RESIDENTIAL SERVICES AGREEMENT•t
Residential Services Agreement
EFFECTIVE DATE: 11112- 2010
PARTIE-S
Operator:
BRIGHT HOUSE NETWORKS, LLC
CONTACT PERSON: Kyle Brylow
Property Solutions
TELEPHONE: 727-329-2794
FACSIMILE: 727-329-2768
Owner:
City of Clearwater
C/O Clearwater Municipal Marina
25 Causeway Blvd.
Clearwater, FL 33767
PROPERTY:
City of Clearwater Downtown Boatslips
210 Drew Street
Clearwater, FL 33756
CONTACT PERSON: William D. Morris
Telephone: (727) 462-6954
Facsimile: (727) 462-6957
Number Of Units: 126
RECITALS
• Owner owners the multi-unit residential
property referred to above (the "Property") and
as further described in the legal description set
forth on Exhibit A.
• Owner and Operator wish to make the Services
available to residents of the Property
("Residents") in accordance with the terms and
conditions of this Agreement.
TERMS AND CONDITIONS
In consideration of the Recitals and the mutual
covenants contained in this Agreement, the parties
agree as follows:
1. Operator's Basic Obligations
1.1 Services. The term "Services" means the
services described below:
(A) Multi-Channel Video Services. Upon
completion of construction or upgrading
of the System (if necessary), or within 30
days after the execution of this Agreement
Residential Serviecs Agrccmcnt
if no construction or upgrading is
necessary, Operator will have the
exclusive right to market Multi-Channel
Video Services to Owner and the
Residents. "Multi-Channel Video
Services" means multi-channel cable
television and other video-and/or-sound
services provided over the System,
whether analog or digital, including the
same package of basic, premium, and pay-
per-view services that Operator offers
generally to customers in the franchise
area where the Property is located (or
within a five-mile radius (or a smaller or
larger radius as may be reasonable under
the circumstances) of the Property if the
Property is not located within a franchised
area) (the "Area"). The Multi-Channel
Video Services are subject to change
depending on various factors, including
changes in programming available to
Operator, legal requirements to carry
certain programming, and capacity.
(B) Additional Services. Operator will have
the non-exclusive right to market
Additional Services to Owner and
Residents. "Additional Services" means
any services other than the Multi-Channel
Video Services that can be provided to the
Property over the System limited to
internet access service and telephone
service.
1.2 Installation of System (as Applicable). The
"System" means all equipment, facilities,
internal and external wiring (including cable
home wiring and cable home run wiring),
conduit and molding that Operator installs or
upgrades on the Property or that exist on the
date of this Agreement and that Operator uses
to deliver the Services.
1.3 Maintenance of System. Operator will
maintain and repair the System in accordance
with industry standards and Laws and
Regulations.
1.4 Marketing Materials. Operator will provide
Owner with marketing materials, service-
order materials, sales support, and sales
training so that Owner and its employees can
market the Multi-Channel Video Services as
provided in Section 4.3.
Page 1
2. Rates and Multi-Channel Video Services. Operator is relying on Owner's covenants in
this Agreement in order to recoup its
The initial Multi-Channel Video Services to be investment by providing the Services to the
provided, and the initial rates to be charged for the Property and by collecting revenues from
Multi-Channel Video Services, to the Residents will customers. Accordingly, Owner hereby
be Operator's standard Multi-Channel Video grants to Operator (A) the exclusive right to
Services and rates in the Area. Upon giving notice operate, maintain, and upgrade Owners
to Residents, Operator may change any Services and System on the Property, (B) the exclusive
rates as permitted by this Agreement and Laws and right to occupy, maintain, and remove the
Regulations. Residents will be billed for taxes, molding and other conduit housing the wiring
franchise fees, and other fees assessed in of the System without alteration by Owner or
conjunction with the Services. third parties provided Operator restores and
repairs any damage caused to Owner's
3. Ownership and Use of System during Term Property, (C) the exclusive right to market
of Agreement the Multi-Channel Video Services, and (D)
the non-exclusive right to offer Additional
3.1 System Ownership. Owner agrees to assume Services, limited to cable internet and
the cost of installation and components that telephone services, to Residents. Where
comprise the System, not to exceed Laws and Regulations prohibit Owner from
$27,000.00, and Owner shall issue a purchase granting exclusive rights to Operator under
order in the aforementioned amount. If the this Section 4.2, then such rights shall be
cost of initial installation and components or non-exclusive to the extent required by Laws
subsequent upgrades for the System goes and Regulations.
beyond the $27,000.00 paid for by the Owner,
then any additional costs shall be the sole 4.3 Marketing and Sales Responsibilities
responsibility of the Operator. During and
after the Term, Owner shall remain the owner (A) During the Term, Owner will use its
of the System and all component parts commercially reasonable efforts to offer
thereof, including but not limited to, its Residents the marketing materials
equipment, conduit(s), and wiring. provided by Operator for Operator's
Multi-Channel Video Services and
3.2 Exclusive Use. During the Term, Operator Additional Services. Owner will not, and
will have the exclusive right to access, Owner will not permit other parties
control and operate the System, since Owner (including other service providers) to, (I)
has paid for such equipment, facilities, promote, market or solicit services that
conduit or wiring to be installed. As compete with Operator's Multi-Channel
such,Owner grants to Operator the exclusive Video Services. (ii) take any action, of
right to access and use such items during the encouraging Residents to choose another
Term. Owner shall not permit any part of the provider's services that compete with the
System to be interfered with or used by any Multi-Channel Video Services.
third party during the Term. The System will
not be deemed to be affixed to or a fixture of (B) Specifically, Owner will, and Owner will
the Property. Owner shall not access, use commercially reasonable efforts to
operate, or move the System during the Term. cause its agents to, (i) provide Residents
Owner will provide the power necessary to and prospective Residents with Operator's
operate any of Operator's equipment that is current publications describing the Multi-
located on the Property. Channel Video Services , (ii) display
Operator's marketing and sales materials
4. Owner's Basic Obligations; Grant of in a location at the Property deemed
Easement; Marketing Obligations reasonable in Owner's discretion (subject
to Owner's reasonable approval of the
4.1 Easement; Termination of Easement. At materials); and (iii) report to Operator any
the time of signing this Agreement, Owner condition or occurrence likely to adversely
will execute an Easement and Memorandum affect the System or provision of Services,
of Agreement in the form of Exhibit B. if such condition is actually known.
Operator may record this instrument at any
time provided it pay all costs associated with (C) Owner will allow Operator to periodically
such recording including but not limited to host an event on the Property, at
Owner's legal fees, real estate taxes, fees, Operator's expense, to introduce Multi-
etc. Channel Video Services to Residents and
prospective Residents. Operator may
4.2 Grant of Rights. Owner acknowledges that reasonably try to remarket Multi-Channel
Operator will spend substantial time, Video Services to Residents who order
resources, and money in meeting its less than all the available Services.
obligations under this Agreement, and that
Residential Services Agreement Page 2
5. Term
The initial term of this Agreement commences on
the effective date of this Agreement and continues
for five (5)_?ears ("Term").
6. Owner's Representations and Warranties;'
Subordination and Non-Disturbance
Consent
6.1 Representations and Warranties. Owner
represents and warrants that (A) The Owner
is the owner in fee simple of the Property and
no purchase contracts exist with respect to
the Property which would adversely affect
this Agreement; (B) the Property is not part
of a bankruptcy proceeding, foreclosure
action, deed-in-lieu-of-foreclosure
transaction, or similar proceeding;. (C) Owner
has the full power and authority to negotiate,
execute, deliver and perform this Agreement
and the Easement and Memorandum of
Agreement and that the signatory below has
been authorized to execute and deliver this
Agreement and the Easement and
Memorandum of Agreement; subject to the
existing mortgage (D) Owner's execution and
delivery of this Agreement and the Easement
and Memorandum of Agreement do not
conflict with any contractual right or any
interest in the Property granted to any third
party; (E) Subject to Laws and Regulations now
existing or hereafter enacted that prohibit such a
grant, Owner owns and/or has the right to
grant to Operator hereunder the exclusive
right to use all parts of the System not owned
by Operator (including any third party
wiring, molding or components, if any); and
(F) there are no agreements, understandings
or intentions with or between Owner or its
members and any other party that conflict
with this Agreement.
7. Default and Remedies
7.1 Default. In addition to the other breaches or
defaults specified in this Agreement, a
"default" exists under this Agreement upon
any of the following events: (A) if Owner or
Operator fails to meet or perform any
material term, provision, covenant,
agreement, or obligation contained in this
Agreement and then does not cure such
failure within 30 days (or such other time
period specified in this Agreement) after
receiving notice from the other party that
reasonably details such breach; (B) if Owner
or Operator becomes a debtor in a bankruptcy
proceeding or similar action or proceeding
that is not permanently dismissed within 60
days; or (C) if Owner or Operator becomes
insolvent.
7.2 Remedies. Except as specifically provided
otherwise in this Agreement, the parties shall
be entitled to seek all remedies available at
law or in equity with respect to a breach or
default under this Agreement by the other
(including injunctive relief and specific
performance, in cases where such breach or
default is causing or would cause irreparable
damage or where no adequate remedy at law
is available), and such rights and remedies
shall be cumulative. If a party defaults and
fails to cure such default as provided in this
Agreement, then the nondefaulting party, in
addition to all other remedies, may terminate
this Agreement by giving 30 days' notice to
the defaulting party.
8. No Warranties; Limitation of Liability
EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES—
EXPRESS OR IMPLIED-- REGARDING THE
SYSTEM OR THE SERVICES, INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE,
AND ALL SUCH WARRANTIES ARE HEREBY
DISCLAIMED. Neither Party shall be liable to
the other or to any third party for any indirect,
special, punitive or consequential damages,
including, but not limited to, damages based on loss
of service, revenues, profits or business
opportunities.
9. Indemnity
9.1 From Operator. Except for claims caused
by the misconduct, or gross negligence of
Owner,and its employees, Operator will
indemnify, defend and hold harmless Owner
and, as applicable, Owner's shareholders,
members, partners, directors, managers,
officers, eIIiployces, agents, representatives
and affiliates (collectively, "Related Parties")
from and against all claims, liabilities, losses,
costs or damages, including reasonable
attorney and other fees and costs relating to
the investigation and defense of such matters
(collectively, "Losses"), incurred by Owner
or its Related Parties that result from
Operator's design, construction, installation,
operation, or maintenance of the System.
9.2 From Owner. Owner will indemnify and
hold harmless Operator and Operator's
Related Parties from and against all Losses
incurred by Operator or its Related Parties
that result from (A) damage to any part of the
System directly caused by Owner, and its
members, , (B) any claim arising out of
Owner's operation of the Property, and (C)
Owner's breach of its representations and
warranties in Section 6.1. Nothing contained
Residential Services Agreement Page 3
herein, however, shall be construed as a
waiver of immunity from or limitation of
liability Owner may be entitled to under the
doctrine of sovereign immunity or section
768.28, Florida Statutes.
10. Removal of System; Mandatory Access
Laws and Regulations
10.1 Removal of System. Upon any removal of
the System during the Term of this
Agreement, Operator will repair and restore
all portions of the Property including but not
limited to landscaping from which the System
has been removed to its condition
immediately prior to installation. Operator
acknowledges that Owner has paid for all
such equipment, facilities, conduit(s), and/or
wiring comprising the System. This Article
also is subject to Operator's ownership and
use of the System to provide services
pursuant to an existing agreement or other
rights as specified in Section 14.2.
10.2 Mandatory Access Laws and Regulations.
Notwithstanding anything to the contrary in
this Article 10 or the Agreement, if Laws and
Regulations require Owner to provide
Operator with access to the Property for the
provision of any service, then Operator shall
(A) continue to own and be permitted to
access and use all wiring and other
components of the System, for so long as
permitted by Laws and Regulations, to
provide service to the Property and (B) have
the right to remove, abandon, disable, or sell
such wiring and other components of the
System within 60 days after Operator no
longer is permitted by Laws and Regulations
to provide such services.
11. Assignment
11.1 Assignment by Operator. Operator may
assign this Agreement to (A) any parent,
affiliate (an entity in which Operator's parent
has an ownership interest of 25% or more),
successor (by operation of law or otherwise),
or subsidiary that Operator may have or (B)
any entity that purchases Operator's cable
television system serving the Property. Upon
the new operator's written assumption of all
of Operator's obligations and duties under
this Agreement, Operator will be relieved of
any further liability or obligations to Owner
attributable to periods from and after the
effective date of such assumption.
relieved of any further liability or obligations
to Operator attributable to periods from and
after the effective date of such assumption.
12. Public Records Act Applicability
Owner is subject to the Public Records Act,
Chapter 119, Florida Statutes.
13. Use and Protection of Proprietary Names
Neither party will use any proprietary or trade name
of the other except as specifically permitted in
writing by the owner of the name.
14. Miscellaneous Provisions
14.1 Force Majeure. Despite anything to the
contrary in this Agreement, neither party will
be liable or in default under this Agreement
for any delay or failure of performance
resulting directly from anything beyond the
reasonable control of the nonperforming
party, including, but not limited to, acts of
God; acts of civil or military authority; acts
of a public enemy; war; severe weather,
earthquakes, or floods; fires or explosions;
governmental action or regulation; strikes,
lockouts, or other work interruptions or labor
shortages; supplier shortages; transportation
and delivery delays; or blocked access rights.
14.2 Modification; Waiver; Scope of Agreement.
This Agreement can be modified or changed
only by a written instrument signed by both
parties. A party's waiver of enforcement of
any of the terms or conditions of this
Agreement will be effective only if in
writing. This Agreement shall not amend,
modify, terminate, release or discharge any
party from its rights or obligations under any
other written agreement (including existing ,
easements or rights-of-entry) with respect to
the Property.
14.3
11.2 Assignment by Owner. If Owner transfers
or assigns the Property, Owner promptly will
provide Operator with the name, address,
telephone, facsimile, and contact name of the
new owner. Upon the new owner's written 14.4
assumption of all of Owner's obligations and
duties under this Agreement, Owner will be
Severability. If this Agreement is rendered .
invalid or otherwise unenforceable under
Laws and Regulations or by a governmental,
legal or regulatory authority with jurisdiction
over the parties, then the remainder of this
Agreement will continue in full force unless
such continuance will deprive one of the
parties of a substantial benefit hereunder or
frustrate the main purpose(s) of this
Agreement. In such event, the parties shall
use their reasonable best efforts to replace
the invalid or unenforceable provision with a
provision that, to the extent permitted by
Laws and Regulations, achieves the purposes
intended under the invalid or unenforceable
provision.
Counterparts. This Agreement may be
executed in any number of counterparts, each
of which is considered an original.
Residential Services Agreement Page 4
14.5 Enforcement Costs. If either party sues or
brings any other type of enforcement action
in connection with this Agreement, then each
respective party shall be responsible for its
own attorneys' fees and other costs in
connection with such action. The venue for
such enforcement action shall be Pinellas
County, Florida.
14.6 Compliance with Laws and Regulations;
Choice of Law. This Agreement shall be
subject to all tenant leases, and in the
performance of their respective obligations
under this Agreement the parties shall comply
with, all applicable federal, state and local
laws and regulations (including the rules and
regulations of quasi-governmental and
regulatory authorities with jurisdiction over
the parties) and the requirements of
Operator's franchise agreement for the Area
(collectively, "Laws and Regulations"). This
Agreement is governed by and shall be
interpreted under the laws of the state in
which the Property is located, without regard
to its choice-of-law provisions.
14.7 Notices. All notices, requests, demands,
consents and other communications that are
required to be or may be given under this
Agreement shall be in writing and shall be
deemed to have been duly given if sent by
facsimile, courier, registered or certified mail
(postage prepaid), overnight delivery or in
person to a party's address stated at the head
of this Agreement. Such notice shall be
effective, (A) if sent by facsimile, when
confirmation of transmission is received, or
(S) otherwise, upon actual receipt or
rejection by the intended recipient. Either
party may change its address by giving notice
to the other party in accordance with this
Section. .
14.8 Headings; Exhibits. Headings are for
reference only and do not affect the
interpretation of this Agreement. All exhibits
are fully incorporated into this Agreement by
their reference herein.
14.9 Survival. The terms of Articles S, 9, 10 and
12 will survive the expiration or termination
of this Agreement for any reason.
Residential Services Agreement Page 5
DATED: ?DLIL/Ya lfdf' '7/ `a"d /L
For the City of Clearwater
rtp? 4? - 4,L,/-a-
William B. Horne
?#F
Attest:
Rosemarie Call TG,` v?
City Clerk nn
STATE OF? o r-? C?
CITY OF Pt o a OL5
The foregoing instrument
SEAL
w acknowledged before me this L- day of oY 6l 2010 by
He he is { ?f personally known to me or { } has produced
as identification.
Print Name: zt-$7
Title: Notary Public
Commission Expires: , y 1
SANDRA HARRIGER
MY COMMISSION # DD733691
EXPIRES: January 04, 2012
TARY S. Notary Ihscwm Assoc. Ca.
Residential Services Agreement Page 6
Camilo A. Soto
Assistant City Attorney .4::5:5
DATED: /Z l 6 3-ZoL o
BRIGHT HOUSE N TWORKS, LLC
By:
Joh jskrr
Title: Vic esident/General Manager
Signed, sealed and delivered
in the presence of:
'tale se
Print Name: I ?i•
Witnesses-
Print Name:
STATE OF FLORIDA
COUNTY OF j APE 1-"+S
?- The foregoing instrument was acknledged before me this /e' day of &AaoA?, 2010 by
She is personally known to me.
SEAL i
(7 V
Print Name: .4 ev zej"/
KYLE A BRYM le: Notary Public
• Nol"PUMIC - SNM 01 florld? y Commission Expires:
01 Cwa. Expim Mar 1i, 2018
Cannti$Ww I DD 071842
Residential Services Agreement Page 7
Exhibit A
Legal Description of the Property
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Property Appraiser's Parcel
Identification Number
FOR RECORDER'S USE ONLY
Exhibit B
EASEMENT AND MEMORANDUM OF AGREEMENT
1. Grant of Easement
In consideration of Ten Dollars ($10), and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, City of Clearwater ("Grantor"), whose post office address is 112 South
Osceola Avenue, Clearwater, Florida grants to Bright House Networks, LLC ("Grantee"), its successors and
assigns, a non-exclusive easement on Grantor's property and all its improvements (as described in the attached
Exhibit A) (the "Property"). This easement is for the purposes of permitting Grantee and its affiliates and
contractors to design, construct, install, operate, marketmaintain, upgrade, repair, replace, and remove a system
(including internal and external wiring, poles, conduits, molding, pipes, antennas, servers, switch equipment,
software, central processing units and other facilities and equipment ("System")) for the delivery of cable
television, entertainment, video, internet access, and telephone services that may be delivered over the System to
the Property, as more fully provided in the Residential Services Agreement between Grantor and Grantee with
respect to the Property (the "Agreement"). Subject to Laws and Regulations (as defined in Section 14.6 of the Agreement),
during the term of the Agreement and this easement Grantee shall have the exclusive right to access, control and
operate, the System, and the System shall not be deemed to be affixed to or a fixture of the Property. Ownership
and removal of the System after the expiration of the Agreement and this easement shall be pursuant to the
Agreement, provided however, all internal building wiring and underground wiring will not be removed by
Grantee. Grantor will also provide reasonable space for Grantee's equipment at no cost to Owner.
Grantor reserves the right to grant other easements on the Property, but will not allow such other
easements to cause unreasonable interference with the easement granted to Grantee herein.
Grantee will have and hold the easement, together with every right and appurtenance connected to it, for
an initial term of five (5) years or for so long thereafter as Grantee is providing services to the Property under the
Agreement. When that period expires, this easement will terminateafter an additional 90-day continuation period
solely for the purpose of allowing Grantee to remove its System. Grantor, its successors and assigns hereby agree
to warrant and defend the easement to Grantee - - as well as its successors and assigns - - against every person
who claims any part of it, subject to the terms of the Agreement.
This easement shall not amend, modify, terminate, release or discharge any party from its rights or
obligations under any other written easement with respect to the Property.
This easement and other rights granted to Grantee run
Grantor and on all subsequent owners of the Property, as well
Property.
with the title to the Property and are binding on
as on others who may claim an interest in the
2. Memorandum of Agreement
In addition to the rights granted above, the Agreement grants to Grantee certain exclusive rights to
market Multi-Channel Video Services to Grantor and to residents of the Property.
herein.
IN WITNESS WHEREOF, the Grantor has caused these presents to be executed for the purposes stated
For the City of Clearwater
William B. Horne
City Manager
Appr ed aY o For
Camilo A. Soto
Assistant City Attorney
Attest:
k.Qdu?cLr?- CMG
Rosemarie Call
City Clerk
??? I?uf TyEC????
C11 -
?TCQ _
STATE OF n t C r )
COUNTY OF 451 QA?0. )
The foregoing instrument was cknowledged efore me this y?day of
U '\? RS , m_ 2a.-he is { v personally known to me
as identification.
SEAL
N,
Print Name:
Title: Notary Public
SANDRA HARRIGER My Commission Expires:
MY C JRESS # , 20191
FXPIRES' j anua nuary 04 04, 2UI2
.
FI. Naery Discount Assoc . Ca
Iq?-7-NOl'ARY
?w
N 2010 by
or { } has produced
DATED:
BRIGHT HOUSE NETWORKS, LLC
By:
John Dosher
Title: Vice Preside General Manager
Signed, sealed and delivered
in the presence of:
Witness s:
Print Name: ?14 (4/
Witn des/?
Print Name: C 't/
STATE OF FLORIDA
COUNTY OF Pinellas
The foregoing instrument was acknowledged before me this ?01! day of 2010 by
ITP/She is personally known to me.
SEAL
Print Name:
Title: Notary Public
r KYLE A BRYLOW
pplIFy Pypt , gtdi of Florida My Commission Expires:
My Comm. Expires Mar Is. 2013
Cammhelon # DD $71642