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EXHIBIT 10.9
CONFIDENTIAL TREATMENT REQUESTED
MASTER HIGH SPEED DATA SERVICES
ACCESS AND RIGHT OF ENTRY AGREEMENT
This MASTER HIGH SPEED DATA SERVICES ACCESS AND RIGHT OF ENTRY AGREEMENT (this
"Agreement") is entered into as of the 23rd day of February 1999 ("Effective
Date"), by and between I3S, INC., a Texas corporation, with a place of business
at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 ("I3S"); and ARCHSTONE COMMUNITIES
TRUST, a Maryland real estate investment trust, with a place of business at 0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, including all
affiliates and subsidiaries which may become parties to this Agreement from time
to time (collectively, "ARCHSTONE"). ARCHSTONE and I3S are sometimes
hereinafter referred to individually as a "Party" and collectively as the
"Parties".
RECITALS
WHEREAS, ARCHSTONE currently owns and manages multiple dwelling unit communities
(collectively, "MDUs") in several metropolitan markets throughout the United
States;
WHEREAS, I3S provides system integration and network services, including,
without limitation, high speed data services as more specifically described in
Exhibit D attached hereto and incorporated herein by reference ("HSDS"), to
multiple system franchise cable operators ("MSOs"), private cable operators
("PCOs"), and real estate investment trusts ("REITs"), nationwide; and
WHEREAS, ARCHSTONE desires that I3S provide HSDS to certain MDUs agreed to by
the parties (individually, a "Property", and collectively, the "Properties") and
I3S desires to provide such HSDS as set forth below; and
WHEREAS, I3S and ARCHSTONE anticipate that they will enter into agreements (each
an "MDU Property Agreement") under which the Operator will provide HSDS to the
residents of the MDU defined therein, on the terms and conditions provided
therein;
WHEREAS, I3S and ARCHSTONE desire to agree on standard terms (the "Standard
Terms") that will be incorporated by reference in each MDU Property Agreement
and be effective to the extent not in conflict with the terms of such MDU
Property Agreement; and
WHEREAS, I3S and ARCHSTONE have agreed that the execution and delivery of an MDU
Property Agreement is good and sufficient consideration to support this
Agreement.
NOW THEREFORE, I3S and ARCHSTONE agree that the capitalized term "Standard
Terms", as used in any MDU Property Agreement, shall mean the following terms:
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ARTICLE 1
PROPERTY, REPRESENTATIONS AND WARRANTIES
1.1 PROPERTY
The "Property" shall mean the property identified in an MDU Property Agreement,
in substantially the form as attached as Exhibit A hereto, to which these
Standard Terms are attached, made a party of and apply pursuant to the
provisions of that MDU Property Agreement. The parties shall enter into an MDU
Property Agreement for each ARCHSTONE's property that the parties mutually agree
shall have HSDS provided to such property by I3S. Neither party shall be under
any obligation to enter into an MDU Property Agreement for any ARCHSTONE
property.
1.2 REPRESENTATIONS AND WARRANTIES OF ARCHSTONE.
AUTHORITY. This Agreement has been duly authorized, executed and
delivered by ARCHSTONE and constitutes a valid and legally binding Agreement of
ARCHSTONE, and neither the execution and delivery of nor the performance of the
provisions of this Agreement shall conflict with or result in a breach,
violation or default under the organizational documents of ARCHSTONE, if
applicable; or any material agreement binding on ARCHSTONE that would affect its
obligations hereunder.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by or on behalf of ARCHSTONE shall survive the execution and
delivery of this Agreement, and any investigation at any time made by or on
behalf of I3S shall not diminish its rights to rely thereon.
1.3 REPRESENTATIONS AND WARRANTIES OF I3S.
AUTHORITY. This Agreement has been duly authorized, executed and
delivered by I3S and constitutes a valid and legally binding Agreement of I3S,
and neither the execution and delivery of nor the performance of the provisions
of this Agreement shall conflict with or result in a breach, violation or
default under the Certificate of Incorporation and Bylaws of I3S, if applicable;
or any material agreement binding on 13S that would affect its obligations
hereunder.
PERMITS, LICENSES, ETC. I3S possesses all material permits, licenses,
franchises rights, trademarks, trademark rights, trade names, trade name rights,
copyrights, and all other intellectual property rights which are required to
conduct its business and provide HSDS in accordance with this Agreement.
I3S LICENSES. I3S possesses all requisite licenses from third parties
necessary to provide HSDS to ARCHSTONE's Properties and their residents.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by or on behalf of I3S shall survive the execution and delivery
of this
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Agreement, and any investigation at any time made by or on behalf of ARCHSTONE
shall not diminish its rights to rely thereon.
ARTICLE 2
TERM
2.1 TERM. This Agreement shall have a term of seven (7) years from the Effective
Date; provided, however, that with respect to any Property initially presented
to and declined to be served by I3S hereunder within twenty-four (24) months of
the Effective Date, and subsequently re-presented to and accepted by I3S
thereafter, then the term of any such MDU Property Agreement pertaining to such
Property shall be five (5) years; further provided, however, that this Agreement
shall be extended thereafter on a month to month basis unless either Party
notifies the other Party in writing of its intent to terminate this Agreement;
and further provided, however, that with respect to each executed MDU Property
Agreement, the term set forth therein shall govern the term of each such MDU
Property Agreement.
ARTICLE 3
EXCLUSIVITY
3.1 EXCLUSIVITY. For Properties covered by this Agreement, ARCHSTONE shall not
agree to or accept commissions or other forms of compensation for the marketing
of other parties' HSDS, except as provided herein, and shall not provide or
support, or allow to be provided or supported, on premise marketing support for
such other parties' HSDS at the Property. Notwithstanding the foregoing,
ARCHSTONE cannot preclude a party from providing U.S. Federal Communications
Commission tariffed telecommunications or municipal franchise cable television
services to the Properties to deliver high speed Internet access or data
services to a Property subject to this Agreement in the event that said party
possesses a specific federal or state statutory or regulatory right, or
municipal cable television franchise obligation to do so or other pre-existing
agreement with ARCHSTONE. Subject to these limitations, I3S shall have the
exclusive right to market, promote and sell HSDS at each Property covered hereby
during the term of this Agreement.
ARTICLE 4
ARCHSTONE'S OBLIGATIONS
4.1 ACCESS RIGHTS. In consideration of the mutual agreements of the parties
contained herein, ARCHSTONE agrees to do and perform, or cause to be done and
performed, the following:
(a) ARCHSTONE will assist, or cause to be assisted, I3S in gaining
access to apartment units at the Properties as necessary in furtherance of this
Agreement subject to the terms and conditions set forth herein, particularly
Section 6.4 below.
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(b) ARCHSTONE hereby grants I3S, or shall cause to be granted to I3S,
access and a right of entry to the Property and the cable distribution or other
data distribution plant as provided in each executed MDU Property Agreement.
(c) ARCHSTONE will permit, or cause to be permitted, employees,
permitted agents, or contractors of I3S reasonable access, at no charge, to the
Property, in connection with any and all work hereunder for installation,
inspection, maintenance, repair or removal of Equipment (as defined in Section
6.2 below), or to provide or market HSDS to I3S customers as set forth herein.
Each party's employees, contractors, or agents will, while on the premises of
any other party, comply with this Agreement (including, but not limited to the
requirement in Section 6.4 below to check in with the Property community manager
whenever on the Property) and all stated or published rules and regulations.
4.2 MAINTENANCE PROBLEMS/CUSTOMER COMPLAINTS. ARCHSTONE shall use reasonable
efforts to request residents to coordinate directly with the point of contact
designated in writing by I3S to ARCHSTONE regarding any complaints or technical
problems. ARCHSTONE will use reasonable efforts to inform, or cause to be
informed, I3S of any material or recurring maintenance problems regarding the
HSDS of which ARCHSTONE is aware.
4.3 EQUIPMENT SPACE. ARCHSTONE shall provide, or cause to be provided, a
lockable space, at no charge, to I3S at each Property for the storage of
Equipment in connection with the performance of its obligations hereunder, to
the extent such space is reasonably available.
4.4 ADDITIONAL PROVISIONS. The MDU Property Agreement shall set forth additional
terms, if any, governing the maintenance of cable television inside wiring and
distribution plant at any Property subject to this Agreement at which ARCHSTONE
owns such inside wiring and distribution plant.
ARTICLE 5
AFFIRMATIVE AGREEMENTS OF I3S
5.1 GENERAL OBLIGATIONS. In consideration of the mutual agreements of the
parties contained herein, I3S agrees to do and perform, or cause to be done and
performed, the following:
(a) I3S shall possess and maintain good, valid, indefeasible and
marketable title to its property that pertains in any way to HSDS, and all such
property shall remain free and clear of any adverse claims, interests and liens,
except as has been heretofore disclosed in writing to ARCHSTONE.
(b) I3S shall maintain in full force and effect all material permits,
licenses, franchise rights, trademarks, trademark rights, trade names, trade
name rights and
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copyrights which are required to conduct its business and provide HSDS in
accordance with this Agreement.
(c) During the term of this Agreement, I3S agrees to procure and
maintain the following insurance policies and require its contractors to carry
the following insurance policies in no less than the following minimum amounts
(or such other minimum amounts, if higher, as are required by law):
(i) All risk property insurance covering the full replacement
cost of the Equipment and all other personal property and
improvements installed or placed in or on the Properties by I3S.
(ii) Insurance to protect I3S and ARCHSTONE from and against any
and all claims for injury or damage to persons or property, both
real and personal, caused by the construction, erection,
operation or maintenance of any structure, equipment, appliance
or products authorized or used by I3S pursuant to the authority
of I3S in performance of this Agreement, and the amount of such
insurance against liability due to damage or injury to property
shall not be less than One Hundred Thousand and No/100 Dollars
($100,000.00) and against liability due to injury or death or
persons shall not be less than Five Hundred Thousand and No/100
Dollars ($500,000.00) as to any one person and One Million and
No/100 Dollars ($1,000,000.00) as to two or more persons in any
one accident.
(iii) Xxxxxxx'x compensation insurance with limits in compliance
with the laws of the State in which the Property is located.
(iv) Vehicular liability insurance with personal injury limits of
not less than Five Hundred Thousand and No/100 Dollars
($500,000.00) for one person and One Million and No/100 Dollars
($1,000,000.00) for two or more persons and vehicular liability
property damage insurance with a limit of not less than Fifty
Thousand and No/100 Dollars ($50,000.00) to cover all vehicle
accidents.
(v) Umbrella excess liability insurance with limits of not less
than and One Million and No/100 Dollars ($1,000,000.00) for
bodily injury and property damage in excess of the minimum
amounts stated above.
(vi) Employer's liability insurance with no less than the minimum
limits required by law.
Copies of all insurance policies referenced above, to be obtained by I3S in
compliance with this Section shall be furnished to ARCHSTONE upon written
request.
The liability policies shall name ARCHSTONE as an additional insured,
insure on an occurrence and not a claims made basis, be issued by companies
licensed to do
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business in the State in which the Property is located, not be cancelable unless
thirty (30) days prior written notice shall have been given to ARCHSTONE, and
contain a cross liability/severability of interests clause and a contractual
liability endorsement (any policy issued to ARCHSTONE providing duplicate or
similar coverage shall be deemed excess over I3S's policies). Such policies or
certificates thereof shall be delivered to ARCHSTONE by I3S upon commencement of
this Agreement and upon each renewal of said insurance. The all risk property
insurance obtained by ARCHSTONE and I3S shall include a waiver of subrogation by
the insurers and all rights based upon an assignment from its insured against
ARCHSTONE or I3S, their officers, trustees, directors, employees, agents,
invitees and contractors in connection with any loss or damage thereby insured
against. I3S warrants that it meets or exceeds all insurance requirements stated
herein and those that are required by the laws in the State in which each
Property is located.
(d) I3S shall assume and pay all operating and capital costs and
expenses associated with the HSDS and the Equipment, including, without
limitation any and all:
Monthly recurring private Internet exchange points
Monthly recurring switch maintenance
Monthly recurring POP transport
Monthly recurring Dallas network operations center costs (including
installation costs)
Customer support IP technicians and engineers (NOC, Help Desk and
field personnel)
I3S specific training
Insurance on I3S capital equipment
I3S-specific travel and entertainment
Switch site equipment (including installation costs)
Peering point routers
Private Internet exchange point hardware (including installation
costs)
I3S network infrastructure equipment
Transport facilities
Backbone transport facilities
Monthly recurring local loop costs
Monthly recurring property maintenance (Lce, Router, DSU/CSR)
Monthly recurring IP headed maintenance
CSR platform and services
Internet browse platform user license
MDU property IP equipment (Lce, Router, DSU/CSR)
IP master headed equipment
Nonrecurring local loop transport costs
Customer billing and collections
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Unless otherwise agreed to in advance and in writing, ARCHSTONE shall not be
responsible for any installation, upgrade, local loop circuits, or maintenance
costs for the I3S HSDS distribution system and components thereof.
ARTICLE 6
HIGH SPEED DATA SERVICES AND EQUIPMENT
6.1 HSDS. During the term of this Agreement, I3S shall provide the HSDS more
particularly described and set forth in Exhibit D attached hereto and
incorporated herein by reference to each resident of the Property requesting
HSDS. Any decrease to the HSDS (as defined in Exhibit D, in particular the
section titled "Definition of High Speed Data Services (HSDS)") shall be
mutually agreed upon by the parties and shall only become applicable when an
amendment covering such change, addition or decrease is executed by the parties.
Further, and in accordance with specific terms and conditions to be
negotiated in good faith between Archstone and I3S, I3S shall provide Archstone
with (i) one (1) high speed data services connection to the leasing office of
each Property covered by the Agreement for use by Archstone's employees at said
Property, (ii) a dedicated Internet connection at Archstone's Denver corporate
office for the purpose of connecting each Property to said corporate office, and
(iii) web-based development and applications services, together with associated
web hosting services, for Archstone's general corporate purposes and operations.
6.2 EQUIPMENT. I3S, at its sole cost and expense, shall construct, install,
operate and maintain on-site equipment as allocated to I3S in Section 5.l(iv)
above (the "Equipment") on and through the Property, necessary for I3S to
provide HSDS to the Property pursuant to this Agreement. I3S shall not install
any other equipment on the Property. To the extent future enhancements of the
HSDS and/or I3S's obligations herein may require additional, different or new
Equipment that require additional HVAC or other additional costs to ARCHSTONE,
I3S and ARCHSTONE shall mutually agree thereon (and shall be deemed part of the
Equipment once installed). All Equipment will be installed at mutually agreed
upon location(s). Prior to the commencement of any construction and/or
installation work, I3S shall, at its sole cost and expense, prepare and deliver
to ARCHSTONE complete working drawings, plans and specifications (the "Plans"),
detailing the location and size of the Equipment and specifically describing all
proposed work. No work shall commence until ARCHSTONE has approved the plans
(including, but not limited to, the location and size of the Equipment), which
approval will not be unreasonably withheld, conditioned or delayed. The
Equipment, and any personal property on the Property belonging to I3S shall be
there at the sole risk of I3S, and ARCHSTONE shall not be liable for damage
thereto or theft, misappropriation or loss thereof, except due to ARCHSTONE's
gross negligence or willful misconduct. I3S shall, at its sole cost and expense:
(1) perform all such construction in a safe, good and workmanlike manner;
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(2) perform all such construction and work in such a way as to minimize
interference with the operation of the Property;
(3) maintain workmen's compensation insurance in form and amount as is
required by law during all such periods of construction and work;
(4) obtain, prior to the commencement of any construction and work, all
necessary federal, state and municipal permits, licenses and
approvals.
6.3 OPERATION, MAINTENANCE AND REPAIR.
(a) I3S shall provide the Equipment and the HSDS and otherwise
perform hereunder in accordance with, in all material respects, federal, state
and local laws, if any, which may be applicable thereto. I3S, at its sole cost
and expense, shall promptly repair all damage to the Property and all
improvements thereon caused by I3S and its agents, employees and contractors
to substantially original condition (to the reasonable satisfaction of
ARCHSTONE).
(b) I3S agrees to keep the Equipment in good working order, repair
and condition throughout the term of the Agreement, and not to materially
disrupt or interfere with other providers of services in the Property or with
any resident's use and enjoyment of their leased premises or the common areas of
the Property or with ARCHSTONE's operation of the Property except to the extent
I3S is in compliance, and subject to, the provisions of Exhibit E.
6.4 RESIDENT SUPPORT AND INSTALLATION. Support and installation services
provided by I3S shall at all times conform with the service levels specified
in Exhibit E. All such responses and support provided by I3S shall be in
material compliance with governmental laws and/or regulations and within general
industry standards. Requests for individual installations of HSDS shall be
completed within a reasonable timeframe. I3S shall not enter a resident's
apartment unit without resident's express approval. Further, I3S shall not
enter a resident's unit unless resident or an adult representative of the
resident is present. I3S will use all reasonable efforts to check in with
ARCHSTONE's on-site community manager (or that manager's designated
representative) prior to entering the Property. I3S will have its employees,
agents and contractors carry identification badges when on the Property, in
order that on-site management and residents of the Property may confirm that
such persons are on the Property on behalf of I3S pursuant to this Agreement.
6.5 REMOVAL OF EQUIPMENT UPON TERMINATION. Upon expiration or earlier
termination of this Agreement, I3S shall have the right (subject to I3S's
obligation to repair damage to the Property that is set forth in Section 6.3(a)
above), at its expense, to remove the Equipment, if any, from the Property
within sixty (60) days from the date of such expiration or termination.
Thereafter, ownership and all right, title and interest to and of the Equipment
shall automatically transfer to ARCHSTONE (and I3S shall deliver good, valid and
marketable title to ARCHSTONE free and clear of all liens,
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encumbrances, pledges and/or charges of any kind, and I3S shall promptly execute
a xxxx of sale for the Equipment as reasonably prepared by ARCHSTONE, provided
that the absence of such a xxxx of sale shall in no way limit the transfer of
ARCHSTONE set forth herein). Notwithstanding the foregoing, I3S shall remain
liable for (shall indemnify ARCHSTONE from, and shall promptly satisfy) any
liens, encumbrances, pledges and/or charges of any kind on such Equipment and/or
personal property that were placed thereon due to actions or omissions of I3S,
its employees, agents (other than ARCHSTONE) or contractors.
ARTICLE 7
SERVICE LEVEL STANDARDS
7.1 HSDS SERVICE LEVEL STANDARDS. During the term of this Agreement, I3S shall
maintain the service level standards pertaining to various aspects of the HSDS,
as more particularly described and set forth in Exhibit E attached hereto and
incorporated herein by reference. Failure to do so shall constitute a material
breach of this Agreement.
ARTICLE 8
REVENUE ALLOCATION; CUSTOMER ACCESS PRICING; BRANDING
8.1 REVENUE ALLOCATION. Monthly recurring Internet access revenue generated by
customers at Properties subject to this Agreement will be paid to I3S; provided,
however, that, by the twenty-fifth day of each month of the term of this
Agreement, I3S shall pay ARCHSTONE a revenue sharing fee calculated on the basis
of such monthly recurring Internet access revenue, prepaid or not, (exclusive of
one-time charges, such as: installation charges, customer equipment sales or
leases, other charges passed through on a no-markup basis collected by I(3)S,
and comparable charges such as customer service charges or maintenance charges)
actually collected by or on behalf of I3S for the immediately preceding month
from residents of the Properties ("Revenues") in accordance with following
tables and the individual the table set forth in the applicable MDU Property
Agreement:
In all instances where ARCHSTONE through itself or a third party
provides the on-Property access distribution system ("Access Distribution"), the
Archstone revenue share shall be in accordance with Table II; and in all other
cases where Table II does not apply, the Archstone revenue share shall be in
accordance with Table I. Subscriber penetration shall be calculated as the
percent of the residential units at the applicable Property that have a
subscriber to HSDS against the total residential units under lease at the
Property. The single column in the Tables below that shall be used to determine
the applicable revenue share for each monthly payment period shall be determined
according to the subscriber penetration percent calculated as of the first day
of that month.
ARCHSTONE REVENUE SHARE TABLE I
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Subscriber
Penetration
Access Option Network 0-10% 11- 16- 21- Above
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Access Investment 15% 20% 30% 30%
Distribution
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I. Cable I3S I3S * * * * *
Modem
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II. Copper I3S I3S * * * * *
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III. Switched I3S I3S * * * * *
Ethernet
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IV. FITL I3S I3S * * * * *
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ARCHSTONE REVENUE SHARE TABLE II
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Subscriber
Penetration
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Access Option Network 0-10% 11- 16- 21- Above
Access Investment 15% 20% 30% 30%
Distribution
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V. Cable Archstone I3S * * * * *
Modem
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VI. Copper Archstone I3S * * * * *
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VII. Switched Archstone I3S * * * * *
Ethernet
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VIII. FITL Archstone I3S * * * * *
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I3S shall pay to ARCHSTONE a late fee of 1.5% per month for any amount not
timely paid (which shall be in addition to, and not in place of, any other
remedies available in this Agreement, at law or in equity to ARCHSTONE).
Notwithstanding anything to the contrary in this Agreement, ARCHSTONE shall not
be entitled to or considered to have earned any payment for the HSDS under this
Article 8.1 unless ARCHSTONE directs I3S to make such payments to ARCHSTONE by
means of a written notice to I3S. I3S shall, however, provide reports of the
payments that would have been made in the absence of the foregoing sentence,
which reports shall be provided to ARCHSTONE pursuant to the payment schedule
otherwise set forth herein. ARCHSTONE will not so direct I3S unless and until
either (x) ARCHSTONE receives a letter from ARCHSTONE's counsel indicating that
ARCHSTONE received a ruling from the IRS that the receipt by ARCHSTONE of
amounts with respect to the provision of HSDS would not cause rents received
from such tenants to fail to qualify as "rents from
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real property" within the meaning of Section 856(c) of the Code or (y) ARCHSTONE
receives a letter from ARCHSTONE's public accountants indicating that the
receipt of such payments for HSDS would not cause ARCHSTONE to fail to meet the
requirements of Sections 856(c)(2) and (3) of the Code. If ARCHSTONE directs I3S
to make the payments for HSDS, the payments shall be calculated from the
effective date of this Agreement.
8.2 CUSTOMER ACCESS PRICING. With the intent to increase HSDS penetration at
each Property served under this Agreement, the initial price at which access to
the HSDS is set forth in Exhibit D; provided, however, that I3S shall obtain
ARCHSTONE's prior written approval for any price increase or decrease in excess
of a twenty-five percent (25%) variation from the then-current price. Such
access shall be provided at a price, service quality and content comparable to
the services of other companies which utilize comparable high-speed data access
technologies to deliver HSDS. Prior to the provision of HSDS and the execution
of any MDU Property Agreement, I3S shall provide to ARCHSTONE for ARCHSTONE's
review the proposed pricing structure and service quality and content standards
for HSDS to each Property that may become subject to this Agreement. Residents
will be charged and billed individually by I3S for HSDS they receive, and I3S
shall be solely responsible for all billing and collection therefor.
8.3 MFN PRICING COMMITMENT. During the term of this Agreement, I3S shall offer
Archstone the most favored terms (including, but not limited to, revenue share
to Archstone) that I3S has then contracted for with another residential Real
Estate Investment Trust ("REIT") possessing a comparable portfolio of Class A
and B apartments that are owned by Archstone and that are contractually
committed to I3S by said REIT pertaining to HSDS in the MDU market under
substantially the same terms and conditions that Archstone and I3S have entered
into under this Agreement for all future Properties that become subject to this
Agreement thereafter.
8.4 RECORDS AND AUDIT. I3S shall keep complete and accurate books and records
and related documentation in accordance with generally accepted accounting
principles to support and document all amounts becoming payable to ARCHSTONE
hereunder and concerning revenues received for the HSDS. I3S shall promptly,
upon written request from ARCHSTONE, notify ARCHSTONE of the location at which
such records are currently located. I3S shall maintain its books and records for
such period or periods of time as may be required by the rules and regulations
of the Internal Revenue Service applicable to the retention of business records.
From time to time during the term of this Agreement, ARCHSTONE shall have the
right, to be exercised by ARCHSTONE or its designee upon seven (7) days notice
to I3S, to audit the books and records of I3S as necessary to verify amounts
payable to ARCHSTONE under this Agreement. I3S shall make available to ARCHSTONE
or its designee such books and records as are relevant to the payments due
ARCHSTONE under this Agreement as may be requested by ARCHSTONE to perform such
audit and shall pay to ARCHSTONE immediately any unpaid amounts due to ARCHSTONE
disclosed by such audit. If the unpaid amounts for a calendar quarter comprise
more than two percent (2%) of the total amount payable to ARCHSTONE in that
calendar quarter, as verified by an independent auditing firm, I3S
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shall pay all reasonable costs and expenses of such independent auditor that
relate to such audit.
8.5 REPORTS. I3S, at its sole cost and expense, shall provide ARCHSTONE, within
twenty (20) days of the end of each calendar quarter of the term of this
Agreement, with a report with the following information clearly identified (and
in a format reasonably acceptable to ARCHSTONE):
(a) Total number of subscribers to the HSDS who are residents of the
Properties;
(b) A billing summary, for the preceding quarterly period, describing the
total amount billed to those subscribers (disaggregating by major
categories of service), the total amount received from those
subscribers; and
(c) such other information as the parties shall mutually agree upon from
time-to-time.
ARTICLE 9
SPECIFIC HSDS WARRANTIES
9.1 OWNERSHIP; AUTHORITY. I3S represents and warrants that all Equipment and
software utilized hereunder (collectively, the "Products") are free and clear of
all liens and encumbrances (unless otherwise disclosed to ARCHSTONE in writing),
and that it has full power and authority to utilize the rights granted to it
with respect to such Products without the consent of any other person or that
such consent has been obtained, and that to the knowledge of I3S the Products
utilized hereunder will not infringe or violate any copyright, trade secret,
trademark, patent or other intellectual property rights of any third party.
9.2 COMPLIANCE WITH APPLICABLE LAWS. I3S represents and warrants that the HSDS
performed by I3S, its employees, agents, subcontractors and assignees pursuant
to this Agreement shall be in compliance with all applicable federal, state and
local laws, rules and regulations.
ARTICLE 10
INDEMNIFICATION
10.1 INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION. I3S shall defend, indemnify
and hold harmless ARCHSTONE, its directors, trustees, officers, shareholders,
employees and agents and its successors and assigns, from and against any and
all claims, demands, actions, liabilities, losses, damages and expenses,
including, without limitation, settlement costs and reasonable attorneys' fees,
arising out of or relating to any actual or alleged infringement of any third
party's trade secrets, trademark, service xxxx, copyright, patent or other
intellectual property rights (the "Intellectual Property Rights") in connection
with the use of said Intellectual Property Rights hereunder. I3S's obligation
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pursuant to the immediately preceding sentence is subject to the following
conditions: (i) ARCHSTONE shall give I3S prompt written notice of all actions,
claims or threats against ARCHSTONE of infringement or violation of Intellectual
Property Rights (provided, however, that failure to give such notice shall not
limit I3S's indemnification obligations hereunder); (ii) ARCHSTONE shall permit
I3S to elect to assume complete control of such claims at I3S's sole discretion
and expense; and (iii) ARCHSTONE shall cooperate fully with I3S, at I3S's sole
cost and expense, in defending against claims, including making known or
available to the indemnifying party, upon reimbursement of all costs associated
with provision or reproduction of, all records and document pertaining to
claims. I3S shall not enter into a settlement that imposes liability on
ARCHSTONE without ARCHSTONE's consent, which consent shall not be unreasonably
withheld, delayed or conditioned.
10.2. INDEMNIFICATION. Each party shall indemnify the other against all
liability, loss, damage, and expense resulting from injury to or death of any
person (including injury to or death of their employees) or loss of or damage to
tangible real or tangible personal property (including damage to their property)
or the environment, but only to the extent that such liability, loss, damage or
expense was proximately caused by its breach of this Agreement or by any
negligent or grossly negligent act or omission or willful misconduct on the part
of the party from whom indemnity is sought ("the indemnitor"), its agents,
employees, subcontractors or assignees. Indemnitor shall have the right to
assume defense of the claim with counsel reasonably acceptable to indemnitee.
Indemnitee shall be entitled to participate in the defense of the claim with its
own counsel at its sole expense. Neither party shall enter into a settlement
that imposes liability on the other without the other party's consent, which
consent shall not be unreasonably withheld, delayed or conditioned.
ARTICLE 11
PROTECTION OF PROPRIETARY RIGHTS
11.1 CONFIDENTIAL INFORMATION. Confidential Information shall be held in
confidence by the receiving party. "Confidential Information" shall mean (a) any
information clearly marked "Proprietary" or "Confidential"; and (b) any
information regarding ARCHSTONE's residents. Information which is conveyed
orally shall be deemed confidential only if prior to disclosure it is indicated
as being confidential and written confirmation identifying the confidential or
proprietary information is provided to the receiving party within ten (10)
business days after it was discussed orally.
11.2 RESTRICTIONS. Each party shall use its reasonable best efforts to maintain
the confidentiality of such Confidential Information and not show or otherwise
disclose such Confidential Information to any third parties, including, but not
limited to, independent contractors and consultants, without the prior written
consent of the disclosing party. Each party shall use the Confidential
Information solely for purpose of performing its obligations under this
Agreement. Unless approved in advanced by the non-disclosing party, except for
the existence of this Agreement, the terms and provisions of this Agreement
shall remain strictly confidential and shall not be disclosed to any third party
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other than a party's attorneys, accountants, other professional advisers,
potential purchasers of the Properties, and unless otherwise required by law.
11.3 AUTHORIZED DISCLOSURES. Notwithstanding the obligations described in
Section 11.2 above, neither party shall have any obligation to maintain the
confidentiality of any Confidential Information which: (i) is or becomes
publicly available by other than unauthorized disclosure by the receiving party;
(ii) is independently developed by the receiving party; or (iii) is received
from a third party who has lawfully obtained such Confidential Information
without a confidentiality restriction. If required by any court of competent
jurisdiction or other governmental authority, the receiving party may disclose
to such authority, data, information or material involving or pertaining to
Confidential Information to the extent required by such order, provided that the
receiving party shall first have used its reasonable efforts to notify the
disclosing party so that the disclosing party may seek to maintain the
confidentiality of such data, information or materials.
11.4 LIMITED ACCESS. Each party shall limit the use and access of Confidential
Information to such party's bonafide employees or agents who have a need to know
such information for purposes of conducting the receiving party's business
solely in furtherance of its obligations hereunder. Each party shall notify all
employees and agents who have access to Confidential Information or to whom
disclosure is made that the Confidential Information is the confidential,
proprietary property of the disclosing party and shall instruct such employees
and agents to maintain the Confidential Information in confidence.
11.5 CONTINUING OBLIGATIONS. Each party's obligations under this Article 11
shall survive the termination of this Agreement for two (2) years thereafter.
ARTICLE 12
DEFAULT; TERMINATION
12.1 DEFAULT. Upon the occurrence of any of the following events, a party shall
be deemed to be in default under this Agreement:
(a) Material breach of any warranty or representation by the defaulting
party;
(b) Material failure to perform the defaulting party's obligations
hereunder, including but not limited to, I3S's failure to (i) maintain the
service standards set forth in Section 7.1 hereof, and (ii) make the payments to
ARCHSTONE set forth in Section 8.1 hereof;
(c) The defaulting party's ceasing to conduct business in the normal
course, insolvency, the making of a general assignment for the benefit of its
creditors, suffering or permitting the appointment of a receiver or similar
officer for its business or assets or availing itself of, or becoming subject
to, any proceeding under the United States Federal Bankruptcy Laws or any
federal or state statute relating to solvency or the protection of the rights of
creditors; or
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(d) Making of any warranty, representation, statement or response in
connection with this Agreement which was untrue in any material respect on the
date it was made by the defaulting party.
12.2 REMEDIES. In the event the defaulting party fails to cure any default set
forth hereunder within thirty (30) days, except for (a) defaults under Section
12.1(c) which shall have a cure period of ninety (90) days, and (b) defaults
under Section 12.1(b)(ii) which shall have a cure period of five (5) days, and
after written notice of such default by the nondefaulting party, the
nondefaulting party may terminate this Agreement without further obligation on
the part of the nondefaulting party, and pursue any claims at law or in equity
permitted under this Agreement against the defaulting party.
12.3 FAILURE TO EXERCISE REMEDY. The remedies set forth above are cumulative,
but the nondefaulting party is under no obligation to exercise any such remedy.
The exercise of, or failure to exercise, any such remedies shall not prevent any
future exercise of the same or any other remedies or release the defaulting
party from its obligations under this Agreement.
12.4 EFFECT OF TERMINATION. Termination of this Agreement shall not impair
either party's then accrued rights, obligations, liabilities or remedies
hereunder.
ARTICLE 13
NOTICE; PUBLIC DISCLOSURES
13.1 NOTICE.
All notices pursuant to this Agreement shall be in writing and may be
personally delivered or sent by a nationally-recognized overnight courier or by
Certified mail return receipt requested, postage pre-paid. All notices
personally delivered shall be deemed delivered at the time of such delivery. All
notices sent by Certified mail shall be deemed delivered five (5) days after
deposited in the US mail. All notices sent by overnight courier shall be deemed
made one (1) business day after delivery to such courier service. Any party may
designate a change of address upon ten (10) days written notice.
If to I3S, to: I3S, INC.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Mr. Xxx Xxxxx, CEO
with a copy to: I3S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxx, President
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If to ARCHSTONE, to: Archstone Communities Trust
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx, Vice President
with a copy to: Xxxxx, Xxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx Xx, XX 00000
Attn: Xxxxxx Xxxxxx
13.2 PUBLIC DISCLOSURES. All media releases, public announcements, and public
disclosures by either party of its employees, agents or representatives relating
to this Agreement or the subject matter hereof, excluding any announcement
beyond the control of this disclosing party, must be approved by the
nondisclosing party in writing prior to release, or no release can be made.
ARTICLE 14
MISCELLANEOUS
14.1 ENTIRE AGREEMENT. This Agreement, together with the schedules, attachments
and exhibits attached hereto or referred to herein, constitutes the entire
Agreement and understanding among the parties hereto and is the final expression
of their Agreement and no evidence of oral or other written promises shall be
binding. All other prior agreements or understandings related to the subject
hereof among the parties, whether written or oral, shall be null and void and of
no further force and effect upon the execution of this Agreement. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
14.2 INCORPORATION BY REFERENCE. The schedules, exhibits and attachments
referred to herein or attached hereto are hereby incorporated in and to this
Agreement and made a part hereof by this reference. These additional documents
are:
EXHIBIT A: Sample MDU Property Agreement
EXHIBIT B: Sample Memorandum of Existence of High Speed Data Services
Access and Right of Entry Agreement
EXHIBIT C: [intentionally omitted]
EXHIBIT D: Description of High Speed Data Services Provided by I3S
EXHIBIT E: Service Level Agreement
EXHIBIT F: Sample Quitclaim Deed
14.3 AMENDMENT; MODIFICATION. The Agreement may not be supplemented, amended,
modified or otherwise altered except by written instrument executed by all the
parties
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hereto and no course of dealing or trade usage among or between the parties
shall be effective to supplement, amend, modify or alter this Agreement.
14.4 WAIVER. The failure to enforce or to require the performance at any time of
any of the provisions of this Agreement herein shall in no way be construed to
be a waiver of such provisions, and shall not affect either the validity of this
Agreement, any part hereof or the right of any party thereafter to enforce each
and every provision in accordance with the terms of this Agreement.
14.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS
OR CHOICE OF LAWS, PROVIDED, HOWEVER, THAT THE GOVERNING LAW CLAUSE IN EACH MDU
AGREEMENT SHALL GOVERN OVER THIS SECTION 14.5.
14.6 CONTINUITY OF CONTRACT. If any severable provision of this Agreement is
deemed invalid or unenforceable by any judgment of a court of competent
jurisdiction, the remainder of this Agreement shall not be affected by such
judgment, and this Agreement shall be carried out as nearly as possible
according to its original terms and intent, unless to do so would substantially
impair the underlying purposes of this Agreement.
14.7 CAPTIONS. The captions appearing in this Agreement are included solely for
convenience of reference and shall not be construed or interpreted to affect the
meaning or interpretation of this Agreement.
14.8 FORCE MAJEURE. If a party's performance of any of its obligations under
this Agreement is interfered with by any reason or any circumstances beyond its
control, including, without limitation, fire, 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 without limitation, strikes, slowdowns, picketing
or boycotts, then that party shall be excused from performance on a day-by-day
basis to the extent of such interference. If such a force majeure event prevents
I3S from performing for more than one (1) year, the exclusivity portion of this
Agreement shall terminate at ARCHSTONE's option and ARCHSTONE shall have the
right to seek alternate service providers to operate the Equipment, install new
facilities and provide alternate sources for the HSDS for the residents of the
Property.
14.9 HIRING PROHIBITED. During the term of this Agreement and for a period of
one (1) year thereafter, no personnel of either party who was directly involved
in the performance of this Agreement shall solicit for hire or hire any employee
of the other party who was directly involved in the performance of this
Agreement.
14.10 PERFORMANCE REVIEW. In the event of any dispute or controversy between the
parties of any kind or nature, except in circumstances where equitable relief is
deemed necessary by either party in its sole discretion, upon the written
request of either party, each of the parties will appoint a designated officer
whose task it will be to meet for the
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purpose of resolving such dispute or controversy or to negotiate for an
adjustment to any provision of this Agreement needed to resolve such dispute or
controversy. Such officers will discuss the dispute or controversy and negotiate
in good faith in an effort to resolve the dispute or controversy or renegotiate
the applicable section or provision of this Agreement without the necessity of
any formal proceeding relating thereto. No formal proceedings for the judicial
or arbitrational resolution of such dispute or controversy may be commenced
until either or both of the designated officers conclude in good faith that an
amicable resolution through continued negotiation of the matter at issue is not
likely to occur.
14.11 BINDING NATURE; ASSIGNMENT. This agreement will be binding on the parties
hereto, and their respective successors and assigns. Upon prior written approval
of ARCHSTONE, which approval shall not be unreasonably withheld, delayed or
conditioned, I3S may assign its rights and delegate its duties under this
Agreement, provided, however, that such approval shall not be required in the
event that (i) the assignee party has at least the same financial strength and
technical competence as I3S measured as of the assignment date, (ii) I3S is not
otherwise in default hereunder as of the date of the assignment, (iii) I3S shall
provide Archstone with not less than thirty (30) days' advance written notice of
the proposed assignment, and (iv) the assignee party must unconditionally assume
in writing, and agree to be bound by, the right, duties and obligations of the
assignor under this Agreement.
14.12 RELATIONSHIP OF THE PARTIES. Notwithstanding anything to the contrary in
this Agreement, under no circumstances will either party be deemed to be in any
relationship with the other party carrying with it fiduciary or trust
responsibilities. The parties do not intend for this Agreement or the
relationship established thereby to be considered anything other than one
between independent contractors, and shall not be construed as the formation of
a joint venture or partnership between the parties for any purpose. Each party
has the sole right to supervise, manage, contract, direct, procure, perform or
cause to be performed the day to day work to be performed by its employees under
this Agreement unless otherwise expressly provided herein or agreed to by the
parties in writing. Each party will conduct its business at its own initiative,
responsibility, and expense. Individuals employed by each party are not
employees of the other(s), and the employing party assumes full responsibility
for the acts and omissions of its own employees acting in the course and scope
of employment. Each party has and retains the right to exercise full control of
and supervision over employment, compensation, and discharge of its employees,
including compliance with Social Security, withholding, Workers' Compensation,
unemployment, payroll taxes, and all other taxes and regulations governing such
matters.
14.13 COUNTERPARTS. This Agreement may be signed in counterparts with the same
effect as if the signature on each counterpart were upon the same instrument.
14.14 MEMORANDUM OF UNDERSTANDING. The parties stipulate and agree that a
Memorandum describing the existence of this Agreement with respect to each
Property subject to this Agreement (attached hereto as Exhibit B) will be
recorded with the Title
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for such Property and all liens thereto, and the party requesting the recording
shall pay all costs associated with such recording. Upon termination or
expiration of this Agreement, I3S will execute and deliver to ARCHSTONE such
documents (as prepared by ARCHSTONE), in a form appropriate for recording in the
real estate records of the county where the Property is located, as are
necessary to effect a release of this Agreement and the access rights granted
herein. In the event that I3S fails, upon ARCHSTONE's written request, promptly
to execute and deliver such documents, then this Agreement shall be deemed to
have effected such release.
Concurrently with the execution of this Agreement, ARCHSTONE and I3S
shall execute and acknowledge a Quitclaim Deed in the form of Exhibit F attached
hereto (the "Quit Claim Deed"). Upon termination or expiration of this
Agreement, and no sooner, ARCHSTONE may, but only in good faith and concurrently
with giving written notice to I3S, (1) file the executed Quit Claim Deed in the
appropriate recorder's office, or (2) file any other document in such recorder's
office, which states, among other things, that this Agreement is terminated and
the easement and rights of access, and any other interests in the Property,
granted to I3S, are terminated.
14.15 SUBORDINATION. This Agreement is subject and subordinate to all leases,
mortgages, and/or deed of trust which may now or hereafter affect the Property,
to all renewals, modifications, consolidations, replacements and extensions
thereof. This clause shall be selfoperative and no further instrument or
subordination shall be required by any mortgage, trustee, lessor or lessee. In
confirmation of such subordination, I3S shall execute promptly any certificate
that ARCHSTONE may request. Notwithstanding the foregoing, the party secured by
any deed of trust shall have the right to recognize this Agreement. In the event
of any foreclosure sale under such deed of trust, this Agreement shall continue
in full force and effect at the option of the party secured by such deed of
trust or the purchaser under any such foreclosure sale. I3S covenants that it
will, at the written request of the party secured by any such deed of trust,
execute, acknowledge and deliver any instrument that has for its purpose and
effect the subordination to said deed of trust of the lien of this Agreement.
14.16 MULTIPLE PROPERTIES. The parties agree that multiple Properties may become
subject to this Agreement on a per MDU Property Agreement basis. Any default or
termination (whether voluntary or involuntary) by any party with respect to a
particular Property shall operate as a default or termination only with respect
to the parties' responsibilities and obligations as they relate to the specific
Property or Properties, as the case may be. Unless otherwise agreed to by the
parties with respect to the particular default, a default shall be construed,
where possible, to exclude unaffected Properties. In the event that at ten
percent (10%) or more of the Properties during any six (6) month period there
are defaults that materially adversely affect HSDS and that remain uncured after
the applicable cure period for such defaults, ARCHSTONE has the right to
terminate this Agreement for any or all Properties.
14.17 LIMITATION ON RECOURSE. Any obligation or liability whatsoever of either
ARCHSTONE or I3S which may arise at any time under this Agreement or any
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obligation or liability which may be incurred by either of them pursuant to any
other instrument, transaction, or undertaking contemplated hereby shall not be
personally binding upon, nor shall resort for the enforcement thereof be had to
the property of, ARCHSTONE's or I3S's trustees, directors, shareholders,
officers, employees or agents, regardless of whether such obligation or
liability is in the nature of contract, tort or otherwise.
14.18 LIMITATION OF REMEDIES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, NEITHER I3S NOR ARCHSTONE SHALL BE LIABLE FOR ANY REASON FOR
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO LOST PROFITS OF ANY NATURE WHATSOEVER.
14.19 CERTAIN PROPRIETARY RIGHTS. All trade names, trademarks and service marks
(and photographs or other likenesses of the Property) owned or employed by
either party or any subsidiary or affiliate of either party, used or employed in
either party's business operation, shall remain the sole and exclusive property
of such party, or such subsidiary or affiliate, and such trade names, trademarks
and service marks and such photographs or other likenesses shall not be used by
the one party without the prior written consent of the other party (subject to
ARCHSTONE's rights to perform its obligations hereunder). Each party shall
immediately discontinue any use of such marks and names upon termination hereof.
14.20 TIME OF THE ESSENCE. Time is of the essence for this Agreement.
14.21 SURVIVAL. The second sentence of Section 6.3(a), Section 6.5, and Articles
10, 11 and 14 will survive the termination or expiration of this Agreement. In
addition, (a) after the date of termination, I3S shall pay ARCHSTONE any fees
that became due ARCHSTONE through the date of termination, and (b) the audit
right set forth herein shall survive termination for a period of one (1) year
after termination.
14.22 OTHER SERVICES.
(a) I3S shall not offer any services to the Property or Properties other
than HSDS.
(b) I3S shall cause the HSDS to remain competitive with comparable high
speed data services of other providers of such services to the extent such other
high speed data services are generally provided in the metropolitan area in
which the Property is located.
(c) Subject to I3S's marketing exclusivity set forth in Article 3 above,
I3S agrees that ARCHSTONE cannot preclude residents from procuring individual
communications services where a resident may obtain those services through
equipment or systems that do not require permanent installation to the Property.
I3S shall permit
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other service providers to use the Equipment to the extent required by law, at
no interconnection charge to ARCHSTONE or residents.
14.23 SUBCONTRACTORS. I3S shall remove any of its subcontractor(s) performing
services on the Property at the reasonable request of ARCHSTONE. Any
subcontractors engaged by I3S must agree in writing to be bound by the terms of
this Agreement.
14.24 CERTAIN TAX MATTERS. If ARCHSTONE, in its sole discretion, based on a
ruling by the United States Internal Revenue Service (the "IRS") or otherwise,
determines that this Agreement can be reformed in a way that avoids an adverse
effect on ARCHSTONE of receiving any Compensation under any section of the
Internal Revenue Code of 1986, as amended (the "Code") without adversely
affecting the economic benefits of this Agreement to I3S, I3S shall agree to so
reform this Agreement and shall execute and deliver any amendments or other
documents reasonably requested by ARCHSTONE to effect such reformation.
14.25 LIENS. I3S will promptly satisfy any liens placed or filed for any work
performed or materials used in the provision of services under this Agreement.
ARCHSTONE may satisfy any of those liens that are not promptly satisfied by I3S.
I3S will reimburse ARCHSTONE all of ARCHSTONE's costs and expenses incurred in
satisfying those liens and releasing them of record.
14.26 NO THIRD PARTY BENEFICIARIES. The parties do not intend to create, and
this Agreement does not create, any rights in any entities or individuals who
are not parties to this Agreement.
14.27 SEVERABILITY. In the event that any part of this Agreement shall be held
to be indefinite, invalid or otherwise unenforceable, the entire Agreement shall
not fail on account thereof, and the balance of the Agreement shall continue in
full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
I3S, INC., A TEXAS CORPORATION [STAMP]
BY: /s/ J.R. PRICE
-------------------------------
NAME: J.R. Price
-----------------------------
TITLE: Chairman/CEO
----------------------------
ARCHSTONE COMMUNITIES TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST
BY: /s/ XXXXXXX X. XXXXXX
-------------------------------
NAME: Xxxxxxx X. Xxxxxx
-----------------------------
TITLE: Chief Operating Officer
----------------------------
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LIST OF EXHIBITS
EXHIBIT A: Sample MDU Property Agreement
EXHIBIT B: Sample Memorandum of Existence of High Speed Data Services
Access and Right of Entry Agreement
EXHIBIT C: [intentionally omitted]
EXHIBIT D: Description of High Speed Data Services Provided by I3S
EXHIBIT E: Service Level Agreement
EXHIBIT F: Sample Quit Claim Deed
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EXHIBIT A
SAMPLE MDU PROPERTY AGREEMENT
THIS MDU PROPERTY AGREEMENT (THE "MDU AGREEMENT") IS ENTERED INTO BY
AND BETWEEN I3S, INC., A TEXAS CORPORATION WITH A PLACE OF BUSINESS AT 0000
XXXXXXXXX XXXXX, XXXXXX, XXXXX 00000 ("I3S") AND ARCHSTONE COMMUNITIES TRUST, A
MARYLAND REAL ESTATE INVESTMENT TRUST WITH A PLACE OF BUSINESS AT 0000 XXXXX
XXXXXXX XXXXXX, XXXXX 000, XXXXXXXXX, XXXXXXXX 00000 ("ARCHSTONE"), THIS _____
DAY OF________________, _______.
RECITALS
WHEREAS, ARCHSTONE owns the _____________________located at
__________________________ (the "Property"). A legal description of the Property
is attached hereto as Attachment 1.
AND WHEREAS, I3S owns and operates a high speed data network capable of
servicing the Property as set forth herein.
AND WHEREAS, ARCHSTONE and I3S desire that I3S provide HSDS to the
Property, on the terms and conditions provided herein.
AND WHEREAS, ARCHSTONE and I3S are parties to a Master High Speed Data
Services Access and Right of Entry Agreement dated ________________, 19__ as
amended (the "Master Agreement").
NOW, THEREFORE, in consideration of the mutual promises and conditions herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, ARCHSTONE and I3S agree as follows:
AGREEMENTS
(1) STANDARD TERMS. The Standard Terms, as that term is used in the Master
Agreement, are incorporated into this MDU Agreement by reference. If ARCHSTONE
and I3S have or at any time do amend the Master Agreement to change any of the
Standard Terms, the Standard Terms as so amended shall be deemed incorporated
into this MDU Agreement. If any of the Standard Terms conflict with any terms
set forth in this MDU Agreement, the terms set forth in this MDU Agreement shall
prevail. The defined terms that are used herein shall have the meaning assigned
them in the Master Agreement, unless otherwise expressly defined herein.
(2) PROPERTY IDENTIFICATION INFORMATION.
(a) Address and Name of the Property:
------------------
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------------------
Zip Code
---------, -------
(b) Full Legal Description of the Property:
See Attachment 1.
(c) Contact Person/Leasing Agent:
------------------------------
Telephone No:
---------------------------------------
(d) CATV/MATV Site Survey Information:
(e) Other Information:
Number of Units:
-----------------------
Number of Buildings:
-------------------
Current Occupancy:
---------------------
Existing Property (including age) or New Build:
-----------------
PC Ownership Survey (if any):
------------------------
Existing/Proposed Local Loop Trunking:
--------------------------
I3S Node Type: POP: ATM:
-------------------------- ---------
Cable television or telecommunications provider interconnection
agreement is executed and acceptable to I3S and ARCHSTONE:
Yes: No:
------- -------
(3) OTHER PROPERTY-SPECIFIC PROVISIONS:
(a) Maintenance of Distribution Plant
[specify]
(b) Access to the Property
No rights or conditions in addition to those specified in the Master
Agreement are granted.
(c) Term
This MDU Agreement shall be effective from the Service Start Dates (as
hereinafter defined) hereof and shall continue for a period of seven (7) years,
unless earlier terminated in accordance with its provisions.
(d) Service Start Date.
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I3S shall provide HSDS to the Property no later than ______________ ,
________________________ .
(e) Contingencies.
[The parties may choose to insert contingencies here if they want to
enter into a specific MDU Agreement, but need to make it contingent on certain
events, such as finalization of interconnection rights, installation of an I3S
POP, etc.]
(f) Effect of Termination/Expiration.
Notwithstanding anything to the contrary herein, the benefits,
obligations and grants of rights in this MDU Agreement given to I3S shall
terminate on the date of termination of this MDU Agreement, for whatever reason.
(g) Interconnection fees and charges.
I3S shall be solely responsible for all interconnection fees and
charges.
(h) Interconnection Rights/Responsibilities
[specify]
(4) REVENUE SHARE.
The following revenue share shall be applicable: line ___ (specify one
of: (I), (II), (III), (IV), (V), (VI), (VII) or (VIII)) of the tables in Section
8.1 of the Agreement.
(5) COUNTERPARTS.
This MDU Property Agreement may be signed in counterparts with the same
effect as if the signature on each counterpart were upon the same instrument.
(6) MISCELLANEOUS.
This MDU Agreement, including the Standard Terms and the Exhibits
hereto constitutes the entire agreement of the parties relating to the subject
matter hereof and supersedes and replaces all prior agreements between them in
this regard, whether written or verbal. This MDU Agreement may not be amended or
modified except in writing signed by the parties hereto or as provided in
Section (1) above. This MDU Agreement shall be governed by and interpreted in
accordance with the laws of the State in which the Property is located,
excluding that State's conflict of laws rules.
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(7) LIST OF ATTACHMENTS.
(a) Attachment 1 (legal description of the Property);
(b) Standard Terms (i.e., the Master High Speed Data Services Access
and Right of Entry Agreement by and between Archstone and I3S
dated___________________);
(c) Executed Memorandum of Existence of High Speed Data Services
Access and Right of Entry Agreement; and
(d) Executed Quitclaim Deed.
(8) SURVIVAL.
In addition to as specified in the Master Agreement, Sections ____ and
______ of this MDU Agreement shall survive the termination or expiration of this
MDU Agreement.
IN WITNESS WHEREOF, the-parties have executed this MDU Agreement by their
duly-authorized representatives.
I3S, INC., A TEXAS CORPORATION
BY:
---------------------------------
NAME:
-------------------------------
TITLE:
------------------------------
ARCHSTONE COMMUNITIES TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST
BY:
---------------------------------
NAME:
-------------------------------
TITLE:
------------------------------
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EXHIBIT B
SAMPLE MEMORANDUM OF EXISTENCE OF HIGH SPEED DATA
SERVICES ACCESS AND RIGHT OF ENTRY AGREEMENT
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxxxx Xxxxxxxx
President
I3S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
MEMORANDUM OF EXISTENCE OF
MASTER HIGH SPEED DATA SERVICES
ACCESS AND RIGHT OF ENTRY AGREEMENT
A license has been granted by ARCHSTONE COMMUNITIES TRUST, on behalf of
itself ("Grantor") to I3S, Inc., a Texas corporation ("Grantee"), under a
certain Master High Speed Data Services Access and Right of Entry Agreement
effective _______________________, 1998 by and between Grantor and Grantee (the
"Agreement"). The license permits Grantee, among other things, to provide High
Speed Data Services, as described in the Agreement, and to engage in any other
act or activity contemplated by the Agreement at the Property described herein.
This Agreement runs with the land and automatically terminates upon the earlier
to occur of (i) ___________________ 200__, or (ii) any termination of the
Agreement. Such earlier termination may be evidenced by the recordation of an
Affidavit executed by Grantor stating that such termination has occurred, or as
otherwise permitted in the Agreement. As used in the Agreement, the term
"Property" means that the real property consisting of approximately ______
apartment units located in the city of ________, County of _______, State
of ______, at the address commonly known as [Name and Address of Apartment
Community]. Whose legal description is as follows:
In the event of any conflict between the terms and conditions of this
Memorandum of Existence of Master High Speed Data Services Access and Right of
Entry Agreement and the terms and conditions of the Agreement, the Agreement
shall control. The parties agree that the sole purpose of this Memorandum of
Existence of Master High Speed Data Services Access and Right of Entry Agreement
is to provide notice of the Agreement.
Executed this ______ day of ,199__.
GRANTOR: ARCHSTONE COMMUNITIES TRUST,
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a Maryland real estate investment trust
BY:
---------------------------------
NAME:
-------------------------------
TITLE:
------------------------------
STATE OF
--------------
COUNTY OF
--------------
On ____________, 199, before me, _______________________,personally
appeared __________________________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies) and that by
his/her/their signature(s) on the instrument and the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature: (seal)
------------------------
GRANTEE: I3S, Inc.
a Texas corporation
BY:
---------------------------------
NAME:
-------------------------------
TITLE:
------------------------------
STATE OF
--------------
COUNTY OF
--------------
On ___________,199, before me, ____________________,personally appeared
_________________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies) and that by his/her/their signature(s)
on the instrument and the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
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WITNESS my hand and official seal.
Signature: (seal)
-----------------------
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EXHIBIT C
[INTENTIONALLY OMITTED]
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EXHIBIT D
DESCRIPTION OF HIGH SPEED DATA SERVICES PROVIDED BY I3S
The I3S HSDS is a data network service that provide transport and peering
functions of Internet Protocol (IP) data traffic, including, without limitation:
o Broadband access networks on MDU properties composed of one or more
broadband access technologies including but not limited to coaxial or
hybrid fiber coaxial (HFC) cable television distribution systems,
twisted-pair copper-wire-based telephone distribution systems, twisted-pair
copper-wire-based local area network distribution systems and
fiber-optic-based local area network distribution systems;
o Local loop networks that connects the broadband access networks on each MDU
property to the I3S regional points of presence (POPs) in each metropolitan
area served by I3S;
o Regional point of presence networks that connects the POPs to the x0x.xxx
national IP backbone;
o A national IP backbone consisting of broadband communication facilities for
the transport of data among I3S POPs and public and private Exchange Points
where data and Internet routing information will be exchanged with other
networks peered with x0x.xxx as part of the global Internet;
o A national Network Operations Center (NOC).
o Certain computer services that include:
Membership system for user authentication and authorities;
Personalization services for customizing content to user preferences;
Internet mail (SMTP and POP3);
Internet newsgroups (NNTP) composed of approximately 25,000 or more
newsgroups;
Internet World Wide Web (HTTP) services;
Internet chat (IRC and MIRC);
Conferencing and collaboration bridges;
Streaming multimedia services such as Microsoft's NetShow
and Progressive Network's RealMedia;
o A branded suite of client software that include:
Web browse;
Mail reader;
News reader;
Chat client;
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Conferencing and collaboration client;
Appropriate plugins and ActiveX controls.
o Certain customer service functions that include:
A National Customer Care Center;
A telephone and network-based customer help desk;
A Trouble Reporting facility;
A customer billing system.
o Certain multimedia rich content that showcases the capabilities of HSDS
that includes:
o Original content created by I3S;
o Aggregated content created by others but licensed by I3S and improved for
uses in a HSDS system;
o Aggregated content created by others but licensed by I3S and used
unimproved.
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Requirements
Related to Broadband Access Networks
Utilizing Multiple Broadband Access Technologies (mBAT)
ARCHSTONE'S RESPONSIBILITIES
Provide, or cause to be provided, as mutually agreed between the parties,
suitable physical-layer coaxial-cable, twisted-pair copper-wire, or
fiber-optic distribution plant on each ARCHSTONE property that will meet or
exceed I3S specifications;
I3S Responsibilities:
Provide technical specifications for suitable physical-layer distribution
plants for I3S's HSDS;
Inspect and accept or reject, according to the mutually agreed
specifications, physical-layer distribution plants proposed by ARCHSTONE as
suitable for I3S's HSDS;
Maintain, or cause to be maintained, physical layer distribution plants
built and owned by ARCHSTONE that are used for I3S's HSDS;
Install, maintain and operate data delivery equipment for each property
offering HSDS. Installation and maintenance will meet or exceed
manufacturer's specifications and the requirements set forth in the
Agreement. Through itself or its agents, ARCHSTONE will assist I3S with
preinstallation engineering planning and site survey questionnaires;
Integrate all data delivery equipment for each property into the I3S
Element Management System portion of its Network Management Platform using
SNMP and/or RMON. I3S will monitor all data delivery equipment twenty-four
hours per day, seven day per week (24x7);
Assume the cost of the acquisition of all data communication equipment
necessary to provide HSDS and to provide termination and delivery of HSDS
between the Subscriber and the I3S POP in each Market;
Without limitation on the foregoing or the attached SLA, both parties
acknowledge that the end to end performance of HSDS is probabilistic and
subject to anomalous short lived usage patterns by Subscribers which will
affect both the utilization of the local loop circuits and the X0x.xxx
national backbone from time to time;
Configure and operate all data delivery equipment to efficiently integrate
with the rest of the X0x.xxx network;
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Subscribers will not be required by I3S to install or operate a custom web
browser; and
Subject to all applicable laws and regulations, Subscribers will have
voluntary access to all public Internet sites and services.
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Additional Requirements
Related to Broadband Access Networks
Utilizing Cable Television Distribution Systems
ARCHSTONE's Responsibilities (These responsibilities apply only to the extent
HSDS is to be provided by I3S by means of an interconnection to a third party's
CATV distribution plant on an applicable property. Archstone shall use
commercially reasonable efforts to perform these responsibilities.):
Cause CATV infrastructure to comply with FCC requirements;
Upgrade, or cause to be upgraded, property CATV infrastructure to provide
bidirectional cable delivery to all subscribers;
Cause the upgraded bidirectional CATV infrastructure to exceed the minimal
operational requirements of the I3S cable modem system, which are:
--------------------------------------------------------------------------------
MINIMUM CABLE TELEVISION NETWORK VALUE
REQUIREMENTS FOR x0x.xxx HSDS
--------------------------------------------------------------------------------
Amplitude variations inband
Forward channel 5 dB total
Return channel 5 dB total
--------------------------------------------------------------------------------
Group delay variation inband
Forward channel 60 nsec/MHz, 240 nsec total
Return channel 200 nsec/MHz, 800 nsec total
--------------------------------------------------------------------------------
Maximum tap to tap variation 27 dB
--------------------------------------------------------------------------------
Dynamic range on receiver 15 dBmV to +15 dBmV
--------------------------------------------------------------------------------
Maximum return/upstream loss 49 dB
--------------------------------------------------------------------------------
Minimum carrier to noise 22 dB
--------------------------------------------------------------------------------
Minimum carrier to interference 25 dB
--------------------------------------------------------------------------------
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Provide, or cause to be provided, two (2) six MHz video channels within the
CATV infrastructure bandwidth on Internet served properties; one (1) in the
spectrum from 54 MHz to 750 MHz and one (1) in the 5MHz to 50 MHz spectrum;
and reserve another two (2) additional video channels, in the same
spectrums for future expansion as Subscriber penetration on the property
increases; and
Designate, or cause to be designated, an engineering point of contact for
each cable company operating the cable television distribution system for
I3S Network Operations Center (NOC) to report problems or failures related
to the cable television distribution system twenty-four hours per day,
seven days per week (24x7).
I3S Responsibilities:
Use the cable modem system, and certain network management features that it
provides, to monitor the availability and quality of ARCHSTONE's property
network (its CATV plant) and the Equipment;
Report to ARCHSTONE's designated engineering point of contact any problems
observed by the I3S NOC in the course of operating the cable modem system
network management features; and
Report to ARCHSTONE's designated engineering point of contact any problems
determined by Subscriber contact in the course of operating the Subscriber
Help Desk.
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LOCAL LOOP CHARACTERISTICS
ARCHSTONE'S RESPONSIBILITIES
Provide, or cause to be provided, proper space, security and power for
Local Loop termination and transmission equipment necessary to provide
Internet delivery and other data services on the property.
I3S RESPONSIBILITIES:
Install, maintain and operate local loop termination and transmission
equipment necessary for each property offering HSDS. Installation and
maintenance will meet or exceed manufacturer's specifications and the
requirements set forth in the Agreement. Through itself or its agents,
ARCHSTONE will assist I3S with preinstallation engineering planning and
site survey questionnaires;
Integrate all local loop termination and transmission equipment for each
property into the I3S Element Management System portion of its Network
Management Platform using SNMP and/or RMON. I3S will monitor all local loop
termination and transmission equipment twenty-four hours per day, seven day
per week (24x7);
Assume the cost of the acquisition of all local loop termination and
transmission equipment necessary to provide HSDS and to provide termination
and delivery of HSDS between the Property and the I3S POP in each Market;
Order, provision, install and maintain local loop communications links
between each property and I3S POP in each Market with a bandwidth of not
less than 1.544 mb/s (T1). In addition, as the number of Subscribers on
each property increases, scale the local loop bandwidth so that each
simultaneously active user averages approximately 1 mb/s ninety eight
percent (98%) of the time;
Without limitation on the foregoing or the attached SLA, both parties
acknowledge that the end to end performance of HSDS is probabilistic and
subject to anomalous short lived usage patterns by Subscribers which will
affect both the utilization of the local loop circuits and the X0x.xxx
national backbone from time to time; and
Configure and operate all local loop termination and transmission equipment
to efficiently integrate with the rest of the X0x.xxx network.
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POINT OF PRESENCE
FEATURES AND ESTABLISHMENT REQUIREMENTS
I3S RESPONSIBILITIES:
Acquire, install and maintain data communication equipment at each POP for
the termination and transmission of HSDS from properties to the x0x.xxx
national network backbone;
I3S will determine the location of its main presence in each Market to be
consistent with its own operational practices (which currently include
colocating within its carrier's central offices in each Market);
Acquire, install, maintain and operate Internet peering relationships at
public and private Internet Exchange Points (EP) with other Tier 1 Internet
backbone networks throughout the United States;
Acquire, install, maintain and operate computers and software to provide
Network Management and provide Internet services for Subscribers. To
provide these functions, I3S will employ a combination of locally
distributed to the POP servers as well as globally centralized servers
consistent with its overall network design and operational practices; and
Order, provision, install, maintain and operate data transport/carriage
pathways from each POP, EP and/or NOC with a bandwidth not less than 45
mb/s (DS3) interconnection. In addition, as the number of Subscribers on
Market increases, scale the bandwidth so that each simultaneously active
user averages approximately 1 mb/s ninety eight percent (98%) of the time.
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I3S INFORMATION OPERATIONS
CONTENT PRODUCTION; ARCHSTONE/BROADBAND NOW!(TM) LAUNCH PAGE
I3S operates, and shall operate for the term of this Agreement, an information
content operation for creating original content or aggregating content created
by others and licensed to I3S for inclusion in the I3S body of content. This
material will consist of but not limited to informational, educational,
recreational, entertainment and business content. This body of content will be
offered to Subscribers of the HSDS product.
Without limitation on paragraph 1 above, I3S will create content as creative
and/or business opportunities present themselves. The I3S content will be
updated as I3S, using its editorial judgment, sees fit, but in no event less
frequently than good industry practice.
Certain portions of this content will be offered to all HSDS Subscribers free of
charge (Basic Content). Other portions of the content may be offered to HSDS
Subscribers on an optional fee basis for unlimited access to a fixed package of
content (Premium Content). Another certain portion of the content may be offered
to HSDS Subscribers on an optional fee basis for access to a specific
time-limited event (Pay-Per-View Content).
In addition to the fees charged customers for content, I3S may solicit and sell
advertising and other revenue-producing transaction opportunities that will
appear on certain portions of the content.
All fees for premium content, pay-per-view content, advertising and
revenue-producing transactions shall be determined solely by I3S.
The potential revenue set forth here for content shall not be subject to other
provisions in the Agreement (including attachments) regarding revenue sharing,
fees and pricing.
I3S, or its content partners, will design, produce and update, as necessary, all
content and be responsible for all such costs.
I3S shall design, produce and update, as necessary, a customized launch page
(the "Launch Page") for HSDS Subscribers, which can be used to market and
promote the HSDS, and, on I3S's standard time and materials rates (or as
otherwise agreed by the parties), Archstone's other services. I3S shall from
time to time update the Launch Page throughout the Term in accordance with the
terms of this Agreement. I3S may offer Archstone Launch Pages that are
personalized (by property) and that, in addition to the features described
above, may promote the I3S content offerings and provide direct hyperlinks to
the I3S content.
The Launch Page will include banners for and hyperlinks to Archstone's corporate
web sites as directed by Archstone. I3S shall establish a default introductory
Launch Page that shall be co-branded with Archstone and Broadband Now! names,
marks and logos. The Launch Page shall meet the technical and functional
requirements specified by I3S. The design, lay-out, functionality and appearance
of and all aspects of the co-branding on
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the Launch Page (including, but not limited to, the use of Archstone's names,
marks and logos) shall be mutually agreed to by the parties. Archstone shall at
all times have approval rights over the use and presentation of Archstone's
names, marks and logos.
In no event, at any time during the term of this Agreement, shall I3S knowingly
permit or use any (i) content in the ARCHSTONE/Broadband Now! web site or within
its information content operations which contains obscene material, sexually
explicit adult programming, or indecent material as defined in Section
47 C.F.R. 76.701(g); (ii) material in the ARCHSTONE Broadband Now! web site
soliciting or promoting unlawful conduct; or (iii) programming in the
ARCHSTONE/Broadband Now! web site that may or could have been subject to the
Telecommunications Act of 1996, Section 641, relating to the scrambling of
sexually-explicit adult video service programming.
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CUSTOMER CARE CENTER FEATURES
I3S RESPONSIBILITIES
Provide a toll free number for:
Inquiries about the HSDS supplied by I3S
Ordering and scheduling installation of HSDS products
Billing inquiries
Initial technical support inquires
Technical support for all HSDS issues
Technical support for Subscriber CPE issues related to HSDS
Answer toll free line consistent with the ARCHSTONE/I3S service cobrand.
Operate 24x7 customer care call center operation.
Maintain sufficient customer service staff and call center capacity to
connect to Subscribers within 1 minutes of call entering processing
operation.
Develop and publish escalation procedure for Customer Service
Representatives related to network issues.
Resolve billing issues within 24 hours 95% of time, on a monthly basis.
Resolve property network issues within 24 hours 95% of time, on a monthly
basis.
Resolve technical issues within 24 hours if a phone call is required 95% of
time, on a monthly basis.
Resolve technical issues within 48 hours if a truck roll is required 95% of
time, on a monthly basis.
Develop and publish escalation procedures for ARCHSTONE to contact
regarding technical issues related to the network.
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SUBSCRIBERS' HARDWARE AND SOFTWARE INSTALLATION
SPECIFICATIONS AND INSTALLATION REQUIREMENTS
I3S SHALL:
Verify that potential Subscribers' personal computers meet the I3S
established minimum requirements for the supplied software and the HSDS
service;
Make an appointment with each new Subscriber to meet the installation
personnel for the installation of the HSDS in the Subscriber's unit;
Collect the Subscriber information required to install, provision and
complete the set up of Subscribers' HSDS service. I3S will develop an
appropriate paper form-based system or automated system to facilitate this
process;
Provide, or cause to be provided, coaxial connection to the Subscriber's
specified location;
Verify, or cause to be verified, that the coaxial connection completed to
the Subscriber's specified location exceeds the minimum operational
requirements for the I3S supplied CPE and the I3S HSDS service;
Verify, or cause to be verified, and if necessary, promptly (but not more
than a reasonable time frame set by ARCHSTONE) perform repairs such that
all access network services function properly (and to not less than the
standards pre-existing I3S HSDS operations) after I3S completes
installation and throughout the provision of HSDS;
Maintain a sufficient inventory of CPE for each Market and develop
procedures to restock CPE as used in Subscriber installations;
Issue and install the required CPE for the service requested by the
Subscriber;
Meet the Subscriber at the Subscribers location at the scheduled time
within the tolerances and limits as defined in the I3S Service Level
Agreement;
Install the required cable modems(s) and have HSDS operational in the
Subscriber's unit within the number of days of a Subscriber's request set
forth in Section 6.4 of the Agreement;
Install any required network interface cards (NICs), TCP/IP protocols and
Internet software suite in the Subscriber's personal computer;
Offer the Subscriber a brief introduction to the HSDS to be performed at
the time of installation. This introduction will include how to launch the
service, how to find the training material on the x0x.xxx Web site, how to
find the Subscriber
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Support Section on the x0x.xxx Web site and how to call for technical
assistance or support;
Obtain signatures required to verify that each Subscriber installation was
executed properly and to the satisfaction of the Subscriber; and
Provide ARCHSTONE with a copy of the installation transaction documentation
verifying that the completed installation is ready for billing. This
documentation will include the CPE delivery receipt, the ISP contract and
the completed work order.
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HSDS INITIAL SUBSCRIBER RATES, SERVICE LEVELS
AND INSTALLATION AND EQUIPMENT CHARGES
I. RECURRING INTERNET ACCESS REVENUE
The following table outlines the various levels of service available to Personal
Service subscribers:
---------------------------------------------------------------------------------------------------
Personal Service Price per Downstream Upstream % of Time Subscriber is
Level Month Transmission Transmission Guaranteed Downstream
Speed Speed and Upstream Speeds
---------------------------------------------------------------------------------------------------
BBNow!(TM) Lite $29.95 64 Kbps 64 Kbps 98%
---------------------------------------------------------------------------------------------------
BBNow!(TM) Standard $49.95 1.0 Mbps 1.0 Mbps 98%
---------------------------------------------------------------------------------------------------
BBNow!(TM) Max $79.95 1.5 Mbps 1.5 Mbps 98%
---------------------------------------------------------------------------------------------------
The following table outlines the various levels of service available to Home
Office Service subscribers:
---------------------------------------------------------------------------------------------------
Home Office Service Level Price per Minimum Downstream Minimum Upstream
Month Transmission Speed Transmission Speed
---------------------------------------------------------------------------------------------------
Home Office - Level 1 $199 1.5 Mbps 128 Kbps
---------------------------------------------------------------------------------------------------
Home Office - Level 2 $299 1.5 Mbps 512 Kbps
---------------------------------------------------------------------------------------------------
Home Office - Level 3 $499 1.5 Mbps 1.0 Mbps
---------------------------------------------------------------------------------------------------
Home Office - Level 4 $699 1.5 Mbps 1.5 Mbps
---------------------------------------------------------------------------------------------------
Vanity DNS hosting $100.00 per month
II. ONE-TIME CHARGES AND/OR PASS-THROUGH CHARGES
Installation fee $49.95 nonrecurring
Network interface card (NIC) market price (not to exceed $60)
CPE (cable modem, xDSL modem or other
broadband access device) purchase market price
Monthly rental of CPE market price*
*The decision to purchase or rent the CPE necessary for the provision of HSDS
shall be at the sole discretion of each resident subscribing to HSDS.
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EXHIBIT E
SERVICE LEVEL AGREEMENT
This Service Level Agreement is attached and made a part of the Master High
Speed Data Services Access and Right of Entry Agreement by and between I3S, Inc.
and Archstone Communities Trust (the "Agreement").
INTRODUCTION
This Exhibit entitled "Service Level Agreement" ("SLA") sets out operation
specifications and requirements for HSDS provided by I3S for the residents or
customers of applicable Archstone Properties. The SLA shall encompass data
services originating and terminating within the I3S internetwork ("x0x.xxx").
The HSDS provided by I3S shall meet the operations specification and
requirements stated herein, which are generally stated in terms of events or
outcomes, rather than terms of specific hardware, software or procedural
requirements. For the purposes of the SLA, x0x.xxx shall relate to that portion
of the global Internet operated by I3S, originating within end users' customer
premises and terminating within I3S computers or transported and peered at a
public or private Internet Exchange Point.
For the purposes of the SLA, a "Trouble" or "Trouble Report" shall relate to
x0x.xxx or I3S provided services (or resold services) and the Equipment and I3S-
maintained facilities, but shall exclude customer error, defects in Customer
Premises Equipment ("CPE"), defects in customers' computers, defects in property
cable or wiring plants, defects in fiber optic distribution systems, defects in
cable television distribution systems and network problems experienced by
destination networks at or beyond Internet Exchange Points.
The terms and conditions of this SLA do not limit I3S's obligations set forth
elsewhere in the Agreement, but if there is a conflict with respect to service
obligations between this SLA and the Agreement, this SLA shall control.
PERFORMANCE REQUIREMENTS
PERCENT CUSTOMER SERVICE ORDER BEGINNING COMMITMENT DATES TIMELY MET
This parameter is generally indicative of the timely beginning of work on
orders from customers for new service or orders to make changes in their
existing service.
The timely beginning parameter is calculated by dividing the total Customer
Service Orders begun on or before the date and clock hour promised to the
customer that the service order would be started by the total number of
service orders initiated in each calendar month and multiplying by 100.
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I3S shall exhibit greater than 90% Customer Service Order Beginning
Commitment Dates Timely Met per month.
PERCENT CUSTOMER SERVICE ORDER COMPLETION COMMITMENT DATES TIMELY MET
This parameter is generally indicative of the timely completion of work on
orders from customers for new service or orders to make changes in their
existing service and the timely completion of those service orders.
The timely completion parameter is calculated by dividing the total
Customer Service Orders completed on or before the date and clock hour
promised to the customer that the service order would be completed by the
total number of service orders initiated in each calendar month and
multiplying by 100.
I3S shall exhibit greater than 90% Customer Service Order Completion
Commitment Dates Timely Met per month.
PERCENT OF NETWORK AVAILABILITY
This parameter is generally indicative of the availability of the network
to transport and peer customer data at an Internet Exchange Point, or, in
the event that the customer data is to be fulfilled by computers within
x0x.xxx, generally indicative of the availability of to transport data to
the I3S servers and the availability of the servers.
This parameter is calculated by dividing the number of seconds that the
network is available for each customer by the total number of
customer-seconds in each calendar month and multiplying by 100.
Specifically excluded from the Network Availability calculation shall be
regularly scheduled maintenance windows or ad hoc maintenance windows
scheduled and announced 24 hours in advance in the x0x.xxx Customer Support
Web Site.
Specifically excluded from the Network Availability calculation shall be
periods of time where the access distribution plant (operated by Archstone
or its designated third party operator) exceed the operational standards
set by I3S for each type of broadband access technology.
I3S shall exhibit greater than 98% Network Availability per month.
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PERCENT CUSTOMER CALLS ANSWERED WITHIN 45 SECONDS BY I3S PERSONNEL
This parameter is based upon the number of customers calls answered within
15 seconds by a human operator or by an ACD queue greeting during the hours
of operation of the I3S National Customer Care Center and thereafter to be
answered by a human customer representative within 30 seconds. At a
minimum, the I3S National Customer Care Center shall operate from 8:00 a.m.
to 5:00 p.m. Central Time, Monday through Friday exclusive of holidays.
This parameter is calculated by dividing the number of calls answered with
45 seconds by the total number of Customer Care Center calls answered in
each calendar month and multiplying by 100.
I3S shall exhibit greater than 90% of Customer Calls Answered within 45
Seconds per month.
PERCENT OF TROUBLE REPORTS RESOLVED TIMELY
This parameter is related to the number of Trouble Reports resolved within
the following windows:
For Trouble Reports received by I3S at the I3S National Customer Care
Center prior to 2:00 p.m. Central Time, Monday through Friday,
excepting holidays, will be cleared by the end of the next business
day.
For Trouble Reports received by I3S at the I3S National Customer Care
Center after 2:00 p.m. Central Time, Monday through Friday, excepting
holidays, will be cleared by noon of the second business day
thereafter.
This parameter is calculated by dividing the total trouble reports cleared
on or before the date and clock hour promised to the customer the total
number of Trouble Tickets cleared in each calendar month and multiplying by
100.
I3S shall exhibit greater than 90% Trouble Reports Cleared Timely per
month, according to the terms of this section for trouble that can be
resolved by I3S alone.
PERCENT CUSTOMER REPAIR VISIT APPOINTMENTS MET
This parameter is related to the customer commitments made by the I3S
National Customer Care Center for repairs that require a repair visit to
customers' sites or premises.
This parameter is calculated by dividing the total Customer Repair Visits
Appointments met on or before the date and clock hour promised to the
customer
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by the total number of Customer Repair Visit Appointments initiated in each
calendar month and multiplying by 100.
I3S shall exhibit greater than 90% Customer Repair Commitment Met per
month.
PERCENT OF CUSTOMER BILLS PREPARED TIMELY
This parameter is related to the generation of Customer Bills for delivery
to customers by mail, electronic mail or credit card billing.
This parameter is calculated by dividing the number of Customer Bills
generated and sent to customers within twenty (20) business days of the end
of the billing cycle by the total number Customer Bills generated in each
calendar month and multiplying by 100.
I3S shall exhibit greater than 95% Customer Bills Prepared Timely per
month.
PERCENT OF CUSTOMER BILLS PREPARED ACCURATELY
This parameter is related to the accuracy of Customer Bills for delivery to
customers by mail, electronic mail or credit card billing.
This parameter is calculated by dividing the number of Customer Bills
generated that do not require an adjustment due to a billing error caused
I3S by the total number Customer Bills generated in each calendar month and
multiplying by 100.
I3S shall exhibit greater than 95% Customer Bills Prepared Accurately per
month.
REPORTS
I3S shall provide to Archstone reports within twenty (20) business days of
the end of each calendar month, the reports listed below in this section,
each of which may be provided separately or provided on a consolidated
basis:
A report depicting total subscribers, gross new customers and gross
customers terminated separated by product tier and property.
New service orders, Trouble Reports opened and closed or cleared as
appropriate separated by date and property.
Aggregate I3S National Customer Care Center data depicting the distribution
of call waiting time in general and the percent calls answered and calls
abandoned respectively.
Billing summaries describing the date(s) bills were sent to customers, and
the billed revenue disaggregating major categories of service.
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HOLIDAYS
New Years Day
Memorial Day
Memorial Day
Independence Day
Labor Day
Thanksgiving
Day after Thanksgiving
Christmas
Any other national or state holiday recognized by I3S
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EXHIBIT F
QUITCLAIM DEED
When recorded return to:
Archstone Communities Incorporated
Suite 100
0000 Xxxxx Xxxxxxx Xx.
Xxxxxxxxx, XX 00000
ATTENTION: Xxxxxxxx Xxxxxxx
QUIT-CLAIM DEED
FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, the undersigned hereby quit-claims to Archstone Communities Trust,
a real estate investment trust, without representation or warranty, its entire
right, title and interest in the property described on Attachment 1 attached
hereto and incorporated by this reference (the "Property").
By this Quit-Claim Deed, the undersigned further agrees (i) the Master
High Speed Data Services Access and Right of Entry Agreement (the "Property
Agreement"), dated as of ________________________ 19__,between the undersigned
and Archstone Communities Trust, as evidenced by the Memorandum of Easement
recorded on _________________. 199__,as Instrument No. _________________, in
__________, __________ has expired or been terminated, and (ii) the easement and
rights of access, and any other interests in the Property granted to the
undersigned therein have expired or been terminated.
DATED this day of ,199__
I3S, INC.,
a Texas corporation
----------------------------------
its Authorized Representative
STATE OF )
--------------
)ss.
COUNTY OF )
--------------
On this, the ___ day of ______, 199__ ,before me, the undersigned
Notary Public, personally appeared ________________,known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in such capacity on behalf of the corporation for the
purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
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Notary Public
My Commission Expires:
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51
