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SERVICE AND MARKETING AGREEMENT
(RESIDENTIAL MDU PROPERTIES)
EFFECTIVE DATE: July 29, 2010
"Operator”:
Time Warner NY Cable LLC,
a Delaware limited liability company,
d/b,"a Time Warner Cable,
through its Los Angeles Division
c;o Time Warner Cable Community Solutions
550 North Continental Blvd
El Segundo, CA, 90245
Park Vista Apartments
615 E. Holly Avenue
F.1 Segundo, CA 90245
Number of Units: 97
On -Site Contact Person. Jim Maynard
Telephone: 310- 322 -5036
Facsimile: 310 - 322 -6358
PARTIES:
"Owner ":
The City of El Segundo
350 Main Street
El Segundo, CA 90245
Taxpayer ID #: 95- 6000707
Contact Person: Meredith Petit
Telephone: 310 - 524 -2880
Facsimile: 310 - 322 -3693
PROPERTY:
RECITALS
• Owner owns or is building the multi -unit residential complex(es) referred to above (including the underlying land, the
"Property "), as further described in the legal description attached as Attachment I (defined hereafter).
• Owner and .Operator desire to make the Services available to residents of the Property ( "Residents ") in accordance with the
terms and conditions of this Service and Marketing Agreement ( "Agreement ").
TERMS AND CONDITIONS
Owner and Operator agree as follows:
1. CERTAIN DEFINITIONS.
When capitalized in this Agreement, the following terns have the following meanings:
"Area" means the geographic area served by the same Operator headend that serves the Property.
"Housing Corporation" means the El Segundo Senior Citizens Housing Corporation.
"Laws" means all federal, state and local laws and regulations applicable to the subject party, including the rules and
regulations of governmental and regulatory authorities or agencies with jurisdiction over the subject party, and, with respect to
Operator, the requirements of Operator's franchise agreement, if required, for the Area.
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"Losses" means all claims, liabilities, losses, costs, or damages of any nature whatsoever.
"Plans" means a construction plan and schedule agreed upon by Owner and Operator, or, where no such plans are required,
Operator's current installation methods.
"Related Parties" means shareholders, members, partners, directors, managers, officers, employees, contractors, agents
and affiliates of the subject party.
"Service Date" means the date that System construction, upgrading, and interconnection is complete (if necessary) and
Operator has inspected and tested the System to confirm that Operator can provide Services to all units at the Property, or
promptly upon the full execution of this Agreement if no such construction, upgrading, interconnection, inspection, or testing is
necessary (i.e., Operator currently serves the Property).
"Services" means the services described in Section 2.1.
"System" means all equipment, hardware, wiring, (including external distribution wiring), conduit, molding and other
facilities that Operator installs or upgrades on the Property, that Operator provides for installation by Owner or a third party at the
Property, or that exist on the Effective Date and that are or may be used by Operator to deliver Services, regardless of whether
any System components (including wiring) are in use at any given time.
2. OPERATOR'S SERVICES.
2.1 Services. Owner hereby grants to Operator the right to offer and provide, and Operator shall offer, the following Services
to Residents commencing on the Service Date.
(A) "Multi- Channel Video Service" means Operator's multi - channel video and sound services (e.g., the basic,
expanded basic, premium, pay - per -view, and on- demand services (whether analog or digital)) that Operator offers generally to its
customers in the Area.
(B) "HSD Service" means Operator's residential high -speed data service
(C) "Digital Phone Service" means Operator's residential digital phone service.
(D) "Additional Services" means any services in addition to the Multi - Channel Video Service, the I-ISD Servicr,. the
Digital Phone Service and the Discounted Services (defined hereafter) that Operator can provide to the Property over the System.
(E) "Marketed Services," if any, means those Services designated as "Marketed Services" on Exhibit A and all
Discounted Services.
(F) "Discounted Services," if any, means those Services designated as "Discounted Services" on Exhibit 8 that are to be
provided under a bulk billing arrangement. If Owner has not requested Discounted Services under this Agreement, then no
Exhibit B shall be attached and references to Discounted Services in this Agreement shall not apply.
3. ACCESS TO PROPERTY.
Owner has the authority to and does hereby grant to Operator a license, irrevocable for the duration of this agreement as
hereinafter provided, to enter upon the Property and operate the System, including the right to construct, install, maintain,
operate, repair, replace and remove all necessary aerial and underground cable, wires, equipment and appurtenant devices.
4. SYSTEM INSTALLATION, OWNERSHIP, USE, MAINTENANCE, AND REMOVAL.
4.1 Installation of System (as Applicable). To the extent not already existing, Operator shall, and at its sole expense, design,
construct, install and/or upgrade the System as required by Laws and in accordance with the Plans. Once the Plans (if any) are
agreed upon by the parties, Owner shall be liable to Operator for any costs arising from changes to the Plans directed by Owner
affecting the work to be performed by Operator or the System design.
4.2 System Ownership and Use. Operator owns and has the exclusive right to access, control, maintain, upgrade, use, and
operate the System, except for (i) any equipment, facilities, or wiring owned by Owner or a third party, in which case (as between
Owner and Operator) Owner shall own such items and Owner hereby grants to Operator the exclusive right to access, use,
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maintain, and upgrade such items during the Tenn, and (ii) any conduit, risers, raceways, or other spaces where the System is
located that are owned by Owner or a third party, in which case (as between Owner and Operator) Owner shall own such items
and Owner hereby grants to Operator the non - exclusive right to access, use and maintain such items during the Tenn. For
purposes of clarity, Operator owns any wiring provided by Operator to Owner for installation by Owner or its contractors.
Owner shall not, and Owner shall not authorize any third party to, access, move, use, or interfere with any part of the System.
The System is not, and shall not be deemed to be, affixed to or a fixture of the Property.
4.3 Disposition and Use of System after Term.
(A) System Disposition. Operator shall retain ownership of, and for 90 days after the expiration of the Agreement, be
entitled at Operator's option, to remove, abandon, disable, or sell all of the respective components of, the System, except for any
System components owned by Owner or a third party, which Operator shall leave in place undisturbed.
(B) Mandatory Access Laws. Notwithstanding anything to the contrary in this Agreement, if Laws require Owner to
provide Operator with access to the Property for the provision of any Service, then (i) Operator shall continue to own and/or be
permitted to access and use all System components (as provided in Sections 4.2 and 4.4) to provide its Services to the Property,
and (ii) the ownership and removal rights set forth in Section 4.3(A) shall apply at such time as Laws no longer provide for
Operator's access to the Property.
4.4 Maintenance of System; Restoration of Property. Operator shall, at its sole expense, (i) maintain, repair, and operate the
System as required by Laws and (ii) repair and restore all portions of the Property damaged by Operator (regardless of whether
such damage occurred during installation, upgrade, repair, or removal activities) to its condition immediately prior to such
damage. Notwithstanding the foregoing, Operator shall have no obligation to maintain or repair any wiring used by another
provi der.
4.5 Liens. Operator shall not cause, suffer or permit any lien, claim, or other encumbrance to be filed against the Property in
connection with Operator's construction, installation, maintenance, use, or repair of the System or the exercise of any right or
privilege of Operator under this Agreement. if Owner notifies Operator or if Operator becomes aware that such a lien has been
fled against the Property by Operator or any contractor performing work at the Property at Operator's request, then Operator
promptly shall have the lien removed and released of record at Operator's sole cost and expense.
5. ADDITIONAL SERVICES Ttl:tivls.
The rates, fees, and other terms of use applicable to the Services are set forth on Exhibit R, and, where Discounted Services also
are provided, E hibii B. In the event of a conflict between the terms of Exhibit A and Exhibit B, the terns of Exhibit B shall
control to the extent of such conflict.
6. MARKETING RIGHTS AND RESPONSIBILITIES.
6.1 Grant of Marketing Rights. Owner hereby grants to Operator during the Term the exclusive right to market on -site at the
Property the Marketed Services to Residents and the non - exclusive right to market on -site at the Property all other Services to
Residents. During the Term, Owner shall not enter into any bulk billed, bulk provision, bulk discount, or similar arrangement
with any other provider for multi- channel video service. In furtherance of the foregoing, during the Term, Owner shall (i)
exclusively market the Marketed Services to Residents and prospective Residents and (ii) not accept compensation from any
other provider of services that compete with the Marketed Services, whether for access, marketing or other rights relating to such
services. During any applicable exclusivity period, Owner shall not, and Owner shall not assist other parties (including other
service providers) to, promote, market or solicit services on -site at the Property that compete with the Marketed Services, or
facilitate another party's efforts to do so through off -site activities (such as mail, email, facsimile, or telephone marketing
campaigns, property specific advertisements, etc.).
6.2 Marketing Responsibilities.
(A) Marketing Materials. Operator may provide Owner with marketing materials, service -order materials, sales
support, and sales training so that Owner, its employees and/or leasing agents can market the Marketed Services as provided in
this Agreement.
(B) Owner's Marketing Obligations. Owner will, and/or Owner will cause its rental agents to, (i) provide Residents
and prospective Residents with Operator - provided promotional materials and sales literature for the Marketed Services
( "Marketing Materials ") in Owner's informational, leasing, and move -in packages; (ii) display the Marketing Materials in
reasonably conspicuous locations (such as model units, sales/leasing offices, clubhouse, fitness center, common areas and other
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office locations where Owner permits such advertising (collectively, "Marketing Locations")), (iii) permit Operator (if desired
by Operator and at Operator's expense) to host on -site events to promote the Marketed Services, subject to Owner's reasonable
approval as to frequency, time, format, location and activities; (iv) at Operator's election, install hang -tags and/or other
notifications in vacant rental units advertising certain free Services for a limited duration, discounts or other promotions available
from Operator; (v) promptly forward to Operator service request/interest forms for the Services received from any Resident who
wishes to subscribe; (vi) within 60 days of the Effective Date, provide Operator a written list of the current name, telephone
number, and mailing address of each Resident and monthly updates to such information thereafter, and (vii) make management
staff and rental agents available to Operator on a reasonable basis for training by Operator on marketing the Marketed Services
and ensure their cooperation with Operator in Operator's efforts to directly market the Marketed Services.
6.3 Change in Laws Regarding Exclusive Rights. If Laws prohibit Owner from granting or Operator from obtaining any of
the exclusive rights granted under this Agreement, then such rights automatically shall be deemed non - exclusive, but only to the
extent and for so long as required by such Laws.
TERM.
The "Term" of this Agreement is set forth on Exhibit A.
S. REPRESENTATIONS AND WARRANTIES.
8.1 Owner's Representations and Warranties. Owner represents, warrants and covenants to Operator that (i) Owner is the
sole legal and equitable owner in fee simple of the Property; (ii) no purchase contracts exist with respect to the Property; (iii)
Owner's correct taxpayer identification number is set forth under Owner's information at the head of this Agreement; (iv) the
Property is not part of a bankruptcy proceeding, foreclosure action, deed -in- lieu -of- foreclosure transaction, or similar proceeding;
(v) Owner has the full power and authority to negotiate, execute, deliver, and perform this Agreement; (vi) the party signing this
Agreement is duly authorized to execute and deliver such documents on behalf of Owner; (vii) Owner owns and/or has the right
to grant to Operator the right to use all System components not owned by Operator (including any third party wiring, molding,
conduit, e'!c.) as contemplated by this Agreement; and (viii) there are no agreements, understandings or intentions with or
between Owner and any other party that conflict with this Agreement.
8.2 Operator's Representations and Warranties. Operator represents, warrants and covenants to Owner that 0 Operator
has the full power and authority to negotiate, execute, deliver and perform this Agreement; (ii) the party signing this Agreement
is duly authorized to execute and deliver the Agreement on behalf of Operator; (iii) Operator will maintain during the Term all
required licenses, permits and approvals necessary to permit Operator to operate the System and provide the - Services; anti (i )
there arc no agreements, understandings, or intentions with or betw;:en Operator and any other party -that conflict with tilts
Agreement.
9. MATERIAL BREACHES AND REMEDIES.
9.1 Material Breaches. The following shall constitute material breaches of this Agreement: (i) a party breaches, or fails to
meet or perform, any material representation, warranty, covenant or other obligation contained in this Agreement and then fails to
cure such matter within 30 days (or such other time period specified in this Agreement) after receiving notice from the other
party that details the breach in a manner sufficient to permit its cure; (ii) a party becomes a debtor in a bankruptcy proceeding or
similar action or proceeding that is not permanently dismissed within 60 days; (iii) a party becomes insolvent; or (iv) Owner fails
to pay any invoices provided by Operator when due and payable more than two times in any 12 -month period.
9.2 Remedies. Except as specifically provided otherwise in this Agreement, the parties shall be entitled to seek all remedies
available at law or in equity with respect to a breach under this Agreement by the other (including injunctive relief and specific
performance in cases where a breach is causing or would cause irreparable damage or where no adequate remedy at law is
available), and such rights and remedies shall be cumulative. If a party fails to cure a breach as provided in this Agreement, then
the other party may, in addition to all other available remedies, terminate this Agreement by giving 45 days' notice to the
breaching party. Further, if Owner defaults pursuant to clause 9.1(iv), then in addition to any other remedies available to
Operator, Operator may elect to provide its package of Discounted Services on an individually - billed basis directly to Residents
during the remaining Tenn.
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10. LIMITATION OF WARRANTIES AND LIABILITY.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, OPERATOR MAKES NO REPRESENTATIONS OR
WARRANTIES — EXPRESS OR IMPLIED — REGARDING THE SYSTEM OR THE SERVICES, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON - INFRINGEMENT, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE,
AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED BY OPERATOR AND WAIVED BY OWNER TO
THE EXTENT NOT PROHIBITED BY LAWS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO
ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL OPERATOR'S AGGREGATE
LIABILITY TO OWNER OR TO ANY THIRD -PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS
FOR SUCH LIABILITY, EXCEED THE TOTAL AMOUNT RECEIVED BY OPERATOR DURING THE PREVIOUS
12 -MONTH PERIOD UNDER THIS AGREEMENT. ALL CLAIMS UNDER THIS AGREEMENT MUST BE
INITIATED NOT LATER THAN ONE YEAR AFTER THE OCCURRENCE GIVING RISE THERETO.
11. INSURANCE AND INDEMNIFICATION.
11.1 Operator's Insurance. Operator shall maintain insurance in the following forms and amounts during the Term of this
Agreement: Commercial General Liability Insurance, on an "occurrence" basis, against all claims for bodily injury, death, and
property damage liability with a combined single limit of not less than $1,000,000 per occurrence; and Workers' Compensation
insurance with statutory limits and Employer's Liability insurance with minimum limits of $1,000,000 each coverage. Park Vista
Senior Housing Corporation, the City of El Segundo, its officers, officials, employees and volunteers shall be named as additional
insureds on the general liability policy. Upon request, the Operator shall provide a certificate of insurance and additional insured
endorsement to Owner evidencing such coverages as required herein.
11.2 Owner's Insurance. Owner shall maintain insurance in the following forms and amounts during the Term of this
Agreement: Commercial General liability Insurance, on an "occurrence" basis, against all claims for bodily injury, death, and
property damage liability with a combined single limit of not less than $1,000,000 per occurrence. Owner shall also maintain "all
risk property insurance on the "Property" with full replacement cost value. Upon request, the Owner shall provide a certificate
of insurance to the Operator evidencing such coverages as required herein.
11.3 Indemnification from Operator. Except for claims arising from the negligence; misconduct, errors or omissions of
Owner, Operator will defend, indemnify, and hold harmless Owner and, as applicable, Owner's Related Parties and the Housing
Corporation, �;s officers and directors, from and against all Losses or other costs or expenses ine:.ned by Owner in connection
with such claims other than for the specific purpose of enforcing its defense and indemnity rights in connection with Operator's
failure to comply with this Section, incurred by Owner or its Related Parties resulting from third party claims based on (i)
Operator's installation (except for any Losses resulting from any dangerous conditions [including environmental hazards)
existing at the Property of which Owner has not previously notified Operator), maintenance, or operation of the System; (ii)
Operator's provision of Services; or (iii) Operator's breach of its covenants, representations, or warranties in Section 8.2.
11.4 Indemnification from Owner. Except for claims arising from the negligence, misconduct, errors or omissions of
Operator, Owner will defend, indemnify, and hold harmless (as the context would reasonably require) Operator and, as
applicable, Operator's Related Parties, from and against all Losses incurred by Operator or its Related Parties resulting from (i)
damage to any part of the System caused by Owner or its Related Parties; (ii) Owner's operation of the Property', or (iii) Owner's
breach of its covenants, representations or warranties in Section 8.1 or 4.6.
11.5 Notice and Procedures. A party seeking defense and/or indemnification under this Article ( "Indemnitee ") promptly shall
(i) notify the other party ( "Indemnitor ") of any claim for which it is requesting indemnification and tender the defense, and (ii)
provide all reasonably available facts, circumstances, documents and particulars of the claim and reasonably assist where
requested to enable Indemnitor to defend, settle and/or indemnify for such claim. Indemnitor shall have sole control over such
defense, investigation, and/or settlement negotiations, but shall not settle any claim without first obtaining indemnitee's prior
consent where the settlement of such claim (1) results in any admission of guilt on the part of Indemnitee, (2) imposes any
obligation or liability on Indemnitee, or (3) has a judicially binding effect on Indemnitee, in each case, other than monetary
liability for which Indemnitee is indemnified by Indemnitor under this Article. Indemnitor shall have no liability or obligation to
Indemnitee under this Article in connection with any settlements that it does not approve or, where Indemnitor would be required
to provide a defense, any claims not tendered to it for defense.
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12. ASSIGNMENT.
12.1 Assignment by Operator. Operator may assign this Agreement to (i) any parent, affiliate (an entity in which Operator,
Time Warner Cable Inc. or Time Warner Entertainment- Advance/Newhouse Partnership has a direct or indirect ownership
interest of 25% or more), successor (by operation of Laws or otherwise), or subsidiary that Operator may have or (ii) any entity
that purchases Operator's assets used to provide Services to the Area. Upon the new operator's written assumption of all of
Operator's obligations and duties under this Agreement, Operator will be relieved of any further liability or obligations to Owner
attributable to periods from and after the effective date of such assumption.
12.2 Assignment by Owner. If Owner sells or otherwise transfers the Property, Owner promptly will provide Operator with the
name, address, telephone, facsimile, and contact name of the new owner, and Owner shall make the assumption of this
Agreement a condition to such sale or transfer. Upon the new owner's written assumption of all of Owner's obligations and
duties under this Agreement, Owner will be relieved of any further liability or obligations to Operator attributable to periods from
and after the effective date of such assumption.
13. CONFIDENTIALITY; TRADEMARKS.
Except as specifically provided in this Agreement, and except for disclosures required by Laws, Owner and Operator will (i) keep
confidential and not disclose to any other party the terms of this Agreement, (ii) keep confidential and not disclose to any other
party any information that is provided by one party to the other in connection with the performance of this Agreement that is
conspicuously marked "confidential," "proprietary," or with words of similar import, (iii) not disclose or use any such
confidential information for any purpose other than performance of this Agreement, and (iv) not make any public announcement
or press release about this Agreement without the other's prior approval. Notwithstanding the foregoing, each party shall be
entitled to (a) announce publicly and/or in business presentations that Owner and Operator have entered into a business
arrangement under which Operator will be providing its services to the Property (without disclosing any further specifics of this
Agreement), and (b) disclose the terns of this Agreement to its financial, legal, and other advisors and consultants, and to
prospective lenders or purchasers of the Property or the System, in each case on a need -to -know basis and provided that such
recipients are obligated to maintain the confidentiality of the terms of this Agreement without further disclosure to any other
party. Except for Owner's obligation to distribute Operator - provided marketing materials at the Property, nothing in this
Agreement shall be deemed or construed to be a license or other grant of rights to use the other party's copyrighted materials,
trademarks, service marks, trade names, logos, or other intellectual property or proprietary rights without the prior consent of
sash party.
€4, MISCELLANEOUS PROVISIONS
14.1 Notices. All notices, requests, approvals, demands, consents, and other communications that are required to be or may be
given under this Agreement shall be (i) in writing; (ii) when being sent to Operator, delivered by facsimile (where the facsimile
number provided by Operator under this Agreement is current) and by a nationally - recognized, traceable delivery service (e.g.,
overnight courier, U.S. mail with return receipt, etc.) to Operator's address stated at the head of this Agreement; (iii) when being
sent to Owner, delivered to the address provided by Owner to Operator for billing invoices (where applicable) or to Owner's
address stated at the head of this Agreement (but not to the Property address unless that also is the billing address); and (iv)
deemed properly given upon receipt by the addressed recipient. If questioned, the sender of the notice shall have the burden of
producing written documentation proving delivery and receipt. Either party may change its notice infonnation by providing
notice to the other in accordance with this Section.
14.2 Force Majeure. Despite anything to the contrary in this Agreement, neither party will be liable or in breach of or default
under this Agreement for any delay or failure of performance resulting directly from anything beyond the reasonable control of
the non - perfonning party, excluding payment of monies due (a "Force Majeure Event "). So long as the non - performing party
diligently and continuously attempts to cure the non - performance caused by the Force Majeure Event (giving consideration to the
effect of the Force Majeure Event on such party's overall business operations), the Term and the time for performance shall be
extended to account for the delay caused by the Force Majeure Event.
14.3 Compliance with Laws; Choice of Law. This Agreement shall be subject to, and in the perfonmance of their respective
obligations under this Agreement the parties shall comply with, all Laws and such compliance shall be deemed not to constitute a
breach of this Agreement. This Agreement is governed by and shall be interpreted under the Laws of the state of California.
The parties hereby submit to the in personam jurisdiction of the State of California, County of Los Angeles, and waive any
objection to improper venue in the applicable federal and state courts.
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14.4 Severability. If any portion of this Agreement is rendered invalid or otherwise unenforceable under Laws or by a
governmental, legal, or regulatory authority with jurisdiction over the parties, then the remainder of this Agreement will continue
in full force unless such continuance will deprive one of the parties of a material benefit hereunder. In such event, and subject to
Exhibit A and/or Exhibit B, which may contain agreed upon alternative provision(s) that automatically shall become effective
upon certain changes in Laws, the party that has been deprived of such material benefit may notify the other, and the parties
promptly thereafter shall use commercially reasonable efforts to replace or modify the invalid or unenforceable provision with a
provision that, to the extent not prohibited by Laws, achieves the purposes intended under the invalid or unenforceable provision.
14.5 Scope of Agreement; Modifications. This Agreement constitutes the entire agreement between Owner and Operator with
respect to, and supersedes all other agreements relating to, the subject matter contained herein. This Agreement can be modified
or changed only by a written instrument signed by both parties. A party's waiver of enforcement of any of the terms or
conditions of this Agreement will be effective only if in writing. The relationship between Owner and Operator is that of
independent contractors, and not one of principal and agent, joint venture or partnership.
14.6 Enforcement Costs. If either party sues or brings any other type of enforcement action in connection with this Agreement,
then the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs in connection with such
enforcement. "prevailing party" means the party whose granted relief is closest to its requested relief.
14.7 Headings; Exhibits. Headings are for reference only and do not affect the interpretation of this Agreement. The following
exhibits are fully incorporated into this Agreement by this reference:
Exhibit A — Additional Business Terms
Exhibit B — Discounted Services Addendum
14.8 Survival. The terms of Articles 10 and Sections 4.3, 11.2 through 11.5 (for a period of six months), 14.3, 14.6 and 14.8
will survive the expiration or termination of this Agreement for any reason.
14.9 Counterparts and Facsimile Signatures. This Agreement may be executed in counterparts. Fxact copies and facsimiles
of original signatures shall have the same force and effect as original signatures.
14.10 Further Assurances. Each party shall, at the request of the other, execute, acknowledge (if appropriate) and deliver
additional documents, and do such other acts, as reasonably may he requested by the other, to reflect the terms a,,d carry out the
purpose of this Agreement.
[Signature page follows exhibits.[
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EXHIBIT A
TO
SERVICE AND MARKETING AGREEMENT
(RESIDENTIAL MDU PROPERTIES)
Additional Business Terms
A. SERVICES; RATES; CHANGES. TERMS OF USE
Except as otherwise provided by this Agreement, the Services to be provided to Residents, and the rates to be charged for
the Services, will be Operator's standard retail Services and rates for the Area. Upon giving advance notice to Resident -
subscribers (where reasonably practicable), Operator may change any Services and rates to the extent not prohibited by Laws or
the terns of this Agreement. The Housing Corporation shall be billed, in bulk, for all Discounted Services provided under this
Agreement. Invoices shall he mailed to the Corporation at the Property address, in care of the property manager. Residents will
be billed individually for any services desired in addition to the Discounted Services and for any taxes, franchise fees, and other
fees assessed in conjunction with the additional services. In no event will Owner be responsible for any fees or charges incurred
by Residents in connection with the Services. Operator will use commercially reasonable efforts to ensure that the Services are
available to Residents 24 hours per day, 7 days per week, excluding scheduled maintenance and required repairs. Operator may,
with or without notice and without breaching this Agreement, disconnect or refuse to provide Services to any person who (i) fails
to execute and/or abide by Operator's standard customer agreements, terms of use or acceptable use policies, or other
requirements imposed by Operator from time to time, or (ii) uses the Services in violation of Laws. If Operator reconnects such
users, then Operator shall be entitled to charge the Resident Operator's then - current standard disconnection and reconnection
B. TERM
The inir;ai tern of this Agreement commences on October 1, 2010, and shall ca;tiewF; lit effc;_•f for a period of 5 years after
the Service Date (the "Initial Term "), The Initial Term automatically will be extended for successive one -month periods (each a
"Renewal Term ") unless either parry notifies the other at least 30 day= b'. fore the expiration of the Initial Term or any Renewal
Term; as tl,e � t:sc may h:, that it does no; ivinh to . xiend the Agri . anent The Initial Term and wiy Renf,%Nal Terms ar-_
collectively referred to as the "Term,"
C. MARKETED SERVICES
The "Marketed Services" include only those Services marked below:
XMulti - Channel Video Service
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EXHIBIT B
TO
SERVICE AND MARKETING AGREEMENT
(RESIDENTIAL MDU PROPERTIES)
Discounted Services Addendum
A. DISCOUNTED SERVICES, FEES AND PAYMENT TERMS
The "Discounted Services" include only those Services marked below:
XDiscounted Multi - Channel Video Service
XDiscounted Showtime Service
XDiscounted Digital Receiver one per unit
Description of Discounted Services.
1. Discounted Multi- Channel Video Service
Description: A channel line -up for the Discounted Multi - Channel Video Service is attached.
Fee: Effective December 1, 2010, the Discounted Multi- Channel Video Service fee shall be $28.5 0 per unit at the Property
per month (plus applicable taxes and fees), regardless of whether such units are occupied. The Discounted Multi - Channel Vide'.
Service fee dues include Operator's provision of consumer grade equipment to Residents to receive the Discounted Mula-
Chanrel Video Service. if eNcessary, which shall be billed to anti paid for by Owner. Operator shall be enntu.d to raise the
Discounted Multi - Channel Video Service fee at any time upon 30 days prior notice to Owner; provided that Operator shall riot
increase the Discounted Multi - Channel Video Service fee during the first 24 months of the Term; and provided further that after
such incrcd,;cs sha :i riot �xcecd 5% during any calendar year.
2. Invoices and Billing for Discounted Services
During the Tenn, Operator will bill the Housing Corporation for the Discounted Services on a monthly basis in advance
and payment by Owner shall be due within 30 days after the date of such invoice; provided that the Housing Corporation shall
not be required to pay any invoice more than 30 days prior to the month to which such invoice applies. If Operator fails to
present an invoice prior to the first day of the month for which Discounted Services are being provided, such failure shall not
constitute a waiver of the Discounted Services fee, and Owner promptly shall pay such invoice when delivered by Operator.
Invoices shall be sent to the Housing Corporation as follows:
El Segundo Senior Citizens Housing Corporation
c/o Property Manager, Park Vista Apartments
615 E. Holly Avenue
El Segundo, CA 90245
Any payments not received by Operator within 30 days after the date of invoice automatically shall incur a late payment fee
of up to 1.5% per month (pro -rated on a daily basis), or the maximum monthly amount permitted by Laws, whichever is less.
The late payment fee shall apply from the due date of such payment until the date such amount is paid in full.
Operator shall have the right, upon reasonable prior notice and during Owner's normal business hours, and subject to any
reasonable security requirements, to audit the use of the Services to ensure Owner's compliance with this Agreement.
Time Warner Cable Confidential & Proprietary page 9
4407413.1 1�,14 09
846 6 . I
B. SERVICES DESCRIPTIONS, STANDARDS, RATES, FEES. CHANGES AND TERMS OF USE.
General. Owner acknowledges that Operator (and its designated affiliates) is the sole provider of the Services under the
terns of this Agreement, and that Owner is not a reseller or provider of the Services. Residents will be billed for all Services
(other than the Discounted Services) and any taxes, franchise fees, and other fees assessed in conjunction with the Services. In
no event will Owner be responsible for any fees or charges incurred by Residents in connection with the Services (other than the
Discounted Services).
Services Standards; Outage Credits. Operator will use commercially reasonable efforts to ensure that the Services are
available to Residents 24 hours per day, 7 days per week, excluding scheduled maintenance and required repairs. If the
Discounted Services are disrupted, fail, or otherwise are unavailable for normal use by Residents due to a technical or other
malfunction in Operator's System or delivery network for 24 consecutive hours or more, then Owner will be entitled to a pro-
rated credit in accordance with Operator's then - current standard policies for the affected Discounted Service (a "Credit "). To
receive a Credit, Owner must request a Credit from Operator within 30 days after the date of such failure, and if confirmed by
Operator, Operator shall credit Owner's account for the Credit(s) on the invoice generated for Operator's next billing cycle. In
no event shall Credits awarded for any month of Discounted Services exceed the monthly recurring charges received by Operator
for such month of the affected Discounted Service. Operator shall have no liability for, and this provision shall not apply to, any
disruptions, failures or unavailability caused by a Force Majeure Event. Operator's provision of Credits shall constitute Owner's
exclusive remedy for Discounted Services disruptions, failures, or unavailability.
Changes to Services. Subject to Laws, Operator shall be entitled to change or discontinue any aspect or feature of the
Services, including, but not limited to, adding to, deleting from, and moving channel positions and the content and applications
accessible through or provided via such Services. Where reasonably practicable, Operator shall provide advance notice to
Resident - subscribers prior to any material change to the Discounted Services by posting notice of such change over the
Discounted HSD Service (if applicable), notification by email, or as otherwise permitted by Laws. If Owner notifies Operator
that it objects to any material adverse change to a Discounted Service ( "Owner's Objection ") within 30 days after the change
takes effect, and if Owner and Operator are unable to agree upon such change (or modify it to the reasonable satisfaction of the
parties) within 30 (lays after Operator's receipt of Owner's Objection, then, as its sole remedy, Owner may tenninate the
Discounted Set-.:ices arrangement under this Agreement upon an additional 30 days notice to Opetatoi, at which time Operator
shall off r the Discounted Services directly to Residents at its standard rates on an individual ly-bi I ied basis. Owner's failure to
notit y Operator of any change within 30 days alter the change became effective shall be deemed acceptance of the change by
Owncr.
Refusal to Provide Services; Disconnections; Reconnections. Operator may, with or without notice• and without
bn �,,ching this Avr, :,ment.. disconnect or remise, to provide Services to any person who (i) fails to Ntiec:in1_ and or abide by
Operator's standard customer agreements, terms of use or acceptable use policies, or other requirements imposed by Operator
from time to time, or (ii) uses the Services in violation of Laws. If Operator reconnects such users, then Operator shall be entitled
to charge the Resident (or Owner in the case of Discounted Services) Operator's then - current standard disconnection and
reconnection fees.
Cooperation with Governmental Authorities, To the extent not prohibited by Laws, Owner shall fully cooperate with
Operator and any appropriate governmental legislative, judicial or enforcement agency in responding to and complying with
court orders, search warrants, subpoenas, discovery demands, investigations and other similar requests, including providing
testimony, information, names, addresses, telephone numbers, location and other information about current or previous
Residents.
Time Warner Cable Confidential & Proprietary Page 10
4407413.1 - 1 �� 14109
SIGNATURE PAGE
To
SERVICE AND MARKETING AGREEMENT
The individuals signing below represent, warrant and covenant to each other, to Owner and to Operator that they are duly
authorized to execute and deliver this Agreement on behalf of the entity for which they have signed. If an agent or a manager is
signing this Agreement on behalf of Owner, such individual also represents, warrants and covenants that it has provided Operator
with a complete copy of its current, valid and enforceable agency or management agreement signed by Owner granting such
person actual authority to negotiate, execute and deliver this Agreement on behalf of Owner. This Agreement may be signed
electronically, in which case the signature lines below will remain blank and evidence of each party's electronic signatures will
appear at the bottom of this signature page.
OPERATOR:
Time Warner NY Cable LLC,
a Delaware limited liability company,
d/b /a Time Warner Cable,
through its Los Angeles Division
By: A 0" DFU
Bill E ck
Regional Vice President, Marketing
OWNER:
The City of El Segundo
By:
Title
Time Warner Cable Confidential & Proprietary Paige 11
4407413.1 — 1 t' 14/09