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HomeMy WebLinkAboutFirst Amendment to Lease AgreementFIRST AMENDMENT TO LEASE AGREEMENT THIS FIRST AMENDMENT TO LEASE AGREEMENT ("First Amendment") is made as of the N�'- day of US 2006, between THE CITY OF MIAMI, a Municipal corporation of the State of lFlorida (hereinafter referred to as the "City"), as Lessor, and BEASLEY-REED ACQUISITION PARTNERSHIP, a Delaware general partnership (hereinafter referred to as `BRAP" or "Tenant"), as Lessee. RECITALS A. The City and Hemstadt Broadcasting Corp. ("Original Tenant") entered into that Lease Agreement dated September 3, 1982 (the "Lease"), pursuant to which Original Tenant leased certain premises consisting of approximately two and two-tenths (2 2/10ths) acres, located on Virginia Key, City of Miami, Dade County, Florida (the "Properly"); B. Original Tenant assigned the Lease to Howard Broadcasting Corporation ("Successor Tenant"), pursuant to an Assignment of Lease dated October 17, 1986, which assignment was approved by the City by letter dated November 24, 1986; C. Successor Tenant assigned an undivided one-half (1/2) interest in the Lease to �unshine Wireless Company, Inc. pursuant to an Assignment of Lease dated August 31, 1987, which assignment was approved by the City on August 10, 1987; D. Sunshine Wireless Company assigned its undivided one-half interest in the Lease to BRAP which assignment was approved by the City by Conant to Assignment and Assumption dated August 14, 1996. E. With the City's consent, Successor Tenant assigned all of its remaining right, title and interest in and to the Lease to BRAD pursuant to a Consent to Assignment and Assumption dated August 11, 2000; and F. The City and BRA.P desire to enter into this First Amendment for the purpose of extending the term of the Lease, and for the other purposes set forth herein. D. Section 29-B of the City's Charter, authorizes the city commission to grant a lessee of city -owned property a one-time extension during the last five years of its lease, without the necessity for a referendum, for the purposes of funding additional capital improvements, for an extended term not to exceed 25% of the original term or 10 years, whichever is less, and provided the lessee is not in default of its lease nor in arrearage of any monies due the City. E. Tenant represents to the City that it is not in default of the lease or in arrearage of any monies due the City. grs:Document Amendment - Rrnct-0--A"---- F. Pursuant to Resolution No. 06-0332, adopted May 25, 2006, the city commission, by 4/5 votes, authorized the extension of the term of this lease for an additional term of 6 years under the terms and conditions set forth hereinafter. TERMS NOW THEREFORE, for Ten Dollars ($10.00) and for the covenants and conditions of this First Amendment, the receipt and sufficiency of which are acknowledged, Landlord and Tenant agree as follows: 1. Recitals. The foregoing recitals are correct and are incorporated herein by this reference. 2. Terms. All undefined capitalized terms used herein shall have the same meanings as defined in the Lease. 3. Extension. The term of the Lease is hereby extended for a period of six (6) years from the original expiration date provided in the Lease, until September 2, 2013, subject to the terms and conditions set forth herein. The period from September 3, 2007 through September 2, 2013 is referred to herein as the "Extension Term". 4. Annual Rental. Section 6 ("Consideration') of the Lease is hereby amended to include the following two paragraphs at the end of said Section: "Notwithstanding the above, commencing on September 3, 2007, Tenant shall pay to the City an annual rental fee of One Hundred Fifly Thousand and No/100 Dollars ($I50,000.00) (the "Annual Rental"), paid in equal monthly installments of Twelve Thousand Five Hundred and No/100 Dollars ($12,500.00). On September 3, 2009, and every September 3 d thereafter until the Extension Term ends, the Annual Rental payment shall be increased automatically by an amount equal to five percent (5%) of the preceding year's Annual Rental and likewise be paid in equal monthly installments. The City shall use the Annual Rental fees for the purposes specified in Resolution No. 06-0332. As further consideration for the Extension Term, the Tenant shall have completed, by September 2, 2009, capital improvements to the broadcast tower, its ancillary equipment, and Premises in an amount of not less than $50,000. The capital improvements shall include but are not limited to the following: replacement of the generator fuel cell, re -setting of posts, backfilling the tower base to protect pier and the ground system, painting outside of the building and tower, and any emergency repairs caused by natural elements, such as hurricane damage. Furthermore, the Tenant shall have completed by September 2, 2010, additional capital improvements in an amount not less than $50,000 in replacement of the antenna's main generator." 5. Insurance. Section 18 of the Lease entitled "Insurance" is hereby deleted in its entirety and replaced with the following: "Tenant shall obtain and maintain, or cause to obtained and maintained, throughout the term of the Lease the types and amounts of insurance coverage set forth in Exhibit A, attached hereto and incorporated herein by this reference." 6. Notices. Section 24 is hereby amended to provide the following addresses as the Notice Address: To BRAP: Beasley -Reed Acquisition Partnership 3033 Riviera Drive, Suite 200 Naples, Florida 34103 Attn:. Caroline Beasley Tel: (239) 263-5000 Fax: (239) 263-8191 With a copy to: Tew Cardenas LLP Four Seasons Tower, 15th Floor 1441 BrickelI Avenue Miami, Florida 33131 Attn: Stuart I. Grossman, Esq. Tet: (305) 536-8468 Fax: (305)536-1116 To City: City of Miami City Manager 3500 Pan American Drive Miami, Florida 33133 Tel: (305) 250-5400 Fax: (305) 250-5410 With a copy to. City of Miami Attn: Director Department of Public Facilities 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 Tel: (305) 416-1452 Fax: (305) 416-2156 otherwise required by ADA or other applicable law. Additionally, the Tenant shall take affirmative steps to ensure nondiscrimination in the employment of disabled persons. 10. A new Section 36 is hereby added to the Lease, as follows: 36. Termination (a) Termination by the City. In addition to the termination provisions provided in Section 17 of the Lease, the City shall have the following termination right: from and after September 3, 2008, the City may terminate the Lease, upon not less than one hundred eighty (180) days written notice to BRAP, which notice may not be provided sooner than September 3, 2008. (b) Termination byBRAP. From and after September 1, 2008, BR.AP may terminate this Lease upon not less than one hundred eighty (180) days written notice to the City, which notice may not be provided sooner than September 3, 2008. (c) In the event the Extension Term is terminated pursuant to the provisions of this Section 36 on a date that is earlier than the expiration of the Extension Term, the Annual Rental shall be pro -rated accordingly. Upon such termination of this Lease, all rights and privileges derived from, and all duties and obligations created and imposed by the provisions of this Lease, shall terminate and have no further force or effect, including but not limited to Tenant's requirements to make any capital improvements to the Premises as provided herein. H. A new Section 37 is hereby added to the Lease, as follows: 37. Audit And Inspection Rights: The City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by Tenant under this Lease, audit, or cause to be audited, those books and records of Tenant which are related to this Lease. Tenant agrees to maintain all such books and records at its principal place of business for a period of three (3) years after final payment is made under this Lease 12. Brokers. The parties hereby warrant that they have had no dealings with any real estate broker or agent in connection with the negotiation of this First Amendment. Tenant agrees to indemnify and hold the City harmless from and against the claims of any real estate broker making claims by or through Tenant. 13. City's Right to Enter Property: The City reserves the right to enter the property for the purpose of conducting environmental inspections and clean-up, so long as said activities do not interfere with the use or operation of the property and its improvements by Lessee. 14. Entire Agreement. The Lease, as amended by this First Amendment, constitutes the entire agreement and understanding among the parties with respect to the subject matter hereof. 15. Miscellaneous. a. In the event any term or provision of this First Amendment be determined by appropriate judicial authority to be illegal or dtherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this First Amendment shall be construed to be in full force and effect. b. In construing this First Amendment, the singular shall be held to include the plural, the plural shall include the singular, and the use of any gender shall include every other and all genders. G. Descriptive headings contained herein are for convenience only and shall not control or affect the meaning or construction of any provision of this First Amendment. d. This First Amendment may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. e. This First Amendment shall be deemed a part of the Lease, but shall take precedence over and supersede any provisions to the contrary contained in the Lease. IN WITNESS WHEREOF, the parties have executed this First Amendment as of the day and year first written above. BRAP: Witness: ors.Document Amendment - Beasley -Reed (2006).DOC BEASLEY-REED ACQUISITION PARTNERSHIP, a Delaware limited partnership By:Oa,-41.r Print Name:R t: Title:yp��FD ATTEST: >3y: nscilla A. T11ompson, Cit Clerk �.p?a o� Approved As To Insurance Requirements: Risk Management apartment ors'Document Amendment - Bcasley-Reed (2Do6).DOC THE CITY: CITY OF MIAMI, a municipal corporation of the State of Florida By: PED City Manager