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HomeMy WebLinkAboutRes1983-043 . . . It - 07/12/83 KTM:ktm CITY OF SEWARD, ALASKA RESOLUTION NO, 83-43 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING A LEASE AGREEMENT WITH RESURRECTION BAY ENTERTAINMENT TELEVISION, INC. WHEREAS, Gary L. Ferguson, President of Resurrection Bay Enter- tainment Television, Inc, (RBETV) has submitted a proposal to the Seward City Council to lease the City's satellite receiving station for the purpose of incorporating in and operating a pay television station; and WHEREAS, the City has had a cordial and mutually benficial relationship with RBETV during the past year; and WHEREAS, RBETV has been serving the Seward area with a single channel low power UHF television station for the past year to the satisfaction of the Seward viewers; and WHEREAS, the City Council solicited comments from the citizens of Seward at public hearings conducted for the purpose of discussing said lease with RBETV; and WHEREAS, the Seward City Council finds it in the public interest to continue its relationship with RBETV through 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 I. The City Manager of the City of Seward is hereby authorized to execute the lease agreement (Attachment A) which is attached and incorporated herein as a part of this resolution, Section 2. This resolution shall take effect August 25, 1983. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 25 day of July , 1983, SEWARD, ALASKA AYES: NOES: ABSENT: Burgess, Cripps, Gillespie, Meehan and Swartz None O'Brien and Wilson . . . It City of Seward, Resolution No, Page 2 Alaska 83-43 ATTEST: (City - APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN Attorneys for the City of Seward, Alaska ~u'J 11/ ti/Wf~ Fred B. Arvidson, City Attorney II ~ ,. j ;~ J ;j ,: .~ " ., , . ;. f' ~ " h 1-' ., JOINT USE OF EQUIPMENT LEASE THIS AGREEMENT, made this day 0 f , 1983, bv and between the CITY OF SEWARD ("Lessor" herein) and GARY L. FERGUSON, d/b/ a/ RESURRECTION BAY ENTERTAINMENT TELEVISION, INC. ("Les- seell herein). \.JHEREAS, it is in the public interest to provide to the citizenry of the City of Seward the accessibility to pay television; and WHEREAS, Gary L. Ferguson, d/b/a/ Resurrection Bay Entertain- ment Television, Inc., has been granted a low power television trans- lator license for service in the City of Seward by the Federal Communi- cations Commission on June 9, 1983, a copy of which is attached; and WHEREAS, Gary L. Ferguson, d/b/a/ Resurrection Bay Entertain- ment Television, Inc., has requested of the City of Seward joint use of its satellite receiving station to provide low power television service '. . ;~, on Channel 17 to the citizenry of the City of Seward. WIT N E SSE T H: 1. Lease. Lessor hereby leases to Lessee, and Lessee hereby hires and takes from Lessor, the personal property described on the attached Schedule "A" (referred to herein as "equipment"). 2 . Term. This lease is for the term of one (1) year. commencing July 15, 1983 and ending July 15, 1984. 3. Rentals. Lessee agrees to pay to Lessor or the assignee i i i (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/100 DOLLARS ($150.00). The first monthly installment of rent shall become due on July 15, 1983, and the remaining payments shall, unless accelerated as herein provided. become due on the first day of each successive month thereafter. All rent shall be paid without notice or demand and without abatement, deductions or setoff of any amount whatsoever at: 1 <1 'J ~.; ;.: 1 oj "',' OJ . ,j . RBETV /JOINT USE AGREEMENT City of Seward PO Box 167 Seward, AK 99664 ATTN: City Clerk 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 Commis- sian regulates low power television service. However, the Lessor prohibits the use of the equipment for the broadcast of obscene material and lot teries. 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 bv 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 IN THE EQUIPMENT, or that the equipment will satisfy the requirements of any law. rule. specification or contract which provides for specific machinery or operators. or " i special methods. No defect or unfitness of the equipment shall relieve Lessee of the obligation to pay rent. or any other obligation 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 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 con- nection 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 ~ppear, and public 2 .:. '1 ~ .' ; ,j ~ :::/ ~ . ,}' . RBETV/JOINT USE AGREEMENT liability insurance including Lessor as an insured, in amounts satisfac- tory to Lessor; and (d) deliver to Lessor evidence of such insurance coverage. 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 and delegate Lessor' 5 duties to such persons or entities as Lessor sees fit in the exercise of Lessor's discretion. 6. Destruction of Equipment. If any equipment is totally destroyed, the liability of Lessee to pay rent therefore may be dis- charged 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. 7. Payment of 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, 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 as additional rent shall 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, if required) levied or assessed against and paid by the Lessor on account of its ownership 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 3 r' ~ " '1 ~ ~~ a j '- " . RBETV/JOINT USE AGREEMENT the earnings arising therefrom9 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 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 equipment free and clear from all such claims, liens and processes. The equipment is and shall remain personal proper- ty and not part of any real estate. Upon the expiration or termination of this lease. Lessee at Lessee's sole expense shall return the equip- ment unencumbered to Lessor and in the same condition as when received by Lessee, reasonable wear and tear resulting from authorized use excepted. 9. Equipment to be Identified. Lessee shall, upon the request of Lessor, and at its own expense, firmly affix to the equip- ment, in a conspicuous place, such a decal or metal plate as shall be , ~i- 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 and 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. Performance of ObliRations of Lessee by Lessor. If Lessee shall fail duly and promptly to perform any of Lessee's obliga- tions under the provisions of paragraphs 6, 7 and 8 or 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 4 ~ " ., J '~ 'J 1,1 ~ :I :j . .".i " . , ..-1 ., . RBETV/JOlNT USE AGREEMENT expense or liability incurred by Lessor in so doing, together with interest at one percent (1%) 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. 12. 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 exis- tenee, condition and the proper maintenance of the equipment. 13. Indemnity. Lessee shall indemnify Lessor and save Lessor harmless from any and all liability, 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, opera- tion, delivery or transportation of any or all of the equipment or its location or condition; and shall, at Lessee I s own cost and expense, defend any and all suits which may be brought against Lessor, either II I 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 I ,! actions, provided, however, that Lessor shall give Lessee written notice I, Ii II of any such claim or demand. 14. Assi~nment. This lease and all rights of Lessor here- Ij under shall be assignable by Lessor without Lessee's consent, but Lessee ;i ,I shall not be obligated to any assignee of Lessor except after written " i: i, notice of such assignment sent by regular mail from Lessor. Lessee shall not assign this lease or its interests hereunder or enter into any I il " I, I' " I I, I, Ii l' II ii Ii I 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; ,i 5 ;" " ,i ~: j ~ "j ~~ II J ~ ~ . f r RBETV/JOINT USE AGREEMENT (c) Lessee shall cease to do business as a going con- cern; (d) 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 (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 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 Ii II II equipment, disconnecting and separating all thereof from any other property and using all force necessary or permitted by applicable law 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. 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 Equipmentll); provided, however, that any statute providing a lesser amount of damages shall control, if ii I: :! :1 1, I II " ii ,I Ii il II II I '" 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 after Lessor receives possession of the equipment or any rental payments received under a new lease made within such sixty (60) " 6 .1 . .; ~ ~; J ~ I J '; ~ iJ o " .., !! ", RBETV/JOINT USE AGREEMENT days for the period prior to the expiration of this lease~ less Lessor's expenses of taking possession, storage, re-conditioning 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 entitling 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 lease9 Lessor, at its option, may enforce by appropriate legal proceedings specific performance of ':he 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 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 only 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 13 shall be delivered in person to an administrator of the Lessor or Lessee or shall be mailed .1' \. ~ " j i~ ) ;i " :i ] ~ . r. ~f " .' RBETV/JOINT USE AGREEMENT 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 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. 19. Lease Irrevocability. This lease is irrevocable for the full term hereof as set forth in paragraph 2 hereof, and the rent shall not abate by reason of termination of Lessee I s right of possession and/or the taking of possession by the Lessor or for any other reason, and delinquent installments of rent shall bear interest at the highest lawful contract rate or one percent (1%) per month, whichever be the lesser. 20. If any provision hereof or any remedy Severability. herein provided for be invalid under any applicable law, such provision shall be inapplicable and deemed omitted but the remaining provisions 'I !: ., ~ i ,. hereof. including the remaining default remedies, shall be given effect in accordance with the manifest intent hereof. 21. Entire AKreement; Waiver. This instrument constitutes the entire agreement between the parties. No supplier 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. 22. Construction. This lease is to be interpreted in accor- 11 dance with the laws of the State of Alaska. 23. Modification. The terms, covenants and conditions of this lease may be modified only by the written agreement of all parties hereto. 24. 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 within the City of Seward and within the terms set forth in this Joint Use of Equipment Lease. 8 ~ .' ~j '4 ) ~ 1, 1 . ;': RBETV/JOINT USE AGREEMENT Joint Use of Equipment Lease. IN WITNESS WHEREOF, the Lessor and Lessee have executed this that on this day of the undersigned, a Notary Public in and for the State and sworn as such, personally appeared City Manager of the City of Seward, Alaska, known I 0 me an to me known to be the person who executed the foregoing instrument on behalf of the City of Seward, and who acknow- ledged that he signed the same freely and voluntarily for the uses and purposes therein contained. LESSOR: THE CITY OF SEWARD. ALASKA Bv: ~(ll1cf~ ATTEST: . ., (City Seal) STATE OF ALASKA ., I THIRD JUDICIAL DISTRICT :; .1 'I I' ! :: 1983. of " I LESSEE: GARY L. FERGUSON d/b/a/ RESURRECTION BAY ENTER- TAINMENT TELEVISION. INC. /1 ------...-~ .~/ .:....'f.I (<.._ L-"'/f... By: . " c-. APPROVED AS TO FORM: HUGHES. THORSNESS, GANTZ, POWELL AND BRUNDIN, Attorneys for the City of Seward, Alaska ~.J 1]/ Lk-. Fred B. Arvidson City Attorney ss. i: IN WITNESS WHEREOF, I have hereunto set my hand and seal on the day and year first hereinabove written. 9 :j :, ~, ~ ~, ! " . . ,.-: RBETV/JOINT USE AGREEMENT STATE OF ALASKA ss THIRD JUDICIAL DISTRICT 3 THIS IS TO CERT1Fi that on this _.1 day of I I': 198K, before me, the undersigned, a Notary Public in and for the State of A.laska, duly c.ommissioned and sworn as such, personally appeared ,r\ iI I{ I \;- L'" (~ !~"-! , known to me and to me known to be the person who executed the foregoing instrument, 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. , :: 1..--- \ ~ '1 . i l. /v. . U NOTARY PUBLIC in and for Alaska My Commission Expires: / i II '. 7 i' I, , I! ., ;1 :1 I I 10 RBETV/JOINT USE AGREEMENT . SCHEDULE A DESCRIPTION OF PERSONAL PROPERTY LEASED (Paragraph 1) " Joint use of a portion of the City of Seward I s satellite receiving station for the purpose of operating a pay TV station known as Channel t7. Joint use ot a portion of the City of Seward I s equipment building. ;l . . II