11/16/2011 Agreement DANNYL. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE: March 7, 2012
TO: Christine Hurley, Director
Growth Management Division
ATTN: Mayra Tezanos
Executive Assistant
FROM: Isabel C. DeSantis, D.C. jfilf
At the November 16, 2011, Board of County Commissioner's meeting, the Board
approved the following:
Item K4 Installation and services agreement between Comcast of
California/Colorado/Florida/Oregon, Inc. and Monroe County, Florida and Habitat for Humanity
of Key West and Lower Florida Keys, Inc. to provide cable transmission service and ancillary
services to property owned by Monroe County and leased to Habitat for Humanity located at
5530 3rd Avenue, Key West, Florida and approving an access easement required by Comcast.
Enclosed is a duplicate original of the above-mentioned for your handling. Should you
have any questions, please feel free to contact our office.
cc: County Attorney
Finance
File
INSTALLATION AND SERVICES AGREEMENT
This Installation and Services Agreement (the "Agreement") is dated �E/nBEI�' cad
2011, and is between Comcast of California /Colorado/Florida/Oregon, Inc., a Georgia Corporation
(the "Company "), and Monroe County, Florida (the "Owner "), who owns certain real estate and
improvements thereon located at 5530 3' Ave., Key West, FL 33040 (the "Premises "), consisting
of 12 residential units plus any units added or constructed in the future and Habitat for Humanity of
Key West and Lower Florida Keys, Inc., a Florida Non Profit Corporation (the "Ground Lessee ").
The Company has been granted a franchise by an authorized governmental agency (the
"Franchise Authority ") to construct and operate a cable communications system in Key West,
Florida (the "City"). The Ground Lessee desires to provide broadband services to the Premises,
including, but not limited to, multi - channel video, high speed data, information and voice services
(collectively, the "Services ") and the Company is willing to install, maintain and operate a
broadband communications system for such purposes on the Premises in accordance with the terms
and conditions below.
Ground Lessee is a party to an Occupancy Agreement and Ground Lease with the Owner
dated August 19, 2009, as amended from time to time (the "Lease ").
The parties, for good and valuable consideration, intending to be legally bound, agree as
follows:
1. Owner Owner joins this Agreement for the limited purposes set forth in this Agreement,
including, but not limited to, granting the Company an easement as set forth in Section 3.
2. System Construction and Installation
a) The Company shall install, maintain and repair 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 (collectively, the "Company Wiring ") excluding
cable home wiring, cable home run wiring, connectors, splitters, and wall plates. The Company
Wiring is and will remain the personal property of 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
installing, 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 construction, installation and operation of the Company Wiring.
b) The Ground Lessee has installed all cable home and cable home run wiring
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necessary for the Company to distribute the Services to the Premises (the "Inside Wiring ") in
accordance with the Company's specifications. The ownership of all parts of the Ground Lessee
Wiring is and will remain the personal property of the Ground Lessee.
c) The System will consist of the Inside Wiring and the Company Wiring.
d) Neither the Ground Lessee nor any third party shall tap into, use or otherwise
interfere with the System or any portion thereof for any purpose. The Company shall have the right
to interconnect with and use any telephony wiring owned or controlled by the Ground Lessee inside
the individual units that may become necessary or useful for the provision of the Services to the
residents, whether or not such facilities are owned, installed, controlled or maintained by the
Company.
3. Easement The Owner has the authority to grant and does hereby grant an easement in
favor of the Company to place its lines 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.
4. Access The Owner and Ground Lessee shall allow Company personnel to enter all
common areas of the Premises for the purposes of auditing, selling or disconnecting service, and
installing, maintaining, repairing, replacing or removing equipment and apparatus connected with
the provision of the Services, and shall use reasonable efforts to assure the Company access to any
parts of the Premises over which it does not have control for the same purposes. The Ground
Lessee shall supply the unit numbers of residents at reasonable intervals. The Ground Lessee shall
cooperate with the Company to prevent (i) the unauthorized possession of converters or channel
selectors and (ii) the unauthorized reception of the Services.
5. DelivM of Services The Ground Lessee has the authority to grant and does hereby grant
to the Company during the term hereof the right to construct, install, operate, maintain, repair and
replace, as necessary, the Company Wiring, to interconnect with, use and maintain the Inside
Wiring and the right to deliver the Services to the Premises, unless otherwise required by applicable
law. Neither the Owner nor the Ground Lessee shall enter into a bulk services agreement with
another service provider to provide services similar to the Services during the term of this
Agreement regardless of the method used to deliver such services to the Premises.
6. Fees and Charges for Services The terms, conditions, charges and fees for the Services
provided to residents at the Premises shall be contained in contracts between the Company and
individual residents. The Ground Lessee assumes no liability or responsibility for service charges
contracted for by residents. All billing and collections from residents will be accomplished by the
Company.
7. Customer Service The Company shall provide customer service in accordance with its
franchise agreement with the Franchise Authority. The Company will maintain a local or toll -free
telephone number which will be available to its subscribers twenty -four (24) hours a day, seven
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(7) days a week. 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. Private Reception Devices Notwithstanding anything else in this Agreement to the
contrary, the Company shall not interfere with the right of an individual resident to install or use his
own private reception device.
9. Interference If any device or facility belonging to a resident, the Owner or the Ground
Lessee does 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 the Service to the Premises or, at the Company's
discretion, to the individual unit until such non - conformance is cured by the Owner, Ground
Lessee, or resident, as the case may be.
10. Term This Agreement, when duly executed by both parties, shall constitute a binding
agreement between the Owner, Ground Lessee and the Company and their respective successors
and assigns for a term of ten (10) years. This Agreement shall automatically renew for successive
periods of two (2) years unless a party provides the other parties with a minimum sixty (60) days
notice of its intention not to renew at the end of the then current term. For the purposes of
terminating this Agreement on behalf of either the Owner or Ground Lessee, both the Owner and
Ground Lessee must join in the notice set forth herein to the Company.
11. 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 Ground Lessee with a certificate
evidencing such insurance.
12. Indemnification The Company shall indemnify, defend and hold the Owner and the
Ground Lessee, their personnel, directors, agents and representatives harmless from or against any
and all claims, damage or expense arising out of the actions or omissions of the Company, its
personnel, directors, agents and representatives in the installation, operation, maintenance or
removal of the Company Wiring, the interconnection with, use and maintenance of the Inside
Wiring, the Services provided to residents at the Premises pursuant to this Agreement or a breach of
this Agreement. The Owner to the extent allowed by Florida Statutes Sec. 768.28 and the Ground
Lessee shall indemnify, defend and hold harmless the Company, its personnel, directors, agents and
representatives from and against any and all claims, damage or expense arising out of the actions or
omissions of the Owner or the Ground Lessee, their personnel, directors, agents and representatives
in the installation of the Inside Wiring, the operation or maintenance of the Premises or a breach of
this Agreement.
13. LIMITATION OF LIABILITY NEITHER PARTY TO THIS AGREEMENT SHALL BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE,
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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.
14. 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. A termination of the Lease prior to the expiration or termination of
this Agreement shall be deemed a default of a material term of this Agreement by Ground Lessee.
The defaulting party shall have sixty (60) days to either (i) notify the non-defaulting party that no
default occurred and provide reasonable proof thereof, (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 to the Premises due to loss of governmental authorization. This
clause, however, shall not apply to periods of transition, such as franchises subject to review,
transfer or reapplication, or where termination is the subject of dispute.
15. Removal of Cg=gny Wiring
a) Upon expiration or termination of this Agreement for any reason, the Company shall
have a period of six (6) months during which it shall be entitled, but not required, to remove the
Company Wiring. The Company shall promptly repair any damage to the Premises caused by such
removal.
b) Notwithstanding anything to the contrary contained in this Agreement, the periods
referenced in section (a) shall be tolled for as long as the Company has the right under applicable
law to continue to provide any or all of the Services to any or all of the units on the Premises after
the termination or expiration of this Agreement, in which case the Company shall have the right to
continue to own and use the Company Wiring and the non - exclusive right to interconnect with and
use the Inside Wiring to provide the Services. This Section shall survive the ternnation of this
Agreement.
16. 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 broadband communications
systems and services. In the event the parties are unable to agree to a single arbitrator, the
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dispute shall be submitted to a panel of three (3) arbitrators, one of which shall be reasonably
familiar with broadband 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.
17. Marketing Support. The Ground Lessee shall provide exclusive Marketing Support for
the Company for the Services. The term "Marketing Support" shall include, but not be limited to,
the Ground Lessee's presentation of the Company's marketing materials for the Services,
including, but not limited to multi- channel video, high speed Internet and voice services to
existing and prospective residents. Marketing materials may include, at the Company's
discretion, brochures, channel lineups, door hangers, service descriptions, and information
regarding prices and special offers. All marketing materials shall be provided by the Company.
18. Miscellaneous
a) Force Majeure The Company shall not be liable for failure to construct the
Company Wiring or to continue to operate the System or to provide the Services 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 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) Assi ng ability: Binding Effect In the event the Owner sells, assigns, transfers or
otherwise conveys the Premises to a third party, the Owner shall give Company prior written
notice of such change of ownership or control. The Owner shall cause any new owner or
controlling party to expressly assume this Agreement and agree to be bound by its terms. In the
event Ground Lessee assigns or transfers its interest in the Premises, Ground Lessee shall give
the Company prior written notice of such assignment or transfer. The Ground Lessees shall
cause any new owner or controlling party acquiring its interest in the Premises to expressly
assume this Agreement and agree to be bound by its terms. The Company may assign this
Agreement without the consent of the Owner or the Ground Lessee to any entity controlled by or
under common control with the Company, to any entity acquiring all or substantially all of the
Company's assets in the City or any surviving entity following a merger, acquisition or
consolidation. The assignee shall agree in writing to be bound by all the terms and conditions
hereof.
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.
Comcast —1924 10/10
d) Invalidily. 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, United States Postal
Service, or nationally recognized overnight courier service to the address set forth below or as
may subsequently in writing be requested.
If to the Ground Lessee
Habitat for Humanity of Key West and Lower Florida Keys, Inc.
30320 Overseas Hwy.
Big Pine Key, FL 33043
Attn.: Officer/Director
If to the Owner
Monroe County, Florida
1100 Simonton Street
Key West, FL 33041
Attn: County Administrator
If to the Company
Comcast of California /Colorado/Florida/Oregon, Inc.
1010 Kennedy Dr., Suite 200
Key West, FL 33040
Attn.: Director /GM
With a copy to
Comcast Cable Communications, LLC
One Comcast Center
Philadelphia, PA 19103
Attn.: General Counsel
g) . Confidentiality Each party agrees to keep the terms and conditions of this
Agreement in strict confidence and shall not divulge any specifics of the same to any third party
except current and prospective lenders, purchasers, attorneys, accountants, financial advisors,
Comcast —1924 10/10
partners and/or others with a need to know for the Owner or the Ground Lessee or the Company
to reasonably conduct its business.
h) Entire AUeement; Amendments All recitals set forth above are hereby
incorporated into the body of this Agreement. This Agreement, including all exhibits attached,
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.
i) Authorily. 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.
j) Third Party Agreements The Ground Lessee represents and warrants to the
Company with the knowledge that the Company is acting in reliance on such representation and
warranty that this Agreement and the Ground Lessee's performance of the obligations set forth
herein does not violate any third party agreement to which Ground Lessee is a party to, including,
but not limited to the Lease.
[remainder of page left blank intentionally]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
GROUND LESSEE
WITNESS /ATTEST: Habitat for Humanity of Key West and Lower Florida
Keys, Inc.
ATTEST:
Danny L. Kolhage, Clerk`
ATTEST:
Comcast - 1924 10/10
By: Z Y)k*U
Name: Mark Moss
Title: Executive Director
OWNER
Board of County Commissioners of
Monroe County, Florida
By:
Name: P viv /Z icE
Title: Mayor
COMPANY
Comcast of California /Colorado/Florida/Oregon, Inc.
By: A��--4 0�a.
N mmel
�e: eg ional VP of Commercial Development
r q
CD
-J
_._ `1 T
- ^ J
8
'- co (]
CD
Cn O
STATE OF �Sz�.2
) ss.
COUNTY OF
The foregoing instrument was acknowledged before me this 2_/ day of
4 6 �
, 2011
by Mark Moss, the Executive Director of Habitat for West and Lower Florida
Keys, Inc., on behalf of said entity. rHe is personally known to me r has presented
(type of identifica ion as i entification an 1 t not take an oath.
" SUSAN K. MILLER
Nowy Ptt66a • mob d Red"
• • My c ow. Etr 2 8, 29 15
COWAISIotr 0 EE 154226
,,,", eoaded naouon lantxw Noary Aqs.
My commission expires:
STATE OF F/ b 2 T 7314 )
COUNTY OF
M1 120 E ) ss.
i
F
��_ _i , .� '� � i �• (Print Name)
The foregoing inst ent was acknowledged before me this / Y day of FCfI'1'��£2 2011
by Js A o /b I C , the Mayor of Monroe County, Florida, 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.
My commission expires:
Notary Public
(Print Name)
MAYRA7EZANOS
Notary Public - State of Florida
My CarNniasion Expires May 19, 2012
y d= Commission S DD 760436
Bonded Through National Notary Assn.
9
Comcast - 1924 10/10
STATE OF a � j - - - )
ss.
COUNTY OF (JC,Lf )
The foregoing instrument was acknowledged before me this lX day of� 201f,
by Ronald Hummel, of Comcast of California /Colorado/Florida/Oregon, Inc., on behalf of said
entity. He is personally known to me and did/did not take an oath.
Witness my hand and official seal.
� CATHERINE VARGAS
MY COMNnSSION # EE2 014
26, 2014
EXPIRES: Nd � �. C
V"O ARY Fl. Now
My Commission expires:
10
Comcast —1924 10/10
EXHIBIT A
(see attached)
Easement Recording
No Financial Transaction
GRANT OF EASEMENT
Doc# 1868705 @2/01/2012 1:04PM
FMONROE Recorded in L. KOLHAGE rds of
Doc# 1868705
Bk# 2553 Pg# 172@
This Grant of Easement (the "Easement ") dated this May of 17EC�gE;2 , 2011 by and
between Comcast of California /Colorado/Florida/Oregon, Inc., its successors and assigns,
hereinafter referred to as "Grantee" and Monroe County, Florida, hereinafter referred to as
"Grantor ".
Grantor, Grantee and Habitat for Humanity of Key West and Lower Keys, Inc. are parties to an
Installation and Services Agreement dated :J2 Z g 2011, pursuant to which
Grantee provides certain broadband communications services to the Premises described below.
In consideration of One Dollar ($1.00), Grantor(s), owner(s) of the Premises 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 broadband communications system (hereinafter referred to as
the "Company Wiring ") 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 broadband services and
other like communications, in, on, over, under, across and along that certain real property (the
"Premises ") located in County of Monroe, State of Florida described as follows:
LEGAL DESCRIPTION:
Section -
Township- 35 -67 -25
Range:
Property 5530 3RD AVE SOUTH STOCK
Location: ISLAND
Legal BLK 54 LTS 16 AND 17 STOCK ISLAND MALONEY SUB PB1 -55 OR22- 389/392 OR625 -847 OR625 -848
Description: OR1444- 1966D /C OR2244 -143 OR2406 -526 OR2433 -81 OR2433 -85/87 OR2433- 88/125LEASE OR2456-
2380/2382AMD /LEASE
Grantor(s) agree(s) for itself and its heirs and assigns that the Company Wiring on the Premises
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 Company Wiring and shall have free access to said Company Wiring 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 Premises 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 broadband service to the Premises.
Prepared Sy:
Comcast of California /Colorado
Florida/Oregon, Inc.
1010 Kennedy Drive, Suite 200
Key West, FI 33040
Mark Ensminger
IN WITNESS WHEREOF, the parties hereto have caused this Easement to be executed by their
duly authorized representatives as of the date first written above.
ATTEST:
Danny L. Kolhage, Clerk
�5 C ta�►,/wi, . G
Name: ` sib; l c. �c�Sa •�-1 s
ATTEST:
OAF
Doc# 1868105
Bk# 2553 Pg# 1721
GRANTOR
Board of County Commissioners of
Monroe County, Florida
By:
Name: DAVi9 Q CE
Title: Mayor
GRANTEE
Comcast of California /Colorado/Florida/Oregon, Inc.
By:
Name ummel
Title: Regional VP of Commercial Development
MO OE COUNTY ATTORNEY
PP OVED AST FORM
STATE OF P1` A / U A )
) ss.
COUNTY OF W044-0 E )
The f mg insr ent acknowledged before me this / y day of E «�� �2011
by A v / ! the Mayor of Monroe County, Florida, on behalf of
said entity. He /she is p ersonally known to me o r has presented (type of
identification) as identification and did/did not take an oath.
Witness my hand and official seal.
My commission expires: �Zo Z l }'
STATE OF P Q� ►
ss.
COUNTY OF b )
Notary Public
(Print Name
i�'n"r "o'�',' �� MAYRATEZANO8
Notar y Public • Stats of Ftorlda
W CiOnNnNaipn Expksa may 19, 2912
�" 4 p�� C o ommission # D 760436
The foregoing instrument was acknowledged before me this _( day of Y , 2012
by Ronald Hummel, of Comcast of California /Colorado/Florida/Oregon, Inc., on beha f of said
entity. He is personally known to me and did/did not take an oath.
Witness my hand and official seal.
My Commission expires: ' . alb lL -
CATHERINE VARGAS
MY COMMISSION # EE29300
d EXPIRES: Novanba 26, 2014
I. 100- 3r•NO'TARY Fl. Naery Disc t Assm. Co.
Doc# 1868705
Bk# 2553 Pg# 1722
MONROE COUNTY
OFFICIAL RECORDS