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HomeMy WebLinkAbout2005-192 CCRMember Kathleen Carmody introduced the following resolution and moved its adoption: RESOLUTION NO. 2005-192 RESOLUTION AUTHORIZING THE EXECUTION OF CONTRACTS WITH QWEST CORPORATION FOR PRIMARY RATE ISDN (PRI) SERVICES AT CITY HALL AND POLICE BUILDINGS AND THE TERMINATION OF QWEST CONTRACTS AND SERVICES NO LONGER NEEDED WHEREAS, Qwest Corporation is the provider for voice service at all City buildings; and WHEREAS, the City has implemented a Fiber Optic Network between City Hall, Police, Public Works Garage, and Earle Brown Heritage Center, Improvement Project No. 2005-12; and - WHEREAS, with the Fiber Optic Network the City is able to eliminate Qwest contracts and services no longer needed; and WHEREAS, City staff worked with Qwest to determine contract options; and WHEREAS, sixty-month contracts for PRI services at City Hall and the Police Building and termination of contracts that result in a termination fee of $14,025 is in the best interest of the City. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota, that the Mayor and City Manager are hereby authorized and directed to execute the Qwest Contracts set forth in Attachment A and B, which is attached hereto and incorporated herein by reference, with Qwest Corporation, in the name of the City of Brooklyn Center for PRI Services at City Hall and the Police Building and the termination of Qwest contracts and services no longer needed. BE IT FURTHER RESOLVED that the costs associated with the termination of contracts allocated as follows: General Fund $5,813 Earle Brown Heritage Center Fund $8,212 December 12. 2005 /1/ltA C ate Mayor ATTEST: ~&'Wa) . City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member Kay Lasman and upon vote being taken thereon, the following voted in favor thereof: Myrna Kragness, Kathleen Carmody, Kay Lasman, Diane Niesen, and Mary O'Connor; and the following voted against the same: none; whereupon said resolution was declared duly passed and adopted. RESOLUTION NO. 2005-192 Agreement Number: See Exhibit 1 QWEST ISDN PRS/DSS CUSTOMER APPRECIATION PROMOTION September 26, 2005 - December 23, 2005 Washington - September 28, 2005 - December 23, 2005 Minnesota - October 10, 2005 - December 23, 2005 (THIS PROMOTIONAL OFFER IS NOT SUBJECT TO NEGOTIATION OR REVISION BY CUSTOMER). This Qwest Corporation Promotion Agreement ("Agreement") is between City of Brooklyn Center ("Customer") and Qwest Corporation ("Qwest") and is effective on the date Qwest signs it ("Effective Date"). Qwest will provide, and Customer will purchase, Qwest Integrated Services Digital Network Primary Rate Service ("ISDN PRS") and/or Digital Switched Service ("DSS") with "Advanced" or "Basic" trunks provided under this Agreement (individually and collectively referred to as "Service"). Any Qwest tariff, price list, price schedule, administrative guideline, and/or catalog (hereinafter, whether individually or together, "Tariff') applicable to the Service is incorporated into the Agreement by reference and made a part of the Agreement. The Service will be governed by: (a) the Tariff applicable to the Service; and (b) to the extent a comparable Tariff term or condition does not apply to the Service, the terms and conditions set forth in this Agreement. In the event of a conflict in any term or condition of any documents that govern the provision of the Service hereunder, the following order of precedence will apply in descending order of control: the Tariff, this Agreement, and Qwest records. 1. Scope. 1.1 ISDN PRS. If Customer purchases ISDN PRS, Qwest will 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 PRS service 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). ISDN PRS may be configured as 23 B channels and one D channel, 24 B channels only (248), 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 under Primary Rate Service. ISDN PRS-UAS is digital service 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 the channels configured as: (a) In-only trunking; or (b) Two-way trunking. 1.3 DSS. If Customer purchases DSS, Qwest will provide Customer with the use of (a) a digital DS1 facility, as indicated on Exhibit 1; (b) common equipment to interconnect with Qwest's local exchange switching office; and (c) advanced or basic flat usage trunks and DID trunk termination for access to the local exchange and toll networks. DSS Advanced and Basic operates at a maximum speed of 1.544 Mbps. 1.4 If Customer is a Voice over Internet Protocol ("VoIP") provider, Customer represents and warrants that Service will not be used to terminate or originate VoIP calls with ISDN PRS. If at any time during the Term of this Agreement this representation and warranty is no longer accurate, Customer agrees to notify Qwest and execute a new agreement. 2. Term. 2.1 This Agreement will expire 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 12 months from the date Service is available for use ("Minimum Service Period"). Any Service installed for 12 consecutive months prior to the Effective Date of this Agreement will be deemed to have met the Minimum Service Period. 2.2 Should Qwest continue to provide Service after this Term without a further agreement, the service charges will convert to the applicable month-to-month rate under the terms and conditions of the applicable 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 will 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 30 business days from such date ("Grace Period"). If after the Grace Period, Customer still has not accepted Service, Qwest may either: (a) commence with regular monthly billing.for the subject Service; or (b) cancel the subject. If Customer (c) cancels an order for Service prior to the date Service is available for use, or (d) is unable to accept Service during the Grace Period and Qwest cancels the Service at the end of the Grace Period, the cancellation charges set forth in the Tariff may apply. 4. Charges and Billing. 4.1 Customer will pay the total monthly recurring charges ("MRC") and nonrecurring charges ("NR") specified in Exhibit 1. The MRC will not change during the Term of the Agreement. Customer must pay Qwest all charges by the payment due date on the invoice. Any amount not paid when due will be subject to a late charge as specified by the Tariff, or if there is no such late charge specified in the Tariff, the amount due will be subject to late interest at the lesser of the rate of 1'/2% per month or the highest rate permitted by applicable law. Customer must also pay Qwest any applicable Taxes assessed in connection with Customer's Service. "Taxes" means federal, state and Copyright 0 2005 Qwest. All Rights Reserved. Page 1 v1.092905 CONFIDENTIAL PRS/DSS RESOLUTION NO. 2005-192 local taxes, surcharges, and other similar charges. Qwest may reasonably modify the payment terms or require other assurance of payment based on Customer's payment history or a material and adverse change in Customer's financial condition. 4.2 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 the Customer's purchase of any customer premises equipment or enhanced services from Qwest 4.3 If Service is not available in Customer's switch, interoffice mileage MRCS and NRCs for transport between switches will apply. 5. Service Changes. 5.1 Moves. Customer may move the physical location of all or part of 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; and (f) Customer agrees to pay all applicable rates and charges for the requested move and Service at the new location. 5.2 Additions to Service. Service may be added to this Agreement at the rates specified herein. Qwest will supply such additions to Customer, subject to the following conditions: (a) Customer executes an appropriate amendment for such service no later than December 23, 2005; (b) the additional Service(s) installation must be completed no later than March 3, 2006, unless such installation delay is caused by Qwest; (c) Qwest commercially offers such additions and necessary facilities are technically and practicably available; and (d) a new Minimum Service Period is established for each new addition to Service. 6. Termination. 6.1 Either party may terminate Service and/or this Agreement in accordance with the applicable Tariff or for Cause. "Cause" means the failure of a party to perform a material obligation under this Agreement, which failure is not remedied: (a) in the event of a payment default by Customer, within five days of separate written notice from Qwest notifying Customer of such default (unless a different notice period is specified in the Tariff); or (b) in the event of any other material breach, within 30 days of written notice (unless a different notice period is specified in the Tariff or this Agreement). Customer will remain liable for charges accrued but unpaid as of the termination date. If, prior to the conclusion of the Term, Service is terminated either by Qwest for Cause or by Customer for any reason other than Cause, then Customer will also be liable for a termination charge "Termination Charge". 6.2 If such termination is during the Minimum Service Period, Customer will pay a Termination Charge for the affected Service of 100% of the MRC multiplied by the number of months (or fraction thereof) remaining in the Minimum Service Period, plus 50% of the MRC multiplied by the number of months remaining in the Term after the Minimum Service Period. 6.3 If such termination is after the Minimum Service Period, Customer will pay a Termination Charge for the affected Service of 50% of the MRC multiplied by the number of months (or fraction thereof) remaining in the Term. 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(s); (b) the new service agreement(s) have a total value equal to or greater than 115% of the remaining prorated value of the existing agreement(s) (excluding any special construction charges, applicable nonrecurring charges, or previously billed but unpaid recurring and/or nonrecurring charges); (c) Customer places the orders to discontinue Service and establish new service at the same time (within 30 calendar days of each other if service is in New Mexico); (d) the new service(s) installation must be completed within 30 calendar days of the disconnection of Service, unless such installation delay is caused by Qwest; and (e) a new minimum service period goes into effect, if applicable, when the new service agreement term begins, The waiver does not apply to changes between regulated and unregulated or enhanced products and services. 7. Out-Of-Service Credit. If Qwest causes a Service interruption, an out-of-service credit will be calculated under the state local exchange Tariff. If there is no applicable tariff and the interruption lasts for more than 24 consecutive hours after Qwest receives notice of it, Qwest will give Customer credit calculated by: (a) dividing the monthly rate for the affected Service by 30 days; and then (b) multiplying that daily rate by the number of days, or major fraction, that Service was interrupted. 8. Disclaimer of Warranties. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY QWEST, ITS AFFILIATES, AGENTS, OR CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WILL CREATE ANY WARRANTY. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICE. 9. Limitation of Liability. NEITHER PARTY, ITS AFFILIATES, AGENTS, OR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR REVENUES OR LOST DATA OR COSTS OF COVER RELATING TO THE SERVICE OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED. WITH REGARD TO ANY SERVICE RELATED CLAIM BY CUSTOMER FOR DAMAGES THAT IS NOT LIMITED BY THE PRECEDING SENTENCE, CUSTOMER'S EXCLUSIVE REMEDIES FOR SUCH CLAIM WILL BE LIMITED TO THE APPLICABLE OUT-OF-SERVICE CREDITS, IF ANY. Notwithstanding the foregoing, the limitation of liability in this Section will not apply to: (a) a party's indemnification obligations; and (b) Customer's payment obligation Copyright O 2005 Qwest. All Rights Reserved. Page 2 v1.092905 CONFIDENTIAL PRS/DSS RESOLUTION NO. 2005-192 EXHIBIT 1 QWEST ISDN PRS/DSS CUSTOMER APPRECIATION PROMOTION FOR THE STATE OF MINNESOTA CITY OF BROOKLYN CENTER Customer Customer Appreciation Promotion MRCs & NRCs Service I MRC i NRC I ISDN PRS (DS1 & DS3) $580.00 $0.00 DSS Advanced (DS1 & DS3) $394.00 $0.00 DSS Basic (DS1 & DS3) $640.00 $0.00 Term: 60 months Customer Address 6301 SHINGLE CREEK PKWY, BROOKLYN CENTER, MN Circuit ID or BTN QtV 612-E07- 1 0464, 679 Type of Service & (USOC) ISDN PRS DS1 (ZPG65) I 1 Agreement Number: Total Service Configuration for MRC per ISDN PRS Only Location 23B+D (ZPXJ5) $580.00 I ! I I I I C ~ I 1 1 I I ~ 1 1 J i 1 ~ I I I I I I I I I I I Mileage-related Components and Charges (If applicable). Description Mileage Customer Address I Circuit ID or BTN I (USOC) Qty. MRC/each I I I I i I I I I ~ I Total Mileage MRCs and NRCs: Copyright © 2005 Qwest. All Rights Reserved. Page 5 CONFIDENTIAL Mileage NRC/each v1.092905 PRS/DSS RESOLUTION NO. 2005-192 for all charges under the Agreement, including without limitation, Service charges, Taxes, interest, and termination or cancellation charges. 10. Personal Injury, Death, and Property Damage. Each party will be responsible for the actual, physical damages it directly causes to the other party in the course of its performance under the Agreement, limited to damages resulting from personal injury or death to a party's employees and loss or damage to a party's personal tangible property arising from the negligent acts or omissions of the liable party. 11. Confidentiality; Publicity. Neither party will, without the prior written consent of the other party: (a) issue any public announcement regarding, or make any other disclosure of the terms of, the Agreement or use the name or marks of the other party or its Affiliates; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, the Agreement) the Confidential Information of the other party. Such consent may only be given on behalf of Qwest by its Legal Department. A party may disclose Confidential Information if required to do so by a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under the Agreement, provided that the disclosing party gives the non-disclosing party reasonable prior written notice. "Confidential Information" means any information that is not generally available to the public, whether of a technical, business or other nature and that: (c) the receiving party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party; and/or (d) is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information against unrestricted disclosure. Confidential Information will not include information that is in the public domain through no breach of this Agreement by the receiving party or is already known or is independently developed by the receiving party. 12. Dispute Resolution; Governing Law. The Agreement and the parties' actions under the Agreement will comply with all applicable federal, state, and local laws, rules, regulations, court orders, and governmental agency orders. Any dispute arising out of, or relating to, the Agreement will be settled by arbitration to 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, will govern the arbitrability of disputes. The Agreement will otherwise be governed by the laws of the state where Service is provided, without regard to its choice of law principles. The costs of the arbitration, including the arbitrator's fees, will be shared equally by the parties; provided, however, that each party will bear the cost of preparing and presenting its own claims and/or defenses (including its own attorneys' fees). The venue for arbitration will be designated by the party not initiating the action with the exception of any billing collection disputes, which will be conducted in a location designated by Qwest or Denver, Colorado. The venue location designated must be in a metropolitan area in which JAMS offers its dispute resolution services. A single arbitrator engaged in the practice of law, who is knowledgeable about the subject matter of the Agreement, will conduct the arbitration. The arbitrator is bound to apply and enforce the terms of the Agreement. The arbitrator's decision will be final, binding, and enforceable in a court of competent jurisdiction. If a party is required to enforce compliance with this Section (including nonpayment of an award), then the noncomplying party must reimburse all of the costs and expenses incurred by the party seeking such enforcement (including reasonable attorneys' fees). This provision is not between the parties. 13. Notices. Except as otherwise provided herein, all required notices must be in writing and sent to Qwest at 1801 California Street, Suite 900, Denver, Colorado 80202; Facsimile (888) 778-0054; Attn.: Legal Department, and to Customer at its then current address as reflected in Qwest's records; Attn.: General Counsel or other person designated for notices. Except as otherwise provided herein, all notices will be deemed given: (a) when delivered in person to the recipient named above; (b) three business days after delivered via regular U.S. Mail; (c) when delivered via overnight courier mail; or (d) when delivered by facsimile so long as duplicate notification is also sent in the manner set forth in subsection (b). 14. General. Customer may not assign the Agreement or any of its rights or obligations under the Agreement without the prior written consent of Qwest, which consent will not be unreasonably withheld. Customer may not assign to a reseller or a telecommunications carrier under any circumstances and Customer represents that it will not resell the Service. The Agreement is intended solely for Qwest and Customer and it will not benefit or be enforceable by any other person or entity, including without limitation, Customer's members, end users, customers, or any other third parties who utilize or access the Service or the Qwest network via the Service provided hereunder. If any term of the Agreement is held unenforceable, such term will be construed as nearly as possible to reflect the original intent of the parties and the remaining terms will remain in effect. Neither party's failure to insist upon strict performance of any provision of the Agreement will be construed as a waiver of any of its rights hereunder. All terms of the Agreement that should by their nature survive the termination of the Agreement will so survive. Neither party will be liable for any delay or failure to perform its obligations hereunder if such delay or failure is caused by a Force Majeure Event. "Force Majeure Event" means an unforeseeable event beyond the reasonable control of that party, including without limitation: act of God, fire, flood, labor strike, sabotage, fiber cuts, acts of terror, material shortages or unavailability, government laws or regulations, war or civil disorder, or failures of suppliers of goods and services. The Agreement constitutes the entire agreement between Customer and Qwest with respect to the subject matter hereof, and supersedes all prior oral or written agreements or understandings relating to the subject ,matter hereof. Except for Tariff or Service modifications initiated by Qwest, all amendments to the Agreement must be in writing and signed by the parties' authorized representatives. However, 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. Qwest reserves the right at any time to reject any handwritten change to the Agreement. Copyright @ 2005 Qwest. All Rights Reserved. Page 3 v1.092905 CONFIDENTIAL PRS/DSS RESOLUTION NO. 2005-192 The parties have read, understand and agree to all of the above terms and conditions of this Agreement and hereby execute and authorize this Agreement. City of Brooklyn Center Authorized SignatVe Myrna Kraqness Name Typed or Printed 1Lb~-+-x~Gt~i o ©west Corporation Mayor Title 12/12/05 Date Address for Notices: 6301 Shingle Creek Parkway, Brooklyn Center, MN 55430 Authorized Signature Name Typed or Printed Title Date Promotion Expiration Date: December 23, 2005. The pricing contained herein will 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 will be considered null and void, and is not enforceable by either party. Copyright © 2005 Qwest. All Rights Reserved. Page 4 v1.092905 CONFIDENTIAL PRS/DSS RESOLUTION NO. 2005-192 Agreement Number: See Exhibit 1 QWEST ISDN PRS/DSS CUSTOMER APPRECIATION PROMOTION September 26, 2005 - December 23, 2005 Washington - September 28, 2005 - December 23, 2005 Minnesota - October 10, 2005 - December 23, 2005 (THIS PROMOTIONAL OFFER IS NOT SUBJECT TO NEGOTIATION OR REVISION BY CUSTOMER) his Qwest Corporation Promotion Agreement ("Agreement') is between City of Brooklyn Center ("Customer') and Qwest Corporation ("Qwest") and is effective on the date Qwest signs it ("Effective Date"). Qwest will provide, and Customer will purchase, Qwest Integrated Services Digital Network Primary Rate Service ("ISDN PRS") and/or Digital Switched Service ("DSS") with "Advanced" or "Basic" trunks provided under this Agreement (individually and collectively referred to as "Service"). Any Qwest tariff, price list, price schedule, administrative guideline, and/or catalog (hereinafter, whether individually or together, "Tariff") applicable to the Service is incorporated into the Agreement by reference and made a part of the Agreement. The Service will be governed by: (a) the Tariff applicable to the Service; and (b) to the extent a comparable Tariff term or condition does not apply to the Service, the terms and conditions set forth in this Agreement. In the event of a conflict in any term or condition of any documents that govern the provision of the Service hereunder, the following order of precedence will apply in descending order of control: the Tariff, this Agreement, and Qwest records. 1. Scope. 1.1 ISDN PRS. If Customer purchases ISDN PRS, Qwest will 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 PRS service 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). ISDN PRS may be configured as 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 under Primary Rate Service. ISDN PRS-UAS is digital service 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 the channels configured as: (a) In-only trunking; or (b) Two-way trunking. jr.u3 DSS. If Customer purchases DSS, Qwest will provide Customer with the use of (a) a digital DS1 facility, as indicated on xhibit 1; (b) common equipment to interconnect with Qwest's local exchange switching office; and (c) advanced or basic flat usage nks and DID trunk termination for access to the local exchange and toll networks. DSS Advanced and Basic operates at a maximum speed of 1.544 Mbps. 1.4 If Customer is a Voice over Internet Protocol ("VoIP") provider, Customer represents and warrants that Service will not be used to terminate or originate VolP calls with ISDN PRS. If at any time during the Term of this Agreement this representation and warranty is no longer accurate, Customer agrees to notify Qwest and execute a new agreement. 2. Term. 2.1 This Agreement will expire 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 12 months from the date Service is available for use ("Minimum Service Period"). Any Service installed for 12 consecutive months prior to the Effective Date of this Agreement will be deemed to have met the Minimum Service Period. 2.2 Should Qwest continue to provide Service after this Term without a further agreement, the service charges will convert to the applicable month-to-month rate under the terms and conditions of the applicable 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 will 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 30 business days from such date ("Grace Period"). If after the Grace Period, Customer still has not accepted Service, Qwest may either: (a) commence with regular monthly billing for the subject Service; or (b) cancel the subject. If Customer (c) cancels an order for Service prior to the date Service is available for use, or (d) is unable to accept Service during the Grace Period and Qwest cancels the Service t the end of the Grace Period, the cancellation charges set forth in the Tariff may apply. Charges and Billing. f 1 Customer will pay the total monthly recurring charges ("MRC") and nonrecurring charges ("NRC") specified in Exhibit 1. The MRC ill not change during the Term of the Agreement. Customer must pay Qwest all charges by the payment due date on the invoice. Any amount not paid when due will be subject to a late charge as specified by the Tariff, or if there is no such late charge specified in the Tariff, the amount due will be subject to late interest at the lesser of the rate of 1'V2% per month or the highest rate permitted by applicable law. Customer must also pay Qwest any applicable Taxes assessed in connection with Customer's Service. "Taxes" means federal, state and Copyright @ 2005 Qwest. All Rights Reserved. Page 1 v1.092905 CONFIDENTIAL PRS/DSS RESOLUTION NO. 2005-192 local taxes, surcharges, and other similar charges. Qwest may reasonably modify the payment terms or require other assurance of payment based on Customer's payment history or a material and adverse change in Customer's financial condition. 4.2 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 the Customer's purchase of any customer premises equipment or enhanced services from Qwest. 4.3 If Service is not available in Customer's switch, interoffice mileage MRCs and NRCs for transport between switches will apply. 5. Service Changes. 5.1 Moves. Customer may move the physical location of all or part of 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; and (f) Customer agrees to pay all applicable rates and charges for the requested move and Service at the new location. 5.2 Additions to Service. Service may be added to this Agreement at the rates specified herein. Qwest will supply such additions to Customer, subject to the following conditions: (a) Customer executes an appropriate amendment for such service no later than December 23, 2005; (b) the additional Service(s) installation must be completed no later than March 3, 2006, unless such installation delay is caused by Qwest; (c) Qwest commercially offers such additions and necessary facilities are technically and practicably available; and (d) a new Minimum Service Period is established for each new addition to Service. 6. Termination. 6.1 Either party may terminate Service and/or this Agreement in accordance with the applicable Tariff or for Cause. "Cause" means the failure of a party to perform a material obligation under this Agreement, which failure is not remedied: (a) in the event of a payment default by Customer, within five days of separate written notice from Qwest notifying Customer of such default (unless a different notice period is specified in the Tariff); or (b) in the event of any other material breach, within 30 days of written notice (unless a different notice period is specified in the Tariff or this Agreement). Customer will remain liable for charges accrued but unpaid as of the termination date. If, prior to the conclusion of the Term, Service is terminated either by Qwest for Cause or by Customer for any reason other than Cause, then Customer will also be liable for a termination charge "Termination Charge". 6.2 If such termination is during the Minimum Service Period, Customer will pay a Termination Charge for the affected Service of 100% of the MRC multiplied by the number of months (or fraction thereof) remaining in the Minimum Service Period, plus 50% of the MRC multiplied by the number of months remaining in the Term after the Minimum Service Period. 6.3 If such termination is after the Minimum Service Period, Customer will pay a Termination Charge for the affected Service of 50% of the MRC multiplied by the number of months (or fraction thereof) remaining in the Term. 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(s); (b) the new service agreement(s) have a total value equal to or greater than 115%0 of the remaining prorated value of the existing agreement(s) (excluding any special construction charges, applicable nonrecurring charges, or previously billed but unpaid recurring and/or nonrecurring charges); (c) Customer places the orders to discontinue Service and establish new service at the same time (within 30 calendar days of each other if service is in New Mexico); (d) the new service(s) installation must be completed within 30 calendar days of the disconnection of Service, unless such installation delay is caused by Qwest; and (e) a new minimum service period goes into effect, if applicable, when the new service agreement term begins. The waiver does not apply to changes between regulated and unregulated or enhanced products and services. 7. Out-Of-Service Credit. If Qwest causes a Service interruption, an out-of-service credit will be calculated under the state local exchange Tariff. If there is no applicable tariff and the interruption lasts for more than 24 consecutive hours after Qwest receives notice of it, Qwest will give Customer credit calculated by: (a) dividing the monthly rate for the affected Service by 30 days; and then (b) multiplying that daily rate by the number of days, or major fraction, that Service was interrupted. 8. Disclaimer of Warranties. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY QWEST, ITS AFFILIATES, AGENTS, OR CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WILL CREATE ANY WARRANTY. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE SERVICE. 9. Limitation of Liability. NEITHER PARTY, ITS AFFILIATES, AGENTS, OR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR REVENUES OR LOST DATA OR COSTS OF COVER RELATING TO THE SERVICE OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED. WITH REGARD TO ANY SERVICE RELATED CLAIM B CUSTOMER FOR DAMAGES THAT IS NOT LIMITED BY THE PRECEDING SENTENCE, CUSTOMER'S EXCLUSIVE REMEDIES FOR SUCH CLAIM WILL BE LIMITED TO THE APPLICABLE OUT-OF-SERVICE CREDITS, IF ANY. Notwithstanding the foregoing, the limitation of liability in this Section will not apply to: (a) a party's indemnification obligations; and (b) Customer's payment obligation Copyright O 2005 Qwest. All Rights Reserved. Page 2 v1.092905 CONFIDENTIAL PRS/DSS RESOLUTION NO. 2005-192 Agreement Number: Term: 60 months Customer Address 6645 HUMBOLDT AVE N, BROOKLYN CENTER, MN 1 4 EXHIBIT 1 QWEST ISDN PRS/DSS CUSTOMER APPRECIATION PROMOTION FOR THE STATE OF MINNESOTA CITY OF BROOKLYN CENTER Customer Customer Appreciation Promotion MRCs & NRCs I Service I MRC NRC I ISDN PRS (DS1 & DS3) $580.00 $0.00 DSS Advanced (DS1 & DS3) $394.00 $0.00 DSS Basic (DS1 & DS3) $640.00 $0.00 Circuit ID Type of Service Total Service or & Configuration for MRC per BTN Qty. (USOC) ISDN PRS Only Location 612-E07- 1 ISDN PRS DS1 (ZPG65) 23B+D (ZPXJ5) $580.00 7395,837 1 1 1 1 1 Mileage-related Components and Charges (If applicable). Description I Mileage Customer Address I Circuit ID or BTN (USOC) l Qty. MRC/each I I i I I I 'Total Mileage MRCs and NRCs: I Copyright @ 2005 Qwest. All Rights Reserved. Page 5 CONFIDENTIAL Mileage NRC/each I I I v1.092905 PRS/DSS RESOLUTION NO. 2005-192 for all charges under the Agreement, including without limitation, Service charges, Taxes, interest, and termination or cancellation charges. 10. Personal Injury, Death, and Property Damage. Each party will be responsible for the actual, 'physical damages it directly causes to the other party in the course of its performance under the Agreement, limited to damages resulting from personal injury or death to a party's employees and loss or damage to a party's personal tangible property arising from the negligent acts or omissions of the liable party. 11. Confidentiality; Publicity. Neither party will, without the prior written consent of the other party: (a) issue any public announcement regarding, or make any other disclosure of the terms of, the Agreement or use the name or marks of the other party or its Affiliates; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, the Agreement) the Confidential Information of the other party. Such consent may only be given on behalf of Qwest by its Legal Department. A party may disclose Confidential Information if required to do so by a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under the Agreement, provided that the disclosing party gives the non-disclosing party reasonable prior written notice. "Confidential Information" means any information that is not generally available to the public, whether of a technical, business or other nature and that: (c) the receiving party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party; and/or (d) is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information against unrestricted disclosure. Confidential Information will not include information that is in the public domain through no breach of this Agreement by the receiving party or is already known or is independently developed by the receiving party. 12. Dispute Resolution; Governing Law. The Agreement and the parties' actions under the Agreement will comply with all applicable federal, state, and local laws, rules, regulations, court orders, and governmental agency orders. Any dispute arising out of, or relating to, the Agreement will be settled by arbitration to 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, will govern the arbitrability of disputes. The Agreement will otherwise be governed by the laws of the state where Service is provided, without regard to its choice of law principles. The costs of the arbitration, including the arbitrator's fees, will be shared equally by the parties; provided, however, that each party will bear the cost of preparing and presenting its own claims and/or defenses (including its own attorneys' fees). The venue for arbitration will be designated by the party not initiating the action with the exception of any billing collection disputes, which will be conducted in a location designated by Qwest or Denver, Colorado. The venue location designated must be in a metropolitan area in which JAMS offers its dispute resolution services. A single arbitrator engaged in the practice of law, who is knowledgeable about the subject matter of the Agreement, will conduct the arbitration. The arbitrator is bound to apply and enforce the terms of the Agreement. The arbitrator's decision will be final, binding, and enforceable in a court of competent jurisdiction. If a party is required to enforce compliance with this Section (including nonpayment of an award), then the noncomplying party must reimburse all of the costs and expenses incurred by the party seeking such enforcement (including reasonable attorneys' fees). This provision is not intended to deprive a small claims court or state agency of lawful jurisdiction that would otherwise exist over a claim or controversy between the parties. 13. Notices. Except as otherwise provided herein, all required notices must be in writing and sent to Qwest at 1801 California Street, Suite 900, Denver, Colorado 80202; Facsimile (888) 778-0054; Attn.: Legal Department, and to Customer at its then current address as reflected in Qwest's records; Attn.: General Counsel or other person designated for notices. Except as otherwise provided herein, all notices will be deemed given: (a) when delivered in person to the recipient named above; (b) three business days after delivered via regular U.S. Mail; (c) when delivered via overnight courier mail; or (d) when delivered by facsimile so long as duplicate notification is also sent in the manner set forth in subsection (b). 14. General. Customer may not assign the Agreement or any of its rights or obligations under the Agreement without the prior written consent of Qwest, which consent will not be unreasonably withheld. Customer may not assign to a reseller or a telecommunications carrier under any circumstances and Customer represents that it will not resell the Service. The Agreement is intended solely for Qwest and Customer and it will not benefit or be enforceable by any other person or entity, including without limitation, Customer's members, end users, customers, or any other third parties who utilize or access the Service or the Qwest network via the Service provided hereunder. If any term of the Agreement is held unenforceable, such term will be construed as nearly as possible to reflect the original intent of the parties and the remaining terms will remain in effect. Neither party's failure to insist upon strict performance of any provision of the Agreement will be construed as a waiver of any of its rights hereunder. All terms of the Agreement that should by their nature survive the termination of the Agreement will so survive. Neither party will be liable for any delay or failure to perform its obligations hereunder if such delay or failure is caused by a Force Majeure Event. "Force Majeure Event" means an unforeseeable event beyond the reasonable control of that party, including without limitation: act of God, fire, flood, labor strike, sabotage, fiber cuts, acts of terror, material shortages or unavailability, government laws or regulations, war or civil disorder, or failures of suppliers of goods and services. The Agreement constitutes the entire agreement between Customer and Qwest with respect to the subject matter hereof, and supersedes all prior oral or written agreements or understandings relating to the subject matter hereof. Except for Tariff or Service modifications initiated by Qwest, all amendments to the Agreement must be in writing and signed by the parties' authorized representatives. However, 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. Qwest reserves the right at any time to reject any handwritten change to the Agreement. Copyright O 2005 Qwest. All Rights Reserved. Page 3 v1.092905 CONFIDENTIAL PRS/DSS RESOLUTION NO. 2005-192 The parties have read, understand and agree to all of the above terms and conditions of this Agreement and hereby execute and authorize this Agreement. City of Brooklyn Center Authorized Signature// Owest Corporation Myrna Kraqness Name Typed or Printed Mayor Title 12/12/05 Date Address for Notices: 6301 Shingle Creek Parkway, Brooklyn Center, MN 55430 Authorized Signature Name Typed or Printed Title Date Promotion Expiration Date: December 23, 2005. The pricing contained herein will 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 will be considered null and void, and is not enforceable by either party. 1 Copyright O 2005 Owest. All Rights Reserved. Page 4 v1.092905 CONFIDENTIAL PRS/DSS