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HomeMy WebLinkAboutRes1987-040 . . . Sponsored by: Garzini CITY OF SEWARD, ALASKA RESOLUTION NO. 87-040 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING A JOINT USE OF SATELLITE TELEVISION EQUIPMENT LEASE AGREEMENT WITH RESURRECTION BAY ENTERTAINMENT TELEVISION, INC. WHEREAS, Gary L. Ferguson, President of Resurrection Bay Entertainment Television, Inc. (RBETV) has requested that the City Council grant him another year's lease for the joint use of the City's satellite receiving station for the purpose of continuing the operation of a low power UHG television station; and WHEREAS, the City has had a cordial and mutually beneficial relationship with RBETV during the past year; and WHEREAS, for the past year RBETV has not operated other than to rebroadcast CBN Channel 17 at no cost to the public as a way to maintain his FCC license; and WHEREAS, the Seward City Council finds it in the public interest to continue its relationship with RBETV through the negotiated lease for the joint use of the City's satellite television equipment; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is hereby authorized to execute the Joint Use of Equipment Lease Agreement (Attachment "A") which is attached and incorporated herein by reference as a part of this resolution. Section 2. This resolution shall take effect thirty (30) days following its adoption. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 8th day of June , 1987. THE CITY OF SEWARD, ALASKA -1- . CITY OF SEWARD, ALASKA RESOLUTION NO. 87-040 AYES: NOES: ABSENT: ABSTAIN: ATTEST: BOOHER, GIESELER, HILTON, MEEHAN, NOLL & SIMUTIS NONE NONEl - , DUNHAM APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN, Attorneys for the City of Seward, AK . . (City Seal) 7~([/~ Fred B. Arvidson City Attorney -2- . !I :! :! " lj JOINT USE OF EQUIPMENT LEASE AGREEMENT " THIS AGREEMENT. Made this 15 day of Jul y . 1987. by and '! between the CITY OF SEWARD ("Lessor" herein) and GARY L. FERGUSON d/b/a , RESURRECTION BAY ENTERTAINMENT TELEVISION. INC. ("Lessee" herein). ii i WHEREAS. it is in the public interest to provide to the citizenry :: of the City of Seward accessibll ity to a variety of television communica- 'I tions; and I' WHEREAS. Gary L. Ferguson. d/b/a Resurrection Bay Entertainment .; Television. Inc.. was granted a low power television translater license for service in the City of Seward by the Federal Communications Commission on June 9. 1983; and WHEREAS. Gary L. Ferguson, d/b/a Resurrection Bay Entertainment I Television. Inc.. has requested of the City of Seward continued joint use of . its satell ite receiving station to provide low power television service on Channel 17 to the citzenry of the City of Seward; WIT N E SSE T H: . 1. Lea.se. Lessor hereby 1 eases to Lessee. and Lessee hereby hires and takes from Lessor: Joint use of a portion of the City of Seward's satellite receiving station for the purpose of operating a pay TV station known as Channel 17. and a portion of the City of Seward's equipment building. 2. Rentals. Lessee agrees to pay to Lessor or the assignee (hereinafter collectively called "Lessor". except where the context otherwise indicates) for said term or any portion thereof an aggregate monthly rental of ONE HUNDRED FIFTY and NO/lOO ($150.00) DOLLARS, to be paid in quarterly installments on October 1. January 1. April 1 and July 1. All rent shall be paid without notice or demand and without abatement. deductions or setoff of any amount whatsoever at: CITY OF SEWARD P.O. Box 167 SEWARD. ALASKA 99664 ATTN: CITY CLERK . 3. Term. The term of this lease shall be one (1) year from the date herein first written, unless sooner terminated as provided herein. Said lease may be affirmatively terminated by either party upon written notice. not less than thirty (30) days prior to the date of termination. except that. if the Lessee is in violation of this Agreement. or of any applicable law or CITY OF SEWARD. ALASKA RBETV/JOINT USE AGREEMENT RESOLUTION NO. 87-040 safety regulation. this lease may be terminated by the City immediately a at any time. 4. Use Of Equipment. The Lessor is not awarding a franchise or monopoly to Gary L. Ferguson. d/b/a Resurrection Bay Entertainment Television. Inc.. via this lease since the Federal Communication Commission regulates low power television service. However. the Lessor prohibits the use of the equipment for the broadcast of obscene material and lotteries. If the equipment is so used. this lease is null and void. Further. Lessee's use of the equipment via Channel 17 shall not interfere with the reception or broadcast of the Lessor's VHF stations. If interference develops. this lease is null and void. 5. No Warranties. by Lessor; Maintenance. Compl ianc'e with Laws. Lessee hereby acknowledges that Lessor is not the manufacturer of the equ ipment, nor manufacturer's agent. and that LESSOR MAKES NO WARRANTY OR REPRESENTATION. EITHER EXPRESS OR IMPLIED. AS TO THE FITNESS FOR ANY PARTICULAR PURPOSE. THE QUALITY OR CAPACITY OF THE MATERIALS IN THE EQUIPMENT OR WORKMANSHIP IN THE EQUIPMENT. or that the equipment will satisfy the requirements of any law, rule. specification or contrat which provides for specific machinery or operators. or special methods. No defect or unfitness of the equipment shall relieve Lessee of the obligation to pay rent. or any other obl igation under this lease. to Lessor. No oral agreement. guaranty, promise, condition, representation or warranty. nor any oral modification hereof. shall be binding. All prior conversations, agreements r representations related to this lease or to the equipment are integrat herein. Lessee shall, at its own cost and expense, (a) pay all charges an~ expenses in connection with the day-to-day operation of the equipment; (b) comply with all laws. ordinances. regulations. requirements and rules with respect to the use, maintenance and operation of the equipment. Lessor agrees to make all repairs and replacements required to be made to maintain the equipment in good condition. reasonable wear and tear excepted. In addition. Lessor agrees to test. adjust and service the equipment if needed. In performing the duties set forth in the two sentences immediately preceding, Lessor may contract with the delegate Lessor's duties to such persons or entities as Lessor sees fit in the exercise of Lessor's discretion. 6. D.estruction of Equipment. If any equipment is totally destroyed. the liability of Lessee to pay rent therefor may be discharged by paying to Lessor all the rent due and to become due thereon. less the net amount of the recovery, if any. actually received by Lessor from insurance or otherwise for such loss or damage. Except as provided in the preceding sentence. the total or partial destruction of any equipment, or total or partial loss of use or possession thereof by Lessee. shall not release or relieve Lessee from the duty to pay the rent herein provided. Lessor shall not be obligated to undertake. by litigation or otherwise. the collection of any claim against any person for loss or damage of the equipment. -2- CITY OF SEWARD. ALASKA RBETV/JOINT USE AGREEMENT RESOLUTION NO. 87-040 . 7. Payment Qf Taxes by Lessee. During the term of this lease Lessee shall. in addition to the rent provided herein to be paid, promptly pay all taxes. assessments and other governmental charges levied or assessed upon the interest of the Lessee in the equipment or upon the use or operation thereof or on the earnings arising therefrom. and as additional rent shall I promptly payor reimburse the Lessor for all taxes (other than sales taxes paid by Lessor with respect to its purchase of the equipment). assessment and other governmental charges. including fees for titl ing and registration of the equipment or any part thereof. or the use or operation thereof or the leasing thereof to the Lessee, or the rent herein provided for or the earnings arising therefrom. exclusive, however. of any taxes based on net income or gross receipts or gross income of Lessor. . 8. Ownership of Lessor. The equipment shall at all times remain the property of Lessor. Lessee will at all times protect and defend, at his own cost and expense, the ownership of Lessor. Lessee will at all times protect and defend. at its own cost and expense. the ownership of Lessor against all cl aims, 1 iens and legal processes of creditors of Lessee and other person. and keep the equipment free and clear from all such claims. liens and processes. The equipment is and shall remain personal property and not part of any real estate. Upon the expiration or termination of this lease. Lessee. at Lessee's sole expense, shall return the equipment unencumbered to Lessor and in the same condition as when received by Lessee. reasonable wear and tear resulting from authorized use excepted. 9. E~uipment to be Identified. Lessee shall, upon the request of Lessor. and at its own expense. firmly affix to the equipment. in a conspicuous place. such a decal or metal plate as shall be supplied by Lessor showing Lessor, or Lessor's Assignee (if this lease be assigned). as the owner and Lessor of such equipment. Lessee shall not affix any other signs. decals or labels to the equipment. 10. Possession,. Use ancl.Location of Equipment. So long as Lessee shall not be in default under this lease. Lessee may possess and use the equipment in accordance with this lease. The equipment shall be used in the lawful business of Lessee and shall be kept at Seward, Alaska. Lessee shall not. without Lessor's prior written consent. remove the equipment from such location, part with possession or control of the equipment or sell. pledge, mortgage or otherwise encumber the equipment or any part thereof or assign or encumber any interest under this lease. 11. P\3r.formanc\3 .of Obligations of Lessee by Lessor. If Lessee shall fail duly and promptly to perform any of Lessee's obligations under the provisions of paragraphs 5, 6 and 7 of this lease. Lessor may. at its option. at any time thereafter perform the same for the account of Lessee without thereby waiving the default, and any expense or liability incurred by Lessor in so doing, together with interest at one n%) percent per month or the highest lawful rate. whichever is less. until paid by Lessee to Lessor, shall be payable by Lessee upon demand as additional rent for the equipment. . -3- CITY OF SEWARD. ALASKA RBETV/JOINT USE AGREEMENT RESOLUTION NO. I 87 -0 4 0 \ I I I i! I. I i\ I I: I' 12. ~.nspection. Subject to any appl icable laws. regulations .. rules. Lessor shall have the right from time to time to enter upon Lessee's , premises or elsewhere for the purpose of confirming the existence. condition and the proper maintenance of the equipment. !i 13. Indemnity. Lessee shall indemnify Lessor and save Lessor ii harmless from any and all liability. loss. damage, expense. causes of action. II:,' suits. claims or judgments arising from injury to person or property resulting from or based upon the actual or alleged use. operation. delivery I' ii or transportation of any or all of the equipment or its location or iI cond it i on; and shall. at Lessee's own cost and expense. defend any and all Ii suits which may be brought against Lessor. either alone or in conjunction 'I with others. upon any such liability or claim or claims. Lessee shall satisfy. pay and discharge any and all judgments and fines that may be !i recovered against Lessor in any such action or actions. provided. however. I: that Lessor shall give Lessee written notice of any such claim or demand. 14. AssiQnment. This lease and all rights of Lessor hereunder shall be assignable by Lessor without Lessee's consent. but Lessee shall not be obl igated to any assignee of Lessor except after written notice of such assignment sent by regular mail from Lessor. Lessee shall not assign this lease or its interests hereunder or enter into any sublease with respect to the equipment covered hereby. 15. Default. This lease shall be breached if: (a) Lessee shall default in the payment of any rent hereunder and such default shall continue for ten (10) days; (b) Lessee shall default in the performance of any other covenant herein and such default shall continue for fifteen (15) days after written notice thereof by Lessor to Lessee; (c) A Bankruptcy Act or reorganization or an petition is filed by or against any amendment thereto (including arrangement); or Lessee under the a petition for (e) Lessee attempts to remove or sell or transfer or encumber or sublet or part with possession of any of the equipment. In the event of a breach of this lease: (1) all sums to become due hereunder shall. at Lessor's option. become due and payable forthwith; and (2) the equipment shall. upon Lessor's demand, forthwith be del ivered to Lessor, at Lessee's expense. at such place as Lessor shall designate, and Lessor and/or its agents may. without notice or liability or legal process, enter into any premises of or under control or Jurisdiction of Lessee or any agent of Lessee where the equipment may be, or by Lessor is believed to be, and repossess all or any part of the equipment, disconnecting and separating all thereof from any other property and using all force necessary or permitted by appl icable law so to do. Lessee hereby expressly waives al' -4- CITY OF SEWARD. ALASKA RBETV/JOINT USE AGREEMENT i RESOLUTION "f). 87-040 I . further rights to possession of the equipment and all claims for injuries suffered through or caused by such repossesion. If Lessor takes possession. Lessor shall give Lessee credit against Lessee's liability for lease rentals for an amount equal to the difference between the aggregate rent reserved hereunder for the unexpired original term of this lease (hereinafter called "Unexpired Rental Value of Equipment"); provided. however, that any statute providing a lesser amount of damages shall control. if applicable and not subject to agreement of the parties. The foregoing provisions shall be with prejudice to any greater rights given to Lessor by any such statute. Lessor, upon any breach of this lease. may sell the equipment or may release such equipment for a term and a rental which may be equal to, greater than or less than the rental and term herein provided. and any proceeds of such sale received within sixty (60) days for the period prior to the expiration of this lease. less Lessor's expenses of taking possession. storage. recondi- tioning and sale or re-leasing. shall be deemed and considered for the purposes of this paragraph as being the Unexpired Rental Value of Equipment. If the Unexpired Rental Value of Equipment exceeds the Unexpired Rentals. Lessor shall be entitled to the excess. The provisions hereof entitl ing Lessor to collect all unpaid rentals reserved under this lease. less the Unexpired Rental Value of Equipment. is agreed on as a liquidated damage provision and not as a penalty. The provisions of this paragraph shall be without prejudice to Lessor's right to recover in full for unpaid rent that accrued prior to the taking of possession of the equipment. In the event of a breach of this lease. Lessor. at its option. may enforce by appropriate legal proceedings specific performance of the appl icable covenants of this lease. as well as any other remedy herein provided. Should any legal proceedings be instituted by Lessor to recover any monies due or to become due hereunder and/or for possession of any or all of the equipment. Lessee shall pay all expenses incurred by Lessor in exercising or attempting to exercise rights. powers and remedies herein conferred or not or hereafter existing at law or equity or in collecting or attempting to collect monies due or to become due under the lease, including attorney's fees at the time it is placed with an attorney. . 16. No Purchase Option. Lessee shall have no option to purchase or otherwise acquire title to or ownership of any of the equipment and shall have onl y the right to use the same under and subject to the terms and provisions of this lease. 17. Further Assurance. Lessee shall execute and deliver to Lessor. upon Lessor's request. such instruments and assurances as Lessor deems necessary or advisable for the confirmation or perfection of this lease and Lessor's rights hereunder. . 18. Notices. Remedies and Waivers. All notices relating hereto. except as required under Paragraph 12, shall be delivered in person to an administrator of the Lessor or Lessee or shall be mailed registered to Lessor or Lessee at its respective address above shown or at any later address last known to the sender. No remedy of Lessor hereunder shall be exclusive of any -5- CITY OF SEWARD. ALASKA RBETV/JOINT USE AGREEMENT RESOLUTION NO. 87- 040 other remedy herein or by law provided. but each shall be cumulative and addition to every other remedy. A waiver of a default shall not be a waiver of any other or a subsequent default. 19. Severabil ity. If any provision hereof or any remedy herein provided for be inval id under any applicable law. such provision shall be inapplicable and deemed omitted by the remaining provisions hereof, including the remaining default remedies. shall be given effect in accordance with the manifest intent hereof. 20. Entire. Agreement; Waiver. entire agreement between the parties. authorized to bind Lessor or to waive or by Lessor of any provision hereof shall matte r . This instrument constitutes the No supplier or agent thereof is modify any term hereof. No waiver constitute a waiver of any other 21. C.onstruction. This lease is to be interpreted in accordance with the laws of the state of Alaska. 22. Modification. The terms of covenants and conditions of this lease may be modified only by the written agreement of all parties hereto. 23. Operational Authority. The parties understand and Lessee warrants that Lessee has full operational authority from the Federal Communications Commission to operate a low power television translator witr the city of Seward and within the terms set forth in this Joint Use , Equipment Lease. IN WITNESS WHEREOF. the Lessor and Lessee have executed this Joint Use of Equipment Lease. LESSOR: LESSEE: THE CITY OF SEWARD. ALASKA GARY L. FERGUSON d/b/a RESURRECTION BAY ENTERTAINMENT TELEVISION, INC. BY: Ronald A. Garzini City Manager BY: Gary L. Ferguson -6- . . . " " CITY OF SEWARD, ALASKA RBETV/JOINT USE AGREEMENT RESOLUTION NO. 87- 040 ArnST: APPROVED AS TO FORM: HUGHES. THORSNESS. GANTZ. POWELL & BRUNO IN. Attorneys for the City of Seward. Alaska 1~ !fI~ Fred B. Arvidson City Attorney Linda S. Murphy, CMC City Clerk <City Seal) STATE OF ALASKA ) ) ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that, on the day of . 1987, before me. the undersigned, a Notary Publ ic in and for the State of Alaska. duly commissioned and sworn as such, personally appeared . , known to me and to me known to be the City Manager of the City of Seward. Alaska, and acknowledged to me that he executed the foregoing instrument of his own his free and voluntary will. IN WITNESS WHEREOF. I have hereunto set my hand and affixed my Notarial Seal the day and year hereinabove written. Notary Public for State of Alaska My Commission expires: -7- I " CITY OF SEWARD, ALASKA RSETV/JOINT USE AGREEMENT RESOLUTION NO. 87-040 STATE OF ALASKA ) ) ss ) THIRD JUDICIAL DISTRICT THIS IS TO CERTIFY that on this day of . 1987, before me. the undersigned. a Notary Pub~n and for the State of Alaska, duly commissioned and sworn as such. personally appeared GARY L. FERGUSON, lawful agent for RESURRECTION SAY ENTERTAINMENT TV., INC.. known to me and to me known to be the person who executed the foregoing instrument for and on behalf of RESURRECTION BAY ENTERTAINMENT TV.. INC., and who acknowledged that he signed the same freely and voluntarily for the uses and purposes therein contained. IN WITNESS WHEREOF. I have hereunto set my hand and seal on the day and year first hereinabove written. Notary Public in and for Alaska My Commission Expires I I I I I -8-