HomeMy WebLinkAboutFIRST AMENDMENT LEASE AGREEMENTi
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT ("First Amendment")
is made as of the day of �5 2006, between THE CITY OF MIAMI, a
�:
Municipal corporation of the.:��State of Florida (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 Hernstadt 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 Ivey, 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 Wirel ss Conip`ai `7''assigi d its undivided one. -half interest in the
Lease to BRAP which assigr�if "lig to gtoved bythe City by Const to Assignment
and Assumption dated AugusC T4Ig96'.
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 BRAD desire tto:jenter__into__this--First-Amendment for the "
puipose of extending the term of•t4ee L cease; 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°'t�eferer duin, 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.
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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. Terns. 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 .y 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
Fifty Thousand and No/100 Dollars ($150,000.00) (the "Annual
Rental'), paid in egtllal monihly -installments of Twelve Thousand
Five Hundred and-Doilazs ('S,12,500.00). On September 3,
2009, and every §tp*mb&`-3-'41166after until the Extension Term
ends, the Annual"Reiiial payment shall be increased automatically
by an amount equal"five percent (5%) of the preceding year's
Annual Rental and likewise be paid in equal monthly installments. _ _ __-
- The City-shall--us-6 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 towel; `ifs ap�Tflaiy equipment, and Premises in an
amount of not less'` 'An $50,000. The capital improvements shall
include but are not' trrsi fed 61he following: replacement of the
generator fuel cell; %e 5ettmg ofposts., backfilling the tower base to
protect pier and the ground`s stem, 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
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in an amount not less than $50,000 in replacement of the antenna's
main generator"
5. Insurance. Section l'8. of the Lease entitled "insurance" is hereby
deleted in its entirety and repl4d6d with the following:
"Tenant shillo'l kn ajid 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 BRAD: 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: Tevv Cardenas LLP
FourSeas, ons Tower, 15th Floor
1441'grickell Avenue
Miami; Floridit 33131
I. Grossman, Esq.
t Tel: :, (305),536-8468
Fax`.'" (30S).536-1116
To City: -,City of Miami
City Manager
3500 Pan American Drive
_ - Miami-,-Florida-33133--
Fax
Florida 33133Fax ,}-i (3Q5);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: QQ5X416-1452
Fax:, ; (3Q5) 41�-2156
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otherwise required^by ADA or;other
Tenant shall take affirmative steps
employment of disabled persons.
applicable law. Additionally, the
to ensure nondiscrimination in the
10. A new Section 36 is hereby added to the Lease, as follows:
36. Termination
(a) Termination bytheCify In addition to the termination provisions
provided in Section 17'6f the 'Luse, the City shall have the following
termination nght from and after September 3, 2008, the City may
terminate the Lease, ' upon not less than one hundred eighty (180) days
written notice toBRAP. which notice may not be provided sooner than
September 3, 2008.
(b) Termination by BRAD. From and after September 1, 2008, BRAP
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 ithie . Extension. Term is terminated pursuant to the
provisions of thisiSeetran-36 "n a' date that is earlier than the expiration of
the Extension` Tetra, the `;Anriu'al 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.
11. A new Section 37 tg he1 eby addet to the Lease, as follows:
37. Audit'Andiil spectich Rights:''
The City inay,'at reasonable times, and for a period of up to three
(3) years fol loYvingAhe-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 ageni r conYr e foil with the negotiation of this First
Amendment. Tenant agrees to,rndi;rrtirf`yr`"icfi hold' fhe City harmless from and against
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the claims of any real estate broker m„aking 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 Iong
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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.'1
a. In the evenf-�any term or provision of this First Amendment be
determined by appropriate judicial authority to be illegal or otherwise invalid, such
provision shall be given its nearest legal meaning or be constrbed 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.
C. 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.
C. This First Arr�endment sliait be deemed a }part of the Lease, but
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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:
.BEASLEY-REED ACQUISITION
PARTNERSHIP, a Delaware
limited partnership
Print Naliie GAR Er W PLN (0�
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Print Name: A
Title: �)Jp QFD
THE CITY:
CITY OF MIAMI, a municipal
corporation of the State of Florida
ATTEST:
By: By:
riscilla A. T Wmpson, Cit Clerk P
-�?a City Manager
Approve As To Forrn And Correctness:
Jorge L. , a ez, City Attorney /�/
Approved As To Insurance Requirements:
Risk Management apartment
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EXHIBIT A
INSURANCE REQUIREMENTS
Tenant agrees to have the following policies of insurance in effect and will provide duly
authorized certificates of insurance to the Risk Manager for the City of Miami to confirm
the existence of such policies of insurance to gain physical access to the parcel(s) of land
owned by the City of Miami which are described in the Lease. Such policies of insurance
are to be in effect no later than the date of physical access to such lease area by Tenant,
its employees, officers, guests, contractors and subcontractors pursuant to the Lease:
1. . Commercial General Liability subject to limits and endorsements as shown below:
A. Limits of Liability:
Bodily injury and property damage liability each occurrence: $1,000,000
General aggregate limit: $2,000,000
Products/completed operations: $1,000,000
Personal and advertising injury: $1,000,000
B. Endorsements required:
City of Miami included as additional insured
Employees included as insured
Independent contractor's coverage
Waiver of subrogation
Explosion, Collapse and...upderground 44zacd
II. All Riskro ert is ranee a !inst.loss or damage b fire, windstorm, with
P A Yn.. tl ��- . g Y
such endorsements for,ext�de�d4Eoverage, vandalism, malicious mischief, flood
and special coverage,,,Tsuring 100% of the replacement cost of Tenant's
improvements, fixtures, equipment, furniture and all other personal property in
and about the lease area. This requirement -may -be waived_ provided that Tenant --
executes a full release holding the City harmless for any damages incurred by
Tenant due to the above mentioned causes as defined in a standard All Risk
policy.
III. Workers Compensation
Limits of liability
Statutory -State of Florida
Waiver of subrogation
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer not less than (30) days prior to any such cancellation or
material change.
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Beasley -Reed (2006).00C'
Companies authorized to do business in the State of Florida with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A-" as to management and no less than Class V
as to financial strength by the latest edition of Best's Insurance Guide, published by A.
M. Bests Company, Oldwick New Jersey, or its equivalent. All policies and/or
certificates of insurance are -subject to-reyiew and verification by Risk Management prior
to insurance approval. Receipt "of any documentation of insurance by the City or by any
of its representatives, which indicates less coverage than required does not constitute a
waiver of the Tenant's obligation to fulfill the insurance requirements herein.
In the event Tenant shall fail to procure and place such insurance, the City may, but shall
not be obligated to, procure and place same, in which event the amount of the premium
paid shall be paid by Tenant to. the City as an additional fee upon demand and shall in
each instance be collectible on, the first day of the month or any subsequent month
following the date of payment by the City. Tenant's failure to procure insurance shall in
no way release Tenant from its obligations and responsibilities as provided herein.
The City's Division of Risk Management, reserves the right to reasonably amend the
insurance requirements by the issuance of a notice in writing to Tenant. The Tenant shall
provide any other insurance or security reasonably required by the City
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.LEAwE AGREEMENT
I
THIS LEASE AGREEMENT'made tlis 3 day of September,
1982, between the CITY Ot MIAMI, a Municipal corporation of the
State of Florida, hereinafter called the "City", and HERNSTADT
BROADCASTING CORP., a Florida corporation, a/k/a WKAT AM RADIO
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with offices at 1759 Bay'Road,; Miami Beach, Florida 33131, here-
inafter referred to as -'IWKAT'.'I
I T. WI-TNES-SETH.:,
WHEREAS, the C y of"Miami has advertised for and
received development "proposals by bid invitation for the lease of
approximately three (3) acres of property owned by the City on
Virginia Key for the construction, maintenance and operation of a
broadcast tower communications facility; and
WHEREAS, the proposal as presented by WKAT, is in the
best interest of the publ!c, and
WHEREAS, the i3 oposal contemplates the furnishing,
delivery, installation and maintenance of a broadcast tower com-
munications system with,all safety and other equipment required
by federal, state or local law, as well as all required permits
and approvals; and
NOW, THEREFORE; in consideration of the premises and
the mutual covenants and conditions=herein contained, it is
agreed by the parties hereto '4s foilows:
T'. t k �, i
1. Description of ,remises.
The City7,hereby leases unto WKAT for the purpose and
under the conditions hereinafter set forth, the following described
- - fvbl- property consisting -of approximately two point two (2.2)
acres (hereinafter referred to as the "Property"), located on
Virginia Key, City of Miami, Dade County, Florida, described as
follows:
The actual leased area is thit area shown cross-
hatched on the.." -6hed 'ketch (Exhibit A), which
is also legally described on Exhibit "A-1"
attached hereto.
The City, in addition to the above-described premises,
provides the following easements for the term of this Agreement:
SPARBER, SHEVIN ROISEN SHAPo 3.HEILBRON,NER PROFESSIONAL ASSOCIATION
n -
30th FLOOR, AMER)FIRST BUILDING, ONE SOUTHEAST 3rd AVENUE, MIAMI, FLORIDA 33131
4
(a) Transmit_er arid'Tower"Easement.
Commence at the N.W. Corner, Section 16
Township 54-S Range 42-E; thence easterly
along the North line of said Section 16 a
distance of 1250 feet; thence southerly along
the westerly property line and its northerly
prolongation.thereof of the Miami -Dade Water
and Sewer Author,ity''s SewageTreatment Plant
located on`Vi=rgnia Key; a distance of 2340
feet to the S.W. Corner of said Sewage Treat-
ment Plant Property- thence;ea,st along the
South propert?, fine: off' saxd 'Treatment Plant a
distance of `27b->tf`eet'; thence south a distance
of 460 feet to ,a point; said point being the
center of a circle having a radius of 400
feet and the location of the transmitter
tower. The above circular area comprises
11.5± Ac. (See Exhibit "B").
(b) 20 -Foot Roadway Easement.
The centerline of a 20 -foot wide roadway
easement is described as follows: Commence
at a point,, -414.2.5 feet northerly of the trans-
mitter tower said point also being 107.5•
feet south of the 'southerly fence line of the
Sewage Treatment Plant; thence run easterly
and northeasterly parallel with said fence`
line for approximately 2050±.feet to its
intersection with the Virginia Key Access
Road at the easterly entrance of the Treat-
ment Plant and there terminating.
2. Term.
The term of this Lease. Agreement shall be for twenty-five
(25) years from the. date,her'eo.
3. Use of the Prope,rty'a;nd..Development of Broadcast Facility
The Property_3aased hereunder shall be used solely for
the construction, maintenance and operation of a broadcast tower
and communications facility and no other business activities
shall be carried on at said Property without the specific written
consent of the City Manager or his.authorized representative,
which consent shall not be unreasonably, withheld. The transmis-
4.2
sion of obscene or indecent programmingA_from_the-facility-is
specifically prohibited. Tn�.;facility shall be located in approxi-
mately the position depicted on Exhibit A attached hereto.
It is understood and agreed between the parties that
all site development will be the responsibility of WKAT and the
City_makes no guarantee as to the condition of the site. All
development and construction plans for the facility shall be
submitted to the City flog its approval which approval shall not
rZ-
SPARSER, SHEVIN, ROSEN. SHAPO & HEILBRONNER PROFESSIONAL ASSOCIATION
301" FLOOR, AMERIFIRST BUILDING, ONE SOUTHEAST 3rd AVENUE, MIAMI, FLORIDA 33131
be unreasonably withheld. The ,specific types of communication
equipment to be acquired, installed and used by WKAT in the
construction of the faoity shall be a matter for its sole
discretion but shall,�ncludP provisions. for telecommunications
dish -type receivers.
A primary purppse of the broadcast facility shall be
for the improvement of the City's communication system. The
City's Fire and Police Department's communication needs shall
receive high priority in',the development and utilization of the
system so as to better se i<,ve the„Publ.ic needs.
Additionally j- -WKAT shaIl, provide to the City at no cost
to the City the following: JJ
(a) A maximum of four hundred (400)✓scruare feet of space
within the building constructed upon the leased premises
for use by the City in the storage and operation of the
City's communications equipment to be maintained by the
City on the premises.
(b) Space on the broadcast tower for the installation for
use by the City of fiv=_ 5j.antennas, consisting of two
(2) Microwave"antennas; two (2) UHF antennas (five (5)
feet lonq,onaz(1) in -diameter) and one (1) Electronic
Phase Array Radar antenna. The Microwave antennas will
be eight (8)-f: i._tameter, wind resistance radome
and weight fifty fifty (50) pounds each.
.Torque guyi`d'shall -be used with the microwave antennas.
The Electronic`Phase Radar Antenna's physical specifica-
tions will be defined by the parties within one (1)
month from the date of this Lease.
(c) Electrical power and utilities necessary for the City
transmitter facilities.
Should WKAT use the site.for construction of satellite
antenna facilities Wi.AT or,-Vits?';$ub�essee shall further provide to
the City the following (;,-ii,s section. does not apply too the radio
tower, but only to satellite antennas added to other areas of the
-property); _
(a) Fifty-one percent (51';) usage of any cable or other
communications system interconnecting Virginia Key with
the mainland for the City's radio control network
including connection-to.the John L. Knight conference
center and the ;roof of:,the ;new- Southeast Bank Building
when it is completed
(b) Maintenance Q�'+pommiin�tations:.services between the
City's communadatioiis�-system.'and the Virginia Key
antenna facil'i:ty';via 0 -distribution point on the main-
land.
(c) Full time;uhL nkYand;downlink communications services
including all.electronic peripheral conversion and
supporting equipment i -f the Asite is used for such
facilities.
The broadcast antenna and tower specifications shall
include the following:
(a) Full-length access for technicians, as required by the
Federal Occupational Safety and Health Administration
standards (O.S„H.A.).
(b) The tower andatltenna installation shall be thoroughly
inspected byngualifi.ed--personnel at least twice a year
and remarked w},th hazarsd and warning labels to insure
safety and propefr performance.
(c) A chain link security. fence ten (10) feet minimum in
heighth tgppe,d.11;q barbed wire so as to attempt to
prevent vandalism and bodily -injury of tresspassers
shall be installed.
Additionally, WKAT shall perform the following:
(a) It shall maintain and keep all facilities, including
the access road, operational during the term of this
Lease.
(b) It shall provide.;sufficient shielding of uplink antennas
so that the radiation'level shall meet O.S.H.A. standards
and/or the American National Standards Institute (A.N.S.I.)
standards, whichever is more 'stringent.
(c) In addition to making the facilities available to the
City as defined above, WI:AT shall provide space as
recruired for other governmental agencies including but
not limited to the Florida Marine Patrol, and the
Florida Department of Transportation as well as the
City of Miami's Fire and Police.
The City shall.. permit and,WP•.AT shall utilize the tower
constructed upon the leased premises-fOr broadcasting facilities
and for the installatxoP,gf tglecommunication dish -type receivers
so that the general paiblzc; in the; City, will be able to benefit
from this technology. Al -1 development and construction work to
be performed by WKAT shall be subject to the standard permit
process.
WKAT shall maintain in clean and safe condition all
materials, equipment and improvements constructed upon the premises
as well as the including but not
limited to all safety a;�d pther,equipment required by federal,
state or local law. The City shall cooperate with WKAT in con-
nection with the installation and construction of all necessary
safety features so as to assist WKAT in expediting the construction
of the improvements upon the premises.
4. Easements
This City does hereby grant unto WKAT a perpetual
easement for the term of this Lease and any renewals thereof for
the purpose of access to the leased premises which easement shall
run approximately paralle7. to,'the ex;i.sting south fence line of
the Miami -Dade Water and Sewer. Authority Sewage Treatment Plant
�.._. ,
located adjacent to the Property. Any improvements necessary to
provide adequate access across said easement area shall be borne
by WKAT. All plans and specifications for the development and
construction of the access road.across the easement property
shall be submitted to the City Manager for his approval which
approval shall not be unreasonably withheld. The City further
grants unto WKAT an easement for the installation of ground
systems installed by"WK�fi in connection with its construction of
the broadcast facilitie5`contemplated hereunder. Said easements
shall run across those premises owned by City adjoining the
subject property in such areas as the subject grounds systems may
be installed at the mutual agreement of the parties. It is
futher understood and agreed that the City shall not construct
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nor permit any third part} to'construct" any buildings or other
improvements upon the pdrtibn of premises under which the ground
system are installed unless said buildings are wooden in nature
and readily removable. This easement shall likewise run for the
term of this Lease and any renewals or extensions thereof.
WKAT does hereby grant unto City an easement across
such portions of the leased premises as are necessary, to permit
City access to the Property for the purpose of inspecting, main-
taining and/or operating the facilities made available to City in
accordance with Paragraph 3 above.
5. Construction and Rights to Construct Additional Facilities.
WKAT agrees that it shall complete the construction of
all improvement contemplated hereunder within two (2) years from
the execution date of this Lease Agreement. Additionally, WKAT
shall have the right to_c-onstr�uct,_ at. ,_any time during the term
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hereof, a standby electrical plant for the providing of a neces-
sary power supply to the facilities constructed upon the leased
property. Should WKAT elect to construct such facility it shall
submit the plan thereof`to_the City Manager for his approval
which approval shall not be unreasonably withheld and all such
construction shall be in accordance with good construction prac-
tices and ordinary permit procedures.
o. Consideration.
The consideration to be paid to the City by WKAT for
the leased property shall be equal to an annual rental fee of
Forty -Eight Cents (48�)':pez square foot, -of property leased, which
fee shall be paid in equal -:installments on a monthly basis.
Should the exact square footage of the leased property not be
determined as of the date hereof then same shall be determined as
soon as practicable by a licensed surveyor and thereupon the
annual rental due hereunder shall be determined. All rentals
shall be due on the first day of.each and every calendar month
during the term of this Lease. .Said rent shall be paid to the
City in legal tender of_theyUnited States of America, without
demand therefore and be -:paid at the Office of the Director of
Finance of the City or at such other place as the City may from
time to time designate by notice in writing to INKAT. WRAT shall
additionally pay any and all applicable sales and/or use taxes
due in connection with the rent and any increases thereto or any
other taxes or charges.imposedupon or resulting from occupancy
and use of the said premi.s.es.,.S,ai.d sales. and use taxes shall be
added to the rental payments and forwarded to the City as part of
said payment on the first day of each and every month. It is the
intent hereof that the City receive the rental amount as net,
free and clear of all costs and charges arising from or relating
to the demised premises.
The rental due hereunder shall commence upon the earlier
of:
(a) The completion of the construction of all improvements
and facilitaes;::to be constructed upon the subject
premises and by the City of a Certificate
of Completion and such other approvals as may-be required
by the City or @4iy federal, state or governmental
agency authorizing the use of the facilities for their
intended purposes by WKAT; or
(b) February 1, 1983.
The annual rentals set forth above shall be subject to
increase to reflect increases in the cost of living. The.base
rent payable under this Id'ase may be increased as follows:
COST OF LIVING
(a) the base rent`')"for eaCh'year of the term
Z; this Lease;-='commencing on the second anni-
versary date,of the payment of rentals here-
underr shall be increased by a percentage
equal to the percentage increase of the
consumer price index-U.S. average (CPI)
issued by the United States Department of
Labor on each anniversary date of the payment
of rentals under this Lease
x dhta3 V :-Un e
t is' a All'.such percentage increases
shall be paid :equally over the twelve (12)
months of thet i ease,::year.; E
(b) in the event thatthe CPI as now pub-
lished is not available at any time during
the term of this Lease or has been altered or
modified then the party shall use such other
index as may be substituted for the CPI by
the United States Department of Labor to
measure general increases in prices. Any
such substituted index, shall be applied by
the parties hersto as interpolated, so as not
to reduce the additional rent merely by
virtue of the ,cn4nge-, in the, index use or the
formula by which the index is determined. It
is the intent of„.the;parties that this provi-
sion shall at all times cause the base rent
to be increa;sed,;annvally in, proportion to any
decrease it the-:purchasing power of the
United States cIo:llar and any,increase in the
cost of living commencing with the effective
date of the first such adjustment to the
rentals being as aforesaid. Nothing contained
herein shall cause the rent and additional
rent paid in any.year to be less than the
-- -
rent--and./or -additional rent-paid-in -any prior
year. ,
(c) The CPI increase to,the
basee
shall
accrue commenc pq wi-; h .the tsecond anniversary
date of the pa--�,qnti of.;;rentals under this
Lease and the_frst,,such payment thereof
shall be on'the_;first day of the month follow-
ing notice by-the City to WFAT of the amount
of such increase. The first such additional
rent payment for each year shall include the
additional rent payments for that year which
have accrued but have not yet been paid.
(d) Notwithstanding anything contained hereinabove
to the contrary it is agreed that if the
amount of increase exceeds six percent (6%)
in any one year, that the lessee and lessor
shall agree to a fixed amount of public
service announcements or other exchanges as
negotiated for the amount in excess of six
percent (5°;) in the preceding lease year.
7. F.C.C.Approval-
The parties:fiere o agree`and-`acknowledge that this
Lease is conditioned and'"contingent: upon the Federal Communica-
tions Commission's approval of the premises and the facilities to
be constructed thereon and the use of same by WKAT for the purposes
intended. Should said approval not be obtained then this Lease
shall be deemed cancelled and terminated and of no further force
and effect and each of the parties shall be released and relieved
of any and all further obligations to the other as a result
hereof.
8. Granting of iRis3hts to.Co-Users b 4y KAT.
The parties hereto agree that WKAT shall be permitted
to allow other types of communication networks to utilize the
facilities constructed by.it such as, ambulance companies, inter-
com companies, other broadcasting stations, etc. Should WKAT
elect to do so it shallcause :siich other users to utilize the
facilities in a manner.not'to interfere with the use of the
a.
facilities by the City as provided for in Paragraph 3 hereof. In
the event WKAT enters into such agreement with other users of the
facilities it shall be entitled to charge such users an appropri-
ate fee for the use thereof as well as any and all other consider-
ations as may be deemed appropriate between WKAT and said co -user
in_cornection_with_the contribution toward the construction -- -- -
costs, utility charges, use fees, management fees, etc. Notice
of the granting of any such rights to co -users shall be given to
- I
the City but no objection to same shall be made by the City
unless said use would in any way interfere or conflict with the
City's access to use of the facilities as provided for elsewhere
herein."
9. Subsequent Requirements of City for Change of Facilities
1
& Maintenance.
Should the City or any of its.subdivisions or agencies
granted use rights of the system by WKAT request any changes
therein, following the'conipletion of the initial construction of
the antenna system, or find it necessary to repair and/or maintain
its portion of the system, the cost of such repair, maintenance
or change, including but not limited to the addition or removal
or change of any antenna or transmission line, shall be borne by
the City or such agency requesting said change. Said costs shall
include the required remeasurement of the antenna resistance by a
person qualified to make such measurements together with the cost
attendant upon filing such measurements in pursuing the grant of
authority to determine antenna power by direct measurement.
Furthermore, any such co -user of the facilities shall maintain a
stock of isocouplers of appropriate values to provide replacements
when needed to protect the broadcast stations against having to
operate for long periods -of reduced power using indirect measure-
..-
ment. No such maintenance',: repairs or changes shall be conducted
in a fashion that would in any way unduly interfere with, or
hinder the operation of the facilities utilized by WKAT or a
I
co -user. Injunctive relief may be sought in the event of a
breach of this covenant.
10. Non -Discrimination. ,
WK&T agrees that,theze will be no discrimination under
any circumstances against any person on account of race, color,
ser., religious creed, ancestry, or national origin in connection
with the operations referred to by this Lease. Any such acts
will be considered a default ,subject to the terms and conditions
of Paragraph 18, and it is expressly understood that upon -final
determination of such discrimination, the City shall have the
right to terminate thi.s`-,Lease-Agreement.
11. Permits.
WKAT agrees to -have final plans prepared which will
comply with all pertinent provisions of the South Florida Building
-9-
Code and the ordinances,,,rules;and regulations of Dade County and
the City of Miami. WKAT agrees that no structure of any kind now
existing on the Property shall be altered or a new structure
erected upon the Property unless the plans for said construction
have been approved by the City Manager and the Director of Build-
ing and Zoning Inspections Department of the City, which approval
shall not be unreasonably.withheld or delayed.
As a condition. to this. Lease, WKAT shall obtain at its
sole cost and expense, a11;_permits, approvals, and related documents
from any and all Federal, State, and local governments and agencies
required to construct, maintain, utilize and occupy the facilities
contemplated hereunder.
12, Performance Bond.
WKAT shall—within ten (10) days from the date hereof
or in no event later than., -the commencement of construction or the
-
awarding of any contract for construction on the Property by it
or any of its agents, furnish the City with a Performance Bond,
in the amount of One Hundred Thousand Dollars ($100,000.00),
naming the City as the owner and WKAT as the principal. The
Performance Bond shall insure the faithful completion by WKAT of
the improvements contemplated to be constructed upon the Property
in'accordance with the t6-rms and conditions hereof. WKAT, in. its
discretion may post a One Hundred Thousand Dollar ($100,000.00)
cash deposit with the City;to meet this obligation or in lieu
thereof provide a Performance Bond, the form and content of which
shall be subject to the reasonable approval of the City. The
Performance Bond or cash deposit shall be terminated, and refunded
to WKAT as applicable, with the written approval of the City
Manager of the City, at such time as the proposed construction is
completed and fully operational..,.
13. Licenses.
WKAT aarees to obtain and pay for all required licenses
necessary for the proposed operation and conduct of its business,
at the leased premises.
-10-
14. Taxes.
During the term hereof, WKAT covenants and agrees to
pay all tares of whatsoever nature lawfully levied or assessed
against the Property and improvements, property, sales, rents or
operations thereon, including, but not limited to, ad valorem
taxes. Payment thereof .shall commence with and shall include
tares assessed for the current year, subject to proration as of
the year of commencement of the term, if any there shall be.
WKAT further covenants and agrees to pay all of the said taxes,
if any, lawfully assessed, on such dates as they become due and
payable. The failure of WKAT to pay the taxes as aforesaid shall
constitute grounds for the immediate....cancellation of this Lease
Agreement by the City, subject to the terms and conditions of
Paragraph 18. Nothing contained herein shall be deemed to prohibit
WKAT from contesting, byappropriatemeans, any tax it deems in
good faith to have been improperly levied or assessed.
15. Books, Records, Accounts and Statements.
WKAT shall keep true, accurate, and complete books,
records, and accounts of all business being transacted upon the
Property. Further, it shall, upon demand make available all
books and records, reports_and',.financial statements in any way
Pertaining to the Property to authorized representatives of the
Office of Internal Audit, or such other authorized representatives
as the City Manager shall designate, at the Property during
normal business hours. The Internal Auditing Department of the
City shall be furnished any and all records of WKAT necessary to
make a full and complete audit of the books and operations of the
facilities described ii- this Lease Agreement, limited to the
operation of the tower and this property. Such information shall
not be considered public record.
16. Examination of the Premises bathe City.
WKAT agrees to permit the City, by its City Manager's
designated personnel, to enter upon the Property at any reasonable
time for any purpose the City Manager of the City deems necessary
_ll-
or incidental to or connected with the performance of City's
duties and obligations hereunder or in the exercise of its rights
or functions.
17. Default.
If WKAT abandons or vacates the Property prior to the
expiration of the term hereof; or
If WKAT fails to make the rental payments as set forth
herein and said payment is not made within thirty (30) days after
written notice is given to it; or
If WKAT fails t.q,perform in accordance with any of the
other terms and conditions.`herein contained, and such default is
not cured within thirty`J3.0) days after written notice is given
to it or if the nature of the default is such that i� cannot
reasonably cure' same within said period and it fails to take
diligent measures to commence and pursue the cure thereof, within
said thirty (30) day period, then the City may re-enter the
Property and terminate this lease inr.any manner then permitted or
provided by law. At such time,. all improvements erected on the
Property shall revert to.the,City-
In addition to the right to re-enter and terminate the
lease, the City, in case of a breach in the payment of rent or in
case of the breach of any other of WKAT's obligations hereunder,
shall have all other remedies, including but not limited to the
right to operate the facilities or other remedies afforded by the
laws of the State of Florida, including but not limited to, the
right to sue for and collect rent, and to bring distress proceed-
ings. Said remedies may be pursued concurrently or consecutively
and the resort to one shall not be considered an election.
16. Insurance.
WKAT shall maintain during the term of this Agreement a
comprehensive Public Liability Insurance Policy, including contin-
gent liability, in the amount of not less than a combined single
limit of $1,000,000 ver "occurrence for death, bodily injury and
property damage.
The City shall:be named as an additional insured under
said policy and same shall provide that the City be given at
least thirty (30) days advance written notice of cancellation of
said policy or any material modifications thereof.
The form and content of the policy and the insurance
carrier shall be acceptable to the City of Miami Risk Management
Division, and a copy of -an insurance certificate shall be placed
on file with the Lease•,Manag?r, City of Miami Finance Department,
65 S.W. First Street, Miami, Florida 33130, before WKAT can
commence operation or construction on the premises.
All insurance policies shall be issued by companies
authorized to do business under the laws of the State of Florida
and must be rated at least "A" as to management and Class "X" as
to financial strength, all in accordance with Best's Insurance
Guide, latest edition.
The City reserves the right to amend the insurance
requirements according to usual and customary standards in the
Insurance Industry as circumstances dictate in order to protect
the interest of the City in this Lease Agreement.
Any equipment owned by City and maintained by it on the
leased premises shall be insured.by City and not WKAT.
19. Indemnification.
WKAT covenants and agrees that it shall indemnify and
save harmless the City from and against any and all claims,
suits, actions, damages or causes of action arising during the
term of this Lease Agreement for any personal injury, loss of
life, or damage to property sustained in or on the leased property
by reason of or as a result of VIKAT's use, activities, and opera-
tions thereon, and from and against any orders, judgments or
decrees, which may be entered,thereon, and from and against all
costs, attorneys' fees, expenses, and liabilities incurred in and
about the defense of such claim and the investication thereof so
long as such damage or injury does not occur as a result of the
negligent act or omission,of, the City, its agent or employees;
provided further, however, that before WKAT shall become liable
for said cost, WKAT shall be given notice in writing that the
same are about to be incurred and shall have the option itself to
make the necessary investi.yation and employ counsel of its own
selection for the necessa'y defense of. any claims. The City may,
at its option, retain its -•own counsel at its sole cost and expense
in addition to the provisions hereinabove set forth.
20. Damage or Loss to WKAT's Property.
WKAT assumes all risk of damage or loss to the Property
for any cause whatsoever, except if such damage or loss is caused
by the negligent act or omission of the City, its agents or
employees. WKAT shall provide any security measures it deems
necessary to protect its.area and equipment, materials and facil-
ities_
21. Maintenance of Property.
WKAT accepts the leased property in its present condition
and without any warranty by the City as to same. WKAT, at its
sole cost and expense, ,shall maintain the grounds, all equipment,
facilities and improvements constructed thereon to the extent
z
utilized by it in connection herewith. WKAT further agrees to
maintain the Property and all improvements thereon in a condition
of proper cleanliness, orderliness, and state of attractive
appearance at all times. Any housekeeping service required to
properly maintain the premises shall be provided by WKAT at its
sole cost. No signs or advertising shall be placed on the premises
unless the consent of the lCity li's first obtained, which consent
shall not be unreasonably withheld. There shall be no living
quarters nor shall anyone be permitted to live or cook on the
Property. If the Property is not kept reasonably clean and
attractive in appearance, WKAT shall be so advised. Corrective
action shall be taken by WKAT within seven (7) days time. In the
event such action is not taken, the City shall have the right to
make repairs or cause the_,Poperry to be cleaned and WKAT shall
e.
then be required to reimburse -the City within thirty (30) days
-14-
for said cost and charges. The maintenance required to be per-
formed by WKAT pursuant to -this paragraph shall be conducted in a
fashion that would not unduly interfere with, or hinder the
operation of the portion of the facilities utilized by the City.
Injunctive relief may be sought in the event of a breach of this
covenant.
22. Trash, Rubbish and Garbage Removal.
I
WKAT shall provide at its expense all garbage, trash
and rubbish receptacles within the confines of the leased Property.
Dumping of receptacles and removal of trash, rubbish, and garbage
shall be the responsibility of VIKAT.
23. Utilities.
WKAT shall provide all utility lines to the Property.
It shall further be responsible to provide to the City all neces-
sarv,utilities required by City,_ with regard to its permitted use
of the facil, t t to the City during the full, term of
_... --- aa _ no o cc os— _.
th i G rear -
24. Notices.
Wherever notice -shall be required hereunder, same shall
be deemed given when sent in writing, by hand delivery or sent by
U.S_ Mail, certified, return receipt requested, to the parties as
follows:
TO THE CITY: The City Manager
The City o£;Miami, Florida
P O. Box 330708
MiaMi-. Florida ,33133
TO THE COMPANY: 1KAT t: I
:Attn: William Hernstadt
1759 Bay Road
Miami Beach, Florida 33139
The City or VIKAT may change such mailing addresses at
any time upon giving the other party written notice. All notices,
given hereunder shall be deemed received when delivered or on the
date noted by the U.S. Mail on the return receipt that such
mailina was refused by the addressee or otherwise impossible to
deliver at the subiect address-
-15-
25. AttorneysFees'.
In the event that it is deemed necessary for either
party to file a lawsuit in the appropriate court of law in order
to enforce any of the terms or provisions of this Lease Agreement,
then the prevailing party shall be entitled to reasonable attor-
neys' fees.
26. Conf ormi ty 'to: the Law.
WKAT covenants to comply with all laws, ordinances,
regulations, and orders -.of Federal, State, County and Municipal
authorities pertaining to the Property and operation thereon.
27. Pledge of Leasehold Interest.
WRAT may pledge this leasehold interest as security for
a bona fide loan obtained in connection with the construction and
operation of the facilities to be developed upon the Property,
provided, the quality of the assignee is approved by the City
Manager, which approval may not be unreasonably withheld. This
section shall under no circumstances be construed to require the
City to participate in the financing of the proposed improve-
ments. The City shall fully cooperate with WICAT in respect to
the reasonable requirements of, its lender.
28. Assignment and Subletting of Premises.
WKAT shall not_at any time during the term of this
Lease Agreement sublet any, part of the Property or assign this
Lease Agreement or any�po'rtion or part thereof, except and by
virtue of written authorization granted by the City Manager or
City Commission of the City. Saidauthorizationshall not be
unreasonably withheld or delayed./ Any purchaser of WKAT who has
received FCC approval for acquisition of the station shall be
deemed an approved sublessee.; This provision shall not apply to
co -user agreements as.contemplated in Paragraph 9 hereof, so long
as the portion of the facility made available for said co -user is
not then being utilized for public purposes.
29. Bindino on Successors.
The terms and provisions of the Lease Agreement shall,
be binding and inure to the benefit of the successors and assigns
respectively of the City and WI.kT.
30. Ownership of Improvements.
All improvements, furnishings and equipment constructed
or installed on the Property by WKAT shall be personal property
and WKAT shall have legal title thereto during the t4rm of this
Lease. Upon the expiration or termination of this Lease, title
to all permanent improvements constructed on the premises shall
vest in the City and WI:AT shall quietly and peaceably deliver the
same to the City. Title to all supplies, furnishings, inventories,
removable fixtures and removable equipment including the radio
tower and antenna system and other personal property shall remain
vested with WKAT and it shall have the right to remove such items
from the premises at its expense unless it is then in default
hereunder_ Should WY:AT elect, it shall have the right to leave
the radio tower and antenna system on the premises at the expiration
of this Lease and said action shall be deemed to constitute a
gift of same to the City,,unlessthe parties have otherwise agreed
to a purchase and sale of:said equipment for good and valid
consideration paid by the.City to WKAT.
31. Miscellaneous.
A waiver of the breach of any of the covenants of this
Lease Agreement shall not be construed to be a waiver of any
other covenant or any succeeding breach. The provisions of this
Lease Agreement contain the entire understanding of the parties
hereto concerning, the subject matter hereof. No modifications,
release, discharge or waiver of aiiy of the provisions hereof
shall be of any force and effect unless signed in writing by the
City Manager of the City and WKAT by its appropriately designated
corporate officers.
32. Captions.
The captions contained in this Lease Agreement are
inserted only as a matter- of "convenience and for reference and in
-17-
no way define, limit or prescribe the scope of this Lease Agreement
or the intent of any provisions thereof.
IN WITNESS WHEREOF, the parties herein have executed
this Agreement the day and year first above written.
CITY OF MIAMI, FLORIDA
a municipal cor ration
BY:
ATTES u CI R
CI CLERK
HERNSTADT BROADCASTING CORP.,
a/k/a WKAT AM RADIO,
a Florida corporation
ATTEST: BY:
SECRETARY VICE-PRESIDENT
GENERAL MANAGER
APPROVED AS TO FORM
AND CORRECTNESS-.
Z
TY ATTORNEY
004/585D
SPARSER, SHEVIN, POSEN, SHAPO & NEILBRONNEaPROFESSIONAL ASSOCIATION
90lhFLOOR AMERIFiRSTBUILDING, ONE SOUTHEAST 3rd AVENUE MIAMI FLORIDA331%1
( SEA _L )
;Err,•.. •ir'r ..,._.
EXHIBIT "A-1"
Commence at the Northwest corner, of Section 16,
Township 54 South, Range 42 East; thence
easterly along the north line of said Section 16
a distance of 1,250 feet; thence southerly
along the westerly property line and its
northerly prolongation thereof of the Miami -Dade
Water and Sewer Authority's Sewage Treatment
Plant located on Virginia Key, a distance of
2,340 feet to:'the Southwest corner of said
Sewage Treatment-Plant'Property, thence east
along the south property line of said treatment
plant a distance of 270 feet; thence south a
distance of 35 feet to the point of beginning;
thence east a distance of 18.2 feet to a
corner; thence south a distance of 25 feet to
a corner; thence west a distance of 8.2 feet
to a corner; thence south 191.3 feet to a
corner; thence east 336.4 feet to corner;
thence south 30° east a distance of 20 feet
to a corner; thence south 600 west a distance
of 394.2 feet to a corner; thence south 394.2
feet to a corner; thence west a distance of
20 feet to a corner; thence north a distanbe
of 394.2 feet;.:to a•„corner;;thence north 60°
west a distance of ,,3.94.2 feet to a corner;
thence north 30° east a distance of 20 feet
to a corner; thence east a distance of 336.4
feet to a corner; thence north 191.3 feet to
a corner; thence west a distance of 8.2 feet
to a corner; thence north a distance of 25
feet to a corner; thence east a distance of
18.2 feet to the point of beginning; described
leasehold parcel containing 2.2 more or less
acres (95,832 square feet t).
004/585H
SPARSER, SHEVIN, ROSEN, SHAPO 6 HEILBRONNEA PROFESSIONAL ASSOCIATION
30th FLOOR, AMERIFIRST BUILDING, ONE SOUTHEAST 3rd AVENUE. MIAMI, FLORIDA 33131
r
- -344
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