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HomeMy Public PortalAbout100_020_Rivers Campground Agreement 7 21 11 RV PARK BULK SERVICES AGREEMENT THIS RV PARK BULK SERVICES AGREEMENT (the “Agreement”) is made and entered into this ___ day of ____________, 2011 by and between COMCAST OF GEORGIA/SOUTH CAROLINA INC., (the "Company"), whose address is 145 Park of Commerce Drive, Savannah, GA, 31405, and CITY OF TYBEE D.B.A. RIVERS CAMPGROUND (the "Owner") who owns or has control over certain real estate and improvements thereon located at 915 Fort Ave. Tybee Island GA 31328, commonly known as Rivers Campground (the "Premises"), consisting of 99 units. WHEREAS, The Company has been granted a franchise by an authorized governmental agency (the “Franchise Authority”) to construct and operate a cable communications system in Savannah/Chatham County, GA(the [“City”/“County”]). WHEREAS, all equipment necessary for the delivery of multi-channel video service to the Premises (the “System”) has been installed in accordance with Federal Communications Commission (“FCC”) regulations, industry standards and local codes. WHEREAS, Owner Owner desires to provide certain services to the Premises on a bulk billing basis (the “Services”) and the Company is willing to provide the Services to the Premises in accordance with the terms and conditions below. 1. Delivery of Services; Fees and Charges. a) Company agrees to deliver Bulk Service to 1 outlet in each of 99 lots. As of the date of this Agreement, Bulk Service consists of the channel lineup set forth on Exhibit A attached hereto which is subject to change from time to time. The Owner shall pay the Company a monthly service fee equal to $11.05 per outlet for total monthly billing of $1093.95 for Bulk Video, plus all applicable taxes and fees. b) The monthly service fees identified above shall be due and payable upon receipt of an invoice and shall be subject to an administrative fee per month if not paid within fifteen (15) calendar days of receipt thereof. The Company may terminate this Agreement upon written notice to Owner in the event payment of the monthly service fees remain unpaid for sixty (60) days. c) The monthly service fees may be increased by the Company upon thirty (30) days written notice, which increase shall not exceed five percent (5 %) per year. 2. Access. The Owner will allow Company personnel to enter all common areas of the Premises for the purposes of installing, auditing and disconnecting service. Owner shall cooperate with the Company to prevent the unauthorized reception of the Services. 3. Programming, Licenses. a) Owner acknowledges and agrees that the Company has the right at any time to preempt, without prior notice, specific programs and to determine what substitute programming, if any, shall be made available. Company may in its discretion make additions, deletions or 5003 – RV Park Service Agreement July 2008 2 modifications to its channel line-up without liability to Owner or anyone claiming through Owner. Company shall not be liable for failure to deliver any programming which is caused by the failure of the programmer to deliver or make such programming available to Company or any other reason beyond the reasonable control of Company. b) The Bulk Service shall only be provided to the units, and may not be displayed (either in whole or in part) in bars, lounges, hallways, lobbies or other common areas of the Premises. Owner may not charge a cover charge or admission fee to the Premises for any Services. Owner shall not permit any advertisement, program delay, interruption, editing, insertion, deletion or alteration in the Services. Owner shall not authorize and shall take reasonable steps to prevent copying or videotaping the Services. Company shall have the right to review and approve any advertising or promotional materials concerning the Services. c) The Owner acknowledges that it may be required to obtain additional licenses or authorizations in order to publicly perform and/or display certain copyrighted material at the Premises. The Owner acknowledges and agrees that it (and not the Company) shall be solely responsible for obtaining all such licenses or authorizations and the payment of any charges or fees in connection therewith. 4. Ownership, Maintenance of the System. The System is and will remain the personal property of the Owner. The Owner shall maintain the System in accordance with applicable FCC regulations. The Company shall have no obligation to maintain the System. 5. Company/Owner Wiring Construction and Installation. a) The Company agrees to install all facilities necessary to transmit the Services to the Premises, including, but not limited to, distribution cables, amplifiers, pedestals, lock boxes, equipment and appurtenant devices (the “Company Wiring”) to a demarcation point located [to be determined] on the Premises, excluding coaxial wiring, connectors, splitters and wall plates. The Company Wiring is and will remain the personal property of the Company. The Company may from time to time add additional facilities to the Company Wiring. The Owner shall provide, without charge, a secured space and electricity, for such additional facilities as requested by the Company. All work shall be done by the Company in a proper and workmanlike manner in accordance with Federal Communications Commission (“FCC”) regulations, industry standards and local codes, unless otherwise provided in this Agreement. The Company shall be responsible for all costs and expenses incurred by it in operating, maintaining and repairing the Company Wiring. The Company agrees to repair and/or replace any damage to the Premises resulting from the installation, operation, maintenance or removal of the Company Wiring, except as otherwise provided in this Agreement. The Company will be responsible for obtaining all necessary permits, licenses and approvals in connection with the installation, maintenance and operation of the Company Wiring. b) Owner has installed all inside wiring after the demarcation point necessary for the Company to distribute the Services to the Premises (the “Owner Wiring”) in accordance with the Company’s specifications. In the event that the Company determines that the Owner Wiring has not been installed in accordance with the Company’s specifications, the Company shall not be 5003 – RV Park Service Agreement July 2008 3 required to continue construction of the Company Wiring or to provide the Services until the Owner Wiring is made compatible with the Company Wiring. The Owner shall maintain, repair and upgrade the Owner Wiring at its sole expense. The ownership of all parts of the Owner Wiring is and will remain the personal property of the Owner. c) At no time during or after the term hereof shall the Owner or any third party have the right to tap into, use or otherwise interfere with the Company Wiring or any portion thereof for any purpose. 6. Limitation of Liability. THE COMPANY SHALL NOT BE LIABLE TO OWNER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS, LOSS OF PROFITS, LOSS OF CAPITAL, COST OF SUBSTITUTE PRODUCT(S), FACILITIES OR SERVICES, OR DOWN TIME COST, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7. Customer Service. The Company shall provide customer service in accordance with its franchise agreement with the Franchise Authority. Company representatives will be available to respond to customer telephone inquiries during normal business hours. The Company will begin working on service interruptions promptly and in no event later than the next business day after notification of the service problem, excluding conditions beyond the control of the Company. 8. Interference. Should any device or any facility belonging to Owner not comply with the technical specifications established by the FCC, including, but not limited to, signal leakage, which interferes with the Company’s delivery of the Services, the Company reserves the right to discontinue service to the Premises until such non-conformance is cured by the Owner. 9. Term. This Agreement, when duly executed by both parties, shall constitute a binding agreement between the Owner and the Company and their respective successors and assigns for an initial term of one (1) years. This Agreement shall automatically renew for successive periods of one (1) year unless either party shall provide the other with a minimum sixty (60) days notice of its intention not to renew at the end of the then current term. 10. Insurance. The Company agrees to maintain public liability insurance and property damage liability insurance as required by the Company's franchise agreement with the Franchise Authority. Upon request, the Company will provide the Owner with a certificate evidencing such insurance. 11. Indemnification. The Company shall indemnify, defend and hold the Owner harmless from any and all claims, damage or expense arising out of the actions or omissions of the Company, its agents and employees with respect to the Services provided to the Premises pursuant to this Agreement. The Owner shall indemnify, defend and hold the Company harmless from any and all claims, damage or expense arising out of the actions or omissions of the Owner, its agents and employees, including, but not limited to, claims of copyright infringement resulting from the unauthorized exhibition of premium or pay-per-view programming. 5003 – RV Park Service Agreement July 2008 4 12. Termination. a) Default. In the event either party defaults in the performance of any of the material terms of this Agreement, the non-defaulting party shall give the defaulting party written notice specifying the nature of such default and identifying the specific provision in this Agreement which gives rise to the default. The defaulting party shall have sixty (60) days to either (i) notify the non-defaulting party that no default occurred, (ii) cure the default, or (iii) if such default is incapable of cure within such sixty (60) day period, commence curing the default within such sixty (60) day period and diligently pursue such cure to completion. In the event the defaulting party fails to do so within such sixty (60) day period, the non-defaulting party may terminate this Agreement upon thirty (30) days written notice without further liability of either party. b) Permanent Loss of Authority. This Agreement shall terminate automatically without any further liability on the part of the Company in the event the Company lacks authority to continue to provide the Services at the Premises due to loss of governmental authorization. However, this clause shall not apply to periods of transition or dispute such as franchises subject to renewal, transfer, or reapplication, or where termination is the subject of dispute. 13. Dispute Resolution. All disputes under this Agreement shall be submitted to, and settled by arbitration in accordance with the rules of the American Arbitration Association. The parties shall appoint a mutually agreeable arbitrator reasonably familiar with multi-channel video program distribution systems and services. In the event the parties are unable to agree to a single arbitrator, the dispute shall be submitted to a panel of three (3) arbitrators, one of which shall be reasonably familiar with multi-channel video program distribution systems and services. Each party shall appoint an arbitrator and the two arbitrators so appointed shall then select a third arbitrator. The arbitrators shall apply applicable federal laws and regulations and the laws of the jurisdiction in which the Premises are located, without regard to its choice of law principles. The decision of the arbitrators shall be binding and conclusive on all parties involved, and judgment upon their decision may be entered in a court of competent jurisdiction. The prevailing party in any such arbitration shall be entitled to collect from the non-prevailing party, all costs of the arbitration, including reasonable attorneys' fees. 14. Miscellaneous. a) Force Majeure. The Company shall not be liable for failure to construct or to continue to operate the System during the term hereof due to acts of God, the failure of equipment or facilities not belonging to Company (including, but not limited to, utility facilities or service), denial of access to facilities or rights-of-way essential to serving the Premises, government order or regulation or any other circumstances beyond the reasonable control of the Company. b) Assignability; Binding Effect. This Agreement may be assigned by either party. The assignee shall agree in writing to be bound by all the terms and conditions hereof. In the event the Owner sells, assigns, transfers or otherwise conveys the Premises to a third party, the Owner shall give the Company prior written notice of such change of ownership or control. 5003 – RV Park Service Agreement July 2008 5 Owner shall cause any new owner or controlling party to expressly assume this Agreement and agree to be bound by its terms. This Agreement shall be binding upon the parties and their respective successors and assigns. c) Applicable Law. This Agreement shall be governed and construed in accordance with applicable federal laws and regulations and by the laws of the jurisdiction in which the Premises are located, without regard to its choice of law principles. d) Invalidity. If any provision of this Agreement is found to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement will not be affected or impaired. e) Recording. The Company may record this Agreement (or a memorandum summarizing the material terms) in the public records of the county in which the Premises are located. f) Notices. All notices, demands, requests or other communications given under this Agreement shall be in writing and be given by personal delivery, certified mail, return receipt requested, or nationally recognized overnight courier service to the address set forth below or as may subsequently in writing be requested. If to Owner: City of Tybee d.b.a. Rivers Campground 915 Fort Ave. Tybee Island GA 31328 Attn.: Manager If to the Company: Comcast of Georgia/South Carolina 145 Park of Commerce Drive Savannah GA 31405 Attn.: Vice President/General Manager With a copy to: Comcast Cable Communications, LLC One Comcast Center Philadelphia, PA 19103 Attn.: General Counsel g) Entire Agreement; Amendments. This Agreement, including Exhibits A and B attached hereto, constitutes the entire agreement between the parties and supersedes all prior agreements, promises and understandings, whether oral or written. This Agreement shall not be modified, amended, supplemented or revised, except by a written document signed by both 5003 – RV Park Service Agreement July 2008 6 parties. h) Authority. Each party represents to the other that the person signing on its behalf has the legal right and authority to execute, enter into and bind such party to the commitments and obligations set forth herein. [the remainder of this page left blank intentionally] 5003 – RV Park Service Agreement July 2008 7 IN WITNESS WHEREOF, the parties hereto have caused this RV Park Bulk Services Agreement to be executed by their duly authorized representatives as of the date first written above. OWNER WITNESS/ATTEST CITY OF TYBEE D.B.A. RIVERS CAMPGROUND By: Name: Name: ______________________________ Title: _______________________________ COMPANY ATTEST: COMCAST OF GEORGIA/SOUTH CAROLINA INC. By: Name: Name: Michael Daves Title: Vice President/General Manager 5003 – RV Park Service Agreement July 2008 8 STATE OF _________________ ) ) ss. COUNTY OF _______________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 2011 by _______________________(name), the ____________________(title) of City Of Tybee d.b.a. Rivers Campground (entity), on behalf of said entity. He/she is personally known to me or has presented ____________________ (type of identification) as identification and did/did not take an oath. Witness my hand and official seal. __________________ __________________ Notary Public (Print Name) My commission expires: ________________ STATE OF ______________ ) ) ss. COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this ____ day of ______________, 2011 by Michael Daves (name), the Vice President/General Manager (title) of Comcast of Georgia/South Carolina Inc. (entity), on behalf of said entity. He/she is personally known to me or has presented ____________________ (type of identification) as identification and did/did not take an oath. Witness my hand and official seal. __________________ __________________ Notary Public (Print Name) My Commission expires: ____________ 5003 – RV Park Service Agreement July 2008 9 EXHIBIT A Bulk Service Channel Lineup Savannah ChannelLIneup Channel Number 2 WSAV-NBC 2 3 TV Guide Network 3 4 WJCL-ABC 4 6 WTOC-CBS 6 7 Cable 7 7 8 Government Access 8 9 WVAN-PBS 9 10 WTGS-FOX 10 11 QVC 11 12 ION Television 12 13 WGSA-CW 13 14 WGN 14 16 Educational Access 16 17 Inspiration Network 17 18 ABC Family 18 19 Trinity Broadcasting Network 19 20 Comcast Sports Southeast 20 21 Fox Sports Net 21 22 ESPN 22 23 ESPN2 23 24 Travel Channel 24 25 The Weather Channel 25 26 C-SPAN 26 28 CNBC 28 29 MSNBC 29 30 CNN 30 31 CNN Headline News 31 32 Fox News 32 33 Versus 33 34 CMT 34 35 GAC 35 36 VH-1 36 37 MTV 37 38 BET 38 39 Comedy Central 39 40 SCI-FI Network 40 41 USA Network 41 42 TNT 42 43 FX 43 44 style. 44 45 Bravo 45 46 A&E Network 46 5003 – RV Park Service Agreement July 2008 10 47 SportSouth 47 49 Food Network 49 50 Lifetime 50 51 HGTV 51 52 E! Entertainment 52 53 TV One 53 54 TV Land 54 55 Animal Planet 55 56 EWTN 56 58 Nickelodeon 58 59 Disney Channel 59 60 Cartoon Network 60 61 AMC 61 62 Univision 62 64 Spike TV 64 65 TLC 65 66 Discovery Health 66 67 History Channel 67 70 Golf Channel 70 5003 – RV Park Service Agreement July 2008 11