HomeMy WebLinkAbout13 - Assignment of Lease with Kelsho CommunicationsCouncil Meeting: December 14, 1998
Agenda Item No. 13
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
December 14, 1998
TO: Mayor and Members of the City Council
FROM: Robin L. Clauson, Assistant City Attorney
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.
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.
,l
ROBIN L. CLAUSON
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Enclosures
F:1Cat \Shared%Ccmemo \Ciff casters 121498.doc
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:
By:
State of )
) ss
County of )
CITICASTERS CO.,
an Ohio 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
Signed and acknowledged
in the presence of:
State of
) ss
County of
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.
Notary Public
My Commission Expires
Attest:
By: Lavonne Harkless
City Clerk By:
Approved as to form:
By: Robin L. Clauson
Assistant City Attorney
State of
) ss
County of
THE CITY OF NEWPORT BEACH,
a municipal 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
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
C1109/100072
EXHIBIT A
See Attached
F AC at\S here d\Ag \C it ica ste rs\M a moLe as a 120898. d oc
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
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:
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