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HomeMy WebLinkAboutExbit 1-2 SUBMiami/460792 FIRST AMENDMENT TO LEASE AGREEMENT (ors rev. 5/12/06) THIS FIRST AMENDMENT TO LEASE AGREEMENT ("First Amendment") is made as of the day of 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"). 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/l0ths) acres, located on Virginia Key, City of Miami, Dade County, Florida (the "Property"); 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 on letter dated November 24, 1986; C. Successor Tenant assigned an undivided one-half (1/2) interest in the Lease to Sunshine 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 Consent 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 BRAP pursuant to a Consent to Assignment and Assumption dated August 11, 2000; and F. The City and BRAP 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 nor in arrearage of any monies due the City. F. Pursuant to Resolution No. 06- , adopted , 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 r 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 Fifty Thousand and No/100 Dollars ($150,000.00) (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 3rd thereafter until the Extension Term ends, the Annual Rental payment shall be increased automatically by an amount equal to five percent (5°/4) of the preceding year's Annual Rental and likewise be paid in equal monthly installments. 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. Section 18 of the Lease entitled "Insurance" is hereby deleted in its entirety and replaced with the following: 18. Insurance 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. 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 Brickell Avenue Miami. Florida 33131 Attn: Stuart 1. Grossman, Esq. Tel: (305) 536-8468 Fax: (305) 536-1 116 To City: City of Miami City Manager 3500 Pan American Drive Miami, Florida 33133 With a copy to: City of Miami Attn: Director Department of Public Facilities 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 7. A new Section 33 is hereby added to the Lease. as follows: 33. Late Fees. A. Tenant hereby acknowledges that late payment by the Tenant to the City of rent and other sums due hereunder will cause the City to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Accordingly, if any installment of rent or any other sum due from the Tenant shall not be received by the City within fifteen (15) days of the date on which such sum was due, the Tenant shall pay to the City a late charge equal to 5% of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the City will incur by reason of late payment by the Tenant. Acceptance of such late charge by the City shall not constitute a waiver of the Tenant's default with respect to such overdue amount, nor prevent the City from exercising any of its other rights and remedies granted hereunder or at law or in equity. B. Any amount not paid to the City within fifteen (15) days after the date such sum was due shall bear interest at the rate of 12% per annum from its due date until paid. Payment of such interest shall not excuse or cure any default by the Tenant under this Lease. 8. A new Section 34 is hereby added to the Lease, as follows: 34. Safety The Tenant shall allow the City inspectors, agents or representatives the ability to monitor compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. The Tenant shall have no recourse against the City, its agents or representatives from the occurrence, non- occurrence or result of such inspection(s). Simultaneously with the assignment of this Agreement, the Tenant shall contact the City's Risk Management Department Safety Unit in writing to coordinate such inspection(s). 9. A new Section 35 is hereby added to the Lease, as follows: 35. Americans With Disabilities Act ors:Document Amendment - Heasley -Reed (2006) The Tenant shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA"), including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. The City shall not require the Tenant to make improvements or renovations not 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 by BRAP. From and after September 1, 2008, BRAP may terminate this Lease upon not Tess 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. 11. 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.. 12. AUDIT AND INSPECTION RIGHTS: A. The City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by the City to Provider under this Agreement, audit, or cause to be audited, those books and records of Provider which are related to Provider's performance under this Agreement. Provider 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 Agreement. B. The City may. at reasonable times during the term hereof, inspect Provider's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods or services required to be provided by Provider under this Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if applicable. Provider shall make available to the City all reasonable facilities and assistance to facilitate the performance of ors:Document Amendment - Beasley -Reed (2006) tests or inspections by City representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of Section 18-55.2 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. 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 otherwise 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. 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. 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. ATTEST: THE CITY: CITY OF MIAMI, a Municipal corporation of the State of Florida By: By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager APPROVED AS TO FORM AND CORRECTNESS: ors:Document Amendment - Beasley -Reed (2006) Jorge L. Fernandez, City Attorney APPROVED AS TO INSURANCE REQUIREMENTS: Risk Management Department ors:Document Amendment - Beasley -Reed (2006) Witness: Print Name Print Name BRAP: BEASLEY-REED ACQUISITION PARTNERSHIP, a Delaware limited partnership By: Print Name: Title: Z:lriverside\Public Facilitiesl_SHARED\ASSET MGNT SECTION\Lease Managers\Beasley Broadcast dba WKAT\Amendment to Agreement (May 2006)1Amendment - Beasley -Reed (2006).DOC ors:Document Amendment - Beasley -Reed (2006) 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: 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 underground hazard IL All Risk property insurance against loss or damage by fire, windstorm, with such endorsements for extended coverage, vandalism, malicious mischief, flood and special coverage, insuring 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. Companies authorized to do business in the State of Florida with the following qualifications, shall issue all insurance policies required above: ors:Document Amendment - Beasley -Reed (2006) 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 review 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 ors:Document Amendment - Beasley -Reed {2006)