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HomeMy WebLinkAboutRes1985-088 . . . . .. CITY OF SEWARD, ALASKA RESOLUTION NO. 85-88 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING A JOINT USE OF EQUIPMENT AGREEMENT WITH PUFFIN PUBLIC BROADCASTING, INC. WHEREAS, it is in the public interest to provide the citizens of the City of Seward accessibility to public radio; and WHEREAS, Puffin Public Broadcasting, Inc., was granted an FM translator license for service in the City of Seward by the Federal Communications Commission on July 18, 1985; and WHEREAS, Puffin Public Broadcasting, Inc., has requested that the City of Seward allow joint use of its satellite receiving station to provide FM public radio service to the citizens of Seward; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is authorized to execute the attached Joint Use of Equipment Lease, incorporated herein and made a part of this resolution by reference, with Puffin Public Broadcasting, Inc., for use of the City's satellite receiving station. Section 2. This resolution shall take effect 30 days follow- ing its adoption. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 12 day of August , 19 85 THE CITY OF SEWARD, ALASKA "-', (.. ,,;J J~ /.L"&tJ ~ ~O~rrw. CRIPPS, YOR AYES: NOES: ABSENT: ABSTAIN: CRIPPS, GILLESPIE, HILTON, MEEHAN, SCHOLL, SIMUTIS & WILLIAMS NONE NONE NONE -1- . . CITY OF SEWARD, ALASKA RESOLUTION NO. 85-88 ATTEST: . . (City Seal) . APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL AND BRUNDIN, Attorneys for the City of Seward, Alaska 7rdJ flfiu-- Fred B. Arvidson, City Attorney -2- . . . . JOINT USE OF EQUIPMENT LEASE . THIS AGREEMENT, made this day of , 1985, by and between the CITY OF SEWARD ("Lessor" herein) and PUFFIN PUBLIC BROADCASTING, INC. ("Lessee" herein). WHEREAS, it is in the public interest to provide to the citizenry of the City of Seward the accessibility to Public Radio; and WHEREAS, Puffin Public Broadcasting, Inc. was granted an FM translator 1 icense for service in the City of Seward by the Federal Communications Commission on July 18, 1985; and WHEREAS, Puffin Public Broadcasting, Inc. has requested that the City of Seward allow joint use of its satell ite receiving station to provide FM Public Radio service at 88.1 MHZ to the citizenry of the City of Seward; WITNESSETH: 1. Lease. Lessor hereby leases to Lessee, and Lessee hereby hires and takes from Lessor: Joint use of a portion of City of Seward's satell ite receiving station for the purpose of translating KSKA-FM Public Radio, and a portion of City of Seward's equipment building. Said lease is for a term of one (1) year, commencing and end i ng 2. Use of EQuipment. The Lessor is not awarding a franchise or monopoly to Puffin Public Radio, Inc. via this lease since the Federal Com- munication Commission regulates FM translator service. However, the Lessor prohibits the use of the equipment for the broadcast of obscene material and . CITY OF SEWARD, _SKA PUFF! NI J 01 NT USE'WREEMENT Page 2 . RESOLUTION NO.85- ATTACHMENT "A" . lotteries. If the equipment is so used, this lease is null and void. Further, Lessee's use of the equipment at 88.1 MHZ shall not interfere with the reception or broadcast of Lessor's VHF or UHF stations. If interference develops, this lease is null and void. 3. No Warranties by Lessor; Maintenance, Compliance with Laws and Insurance. Lessee hereby acknowledges that Lessor is not the manufacturer of the equipment, 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 I N THE EQUIPMENT, 0 r that the equ i pment will sat i s fy the requirements of any law, rule, specification or contract which provides for specific machinery or operators, or special methods. No defect or unfitness . of the equipment shall relieve Lessee of any obligations to Lessor under this lease. No oral agreement, guaranty, promise, condition, representation or warranty, nor any oral modification hereof shall be binding. All prior conversations, agreements or representations related to this lease or to the equipment are integrated herein. Lessee shall, at its own cost and expense, (a) pay all charges and 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; (c) maintain at all times property damage, fire, theft, and comprehensive insurance for the full insurable value of the equipment, in companies satisfactory to Lessor, protecting Lessor's interest as it may appear and public liability insurance, including Lessor as an insured, in . amounts satisfactory to Lessor; and (d) deliver to Lessor evidence of such insurance coverage. I . . . i I. CITY OF SEWARD, ~SKA PUFFIN/JOINT USE~EEMENT I Page 3 RESOLUTION NO.85- ATTACHMENT "An . 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, Lesspr agrees to test, adjust and service the equip- ment, if needed. In performing the duties set forth in the two sentences immediately preceding, Lessor may contract with and delegate Lessor's duties to such persons or entities as Lessor sees fit in the exercise of Lessor's d i scret ion. 4. Destruction of Equipment. 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. 4. Payment of Taxes by Lessee. During the term of this lease, Lessee shan promptly pay, if any are <due and owing, all taxes, assessment 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 shan 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 titling and registration of the equipment or any part thereof, or the use or operation thereof or the leasing thereof to the Lessee, exclusive, however, of any taxes based on net income or gross receipts or gross income of Lessor. 6. Ownership of Lessor. The equipment shall at all times remain the property of the Lessor. Lessee will at all times protect and defend, at its own cost and expense, the ownership of Lessor against all claims, liens and legal'processes of creditors of Lessee and other persons, and keep the equip- CIlY OF SEWARD. _~A PUFFIN/JOINT USE~EMENT Page 4 . RESOLUTION NO.85- ATTACHMENT "A" . ment free and clear form 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 Lesse'e 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 used excepted. , 7. Equipment to be Identified. Lessee shall. upon the request of Lessor. and at its own expense. firmly affix to the equipment. ina 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. . 8. Possession. Use and Location of Equipment. So long as Lessee sha1 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 I'- location. part with possession or control of the eq~ipment or sell. pledge. mortgage or otherwise encumber the equipment or any part thereof or assign or encumber any interest under this lease. 9. Performance of Obl igations of Lessee by Lessor. If Lessee shall fail duly and promptly to perfom any of Lessee's obl igations under the provisions of pargaraphs 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 . CIn OF SEWARD, _SKA PUFFIN/JOINT US~REEMENT Page 5 . RESOLUTION NO.85- ATTACHMENT "A" . thereby waiving the default, and any expense or liability incurred by Lessor in so doing, together with interest at one (1%> percent per month or the highest lawful rate, whichever is less, until paid by Lessee to Lessor, shall be payable by Lessee upon demand. 10. Inspection. Subject to any applicable laws, regulations and 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 proper maintenance of the equipment. 11. Indemnity. Lessee shall indemnify Lessor and save Lessor harm- less from any and all 1iabil ity, loss, damage, expense, causes or action, suits, claims or judgments arising from injury to person or property . resulting from or based upon the actual or alleged use, operation, delivery or transportation of any or all of the equipment or its location or condition arising from neg1 igent or will fu1 acts or omissions of the Lessee, its employees or agents; and shall, at Lessee's own cost and expense, defend any and all suits which may be brought against Lessor, either alone or in conjunction 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 recovered against Lessor in any such action or actions, provided, however, that Lessor shall give Lessee written notice of any such claim or demand. 12. AssiQnment. This lease and all rights of Lessor hereunder shall be assignable by Lessor without Lessee's consent, but Lessee shall not be ob1 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 interest hereunder or enter into any sublease with respect to the equipment covered hereby. . . . " CITY OF SEWARD, ~A PUFFIN/JOINT USEBEEMENT Page 6 . RESOLUTION NO.85- ATTACHMENT "A" 13. Default. This lease shall be breached if: (a) 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; (b) Lessee shall cease to do business ~s a going concern; (c) A petition is filed by or against Lessee under the Bankruptcy Act or any amendment thereto (including a petition for reorganization or an arrangement); or (d) 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) the equipment shall, upon Lessor's demand, forthwith be delivered 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 app licab 1 e 1 aw so to do. Lessee hereby expressly waives all further rights to possession of the equipment and all claims for injuries suffered through or caused by such repossession. In the event of a breach of this lease, Lessor, at its option, may enforce by appropriate legal proceedings specific performance of the applicable 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 CITY OF SEWARD. ~SKA PUFFIN/JOINT US~EMENT Page 7 . RESOLUTION NO.85- ATTACHMENT "A" . 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 fees at the time it is placed with an attorney. 14. 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 subj ect to the terms and provisions of this lease. 15. Fu rther Assu ranee. 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. 16. Notices. Remedies and Waivers. All notices relating hereto. except as required under paragraph 12. shall be del ivered in person to an administrator of the Lessor or Lessee or shall be mailed registered to Lessor or Lessee at its respective address below shown or at any later address last known to the sender. No remedy of Lessor hereunder shall be exclusive of any other remedy herein or by law provided. but each shall be cumulative and in addition to every other remedy. A waiver of a default shall not be a waiver of any other or a subsequent default. 17. Lease Irrevocability. This lease is irrevocable for the full term hereof as set forth in paragraph 2 hereof. 18. Severability. If any provision hereof or any remedy herein . provided for be invalid under any applicable law. such provision shall be CITY OF SEWARD, ,.sKA PUFFIN/JOINTUSE~EMENT Page 8 . RESOLUTION NO.85- ATTACHMENT "A" . inapplicable and deemed omitted, but the remaining provisions hereof, including the remaining default remedies, shall be given effect in accordance with the manifest intent hereof. 19. Entire Agreement; Waiver. This instrument consititutes the entire agreement between the parties. No suppl ier or agent thereof is authorized to bind Lessor or to waive or modify any term hereof. No waiver by Lessor of any provision hereof shall constitute a waiver of any other matter. 20. Construction. This lease is to be interpreted in accordance with the laws of the state of Alaska. 21. Mod i ficat ion. The terms, covenants and conditions of this lease may be mOdified-only by the written agreement of all parties hereto. . 22. Operational Authority. The parties understand and Lessee warrants that Lessee has full operational authority from the Federal Communications Commission to operate an FM Public Radio translator within the City of Se~ard and within the terms set forth in this Joint Use of Equipment Lease. IN WITNESS WHEREOF, Lessor and Lessee have executed this Joint use of Equipment Lease. LESSOR: LESSEE: CITY OF SEWARD, ALASKA P. O. Box 167 Seward, Alaska 99664 PUFFIN PUBLIC BROADCASTING, INC. P.O. Box 396 Seward, Alaska 99664 . By: RONALD A. GARZINI, City Manager By . CITY OF SEWARD, ~A PUFFIN/JOINT USE~EMENT Page 9 . RESOLUTION NO.85- ATTACHMENT "A" . ATTEST: APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL AND BRUNDIN, Attorneys for the City of Seward, Alaska Linda S. Murphy, City Clerk Fred B. Arvidson, City Attorney (City Seal) STATE OF ALASKA ) ) ss THIRD JUDICIAL DISTRICT ) . THIS IS TO CERTIFY that, on the day of , 1985, before me, the undersigned, a Notary Publ ic in and for the State of Al aska, duly commissioned and sworn as such, personally appeared RONALD A. GARZINI, known to me and to me known to be the City Manager of the City of Seward, Alaska, and acknowledged to me that the foregoing instrument was executed by him in his official corporate municipal capacity, and that he executed the same pursuant to the authorization of the City Council of the City of Seward, Alaska; that the same was executed as the free and voluntary act and deed of the municipal corporate seal of said municipality. 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: STATE OF ALASKA ) ) ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of 1985, before me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn as such, personally appeared lawful agent for PUFFIN PUBLIC BROADCASTING, INC., known to me and to me known to be the person who executed the foregoing instrument for and on behalf of PUFFIN PUBLIC BROADCASTING, INC., ,and who acknowledged that he signed the same freely and voluntarily for the uses and purposes therein contained. , . CITY OF SEWARD, ~KA PUFFIN/JOINT USE~EMENT Page 10 . RESOLUTION NO.85- ATTACHMENT "A" . 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 . .