Exhibit No. 10.4 Telecommunications Services Agreement between Registrant and
Riverplace II Joint Venture (Riverplace Development)
* = Confidential Information.
FIRSTLINK COMMUNICATIONS, L.L.C.
TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement ("Agreement") is entered into as of
January 18th, 1995, by and among FirstLink Communications, LLC, an Oregon
limited liability company ("FirstLink"), and Riverplace II Joint Venture, an
Oregon general partnership, and TCR #520 Riverplace Limited Partnership, a Texas
limited partnership (collectively referred to as "Owner").
1. PROPERTY. The 108-unit multi-family residential rental complex and
commercial units known as the Existing RiverPlace Development, located at 000 XX
Xxxxxxxxxx, Xxxxxxxx, Xxxxxx, and the adjacent 182-unit multi-family residential
rental complex and commercial units currently under construction known as the
New RiverPlace Development located at 0000 XX Xxxxx Xxxxx, Xxxxxxxx, Xxxxxx (the
"Property").
2. GRANT OF RIGHTS
(a) Owner grants FirstLink the sole and exclusive right, except as
otherwise provided in this Agreement, to provide Telecommunication Services to
residents of the Property. "System" shall mean all electronic devices, cable,
wire, hardware, software and other material used or necessary to transmit and
receive Telecommunication Services. "Telecommunication Services" means
two-way voice and data communications, telephone service, multi-channel cable
television, video on demand, audio on demand, voicemail, data services, security
systems, and other means of two-way communication distribution, whether now
existing or hereafter developed as between the Property and the local and/or
long distance telephone networks or other outside distributor of these and other
services. Telephone services shall include local calling, long distance, and
enhanced features such as voicemail, call waiting, distinctive ringing, speed
dialing, wake-up service, restricted dialing, account codes, custom phone
number, unlisted phone number, unpublished phone number, and no solicitation.
Cable television services will include all services currently offered by TCI
Cablevision of Oregon, Inc., ("TCI") to its west Portland residential customers
FirstLink agrees to make available to the residents at the Property within 120
days after the introduction thereof to the market by FirstLink, TCI, or others
any and all new services that become available in the west Portland cable
television franchise area. FirstLink will ensure that the quality of the
Telecommunications Services and the features available through the
Telecommunications Services are comparable to or exceed Portland area
telecommunications standards.
(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
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entity, other than FirstLink, for the purpose of providing Telecommunication
Services, except for the local telephone company (who shall have the right to
provide both local and long distance service, including long distance service
through AT&T, MCI, Sprint, or other carriers) and, in the case of service for
the Existing RiverPlace Development, the Property's existing service providers
(including TCI Cable) and except as required by law or otherwise allowed by this
Agreement.
3. SYSTEM EXPENSES. ACCESS. Other than as set forth herein, FirstLink
shall bear all expenses to install, operate, maintain, and repair the System and
to upgrade the System Site as necessary to accommodate the System. Owner shall,
at Owner's expense and cost, provide electrical power to the System and a System
Site. For the purposes of this Agreement, "System Site" shall mean a secure
space to house FirstLink's System equipment, which shall consist of a rent-free,
locked room. Renovation of System Site is the responsibility of FirstLink.
Owner will not be responsible for any disruption in electrical supply or for
unauthorized entry to the System Site or damage to FirstLink equipment resulting
therefrom. Owner hereby grants FirstLink and its authorized personnel access to
the Property for any reasonable purposes related to this Agreement including the
installation of the System in accordance with plans and specifications provided
to and approved by Owner. FirstLink shall not install any equipment, cabling or
wiring or make any modifications to the Property unless Owner has first approved
in writing the plans and specifications for such equipment, cabling wiring, or
such modification. Owner grants specific rights to FirstLink to use any existing
coaxial and twisted pair cabling in the Property, but all such items shall
remain the property of Owner. FirstLink will provide Owner access to the System
Site on notice of twenty-four (24) hours.
4. TERM. The term of this Agreement shall be * years from the date
hereof. The original term will automatically be renewed for up to * additional
periods of * years each on the same terms and conditions unless either party
otherwise notifies the other in writing at least 180 days prior to the end of
the original term or the first renewal term, as applicable. FirstLink shall
conduct a performance appraisal meeting with Owner prior to expiration of the
180 day notice period and shall remind the Owner of the Owner's option not to
renew the term by a written notice delivered to Owner not more than 90 days and
not less than 30 days before the last day for Owner to exercise its option not
to renew; the time for Owner's notice of election not to renew will be extended
day-for-day for each day that such reminder from FirstLink is late.
5. INSTALLATION. FirstLink shall install the System as soon as
practicable but in no event shall FirstLink be required to complete installation
sooner than six (6) weeks from signing of this Agreement. In installing the
System, FirstLink shall maintain a schedule consistent with Owner's schedule for
construction of the New RiverPlace Development and completion of units (which
FirstLink acknowledges it has reviewed).
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In all events, Telecommunications Service will be available to each residential
unit in the New RiverPlace Development by the time that Owner makes such unit
available for occupancy. Telecommunication Service will be available in the
Existing RiverPlace Development no later than February 1, 1995, except as
provided above. The installation shall be in accordance with the plans and
specifications approved by Owner and shall meet or exceed industry standards for
shared tenant service providers. FirstLink shall use only qualified, experienced
subcontractors in installing the System, and FirstLink shall replace any
subcontractor if Owner objects to the quality of the work that the subcontractor
is performing. FirstLink shall replace any work that is found to be sub-standard
or not in accordance with the approved plans and specifications. FirstLink will
coordinate schedules so that it and its contractors do not interfere with
Owner's overall construction activity. FirstLink will pay for all costs
associated with the installation of the System, including interconnection of the
Existing and New RiverPlace Developments. Immediately upon execution of this
Agreement, FirstLink will provide Owner with a letter of credit or bond in the
amount of $30,000 to secure payment of such costs. FirstLink will also indemnify
Owner for its failure to pay FirstLink contractors or subcontractors. 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.
Within 30 days after installation of the System is completed, FirstLink shall
provide Owner with a statement showing the cost of the System in reasonable
detail.
6. OWNERSHIP AND CHARACTER OF THE SYSTEM. Except as otherwise stated
herein (including in Section 3), 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 every component of the System installed by
FirstLink, shall retain its character as personal property following the
installation of the System on the Property, and shall not be deemed to be a
fixture constituting a part of the Property. No part of the System owned by
FirstLink shall be or become subject to any mortgage, deed of trust or lien upon
the Property. FirstLink shall not grant or allow any lien to exist against the
System without Owner's prior approval. At the end of the term of this Agreement
(regardless of how termination comes about), all wiring, cabling, jacks,
conduit, equipment, and other components of the System except any telephone
switch and other communications equipment installed by FirstLink at the System
Site that is not part of the residential telephone distribution network shall
become the property of Owner without any further action of FirstLink, Owner or
any other person. The residential telephone distribution network is deemed to
begin at the tenant termination block within the System Site. FirstLink may
remove any telephone switch or other communications equipment it has installed
within the System Site which is not part of the residential distribution
network; FirstLink may not otherwise remove any component of the System (except
worn or obsolete components that are replaced with like or better components)
without Owner's consent. If the term of this Agreement is terminated during the
first seven years because of Owner's default, Owner will pay FirstLink within 30
days after written
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demand an amount equal to the adjusted book value of the residential telephone
distribution network (excluding any capitalized operating deficits) assuming
amortization of cost on a straight-line basis over a seven-year term. FirstLink
will provide documentation of original wiring costs.
7. SERVICE TO TENANTS. FirstLink shall provide Telecommunication Services
offered through the System to each resident requesting them. FirstLink's
obligation to provide or continue Telecommunication Services shall be contingent
on the resident paying service charges and meeting other reasonable requirements
as are established by FirstLink from time to time. Residents ejecting 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 (which agreement
shall clearly state that Owner is not responsible for the System or its
operation or any activities of FirstLink). FirstLink shall submit its Tenant
Service Agreement to Owner prior to distribution to tenants, and FirstLink will
obtain Owner's approval of the form before using it with residents. Owner shall
promptly provide to FirstLink any Tenant Service Agreements executed by tenants
that are delivered to Owner. 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 will provide
consolidated billing for telephone, cable television, and security services.
FirstLink shall be solely responsible for invoicing, collections and bad debts
related to provision of Telecommunication Service to residents. Owner will not
be responsible for non-payment by tenants or other subscribers for
Telecommunications Services. FirstLink's rates for Telecommunications Services
will be at or below generally prevailing rates charged by other service
providers in the market in which the Property is located. FirstLink guarantees
unconditionally to return a resident to his or her original service provider for
any reason at any time.
8. REVENUE SHARING. Owner shall be entitled to revenue sharing as
described in Exhibit A.
Should the parties renegotiate and agree, prior to the end of the
initial * year term, to extend the contract for an additional * year period
then the revenue sharing percentage contained in Exhibit B shall apply.
FirstLink will provide revenue sharing to Owner on all gross receipts
generated by local and long distance telephone services and basic and
expanded cable television services, including HB0, Showtime, Disney, The Movie
Channel, STARZ, and ENCORE.
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All revenue sharing payments will be paid quarterly in arrears, within
15 days after the end of each calendar quarter, based on the average
penetration during the preceding calendar quarter. Penetration is defined to
mean (i) for cable television, the number of residential units for which the
residents subscribed to FirstLink's cable television service divided by the
total number of residential units in the Property and (ii) for telephone, the
number of lines to residential units connected to FirstLink's telephone
service divided by the total number of residential units in the Property.
(Although commercial users are not taken into account in determining
penetration, revenues from commercial service will be included in the revenue
base for determining Owner's revenue sharing.) Average penetration is defined
as the average of the penetration on the first day of the quarter and the
penetration on the last day of the quarter.
A * bonus will be paid to Owner for signing up each existing resident at
the Existing RiverPlace Development for both telephone and cable television
service and for signing up the first resident to lease each new unit in the
New RiverPlace Development to both telephone and cable television service. On
an ongoing basis, Owner will be paid a monthly incentive of * if telephone
penetration exceeds * percent, * if telephone penetration exceeds *
percent and * if telephone Penetration exceeds * percent. Such incentive
payments will be due within 15 days after the end of each calendar quarter.
All such incentive payments will be considered a deduction from gross
receipts prior to the revenue sharing percentages.
Owner shall have the right to inspect FirstLink's records and, if it so
elects, to conduct an audit thereof to verify that the amounts paid to it
pursuant to this Section 8 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.
Owner's participation through revenue sharing and Incentives is not
intended to make Owner and FirstLink partners. FirstLink is an independent
contractor and has no relationship with Owner other than as an independent
contractor.
9. ADDITIONAL OBLIGATIONS OF FIRSTLINK.
(a) FirstLink shall provide 24-hour customer service seven days a week.
Routine repair services shall be performed by FirstLink during its normal
working hours. FirstLink will respond to a service problem within four (4) hours
from notification of service problem and will provide alternate means of service
pending correction of the problem if repairs are not effected immediately. Any
telephone faults which are System wide (defined as two (2) or more customers
experiencing the same fault) will be
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addressed within one hour. A technician shall arrive at the Property to commence
maintenance services promptly after request by a customer or Owner.
(b) FirstLink shall provide a comprehensive marketing program including
marketing materials, sales support and sales training.
(c) FirstLink shall provide training to Owner's staff to enable staff to
perform the duties specified in Section 10(b).
(d) FirstLink shall repair or replace any damage to the Property resulting
from installation, operation, or removal of the System or any other acts by
FirstLink or any defect or malfunction in the System to the satisfaction of the
Owner and restore Property to its original condition.
(e) FirstLink shall 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) FirstLink shall maintain the System (including any portion of the
System owned by Owner other than equipment described in (g) below) in good
order, condition and repair.
(g) FirstLink will provide Owner with business Telephone Services at the
Owner's leasing office and community room, at discounted commercial rates below
those being offered by US West. 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.
(h) FirstLink shall pay all taxes resulting from the ownership or
operation of System and Telecommunication Service.
(i) FirstLink will provide a dedicated channel for an Owner information
service. Owner will be responsible for the programming of the digital
information service, after adequate training on its use, which will be provided
by FirstLink without charge. FirstLink will convert Owner's existing personal
computer for use as the digital information service for the dedicated Owner
information channel at the Property. If this is not possible, FirstLink will
provide the necessary equipment.
(j) FirstLink shall install network facilities for personal computer
applications within the New RiverPlace Development and for easy access to
Internet gateways.
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 6
These facilities will be capable of delivering local area network services, ISDN
(integrated Digital Service Network) services, and desktop video conferencing
services.
(k) FirstLink will identify a security vendor acceptable to Owner. The
security vendor will pay for all security wiring, cameras, and related security
equipment, or FirstLink will cover the portion of installation costs the vendor
is unwilling to assume. The vendor will be selected based on its willingness to
assume those costs and its ability to meet the following requirements:
1. All first and second story doors and windows monitored for the
New RiverPlace Development.
2. A "panic button" available in the master bedroom for the New
RiverPlace Development.
3. The security provider is of good business reputation and carries
a minimum of $1 million in liability insurance.
4. The security provider provides a direct indemnity and coverage
under liability insurance to the Owner, its partners and affiliates and Owner's
lender.
While Property is under construction, all dwellings will be installed with
complete wiring, door and window switches, and finish trim places for key pad at
the expense of FirstLink or the security vendor. Upon occupancy and at the
resident's request, FirstLink will complete the installation of the alarm system
including Central Processing Unit, siren, and key pad. FirstLink will establish
monthly subscription rates for monitored alarm service, such rates to be usual
and customary. Final installation of alarm system will take place within five
(5) working days of the resident's request. The security system will be
installed in accordance with plans and specifications approved by Owner, and all
wiring, cabling, equipment and other components of the security system will
become the property of Owner when installed. The security system will come with
a warranty on parts and workmanship provided by the security vendor for the
longer of two years or so long as the security system is in use.
(l) FirstLink will pay for and install at the Existing RiverPlace
Development a video security system which will be comprised of five (5) video
cameras combined on a single video channel. This channel will be displayed on
the in-house cable system of the Existing RiverPlace Development A separate
video recorder will be provided to record images from the five (5) cameras at
the Existing RiverPlace Development. FirstLink will provide up to * for
channel equipment to place the security cameras on the dedicated in-house
monitoring channel. The in-house monitoring channel will be
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 7
available without charge to all units subscribing to cable television service
and is provided as a convenience to subscribing residents.
(m) FirstLink shall install an average of four (4) telephone outlets in
each apartment for the New RiverPlace Development; such locations to be
determined by Owner.
(n) FirstLink shall install an average of four (4) twisted pair wires and
a total of one (1) coaxial cable to each apartment for the New RiverPlace
Development; actual number of twisted pair per unit for each specific unit will
be mutually agreed.
(o) FirstLink will provide Owner with a customer list each month (the list
as of the end of a month being due by the 15th day of the following month).
FirstLink also shall provide Owner with a wiring diagram promptly upon
completion of the installation of the System.
(p) FirstLink shall comply with Owner's policies relating to entry into
residents' units and Owner's security regulations.
10. OBLIGATIONS OF OWNER.
(a) Owner shall make the System Site available on a rent-free basis to
FirstLink during the term of this Agreement. The System Site is located as
depicted on Exhibit C attached hereto. FirstLink shall have twenty-four hour,
seven day a week exclusive access to the System Site, and Owner's employees and
agents shall not be granted access without FirstLink's permission.
(b) Owner shall 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 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, subject to Owner's approval. Owner's staff will present the
telecommunications service agreement and related information to prospective
tenants.
(c) Owner shall promptly provide to FirstLink requested specifications on
the Property, such as wiring schematics and/or building diagrams, and provide
general information on leasing activity (of a non-confidential nature) to assist
FirstLink in its sales efforts and other information reasonably necessary to
enable FirstLink to comply with governmental or Oregon Public Utility Commission
rules. All information provided to FirstLink by Owner shall remain confidential
and shall not be made available to anyone other than FirstLink and its employees
and agents. FirstLink shall not sell any
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 8
information (including customer lists) obtained by it in connection with its
activities pursuant to this Agreement.
(d) Owner shall 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) Owner shall 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. FirstLink shall submit all advertising
brochures and other solicitation materials and programs to Owner and shall not
distribute any of such brochures or other materials or implement any such
program until Owner has approved the same. All material and programs will be
deemed to be approved within ten (10) working days of submission if Owner has
not responded. FirstLink shall comply with all applicable truth-in-advertising
and debt collection laws in its dealings with residents at the Property and
prospective residents. FirstLink shall not make direct solicitation to
residents without prior approval from Owner authorizing such contact and the
content of the solicitation, which approval may be withheld by Owner in its
discretion.
(f) Owner shall pay to FirstLink the sum of * toward the cost of bulk
cable television service to the 108 units of the Existing RiverPlace
Development. Such payment is due before January 15, 1995. Based on this payment,
FirstLink will provide free expanded basic cable television service for a period
of one (1) year through December 31, 1995, to all residents in place at the
Existing RiverPlace Development as of January 1, 1995, whether or not the
resident subscribes to other FirstLink service. As new residents occupy units
following January 1, 1995, they will be offered cable television at retail rates
and revenue resulting from those residents will be subject to revenue sharing
with Owner as provided in Section 8.
11. INSURANCE. FirstLink shall carry and maintain commercial general
liability insurance (either through primary coverage policies or umbrella
policies) of $3,000,000 and automobile liability insurance in the amount of
$1,000,000 both on an occurrence basis naming Owner, its partners and affiliates
and Owner's lender as additional insured covering personal injury and property
damage that may be caused by the System or FirstLink or its employees or agents
including the security system vendor. Owner and FirstLink each waive any right
of recovery against each other 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; provided that this provision does not limit
FirstLink's liability under Section 15. In addition, FirstLink shall carry
workers compensation insurance as required by law FirstLink shall provided
Owner with a
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 9
certificate of insurance simultaneously with execution of this Agreement and ten
(10) days prior to each renewal date. All insurance coverage must provide for 30
days prior notice to Owner before any cancellation, change, or non-renewal, and
all certificates of insurance shall so specify.
12. TERMINATION OF THE AGREEMENT.
(a) The term of 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 for non-monetary breaches and ten (10) days for
monetary breaches after receiving notice of such breach from the party seeking
to terminate, such breach has not been cured.
(b) FirstLink may terminate the term of 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 or regulatory
reasons to provide Telecommunications Services to the Property; provided that
FirstLink provides forty-five (45) days written notice to Owner.
(c) Owner may terminate the term of this Agreement if Telecommunication
Services provided by FirstLink, compared to those provided by other suppliers in
the Portland-area market, places Owner at a competitive disadvantage, or if
FirstLink rates exceed those of other service suppliers in the market in which
the Property is located, or if FirstLink fails to provide maintenance and repair
service on a prompt basis. Owner also may terminate the term of this Agreement
if FirstLink allows any lien to attach against the Property, or if FirstLink
fails to pay any of its contractors, subcontractors or suppliers (including
suppliers of bulk telephone or cable television service) when and as due, or if
FirstLink seeks protection under any bankruptcy, insolvency or similar law, or
generally fails to pay its debts when due, or has a receiver, trustee,
liquidater or similar official appointed for it or a substantial part of its
property.
(d) Any termination of the term of this Agreement shall be effective as of
the date notice of termination is given, but FirstLink shall continue to provide
Telecommunications Services until the earlier of (i) the date on which all
FirstLink customers at the Property are provided Telephone Service from another
source or (ii) ninety (90) days from the date notice of termination is given.
The provisions of this Agreement necessary for such continued services shall
remain effective.
(e) Upon termination of this Agreement for any reason and completion of
FirstLink's continued service obligations under Section 12(d), FirstLink, or any
designee of FirstLink, including without limitation, any party providing
financing to FirstLink, shall have the right, after providing Owner with written
notice of at least forty-five (45) days, without further demand, to enter upon
the Property and to dismantle and remove or
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 10
render inoperative any and all equipment that FirstLink is entitled to remove
pursuant to Section 6. FirstLink shall repair all damage to the Property from
the dismantling and removal of System components. If FirstLink fails to remove
any System component to which it is entitled within 45 days after the
termination of this Agreement, FirstLink shall be deemed to have abandoned the
component.
(f) Owner (or its successor in interest) may terminate this Agreement in
connection with a sale of the Property (or, if the Property is sold in pieces,
as to any portion sold) if the buyer is unwilling to assume this Agreement. Such
termination option must be exercised within 90 days after the sale is completed.
If the Agreement is terminated pursuant to this paragraph (f), Owner (or its
successor in interest) shall pay FirstLink, within 30 days after demand by
FirstLink, an amount equal to the sum of (i) the adjusted book value of the
residential telephone distribution network, excluding any capitalized operating
deficits (or the portion of such cost attributable to the portion of the
Property that is sold), assuming amortization on a straight-line basis over a *
term, plus (ii) an amount equal to (A) * of the net operating income for the *
latest full calendar months preceding the termination date multiplied by (B) the
number of calendar months then-remaining in the term of this Agreement. For such
purpose, net operating income is the total revenues from the System collected by
FirstLink less operating expenses of the System. Total revenue will be
calculated (i) during the first * years of the term of this Agreement, by using
the penetration ratio for the System and revenues actually collected by
FirstLink from units serviced through the System and extrapolating to what
revenues would be at 95 percent occupancy and (ii) after the first * years of
the term of this Agreement, by using revenues actually collected by FirstLink
for the System. Revenue sharing and incentives paid to Owner pursuant to this
Agreement are operating expenses of the System. Amortization and depreciation
charges for the cost of the System also are an operating expense and will be
expensed for purposes of this provision on a straight-line basis over the
initial * year term of this Agreement.
13. ASSIGNMENT OF THE AGREEMENT. This Agreement and the rights hereunder
may be assigned by FirstLink to any party acquiring all or substantially all of
the assets of FirstLink, provided that (i) the assignee has three year's
experience in providing shared tenant services for both telephone and cable
television or, alternatively, hires FirstLink to manage the System, (ii) the
assignee has a net worth at least equal to FirstLink's net worth. and (iii) the
assignee's involvement with the System does not cause a conflict of interest or
an ERISA violation for the Owner or its partners. 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 lender
providing financing to FirstLink; provided that such assignment shall not
relieve FirstLink from its obligations hereunder and that lender agrees to
undertake FirstLink's obligations hereunder if it exercises any of its remedies.
FirstLink may pledge its right
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 11
to receive any payments hereunder to any lender providing financing to
FirstLink. In connection with a sale or disposition of the Property, Owner
shall require any subsequent owner of the Property to assume this Agreement
and the rights and obligations hereunder. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the
successors and assigns of the respective parties to this Agreement. Other
than as specifically provided herein, neither FirstLink nor Owner may assign
this Agreement without the written consent of the other, consent not being
unreasonably withheld.
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) 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 (except any lien against the New RiverPlace
Development held by the Owner's construction lender); (iii) the Property is not
presently part of bankruptcy proceeding, foreclosure action, or deed in lieu of
foreclosure transaction; (iv) Owner has not been notified that it is in default
of any mortgages or other encumbrances on the Property; and (v) no purchase
contracts presently exist as to the Property (except any agreement between the
parties comprising Owner).
15. FIRSTLINK WARRANTY. FirstLink warrants that (i) it will comply with
all laws and licensing requirements concerning the installation and operation of
the System; (ii) the financial statements provided to Owner are accurate; and
(iii) FirstLink has not been involved in litigation pertaining to the operation
of services comparable to those described in this Agreement.
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 shall ensure that all 911 calls
automatically transmit the resident's phone number, name, and address (including
apartment number) to the emergency authority.
18. INDEMNIFICATION. FirstLink and Owner hereby each agrees to indemnify,
defend and hold the other (and the 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 its obligations under this Agreement
FirstLink agrees to indemnify, defend and hold harmless Owner and Owner's
partners and affiliates and their respective employees and agents from and
against all
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 12
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
contractors, subcontractors, employees, or agents) under this Agreement,
including damage to the Property or property of tenants caused by FirstLink
(or its contractors, subcontractors, employees or agents) while on or about
the Property, (ii) the provision of Telecommunications Services; (iii)
compliance of FirstLink and/or the System with applicable laws and
regulations; (iv) infringement upon patents, copyrights, and other
intellectual property rights; (v) any act or omission by FirstLink or its
contractors, subcontractors, employees, or agents with third-parties
(including residents of the Property), including advertising or other
solicitations and attempts to collect delinquent accounts; and (vi) defects
in the System or any malfunction of the System.
FirstLink shall promptly advise Owner in writing of any action,
administrative or legal proceeding or investigation as to which its
indemnification may apply, and FirstLink at FirstLink's expense, shall assume on
behalf of Owner and the other indemnitees and conduct with due diligence and in
good faith the defense thereof with counsel reasonably satisfactory to Owner,
provided, however, that any indemnitee shall have the right, at its option, to
be represented therein by advisory counsel of its own selection. In the event of
failure by FirstLink to fully perform in accordance with this indemnification
provision, Owner, at its option, and without relieving FirstLink of its
obligations hereunder, may so perform, but all costs and expenses so incurred by
Owner in that event must be reimbursed by FirstLink to Owner, together with
interest, from the date any such expense was paid by Owner until reimbursed by
FirstLink, at the rate of interest provided to be paid on judgments by the law
of the jurisdiction to which the interpretation of this Agreement is subject.
FirstLink's indemnification will not be limited to damages, compensation or
benefits payable under insurance policies, workers' compensation acts,
disability benefit acts or other employees' benefit acts. The provisions of this
Section 18 apply to all activities of FirstLink with respect to the Property,
whether occurring before or after the date of this Agreement and before or after
any termination of this Agreement.
Except for loss or damage to the System to the extent caused by the gross
negligence or willful misconduct of an indemnitee the indemnitees shall never be
liable in any manner to FirstLink for any injury to or death of persons or for
any loss of or damage to the property of FirstLink, its employees, agents,
customers, invitees, licensees, or others (whether such loss or damage is
occasioned by casualty, theft, or any other cause of whatsoever nature), even if
due in whole or part to the condition of the Property or the sole or concurrent
negligence of the indemnitees or any one of them and FirstLink hereby waives and
relinquishes forever any such claims it might have against the indemnitees now
or in the future. In no event shall the indemnitees ever be liable in any manner
to FirstLink or any other party as a result of the acts of omissions
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 13
of FirstLink, its agents, employees, contractors, customers, invitees,
licensees, or others, and FirstLink hereby waives and relinquishes forever
any such claims it might have against the indemnitees now or in the future.
All personal property of FirstLink upon the Property and any of FirstLink's
property affixed or attached to the Property shall be at the sole risk of
FirstLink.
Except as specified in the immediately preceding paragraph, no party will
have any right or claim against any indemnitee for any property damage (whether
caused by negligence or the condition of the Property or any part thereof),
except as otherwise specified in this paragraph by way of subrogation or
assignment, and FirstLink waives and relinquishes any such right. To the extent
FirstLink chooses to insure any of FirstLink's personal property upon the
Property or any of FirstLink's property affixed or attached to the Property,
FirstLink shall cause its insurance carrier(s) to endorse all applicable
policies waiving the carrier's right of recovery under subrogation or otherwise
in favor of the indemnitees and provide a certificate of insurance verifying
this waiver.
19. VENUE AND JURISDICTION. The parties agree that venue and jurisdiction
for any disputes or controversies arising hereunder shall be exclusively
reserved to the courts of Multnomah County, Oregon, except for any matters of
federal jurisdiction, which shall be reserved to the United States District
Court for the District of Oregon.
20. FORCE MAJEURE. If the performance of any of the obligations under this
Agreement is interfered with by any reason or any circumstances beyond the
reasonable control of the parties, including, but not limited to, fire,
earthquake, storm, volcanic eruption, explosion, power failure or power surge,
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; provided that FirstLink shall be responsible for
compliance with all laws and regulations existing on the date of this Agreement,
notwithstanding this Section 20.
21. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire Agreement
between the parties and may not be modified, amended or changed except by
written instrument signed by duly authorized 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 affecting any subsequent breach or the right
to require performance or to claim a breach with respect thereto.
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 14
(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.
Owner:
The Prudential Insurance Company of America
Prudential Real Estate Investors
Attn.: Vice President, Acquisitions
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
and: The Prudential Insurance Company of America
Prudential Real Estate Investors
Attn.: Xxx Xxxxxx
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000-0000
and: The Prudential Insurance Company of America
The Prudential Realty Group
Attn.: Xxxxxx Xxxxxx, Esq.
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
and: Xxxxxxxx Xxxx Residential
Attn.: Xxxxx X. Xxxxxxx, Xx.
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, XX, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: 000-000-0000
Telephone: 000-000-0000
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 15
FirstLink:
FirstLink Communications, L.L.C.
Attn.: A. Xxxxx Xxxxx, CEO
000 XX Xxxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Facsimile: 000-000-0000
Telephone: 000-000-0000
(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 prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred in such
arbitration or proceeding from the other party, in addition to any other relief
to which such party may be entitled.
(g) AUTHORITY. Each party represents that any individual signing this
Agreement on behalf of a corporation or partnership has the necessary authority
to execute this Agreement on behalf of such entity and that, in the case of a
corporation, all necessary corporate action has been taken approving the
execution of this Agreement.
(h) FURTHER ASSURANCES. Upon the reasonable request of either party, the
other party shall promptly and, at its own expense, execute and deliver any
additional documents or take such actions, as may be reasonably necessary
(subject to any other agreement binding on either party) for the purpose of
evidencing or perfecting any rights or interest of either party arising under
this Agreement or arising under documents executed in accordance with this
Agreement.
22. TCI AGREEMENT. At FirstLink's request, simultaneous with this
Agreement, Owner is entering into a separate agreement with TCI Cablevision of
Oregon, Inc. ("TCI") providing for cable television service to the Property.
FirstLink and Owner agree that, so long as this Agreement is in effect,
FirstLink will deal with TCI and will be responsible for the performance of all
obligations of Owner under such agreement with TCI. Upon termination of this
Agreement, Owner will be entitled to deal with TCI, and TCI will be entitled to
use all components of the System that are beneficial for providing cable
television service to the Property. In the event of any dispute with TCI
(including as a result of FirstLink's failure to perform), Owner will be
entitled to terminate FirstLink's right to provide cable television service for
the Property and thereafter may deal directly with TCI or, to the extent allowed
by the TCI agreement, another service
TELECOMMUNICATIONS SERVICES AGREEMENT--Page 16
provider. The relationship with TCI will not effect Owner's right to revenue
sharing as provided in this Agreement.
23. NO PUBLIC ANNOUNCEMENT: CONFIDENTIALITY FirstLink will not make any
public announcement or publicity release regarding this Agreement or the service
to be provided to the Property without Owner's prior written approval. FirstLink
agrees not to identify Owner or its partners or affiliates (including The
Prudential Insurance Company of America) or the Property in any advertising, or
use any photograph or likeness of the Property in any advertising, unless in any
such case Owner and each other person named in the advertising has approved the
advertising. FirstLink and Owner each agrees to keep confidential the terms of
this Agreement and all other related agreements and documents, as well as all
information provided by the other party in connection with this Agreement, and
FirstLink and Owner each agrees that it will not disclose any such information
to any person except for disclosure (i) to its counsel, accountants, employees,
and other persons advising it in connection with matters relating to this
Agreement who have a need to know the information given to them and who are
advised to keep such information confidential, (ii) to potential purchasers of
the Property who are advised to keep such information confidential, and (iii) as
required by law or court order.
24. SEPARATE OWNERSHIP. It is contemplated that Riverplace II Joint
Venture (the "JV") will acquire the New RiverPlace Development from TCR #520
Riverplace Limited Partnership ("TCR"). Until such acquisition occurs, and if
such acquisition is never completed, this Agreement will be construed as
separate agreements between FirstLink and TCR with respect to the New RiverPlace
Development and FirstLink and the JV with respect to the Existing RiverPlace
Development, in each case disregarding provisions that are not applicable to the
portion of the Development in question. Transfer of the New RiverPlace
Development from TCR to the JV may be completed without further consent or
approval from FirstLink, and after such transfer is completed, this Agreement
will be construed as an agreement solely between FirstLink and the JV with
respect to the entire Development. If, prior to acquisition of the New
RiverPlace Development by the JV, either TCR or the JV defaults under this
Agreement, such default shall not affect the other of them, nor shall FirstLink
be entitled to terminate this Agreement with respect to either TCR or the JV on
account of a default by the other of them. The JV agrees that it will continue
to allow FirstLink to use the System Site and related wiring and cabling running
through the Existing RiverPlace Development to service the New RiverPlace
Development even if this Agreement is terminated as between FirstLink and the
JV.
This Agreement has been signed and delivered as of the above date.
FirstLink:
FIRSTLINK COMMUNICATIONS, L.L.C. an Oregon limited
liability company
By: /s/ A. Xxxxxx Xxxxx
-----------------------------
A. Xxxxx Xxxxx
Chief Executive Officer
Owner:
TCR #520 RIVERPLACE LIMITED PARTNERSHIP, a Texas
limited partnership
By: TCR Northwest 1993, Inc., a Texas corporation, its sole
general partner
By: /s/ [ILLLEGIBLE]
-----------------------------
Xxxxx X. Xxxxxxx, Xx.
President
RIVERPLACE II JOINT VENTURE, an Oregon general
partnership
By: The Prudential Insurance Company of America, a
New Jersey corporation, a general partner
By: /S/ Xxxxxxx X. Xxxx
-----------------------------
Xxxxxxx X. Xxxx
Vice President
By: TCR #520 Riverplace Limited Partnership, a Texas
limited partnership, a general partner
By: TCR Northwest 1993, Inc., a Texas
corporation, its sole general partner
By: /s/ [ILLEGIBLE]
------------------------
Xxxxx X. Xxxxxxx, Xx.
President
FIRSTLINK COMMUNICATIONS, INC.
TELECOMMUNICATIONS SERVICES AGREEMENT
EXHIBIT A
Revenue sharing to Owner based on * year agreement
PERCENT COMMISSION
PENETRATION PERCENTAGE
------------- ------------
* *
Revenue sharing percentages to Owner will increase based on adding additional
marketable dwellings to those currently under contract at the property.
Additional dwellings include those in the Portland/Vancouver area.
Upon the addition of * units in projects in which Xxxxxxxx Xxxx Residential has
an interest, other than those at the RiverPlace Development, revenue sharing
percentage will increase to:
PERCENT COMMISSION
PENETRATION PERCENTAGE
------------- ------------
* *
Upon the addition of * units in projects in which Xxxxxxxx Xxxx Residential has
an interest, other than those at the RiverPlace Development, revenue sharing
percentages will increase to:
PERCENT COMMISSION
PENETRATION PERCENTAGE
------------- ------------
* *
Upon the addition of * units in projects in which Xxxxxxxx Xxxx Residential has
an interest, other than those at the RiverPlace Development, revenue sharing
percentages will increase to:
PERCENT COMMISSION
PENETRATION PERCENTAGE
------------- ------------
* *
FIRSTLINK COMMUNICATIONS, LLC.
TELECOMMUNICATIONS SERVICES AGREEMENT
EXHIBIT B
Revenue sharing to Owner based on * year contract extension option:
PERCENT COMMISSION
PENETRATION PERCENTAGE
------------- ------------
* *
Revenue sharing percentages to Owner will increase based on -adding additional
marketable dwellings to those currently under contract at the property.
Additional dwellings include those in the Portland/Vancouver area.
Upon the addition of * units in projects in which Xxxxxxxx Xxxx Residential has
an interest, other than those at the RiverPlace Development, revenue sharing
percentage will increase to:
PERCENT COMMISSION
PENETRATION PERCENTAGE
------------- ------------
* *
Upon the addition of * units in projects in which Xxxxxxxx Xxxx Residential has
an interest, other than those at the RiverPlace Development, revenue sharing
percentages will increase to:
PERCENT COMMISSION
PENETRATION PERCENTAGE
------------- ------------
* *
Upon the addition of * units in projects in which Xxxxxxxx Xxxx Residential has
an interest, other than those at the RiverPlace Development, revenue sharing
percentages will increase to:
PERCENT COMMISSION
PENETRATION PERCENTAGE
------------- ------------
* *
[MAP DELETED]
