Exhibit No. 10.5 Telecommunications Services Agreement between Registrant and
Xxxxx X. XxXxxx U/A Trust Dated 0/0/00 (Xxxxx Xx. Xxxxx).
FIRSTLINK COMMUNICATIONS, INC.
and
XXXXX X. XXXXXX U/A TRUST DATED 1/4/72
VISTA ST. CLAIR
TELECOMMUNICATIONS SERVICES AGREEMENT
This agreement ("Agreement") is entered into as of July 11, 1996, by and
between FirstLink Communications, Inc., an Oregon corporation ("FirstLink"), and
Xxxxxxx X. XxXxxx, Trustee of the Xxxxx X. XxXxxx U/A Trust dated 1/4/72
("Owner").
1. PROPERTY. Owner owns the multi-family residential complex commonly
known as Vista St. Clair, located at 0000 XX Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx,
which consists of 254 living units (the "Property").
2. GRANT OF RIGHTS
(a) Owner grants FirstLink the sole and exclusive right, except as
provided in the last sentence of clause (b) below, to install, own, operate,
replace and maintain the System on, off and through the Property and the sole
and exclusive right to provide Telecommunication Services to residents of the
Property. "System" shall mean all electronic devices, cable, wire, hardware,
software and other material used to transmit and receive two-way voice and data
communications, telephone service ("Telephone Service"), multi-channel TV, video
on demand, audio on demand, voice mail, data services and other means of two-way
communication distribution, whether now existing or hereafter developed
(collectively "Telecommunication Services") as between the Property and the
local and/or long distance telephone networks or other outside distributor of
these and other services.
It is anticipated that Telephone Services will include local and long distance
calling, multi-channel television, voice mail and calling features such as
conference calling, call waiting and call forwarding. Additional services will
be added from time to time, as available and as warranted by tenant demand.
Such additional Telecommunication Services may include: video conferencing,
on-line computer services, electronic mail, wireless services (such as cellular
telephone) and other types of services. There can be no assurance that any or
all of the above additional services will be made available. Their availability
is dependent upon many variables
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and factors beyond FirstLink's control. Such factors include, but are not
limited to, technical feasibility, economic, regulatory and market
considerations.
(b) In consideration of the substantial investment made by FirstLink in
the System, Owner agrees that it will not grant access to the Property to any
person or entity, other than FirstLink, for the purpose of operating or
maintaining the System, or permit the installation, maintenance or operation at
the Property of any other equipment, wire, cable, or material by any person or
entity that similarly provides Telecommunication Services. This exclusivity
provision shall not deny the local telephone company the right to serve
residents of the Property.
3. SYSTEM EXPENSES. Other than as set forth herein, FirstLink shall bear
all expenses to install, operate, maintain and repair the System. Owner shall,
at Owners expense and cost, provide electrical power to the System and shall pay
for any damage to the System caused by the negligence or misconduct of Owner or
Owner's agent(s) or employees. For the purposes of this Agreement, "System Site"
shall mean an adequate and secure space to house FirstLink's System equipment,
which shall consist of a rent-free, locked room meeting FirstLink's
specifications. The System Site shall be designated as provided in section
10(a). Owner hereby grants FirstLink and its authorized personnel access to the
Property for any reasonable purposes related to this Agreement including the
installation of cabling or microwave equipment to interconnect buildings and to
connect to other telecommunication systems and grants specific rights to
FirstLink to use both existing coaxial and twisted pair cabling in the Property.
FirstLink agrees to notify the Facility Manager when either FirstLink or its
authorized personnel are on-site. FirstLink will not have access to any rental
units without the tenant's consent.
4. TERM. The term of this Agreement shall be * years from the date
hereof. The original term will automatically be renewed for up to two (2)
additional periods of * years each unless either party otherwise notifies the
other in writing at least 180 days prior to the end of the original term or
any renewal term.
5. INSTALLATION. FirstLink shall commence installation of the System
as soon as practicable and in a manner that minimizes interruption of
existing communication services. In no event shall FirstLink interrupt
service to tenants by other providers, including US West. Telecommunication
Services to the Property shall commence no later than 180 days from
commencement of installation. FirstLink shall give Owner at least ten (10)
days notice prior to the
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commencement of installation. FirstLink may subcontract activities related to
the installation of the System, but shall be responsible for any and all acts
and/or omissions by any subcontractor.
6. OWNERSHIP AND CHARACTER OF THE SYSTEM. Except as otherwise stated
herein, the System, including any alterations and attachments, shall at all
times remain the sole property of FirstLink. It is the intention of the parties
that the System, and every component of the System, shall retain its character
as personal following the installation of the System on the Property, and shall
not be deemed to be a fixture constituting a part of the Property. No part of
the System shall be or become subject to any mortgage, deed of trust or lien
upon the Property.
7. SERVICE TO TENANTS. FirstLink shall provide Telephone Service and
other Telecommunication Services offered through the System to each resident
requesting them. FirstLink's obligation to provide or continue Telecommunication
Services shall be contingent on the resident paying service charges. Residents
electing to receive Telecommunication Services offered by FirstLink shall do so
through the execution and delivery to Owner or FirstLink of a Tenant Services
Agreement in the form provided, from time to time, from FirstLink to Owner.
Owner shall promptly provide such executed documents to FirstLink. Residents
requesting Telecommunication Services shall be charged and billed individually
for connection to the System and for service at standard rates established
solely by FirstLink from time to time unless prohibited by applicable law or
regulation. FirstLink shall be solely responsible for invoicing, collections and
bad debts related to provision of Telecommunication Service to residents.
Both parties agree that neither the Owner nor the Owner's agent shall have any
liability regarding the number of residents electing to use Telecommunications
Services.
8. COMMISSIONS. Owner shall be entitled to Commissions equal to *
percent * of all gross revenues actually collected for services provided to
each living unit served by FirstLink hereunder. All commission payments
hereunder will be paid quarterly in arrears. Commissions begin accruing upon
installation of service. The first commission payment will be for the quarter
ending September 30, 1999. Payments are made on the 15th of the month
following quarter end. Commissions accrued but unpaid prior to that date will
be due and payable: (1) on *, or (2) when the Property is sold and the
subsequent owner assumes this Agreement and the rights and obligations
hereunder, or (3) when Owner elects, at Owner's sole option, to amend this
Agreement to include an assumption clause requiring a subsequent owner to
assume this Agreement and the rights and obligations hereunder, whichever
occurs first.
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Owner shall have the right to inspect FirstLink's annual audited financials and
records relating to payments received by Owner from FirstLink pursuant to this
Section. Owner may elect to conduct an audit thereof to verify that the amounts
paid to it pursuant to this Section are correct. If any such audit discloses
that Owner has been underpaid, FirstLink shall, within ten (10) days after
demand, pay the Owner the balance with interest at ten percent (10%) per annum
calculated from the date that payment should have been made. In addition, if any
such audit discloses that Owner has been underpaid by more than five percent
(5%) for any year, FirstLink shall reimburse Owner for the cost of the audit.
9. ADDITIONAL OBLIGATIONS OF FIRSTLINK. FirstLink shall:
(a) Make a customer service representative available to receive service
requests or inquiries from Owner or residents and insure that it responds to
service requests within four (4) hours of receipt. Routine maintenance services
shall be performed by FirstLink during its normal working hours. A technician
shall arrive at the Property to commence maintenance services promptly after
request by a customer of such services, provided however, where such requests
are made on, or on a day preceding a Saturday, Sunday or holiday, FirstLink's
system technician shall arrive at the Property to commence maintenance services
on the next normal working day.
(b) Provide Owner with marketing materials, sales support and sales
training to enable Owner and Owner's employees to market Telecommunications
Services in accordance with Section 10(b);
(c) Provide training to Owner's staff to enable staff to perform the
duties specified in Section 10(b);
(d) Repair or replace any damage to the Property resulting from
installation, operation, or removal of the System or any other acts by FirstLink
to the satisfaction of the Owner and restore Property to its original condition;
(e) Comply with all applicable regulatory requirements relating to the
provision of the Telecommunication Services provided by FirstLink as may be in
effect from time to time;
(f) Maintain the System in good order, condition and repair;
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(g) Provide owner with business Telephone Services at the Property. Owner
will pay the installation costs for providing such business Telephone Services
and will provide, at its own cost, all necessary ancillary hardware such as
keysets and operator consoles for the dedicated use of the Owner; such costs
will be reasonable and reflect customary installation charges for business
telephone systems; and
(h) Pay all taxes resulting from the ownership or operation of System and
service.
10. OBLIGATIONS OF OWNER. Owner shall:
(a} Make the System Site available on a rent-free basis to FirstLink
during the term of this Agreement. The construction and location of the
System Site shall be as Owner and FirstLink reasonably agree, subject to
technical and regulatory requirements as determined by FirstLink. FirstLink
shall have twenty-four hour, seven day a week access to the System Site, and
Owner s employees and agents shall not disturb the System;
(b) Use reasonable efforts to encourage its staff, agents and
representatives to encourage and promote the use of the Telecommunications
Services to residents and prospective residents as part of the amenities
provided by Owner at the Property. Owner consents to FirstLink's use of
incentives and incentive programs with Property management personnel, leasing
staff and other Property personnel for the purpose of promoting the System and
Telecommunication Services provided through the System. Owner's staff will
present the telecommunications service agreement and related information to
prospective tenants with the objective of securing sales. It is envisioned that
this selling process will require a minimal amount of time on behalf of Owner's
staff. If tenants have additional questions or require additional information,
their sales lead will be referred to FirstLink staff who will be responsible for
responding to customer inquiries and securing any resulting sales. FirstLink
will also be fully responsible for the initial sales conversion process;
(c) Promptly provide to FirstLink requested specifications on the
Property, such as wiring schematics, building diagrams, and other specific
information regarding resident transactions, such as rentals, move-ins,
move-outs, transfers, intents to vacate, and the entering into or termination
of leases and other information necessary to market and operate the System
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and provide the Telecommunications services according to this Agreement or to
comply with governmental or Utility Commission rules as may be determined by
FirstLink;
(d) Cooperate with FirstLink in obtaining permits, consents, licenses and
any other requirements which may be necessary for FirstLink to install and
operate the System and furnish the Telecommunications Services; provided that
FirstLink shall pay all reasonable costs of the Owner associated therewith
except that Owner will pay installation costs as described in Section 9(g);
(e) Provide reasonable access to the Property to FirstLink and its
employees and agents to enable FirstLink to perform the activities contemplated
by or necessary under this Agreement including access for the purpose of
soliciting customers.
11. INSURANCE. FirstLink shall carry and maintain liability insurance of
$3,000,000 naming Owner and Owner's agent as additional insured covering
personal injury and property damage that may be caused to person(s), the
Property or its contents, by the System or FirstLink's employees or agents.
Owner and FirstLink each waive any right of recovery against each other for any
claims that may be brought for any loss that is covered by insurance upon or
relating to the Property or the System to the extent of the actual proceeds
received by waiving party. Owner shall carry and maintain general liability
insurance related to the Property.
12. TERMINATION OF THE AGREEMENT.
(a) This Agreement may be terminated by either party if there has been a
material breach of the terms of this Agreement by the other party and if within
forty-five (45) days (fifteen (15) days for a breach relating to service
interruption) after receiving notice of such breach from the party seeking to
terminate, such breach has not been cured.
(b) FirstLink may terminate this Agreement, or discontinue the provision
of any Telecommunications Services provided hereunder, if in the sole discretion
of FirstLink, it ceases to be feasible for legal, economic or regulatory reasons
to provide Telecommunications Services to the Property; provided that FirstLink
provides forty five (45) days written notice to Owner.
(c) This Agreement may also be terminated by FirstLink if there is a
continuing material failure by Owner to provide the services to FirstLink
contemplated hereby.
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(d) Owner may terminate this Agreement if FirstLink's services are found
to be not competitive with other providers of similar services in the Portland
area.
(e) Any termination of this Agreement shall be effective as of the date of
termination, but FirstLink shall continue to provide Telecommunications Services
until the earlier of ti) all FirstLink customers at the Property are provided
Telephone Service from another source or (ii) thirty (30) days from the date of
such termination. The provisions of this Agreement necessary for such continued
services shall remain effective.
(f) Upon termination of this Agreement for any reason, FirstLink, or any
designee of FirstLink, including without limitation, any party providing
financing to FirstLink, after providing Owner with written notice of at least
fifteen (15) days, without further demand, shall enter upon the Property and
dismantle and remove any and all equipment or other property comprising the
System so long as such right shall encompass Section 9 (d) herein. FirstLink
shall repair any damage to the property from the dismantling and removal of
System components.
13. ASSIGNMENT OF THE AGREEMENT. This Agreement and the rights hereunder
may be assigned by FirstLink to any majority-owned subsidiary of FirstLink or to
an affiliate or party acquiring all or substantially all of the assets of
FirstLink upon prior written consent of Owner. Such consent shall not be
unreasonably withheld. Alternatively, the Agreement may be assigned by FirstLink
to any FirstLink subsidiary so long as FirstLink agrees in writing that it shall
remain liable for all obligations arising under this Agreement. FirstLink may
also assign this Agreement to any party providing financing to FirstLink;
provided that such assignment shall not relieve FirstLink from its obligations
hereunder.
14. OWNER WARRANTIES: INFORMATION. Owner warrants that (i) it has full
power and authority to grant to FirstLink the exclusive rights set forth in this
Agreement, (ii) that no party holds any rights or interests with respect to the
Property that conflict with any rights or interests that Owner grants to
FirstLink under this Agreement; (iii) that the Property is not presently part of
bankruptcy proceeding, foreclosure action, or deed in lieu of foreclosure
transaction; (iv) Owner is not in default of any mortgages or other encumbrances
on the Property; and (v) no purchase contracts presently exist as to the
Property.
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15. FIRSTLINK WARRANTY. FirstLink warrants that it will comply with all
laws and licensing requirements concerning the installation and operation of the
System. Except as expressly stated in this Agreement, FirstLink makes no
representations or warranties regarding the System or the provision of
Telecommunications Services, express or implied, including, but not limited to,
any implied warranty of merchantability or fitness for a particular purpose.
16. INDEPENDENT CONTRACTOR. FirstLink shall be and is an independent
contractor and Owner shall not control or direct the details and means by which
FirstLink performs its duties under this Agreement. This Agreement shall not
create the relationship of employer and employee, a partnership or a joint
venture.
17. EMERGENCY CALLS. FirstLink will use its reasonable best efforts to
pass all "911" emergency calls through the System to authorities but makes no
warranty or guaranty of any nature as to the promptness or adequacy of any
response to any such emergency call. FirstLink assumes no responsibility
whatsoever for any actions with respect to emergency calls other than to use its
reasonable best efforts to pass such traffic to authorities through the System.
In the event that the System has been adversely affected by any situation
described in Section 21, FirstLink shall hove no liability whatsoever for
failure to pass on emergency telephone traffic.
18. INDEMNIFICATION. Subject to the provisions set forth in Section 19
below, (i) FirstLink and Owner hereby agree to indemnify, defend and hold each
other (and each other's officers, directors, owners, employees, and agents)
harmless from and against all claims, losses and liabilities in any way relating
to, growing out of, or resulting from a material breach of each of their
respective obligations under this Agreement; and (ii) Owner will indemnify
FirstLink for damages to the System as provided in Section 3 herein.
In addition, FirstLink agrees to indemnify, defend and hold harmless Owner
and Owners partners, employees and agents from and against all damages,
losses, liabilities, costs, and expenses (including reasonable attorneys'
fees) resulting from claims made or causes of action asserted by third
parties (including, without limitation, residents of the Property) arising
out of or relating to (i) the performance by FirstLink (or its employees or
agents) of its obligations under this Agreement, (ii) the provision of
Telecommunications Services or (iii) compliance of FirstLink and/or the
System with applicable laws and regulations, except to the extent such
matters are attributable to the gross negligence or willful misconduct of
Owner.
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19. LIMITATION OF REMEDIES. Notwithstanding any other provision of this
agreement but without limiting the mutual indemnification in Section 18, neither
FirstLink nor Owner shall be liable for any incidental or consequential damages,
including but not limited to lost profits, of any nature whatsoever or for the
condition or repair of any telephone instrument or any Property to which the
System is attached.
20. ARBITRATION OF DISPUTES. Any controversy, dispute, or claim of
whatever nature arising out of, in connection with or in relation to the
interpretation, performance or breach of this Agreement, including any claim
based on contract, tort or statute, shall be resolved at the request of any
party to this Agreement, by final and binding arbitration before a single
arbitrator conducted at a location determined by the arbitrator in Portland,
Oregon, administered by and in accordance with the then existing rules of
practice and procedure established by the Arbitration Chapter of the Uniform
Trial Court Rules as then in effect in the State of Oregon, and judgment upon
any award rendered by the arbitrator may be entered by any state or federal
court having jurisdiction thereof. The arbitrator shall award attorney's fees
and costs of the arbitration procedure to the prevailing party. Both parties
acknowledge that they are giving up their right to have any such claim decided
in a court of law before a judge or jury, and hereby waive all rights to appeal.
21. FORCE MAJEURE. If the performance of any of the obligations under this
Agreement is interfered with by any reason or any circumstances beyond the
reasonable control of the parties, including, but not limited to, fire,
earthquake, storm, volcanic eruption, explosion, power failure or power surge,
acts of God, war, revolution, civil commotion, or requirement of any government
or legal body or any representative of any such government or legal body, labor
unrest, including but not limited to, strikes, slowdowns, picketing or boycotts,
then the parties shall be excused from performance on a day-by-day basis to the
extent of such interference.
22. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire Agreement between
the parties and may not be modified, amended or changed except by written
instrument signed by duly authorized executives of both parties.
(b) WAIVER. The failure by either party at any time to require performance
by the other party or to claim a breach of any provision of this Agreement shall
not be construed as
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affecting any subsequent breach or the right to require performance or to claim
a breach with respect thereto.
(c) GOVERNING LAW. The rights and obligations of the parties and all
interpretations and performances of this Agreement shall be governed in all
respects by the laws of the State of Oregon.
(d) NOTICES. Any notice to be given by either party to the other shall be
in writing and either personally delivered or sent by certified mail, return
receipt requested, to the addresses of the Owner and FirstLink provided below.
Notices shall be deemed given when received or refused. Each party may change
its address for notice to it by notice in accordance with the foregoing
provisions.
FIRSTLINK: OWNER:
FirstLink Communications, Inc. Xxxxx X. XxXxxx U/A Trust dated 1/4/72
000 XX Xxxxxxxx, Xxxxx XX 0000 XX Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
Telephone: 000-000-0000 Telephone: 000-000-0000
Attn.: A. Xxxxx Xxxxx, CEO Attn.: Xxxx XxXxxx
(e) VALIDITY. If any provision of this Agreement shall be held to be
invalid or unenforceable, such provisions shall not affect in any respect the
validity or enforceability of the remainder of this Agreement unless the
invalidity materially affects the ability of either party to perform as
contemplated hereunder.
(f) ATTORNEYS' FEES AND COSTS. If arbitration or other proceedings are
brought to enforce or interpret this Agreement, the substantially prevailing
party shall be entitled to recover reasonable attorneys' fees and other costs
incurred in such action, arbitration or proceeding from the other party, in
addition to any other relief to which such party may be entitled.
(g) AUTHORITY. Each individual signing this Agreement on behalf of a
corporation or partnership represents that he or she has the necessary authority
to execute this Agreement on
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behalf of such entity and that, in the case of a corporation, all necessary
corporate action has been taken approving the execution of this Agreement.
Any person or entity executing this Agreement as "Owner" hereby represents and
warrants to FirstLink that it is fully authorized by Owner to execute this
Agreement and to bind Owner to the terms and obligations set forth in this
Agreement, and the Owner is fully aware of the existence and contents of this
Agreement. Owner and any person or entity executing this Agreement on Owner's
behalf acknowledges that Owner shall be estopped from claiming that this
Agreement was executed by a person or entity lacking actual authority to bind
Owner.
(h) FURTHER ASSURANCES. Upon the reasonable request of either party, the
other party shall promptly and, at its own expense, execute and deliver any
additional documents or take such actions, as may be reasonably necessary
(subject to any other agreement binding on either party) for the purpose of
evidencing or perfecting any right or interest of either party arising under
this Agreement or arising under documents executed in accordance with this
Agreement.
This Agreement has been signed and delivered as of the above date.
FIRSTLINK: OWNER:
/s/ A. Xxxxx Xxxxx /s/ [illegible] for:
-------------------------------- --------------------------------
By: A. Xxxxx Xxxxx Xxxxxxx X. XxXxxx, Trustee of the Xxxxx
Title: Chief Executive Officer X. XxXxxx U/A Trust dated 1/4/72
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