AGREEMENT FOR BROADBAND SERVICES
This Agreement is made by and between Celerity Systems, Inc., a Delaware
corporation with offices at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxx, XX 00000
("Celerity"), and DesertScape Partners, L. P., ("Property Owner/Developer"),
with offices for transaction of business located at Xxx Xxxx Xxxxxx, Xxxxx 000,
Xxxx Xxxxxx, Xxxxxxxxxxxx 00000. The Attachments and Exhibits attached to, and
referred to in this Agreement shall be deemed incorporated herein.
1. TERM. This Agreement shall commence on January 2, 2001 (the
"Effective Date"), and continue for ten (10) years unless earlier terminated
pursuant to this Agreement.
2. SCOPE OF AGREEMENT. Property Owner/Developer agrees to: 1) endorse and
promote Celerity as the preferred supplier of broadband services, including
Interactive TV, Video-on-Demand, Satellite and Terrestrial Cable TV, internet
access, as such services may be offered by Celerity from time to time, as
defined in Attachment 4 -"Services", to tenants residing at the property or
properties specified in Attachment 1 ("Property"); and 2) allow Celerity to
provide the Services to the tenants of the Property ("Tenants"). In return,
Celerity will provide Property Owner/Developer with certain services under the
terms and conditions specified in this Agreement. Attachment 1 includes the
location of the Property and the total number of individual residential units
per Property ("Units")."
3. CELERITY OBLIGATIONS.
3.1. Celerity agrees to provide the following:
a. Remittance of [... a] payment to the Property Owner/Developer, for the
term of the contract, for costs associated with the preparation of the
Property (`Infrastructure Fee'). The Infrastructure Fee will be paid
monthly beginning on the first month following the final issuance of a
Certificate of Occupancy.
b. Management and maintenance of the Celerity facilities located on the
Property.
c. Marketing and promotional support including: 1) Product and service
collateral materials and displays, 2) Celerity signage, and 3) Notice
of special promotions and offers.
d. An assigned Celerity account team.
e. Celerity shall be responsible for any required site infrastructure not
currently available at the site. However, such infrastructure, such as
building wiring, site distribution conduit, power and Clubhouse
telecommunication equipment space as is normally provided by Property
Owner shall not be the responsibility of Celerity.
f. Celerity shall be responsible for all third-party hardware, software or
services necessary to deliver the Services to the Tenants and the
Property Owner/Developer.
g. Payment to Property Owner/Developer of commissions as set forth in the
Celerity MDU (Multiple Dwelling Unit) Owner Commission Program ("OCP")
as specified in Attachment 2.
h. Celerity's products and services will work as per specification or
better for the life of the Agreement. From time to time, Celerity may,
at its own initiative, improve or upgrade the products or services, but
in no case will it reduce the quality of such products or services
below the original specification. If other providers of substantially
similar systems offer products or services within the exclusive service
area that are significantly better than those provided by Celerity at
the same or lower cost, Property Owner/Developer may request that
Celerity modify or enhance its products or services to be competitive
with such systems. If Celerity cannot or elects not to make such
modifications or enhancements within one (1) year of this request,
Property Owner/Developer may, on at least ninety (90) days notice to
Celerity, terminate this Agreement and either purchase the Celerity
system at Celerity's depreciated book value or ask Celerity to remove
the system at Celerity's expense.
3.2. In addition, Celerity will provide the following other services to the
Property Owner/Developer under this Agreement:
a. Celerity shall provide, at no cost to the OWNER, bandwidth for (4)
cable television channels for use by the Property Owner/Developer
for Community related services. Property Owner/Developer shall be
responsible for Property Owner/Developer' equipment and
maintenance cost related to
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the use of these channels. Provided however, Celerity shall
provide and install one (1) character generator for one (1) of the
four (4) cable channels.
b. At the request of the Property Owner/Developer, Celerity shall
provide all Broadband Services to up to eight (8) outlets, defined
by the Property Owner/Developer, within the Property Clubhouse at
no cost to the Property Owner/Developer.
4. PROPERTY OWNER/DEVELOPER OBLIGATIONS. During the term of this Agreement
Property Owner/Developer agrees to the following obligations:
4.1. Endorsement and promotion of Celerity as the preferred full service
provider of the Broadband Services, as defined in Attachment 4, and vendor of
choice to the Tenants. Such endorsement will include, but may not be limited to,
the following: 1) supplying literature, brochures and such promotional material
as Celerity may supply from time to time; 2) posting Celerity signage; and 3)
verbally endorsing Celerity Services to the Tenants. The specific endorsement
activities must be agreeable to both parties.
4.2. Pursuant to applicable law or agreement(s), in its Tenant leasing packet,
to make specific and exclusive reference to "Celerity" as its preferred provider
of broadband services and include such information as Celerity may supply on how
to order new Celerity Service.
4.3. With respect to the Property, Property Owner/Developer will not endorse or
enter into another endorsement agreement with any other broadband service
provider including but not limited to revenue sharing agreements; provided
however, Property Owner/Developer shall not preclude Tenants from selecting a
service provider other than Celerity.
4.4. To purchase for its own use Celerity broadband services from Celerity.
4.5. To provide, within reason, all the necessary and adequate termination space
and reusable supporting structures for cable/wire within the buildings
containing the Units and on the Property as required in state and local tariffs.
4.6 This Agreement will cover one hundred (100%) percent of Property
Owner/Developer' Units on the Property. Property Owner/Developer will commit all
residential Units.
4.7. As soon as possible, and in any event before any Tenants move into any
Units, provide Celerity with specific street addresses for each building at the
Property location, the range of Unit numbers in each building, the first
anticipated or scheduled Tenant move in date, the construction schedule
(including when each building opens or comes online), required service dates,
and red-lines or one-line drawings of the Property site. A form for organizing
this information is attached hereto as Attachment 3.
5.0 OWNERSHIP AND PROVISIONING OF SERVICE. Title to and ownership of all
Celerity supplied equipment and facilities up to each demarcation point is and
remains with Celerity. Celerity will provision and supply the Services in any
manner and by means of any equipment, software, and facilities Celerity chooses
in its sole discretion. The size and placement of all premise equipment,
utilized by Celerity for the delivery of the Services, shall be approved by the
Property Owner/Developer and be as defined in Attachment 5 - "Service Drawings".
The Property Owner/Developer shall retain ownership of all communication
infrastructure Facilities on the Property comprised of the building and site
distribution communication components, excluding any regulated communications
underground site egress cable and wiring, and those components owned by
Celerity. Celerity shall have the right to use (RTU) components of these
Facilities, as defined in Attachment 6 - "Celerity RTU Facilities", as required
to deliver Celerity provided Services. At the end of the term of this Agreement,
unless renewed by both parties prior to the expiration date, the residual value
of that portion of the Facilities not owned by the Property Owner/Developer and
excluding any regulated U S WEST Communications underground site egress cable
and wiring, shall be considered zero ($0.00), and ownership of these Facilities
shall transfer in whole to the Owner.
6.0 IMPLEMENTATION & OPERATIONS
6.1 Standard of Workmanship. All work shall be performed by Celerity or its
subcontractors in a good
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and workmanlike manner, in accordance with all applicable laws, rules, and
regulations of governmental authorities, including, without limitation, all
building and electrical codes.
6.2 Control of Operations. Except as expressly otherwise provided herein,
Celerity shall have sole control over all of the operations pertaining to the
Broadband System and to the provision of the Broadband Services. Celerity shall
maintain and operate the Broadband System at its sole cost and expense. Celerity
shall have adequate staff available to receive requests for service and
installation from residents of the Property.
6.3 Services. Celerity shall provide Broadband Services to the residents of the
Property who subscribe to it. The quality of service provided by Celerity under
this Agreement shall be as good as, or better than, the quality of service
generally provided by franchised providers of Broadband Services to comparable
properties in the metropolitan area in which the Property is located. Celerity
retains the right to control, add to, delete, and/or change the Broadband
Services.
6.4 System Outages/Repairs. Celerity maintains customer service lines to handle
customer service inquiries and support from 7:00 A.M. to 8:00 P.M. MST Monday
through Saturday, and also provides access to personnel to respond to system
wide emergencies on a 24 hour basis, 7 days a week. Subject only to the
availability of replacement hardware, Celerity shall take all action
commercially reasonable to restore service in the event of any system outage
(e.g., severed line, channel(s) outage which affect the whole or any major part
of the Broadband television system) as soon as notice is received by Celerity.
With respect to individual service complaints, Celerity shall use its best
efforts to remedy any individual subscriber problems by appointment during
regular business hours.
6.5 Pricing. Celerity shall offer the Broadband Services to the residents of the
Property on terms and at prices that are generally competitive with other
providers of similar services in the metropolitan area in which the Property is
located. Service rates shall be as listed in the attached Attachment 7 -
("Service Rates").
7. ADVERTISING; PUBLICITY.
7.1. Property Owner/Developer acknowledges the value of "Celerity" and the other
marks contained in Celerity supplied materials (the "Marks") and the goodwill
associated therewith and acknowledges that such goodwill is a property right
belonging to Celerity Systems, Inc. and that nothing contained in this Agreement
is intended as an assignment or grant to Property Owner/Developer of any right,
title or interest in the Marks. Other than Celerity supplied materials,
reference to or use of Celerity' name, logo, or Marks in any advertising,
promotional efforts or publicity ("Promotional Material") by Property
Owner/Developer will be granted by Celerity only under the following conditions:
a. Property Owner/Developer must first submit the Promotional
Material to Celerity and receive Celerity's prior written
approval.
b. The Promotional Material shall not be used in connection with any
goods or services other than Celerity Services.
c. Upon termination of this Agreement, all permission to use the
Promotional Material shall cease to exist and Property
Owner/Developer, at Celerity's direction, either shall promptly
return the Promotional Material to Celerity or destroy it.
7.2. Nothing in this Agreement shall be construed as the grant of a license,
either express or implied, with respect to any copyrighted material, logo,
trademark, trade name, or any other intellectual property now or hereafter owned
by either party. Celerity makes no warranties regarding its ownership of any
rights in or the validity of the Marks. Celerity indemnifies the Property
Owner/Developer against any infringement claims resulting from the improper use
of Celerity provided Promotional Material.
8. TERMINATION OF AGREEMENT FOR DEFAULT.
8.1 Either party may terminate this Agreement in the event of a material breach
of the terms hereof by the
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other party which is not timely cured. The breaching party first shall be given
written notice of the breach and 30 days from the date of receipt of the notice
in which to cure the breach.
8.2 This Agreement may be terminated by either party giving notice to the other
at any time after the occurrence of the following events: (a) a receiver,
trustee, or liquidator of the other party is appointed for any of its properties
or assets; (b) the other party makes a general assignment for the benefit of
creditors; (c) the other party is adjudicated as bankrupt or insolvent; (d) a
petition for the reorganization of the other party or an arrangement with its
creditors, or readjustment of its debt, or its dissolution or liquidation is
filed under any law or statute; and (e) the other party ceases doing business,
commences dissolution or liquidation.
9. LIMITATION OF LIABILITY.
9.1. NEITHER PARTY IS LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT OR SPECIAL DAMAGES, INCLUDING COMMERCIAL LOSS, HOWEVER CAUSED AND
REGARDLESS OF LEGAL THEORY OR FORESEEABILITY, WHICH DIRECTLY OR INDIRECTLY
ARISES FROM THE SERVICES OR EQUIPMENT PROVIDED BY QWEST.
9.2. EACH PARTY IS RESPONSIBLE TO THE OTHER FOR ACTUAL, PHYSICAL DAMAGES
DIRECTLY CAUSED IN THE COURSE OF ITS PERFORMANCE UNDER THE AGREEMENT, BUT
LIMITED TO DAMAGES FOR PERSONAL INJURY OR DEATH, OR TO TANGIBLE PROPERTY ARISING
IN EACH CASE FROM ITS NEGLIGENT ACTS OR OMISSIONS.
10. UNCONTROLLABLE CIRCUMSTANCES. Neither party shall be deemed in violation of
this Agreement if it is prevented from performing any of the obligations under
this Agreement by reason of severe weather and storms; earthquakes or other
natural occurrences; strikes or other labor unrest; power failures; nuclear or
other civil or military emergencies; acts of legislative, judicial, executive or
administrative authorities; or any other circumstances which are not within its
reasonable control.
11. CONFIDENTIAL INFORMATION. Either party may receive or have access to records
and information, whether written or oral, which the other party considers to be
confidential and proprietary, including technical information such as
specifications, drawings, and technical guidelines. Such information shall be
designated by the providing party as confidential and/or proprietary, and the
receiving party shall hold such confidential or proprietary information,
including this Agreement, in trust and confidence for the providing party, shall
use it only for the purposes permitted hereunder, and shall deliver to the
providing party all such records and information, in written or graphic form,
upon expiration or termination of this Agreement. Nothing in this section shall
be construed to limit the use of or dissemination by the receiving party of such
information as is previously known to the receiving party or is publicly
disclosed by the receiving party either prior or subsequent to the receiving
party's receipt of such information from the providing party.
12. DISPUTE RESOLUTION. Any claim, controversy or dispute between the parties
shall be resolved by binding arbitration in accordance with the Federal
Arbitration Act, 9 U.S.C. 1-16, not state law. The arbitration shall be
conducted by a retired judge or a practicing attorney under the rules of the
American Arbitration Association. The arbitrator's decision shall be final and
may be entered in any court with jurisdiction. The arbitrator may award only
compensatory damages and injunctive relief. Each party shall be responsible for
its own costs.
13. LAWFULNESS. This Agreement and the parties' actions under this Agreement
shall comply with all applicable federal, state, and local laws, rules,
regulations, court orders, and governmental agency orders. Any change in rates,
charges or regulations mandated by the legally constituted authorities will act
as a modification of any contract to that extent without further notice. This
Agreement shall be governed by the laws of the state where the Property is
located.
14. SEVERABILITY. In the event that a court, governmental agency, or regulatory
agency with proper jurisdiction determines that this Agreement or a provision of
this Agreement is unlawful, this Agreement, or that provision of the Agreement
to the extent it is unlawful, shall terminate. If a provision of this Agreement
is terminated but the parties can legally, commercially and practicably continue
without the terminated provision,
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and the terminated provision is not material in implementing the intentions of
the parties hereto, the remainder of this Agreement shall continue in effect.
15. GENERAL PROVISIONS.
15.1. Failure or delay by either party to exercise any right, power, or
privilege hereunder, shall not operate as a waiver hereto.
15.2. In the event Property Owner/Developer transfers the Property, Property
Owner/Developer shall provide Celerity with notice of the proposed transfer, as
well as the name, address, and telephone number of the proposed transferee, at
least thirty (30) days prior to the transfer. Property Owner/Developer shall
ensure that this Agreement is assigned to any transferee of the Property, except
that this Agreement may not be assigned to a telecommunications reseller or
telecommunications carrier under any circumstances. If Property Owner/Developer
attempts to assign this Agreement to a broadband service company, or any parent,
subsidiary, or affiliate thereof, Celerity may terminate this Agreement.
15.3. This Agreement constitutes the entire understanding between the Property
Owner/Developer and Celerity with respect to the subject matter hereof and
supersedes any prior agreements or understandings.
15.4 This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which, together, shall constitute one and the
same agreement.
15.5. If a party returns this Agreement by facsimile machine, the signing party
intends the copy of the signature printed by the receiving facsimile machine to
be its original authorized signature.
15.6 All notices required hereunder shall be in writing and sent by express
courier, by facsimile if receipt is confirmed or by registered or certified
mail, postage pre-paid to the addresses set forth below the parties' signatures
or to such other addresses as any party may specify in writing from time to time
to the other party.
16. EXECUTION. The parties hereby execute and authorize this Agreement as
of the latest date shown below:
DesertScape Partners, L. P., Celerity Systems, Inc.
/s/ Xxxxx Xxxxx /s/ Xxxxxxx X. Van Meter
------------------------------------ ------------------------------------
Signature Signature
Xxxxx Xxxxx Xxxxxxx X. Van Meter
------------------------------------ ------------------------------------
Name Typed or Printed Name Typed or Printed
President President and CEO
------------------------------------ ------------------------------------
Title Title
January 5, 2001 January 5, 2001
------------------------------------ ------------------------------------
Date Date
Address for Notices: Address for Notices:
Xxxxx Xxxxx President
0000 Xxxxxxxxxx Xxxxx, Xxxxx 0-X 000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Fax: 000-000-0000 Fax: 000 000 0000
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ATTACHMENT 1
PROPERTY AND UNITS
Where terms or conditions of this Attachment 1 conflict with other terms or
conditions of this Agreement, the terms and conditions of this Attachment 1
shall take precedence. This Agreement covers the Property at the following
locations and the indicated number of Units to be constructed on the Property
(the Property must be within Celerity's serving area):
Property Location (s) # of Units Construction Start
--------------------- ---------- ------------------
Date
----
DesertScape Apartments June 2000
0000 X. Xxxxxxx
Xxxx, XX 00000
Total Number of Xxxxx 000
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XXXXXXXXXX 0
OWNER COMMISSION PROGRAM
With respect to the parties' rights and obligations under the OCP, in the event
of any inconsistency or conflict between this Attachment 2 and the remainder of
this Agreement, the terms and conditions of this Attachment 2 shall prevail.
PROPERTY OWNER/DEVELOPER MARKETING ENDORSEMENT THROUGH OCP AGREEMENT
1. COMPENSATION. Compensation for the services performed by Property
Owner/Developer hereunder shall be as specified in Exhibit 1. The compensation
agreed to herein shall be the total compensation due to Property Owner/Developer
under this Attachment 2 and will be paid only in accordance with the terms
hereof. Celerity will provide, within twenty (20) business days after the end of
each month, a report of the revenue generated by each residential Unit at the
Property. Celerity will normally render no more than one (1) compensation check
to Property Owner/Developer each month, regardless of the number of projects
included in the Property or the number of properties managed by Property
Owner/Developer.
2. PROPERTY OWNER/DEVELOPER OBLIGATIONS.
2.1. Property Manager shall market and promote the Services to its new Tenants
on behalf of Celerity. Property Manager shall be available and responsive to its
Tenants during its normal business hours.
2.2. Property Manager shall display mutually agreeable signage indicating the
availability of Celerity products and services. In addition, Property
Owner/Developer will maintain a sufficient supply of welcome cards and
collateral materials, provided by Celerity at no charge. Property
Owner/Developer shall provide Celerity at least three (3) weeks lead time in
order to replenish Property Owner/Developer's supplies of such welcome cards and
collateral materials. Celerity will mail all such welcome cards and collateral
materials to Property Manager at the following address:
Property Manager
DesertScape Apartments
0000 X. Xxxxxxx
Xxxx, XX 00000
2.3. Prior to promoting Services to its Tenants, Property Manager shall attend
an OCP process orientation session conducted by Celerity. Property Manager will
train its leasing staff (including orientation updates as necessary) on a timely
basis. If Property Manager believes additional orientation sessions are needed
for Property Manager to successfully fulfill its obligations hereunder, Property
Manager will give four (4) weeks notice to Celerity to schedule such training.
2.4. Property Owner/Developer is not authorized to alter, orally or in writing,
any price, term, or condition of any Celerity service. Property Owner/Developer
shall not make any representations or warranties concerning the Services,
Celerity or the OCP, or impose any conditions directly or indirectly, other than
those expressly authorized by Celerity.
2.5 Celerity, at its sole discretion, may accept or reject any order. No order
shall be final until Celerity accepts such order. Property Owner/Developer shall
have no authority to approve or accept any orders on behalf of Celerity.
Celerity reserves the right to cancel or terminate any order, or to permit the
Tenant to cancel or terminate any order, in whole or in part, at Celerity's sole
discretion.
2.6. Celerity may remove or delete any particular product or service from the
OCP only if Celerity no longer provides that product or service, or unless,
after a reasonable effort, the parties determine that either (a) the product is
not of sufficient interest to the tenants or management of that property, or (b)
such services cannot
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be provided profitably at that property for reasons beyond the control of the
parties.. Celerity also agrees not to lower commission rates.
2.7. If Property Owner/Developer pays compensation to its Property management
personnel, Property Owner/Developer shall determine, establish, administer and
distribute any such compensation that it may remit to such Property management
personnel.
3. CELERITY OBLIGATIONS.
3.1. Celerity will provide Property Owner/Developer with sufficient
quantities of signage, welcome cards and collateral materials.
3.2. Celerity will provide initial orientation to Property Manager at a
location to be mutually agreed upon by the parties. Any additional orientation
requested by Property Manager pursuant to Section 2.3. above will be at a time
and place mutually agreed upon by the parties.
4. INSURANCE AND INDEMNITY. Without limiting in any way the
indemnification obligations set forth herein, the parties shall each maintain,
at their own expense, worker's compensation insurance to provide protection
against claims under applicable workers compensation laws and employer's
liability. Additionally, commercial general liability insurance, including
contractual liability coverage for insurable obligations assumed hereunder, and
personal injury coverage shall be maintained. Such insurance shall provide
protection against claims and liability including, but not limited to, claims
for bodily injury or property damage, which may arise or result from the
activities set forth herein. At either party's request the other party shall
furnish satisfactory proof of insurance coverage. Each party to this Agreement
hereby agrees to defend, indemnify, and hold harmless the other party and its
affiliated companies, and their directors, officers, employees, agents,
successors, and assigns, from and against any liabilities, claims, costs,
losses, and expenses, including attorney fees, incident to or resulting from its
negligent acts and omissions related to this Agreement.
5. Owners Right To Audit. Upon providing CELERITY with fifteen days prior
written notice of the Owner's desire to do so, the Owner at its expense, may
audit the records of the CELERITY relating to revenues generated from
Subscribers at the Property during the immediately preceding two-year period.
Such audit shall be conducted during CELERITY's business hours at the office
where such records are normally kept. If OWNER'S audit discloses an underpayment
of the Owner's Revenue Share, CELERITY shall, subject to its right to contest
Owner's audit, forward such underpayment to the Owner. If such underpayment
exceeds five percent of the actual amount of Owner's revenue share for the last
year, then, subject to CELERITY's right to contest Owner's audit. CELERITY shall
reimburse the Owner for all reasonable third-party costs of the Owner's audit.
If CELERITY elects to contest the Owner's audit, CELERITY shall mutually agree
on an independent auditor to re-audit the Total Gross Collected Receipts from
Subscribers at the Property for the applicable period. The determination of such
auditor shall be binding. If such independent auditor determines that CELERITY
underpaid the Owner's revenue share by more than five percent of the Owner's
Revenue Share for the last year, then CELERITY shall pay the cost of the second
audit; otherwise the Owner shall pay the cost of the second audit.
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