Exhibit No. 10.12.1 Telecommunications Services Agreement between Registrant
and Crossing Development Corporation (Legends).
Certain information in this exhibit has been omitted pursuant to Rule 406
of the Securities Act. Omitted information is designated by "*".
FIRSTLINK COMMUNICATIONS, INC.
AND
CROSSINGS DEVELOPMENT CORPORATION, ON BEHALF OF LEGENDS
CONDOMINIUM ASSOCIATION
CORPORATION
TELECOMMUNICATIONS SERVICES AGREEMENT
This agreement ("Agreement") is entered into as of September 25, 1997, by and
between FirstLink Communications, Inc., an Oregon corporation ("FirstLink"),
and the Crossings Development Corporation, a Washington corporation
("Owner"), on behalf of Legends Condominium Association.
1. PROPERTY. Owner owns the multi-family residential complex commonly
known as Legends, located at 1 000 XX 00xx, Xxxxxxxx, Xxxxxx 00000 which
consists of 80 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 operate 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.
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
resident 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
Page 1
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) 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, Owner shall bear
all expenses to install, operate, maintain and repair the telephone switching
equipment included in the System. Owner shall pay to FirstLink a quarterly
maintenance fee of $1 200 , due on the fifteenth day of the first month of
each calendar quarter, for FirstLink's day4o~ay maintenance of the system.
The quarterly amount due will be deducted from commissions due Owner under
section 7 below. If commissions due Owner in any quarter are less than $1200,
then Owner will remit the remaining amount due to FirstLink. The quarterly
maintenance fee will be $900 in any quarter in which FirstLink telephone
subscri6ers exceed 60 units. All equipment and materials expense shall be the
responsibility of the owner. 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 Owner or Owner's agent(s) or employees. FirstLink shall pay
for any damage to the System caused by FirstLink or FirstLink's agent(s) or
employees. Upon mutual agreement of FirstLink and Owner, such agreement not
to be unreasonably withheld by either party, FirstLink and its authorized
personnel shall have access to the Property for any reasonable purposes
related to this Agreement.
4. TERM. The term of this Agreement shall be * 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. 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 Owner.
Page 2
6. SERVICE TO RESIDENTS. 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. If a resident fails to pay service charges or
meet other requirements, FirstLink will notify Owner before sending
disconnect notice so that Owner may intervene and pay the required service
charge or meet the other requirements on behalf of the resident. Such notice
will be given owner only if resident has given prior authorization to
FirstLink to do so. Disconnect notices are sent no earlier than 45 days after
bills are rendered. Residents electing to receive Telecommunication Services
offered by FirstLink shall do so through the execution and delivery to Owner
or FirstLink of a Resident Services Agreement in the form provided (see
Attachment A), from time to time, from FirstLink to Owner. Owner shall
promptly provide such executed documents to FirstLink and may retain a copy
for Owner's use. FirstLink will provide Owner monthly a copy of FirstLink's
Resident Document (ResDoc) for the Property. Residents requesting
Telecommunication Services shall be charged and billed individually for
connection to the System. Billing rates, promotional programs and services
offered to residents by FirstLink shall be competitive and consistent with
those rates and rate structures offered by FirstLink to other FirstLink
customers in the Greater Metropolitan Portland Area (see Attachment B).
FirstLink shall be solely responsible for invoicing, collections and bad
debts related to provision of Telecommunication Service to residents.
7 COMMISSIONS. Owner shall be entitled to Commissions equal to * of
all gross revenues actually collected for basic local telephone services. All
commission payments hereunder will be paid quarterly in arrears net of
FirstLink's quarterly maintenance fee (Section 3, above).
8. 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
Page 3
made 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.
(b) Provide Owner with marketing materials, sales support and sales
training to enable Owner and Owner's employees to market Telecommunications
Services En accordance with Section 9(b);
(c) Provide training to Owner's staff to enable staff to perform the
duties specified in Section 9(b);
(d) 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;
(e) Maintain the System in good order, condition and repair.
9. ADDITIONAL OBLIGATIONS OF OWNER. Owner shall:
(a) Make the System available to FirstLink during the term of this
Agreement on a twenty-four hour, seven day a week basis. Owner's 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
residents. It is envisioned that this process will require a minimal
amount of time on behalf of Owner's staff. If residents 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 move-ins, move-outs,
transfers, intents to vacate, and the entering into or termination of
purchase agreements 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
Page 4
Utility Commission rules as may be determined by FirstLink; promptly provide
to FirstLink all manuals and equipment information relating to the Cortelco
switch and any other equipment used in the System.
(d) Cooperate with FirstLink in obtaining permits, consents, licenses
and any other requirements which may be necessary for FirstLink to operate
the System and furnish the Telecommunications Services.
(e) Provide reasonable access agents to enable FirstLink to perform the
Agreement including access for the purpose to the Property to FirstLink and
its employees and activities contemplated by or necessary under this of
soliciting customers.
(f) Owner shall retain and bear the expenses related to retention of
the existing trunk facilities between the System and MCI and shall install
and bear the costs of installation and operation of one additional trunks
between the System and FirstLink's switching facility. Upon removal of the
MCI trunk, an additional trunk between the System and FirstLink's switching
facility may be substituted at owner's expense.
10. 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.
11. TERMINATION OF THE AGREEMENT.
(a) This Agreement may be terminated at any time by mutual agreement of
the parties.
(b) 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.
Page 5
(c) 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 sixty (60) days, without further demand, to enter
upon the Property and to dismantle and remove or render inoperative any and
all equipment or other Property purchased or owned by FirstLink.
12. 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.
13. 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; (v) no purchase contracts presently exist
as to the Property; and (vi) it has entered into an agreement with the
Legends Condominium Association that upon 75% percent of the units at the
Property being sold ownership of the System will transfer to the Association
and this Agreement will continue to be binding on the Association after such
transfer.
14. 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 express representations or warranties regarding the provision of
Telecommunications Services, however, implied warranty of merchantability or
fitness for a particular purpose is not waived.
Page 6
15. 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.
16. 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 20, FirstLink shall have no liability
whatsoever for failure to pass on emergency telephone traffic.
17. INDEMNIFICATION. Subject to the provisions set forth in Section 18
below, 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.
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 with applicable
laws and regulations, except to the extent such matters are attributable to
the gross negligence or willful misconduct of Owner.
18. LIMITATION OF REMEDIES. Notwithstanding any other provision of
this agreement but without limiting the mutual indemnification in Section 17,
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.
Page 7
19. 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.
20. 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, then the
parties shall be excused from performance on a day-by-day basis to the extent
of such interference.
21. 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 officers 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
Page 8
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.
FIRSTLINK:
FirstLink Communications, Inc.
000 XX Xxxxxxxx, Xxxxx 0X
Xxxxxxxx, Xxxxxx 00000
Facsimile: 000-000-0000
Telephone: 000-000-0000
Attn: A. Xxxxx Xxxxx, CEO
LEGENDS CONDOMINIUM ASSOCIATION:
Crossings Development Corporation on behalf of Legends Condominium Association
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile: 000-000-0000
Telephone: 000-000-0000
Attn: Xxxxx X. Xxxxxx, Vice President
OWNER:
Page 9
Crossings Development Corporation
0000 00xx Xxxxxx Xxxxxxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
Telephone: 000-000-0000
Attn: Xxxx Xxxxx, Vice President Development Technology, or Xxxx Xxxxxxx, CEO
(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 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 ansing under
this Agreement or arising under documents executed in accordance with this
Agreement.
Page 10
THIS AGREEMENT HAS BEEN SIGNED AND DELIVERED AS OF THE ABOVE DATE.
FIRSTLINK COMMUNICATIONS, INC.
BY: /s/ A. Xxxxx Xxxxx
---------------------------
A. Xxxxx Xxxxx
Chief Executive Officer
LEGENDS CONDOMINIUM ASSOCIATION:
Crossings Development Corporation on behalf of Legends Condominium Association
BY: /s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
Vice President
OWNER:
Crossings Development Corporation
BY: /s/ Xxxx X. [ILLEGIBLE]
---------------------------
Vice President Development
---------------------------
& Technology
---------------------------
Page 11
ATTACHMENT A
FIRSTLINK
RESIDENT SERVICE AGREEMENT: LEGENDS
I WANT TO BE CONNECTED. LET'S CRUNCH MY PHONE AND CABLE RATES DOWN TO SIZE!
/ / LOCAL AND LONG DISTANCE PHONE PROVIDED BY FIRSTLINK
/ / EXPANDED BASIC CABLE TELEVISION (54 CHANNELS)
/ / PREMIUM CHANNELS: HBO / SHOWTIME / THE DISNEY CHANNEL / THE MOVIE CHANNEL
/ / I AM INTERESTED IN A FIRSTLINK CALLING CARD
MY MONTHLY RATE WILL BE:
---------------------------------------------
TELEPHONE AND BASIC CABLE ($-) $
----------
TELEPHONE ONLY ($-) $
----------
CABLE TELEVISION ONLY ($-) $
----------
OTHER $
----------
TOTAL $
----------
----------
- *ALL TAXES AND FEES INCLUDED
MY NEW TELEPHONE NUMBER WILL BE: .
-------------
TELEPHONE NUMBER WE CAN CONTACT YOU AT PRIOR TO SERVICE ACTIVATION: .
------------
PLEASE ACTIVATE MY FIRSTLINK SERVICES ON AT THE ADDRESS
-------------------
BELOW.
0000 XX 00XX XXX. ______
XXXXXXXX, XX 00000
------------------------------------------------------------------------------
SIGNATURE DATE
--------------------- -----------------------
PRINT NAME SOCIAL SECURITY #
----------------------- ----------
ACCOUNT REPRESENTATIVE DATE
----------- -----------------------
------------------------------------------------------------------------------
THE ABOVE SIGNATURE VERIFIES THAT I HAVE READ, UNDERSTOOD AND AGREE WITH THE
TERMS AND CONDITIONS FOR THE SERVICE CONTAINED ON BOTH SIDES OF THIS AGREEMENT.
ATTACHMENT B
FIRSTLINK
LEGENDS
WE'RE CRUNCHING YOUR CABLE AND PHONE RATES DOWN TO SIZE!!!
----------------------------
RATES
----------------------------
TCI/US WEST/ YOUR
SELECTED SERVICE PACKAGES FIRSTLINK AT&T SAVINGS
---------------------------------------------- --------- ------------ -------
- TCI Expanded Basic Cable Television Only $27.00 $28.93 7%
- With Cable/Phone Combination $24.00 17%
- Residence Telephone Line and EAS* $21.00 $21.24 1%
- With Cable/Phone Combination $19.00 11%
- Cable TV + Phone Package $43.00 $50.17 14%
- Call Waiting $3.65 $3.85 5%
- Call Forwarding $2.40 $2.50 4%
- Three-Way Calling $2.40 $2.50 4%
- Voicemail $6.60 $6.95 5%
------------------------------------------------------------------------------
LONG DISTANCE
PROGRAMS: TELEPHONE TELEPHONE AND
RATE ONLY CABLE
------------------- ---- -------------------
5% LOCAL 15%
DISCOUNT OFF FLAT MONTHLY TELEPHONE 5% PACKAGE MINIMUM
PROGRAM AT&T RATE FEE DISCOUNT DISCOUNT DISCOUNT USAGE
------- ------------ ---- ------- --------- -------- -------- -------
PLAN 1 X none X X none
Volume Discount
PLAN 2 $.15 none X X none
$.15 Flat
PLAN 3 $.10 $4.95 X X none
$.10 Flat
PLAN 4 $.09 $4.95 X X $200.00(1)
$.09 Flat
(1) $.15 per minute in which domestic (continental U.S.) long distance usage
is less than $200; month-to-month carryovers are not allowed.
