WITNESSETH: AGREEMENT

Transcription

1 BULK CABLE TELEVISION AND ACCESS AGREEMENT THIS AGREEMENT, made this go day of November, 1989 by and between SARATOGA AT ROYAL PALM PROPERTY OWNER'S ASSOCIATION, INC., a Florida corporation not- for profit (hereinafter referred to as ASSOCIATION ), having its principal office at th Avenue North, Lake Worth, Florida 33461, and NATIONAL CABLE LTD., a Florida limited partnership ("National") whose address is 7378 Lake Worth Road, Lake Worth, Florida WITNESSETH: WHEREAS, the Association is the entity formed to administer, operate and maintain the common property and common interests of the Development known as Saratoga at Royal Palm, located in Palm Beach County, Florida, the legal description of which is attached hereto and made a part hereof as Exhibit "A" (the "Development"). A portion of Development has been platted as Saratoga at Royal Palm Plat No. I, recorded in Plat Book 61, Pages 66 to and including 74 of the Public Records of Palm Beach County, Florida (collectively the Plats ). The Association- wishes to ensure the immediate availability to purchasers of residential units at the Development of a properly licensed and franchised cable television operator and system having a reputation for high quality service at competitive service rates. Association has interviewed, inquired about and received proposals from a number of cable television companies and has found National to be the most desirable to provide high quality service and competitive rates. The parties are desirous of entering into a cable agreement whereby National will furnish television and radio signals via its cable television facilities and system to the Development pursuant to the terms and conditions set forth herein. AGREEMENT NOW THEREFORE, in consideration of the sum of ten dollars ($10.00) and other valuable considerations, the receipt of which is hereby acknowledged, the parties, intend to be legally bound, hereby agrees as follows: 1. Exclusive Right to serve. To the extent legally valid, the Association hereby grants to National the exclusive right and privilege, subject to all applicable laws, ordinances and regulations, which right and privilege shall be non- revocable, except as herein provided, to install, construct, own, maintain and operate a cable television system of origination, transmission and distribution of National's cable system of television signals, radio signals and data signals, along, in, under, over and across the property in the Development, and. upon all the roads and streets shown upon that certain plat of the Development which plat is incorporated herein and made a part hereof by reference together with any extensions of said Development. Such exclusive non- revocable right and privilege shall include, but not be limited to, the utilization of any and all utility easements as may be necessary to provide said cable television service within the Development by National. 1

2 National shall have the exclusive right of constructing and operating a cable television system to serve the residents within the homes, dwellings and/or structures, now or hereafter, constructed within the Development. National recognizes and understands that often utility service companies, including but not limited to, power, water, sewer and telephone, may also be utilizing said utility easements and National warrants that it will not interfere with or damage the installation of these systems or any other property, real or personal, of the Developer, its agents or the residents of the Development. 2. Easement Grant. Concurrently with the execution of this Agreement, Association will execute an easement grant, a copy of which is attached hereto as Exhibit "B", and made a part hereof, in favor of National, for the location, placement, replacement, construction, operation and maintenance of all wires, cables, amplifiers, terminal boxes and other electrical equipment or personal property of National, its successors or permitted assigns, required or useful, for providing cable television service within the Development. 3. Outside Antenna Prohibited. Association warrants that the Declaration of Restrictive Covenants for the Development shall contain a covenant prohibiting the erection of any outside antenna, or satellite dishes and Association covenants - that it shall strictly enforce such restriction. 4. Cable Service to be Provided to All Residents. National hereby agrees to build and make available to all residents of the Development cable television service, which it furnishes, or offers, to any other subscriber or customer within its service or franchise area, as governed by the Village of Royal Palm Beach Franchise to be granted to National, except as modified herein. National agrees to build and maintain the cable television system within the Development in a good and workmanlike manner and in accordance with approved engineering standards for good construction and reception and in full compliance with the technical standards set forth in Subpart (K) of the Federal Communications Commissions Cable Television Rules. National agrees to furnish to all residents within the Development that subscribe to National's services, good quality reception of all channels and transmissions carried on National's cable television system installed pursuant to this Agreement, except in cases of emergency or interference or acts of God beyond the control of National. The cable television system to be constructed, provided and offered by National to the residents of the Development shall be a State- of- the- Art cable television system capable of delivering sixty (60) channels to each home in the Development. The cable television system shall contain a standard package of up to twenty (20) channels as indicated on Exhibit "C" attached hereto and made a part hereof ("Bulk Basic Service"). The optional services including premium channels and the initial rates for such service and channels are also indicated on Exhibit "C". National agrees to use its best efforts to provide Bulk Basic Service to the Development no later than thirty (30) days subsequent to the execution of this Agreement. National agrees to provide quality reception to each resident/subscriber in the Development so that both sound and picture are produced free from visible and audible distortion and ghost images, on standard television receivers in good repair essentially the same as that received at <the antenna site of 2

3 National. The cable television system as installed shall be capable of passing standard, television signals without the introduction of material degradation on color fidelity and intelligence. National's cable television system installed in the Development shall also provide quality F.M. radio signals if such signals are provided on the system in other parts of National's franchise area. 5. Community Channel. National agrees to reserve one (1) channel, to be designated as the community channel ("Community Channel") for the exclusive use of Association and to be utilized for community services and programs and for character generation for community announcements and other such similar uses. In addition, and not in limitation of any other indemnification of Association to National contained in this Agreement, Association agrees to indemnify and hold National harmless from any and all claims, loss, liability, damages, expenses or judgments, including reasonable attorneys fees, to persons or property that may arise out of or in connection with the improper or unlawful use of the Community Channel by Association, including without limitation, claims against National for damages or expenses suffered by National, for slander, libel, copyright infringement and copyright fees. 6. Temporary Head End Location. The parties agree that National shall be permitted to construct, install and maintain a temporary earth station antenna and head- end facility at a location at the Development to be mutually agreed to by both parties, to enable National to provide cable television services to the Development within thirty (30) days of execution of this Agreement. The parties further agree that such earth station antenna and head- end facility is to be temporary in nature and utilized by National until National shall be able to provide cable television service to the Development from a head- end facility located outside of the geographical boundaries of the Development. National agrees to provide cable television services to the Development from a head- end location outside the geographical boundaries of the Development as soon as possible. 7. Subscribing Residential Unit. Each prospective purchaser of a residential unit at the Development, shall at the time of closing of the sale and conveyance of such unit, have the option to elect to receive or not to receive the cable television services to be provided to the Development by National. In the event such prospective purchaser exercises its option and elects to receive the cable television services to be provided by National to the Development ("Subscribing Residential Unit(s) ") such Subscribing Residential Unit owner shall execute a subscriber agreement ("Subscriber Agreement") in substantially the form attached hereto and made a part hereof as Exhibit "D". The Subscriber Agreement shall grant to National, its successors and assigns, exclusive easement for the entire term of this Agreement, over, upon and through such unit for the purposes of installation and maintenance of National's cable television system and for the provision of Bulk Basic Service to such unit. 8. Payment by Association. Association shall pay to National a monthly fee for the Bulk Basic Service provided to each and every Subscribing Residential Unit at the Development, as proved herein. Commencing on the first day of the month following receipt by National of Developer's Affidavit informing National that a unit at the Development has been conveyed and sold, and the purchaser has elected to receive cable television service, the Association shall pay for the term of this Agreement, a monthly fee for such Subscribing Residential Unit, and all such Subscribing Residential Units, sold and 3

4 conveyed thereafter, as follows: The initial monthly fee per unit for Bulk Basic Service shall be $12.95 plus applicable taxes and franchise fees per subscribing Residential unit ("Bulk Basic Service Fee ). The initial Bulk Basic Service Fee shall remain at such level through December 31, Any cost increases thereafter shall be limited to a maximum of ten (10%) percent per annum. National represents and warrants to Association, that the Bulk Basic Service Fee in effect during the term of this Agreement shall never exceed seventy five (75%) percent of the basic residential subscriber rate in effect that National charges for basic cable service to citizens of the Village of Royal Palm Beach, Florida on an individual subscriber (non- bulk) basis. The Bulk Basic Service Fee includes and provides for the provision of Bulk Basic Service to two (2) cable television outlets for each and every- subscribing residential unit at the Development. The Bulk Basic Service Fee for all Subscribing Residential Units within the Development shall be paid by the Association to National within twenty- five (25) days following the month for which service was rendered the preceding month. If the payments are not received by the twenty- fifth (25th) day- of such calendar month, the Association will be responsible for a late payment charge of one and one half percent (1 1/2%) per month for each and every month which is outstanding for a period of more than thirty (30). National agrees that all cable television services in addition to the Bulk Basic service, (premium and other optional services) shall be billed individually to the residential unit owners within the Development who request such services and the Association shall not be obligated to pay National for individual services requested by residential unit owners. It is agreed that Association shall be required to pay the monthly Bulk Basic Service Fee per residential unit for all Subscribing Residential Units of the Development for the term of this Agreement for all residential units that initially elected to receive cable television service at the time of sale and conveyance of all such units even for such units that discontinue service for whatever reason. Association's obligation to pay to National under this Agreement the monthly Bulk Basic Service Fee per residential unit to National for all Subscribing Residential Units including those that discontinue and do not receive service once election to receive cable television service has been made at the time of sale and conveyance of such unit is one of the material considerations of National and the reason why National has been induced to enter into this Bulk Agreement with Association and it is only because of such consideration that National is willing to agree to provide the Bulk Basic Service at the Bulk Basic Service Fee to residential units within the Development. Therefore, Association understands and expressly agrees that it is Associations absolute obligation to pay to National the monthly Bulk Basic Service Fee for each and every Subscribing Residential Unit in the Development commencing as of the first day of the month following sale and conveyance of a unit and the election to receive cable television service for all such units for the term of this Agreement. In the event a unit owner who had previously elected to subscribe to cable television service fails to pay the Bulk service Fee to the Association for a period of sixty (60) days, then Association may provide a notice thereof to National and National shall cooperate with Association to disconnect Bulk Basic Service from the unit owner in default. Disconnection of Bulk Basic Service by National at the request of Association for a defaulting unit owner shall in no event excuse Association from paying to National the monthly bulk Basic Service Fee for such defaulting unit. 4

5 9. Insurance. Company shall, at all times during the term of this Agreement, carry and require its contractors to carry the following insurance, in no less than the following minimum amounts: (a) Insurance to protect the Company from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction, erection, operation or maintenance of any structure, equipment, appliance or products authorized or used by Company pursuant to the authority of Company in performance of this Agreement, and the amount of such insurance against liability due to damage or injury to property shall not be less than $500, as to any one accident and $1,000, as to two or more, and against liability due to injury or death of persons $500, as to any one person and $1,000, as to two or more persons- in any one accident. (b) Workman s compensation insurance with limits of not less than $100,000 and otherwise in compliance with the laws of the State of Florida. (c) Vehicular liability insurance with personal injury limits of not less than $500, $1,000, and vehicular liability property damage insurance with a limit of not less than $500, to cover all automobile accidents. (d) Excess liability insurance with limits of not less than $500, of bodily injury and property damage are less than the minimum amount. Copies of all insurance policies referenced above, to be obtained by National in compliance with this paragraph, shall be furnished to Association within ten (10) days of execution of this Agreement. Association shall be an additional insured on such policies of insurance and shall be entitled to not less than ten (10) days notice of cancellation or non- renewal. National shall provide to Association each year, or within thirty (30) days of the expiration date of any insurance policy, evidence that the insurance has been renewed. 10. Term. This Agreement shall be effective for a period of thirty (30) years from the date cable service commences to the first unit at the Development unless sooner terminated as provided herein. 11. Installation of System. The location, construction, maintenance and operation of the cable television system by National at the Development will be conducted in a time and manner so as to cause the least interruption of and interference with the proper use of lands, sidewalks, streets, alleys, public utility easements and- other public ways and places ("Public Ways") and access of the Development, and to cause a minimum interference with the rights or reasonable convenience of the Development and the residential owners whose property adjoins any of said access or Public Ways. In the event that National, its agents, servants or employees, shall damage or injure any of the property of the Developer or the owners in or residents of the Development in the installation, operation and/or maintenance of the cable television system, or as a result of the failure to properly maintain the cable television system, then National shall fully and promptly repair and restore to a condition as good as before such damage or injury. In the event National fails to so repair or restore within a reasonable time, 5

6 Association shall notify National in accordance with paragraph 18 hereof, that National is in default of this Agreement, and unless the default is corrected within thirty (30) days of the date of such notice, Association shall have the right to have the necessary repairs made eat National s expense. The thirty (30) day period to correct such default shall be extended for such time as it shall take to correct such default provided that National has undertaken the correction of such default within said thirty day period and diligently and continuously pursues such correction to completion. The parties agree that time is of the essence with respect to correcting any defaults of this Agreement. National agrees to, and shall, promptly reimburse Association for all costs and damage incurred by Association as a result of the failure of National to make such repairs and/or restorations as provided for in this paragraph. In the event that such reimbursement is not made by National within fifteen (15) days after such amounts shall be due and payable, Association and/or the Association shall have the right to offset such costs and damage against Association payments for the cable television service due and payable to National. 12. Ownership of Equipment. It is agreed that any and all materials, cable and equipment installed by National in the Development pursuant to this Agreement, including the pre wires referred to in Paragraph ll below, is to be, and shall remain, the sole property of National, except as otherwise herein provided. National shall be permitted to remove its materials, cable and equipment no later than 180 days after the expiration or termination of this Agreement or any renewal or extension hereof. All other material, cable and equipment shall be and remain the property of the National whether or not removed. Any and all property of Association or any resident of the Development that is damaged by such removal shall be immediately repaired or replaced by National, at its sole expense to its original condition prior to such damage. Neither Association nor any resident of the Development shall acquire any right, title or interest in or to any property of National except such rights as are specifically stated in this Agreement. Association is not, and never shall be, liable to any creditor of National for any debt, loss, contract or other obligation of National. The relationship between Association and National is not and shall not constitute a partnership or joint venture. 13. Pre wires. National agrees to, and shall at its sole cost and expense, provide, install, and pre wire two (2) cable television outlets in each unit within the Development. In addition, National shall, at its sole cost and expense, install such pre wires in locations as requested by Association in the clubhouse within the Development. National shall be obligated to pre- wire the residential units and Clubhouse on a timely basis as requested from time to time by the Association or by individual builders constructing such residential units. National agrees and acknowledges that the coordination and prompt installation of pre- wires is of- critical importance and National agrees to use its best efforts to timely pre wire such units. 14. Additional Actions of Association. The parties agree that one of the primary objects of this Agreement is to make the services of National to be rendered to the Development and its residents exclusive of all other such services, to the extent legally valid. Association agrees that it shall cooperate with National in insuring the exclusivity of the rights and services provided by National hereunder, provided, however, Association shall not be required to execute any document or perform any action 6

7 which would, in Association's reasonable judgment: Cause Association to incur any additional costs or expenses beyond those required by this Agreement, including but not limited to attorneys fees and costs, unless National has agreed to pay such additional costs or expenses, including attorneys fees. 15. Indemnification. National hereby agrees to indemnify and hold Association and its officers and directors harmless from and against any and all claims, loss, liability, damages, judgments, costs, fees, including reasonable attorneys fees through appellate proceedings, and demands whatsoever that may arise in connection with the installation, construction, maintenance, operation and/or repair of the cable television system to be constructed and operated in the Development or by reason of any claim by any person or entity relating to alleged violations of state or federal anti trust laws. Association agrees to indemnify and hold National harmless from and any and all claims, loss, liability, damages of judgments, including reasonable attorneys fees, to persons or properties that may arise out of or in connection with the negligence or willful misconduct of the Association, its agents, employees or invitees on or within the Development, or by breach of any of the representations or warranties of Association contained in this Agreement, or the failure on the part of Association to perform any of the agreements contained herein. 16. Termination. National may terminate this Agreement upon ninety (90) days written notice to Association upon the institution of any law, rule or regulation making it impossible for National to install, maintain or operate the service substantially as agreed to hereunder. In the event that: (1) there shall be filed by or against National pursuant to any statute of the United States or any state relating to bankruptcy or insolvency, a petition of bankruptcy or insolvency, and such petition shall be approved, or National shall be adjudicated a bankrupt or insolvent; or (2) a receiver or trustee shall be appointed for National or the property of Company and such receivership or such trusteeship shall not be terminated within 60 days after such appointment; or (3) National shall make an assignment for the benefit of creditors; or (4) National shall commit a default in the prompt and full performance of any and every provision of this Agreement on its part to be performed; or (5) National shall lose or fail to have and maintain its FCC license or certificate of compliance for the operation by National of the services and/or facilities provided as herein described: or (6) National shall have its CATV franchise revoked by Village of Royal Palm Beach; then in any one of such events Association shall have the right and privilege of terminating the term of this Agreement provided that National shall have a period of thirty (30) days after written notice of the default by Association within which to remedy said default before Association shall have the right to terminate this Agreement as herein provided. The thirty (30) day period to correct such default shall be extended for such time as it shall take to correct such default provided that National has undertaken the correction of such default within said thirty (30) day period and diligently and continuous pursues such correction to completion. The termination of the exclusive nature of this Agreement by the consent of the parties or by a final court decree shall not terminate any other provision of this Agreement or of the attached easement unless otherwise agreed by the parties. 7

8 National shall not be held in default hereunder in the event the failure of National to perform is caused by strikes or acts of God, provided however, that National shall proceed with all due diligence to take whatever action (may be reasonable and necessary to enable it to perform its obligations hereunder within a reasonable period of time following the occurrence of such strikes or acts of God. 17. National Solicitation. National may solicit subscriptions from residents of units in the Development for the cable television services to be provided by National to the Development as herein provided, and National shall do so in a timely, businesslike manner, so as not to interfere, harass, or unreasonably pressure such residents of the Development. 18. Representations. Association and National hereby represent and warrant to the other that they each have the right and authority to enter into this Agreement under the laws of the State of Florida. 19. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. Venue of any action and proceeding brought hereunder or pursuant hereto shall be exclusively in Palm Beach County, Florida. 20. Notices. Any notice or communication provided for herein by any of the parties shall be deemed duly given if in writing and delivered or sent by prepaid telegram or mailed by certified mail, postage prepaid, return receipt requested, or by express overnight courier as follows: National: With Copy To: Association: With Copy To: National Cable Ltd Lake Worth Road Lake Worth, Florida Attention: Operations Manager Fredric E. Epstien, Esquire Boase Casey Ciklin Lubitz Martens McBane & O'Connell 51S- North Flagler Drive 18th Floor West Palm Beach, Florida Saratoga at Royal Palm Property Owner's Association, Inc th Avenue North Lake Worth, Florida Gary L.,Kornfeld, Esquire Levy, Kneen, Boyes et al 1400 Center Park Boulevard Suite 1000 West Palm Beach, Florida

9 21. Successors or Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. National may assign this Agreement provided that such assignee shall assume and obligate itself to perform the terms and provisions of this Agreement pursuant to a written instrument delivered to Association and that the Association consents thereto: provided, however, that if the Village of Royal Palm Beach approves the transfer of the cable television franchise held by National to such assignee, then Association shall be deemed to have consented to the assignment of this Agreement. 22. Entire Agreement. This Agreement and the documents referred to herein set forth the entire agreement and understanding between the parties as to the subject matter hereof and supercedes any and all prior discussions, agreements or understandings, oral or written. 23. Litigation. In connection with any litigation arising out of this Agreement, the prevailing party shall be entitled to recover all costs incurred including, but not limited to, reasonable attorneys fees at all trial and appellate levels and post judgment proceedings. 24. Captions and Paragraph Headings. All captions or titles of paragraphs used in this Agreement are for convenience only and are not intended to construe, limit, define or describe the scope or intent of any paragraph of this Agreement- or any way- affect this Agreement. 25. Integration, Waiver and Severability. No waiver or modification of this Agreement or any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the parties hereto. No evidence of any waiver or modification shall be offered or received in evidence in any proceedings, or litigation between the parties hereto arising out of or affecting this Agreement or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid. The parties further agree that the provisions of this Agreement may not be waived except as set forth herein. All agreements, paragraphs and covenants contained herein are severable and in the event any of them shall be held to be invalid by a court of competent jurisdiction, then this Agreement shall be interpreted as if such invalid agreement, paragraph or covenant were not contained herein, except that if National is prevented from providing the services to the Development by a court of competent jurisdiction then Association's obligation to pay to National the monthly Bulk Service Fee shall immediately be extinguished. 9

10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. ASSOCIATION: SARATOGA AT ROYAL PALM PROPERTY OWNER'S ASSOCIATION, INC. Don Souter.. BY: Claudia A Saurney Its: Vice- President. Serena Poff. NATIONAL: NATIONAL CABLE LTD., a Florida limited partnership By: NATIONAL CABLE SERVICES CORP., a Florida corporation, its Managing General Partner By: Geoffrey C Gill Geoffrey C. Gill Executive Vice President Don Souter Serena Poff (Per verbal agreement it was established on 5/23/91 that National pre- wires three (3) cable television outlets in each units within Development. Signed by Chuck Blaine.) 10