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HomeMy WebLinkAbout2004-017 l ^ LI ORIGINAL a 1 � 017 CONSENT TO ASSUMPTION AND RENEWAL OF LICENSE This Consent to Assumption and Renewal of License ( "Agreement" ) , by and between Indian River County , a political subdivision of the State of Florida , (" Indian River County" or "County") whose address is 1840 25th Street, Vero Beach , Florida 32960 , and Capstar Radio Operating Company ("Capstar" ) , a Delaware corporation authorized to do business in the State of Florida , whose Florida address is P . O . Box 0093 , Port St , Lucie , Florida 34985 , shall be effective upon execution of both parties hereto . BACKGROUND RECITALS : WHEREAS , effective October 28 , 1982 , Indian River County as Grantor granted a twenty-year license to Shargo , Inc . as Licensee to use real property for the purpose of constructing and using a two hundred foot high radio tower and accessory structures ; and WHEREAS , on July 24 , 1985 , Indian River County consented to the assignment by Shargo , Inc . , of the license to Palm Coast Communications , Inc . , a Florida corporation ; and WHEREAS , via a License dated May 7 , 1996 , which amended and restated the License granted to Shargo , Inc . , Indian River County granted a license to Media VI , a Florida partnership , to use the real property for the purpose of usingpa two hundred foot high radio tower and accessory structures (" License " ) ; and WHEREAS , on May 7 , 1996 , Indian River County consented to the assignment by Media VI , a Florida partnership , of the License'.jo Commodore Media of Florida , Inc . ("Commodore " ) ; and , WHEREAS , on April 29 , 1998 , the Federal Communications Commission granted Commodore ' s application for voluntary assignment of license for AM broadcast station 1370 kHz from Commodore to Capstar; and WHEREAS , Capstar has acquired Commodore and all of Commodore ' s assets , liabilities , and obligations , and Capstar proposes that the County consent to Capstan' s assumption of the License ; and WHEREAS , the County has agreed to consent to the assignment of the License to Capstar, pursuant to the terms hereof; AGREEMENT : In exchange for the mutual promises contained herein and other consideration , the receipt and sufficiency of which are hereby acknowledged , Indian River County and Capstar hereby agree as follows : 1 . The License is hereby renewed for a period of twenty (20 ) years commencing effective October 28 , 2002 , in accordance with the terms set forth in the License , a copy of which is attached hereto as Exhibit A and incorporated herein , except as follows : a . The existing Paragraph 6 of the License is deleted in its entirety and replaced with the following : Licensee agrees to pay to Grantor, and Grantor agrees to accept as rental under this License , the amount of two thousand dollars ($2 , 000 . 00 ) per year, which amount shall increase , effective October 28 , 2003 for the period from October 28 , 2003 through and including December 31 , 2004 , and thereafter, each January 1 of each subsequent year of the term of this License by four per cent (4 % ) per year compounded . Effective January 1 , 2004 , the parties agree that the annual rental payment shall be due not later than January 31 of each succeeding year of the term of this Agreement . The parties acknowledge and agree that the sum of $2109 . 66 is the amount due and owing to the County under this Agreement for the time frame of October 28 , 2002 , through and including December 31 , 2003 . In addition , Licensee shall pay to the applicable taxing authority all taxes attributable to Licensee ' s use of the licensed property that may be levied by any taxing authority. b . The existing Paragraph 7 is deleted in its entirety and replaced with the following : Grantor reserves , and Licensee covenants and agrees to provide to Grantor, one antenna space on the radio tower, free of charge , to be utilized by Grantor at any time for the exclusive purpose of establishing and maintaining an emergency communications system . In addition , Grantor reserves , and Licensee covenants and agrees to provide to Grantor, a second antenna space on the radio tower, free of charge , for any other purpose in Grantor's sole discretion provided such second antenna will not exceed the design parameters of the structure . Licensee shall reserve these antenna spaces for Grantor during the term of this License and any and all renewals thereof unless this provision is expressly released or modified by Grantor in writing . Grantor agrees that it will operate any such antennae in a manner that will not cause interference to Licensee' s business operations . c. Add the following to the end of Paragraph 9 : The License granted hereby shall terminate upon Capstar' s cessation as an active Delaware corporation authorized to do 2 business in the State of Florida , unless prior to such time both parties hereto agree in writing to a further assignment of this License to an affiliate of Capstar or other third party. d . Paragraph 10 : Change "License " to " Licensee" . e . Paragraph 11 : Change "a reasonable cost" to "all reasonable costs" . f. The existing Paragraph 14 of the License is deleted in its entirety and replaced with the following : Capstar as Licensee shall defend , indemnify, and hold harmless the County, and the County's officers , employees and agents (" Indemnified Parties ") , from and against any and all claims for damages , costs , third party claims , judgments , and expense to persons or property that may arise out of, or be occasioned by, any negligent, reckless , or intentional act or omission of Capstar, or of Capstar' s officers , employees or agents (collectively, the "Claims " ) , and Capstar shall indemnify the County against any such Claims that may be entered in connection therewith , including attorney fees . Capstar shall defend any and all Claims , and Capstar agrees to pay any judgment or judgments , including attorney fees , that may be entered against the County or against any of the County' s officers , employees , or agents , in connection therewith . Notwithstanding the foregoing , the parties agree that Capstar shall not be obligated to defend or indemnify the Indemnified Parties for Claims that arise out of the sole negligence of the Indemnified Parties . g . The existing Paragraph 15 of the License is deleted in its entirety and replaced with the following : Capstar shall , at least ten ( 10 ) days prior to the commencement of operations under this agreement, provide to the County a certificate of commercial general liability insurance with a reputable insurance company authorized to issue insurance policies in the State of Florida , subject to approval by the County' s risk manager, in an amount not less than $ 1 , 000 , 000 combined single limit for bodily injury and property damage , including coverage for premises/operations , products/completed operations , contractual liability, and . Capstar shall , at least ten ( 10 ) days prior to the commencement of operations under this agreement, provide to the County a certificate of business auto liability insurance with a reputable insurance company authorized to issue insurance policies in the State of Florida , subject to approval by the County' s risk manager, in an amount not less than $ 1 , 000 , 000 per 3 occurrence combined single limit for bodily injury and property damage , including coverage for owned autos and other vehicles , hired autos and non-owned autos . The commercial general liability and auto liability insurance policies shall name Indian River County, a political subdivision of the State of Florida , as an additional insured but only with respect to liability assumed by Capstar herein . In addition , Capstar shall , at least ten ( 10 ) days prior to the commencement of operations under this agreement , provide to the County a certificate of worker' s compensation insurance , including employer' s liability, with a reputable insurance company authorized to issue insurance policies in the State of Florida , subject to approval by Indian River County' s risk manager, with a limit of $ 100 , 000 per accident , $500 , 000 disease (policy limit) , and $ 100 , 000 disease (each employee ) in compliance with all state and federal laws . Capstar shall provide to the County at least thirty (30 ) days' written notice addressed to Indian River County' s risk manager, prior to cancellation or modification of any required insurance . h . Paragraph 18 : Change "licenses " to "licensed " . 2 . a . Capstar hereby assumes , accepts , and agrees to perform , all of Commodore' s responsibilities , obligations , and commitments as set forth in the License dated May 7 , 1996 , and as set forth above . b . County hereby consents to the assignment of the License to Capstar under the terms contained herein . 3 . Except as provided above , the License shall remain in full force and effect as applied to Capstar and County. 4 . Any written notice from one party to the other party shall be by certified mail , return receipt requested , or by hand , or by overnight delivery, as follows : To the County: Indian River County Telecommunications Manager 1840 25th Street Vero Beach , FL 32960 To Capstar: Chief Engineer Capstar Radio Operating Company 3771 Southeast Jennings Road Port St. Lucie , FL 34952 and a copy sent via regular U . S . mail to . 4 Clear Channel Real Estate , Inc . 200 E . Basse Road San Antonio , TX 78209 Attention : Vice President , Real Estate . Either party may change its address for written notice by providing written notice thereof to the other party. 5 . This Agreement shall be governed by the laws of the State of Florida . Venue for any lawsuit brought by either party against the other party or otherwise arising out of this Agreement shall be in Indian River County, Florida , or, in the event of federal jurisdiction , in the United States District Court for the Southern District of Florida . 6 . Representations . Warranties and Covenants . Each party hereto represents , warrants and covenants to the other parties hereto as follows : a . Said party has the full right and legal authority to enter into and fully perform this Agreement , in accordance with the terms of this Agreement. b . This Agreement , when executed and delivered by said party , will be a legal , valid and binding obligation enforceable against same in accordance with its terms , except to the extent that enforcement may be limited by bankruptcy, insolvency or other similar laws affecting creditors ' rights generally. c . The execution and delivery of this Agreement has been duly authorized by each party hereunder, and such execution and delivery and the performance of said party' s obligations hereunder do not and will not violate or cause a breach of any other agreement or obligation to which it may be a party or by which it may be bound . d . In addition to being true as of the date first written above , each of the foregoing representations , warranties and covenants will be true at all times during the term of this Agreement. Each of such representations , warranties and covenants will be deemed to be material and deemed to have been relied upon by the other parties hereto notwithstanding any investigation made by the other parties hereto . 7 . The Background Recitals are true and correct and form a material part of this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) 5 Dec 02 03 10 : 30a Telecommunications 772 - 226 - 1508 p , 7 IN WITNESS WHEREOF , Indian River County and Capstar execute this Agreement as follows : Attest: J . K . Barton , Clerk Indian River County c By ` By f- th firman� n Deputy Clerk Carol i nQ n . Ginn C Date approved by BCC : 01 _ 20 - 2004 Apprc ed : Jam E . Chandler Cou ty Administrator ia4 d ) oe Approved as to Form and Legal Su ioncy c aliarnt . Collins If County Attorney Attest : Capstar Radio Operating Company By: By. . -�'� -�' Title : MARK BASS Title: VICE PRESIDENT/MARKET MANAGER Date : DECEMBER 2. 2003 6 EEXHIBIT LICENSE �t G THIS LICENSE made this 7 day of-�A�p;ir, 1996 , by and between INDIAN RIVER COUNTY, a political subdivision of the State of Florida, hereinafter referred to as the " Grantor" and MEDIA VI , a Florida partnership , hereinafter referred to as the " Licensee" ; WHEREAS , Licensee is the present Licensee as a result of successive assignments of an original License between the Grantor and Shargo , Inc . , as Licensee of License dated September 15 , 1982 ( the " 1982 License" ) ; and WHEREAS , the 1982 License is current and in good standing; and WHEREAS , Licensee is in the process of further assigning the 1982 License and Grantor and Licensee deem it to be in their best interests to restate the 1982 License Nvith this to accurately reflect the current status of the 1982 License; NOW , THEREFORE , in consideration of the premises and the mutual covenants hereinafter set forth. the parties agree as follows : 1 . The 1982 License is current and in good standing with the Twelve Hundred Dollar ( $ 1 ,200 . 00) annual rent having been paid for the License year ending October 27 , 1996 . 2 . The 1982 License is hereby amended and restated in its entirety and is hereinafter referred to as the " License" . - 1 - 3 . That the Grantor, in consideration of the covenants and agreements hereinafter made to be kept and performed by the License and upon the conditions set forth below, the Grantor does hereby grant to the Licensee a non-exclusive license to use the following described real property situated in Indian River County to wit; From a point at intersection of the east right-of-way line of a 160 foot wide right-of-way for Lateral "J" Canal and the south right-of-way line of a 250 foot wide right-of--way for the South Relief Canal of the Indian River Farms Water Management District: Run Southeasterly on said east right-of-way of Lateral "J" Canal a distance of 600 feet to Point of Beginning; Said Point being in the southeast comer of the Southwest quarter Section 13 , Township 33 South , Range 39 East Indian River County, Florida; Thence run northeasterly on a line parallel to the South right-of-way line of the South Relief Canal a distance of 400 feet to a point; Thence run southeasterly on a line parallel to the east right-of-way line of Lateral "J" Canal a distance of 400 feet to a point; Thence run southwesterly on a line parallel to the south right- of-way line of the South Relief Canal a distance of 400 feet to the intersection of the east right-of-way line of Lateral "J" Canal; Thence run northwesterly on said east right-of--way line of Lateral "J" Canal a distance of 400 feet to said Point of Beginning. Containing 3 . 67 acres more or less. The Grantor further grants to License an easement for ingress and egress to exist during the term of this license, as follows: Running from the above described property northeast comer to Old Dixie Highway being the 30 feet lying immediately easterly of said property northeast corner running -2- a distance of 200 feet easterly on a line 600 feet southeasterly of and parallel to south right-of--way line of South Relief Canal to a Point; Thence the 30 feet lying on a line 600 feet easterly of and parallel to the east Fight- of- way line of Lateral "J" Canal running northerly a distance of 600 feet to a point; Thence the 30 feet lying immediately southerly and parallel to the South right-o&way line of the South Relief Canal running easterly to the intersection of Old Dime ixie Highway. 4 . This License shall terminate October 27 , 2002 . 5 . This License shall be non-revocable, provided Licensee abides by all the terms of this agreement and shall be for the purpose using a two hundred ( 200' ) foot high radio tower and accessory structures in accordance with all governmental agency permit requirements and in accordance with the requirements of the WARE Radio Station, an AM Station and for no other purposes whatsoever without the prior written consent of the Grantor. Grantor reserves the right to grant other uses of the property that is the subject of this agreement, provided, however, that said future additional uses shall not interfere in any way with the use of the property by Licensee for the purposes nrn"ried in this Aareemi!nt 6 . Licensee does hereby covenant and agree to pay Grantor, and the Grantor agrees to accept as rental under the License the sum of Twelve Hundred Dollars ( $ 1 ,200 .00 ) per year. The remaining payments are due in advance on the 28th day of October of each succeeding year during the term of the License, with the next annual rental being due October 28 , 1996 . -3 - 7 . Licensee further covenants and agrees to provide Grantor with one free antenna space to be utilized by Grantor at any time for the exclusive purpose of establishing an Emergency Communication System. Licensee further covenants to provide to Grantor a second antenna space for the exclusive purpose of establishing an Emergency Communications System in return for the payment of $ 100 . 00 per month payable yearly, in advance. Licensee shall reserve these antenna spaces unless this provision is released or modified by the Board of County Commissioners of Indian River County. 8 . The parties hereto agree that the Licensee shall take the property as it presently exists . Licensee shall have the right to maintain on the property a two hundred (200') foot high radio antenna and accessory structures as long as said structures or buildings meet all appropriate zoning, building or other governmentally unposed restrictions. All costs of the maintenance shall be borne by the Licensee . At the end of the term of this license all improvements , with the exception of removable personal property and equipment, shall become the property of the Grantor tree and clear of any claim of right of Licensee. 9 . Licensee may not assign the License without the prior written approval of the Board of County Commissioners of Indian River County. The Grantor shall not unreasonably withhold such approval . -4- 10 . The License shall maintain the property and all improvements made thereon in an orderly, safe and functional condition . 11 . Licensee agrees that in the event of a suit brought on the License for ejectment or to enforce the covenants of the agreement or for any default hereunder on the part of Licensee, its successors or assigns , and should the Grantor be successful then Licensee shall pay a reasonable cost and expenses of the suit including reasonable attorney fees . 12 . Licensee agrees to arrange for and pay for, in addition to the rental above mentioned, all utility bills for activities on the premises . 13 . Any failure on the part of the Licensee to comply with any of the terms , conditions and covenants of this License shall make the entire amount of rent for the term of the License due and payable. Grantor, its heirs and assigns , may proceed to collect same or at the election of Grantor, its heirs or assigns , any such failure shall work as a forfeiture of the License and all rights of the Licensee hereunder, and said Licensee shall within ten ( 10 ) days thereafter quit and surrender said premises without further notice to quit, and the Grantor, or its heirs and assigns , may recover possession thereof by action or forceable entry and detainer. 14 . Licensee further covenants and agrees to hold the Grantor harmless form and indemnify the Grantor for, including the duty to defend, any claim , damages, -5- liability or cause of action whatsoever that may arise out of or result from the use of the premises by the Licensee. 15 . Licensee agrees to cavy, at its expense, liability insurance to protect the interest of the Grantor as well as the Licensee against loss or damage by personal injury or property damage, and agrees to carry liability insurance in the sum of not less than One Hundred Thousand Dollars ( $ 100 ,000 . 00) for injuries to or death of any on person and Twee Hundred Thousand Dollars ( $300 ,000 . 00) for injuries to or death of any more than one person in any one accident, and Twenty-five Thousand Dollars ( $25 ,000. 00) for damage to property. Said policy or policies shall be standard Owner's Landlord's and Tenant's policies and will include the Grantor's name as a co-insured A copy of the insurance policies naming the Grantor as a co-insured will be delivered to grantor. 16 . Licensee further agrees that Licensee , its agents , affiliates or subsidiaries or assigns , will make no unlawful or improper use of the premises and will abide by all of the health, safety, zoning and other regulations as requirea by Indian River County, the State of Florida or any other governmental authority. 17 . The Licensee may install such signs on the exterior of the building or otherwise as are necessary for the appropriate use of the property, said signs to meet with the rules and regulations of Indian River County. -6- 18 . The Grantor may enter and inspect the licenses premises at all reasonable hours . 19 . The Grantor covenants and agrees that if the Licensee shall pay and otherwise perform and do all the things and matters herein provided for to be kept and performed by the Licensee, that the Licensee shall peacefully and quietly have the right to use the premises for the purposes herein provided together with the necessary right-of- way to said premises without any hindrance by the Grantor or by any other person or persons claiming by or through or under the Grantor. 20 . Upon termination of the License, Licensee shall peacefully and quietly surrender and yield up to the Grantor all the premises , subject to the right of the Licensee to remove only tangible personal property and fixtures as may be owned by Licensee. In the event of the removal of any fixtures or tangible personal property owned by the Licensee , it will repair at its expense any damage caused by the removal of said fixtures or equipment. 21 . The Licensee understands that there is an exisung ratio cower on the adjoining property and that Grantor does not warrant the suitability of the property for a tower or that any broadcasts from the tower will be free from interference. 22 . It is mutually agreed that each and every one of the covenants and agreements herein contained shall be extended to and be binding upon the respective successors , heirs , legal representatives and assigns of the parties hereto . J7 IN WITNESS WHEREOF , the parties have hereunto set their hands and seals on the day and year first above written , in duplicate . INDIAN RIVER COUNTY ecc By Franc ", darns t At ,, .,.. _.., G AA to Grantor MEDIA VI , a Florida partnership By: PALM COAST COMMUNICATIONS , J&C . , a Florida ---� corporation, its General Partner As to Licensed By: President Y inmm Riva Ca A (Woved Dare Admin. 079 9L i legal Dept. Risk Mgr . -8-