HomeMy WebLinkAboutC-3164(A) - Lease agreement - use of City facility by commercial radio stationMEMORANDUM OF LEASE, ASSIGNMENT AND CONSENT
This Memorandum of Lease is effective this day of Jj kK e- , 2000 by and
between Citicasters Co., an Ohio corporation ( "Citicasters "), whose business address is 200
Concord Plaza, Suite 600, San Antonio, Texas 78216, Entravision Communications
Corporation, a Delaware corporation ( "Entravision"), whose business address is 2425
Olympic Boulevard, Suite 6000 West, Santa Monica, California 90404, and the City of
Newport Beach, a municipal corporation (the "City"), whose address is 3300 Newport Blvd.,
Newport Beach, CA 92658.
Whereas, Citicasters is a wholly -owned subsidiary of Clear Channel Communications,
Inc., a Nevada corporation;
Whereas, the City is the current fee owner of the real property described in Exhibit A
attached hereto (the "Property");
Whereas, the City and Kelsho Communications ( "Kelsho "), among others, entered into
a Lease Agreement dated July 31, 1997 consisting of fifteen (15) pages ( "the Lease "), pursuant
to which the City leases to Kelsho a portion of a building and certain facilities located on the
Property and as more particularly described and identified in the Lease as the "Facilities;"
Whereas, the Lease was assigned by Kelsho to Citicasters, effective December 17,
ME
Whereas, the City acknowledges that the Lease is a valid and enforceable document,
and has not been amended or assigned except as disclosed herein;
Whereas, Citicasters and Entravision, have entered into an Asset Purchase Agreement
dated February 29, 2000 ( "Agreement ") pursuant to which Citicasters has agreed to assign its
interest in the Lease to Entravision as of, and contingent upon, the Closing (as defined in the
Agreement) of the Agreement;
Whereas, Citicasters, Entravision and the City desire to memorialize the existence of
the Lease and the assignment of such Lease;
Now, therefore, Citicasters, Entravision and the City hereby set forth the terms
contained in the Lease:
1. Term.
The initial term of the Lease began on approximately October 10, 1997 and continues
through October 9, 2002.
2. Renewal Options.
The Lease contains ten (10) consecutive one (1) year automatic renewals. During any term
of renewal the Lease may be terminated at any time, without cause, upon sixty (60) days
prior written notice of intent to terminate the Lease provided by the parry wishing to
terminate the Lease.
3. Assignment.
As of and contingent upon the Closing of the Agreement, Citicasters sells, assigns,
transfers and delegates to Entravision and its successors and assigns all of its right, title and
interest in and to the Lease.
4. Consent.
The City hereby acknowledges and consents to Citicasters' assignment to Entravision of
Citicasters' rights, title and interest in and to the Lease.
5. Compliance.
Entravision agrees to be bound by and comply with all terms, conditions and obligations of
the Lease.
6. Counterparts.
This Memorandum of Lease, Assignment and Consent may be signed in any number of
counterparts with the same force and effect as if all signatures appeared on one and the
same instrument.
(SIGNATURE PAGES FOLLOW]
Signed and acknowledged
in the presence of:
Denise Slavin
State of Texas
County of Bexar
CITICASTERS CO
an Ohio rp ennetor lion
By:
Name.Kh E. yker
Title:Senior Vice President
General Counsel
On June 20, 2000 before me, Denise Slavin a Notary Public in and for said County and
State, personally appeared Kenneth E. Wyker personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that his /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
My Commission Expires 8 -15 -2001
h:
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9
State of California
County of Los Angeles
FAN M
By:
Name: Walter oa
Title: Chairman and Chief Executive Officer
On, ( �, 2000 before me, DIANA GUEVARA, a Notary Public in and
for said County and State, personally appeared WALTER ULLOA personally known to me (er-
to be the personWwhose name is e
subscribed to the within instrument and acknowledged to me that his /shekhey executed the same
in hisAwrfthetnuthorized capacitySjeSJ, and that by his /4e0fbeir signature(pj<on the instrument
the person(, or entity upon behalf of which the personoKacted, executed the instrument.
WITNESS my hand and official seal.
0
Notary Public
My Commission Expires, t Wt)3
Attest:
n...
M
THE CITY OF NEWPORT BEACH
a municipal corporation
By:
N Oh n/ t . /l/DY ES
Title: VP7,9- y o K
State ofcGJ. \� 5�
County of 0\1 c'^
On (D -,, )O (� L before me a Notary Public in and for said
County and State, personally __appeared •Jp1, h t a 2pef$ona%kn�own to me to be
the person�vhose nam�ji� sigsc�ribed to the th men I,c owle ged to me that
executed the same in k uthorized capacitj7j and that by h• 1gnatureSon the instrument the
personTor entity upon behalf of which the perso4cted, executed the instrument.
WITNESS my hand official seal.
+� -C`Ai HY RSHER
r Commission # 1176329 z
Notary Puolic - California $
Crange Courty
My Comm. s� � 7.1,2 . x2
This instrument was prepared in its unexecuted form by:
Jessica Rosenthal, Esq.
Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, DC 20006
(202) 719 -7000
Notary Public
My Commission Expires
0
LESSOR'S ESTOPPEL CERTIFICATE
The undersigned, City of Newport Beach, is the landlord or lessor ( "Lessor") under
that certain lease, by and between Lessor and Kelsho Communication, L.P., a California
limited partnership ( "Kelsho "), attached hereto and made part hereof (the "Lease "), of certain
real property in the City of Newport Beach, State of California, as described in the attached
Lease (the "Premises). The Lease was assigned by Kelsho to Citicasters Co., an Ohio
corporation ( "Citicasters "), effective December 17, 1998. With the understanding that
Entravision Communications Corporation, a Delaware corporation ( "Assignee "), will, and is
authorized and entitled to, rely upon the representations made herein in purchasing from
Lessee certain assets which comprise radio stations KACD(FM), licensed to Santa Monica,
California, and KBCD(FM), licensed to Newport Beach, California (the "Stations "), Lessor
hereby represents and certifies as follows:
1. Attached hereto is a true, correct and complete copy of the Lease, including all
amendments, addenda and work letters, which is in full force and effect and has not been
modified, supplemented, canceled or amended in any respect except as attached hereto.
The Lease constitutes the only lease or right to occupancy of the Premises.
2. Kelsho and Citicaters (collectively, "Lessee") under the Lease have accepted the Premises
and taken possession thereof without any existing condition or qualification, and both the
Lessor and Lessee have completed and complied with all required conditions precedent to
such acceptance and possession. As of June 13, 2000, Lessee (i) has taken possession of
the Premises without reservation, (ii) has paid the full basic monthly rental provided in the
Lease through and including June, 2000, (iii) is not in default in the payment of rent or any
other amount under the Lease, or, to the knowledge of Lessor, in the observance or
performance of any other covenant or condition to be observed or performed by the Lessee
under the Lease, (iv) claims no default by Lessor under the Lease, and (v) has no claims,
defenses or rights of offset against any rents payable thereunder. Further, to the
knowledge of Lessor, no event has occurred which now or will hereafter authorize the
Lessor to terminate the Lease.
3. The term of the Lease commenced on or before October 10, 1997, and continues through
October 9, 2002. The Lease contains ten (10) consecutive one (1) year automatic renewals.
During any term of renewal the Lease may be terminated at any time, without cause, upon
sixty (60) days prior written notice of intent to terminate the Lease provided by the party
wishing to terminate the Lease.
4. Lessor is not in default under the terms and conditions of the Lease and has not received
any notice or communication from Lessee under the Lease that can be construed to be a
notification that the Lessee believes the Lessor to be in default. Lessor has performed all
obligations relating to construction of the leased Premises or to the leasehold improvements
therein.
882979
E
E
5. Lessor shall not agree to any modification, amendment, supplement or termination of the
Lease or any of its provisions without the prior written notice to Assignee..
6. This certificate and the representations made herein shall be governed by the laws of the
State of California and are binding upon and inure to the benefit of Entravision
Communications Corporation and Lessor and their respective successors and assigns and to
no other persons or entities, and the representations made herein shall survive the closing
of the purchase of the Stations and the delivery of this certificate.
IN WITNESS WHEREOF, this certificate has been duly executed and delivered by the
authorized officer of the undersigned as of YLLK , 2000.
RM
LESSOR:
Name:
Title:
J�
J
Council Meeting: June 13, 2000
Agenda Item No. s
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
June 13, 2000
TO: Mayor and Members of the City Council 3`4;
FROM: Robin L. Clauson, Assistant City Attorney APPROVED
RE: Assignment of Lease with Kelsho Communications
Discussion
A radio broadcasting tower has been located at the City's Utility Yard for many years. In
July, 1997, the City Council approved a five (5) year lease between the City and Kelsho
Communications for a 1,568 square foot building to house communications equipment as
well as the area where the tower is located. No office operations are permitted from the
site. In 1998 the Lease was assigned to Citicasters.
Citicasters currently is required to pay One Thousand Seven Hundred Dollars ($1,700.00)
per month in rent. The amount will increase One Hundred Dollars ($100.00) per month
for each of the remaining years of the lease. Citicasters now wishes to sell its station and
assign the lease to Entravision Communications Corporation, Station KBCD (FM).
The lease requires that Citicasters obtain the City's consent before any assignment is
effective. Citicasters has requested Council approval of the assignment via approval of
the attached Memorandum of Lease Assignment and Estoppel Certificate.
Recommendation
It is recommended that the City Council consent to the assignment of the Citicasters
lease to Entravision Communications Corporation and approve and authorize the City
Manager to execute the attached Memorandum of LeasA Assignment and Estoppel
Certificate. .1.7
ROBIN L. CLAUSON
RLC:da
Attachments
F:\users\cat\shared\CCmemo\CiticastersEntravision.doc
0 0
LESSOR'S ESTOPPEL_ CERTIFICATE
The undersigned, City of Newport Beach, is the landlord or lessor ( "Lessor ") under
that certain lease, by and between Lessor and Kelsho Communication, L.P., a California
limited partnership (-Kelsho"), attached hereto and made part hereof (the "Lease "), of certain
real property in the City of Newport Beach, State of California, as described in the attached
Lease (the "Premises). The Lease was assigned by Lessee to Citicasters Co., an Ohio
corporation ( "Citicasters "), effective December 17, 1998. With the understanding that
Entravision Communications Corporation, a Delaware corporation ( "Assignee "), will, and is
authorized and entitled to, rely upon the representations made herein in purchasing from
Lessee certain assets which comprise radio stations KACD(FM), licensed to Santa Monica,
California, and KBCD(FM), licensed to Newport Beach, California (the "Stations "), Lessor
hereby represents and certifies as follows:
Attached hereto is a true, correct and complete copy of the Lease, including all
amendments, addenda and work letters, which is in full force and effect and has not been
modified, supplemented, canceled or amended in any respect except as attached hereto.
The Lease constitutes the only lease or right to occupancy of the Premises.
Kelsho and Citicaters (collectively, "Lessee ") under the Lease have accepted the Premises
and taken possession thereof without any existing condition or qualification, and both the
Lessor and Lessee have completed and complied with all required conditions precedent to
such acceptance and possession. As of June � 2000, Lessee (i) has taken possession of
the Premises without reservation, (ii) has paid the full basic monthly rental provided in the
Lease through and including June, 2000, (iii) is not in default in the payment of rent or any
other amount under the Lease, or, to the knowledge of Lessor, in the observance or
performance of any other covenant or condition to be observed or performed by the Lessee
under the Lease, (iv) claims no default by Lessor under the Lease, and (v) has no claims,
defenses or rights of offset against any rents payable thereunder. Further, to the
knowledge of Lessor, no event has occurred which now or will hereafter authorize the
Lessor to terminate the Lease.
The term of the Lease commenced on or before October 10, 1997, and continues through
October 9, 2002. The Lease contains ten (10) consecutive one (1) year automatic renewals.
During any term of renewal the Lease may be terminated at any time, without cause, upon
sixty (60) days prior written notice of intent to terminate the Lease provided by the party
wishing to terminate the Lease.
Lessor is not in default under the terms and conditions of the Lease and has not received
any notice or communication from Lessee under the Lease that can be construed to be a
notification that the Lessee believes the Lessor to be in default. Lessor has performed all
obligations relating to construction of the leased Premises or to the leasehold improvements
therein.
HT2419
0 9
5. Lessor shall not agree to any modification, amendment, supplement or termination of the
Lease or any of its provisions without the prior written notice to Assignee.
6. This certificate and the representations made herein shall be governed by the laws of the
State of California and are binding upon and inure to the benefit of Entravision
Communications Corporation and Lessor and their respective successors and assigns and to
no other persons or entities, and the representations made herein shall survive the closing
of the purchase of the Stadons and the delivery of this certificate.
IN WITNESS WHEREOF, this certificate has been duly executed and delivered by the
authorized officer of the undersigned as of 2000.
Witness: LESSOR:
By:
Name:
Title:
0 0
MEMORANDUM OF LEASE, ASSIGNMENT AND CONSENT
This Memorandum of Lease is effective this _ day of , 2000 by and
between Citicasters Co., an Ohio corporation ( "Citicasters "), whose business address is 200
Concord Plaza, Suite 600. San Antonio, Texas 78216, Entravision Communications
Corporation, a Delaware corporation ( "Entravision "), whose business address is 2425
Olympic Boulevard, Suite 6000 West, Santa Monica, California 90404, and the City of
Newport Beach, a municipal corporation (the "City "), whose address is 3300 Newport Blvd
Newport Beach, CA 92658.
Whereas, Citicasters is a wholly -owned subsidiary of Clear Channel Broadcasting, Inc.,
a Nevada corporation;
Whereas, the City is the current fee owner of the real property described in Exhibit A
attached hereto (the "Property ");
Whereas, the City and Kelsho Communications ( "Kelsho "), among others, entered into
a Lease Agreement dated July 31, 1997 consisting of fifteen (15) pages ('the Lease "), pursuant
to which the City leases to Kelsho a portion of a building and certain facilities located on the
Property and as more particularly described and identified in the Lease as the "Facilities;"
Whereas, the Lease was assigned by Kelsho to Citicasters, effective December 17,
1998;
Whereas, the City acknowledges that the Lease is a valid and enforceable document,
and has not been amended or assigned except as disclosed herein;
Whereas, Citicasters and Entravision, have entered into an Asset Purchase Agreement
dated February 29, 2000 ( "Agreement ") pursuant to which Citicasters hereby does assign its
interest in the Lease to Entravision;
Whereas, Citicasters, Entravision and the City desire to memorialize the existence of
the Lease and the assignment of such Lease;
Now, therefore, Citicasters, Entravision and the City hereby set forth the terms
contained in the Lease:
1. Term.
The initial term of the Lease began on approximately October 10, 1997 and continues
through October 9, 2002.
2. Renewal Options.
9
9
The Lease contains ten (10) consecutive one (1) year automatic renewals. During any term
of renewal the Lease may be terminated at any time, without cause, upon sixty (60) days
prior written notice of intent to terminate the Lease provided by the party wishing to
terminate the Lease.
3. Assignment.
Citicasters hereby sells, assigns, transfers and delegates to Entravision and its successors
and assigns all of its right, title and interest in and to the Lease.
4. Consent,
The City hereby acknowledges and consents to Citicasters' assignment to Entravision of
CitiCasters' rights, title and interest in and to the Lease, provided that this consent shall not
be effective until the City receives full reimbursement for the annual rent increases set forth
in Section 3 of the Lease by 5;00 p.m. on June , 2000.
5. Compliance.
Entravision agrees to be bound by and comply with all terns, conditions and obligations of
the Lease.
6. Counterparts.
This Memorandum of Lease, Assignment and Consent may be signed in any number of
counterparts with the same force and effect as if all signatures appeared on one and the
same instrument.
[SIGNATURE PAGES FOLLOW]
E
Signed and acknowledged
in the presence of:
0
State of )
County of )
CITICASTERS CO.,
an Ohio Corporation
Name:
Title:
On before me, a Notary Public in and for said
County and State, personally appeared personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are
subscribed to the within instrument and acknowledged to me that his /she /they executed the
same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the
instrument the person(s), or entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
My Commission Expires
0
Signed and acknowledged
in the presence of:
State of )
County of )
0
ENTRAVISION
COMMUNCIATIONS
CORPORATION,
a Delaware Corporation
Name:
Title:
On before me, a Notary Public in and for said
County and State, personally appeared personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are
subscribed to the within instrument and acknowledged to the that his /she /they executed the
same in his /her /their authorized capacity(ies), and that by his/her /their signature(s) on the
instrument the person(s), or entity upon behalf of which the persons) acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
My Commission Expires
Attest:
By.
Approved as to form:
M
State of )
County of )
THE CITY OF NEWPORT BEACH
a municipal corporation
0
Name:
Title:
On before me, a Notary Public in and for said
County and State, personally appeared personally known to me to be
the person whose name is subscribed to the within instrument and acknowledged to me that his
executed the same in his authorized capacity, and that by his signature on the instrument the
person or entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand official seal.
Notary Public
My Commission Expires
This instrument was prepared in its unexecuted form by:
Jessica Rosemhal, Esq.
Wiley, Rein & Fielding
1776 K Street, N.W.
Washing=, DC 20006
(202) 719 -7000
•
EXHIBIT A
See Attached.
0
0
Order NO: 9301936A -ROD
DESCR=ON
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NOS LMM oa S=I=FTY A"AT, AND TMMrl SUIT 790 PERT TO TML PLaM *r
al3siiA0lm.
�- 7.2'14 %98 14:43 FAX 202 637.2201 12 NORTH 3j 003
MEMORANDUM OF LEASE, ASSIGNMENT AND CONSENT
Thic KAcmnrnnrium of I aria is PffPChvP this /Wj! day of )je( ? I }i 199 by
and between CITICASTERS CO., an Ohio corporation ( "Citicasters "), whose business
address is 50 East River Center Boulevard, Covington, KY 41011, KELSHO
COMMUNICATIONS, L.P., a California limited partnership ( "Kelsho "), whose business
address is 3099 Mandeville Canyon Road, Los Angeles, CA 90049, and the CITY OF
NEWPORT BEACH, a municipal corporation (the "City "), whose address is 3300
Newport Blvd., Newpor, Beach, CA 92658.
Whereas, Citicasters is a wholly -owned subsidiary of Jacor Communications,
Inc., a Delaware corporation;
Whereas, the City is the current fee owner of the real property described in
Exhibit A attached hereto (the "Property ");
Whereas, the City and Kelsho, among others, entered into a Lease Agreement
dated July 31, 1997 consisting of fifteen (15) pages ( "the Lease "), pursuant to which the
City leases to Kelsho a portion of a building and certain facilities located on the
Property and as more particularly described and identified in the Lease as the
"Facilities ";
Whereas, the City acknowledges that the Lease is a valid and enforceable
document, and has not been amended or assigned except as disclosed herein;
Whereas, Citicasters and Kelsho, among others, have entered into an Asset
Purchase Agreement dated October 9, 1998 ( "Agreement ") pursuant to which Kelsho
hereby does assign its interest in the Lease to Citicasters;
Whereas, Citicasters, Kelsho and the City desire to memorialize the existence of
the Lease and the assignment of such Lease;
Now, therefore, Citicasters, Kelsho and the City hereby set forth the terms
contained in the Lease:
Term
The initial term of the Lease began on approximately October 10, 1997 and
continues through October 9, 2002.
.<b
2. Renewal Options
The Lease contains ten (10) consecutive one (1) year automatic renewals.
During any term of renewal the Lease may be terminated at any time, without
oc Docsurs;7.1
DEC- 14 -1SSE 11:51 etc 537 2201
57:: F.33
1211 14;98 14:43 FAX 202 637 2201 12 NORTH--
- -- 004
cause, upon sixty (60) days prior written notice of intent to terminate the Lease
provided by the party wishing to terminate the Lease.
3. Assignment.
Kelsho hereby sells, assigns, transfers and delegates to Citicasters and its
successors and assigns all of its right, title and interest in and to the Lease.
4. Consent.
The City hereby acknowledges and consents to Keisho's assignment to
Citicasters of Keisho's rights, title and interest in and to the Lease, provided that
this consent shall not be effective until the City receives full reimbursement for
the site improvement costs set forth in Section 5 of the Lease by 5:00 p.m. on
December 14, 1998.
5. Compliance.
Citicasters agrees to be bound by and comply with all terms, conditions and
obligations of the Lease.
2
7C DOCS \I %8881.:
DEC -14 -1996 11:52 202 637 2201
F.Oc
"yo 14140 F -kI 202 637 2201 12 NORTH
LEG -15 -90 14,27 FROM,GRAYD •EA.D RITCHBY
Signed and acknowledged
in the presence of:
State of fl 0 )
) ss
County of 4MI P:1' ' )
ID, •
CITICASTERS CO..
an Ohio Corporation
BY.
e —
e, S. v
2002
PACE 2/2
Cr /o12G, Ir % d before me, (A 7,VL�G. �2—� / a Notary
Public in and or said County and State, personally appeared
7/✓ A.ee y
_o personally known to me (or proved to me on the
basis of satisfactory a idence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that his /shelthey executed the same in
hislherltheir authorized capacity(ies), and that by histhedtheir signature(s) on the
instrument the person(s), or entity upon behalf of which the person(s) acted, executed
the instrument.
3
DC DOCS\1 18681.1
Notary Pu
My Comrr
COURTNEY G TASTY
try Conxrdcspn Ev'"ALV- 30,, IM
JEC- 1S -19S8 1 1=57
202 537 2201 MG%
a�
12/14/98 14:44 FAX 202 637 2201 12 VORTH
Signed and acknowledged
in the presence of:
Darrell Armstrong
By:
State of Cali_`ornia )
ss
County of Los Angeles )
KELSHO COMMUNICATIONS, L.P
a California limited partnership
On December L3, 1998 before me, Darrell Armstrong a Notary
Public in and for said County and State, personally appeared
Kenneth Z. Roberts personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to
the within instrument and acknowledged to me that his /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her/their signature(s) on the
instrument the person(s), or entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
i.._....� - Oi�9dE'dl +4?�it��y�gqppu•'
} •� C7w�:.6iN.l R
r � Y 1YIMY .'.N�HYbiY� V'N1�iY /T
4
CC C0051173331.1
Notary Public
My Commission Expires April 16, :995
006
J
DEC- 14 -19SE 11:52 202 E37 2201 57 %: F.z6
12'14.98 14:44 FAX 202 637 2201
12 NORTH
By: Lavonne Harkless
City Clerk By:
Approve" to form:
By: Robin L. Clauson
Assistant City Attorney
State of YrnU )
ss
County of
•
THE CITY OF NEWPORT BEACH,
a municipal corporation
,�"'� (----7Z.
Name :1^rii� :�
Titte :h_�
On 0(�CtTO before me, t�A0l y ' ) () a Notary
Public in and for said County and State, personally appeared
4-Qeflois G. personally known to me he
to be the perscn(&}whose name(&} is /ar-e subscribed to
the within instrument and acknowledged to me that his /&executed the same in
his /hey their authorized capacity(es . and that by his /her /their signature(-,) on the
instrument the perscn(&� or entity upon behalf of which the persorgej' acted, executed
the instrument.
WITNESS my hand and official seal.
siL4Nl V, INEi
Commission < i 17C960
=�s No-ary ?colic - Cafifa-nia
Orcnge Coun ty -
MY C�mM. Z7Zires ion 25.2x2
5
DC DOCSU78S8i.1
Notary Public 2
My Commission Expires '1301 L u
DEC -14 -1956 11 :53 202 637 2201 97:
R.12
1�
12/14/98 14:45 F.Al 202 637 2201 _12 VO TH 012
EXHIBIT A
See Attached
__a� certain !and � _ .t. - -
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-_`1 :,Qt _'JI3 .ode- Scrice•d in e dseC_
g_ +"-
_rom he ..e: ^,o Bead '4zter Co : any _scorcec_ _se, _ - ---
l Sl Of Deed-; reco.._S ".rS^ � C'- .Y_C7, 014 f .�'_'? 4
3a= ; alor_ tae So z,._ line �f zhe _a; �ent_o:_ed
thence So.:.L:1 alon_ a line parallel to said
F.. -,,arc �^' c' lam r t 7n ;- t
ui.__..G ___."eve„_,, _. :ec vv c..` invOr SeC �..
Said Lot 1013; hence 'Resu along tale South 11_
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T'_- irteen, 290 -feet to the point of beEinn n_, a
more or less.
_arcei of land
line of said Lot ?e
_ t:1e SCll ___
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of said Lot ''_'en u:idred
)ntainine one acre,
Said land does not front or, any pli_-llc S_Tee or '7.i ^ ^7 C recor�_.
:'IJ -e Said land lies wi thin �eY!port _.:eSa _ --i �ctio on Di s-
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?: \CatW g \Citicasters \MemoLease l 20898.doc
DC_DCC51I78S8l.t
DEC-14 -15se 77:53
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0
LESSOR'S ESTOPPEL CERTIFICATE
The undersigned, CITY OF NEWPORT BEACH, is the landlord or lessor
( "Lessor ") under that certain lease, by and between Lessor and KELSHO
COMMUNICATIONS, L.P., a California limited partnership ('Lessee "), attached hereto
and made a part hereof (the "Lease "), of certain real property in the City of Newport
Beach, State of California, as described in the attached Lease (the "Premises "). With
the understanding that Citicasters Co., an Ohio corporation ('Assignee "), will, and is
authorized and entitled to, rely upon the representations made herein in purchasing
from Lessee certain assets which comprise radio stations KACD(FM), licensed to Santa
Monica, California, and KBCD(FM), licensed to Newport Beach, California (the
"Stations "), Lessor hereby represents and certifies as follows:
Attached hereto is a true, correct and complete copy of the Lease, including all
amendments, addenda and work letters, which is in full force and effect and has
not been modified, supplemented, canceled or amended in any respect except
as attached hereto. The Lease constitutes the only lease or right to occupancy
of the Premises.
2. Lessee under the Lease has accepted the Premises and taken possession
thereof without any existing condition or qualification, and both the Lessor and
Lessee have completed and complied with all required conditions precedent to
such acceptance and possession. As of December 14, 1998, Lessee (i) has
taken possession of the Premises without reservation, (ii) has paid the full basic
monthly rental provided in the Lease through and including December, 1998, (iii)
is not in default in the payment of rent or any other amount under the Lease, or,
to the knowledge of Lessor, in the observance or performance of any other
covenant or condition to be observed or performed by the Lessee under the
Lease, (iv) claims no default by Lessor under the Lease, and (v) has no claims,
defenses or rights of offset against any rents payable thereunder. Further, to the
knowledge of Lessor, no event has occurred which now or will hereafter
authorize the Lessor to terminate the Lease;
3. The term of the Lease commenced on or before October 10, 1997, and
continues through October 9, 2002. The Lease contains ten (10) consecutive
one (1) year automatic renewals. During any term of renewal the Lease may be
terminated at any time, without cause, upon sixty (60) days prior written notice of
intent to terminate the Lease provided by the party wishing to terminate the
Lease.
4. Lessor is not in default under the terms and conditions of the Lease and has not
received any notice or communication from Lessee under the Lease that can be
construed to be a notification that the Lessee believes the Lessor to be in
0
0
default. Lessor has performed all obligations relating to construction of the
leased Premises or to the leasehold improvements therein;
5. Lessor shall not agree to any modification, amendment, supplement or
termination of the Lease or any of its provisions without the prior written notice
to Assignee.
6. This certificate and the representations made herein shall be governed by the
laws of the State of California and are binding upon and inure to the benefit of
Citicasters and Lessor and their respective successors and assigns and to no
other persons or entities, and the representations made herein shall survive the
closing of the purchase of the Stations and the delivery of this certificate.
IN WITNESS WHEREOF, this certificate has been duly executed and delivered
by the authorized officer of the undersigned as of Prr I , 1993.
Wit LESSOR:
Name:
Title:
F:\ Cat\ SharedW g \Citicasters\Estoppe1120898.doc
• r
Council Meeting: December 14, 1998
Agenda Item No. 13
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
December 14, 1998
14
TO: Mayor and Members of the City Council
FROM: Robin L. Clauson, Assistant City Attorney APPROVED
RE: Assignment of Lease with Kelsho Communications
Discussion
A radio broadcasting tower has been located at the City's Utility Yard for many
years. In July, 1997, the City Council approved a five (5) year lease between the City and
Kelsho Communications for a 1,568 square foot building to house communications
equipment as well as the area where the tower is located. No office operations are
permitted from the site.
Kelsho currently is required to pay One Thousand Six Hundred Dollars ($1,600.00)
per month in rent. The amount will increase One Hundred Dollars ($100.00) per month
for each of the remaining years of the lease. Kelsho has agreed to sell its station and
assign the lease to Citicasters Company, an Ohio corporation which is a wholly owned
subsidiary of Jacor Communications, Inc. Jacor is a holding company engaged primarily
in radio broadcasting and providing related services to radio broadcasting companies. As
of March, 1998, Jacor, and its subsidiaries, owned and operated one hundred sixty -nine
(169) radio stations located across the United States in forty -two (42) broadcast areas
and one (1) television station located in the Cincinnati broadcast area. Citicaster's holds
the assets to substantially all of Jacor radio stations.
The lease requires that Kelsho obtain the City's consent before any assignment is
effective. Kelsho has requested Council approval of the assignment via approval of the
attached Memorandum of Lease, Assignment and Consent and the attached Estoppel
Certificate.
r •
Mayor and Members of the City Council
RE: Assignment of Lease with Kelsho Communications •
December 14, 1998
page 2
Recommendation
It is recommended that the City Council consent to the assignment of the Kelsho
Communications lease to Citicasters Company and approve the attached Memorandum
of Lease, Assignment and Consent and Estoppel Certificate, and authorize interim City
Manager to execute the Memorandum of Lease and Estoppel Certificate upon
satisfaction of all conditions.
ROBIN L. CLAUSON
RLC:krs
Enclosures
F: \Cat \S hared \Ccme mo \Citicasters 121498.doc
•
•
•
•
0 MEMORANDUM OF LEASE, ASSIGNMENT AND CONSENT
This Memorandum of Lease is effective this _ day of 199_ by
and between CITICASTERS CO., an Ohio corporation ("Citicasters"), whose business
address is 50 East River Center Boulevard, Covington, KY 41011, KELSHO
COMMUNICATIONS, L.P., a California limited partnership ( "Kelsho"), whose business
address is 3099 Mandeville Canyon Road, Los Angeles, CA 90049, and the CITY OF
NEWPORT BEACH, a municipal corporation (the "City "), whose address is 3300
Newport Blvd., Newport Beach, CA 92658.
Whereas, Citicasters is a wholly -owned subsidiary of Jacor Communications,
Inc., a Delaware corporation;
Whereas, the City is the current fee owner of the real property described in
Exhibit A attached hereto (the "Property ");
Whereas, the City and Kelsho, among others, entered into a Lease Agreement
dated July 31, 1997 consisting of fifteen (15) pages (`the Lease "), pursuant to which the
City leases to Kelsho a portion of a building and certain facilities located on the
Property and as more particularly described and identified in the Lease as the
"Facilities";
Whereas, the City acknowledges that the Lease is a valid and enforceable
document, and has not been amended or assigned except as disclosed herein;
Whereas, Citicasters and Kelsho, among others, have entered into an Asset
Purchase Agreement dated October 9, 1998 ( "Agreement') pursuant to which Kelsho
hereby does assign its interest in the Lease to Citicasters;
Whereas, Citicasters, Kelsho and the City desire to memorialize the existence of
the Lease and the assignment of such Lease;
Now, therefore, Citicasters, Kelsho and the City hereby set forth the terms
contained in the Lease:
1. Term
The initial term of the Lease began on approximately October 10, 1997 and
continues through October 9, 2002.
2. Renewal Options
The Lease contains ten (10) consecutive one (1) year automatic renewals.
During any term of renewal the Lease may be terminated at any time, without
cause, upon sixty (60) days prior written notice of intent to terminate the Lease
•
provided by the party wishing to terminate the Lease.
3. Assignment.
Kelsho hereby sells, assigns, transfers and delegates to Citicasters and its
successors and assigns all of its right, title and interest in and to the Lease.
4. Consent.
The City hereby acknowledges and consents to Kelsho's assignment to
Citicasters of Kelsho's rights, title and interest in and to the Lease, provided that
this consent shall not be effective until the City receives full reimbursement for
the site improvement costs set forth in Section 5 of the Lease by 5:00 p.m. on
December 14, 1998.
5. Compliance.
Citicasters agrees to be bound by and comply with all terms, conditions and
obligations of the Lease.
Signed and acknowledged
in the presence of:
State of )
) ss
County of )
CITICASTERS CO.,
an Ohio Corporation
Name:
Title:
On before me, a Notary
Public in and for said County and State, personally appeared
personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to
the within instrument and acknowledged to me that his /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the
instrument the person(s), or entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
Notary Public
My Commission Expires
1]
•
•
0
Signed and acknowledged
in the presence of:
By:
State of )
) ss
County of )
0
KELSHO COMMUNICATIONS, L.P.,
a California limited partnership
Name:
Title:
On before me, a Notary
Public in and for said County and State, personally appeared
personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to
the within instrument and acknowledged to me that his /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the
instrument the person(s), or entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
0
0
Notary Public
My Commission Expires
0
Attest:
By: Lavonne Harkless
City Clerk By:
Approved as to form:
By: Robin L. Clauson
Assistant City Attorney
State of )
) ss
County of )
0
THE CITY OF NEWPORT BEACH,
a municipal corporation
Name:
On before me, a Notary
Public in and for said County and State, personally appeared
personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to
the within instrument and acknowledged to me that his /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the
instrument the person(s), or entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
Notary Public
My Commission Expires
0
9
This instrument was prepared
in its unexecuted form by:
Karen Renz, Esq.
Graydon, Head & Ritchey
1900 Fifth Third Center
511 Walnut Street
Cincinnati, OH 45202
513 - 621 -6464
01109/100072
is
0
0
•
LESSOR'S ESTOPPEL CERTIFICATE
The undersigned, CITY OF NEWPORT BEACH, is the landlord or lessor
( "Lessor ") under that certain lease, by and between Lessor and KELSHO
COMMUNICATIONS, L.P., a California limited partnership ( "Lessee "), attached hereto
and made a part hereof (the "Lease "), of certain real property in the City of Newport
Beach, State of California, as described in the attached Lease (the "Premises "). With
the understanding that Citicasters Co., an Ohio corporation ( "Assignee "), will, and is
authorized and entitled to, rely upon the representations made herein in purchasing
from Lessee certain assets which comprise radio stations KACD(FM), licensed to Santa
Monica, California, and KBCD(FM), licensed to Newport Beach, California (the
"Stations'), Lessor hereby represents and certifies as follows:
1. Attached hereto is a true, correct and complete copy of the Lease, including all
amendments, addenda and work letters, which is in full force and effect and has
not been modified, supplemented, canceled or amended in any respect except
as attached hereto. The Lease constitutes the only lease or right to occupancy
of the Premises.
2. Lessee under the Lease has accepted the Premises and taken possession
thereof without any existing condition or qualification, and both the Lessor and
Lessee have completed and complied with all required conditions precedent to
such acceptance and possession. As of December 14, 1998, Lessee (i) has
taken possession of the Premises without reservation, (ii) has paid the full basic
monthly rental provided in the Lease through and including December, 1998, (iii)
is not in default in the payment of rent or any other amount under the Lease, or,
to the knowledge of Lessor, in the observance or performance of any other
covenant or condition to be observed or performed by the Lessee under the
Lease, (iv) claims no default by Lessor under the Lease, and (v) has no claims,
defenses or rights of offset against any rents payable thereunder. Further, to the
knowledge of Lessor, no event has occurred which now or will hereafter
authorize the Lessor to terminate the Lease;
3. The term of the Lease commenced on or before October 10, 1997, and
continues through October 9, 2002. The Lease contains ten (10) consecutive
one (1) year automatic renewals. During any term of renewal the Lease may be
terminated at any time, without cause, upon sixty (60) days prior written notice of
intent to terminate the Lease provided by the party wishing to terminate the
Lease.
4. Lessor is not in default under the terms and conditions of the Lease and has not
received any notice or communication from Lessee under the Lease that can be
. construed to be a notification that the Lessee believes the Lessor to be in
0 0
default. Lessor has performed all obligations relating to construction of the •
leased Premises or to the leasehold improvements therein;
5. Lessor shall not agree to any modification, amendment, supplement or
termination of the Lease or any of its provisions without the prior written notice
to Assignee.
6. This certificate and the representations made herein shall be governed by the
laws of the State of California and are binding upon and inure to the benefit of
Citicasters and Lessor and their respective successors and assigns and to no
other persons or entities, and the representations made herein shall survive the
closing of the purchase of the Stations and the delivery of this certificate.
IN WITNESS WHEREOF, this certificate has been duly executed and delivered
by the authorized officer of the undersigned as of 199_
Witness:
M
LESSOR:
Name:
•
F:\ Cat\ Shared\ Ag \Citicasters \Estoppe1120898.doc 0
t` J
0
TO:
FROM:
SUBJECT:
0
Mayor and City Council Members
Public Works Department
September 8, 1997
CITY COUNCIL AGENDA
ITEM NO. 7
C —31(a� ,
APPROVE LEASE AGREEMENT PERTAINING TO USE OF
CITY FACILITY BY COMMERCIAL RADIO STATION
RECOMMENDATION:
1. Approve the lease agreement with Kelsho Communications.
2. Authorize the Mayor and City Clerk to execute the agreement on behalf of the City.
DISCUSSION:
In 1992 several old facilities located at the Utilities Yard had to be demolished to
provide for future improvements to bring groundwater to the City. One of these facilities
was an old house that was occupied by equipment serving as a relay station for
103.1 FM, a radio station based out of Santa Monica, California. The radio station has
used the yard site for their equipment for over 30 years. During the original design
phase of the planned expansion, the City made arrangements with the owner of the
radio station to provide temporary housing of their equipment in a small trailer located
on the parkway in 16'" Street at the Utilities Yard.
After relocating the radio equipment to the trailer, staff worked with the owner and the
City's architect to design and construct adequate replacement facilities in conjunction
with the Phase I Utilities Yard Improvements, In conjunction with the design and
subsequent construction of this facility, the owner of the radio station agreed to pay the
burden of costs for the design and construction.
The facility has been completed and the City is ready to enter into a long term lease
agreement (copy attached) that will provide the radio station a repeater facility for the
Orange County area. The City will receive monthly lease payments of $1,500, as well
as annual payments over 5 years for design and construction costs in the amount of
$6,820. The monthly lease payment will escalate each year during the five year
contract up to $1,900 on the last year. After the end of the five year period, the lease
agreement provides for a year to year extension for a ten year period at a flat rate of
$2,000 per month. During this ten year period the City may terminate this lease without
cause.
Lease Agrant with Commercial Radio Station.
September 8, 1997
Page 2
In the previous agreement, the City was receiving only $275 per month. City staff
researched lease rates for office space in the area of the Utilities Yard and were
informed that the going rate was approximately $0.65 to $0.75 per square foot. This is
for habitable office space. The City will be receiving $1.00 per square foot for the
uninhabitable space and the land for the on -site radio tower.
The Public Works Committee endorsed approval of the lease agreement at the August
25, 1997 meeting and authorized staff to forward the agreement to City Council.
CONCLUSION:
Staff recommends that the City Council approve the lease agreement with Kelsho
Communications.
Respectfully submitted,
PUBLIC WORKS DEPARTMENT .
Don Webb, Director
By: ( & ti
Eldon G. Davidson
Utilities Manager
EGD:tam
Attachment: Copy of Lease Agreement
E
ki
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0
LEASE AGREEMENT
• City Utilities Yard Radio Tower And Facilities
Commercial Radio Station
This Lease Agreement (hereinafter referred to as "Lease ") made and entered
into this 3 / day of July, 1997, between the CITY OF NEWPORT BEACH, a municipal
Corporation (hereinafter referred to as "CITY "), and Kelsho Communications, a Limited
Partnership (hereinafter referred to as "LESSEE ") is made with reference to the
following:
A. The City owns property located at 949 West 16th Street, Newport Beach,
( "Utilities Yard "), and;
B. Lessee proposes to lease a piece of property in the Utilities Yard which
houses a radio tower and guidelines, which are owned by Lessee, who operates a radio
transmitter site via the tower from the Utilities Yard. This Agreement is inclusive for the
• facilities discussed herein and shown on "Exhibit A ", and;
C. The City has constructed a permanent masonry building which contains a
1,568 square foot space, with access from 16th Street, known as "Suite 306 ", at the
request of Lessee for Lessee's use, Lessee's operation is presently located in a
temporary trailer at the Utilities Yard, pending completion of the necessary tenant
improvement work, Lessee can move into Suite 306, and;
D. Suite 306 is a two story space without utilities or upgrades, but with water
and sewer stubbed to buildings edge on the Utilities Yard side of the space, and with a
designated electrical sub -panel and space for a separate electric meter, and;
E. Lessee desires to enter into a long -term Lease with the City for use of
Suite 306 and the tower and guideline space, to continue operation of their radio
transmitter site at the Utilities Yard.
NOW THEREFORE, the parties hereto agree as follows:
•
1
V
r
1. FACILITIES AND PURPOSE
A. City hereby agrees to lease to Lessee the following City owned property: Suite
306; the conduit from Suite 306 to the radio tower, tower guidelines, the space
that houses the tower and related facilities for housing and operating a radio
transmitter site (hereinafter collectively referred to as "Facilities ", see attached
site plan) in conjunction with the use of certain Lessee owned communications
equipment which includes: two (2) FM broadcast transmitters and associated
equipment, the radio tower that houses two (2) FM broadcast antennae and
appropriate transmission line.
B. Lessee's use of Facilities shall be limited to Lessee's equipment used and
stored within Suite 306, emergency broadcasting from Suite 306, transmitting
capabilities from the site and broadcast access by Lessee's employees and
agents for maintenance and repair of Suite 306, the radio tower and the tower
guidelines. Facilities shall not be used as an office or business address for
Lessee's employees or agents regarding the daily operations and/or
administration of Lessee's radio station, or for any other purpose.
2. TERM
The term of this Agreement shall commence on the first date listed in Section 2.A.
of this Agreement (hereinafter "Commencement Date ") and be for five (5) years.
At the end of the five year term, this Lease may be automatically renewed for ten
(10) consecutive one (1) year periods. During any term of renewal the Lease may
be terminated at any time, without cause, upon 60 calendar days prior written
notice of intent to terminate the Lease provided by the party wishing to terminate
the Agreement.
A. Tenant Improvement Period
Lessee shall have 60 consecutive calendar days from the date this Agreement
is signed by both parties to complete the necessary Tenant Improvement work
to get Suite 306 operational for Lessee's use. Plus 10 days for plan submittal,
approval and permit issuance by City staff. On the 71st day the lease term
shall begin and the first months rent shall be due, thus making the 71 st day the
Commencement Date.
3. RENT
A. Lessee shall pay City rent for use of Facilities in the sum of fifteen hundred
dollars ($1,500) per month for the first year. Monthly rent shalt increase to
sixteen hundred dollars ($1,600) for the second year, seventeen hundred
dollars ($1,700) for the third year, eighteen hundred dollars ($1,800) for the
fourth year and nineteen hundred dollars ($1,900) for the fifth year. The rent for
any period of renewal shall be two thousand ($2,000) dollars per month. Rent
shall be due and payable on the 1st day of each month following the
Commencement Date. In the event the Commencement Date is other than the
first day of the month, monthly rental payments for the first month shall be
prorated based on a thirty (30) day month.
2
0 0
B. Lessee acknowledges that late payment of rent or any other sums that
constitute a material breach of this Lease will cause the City to incur costs not
contemplated by this Lease. The exact amount of these costs will be extremely
difficult to ascertain. Such costs include, but are not limited to, administrative
processing of delinquent notices, lost interest and income, and increased
accounting costs.
C. If any payment of rent or any other sum due City is not received by City within
ten (10) days of the due date, a late charge of one and one -half percent (1.5 %)
of the delinquent amount, plus the sum of twenty -five ($25), shall become
immediately due and payable to the City. An additional charge of one and one -
half percent (1.5 %) of such delinquent rent payment (excluding late charges)
shall be added for each additional calendar month (or portion thereof) that the
delinquent sum remains unpaid, totaling eighteen percent (18 %) annually.
D. Lessee and City agree that such late charges do not represent and shall not be
deemed to be, an interest payment, but that such late charges represent a fair
and reasonable estimate of the costs and expenses the City will incur by
reason of Lessee's delinquent payment.
E. Acceptance by City of any delinquent rent payment or late charges shall in no
way constitute a waiver of Lessee's default with respect to such overdue and
delinquent payment, or in any way impair, prevent or preclude the City from
exercising any of its rights or remedies set forth in this Lease or otherwise
provided by law.
4. CONDITION & INSPECTION OF FACILITIES
A. Lessee acknowledges that Facilities are being leased to Lessee on an "as -is"
basis, and Lessee takes and occupies Facilities without reliance upon any
representation by City, or any of its officers, employees, agents or
representatives, or any other person, concerning Facilities, Lessee's intended
use of the Facilities or any other particular purpose of use, or any other
promise, representation or inducement not expressly set forth in this Lease.
S. Lessee acknowledges that neither the City, nor any of its officers, employees,
agents or representatives, has made any written or oral representation,
promise, or warranty, expressed or implied, concerning the Facilities, their
fitness for Lessee's intended use or any other purpose or use, or any other
matter not expressly set forth in this Lease.
C. Lessee acknowledges that they have had the opportunity to provide design
input, and have inspected the Facilities prior to the execution of this Lease, and
that Lessee takes and leases the Facilities in the condition in which the
Facilities exist as of the date of this Lease.
(1.) Lessee acknowledges that certain tenant improvement work is required to
make Suite 306 habitable for Lessees intended use. And that said
improvements will be completed in sixty (60) consecutive calendar days.
3
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5. REIMBURSEMENT FOR SITE IMPROVEMENT COSTS
In addition to rent, Lessee agrees to pay the City the sum of thirty -one thousand
dollars ($31,000) to reimburse City for a portion of the costs of construction of
Suite 306 and the conduits connecting therefrom to the City's radio tower. Lessee
shall also pay the City the sum of thirty -one hundred dollars ($3,100) for a portion
of the design costs associated with designing and building a space appropriate for
accommodating Lessee.
A. Payment Schedule for Design and Construction Costs
City agrees to spread the costs for the design and construction over the initial
five (5) year lease term. The total cost of $34,100 will be equally divided by the
five (5) years of the Lease. Lessee shall pay $6,820.00 on or before
, 1997 and annually on for each of
the five (5) years of the original Lease term. Lessee shall notify City on or
before the Commencement Date of this Lease Agreement, in writing, as to the
annual date these payments will be made. Such date shall not be later than six
(6) months after the commencement date.
B. Transfer or Assignment
If Lessee desires to transfer or assign this Lease Agreement pursuant to the
terms of this Lease Agreement anytime prior to the expiration of the initial five
(5) year term, Lessee shall be required to pay any remaining balance of the
design and construction costs as a condition of City approval of transfer or
assignment. of
6. IMPROVEMENTS
A. Lessee agrees to be responsible for making site improvements to the Facilities
necessary to operate Lessee's radio station and agrees to present detailed
plans to City for any alteration, improvement, addition or utility installment in or
about the Facilities; and Lessee shall not commence any construction or
installation improvements until the City has given prior written approval.
B. Lessee shall construct all approved alterations or improvements at Lessee's
sole cost and expense.
(1.) City will waive the cost of all permits and cooperate with Lessee to obtain
approval and issuance of all permits and plans associated with Facilities.
(2.) Plans will be approved and the permits issued prior to the start of the sixty
(60) day construction period.
C. All improvements, fixtures and facilities (exclusive of trade fixtures listed in
Exhibit "B ", attached), constructed or placed within the Facilities by Lessee,
including but not limited to electrical and other utilities, listed or not, shall, upon
the completion of construction, installation or placement within the Facilities, be
free and clear of all liens, claims and liability for payment of labor and material.
0
These improvements, fixtures, or facilities, shall become and remain the
property of the City at the expiration of this Lease or earlier termination hereof.
Upon the expiration or earlier termination of this Lease, City retains the right, in
its sole and absolute discretion, and by written notice to Lessee, to allow
Lessee, at Lessee's sole cost and expense, to remove all such improvements,
fixtures and equipment located at the Facilities.
D. As a condition of approving any alteration or improvement to Facilities, the City
will require Lessee to prepare and furnish to City, at Lessee's sole cost and
expense, a complete set of reproducible "As- Built" plans for such alteration or
improvement, and /or an itemized statement of the actual cost of the
construction /installation of such alteration or improvement.
E. If Lessee desires to modify or add any alteration or improvement to the
Facilities, such alteration or improvement shall not commence without the prior
written consent of the City.
F. At the expiration or termination of this Lease, for any reason whatsoever,
Lessee shall promptly quit and surrender Facilities in a good state of repair.
Lessee shall, at its sole cost and expense, remove all equipment, including, but
without limitation, the transmitter, antenna and personal property placed on the
Facilities by Lessee, and clear the Facilities of all debris; and the Facilities shall
be surrendered to the City in good order and clean condition. If Lessee
abandons or quits the Facilities or is dispossessed thereof by process of law or
otherwise, title to any personal property left at Facilities for fifteen (15) or more
days after such event shall, at the City's option, be deemed to have been
abandoned and transferred to the City. The City shall have the right to remove
and dispose of any and all such property without liability therefore to Lessee or
to any person or entity claiming under Lessee, and City shall have no duty to
account for such property.
7. ACCESS AND SECURITY
A. Lessee may access Suite 306 from 16th Street, twenty four (24) hours a day,
seven (7) days a week for the duration of the Lease.
B. Lessee may access the Utilities Yard for routine maintenance only on an as-
needed basis: Lessee shall contact the Utilities Administration Office at (714)
644 -3011 to schedule all Utilities Yard access. Administration business hours
are 7:30 a.m. to 5:00 p.m., Monday through Thursday and 7:30 a.m. to 4:00
p.m. on Friday.
C. If emergency access is required during non- business hours, Lessee shall call
the City of Newport Beach Police Department at (714) 644 -3717 and request
assistance for access.
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8. ELECTRICAL INTERFERENCE
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A. Lessee shall not cause electrical interference to City facilities and operations.
Lessee will take all reasonable steps to correct any temporary interference
which may occur. If the interference cannot be corrected, Lessee shall cease
broadcasting. This Lease shall be automatically terminated upon written notice
from the City to Lessee.
B. Lessee shall immediately cease operations upon receipt of written notice from
City in the event that a determination is made by a local, state or national
governmental health agency, or a judgment is issued by any federal or state
court, the operation of radio communications facilities similar to the facilities
which Lessee is operating under this Agreement poses a human health hazard.
If the operation of Lessee's radio communications facilities poses a health
hazard that in the opinion of the agency making such determination, can be
remediated and if Lessee promptly remediates such health hazard to the
reasonable satisfaction of City, then Lessee may resume operations of the
facilities upon completion of such remediation. If Lessee is unable to complete
such remediation within one hundred eighty (180) days after receipt of City's
written notice to Lessee, City may terminate this Lease. The parties
acknowledge and agree that if Lessee fails to immediately cease operation as
required under this paragraph, City shall be entitled to petition a court of
competent jurisdiction to compel such cessation by injunction.
9. UTILITIES
A. Electrical service for Lessee shall be obtained from the Southern California
Edison Company at Lessee's expense. The City has provided for electrical
conduit, a sub -main and meter in the electrical and phone room inside the east
gate of the Utilities Yard. Conduit from the radio room to the radio tower has
been installed for Lessee's use.
(1.) The City has provided three (3) 4 -inch PVC conduits to run cables from the
Radio Tower to Suite 306 for Lessees use.
B. Telephone service shall be obtained at Lessee's expense. The City has
provided telephone conduit from the electrical and phone room and a separate
"punch block ", all located in the Utilities Yard Electrical Room, inside the east
gate.
C. The City has provided stubs for internal water and sewer service. Water and
sewer service will be provided free of charge by the City. Maintenance and
repair of Facilities shall be the responsibility of Lessee as described in Section
11 of this Lease Agreement.
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10. MARKING & LIGHTING REQUIREMENTS
Lessee shall comply with all Federal Aviation Administration (FAA) and Federal
Communications Commission (FCC) regulations. Lessee shall defend, indemnify
and hold harmless the City from any fines or other liabilities caused by Lessee's
failure to comply with FAA, FCC or other Federal and State laws and regulations.
Further, should Lessee be cited by either the FAA or FCC or in the event any
claims are brought against the City due to noncompliance, Lessee shall defend,
indemnify and hold harmless the City for all costs, liabilities, damages and
expenses, including reasonable attorneys fees. If Lessee does not correct the
conditions of noncompliance within the time frame allowed by the citing agency,
City may immediately terminate this Lease upon notice to Lessee.
11. MAINTENANCE & REPAIR OF FACILITIES
A. Lessee shall, at all times during the term of this Lease, or any extension or
renewal thereof, maintain the Facilities and all appurtenances in good condition
and repair, at its sole cost and expense, all to the satisfaction of the City in its
sole discretion. Lessee shall at all times in the maintenance and use of the
Facilities, buildings, structures, improvements and equipment thereon, comply
with all laws, ordinances and regulations pertaining thereto, and all conditions
and restrictions set forth in this Agreement.
B. City shall notify Lessee in writing if Lessee fails, neglects or refuses to maintain
or make repairs or replacements as required by this Lease. Should Lessee fail
or refuse to correct such default within three (3) days of receipt of such written
notice from City, City may (but shall not be required to), itself or by contract,
undertake the necessary maintenance, repair or replacements; and the cost
thereof, including but not limited to the cost of labor, materials and equipment,
plus an administrative fee in the amount of fifteen percent (15 %) of the sum of
such costs, shall be paid by Lessee to the City within ten (10) days of Lessee's
receipt of a statement of such costs from City. Any such maintenance, repair or
replacement by or on behalf of the City shall not be deemed to be a waiver of
Lessee's default under this Lease, and shall not in any way impair, prevent or
preclude City from exercising any of its rights or remedies set forth in this Lease
or otherwise provided by law.
C. Lessee agrees to provide the City with copies of all tower inspections
performed as a safety measure by Lessee, including any maintenance records
regarding Facilities.
12. LEGAL RELATIONS & RESPONSIBILITIES
A. City and Lessee understand and agree that the only relationship between them
created by this Lease is that of landlord and tenant, and that this Lease does
not create, and shall not be construed to create, any agency, partnership; joint
venture or other relationship between City and Lessee.
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B. Lessee shall keep itself fully informed of all existing and future state and federal
laws and all county and City ordinances and regulations which in any manner
affect the activities of Lessee under this Lease, or the possession or use of the
Facilities by Lessee, and of all such orders and decrees of bodies or tribunals
having any jurisdiction or authority over Lessee. Lessee shall comply with all
such existing and future laws, ordinances, regulations, orders and decrees, and
shall defend and indemnify, as required herein, the City, its officers, directors,
employees and agents against any claim or liability arising from or based on the
violation of any such law, ordinance, regulation, order or decree, whether by
Lessee or any person or entity holding under Lessee
C. Lessee shall not, without the prior written consent of the City, either voluntarily
or by operation of law, assign, mortgage, hypothecate or otherwise transfer this
Lease, or any interest in this Lease, or permit the use of the Facilities by any
person or persons other than Lessee, or sublet the Facilities or any part
thereof. Any transfer of this Lease from Lessee by merger, consolidation or
liquidation shall constitute an assignment for purposes of this Lease. Any
attempted or purported mortgage, assignment, sublease or other transfer in
violation of this Lease shall be null and void, shall confer no right, title or
interest in or to this Lease, the Facilities or any part thereof, and shall constitute
a material breach of this Lease.
D. Lessee and Lessor represent that they have not engaged, nor are they aware
of, any person entitled to any brokerage commission, finder's fee or like
compensation in connection with this Lease. Lessee shall indemnify and hold
Lessor harmless from and against any claim asserted or adjudged against
Lessor for any brokerage commission, finder's fee or like compensation
incurred by or as a result of any action, representation or statement by Lessee,
or any of its officers, employees, agents or representatives; and Lessee shall
pay all costs and expenses incurred by Lessor in connection therewith,
including reasonable attorneys' fees.
E. Lessee acknowledges that the Facility is leased to and accepted by Lessee in
an "as -is" condition, and that the rent payable from Lessee to City does not
include the cost of a guard or any other security services or measures. Lessee
further acknowledges that the City makes no representation or warranty,
express or implied, regarding the security of the Facilities or the need for
propriety of any security measures at the Facilities; and Lessee further
acknowledges that the City shall have no obligation whatsoever to provide
guard service or any other security measure.
F. Lessee hereby specifically waives any rights Lessee may have against City
with regard to the condition of Suite 306 and the Utilities Yard, including, but not
limited to, soils, toxic or hazardous materials, fill material, compaction, geologic
constraints and faults, and agrees to indemnify, defend and hold City harmless
from all claims, losses, liabilities, damages, demands, actions, judgments,
causes of action, assessments, penalties, costs and expenses (including
8
• •
without limitation, the reasonable fees and disbursements of legal counsel,
. expert witnesses and accountants) and all foreseeable and unforeseeable
consequential damages which might arise or be asserted against City as a
result of a claimed violation of any and all present and future federal, state and
local laws (whether under common law, statute, rule, regulation or otherwise)
arising from Lessee's conduct or activities, under this Lease Agreement
including, but not limited to, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERLA), 42 U.S.C. App. §§ 1801
through 1813, inclusive; the Federal Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. §§ 6901 through 6992, inclusive, 40 C.F.R. Parts 260
through 271, inclusive; the California Hazardous Substance Account Act
(HSAA), California Health and Safety Code §§ 25300 through 25395, inclusive;
the California Hazardous Waste Control Act (HWCA), California Health and
Safety Code §§ 25100 through 25249, inclusive; the Proter - Cologne Water
Quality Control Act, California Water Code §§ 13000 through 13999.16,
inclusive; and the Underground Storage Tank Act (USTA), California Health
and Safety Code §§ 24280 through 24299.7, inclusive, all as the same may be
amended from time to time, relating to the environment or to any hazardous
substance, activity or material connected with the condition of the Lease Area.
Notwithstanding any other provision of this Lease, this environmental indemnity
shall survive the expiration or termination of this Lease as to activities taking
place or occurring on or about the Lease Area prior to such expiration or
termination.
G. City shall, upon request and Lessee's cost, provide to Lessee copies of all
reports, studies, surveys and other data and information on the Lease Area
which is now available to City. City represents that it has no information
disclosure pursuant to California Health and Safety Code §§ 25359.7(a).
13. TAXES & ASSESSMENTS
City shall be responsible for the declaration and payment of any applicable taxes
or assessments against the property owned by City. Lessee agrees to pay all such
taxes which are assessed against the City and /or the Lessee due to personal
property and improvements constructed or maintained by the City on or about the
Facilities. Provided, however, City shall give prior notification of any taxes for
which Lessee is to be charged, allowing ample opportunity to appear before the
taxing authority and contest said assessment.
14. POSSESSORY INTEREST
Possessory interest subject to property taxation may be created by this Lease. It is
understood and agreed that if such a possessory interest is created, Lessee shall
be responsible for the payment of all property taxes levied on such interest, and
the City shall have no responsibility therefore.
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15. LIABILITY AND INDEMNIFICATION
•
A. Neither City nor any officer, agent or employee of City shall be responsible for
and Lessee shall indemnify, defend and hold City harmless from, any damage
or liability occurring by any acts or omissions on the part of Lessee or any
officer, agent or employee of Lessee in connection with the performance of any
operation, work, authority or duties to be carried out by Lessee under this
Agreement.
B. The City shall fully indemnify, defend and hold Lessee harmless from any
damages or liability imposed for injury or damage together occurring by any
acts or omissions on the part of the City in connection with any work, authority
or duties required to be performed by City under this Lease.
16. INSURANCE
Without limiting the indemnification provided in paragraph 15 above, Lessee shall
procure and maintain comprehensive general liability and property damage
insurance, including all claims of injury against persons or damage to property
resulting form Lessee's acts or omissions rising out of or related to Lessee's
performance under this Agreement. Lessee shall also carry Workers'
Compensation Insurance in accord with State Workers' Compensation laws. Such
insurance shall be kept in effect during the term of this Agreement and shall not be
subject to reduction in coverage, cancellation or termination without thirty (30)
days' prior written notice by first class mail to the City. A certificate evidencing the
foregoing and naming the City as additional insured, shall be delivered to and
approved by the City prior to commencement of the services listed below. The
procuring of such insurance or the delivery of policies or certificates evidencing the
same shall not be construed as limitation of Lessee's obligation to indemnify the
City, its contractors or employees. The amount of insurance required shall be at
least one million dollars ($1,000,000) per person for property damage and at least
three million dollars ($3,000,000) for any one accident or occurrence, with Best's
financial category of A: VII or better.
17. DEFAULT & GROUNDS FOR TERMINATION
A. In addition to any provision for termination provided in this Agreement, the City
shall be entitled to declare a default of this Lease and terminate the Lease prior
to the expiration of the term where Lessee:
•
(1.) Vacates or abandons the facilities;
(2.) Fails to make payment of rent of any other payment required to be made
under this Agreement, when due, when such failure has continued for a
period of seven days after mailed written notice to Lessee by City;
(3.) Fails to observe or perform any of the covenants, conditions, or provisions
of this Agreement to be observed or performed by Lessee where such •
failure has continued for a period of 20 days after mailed written notice by
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City to Lessee provided, however, that if the nature of the default involves
• such that more than 20 days are reasonably required for cure, then
Lessee shall not be deemed to be in fault if Lessee commences such cure
within the 20 day period and thereafter diligently pursues cure for the
default to completion.
B. In the event of any material default or breach by Lessee, as provided in this
Agreement, City may, at any time thereafter, and without notice or demand, and
without limiting City in the exercise of right to remedy, City may have by such
reason of such default or breach:
(1.) Terminate Lessee's right to possession of the premises by any lawful
means in which case this Agreement shall terminate and lessee shall
immediately surrender possession of the facilities to City.
(2.) Maintain tenant's right to possession, in which case this Agreement shall
continue in affect whether or not Lessee shall have abandoned the
facilities. In such event, City shall be entitled to enforce all of City's rights
and remedies under this Agreement, including the right to recover rent as
it becomes due.
(3.) Pursue any other remedy now or hereafter available to City under the laws
or judicial decisions of the State of California. No election by City as to
any rights or remedies available under this Agreement or pursuant to any
large judicial decisions of the State of California shall be binding upon City
except as may be provided by law.
0 18. NOTICE
Any notice, demand, request, consent, approval, or communication either party
desires or is required to give to the other party or any other person shall be in
writing and either served personally or sent by United States Mail, prepaid, first -
class delivery to the addresses set forth below. Either party may change its
address by notifying the other party of the change in writing. Notice shall be
deemed communicated at the time personally delivered or three (3) days from the
time of the mailing, if mailed as provided in this section.
To City: Utilities Manager
City of Newport Beach
Public Works Department
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, California 92658 -8915
To Lessee: Kelsho Communications
Attention: Ken Roberts
1425 5th Street
Santa Monica, California 90401 -2498
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19. CALIFORNIA LAW
El
This Lease shall be construed and interpreted with both validity and performance
of the parties in accord with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Lease
shall be instituted in Superior Court of the County of Orange, State of California, or
any other appropriate court in such county, and the parties hereto agree to submit
to the personal jurisdiction of such court in the event of an action.
20. LITIGATION
In the event that any action is commenced by a party to this Lease against the
other to enforce its rights or obligations arising from this Lease or seeking to
interpret this Lease, the prevailing party in such action, in addition to any other
relief and recovery ordered by the court, shall be entitled to recover all statutory
costs, plus reasonable attorneys fees. Should the City be named in any suit
brought by any third party against Lessee in connection with or arising out of
Lessee's occupancy or use of the Facilities under this Lease, Lessee shall pay the
City its costs and expenses incurred in such suit, including reasonable attorneys'
fees.
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/
•
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the first date above written:
APPROVED AS TO FORM:
Robin Clauson
Assistant City Attorney
ATTEST:
LaVonne Harkless
City Clerk
Address and Telephone:
City of Newport Beach - Utilities
3300 Newport Blvd.
P. O. Box 1768
Newport Beach, California 92658 -8915
(714) 644 -3011 /(714)646 -5204 fax
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City of Newport Beach,
a Municipal Corporation
Jan Debay, Mayor
"City,
Kelsho Communications, ImompoiO("
Limited Partnership
Ken oberts,MNW z e; �be;T
"Lessee" C1d,4 7pof. �I,.�
fre�'�pa�lvu.
Kelsho Communications
1425 5th Street
Santa Monica, California 90401 -2498
(310) 458 -1031 / (310) 393 -2443 fax
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LEASE AGREEMENT
City Utilities Yard Radio Tower And Facilities
Commercial Radio Station
This Lease Agreement (hereinafter referred to as "Lease ") made and entered
into this 3 day of July, 1997, between the CITY OF NEWPORT BEACH, a municipal
Corporation (hereinafter referred to as "CITY "), and Kelsho Communications, a Limited
Partnership (hereinafter referred to as "LESSEE ") is made with reference to the
following:
RECITALS:
A. The City owns property located at 949 West 16th Street, Newport Beach,
( "Utilities Yard "), and;
B. Lessee proposes to lease a piece of property in the Utilities Yard which
houses a radio tower and guidelines, which are owned by Lessee, who operates a radio
transmitter site via the tower from the Utilities Yard. This Agreement is inclusive for the
facilities discussed herein and shown on "Exhibit A ", and;
C. The City has constructed a permanent masonry building which contains a
1,568 square foot space, with access from 16th Street, known as "Suite 306 ", at the
request of Lessee for Lessee's use, Lessee's operation is presently located in a
temporary trailer at the Utilities Yard, pending completion of the necessary tenant
improvement work, Lessee can move into Suite 306, and;
D. Suite 306 is a two story space without utilities or upgrades, but with water
and sewer stubbed to buildings edge on the Utilities Yard side of the space, and with a
designated electrical sub -panel and space for a separate electric meter, and;
E. Lessee desires to enter into a long -term Lease with the City for use of
Suite 306 and the tower and guideline space, to continue operation of their radio
transmitter site at the Utilities Yard.
NOW THEREFORE, the parties hereto agree as follows:
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1. FACILITIES AND PURPOSE
A. City hereby agrees to lease to Lessee the following City owned property: Suite
306; the conduit from Suite 306 to the radio tower, tower guidelines, the space
that houses the tower and related facilities for housing and operating a radio
transmitter site (hereinafter collectively referred to as "Facilities ", see attached
site plan) in conjunction with the use of certain Lessee owned communications
equipment which includes: two (2) FM broadcast transmitters and associated
equipment, the radio tower that houses two (2) FM broadcast antennae and
appropriate transmission line.
B. Lessee's use of Facilities shall be limited to Lessee's equipment used and
stored within Suite 306, emergency broadcasting from Suite 306, transmitting
capabilities from the site and broadcast access by Lessee's employees and
agents for maintenance and repair of Suite 306, the radio tower and the tower
guidelines. Facilities shall not be used as an office or business address for
Lessee's employees or agents regarding the daily operations and /or
administration of Lessee's radio station, or for any other purpose.
2. TERM
The term of this Agreement shall commence on the first date listed in Section 2.A.
of this Agreement (hereinafter "Commencement Date ") and be for five (5) years.
At the end of the five year term, this Lease may be automatically renewed for ten
(10) consecutive one (1) year periods. During any term of renewal the Lease may
be terminated at any time, without cause, upon 60 calendar days prior written
notice of intent to terminate the Lease provided by the party wishing to terminate
the Agreement.
A. Tenant Improvement Period
Lessee shall have 60 consecutive calendar days from the date this Agreement
is signed by both parties to complete the necessary Tenant Improvement work
to get Suite 306 operational for Lessee's use. Plus 10 days for plan submittal,
approval and permit issuance by City staff. On the 71st day the lease term
shall begin and the first months rent shall be due, thus making the 71st day the
Commencement Date.
3. RENT
A. Lessee shall pay City rent for use of Facilities in the sum of fifteen hundred
dollars ($1,500) per month for the first year. Monthly rent shall increase to
sixteen hundred dollars ($1,600) for the second year, seventeen hundred
dollars ($1,700) for the third year, eighteen hundred dollars ($1,800) for the
fourth year and nineteen hundred dollars ($1,900) for the fifth year. The rent for
any period of renewal shall be two thousand ($2,000) dollars per month. Rent
shall be due and payable on the 1st day of each month following the
Commencement Date. In the event the Commencement Date is other than the
first day of the month, monthly rental payments for the first month shall be
prorated based on a thirty (30) day month.
2
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B. Lessee acknowledges that late payment of rent or any other sums that
constitute a material breach of this Lease will cause the City to incur costs not
contemplated by this Lease. The exact amount of these costs will be extremely
difficult to ascertain. Such costs include, but are not limited to, administrative
processing of delinquent notices, lost interest and income, and increased
accounting costs.
C. If any payment of rent or any other sum due City is not received by City within
ten (10) days of the due date, a late charge of one and one -half percent (1.5 %)
of the delinquent amount, plus the sum of twenty -five ($25), shall become
immediately due and payable to the City. An additional charge of one and one -
half percent (1.5 %) of such delinquent rent payment (excluding late charges)
shall be added for each additional calendar month (or portion thereof) that the
delinquent sum remains unpaid, totaling eighteen percent (18 %) annually.
D. Lessee and City agree that such late charges do not represent and shall not be
deemed to be, an interest payment, but that such late charges represent a fair
and reasonable estimate of the costs and expenses the City will incur by
reason of Lessee's delinquent payment.
E. Acceptance by City of any delinquent rent payment or late charges shall in no
way constitute a waiver of Lessee's default with respect to such overdue and
delinquent payment, or in any way impair, prevent or preclude the City from
exercising any of its rights or remedies set forth in this Lease or otherwise
provided by law.
4. CONDITION & INSPECTION OF FACILITIES
A. Lessee acknowledges that Facilities are being leased to Lessee on an "as -is"
basis, and Lessee takes and occupies Facilities without reliance upon any
representation by City, or any of its officers, employees, agents or
representatives, or any other person, concerning Facilities, Lessee's intended
use of the Facilities or any other particular purpose of use, or any other
promise, representation or inducement not expressly set forth in this Lease.
B. Lessee acknowledges that neither the City, nor any of its officers, employees,
agents or representatives, has made any written or oral representation,
promise, or warranty, expressed or implied, concerning the Facilities, their
fitness for Lessee's intended use or any other purpose or use, or any other
matter not expressly set forth in this Lease.
C. Lessee acknowledges that they have had the opportunity to provide design
input, and have inspected the Facilities prior to the execution of this Lease, and
that Lessee takes and leases the Facilities in the condition in which the
Facilities exist as of the date of this Lease.
(1.) Lessee acknowledges that certain tenant improvement work is required to
make Suite 306 habitable for Lessees intended use. And that said
improvements will be completed in sixty (60) consecutive calendar days.
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5. REIMBURSEMENT FOR SITE IMPROVEMENT COSTS
In addition to rent, Lessee agrees to pay the City the sum of thirty -one thousand
dollars ($31,000) to reimburse City for a portion of the costs of construction of
Suite 306 and the conduits connecting therefrom to the City's radio tower. Lessee
shall also pay the City the sum of thirty -one hundred dollars ($3,100) for a portion
of the design costs associated with designing and building a space appropriate for
accommodating Lessee.
A. Payment Schedule for Design and Construction Costs
City agrees to spread the costs for the design and construction over the initial
five (5) year lease term. The total cost of $34,100 will be equally divided by the
five (5 years of the Lease. Lessee shall pay $6,820.00 on or before
�c . I A , 1997 and annually on 0, 1 � for each of the five
(5) years of the original Lease term. Lessee shall notify City on or before the
Commencement Date of this Lease Agreement, in writing, as to the annual date
these payments will be made. Such date shall not be later than six (6) months
after the commencement date. Or Lessee may make quarterly payments.
B. Transfer or Assignment
If Lessee desires to transfer or assign this Lease Agreement pursuant to the
terms of this Lease Agreement anytime prior to the expiration of the initial five
(5) year term, Lessee shall be required to pay any remaining balance of the
design and construction costs as a condition of City approval of transfer or
assignment.
6. IMPROVEMENTS
A. Lessee agrees to be responsible for making site improvements to the Facilities
necessary to operate Lessee's radio station and agrees to present detailed
plans to City for any alteration, improvement, addition or utility installment in or
about the Facilities; and Lessee shall not commence any construction or
installation improvements until the City has given prior written approval.
B. Lessee shall construct all approved alterations or improvements at Lessee's
sole cost and expense.
(1.) City will waive the cost of all permits and cooperate with Lessee to obtain
approval and issuance of all permits and plans associated with Facilities.
(2.) Plans will be approved and the permits issued prior to the start of the sixty
(60) day construction period.
C. All improvements, fixtures and facilities (exclusive of trade fixtures listed in
Exhibit "B ", attached), constructed or placed within the Facilities by Lessee,
including but not limited to electrical and other utilities, listed or not, shall, upon
the completion of construction, installation or placement within the Facilities, be
free and clear of all liens, claims and liability for payment of labor and material.
These improvements, fixtures, or facilities, shall become and remain the
property of the City at the expiration of this Lease or earlier termination hereof.
Upon the expiration or earlier termination of this Lease, City retains the right, in
its sole and absolute discretion, and by written notice to Lessee, to allow
Lessee, at Lessee's sole cost and expense, to remove all such improvements,
fixtures and equipment located at the Facilities.
D. As a condition of approving any alteration or improvement to Facilities, the City
will require Lessee to prepare and furnish to City, at Lessee's sole cost and
expense, a complete set of reproducible "As- Built" plans for such alteration or
improvement, and /or an itemized statement of the actual cost of the
construction /installation of such alteration or improvement.
E. If Lessee desires to modify or add any alteration or improvement to the
Facilities, such alteration or improvement shall not commence without the prior
written consent of the City.
F. At the expiration or termination of this Lease, for any reason whatsoever,
Lessee shall promptly quit and surrender Facilities in a good state of repair.
Lessee shall, at its sole cost and expense, remove all equipment, including, but
without limitation, the transmitter, antenna and personal property placed on the
Facilities by Lessee, and clear the Facilities of all debris; and the Facilities shall
be surrendered to the City in good order and clean condition. If Lessee
abandons or quits the Facilities or is dispossessed thereof by process of law or
otherwise, title to any personal property left at Facilities for fifteen (15) or more
days after such event shall, at the City's option, be deemed to have been
abandoned and transferred to the City. The City shall have the right to remove
and dispose of any and all such property without liability therefore to Lessee or
to any person or entity claiming under Lessee, and City shall have no duty to
account for such property.
7. ACCESS AND SECURITY
A. Lessee may access Suite 306 from 16th Street, twenty four (24) hours a day,
seven (7) days a week for the duration of the Lease.
B. Lessee may access the Utilities Yard for routine maintenance only on an as-
needed basis. Lessee shall contact the Utilities Administration Office at (714)
644 -3011 to schedule all Utilities Yard access. Administration business hours
are 7:30 a.m. to 5:00 p.m., Monday through Thursday and 7:30 a.m. to 4:00
p.m. on Friday.
C. If emergency access is required during non - business hours, Lessee shall call
the City of Newport Beach Police Department at (714) 644 -3717 and request
assistance for access.
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8. ELECTRICAL INTERFERENCE
A. Lessee shall not cause electrical interference to City facilities and operations.
Lessee will take all reasonable steps to correct any temporary interference
which may occur. If the interference cannot be corrected, Lessee shall cease
broadcasting. This Lease shall be automatically terminated upon written notice
from the City to Lessee.
B. Lessee shall immediately cease operations upon receipt of written notice from
City in the event that a determination is made by a local, state or national
governmental health agency, or a judgment is issued by any federal or state
court, the operation of radio communications facilities similar to the facilities
which Lessee is operating under this Agreement poses a human health hazard.
If the operation of Lessee's radio communications facilities poses a health
hazard that in the opinion of the agency making such determination, can be
remediated and if Lessee promptly remediates such health hazard to the
reasonable satisfaction of City, then Lessee may resume operations of the
facilities upon completion of such remediation. If Lessee is unable to complete
such remediation within one hundred eighty (180) days after receipt of City's
written notice to Lessee, City may terminate this Lease. The parties
acknowledge and agree that if Lessee fails to immediately cease operation as
required under this paragraph, City shall be entitled to petition a court of
competent jurisdiction to compel such cessation by injunction.
9. UTILITIES
A. Electrical service for Lessee shall be obtained from the Southern California
Edison Company at Lessee's expense. The City has provided for electrical
conduit, a sub -main and meter in the electrical and phone room inside the east
gate of the Utilities Yard. Conduit from the radio room to the radio tower has
been installed for Lessee's use.
(1.) The City has provided three (3) 4 -inch PVC conduits to run cables from the
Radio Tower to Suite 306 for Lessees use.
B. Telephone service shall be obtained at Lessee's expense. The City has
provided telephone conduit from the electrical and phone room and a separate
"punch block ", all located in the Utilities Yard Electrical Room, inside the east
gate.
C. The City has provided stubs for internal water and sewer service. Water and
sewer service will be provided free of charge by the City. Maintenance and
repair of Facilities shall be the responsibility of Lessee as described in Section
11 of this Lease Agreement.
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10. MARKING & LIGHTING REQUIREMENTS
Lessee shall comply with all Federal Aviation Administration (FAA) and Federal
Communications Commission (FCC) regulations. Lessee shall defend, indemnify
and hold harmless the City from any fines or other liabilities caused by Lessee's
failure to comply with FAA, FCC or other Federal and State laws and regulations.
Further, should Lessee be cited by either the FAA or FCC or in the event any
claims are brought against the City due to noncompliance, Lessee shall defend,
indemnify and hold harmless the City for all costs, liabilities, damages and
expenses, including reasonable attorneys fees. If Lessee does not correct the
conditions of noncompliance within the time frame allowed by the citing agency,
City may immediately terminate this Lease upon notice to Lessee.
11. MAINTENANCE & REPAIR OF FACILITIES
A. Lessee shall, at all times during the term of this Lease, or any extension or
renewal thereof, maintain the Facilities and all appurtenances in good condition
and repair, at its sole cost and expense, all to the satisfaction of the City in its
sole discretion. Lessee shall at all times in the maintenance and use of the
Facilities, buildings, structures, improvements and equipment thereon, comply
with all laws, ordinances and regulations pertaining thereto, and all conditions
and restrictions set forth in this Agreement.
B. City shall notify Lessee in writing if Lessee fails, neglects or refuses to maintain
or make repairs or replacements as required by this Lease. Should Lessee fail
or refuse to correct such default within three (3) days of receipt of such written
notice from City, City may (but shall not be required to), itself or by contract,
undertake the necessary maintenance, repair or replacements; and the cost
thereof, including but not limited to the cost of labor, materials and equipment,
plus an administrative fee in the amount of fifteen percent (15 %) of the sum of
such costs, shall be paid by Lessee to the City within ten (10) days of Lessee's
receipt of a statement of such costs from City. Any such maintenance, repair or
replacement by or on behalf of the City shall not be deemed to be a waiver of
Lessee's default under this Lease, and shall not in any way impair, prevent or
preclude City from exercising any of its rights or remedies set forth in this Lease
or otherwise provided by law.
C. Lessee agrees to provide the City with copies of all tower inspections
performed as a safety measure by Lessee, including any maintenance records
regarding Facilities.
12. LEGAL RELATIONS & RESPONSIBILITIES
A. City and Lessee understand and agree that the only relationship between them
created by this Lease is that of landlord and tenant, and that this Lease does
not create, and shall not be construed to create, any agency, partnership, joint
venture or other relationship between City and Lessee.
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B. Lessee shall keep itself fully informed of all existing and future state and federal
laws and all county and City ordinances and regulations which in any manner
affect the activities of Lessee under this Lease, or the possession or use of the
Facilities by Lessee, and of all such orders and decrees of bodies or tribunals
having any jurisdiction or authority over Lessee. Lessee shall comply with all
such existing and future laws, ordinances, regulations, orders and decrees, and
shall defend and indemnify, as required herein, the City, its officers, directors,
employees and agents against any claim or liability arising from or based on the
violation of any such law, ordinance, regulation, order or decree, whether by
Lessee or any person or entity holding under Lessee
C. Lessee shall not, without the prior written consent of the City, either voluntarily
or by operation of law, assign, mortgage, hypothecate or otherwise transfer this
Lease, or any interest in this Lease, or permit the use of the Facilities by any
person or persons other than Lessee, or sublet the Facilities or any part
thereof. Any transfer of this Lease from Lessee by merger, consolidation or
liquidation shall constitute an assignment for purposes of this Lease. Any
attempted or purported mortgage, assignment, sublease or other transfer in
violation of this Lease shall be null and void, shall confer no right, title or
interest in or to this Lease, the Facilities or any part thereof, and shall constitute
a material breach of this Lease.
D. Lessee and Lessor represent that they have not engaged, nor are they aware
of, any person entitled to any brokerage commission, finder's fee or like
compensation in connection with this Lease. Lessee shall indemnify and hold
Lessor harmless from and against any claim asserted or adjudged against
Lessor for any brokerage commission, finder's fee or like compensation
incurred by or as a result of any action, representation or statement by Lessee,
or any of its officers, employees, agents or representatives; and Lessee shall
pay all costs and expenses incurred by Lessor in connection therewith,
including reasonable attorneys' fees.
E. Lessee acknowledges that the Facility is leased to and accepted by Lessee in
an "as -is" condition, and that the rent payable from Lessee to City does not
include the cost of a guard or any other security services or measures. Lessee
further acknowledges that the City makes no representation or warranty,
express or implied, regarding the security of the Facilities or the need for
propriety of any security measures at the Facilities; and Lessee further
acknowledges that the City shall have no obligation whatsoever to provide
guard service or any other security measure.
F. Lessee hereby specifically waives any rights Lessee may have against City
with regard to the condition of Suite 306 and the Utilities Yard, including, but not
limited to, soils, toxic or hazardous materials, fill material, compaction, geologic
constraints and faults, and agrees to indemnify, defend and hold City harmless
from all claims, losses, liabilities, damages, demands, actions, judgments,
causes of action, assessments, penalties, costs and expenses (including
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without limitation, the reasonable fees and disbursements of legal counsel,
expert witnesses and accountants) and all foreseeable and unforeseeable
consequential damages which might arise or be asserted against City as a
result of a claimed violation of any and all present and future federal, state and
local laws (whether under common law, statute, rule, regulation or otherwise)
arising from Lessee's conduct or activities, under this Lease Agreement
including, but not limited to, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERLA), 42 U.S.C. App. §§ 1801
through 1813, inclusive; the Federal Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. §§ 6901 through 6992, inclusive; 40 C.F.R. Parts 260
through 271, inclusive; the California Hazardous Substance Account Act
(HSAA), California Health and Safety Code §§ 25300 through 25395, inclusive;
the California Hazardous Waste Control Act (HWCA), California Health and
Safety Code §§ 25100 through 25249, inclusive; the Proter- Cologne Water
Quality Control Act, California Water Code §§ 13000 through 13999.16,
inclusive; and the Underground Storage Tank Act (USTA), California Health
and Safety Code §§ 24280 through 24299.7, inclusive, all as the same may be
amended from time to time, relating to the environment or to any hazardous
substance, activity or material connected with the condition of the Lease Area.
Notwithstanding any other provision of this Lease, this environmental indemnity
shall survive the expiration or termination of this Lease as to activities taking
place or occurring on or about the Lease Area prior to such expiration or
termination.
G. City shall, upon request and Lessee's cost, provide to Lessee copies of all
reports, studies, surveys and other data and information on the Lease Area
which is now available to City. City represents that it has no information
disclosure pursuant to California Health and Safety Code §§ 25359.7(a).
13. TAXES & ASSESSMENTS
City shall be responsible for the declaration and payment of any applicable taxes
or assessments against the property owned by City. Lessee agrees to pay all such
taxes which are assessed against the City and /or the Lessee due to personal
property and improvements constructed or maintained by the City on or about the
Facilities. Provided, however, City shall give prior notification of any taxes for
which Lessee is to be charged, allowing ample opportunity to appear before the
taxing authority and contest said assessment.
14. POSSESSORY INTEREST
Possessory interest subject to property taxation may be created by this Lease. It is
understood and agreed that if such a possessory interest is created, Lessee shall
be responsible for the payment of all property taxes levied on such interest, and
the City shall have no responsibility therefore.
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15. LIABILITY AND INDEMNIFICATION
A. Neither City nor any officer, agent or employee of City shall be responsible for
and Lessee shall indemnify, defend and hold City harmless from, any damage
or liability occurring by any acts or omissions on the part of Lessee or any
officer, agent or employee of Lessee in connection with the performance of any
operation, work, authority or duties to be carried out by Lessee under this
Agreement.
B. The City shall fully indemnify, defend and hold Lessee harmless from any
damages or liability imposed for injury or damage together occurring by any
acts or omissions on the part of the City in connection with any work, authority
or duties required to be performed by City under this Lease.
16. INSURANCE
Without limiting the indemnification provided in paragraph 15 above, Lessee shall
procure and maintain comprehensive general liability and property damage
insurance, including all claims of injury against persons or damage to property
resulting form Lessee's acts or omissions rising out of or related to Lessee's
performance under this Agreement. Lessee shall also carry Workers'
Compensation Insurance in accord with State Workers' Compensation laws. Such
insurance shall be kept in effect during the term of this Agreement and shall not be
subject to reduction in coverage, cancellation or termination without thirty (30)
days' prior written notice by first class mail to the City. A certificate evidencing the
foregoing and naming the City as additional insured, shall be delivered to and
approved by the City prior to commencement of the services listed below. The
procuring of such insurance or the delivery of policies or certificates evidencing the
same shall not be construed as limitation of Lessee's obligation to indemnify the
City, its contractors or employees. The amount of insurance required shall be at
least one million dollars ($1,000,000) per person for property damage and at least
three million dollars ($3,000,000) for any one accident or occurrence, with Best's
financial category of A: VII or better.
17. DEFAULT & GROUNDS FOR TERMINATION
A. In addition to any provision for termination provided in this Agreement, the City
shall be entitled to declare a default of this Lease and terminate the Lease prior
to the expiration of the term where Lessee:
(1.) Vacates or abandons the facilities;
(2.) Fails to make payment of rent of any other payment required to be made
under this Agreement, when due, when such failure has continued for a
period of seven days after mailed written notice to Lessee by City;
(3.) Fails to observe or perform any of the covenants, conditions, or provisions
of this Agreement to be observed or performed by Lessee where such
failure has continued for a period of 20 days after mailed written notice by
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City to Lessee provided, however, that if the nature of the default involves
such that more than 20 days are reasonably required for cure, then
Lessee shall not be deemed to be in fault if Lessee commences such cure
within the 20 day period and thereafter diligently pursues cure for the
default to completion.
B. In the event of any material default or breach by Lessee, as provided in this
Agreement, City may, at any time thereafter, and without notice or demand, and
without limiting City in the exercise of right to remedy, City may have by such
reason of such default or breach:
(1.) Terminate Lessee's right to possession of the premises by any lawful
means in which case this Agreement shall terminate and lessee shall
immediately surrender possession of the facilities to City.
(2.) Maintain tenant's right to possession, in which case this Agreement shall
continue in affect whether or not Lessee shall have abandoned the
facilities. In such event, City shall be entitled to enforce all of City's rights
and remedies under this Agreement, including the right to recover rent as
it becomes due.
(3.) Pursue any other remedy now or hereafter available to City under the laws
or judicial decisions of the State of California. No election by City as to
any rights or remedies available under this Agreement or pursuant to any
large judicial decisions of the State of California shall be binding upon City
except as may be provided by law.
iE 11111111i•L.Yr[4"
Any notice, demand, request, consent, approval, or communication either party
desires or is required to give to the other party or any other person shall be in
writing and either served personally or sent by United States Mail, prepaid, first -
class delivery to the addresses set forth below. Either party may change its
address by notifying the other party of the change in writing. Notice shall be
deemed communicated at the time personally delivered or three (3) days from the
time of the mailing, if mailed as provided in this section.
To City: Utilities Manager
City of Newport Beach
Public Works Department
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, California 92658 -8915
To Lessee: Kelsho Communications
Attention: Ken Roberts
1425 5th Street
Santa Monica, California 90401 -2498
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19. CALIFORNIA LAW
This Lease shall be construed and interpreted with both validity and performance
of the parties in accord with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Lease
shall be instituted in Superior Court of the County of Orange, State of California, or
any other appropriate court in such county, and the parties hereto agree to submit
to the personal jurisdiction of such court in the event of an action.
20. LITIGATION
In the event that any action is commenced by a party to this Lease against the
other to enforce its rights or obligations arising from this Lease or seeking to
interpret this Lease, the prevailing party in such action, in addition to any other
relief and recovery ordered by the court, shall be entitled to recover all statutory
costs, plus reasonable attorneys fees. Should the City be named in any suit
brought by any third party against Lessee in connection with or arising out of
Lessee's occupancy or use of the Facilities under this Lease, Lessee shall pay the
City its costs and expenses incurred in such suit, including reasonable attorneys'
fees.
12
r •
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the first date above written:
APPROVED AS TO FORM:
Robin Clauson
Assistant City Attorney
ATTEST:
LaVonne Harkless
City Clerk
Address and Telephone:
City of Newport Beach - Utilities
3300 Newport Blvd.
P. O. Box 1768
Newport Beach, California 92658 -8915
(714) 644 -3011 / (714) 646 -5204 fax
13
City of Newport Beach,
a Municipal Corporation
J n Vebay, Mayor
Kelsho Communications, AmoplimmIwF AN.
a Limited Partnership
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Ken Roberts, GO=# j pi rr
"Lessee / Gn
k P";ueVr, I•rr-.
erV rG-n.( 1%.Tw91..
Kelsho Communications
1425 5th Street
Santa Monica, California 90401 -2498
(310) 458 -1031 / (310) 393 -2443 fax
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