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HomeMy WebLinkAboutRES2023-013 KMPM Radio Equipment Lease Sponsored by: Bower Public Hearing: February 13, 2023 CITY OF SEWARD,ALASKA RESOLUTION 2023-013 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING AN AGREEMENT WITH KENAI MOUNTAIN PUBLIC MEDIA, INC. FOR JOINT USE OF THE CITY'S SATELLITE RECEIVING DISH, EQUIPMENT SHELTER AND TOWER LOCATED ON LOTS 9, 10, AND 11 BLOCK 16, ORIGINAL TOWNSITE OF SEWARD FOR FM RADIO RECEIVING AND TRANSMITTING PURPOSES WHEREAS, Kenai Mountain Public Media, Inc. (KMPM) has requested that the City allow a joint use of its TV/Radio electronics building and tower located on Lots 9, 10 and 11, Block 16, Original Townsite of Seward to provide FM radio service at 91.7 KIBH-FM and 106.1 MHZ to the community; and WHEREAS, in addition to the usage for radio, the equipment will be used for the purpose of transmitting a television signal; and WHEREAS, KMPM has acquired access to a satellite signal and the required Federal Communications Commission(FCC) licensing for the proposed site; and WHEREAS,it is in the public interest to provide the citizenry of the City of Seward the accessibility to commercial radio broadcasting for public service announcements, emergency announcement, news, weather, entertainment and business; and WHEREAS,the City Charter Chapter 12.3 states, "The council shall have power to enter only into contracts which, by the terms thereof, will be fully executed within a period of five years.This limitation shall not apply to contracts concerning interests in real property"; and WHEREAS, the City Council has determined that the use of its electronic satellite receiving dish,equipment shelter and tower by KMPM for the purposes described herein would be in the public interest. NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is authorized to sign the Joint Use Of Equipment Lease Agreement, attached and incorporated herewith by reference, with Kenai Mountain Public Media, Inc.for the use of a portion of City-owned satellite receiving dish,electronics CITY OF SEWARD,ALASKA RESOLUTION 2021-013 building, and tower located on Lots 9, 10 and 11, Block 16,Original Townsite of Seward to provide FM radio service at 91.7 KIBH-FM and 106.1 MHZ to the Seward community. 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 13th day of February, 2023. THE CITY OF SEWARD, ALASKA rd Sue McClure, Mayor AYES: Calhoon,Wells, DeMoss, Finch, Osenga, McClure NOES: None ABSENT: Barnwell ABSTAIN: None ATTEST: Brenda J. Bal10 , M C City Clerk (City SiOjn • .,,r r1 of P� •SII Ioust"- City Council Agenda Statement Meeting Date: February 13, 2023 To: City Council Through: Janette Bower, City Manager Agenda Item: Resolution 2023-013: Approving an Agreement with Kenai Mountain Public Media, Inc. for Joint Use of the City's Satellite Receiving Dish, Equipment Shelter and Tower Located on Lots 9, 10, and 11 Block 16, Original Townsite of Seward For FM Radio Receiving and Transmitting Purposes Background and justification: Kenai Mountain Public Media, Inc has requested to use of the City's Satellite receiving dish, electronic building, equipment rack, and tower located on Lots 9, 10 and 11 Block 16 that provide FM Radio service at 91.7 KIBH-FM and 106.1 MHZ to the Community. This allows accessibility to commercial radio broadcasting for public service announcements, emergency announcements, news, weather, entertainment, and business. Comprehensive and Strategic Plan Consistency Information This legislation is consistent with (citation listed): Comprehensive 3.9 Quality of Life Plan: Strategic Plan: Other: Certification of Funds Total amount of funds listed in this legislation: $ 0 This legislation (✓): X Creates revenue in the amount of: $ 450.00 Quarterly Creates expenditure in amount of: $ Creates a savings in the amount of: $ Has no fiscal impact Funds are (✓): Budgeted Line item(s): x Not budgeted Not applicable Finance Director Signature: �7 Attorney Review,/ Administration Recommendation X Yes X Adopt Resolution Not applicable Other: 330 JOINT USE OF EQUIPMENT LEASE AGREEMENT between CITY OF SEWARD, ALASKA and KENAI MOUNTAINS PUBLIC MEDIA, INC. 332 TABLE OF CONTENTS ARTICLE 1 -EQUIPMENT I 1.1 DESCRIPTION OF EQUIPMENT l 1.2 LESSEE'S RIGHT TO USE 2 1.3 EQUIPMENT ACCEPTED"AS-IS" 2 1.4 PERMITS 2 ARTICLE 2-TERM 2.1 TERM 2 2.2 TERMINATION 2 2.3 NO PURCHASE OPTION 2 ARTICLE 3 RENTAL RATE 3.1 RENTAL RATE 2-3 3.2 LATE PAYMENT CHARGE 3 ARTICLE 4- USE OF EQUIPMENT 4.1 USE OF EQUIPMENT 3 4.2 OBLIGATIONS OF LESSEE 3-4 4.3 NO PREFERENTIAL RIGHTS TO USE PUBLIC FACILITIES 4 4.4 CONDITION OF EQUIPMENT 4 4.5 PAYMENT OF TAXES 4 4.6 OTHER USES 4 ARTICLE 5-INSTALLATION BY LESSEE 5.1 IMPROVEMENTS OF EQUIPMENT 5 5.2 CITY REVIEW OF CONSTRUCTION 5 ARTICLE 6 RETURN OF EQUIPMENT CONDITIONS 5 ARTICLE 7-FORCE MAJEURE 5-6 ARTICLE 8-CITY ACTS OF DEFAULT 6 ARTICLE 9-REMEDIES FOR CITY'S ACTS OF DEFAULT 7 ARTICLE 10 - LESSEE'S ACTS OF DEFAULT 8 ARTICLE I 1 REMEDIES FOR DEFAULT BY LESSEE 9-10 ARTICLE 12 TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 10 ARTICLE 13 SUBLEASE OR ASSIGNMENT 13.1 ASSIGNMENT OF AGREEMENT OF SUBLEASING 10 333 13.2 ASSIGNMENT OF AGREEMENT FOR SECIjRITY 10-11 13.3 ASSIGNMENT BY CITY 11 ARTICLE 14-LESSEE'S DUTY TO DEFEND4NDEMNIFY I 1-12 ARTICLE 15 CITY'S DUTY TO DEFEND/INDEMNIFY 12 ARTICLE 16 INSURANCE 16.1 MINIMUM INSURANCE REQUIREMENTS 12 16.2 SUBROGATION RIGHTS WAIVED 12-13 ARTICLE 17 ARBITRATION 13-14 ARTICLE 18 MAINTENANCE AND REPAIRS 18.1 NONNA/MAINTENANCE 14 18.2 SAFETY ISSUES 14 18.3 COST OF REPAIRS 15 ARTICLE 19 NO WAIVER OR BREACH 15 ARTICLE 20 TIME OF THE ESSENCE 15 ARTICLE 21 -COMPUTATION OF TIME 15 ARTICLE 22- SUCCESSORS IN INTEREST 16 ARTICLE 23 -ENTIRE AGGREEMENT 16 ARTICLE 24-GOVERNING LAW 16 ARTICLE 25 PARTIAL INVALIDITY 16 ARTICLE 26 RELATIONSHIP OF PARTIES 16 ARTICLE 27 INTERPRETATIONS 16 ARTICLE 28 CAPTIONS 17 ARTICLE 29-AMENDMENT 17 ARTICLE 30- NOTICES 17 1 334 JOINT USE OF EQUIPMENT LEASE AGREEMENT This JOINT USE OF. EQUIPMENT LEASE AGREEMENT(the "AGREEMENT")is made by and between the CITY OF SEWARD(the"CITY"),a municipal corporation located in the Kenai Peninsula Borough, State of Alaska and whose mailing address is P.O. Box 167, Seward,Alaska 99664, and KENAI MOUNTAINS PUBLIC MEDIA INC. ("LESSEE"),an Alaskan nonprofit corporation whose mailing address is P.O. Box 816, Seward,Alaska 99664. WHEREAS, Kenai Mountains Public Media, Inc. (KMPM) has requested that the City allow a joint use of its TV/Radio electronics building and tower located on Lots 9, 10 and 11, Block 16, Original Townsite of Seward to provide FM radio service to the community; and WHEREAS,the Seward City Council did,by Resolution 21 X& authorize the City administration to negotiate an agreement with Kenai Mountains Public Media. Inc. ; and WHEREAS,KMPM has acquired access to a satellite signal and the required FCC licensing for the proposed and WHEREAS, it is in the public interest to provide the citizenry of the City of Seward the accessibility to public radio broadcasting for public service announcements, emergency announcement,news,weather,entertainment and business;and WHEREAS,the City Charter Chapter 12.3 limits agreements contracts with no land interest to terms of five(5)years or less;and WHEREAS,the City Council has determined that the use of its electronic satellite receiving dish,equipment shelter and tower byL PM for the purposes described herein would be in the public interest. NOW,THEREFORE,BE ITRESOLVED BYTHE CITY COUNCIL OFTHE CITY OF SEWARD,ALASKA, that: ARTICLE l -EQUIPMENT 1.1 Description of Equipment, The EQUIPMENT is located in the City of Seward, Alaska on Lots 9, 10 and 11, Block 16, Original Townsite of Seward. The EQUIPMENT is described as follows: • City of Seward's 5-meter satellite receiving dish, equipment shelters,equipment rack and tower l 335 • Lessee's current equipment is depicted in the photograph marked Exhibit A 1.2 Lessee's Right to Use. Subject to the provisions of this AGREEMENT, CITY hereby coveys the non-exclusive use of the EQUIPMENT for the full term of this AGREEMENT. The EQUIPMENT shall at all times remain the property of the CITY. LESSEE will at all times protect and defend,at its own cost and expense,the ownersh ip of CITY against all claims,liens and legal processesofcreditorsofLESSEE and oth--r persons, and keep the EQUIPMENT free and clear from all such claims, liens arid processes. The EQUIPMENT is and shall remain personal property and not part of any real estate.Upon the expiration or termination of this AGREEMENT,LESSEE at its sole expense shall return the EQUIPMENT unencumbered to CITY and in the same condition as when received by LESSEE,subject to normal,non-abusive use. 1.3 Equipment. Accepted "As-is". LESSEE acknowledges that it has inspected the EQUIPMENT and accepts the same "as-is" and without reliance on any cxpressf:d or implied representations or warranties of CITY,or agents of CITY, as to the actual physical condition or characteristics thereof, including but not limited to the description)of the EQUIPMENT found in Section 1.1. 1.4 Permits. LESSEE, at its sole cost, shall obtain all local, state and federal permits necessary to the operation of the EQUIPMENT. ARTICLE 2 -TERM 2.1 Term. The term of this AGREEMENT shall be in accordance with CITY authorization Resolution No. 2022-XXX (the "Resolution")and continue in effect for four(4) years, 364 days unless sooner terminated as described in this AGREEMENT. The term shall commence with the effective date of the Resolution, and that date shall be the effecti, e date of this AGREEMENT (the "Effective Date"). This AGREEMENT is not subject to renewal. 2.2 Termination. Either party may cancel this AGREEMENT upon thirty(30)days'written notice to the other. 2.3 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 AGREEMENT. ARTICLE 3- RENTAL RATE 1i Rental Rate. Throughout the term of this AGREEMENT, rental rate for use of the 2 336 EQUIPMENT shall beset atone dollar($1)per year which includes the cost of utilities and use of the EQUIPMENT. Rent shall be payable annually in advance upon the Effective Date of this AGREEMENT and thereafter on or before the 30th day of the October each year during the term of this AGREEMENT. ARTICLE 4- USE OF EQUIPMENT 4.1 Use qf'EQUIPMENT. Use of the EQUIPMENT by LESSEE has been determined by the City Council of CITY to be in the public interest. 4.2 Obligations of Lessee. LESSEE may use the EQUIPMENT provided the following conditions are met: a) The EQUIPMENT is to be completely cleaned and restored to its present condition or better upon termination of this AGREEMENT b) LESSEE agrees to prohibit the use, keeping, storage, or disposal of hazardo-is materials on or near the EQUIPMENT or the land upon which the EQUIPMENT is located. c) LESSEE shall use the EQUIPMENT solely to provide FM radio service to the Seward community. d) LESSEE shall, at its own expense, firmly affix, in a conspicuous place on its equipment, a decal, or metal or plastic plate identifying each piece as belonging to LESSEE. LESSEE shall not affix any other signs, decals or labels to the EQUIPMENT. So long as LESSEE shall not be in default under this lease, LESSEE may possess and use the EQUIPMENT in accordance with this AGREEMENT. e) The EQUIPMENT shall be used in the lawful business of LESSEE and sh0l be kept at Seward, Alaska. LESSEE shall not, without CITY's prior written consent, remove the EQUIPMENT from such location,part with possession or control of the EQUIPMENT or sell, pledge, mortgage or otherwi ie encumber the EQUIPMENT or any part thereof or assign or encumber arty interest under this AGREEMENT. f) LESSEE is solely responsible for the security of all personal property )f LESSEE which LESSEE attaches to or places in or on the EQUIPMENT. 4.3 No Preferential Rights to Use Public Facilities. This AGREEMENT does not grant;o 3 337 LESSEE any exclusive rights to use any public facilities constructed or operated by CITY. LESSEE will be subject to any tariffs, procedures, rules and regulations of CITY concerning the use of such facilities as they may now exist or from time to time be amended,and LESSEE shall not be entitled to any exclusive use. The CITY is not awarding a franchise ormonopoly to LESSEE via this AG REEM ENT since the Federal Communications Commission regulates FM transmission service. 4.4 Non-Interference. LESSEE's use of the EQUIPMENT shall not interfere with the reception or broadcast of CITY or State of Alaska VHF and UHF stations and shall not unreasonably interfere with the transmission signals of any other tenant of CITY. If interference develops, LESSEE shall be responsible for correcting any interference problems generated by LESSEE'S personal property or use of the EQUIPMENT. If LESSEE fails to correct such interference this AGREEMENT shall be null and void whether or not CITY issues a notice of termination. 4.5 Condition oj'EQUIPMENT. LESSEE hereby acknowledges that CITY is not the manufacturer of the EQUIPMENT,nor manufacturer's agent,and that CITY makes no warranty or representation, either express or implied, as to the fitness for arty particular purpose, the quality or capacity of the materials in the EQUIPMENT or workmanship of the EQUIPMENT, or that the EQUIPMENT will satisfy the requirements of any law, rule,specification or contract which provides for specific machinery or operators, a special methods. No defect or unfitness of the EQUIPMENT shall relieve LESSEE of any obligations to CITY under this AGREEMENT. 4.6 No WarrantylIntegration. 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 AGREEMENT or to the EQUIPMENT are integrated herein, and LESSEE has inspected the EQUIPMENT and has satisfied itself that the EQUIPMENT is sufficient for the intended uses by LESSEE. CITY makes no representations or warranties of arty nature with respect to the commercial practicability or accuracy of any information provided by CITY. 4.7 Payment of Taxes. LESSEE will pay all taxes related to its operations of the EQUIPMENT and LESSEE's interest in this AGREEMENT, if any, before such obligations become delinquent; provided, that LESSEE may, in good faith and before such delinquency,contest any such charge or assessment. 4.8 Other Uses. This AGREEMENT shall not preclude the CITY from actively seeking other and additional tenants for space including those who would be in competition with LESSEE or who might be interested in leasing the land or EQUIPMENT should this AGREEMENT be terminated for any reason.. 4 338 ARTICLE 5- INSTALLATION BY LESSEE 5.1 Improvements on Equipment CITY expressly consents to placement of all LESSEE'S personal property currently attached to or placed on the EQUIPMENT. LESSEE shell have the right to erect, maintain, alter, remodel, reconstruct, rebuild, and/or instill improvements on the EQUIPMENT,or to attach or place additional LESSEE personal property in or on the EQUIPMENT subject to the following conditions: a) Prior to any such construction or installation LESSEE shall have submitted plans to CITY for review and approval. b) The cost of any such construction, reconstruction,demolition,or of any change s. alterations or improvements,shall be bome and paid for by LESSEE. c) The EQUIPMENT and the land upon which the EQUIPMENT is located shall at all times be kept free of mechanic's and materialmen's liens_ d) LESSEE shall supply CITY with a copy of all Radio Frequency (RF) and Frequency Inter-modulation studies,equipment plans and specifications prior.o commencement of installation e) CITY may, as contemplated by Alaska Statutes, give notice of noa- responsibility for any improvements constructed or effected by LESSEE on the EQUIPMENT f) LESSEE shall comply with all federal, state and local statutes and regulations with respect to such construction including any required finding by the City Council of Seward that such action is in the public interest. 5.2 City Review of Construction. CITY shall have the right to review initial plans, including those supplied to CITY under Section 5.1 above, and any future chang:s or additions to the EQUIPMENT, by reviewing the design thereof prior to the commencement of installation or modifications. CITY shall have the sole and exclusive right to approve or deny any such proposed construction and installation. ARTICLE 6- RETURN OF EQUIPMENT CONDITIONS Subject to the provisions herein, upon termination of this AGREEMENT for any reason, LESSEE shall return the EQUIPMENT to CITY in the same condition as at the commencement of this AGREEMENT, subject to normal, non-abusive use. 5 339 ARTICLE 7- FORCE MAJEURE In the event either LESSEE or CITY is delayed from performance of any of its obligations under this AGREEMENT, due to acts of God, acts of the enemies of the United States -)f America, sabotage, war, blockade, insurrection, riot, epidemic, fire, flood, explosion, earthquake/tsunami,civil disturbanceor war,the time period wherein such performance is to occur shall be extended by that amount of time necessary to compensate for the delay. ARTICLE 8 -CITY ACTS OF DEFAULT Each of the following shall be a"City Act of Default" under this AGREEMENT and the ternis "acts of default"and "default" shall mean, when they are used in this AGREEMENT, any one or more of the following events: 8,1 Failure by CITY to fulfill,observe or perform any covenants or agreements on its part to be observed or performed under this AGREEMENT for a period of thirty (30)days afterwritten notice specifying such failure,requesting that it be remedied,and stating that it is a notice of default, has been given to CITY by LESSEE; provided, however, that if said default is such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituted by CITY within the applicable period and diligently pursued until the default is corrected. 8.2 Violation by CITY of any applicable laws or regulations of the United States,the State of Alaska,the Kenai Peninsula Borough, or the City of Seward or any conditions of arty permits issued by agencies of the City of Seward,the Kenai Peninsula Borough,the State of Alaska or of the United States Government pursuant to the regulations of such agencies for a period of sixty(60)days after written notice specifying such violation his been given by the agency to CITY; provided, however, if such violation be such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituted by CITY within the applicable period and diligently pursued until the violation is corrected. Furthermore, if CITY shall contest such alleged violation through appropriate judicial or administrative channels, the time period specified herein shall not commence until such proceedings are finally determined, provided such proceedings are diligently pursued. ARTICLE 9- REMEDIES FOR CITY'S ACTS OFDEFAULT 9.1 Whenever an act of default by CITY shall have occurred, and any applicable period fir giving notice and any opportunity to cure shall have expired, LESSEE shall have the following rights and remedies in addition to any rights and remedies that may be given to LESSEE by statute, common law or otherwise: 6 340 a) Withhold payment of any rent otherwise due CITY; b) Refuse to proceed with any of LESSEE's other performance obligations under this AGREEMENT; c) Recover from CITY, whether this AGREEMENT be terminated or not, reasonable attorney's fees and all other expenses incurred by LESSEE toy reason of the default by CITY; and d) Declare this AGREEMENT terminated. 9.2 No expiration or termination of this AGREEMENT shall expire or terminate ally liability or obligation to perform of CITY's which arose prior to the termination -)r expiration except insofar as otherwise agreed to in this AGREEMENT. 93 Each right and remedy of LESSEE provided for in this AGREEMENT shall lie cumulative and shall be in addition to every other right or remedy provided for in this AGREEMENT,now or hereafter existing at law or in equity or by statute or otherwis and the exercise or beginning of the exercise by LESSEE of any one or more of the rights and remedies provided for in this AGREEMENT,now or hereafter existing at law or n equity or by statute or otherwise, shall not preclude the simultaneous or later exercise t,y LESSEE of any or all other rights or remedies provided for in this AGREEMENT,now or thereafter existing at law or in equity or by statute or otherwise. 9.4 No delay or omission to exercise any right or power accruing following an act of defat It shall impair any such right or power or shall be construed to be a waiver thereof, but at.y such right and power may be exercised from time to time and as often as may be deem(d expedient. ARTICLE 10-LESSEE'S ACTS OFDEFAULT Each of the following shall be a"LESSEE Act of Default" under this AGREEMENT ar.d the terns "acts of default" and "default" shall mean, whenever they are used in this AGREEMENT,any one or more of the following events: 10.1 failure by LESSEE to observe,fulfill or perform any covenants, conditions -)r agreements on its part to be observed or performed under this AGREEMENT other than payment of rent for a period of thirty (30) days after written notice specifyir-g such failure,requesting that it be remedied,and stating that it is a notice of default,h:is been given to LESSEE by CITY;provided, however,that ifsaid default is such that it cannot be corrected within the applicable period,it shall not constitute an act of defaL It 7 341 if corrective action is instituted by LESSEE within the applicable period and diligent y pursued until the default is corrected. 10.2 The making by LESSEE of an assignment for the benefit of creditors, the filing of a petition in bankruptcy by LESSEE, the adjudication of LESSEE as insolvent )r bankrupt, the petition or application by LESSEE to any tribunal for any receiver or arty trustee for itself or for any substantial part of its property; or the commencement of any proceeding relating to LESSEE under any bankruptcy, insolvency, reorganization, arrangement or readjustment of debt law or statute or similar law or statute of avy jurisdiction, whether now or hereafter in effect which shall remain undismissed for a period of six(6)months from the date of commencement thereof. 10.3 Violation by LESSEE of any laws or regulations of the United States, or of the State A Alaska, or any conditions of any permits issued by agencies of the City of Seward, the Kenai Peninsula Borough, the State of Alaska or of the United States Government applicable to LESSEE's use of the EQUIPMENT, pursuant to the regulations of such agencies,for a period of sixty(60)days after written notice specifying such violation h.Is been given by the agency charged with the enforcement of such laws, regulations or permits to LESSEE; provided, however, if such violation be such that it cannot be corrected within the applicable period,it shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable period and diligently pursued un-.il the violation is corrected. Furthermore, if LESSEE shall contest such alleged violation through appropriate judicial or administrative channels, the time period specified herein shall not commence until such proceedings are finally determined provided such proceedings are diligently pursued; provided, however, that any such extension of time shall not be effective if the effect of the interim administrative or judicial action is co cause a stoppage, interruption or threat to the activities of any person or entity other than those of LESSEE. 10.4 LESSEE shall cease to do business as a going concern or the FCC license expires or is revoked. 10.5 LESSEE attempts to remove or sell or transfer or encumber or sublet or part with possession of any of the EQUIPMENT. ARTICLE 11-REMEDIES FOR DEFAULT BY LESSEE 11.1 Whenever an act of default by LESSEE shall have occurred, and any applicable period for giving notice and any opportunity to cure shall have expired, CITY shall have the following rights and remedies all in addition to any rights and remedies that may be given to CITY by statute, common law or otherwise: 8 342 a) CITY may distrain for rent due any of LESSEE's personal property which comes into CITY's possession. This remedy shall include the right of CITY to dispose of personal property distrained in any commercially reasonable manner. It shall be conclusively presumed that compliance with the procedures set forth in the Alaska Uniform Commercial Code(AS 45.09.504) with respect to sale of property shall be a commercially reasonable disposal. b) CITY may take possession of the EQUIPMENT and, except for arty personal property of LESSEE which CITY has waived its right to distrain under sub-paragraph 11.1 above, remove all personal property of LESSEE from the EQUIPMENT. Such personal property may be stored in place or may be removed and stored in a public warehouse or elsewhere at the cost of LESSEE all without service of notice or resort to legal process, all of which LESSEE expressly waives. 11.2 In addition to the above, CITY may: a) Declare this AGREEMENT terminated; b) Collect any and all rents due or to become due; c) Recover from LESSEE, whether this AGREEMENT be terminated or not, reasonable attorney's fees and all other expenses incurred by CITY by reason of the breach or default by LESSEE; d) Recover an amount to be due immediately on breach equal to the rent reserved under this AGREEMENT discounted to the date of such breach at the rate of eight percent (S%) per year. If the EQUIPMENT or any part thereof be re-let by CITY for the unexpired term of this AGREEMENT, CITY shall reimburse to LESSEE upon receipt an amount not to exceed the amount received by CITY under this paragraph. 11.3 If LESSEE does not immediately surrender possession of the EQUIPMENT after termination by CITY and upon demand by CITY, CITY may forthwith enter into and upon and repossess the EQUIPMENT and expel LESSEE without being deemed guilty in any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or breach of covenant. 11.4 No expiration or termination of this AGREEMENT shall expire or terminate arty liability or obligation to perform of LESSEE's which arose prior to the termination or expiration except insofar as otherwise agreed to in this AGREEMENT. 9 343 I I.5 Each right and remedy of CITY provided for in this AGREEMENT shall be cumulati—e and shall be in addition to every other right or remedy provided for in this AGREEMENT or now or hereafter existing at law or in equity or by statute or otherwis and the exercise or beginning of the exercise by CITY of any one or more of the rights and remedies provided for in this AGREEMENT or now or hereafter existing at law )r in equity or by statute or otherwise shall not preclude the simultaneous or later exerci;e by CITY of any or all other rights or remedies provided for in this AGREEMENT Jr now or thereafter existing at law, or in equity or by statute or otherwise. 11.6 No delay or omission to exercise any right or power accruing following an act of default shall impair any such right or power or shall be construed to be a waiver thereof,but al�y such right and - power may be exercised from time to time and as often as may be deemi:d expedient. ARTICLE 12-TITLE TO IMPROVEMENTS INSTALLED BY LESSEE Any other provisions of this AGREEMENT to the contrary notwithstanding, LESSEN, upon termination of this AGREEMENT for any reason,may,but need not,promptly remove, in no event later than thirty(30)days from the termination ofthe AGREEMENT,LESSEE's trade fixtures and equipment provided that LESSEE shall repair any damages to the EQUIPMENT caused by such removal. Any equipment not removed shall at sole discretion of CITY, be removed by the CITY at LESSEE's expense or be retained by the CITY .is CITY property. ARTICLE 13- SUBLEASE OR ASSIGNMENT 13.1 Assignment of Agreement or Subleasing. The parties recognize that this AGREEMENT has been determined to be in the public interest by the City Council of CITY for the reasons set forth in the Resolution. LESSEE may not assign or sublease this AGREEMENT or any part of the EQUIPMENT. 13.2 Assignment of Agreement for Security. Notwithstanding Section 13.1 above, LESSEE may assign,encumber or mortgage its interest in this AGREEMENT, by deed of trust or other security instrument, to an institutional lender ("Lender") f.)r development of LESSEE's broadcasting operations on the EQUIPMENT,provided that Lender shall be subject to all obligations of LESSEE under the terms of this AGREEMENT upon foreclosure. CITY shall furnish Lender, at the address provided to CITY by Lender in writing, with notice of any default or breach of LESSEE under this AGREEMENT. Lender shall have the right (without being required to do so and without thereby assuming the obligations of LESSEE under th is AGREEMENT)tomakc: good such default or breach within thirty (30) days aft:r written notice specifying such breach. Notwithstanding the provisions of Article : 1 above, no"Lessee Act of Default" shall exist until expiration of thirty (30)days after such notice is furnished to Lender; provided 10 344 a) If Lender, with respect to any default or breach other than a failure to make ally required payment of rent or other money, shall undertake within thirty (30) days after notice to cure the default or breach and shall diligently and in good faith proceed to do so, CITY may not terminate this AGREEMENT or reset the EQUIPMENT unless Lender fails to cure the default or breach within a reasonable period of time thereafter; and b) If the default for which notice is given is a breach of Section 10.3, CITY sh,,11 not exercise any of the remedies afforded to it under Article 1 I above so long as LESSEE or Lender remains in possession of the EQUIPMENT ar-d satisfies LESSEE's obligations under the terms of this AGREEMENT.Upc n foreclosure or other assertion of its security interest, Lender may furth:r assign, transfer, or dispose of its interests, provided that any subseque-it assignee, purchaser or transferee shall remain bound by each and every ter.n of this AGREEMENT. 13.3 Assignment by City. This AGREEMENT and all rights of CITY hereunder shall be assignable by CITY without LESSEE's consent,but LESSEE shall not be obligated to any assignee of CITY, except after written notice of such assignment sent by regular mail from CITY. ARTICLE 14- LESSEE'S DUTY TO DEFENDANDEMNIFY LESSEE shall defend, indemnify and hold the CITY harmless from any and all liability and loss of any kind, arising out of or resulting from actual or alleged use of the EQUIPMENT by LESSEE, its agents, employees, contractors or the public, except for damages arising from the sole gross negligence or willful acts or omissions of CITY, its agents, employees or contractors. LESSEE shall, at LESSEE's own cost and expense, defend any and all suits or claims which may be brought against CITY, either alone or in conjunction with others, upon any such liability or claim and shall reimburse the CITY's costs and expenses incurred in negotiating, settling, defending or otherwise protecting the CITY against such claims. If any action or proceeding is brought against LESSEE by reason of any such occurrence, LESSEE shall notify CITY promptly in writing of such action or proceeding. LESSEE shall satisfy, pay and discharge any and all judgments and fines that may be recovered against CITY in any such action, provided, however, that CITY shall give LESSEE written notice of any such claim or demand. ARTICLE 15- CITY'S DUTY TO DEFENDIINDEMNIFY 11 345 CITY shall defend, indemnify, and hold LESSEE harmless from any and all liability )r claims for damages,including personal injuries,death and property damage arising from the sole gross negligence or willful acts or omissions of CITY, its agents, employees, -rr contractors or from the condition of the EQUIPMENT prior to the Effective Date. ARTICLE 16-INSURANCE 16.1 Minimum Insurance Requirements. Prior to commencement of the AGREEMENT Term,LESSEE shall procure and maintain,at its sole cost and expense, commercial general liability insurance, with limits of liability of ONE MILLION DOLLARS ($1,000,000) for all injuries and/or deaths resulting to any one person and ONE MILLION DOLLARS ($1,000,000) limit from any one occurrence, and maintain at all times property damage, fire, and comprehensive insurance for the full insurabce value of LESSEE's equipment. Coverage under such insurance shall also include explosion,collapse and underground property damage hazards. Such insurance shell include contractual liability.The minimum amounts and types of insurance provided by LESSEE shall be subject to revision in accordance with standard insurance practices, in order to provide continuously throughout the term of this AGREEMENT, a level A protection consonant with good business practice and accepted standards in the industry. All insurance policies shall naive the city as insured and provide for thirty(30)da)s' notice of cancellation and/or material change to be sent to CITY at the addreis designated in ARTICLE 30 of this AGREEMENT.All such policies shall be written by insurance companies legally authorized or licensed to do business in the State of Alaska, and acceptable to CITY(Best's Rating B+or better). LESSEE shall furnish CITY,certificates evidencing that it has procured the insurance required herein prier to LESSEE' s possession and operation of the EQUIPMENT. Nothing here n contained shall prevent LESSEE or CITY from placing and maintaining at CITY's or LESSEE's own individual cost and expense,additional or other insurance as may be desired. 16.2 Subrogation Rights Waived. All of the insurance policies required above as well as any other insurance carried by LESSEE or CITY shall provide that the insurers waive their rights of subrogation against each other and their respective officers,servants,agents )r employees. LESSEE and CITY further agree to waive and agree to have their insurers waive any rights of subrogation (whether by loan receipts, equitable assignment )r otherwise), with respect to deductibles under such policies and with respect to damage to EQUIPMENT including the loss of use thereof, whether insured or not. LESSEE shall also name CITY as an additional insured on the general liability insurance polii y maintained by LESSEE as required above,excluding coverage for claims resulting from CITY's sole negligence. 12 346 ARTICLE 17 — DISPUTE RESOLUTION 17.1 Disputes between the parties with respect to the performance of this AGREEMENT that cannot be resolved by the parties,shall be resolved exclusively in the courts for the State of Alaska Third Judicial District. ARTICLE 18- MAINTENANCE AND REPAIRS 18.1 Maintenance. During the entire term of this AGREEMENT, LESSEE shall, at its sole cost, risk and expense, maintain the EQUIPMENT, including any improvements placed thereon by LESSEE, in as good condition as received or installed by LESSEE,subject to normal,non-abusive use. LESSEE shall,at its ova n cost and expense, (a)pay all charges and expenses in connection with the day-to-&y 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. LESSEE shall maintain in first class condition at all times all fire, pollution and other protective equipment, if any are placed on the EQUIPMENT. LESSEE agrees to test, adjust and service the EQUIPMENT, if needed. 18.2 Cost of Repairs. If any facility or service provided by CITY to the EQUIPMENT shall become inadequate due to changes in local, state or federal laws or regulations or should EQUIPMENT require updating or improvement by reason of such a change LESSEE shall either construct such improvements at its own cost or reimburse CITY for such wo-k at the option of CITY. ARTICLE 19 NO WAIVER OF BREACH No failure by either CITY or LESSEE to insist upon the strict performance by the other of any term, covenant or condition of this AGREEMENT or to exercise any right or remec'y consequent upon a breach thereof, shall constitute a waiver of any such breach or of such terms, covenants or conditions. No waiver of any breach shall affect or alter this AGREEMENT, but each and every term, covenant and condition of this AGREEMENT shall continue in full force and effect with respect to any other then existing or subsequent breach. ARTICLE 20- TIME OF THE ESSENCE Time is of the essence of this AGREEMENT and/or each provision. ARTICLE 21-COMPUTATION OF TIME 13 347 The time in which any act provided by this AGREEMENT is to be done by shall lie computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday or a holiday,and then it is also excluded. ARTICLE 22- SUCCESSORS IN INTEREST Each and all of the terms, covenants and conditions in this AGREEMENT shall inure o the benefit of and shall be binding upon the successors in interest of CITY and LESSEE. ARTICLE 23-ENTIRE AGREEMENT This AGREEMENT contains the entire agreement of the parties with respect to the matters covered by this AGREEMENT, and no other agreement, statement or promise made by any party which is not contained in this AGREEMENT shall be binding or valid. ARTICLE 24- GOVERNING LAW This AGREEMENT shall be governed by,construed and enforced in accordance with the la%,s of the State of Alaska.The terms of this AGREEMENT are subject in all respects to the Chart sr and Code of Ordinances of CITY in effect on the date of this AGREEMENT,including without limitation, Chapter 7.05 of the Seward City Code. ARTICLE 25- PARTIAL INVALIDITY If any provision of this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. ARTICLE 26- RELATIONSHIP OF PARTIES Nothing contained in this AGREEMENT shall be deemed or construed by the parties or by any third person to create the relationship of employer and employee or of principal and agent or of partnership or of joint venture or of any association between CITY and LESSEE; and neither the method of computation of rent, nor any other provisions contained in this AGREEMENT nor any acts of the parties, shall be deemed to create any relationship between CITY and LESSEE other than the relationship of lessee and CITY. 14 348 ARTICLE 27 - INTERPRETATION The language in all parts of this AGREEMENT shall in all cases be simply construed according to its fair meaning and not for or against CITY or LESSEE as both CITY and LESSEE have had the assistance of counsel in drafting and reviewing this AGREEMENT. ARTICLE 28- CAPTIONS Captions of the articles, paragraphs and subparagraphs of this AGREEMENT are fz)r convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisio-is of this AGREEMENT. ARTICLE 29- AMENDMENT This AGREEMENT is not subject to amendment except in writing executed by both parties hereto. ARTICLE 30- NOTICES All notices,demands or requests from one party to another shall be delivered in person or be sent by mail, certified or registered, postage prepaid, to the addresses stated in this Article and to such other persons and addresses as either party may designate. Notice by mail shall be deemed to have been given at the time of mailing. All notices,demands and requests from LESSEE to CITY shall be given to CITY at the following address: City Manager City of Seward PO Box 167 Seward,Alaska 99664 All notices,demands or requests from CITY to LESSEE shall be given to LESSEE at the following address: Kenai Mountains Public Broadcasting, Inc. P.O. Box 816 Seward, Alaska 99664 Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this Article. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the 15 349 dates herein set forth. CITY: LESSEE: CITY OF SEWARD KENAI MOUNTAINS PUBLIC BROADCASTING,INC. By: Janette Bower By. five f ITS: City Manager ITS: ✓l5'•o'lea t.'0 A. �Ovwhr ks f D'•e /%4 Date: Date: ATTEST: 14vG� Brenda Ballou nn 0.``-e.. 4- • Q o �. City Clerk f'k,b ,G �d 4T v- 1 MAE L.SILOOK (City Seal) Notary Public state of Alaska My Commission Expires Apr 7, 2026 STATE OF ALASKA ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of 2022, before me, fie undersigned, a Notary Public in and for the State of Alaska, personally appeared , known to me and to me known to be the city manager for t►e City of Seward, Alaska, and authorized to execute documents on its behalf, and is the individ►.31 named in and who executed the foregoing document on behalf of the City of Seward for the us s and purposes therein set forth. WITNESS my hand and notarial seal the day and year first herein above written. 16 350 Notary Public in and for Alaska My Commission Expires: STATE OF ALASKA ) )ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this 7 1 day of VIU1 GI , 2025,before me,the ndersigned, a ry Public in and for the State of Alaska,personall appeared d ,known to me and to me known to be the ti of Kenai Mountain4 Public Broadcasting, Inc. and authorized to execute docbments on its behalf, and is the individual named in and who executed the foregoing document on behalf of the Corporatior for the uses and purposes therein set forth. WITNESS my hand and notarial seal the day and year herein above written. a Notary Public in and for Al ska / 7My Commission Expires: Y! v�O 17 351