to the Contractor's
interests therein upon termination of this Agreem,ent.
2. Clearances
a. Minimum clearance between the shelter and any obstruction (i.e.
street lights,power pole, trees, etc.) shall be forty-eight inches
(48"). "
b. The area between the shelter and the curb line shall be a paved
surface.
c. A concrete pad shall be provided at each shelter, at the curb which
is a minimum of eight feet (8') long (parallel to curb) by four feet
(4') wide (perpendicular to curb). Existing paving and/or sidewalk
may suffice for this requirement.
3. Location/Construction Drawings
The Contractor 'shall submit to any City/County which requires the
issuance of any permit for installation of the shelter a location/construction
drawing (site plan) showing shelter placement along the designated bus
zone for each of the shelter sites submitted by Contractor and all' other
plans and drawings necessary to obtain the required approvals and pennits
to erect and maintain the transit shelters. The location/construction
drawing shall contain a twenty-foot (20') to one-inch (1") scale (20 scale)
representation of the proposed shelter site covering the area for the shelter
from the property line to the street centerlines at the nearest intersection.
Mid-block sites can be shown with broken line ties. The drawings shall
also give all necessary street or station dimensions, such as sidewalk
length and width and street width, and denote all surface structures
including hydrants, utility poles and catch basins and their accurate
positions. Any object or obstruction within 20' of the shelter slab proper
must be shown. The Contractor is responsible for determining which
utility lines lie beneath the shelter site and for showing them 0':1 the
11
location/construction drawing as well as their depth below grade if known.
The City/County must issue a permit (if one is required) before the
construction work commences on a particular site.
D. Shelter Design:
1. General
Contractor shall be responsible for adhering to the statewide building and
electrical code standards and to any applicable Florida State Office of
Construction and installation.
2. Minimum Shelter Design Specifications
a. Shelters shall be no less than seven feet (7') high minimum
interior. .
b. Shelter shall have a minimum of two (2) wall panels or offer
equivalent protection.
c. Shelters shall provide protection from wind, sun and rain. A
protected top and bottom side vent must be provided. The top
vent must be designed to prevent rain from entering the shelter via
the vent.
~
d. Shelter shall offer see-through visibility from all directions, except
as effected by the advertising or any telephone that may be
installed in the transit shelter, and shall be designed to be
compatible with park sites and commercial or residential
neighborhoods.
e. I Shelters shall be adaptable for narrow easements or right-of-way
not less than ten feet (10') wide.
f. Shelters shall provide front walk-through and be similar in design
to PSTA's existing shelters.
g. Shelters shall meet all ADA requirements with wheelchair space
within and access of at least a thirty inch (30") wide opening" and
shall not obstruct a wheelchair user boarding or alighting from an
accessible vehicle at an accessible transit stop.
h. Shelters shall have individualized or other seating that: can
accommodate a minimum of four (4) people. Benches shall be no
less than sixteen inches (16"), nor more than twenty-four inches
(24") high.
1. The advertising panels shall be illuminated during the evening,
provided that it is not annoying to nearby businesses or residences.
Shelters shall also contain vandal resistant lighting fixtures, if so
equipped.
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"
"
j. Shelters shall have a roof drainage to prevent water from dripping
over the edges.
k. Shelter roofs and slabs shall be pitched so as to prevent pooling of
water on the shelter roof or floor.
l. Shelters may contain a two-sided backlit advertising panel not
more than four feet (4') wide by six feet (6') high secured by
screw or key locking metal doors which cannot be pried open.
Advertising panels must be located on downstream side of shelter
or back panel so that unimpeded visibility of approaching transit
vehicles is permitted.
m. Shelters shall contain a panel for transit information designed to
hold a route map, information sign, and area for schedule ./ '
information. This panel shall be four feet (4') wide by three feet
(3') high.
n. Shelters shall contain a facia panel six inches (6") high for
mounting of identifying stop location, PSTA's logo, and route
numbers. All transit information graphics shall be delivered by
PSTA.
o. Shelters shall not obstruct any signage at site.
p. Shelters' shall not be so illuminated as to confuse passing vehicle
operators.
q. i Transit stop signs shall be incorporated into the shelter in
cooperation with PSTA and shall conform to Americans .,With
Disabilities Act (ADA) requirements.
" r. Each shelter shall include a trash receptacle. The trash receptacle
shall not be so positioned as to block the bypass space oetween the
shelter and the curb face. Minimum forty-two inch (42 It) space
clearance is required unless receptacle is physically attached to
shelter.
Trash receptacle specifications:
(1)
(2)
(3)
10-gallon minimum capacity
Bolted to site
Fiberglass, metal, concrete or plastic
construction
E. Shelter Construction and Materials Specifications:
.,
1.
Materials shall be chosen for ruggedness and ability to withstand
vandalism and weathering (Le. extruded aluminum with anodized
finish) .
"
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2. Shelter structure shall be compatible with existing PST A shelters
and street furniture.
3. Transparent vertical panels shall be minimum 1/4" tempered gla.ss
except advertising panel which may be 3/16" tempered glass. A
high impact strength polycarbon may be substituted.' at high
vandalism locations with the approval of PST A.
4. Materials and design shall conform to all local and state codes and
be able to withstand 130 m.p.h. wind loads and have test data and
certification from a Florida Registered Engineer to show structures
meet this requirement.
5. All shelter slabs must conform to PSTA's existing slab'
specifications and the requirements of the applicable local
jurisdiction. In the alternative, the Contractor may have a new
slab design developed which is signed and sealed by a Florida
Registered Engineer.
6. All concrete finishing shall conform to PSTA Standard
Specifications.
7. Contractor shall have its own quality control personnel working at
each construction site a minimum of one (1) hour per working day.
.'
8. Rough concrete fInishing shall be removed or ground down.
Concrete shall be smooth to a rough broom finish or to match
areas that are at site currently.
9. Shelter-to-slab fasteners must be non-corrosive (Le. stainless steel)
and removable in the case that shelter is moved.
10. Anodized aluminUm may be used for any columns or load bearing
members if of sufficient strength to bear loads. All aluminum
used shall conform to 6063- T5 or better.
11. The use of Fiberglass for any structural portion of the shelter
including ad panel and roof assembly shall be prohibited.
12. All metal surfaceS shall be fmished at the factory; on-site touch-up
will be permitted. There shall be a minimum of one primary coat
and two finish coats or a painting process that provides a paint
coating equivalent to or better than the foregoing. Acceptable
alternate colors may be approved by PST A.
13. All concrete used shall be per the PST A Standard Specifications.
14
F. Shelter Relocation:
Shelters may be removed and relocated because of private development,
City/County projects, public convenience, transit route or stop changes,
repeated vandalism to a shelter, or at the request of the PSTA Executive
Director.
PST A does not guarantee any specific site for the duration of the
Agreement. Contractor shall bear the full cost of remqval and relocation
of a maximum of ten percent (10%) of the total number of existing
advertising shelters per year, including, if affected by removal, sidewalk
and curb repair. In each case of removal required due to private ---'-
developments, PSTA will ask that the City/County require developers to
pay all costs associated with relocation. Additionally, the Contractor may
request permission of the PSTA Executive Director t<? relocate a shelter,
at the COl\tractor's expense, when the shelter has been repeatedly
vandalized or damaged. All shelter relocations shall be accomplished
within thirty (30) days of Notice to Proceed unless otherwise stated by the
PSTA Executive Director.
In the event that Contractor fails to repair, replace or relocate shelters
within the time herein specified, PST A may at its sole discretion, cause
the repair, removal or relocation of said shelter and the cost incurred by
PSTA shall be paid directly to PSTA by the Contractor within ten (10)
days following receipt by Contractor of an iIiVoice.
VIII. TERM AND TERMINATION:
,
,
A. Term and Extension of TeIm:-
. ! .
This Agreement shall terminate ten (10) years from the Start Date;'. as hereinafter
defined, unless sooner terminated as provided herein. The Start Date shall be the,
date upon which the Contractor receives permits for one hundred (100) transit
shelters under this Agreement or one (1) year from the date this Agreement is
executed, 'whichever occurs first. The term of this Agreement shall be
automatically renewed for an additional five (5) year term on those terms and
conditions agreed to by the parties, unless either party gives the other party 30
days' written notice of its intent not to renew this Agreement.
This Agreement shall conunence on the date this Agreement is made and entered
into, which date is stated below. PSTA shall not be responsible to the Contractor
for any damages due to delays.
1. With the agreement of both parties, this Agreement shall be suspended
and its term extended for that amount of time equal to the duration of any
significant action which temporarily prevents or temporarily impairs either
party from performing its respective duties or substantially receiving its
benefits under this Agreement. Notice of a party's desire to exercise this
option shall be served in writing to the other party within ten (10) days of
the significant action.
15
,
2. If any significant action permanently prevents or permanently impairs
either party hereto from performing its respective duties or sUbstantially
receiving its benefits under this Agreement, that party, at its option, may
cancel this Agreement, in which event the parties shall be discharged fro~
all obligations hereunder. Notice' of party's election to exercise this
option shall be served in writing to the other party within ten (10) days of
the significant action. For the purposes of this paragraph, significant
action caIUlot be regarded as having a permanent effect unless that action
has become final.
3. Notwithstanding anything contained herein to the contrary,eithet"p1trty,
may tenninatethis Agreement With-thirty (30) days notice if no local
jurisdiction in -PSTA~s,serviceareahasprovided the necessary approvals,
to allow the placement of advertising in transit shelters within one (1) year.,
of the date this Agreement was entered into, as shown below. Provided,
however, the parties may agree to an extension of this period under
subparagraph 1 above. PST A shall have the same right to tenninate this
Agreement after a local jurisdiction in PSTA's service area has decided
to allow the placement of advertising in transit shelters if Contractor fails
to install shelters as detailed in Exhibit C to this Agreement.
B. Options For Disposition of Shelters Upon Termination:
Upon termination of this Agreement by expiration of its terms, PSTA shall have
the option to either; (a) assume title to all shelters. by purchasing them from
Contractor free and clear of liens and encumbrances, at the current value of the
shelters as detennined by using the formula contained in paragraph D.1 below,
or , (b) direct Contractor to remove the shelters and restore the respective
sidewalks and curbs to their proper condition, within ninety (90) days, at
Contractor's own cost and expense, and if Contractor fails to do so within ninety
(90) days, PSTA. may, without further notice and at Contractor's cost and
expense, remove the shelters and restore the sidewalks and curbs to their proper'
condition; or (c) negotiate an extension of this Agreement with the Contractor.
C. Default of Contractor:
In the event that Contractor fails to carry out any material term, covenant,
condition, or promise herein set forth, PSTA shall have, and may elect among the
following remedies:
1. Termination
PSTA may serve upon Contractor thirty (30) days' written notice of
termination of this Agreement, and if Contractor does not cure the default
within thirty (30) days, PSTA may terminate this Agreement and may
assume title to the shelters and assume all advertising contracts of
Contractor relating to this Agreement, as provided in paragraph D below.
Contractor thereafter shall not be entitled to any revenues whatsoever on
advertising in place after the said termination date. No such termination
of this Agreement by PSTA shall in any way affect the obligations of the
Contractor or the rights of PST A which have accrued prior to such
termination.
16
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2. Actual Damal!es
In the event that PSTA elects not to serve a Notice of Termination of this
Agreement, or if such a Notice is served but Contractor's default is cured,
then PST A shall be entitled to recover from Contractor any loss or
damage which PST A may have incurred by reason of Contractor's default.
3. Other Remedies
The exercise of the remedies provided for in this section shall be
cumulative and shall in no way affect any other remedy available under
the law to PSTA.
D. Termination Prior to Term:
If this Agreement is terminated in accordance with paragraph C.l above, PSTA
shall, thereafter, in its discretion exercise Option 1 or Option 2 below:
1. PSTA shall pay to Contractor the current value for every such transit
shelter owned by the Contractor. The method of calculating- the current
value of a transit shelter shall be as follows:
Current
Value
Shelter
Unit Price
Depreciation
Period
(In Months)
x
Depreciation
Period
(In.'Months)
Months
ill
Service
The shelter unit prices for the various shelters to be used by Contractor
I are provided.. in Exhibit D to this Agreement. Title to all transit shelters,
free and clear of liens and encumbrances, shall be granted to PSTA upon
payment of this amount.
2. - Contractor shall remove or cause to be removed all shelters covered by
this ~greement and owned by Contractor and restore the respective
locations to their original conditions" within one hundred twenty (120)
days of PST A's notice exercising this option. If Contractor fails to
remove the shelters within one hundred twenty (120) days, then PSTA
may elect to have the shelters removed and the Contractor shall be
responsible for PSTA's cost of removal.
IX. MISCELLANEOUS CONTRACT PROVISIONS:
A. Florida Office:
Contractor shall maintain a staffed business office in the Tampa Bay area in order
to facilitate coordination between PSTA and Contractor.
.,
17
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B. Subcontractors:
PST A grants the Contractor the authority to hire subcontractors as Contractor
deems necessary to fulfill the requirements detailed in this Agreement. However,
all proposed subcontractors must be submitted in writing to, and approved by the
PST A Executive Director.
C. Indemnity and Insurance:
1. Contractor shall provide insurance as set forth in' RFP 94-021 P.
The parties recognize that the Contractor is an independent contractor.
The Contractor agrees to indemnify, hold harmless and defend PSTA, -its
,employees, officers, and agents of, -from, . and against all liability and
expense including reasonable attorney's fees, in cOlUlection with any and
all claims whatsoever for personal injuries or property damage, including
loss of use, caused by the negligent or deliberate act or omission of the
Contractor, its agents, officers, contractors or employees or anyone else
for whose acts the Contractor may be liable. This includes claims made
by the employees of the Contractor against PSTA and the Contractor
hereby waives its entitlement, if any, to immunity under Section 440.11,
Florida Statutes. Nothing contained herein shall be construed as a waiver
of any inununity from or limitation of liability PSTA may have under the
d9ctrine of sovereign immunity or Section 768.28, Florida Statutes. This
indemnification and hold harmless includes'indemnification to PSTA for
any damages of any kind or claims arising ouf of Contractor's violation
or alleged violation of any third parties' trade secrets, proprietary
information, trademark, copyright, or patent rights.
D. Social Security. Unemployment Compensation:
Contractor shall, upon request, furnish to PSTA adequate evidence of provision
for compliance with laws, relating to Social Security , Unemployment
Compensation and Workers Compensation Insurance.
E. Authorized Reoresentatives and Notices:
PSTA and Contractor shall each designate an Authorized Representative who has
authority to act on its behalf for this Agreement. All notices provided for under
this Agreement shall be in writing and shall be served on the Authorized
Representative of the receiving party and deemed to hav"e been duly given:
i) on the date of delivery, if delivered personally to the party to whom notice
is given, or if made by telecopy directed to the party to whom notice is
to be given at the party's telecopy number listed below, or
ii) on receipt, if made by telecopy directed to the party to whom notice is to
be given at the party's telecopy number listed below or if mailed to the
party to whom notice is to be given by registered or certified mail, return
receipt requested, postage prepaid and properly addressed as follows:
18
:. -. ~ ir
PSTA:
"".
Mr. Roger Sweeney
Executive Director
Pinellas Suncoast Transit Authority
14840 49th Street North
ClealWater, Florida 34622-2893
Telephone: (813)530-9921
Fax No.: (813)535-5580
With a copy to:
Alan S. Zimmet, Esq.
Tew, Zinober, Barnes, Zimmet & Unice
2655 McCormick Drive
ClealWater, Florida 34619
Telephone: (813)799-2882
Fax No.: (813)726-0058
Contractor: Mr. Steven J. Hunt
Executive Vice-President and Chief Financial Officer
Patrick Media Group, Inc.
737 North Michigan Avenue
Suite 1300
Chicago, Illinois 60611
Telephone: (312)537-3005
Fax No.: (312)537-1O~9
With copies to:
Mary Beth Debord, Esq.
Roger Wilen, Esq.
Altheimer & Gray
10 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Telephone: (312)715-4000
Fax No.: (312)715-4800
Changes in the name or address of such Authorized Representatives shall
be made by advance written notification to the other party.
F. No Waiver of Subsequent Breaches or Defaults:
The failure of either party to insist upon a strict performance of any of the tenns,
conditions and covenants herein by the other party shall not be deemed a waiver
of any subsequent breach or default in the terms, conditions and covenants herein
contained.
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G. Assignme~t:
This Agreement and the rights granted therein may not' be assigned by Contractor
without the prior written consent of PST A. This Agreement and the rig4ts
granted therein may not be assigned by an assignee of Contractor without the
prior written consent of PSTA. Any assignment in violation of this provision
shall be void.
,If Contractor is a corporation, any dissolution, merger, consolidation, or other
reorganization of Contractor, or the sale of other transfer of a controlling
percentage of the capital stock of Contractor shall be regarded as an assignment
within the meaning of the foregoing paragraph.
H. Applicable Law:
All questions pertaining to the validity and interpretation of this Agreement shall
be determined in accordance with the laws of the State of Florida applicable to
contracts made and to be performed within the State.
r. Taxes:
Contractofi:$haIlpay all lawful taxes and assessments levied or assessed on its
personal property , on any possessory interest in real property and any taxes or
assessments levied in connection with its operation under this Agreement.
J. Legal Relationship:
The parties hereby declare that it is not their intention by this Agreement or any
of the terms thereof to create a partnership, joint venture or agency relationship
between them.
.'
K. Section Headings: ,
The section headings contained herein are for convenience in reference and are
not inte~ded to define or limit the scope of any provision hereof. .
L. Entire Agreement:
This Agreement represents the entire agreement between PSTA and Contractor,
and supersedes all prior negotiations, representations or agreements, either written
or oral. This Agreement may be amended only by a written instrument signed
by both PST A and the Contractor.
M. Force Maieure:
Whenever a period of time is herein prescribed for action to be taken by either
party, the party shall not be liable or responsible therefor, and there shall be
excluded from the computation for any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, theft, fire, public
enemy, injunction, insurrection, court order, or war.
20
EXHmIT "E"
BASIC TERMS AND PROVISIONS OF THE "TRANSIT SHELTER ORDINANCE"
A. Transit shelters containing signage and advertisements in accordance with the
PSTA Agreement shall be permitted in any commercial, office, or industrial
zoning district and in multi-family residential zoning districts on PSTA routes
adjacent to hospitals, schools, or other permitted non-residential uses in multi-
family residential zoning districts, or adjacent to Assisted Living Facilities or
Adult Congregate Living Facilities located in any zoning district.
B. The transit shelters shall be subject to the following performance standards:
(1) The advertising contained in the transit shelter shall be limited to the
"downstream" end wall (furthest from approaching transit vehicles) for a
two-sided or flared and secured panel. In no case shall advertising be
displayed on the end wall closest to the approaching transit vehicle.
(2) Lighting of advertising material shall be limited to back-lighting.
(3) No advertising poster shall exceed twenty-fo'llr square feet in area, or be
greater than six feet in height and four feet in width.
(4) Transit shelters shall be no less than seven feet high (interior), no more
than 10 feet high (exterior), shall have a minimum of two wall panels.
(5) Shelters shall include a trash receptacle.
(6) The design and construction of shelters shall conform with the
requirements contained in the PST A Agreement.
(7) Transit shelters may only be erected at bus stops approved by PST A on
PSTA routes. The transit shelters erected pursuant to the terms of the
Transit Shelter Ordinance shall be located a minimum of 1,000 linear feet
.measured along the same side of the right-of-way from one another except
as provided below.
(8) In certain instances, the City Manager shall waive the 1,000 linear foot
requirement set forth above pursuant to a special permitting procedure to
. be established in the Transit Shelter Ordinance and shall allow transit
shelters containing advertising to be erected and maintained less than
1,000 linear feet from each other. These instances shall include:
Tfl562598.10
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(a) Wher~ two (2) or more PSTA routes follow the same right-of-way
and transit shelters are required by PST A on the same side of the
right-of-way;
(b) Where PST A notifies the City that more than one (1) transit shelter
is desired along the same PST A route less than 1,000 feet from
another transit shelter erected pursuant to this Transit Shelter
Ordinance because of ridership or use demands, the close
proximity of PST A routes, requests from riders or for other
similar reasons; provided, however, there shall be a minimum of
500 linear feet between transit shelters containing advertising; and
further provided that there shall be no more than three (3) transit
shelters containing advertising in any 2,000 foot linear segment
measured from the two (2) transit shelters located the greatest
distance from each other; and
(c) Where the transit shelter is erected as a part of and in accordance
with the requirements of a corridor plan adopted by the City,
including, without limitation, any special design criteria adopted
as part of the corridor plan.
I'
C. Transit shelter shall not be placed on rights-of-way less than 10 feet wide and
shall not be placed in a location which interferes with any traffic control device.
D. In order for transit shelters to be placed on private land, the PST A must notify
the City that a shelter is needed and appropriate in a proposed location where
adequate public right-of-way does not exist.
E. If the transit shelters are erected on public right-of-way over underground public
utility lines, then the City shall retain the right of access in and under the Transit
Shelters to repair any damage to the underground public utilities; and Eller shall
be responsible for repairing and replacing the transit shelters if the City damages
any of the transit shelters in connection with repairing such underground utilities.
The City agrees that, except in emergency situations, the City will provide prior
notice of utility repair activities affecting the transit shelters to Eller and shall
coordinate such utility repair activities with Eller to the extent possible in an
effort to minimize damage to any transit shelters erected by Eller.
F. All existing ordinances and regulations of the City which are inconsistent with
this Ordinance shall be revoked.
Tfl56259B.lO
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EXHIBIT F
JOINT STIPULATION FOR DISMISSAL WITH PREJUDICE
"
't, ,.
. " ~~..
IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA
". CIVIL DIVISION
PATRICK MEDIA GROUP, INC. *
a Delaware corporation,
*
Plaintiff,
*
v.
Case No. 93-174-CI (21)
*
CITY OF CLEARWATER, a Florida
municipal corporation,
*
Defendant.
*
/
JOINT STIPULATION FOR
DISMISSAL WITH PREJUDICE
Plaintiff, Eller Media Company, also known as Patrick Media
Group, Inc., and the City of Clearwater, Florida, jointly move
this court for ehtry of an order dismissing the above matter with
prejudice on the. grounds that the terms and conditions of the
parties' settlement stipulation dated January 15, 1998 have been
satisfied.
Charles Siemon
Florida Bar Number 091225
SIEMON, LARSEN & MARSH
Mizner Park, Suite 339
433 Plaza Real
Boca Raton, Florida 33432
(407) 368-3808
Attorneys for City of
Clearwater
Gwynne A. Young
Florida.Bar Number 185582
Sylvia H. Walbolt
Florida Bar Number 033604
Donald E.Hemke
Florida Bar Number 305057
CARLTON, FIELDS, WARD,
EMMANUEL, SMITH & CUTLER, P.A.
Counsel for Appellant
One Harbour Place
Post Office Box 3239
Tampa, Florida 33601
(813) 223-7000
Attorneys for Patrick Media
Group, Inc.
T#645405.1
EXHIBIT "F"
I > ~ ,,'., .
..' ...
EXHIBIT G
ORDER APPROVING SETTLEMENT STIPULATION
.,
! I -:.
IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA
~ CIVIL DIVISION
PATRICK MEDIA GROUP, INC. *
a Delaware corporation,
*
Plaintiff,
*
v.
Case No. 93-174-CI (21)
*
CITY OF CLEARWATER, a Florida
municipal corporation, *
Defendant. *
/
ORDER APPROVING SETTLEMENT STIPULATION
THIS CAUSE came on to be heard on the joint motion for entry
of an order approving the settlement stipulation between the City
.
of Clearwater and Eller Media Company f/k/a Patrick Media Group,
Inc. The Court,] having reviewed the joint motion and settlement
stipulation and being ,otherwise duly advised in the premises,
does hereby approve the settlement stipulation, and retains
jurisdiction to enforce the settlement stipulation.
DONE AND ORDERED in Chambers at Clearwater, Pinellas County,
Florida, this
day of
, 1998.
Circuit Judge
Copies furnished to:
Gwynne A. Young, Esquire
Charles L. Siemon, Esquire
T#614072.1