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04-797Council File # O � _ � • � RESOLUTION CITY OF SAINT PAUI., MINNESOTA Presented By Refenred To Green Sheet # 3021602 �� Comxnittee: Date 1 WHEREAS, the settlement set forth in the settlement letter, dated August 5, 2004, attached and 2 incorporated hereto as Eachibit "A", will result in a fixll, final and complete settlement and release 3 of ali pending lawsuits between the City of Saint Paul and Cleaz Channel Outdoor, Inc.: Court 4 File No. C7-01-8400, 7 windstorm damaged signs; Court File No. 02-1060 DWF/AJB, lst Am. 5 challenge, annual fees & inspection; Court File No. C4-03-1523, Five billboards; Court File No. 6 C8-03-3324, 1209 St. Clair (St. Clair/Ayd Mill); Court File No. C1-03-8963, 1016 Raymond 7 Avenue; Court File No. C9-04-1561, 1926 University; Court File No. C6-04-1565, 1084 8 University; Court File No. C4-04-1564, 1521 Selby; Court File No. C2-04-1563, 1278 Grand 9 Avenue; Court File No. C4-03-1523, 1670/76 White Bear; Court File No. C9-04-5092, 1484 10 11 12 13 14 15 16 17 18 19 20 21 22 White Bear (Taco Bell); and no Court File No., Grand/Ayd Mill (Vandalized sign); and The Council having fully considered the same; BE IT RESOLVED, that the proper City officers are hereby authorized and directed to take all actions necessary to execute and file the appropriate settlement documents, draft and sign a mutual release, make the payxnents, and issue the permits as set forth in the settlement letter, attached and incorporated hereto as Exhibit "A". Requested by Department of: City Attorney's Office aY: Eric D. Larson ss i v orney Adopted by Council: Adoption Certifi d By: Approved by , ��r: Hy: �" � Date .�:��E?����/��f � � Council �ecretary Form App ved by ity Attorney �pproy�d by ayor for Submission to AUG-06-04 10:06AM FROM-Bernick And Lifson 763 546 1003 T-065 P.�03/015 F-401 OFFICE UF THE C:7TY ATTORNEY O � ��� A9anuelJ. Cr�va�Jex Cilyduorney � CITY OF SAINT PAUL Rundy C. Kdly. Mayar Litigolion Sacli�n SSO Ciry Flul! !S WevfKelloggBlvd Snine Paul, Minnesotn SSlO: TrlepMne: (15! 266-8770 frsrsti�rite: 651266-878? SET7CLEMENT DOCUMENT August S, 2004 Mazvin A Liszt David K. Nightingale Bernick and Lifson, P.A. Suiia 1200, The Colonnade 550Q WayzataBoulevard Minneapoiis, TviN 55416-1270 FAX ONL'Y RL: Court Filc No. C7-01-8400, 7 windstorm damaged si�s Court File No. 02-1 Ofi0 DWF'1f1.TB, Ist Am, challsnge, annua] fees & inspection Coiurt F�le No. C4-03-1523, Five billboaxds Court File No. C8-03 �324, 1209 St. Clair (St. Clair/Ayd Mill) Court File I3o. C 1-03-8963, 1016 Raymond Avenue CouR Fi1e No. CJ-U41561,1926 Univcrsity Court Pile No. C6-04-1565, 1084 Uuiversity Conrt Fi,1e No. C4-041564, � 521 Selby Court Fi1e No. C2-04-1563, 1278 Grand Avenue Court File No. C4-03-2523, � 6�0�76 VJh�te &ear Court File No. C9-O�t-5092,1484 Wliite Bear (Taco Ball) No Court File No. , CrandlAyd Mill (Vandatized si�Tt} De.ax' Mr. Lisz�: This leTter sets £orth my tmderstanding of the settlament reached between the City and your client, Clear Channel Outdoor, Inc., aubjcct to th� sole conditian of City Council approval and the Mayor's approval of the settlemont. This settlsment results ia the dismissal of all pendiag fedcrai and state court cascs bEiwccn Clear Channel Outdoor, Tnc_ and the City ot' Saint Paul and addresses one sign laeated at Cuand/Ayd Mill mad currently not the subjecz o£pending litigatian. With respect to all the pending cases, except for the sums awarded by the federal court, plus an additionai payment in the axnouzat of $50,000.0�0, Ciear Channel waives all of its pendi.ng monetary claims again5t the•�ity. C1eat Ciiannel estimates it has incurred, up to July 1, 2Q04, lasf revenue and/or just compensation in the approximate amount nf �512,40U.00 and attorneys AA.AAA.EEO Employcr A�G-�6-04 10:06AM FROM-Bernick And Lifsan Mr. Lis�t Auaust S, 20U4 Page Two faes claim in the appzoximate amouat of $385,0�0.00.' � The Ciry wilt issue repair pem�its and fiuilding pezmits for si�s noted below. Clear Channel a� ees not td seek building pzrmits foz iwo signs, and remove the sign currenfly located at 1494 White Beaz Avenue., Clear Chsnnel and the City acknowledge that Mitm. Stat_ § 462357, subd 1 e, as amendQd in 2004, effective August 1, 20(14, realisrica3ly moots many of the pending billboard cases iri whote or in par[. Please confirm at your eazliest eonveuience that I have correcYly outlined the terms of the settlement rcached betwcen the parties respecting the 11 pending federal and stata coun c�.ses belween Clear Channel Outdoor, Inc. anci ihe City �f Saint PauJ. 1. 2_ Clear �hannel Ontdoor, Tnc. v. City of Saint Paul. Civ�1 Docket 0:02-cv-1060-D'4VI'- dSM. 1 Amendmerit chalieage (anttual fees and inspection) The Ciry will pay the attomeys fees and costs awardec3, plus interest ca)culatad. fram May 19, 2004, the entry of judgment date. Cieaz Chanzrcl harl requ�sted �127,207.59 in attomeys fees_ Both parties waive its appellate righis in the action and waivc any request for addirional attomeys fees, costs or disbursements beyond those awatded. Plus, thhe �'rrywill rehtm to Clcaz Channel the escrowed anmial hillboard fses paid by Cle�r Chazme3 in the amount of $68,875Ad plus inYerast fram the date of the escrow to date of payment. THe interesf rate will the pre- and pflst intezest rate for federal district court jud�nents. Clesr Chaanel Ontdoor, Ina v. City of 3aint Panl. Court File No. C7-01-84d0 (7 Windstorm Damaged Si�m case) In this action Clear Chaanel asserYs Qiat up to Iuly 1, 2004 it has sustained lost reveuues conservatively csumated in axcess of SZ00,000.00 a�id paid $173,000.00 iza attomeys fees, both of which ar claimed damages and expenses Clear Channel asserts the City owes if the maiter is litigated to a f'inal judgment and Clear Channel prevails. The City has iss¢ed r)ze buildin; permits per court judgment. ' Clcaz Cha�mel elaims it has ptid In excess of $1.3 milliaa in attoirieys fees and cos(s sim:t 1999 to the presmt arising out,ifs disgntes and ]irigadon wich the Ciry rcgsrding its �i�na. l"hr.P,385,000 sum is the amouIIt C1ear Ch�inel es[irnatcs it cnuld s�ek from ti�c ccrurts, incurred up to July 1, 2004, if it prwai7ed on all the pending livgacion, 763 546 1003 T-Ofi5 P.004/015 F-401 - 79? AA-ADA-L•L•O Employa A�G-06-04 1�:06A� FRO�-Barnick And Lifson Mr. Liszt AuDust 5, 2004 Page Three D�►- �9'1 In setciemeat, Ciear C3sannel will waive its just coznpensation/lost revenue temporary takin�, attornegs fces, aad costs and diaburscmcnts claim ,s plus any and all Qiher claims it has asserted or could assert arising out oFthe subjeez matter of the action. Ali parties wiR execute and file a stipulation of and order for dismissai of atl pending claims rvith pzejudice with no attorneys fees, costs, or disbursemeuts awarded to either party. 7 pendiag repa"v permit cases. Since most of the signs have contimxed to be used for ovtdoor advertisin� Clear Chanael estimates loss revenues somaa�'here between $20,OQ0 to �40,000_00 up ta July I, 2004. Clear Channel claims approximately $7�,000 in attorneys fees incurred up to July 1, 2004. 3. 4. 5. 6. 7. 8. 9_ 10. 1278 Grand A.venue. 1926 University_ 1670/76 White Eear 1209 St Clair Avenne (St ClairlAyd Mii1 Rosd) 1�16 Raymond Avenue 1084 Univers9ty aszi seivy Courtk'ile No. C2-94-1563 Court kYte No. C4-04-156.1 Court F�le No. CO-04-1562 Court FileI�Io. C8-03-3324 Court F51e No. Cl-d3-8963 Court k�le No. C6-04-1565 Conrt �le No. C4-o4-ISb4 In settlemenT, the City will issuc the repair pernaits for all thc abov�noted cases, numbers � thru 9. A11 partias wjll execute and file a stipulation o£and order for dismissal with prejtidicewithout actnrneys fccs and wsts or costs and disbursements to eitherparty. Clear Chaunel will apply and the CSty wilt �ant a Right of Way encraachment for rhe aign located at 1209 Selby based on its e:cisting location. �'ive Bnllboard Case (Identiesl to Delite lawsnit). Conrt b11e No. CA�03-1523 Cleaz Channel estimates lost revenucs up to July 1, 2d04 at apgroximately $372,000.00 and aEtomeys £ees in the amount of $15,d00.00 due to the CiYy's deni,al of 5 building permit applications"to construct new billboards. On February 2, 2002, the Ciry had been ordered'to issuo building permits to Delite Outdoor Advertising in a lawsuit raising the same lega] claims against the Ciry. � Fivc sign loeatioris are at issue: ( i) Lower Rice Street Railmad bridge, (2) Como Aveuue Railroad bridge, (3) Savoy Pizza, (4) East end of Reilogg Bridge, and (5) Middle of KelIogg Bzidge. The City wi! l issue a building permit for the 1�` three sig�s. Cl�ar Chanssol will nat receive a pezmit for the last two locations. Tl�e parties wili enter into a mutuai release agreement where the City agrc¢s to issue the building perntits fvr the 7"` thz si� locations and both parties release any and all clai.ms arising out o£the subject matter oftho camplaiut. Couasel far the parties will execute and file a stipulation of and ordec for dismissai with prejndice with tto attomeys fees, or costs and disburscments awaxdad. 763 546 1003 T-065 P 005/015 F-401 AA-ADq-Fi60 ETII�1cyC[ A�G-06-04 10:�6A� FROM—Bernick And Lifson Mr. Liszt August 5, 2004 Page FouT 11. 12. 1484 White Bear (Taco Bel�_ Court FiYe No_ C9-(14-5092 py- �9'7 Cieaz Ch�nel wiil remove the sign in its entirety wifhin ten days of complete execution of a mutual release an@ ifs recaipt o£the monies set forth in the settlement The parties ivill execuTe and file a stipulazion of dismissat witb prejudice witlxon2 the imposition of attomeys fees and costs and disburseznents to eithez party. Grand/Ayd Mi11 Road (Vamalalized sign) Legal action has not been cammenceti between Clear Chazwel an.d tha Crty respectang tl7is sign. Both partics agree that thc evidence indicates this sign was vandali2ed causing it to fal] to flie ground. Within thirty days a$ei'tlte execurion of the mutual release, Cleaz Chumel will file a repair permiz application �vith tlie Ciiy for its replacerczent, dimensions attd height will be no greater than the previous structure. The City will issue the repair petmit. Also, the City wiil pay Clear Channel ihe sum of $SA,�00.0�, in adclition ta those payments noted above, by Friday, Saptember 7.�, 20�4, or within 30 days after the execution of all releases and stipulations of dismissals set forth above, whichever is later. This settlement is {unher co�ingeut on the removal or cancellation of the existing moratorium on building/rePair permits for nonconFarminb outdoor advertising signs_ IFthe matier is nol settled and Clear Charmel prevails, the City tmderscands tha� Clear Cl�annel will not be held lo the lost revenue/just crn'npensation °,stimates and aftomeys feas �timates set forih above, but vrili submit its claim for such sums based upon caleulaiions atzd u2voices to bc submitted to the court and the City when and if appropriate. Clear Channol reccntly provided documentation evidencing support of its lost rcvenues claims to Assistant City Atfomey Eric 3..arson. This documentation is mzderstood ta be trade secret, non- puhlic data suhmitted for setflement puzposes only Please confirm that Y have correctly set forth the tesms of the settlement �Y.ou � l f.. ERTC b. • ON Assistant �iiy Attorney 763 546 1003 T-065 P.DO6/015 F-401 AA-qDMEEO Employef A�G-06-04 10:O6AM FROM—Barnick And Lifson Mr. Liszt August 5, 2(lU4 . Page Five oy- �9� The abovc lcitcr correctly relates the settlement reached between the Clear Channel0utdoor, Tnc, and the City of Saint Paul � Dazed; August �, 2004. �. ' Marviu Liszt, Counsel for Clear Chaane2 Outdoor, Inc. 763 546 1003 T-065 P.007/015 F-401 O G�d nA�CGl1 Fm..lmrow +n�rv.i n rv 0�l-�9 � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � DepartrneM/officelcouncil: Date Initiated: �A ��TyA�„�, 92AUG-04 Green Sheet NO: 3021602 Corrtad Person 8 Phone: Eric D. Larson 266-8728 Must Be on Council Agenda by (Date): 'I&AUG-04 � Deoartment Sent To Person 0 ' Attorne Assign 1 or's OtLce Numbet Z ouocil For Routing 3 i Clerk prder 4 5 Total 71 of Signature Pages _(Clip NI Locations for Signature) Action Requested: Approve the settlement and authorize Ciry employees to take the necessary actions to prepare the proper documentation and complete the settlement per resolurion. Approve (A) or Planning Commission CIB Committee Civil Service Commission (R): Must 1. Has this person/firm ever worked under a contract for this departrnent? Yes No 2. Has this personffirtn ever been a cify employee? Yes No 3. Does this person/firm possess a skii! �ot nortnalty possessed by any curtent dty empioyee? Yes No Explain all yes answers on separete sheet ana attach to green sheet Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why): Disputes conceming outdoor advertising sigi, repair perinits, and the Cit}ts sign ordinance. AdvantageslfApproved: The lawsuit will be settled resulting in the eliinination and reduction of si�ificant monetary exposure. DisadvanWges If Approved: None. All but $50,000 of the monetary payments are court ordered in pending litigation. Further lirigarion costs to the City defending and putsuing the 11 pending billboazd lawsuits, regardless of outcome, would probably exceed $50,000. DisadvaMages If Not Approved: The lawsuit will continue and the uncertainty of recovery at trial will remain. Anricipated probability of success on 10 of the 11 pendin� lawsuits is low, the one remaining lawsuit concerns an outdoor advertising sign Cleaz Channel Outdoor, Inc. agees to remove which is the best case outcome for the City. The advantage with respect to ttris sign is the removal occurs much more quickly and with certainty via the settlement as opposed to a continued litigation course. ToWI Amount of Transaction: Fundinp Source: VafiOUS CosURevenue Budgeted: Activity Number: Pinancial Information: $86,539.84, plus interest from date of judgment, in attomeys fees/costs per court order paid to Cleaz Channel (Explain) putdoor, Inc., judgment entered 5/19/04. $68,875.00 annual billboard fee returned to Clear Channel per court order dated 8/4/02, entered into judgment on 6/19/04, plus interest from the date of escrow, 7/22/02. $50,000 lump sum payment in addition to the above-pa}nneuts settling all other pending monetary clauns and other claims by Cleaz Channel in lititag6on against the City.