Exhibit No. 10.9 Telecommunications Services Agreement between Registrant and
Security Investments; LP (Xxxx Plaza Apartments).
* = Confidential Information.
FIRSTLINK COMMUNICATIONS, INC.
AND
LONE PLAZA APARTMENTS
TELECOMMUNICATIONS SERVICES AGREEMENT
This agreement ("Agreement") is entered into as of October 20, 997, by and
between FirstLink Communications, Inc., an Oregon corporation ("FirstLink"),
and Security Investments, L.P., an Oregon limited partnership ("Owner").
1. PROPERTY. Owner owns the multi-family residential complex commonly
known as lone Plaza Apartments, located at 0000 XX Xxxx Xxxxxx, Xxxxxxxx
Xxxxxx, 00000, which consists of 305 living units ("the Property").
2. GRANT OF RIGHTS.
(a) Owner grants FirstLink the sole and exclusive right, except as
provided in the last sentence of clause (b) below, to install, own, operate,
replace and maintain the System on, off and through the Property and the sole
and exclusive right to provide Telecommunication Services to residents of the
Property. "System" shall mean all electronic devices, cable, wire, hardware,
software and other material used to transmit and receive two-way voice and
data communications, telephone service ("Telephone Service"), multi-channel
TV, video on demand, audio on demand, voice mail, data services and other
means of two-way communication distribution, whether now existing or
hereafter developed (collectively "Telecommunication Services") as between
the Property and the local and/or long distance telephone networks or other
outside distributor of these and other services. FirstLink's rights hereunder
in regard to multi-channel TV shall be subject to an agreement to be entered
into between TCI Cablevision of Oregon and FirstLink.
It is anticipated that Telephone Services will include local and long
distance calling, multi-channel television, voice mail and calling features
such as conference calling, call waiting and call forwarding. Additional
services will be added from time to time, as available and as warranted by
tenant demand. Such additional Telecommunication Services may include: video
conferencing, on-line computer services, electronic mail, wireless services
(such as cellular telephone) and other types of services. There can be no
assurance that any or all of the above
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additional services will be made available. Their availability is dependent
upon many variables and factors beyond FirstLink's control. Such factors
include, but are not limited to, technical Feasibility, economic, regulatory
and market considerations.
(b) In consideration of the substantial investment made by FirstLink in
the System, Owner agrees that it will not grant access to the Property to any
person or entity, other than FirstLink, for the purpose of operating or
maintaining the System, or permit the installation, maintenance or operation
at the Property of any other equipment, wire, cable, or material by any
person or entity that similarly provides Telecommunication Services. So long
as it is a requirement of law that a local telephone company also serve the
Property, this exclusivity provision shall not deny such local telephone
company the right to serve residents of the Property.
3. SYSTEM EXPENSES. Other than as set forth herein, FirstLink shall
bear all expenses to install, operate, maintain and repair the telephone
switching equipment included in the System. Owner shall, at Owner's expense
and cost, provide electrical power to the System and shall pay for any damage
to the System caused by the negligence or misconduct of Owner or Owners
agent(s) or employees. For the purposes of this Agreement, "System Site"
shall mean an adequate and secure space to house FirstLink's System
equipment, which shall consist of a rent-free, locked roam meeting
FirstLink's specifications. Owner hereby grants FirstLink and its authorized
personnel access to the Property for any reasonable purposes related to this
Agreement including the installation of cabling or microwave equipment to
interconnect buildings and to connect to other telecommunication systems and
grants specific rights to FirstLink to use both existing coaxial and twisted
pair cabling in the Property.
4. TERM. The term of this Agreement shall be * years from the date
hereof. The original term will automatically be renewed for up to *
additional periods of * years each unless either party otherwise notifies
the other in writing at least 180 days prior to the end of the original term
or any renewal term.
5. INSTALLATION. FirstLink shall commence installation of the System
switching equipment as soon as practicable. Telecommunication Services to the
Property shall commence no later than 90 days from commencement of
installation. FirstLink shall give Owner at least ten (10) days notice prior
to the commencement of installation. FirstLink may subcontract activities
related to the installation of the System, but shall be responsible for any
and all acts and/or omissions by any subcontractor.
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6. OWNERSHIP, AND CHARACTER OF THE SYSTEM. Except as otherwise stated
herein, the System, including any alterations and attachments, shall at all
times remain the sole Property of FirstLink. It is the intention of the
parties that the System, and every component of the System, shall retain its
character as personal Property following the installation of the System on
the Property, and shall not be deemed to be a fixture constituting a part of
the Property. No part of the System shall be or become subject to any
mortgage, deed of trust or lien upon the Property.
7. SERVICE TO TENANTS. FirstLink shall provide Telephone Service and
other Telecommunication Services offered through the System to each resident
requesting them. FirstLink's obligation to provide or continue
Telecommunication Services shall be contingent on the resident paying service
charges and meeting other reasonable requirements as are established by
FirstLink from time to time. Residents electing to receive Telecommunication
Services offered by FirstLink shall do so through the execution and delivery
to Owner or FirstLink of a Tenant Services Agreement in the form provided,
from time to time, from FirstLink to Owner. Owner shall promptly provide such
executed documents to FirstLink. Residents requesting Telecommunication
Services shall be charged and billed individually for connection to the
System and for service at standard rates established solely by FirstLink from
time to time unless prohibited by applicable law or regulation. FirstLink
shall be solely responsible for invoicing, collections and bad debts related
to provision of Telecommunication Service to residents
8. COMMISSIONS. Owner shall be entitled to Commissions equal to *
of all gross revenues annually collected for local and long distance services
originating at the Property, and expanded basic cable television service. All
commission payments hereunder will be paid quarterly in arrears.
9. ADDITIONAL OBLIGATIONS OF FIRSTLINK. FirstLink shall:
(a) Make a customer service representative available to receive service
requests or inquiries from Owner or residents and insure that it responds to
service requests within four (4) hours of receipt. Routine maintenance services
shall be performed by FirstLink during its normal working hours. A technician
shall arrive at the Property to commence maintenance services promptly after
request by a customer of such services, provided however, where such request are
mode on, or on a day preceding a Saturday, Sunday or holiday, FirstLink's system
technician shall arrive at the Property to commence maintenance services on the
next normal working day.
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(b) Provide Owner with marketing materials, sales support and sales
training to enable Owner and Owner1s employees to market Telecommunications
Services in accordance with Section 10(b);
(c) Install a telephone in the lobby of the Property to facilitate
residents in contacting FirstLink for installation or service purposes.
(d) Provide training to Owner's staff to enable staff to perform the
duties specified in Section 10(b);
(e) Repair or replace any damage to the Property resulting From
Installation, operation, or removal of the System or any other acts by
FirstLink to the satisfaction of the Owner and restore Property to its
original condition;
(f) Comply with all applicable regulatory requirements relating to the
provision of the Telecommunication Services provided by FirstLink as may be
in effect from time to time;
(g) Maintain the System in good order, condition and repair; and
(h) Pay all taxes resulting from the ownership or operation of System
and service.
10. OBLIGATIONS OF OWNER. Owner shall:
(a) Make the System Site available on a rent-free basis to FirstLink
during the term of this Agreement. The construction and location of the
System Site shall be as Owner and FirstLink reasonably agree, subject to
technical and regulatory requirements as determined by FirstLink. FirstLink
shall have twenty-four hour, seven day a week access to the System Site, and
Owners employees and agents shall not disturb the System;
(b) Use reasonable efforts to have its staff, agents and
representatives present and explain the use of the Telecommunications
Services to residents and prospective residents as part of the amenities
provided by Owner at the Property. Owner's staff will present the
telecommunications service agreement and related information to prospective
tenants. It is envisioned that this process will require a minimal amount of
time on behalf of Owner's staff. If
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tenants have additional questions or require additional information, they
will be referred to FirstLink staff who will be responsible for responding to
customer inquiries.
(c) Promptly provide to FirstLink requested specifications on the
Property, such as wiring schematics and/or building diagrams, a current list of
residents, addresses and their telephone numbers and other specific information
regarding resident transactions, such as rentals, move-ins, move-outs,
transfers, intents to vacate, and the entering into or termination of leases and
other information necessary to market and operate the System and
provide the Telecommunications services according to this Agreement or to
comply with governmental or Utility Commission rules as may be determined by
FirstLink;
(d) Cooperate with FirstLink in obtaining permits, consents, licenses
and any other requirements which may be necessary for FirstLink to install and
operate the System and furnish the Telecommunications Services; provided that
FirstLink shall pay all reasonable costs of the Owner associated therewith.
(e) Provide reasonable access to the Property to FirstLink and its
employees and agents to enable FirstLink to perform the activities contemplated
by or necessary under this Agreement including access for the purpose of
soliciting customers.
11. INSURANCE. FirstLink shall carry and maintain liability insurance of
$1,000,000 naming Owner and Owner's agent as additional insured covering
personal injury and Property damage that may be caused to person(s), the
Property or its contents, by the System or FirstLink's employees or agents.
Owner and FirstLink each waive any right of recovery against each other for any
claims that may be brought for any loss that is covered by insurance upon or
relating to the Property or the System to the extent of the actual proceeds
received by waiving party. Owner shall carry and maintain general liability
insurance related to the Property.
12. TERMINATION OF THE AGREEMENT.
(a) This Agreement may be terminated by either party if there has been a
material breach of the terms of this Agreement by the other party and if within
forty-five (45) days after receiving notice of such breach from the party
seeking to terminate, such breach has not been cured.
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(b) FirstLink may terminate this Agreement, or discontinue the provision
of any Telecommunications Services provided hereunder, if in the sole discretion
of FirstLink, it ceases to be feasible for legal, economic or regulatory reasons
to provide Telecommunications Services to the Property; provided that FirstLink
provides forty-five (45) days written notice to Owner.
(c) This Agreement may also be terminated by FirstLink if there is a
continuing material failure by Owner to provide the services to FirstLink
contemplated hereby.
(d) Any termination of this Agreement shall be effective as of the date of
termination, but FirstLink shall continue to provide Telecommunications Services
until the earlier of (i) all FirstLink customers at the Property are provided
Telephone Service from another source or (ii) thirty (30) days from the date of
such termination. The provisions of this agreement necessary for such continued
services shall remain effective.
(e) Upon termination of this Agreement for any reason, FirstLink, or any
designee of FirstLink, including without limitation, any party providing
financing to FirstLink, shall have the right, after providing Owner with written
notice of at least forty-five (45) days, without further demand, to enter upon
the Property and to dismantle and remove or render inoperative any and all
equipment or other Property comprising the System so long as such right shall
encompass Section 9 (d) herein.
13. ASSIGNMENT OF THE AGREEMENT. This Agreement and the rights hereunder
may be assigned by FirstLink to any majority-owned subsidiary of FirstLink or to
an affiliate or party acquiring all or substantially all of the assets of
FirstLink upon prior written consent of Owner. Such consent shall not be
unreasonably withheld. Alternatively, the Agreement may be assigned by FirstLink
to any FirstLink subsidiary so long as FirstLink agrees in writing that it shall
remain liable for all obligations arising under this Agreement. FirstLink may
also assign this Agreement to any party providing financing to FirstLink;
provided that such assignment shall not relieve FirstLink from its obligations
hereunder. In connection with a sale or disposition of the Property, Owner shall
request FirstLink's written consent to assign this Agreement and shall require
any subsequent owner of the Property to assume this Agreement and the rights and
obligations hereunder. Subject to the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the successors and assigns of the
respective parties to this Agreement.
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14. OWNER WARRANTIES: INFORMATION. Owner warrants that (i) it has full
power and authority to grant to FirstLink the exclusive rights set forth in this
Agreement, (ii) that no party holds any rights or interests with respect to the
Property that conflict with any rights or interests that Owner grants to
FirstLink under this Agreement; (iii) that the Property is not presently part of
bankruptcy proceeding, foreclosure action, or deed in lieu of foreclosure
transaction; (iv) Owner is not in default of any mortgages or other encumbrances
on the Property; and (v) no purchase contracts presently exist as to the
Property.
15. FIRSTLINK WARRANTY. FirstLink warrants that it will comply with all
laws and licensing requirements concerning the installation and operation of the
System. Except as expressly stated in this Agreement, FirstLink makes no
representations or warranties regarding the System or the provision of
Telecommunications Services, express or implied, including, but not limited to,
any implied warranty of merchantability or fitness for a particular purpose.
16. INDEPENDENT CONTRACTOR. FirstLink shall be and is an independent
contractor and Owner shall not control or direct the details and means by which
FirstLink performs its duties under this Agreement. This Agreement shall not
create the relationship of employer and employee, a partnership or a joint
venture.
17. EMERGENCY CALLS. FirstLink will use its reasonable best efforts to
pass all "911" emergency calls, in a manner which identifies the unit number
from which the call originates, through the System to authorities but makes no
warranty or guaranty of any nature as to the promptness or adequacy of any
response to any such emergency call. FirstLink assumes no responsibility
whatsoever for any actions with respect to emergency calls other than to use its
reasonable best efforts to pass such traffic to authorities through the System.
In the event that the System has been adversely affected by any situation
described in Section 21, FirstLink shall have no liability whatsoever for
failure to pass on emergency telephone traffic.
18. INDEMNIFICATION. Subject to the provisions set forth in Section 19
below, (i) FirstLink and Owner hereby agree to indemnify, defend and hold each
other (and each other's officers, directors, owners, employees, and agents)
harmless from and against all claims, losses and liabilities in any way relating
to, growing out of, or resulting from a material breach of each of their
respective obligations under this Agreement ; and (ii) Owner will indemnify
FirstLink for damages to the System as provided in Section 3 herein.
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In addition, FirstLink agrees to indemnify, defend and hold harmless Owner
and Owner's partners, employees and agents from and against all damages, losses,
liabilities, costs, and expenses (including reasonable attorneys' fees)
resulting from claims made or causes of action asserted by third parties
(including, without limitation, residents of the Property) arising out of or
relating to (i) the performance by FirstLink (or its employees or agents) of its
obligations under this Agreement, (ii) the provision of Telecommunications
Services or (iii) compliance of FirstLink and/or the System with applicable laws
and regulations, except to the extent such matters are attributable to the gross
negligence or willful misconduct of Owner.
19. LIMITATION OF REMEDIES. Notwithstanding any other provision of this
agreement but without limiting the mutual indemnification in Section 18,
neither FirstLink nor Owner shall be liable to any third party for any
incidental or consequential damages, including but not limited to lost profits,
of any nature whatsoever or for the condition or repair of any telephone
instrument or any Property to which the System is attached.
20. ARBITRATION OF DISPUTES. Any controversy, dispute, or claim of
whatever nature arising out of, in connection with or in relation to the
interpretation, performance or breach of this Agreement, including any claim
based on contract, tort or statute, shall be resolved at the request of any
party to this Agreement, by final and binding arbitration before a single
arbitrator conducted at a location determined by the arbitrator in Portland,
Oregon, administered by and in accordance with the then existing rules of
practice and procedure established by the Arbitration Chapter of the Uniform
Trial Court Rules as then in effect in the State of Oregon, and judgment upon
any award rendered by the arbitrator may be entered by any state or federal
court having jurisdiction thereof. The arbitrator shall award attorney's fees
and costs of the arbitration procedure to the prevailing party. Both parties
acknowledge that they are giving up their right to have any such claim decided
in a court of law before a judge or jury, and hereby waive all rights to appeal.
21. FORCE MAJEURE. If the performance of any of the obligations under this
Agreement is interfered with by any reason or any circumstances beyond the
reasonable control of the parties, including, but not limited to, fire,
earthquake, storm, volcanic eruption, explosion, power Failure or power surge,
technological obsolescence, acts of God, war, revolution, civil commotion, or
requirement of any government or legal body or any representative of any such
government or legal body, labor unrest, including but not limited to, strikes,
slowdowns, picketing or boycotts,
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then the parties shall be excused from performance on a day-by-day basis to
the extent of such interference.
22. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire Agreement
between the parties and may not be modified, amended or changed except by
written instrument signed by duly authorized executives of both parties.
(b) WAIVER. The failure by either party at any time to require performance
by the other party or to claim a breach of any provision of this Agreement shall
not be construed as affecting any subsequent breach or the right to require
performance or to claim a breach with respect thereto.
(c) GOVERNING LAW. The rights and obligations of the parties and all
interpretations and performances of this Agreement shall be governed in all
respects by the laws of the State of Oregon.
(d) NOTICES. Any notice to be given by either party to the other shall be
in writing and either personally delivered or sent by certified mail, return
receipt requested, to the addresses of the Owner and FirstLink provided below.
Notices shall be deemed given when received or refused. Each party may change
its address for notice to it by notice in accordance with the foregoing
provisions.
FlRSTLINK: OWNER:
FirstLink Communications, Inc. Security Investments, L.P.
000 XX Xxxxxxxx 000 XX Xxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Telephone: 000-000-0000 Telephone: 000-000-0000
Attn: A. Xxxxx Xxxxx, CEO Attn: Xxx Xxxxxxxx,_________
(e) VALIDITY. If any provision of this Agreement shall be held to be
invalid or unenforceable, such provisions shall not affect in any respect the
validity or enforceability of the
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remainder of this Agreement unless the invalidity materially affects the
ability of either party to perform as contemplated hereunder.
(f) ATTORNEYS' FEES AND COSTS. If arbitration or other proceedings are
brought to enforce or interpret this Agreement, the substantially prevailing
party shall be entitled to recover reasonable attorneys' fees and other costs
incurred in such action, arbitration or proceeding from the other party, in
addition to any other relief to which such party may be entitled.
(g) AUTHORITY. Each individual signing this Agreement on behalf of a
corporation or partnership represents that he or she has the necessary authority
to execute this Agreement on behalf of such entity and that, in the case of a
corporation, all necessary corporate action has been taken approving the
execution of this Agreement.
Any person or entity executing this Agreement as "Owner" hereby represents
and warrants to FirstLink that it is fully authorized by Owner to execute this
Agreement and to bind Owner to the terms and obligations set forth in this
Agreement and the Owner is fully aware of the existence and contents of this
Agreement. Owner and any person or entity executing this Agreement on Owner's
behalf acknowledges that Owner shall be estopped from claiming that this
Agreement was executed by a person or entity lacking actual authority to bind
Owner.
(h) FURTHER ASSURANCES. Upon the reasonable request of either party,
the other party shall promptly and, at its own expense, execute and deliver any
additional documents or take such actions, as may be reasonably necessary
(subject to any other agreement binding on either party) for the purpose of
evidencing or perfecting any rights or interest of either party arising under
this Agreement or arising under documents executed in accordance with this
Agreement.
This Agreement has been signed and delivered as of the above date.
FIRSTLINK OWNER:
FIRSTLINK COMMUNICATIONS, INC. SECURITY INVESTMENTS, L.P
BY: /s/ A. Xxxxx Xxxxx BY:
-------------------------------- --------------------------------
A. Xxxxx Xxxxx /s/ Xxx Xxxxxxxx
--------------------------------
Chief Executive Officer
--------------------------------
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