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HomeMy WebLinkAboutContract 1754Agreement Number: QWEST'S GROW WITH QWEST PROMOTION AGREEMENT FOR ISDN PRS, ADVANCED DSS, AND/OR UAS (THIS PROMOTIONAL OFFER IS NOT SUBJECT TO NEGOTIATION OR REVISION BY CUSTOMER/ This is an Agreement between CITY OF COLUMBIA HEIGHTS ("Customer") and Qwest Corporation ("Qwest") for the provision of Qwest Integrated Services Digital Network Primary Rate Service ("ISDN PRS") and/or Advanced Digital Switched Service with Rate Stabilized Trunks ("Advanced DSS") and/or Uniform Access Solution Service ("UAS") (individually and collectively referred to as the "Service"). 1. SCOPE. 1.1 ISDN PRS: If Customer pumhases ISDN PRS, Qwest shall provide digital intraLATA, intrastate, switched local exchange telecommunications service utilizing ISDN PRS technology that transports and distributes voice, data, image, and/or facsimile communications separately or simultaneously over the public, switched, local exchange network. ISDN PRS components include a DS1 facility, an ISDN PRI configuration, and trunks as indicated on Exhibit 1, which is incorporated herein by this reference. ISDN PRS operates at 1.544 megabits per second (Mbps). It may be comprised of 23 B channels and one D channel, 24 B channels only (24B), or 23 B channels and one back-up D channel (23B+BUD). Each B Channel transmits voice or data at 64 kilobits per second (Kbps). The D channel carries signaling information at 64 Kbps. 1.2 ISDN PRS-UAS: If Customer purchases ISDN PRS, Customer may also select Uniform Access Solution Service as an optional feature as that service is defined in the Tariff (defined in Section 1.5) under Primary Rate Service. ISDN PRS-UAS Service is a digital service offering with single-number route indexing, which includes a DS1 facility with common equipment and a network connection, which provides for local exchange, toll network access. Each DS1 facility utilizes channels configured as: (a) In- only trunking; or (b) Two-way trunking. 1.3 Advanced DSS: If Customer purchases Advanced DSS, Qwest shall provide Customer with the use of a digital DS1 facility (transmission capacity at a maximum speed of 1.544 Mbps), as indicated on Exhibit 1, and common equipment, linking Customer's premises to Qwest's local exchange switching office. Advanced DSS also includes the use of advanced, flat-usage trunks and DID trunk termination for access to the local exchange and toll networks. 1.4 .UAS: If Customer purchases UAS, Qwest shall provide Customer with the use of a digital DS1 facility, as indicated on Exhibit 1, and common equipment, linking Customer's premises to Qwest's local exchange switching office. Service is a digital service offering with single number route indexing which includes a DS1 facility with common equipment and a network connection which provides for local exchange, toll network access. Each DS1 facility utilizes channels configured as: (a) In-only trunking; or (b) Two-way trunking. 1.5 Qwest shall provide Service in accordance with the applicable State Tariff, Price List, and/or Catalog ("TarifF') which governs Service in the state Service is provided, and which Tariff(s) is incorporated herein by this reference. In states where Qwest is required to offer Service per Tariff, any conflict between the Tariff and this Agreement shall be resolved in favor of the Tariff. 2. TERM. 2.1 This Agreement shall become effective on the date on which it is executed by Qwest following Customer's execution of this Agreement ("Effective Date") and shall expire sixty (60) months from the date Service is available to Customer under this Agreement, as evidenced by Qwest records ("Term"). The Minimum Service Period for Service is twelve (12) months ("Minimum Service Period"). © 2003 Qwest Corporation Page 1 Version: 1-28-03 ISDN PRS/Advanced DSS/UAS 2.2 Pursuant to state requirements, Qwest may be required to submit this Agreement and any subsequent addenda for Service to the applicable state commission(s) for approval. In such an instance, the Effective Date of this Agreement, or any addenda, may be delayed until such time mandatory filing requirements are met and approved. 2.3 Should Qwest continue to provide Service after the Term, the MRCs will convert to the applicable month-to-month rates under the terms and conditions of the Tariff. 3. SERVICE PROVIDED. 3.1 Qwest will provide and maintain the Service at the locations and in the quantities specified in Exhibit 1. 3.2 Qwest shall notify Customer of the date Service is available for use. In the event Customer informs Qwest that it is unable or unwilling to accept Service at such time, the subject Service will be held available for Customer for a period not to exceed thirty (30) business days from such date ("Grace Period"). If after the Grace Period, Customer still has not accepted Service, Qwest may, at its sole discretion, either: (i) commence with regular monthly billing for the subject Service; or (ii) terminate the subject Service and invoice Customer for any applicable termination charges pursuant to Section 6, including the entire NRCs. 4. CHARGES AND BILLING. 4.1 Customer shall pay the total monthly recurring charges ("MRCs") and nonrecurring charges ("NRCs") specified in Exhibit 1, including both the Service MRCs and NRCs, and the Mileage MRCs and NRCs. Customer shall pay each bill in full by the payment due date on each bill ("Due Date"). Any amount owed and not received by Qwest by the Due Date shall be considered past due and subject to a late charge as specified by Tariff, and if there is no such rate specified by Tariff, the late charge shall be equal to one and one half percent (1~%) per month or the maximum allowed by law, whichever is less. The charges for Service under this Agreement, including any and all discounts to which Customer may be entitled, will be offered and charged to Customer independently from and regardless of Customer's purchase of any customer premises equipment or enhanced services from Qwest. 4.2 Customer qualifies for promotion pricing, and pursuant to such promotion, the Service NRCs specified in Exhibit 1 are waived if: (a) the applicable Service ordered hereunder remains installed for the Minimum Service Period; or (b) the applicable Service is not a newly-installed Service. In the event Customer terminates any newly installed Service prior to completion of the Minimum Service Period, Customer shall be required to repay the amount of the applicable NRC(s) that were waived pursuant to this Section, in addition to any applicable termination liability charges set forth in Section 6 below. 4.3 In addition to the MRCs and NRCs, Customer is responsible for all Taxes assessed in connection with the Service. "Taxes" means any and all applicable foreign, federal, state and local taxes, including without limitation, all use, sales, value-added, surcharges, excise, franchise, commercial, gross receipts, license, privilege or other similar taxes, levies, surcharges, duties, fees, or other tax-related surcharges, whether charged to or against Qwest or Customer, with respect to the Service, but excluding any taxes based on Qwest's net income. 5. SERVICE CHANGES. 5.1 Moves.. Customer may move the physical location of all or part of a Service to another location within a Qwest serving area, provided the following conditions for the move are met: a) Service moved to the new location is provided to Customer by Qwest; b) Customer advises Qwest that Service at the new location replaces existing Service; c) Customer's requests for the disconnection of the existing Service and the installation of Service at the new location are received by Qwest on the same date; d) Customer requests that Qwest install the Service at the new location on or prior to the disconnection date of the existing Service; e) Customer agrees to execute a written amendment evidencing the move; f) Customer © 2003 Qwest Corporation Page 2 Version: 1-28-03 ISDN PRS/Advanced DSS/UAS agrees to pay the MRCs and NRCs for the Service that will be provided at the new location; and g) Customer agrees to pay: (i) if the move is within the same Qwest wire center, $500 per Facility, and (ii) if the move is to a different Qwest wire center, $1,000 per Facility. "Facility" means each ISDN PRS, Advanced DSS, or UAS span or facility. 5.2 Additions to Service. No additional Service or locations may be added following the Effective Date. 6. TERMINATION. 6.1 Qwest may (a) immediately suspend all or any part of the Service, and/or (b) terminate this Agreement (effective after the applicable notice period): (i) for Cause (as defined herein); or (ii) upon written notice if Customer becomes or is declared insolvent or bankrupt or is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer for it. "Cause" means the failure of the other party to perform a material obligation under this Agreement which failure is not remedied, if curable: (a) in the event of a payment default by Customer, upon eight (8) business days written notice, or (b) in the event of any other general default, upon thirty (30) calendar days, written notice to the other party. Customer may terminate this Agreement for Cause. If Customer terminates this Agreement for Cause prior to the conclusion of the Term, Customer shall remain liable for charges accrued but unpaid as of the termination date. 6.2 If termination of this Agreement occurs before Customer's acceptance of the Service, as evidenced by Qwest records, Customer shall pay Qwest those reasonable costs incurred by Qwest through the date of termination, not to exceed the full NRCs. Such charges may include, but are not limited to, all engineering, planning, preparation, materials, supplies, placement, facilities, acquisition, transportation, installation, construction, and labor costs incurred by Qwest, and/or other charges specified by Tariff. 6.3 If Customer terminates this Agreement for any reason other than Cause or Qwest terminates this Agreement under Section 6.1, Customer shall pay termination charges for Service calculated as follows: the sum of the total MRC for Service terminated, multiplied by the number of months remaining in each year of the Term, multiplied by the applicable TLA % for each year as identified in Table 6.3 below: Table 6.3 - Termination Charges Year Month TLA % 1 1-12 100% Minimum Service Period 2 13-24 75% 3-5 25-60 50% For newly-installed Service terminated as contemplated by this Section 6.3 during the Minimum Service Period, Customer shall also pay Qwest all NRCs waived under Section 4.2(a). For example, for a 5-year term terminating on the middle date of the fourth month of the term, and NRCs and MRCs of $50 and $10 respectively, the termination charges shall be calculated as follows: MRCs Year 1:$10 Year 2:$10 Year 3:$10 Year 4:$10 Year 5:$10 NRCs: $50 x 8 months x 100% = $ 80 x 12 months x 75% = $ 90 x 12 months x 50% = $ 60 x12monthsx50%= $ 60 x12monthsx50%= $ 60 $35o Total: $350 + $50 = $400 © 2003 Qwest Corporation Page 3 Version: 1-28-03 ISDN PRS/Advanced DSS/UAS 6.4 A termination charge will be waived when all of the following conditions are met: (a) Customer discontinues Service and signs a new service agreement(s) for any other Qwest-provided service; (b) the new service agreement(s) have a total value equal to or greater than one hundred fifteen percent (115%) of the remaining prorated value of this Agreement (excluding any special construction charges, applicable nonrecurring charges, or previously billed but unpaid MRCs or NRCs); (c) Customer places the orders to discontinue Service and establish new service at the same time; and (d) a minimum service period goes into effect for the new service. "New service" means a newly-installed service(s) placed under a new service agreement(s), or a newly-installed addition(s) to an existing service agreement(s), but it does not include renewals of expiring service agreement(s), renegotiations of existing service agreement(s) or conversions from month-to-month service to contracted service. The waiver does not apply to changes between regulated and unregulated products and services. 7. CREDIT FOR SERVICE INTERRUPTIONS. If Qwest causes an interruption to a particular Service, an out-of-service credit for that particular Service will be applied to Customer's bill as provided in the Tariff. 8.. LIMITATION OF LIABILITY. QWEST, ITS AFFILIATES AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES OR LOST DATA OR COSTS OF COVER ARISING FROM OR RELATED TO THE SERVICE OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF WHETHER QWEST HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE. QWEST TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT SHALL NOT EXCEED THE APPLICABLE OUT-OF-SERVICE CREDIT(S). REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT. 9. DISCLAIMER OF WARRANTIES. QWEST MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED HEREUNDER. QWEST SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ADVICE OR INFORMATION GIVEN BY QWEST, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. 10. INDEMNITY. Customer shall defend, indemnify, and hold harmless Qwest, its affiliates, and contractors from any and all third-party claims, liabilities, costs and expenses, including reasonable attorneys fees, arising from or related to any use, resale, or modification of the Service by Customer. 11. FORCE MAJEURE. Neither party will be liable for any delay or failure to perform its obligations hereunder if such delay or failure is caused by an unforeseeable event (other than a failure to comply with payment obligations) beyond the reasonable control of a party, including without limitation: act of God; fire; flood; labor strikes or unrest; sabotage; fiber cut; power shortage or power failure, e.g., rolling blackouts; material shortages or unavailability or other delay in delivery not resulting from the responsible party's failure to timely place orders therefor; lack of or delay in transportation; government codes, ordinances, laws, rules, regulations or restrictions; war or civil disorder; or acts of terrorism. 12. DISPUTE RESOLUTION. Any dispute arising out of, or relating to, this Agreement which cannot be resolved by the parties will be settled by arbitration, which will be conducted in accordance with the Judicial Arbitration and Mediation Services ("JAMS") Comprehensive Arbitration Rules. The Federal Arbitration Act, 9 U.S.C. Sections 1-16, not state law, shall govern the arbitrability of the dispute. Either party may initiate arbitration by providing to JAMS a written demand for arbitration (with a copy to the other party), a copy of this Agreement and the administrative fee required by JAMS. The written demand for arbitration shall be sufficiently detailed to permit the other party to understand the claim(s) and identify witnesses and relevant documents. Except for the administrative fees in commencing the arbitration, or filing any counterclaims, the costs of the arbitration, including arbitrator's fees, shall be shared equally by © 2003 Qwest Corporation Page 4 Version: 1-28-03 ISDN PRS/Advanced DSS/UAS the parties; provided, however, that each party shall bear the cost of preparing and presenting its own claims and/or defenses (including its own attorneys fees). The arbitration will be held in Denver, Colorado. The arbitrator has no authority to award any indirect, incidental, special, punitive, or consequential damages, including damages for lost profits. The arbitrator's decision shall follow the plain meaning of this Agreement and shall be final, binding, and enforceable in a court of competent jurisdiction. If either party fails to comply with the dispute resolution process set forth herein (including, without limitation, nonpayment of an arbitration award) and a party is required to resort to court proceedings to enforce such compliance, then the noncomplying party shall reimburse all of the costs and expenses incurred by the party requesting such enforcement (including reasonable attorneys fees). Nothing in this Section 12 shall prohibit either party from seeking injunctive relief in any applicable state or federal court. 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. 14. PUBLICITY. Neither party shall, without the prior written consent of the other party: (a) issue any press release or make any other public announcement regarding this Agreement or any relation between Customer and Qwest; or (b) use the name, trademarks, or other proprietary identifying symbol of the other party or its affiliates. Such consent by Qwest may be given in the case of subparagraph (a) only by Qwest's Corporate Communications Department and in the case of subparagraph (b), only by Qwest's Chief Marketing Officer or his designee. Any purported consent by any other person, including any Qwest sales or customer-service representative, is void and of no effect. 15. GENERAL PROVISIONS. 15.1 This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which taken together shall constitute one and the same instrument. Facsimile signatures shall have the same legal effect as original signatures. 15.2 Neither party's failure to insist upon strict performance of any provision of this Agreement shall be construed as a waiver of any of its rights hereunder. 15.3 If any provision of this Agreement is held to be unenforceable, the unenforceable provision shall be construed as nearly as possible to reflect the original intent of the parties, and the remaining provisions shall remain in full force and effect. 15.4 Ail terms and provisions of this Agreement which should by their nature survive the termination of this Agreement shall so survive. 15.5 This is a retail, end-user contract. Customer may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Qwest. Customer may not assign to a reseller or a telecommunications carrier under any circumstances. 15.6 The terms, representations, warranties and agreements of the parties set forth in this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any person or entity that is not a party. 15.7 Except as otherwise provided herein, all required notices shall be in writing, transmitted to the parties' addresses specified in the signature page, Qwest's Customer billing address, or such other addresses as may be specified by written notice, and will be considered given either: (a) when delivered in person to the recipient named on the signature page; (b) when deposited in either registered or certified U.S. Mail, return receipt requested, postage prepaid; or (c) when delivered to an overnight courier service. © 2003 Qwest Corporation Page 5 Version: 1-28-03 ISDN PRS/Advanced DSS/UAS 15.8 This Agreement (including the signature page and Exhibit 1) constitutes the entire agreement between Customer and Qwest with respect to the subject matter hereof, and supersedes all prior offers, contracts, agreements, representations and understandings made to or with Customer by Qwest, whether oral or written, relating to the subject matter hereof. All amendments to this Agreement shall be in writing and signed by authorized representatives of the parties. Qwest may act in reliance upon any instruction, instrument, or signature reasonably believed by Qwest to be genuine. Customer agrees that any employee of Customer who gives any written notice or other instruction in connection with this Agreement has the authority to do so. [SIGNATURE PAGE FOLLOWS] © 2003 Qwest Corporation Page 6 Version: 1-28-03 ISDN PRS/Advanced DSS/UAS IN WITNESS WHEREOF, the parties hereby execute and authorize this Agreement as of the Qwest signature date below. /CI~Y OF COLUMBIA HEIGHTS ~orizedSignature ~ U ~ Authorized Signature Julienne Wyckoff Name Typed or Printed Name Typed or Printed Mayor Title Title March 27, 2003 Date Date Qwest Corporation Address for Notices: Authorized Signature Walter Fehst Name Typed or Printed Address for Notices: Qwest Corporation 1801 California Street, Suite 3800 Denver, Colorado 80202 Facsimile #: (303) 295-6973 Attn: Legal Department City Manager Title March 27, 2003 Date © 2003 Qwest Corporation Page 7 Version: 1-28-03 ISDN PRS/Advanced DSS/UAS Agreement Number: __ EXHIBIT 1 TO QWEST'S GROW WITH QWEST AGREEMENT FOR THE STATE OF MINNESOTA CITY OF COLUMBIA HEIGHTS Customer ISDN PRS *Service Customer Address Circuit ID or BTN Qty. Service (USOC) Service MRC/each NRC/each 590 40th Ave NE - Columbia Heights MN 1 PRS Voice/Data on TI (ZPG65) $775 $I,700.00 55421 Total Service MRCs and NRCs: $775.00 $00.00 Advanced DSS *Service Customer Address Circuit ID or BTN Qty. Service (USOC) Service MRC/each NRC/each Total Service MRCs and NRCs: $ $ UAS *Service Customer Address Circuit ID or BTN Qty. Service (USOC) Service MRC/each NRC/each Total Service MRCs and NRCs: $ $ Mileage-related components and charges if applicable): Mileage Customer Address Circuit ID or BTN Qty. Description (USOC) Mileage MRC/each NRC/each Promotion Expiration Date: April 25, 2003. The pricing contained herein shall only be valid if the Agreement is executed by Customer on or before the Promotion Expiration Date. If this Agreement is not executed by Customer by the Promotion Expiration Date, this Agreement shall be considered null and void, and is not enforceable by either party. * The Service NRCs are waived under certain circumstances pursuant to Section 4.2 of this Agreement. © 2003 Qwest Corporation Page 8 Version: 1-28-03 ISDN PRS/Advanced DSS/UAS