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HomeMy WebLinkAboutRes1984-067 CITY OF SEWARD, ALASKA RESOLUTION NO. 84-67 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING JOINT USE OF 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 pay television station; and WHEREAS, the City has had a cordial and mutually beneficial relationship with RBETV during the past two years; and WHEREAS, RBETV has been serving the Seward area with a single channel low power UHF television station for the past two years to the satisfaction of Seward viewers; and WHEREAS, the City Council solicited comments from the citizens of Seward at a public hearing conducted for the purpose of discussing said lease with RVETV; and WHEREAS, the Seward City Council finds it in the public interest to continue its relationship with RVETV 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 1. The City Manager of the City of Seward is hereby authorized to execute the Joint Use of Equipment lease agreement (At- tachment "A" which is attached and incorporated herein as a part of this resolution. Section 2. This resolution shall take effect thirty (30) days following adoption. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 25 day of June . 19 84. rClTY OF, SEWAR~, ALASKA /}~,.J U vtfiWa:tt. DONALD W. CRIPP , MAYOR -1- CITY OF SEWARD, ALASKA RESOLUTION NO. 84-67 AYES: NOES: ABSENT: ABSTAIN: CRIPPS, GILLESPIE, HILTON, MEEHAN, SWARTZ, WILLIAMS & WILSON NONE NONE NONE ATTEST: APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL AND BRUNDIN, Attorneys for the City of Seward, Alaska 7~ rJI ~ Fred B. Arvidson, City Attorney (City -2- JOINT USE OF EQUIPMENT LEASE THIS AGREEMENT, made this day of , 1984, by and between the CITY OF SEWARD ("Lessor" herein) and GARY L. FERGUSON, d/b/a RESURRECTION BAY ENTERTAINMENT TELEVISION, INC. (nLes- see" herein). WHEREAS, 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 Entertainment Television, Inc., has been granted a low power television translator 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 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: 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. Joint use of a portion of the City of Seward's Equipment building. 2. Rentals. Lessee agrees to pay to Lessor or the assignee (hereinafter collectively called "Lessorn, 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, 1984, and i' 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 PO BOX 167 SEWARD, ALASKA 99664 ATTN: CITY CLERK RBETV/JOINT USE ~GREEMENT Page 2 3. 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- sion 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. 4. No warranties by Lessor; Maintenance, Compliance with Laws and Insurance. Lessee hereby acknowledges that Lessor is not the manufac- turer 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 special methods. No defect or unfitness of the equipment shall relieve Lessee of the obligation to pay rent, or any other obligation under this I ii 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 Ii 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 appear, and public :i 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 addi~ion, Lessor agrees to test, adjust and service RBETV/JOINT USE o\.GREEMENT Page 3 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. 5. Destruction of Equipment. If any equipment is totally destroyed, the liability of Lessee to pay rent therefore 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. 6. 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 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, exclu- sive, however, of any taxes based on net income or gross receipts or gross income of Lessor. 7. Ownership of Lessor. The equipment shall at all times remain the property of Lessor. Lessee will at all times protect and defend, at is 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 agains t all claims, liens 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 RBETV/JOINT USE ~GREEMENT Page 4 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. 8. Equipment 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. 9. 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. 10. 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 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 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. 11. Inspection. Subj ect 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- tence, conditioh and the proper maintenance of the equipment. 12. 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 RBETV/JOINT USE AGREEMENT Page 5 location or condition; 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. 13. Assignment. This lease and all rights of Lessor hereunder shall be assignable by Lessor without Lessee's consent, but Lessee shall not be obligated 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. 14. 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) Lessee shall cease to do business as a going concern; (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 forth- with; 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, inter into any premises of or under control or juris- diction of Lessee or any agent of Lessee where the equipment may be or by Less or 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 applicable law so to do. Lessee hereby expressly waives all further rights to possession RBETV/JOINT USE 'GREEMENT Page 6 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 Equipmentn); provided, however, that any statute providing a lesser amount of damages shall control, if applica- ble and not subj ect to agreement of the parties. The foregoing pro- visions 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) 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 I, :: Value of Equipment exceeds the Unexpired Rentals, Lessor shall be 'I 11 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 I' 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 applicable covenants of this lease, as well as any other remedy herein provided. ; i Should any legal proceedings be instituted by Lessor to recover any i' 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 RBETV/JOINT USE hGREEMENT Page 7 the lease, including attorney's fees at the time it is placed with an attorney. 15. No Purchase Option. Lessee shall have not option to purchase or otherwise acquire title to or ownership of any of the equipment and shall have only the right to use the sane under and subject to the terms and provisions of this lease. 16. 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. 17. 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 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. 18. 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'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, which ever be the lesser. 19. Severability. If any provision hereof 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. 20. Entire Agreement; Waiver. This instrument constitutes the entire agreement between th~ 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. RBETV/JOINT USE hGREEMENT Page 8 21. Construction. This lease is to be interpreted in accordance with the laws of the State of Alaska. 22. Modification. The terms, 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 sow power television translator within the City of Seward and within the terms set forth in this Joint Use of 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: By: Ronald A Garzini City Manager ATTEST: APPROVED AS TO FORM: HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN, Attorneys for the City of Seward, Alaska Fred B. Arvidson City Attorney Linda S. Murphy City Clerk (City Seal) RBETV/JOINT USE '~REEMENT Page 9 STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of 1984, before me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn as such, personally appeared City Manager of the City of Seward, known to be the person who executed the of the City of Seward, and who acknowl- freely and voluntarily for the uses and i: Alaska, known to me and to me foregoing instrument on behalf edged that he signed the same purposed 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 i' My Commission Expires: i. " STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of I 1984, before me, the undersigned, a Notary Public 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 person who executed the foregoing instrument, and who acknowledged that :' he signed the same freely and voluntarily f or the uses and purposes i 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: