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Resolution 600-1989 James R. Paros Public Safety DivIsion RESOLUTION NO. 600 '-1989 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING THE CHAIRMAN TO EXECUTE A SETTLEMENT AGREEMENT WITH BEACON BROADCASTING CORPORATION CONCERNING AMENDMENT OF MONROE COUNTY'S APPLICATION WITH THE FEDERAL COMMUNICATIONS COMMISSION REGARDING A TELEVISION TRANSLATOR STATION BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that the Chairman/Mayor is hereby authorized to execute a Settlement Agreement between Beacon Broadcasting Corporation and the Monroe County Board of County Commissloners, Monroe County, Florida, ~opies of same being attached hereto, concerning amendment of Monroe County's application with the Federal Communications Commission regarding a television translator station. PASSED aND ADOPTED by the Board of County Commissioner of Monroe County, Florida, at a regular meeting of said Board held on the ~ day of OC+oi>e.... , A.D. 19-11. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By ~"'i ;1" ',/J . f j f.,:....." ..,.,,!.~ < , 'v /~/~_ Mayor/Chairman (Seal) DANNY L. KOLHAGE, Clerk Attest: o. .'.~. '" . , ~ )/?~tAP/ C]erf. Approved as to form sufficiency. /l! J / ; i / ! II <( /, /!~/ \ (--t. v and legal _ I t:. I \ tiq F/2, 97.: (, (} n ~ ' ,j, By: COllnty At"CCH"fley's .)ffice , I ,~ .'1 j ~~ ,~ 'c': SETTLEMEN'l' AGREEMEN'l' i '~ 1. This Agreement is entered into by and between Beacon Broadcasting Corporation (Beacon), P.O. Box 56993, Jacksonville, FL 32241-6993, and The Board of County Commissioners of Monroe County, Florida (Board), 500 Whitehead St., Key West, FL 33040. 2. Beacon has filed an application with the Federal Communications Commission (FCC) for a construction permit for a new low power television (LPTV) station to operate on Channel 25 at Miami, Florida, FCC File No. BPTTL-890310UU. The Board has filed an application with the FCC for a con- struction permit to change the channel of TV translator station W63AL at Marathon, Florida, to Channel 25, FCC File No. BPTTL-890310WO. The FCC has found the two applications to be mutually exclusive in that it is not possible for both proposals to be effec-tuated without causing interference in violation of the FCC's Rules. Accordingly, the FCC announced that a choice would be made between the two applications in a lottery, Case No. L89-2314, scheduled for August 23, 1989. 3. By letter of August 18, 1989, the Board, with the concurrence of Beacon, requested the FCC to withdraw both applications from the lottery, to permit time for negotiation of a settlement. :~ .: ~.~ . ~ 4. The parties have determined that if the Board amends its application to specify precise zero offset, the applications will no longer be mutually exclusive. Moreover, the engineering consultants to the parties have advised that the applications are not mutually exclusive with applications by any third party. Therefore, removal of the mutual exclusivity between the applications should make it possible for both to be granted by the FCC. S. Therefore, to facilitate a grant of both applications by the FCC, the parties agree as follows: 6. The Board will amend its application to specify precise zero offset, with no change in its effective radiated power, antenna pattern, antenna height, or transmitter loca- tion. Such amendment will be filed with the FCC within five business days after delivery of a copy of this Settlement Agreement signed by Beacon to Diane L. Mooney, Esquire, Counsel for the Board. Simultaneously with the amendment, the Board will submit the attached Joint Petition to the FCC, along with a copy of this Settlement Agreement. 7. Beacon agrees to reimburse the Board in the amount of five hundred dollars ($500.00) for part of the Board's expenses incurred in amending its application. Apart from such reimbursement, each party shall bear its own ex- I ,~ . :J ;1 " i 1 J i 1 ,j ~ ~ ~ 1 ~ ~ 1 4 'J 1 J j J penses in implementing this Agreement. No other considera- tion has been or shall be paid or promised by either party to the other or any of the other party's principals in return for entering into or implementing this Agreement. Notwith- standing Paragraph 6 hereof, the Board will not be required to tender its amendment or the Joint Petition to the FCC until it has received payment of the $500.00 from Beacon. 8. The parties each agree that other than the Board's precise zero offset amendment, neither party will, without the consent of the other, amend its application in any respect, except as may be required by law or regulation for reasons not within the control of the applicant, or request any modification of construction permit after its application has been granted, until the application of the other party has been granted and such grant is final and beyond administrative or judicial review. 9. ~he parties agree that the opportunity to have the LPTV construction permits for which they have applied is unique to each of them. Accordingly, the parties agree that either party may, if aggrieved by a breach of this Agreement, seek enforcement by means of an order of specific performance in lieu of monetary damages. 10. Either party may terminate this Agreement and request that its application be returned to pending status and placed into a lottery if appropriate, upon written notice to the other and without liability to the other, if the terminating party's application has not been granted by six (6) months after the date of submission of the Joint Petition to the FCC or if either application is designated for hearing by the FCC for any reason. 11. Each party agrees, at its own expense, to vigorously pursue FCC approval of this settlement and grant of their applications, except that neither party shall be required to appear at or participate in a hearing unless the other party agrees to pay its expenses including legal fees. 12. This Agreement may be executed in one or more counterparts, each of which shall have the full force and effect of an original but all of which shall be deemed one and the same document. . 13. To the extent not governed by federal law, this Agreement shall be governed by the laws of the State of Florida applicable to transactions conducted entirely within that state. i I 1 I I r- I I I I ! 14. This Agreement represents the entire understanding of the partes with respect to the subject - 2 - ,~ ~~ 'OJ :"1 matter hereof and may be altered or amended only in writing signed by the party against which enforcement is sought. 15. Each individual executing this Agreement warrants that he has the authority to legally bind the party for which he has signed. 16. Notices from one party to the other shall be deemed effective five business days after mailing if given by first class United States mail, postage prepaid, evidenced by a postal delivery receipt, and addressed to a party at its address set forth above, with a copy to counsel shown on the attached draft Joint Petition. 17. This Agreement shall become effective as of the date on which the latter party to sign executes the Agreement. BEACON BROADCASTING CORP. THE BOARD OF COMMISSIONERS OF MONROE COUNTY By: .. ) ~ }, ;. ,4 1 ~ 8 1. I , ~ ~ , ~ l ! i I ; Title: By: Title: Mayor/Chairman Date: September ____, 1989 Date: October 11-, 1989 (SEAL) ATTEST: By: Clerk flY Afft~ 'UF:=:' Attumc,"$ Office - 3 -