EXHIBIT 10.9
PAYPHONE FIELD SERVICES AGREEMENT
"NSC": NSC COMMUNICATIONS PUBLIC SERVICES CORPORATION
0000 XXXX XXXXXX XXXXXXX, XXXXX 000
XXXXXXXXXX, XXXXXXXXXX 00000
TEL: (000) 000-0000
FAX: (000) 000-0000
"COMPANY": DAVEL COMMUNICATIONS, INC.
0000 XXXXXXXX XXXXXX
XXXXX XXXXX XXXXX, 0XX XXXXX
XXXXXXXXX, XX 00000
TEL: (000) 000-0000
FAX: (000) 000-0000
E-MAIL: XXXXXX@XXXXXXXXX.XXX
EFFECTIVE DATE: DATE OF EXECUTION BY NSC INDICATED BELOW.
This Payphone Field Services Agreement ("Agreement") is entered into between NSC
and COMPANY as of the Effective Date.
1. INITIAL TERM: TWO (2) YEARS, commencing on the Effective Date.
2. COVERED TELEPHONES: The pay telephones owned and/or controlled
by COMPANY that are subject to this Agreement (the "Covered Telephones") are
listed on Schedule 1, attached hereto.
3. MANAGEMENT SERVICES: As set forth in Agreement and Exhibits.
4. TERMS AND CONDITIONS: This Agreement is subject to the terms
and conditions attached hereto consisting of 4 pages and the Attachments listed
below.
5. ATTACHMENTS: Terms and Conditions
Exhibit A - Initial Services
Exhibit B - Standard Services
Exhibit B-1 - List of Standard Repairs and
Non-Standard Repairs
Exhibit B-2 - Polling Services
Exhibit C - Initial Services, Pre-Site and
Non-Standard Repairs Fee Schedule
Exhibit D - Monthly Management Fees Calculation
Schedule 1 - Covered Telephone List
Schedule 2 - NSC Policies and Procedures
The parties have entered into this Agreement as of the Effective Date (which is
the date this Agreement is signed by NSC as shown below).
COMPANY NSC
By: /s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------------- ----------------------------------
Print Name: Xxxxx X. XxXxx Print Name: Xxxxxxx X. Xxxxxxx
Print Title: Chairman and Chief Print Title: Vice President and
Executive Officer General Counsel
Effective Date: October 17, 2003
EXHIBIT 10.9
TERMS AND CONDITIONS
These terms and conditions are part of the Payphone Field Services Agreement
("Agreement") between NSC and COMPANY. Capitalized terms used in this Agreement
and not otherwise defined have the meanings set forth on the cover page.
Section 1. Term. Except as otherwise provided in this Agreement, this Agreement
shall remain in full force and effect for the Initial Term commencing on the
Effective Date and shall be automatically renewed for successive 1-year periods
(each, a "Renewal Term") thereafter unless written notice of termination is
given by one of the parties hereto not less than ninety (90) days prior to the
expiration of the Initial Term or any Renewal Term.
Section 2. Covered Telephones. Concurrently with the execution of this
Agreement, COMPANY will deliver to NSC a written schedule of the pay telephones
that are subject to this Agreement. Each such pay telephone shall be deemed a
"Covered Telephone." This schedule may be amended from time to time as pay
telephones are added and/or deleted from the Covered Telephone list, provided
that the Company provides at least thirty (30) days prior written notice to NSC
of any such change in this list. Covered Telephones can only be deleted from
Covered Telephone list if they are sold to a third party unrelated to COMPANY or
any of its subsidiaries or affiliates, or turned off and removed from field
service by COMPANY or at COMPANY's direction, in accordance with this Agreement.
Section 3. Management Services; Management Fees and Other Charges. NSC shall
provide the services described in the Exhibits hereto (the "Management
Services"). All Management Services will be performed in accordance with NSC's
standard policies and procedures (the "Policies and Procedures"), which are set
forth in Schedule 2 attached hereto. Within thirty (30) days after the end of
each calendar month during which Management Services were performed (the
"Service Month"), NSC shall deliver to COMPANY a written statement (each, a
"Monthly Statement") that specifies: (a) the total Management Fees applicable to
that Service Month; (b) the amount deducted by NSC from collections as
recoupment for all charges and fees, including without limitation payment
towards the Management Fees, to be paid NSC for the subject Service Month; and
(c) the remaining amount of the Management Fees and all other charges and fees
to be paid NSC for the subject Service Month, if any. Such Management Fees will
be calculated in accordance with Exhibit D attached hereto. Each Covered
Telephone shall be subject to the Management Fees applicable to an entire
Service Month if the subject pay telephone is included under this Agreement as a
Covered Telephone for all or any portion of the subject Service Month. Under
this Agreement, COMPANY hereby (i) authorizes NSC to recoup all Management Fees,
charges and fees due and payable to NSC hereunder from any amounts collected on
behalf of COMPANY from Covered Telephones and/or through services rendered
hereunder and (ii) agrees that before such collections are tendered to COMPANY,
all Management Fees, charges and fees due and payable to NSC hereunder will be
drawn by NSC directly from said collections and paid to NSC . If upon
termination of this Agreement such collections have not been sufficient to
satisfy such Management Fees, charges or fees due and payable to NSC hereunder,
COMPANY will immediately pay any unsatisfied amount together with related
interest in the maximum amount allowable by law. The recoupment amount to be
paid NSC in any month shall include any Management Fees, charges or fees that
have not been satisfied in any prior month subject to late fees and interest as
further set forth in this Section 3. If any Monthly Statement shows an amount
owing NSC that was not or could not be satisfied through deduction from
collections, payment of such amount owing shall be due upon receipt of the
Monthly Statement, subject to ten percent (10%) interest if said amount has not
been remitted to NSC no later than thirty (30) days from the Monthly Statement
date. The foregoing shall be in addition to any and all other remedies available
to NSC in law or equity due to COMPANY's failure to pay any amount due under
this Agreement.
Section 4. Relationship; Indemnification. The terms of this Agreement will not
create between NSC (and any person employed by or conducting business with NSC)
and COMPANY a partnership, employer/employee relationship, or joint venture.
Provided that NSC exercises its authority in accordance with this Agreement.
COMPANY shall defend, indemnify, and hold harmless NSC and its employees,
directors, agents, and assigns from all liability, claims, damages, or loss
(including, without limitation, attorney fees, costs, and expenses) related to
or arising out of NSC's proper exercise of such authority.
Section 5. Insurance. NSC shall maintain public liability insurance against any
claims for bodily injury, death, and damage to property sustained by any person
occasioned by an accident arising out of or resulting NSC's performance or
nonperformance under this Agreement with limits of not less than $2,000,000 for
bodily injury or death to any one or more persons in any one accident, and not
less than $2,000,000 for property damage. COMPANY shall maintain insurance
adequate to cover its risks related to maintaining the Covered Telephones. NSC
and COMPANY each shall carry such insurance in responsible companies licensed to
do business in each state in which a Covered Telephone is located and shall
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EXHIBIT 10.9
furnish evidence of such insurance coverage to the other party upon request.
Section 6. Liability. NSC shall not be liable for any indirect, special,
incidental, consequential, or punitive loss or damage of any kind, including
lost profits (whether or not NSC had been advised of the possibility of such
loss or damage), by reason of any act or omission in its performance under this
Agreement. The maximum amount that NSC will be liable for in connection with any
action arising out of this Agreement or related to NSC's performance under this
Agreement (whether such action is based in tort, contract, or otherwise) shall
be the Management Fees received by NSC under this Agreement.
Section 7. Nonsolicitation and Nondisclosure. (a) During the term of this
Agreement and for a period of twenty four (24) months after termination, for any
reason, of this Agreement, neither party shall (i) solicit, induce, or attempt
to induce any entity it knows to be a customer of the other, whether such
customer exists as of the date of this Agreement or arises during the term of
this Agreement (each, a "Customer") to cease doing business with such other
party; (ii) otherwise interfere in any way with the business or operations of
such other party; or (iii) assist others in doing either of the foregoing; (b)
Each party agrees that it shall not during the term of this Agreement or any
time thereafter, disclose to any person the terms or contents of this Agreement.
Any technical or business information or data ("Information") disclosed or
furnished by one party to the other shall remain the property of the disclosing
party. When in tangible form, the Information shall be returned upon request.
All such Information shall be kept confidential by the receiving party and be
used only in the receiving party's performance under this Agreement, unless the
Information was previously known to the receiving party without any obligation
of confidentiality or is made public by the disclosing party. Without limiting
the foregoing, neither party shall directly or indirectly, without the prior
written consent of the other party, use or divulge to any other person or entity
(other than for the purposes of fulfilling its obligations under this Agreement)
any Information relating to the other party's financial information, customer
lists, marketing methods, personnel information, and trade secrets.
Section 8. Regulatory Approvals. This Agreement is subject to the applicable
tariffs relating to telephone service and to whatever regulatory or governmental
orders, rules, or regulations as may be applied to them from time to time.
Section 9. Default. Each of the following are events of default (each, an "Event
of Default"): (a) failing to perform or otherwise breach any agreement, term,
covenant, or condition contained in this Agreement and such failure continues
for thirty (30) days after written notice thereof from the other party, or if
failure is of such a nature that it cannot be cured within such thirty (30) day
period and the defaulting party fails to commence to cure the default within
such thirty (30) day period or thereafter fails to diligently continue to cure
such default within a reasonable time.
Section 10. General.
(a) This Agreement supersedes all prior oral or written negotiations,
understandings, or agreements between the parties with respect to the subject
matter hereof. Except as otherwise set forth herein there are no agreements,
understandings, commitments, representations, or warranties with respect to the
subject matter hereof except as expressly set forth in this Agreement.
(b) Without waiver of the foregoing provisions, all rights, benefits,
liabilities, and obligations of the parties hereto shall inure to the benefit of
and be binding upon their respective successors and permitted assigns. A party
hereto may not assign this Agreement without the prior written consent of the
other party hereto.
(c) A party's waiver of a breach of any provision of this Agreement shall not
affect the parties' rights as to further breaches or rights under any other
provision. Any modification of this Agreement or waiver of its terms must be in
writing and signed by the party to be bound.
(d) This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument. This Agreement may be executed with the signatures to be transmitted
by facsimile. A facsimile signature shall be treated for all purposes as an
original signature.
(e) Each provision of this Agreement is intended to be severable. If any
provision hereof shall be determined by a court of competent jurisdiction to be
illegal or invalid for any reason whatsoever, such provision shall be severed
from this Agreement and shall not affect the validity of the remainder of this
Agreement, unless the essential purposes of this Agreement would thereby be
confounded.
(f) The exercise by either party of any of its rights, remedies, or elections
under the terms of this Agreement shall not prejudice or preclude such party's
rights to exercise at any other time the same or any other right, remedy, or
election it may have under this Agreement, at law, or in equity.
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EXHIBIT 10.9
(g) The headings of the Sections of this Agreement are inserted for convenience
of reference only and shall not in any manner affect the construction or meaning
of anything herein contained.
(h) All notices and other communications required or permitted under this
Agreement shall be in writing and hand delivered, sent by registered first class
mail, postage pre-paid, electronic mail ("email") or sent by nationally
recognized express courier service to the recipient party's address first set
forth above, or at such other address as any party shall notify the other party.
Such notices and other communications shall be effective upon (i) receipt if
delivered directly by hand or by email, (ii) three (3) days after mailing if
sent by mail, and (iii) one (1) day after dispatch if sent by express overnight
courier.
(i) The parties hereto agree to submit to binding arbitration any controversy or
claim arising out of or related to this Agreement, or any claimed breach of this
Agreement. A single arbitrator chosen by mutual consent of the parties will hear
the arbitration. The arbitration will be conducted in accordance with the
commercial arbitration rules of the American Arbitration Association then in
effect. The arbitrator shall conclude the arbitration and issue an award no
later than one hundred eighty (180) days following service of the demand for
arbitration by either of the parties. Judgment upon the arbitrator's award may
be entered in any court of competent jurisdiction. The prevailing party will be
entitled to an award of all its arbitration fees and costs and attorney fees and
costs, including expert witness fees.
(j) In the event of any legal proceeding of any kind between the parties hereto
arising out of or related to this Agreement, whether at law or in equity,
including (without limitation) any arbitration, the prevailing party will be
entitled to recover its actual costs (including all court and arbitration costs)
and actual attorney fees, in addition to any other relief to which such party
may be entitled.
(k) This Agreement will be governed by and construed in accordance with the laws
of the State of California without regard to its conflict of laws principals.
Any arbitration under this Agreement shall be conducted within a fifty (50) mile
radius of NSC offices in the City of Pleasanton, California. Any legal
proceeding arising out of or related to this Agreement shall be brought and
litigated in the State Courts located in Alameda County, California, or in the
Federal Courts located in the City and County of San Francisco.
(l) Neither party shall be liable for any breach or default under this Agreement
if such breach or default arises directly from an act of God, labor dispute,
war, inevitable accident, national emergency, enactment, rule, order, or act of
any governmental instrumentality (whether federal, state, or local), or any
other cause beyond its reasonable control; provided that the party whose
performance is delayed gives prompt notice of the same to the other party and
the time for performance is extended only as long as such condition exists.
END OF TERMS AND CONDITIONS.
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EXHIBIT 10.9
EXHIBIT A
INITIAL SERVICES
A. Description of Initial Services.
1. Each Covered Telephone and enclosure (collectively, the "Equipment")
will be inspected.
2. The type of Equipment will be recorded and logged into the NSC's
data-base.
3. The Equipment will be repaired to bring the Equipment up to working
condition (the "Initial Repairs"). All defective parts will be returned to
COMPANY if requested in writing by COMPANY.
4. COMPANY will provide or authorize NSC to obtain the keys to all
Equipment. If any Equipment has less than two (2) keys, NSC shall re-key the
Equipment using COMPANY-provided locks and keys.
B. Management Fee for Initial Services.
1. COMPANY will pay NSC all its approved costs (see approval terms below) to
make the Initial Repairs or otherwise provide NSC with the appropriate parts or
equipment or replace such parts or equipment provided NSC. NSC shall be
reimbursed in full for all parts, equipment and major work (for example,
electrical and phone line installation or repair and any expenditure necessary
to bring the Covered Telephones and any ancillary equipment up to NSC's
operating specifications). NSC will notify COMPANY of the estimated costs
associated with these repairs prior to undertaking the work. Upon receipt of
such notification, COMPANY will notify NSC in writing (letter, fax or email) of
(a) its approval of the work and estimated expense, or (b) its approval for NSC
to remove the subject telephone.
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EXHIBIT 10.9
EXHIBIT B
STANDARD SERVICES
Description of Standard Services.
1. Collection
NSC shall collect all coins from each Covered
Telephone at the times scheduled by NSC. Subject to
Section 4 of this Exhibit B below, NSC shall provide
Customer with electronic data regarding polling
information reflecting all coin gain from the
preceding week. NSC shall wire transfer no later than
Wednesday of each week the preceding week's Collected
Amount ("Collected Amount" as defined herein is the
total amount collected from Covered Telephones during
the scheduled collection period pursuant to NSC's
collection, counting, and reconciliation policies
minus NSC's recoupment of all fees and charges due
and payable to NSC under this Agreement). All
reconciliation processes shall be completed in
accordance with standard NSC accounting policies. The
final reconciliation shall be completed as part of
the Monthly Statement under Section 2 of this
Agreement.
2. Maintenance
At each collection, NSC shall cause each Covered
Telephone to be cleaned and inspected to determine if
"Standard Repairs" or "Non-Standard Repairs" are
necessary (see Exhibit B-1 for list of Standard
Repairs and Non-Standard Repairs). At least once
every ninety (90) days all the working parts
(including those listed on Exhibit B-1) of the
Covered Telephones will be inspected to determine if
any Standard Repairs or Non-Standard Repairs are
necessary. If it is determined that Standard Repairs
are needed, then NSC shall make such repairs within
72 hours of such determination. The fee NSC shall
charge COMPANY for Standard Repairs is set forth in
Item 1 of Exhibit D. If NSC determines that
Non-Standard Repairs are needed, then NSC shall cause
the Non-Standard Repairs to be made within 72 hours.
The fee NSC shall charge COMPANY for Non-Standard
Repairs is set forth in Exhibit C.
3. Quality and Security
NSC shall actively monitor its internal quality and
security operations in accordance with the Policies
and Procedures.
4. Polling Services
Upon COMPANY's written request, NSC shall provide
polling service to the Covered Telephones (as
described in Exhibit B-2),. The cost of polling
service for each Covered Telephone is included in the
Standard Services Fee set forth in Exhibit D. At
COMPANY's written request and NSC's subsequent
approval, NSC will provide the type of polling
service chosen by COMPANY to COMPANY-owned or managed
pay telephones that are not Covered Telephones. The
polling service fee for the non-Covered Telephones
shall be as set forth in Exhibit B-2 and shall be
paid as part of the total monthly Management Fee due
to NSC.
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EXHIBIT 10.9
EXHIBIT B-1
LIST OF STANDARD REPAIRS AND NON-STANDARD REPAIRS
A. "Standard Repairs" includes the parts and labor to repair or replace
the following:
1. Battery
2. Coin return lever
3. Coin mechanism
4. Cradle
5. Handset
6. Keypad assembly
7. Lights
8. Relay
9. Trigger switch
10. Intellicall transformer
11. Upper housing
12. Faceplate
13. Electronic Coin Mechanism
14. Board Replacement
B. "Non-Standard Repairs" are all repairs other than Standard Repairs and
include (without limitation) the parts and labor to repair or replace the
following:
1. Lower housing
2. Enclosure
3. Pedestal
4. Backplate
5. Phone line and conduit to D-Marc
If NSC reasonably determines that the cost to repair any Covered
Telephone exceeds its replacement value, the replacement of the Covered
Telephone shall be a Non-Standard Repair.
* For items numbered 11,12,13, and 14 in Section A above of this
Exhibit B-1, NSC will not charge COMPANY for parts in the event COMPANY provides
NSC with such parts or replaces such parts in NSC's inventory. For items in
Section B above of this Exhibit B-1, COMPANY will supply such parts and NSC will
charge COMPANY only for the labor costs for such replacements.
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EXHIBIT 10.9
EXHIBIT B-2
POLLING SERVICES
1. Turnkey Polling. If COMPANY chooses turnkey polling service ("Turnkey
Polling") for a Covered Telephone, then NSC shall:
(a) poll each subject Covered Telephone, Sunday through Saturday;
(b) review all rate files for the subject Covered Telephones to ensure
that they are accurate (for example, by confirming correct charges and proper
routing of 0+ and 1+ calls);
(c) make changes to rate files as requested by COMPANY in writing
(letter, fax or email)*;
(d) send to COMPANY polling data for the subject Covered Telephones
Monday through Friday, except holidays;
(e) collect SMDR data from the subject Covered Telephones and provide
the data to COMPANY upon request; and
(f) download programs and rates into the subject Covered Telephones as
needed during NSC's standard business hours (4:00am PST to 6:00pm PST Monday
through Friday, except holidays).
* The actual cost of rate file additions, deletions, changes or filings (the
"Rate File Charges") will be billed to the COMPANY by NSC and paid by the
COMPANY to NSC as part of the monthly Management Fees, COMPANY provides NSC with
COMPANY-required rate files.
2. NSC will provide COMPANY with polling and call data record information (i.e.,
"CDR" data) on a daily basis.
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EXHIBIT 10.9
EXHIBIT C
INITIAL SERVICES, PRE-SITE AND NON-STANDARD REPAIRS FEE SCHEDULE
PRE-SITE FEE
Reviewed for the purpose of assessing new Telephones installations $ per new location
GENERAL INSTALLATION
Wooden enclosure/backplate* $ (labor charges only)
Each additional $ (labor charges only)
Wallmount Enclosure* $ (labor charges only)
Each additional $ (labor charges only)
Walk-up Enclosure* $ (labor charges only)
Each additional $ (labor charges only)
Mast $
Bumper Posts (2) $
Concrete Pad (2 x 3 x 6) $
Removals $
Standard Telco wiring and power repairs $
*COMPANY is not required to use NSC for the labor required to implement such
installations. COMPANY shall notify NSC in writing of its election to (a) use
NSC for such labor or (b) otherwise seek bids from third parties.
RE-KEYING AND REPLACING LOCKS
Abloy lock $
Medeco lock $
All other lock types will be replaced with an Abloy or Medeco lock as
applicable.
UPGRADE AND EXCHANGE WITHOUT REMOVAL OF EXISTING EQUIPMENT
Enclosure with pedestal $
Enclosure only $
ELECTRICAL. Electrical Fee to be determined and approved by both parties in
writing on case-by-case basis in advance of NSC performing any electrical work
(including wiring, conduit, and power line installation, other than "Standard
Telco" wiring and power repairs).
OTHER. Other Fees for all other Non-Standard Repairs to be determined and
approved by both parties in writing on a case-by-case basis in advance of NSC
performing such repair.
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EXHIBIT 10.9
EXHIBIT D
MONTHLY MANAGEMENT FEE CALCULATION
Total Monthly Management Fee = (Total amount of: Item 1 plus Item 2 plus Item 3
plus Item 4 below).
1. Standard Services Fee for Standard Services (including Standard Repairs)
performed on a Covered Telephone during a Service Month are as follows:
a. $ per Covered Telephone in the states of California, Oregon,
Washington, Nevada and Arizona, regardless of the amount, if any, collected from
or earned by any and all Covered Telephones;
PLUS
2. Non-Standard Repairs Fee, calculated in accordance with Exhibit C to the
Agreement, for Non-Standard Repairs performed during the subject Service Month.
PLUS
3. Applicable Rate File Charges in accordance with Exhibit B-2.
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EXHIBIT 10.9
SCHEDULE 1
COVERED TELEPHONE LIST
[TO BE PROVIDED BY COMPANY]
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EXHIBIT 10.9
SCHEDULE 2
NSC POLICIES AND PROCEDURES
NSC WILL APPLY TO COMPANY'S COVERED TELEPHONES THE SAME STANDARDS, PROCEDURES,
POLICIES AND GUIDELINES REGARDING OPERATION, MAINTENANCE AND COIN
COLLECTION/MANAGEMENT AS IT DOES TO NSC-OWNED PUBLIC PAYPHONES.
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