HomeMy WebLinkAboutDittmer Properties - Digital Billboard Conversion Agreement - 2015 04 23 31 It g
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THIS INSTRUMENT WAS
PREPARED BY AND SHOULD
BE RETURNED TO:
Anthony A.Garganese,City Attorney
BROWN,GARGANESE,WEISS&D'AGRESTA,P.A.
111 North Orange Avenue,Suite 2000
Orlando,Florida 32801
407 425 9566
CITY OF WINTER SPRINGS, FLORIDA
DIGITAL BILLBOARD CONVERSION AGREEMENT
THIS DIGITAL BILLBOARD CONVERSION AGREEMENT ("Agreement") is
made and entered into as of the r4 day of 14prr L , 2015 ("Effective Date"), by and
between the CITY OF WINTER SPRINGS, a Florida municipal corporation, whose address is
1126 East State Road 434, Winter Springs, FL 32708 ("City"), and DITTMER
PROPERTIES, INC., a Florida corporation, whose address is 1006 Shepard Road, Winter
Springs, FL 32708 ("DPP") and WALT DITTMER AND SONS, INC., a Florida corporation
whose address is 1006 Shepard Road, Winter Springs, Florida 32708 ("WDSI").
WITNESSETH:
WHEREAS, this Agreement is entered into pursuant to the Winter Springs City Code
("City Code"), specifically Section 16-77; and
WHEREAS, DPI is the owner of a traditional billboard (the "Traditional Billboard")
that is currently located on real property owned by DPI abutting U.S. Highway 17-92 within the
City and is more particularly described on the attached Exhibit"A" (the"DPI Property"); and
WHEREAS, the Traditional Billboard is currently considered a nonconforming,
grandfathered structure and use pursuant to the City Code; and
WHEREAS, Walt Dittmer and Sons, Inc., a Florida corporation ("WDSI"), whose
address is 1006 Shepard Road, Winter Springs, FL 32708, owns real property which abuts U.S.
Highway 17-92 and Shepard Road within the Seminole County 17-92 Redevelopment Area,
which is more particularly described on Exhibit `B" attached hereto and incorporated herein by
this reference (the"WDSI Property"); and
WHEREAS, DPI desires to construct, operate and maintain a digital billboard meeting
the specifications and requirements more fully set forth below (the "Digital Billboard") on the
WDSI Property;
WHEREAS, WDSI shall grant to DPI an easement for the construction, operation and
maintenance of the Digital Billboard (the "Digital Billboard Easement") on and over a portion
of the WDSI Property (the "Digital Billboard Easement Area") in the form attached hereto as
Exhibit"C" (the "Digital Billboard Easement Agreement");
WHEREAS, the City and DPI desire to enter into this instrument governing the
Billboard Conversion (as defined below), all in accordance with this Agreement and City Code;
and
WHEREAS, the parties agree that negotiations between them regarding the Billboard
Conversion are voluntary and optional on the part of all parties, and that the City's approval of
the Billboard Conversion was discretionary and based on negotiations; and
NOW THEREFORE, in consideration of the mutual covenants, duties, obligations and
undertakings herein by and between the parties, and other good and valuable consideration which
the parties acknowledge has been received, the parties agree as follows:
1.0 Incorporation of Recitals: The foregoing recitals are true and correct and by this
reference are fully incorporated into this Agreement as if set forth herein.
2.0 Conversion of Traditional Billboard — Generally. In accordance with section 16-77,
City Code, the City hereby authorizes conversion of the Traditional Billboard to the
Digital Billboard specified herein by (i) demolishing the Traditional Billboard from the
DPI Property, and (ii) replacing such Traditional Billboard with the Digital Billboard on
the WDSI Property in the Digital Billboard Easement Area, all in accordance with this
Agreement and City Code (the `Billboard Conversion"). The Billboard Conversion
shall be subject to all applicable building, fire and land development codes and law;
however, to the extent such codes and law conflict with state or federal law, the more
restrictive requirement(s) will be applied by the City.
3.0 Termination and Forfeiture of Nonconforming Status of Traditional Billboard. In
consideration of the City approving the Billboard Conversion authorized by this
Agreement, DPI agrees to demolish the Traditional Billboard and remove it from the DPI
Property in accordance with the terms and conditions set forth in this Agreement. In
addition, DPI also agrees that any rights that exist or may exist under the City Code or
other applicable law to construct, erect, operate, maintain, repair, or replace a billboard
on the DPI Property are forever forfeited and terminated. DPI acknowledges and agrees
that billboards shall be strictly prohibited on the DPI Property in the future, beginning at
such time as the Traditional Billboard is removed pursuant to this Agreement. This
Section shall constitute a covenant running with the DPI Property and shall survive
termination of this Agreement.
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 2
4.0 Requirements for Digital Billboard. The Digital Billboard shall be erected in the
Digital Billboard Easement Area on the WDSI Property in accordance with the following
requirements:
4.1 The Digital Billboard shall be constructed in accordance with the plans and
specifications prepared and sealed by Clifford W. Leverenz, P.E., dated June 10,
2014 ("Plans"). The Plans are hereby fully incorporated herein by this reference
and a copy of which shall be maintained on file with the City's Community
Development Department located at City Hall, 1126 E. State Road 434, Winter
Springs, Florida 32922.
4.2 The Digital Billboard shall not be constructed upon the WDSI Property until such
time as the City has issued a written completion notice verifying that DPI has
completely demolished and removed the Traditional Billboard from the DPI
Property.
4.3 The Digital Billboard shall be located in the Digital Billboard Easement Area as
shown on the Plans.
4.4 The maximum height of the Digital Billboard shall not exceed fifty (50) feet
measured from the crown of the adjacent U.S. Highway 17-92.
4.5 The display area of the Digital Billboard shall be double-sided and each side shall
not exceed three-hundred and seventy-eight (378) total square feet. More
specifically, the display area on each side of the Digital Billboard shall not exceed
ten feet, six inches (10°6") in height and thirty-six feet(36') in width.
4.6 All visible portions of the Digital Billboard (excluding the display area) shall be
painted monochromatic black or other monochromatic, dark, neutral color, as
approved by the City. No embellishments and cut outs may be utilized on the
Digital Billboard.
4.7 The Digital Billboard shall be subject to all applicable City Code requirements
including but not limited to the following technical display requirements which
are in effect as of the Effective Date of this Agreement:
4.7.1 Display messages shall be static only. Such static images shall hold the
display face for a minimum of eight (8) seconds before transitioning to
another static image.
4.7.2 Transitions from one static image to the next shall appear within three (3)
seconds and shall not have the appearance of flashing, flickering, blinking,
pulsating animation or videos or varying light intensity. Dissolving from
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 3
one static image to the next within the three (3) second transition period
shall not constitute animation for purposes of this Agreement.
4.7.3 The Digital Billboard shall come equipped with functioning automatic
dimming technology which automatically adjusts, at all times while the
electronic message center is operating, the sign's brightness in direct
correlation with ambient light conditions to meet the standards contained
in section 4.7.4 below.
4.7.4 The Digital Billboard shall not be brighter than is necessary for clear and
adequate visibility. The Digital Billboard shall not exceed a brightness
level of 6,000 NITs (NITs are the standard measure of brightness for
electronic signs and devices) during daytime use or 500 NITs during
nighttime use and to account for adverse weather conditions that reduce
the amount of sunlight.
4.7.5 The Digital Billboard shall not display light of such intensity or brilliance
as to cause glare or otherwise impair the vision of a driver or result in a
nuisance. The Digital Billboard shall not be of such intensity or brilliance
that it interferes with the effectiveness of an official traffic sign, device or
signal.
4.7.6 The Digital Billboard shall have a default mechanism built in to either turn
the display off or show "full black" on the display in the event of a
malfunction. Malfunction is defined as any operation of the Digital
Billboard that causes glare or impairs the vision of motorists or otherwise
distracts motorists so as to interfere with the motorists' ability to safely
operate their vehicles or otherwise constitutes a violation of the City Code.
4.7.7 The Digital Billboard shall not be configured to resemble a warning,
danger signal, official signage used to control traffic or to cause a driver to
mistake the billboard for a warning or danger signal unless such shall be
the result of a PSA (defined herein) broadcast pursuant to .Section 5
herein.
4.8 In the event the City adopts City Code billboard regulations that contain technical
display requirements more restrictive than the requirements set forth in this
Agreement that are generally applicable to all digital billboards in the City, the
more restrictive City Code regulations shall automatically apply and be deemed
incorporated herein by this reference.
5.0 Public Service Announcements. In consideration of the City agreeing to the Billboard
Conversion, DPI agrees to provide free public service announcements ("PSAs") on the
Digital Billboard at the City's request under the following conditions:
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 4
5.1 The PSAs shall be limited to public emergency notices, amber/silver alerts, and
up to six (6) City-sponsored or co-sponsored community events in a twelve-
month period.
5.2 The City shall be responsible for providing the copy material for the
advertisement in a format customarily used by DPI for the Digital Billboard.
5.3 Public emergency notices and amber/silver alerts will be displayed as
emergency/alert conditions warrant. Unless otherwise agreed to by DPI, the PSAs
for community events will be displayed on the day of the event and for a
maximum period of thirty days immediately preceding the event.
5.4 The advertisement shall be displayed in a manner consistent with the Digital
Billboard's basic presentation fotivat and at a minimum standard eight (8) second
spot to be displayed within the loop display time period established by DPI for the
Digital Billboard and its other advertisers.
5.5 DPI neither objects to nor opposes the benefits granted the City pursuant to this
Section.
6.0 Non-Compliance. Upon breach of any provision of this Agreement by either party, the
non-breaching party or parties shall have the right to declare the breaching party or
parties in default of this Agreement by providing written notice of default to the
breaching party or parties. Upon receipt of said notice, the breaching party or parties shall
have fourteen (14) days in which to cure the default unless a shorter time period is
required by this Agreement. If the breaching party or parties fail to cure the default within
said time period, the non-breaching party or parties shall have the right to take
appropriate legal action, in equity or law, to enforce the terms and conditions of this
Agreement. Notwithstanding the aforesaid, DPI also agrees that if the City provides
written notice to DPI that the Digital Billboard is being operated out of compliance with
the technical display requirements set forth in Section 4 of this Agreement (an"Operation
Compliance Notice"), DPI must within twenty-four (24) hours of notice from the City
(such may be telephonic or oral) bring the operation of the Digital Billboard into
compliance upon receipt of said notice or may elect to turn off the Digital Billboard until
DPI can effect necessary repairs or modifications to bring the operation of the Digital
Billboard into compliance. Failure to bring the Digital Billboard into compliance shall
constitute a material breach of this Agreement which will cause the City to suffer
damages which cannot reasonably be calculated by any method and that payment to the
City of five hundred dollars ($500.00) for each day the Digital Display is not in
compliance shall constitute liquidated damages sustained by the City. DPI agrees to pay
all reasonable collection expenses, attorney's fees, and court costs incurred by the City in
the event that litigation is instituted for enforcement of this Agreement and for the
collection of any amounts due and payable to the City hereunder. Under no circumstance
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 5
shall this Section be construed as limiting or preventing the City from initiating a code
enforcement action against any party for violating a provision of any applicable City
Code. The foregoing notwithstanding, the act of DPI disabling the Digital Billboard,
whether or not pursuant to an Operation Compliance Notice, shall not be construed as a
failure to bring the Digital Billboard into compliance for the purposes of imposing fines
or maintaining a claim for damages.
7.0 Recordation. This Agreement shall be recorded by the City in the Official Records of
Seminole County, Florida and shall be binding upon the DPI Property and the Digital
Billboard Easement Area as applicable.
8.0 No Assignment. This Agreement shall not be assigned or transferred unless prior written
consent is granted by the City Commission of Winter Springs; provided, however, that
nothing herein shall be construed to require the City's consent in the event of a transfer of
the DPI Property, the WDSI Property or the Digital Billboard Easement.
9.0 Further Assurances. From and after the execution of this Agreement, each of the parties
hereto shall fully cooperate with each other and perfoint any further act(s), execute and
deliver any further documents which may be necessary or desirable in order to carry out
the purposes and intentions of the parties as contained in this Agreement.
10.0 Legal Representation. The parties acknowledge that the attorneys of Brown, Garganese,
Weiss and D'Agresta, P.A., have acted as counsel for the City in connection with this
Agreement and the transactions contemplated herein, and have not given legal advice to
any party hereto other than the City.
11.0 Severability. Each paragraph, section, provision, sentence, and part thereof of this
Agreement shall be severable from each other paragraph, section, provision, sentence, or
part thereof of this Agreement, and the invalidity or unenforceability of any such
paragraph, section, provision, sentence, or part thereof, shall not affect the validity or
enforceability of the balance of this Agreement.
12.0 Governing Law and Venue. This Agreement shall be governed by the law of the State
of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida.
The parties agree that the Agreement was consummated in Seminole County. If any
dispute concerning this Agreement arises under Federal law, the venue will be Orlando,
Florida. Any objections to jurisdiction and venue are expressly waived. THE PARTIES
HEREBY EXPRESSLY WAIVE TRIAL BY JURY.
13.0 Attorney's Fees. In the event any litigation or controversy between the parties arises out
of or in connection with this Agreement, the parties agree to bear their own costs and
attorney's fees except as otherwise expressly provided herein.
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 6
14.0 Non Waiver. No delay or failure by either party to exercise any right under this
Agreement, and no partial or single exercise of that right, shall constitute a waiver of that
or any other rights, unless otherwise expressly provided herein.
15.0 Notices. Notices, requests, and other communications under this Agreement shall be in
writing and may be delivered personally or sent by registered or certified first class mail,
return receipt requested, or by FedEx, Airborne Express, UPS or other nationally
recognized delivery service (an Operation Compliance Notice given pursuant to Section
6.0 above is effective at the time it is given if delivered orally). Such notices, requests,
and other communications, if given by FedEx, Airborne Express, UPS or other
nationally-recognized delivery service shall be deemed to be given and delivered on the
date and at the time delivered as substantiated by the delivery service's business records.
If such notice is given by registered or certified mail, return receipt requested, such notice
shall be considered given and delivered on the date noted by the United States Postal
Service on the return receipt as the delivery date. The physical address, for purposes of
giving notices under this Agreement is:
TO THE CITY: Mr. Kevin L. Smith, City Manager
City of Winter Springs
1126 East S.R. 434
Winter Springs,FL 32708-2799
(407) 327-5957 (Phone)
(407) 327-6686 (Fax)
with a copy to: Anthony A. Garganese, City Attorney
Brown, Garganese, Weiss & D'Agresta, P.A.
111 N. Orange Avenue, Suite 2000
Orlando, FL 32802-2873
(407)327-9566 (Phone)
(407)425-9596 (Fax)
TO DPI: Mr. Walt Dittmer Jr., President
Dittmer Properties, Inc.
1006 Shepard Road
Winter Springs, FL 32708
(407) 699-1755 (Phone)
(407) 695-4430 (Fax)
with a copy to: Ms. Rhonda McHugh, Manager
Mac Media, LLC
1811 Oakbrook Drive
Longwood, FL 32779
407 805 9238 (Phone)
407 805 9238 (Fax)
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 7
16.0 Counterparts. This Agreement may be executed in counterparts, each of which shall
constitute an original, and all of which together shall constitute one and the same
instrument.
17.0 Interpretation. All parties have participated in the drafting of all parts of this
Agreement. As a result, it is the intent of the parties that no portion of this Agreement
shall be interpreted more harshly against either of the parties as the drafter.
18.0 No Joint Venture. This Agreement shall not in any way be deemed to create a joint
venture or principal-agent relationship between any of the parties.
19.0 No City Representations and Warranties. All parties agree and acknowledge that the
City has made no representations and warranties regarding its responsibilities that are not
contained in this Agreement. Each party has assumed full responsibility for furnishing,
performing, and completing their respective obligations under this Agreement.
20.0 Entire Agreement. This Agreement represents the entire and integrated Agreement
between the parties and supersedes all prior negotiations, representations, or Agreements,
either oral or written, and all such matters shall be deemed merged into this Agreement.
21.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement,
nothing contained in this Agreement shall be construed as a waiver of the City's right to
sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed
on the City's potential liability under state or federal law. As such, the City shall not be
liable under this Agreement for punitive damages or interest for the period before
judgment. Further, the City shall not be liable for any claim or judgment, or portion
thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or
any claim or judgment, or portion thereof; which, when totaled with all other claims or
judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00).
This Section shall survive termination of this Agreement.
22.0 Non-Liability of City; Indemnity. The City shall not be liable for any failure or delay
by DPI in the performance of its respective undertakings under this Agreement. In this
regard, DPI agrees to hold the City haituless from and against all claims, losses, damages,
personal injuries (including but not limited to death), or liability (including reasonable
attorney's fees), which directly or indirectly arises out of, or results from the
construction, operation and maintenance of the Digital Billboard; provided, however, that
DPI shall have no obligation or duty to indemnify the City for any matter arising out of
any PSA or other message broadcast on the Digital Billboard pursuant to Section 5.0
hereof This Section shall survive termination of this Agreement.
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 8
23.0 Term. The tem. of this Agreement shall commence on the Effective Date and shall be
terminable under the following circumstances:
23,1 By mutual written agreement of the parties; or
23.2 This Agreement shall automatically terminate if DPI fails to complete the digital
billboard conversion within one (1) year from the Effective Date unless the parties
mutually agree in writing to an extension of time; or
23.3 DPI abandons or discontinues the operation of the Digital Billboard on the Digital
Billboard Easement Area for a period of time greater than three hundred sixty-five
consecutive calendar days. If such abandonment or discontinuance occurs, the Digital
Billboard shall be completely removed from the Digital Billboard Easement Area and this
Agreement shall upon said removal terminate.
23.4 Upon termination of this Agreement, the parties will no longer have any rights or
responsibilities under this Agreement except under provisions which expressly survive
temiination of this Agreement.
24.0 Signatories. The undersigned persons executing this Agreement each hereby represent
and warrant that he or she has the full authority to sign said Agreement and to fully
bind their respective undersigned entity to the terms and conditions set forth in this
Agreement.
25.0 Binding Effect. The provisions of this Agreement shall be binding upon the heirs,
personal representatives, successors and assigns of the respective parties.
26.0 Modification. This Agreement shall only be modified by a written instrument executed
by the parties hereto or any successors, assigns, heirs, or representatives thereto.
27.0 Development Permits. Nothing herein shall limit the City's authority to grant or deny
any development permit applications or requests subsequent to the effective date of this
Agreement. The failure of this Agreement to address any particular City, County, State
and/or Federal permit, condition, term or restriction shall not relieve the parties or the
City of the necessity of complying with the law governing said permitting requirement,
condition, term or restriction. Without imposing any limitation on the City's police
powers, the City reserves the right to withhold, suspend, or terminate any and all
certificates of occupancy or completion for any structure or billboard if any party is in
breach of any term or condition of this Agreement.
28.0 Time. In all matters herein, time is of the essence. If the last day for giving any notice or
performing any act under this Agreement falls on a Saturday, Sunday, or on a day on which
the United States Post Office is not open, the time shall be extended to the next day that (i)
is not a Saturday, Sunday, or Post Office holiday, (ii) is not the day after Thanksgiving and
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 9
(iii) is not either December 24 or 26. Any party wishing to change the person designated to
receive notices or the address for notices may do so by complying with the provisions of this
paragraph. Any notice given before such a change is not invalidated by the change.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year written above.
Signed, sealed and delivered
in the presence of:
.j "1'141.A-►,af / DITTMER PROPERTIES, INC.,
Print Name:f(.o 1?J N c peivisl,Cr\)D .u.a a Florida corporation
0 tali -
Print Name: , Walt Iittmer1/7/r., Preside
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this L3 day of April,
2015, by Walt Dittmer, Jr., as President of DITTMER PROPERTIES, INC., a Florida
corporation, on behalf of the corporation. Said person did not take an oath and (check one) Xis
personally known to me, O produced a driver's license (issued by a state of the United States
within the last five (5) years) as identification, or O produced other identification, to wit:
■le A e034‘747-Aer-
NOTARY PUBLIC
A-0/2-/ AN N Din)l Se- CoIJ DD-L1--)
ADRIENNE DENISE CONDELLO
NOTARY PUBLIC
V.' STATE OF FLORIDA
�... ' Comm#FF151635
Expires 7/11/2016
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 10
Signed, sealed and delivered
in the presence of:
1
�� A 4 A i ' _j /4/ • WALT DITTMER & SONS, INC.,
Print Name: AV X,{ A) r, t)/s. 0.-;*()Euz, a Florida corporation
1 or ,t .. By: 4
Print Name: -li` a` ? I _. . 'G ' D na S. Callan, President
,
STATE OF FLORIDA
COUNTY OF SEAM CO L.�
The foregoing instrument was acknowledged before me this 13_ day of April,
2015, by Dana S. Callan, as President of WALT DITTMER & SONS, INC., a Florida
corporation, on behalf of the corporation. Said person did not take an oath and (check one)gl.is
personally known to me, O produced a driver's license (issued by a state of the United States
within the last five (5) years) as identification, or O produced other identification, to wit:
ACCA- vtA-64)-e/VUXIS C:01440-0—
NOTARY PUBLIC
A-oJ24N )0015�. �Nr7*LLB
ADRIENNE DENISE CONDELLO
NOTARY PUBLIC
m w STATE OF FLORIDA
W :l-r Comm#FF151835
OE $ Expires 7/11/2016
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 11
CITY OF WINTER SPRINGS, FLORIDA
f
By: ,,. 1 I,
Chaif es Lacey, ay
Attest: k,
An.- a orenzo-Luaces,
City Clerk
STATE OF FLORIDA
COUNTY OF sekLmole,
The foregoing instrument was acknowledged before me this t , day of
t'1(\Ci , 2015,by Charles Lacey as Mayor, and Andrea Lorenzo-Luaces, as City Clerk,
of the City of Winter Springs Florida on behalf of the city. Said person did not take an oath and
(check one) g is personally known to me, O produced a driver's license (issued by a state of the
United States within the last five (5) years) as identification, or O produced other identification,
to wit:
r) - \\
Notary Public State of Florida ■`� ,,,
f. Antonia Della Donna
oat
Y PUBLIC
j My Commission FF 152895
‘0,yr Expires 08/20/2018
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 12
EXHIBIT"A"
LEGAL DESCRIPTION OF THE DPI PROPERTY
That certain real property lying and being in Seminole County, Florida, more particularly
described as:
LEG PT LOT 18 DESC AS BEG 496.02 FT S 86 DEG 02 MN 40
SEC W OF NE COR LOT 18 RUN S26 DEG 2 MN 26 SEC W
196.90 FT N 63 DEG 57 MN 34 SEC W 223.01 FT N 25 DEG 19
MIN 9 SEC E 67.68 FT N 86 DEG 2 MN 40 SEC E 258.48 FT
TO BEG BLK B OAK GROVE PARK PB 7 PG 83 (.68 AC)
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 13
EXHIBIT`B"
LEGAL DESCRIPTION OF THE WDSI PROPERTY
That certain real property lying and being in Seminole County, Florida, more particularly
described as:
LEG LOTS 17 & 18 (LESS BEG 81.16 FT N 86 DEG 30 MIN 00
SEC E OF SW COR LOT 18 RUN NELY ON CURVE 135.08 FT
N 86 DEG 30 MIN 00 SEC E 140.44 FT S 115 FT S 86 DEG 30
MIN 00 SEC W 205.04 FT TO BEG) SPRING HAMMOCK
REPLAT PB 7 PG 96
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 14
EXHIBIT "C"
FORM OF THE
DIGITAL BILLBOARD EASEMENT AGREEMENT
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (the "Agreement") is made and entered into as of this day of
April, 2015, by and between WALT DITTMER AND SONS, INC., a Florida corporation ("Grantor"), whose
address is 1006 Shepard Road, Winter Springs, Florida 32708, and DITTMER PROPERTIES, INC., a Florida
corporation("Grantee"),whose address is 1006 Shepard Road,Winter Springs,Florida 32708.
RECITALS:
A. Grantor is the current fee simple owner of that certain parcel of land more particularly described in
Exhibit"A"attached hereto and incorporated herein by reference(the"WDSI Property").
B. Grantee desires to construct, operate, maintain and repair a digital billboard whose specifications
are or will be on file with the City of Winter Springs,Florida(the"City'),the construction and operation of which is
or will be the subject of a Digital Billboard Conversion Agreement between Grantee and the City.
NOW, THEREFORE, for and in consideration of the terms, covenants and conditions hereinabove and
hereinafter set forth and for the sum of TEN DOLLARS ($10.00) in hand paid to the other party by each of the
parties hereto, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged,the parties hereby agree as follows:
1. Recitals. All of the foregoing recitals contained in this Easement are true and correct and are
incorporated herein in full. This Easement is intended to bind all parties, their successors and assigns, now and
hereafter.
2. Grant of Easement.
a. Digital Billboard Easement. Grantor hereby grants to Grantee, its successors and
assigns, an easement for the purposes of constructing, operating,maintaining and repairing a digital billboard which
will contain below-ground anchors and an above-ground monopole supporting two (2) digital electronically-lit
message faces controlled remotely by computer interface (the"Digital Billboard Easement"). Such easement shall
include the area above and below the ground and air rights above that real property more particularly described on
Exhibit `B" hereto (the "Digital Billboard Easement Area"). The Digital Billboard Easement Area shall be used
exclusively by the Grantee, provided, however that Grantor hereby reserves the use of those portions thereof not
occupied by the monopole or any other support structure for the parking of vehicles of the Grantor and its
employees. The foregoing notwithstanding,Grantor shall always keep open areas of sufficient size and location for
vehicles of Grantee and its contractors and service providers.
b. Digital Billboard Access Easement. Additionally, Grantor hereby grants to Grantee an
easement for the purpose of providing vehicular and pedestrian access(the"Digital Billboard Access Easement") to
the Digital Billboard Easement Area over and across that certain real property also owned by Grantor (and also
17-92 Digital Billboard Conversion Agreement
City of Winter Springs/DPI
Page 15
being a portion of the WDSI Property) more particularly described on the attached Exhibit "C" (the "Digital
Billboard Access Easement Area"). The Digital Billboard Access Easement Area shall be used jointly by Grantor
and Grantee and shall not be blocked or movement restricted at any time within the Digital Billboard Access
Easement Area by either of the parties. The parties recognize that a fence and gate restrict entry during non-
business hours. During non-business hours, Grantor shall either be available to open the gate with sixty (60)
minutes notice or give a key to Grantee or provide other means of opening the gate.
3. [intentionally omitted]
4. Maintenance Duties.
a. Digital Billboard Access Easement Area. Grantor shall be responsible to properly
maintain and repair the driveway on the Digital Billboard Access Easement Area and to ensure that it is in good
condition and repair.
b. Digital Billboard Easement Area. Grantee shall be responsible to properly maintain,
operate and repair the Digital Billboard and to maintain and repair any paved areas on the Digital Billboard
Easement Area and to ensure that they are in good condition.
c. Failure to Maintain. If the Grantor or Grantee reasonably determines, at any time, that
the other is failing to prosecute its duties of maintenance and repair contained herein, such party (the "Notifying
Party") shall notify the other (the "Notified Party") of the same in writing, including reasonable proof In such
event,the Notified Party shall have ten(10) days within which to remedy any such failure after which the Notifying
Party shall be entitled to perform the work and repair and shall have a claim against the other for the costs of such
work and repair.
5. Covenants Running with the Land. All rights, privileges, benefits and burdens created herein
are covenants and agreements running with the land of the Grantor as appurtenances thereto and shall be binding
upon and inure to the benefit of the Grantor and Grantee and their respective successors hereunder. Nothing
contained herein shall create any rights in the general public or any person or entity other than the parties hereto and
their respective successors.
6. Attorneys' Fees. In the event that any party institutes litigation to enforce the terms of this
Agreement, or in the event a party fmds it necessary to institute litigation for the purpose of enforcing its rights
under this Agreement, the prevailing party in such litigation shall be entitled to recover from the non-prevailing
party or parties, in addition to any damages otherwise due, the reasonable attorneys' and experts' fees and costs
incurred by such prevailing party in connection with such litigation whether incurred before or at trial, or at any
rehearing or appellate levels, including bankruptcy proceedings and the right to such reasonable attorneys' fees and
costs shall be deemed to have accrued from the commencement of such action and shall be enforceable whether or
not such action is prosecuted to judgment.
7. Warranties of Title. The Grantor hereby warrants and covenants (a) that it is the owner of the
fee simple title to the WDSI Property; (b) that the WDSI Property is free and clear of all liens, mortgages, and
encumbrances; (c)that Grantor has the full right and lawful authority to grant and convey the easements contained
herein; (d) that the Grantee shall have quiet and peaceful possession, use, and enjoyment of the easements hereby
granted; and(e)that the Grantor shall obtain any joinder and consent to this Agreement necessary to provide that the
Grantee shall enjoy rights that are not subject to any claim or interest of record other than the Grantor's fee simple
title.
S. Indemnification. The Grantee agrees to indemnify and save the Grantor harmless against any and
all claims, or demands of all persons whomsoever for damages, and the cost and expenses, including reasonable
attorneys fees for the defense thereof, arising from the use and enjoyment of this easement granted herein by the
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City of Winter Springs/DPI
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Grantee, its licensees, invitees, or any other persons permitted by the Grantee to enter upon the Digital Billboard
Easement Area and the Digital Billboard Access Easement Area using this Agreement, or from any act of
negligence of the Grantee or any agent, contractor, servant, or employee of the Grantee in the Digital Billboard
Easement Area or the Digital Billboard Access Easement Area(in the aggregate,the"Easement Areas")and from
any liability from any person on account of any damage to person or property arising out of any use,misuse,abuse,
neglect,or failure to exercise due care in,or about the Easement Areas,except for any and all liability arising out of
the Grantor's own negligence.
9. Damage. The provisions contained herein to the contrary notwithstanding, any party causing
damage to any of the Easement Areas, which damage extends beyond normal wear and tear for the uses
contemplated by this Agreement,shall bear the full responsibility and cost of repair or replacement,and such repair
or replacement shall be performed as soon as practicable after damage occurs.
10. Governing Law. All questions concerning the meaning, execution, construction, effect and
validity of this Agreement shall be judged and resolved in accordance with the laws of the State of Florida.Venue
for any action involving this Easement shall lie only in Seminole County,Florida.
11. Modification.No changes, alterations, modifications, additions or qualifications to the terms of
this Agreement shall be binding upon any present or future parties,unless made in writing and signed by the parties to
be bound thereby and any modification shall take effect only upon recordation of same in the Public Records of
Seminole County,Florida.
IN WITNESS WHEREOF,this Agreement has been executed to be effective as of the day and year first
above written.
[signature lines and exhibits follow—See Final Executed/Recorded Easement]
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City of Winter Springs/DPI
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