HomeMy Public PortalAboutRivers End Campground-Comcast Agreement 09 09 08BULK INSTALLATION AND SERVICE AGREEMENT
THIS BULK INSTALLATION AND SERVICE AGREEMENT (the “Agreement”) is made and entered into this _____day of September, 2008, by and between COMCAST OF GEORGIA/SOUTH CAROLINA, INC.(the "Company"),
whose address is 145 Park of Commerce Drive, Savannah, Georgia, 31405 and CITY OF TYBEE ISLAND ("Owner") whose address is 403 Butler Avenue, Tybee Island, Georgia, 31328, who owns or
has control over certain real estate and improvements thereon located at 915 Polk Street, Tybee Island, Georgia, 31328, more commonly known as Rivers End Campground & R. V. Park (the
"Premises"), consisting of cabins, camping sites, and R. V. sites, (collectively the “Sites”) for collective total of #86 Sites and any Sites added in the future during the Term of this
agreement.
The Company has been granted by the City of Tybee Island (the “City”) a franchise to construct and operate a cable communications system in the City. The Owner desires to provide certain
services to the Premises on a bulk billing basis (the “Services”) and the Company is willing to install, maintain and operate a cable communications system for such purposes on the Premises
in accordance with the terms and conditions below.
1. System Construction and Installation. The Company, for the term of agreement, agrees to install all facilities necessary to transmit the Services to the Premises, including, but
not limited to, distribution cables, amplifiers, pedestals, lock boxes, cable home wiring, cable home run wiring, connectors, splitters, wall plates, jumper-cables, equipment and appurtenant
devices (the “System”). 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 constructing the System. The Company agrees
to repair and/or replace any damage to the Premises resulting from the installation, operation, maintenance or removal of the System. The Company will be responsible for obtaining all
necessary permits, licenses and approvals in connection with the construction, installation and operation of the System.
a) Prior to the installation of the System, construction plans prepared by the Company may be reviewed and approved by the Owner, provided that Owner’s approval shall not be unreasonably
withheld. Owner shall locate on such plans to the best of its ability all underground facilities existing on the Premises. Owner shall give the Company at least ten-(10) days notice
of the opening of utility trenches on the Premises so that the Company may, at its option, install the System in the common utility trenches, and shall otherwise cooperate with the Company
in the construction and installation of the System.
b) The ownership of all parts of the System installed by the Company shall be and will remain the personal property of the Company. At no time during or after the term hereof shall
the Owner or any third party have the right to use the System or any portion thereof for any purpose.
2. Easement. The Owner has the authority to grant and does hereby grant to the Company a non-exclusive easement to place its lines in, on, over, under and across the Premises and to
operate the System, and shall cause such easement to run with the Premises. The Owner hereby agrees to execute the form of easement attached hereto as Exhibit A.
3. Access. The Owner will allow Company employees to enter all common areas of the Premises for the purposes of auditing, selling and disconnecting service, installing, maintaining,
repairing, replacing or removing equipment and apparatus connected with the provision of the Services and will use reasonable efforts to assure the Company access to any parts of the
Premises over which it des not have control for the same purposes. Owner shall cooperate with the Company to prevent (i) the unauthorized possession of converters or channel selectors
and (ii) the unauthorized reception of the Services.
4. Delivery of Services. The Owner has the authority to grant and does hereby grant to the Company during the term hereof the exclusive right to install, operate, and maintain the System
(whether by cable, satellite, microwave or otherwise) and to deliver the Services to the Premises, unless otherwise required by applicable law.
5. Fees and Charges for Services.
Company agrees to deliver Expanded Basic Service consisting of “Limited Basic,” and “Expanded Basic” tiers of service to the outlet(s) serving each of the #86 Sites. As of the date
of this Agreement, Expanded Basic Service consists of the channel lineup set forth on Exhibit B attached hereto which is subject to change from time to time. The Owner shall pay the
Company a monthly service fee equal to $10.28 per Site for a total monthly billing of $884.08 for Expanded Basic Service, plus all applicable taxes and fees. Woody, this “Rate” applies
if the “Term” (Section #9.) has inserted in it “ten-(10) years” as you will find when you get to it. If you want:
Term-In-Years you will a Rate of
9 $10.78
8 $11.28
7 $ 11.78
then please remove what is there and insert the Years and Rate your folks and you decide upon.
Woody, there are no differences in the agreement’s terms except for this decision i.e. regardless of Term Length/Rate-per-Site we provide the same Service, Maintenance, Channels,
etc.—Stace.
b) The monthly service fees identified in subsection a) shall commence on the date of execution of this agreement by Owner first written above, and be due and payable upon receipt of
an invoice and shall be subject to an administrative fee of 1% 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 remains unpaid for sixty (60) days.
c) Company may adjust the Outlet Subscription Rate once per 12 month period commencing with its billing for September, 2010, and every 12 months thereafter for the Term of agreement.
Company’s adjustment is limited to the lesser of the U.S. Department of Labor’s Consumer Price Index for Cable Television(“CPI”) or 4.5%.
6. Limitation of Liability.
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 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) 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 COMPANY SHALL NOT BE LIABLE TO OWNER FOR ANY LOST PROFITS, 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. Neither the Owner nor anyone operating on its behalf will tap or otherwise interfere with the System for any purpose. 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 ten-(10) years . Thereafter, 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 installation, operation, maintenance or removal of the System and 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.
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. Removal of System. Upon termination of this Agreement for any reason, the Company shall have a period of six (6) months in which it shall be entitled but not required to remove the
System, including the cable home wiring and cable home run wiring. The Company shall promptly repair any damage to the Premises occasioned by such removal.
14. 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.
15. Common Area Courtesy Video Outlet. Company shall provide three-(3) outlets at no charge to Owner at the Premises with Limited Basic and Expanded Basic Cable Services (the “Video
Courtesy Outlets”). Owner acknowledges and agrees that it is prohibited by federal copyright law, and the Company’s agreement with its programming providers from ordering,
purchasing, or exhibiting premium services or pay-per-view programming in the common areas of the Premises. Owner hereby covenants and agrees that it will not order, purchase, receive
or exhibit premium services or pay-per-view programming in the common areas of the Premises, nor permit any other person to do so. In the event the Owner engages, authorizes or permits
any of the conduct described above, in addition to any other remedies available at equity or at law, the Company may terminate the Video Courtesy Outlets. The Owner shall reimburse
the Company for the Company's costs to replace any receivers or remotes issued to the Owner that are lost, stolen, missing or damaged within thirty (30) days of receipt of an invoice
from the Company.
16. 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.
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 the CITY OF TYBEE ISLAND:
RIVERS END CAMPGROUND & R.V. PARK 201 Stephenson Street
Tybee Island, Georgia, 31406
Attn.: General Manager
If to the Company:
Comcast
145 Park of Commerce Drive
Savannah, Georgia 31405
Attn.: Vice President/General Manager
With a copy to:
Comcast Cable Communications, LLC
1500 Market Street
Philadelphia, PA 19102
Attn.: General Counsel
g) Entire Agreement; Amendments. This Agreement, including Exhibits A, B, C and D 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 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.
(EXECUTION PAGE FOLLOWS)
IN WITNESS WHEREOF, the Parties have caused this Hotel/Motel Bulk Service and Installation Agreement to be executed by their duly authorized representatives as of the date first written
above.
WITNESS/ATTEST: OWNER: CITY OF TYBEE ISLAND
__________________________ By:_________________________________
(Signature) Name: ______________________________
_________________________ Title: ______________________________
(Print)
WITNESS ATTEST: COMPANY: COMCAST OF
GEORGIA/SOUTH CAROLINA, INC.
__________________________ By:________________________________
(Signature) Name: Michael S. Daves
_________________________ Title: Vice President/General Manager
(Print)
STATE OF GEORGIA )
) ss.
COUNTY OF CHATHAM )
The foregoing instrument was acknowledged before me this _______ day of September, 2008, by
________________, the Managing Member of
(Print Name) (Title)
CITY OF TYBEE ISLAND, on behalf of the LLC. 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 GEORGIA )
) ss.
COUNTY OF CHATHAM )
The foregoing instrument was acknowledged before me this ____ day of September, 2008 by
Michael S. Daves, Vice President/General Manager, of COMCAST OF GEORGIA/SOUTH CAROLINA, Inc., on behalf of the corporation. He/She is personally known to me and did not take an oath.
Witness my hand and official seal.
__________________
__________________ Notary Public
(Print Name)
My Commission expires: ____________
EXHIBIT A
GRANT OF EASEMENT
This Grant of Easement (the “Easement”) dated this ______ day of September, 2008 by and between COMCAST OF GEORGIA/SOUTH CAROLINA, INC., its successors and assigns, hereinafter referred
to as "Grantee" and CITY OF TYBEE ISLAND, hereinafter referred to as "Grantor".
Grantor and Grantee are parties to a Bulk Installation and Service Agreement dated ____ day of September, 2008 pursuant to which Grantee provides certain cable communications services
to the premises identified herein.
In consideration of One Dollar ($1.00), Grantor(s), owner(s) of the property described below, hereby grant(s) to Grantee, its successors and assigns, an easement in gross and right-of-way
to construct, use, maintain, operate, alter, add to, repair, replace, reconstruct, inspect and remove at any time and from time to time a cable communications system (hereinafter referred
to as the "System") consisting of wires, underground conduits, cables, pedestals, vaults, and including but not limited to above ground enclosures, markers and concrete pads or other
appurtenant fixtures and equipment necessary or useful for distributing cable television and other like communications, in, on, over, under, across and along that certain real property
(the “Property”) located in County of Chatham, State of Georgia described as follows:
LEGAL DESCRIPTION:
(See Attached Exhibit)
Grantor(s) agree for themselves and their heirs and assigns that the System on the Property shall be and remain the personal property of the Grantee and may not be altered, obstructed
or removed without the express written consent of the Grantee. The Grantee, and its contractors, agents and employees, shall have the right to trim or cut trees and/or roots which may
endanger or interfere with said System and shall have free access to said System and every part thereof, at all times for the purpose of exercising the rights herein granted: provided,
however, that in making any excavation on said Property of the Grantor, the Grantee shall make the same in such manner as will cause the least injury to the surface of the ground around
such excavation, and shall replace the earth so removed by it and restore the area to as near the same condition as it was prior to such excavation as is practical.
This easement shall run with the land for so long as Grantee, its successors or assigns provides cable television service to the Property.
Executed this _______ day of September, 2008.
WITNESS/ATTEST: OWNER: CITY OF TYBEE ISLAND
__________________________ By:_________________________________
(Signature) Name: ______________________________
_________________________ Title: ______________________________
(Print)
WITNESS ATTEST: COMPANY: COMCAST OF
GEORGIA/SOUTH CAROLINA, INC.
__________________________ By:________________________________
(Signature) Name: Michael S. Daves
_________________________ Title: Vice President/General Manager
(Print)
STATE OF GEORGIA )
) ss.
COUNTY OF CHATHAM )
The foregoing instrument was acknowledged before me this _______ day of September, 2008, by
________________, the Managing Member of
(Print Name) (Title)
CITY OF TYBEE ISLAND, on behalf of the LLC. 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 GEORGIA )
) ss.
COUNTY OF CHATHAM )
The foregoing instrument was acknowledged before me this ____ day of ____, 2008 by
Michael S. Daves, Vice President/General Manager, of COMCAST OF GEORGIA/SOUTH CAROLINA, Inc., on behalf of the corporation. He/She is personally known to me and did not take an oath.
Witness my hand and official seal.
__________________
__________________ Notary Public
(Print Name)
My Commission expires: ____________
EXHIBIT B
CHANNEL LINEUP
RIVERS END CAMPGROUND & R.V. PARK: EXPANDED BASIC SERVICE
CHs.
39
COMEDY CENTRAL
2
TV GUIDE
40
SCI-FI
3
ABC(Family)
41
USA
4
WSAV-NBC
(SAVANAH)
42
TNT
xxxxxxxxxxxxxxxxxx
XXXXXXXXX
XXXXXX
XXXXXX
43
FX
6
WTGS-FOX
(SAVANAH)
44
STYLE
7
WGSA-CW
45
BRAVO
8
GOVERNMENT
ACCESS
46
A&E
9
WVAN-PBS
47
SportsSouth
10
WTGS-FOX
49
FOOD NETWORK-
11
QVC
50
LIFETIME
12
iTV
51
HGTV
13
WGSA-UPN
52
E! ENTERTAINMENT
14
WGN-Chicago
53
TV One
15
SNEAK PREVUE
54
TV LAND
16
EDUCATION ACCESS
55
ANIMAL PLANET
17
INSPIRATION
Netw
ork
56
EWTN
18
ABC FAMILY
58
Nickelodeon
19
TRINITY
BROADCASTI
NG NET.
59
DISNEY CHANNEL Disney Chanel
20
CSS
(COMCAST SPORTS SO.
60
CARTOON NETWORK
21
FOX
SPORTS NET
61
American Movie Classics
22
ESPN
62
UNIVISION
23
ESPN2
63
HOME SHOPPING NETWORK
24
TRAVEL CH.
64
SPIKE TV
25
THE WEATH
ER CH.
65
The Learning Channel
26
C-SPAN
66
Discovery Health
28
CNBC
67
History Channel
29
MSNBC
68
Discovery Channel
30
CNN
69
TBS
31
CNN----HEAD LINE NEWS
70
GOLF CHANNEL
32
FOX NEWS
71
SPEED CHANNEL
33
Versus
72
HALLMARK
34
CMT
35
GAC
36
VH-1
37
MTV
BET
EXHIBIT C
SPECIFICATIONS
Woody, here goes what we need to add if I have missed anything. I wanted to e-mail you this so you have it in hand when I call you in 20 minutes.
--Stace