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HomeMy WebLinkAboutattachment no. 1 agreementAttachment No. 1 SERVICES AND ACCESS AGREEIIIENT This Services and Access Agreement (the "Agreement") is made this 215` day February 2013 and between Cox Communications California, LLC ("Cox") and Community Development Commission of National City ("Owner"). WHEREAS, Cox, directly or through its affiliates, is a provider of certain communications and other services, including, without limitation: video service pursuant to a franchise (the "Franchise") from the appropriate governmental entity; local and long distance telephone service (where available); high speed Internet service; and any additional services that may become available from or through Cox or its affiliates (collectively, the "Services"); and WHEREAS, Owner holds title to, or is the authorized managing agent for owner of the real property located at 1415 D Avenue, National City, CA 91950 which presently includes improvements located thereon totaling 150 multiple dwelling units (each, a "Dwelling Unit"), and other common area facilities, known as Morgan Towers (the "Community") and which is more particularly described in the legal description found in Exhibit A attached hereto and by this reference incorporated herein (the "Property"); and WHEREAS, Owner desires to grant to Cox access to the Property to install certain facilities and sell and provide Services directly to residents occupying any Dwelling Unit (each, a "Resident"); and WHEREAS, Cox is willing and desires to provide Services to Residents upon the terms and conditions set forth hereafter; and WHEREAS, the parties desire to establish the ownership of certain facilities and equipment installed by Cox or its predecessors within the Property. NOW, THEREFORE, in consideration of the promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Term. This Agreement shall commence on February 21, 2013 , and terminate on February 20, 2023 (the "Initial Term"). At the end of the Initial Term, this Agreement will automatically renew for successive terms of one (1) year each unless either party delivers to the other party written notice of its intent not to renew at least ninety (90) days prior to the expiration of the then current term. The Initial Term and any renewal terms are collectively referred to as the "Term." Notwithstanding the foregoing, this Agreement shall continue for so long as there are Residents subscribing to telephone Service. 2. Services, Programming and Rates. A. Cox shall provide such Services as may be made available and offered by Cox at the Property to any Residents who desire to subscribe to such Services (each, a "Subscriber"). Cox retains the right to control, add to, delete and/or change the Services from time to time. The Services will be provided in accordance with the Franchise and all applicable statutes, rules, regulations and ordinances including, without limitation, those of the rules and regulations of the Federal Communications Commission ("FCC") (collectively, "Applicable Law"). B. Owner acknowledges that Cox's performance of this Agreement is subject to Applicable Law and that Cox is not guaranteeing the provision or availability of any particular program, channel or Service. The cable television Service provided to the Property will consist of Cox's then -current channel lineup which may be modified from time to time solely at Cox's discretion. Cox's channel lineup may not be changed or altered by Owner or others without Cox's prior written permission. It is specifically understood that in providing cable television Service, 1 Attachment No. 1 Cox makes use of certain programming owned by others. Owner agrees that it will make no claims nor undertake any legal action against any person or entity, including Cox, if certain programming is interrupted, discontinued or substituted, provided that Cox provides to Subscribers its standard cable television channel lineup at all times. C. The Services shall be provided at the rates Cox lawfully establishes from time to time. Cox shall give proper notice of any changes in rates or Services to Subscribers in accordance with Applicable Law. Fees shall be due and payable in advance pursuant to separate agreement(s) between Cox and each Subscriber. Owner acknowledges and agrees that Services to any Subscriber may be terminated due to Subscriber's failure to pay for Services or to otherwise abide by the provisions of the applicable subscription agreement or related terms and conditions of use. It is understood that payment for the Services shall be the sole responsibility of each Subscriber and that Owner shall have no responsibility for any such payment. 3. Access to Property. A. Owner grants to Cox and its successors and assigns, a perpetual, non-exclusive easement in the form attached hereto as Exhibit B for use by Cox, its affiliates and their respective employees and contractors in delivery of Services at the Property. The easement extends throughout the Property (both land and improvements), to those areas of the Property occupied by Cox's Distribution System (as defined in the easement) including raceways, common areas, equipment rooms, equipment buildings, utility areas and other spaces on, in and over the Property, as reasonably necessary or useful for the location, relocation, installation, maintenance, repair, replacement, upgrading, monitoring, operation and removal of the Distribution System (as defined below). Owner agrees to execute and deliver to Cox the attached separate grant of easement ("GOE") and memorandum of agreement ("MOA") in the form attached hereto as Exhibit B for the purpose of recordation at any time. B. If Owner adds Dwelling Units to the Community, at Cox's option, this Agreement shall extend to all such additional Dwelling Units, whether or not the additional Dwelling Units are located on the Property, and Owner shall execute such reasonable documents as Cox may request to extend the rights granted to Cox hereunder to such additional Dwelling Units. C. Owner will display and make available Cox -provided sales brochures and materials in its leasing office and other common areas (where applicable) for the Services offered by Cox. Owner or its leasing agent will provide Cox -approved brochures and materials at the time a Resident signs a lease for the rental of a Dwelling Unit. Owner's leasing agents will refer Residents and prospective Residents to Cox for ordering of the Services pursuant to such policies and procedures as provided by Cox, including, but not limited to, referrals to a specific website or designated Cox personnel. Cox shall be granted access to the Property for the marketing of the Services directly to Residents upon prior scheduling and notice with Owner. 4. Distribution System and Inside Wiring. A. Definitions: "Demarcation Point" shall mean a point located at or about twelve inches (12") outside of where the cables (including, but not limited to, coaxial cables, fiber optic cables, Cat 3 cables, and Cat 5 cables) carrying any of the Services enters a Dwelling Unit, or as otherwise provided by Applicable Law. "Home Run Wiring" shall mean the separate cables (including, but not limited to, coaxial cables, fiber optic cables, Cat 3 cables, and Cat 5 cables) carrying any of the Services running from Cox's equipment in any equipment closet, room, lockbox or pedestal up to the Demarcation Point. "Inside Wiring" shall mean those cables (including, but not limited to, coaxial cables, fiber optic cables, Cat 3 cables, and Cat 5 cables) carrying any of the Services located within a Dwelling Unit and including such wiring running out of such Dwelling Unit out to the Demarcation Point, but shall not include wiring that is part of a "loop through" system. 2 Attachment No. 1 "Customer Reception Equipment" shall mean all equipment furnished or leased to Residents by Cox at the Property to enable Residents to receive the Services. "Distribution System" shall mean all distribution plant and associated electronics, equipment and wiring installed or provided by Cox or its predecessors which is necessary or useful to distribute Services throughout the Property including, without limitation, feeder lines, trunk lines, pedestals, and lockboxes, but excluding Home Run Wiring, Inside Wiring and Customer Reception Equipment. B. Ownership of the Distribution System and Customer Reception Equipment shall at all times be and remain in Cox and shall be used exclusively by Cox except to the extent any portion of the Distribution System is transferred by Cox to Owner pursuant to the express terms of this Agreement. Cox shall install the Distribution System. The installation of the Distribution System will be in accordance with Applicable Law and Cox's technical standards and shall be completed in a good and workmanlike manner. Cox, at its expense, will maintain the Distribution System in accordance with Applicable Law. Any damage caused to the Property by Cox during installation, maintenance, repair or removal of the Distribution System will be repaired by Cox at Cox's sole expense to Owner's reasonable satisfaction, normal wear and tear excepted. C. Ownership of Home Run Wiring and Inside Wiring shall at all times be and remain in Owner, but Owner grants to Cox the non-exclusive right to use the Home Run Wiring and Inside Wiring to provide Services to Subscribers. The installation and maintenance of the Home Run Wiring and Inside Wiring will be in accordance with Applicable Law. Owner at its expense will maintain the Home Run Wiring and Inside Wiring in accordance with Applicable Law. Any damage caused to the Distribution System by Owner (including without limitation any damage caused to the Distribution System by Owner (i) during the maintenance, repair, or removal of the Inside Wiring or Home Run Wiring or (ii) any renovations to the Property) will be repaired by Cox at Owner's sole expense to Cox's reasonable satisfaction, normal wear and tear excepted. If agreed to by the parties, Owner may contract with Cox for installation and maintenance of the Home Run Wiring and Inside Wiring, at Owner's expense, under a separate agreement. 5. Disposition of Distribution System upon Expiration or Termination of Agreement. Upon expiration or termination of this Agreement for any reason (the "Expiration Date"), Cox shall have the option, exercisable at any time(s) within ninety (90) days after the Expiration Date, to remove all electronics and active elements of the Distribution System. Any portion of the Distribution System not removed by Cox (i) shall not be deemed to be abandoned by Cox; (ii) shall remain the sole property of Cox at all times; and (iii) shall not be used by Owner or any third party without Cox's prior written consent. 6. Owner Obligations. A. In order to ensure accurate descriptions and portrayals of the Services and Cox's name, Owner shall submit for Cox's prior review and approval all proposed advertising and promotional materials for the Property that refer to, identify or otherwise describe Cox, the Cox logo or the Services. Owner shall have no right to use the Cox name, Iogo or other intellectual property following the Expiration Date. B. Owner will not use, or authorize others to use, any equipment that causes interference or is otherwise incompatible with the Distribution System, the reception equipment or Cox's right to provide Services under this Agreement. Owner shall not move, disturb, alter, change or connect any other device to the Distribution System nor authorize or permit anyone to do so. 7. Insurance. Cox shall maintain (a) comprehensive general liability insurance with a policy limit of at least $1,500,000 to protect Owner against bodily injury or property damage resulting from the installation, operation or maintenance of the Distribution System on the Property; and (b) Workers' Compensation insurance in statutory amounts. Owner shall be an "additional insured" under such general liability insurance coverage but only to the extent of claims arising out of Cox's operations and its obligations under this Agreement. Owner shall be responsible for assuming risk of loss and maintaining property insurance on the Distribution System upon installation at the Property. Such coverage shall be on a replacement cost basis. Such coverage shall be considered primary insurance for damage to the Distribution System during the Term of this Agreement. Upon written request by the other party, each party shall provide a 3 Attachment No. 1 certificate of insurance for the foregoing policies. All policies written pursuant to this Section shall be with insurers (i) licensed to do business in the state in which the Property is located and (ii) carrying an A.M. Best rating of at least A- VIII. All policies, including any renewals thereof, shall specify that such policy cannot be canceled without at least thirty (30) days written notice to the other party. 8. Warranties. A. Owner warrants that (i) it owns the Property and holds all rights and has full authority to execute this Agreement and to grant the rights herein granted; (ii) this Agreement constitutes and shall constitute a binding obligation of Owner; (iii) there are no prior or existing agreements, nor will there be any such agreements during the Term, with Subscribers or other third parties that would be breached or violated by the execution of this Agreement or by Cox's providing Services to the Property; and (iv) there are no prior or existing agreements, nor will there be any such agreements for a period of five (5) years from the execution date of this Agreement , by or among Owner, Subscribers, any homeowners' association or any other third parties, which provide for the delivery of voice, video or Internet access services to the Property where any such service is provided on a "bulk" basis to residents, whether paid for through rent, association fees, other assessments or otherwise. Owner acknowledges and agrees that the provisions of clauses (iii) and (iv) of this Section 8.A are a material inducement to Cox entering into this Agreement and making the financial investment to serve the Property and that any breach of such clauses would result in material financial damages to Cox. B. Cox represents and warrants that (i) it holds all rights and has full authority to execute this Agreement and to grant the rights herein granted; (ii) this Agreement constitutes and shall constitute a binding obligation of Cox; and (iii) there are no prior or existing agreements, nor will there be any such agreements during the Term, that would be breached or violated by the execution of this Agreement or by Cox's providing Services to the Property 9. Force Majeure. Neither party shall be liable to the other or any third party for failure to meet any of its obligations under this Agreement, where such failure is the result, in whole or part, of any labor dispute, failure of usual sources of supply, war, riot, insurrection, vandalism, commotion, fire, flood, earthquake, accident, storm, loss of the right to use rights of way or to make pole attachments, act of God or government or any other cause beyond such patty's reasonable control. 10. Default. Subject to Section 9, if either party fails to perform or observe any of the material conditions or agreements to be performed or observed by it hereunder (the "Defaulting Party") and such failure is not cured within thirty (30) days after receipt of written notice from the other party (the "Non -defaulting Party"), the Non -defaulting Party, in addition to any other rights at law or equity it may have, shall have the right to immediately terminate this Agreement. 11. Limitation of Liability. The parties acknowledge that during the Term, the Services may experience interruptions or unavailability for use by Owner and Subscribers. The parties further acknowledge and agree that the limitations of liability contained herein are a material inducement for Cox to enter into this Agreement and provide the Services at the price and under the terms and conditions of this Agreement. Accordingly, to the extent that Services are temporarily unavailable, interrupted, degraded, or otherwise incur an outage (each, an "Interruption"), the sole and exclusive remedy for Owner or any Subscriber due to any such Interruption shall be service credits as provided for under the Franchise and any separate subscriber agreement. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, PUNITIVE OR ENHANCED DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, OR BUSINESS HARM) ARISING OUT OF OR RELATING TO THE SERVICES OR THE PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 12. Disclaimer Of Warranty. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, COX MAKES NO AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES. 4 Attachment No. 1 13. Indemnification. Notwithstanding anything to the contrary herein, Owner hereby agrees to defend, indemnify and hold harmless Cox and its past and present subsidiary corporations, parent corporations, affiliates, partners, successors, assigns, contractors, sub -contractors, officers, directors, shareholders, employees, agents, attorneys and insurers (in their individual and representative capacities), from any and all claims, legal action, damages, loss, liability and any other expense (including reasonable attorneys' fees) arising from or in connection with any action or other proceeding brought by any third party or any other service provider: (i) based on the Agreement; (ii) in connection with Cox' s access to or use of the Home Run Wiring, Inside Wiring, and Distribution System; (iii) in connection with Cox's provision of Services to the Property; or (iv) with respect to any claims alleging tortuous interference of contract. 14. Cooperation - Memorandum of Agreement. Owner and Cox agree to cooperate fully and promptly in carrying out this Agreement. Owner agrees to execute any and all documents reasonably requested by Cox to evidence and effectuate the rights granted to Cox under this Agreement including, but not limited to, the execution of a GOE and MOA in the form attached hereto as Exhibit B for the purpose of recordation at any time. In the event that Owner fails to execute an MOA, Cox shall have the right to execute and record such document. 15. Successors; Assignment. The benefits and obligations of this Agreement shall run with the Iand comprising the Property and will inure to and are binding upon the successors, assigns, heirs and personal representatives of Cox and Owner. Owner shall make the assumption of this Agreement by the new owner of the Property a condition of any sale, transfer or assignment of the Property and shall provide reasonable prior notice to Cox in the event of any such sale, transfer or assignment. If Owner fails to comply with this section, Owner shall be liable for any lost revenue or other damages suffered by Cox due to Owner's breach. Cox may assign this Agreement and all of its rights, duties, and obligations hereunder without Owner's consent to any entity which controls, is controlled by or is under common control with Cox; to any entity succeeding to Cox's interest in the Franchise area; or to any entity pursuant to a merger, sale or exchange of stock or sale or exchange of assets. Except as specifically permitted above, neither party shall assign this Agreement without the prior written consent of the other party. 16. Subordination. This Agreement is subject and subordinate to all valid leases, mortgages, and/or deed of trust of record which may now or hereafter affect the Property, and to all renewals, modifications, consolidations, replacements and extensions thereof (collectively, the "Title Matters"). This clause shall be self -operative and no further instrument or subordination shall be required by any mortgagee, trustee, lessor or lessee; provided, however, Cox's subordination of this Agreement to any Title Matter is expressly subject to and contingent upon such mortgagee's, trustee's or lessor's recognition and agreement not to disturb Cox's rights and obligations under this Agreement, which recognition and agreement not to disturb shall be included in any subordination certificate submitted by Owner to Cox. In confirmation of such subordination, Cox shall execute promptly any certificate that Owner may reasonably request. 17. Liens. Cox shall not create any mechanic's or materialman's lien on the Property, the Distribution System or the Inside Wiring. If any such lien is filed, Cox shall within thirty (30) days after receiving written notice from Owner either pay the lien, or contest the validity or amount of any such lien or claimed lien but only if Cox shall have such lien bonded off and released of record. If Cox fails timely to take such action, Owner may take such action as it deems appropriate to discharge such lien and Cox shall cooperate with Owner to accomplish such discharge and shall reimburse Owner for all reasonable and actual costs incurred in connection therewith upon receipt of any invoice therefore. 18. Confidentiality. Owner and Cox shall not during the term of this Agreement, as well as for a period of three (3) years following the expiration or earlier termination of this Agreement, disclose any of the terms of this Agreement to any third party without the prior written consent of the other party. Notwithstanding the foregoing, the parties may, without the prior written consent of the other party, disclose the terms of this Agreement: (1) as reasonably necessary to its employees, representatives, affiliates, attorneys, accountants, management agencies, and any potential bona fide purchasers of the Property ("Permissible Parties"), so long as such Permissible Parties agree to be bound by the confidentiality provisions of the Section; or (2) as required by law. 19. Miscellaneous. A. Authority to Execute. This Agreement shall not be effective unless and until executed by Owner and by an authorized corporate officer of Cox with actual authority to do so. 5 Attachment No. 1 B. Entire Agreement. This Agreement and all exhibits hereto collectively represent the entire understanding and agreement between Owner and Cox with respect to the subject matter hereof. This Agreement supersedes all prior negotiations and agreements, oral or written, between Owner and Cox with respect to the subject matter hereof and cannot be amended, supplemented or modified except by an agreement in writing which makes specific reference to this Agreement and which is signed by the party against which enforcement of any such amendment, supplement or modification is sought. C. Non -Waiver. Failure of either party to exercise any of its remedies as set forth in this Agreement or at law or in equity in the event of any default by the other party shall not constitute a waiver of the right of the non -defaulting party to exercise the same in the event of a subsequent default by the defaulting party. D. Attorneys' Fees. The prevailing party in any action brought under this Agreement shall be entitled to recover from the other party reasonable attorney's fees, costs and necessary disbursements. E. Governing Law. This Agreement and all issues related thereto shall be governed by the laws of the state in which the Property is located without regard to its conflicts of law provisions except where the laws of the United States have precedence. F. No Agency. Cox and Owner are independent business entities and neither has any authority to act for, or on behalf of, or bind the other to, any contract, without the other's written approval. G. Notices. Any consent, election or notice required or permitted to be given under this Agreement shall be in writing and hand delivered or sent by certified or registered mail or via reputable overnight express delivery service to the address included at the end of this Agreement, or to such other address or addresses as shall, from time to time, be furnished in writing by the party to receive such notice to the other party. H. Sun-ival. The provisions of Sections 2 - 8, 11, 12, 17, 18 and 19 hereof shall survive the termination or expiration of this Agreement. I. No Third Party Beneficiaries. This Agreement constitutes an agreement solely among the parties hereto, and, is not intended to and will not confer any rights, remedies, obligations or liabilities, legal or equitable on any person (including, without limitation, any Resident or Subscriber) other than the parties hereto and their respective successors or assigns, or otherwise constitute any person (including, without limitation, any Resident or Subscriber) a third party beneficiary under or by reason of this Agreement. J. Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law; provided however that the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner that is materially adverse to any party affected by such invalidity or unenforceability. K. Construction. This Agreement has been negotiated by Owner and Cox and their respective legal counsel, and legal or equitable principles that might require the construction of this Agreement or any provision of this Agreement against the party drafting this Agreement shall not apply in any construction or interpretation of this Agreement. [SIGNATURES APPEAR ON NEXT PAGE] 6 Attachment No. 1 "Owner" Community Development Commission of National City Address: 140 E. 12th St. Ste. B By: National City, CA 91950 Attention: Date: Fax: Telephone: ( ) Name: Title: "Cox" Cox Communications California, LLC Address: By: 5651 Copley Drive San Diego, California 92111 Date: Attention: Residential Sales Dept. Fax: (877) 878-1632 Name: Boone Hand Telephone: (858) 569-4625 Title: Vice President of Residential Sales 7 Attachment No. 1 Exhibit A (legal description) APN: 560-410-04-00 Lot 1 of Center City Project in the City of National City, County of San Diego, State of California according to map thereof #8807 filed in the office of the county recorder of San Diego County on February 24, 1978.