HomeMy WebLinkAboutRes1982-062
08/19/82
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CITY OF SEWARD, ALASKA
RESOLUTION NO. 82-62
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 pur-
pose of operating a pay television station; and
WHEREAS, the City Council solicited comments from the citizens
of Seward at public hearings conducted for the purpose of duscussing said
lease with RBETV; and
WHEREAS, following these public hearings, the City Council, by
majority vote at its regular meeting of May 24, 1982, instructed the admin-
istration to negotiate a lease with RBETV; and
WHEREAS, Gary L. Ferguson has executed a lease agreement (Attach-
ment A) with the City of Seward;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, that:
Section 1. The administration 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 immediately upon its
adoption.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, this 23 day of August , 1982.
AYES:
NOES:
ABSENT:
BURGESS, CRIPPS, GILLESPIE, O'BRIEN, SORIANO AND SWARTZ
NONE
MEEHAN
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City of Seward,
Resolution No.
Page 2
Alaska
82-62
ATTEST:
(City Seal)
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APPROVED AS TO FORM:
HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN
Attorneys for the City of Seward, Alaska
-:(~ (J/ Ii+..c-
Fred B. Arvidson, City Attorney
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HUGHES THQRSHES$ II
GANTZPOWELLa BRUNDIN
ATTOIIINE;Y$ AT LAW
50. WESTTHIAD,lVUWl
ANCHORAGE. AK 99501
(901)274.7522
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JOINT USE OF EQUIPMENT LEASE
THIS AGREEMENT, made this
23
day of August, 1982, by
herein)
and GARY L.
between
the
CITY
OF
SEWARD
( "Lessor"
TELEVISION,
INC.
FERGUSON d/b/ a
RESURRECTION
BAY
ENTERTAINMENT
("Lessee"
herein) .
WHEREAS,
it is in the public interest to provide to the
citizenry of the City of Seward the accessibility to pay televi-
sian: and
WHEREAS, Gary L. Ferguson d/b/a Resurrection Bay Enter-
tainment Television, Inc. has been granted a low power television
translator license Eor service
in
the City of Seward by the Fed-
1982, a
eral Communications Commission on
copy of which attached; and
WHEREAS, Gary L. Ferguson d/b/a Resurrection Bay Enter-
tainment 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 lIAII (referred to herein as
Uequipmentn) .
2. Term. This lease is for the term of one (1) year,
commencing on July 15, 1982 and ending July 15, 1983.
3. Rentals. Lessee agrees to pay to Lessor or its
assignee (hereinafter collectively called llLessor, II except where
the context otherwise indicates) for said term or any portion
thereof an aggregate monthly rental of ONE HUNDRED FIFTY AND
NO/lOO DOLLARS ($150.00).
The first monthly installment of rent
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HUGHES THORSNESS I
GANTZ POWELL,SRUNDIN
"'TTORN~S"'Tl.AW I'
50' Wl$T TH1~D AVlNI,/[ I
ANCHORAGE. .ilK 99liOl
(90712:74.7522
shall become due on July 15, 1982, 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:
City of Seward
Box 167
Seward, AK 99664
A TTN: 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
Communications 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 recep-
tion or broadcast of the Lessor's VHF stations.
If interference
develops, this lease is null and void.
5. No Warranties by Lessor: Maintenance, Compliance
with Laws and Insurance. Lessee hereby acknowledges that Lessor
is not the manufacturer of the equipment, nor manufacturer IS
agent, and that LESSOR MAKES NO WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, DESIGN OR CONDI-
TION, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS 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, spec i-
fication or contract 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
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1\ any other obligation under this lease, to Lessor. No oral agree-
ment guaranty, promise, condition, representation or warranty nor
any oral modification hereof shall be binding. All prior conver-
sations, 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
!1 respect to toe use,
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maintenance and
operation of the equipment;
(c) maintain at all times property damage,
fire, theft, and com-
prehensive insurance for the full
insurable value of the equip-
ment,
in companies
satisfactory to Lessor,
protecting Lessor 1 s
interest as it may appear, and public liability insurance includ-
ing Lessor as an insured,
in amounts satisfactory to Lessor;
(d)
deliver to Lessor evidence of such insurance coverage.
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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's duties to such
persons or entities as Lessor sees fit in the exercise of Les-
sor's discretion.
6. Destruction 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,
HUGHES THORSNESS
GI.NU POWELL. BRUNDIIi
....TTO~NI!Y5....T LA"...
SOl WEST THIIlO AV[NU[
I.NC\olORll.GE. A.1t 9ll!\oCI
(907)274.7522
the total or partial destruction of any equipment, or total or
partial loss of use or possession thereof by Lessee, shall not
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HUGHES THORSNESS I
GA~~:~:"EyLSL~~~~OIN !
~OtwnTTH1RDAV!MU!
ANCHOR"GE. AK 99501
(90712.74.1522
release or relieve Lessee from the duty to pay the rent herein
i, provided.
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Lessor shall not be obligated to undertake, by litiga-
ticn or otherwise,
the collection of any claim against any person
for loss or damage of the equipment.
7.
of
by Lessee.
During
Payment
Taxes
the
term of
this lease,
Lessee shall,
in addition to the rent provided herein
to be paid,
promptly pay all taxes,
assessment and other govern-
mental 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
to
its purchase of the equipment),
respect
and
other
(including
assessment
governmental
charges
fees
for
titling and registration of the equipment,
if required)
levied or
assessed against and paid by the Lessor on account of its owner-
ship of the equipment or any part thereof, or the use or opera-
tion 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 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 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.
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HUGHES THORSNESS
GANTZ POWELL! BRUHDIN
ATTORN"VS AT LA.W
$0' WEST THIRO"'V~NU(
ANCHORAGE. AK 99501
e90712:14-7522.
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9.
Equipment to be Identified.
Lessee shall, upon the
request of
Lessor. and at its own expense. firmly affix to the
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if equipment..
in a conspicuous place, such a decal or metal plate as
equipment,
shall be supplied by Lessor showing Lessor, or Lessor's ~ssignee
of
such
the
owner
and Lessor
assigned} ,
be
as
(if
this
lease
Lessee shall not affix any signs, decals or labels to
the equipment.
to. 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.
'!'he
equipment shall be used in the lawful business of Lessee and
shall be kept at Seward, ~laska.
Lessee shall not, without Les-
sorls prior written consent, remove the equipment from such loca-
tion, 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 Obligations of Lessee by Lessor. If
Lessee shall fail duly and promptly to perform any of Lessee' s
obligations under the provisions of paragraphs 6, 7 and 8 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 percent (l%) 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, regu-
lations 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 the proper maintenance of
the equipment.
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HUGHES THQASNESS II
GANTZPOWELLABRUNDIN!
ATTOP'tNI!;YS AT LAW
$0' WfST HIIRll"'V~NUE
ANCHORAGE. AI( 99501
(907) 274.7~jz2
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13. Indemnity.
Lessee shall indemnify Lessor and save
damage,
liability,
loss,
from any and all
ex-
harmless
pense,
causes of 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
location or condition;
and
any or all
of
the equipment or its
shall, at Lessee's own cost and expense, defend any and all suits
~hich may be brought against Lessor, either alone or in con junc-
liability
or
claim or claims.
such
tion wi th
others,
upon any
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.
of
rights
Lessor
14. 1\.ssiqnment.
This
lease
and
all
hereunder shall be assignable by Lessor without Lessee's consent,
but l.essee shall not be obligated to any assignee of Lessor ex-
cept after written notice of such assignment sent by regular mail
from l.essor. Lessee shall not assign this lease or its interests
! hereunder or enter into any sublease with respect to the equip-
ment 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;
(e) Lessee shall cease to do business as a going
concern;
(d) 1\. petition is filed by or against Lessee under
the Bankruptcy Act or any amendment thereto (including a petition
for reorganization or an arrangement); or
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HUGHES THOR5NESS II
GANTZPOWELLtl: BRUNPIN
ATTORNlEYS AT LAW ,
509 WESTTMIRP......UIUE I
ANCHORAGE. Ale: 99501
{90n 2U.7522
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(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 I 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 be-
lieved 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 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 posses-
sian, 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 term of
this lease after such taking of possession (hereinafter called
"Unexpired Rentals") and the then aggregate rental value of all
equipment for the unexpired original term of this lease (herein-
after called "unexpired Rental Value of Equipment") 1 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 prejuoice 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
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after Lessor receives possession of the equipment or any rental
payments received under a new lease made within such sixty (60)
days for the period prior to the expiration of this lease. less
Lessor's expenses of taking possession, storage, re-connitioning
and sale or re-leasing r 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.
"rhe 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 equip-
ment.
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 of the equip-
ment, Lessee shall pay all expenses incurred by Lessor in exer-
cising or attempting to exercise rights, powers and remedies
herein conferred or not or nereafter 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
HUGHES THQRSNESS I
GA~:~=~:l!:EyL;~~R~~DIN SUbject to the terms and provisions of this lease.
501 W~ST nU~D "'~ElllJE I
ANCHORAGE. AK 99501
1907) 274-7522
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HUGHES THORSNE$S
GA~~:~:l[EyL~~~R~~DIH I,
50'WEHTHIRDAVENUE I
ANCHORAGE> Ale 19501
(9011214_1511 I
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17. Further Assurance.
Lessee shall execute and de-
liver to Lessor, upon Lessor' 5 request, such instruments and
assurances as Lessor deems necessary or advisable for the confir-
mation or perfection of this lease and Lessor's rights hereunder.
18. Notices, Remedies and Waivers.
All notices relat-
ing hereto except as required under paragraph 13 shall be deliv-
ered 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
other remedy herein or by law provided, but each shall be cumula-
ti ve and in addition to every other remedy.
A waiver of a de-
fault shall not be a waiver of any other or a subsequent default.
This lease is irrevocable
19. Lease Irrevocability_
for the full term hereof as set forth in paragraph 2 hereof, and
the rent shall not abate by reason of termination of Lessee IS
eight of possession and/or the taking of possession by the Lessor
or for any other re..rason, and delinquent installments of cent
shall bear interest at the highest lawful contract rate or one
percent (1%) per month, whichever be the lesser.
20. Severability.
provision hereof
any
If
or
any
remedy herein provided for be invalid under any applicable law,
such provision shall be 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.
21. Entire hgreement; Waiver. This instrument consti-
tutes 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.
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I Joint use of a portion of the City of Seward's satellite receiv-
ing station for the purpose of operating a pay TV station known
~ as Channel 17.
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SCHEDULE A
DESCRIPTION OF PERSONAL PROPERTY LEASED
( Paragraph 1)
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!\ Joint use of a portion of the City of Seward' s equipment Duild-
Ii ing.
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HUGHES THORSNESS
GANn POWELll'BRUND1N
",TTCoI..ayS /loT l..A.W
50tWE!TTHIRIlAVEltut:
ANCHORAGE. AI( 99501
\9(1) 274.7522
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22. Construction. This lease is to be interpreted in
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accordance 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.
IN WITNESS WHEREOF, the Lessor and Lessee have executed
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this Joint Use of Equipment Lease on the day and year first here-
inabove written.
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LESSOR:
CITY OF SEWARD
By:
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LESSEE:
GARY L. FERGUSON
d/b/a RESURRECTION BAY
ENTERTAINMENT TELEVISION, INC.
'?~d 7~,,-,
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HUGtlES THORSHESS I
GANTZ POWEllaSRUNDIN
ATTORNEYS AT ~w '
501 WEST r~I~D AVENUE I
ANCHORAGE. AK 9i!lOI
(g0112,74-1524
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HUGHES THOR$NESS
GANTZ POWELL& BRUN OIN
ATTORNJ;;YS AT LAW
509 WEST TIIIRO AVENUE
ANCHORAGE. AK 99501
(907) 274.752.2
ADDENDU/\ TO JOINT USE OF EQUIPI1ENT LEASE
This Addendum dated this
23
day of August, 1982, is
betIJeen the CITY OF SE~lARD ("Lessor") and GARY L. FERGUSON, d/b/a
RESURRECTION BAY ENTERTAINl1ENT TELEVISION, INC., ("Lessee") "ho
are the parties to that certain Joint Use of Equipment Lease
between Lessor and Lessee to which this Addendum is attached.
The parties understand and Lessee warrants that Lessee
has full opera t ional au thor i ty frol'l the Federal COl'lmun ications
COI1Plission to operate a low power television l!ranslator within
the City of Sew,ard and within the terl'ls set forth in the Joint
Use of Equipl'lent Lease but Lessor recognizes that the final
license has yet to be issued in the na~e of Lessee. Lessee
warrants that it has made application therefore and will forward
to Lessor a true and correct copy of said license when it is
finally approved and received by Lessee.
DA':'ED this
23
day of August, 1982.
LESSOR:
CITY OF SEWARD
By
~
,
Ti tIe Assistant Citv ManalZer
LESSEE:
GARY L. FERGUSON d/b/a
RESURRECTION BAY ENTERTAINMENT
TELEVISION, INC.
/~d//%7n~~/