Page 1 of 7
Page 2 of 7 2. Article VII, Privilege Fees, Charges and Accountability, of the Agreement is hereby amended as follows: 7.2 Upon expiration of the Transition Period, the Privilege Fee payable from the Concessionaire to the County will be based on the greater of the following: 1) a Minimum Annual Guarantee ("MAG"); or 2) a Percentage Fee~ (a) The Minimum Annual Guarantee for the first full twelve month period following the expiration of the Transition Period ("First Contract Year") shall be QAe MillioR Fille HI:JRQFeEt Tt:lOI:JSaREt DollaF8 ($1,600,OOO.OO) One Million Dollars (1,000,000.00>. Commencing at the beginning of the Second Contract Year and each subsequent Contract Year, the MAG will be adjusted annually based on the following: The greater of: (i) (ii) 85% of the prior year's Privilege Fee, excluding the Privilege Fee paid during the Transition Period; or The MAG proposed by the Concessionaire fof the fif8t fl:jli avelve mortt:l pefioet followirg tt:le e*pifatior oftt:le TFaRSitioR PeFioEt for each Contract Year as follows: Second Contract Year: $1,000,000.00 Third Contract Year: $1,833,333.00 Fourth Contract Year: $1,833,333.00 Fifth Contract Year: $1,833,333.00 The adjusted MAG during the Term ofthe Agreement shall never be less than the MAG for tt:le fif8t each Contract Year. 3. Article XII, INSURANCE AND INDEMNIFICATION; PERFORMANCE BOND; SECURITY DEPOSIT, Section 12.3, of the Agreement is hereby amended as follows: 12.3 The Concessionaire shall post a Security Deposit ("Security Deposit") with the County. The amount of the Security Deposit shall be the greater of fa tt:le affioi:jrt oftt:lat is eql:jal to ORe t:lalf (14) oftt:le MiRiffil:Jffi ARRl:Jal Gl:JaFaRtee 2
Page 3 of 7 (MJ\G) Nine Hundred Sixteen Thousand Six Hundred Sixty Six and 50/100 Dollars ($916.666.50) or one half (%) of the MAG for each year during the term of this Agreement. The Security Deposit shall serve as security for the payment of all monies due to County and shall also secure the performance of all obligations of Concessionaire to the County. The Security Deposit shall be either in the form of cash, an Irrevocable Letter of Credit ("Letter of Credit"), in form and substance satisfactory to the County, or a Payment and Performance Bond ("Bond"), in form and substance satisfactory to County. No interest shall be paid on said Security Deposit. The Security Deposit shall be submitted to the County, simultaneously with the execution of this Agreement by the Concessionaire. In the event of any failure by Concessionaire to pay when due any fees or other charges hereunder or upon any other failure to perform its obligations hereunder or upon any other default hereunder, then in addition to any other rights and remedies available to County at law or in equity, County shall be entitled to draw down up to the full amount of the Security Deposit and apply same to all amounts owed by Concessionaire to County. Upon notice of any such draw, Concessionaire shall immediately replace the Security Deposit with a new Letter of Credit or Bond or cash in the full amount of the Security Deposit required hereunder. The Aviation Department, upon fourteen (14) calendar days notice to the Concessionaire, may require an increase in the amount of the Security Deposit to reflect any increases in the monies payable hereunder. In addition the Aviation Department, upon fourteen (14) calendar days notice to the Concessionaire, may require an increase in the amount of the Security Deposit equal to up to four (4) additional months' rent installments because of increased obligations hereunder, or if upon a review of Concessionaire's payment or performance history at the Airport, the Aviation Department determines an increase should be required. 4. Article XII, "INSURANCE AND INDEMNIFICATION; PERFORMANCE BONDS; SECURITY DEPOSIT," of the Agreement is hereby amended, as follows: 12.3.2 Each Letter of Credit provided hereunder or under any other Section or provision of this Agreement shall be provided by a financial institution of recognized standing authorized to do business in the State of Florida. Throughout the term of the Letter of Credit. the financial institution that has issued the Letter of Credit must maintain a relationship with a financial institution having an offioe in 8rovlard, Miami Dade, or Palm 8eaoh County, Florida at whioh the better of Credit may be presented for drawing down, and the finanoial institution that has issued the better of Credit must have been in business with a record of successful continuous operation for at least five (5) years. Each ILetter of ocredit shall be in form and substance satisfactory to the County. 3
5. Truth-in-Negotiation Certificate. Execution of this Amendment by Concessionaire shall act as the execution of a truth-in-negotiation certificate that rates and other costs supporting the rates set forth in the Agreement, as amended hereby, are accurate, complete, and current as of the date of execution hereof. 6. Drug-Free Workplace. Execution of this Amendment by Concessionaire shall also serve as Concessionaire's certification that it has established a drug free work place in accordance with Chapter 21.31 (a) of the Broward County Procurement Code and will continue to maintain same during the term of the Agreement, as amended hereby. 7. The Concessionaire acknowledges that, through the date hereof, it has no claims against County with respect to any of the matters covered by the Agreement, as amended, and it has no right of set-off or counterclaims against any of the amounts payable under the Agreement. 8. In the event of any conflict or ambiguity between this amendment and the Agreement, the parties hereto hereby agree that this document shall control. 9. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Agreement. 10. This document incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this document that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 11. Preparation of the Agreement, as amended, has been a joint effort of Concessionaire and County and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than any other. 12. It is agreed that no modification, extension, amendment or alteration in the terms or conditions of the Agreement, as amended hereby, shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 13. Except as modified herein, all terms and conditions of the Agreement shall remain in full force and effect. 14. This Agreement, as amended, shall be interpreted and construed in accordance with and governed by the laws of the state of Florida. Any controversies or legal problems arising out of the Agreement, as amended and any action involving the enforcement or interpretation of any rights hereunder shall be submitted to the jurisdiction of the state courts of the Seventeenth Judicial Circuit of Broward County, Florida, the venue situs, 4 Page 4 of 7
Page 5 of 7 and shall be governed by the laws of the state of Florida. To encourage prompt and equitable resolution of any litigation that may arise hereunder, each party hereby waives any rights it may have to a trial by jury of any such litigation. 15. In the event the Agreement, as amended, or a portion ofthe Agreement, as amended, is found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective unless County or Concessionaire elects to terminate the Agreement. The election to terminate the Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 16. The truth and accuracy of each "Whereas" clause set forth above is acknowledged by the parties. 17. Multiple copies of this First Amendment may be executed by all parties, each of which bearing original signatures, shall have the force and effect of an original document. [Remainder of Page Intentionally Left Blank] 5
Page 6 of 7 IN WITNESS WHEREOF, the parties have made and executed this First Amendment to Airport Advertising Concession Agreement on the respective dates under each signature: BROWARD COUNTY through its BOARD OF COUNTY COMMISSIONERS, signing by and through its Mayor, or Vice Mayor, authorized to execute same by Board action on the dayof,20_, and IN-TER-SPACE SERVICES, INC. d/b/a CLEAR CHANNEL INTERSPACE AIRPORTS, signing by and through its duly authorized representatives. COUNTY ATTEST: BROWARD COUNTY, by and through its Board of County Commissioners Broward County Administrator, as By _ Ex-officio Clerk of the Broward County Mayor Board of County Commissioners _ day of ', 20 Approved as to form by Office of the County Attorney JEFFREY J. NEWTON, County Attorney Governmental Center, Suite 423 115 South Andrews Avenue Fort Lauderdale, Florida 33301 Telephone: (954) 357-7600 Tel pier: (954) 3 7-7641 By, ricia D. Bri sett (Date) Assistant County Attorney I. &-' or. i'-j Oj 6
Page 7 of 7 FIRST AMENDMENT TO AIRPORT ADVERTISING CONCESSION AGREEMENT, FORT LAUDERDALE-HOLLYWOOD INTERNATIONAL AIRPORT, BETWEEN BROWARD COUNTY AND IN-TER-SPACE SERVICES, INC. d/b/a CLEAR CHANNEL INTERSPACE AIRPORTS CONCESSIONAIRE cretar}i In-Ter-Space Services, Inc. d/b/a Clear Channel Interspace Airports, a Pennsylvania corporation authorized to do business in the State of Florida ~ ~ (CORPORATE SEAL) ~~ -..' ~ 7: LiCbC,LIe\ChN Print Name Title: Ce, C.O ~day of..tjr-&t'l,20.et 07-071.54 G:\CTYATTY\TRICIA BRISSETI\CONCESSIONS\AOVERTISING\Advertising AM01 (tdb 4-08-09).doc G:\BUS\WORK\ADDENDUM-AMENDMENTI2009\Clear Channel Interspace Airports\Advertising AM01 (~23-09).doc 7