Exhibit No. 10.16.1 Telecommunications Services Agreement between Registrant
and Housing Authority of the City of Vancouver, Washington
(Cougar Creek Apartments).
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
HOUSING AUTHORITY OF THE CITY OF VANCOUVER, WASHINGTON
TELECOMMUNICATIONS SERVICES AGREEMENT
This agreement ("Agreement") is entered into as of March 27, 1997, by
and between FirstLink Communications, Inc., an Oregon corporation
("FirstLink"), and the Housing Authority of the City of Vancouver,
Washington, a Washington public housing authority ("Owner").
1. PROPERTY. Owner owns the multi-family residential complex commonly
known as Cougar Creek Apartments located at 0000 XX Xxxxx Xxxx Xxx.,
Xxxxxxxxx, XX 00000 consisting of 72 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. The system shall not include
existing wiring within the building.
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 additional services will be made
available. Their availability is dependent upon many variables
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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, except
as mandated by the Telecommunications Act of 1996 and subsequent laws
affecting telecommunications.
3. SYSTEM EXPENSES. Other than as set forth herein, FirstLink shall
bear all expenses to install, operate, maintain and repair 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 Owner's 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 room meeting FirstLink's specifications. If a suitable system site
cannot be identified within the existing buildings, FirstLink will be
responsible for providing the specifications of such a site and constructing
the site at FirstLink's cost. Such site would always remain the property of
VHA. 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. FirstLink agrees to notify the Facility Manager when either
FirstLink or its authorized personnel are on-site.
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
as soon as practicable and in a manner that minimizes interruption of
existing communication services. In no event shall FirstLink interrupt
service provided by US West for those tenants choosing to remain connected to
US West. Telecommunication Services to the Property shall commence no later
than 180 days from commencement of installation. FirstLink shall give Owner
at least ten
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(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.
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.
Both parties agree that neither the Owner nor the Owner's agent shall have
any liability regarding the number of residents electing to use
Telecommunications Services.
8. COMMISSIONS. Owner shall be entitled to Commissions equal to * of
all gross revenues actually collected for services provided to each living
unit served by FirstLink hereunder. 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)
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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 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 in accordance with Section 10(b);
(c) Provide training to Owner's staff to enable staff to perform the
duties specified in Section 10(b);
(d) 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;
(e) 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;
(f) Maintain the System in good order, condition and repair; and
(g) Provide Owner with business Telephone Services at the Property at
monthly service rates at or below comparable market prices. Owner will not
be charged for the installation costs for providing such business Telephone
Services. Owner will provide, at its own cost. all necessary ancillary
hardware such as keysets and operator consoles for the dedicated use of the
Owner.
(h) Pay all taxes resulting from the ownership or operation of System
and service.
(i) FirstLink will ensure that quality of the Telecommunications
Services are comparable to industry standards in the Portland Metropolitan
Area.
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(j) FirstLink will ensure that rates charged to residents for
telecommunications services will be competitive with rates charged for
comparable services in the Portland Metropolitan Area.
(k) FirstLink will ensure that any resident desiring to be reconnected
to the local exchange carrier will be reconnected at no cost to the resident.
(l) FirstLink will ensure that Telecommunications Services provided to
the residents are generally comparable to or exceed services being offered in
the Portland Metropolitan Area.
10. OB1IGATIONS 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
Owner's employees and agents shall not disturb the System;
(b) Use reasonable efforts to encourage its staff, agents and
representatives to encourage and promote the use of the Telecommunications
Services to residents and prospective residents as part of the amenities
provided by Owner at the Property. Owner consents to FirstLink's use of
incentives and incentive programs with Property management personnel, leasing
staff and other Property personnel for the purpose of promoting the System
and Telecommunication Services provided through the System. Owner's staff
will present the telecommunications service agreement and related information
to prospective tenants with the objective of securing sales. It is envisioned
that this selling process will require a minimal amount of time on behalf of
Owner's staff. If tenants have additional questions or require additional
information, their sales lead will be referred to FirstLink staff who will be
responsible for responding to customer inquiries and securing any resulting
sales. FirstLink will also be fully responsible for the initial sales
conversion process;
(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
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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 except that Owner will pay installation costs as described in
Section 9(g);
(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
xxxxx seeking to terminate, such breach has not been cured.
(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.
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(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 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.
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.
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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. Commencing upon installation of the system,
FirstLink will use its reasonable best efforts to pass all "911" emergency
calls 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.
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.
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19. LIMITATION OF REMEDIES. Notwithstanding any other provision of this
agreement but without limiting the mutual indemnification in Section 8,
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
parry to this Agreement, by final and binding arbitration before a single
arbitrator conducted at a location determined by the arbitrator in Vancouver,
Washington 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 Washington, 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
xxxxx. 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, 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.
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.
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(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 Washington.
(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: OWNER:
---------- ------
FirstLink Communications, Inc. Housing Authority of the City of Vancouver,
000 XX Xxxxxxxx Xx. Xxxxxxxxxx, 000 Xxxxx Xxx
Xxxxxxxx, Xxxxxx 00000 Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Telephone: 000-000-0000 Telephone: 000-000-0000
Attn: A. Xxxxx Xxxxx, CEO Attn: Xxxxx Xxxxxx
(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 xxxxx, in
addition to any other relief to which such party may be entitled.
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(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. /s/ Xxxx Xxxxxxx
--------------------------------
BY: /s/ A. Xxxxx Xxxxx
---------------------------------- BY: Xxxx Xxxxxxx
A. Xxxxx Xxxxx -----------------------------
Chief Executive Officer Exec. Director
-----------------------------
VHH
-----------------------------
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