RESIDENTIAL SERVICES AGREEMENT - BULK SERVICESResidential Services Agreement
(Bulk Services)
EFFECTIVE DATE: J/lZ7- ._._, 2010
PARTIES
Operator:
Bright House Networks, LLC
Contact Person: Kyle A. Brylow
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: 24
(A) Bulk Multi-Channel Video Services.
Upon completion of construction or
upgrading of the System (as defined
hereafter), if necessary, or within 30 days
after the execution of this Agreement if no
construction or upgrading is necessary,
Operator will offer Bulk Multi-Channel
Video Services to Owner and the
Residents . "Bulk Multi-Channel Video
Services" means the package of multi-
channel cable television and other video-
and/or-sound services provided over the
System, as set forth on Exhibit B hereto.
(B) Additional Services. Operator may offer
Additional Services to Owner and
Residents on a non-exclusive basis.
"Additional Services" means any services
other than the Bulk 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.
RECITALS
• Owner owns 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:
Operator's Basic Obligations
1.1 Services. The term "Services" means the
services described below:
1.3 Maintenance of System. Operator will
maintain and repair the System in accordance
with industry standards and Laws and
Regulations. At any time during the term of
this Agreement, Operator shall have the right
to install set-top converters or replace
existing set-top converters for every Resident
receiving Services under this Agreement as
Operator may reasonably deem necessary to
allow it to continue to provide Bulk Multi-
Channel Video Services to such Residents. If
any Resident refuses such installation or
replacement, Operator shall not be liable for
any failure to provide Bulk Multi-Channel
Video Services to such Resident.
2. Bulk Multi-Channel Video Services Fee.
Owner shall pay to Operator the Bulk Multi-Channel
Video Services Fee as set forth on Exhibit B.
Faulk Services Agreement Page I
Ownership and Use of System during Term
of Agreement
During the term of this Agreement, Operator will
own and have the exclusive right to access, control
and operate the System, unless Owner paid for such
equipment, facilities, conduit or wiring to be
installed, or such equipment, facilities, conduit or
wiring is owned by a third party, in which case (as
between Owner and Operator) Owner shall own such
items and Owner hereby grants to Operator the
exclusive right to access and use such items during
the term of this Agreement. Owner shall not permit
any part of the System to be interfered with or used
by any third party. The System will not be deemed
to be affixed to or a fixture of the Property. Owner
shall not access, operate, or move the System during
the term of this Agreement. Owner will provide the
power necessary to operate any of Operator's
equipment that is located on the Property.
4. Owner's Basic Obligations; Grant of
Easement; Marketing
4.1 Easement. At the time of signing this
Agreement, Owner will execute an Easement
and Memorandum of Agreement in the form
of Exhibit C. Operator may record this
instrument at any time.
4.2 Grant of Rights. Owner acknowledges that
Operator will spend substantial time,
resources, and money in meeting its
obligations under this Agreement, and that
Operator is relying on Owner's covenants in
this Agreement in order to recoup its
investment by providing the Services to the
Property and by collecting revenues from
customers. Accordingly, Owner hereby
grants to Operator (A) the exclusive right to
design, construct, install, operate, maintain,
upgrade the System on the Property, (B) the
non-exclusive right to provide the Bulk
Multi-Channel Video Services to Residents,
and (C) the non-exclusive right to offer
Additional Services, limited to cable internet
and telephone services, to Residents. Where
Laws and Regulations prohibit Owner from
granting exclusive rights to Operator under
this Section 4.2, then such rights shall be
non-exclusive to the extent required by Laws
and Regulations.
4.3 Marketing Materials
(A) In addition to Operator's right to market
its Services at the Property, during the
term of this Agreement, Owner shall
display Operator's marketing and sales
materials for the Services in a location at
the Property deemed reasonable in
Owner's discretion (subject to Owner's
reasonable approval of the materials and
location).
(B) Owner will allow Operator to periodically
host an event on the Property, at
Operator's expense, to introduce Services
to Residents and prospective Residents.
5. Term
5.1 Bulk Services Term. The term of this
Agreement commences the effective date and
continues for five (S) years (" Term").
5.2 Provision of Services on Right of Entry
Basis. After termination of the Bulk Multi-
Channel Video Services term, Owner may
consent to Operator entering the Property to
offer and provide any and all Multi-Channel
Video Services on a non-exclusive basis to
residents of the Property ("Right of Entry
Term). "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.
6. Owner's Representations and Warranties
Owner represents and warrants that (A) Owner is the
owner in fee simple of the Property and no purchase
contracts exist with respect to the Property; (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; (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) 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 not agreements, understandings or
Bulk Services Agreement Page 2
intentions with or between Owner and any other
party that conflict with this Agreement.
Breach of Agreement
If a party breaches any term of this Agreement and
fails to cure such breach within 30 days after
receiving notice from the non-breaching party
reasonably detailing the breach, then the non-
breaching party may terminate this Agreement, bring
an action against the breaching party for damages,
or seek any other available legal or equitable
remedy.
8. No Warranties; Limitation of Liability
EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, OPERATOR MAKES NO
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. Operator will not be liable to
Owner 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 conduct, omissions, or negligence of
Owner, its employees or agents, Residents, or
any third party that has entered the Property
with Owner's permission, Operator will
indemnify, defend and hold harmless Owner
and, as applicable, Owner's shareholders,
members, partners, directors, managers,
officers, employees, 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 caused by Owner, its employees or
agents, or any third party that has entered the
Property with Owner's permission, (B) any
claim arising out of Owner's operation of the
Property, and (C) Owner's breach of its
representations and warranties in Article 6.
Nothing contained 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. Mandatory Access Laws and Regulations
10.1 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) 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.
11. Public Records Act Applicability
Owner is subject to the Public Records Act,
Chapter 119, Florida Statutes.
12. Miscellaneous Provisions
12.1 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.
12.2 Modification; Waiver; Scope of Agreement.
This Agreement constitutes the entire
agreement between Owner and Operator with
respect to, and supersedes all other
agreements relating to, the subject matter
contained herein. 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 be
freely assignable by either party.
12.3 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
Bulk Services Agreement Page 3
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.
12.4 Counterparts. This Agreement may be
executed in any number of counterparts, each
of which is considered an original.
12.5 Compliance with Laws and Regulations;
Choice of Law. This Agreement shall be
subject to, 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.
12.6 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.
12.7 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
(B) 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.
12.8 Survival. The terms of Articles 8, 9, 10, 11
and 12 will survive the expiration or
termination of this Agreement for any reason.
12.9 Persons and Entities Bound by Agreement.
This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto
and their respective officers, directors,
shareholders, partners, agents,
representatives, employees, servants,
affiliates, attorneys, heirs, successors and
assigns.
Bulk Services Agreement Page 4
DATED: W-hL W
For the City of Clearwater
li?,217
'William B. Horne
City Manage
Approv as 4 Form:
Camilo A. Soto
Assistant City Attorney
Attest:
A12-
C7 A
Rosemarie Call
City Clerk TER ??
STATE OF F1 orti [-ef- )
COUNTY OF
The foregoing instrument w acknowledged before me this k? day of ?b 2010 by
1? ??y1r1 r? ??pf ,nom Ihe is { ./f personally known to me or { } has produced
as identification. la?
SEAL _ - - - ^
Print Name: '
Title: Notary Public
SANDRA HARRIGER Serial No. (if any)
MY COMMISSION # DD733691
EXPIRES: 7anuary 04, 2012
Commission Expires: ? y
FI. Naary
?-y?,?.s-NO7'nxr
Bulk Services Agreement Page 5
DATED:
BRIGHT HOUSE NETWORKS, LLC
By: _
John osher
Title: Vice President & General Manager
Signed, sealed and delivered
in the presence of
Witnesses:
Print Name:
111A J
14q
Witnesses:
Print Name:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this a day of/?WIIAPt; 2010 by John W. Dasher. He is personally
known to me
SEAL
Print Name: . y CA
rKYLE A BRYLOW - --
Notary Public • State of Florida Title: Notary Public
my Comm. Expires Mar 18, 2013
Commlesion +« DD 871842 Serial No. (if any)
Commission Expires:
Bulk Scrviccs Agreement Page 6
Exhibit A
Legal Description of the Property
A. p ad or' 9 mecgea vd in Qeorwdu Hota, lye and king in Ali n 16,
Towrahip 29 South, F rge 15 Eeet, Pndas Coutty, Florid:.
Commeme at a UT ftu, ent 'KOMS K", locoed in the S-outhea$? caner al the
jindkin of U.S...AM 1S cM Sk 590. in be City d Owrwoter; thence 5.6110't1 lk,
138&27 feet to the Point of 6eginrir,% thence &WWWOL, 61EL94 feet: thence
S. "VW., W.06 feet; hence N.IMt "„ 204.31 fleet, it~enee S,,2BW%'tx,
W5 Wit: thence M.62WVW, '446M Beet; thence S2:ffWDTvL, I6CL60 feel;
kwca r+tGZWDTO., 162-Z W; thence M.28WW"E., 5M.17 teat, true
k.2851 `2tl'E, 2 I3 feet; thence N.26V'37T-, 40&69 *t. tc o poirst m the Math
Fight of Way lie of Www6sl Cousmj
thence dmg odd hearts fig. of Oky Line
S.63VSi6'E., 38.58 fvvA tl a 1tNM37E., 181.10 W to the Pont of 8"ir inn.
Exhibit B
Bulk Multi-Channel Video Services and Fee
BULK MULTI-CHANNEL VIDEO SERVICES
Channel line-up and description of Bulk Multi-Channel Video Services are attached. Subject to applicable
law, Operator shall be entitled to add to, delete from, move channel positions, and otherwise modify the Bulk
Multi-Channel Video Services in its sole discretion from time to time.
BULK MULTI-CHANNEL VIDEO SERVICES FEE
The Bulk Multi-Channel Video Services Fee shall be $23.50 per Unit at the Property per month (plus
applicable taxes and fees). The Bulk Multi-Channel Video Services Fee does not include Operator's provision of
rental equipment to Residents, which shall be billed for and paid by Residents. Operator will bill Owner for the
Bulk Multi-Channel Video Services on a monthly basis in advance and payment by Owner shall be due upon
receipt. If Operator fails to present an invoice prior to the first day of the month for which Bulk Multi-Channel
Video Services are being provided, such failure shall not constitute a waiver of the charges for the Bulk Multi-
Channel Video Services delivered to the Property, and Owner promptly shall pay such invoice when delivered by
Operator.
Operator shall be entitled to raise the Bulk Multi-Channel Video Services Fee as follows: At any time
upon 30 days prior written notice to Owner; provided that such increases shall not exceed 7% during any calendar
year. No increase shall be given until 1/1/2012.
Bright House Networks
Bulk Standard Channel Line-Up*
North Pinellas County
WCLF (Ch. 22) IND 2 Fox Sports 39
WEDU (CH. 3) PBS 3 Disney Channel 40
WTOG (Ch 44) The CW 4 MSNBC 41
WFTT (CH 50) Telefutura 5 CNBC 42
WTTA (Ch 38) My Network TV 6 Spike TV 43
WVEA (Ch 62) Univision 7 Oxygen 44
WFLA (Ch 8) NBC 8 Country Music Television 45
BAY NEWS 9 9 The Learning Channel 46
WMOR (Ch 32) IND 10 A & E 48
WFTS (Ch 28) ABC 11 TV Land 49
WTSP (Ch 10) CBS 12 Lifetime Movie Network 50
WTVT (Ch 13) FOX 13 BRAVO 51
E! 14 ABC Family 52
C-SPAN 15 Turner Classic Movies 53
WUSF (Ch 16) PBS 16 Tru TV 55
WXPX (Ch 66) ION 17 Food Network 56
WGN 18 Home & Garden TV 57
BET 19 Cartoon Network 58
Discovery Health 20 Sci-Fi Channel 59
HSN 21 FX 60
QVC 22 Comedy Central 61
TBS 23 Movie Plex 62
C_SPAN 2 24 The Weather Channel 63
The History Channel 25 American Movie Classic 64
VS 26 National Geographic 65
ESPN 27 MTV 66
ESPN 2 28 The Golf Channel 67
CNN 29 Hallmark Channel 68
Headline News 30 WE 69
Sun Sports 31 EWTN 70
USA 32 VH-1 71
TNT 33 Galavision 79
Discovery Channel 34 Community/Jewelry TV 95
Animal Planet 35 Community 96
Nickelodeon 36 Telemundo 97
Fox News 37 Shop NBC 98
Lifetime 38 TV Guide 99
* Subject to change.
This instrument was prepared by
(and return to):
Bright House Networks
Attn: Kyle A. Brylow
700 Carillon Parkway, Suite 6
Saint Petersburg, Florida 33716
Property Appraiser's Parcel
Identification Number
FOR RECORDER'S USE ONLY
Exhibit C
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 33756 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, market, maintain, upgrade, repair, replace, and remove a system
if owned by Grantee (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 other 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"). During the term of the Agreement and this easement,
Grantee shall own, and 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. Grantor will also
provide reasonable space for Grantee's equipment.
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 and for so long thereafter as Grantee is providing services to the Property under
the Agreement. When that period expires, this easement will terminate after an additional 90-day continuation
period solely for the purpose of allowing Grantee to remove its System if owned by Operator. Grantor, its
successors and assigns hereby agree to warrant and forever defend the easement to Grantee - - as well as its
successors and assigns - - against every person who claims any part of it_
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. If Grantee currently has the right to
serve the Property under any other written easement, then such other easement shall survive this easement and
shall continue to bind the parties in accordance with its terms; provided, however, that in the event of any conflict
between the terms of any such other easement and this easement during the term hereof, this easement shall
control.
This easement and other rights granted to Grantee run with the title to the Property and are binding on
Grantor and on all subsequent owners of the Property, as well as on others who may claim an interest in the
Property.
2. Memorandum of Agreement
In addition to the rights granted above, the Agreement grants to Grantee certain exclusive rights to
market and provide Bulk 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 Manage
,rn
Approve as t For
Camilo A. Soto
Assistant City Attorney
Attest:
Rosemarie Call
City Clerk
STATE OF _n DD
COUNTY OF
S?oFt/itC
/?? r
v Q
n o
ATE?
The foregoing instrument w acknowledged before me this 4t day of 11?1ieM+?W 2010 by
1?3? ll Qrri i -A= . He/ a is { 1/f personally known to me or { } has produced
as identification.
SEAL
Print Name: 5Rf"Q? G?Qf
SANDRA HARRIGER J
91
MY COMMISSION k Title: Notary Public
04. 201
EXPIRES: January 04.2012
DibGOYM AMOCO rA.
L;
Y Serial No. (if an ?y331?°I
Y)
I_8C&3-140TAR Commission Expires: l t7-