HomeMy WebLinkAbout2013 CON HA Cox Communications - Cable Service Morgan TowersSERVICES AND ACCESS AGREEMENT
This Services and Access Agreement (the "Agreement") is made this 21 st 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 Agieement 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,
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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.
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"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,
logo 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 S 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
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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, Toss of the right to use
rights of way or to make pole attachments, act of God or government or any other cause beyond such party'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.
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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 land 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.
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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 attomey'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. Survival. 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]
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"Owner"
Address:
140 E. 12th St. Ste. B
National City, CA 91950
Attention: Alfredo Ybarra
Fax:
Telephone: 19) 336-4279
Communlopment Commission of National City
By:
Date:
March 5, 2013
Name: Ron Morrison
Title: Chairman
"Cox" Cox Co., un .tiins 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
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Exhibit A
(legal description)
APN: 560-410-04
Lot I 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
Exhibit B
Grant of Easement and Memorandum of Agreement
(attached)
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
COX COMMUNICATIONS
5651 Copley Drive
San Diego, CA 92111
ATTN.: MDU / Contracts Department
THIS IS A CONVEYANCE
OF AN EASEMENTAND
CONSIDERATION IS LESS THAN $10.00
Document Transfer Tax NONE
APN: 560-410-04
GRANT OF EASEMENT AND MEMORANDUM OF AGREEMENT
THIS GRANT OF EASEMENT is made this 21st day of February 2013 by and between Community
Development Commission of National City (Grantor") and Cox Communications California, LLC ("Cox").
Grantor is the owner of the real property located in San Diego County, California, which is more particularly
described herein as the Legal description Exhibit A, attached hereto and incorporated herein (the "Property")
and does hereby grant to Cox, its affiliates, successors and assigns, a non-exclusive, perpetual easement, to
construct, place, operate, inspect, maintain, repair, replace and remove its Distribution System as defined in a
certain Services and Access Agreement of equal date herewith by and between Grantor and Cox (the
"Agreement"). The parameters of the easement granted hereby are limited to only those areas of the Property
occupied by Cox's Distribution System as shown and delineated on Exhibit C attached hereto and made part
hereof. (the "Easement Area").
Cox shall have the exclusive right to use, relocate and/or remove its Facilities within the Easement Area and
may make changes, including additions and substitutions to its Facilities as it deems necessary. The Facilities
shall at all times remain the exclusive property of Cox and Grantor shall not damage the Facilities nor interfere
with Cox's use of the Facilities. Grantor, its successors and assigns shall have the right to use the Easement
Area for any purpose which is not inconsistent with Cox's rights herein. For purpose of ingress and egress to
the Easement Area, Cox shall have a right of access over, upon or along Grantor's property as is reasonably
necessary to access the Easement Area. Grantor, for itself, its successors and assigns, does hereby covenant
and agree with the Cox, and its successors and assigns, that Grantor at the time of execution of this Easement
as the good, right and authority to grant this Easement, and that Grantor and its successors and assigns further
covenant to warrant and defend said Easement against the lawful claims of all persons whatsoever.
PLEASE TAKE NOTICE that Grantor and Cox have also entered into a Services and Access Agreement (the
"Agreement") dated February 21, 2013 which, in accordance with its terms, entitles Cox to provide cable
television and other telecommunications services on the Property. Among other things, the Agreement also
provides Cox with rights of ingress and egress to the property necessary or useful to provide such service and
maintain its Facilities and provides for ownership of the Facilities on the property used in providing such
services. The Agreement binds any successors and assigns of the Grantor in accordance with its terms. The
Agreement and Grant of Easement are subject and subordinate to all valid leases, mortgages, and/or deed of
trust as described in the Agreement. A copy of relevant provisions of the Agreement will be provided to any
properly interested person upon written request. Cox requests that it receive notice of any pending trustee or
foreclosure sale or receivership, bankruptcy or other proceeding affecting the Property, sent to the address
above.
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RE: Morgan Towers
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
on 3f ////3
personally appeared
CommunityLvelopment Commission of National
City
By:
Name:
Ron Morrison
Title: Chairman
ALL PURPOSE ACKNOWLEDGEMENT
, before me, V Y�F ' ql n )der Notary Public,
Nani Title Officer, e.g. Jane Doe, Notary
Name(s) of Signer(s)
proved to me on the basis of satisfactory evidence to be the person(*) whose name(s) is/are subscribed to the
within instrument, and acknowledged to me that he/she/they executed the same in his/herftkeir authorized
capacity,(ies), and that by his/hgtitheir-sighature(s)"on the instrument the person) or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
Witness my hand and official seal
(space above for Notary Seal)
CAPACITY CLAIMED BY SIGNER
INDIVIDUAL(S) ATTORNEY IN FACT
_CORPORATE TRUSTEE(S)
PARTNER(S)
SIGNER IS REPRESENTING
2
_INDIVIDUAL(S)
CORPORATE
RE: Morgan Towers
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
Cox Comm
By:
Name: B
icaons California, LLC
and
Title: Vice President of Residential Sales
ALL PURPOSE ACKNOWLEDGEMENT
On A AtzcH . 796, before me, Imo/ A) l ��ece , Notary Public,
Name, Title Officer, e.g. Jane Doe, Notary
personally appeared
Boone Hand
Name(s) of Signer(s)
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument, and aclmowledged to me that she executed the same in her authorized capacity(ies), and that by
her signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
RYAN 0. MECKEL-PARKER
Commission 11979664
Notary Public - California
` w / . • ton Diego Coonty
_ _ It C►01M°i _itk.s _ 126`201e
(space above for Notary Seal)
CAPACITY CLAIMED BY SIGNER
_ATTORNEY 1N FACT
_TRUSTEE(S)
Witness my hand and official seal
Sign4ture of Notary Public
PARTNER(S)
SIGNER IS REPRESENTING Cox Communications California, LLC
3
Exhibit A
(legal description)
APN: 560-410-04
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
Exhibit C
To Grant of Easement
Sheet 1 of 2
SEE OTHER PDF
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FILE NO, 2.699
UNIT COUNT
15
CADO. BRAD RESINGER
PLANNER:
GARY 000PFH
Co
APPROVED BY
OE 1
COX COMMUNICATIONS (510I283.9251
5159 FEDERAL BLVO SAN DIEGO. GA 92105
NODE
69a
POWER SU
ICU0
roM EF
ROUTE. F IG
PROJECT NUMBER
620051300501090012
MORGAN TOWERS
1415 D AVE A
Exhibit C
To Grant of Easement
Sheet 2 of 2
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PLEASE REFER ALL OPEN TRENCH AND CONSTRUCTION
QUESTIONS TO THE FOLLOWING INSPECTOR:
NAME,
PHONE:
Select a bitmap
VICINITY MAP
NO SCALE
MORGAN TOWERS
1415 DAVE
NATIONAL CIN, CA 91950
III GRID:
CA GNI,'.
FILE NO:31699
SCALE
CARD: BRAD NESINGER
PLANNER
GARY COOPER
DATE
30 JAN2013
APPROVED BY
IINIT COUNT
51
SHEET
1 OF 1
CO
COX COMMUNICATIONS (6,9) 363-9151
6169 FEDERAL BLVD SAN DIIEGO. CA 92105
NODE
696
POWER SUFPL
ICUO
SYSTEM FTG
ROUTE FTG
PROJECT NUMBER
42006130500ME65011
RESOLUTION NO. 2013 — 12
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION —
HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING
THE CHAIRMAN TO EXECUTE A SERVICES AND ACCESS AGREEMENT,
AND A GRANT OF EASEMENT AND MEMORANDUM OF AGREEMENT
WITH COX COMMUNICATIONS CALIFORNIA, LLC TO PROVIDE
COMMUNICATIONS AN.D OTHER SERVICES TO THE RESIDENTS
OF MORGAN TOWER LOCATED AT 1415 "D" AVENUE
WHEREAS, the Community Development Commission — Housing Authority of
the City of National City ("Housing Authority") holds title to the real property located at 1415 "D"
Avenue, National City, CA 91950 (the "Property"), which presently includes improvements
located thereon totaling 152 multiple dwelling units and other common area facilities, known as
Morgan Towers; and
WHEREAS, the previous cable company terminated cable and internet services
to the residents at Morgan Tower on January 1, 2013; and
WHEREAS, Cox communications California, LLC ("Cox"), directly or through its
affiliates, is a provider of certain communications and other services, including, without
limitation: video service pursuant to a franchise from the appropriate governmental entity; local
and long distance telephone service; high speed Internet service; and any additional services
that may become available from or through Cox or its affiliates; and
WHEREAS, the Housing Authority 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 the residents of
Morgan Towers; 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, BE IT RESOLVED, that the Community Development
Commission — Housing Authority of the City of National City hereby authorizes the Chairman to
execute a Services and Access Agreement, and a Grant of Easement and Memorandum of
Agreement with Cox Communications California, LLC, to provide communications and other
services to the residents of Morgan Tower located at 1415 "D" Avenue.
PASSED and ADOPTED this 5th day of Marc , 3.
on Morrison, Chairman
ATTEST:
Leslie Deese, Secretary
RIVED AS TO FORM:
I
dia G' ua Silva
CDC Gen:.unsel
Passed and adopted by the Community Development Commission — Housing Authority
of the City of National City, California, on March 5, 2013 by the following vote, to -wit:
Ayes: Boardmembers Cano, Morrison, Natividad, Rios, Sotelo-Solis.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Chairman, Housing Authority
Secretary, Housing Authority
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2013-12 of the Community Development Commission — Housing
Authority of the City of National City, California, passed and adopted on March 5, 2013.
Secretary, Housing Authority
By:
Deputy
COMMUNITY DEVELOPMENT COMMISSION
HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY
AGENDA STATEMENT
EETING DATE: March 5, 2013
C'ao\`. -11
yc -1-
AGENDA ITEM NO. 16
ITEM TITLE:
Resolution of the Community Development Commission Housing Authority of the City of National City
authorizing the Chairman to execute a Services and Access Agreement, and a Grant of Easement
and Memorandum of Agreement with Cox Communications California, LLC to provide communications
and other services to the residents of Morgan Tower located at 1415 D Avenue.
PREPARED BY: Alfredo Ybarra
PHONE: (619) 336-4279
DEPARTMENT: Housing and Gra
APPROVED BY;
EXPLANATION:
On January 1, 2013, Access Cable Corporation terminated cable and Internet services to the residents of Morgan Tower
located at 1415 D Avenue, National City, CA 91950. Housing Authority staff has attempted contacting Access Cable by
phone and mail to no avail although Access did inform the California Public Utilities Commission that they were withdrawing
their services from its jurisdiction. During this time, staff has been working with Cox Communications California, LLC (Cox) to
provide cable and internet services to the residents of Morgan Tower. Cox has completed the design work necessary to
provide cable access. The plan includes bringing cabling from the public right of way to a main entry point in the building
through existing unused conduit, installing all required switch gear at the main building entry location and on each floor and
using the existing internal cable runs owned by the CDC to distribute the signal to each unit as was done previously in
Morgan Tower by other providers and currently by Cox in Kimball Tower.
Prior to the provision of services, Cox has requested the Housing Authority of the City of National City execute the attached
agreements. The Services and Access Agreement allows Cox to bring the signal to the building and use our distribution
wiring to provide services to the units. The Grant of Easement and Memorandum of Agreement confirms that Cox will have
access to their equipment when necessary to perform repairs or upgrade equipment. Approval of the resolution would allow
the Chairman to execute the agreements and allow Cox to complete the work required to provide residents of Morgan Tower
with cable and Internet services.
FINANCIAL STATEMENT: NA
ACCOUNT NO.
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
Approve resolution
BOARD / COMMISSION RECOMMENDATION:
ATTACHMENTS:
1. Services and Access Agreement,
2. Grant of Easement and Memorandum of Agreement
Attachment No. 1
SERVICES AND ACCESS AGREEMENT
This Services and Access Agreement (the "Agreement") is made this 211 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
govemmental 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
prov ide 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 tight 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 riles 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
acknow ledges 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 (l2") 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 agi =vent.
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 %hall 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 thc 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 party'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 effechrate
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 land 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 teens 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 thc non -defaulting
party to exercise the same in the event of a subsequent default by the defaulting party.
Attomeys' Fees. The prevailing party in any action brought under this Agreement shall be entitled to recover from
the other party reasonable attomey'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.
D.
[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.
Attachment No. 2
Exhibit B
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
COX COMMUNICATIONS
5651 Copley Drive
San Diego, CA 92111
ATTN.: MDU i Contracts Department
THIS IS A CONVEYANCE
OF AN EASEMENTAND
CONSIDERATION IS LESS THAN $10.00
Document Transfer Tax NONE
APN:
GRANT OF EASEMENT AND MEMORANDUM OF AGREEMENT
THIS GRANT OF EASEMENT is made this 21st day of February 2013 by and between Community
Development Commission of National City (Grantor") and Cox Communications California, LLC ("Cox"),
Grantor is the owner of the real property located in San Diego County, California, which is more particularly
described herein as the Legal description Exhibit A, attached hereto and incorporated herein (the "Property")
and does hereby grant to Cox, its affiliates, successors and assigns, a non-exclusive, perpetual easement, to
construct, place, operate, inspect, maintain, repair, replace and remove its Distribution System as defined in a
certain Services and Access Agreement of equal date herewith by and between Grantor and Cox (the
"Agreement"). The parameters of the easement granted hereby are limited to only those areas of the Property
occupied by Cox's Distribution System as shown and delineated on Exhibit B attached hereto and made part
hereof. (the "Easement Area").
Cox shall have the exclusive right to use, relocate and/or remove its Facilities within the Easement Area and
may make changes, including additions and substitutions to its Facilities as it deems necessary. The Facilities
shall at all times remain the exclusive property of Cox and Grantor shall not damage the Facilities nor interfere
with Cox's use of the Facilities. Grantor, its successors and assigns shall have the right to use the Easement
Area for any purpose which is not inconsistent with Cox's rights herein. For purpose of ingress and egress to
the Easement Area, Cox shall have a right Of access over, upon or along Grantor's property as is reasonably
necessary to access the F,Acement Area. Grantor, for itself, its successors and assigns, does hereby covenant
and agree with the Cox, and its successors and assigns, that Grantor at the time of execution of this Easement
as the good, right and authority to grant this Easement, and that Grantor and its successors and assigns further
covenant to warrant and defend said Easement against the lawful claims of all persons whatsoever.
PLEASE TAKE NOTICE that Grantor and Cox have also entered into a Services and Access Agreement (the
"Agreement") dated February 21, 2013 which, in accordance with its terms, entitles Cox to provide cable
television and other telecommunications services on the Property. Among other things, the Agreement also
provides Cox with rights of ingress and egress to the property necessary or useful to provide such service and
maintain its Facilities and provides for ownership of the Facilities on the property used in providing such
services. The Agreement binds any successors and assigns of the Grantor in accordance with its terms. The
Agreement and Grant of Easement are subject and subordinate to all valid leases, mortgages, and/or deed of
trust as described in the Agreement. A copy of relevant provisions of the Agreement will be provided to any
properly interested person upon written request. Cox requests that it receive notice of any pending trustee or
foreclosure sale or receivership, bankruptcy or other proceeding affecting the Property, sent to the address
above.
1
Attachment No. 2
RE: Morgan Towers
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
Community Development Commission of National
City
By:
Name:
Title:
ALL PURPOSE ACKNOWLEDGEMENT
On , before me, , Notary Public,
Name, Title Officer, e.g. Jane Doe, Notary
personally appeared
Name(s) of Signer(s)
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the'person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
Witness my hand and official seal
Signature of Notary Public
(space above for Notary Scal)
CAPACITY CLAIMED BY SIGNER
`1NDIVIDUAL(S) _ATTORNEY IN FACT
CORPORATE TRUSTEE(S)
PARTNER(S)
SIGNER IS REPRESENTING
2
Attachment No. 2
RE: Morgan Towers
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
Cox Communications California, LLC
By:
Name: Boone Hand
Title: Vice President of Residential Sales
ALL PURPOSE ACKNOWLEDGEMENT
On , before me, Notary Public,
Name, Title Officer, e.g. Jane Doe, Notary
personally appeared Boone Hand
Name(s) of Signer(s)
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument, and acknowledged to me that she executed the same in her authorized capacity(ies), and that by
her signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
Witness my hand and official seal
Signature of Notary Public
(space above for Notary Seal)
CAPACITY CLAIMED BY SIGNER
_INDIVIDUAL(S) ATTORNEY IN FACT
_CORPORATE TRUSTEE(S)
_PARTNER(S)
SIGNER IS REPRESENTING Cox Communications California, LLC
3
Attachment No. 2
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.
Exhibit B
To Grant of Easement
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RESOLUTION NO. 2013 — 12
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION —
HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING
THE CHAIRMAN TO EXECUTE A SERVICES AND ACCESS AGREEMENT,
AND A GRANT OF EASEMENT AND MEMORANDUM OF AGREEMENT
WITH COX COMMUNICATIONS CALIFORNIA, LLC TO PROVIDE
COMMUNICATIONS AND OTHER SERVICES TO THE RESIDENTS
OF MORGAN TOWER LOCATED AT 1415 "D" AVENUE
WHEREAS, the Community Development Commission — Housing Authority of
the City of National City ("Housing Authority") holds title to the real property located at 1415 "D"
Avenue, National City, CA 91950 (the "Property"), which presently includes improvements
located thereon totaling 152 multiple dwelling units and other common area facilities, known as
Morgan Towers; and
WHEREAS, the previous cable company terminated cable and internet services
to the residents at Morgan Tower on January 1, 2013; and
WHEREAS, Cox communications California, LLC ("Cox"), directly or through its
affiliates, is a provider of certain communications and other services, including, without
limitation: video service pursuant to a franchise from the appropriate governmental entity; local
and long distance telephone service; high speed Internet service; and any additional services
that may become available from or through Cox or its affiliates; and
WHEREAS, the Housing Authority 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 the residents of
Morgan Towers; 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, BE IT RESOLVED, that the Community Development
Commission — Housing Authority of the City of National City hereby authorizes the Chairman to
execute a Services and Access Agreement, and a Grant of Easement and Memorandum of
Agreement with Cox Communications California, LLC, to provide communications and other
services to the residents of Morgan Tower located at 1415 "D" Avenue.
PASSED and ADOPTED this 5th day of March, 2013.
Ron Morrison, Chairman
ATTEST: APPROVED AS TO FORM:
Leslie Deese, Secretary Claudia Gacitua Silva
CDC General Counsel
OFFICE OF THE CITY CLERK
1243 National City Blvd.
National City, California 91950
619-336-4228 phone / 619-336-4229 fax
Michael R. Dalla, CMC - City Clerk
March 12, 2013
Mr. Boone Hand
Residential Sales Dept.
Cox Communications
5651 Copley Drive
San Diego, CA 92111
Dear Mr. Hand,
On March 5th, 2013, Resolution No. 2013-12 was passed and adopted by the Housing
Authority of the City of National City, authorizing execution of a Services and Access
Agreement, Grant of Easement and Memorandum of Agreement with Cox
Communications California, LLC.
We are enclosing for your records a certified copy of the above Resolution and a fully
executed original Services and Access Agreement, Grant of Easement and Memorandum
of Agreement.
Michael R. Dalla, CMC
City Clerk
Enclosures
cc: Housing & Grants