Prison Phone Justice

STATE OF OREGON
DEPARTMENT OF ADMINISTRATIVE SERVICES
INFORMATION RESOURCES MANAGEMENT DIVISION
TELECOMMUNICATIONS SECTION

CONTRACT FOR INMATE AND PAVPHONE EQUIPMENT AND SERVICES AND
ASSOCIATED INMATE MONITORING & RECORDING EQUIPMENT AND
SERVICES

July 1, 2000

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INTERAGENCYAGREEMENTBETWt~N
THE OREGON STATE DEPARTMENT OF ADMINISTRATIVE SERVICES
AND THE OREGON UNIVERSITY SYSTEM INTELCOM
.......

AUTHORITY AND INTENT:
Pursuant to OAR 125-022-0100 and the relevant requirements ofORS 190.110, the parties identified below desire to
enter into an Interagency Agreement as further described herein.
This Interagency Agreement is between the Oregon Department of Administrative Services, Infonnation Resources
Management Division (DAS IRMD), and the Oregon University System Interinstitutional Teleconununications
Committee (OUS INTELCOM). This Agreement identifies and describes mutually agreeable temlS and conditions
under which DAS IRMD shall grant OUS INTELCOM the delegated authority necessary to allow OUS INTELCOM to
effectively and efficiently manage and administer its stake in the US West Conununications (USWC) Payphone and M·
88 contracts, centrally executed and administered by DAS IRMD, and under which OUS lNTELCOM must procure
certain telecommunications services. This delegation does not relieve DAS IRMD ofits duties and responsibilities
under ORS 283.500 (SB 994) nor does it grant OUS INTELCOM the authority to pursue its own separate contracts for
said telecomnll.mications services outside ofDAS IRMD's central contracting authority, unless granted by DAS lRMD
under separate delegation, but instead is intended to relieve the parties ofwmecessary, inefficient contract
administration, order processing and related procedural activities, while maintaining the benefit ofleveraged purchasing
and affording the parties increased efficiency and accountabil~ty during the terms of the respective USWC conlracts.
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BACKGROUND:
Senate Bil1994, passed by the 1995 Oregon Legislature and now incorporated into Oregon statute under ORS 283.500,
provided DAS with the central purchasing and contracting authority to enter into contracts for teleconununications
services on behalfofall State agencies including OUS. The USWC services currently in use by DAS and OUS are
either covered by an existing Master Agreement (referred to as the M-88 contract) administered by DAS IRMD, or shalt
be included prior to such delegation to OUS.

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The current M-88 contract is due to expire July 17, 2000. DAS IRMD has negotiations underway with USWC to renew
the M-88 contract through December 31, 2002. Additionally, DAS IRMD has completed negotiations with USWC for
statewide payphone services, which has resulted in a contract separate from the M-88 contract. The Payphone contract
covers all OUS locations including those not currently in USWC territory. OUS INTELCOM is participating and has
p~rticiJ?ated.~ these~egotiations for the particular USWC telecommunications services in place at eaeh oCthe OUS
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under whicj; D/.:'

11~MD

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tJidElli'th~ClUnleni1M0l88Irontractand
contract administration processes used to date, all OUS requests or orders to
'6JSW(DJforne.w.serV~ce-,.i'emova1 ofservice or other changes in service must route through DAS IRMD Cor review and

approval. Additionally, the existing M-88 contracting process includes a set ofMaster Terms and Conditions (the
Master Contract); a subset ofSchedules identifying and describing specific types ofservice and the associated terms,
conditions, and pricing applicable to the specific servicej and a further subset ofSite Agreements Cor each Schedule that
identify the quantity and location ofthe services installed. All of these contract documents, and the related procedures
and processes to establish and maintain them, require review, approval and administrative oversight \?y DAS IRMD.
DAS IRMD, OUS lNTELCOM and USWC desire to revise these cumbersome and inefficient contract administration
processes and procedures. For both the new Payphone and M-88 contracts, it is the intent ofall parties to reduce the
paperwork and the administrative processes and procedures associated with the administration of these contracts. This
Interagency Agreement is intended to accomplish those objectives.
AGREEMENTS:

Regarding the administration and execution of the new USWC Payphone and M-88 contracts with DAS, DAS lRMD
and OUS INTELCOM agree to the following:
1. OUS entities may place service orders or requests directly with USWC without having to submit said orders or
requests to DAS IRMD for review and approval. Such orders or requests include repair or maintenance requests and
orders for new seryice, removal ofexisting service or any other change in service. Additionally, OUS representatives
will continue to interact directly with USWC on all billing or system administration issues as USWC will continue to
bill each campus directly for services installed at the respective campus.

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DAS IRMD & OUS INTELCOIvl
INTERAGENCY AGREEMENT
USWC PAYPHONE & MASTER AGREEMENT
Page 2

2. OUS INTELCOM agrees to keep DAS IRMD informed ofsuch orders or requests on a quarterly basis.
3. OUS INTELCOM agrees to report contractor performance issues to DAS IRMD and DAS lRMD further agrees to
escalate such issues to USWC should said issues be identified as failure to comply with the tenns and conditions of the
respective contracts. DAS IRMD agrees to keep OUS INTELCOM infonned of such escalation and any resolution
efforts on the part ofUSWC.

DAS IRMD agrees to keep OUS INTELCOM informed ofany changes or amendments to the respective contracts
and any plans for renewal or extension upon expiration of the initial term of the contracts.

4.

5. OUS INTELCOM agrees to provide DAS IRMD and USWC with a list of the primary contacts at each OUS
campus for purposes of service order, repair administration or other direct contact between the respective OUS
campus and USWC. (See Attachment 1) OUS INTELCOM further agrees to identify a Single Point of Contact
within OUS INTELCOM, who shall be Tim Johnston, PSu. to function as liaison between OUS and DAS IRMD
for the purposes of maintaining the list ofcampus contacts, reporting contractor performance issues, and fulfilling
other contract administration requirements. The DAS IRMD contact shall be Randy Wells. Modifications,
additions or deletions to Attachment 1 shall be made by written notice from OUS INTELCOM contact to DAS
IRMD contact. All such changes shall be made prior to effective date when possible to do so.
Either party to this Agreement may change the identified Single Point ofContact through written notice to the otIter
party.
This Interagency Agreement shall become effective upon the earliest effective date of the respective USWC contracts
and shall remain in effect through the term of said USWC contracts, unless cancelled or otherwise terminated by mutual
agreement of the parties.

FOR DAS IRMD:

Don Mazziotti, Stat ofOregon CIO

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Date

For Legal Sufficiency:

~IU<~
Asst. Att mey General

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lNTBRAGBNCY AGR.EID.1ENT
USWCPAYPHONE & MASTER AGR.EEMENT

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A'ITACRMENT 1:1 OUS CAMPUS CONTACT LIST

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The following are the primaIy contacts at each of the OUS ~ for purposes of service order, repair or other direct contact between the
respective campus and USWC.

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INsTITUTION

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CONTACXPERSON
Dave Barta
Tim Jolmston
ShayDakan
Darin Silbernagel
Ron Wiegel
Kevin Talbert
MarvinTaylor
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Directoft Telecom $ervices
Director. Tclecomtnunications
Director, Tel~etworkEngineering
W. Finance & A~istration
Interim DirectOr, Computing Services
ChiefInformationiOfficer
Direc1nr, Com.pu~ Center

PHONE
541/346-1012

E-MAIL

S03n2SM2176
S41n13M3500
S03/83~817S

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Johnstont@pdx".edg
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OUS INTELCOM Single Point ofCon1act: Tim Jobnsron, PSU;

DAS 1RMD Single Point of Contact

Randy Wens, Con~Administtator
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This CONTRACT FOR INMATE AND PAYPHONE EQillPMENT AND
SERVICES AND ASSOCIATED INMATE MONITORING AND RECORDING
EQillPMENT AND SERVICES (this "Contract") is made as of July 1,2000, by and between
U S WEST COMMUNICATIONS, INC., a Colorado corporation ("Contractor") and the
STATE OF OREGON, acting by and through its DEPARTMENT OF ADMINISTRATIVE
SERVICES ("DAS" or "DAS IRMD"). Throughout this Contract, DAS or Contractor may
individually be referred to as "Party" or together as "Parties."

RECITALS
A.
Pursuant to Exemption Order 338 dated June 20, 1997, State issued a Solicitation
Number 10704001-98 dated June 25, 1998, amended by Addendum No.1 dated June 25, 1998
and Addendum No.2 dated July 14, 1998 (the "Solicitation") whereby State sought proposals for
contracts for telephone services for all Pay Phones located on facilities owned or operated by
State and all Inmate Phones located at facilities operated by the Oregon Department of
Corrections (prison and Correctional Facilities), Oregon Mental Health Division (State Hospitals
and Treatment Facilities), and Oregon Youth Authority (Oregon Youth Correctional/Educational
Facilities), including, but not limited to, Pay Phones at Emergency Roadside and Public Access
Areas owned or operated by various State Entities.

B.

Contractor is in the business of providing payphone service within the meaning of
Section 276 of the Telecommunications Act of 1996. In response to the Solicitation, Contractor
submitted its .Proposal to provide certain payphone setyices to State.
This Contract embodies th~ terms and conditions mutually acceptable"to the
Parties for the provision of the Services defined below.

C.

AGREEMENT
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, the Parties hereby agree as follows:

PART I
1.1

DEFINITIONS

DEFINITIONS

As used in this Contract, the capitalized terms contained in Appendix 1.1 shall have the
respective meanings set forth therein.
1.2

CERTAIN RULES OF INTERPRETATION

The name assigned to this Contract and the part and section captions used herein are for
convenience of reference only and shall not affect the interpretation or construction hereof.
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Unless otherwise specified, (a) the tenns "hereof," "herein" and similar tenns refer to this
Contract as a whole and (b) references herein to "Parts" or "Sections" refer to parts or sections of
this Contract. The use of words in the singular or plural, or with a particular gender, shall not
limit the scope or exclude the application of any provision of this Contract to such Person or
Persons or circumstances as the context otherwise pennits. Time is of the essence in the
perfonnance of the Parties' respective obligations. Unless otherwise specified, all references to
money amounts are to U.S~ currency. All references, if any, to generally accepted accounting
principles means to GAAP and all accounting tenns, if any, not otherwise defined in this
Contract have the meanings assigned to them in accordance with GAAP.

1.3

APPENDICES, EXHIBITS AND ATTACHMENTS

The appendices, exhibits and schedules to this Contract attached to this Contract are
incorporated by this reference into this Contract.

1.4

--,
. .'

CONTRACTOR AND SUBCONTRACTORS

State agrees that portions of the Services perfonned under this Contract will be
perfonned by Contractor (local phone service) and portions will be perfonned by approved
Subcontractors. State and all applicable State Entities hereby grant to Contractor, subject to the
regulations of the FCC, the authority to act on behalf of the State and all applicable State Entities
to select and contract with the carriers that provide interLATA calls from the Pay Phones and
Inmate Phones, subject to the approval of State. As of the date hereof, the Subcontractors under
this Contract are as follows: (i) Century Tel (intraLATA and local phone service);(ii) Sprint~
United (intraLATA and local phone service); (iii) GTE (intraLATA and local phone service);
.
(iv) AT&T (international, interLATA,O+ and l+phone service); (v)DictaPhone,Inc. .
. (M:onitoring and Recording Systems, inmate call recording and '7rackDown"call detail
,l11aIl~g~Ill~Ilt~y$~Ill);aIld.(yj) T..:NMl'.lX,JIl<::.(llat'd.w~~d.$Qft:w~for:imlu.l.tecallCQIltrQl
system). The foregoing notwithstanding, Contractor may provide any of the Services currently
contemplated to be subcontracted to the Subcontractors described above, provided that the rates,
prices and charges for such Services are no higher than those permitted under Se(!tion 3.1 below
and that Contractor satisfies all of its other obligations under this Contract with respect to the
provision of the Services. Any substitute or additional Subcontractors will be listed on the
attached Appendix 6.13 in accordance with the provisions of Section 6.13 below.

PART II
SERVICES
2.1

SERVICES

Contractor agrees to provide to State and all State Entities, and State agrees to purchase
from Contractor for State and all State Entities, the services described in Appendix 2.1 attached
hereto (individually, a "Service", and colle,Gtiye,lY.,.Jhe "Seryices"); provided, however, that this

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GtaiitifPass,'Oregon (Rogue Valley Youth COrrectional Facility), and Albany, Oregon (Oak
Creek Youth Correctional FacilltYJ;"iinaercontract between OYA'ana'Alpha1'etec6ili:lnc~
unless and until the same are determined to be not valid or are otherwise terminated.
Without limiting any of the r~uirements contained in Appendix 2.1, Contractor agrees
to: (a) P~y'i9~local andl()ngdistan?f (intrastate intraLATA, intrastatei~terI,.~TA., interstate,
and internatibnal) telephone service fot':aIlrayPbon~s andIP~tpPhoil~§atContractot's
e~pens~~ (b) install;maiptain~andk~~'lif~pemt1oitanp:Jc~P'one~:a:~tt;i'it;Phona:'
specified in A.ppendix 2.1, at
C6iitractot,go'exp~riS'e; (c) insmras'"re<rUirea'aiia·matntai~:Mgnltqpng.~~tl~.ecording Syste~s at
~rState correctional facilities (exdulling OYATafrio cosfto vOC or State; (d) provide 'initial
new product and refresher f.iiiirii,iig't~:BP9'personnel as reasonably requested by DOC on the
operation of Monitoring ana Recoding Systems at Contractor's expenSe; (e) service andrepaif all
Pay Phones and Inmate Phones and associated equipmentat Contractor's expense; (f) collect and
count revenue from each Pay Phone installed; (g) provide alphabeticaIand classified directori~s,
when appropriate; (h) retain ownership of all Pay Phones and Inmate Phones, Monitoring and C
Recording Systems, associated equipment, station wiring, hardware, software and enclosures
provided by Contractor; (i) provide such personal background data as is required by DOC on any
Contractor personnel intending to enter a correctional facility; (j) promptly report to State any
manufacturer price reductions, model chan es, and roduct substitution where substitution price
is a factor; (k)

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pdate'
us inconnection with the Services ren . •...• to
facilities,
including, lJut not limited to,.~e:MoIlitoringand Recording Syste~,i~o'~cQmpatiblewith the
most current version of MicrOsoft Windows operating systelll, provided the same after such
upgrades is compatible with the existing systems utilized by DOC, including but not limited to,
aneXisti.ri.gaatastorage~anaproViaeori.=sffeiiiiriiri.gloaJI··JjOCpersoiiiierregaroirig·such

upgraded software and hardware.
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uneconomical to Contractor. The foregoing notwithstanding, G<iriffiictorshall(i) remo"e~ny
ImfiatePhone requested to he removed by DOC, and (ii) remove anyP~y Phone requ~sted to be
removed by State. Before Contractor is required to install any new'l>ay
or
Phone,
Contrnctormust'fifStreceiVewtitteIl"authorizatioil from Slate;,
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Contractor may request that State consider allowing Contractor to remove certain Pay
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Phones that Contractor clai,ms ~o be uneconomical to Contractor; provided, however, that this H.( 'vY/
provision does not create any right in Contractor to have any such Pay Phone removed, and the!" /
decision of whether to remove such Pay Phones shall be made by State in its sole discretion.

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All Equipment, including, but not limited to, all Inmate Phones and Pay Phones, shall be
new or "Like-New", except for Equipment already in place and previously installed under prior
contracts between State and Contractor (provided such previously installed equipment is in Y2K
Compliance). Contractor agrees that all of the Equipment used by Contractor or its
Subcontractors shall be identical, equivalent or better to that equipment described in the
Proposal, unless State consents in writing to any different equipment, which consent will not be
unreasonably withheld.
Contractor shall list on all Pay Phones and Inmate Phones the written iIrrormation (e.g.,
c::()il1l'a.~,.p~c::ril>~1()l!gc.I,i~~~C::~~1',()P!i()Il.fOl'c::ll1l~I:'t()llS~Qt:h~J:'JQIlg<li~~~<;J)J:'li~r,. ~.

access to dial tone, emergency services, directory assistanCe, and hearing impaired serVices)
which is normal and customary in the industry to be listed on such Pay Phones and Inmate
Phones, provided, however, that any information listed on any Inmate Phone is subject to DOC's
prior written approval. Parties agree that certain written information is not applicable on Inmate
Phones.
The T-NETIX Inmate Calling System and the Monitoring and Recording Services are
more fully described in Sections 2.1.2.2 and 2.1.2.3 of Appendix 2.1, which shall be delivered to
DOC and held by it as information or records of DOC entitled to confidential treatment under
DRS 192.502(5). Unless required by law to do so, Contractor agrees to not disclose the
information contained in Sections 2.1.2.2 and 2.1.2.3 of Appendix 2.1 without the prior written
consent of DOC. State or any State Entity may disclose the information for any purpose,
including, but not limited to, establishing the foundation for the admissibility of evidence.
Contractor agrees that all of the Services shall be Turn Key.

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State may cancel, by written notice mailed not fewer than sixty (60) days prior to
scheduled delivery, any purchase or orders for any new Inmate Phones or new Pay Phones
placed under this Contract without penalty.

2.2

ORDERS FOR ADDITIONAL SERVICES

;A}Vri~enauthorizationtoimplementAdditional Services (a'~Written Authorization"),
delivered ~y:State to the'>Conffactof~sliaIrbeused'toCord.~(~~lli!!~n~:§'~fY!,f~~'1?¢yond'th:~firtitial

SerVice~"ana;to'request;any'chang€s'Oe~adition§tO'fhetiS~tvic~s:"~SticH'WnttenAuthon~ation

shall specify the quantity, servicedat~s, (1l1~ ,other 0IJera~o~(l} ParaIllet~~s()fthe requested
Services. State1l1~Y.require,C~ntrac!()f)~asslstin'theprepari~on'ofsuchWritten '
Authorizations'by providing necessarjServices description, operating parameters, and/or
interface information to the extent that Contractor and SUbcontra<:~()J]"faI!provide such
assistance. 'This assistance shall be provided by Contractor at noadde<Icost to State. Each such
Written Authorization shall be approved and issued only by State.

2.3

SCOPE OF WORK

The work contemplated under this Contract shall include all labor, materials, station
wiring, transportation, equipment and other activities for, and reasonably incidental to, making
the Services operational. It also includes furnishing, installing, interfacing" operating,
maintaining, and billing (if applicable) the Services described in this Contract and the
appendices, exhibits and other attachments hereto. Silence of the Contract regarding delivery of
Services normally offered with respect to the deliverables requested in the Contract does not
constitute any waiver of Services by State: It is understood by the Parties that State is
responsible for providing and supplying conduit and cable to its own buildings.

2.4

NEW TECHNOLOGY

When new technology, either equipment or services related to the Services, becomes
available, Contractor agrees to notify State within a reasonable time after such availability so that
State can consider whether such new technology should be utilized by Contractor in rendering
the Services. Sta~e shall have the option, in State's sole discretion, to have such new technology
utilized by Contractor to render the Services as soon as practical or at such later time as State
shall determine; provided that the Parties mutually agree that such new technology does not
materially increase Contractor's costs of rendering the Services to be affected by such
technology. For purposes of the Section, a material increase is an aggregate of $500 or more.
In considering whether or not to extend the term of this Contract after the Initial Term,
State may consider the need for utilizing new technology during any such Extended Term. If the
use of such new technology would materially increase the costs of Contractor rendering the
Services, and State wishes to utilize the same and State elects, in its sole discretion, to pursue the
same, the Parties will attempt in good faith to negotiate changes to this Contract to allow the use
of such new technology. The foregoing notwithstanding, any such new technology provided at
DOC facilities must be compatible with any existing Recording Media or other information
related to the Services and must result in any Recording Media related to Inmate Phone Services
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being admissible in any legal proceeding involving State or any State Entity. In addition, any
change to this Contract requiring the use of new technology at DOC facilities must provide for
initial new product and refresher training for DOC personnel in the use of the technology, at
Contractor's expense. The Contract change must also provide for the installation and
maintenance of any new equipment and for any specialized environmental requirements related
thereto. Responsibility for such specialized environmental requirements shall be agreed upon by
the Parties.

2.5

AVAILABILITY OF SERVICES

The Services to be provided under this Contract will be made available by Contractor to
State and all State Entities as directed by State.

PART III
RATES AND FEES
3.1

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RATES

The users of the Pay Phones and the Inmate Phones (which in the case of collect calls,
shall be the recipients of the calls) shall be responsible for all costs'and expenses of the use of
Pay Phones or Inmate Phones, and neither State nor any State Entity shall have any liability for
the same.

The rates, prices and charges for the Services as described in Appendix 3.1 shall be the
maximum rates, prices and charges that may apply during the Initial Term 'of this Contract.
Upon mutual agreement of the Partie.s and at the end of the Initial Term of this Contract, such
rates, prices and charges shall be reviewed by State and Contractor to determine if they should be
modified based upon, among other factors, technology changes, fees payable under the next
section, capital investment by Contractor, and revenues and profitability to Contractor of the
operation of the Pay Phones and Inmate Phones.
3.2

FEES

In consideration of Contractor being given the opportunity under this Contract to render
the Services and State's agreements contained in this Contract, Contractor shall pay to DOC the
fees described in Appendix 3.2 (the "Fees"). Except for the Fees payable by Contractor to
DOC, Contractor shall not be liable to State or any State Entity for any commissions or fees with
respect to the Services rendered by Contractor under this Contract.
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Contractor will pay the Fees directly to DOC, and shall notify DAS IRMD in writing of
the amount and date of each such payment when the same is paid by Contractor. The address for
DOC to which the Fees shall be paid will be provided to Contractor by DAS IRMD. The Fees
. owed by Contractor hereunder shall be paid by Contractor to DOC on a quarterly basis, payable
on or before the last day of each calendar quarter during the Term. Any Fees not paid to DOC
when due shall bear interest at the rate of one and one-half percent (1 ~ %) per month or, if less,
the maximum rate allowed by law, until the same is paid in full.

3.3

TAXES· FEDERAL AND LOCAL

Neither State nor any State Entity will be liable for any taxes accruing or coming due as a
result of this Contract, whether federal, state, or local, and Contractor shall be responsible for
any such taxes.

PART IV
TERM
4.1

TERM

y u
ermo
s
all automatically terminate on the last day of the then current Term of this Contract.
The foregoing notwithstanding, the Term of this Contract cannot be extended beyond June 30,
2010 without the written agreement by both State and Contractor.

PART V
REPRESENTATIONS AND WARRANTIES
5.1

CONTRACTOR'S REPRESENTATIONS AND WARRANTIES

Contractor makes the following representations and warranties for the benefit of State:
(a) Contractor is a corporation, duly organized, validly existing and in good standing
under the laws of the State of Colorado, and has the corporate power to carry on its business as it
is now being conducted and currently proposed to be conducted. Contractor is qualified as a
J:\DATA\lcs\Final Version PayPhone Contract.doc

foreign corporation to do business, and is in good standing, in the State of Oregon. Contractor is
fully licensed and authorized by the PUC to provide the Services. Contractor's registered agent
for service of process in the State of Oregon is C T Corporation, Inc.
(b) Contractor has the right, power and authority to enter into, and perform its
obligations under this Contract. This Contract has been executed by a representative of
Contractor who is authorized to make a commitment on behalf of Contractor.
(c) Contractor has delivered to DAS IRMD: (i) certifications issued by the applicable
governmental authorities evidencing Contractor's authorization to conduct business and render
the services in the State of Oregon; and (ii) a certificate signed by an officer of the Contractor
who is the Secretary or Assistant Secretary of Contractor certifying the incumbency and
specimen signature of the Person that executed this Contract on behalf of Contractor, that all
corporate action necessary to authorize Contractor's execution, delivery and performance of this
Contract has been taken, and that this Contract has been duly executed and delivered by
Contractor.
(d) Contractor has taken all requisite corporate action to approve execution, delivery and
performance of this Contract, and this Contract constitutes a legal, valid and binding obligation
upon Contractor, enforceable against Contractor in accordance with its terms and conditions.
The fulfillment of Contractor's obligations hereunder will not constitute a material violation of
any existing applicable law, rule, regulation or order of any governmental authority. All
necessary or appropriate public or private consents, approvals, permissions, agreements, licenses
or authorizations have been obtained in a timely manner which are necessary for Contractor to
enter into and to perform its obligations under this Contract.
(e) .There is no outstanding, pending or to the best of Contractor's knowledge, threatened,
li~g~ti()J.1,()l'~l.',jll<1gI11~J.1t,()l'.J>J:()(;~J.1g,.iJ.1Y()lyiJ.1g()l'1lff~tiJ.1gt1lis.C()J.11l'a,(;t,t.lJ.~.S~I'Vices,()l"

Contractor's ability to perform its obligations under this Contract.
(t) To the best of Contractor's knowledge, no representation or warranty made by
Contractor contained in this Contract and no statement by Contractor contained in, or
information or documents delivered to DAS IRMD by Contractor in connection with, the '.
Solicitation, the Proposal, or this Contract or otherwise supplied by Contractor to DAS IRMD
contains any untrue statement of a material fact or omits to state a material fact necessary to
make such statements, information or documents, in light of the circumstance under which they
were made, not misleading, except for the description of the CRT touch screen function
contained in the outdated Dictaphone brochures submitted as part of the Proposal.

(g) This Contract is for the sale by Contractor of services, and not hardware, software or
other equipment or goods. In order to deliver the Services and perform its obligations under this
Contract, neither State nor any State Entity must purchase any hardware, software, or other
equipment or goods, and Contractor is not selling any of the same under this Contract. All
equipment shall be owned by Contractor. State shall have no ownership of the Contractor's and
its Subcontractor's Equipment. All data on the Recording Media shall be owned and controlled
by State.
J:\DATA\lcs\Final Version PayPhone Contract.doc

5.2

STATE'S REPRESENTATIONS AND WARRANTIES

State makes the following representations and warranties for the benefit of Contractor:
(a) State has the right, power and authority to enter into, and perform its obligations
under this Contract.
(b) State has taken all requisite administrative action to approve execution, delivery and
performance of this Contract, and this Contract constitutes a legal, valid and binding obligation
upon State, enforceable against State in accordance with its terms and conditions.
(c) The fulfillment of State's obligations hereunder will not constitute a material
violation of any existing applicable law, rule, regulation or order of any governmental authority.
(d) There is no outstanding or pending litigation, order, judgment, or Proceeding,
involving or affecting State's ability to perform its obligations under this Contract.

PART VI
COVENANTS
CONTRACTOR'S PERSONNEL

to

6.1.1 General: Contractor shall,exercise due care choose and manage its
personnel ~o that only suitably responsible, professionally competent, and disciplined
representatives shall be operating in State facilities, many ofwhich have sensitive and critical
.. fl.giyit:i~ .. N~im.~J,"Sta.~Il()J,"JlIlYSta.~:eIlt:ity~I1~~~~p(>I1~iJ>l~f()i8.l1yjIlJl11)'()J," . ()m.~ l.<>ss
suffered by Contractor or Subcontractor personnel in a State facility arising out of a riot or
hostage situation unless it is due to the gross negligence or willful acts or omissions of State or
any State Entity, its employees or agents. In certain sensitive work areas, Contractor personnel
requiring access may be subject to background checks by State or other law enforcement
agencies. Contractor will meet all requirements of Part 68, FCC Rules and"Regulations (47 CPR
68) regarding affidavits and manufacturer's authority requirements for installer personnel.
Contractor personnel seeking access to DOC facilities shall be subject to DOC policies and
requirements regarding background investigations, criminal convictions, and entrance to DOC
facilities. The Parties acknowledge that it is DOC policy to require advance notice and advance
clearance for entry into all DOC facilities.
6.1.2 Key Personnel: Contractor acknowledges and agrees that State and
Contractor are entering into this Contract for critical services because of the Contractor's stated
ability to provide the Services to State. Because of the need for State to be assured of
Contractor's personnel to be highly qualified and skilled in the special qualification areas
pertaining to the Services, and the ability to understand and be responsive to State needs, the
Contractor in good faith will make every effort to meet State's needs in this Section.
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As of the commencement of this Contract, Key Personnel are identified in Appendix
6.1.2 attached hereto.
Key Personnel shall not delegate performance of the management powers and
responsibilities he/she is required to provide under this Contract to another (other) Contractor
employee(s) without first obtaining the written consentof State:
Further, Contractor shall make every attempt ton()tre-assigh'ortransfer any Key
Personnel to othefjduties"iofp6sitiOris'sucn'lliat'thl~':'ICeY1?ers()fi'fi~1·1Ef'{are)"'ff6'O'fi~er'"~vailable
to
provide State with hislher (their) expertise, experience, judgment,andpersonal attention, and
will make every attempt to notify State prior to such re-assignment or transfer. In the event
Contractor requests ~ltat~J!!~JmP,tQ;V~,,,!J~:~§~gnment or transferof any Key Pers()nnel, State
may, at Contractor's discretion, interview, review the qualificatlons'of,ancfapprove-or
.
disapprove the proposed replacement(s) for such Key Personn¢l. State approval of changes in
Key Personnel, When requested, will not be unreasonably withheld.
•

. , .'

.' '.'

..•..• '

"'O_"·'··_·'~·-';~~~.~·~i';:'·'':"'·'':'·'':';'~''::~':l>.·: :'~.\'.:>·,~~,';:;t{'.~'J,i,,,:·r,,,~

~

6.1.3 Personnel Background Checks: Contractor warrants that it has
appropriate procedures for screening employee criminal history and for addressing employee offduty misconduct, including a criminal history screening process for all its employees, and has a
process for reviewing employee off-duty misconduct. Contractor further warrants that any such
screening procedures or processes are and shall be in compliance with all State and federal laws,
including, but not limited to, the Fair Credit Reporting Act (15 U.S.C. Section 1681), and with
Contractor's and its Subcontractors' union contracts. Contractor's personnel who work on the
. Services will be subject to this screening and review process. Before·beginning such work,
Contractor shall submit to all of Contractor's personnel who are proposed to have access to
critical State facilities written requests for permission to conduct background checks, including
.criminal history verification. If any such personnel refuses permission or elects to avoid
p~c:il'fJ.tiQllil1JlI1ysl.lc:I:1.J:>fJ.c:kgrQlmq,c:h~k,lltth~QPt.jQl1QfStfJ.~,~Q!1ID1.c:tQr'WiJ.l~l'l~~s1J.c:h

Person with a qualified employee who is willing to participate in these background checks. In
addition, State or other law enforcement agencies may, but are not obligated to, do background
checks, including criminal history verification, on some or all of the Contractor's personnel
proposed to have access to the critical State facilities. Without limiting the foregoing, any of
Contractor's personnel proposing to enter a DOC facility may be subject to a Law Enforcement
Data Systems check, the results of which are acceptable to DOC in its sole discretion. If DOC
conducts any such Law Enforcement Data Systems check, DOC shall comply with the
requirements of the Fair Credit Reporting Act, if applicable. Personnel with backgrounds
deemed unsuitable by State will not be acceptable for support of these critical systems, and
Contractor will be requested to provide alternatives.
6.1.4 Criminal Convictions: If during the term of the Contract, it becomes
known to Contractor that any of Contractor's personnel or applicant for employment by
Contractor in connection with rendering the Services hereunder has had a criminal arrest or a
criminal conviction, that information, with as much supporting detail as is reasonably available,
will be submitted to State for review, and the personnel involved will be suspended from
working on State critical systems or, in the case of an applicant, will not be assigned by
Contractor to work on State critical systems. Such personnel may only resume work on State
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critical systems or, in the case of an applicant, may only be assigned by Contractor to work on
State critical systems, if State grants express written permission.
6.1.5 Contractor Personnel: Should State expressly approve Contractor
personnel with criminal records, and it becomes known to Contractor that a status change, such
as violation of parole or probation term has taken place, it is the responsibility of Contractor to
immediately notify State at:td s~ek written permission to continue use of subject personnel.
6.1.6 Failure to Notify: Without limiting the other remedies available to State
for this or any other breach by Contractor under this Contract, should Contractor fail to notify
State, when Contractor learns of the same, of personnel with criminal arrest or conviction
records, or any status change, or be unable to provide suitable personnel, with respect to
personnel working on DOC systems, State may terminate the Contract for cause under Section

10.1

6.1.8 Subcontractor Personnel: The provisions of this·Section, including but

liotliDiitoo·lo:COntriictor's·obIigationsliereunder:sli311atso·applylopersoooefof·any
Subcontractor in the same manner as applicable to Contractor.

6.2

REGULATORY APPROVAL

If this Contract is now or in the future subject to the approval of applicable state or
federal regulatory bodies, the Parties shall be relieved of their obligations thereunder if
regulatory approval is denied; or, at the sole discretion of State, those parts of the Contract upon
which the denial was based may be renegotiated and the Contract amended to reflect the result of
that renegotiation. Without limiting the other remedies available to State for this or any other
breach by Contractor under this Contract, if any regulatory approval required to allow Contractor
to provide the Services and otherwise satisfy its obligations under this Contract (other than the
requested rate changes described in Contractor's Oregon Rate Case (Docket No. UT-125)) is not
received which causes Contractor to breach any obligation under this Contract, State may, at its
sole discretion, terminate immediately this Contract and obtain service from another party. A
decision to terminate the Contract under these conditions shall bear no penalty for State or any
obligation by State to Contractor.
J:\DATA\lcs\Final Version PayPhone Contract.doc

Where needed, Contractor must make every reasonable effort to obtain any required
regulatory approval, including promptly responding to information and data requests from the
regulatory body. Contractor shall fully cooperate with the PUC. Contractor must promptly
notify DAS IRMD of all actions taken to obtain such regulatory approval, including all formal
filings or informal contacts with the applicable regulatory bodies related to this Contract. To the
extent that it reasonably could assist Contractor in obtaining required regulatory approval, if any,
of the Services to be rendered under this Contract, DAS IRMD shall make a good faith effort to
cooperate with Contractor in making filings with applicable regulatory bodies. So long as
Contractor uses all reasonable efforts to obtain any required regulatory approval, its failure to
obtain such approval shall not be deemed a breach of this Contract.

6.3

COMPLIANCE WITH APPLICABLE LAWS

Contractor shall comply with, and shall cause all Subcontractors to comply with, all
federal, state and local laws, regulations, rules, executive orders and ordinances, whether now
existing or hereinafter enacted, as the same may be amended or modified, in connection with the
Services under this Contract or the performance of Contractor's obligations under this Contract.
Without limiting the generality of the foregoing, Contractor agrees to comply with, and shall
cause all Subcontractors to comply with: (i) the constitution of the State of Oregon; (ii) all
federal and state civil rights and rehabilitation statutes, rules and regulations, the Civil Rights Act
of 1964 (78 Stat. 252), the Regulations of the Department of Health and Human Services issued
according to that Act, and provisions of Executive Order 11246, Equal Employment
Opportunity, dated September 24,:1965, as amended; (iii) Section V of the RehabilitationAct of
1973; (iv) the Americans with Disabilities Act of 1990 and ORS 659.425; (v) the provisions of
ORS 279.312, 279.314, 279.316, 279.320, and 279.555; (vi) all applicable state and fedeial ;
laws, local rules, regulations, and ordinances ofcities, counties, municipalities, and local taxing
districts, the National Electrical Code, Parts 15 and 68 oithe FCC's Rules, and the rules,
~gt.1Ia.ti()l1~,.8.l1.c.l~ff~.()fa.lla.\lt1:l()J:i!!~.l:1a.yil1gj1J.fi~cJi~!!()l1()Y~J:.t1:l~§~J:\Ti~st()~. ill~ta.JI~8.l1cl

provided under this Contract (provided, however,that this does not relieve Contractor of the
responsibility to comply with the Specifications if the Specifications exceed the laws, .
regulations, and ordinances); (vii) the provisions of any federal, state, or local statutes,
ordinances and regulations dealing with the prevention of environmental pollution and the
preservation of natural resources that affect the provision of the Services under this Contract;
(viii) the provision of ORS 279.350 through 279.354 relative to prevailing wage rates; and (ix)
all regulations and administrative rules established pursuant to the foregoing laws. Contractor
shall certify the existence of the Contractor's own equal employment opportunity programs in all
non-exempt contracts between Contractor and State as provided in Title 1, Part 60 of the Code of
Federal Regulations.
No claims for additional payment to Contractor will be approved for changes required to
comply with codes, ordinances, laws, tariffs, and regulations in effect on the date hereof or
enacted in the future, as the same may be amended or modified, which apply to the Services
provided under this Contract. Contractor will not be responsible for changes required by existing
or future codes, ordinances, laws, tariffs, or regulations which apply to the facilities at which the
Services are provided (i.e., building, fire, safety and electrical codes).
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Without limiting all other remedies available to State in connection with such breach,
Contractor's or any Subcontractor's failure to comply with such requirements shall constitute a
breach of contract and shall be grounds for termination of this Contract by State for cause. In
addition to and without limiting all other remedies available to State in connection with such
breach, Contractor shall be liable for any Loss resulting to State or any State Entity from such
noncompliance.
The Parties agree that this Contract is intended to be in full compliance with all laws,
including the Communications Act of 1934 as amended by the Telecommunications Act of 1996
(the "Act"), and the Parties will perform their respective obligations under this Contract in
compliance with all of said applicable federal, state and local laws, including without limitation
the Act, and the rules, regulations and policies of any entity having jurisdiction of the subject
matter of this Contract and the Parties, including but not limited to the FCC, the OPUC and
courts of law. Neither Party intends its actions or relationship under this Contract to impose
upon Contractor any obligation to change its method of conducting business so as to require or
trigger a requirement for Contractor to be or become or to establish a "separate affiliate" under
the Act.

6.4

PERMITS

Contractor shall obtain and pay for all necessary permits, official licenses and
inspections, certificates of authority, and other official approvals necessary for the provision of
the Services under this Contract.

6.5,

TAXCERTIFICATION LAWS

The individual signing on behalf of Contractor hereby certifies .and swears under penalty
of perjury:

Contractor is not subject to backup withholding because:

a.

Contractor is exempt from backup withholding,

b.

Contractor has not been notified by the IRS that Contractor is subject to
backup withholding as a result of a failure to report all interest or dividends, or

b.

The IRS has notified Contractor that Contractor is no longer subject to
backup withholding;

Slhe is authorized to act on behalf of Contractor, slhe has authority and
knowledge regarding Contractor's payment of taxes, and to the best ofherlhis
knowledge, Contractor is not in violation of any Oregon tax laws, including,
without limitation, the following pursuant to OAR 150-305.385(6)-(B): For
purposes of this certificate, "Oregon tax laws" means the state inheritance tax, gift
tax, personal income tax, withholding tax, corporation income and excise taxes,
J:\DATA\lcs\Final Version PayPhone Contract.doc

amusement device tax, timber taxes, cigarette tax, other tobacco tax, 911
emergency communications tax, the homeowners and renters property tax relief
program and local taxes administered by the Department of Revenue (Multnomah
County Business Income Tax, Lane Transit District Tax, Tri-Metropolitan Transit
District Employer Payroll Tax, and Tri-Metropolitan Transit District
Self-Employment Tax);
Contractor is an independent contractor as defined in ORS 670.600; and
The data supplied by Contractor to State in connection with this Contract and the
Solicitation is true and accurate.

6.6

ORS 279.316 • HOURS OF LABOR

Contractor agrees that no Person shall be employed by Contractor or any Subcontractor
in violation ofthe requirements described in Section 2.10 (Hours of Labor) of the Solicitation.

6.7

RELEASE OF OPINIONS

Contractor acknowledges and agrees that State and its representatives reserve the right to
provide their opinions publicly and privately to third parties regarding Contractor's performance
under this C o n t r a c t . !

6.8

INTELLECTUAL PROPERTY RIGHTS

6.8.1

Contractor warrants that the Services, and all products, Equipment and support
related thereto, do not jnfringe upon, violate or result in the misappropriation of any United
§~!~s ()r J()reigtlP~~l1t,c::()py:ri.ght()l" !J.1lcl~lll~~~Y!J.1lcl~S~ret,_1J.ti!i!Yllle>Ci~I~illcl1J.s!Ji.~<l~~ign.

or mask work, or any other proprietary or intellectual property right of any third party. Provided
that Contractor fully performs its obligations under Sections 6.8.2 and 6.8.3, the exclusive
remedy for a breach of the foregoing warranty shall be the indemnification, defense and hold
harmless provided in Sections 6.8.2 and 6.8.3 below; provided, however, that this sentence shall
not limit State's right to terminate this Contract and recover damages as described in Section·
6.8.4 below.
6.8.2 Contractor shall indemnify, defend and hold harmless each and every Indemnified
Party from any claim that the Services, or any product, Equipment or support related thereto,
infringes upon, violates or results in the misappropriation of any United States or foreign patent,
copyright or trademark, any trade secret, utility model, industrial design or mask work, or any
other proprietary or intellectual property right. All of the terms of Section 9.2 below shall apply
to any such claim, including but not limited to, the obligation to notify Contractor of such claim.
6.8.3 Contractor shall be responsible for, and shall indemnify each Indemnified Party
from, any and all Losses suffered or incurred by State or any State Entity from any claim that the
Services, or any product, Equipment or support related thereto, infringes upon, violates or results
in the misappropriation of any United States or foreign patent, copyright or trademark, any trade
J:\DATA\lcs\Final Version PayPhone Contract.doc

secret, utility model, industrial design or mask work, or any other proprietary or intellectual
property right. Without limiting the foregoing, Contractor shall pay all costs and expenses of the
defense of any such claim, any settlement, and any costs, expenses and damages awarded by any
court, arbitrator or other forum against any Indemnified Party.
6.8.4 If the use of any of the Services by State shall be prevented by preliminary or
permanent injunction, State shall have the right to immediately terminate this Contract and to
recover from Contractor all actual or general damages and costs suffered or incurred by State or
any State Entity in connection with such matter, including, but not limited to, all costs and
expenses of State in obtaining replacement services for such Service and all attorney's fees and
costs.
6.8.5 Contractor has no obligation for any claim of infringement arising from:
(i) Contractor's compliance with any designs, specifications or instructions of State; or
(ii) modification of the Services by someone other than Contractor or as called for by Appendix
2.1 by State.
6.9

STATE DATA; WORK PRODUCT

6.9.1 State Data: During the Term of this Contract, all Equipment, including
the Recording Media, shall be owned by Contractor and State shall have no ownership of
Contractor's or any Subcontractor's Equipment. To the extent that any Recording Media is in
the possession of Contractor or any Subcontractor, State personnel shall have sufficient access to
the data thereon to enable them to retrieve information for security and investigative purposes.
Both before and after installation of Contractor's and any Subcontractor's Equipment, all risk of
loss, or damage to. the Equipment shall be on Contractor and State shall bear no risk of loss
regarding the Equipment, unless such loss is due to the negligent or willful acts or omissions of
~~t~.i~~ll1pl()Y~$,c~toll1~~oragents
..
State shall own and hold all rights with respect to the data contained on the Recording
Media. State shall provide a secure environment for the Recording Media in its possession and
shall use due care in processing and handling the Recording Media in State's possession. All
risk of loss, or damage to, the Recording Media and the data contained thereon (including any
information that is corrupted, lost, damaged, or cannot be accessed) shall be on State and
Contractor shall bear no risk of loss regarding the Recording Media and the data thereon, unless
such loss is due (i) to the negligent or willful act of omission by Contractor, a Subcontractor, or
their employees or agents, (ii) to a defect in the Recording Media not caused by State (e.g., DAT
tape not properly formatted), or (iii) to a malfunction or defect in the Monitoring and Recording
Systems equipment or software.
6.10

INSURANCE

Except as otherwise set forth herein or agreed to in writing by State and Contractor,
Contractor and State agree to comply with the terms of Sections 2.31.1.1 (Proposers Note),
2.31.1.2 (Workers' Compensation), 2.31.1.3 (Commercial General Liability), 2.31.1.4
(Automobile Liability), 2.31.1.5 (Additional Insured), 2.31.2 (Notice of Cancellation or Change),
J:\DATA\lcs\Final Version PayPhone Contract.doc

2.31.3 (Certificate(s) ofInsurance) and 2.31.4 (SelfInsurance) of the Solicitation, which sections
are incorporated herein and made a part of this Contract by reference; provided, however, that (i)
the Additional Insureds under Section 2.31.1.5 shall include State, the State of Oregon,
Department of Administrative Services, the other State Entities, and their respective divisions,
officers, and employees, (ii) the Certificates of Insurance required under Section 2.31.3 shall be
in form and substance satisfactory to DAS IRMD, and (iii) any self insurance under Section
2.31.4 shall be subject to DAS IRMD's prior written approval. Contractor shall cause all
Subcontractors to maintain insurance which is typically maintained by companies engaged in
such business as providing the Services, provided further that such insurance shall be of such
types, in such amounts, with such terms and conditions and with such insurers as are acceptable
to DAS IRMD. Contractor shall obtain, at Contractor's expense, and keep in effect during the
term of this Contract, property insurance covering all risks, including fire, covering the
Equipment, insuring at least the replacement value of the Equipment. All insurance policies
called for by this section shall contain waivers of subrogation clauses acceptable to DAS IRMD.

6.11

PROJECT MANAGEMENT

A
'named and made responsible for the provision of Inmate Phone
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c iIlln.:)9' ~!~!Hl·"r-.\Y' _l"::lIS:~lCQ.E" !·.;m(",~:j.( :J ~"~Jhr,~{":l{!JiliH_ relt' lir~ M:}it:_H.z~ri~::':n Nr' ~~\~~}.:: .!J~~j,tl.~t\.1 al
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6.12· INDEPENDENT STATUS OF CONTRACTORINO PARTNERSIllP
Any statements to the contrary contained in this Contract, the Solicitation or the Proposal
notwithstanding, (i) the Services to be rendered under this Contract are those of an independent
contractor, (ii) Contractor is not an officer, employee or agent of State as those terms are used in
ORS 30.265, (iii) the Parties will be acting in their individual capacities and not as agents,
employees, partners, joint venturers, or associates of one another, (iv) no partnership or joint
venture between Contractor and State, DAS IRMD or any other State Entity is created by this
Contract,and (v) the employees or agents of one Party shall not be deemed or construed to be the
.employees or agents of the other Party for any purpose whatsoever.

6.13

SUBCONTRACTOR'S AUTHORITY

Contractor shall be responsible to State for the acts and omissions of all Subcontractors
and of Persons directly or indirectly employed by them, including, but not limited to, the quality
and quantity of all work performed by all Subcontractors and all persons directly or indirectly
employed by them, and for the acts and omissions of Persons employed directly by Contractor
for satisfactory performance under this Contract.

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On the date hereof, the Subcontractors under this Contract are those Persons listed on
Appendix 6.13 attached hereto. Contractor shall provide to DAS IRMD at least thirty (30) days
written notice prior to the effective date of start of work for a new Subcontractor or the addition
of any new Subcontractor or change in any Subcontractor from those listed on Appendix 6.13.
DAS IRMD shall not unreasonably or without cause withhold approval of the requested change.
DAS IRMD shall have the right to request that Contractor use some other Subcontractor. DAS
IRMD may, but is not requ~red. to, request reasonable information, similar to that required of
Contractor, to assess the acceptability of any new Subcontractor or change in Subcontractor.
Such information shall include, without limitation, complete and accurate copies of all proposed
subcontracts between Contractor and any new Subcontractor. Request by DAS IRMD for
removal of a Subcontractor shall not be grounds for changing Contract pricing. Any obligation
of Contractor, including, but not limited to, obligations of Contractor to its employees,
independent contractors or personnel, contained in this Contract shall be deemed to include an
obligation by Contractor to cause all Subcontractors to comply with the same obligation as if the
Subcontractors were named as "Contractor" under this Contract.
6.14

CONFORMITY TO SPECIFICATIONS

The Services provided shall be in strict conformity with the Specifications and with such
instructions as shall from time to time be given by State and mutual agreement between the
Parties. If the instructions and Specifications contained in this.Contract, all Written
Authorizations, and all exhibits and attachments hereto and thereto are not sufficiently clear to
permit Contractor to proceed with installing or providing the Services, State will, either upon its
own motion or upon request from Contractor; furnish additional instructions,.~together with such
additional Specifications' as may be necessary. When such request is made by:Contractor, it
must be made in ample time to permit the preparation of the instructions and Specifications
before the information is required by Contractor to meet the implementation schedule. Such
llcl<:liti()11~il1~tJ:1l9ti()11~. lll1<:l. ~~ifi9a.ti(}Il~$I1a.II . ~. C=(}11~i~~Ilt'Wjt.ltthi$ . CoIlt.rac=t,JJ.11 Written

Authorizations, and all exhibits and attachments hereto and thereto, and shall have the same
force and effect as if contained in this Contract, all Written Authorizations, and all exhibits and
attachments hereto and thereto.
6.15

COORDINATION WITH OTHERS

Contractor shall coordinate the installation, testing, and acceptance of the Services with
State and its other contractors, and they shall coordinate their work with Contractor's work so as
to facilitate the installation, testing, cutover, and provision of the Services. Contractor shall be
responsible for all means, methods, techniques, sequences, and procedures, and for coordinating
all portions of the work under this Contract. Contractor shall work cooperatively and
professionally with State and its other telecommunications contractors, including consultants,
with regard to interfacing, installing, testing, cutover, fault isolation, and repair of operating
deficiencies in the Services.
6.16

BUILDING AND FACILITY ACCESS

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Contractor will be responsible for keys, provided by State, and Contractor and its
personnel shall have access to State buildings and facilities. In order to be furnished keys and
other necessary access arrangements, Contractor personnel will be required to comply with any
reasonable access requirements. Contractor personnel seeking access to DOC facilities shall
comply with all DOC requirements regarding entrance to those facilities, including but not
limited to requirements that such personnel make advance arrangements with the DOC
institution to be visited and be escorted by DOC personnel while in DOC facilities. Based on
safety considerations and security of DOC staff and personnel of Contractor, DOC shall have the
right to deny access in its sole discretion. For purposes of determining Contractor's
performance under this Contract, such denial of access shall be considered a Force Majeure
Event (as discussed in Section 11.12), except if such denial of access is caused by a failure by
Contractor to provide reasonable advance notice to DOC seeking access or to comply with any
other reasonable access requirements.

6.17

CONTRACT ADMINISTRATOR AND EXECUTIVE REVIEW
6.17.1 Contract Administrator: State shall assign a Contract Administrator to

be the first point of contact regarding any and all issues pertaining to this Contract. Contractor
shall assign a singular management Person as the Contract Administrator to be the first point of
contact regarding any and all issues pertaining to this Contract (except for those areas under the
Manager(s)' responsibility described in Section 6.11). The initial Contract Administrators are as
follows:
State Contract Administrator: Randy Wells.

Each .Partymay.. ~hangeits . C ontractAdministratorby.. writtennoticetotheotherParty of such
change.
'

6.17.2 Dispute Resolution Panel: Should a dispute regarding this Contract
arise, it shall frrst have been addressed at the Contract Administrator level, and if found to be
unresolvable, it must then be submitted to a panel composed of two executive level principals
from each Party (the "Dispute Resolution Panel"). At least one principal from each Party shall
be of senior management level, neither principal shall be the Contract Administrator, and one or
more will have the authority to enter into an agreement resolving the dispute. The principals
shall meet within ten (10) days of receipt of a written request by either Party in an effort to settle
the dispute. The Parties may agree to include any third parties in these negotiations and to
implement any other procedures or rules that they mutually agree will benefit the resolution
process. Should this step of dispute resolution be unsuccessful, the Parties shall submit the
dispute to mediation as set forth in Part 11.
State's Dispute Resolution Panel members: Don Mazziotti, Chief Information Officer,
Ralph D. Cox, Telecommunications Manager and State's designated legal representative.

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Contractor's Dispute Resolution Panel members: Vice President/General Manager of
Contractor's Business and Government Services division, Sales Director of Contractor's Public
Access Solutions division and Account Partner Attorney of Contractor's Public Access Solutions
division or Contractor's other authorized representatives of Contractor's senior management
level.

6.18

EQillPME~T

",

All Equipment and Recording Media shall be owned by Contractor. State shall have no
ownership of the Contractor's and its Subcontractor's Equipment. All data on the Recording
Media shall be owned and controlled by State.

6.19

STATE PROVIDED EQillPMENT AND FACILITIES

State will be obligated to, provide at its own expense certain equipment and facilities to
support the Services covered by this Contract, e.g., adequate floor space, electricity (in the
proper voltage), wall space, support structures and a clean, environmentally climate-controlled
area; provided, however, that such State-provided equipment and facilities shall be limited to
those items of equipment and facilities, if any, identified in the Proposal and mutually agreed in
writing to be the responsibility of State before execution of this Contract, or as agreed to herein.
If State, in its sole discretion, elects in writing to provide such equipment and facilities, State will
assume responsibility for providing same unless otherwise agreed. ,Should additional".
requirements for State-provided equipment and facilities for the Services arise beyond that which
State electsin writing to be responsible for, the Parties will negotiate how the additional costs-l
will be handled.

6.20

STATE COVENANTS

State agrees to cause the applicable State Entities to:
(a) Provide to Contractor, a Written Authorization, prepared by the requesting
DAS-authorized State Entity for each Additional Service required or change to an existing
Service.

(c) Maintain the area around the Pay Phones and Inmate Phones and enclosures
and ensure safe and ready access by the general public, inmates or Contractor's personnel.
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(d) Allow Contractor access to collect revenues or perform maintenance during
the established business hours of accessibility agreed to by State and Contractor, except where
accessibility must be denied to ensure the safety of Contractor personnel and/or to maintain
institutional control.
(e) Exercise reasonable care to prevent the loss through theft of monies from the
collecting device and any damage to the Equipment from any source.
(f) Upon proper prior notification from Contractor following DOC guidelines,
DOC shall provide adequate and timely escort service for Contractor and Subcontractors for
DOC facilities.

6.21

EMERGENCIES

In an Emergency where there is potential loss of life or danger of destruction of property,
Contractor shall immediately contact the State Entity responsible for the facility related to the
affected Service, via telephone, paging and confirmatory email or fax. In an Emergency where
there is a potential danger of destruction of a material portion of Contractor's Equipment, the
State Entity responsible for the facility where the Equipment is located shall notify Contractor, as
soon as reasonably possible, of such Emergency, if such State Entity is aware of such
Emergency, via telephone, paging and confirmatory email or fax. In the event of an Emergency,
Contractor will make every attempt to fix the problem within four (4) hours or sooner of the
problem being reported to Contractor as an Emergency. If a Pay Phone has no dial tone or is
missing a directory,;this would not be classified as an Emergency, since the Pay Phone is not
threatening anyone's security or,well being.

6.22

RECORDSMAIN'I'ENANCE;ACCESS

Contractor shall maintain all fiscal records relating to this Contract in accordance with
generally accepted accounting principles. In addition, Contractor shall maintain any other
records pertinent to this Contract in such a manner as to clearly document Contractor's
performance hereunder. Contractor acknowledges and agrees that State, the Oregon Secretary of
State's Office, the Federal Government, and their duly authorized representatives shall have
access to such fiscal records and to all other books, documents, papers, plans and writings of
Contractor that are pertinent to this Contract for the purpose of performing examinations and
audits, and making excerpts and transcripts. All such fiscal records, books, documents, papers,
plans, and writings shall be retained by Contractor and kept accessible for a minimum of three
(3) years following final expiration of the term of this Contract and all extensions, except as
required by law to be held longer, following final payment and termination of this Contract and
all extensions, or until the conclusion of any audit, controversy or litigation arising out of or
related to this Contract, whichever date is later. Contractor shall make these records available to
State, the Oregon Secretary of State's Office, the Federal Government, and their duly authorized
representatives for inspection at Contractor's designated facility upon thirty (30) days written
notice to Contractor of such intention, provided, however, that Contractor shall deliver to
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requesting entities or persons, within such thirty (30) days, those records that are necessary to
determine compliance with Contractor's obligations under this Contract.

6.23

ASBESTOS AND HAZARDOUS SUBSTANCES

State shall, in good faith, disclose to Contractor any known asbestos or other hazardous
substance at any location \\;'her~ Contractor is providing Services under this Contract. If
Contractor discovers hazardous substances at any State facility, Contractor may suspend the
performance of the related Services at such facility until removal or containment of such
hazardous substances has been completed and approved by the appropriate governmental agency,
or until such agency has confirmed that no such removal or containment is necessary.
Contractor's performance obligation shall be extended to the extent any delay is caused by clean
up or removal of hazardous substances. In no event shall Contractor be responsible for the
removal of hazardous substances found on any site where Contractor shall be required to perform
Services. As between Contractor and State, any such removal shall be the responsibility of State
or such State Entity operating the applicable facility.

6.24

DOC ACCESS TO INMATE CALL RETRIEVAL AND PLAYBACK
EQUIPMENT AFfER EXPIRATION OR TERMINATION OF
CONTRACT

For two (2) years following the expiration of the Term of this Contract, DOC shall have
the right to access and use, at no cost to DOC or State, three (3) reproducers and associated
''Track Down"/Call Watch software (1 reproducer with associated software at each'Inspections
office in Salem, Ontario, and Pendleton, Oregon) for handling, retrieving, playing back,.and
recording preexisting Inmate call message activity. However, if any maintenance or repair costs
occur during the frrst two (2) years after termination, State or DOC is responsible for such
maintenance.or.repaircosts,providedthatDOC-shaUselectand"engagethe.vendor(s)toconduct
any such maintenance or make any such repairs. Upon expiration of such two (2) year period,
DOC will return all Dictaphone components, at its expense, to Contractor in the same condition
in which those components were provided at the beginning of such two (2) year period, normal
wear and tear excepted. H State or DOC terminates this Contract prior to the expiration of the
Term, Contractor will provide DOC or State with the above described three (3) reproducers and
associated software at Contractor's cost.
Within ninety (90) days following the expiration of the Term of this Contract, State shall
take possession and control of the Recording Media and shall be solely responsible for the
handling, transportation and storage thereof.

PART VII
WARRANTIES AND PERFORMANCE GUARANTEES
7.1

GENERAL WARRANTY
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Contractor warrants that the Services, the Equipment and all software used in rendering
the Services shall conform to the requirements contained in this Contract and the Solicitation,
including, but not limited to, the Specifications, the relevant Written Authorization(s), and all
exhibits and attachments hereto and thereto, and shall be performed in a professionally diligent
manner by qualified personnel ("Satisfactory Work"). In addition to and without limiting any
other warranty contained in this Contract, the Services shall conform to the Specifications
described in the Proposal and all attachments thereto. Contractor warrants that the Services and
the use of the Equipment shall meet the manufacturer's and vendor's specifications. All
warranties from manufacturers or vendors providing the Equipment or other components of the
Services shall run to DAS IRMD. Contractor also warrants that (i) the Services, the Equipment,
and all software used in the rendering of Services, contains no computer instructions, circuitry or
other technological means whose purpose is to disrupt, damage or interfere with State's or any
State Entity's use of its computer or telecommunications systems or facilities, and (ii) the
Services, the Equipment and all software used in rendering of the Services will be installed and
will perform in a manner that will not disrupt, damage or interfere with State's or any State
Entity's use of its computer or telecommunications systems or facilities.

7.2

.......

EQUIPMENT

In addition to and without limiting the other warranties contained in this Contract, (i) the
Equipment shall be in good working order and will conform to Contractor's official published
specifications and the Specifications, and (ii}all Equipment shall be new or "like-New", except
for Equipment already in place and previously installed under prior contracts between State~:and ;
Contractor. ';
1

In addition to and without limiting any other warranty contained in this Contract, the
Equipment shall conform to the Specifications described in the Solicitation, the Proposal and this
..Contract.(including,.. b ut.. notlimired.to,.. t he..S pecificationscontainedJnAppendix2.1tothis
Contract). The foregoing notwithstanding, if there exists any conflict among the Specifications
contained in (i) the Proposal, (ii) the Solicitation, or (iii) this Contract (including, but not limited
to, the Specifications contained in Appendix 2.1 to this Contract), in addition to and without
limiting any other warranty contained in this Contract, the order of precedence to resolve such
conflict shall be the following: (1) this Contract (including, but not limited to, the Specifications
contained in Appendix 2.1); (2) the Solicitation; then (3) the Proposal.

7.3

GRADE OF SERVICE WARRANTY

In addition to and without limiting the other warranties described in this Contract,
Contractor warrants that the Services provided under this Contract will be at a minimum of P.01
Busy Hour grade of service and otherwise will be provided and performed in accordance with all
applicable standards of performance established by the Specifications, this Contract, the
Solicitation, the PUC, and the FCC.

7.4

YEAR 2000 WARRANTY
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In addition to and without limiting the other warranties described in this Contract, for all
Services performed under this Contract, Contractor warrants Y2K Compliance of all Services,
the Equipment, all data produced or used by the Monitoring and Recording Systems and
otherwise produced or used in connection with the Services, and all other hardware, software,
equipment and systems, individually or in combination, provided by Contractor or its
Subcontractors, used in support of this Contract or the Services. Without limiting the forgoing,
Contractor warrants that al~ software to be used in rendering the Services has been updated to
Y2K Compliance.

7.5

ISO 9000/QUALITY ASSURANCE PROGRAM

Contractor shall within eighteen (18) months of the date hereof provide DAS IRMD
evidence of Contractor's certification and compliance with ISO 9000 standards. If Contractor is
not ISO 9000 compliant by the end of such eighteen (18) month period, State shall have the right
to terminate this Contract for cause. As an alternative to ISO 9000 certification, within eighteen
(18) months of the date hereof, Contractor may present to DAS IRMD for its approval, which
approval shall not be unreasonably withheld, a formal quality of service plan. Such plan shall be
comprehensive and shall cover all aspects of service and the steps required to assure that service
is subject to a uniform and responsive quality assurance process. Contractor shall be compliant
with the provisions of this Section, and shall maintain that compliance for the term of the
Contract.
~.

PARTvm
REMEDIES
8.1

LIQUIDATED DAMAGES AND OTHER REMEDIES

Contractor and State agree that, upon notification by DAS to Contractor of the occurrence
of any breach by Contractor described in Sections 8.1(i) through (v), State shall be entitled to
collect from Contractor, and Contractor shall be obligated to pay to State certain dollar amounts
described below (the "liquidated Damages"), and State shall be entitled to the other remedies
described below. Contractor and State recognize that it would be difficult to prove damages in
the event of such breaches. Contractor and State agree that (a) the liquidated Damages are
reasonable in light of the difficulties of proof of loss, the anticipated harm caused by such
breaches, and the inconvenience and infeasibility of State or any State Entity otherwise obtaining
an adequate remedy, (b) the liquidated Damages represent an estimated amount of the projected
loss or damages that will be suffered by State and the State Entities in connection with such
breaches and are not a penalty, and (c) they have reviewed this section with their respective legal
counsel, understand its significance, and have specifically negotiated its terms.

..9P~

.

. 1 . ",.,2",.,.~:,.,;;~Yl>.liollearid

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$~OO perda~Ber1i"ff~9J~,<iPay Phone for

any Pay Phones above fifty, for each day that
sticli6reacn'lsftoicurecL'hn the event that Contractor breaches its obligation torepmr, or
restorework,ing telephone service for,any Pay Phone, and Contractor does not'cure':fhe
same within three (3) business days of such breach, Contractor shall pay to State the"sum
of$75perd~yperaffectedPay Phone for the first ten affected Pay Phon~§i;$150petday
~r~~t~d'Pay"·Phonefor1he'elevefit~'·tHf6~~11'nltreth~ea~~ay"h~fi~~ana"$'ZOijlfer
day
aff~ted Pay Phone for any PaYPhories·ahovefiftY;foieilch day that"such breach
is nof2qred~ Without limiting the foregoing, if Contractor does not cure any such breach
within thirty (30) days of such occurrence, State shall have the right, in addition to the
right to collect the amounts described in the prior sentence, to immediately terminate this
Contract.

per

(~'~'~i ··~'r:.-~'V~?"i;l"'''':'''''<:'·:· A~

(ii) Excluding Force Majeure Events, in the event that Contractor breaches its obligation
to install within the time period required under Section 2.1 or repair, or restore working
telephone service for, any Inmate Phone or install, repair or restore three-way call
detection and call disconnection or call blocking capability, and Contractor does not cure
such breach within one day of such breach, Contractor shall pay to DOC the sum of $75
per day per affected Inmate Phone for the first ten affected Inmate Phones, $150 per day
per affected Inmate Phone for the eleventh through fiftieth affected Inmate Phone and
$200 per day per affected Inmate Phone for any Inmate Phones above fifty, for each day
that such breach is not cured. Without limiting the foregoing, if Contractor does not cure
any such breach within five (5) days of such occurrence, State shall have the right, in
addition to the right to collect the amounts described in the prior sentence, to immediately
,.
terminate this Contract.
(iii) Excluding Force Majeure Events, in the event that Contractor breaches its obligation
to provide (a) Monitoring and Recording Services with'respect to Inmate.Phones, or (b)

callinformatiouretrieval.andsem-cbcapabilitie$at. ea.cbiJ.1$ti1:l1tiQl1.,tbe.el1.tit"eMoIlitQIiJ.1g
and Recording System at that location will be deemed to be inoperative. H Contractor
does not cure such breach within four (4) hours after the subject problem is reported to
Contractor, Contractor shall pay DOC the sum of $2,500 per day for each day that the
breach is not cured. Without limiting the foregoing, if Contractor does not cure any such
breach within five (5) days of such occurrence, State shall have the right, in addition to
the right to collect the amounts described in the prior sentence, to immediately terminate
this Contract.
(iv) Excluding Force Majeure Events, in the event that Contractor breaches its obligation
to provide remote access to the Monitoring and Recording System at an institution, the
entire Monitoring and Recording System at that location will be deemed to be
inoperative. H Contractor does not cure such breach within five (5) days of such breach,
Contractor shall pay DOC the sum of $2,500 per day for each day that the breach is not
cured. Without limiting the foregoing, if Contractor does not cure any such breach within
ten (10) days of such occurrence, State shall have the right, in addition to the right to
collect the amounts described in the prior sentence, to immediately terminate this
Contract.
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(v) If for any reason, Contractor breaches any of its obligations for Y2K compliance
described in Section 7.4, and Contractor does not cure any such breach within one (1) day
of such occurrence, Contractor shall pay to State the sum of $5,000 for each day that the
same is not cured. Without limiting the foregoing, if Contractor does not cure the same
within five (5) days of such occurrence, State shall have the right, in addition to the right
to collect the amounts described in the prior sentence, to immediately terminate this
Contract.
The time periods after a breach before which Liquidated Damages or termination rights
apply as described in this Section 8.1 shall control, regardless of any other due dates contained in
this Contract or the appendices hereto.
For any other breach of any of Contractor's obligations under this Contract not described
in Subsections 8.1(i) through (v) above, State shall be entitled to all remedies available under
applicable law or in equity, including, but not limited to, the right to terminate this Contract and
to recover from Contractor all actual damages and costs suffered or incurred by State and any
State Entity in connection with such matter, including, but not limited to, all costs and expenses
of State in obtaining replacement services for the Services and all attorney's fees and costs. Such
liability shall include damages or harm to any State Entity, even if State, when taken as a whole,
is not harmed.
Notwithstanding the foregoing, nothing contained herein shall limit Contractor's liability
for personal injury and damage to property caused by Contractor's negligence or tortious act.

8.2

ADDITIONAL REMEDIES

The remedies described in Section 8.1(i) through (v) above are the exclusive remedies of
State.withrespectto.thespecificbreaches.d.escribedinsuchsubsections,provided,howeverthat
(i) if State or DOC is entitled to recover any Liquidated Damages, and Contractor does not pay
the same to State or DOC, and in connection with State's or DOC's enforcement of its rights, a
court or other forum determines that such liquidated Damages are unenforceable (other than a
finding that the breach underlying the obligation to pay such Liquidated Damages did not occur),
Contractor agrees that State or DOC, as applicable, shall be entitled to recover any and all actual
and consequential damages (including lost profits) suffered or incurred by State, DOC and any
other State Entity in connection with such underlying breach, (ii) State shall be entitled to set off
from any amounts State owes under this Con~act any undisputed Liquidated Damages, other
damages or other amounts owed by Contractor under this Contract, and (iii) State shall be
entitled to all equitable remedies available, including, but not limited to, specific performance.

8.3

CONSEQUENTIAL DAMAGES

Except as provided in Section 8.2, neither State nor any State Entity shall be entitled to
recover consequential damages (including, but not limited to, lost profits) from Contractor for
any breach under this Contract, and Contractor shall not be liable for any lost revenues, lost
profits, lost savings or other consequential damages, arising out of any failure to perform its
obligations under this Contract. Contractor shall not be entitled to recover consequential
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damages (including, but not limited to, lost profits) from State or any State Entity for any breach
under this Contract, and neither State nor any State Entity shall be liable for any lost revenues,
lost profits, lost savings or other consequential damages, arising out of any failure to perform its
obligations under this Contract.

PART IX
INDEMNITY, LIABILITIES AND RESPONSIBILITIES
9.1

INDEMNITY

Contractor shall indemnify, defend, and hold harmless each and every Indemnified Party
from, against and in respect of any and all Loss suffered or incurred by reason of or arising out of
(1) any negligent act or omission, or willful misconduct, by Contractor, any Subcontractor, any
of their officers, agents or employees, or (2) any breach of any representation or warranty, or
nonfulfillment of any covenant or agreement, by Contractor contained in this Contract.

9.2

INDEMNIFICATION NOTICE

Each Indemnified Party shall give notice to Contractor within twenty (20) days after such
Indemnified Party has actual knowledge of any third-party claim as to which indemnity may be
sought, and shall permit Contractor (at its expense) to assume the defense of any such claim or
any litigation resulting therefrom; provided that the Indemnified Party may participate in such
defense at such party's expense although Contractor's counsel shall have decision making
authority as to how such defense is to be conducted; provided, further, that the failqre by any
Indemnified Party to give notice as provided herein shall not relieve Contractor of its obligations
under this Part 9, except to the extent that the failure results in an omission of actual notice to
Contractor.andContractol'is·damaged solely asaresultofthe-failureto give notice.'I'he···
foregoing notwithstanding, State or any State Entity may enter any suit or action (1) at
Contractor's expense if State or any State Entity reasonably determines that its own interests are
not being protected, or (2) at State's or any State Entity's expense if principles of government or
public law are involved. In the defense of any such claim or litigation, Contractor shall not,
except with the consent of each Indemnified Party, consent to the entry of any judgment or enter
into any settlement that does not include as an unconditional term a release by the claimant or
plaintiff of each Indemnified Party from all liability in respect to such claim or litigation. If
. Contractor does not assume the defense of any such claim or fails to comply with its obligations
under this Part 9, an Indemnified Party may defend such claim in a manner as it may deem
appropriate, including, but not limited to, settling such claim, after giving twenty (20) days prior
written notice of such settlement to Contractor, on such terms as the Indemnified Party may
deem appropriate, and Contractor shall be responsible for and shall indemnify and hold harmless
such Indemnified Party with respect to any Loss suffered by such Indemnified Party in
connection with such defense, including, but not limited to any Loss in connection with any
settlement of such claim.

9.3

PERSONAL LIABILITIES OF PUBLIC OFFICIALS
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In carrying out the provisions of this Contract or authority granted by this Contract,
Contractor understands and agrees there will be no liability upon the employees or officers of
State or any State Entity, either personally or as officials of State or any State Entity, it being
always understood that in such matters they act as the agents and representatives of State or the
applicable State Entity.

9.4

SURVIVA~

Contractor's obligations under Sections 6.1.2 (Key Personnel), 6.1.3 (Personnel
Background Checks), Part vm (Remedies), Part IX (Indemnity, Liabilities and Responsibilities),
and Part XI (Miscellaneous) shall survive the termination (regardless of the cause of termination)
or expiration of this Contract.

PART X
TERMINATION
10.1

STATE RIGHT TO TERMINATE FOR CAUSE

State may terminate this Contract immediately upon notice to Contractor, or at such later
date as State may establish in such notice or as required under subsection 1O.1(i), without any
liability of State to Contractor, upon the occurrence of any of the following events:
a) State or the benefitting State Entity fails to receive funding, or appropriations,
limitations or other expenditure authority at levels sufficient to pay for the entire amount of
Contractor's work;
b) FederaI or state laws, regulations or guidelines are modified or interpreted in such a·
way thatState's performance underthis·Contractor any Written Authorization is prohibited, 0 r
State is prohibited from paying for any obligation under this Contract from the planned funding
source;
c) Contractor's failure to make any necessary FCC, .PUC or other regulatory filing within
ten (10) days of the date hereof or obtain any necessary FCC, PUC or other regulatory approval
within thirty (30) days of the date h e r e o f ; '
d) Contractor no longer holds any license or certificate that is required to perform the
Services;
e) Any Proceeding is commenced which challenges this Contract or the Services
hereunder, or an injunction or other order is issued which prohibits, limits, or modifies the
performance of this Contract or the Services under this Contract;

o Any Change of Control of Contractor occurs, for which State has not given its prior
written consent, which consent shall not be unreasonably withheld by State (provided, however,
that the limitations contained in this subparagraph (0 shall not apply in connection with
Contractor's planned merger with Qwest Communications, Inc.);
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g) Any event occurs for which any section of this Contract, including but not limited to,
Section 8.1, permits State or any State Entity to terminate this Contract;
h) At any time during the term of this Contract, any of the Services deteriorates or does
not meet the Specifications; or
i) Contractor commits any material breach or default of any representation, warranty,
covenant, indemnity or other obligation or agreement under this Contract (including, but not
limited to, failure to provide the Services under this Contract within the time specified herein or
any extension thereot), or fails to pursue a Written Authorization as to endanger Contractor's
performance under this Contract in accordance with its terms and conditions, which breach,
default or failure is not covered by any of clauses (a) through (h) above, and such breach, default
or failure is not cured within thirty (30) calendar days after delivery to Contractor of notice of the
same by State or any State Entity, or such longer period as State or any State Entity may specify
in such notice.
State may also terminate this Contract according to OAR 125-030-0002 and the Oregon
Attorney General Opinion Model Public Contract Rules, dated January 1995, Section 137-30155.
In addition to, and cumulative of, any other remedy available to State at law or in

This subsection shall not authorize DAS IRMD to terminate this Contract in order to
acquire functionally equivalent equipment from a third party.

10.2

CONTRACTOR'S RIGHT TO TERMINATE FOR CAUSE

Contractor may terminate this Contract upon thirty (30) calendar days notice to DAS
IRMD, without liability of Contractor to State, if State fails to pay Contractor for any undisputed
amount pursuant to the terms and conditions of this Contract and State fails to cure such nonpayment within thirty (30) calendar days after receipt of Contractor's notice, or such longer
period of cure as Contractor may specify in such notice.

10.3
any 0

STATE RIGHT TO CANCEL SERVICES
;S.~t . ' ~ri hts·!P,t:e(lJJiHa~;.t.pi~"9>p.tra.Gtin'fllll··tllld~r
..

';:";'d6ftfh~ffi}XffiJfuftMbbiig~ti()ritlridet
.

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this Contract, and thirty (30) calendar days after receipt of written notice describing with
reasonable particularity the character of the default Contractor has not cured the failure, then
State may cancel Services under this Contract which relate to the performance, without penalty,
until such failure to perform is cured or finally adjudicated. This remedy shall be in addition to,
and cumulative of, any other remedy available to State, and the exercise of this remedy by State
shall not prejudice or impair'the availability to State of any other remedy at law or in equity for
breach of this Contract.

10.4

TERMINATION FOR INSOLVENCY

Either Party may terminate this Contract immediately if the other Party: (i) institutes or
has instituted against it insolvency, receivership, or bankruptcy proceedings; (ii) is adjudged
bankrupt, or makes an assignment for the benefit of creditors, or a receiver is appointed on
account of such Party's insolvency; or (iii) ceases doing business on a regular basis.

10.5

TERMINATION FOR CONVENIENCE

State reserves the right to cancel in writing this Contract, or any of the Services included
in this Contract or subsequently ordered, at any time prior to initiation of any of the Services,
without cause, and to pay Contractor for reasonable, actual, non-recoverable installation costs
and reasonable, actual, non-recoverable costs of equipment ordered by Contractor or any
Subcontractorfor the purpose of performing this Contract, incurred up to the date of,~'
cancellation; -provided, however, that (i) Contractor and Subcontractors shall make reasonable
business effortsto reduce such costs, including attempting to return or resell such equipment or",,;
use such equipment for some other purpose, and the .amount owed by State to Contractor under >
this section shall be reduced accordingly, and (ii) if Contractor or its Subcontractors cannot
return, resell or use such equipment for some o~er purpose, at State's election, such equipment
.,\\,iIl~tl1:lI1~f~~a.tl.<i.<i~li'Y~~t()~~!~·. . 'l.JP(}l1~ip!. (}f.~llc:J:1"\\,ritteIlIl(}tic:e,C(}Il1ractor shall
stop performance under this Corttract, as directed by State.
After initiation of any of the Services, State may terminate this Contract, in whole or in
part, for its convenience by providing notice of such termination to Contractor, specifying the
extent and effective date of such termination. On the specified terminatiori date, Contractor shall
(i) stop work under this Contract to the extent specified in the termination notice, and (ii) cease
shipment and delivery of all Services, goods, Equipment, and software covered by the
termination notice, other than those already delivered and accepted in accordance with this
Contract as of the termination date specified in the termination notice. Contractor shall continue
to perform those obligations under this Contract to the extent not terminated. In the event State
terminates this Contract in whole under this section during the Initial Term, DOC shall pay to
Contractor the following termination fee: (i) if such termination occurs on or before the first
anniversary of the date hereof, $550,000; (ii) if such termination occurs during the period starting
on the day after the first anniversary of the date hereof and ending on the second anniversary of
the date hereof, $369,500; and (iii) if such termination occurs during the period starting on the
day after the second anniversary of the date hereof and ending on the day before third
anniversary of the date hereof, $181,500. If State terminates this Contract in part, DOC shall pay
to Contractor a pro rata portion of such termination fee in proportion to the portion of the entire
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Services under this Contract which are terminated. Except for the termination fee payable by
DOC to Contractor as described above, neither State nor any State Entity shall have any liability
for State's termination of this Contract in whole or in part under this section. The foregoing
notwithstanding, no termination fee shall be payable under this section to Contractor if State
delivers a notice to Contractor of State's desire to terminate this Contract as described in Section
4.1.
Notwithstanding the foregoing, no termination fee payable by DOC shall be so large as to
constitute a penalty.
Contractor shall give State written notice of its intent to submit any claims for
compensation under this section within thirty (30) calendar days after the effective date of
termination, and shall submit all such claims within sixty (60) calendar days after the effective
date of termination. Contractor hereby waives, releases, and renounces any claim for
compensation not made within this period.

10.6

NOTICE OF TERMINATION

In the event either Party elects to terminate this Contract, termination shall be effected by
delivery via Certified mail, RETURN RECEIPT REQUESTED, to the other Party of a Notice of
Termination specifying the extent to which the Contract is terminated, thereasons for such
. termination and the date upon which such termination becomes effective.
: ..

10.7

EFFECT OF TERMINATION

Within ninety (90) days following the termination of this Contract for any reason
whatsoever, State shall take possession and controlof the Recording Media and shall be solely
responsible for the handling, transportation and storage thereof.

10.8

NON-PREJUDICE FOR TERMINATION

State's termination of this Contract shall be without waiver of or prejudice to any other
remedy available to State in connection with this Contract.

PART XI
MISCELLANEOUS
11.1

GOVERNING LAW, JURISDICTION, VENUE

This Contract shall be governed and construed in accordance with the laws of the State of
Oregon, without resort to any jurisdiction's conflict of laws, rules or doctrines. Any Proceeding
between State and/or any State Entity and Contractor that arises from or relates to this Contract
shall be brought and conducted solely and exclusively within the Circuit Court of Marion County
for the State of Oregon. Provided, however, if a Proceeding must be brought in a federal forum,
then it shall be brought and conducted solely and exclusively within the United States District
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.

~.

Court for the District of Oregon. CONTRACTOR, BY EXECUTION OF THIS CONTRACT,
HEREBY CONSENTS TO THE IN PERSONAM JURISDICTION OF SAID COURTS.
11.2

RESOLUTION OF DISPUTES

11.2.1 Mediation: Each Party agrees not to institute any Proceeding in
connection with this Contr~ct u;ntil the Parties shall have attempted in good faith to submit the
matters in dispute to a non-binding mediation process. Submission of the dispute to mediation
shall not be a precondition to any action or proceeding involving temporary or emergency relief,
or the enforcement of this clause itself.
11.2.2 Choosing a Mediator: If a dispute arises under this Contract, the Parties
shall discuss the desired qualifications of the mediator. Either Party may suggest one or more
candidates, or may recommend that the mediator be chosen from a roster. The mediator must be
selected by agreement of both Parties. Each Party shall promptly disclose to the other Party any
circumstances which would cause reasonable doubt regarding the impartiality of the individual
under consideration or appointed as mediator. Any such individual shall promptly disclose any
such circumstances to the Parties. If any circumstances have been disclosed, before or after the
individual's appointment as mediator, the individual shall not serve, unless the Parties agree.
11.2.3 Mediator Compensation: The mediator's compensation rate will be
determined at or before his or her appointment. Such compensation, and any other costs of the
process, will be shared equally by the Parties, unless otherwise agreed.

)

11.2.4 Mediation Ground Rules: The ground rules for the mediation shall be:
a)
The process is voluntary and non-binding. Either }larty may withdraw at
anytime by notifying the mediator and the other Party in writing of its intent to withdraw.
b)

The mediator shall be neutral and impartial.

c)
The mediator controls the procedural aspects of the mediation. The
Parties will cooperate fully with the mediator.
d)
There will be no direct communication between the Parties or between
their attorneys regarding the matter in dispute without the concurrence of the mediator.
e)

The mediator is free to meet and communicate separately with each Party.

The mediator will decide when to hold separate meetings with the Parties
and when to hold joint meetings. The mediator will fix the time and place of each session and
the agenda, in consultation with the Parties.
f)

g)
Each Party may be represented by more than one Person, e.g., a staff
member and an attorney. To the fullest extent possible under the law, at least one representative
of each Party will be authorized to negotiate a settlement of the dispute.
J:\DATA\lcs\Final Version PayPhone Contract.doc

h)
The process will be conducted expeditiously. Each representative will
make every effort to be available for meetings.
i)
The mediator will not transmit information given to him or her by either
Party to another party, unless authorized to do so.

j)
To the fullest extent authorized or permitted by the law, the entire process
will be confidential. The Parties and the mediator will not disclose information regarding the
process, including settlement terms, to third parties, unless the Parties otherwise agree or unless
required by law to do so. The process shall be treated as a compromise negotiation for the
purposes of the Federal Rules of Evidence and Oregon Evidence Code. The mediator will not be
disqualified as a witness, consultant or expert in any pending or future action relating to the
subject matter of the mediation, including those between Persons not parties to the mediation.
k)
The mediator, if a lawyer, may freely express his or her views to the
Parties on the legal issues of the dispute, unless a Party objects to him or her so doing.
1)
The mediator may obtain assistance and independent expert advice with
the agreement of and at the expense of the Parties.
m)
The mediator will not be liable for any act or omission in connection with
.'
his or her role as a mediator.
n)
The Parties willrefrain from court proceedings during the mediation
process, insofar as they can do so without prejudicing their legal rights. H litigation is pending'
between the Parties regarding the subject matter of the mediation, the Parties may agree to
inform the court of the mediation process and the name of the mediator, and theymay request a
$tIlYQf<::Ql.Jl.tt>m~ngs.lnsQfar.as. RQssible,.. disCQYery.willbesuspended.while.mediation..i s
ongoing.

11.2.5 Preliminary Meetings: Once a mediator is selected, the Parties will meet
jointly with the mediator to discuss the above ground rules and any different or additional ground
rules the mediator or either Party wishes to propose. The Parties and the mediator may agree on
whether the Parties will be the frrst to make settlement proposals, or whether they wish the
mediator to make such a proposal once he or she has familiarized herself with the dispute.
11.2.6 Submission of Material: Upon entering into mediation each Party shall
submit to the mediator such material and information as it deems necessary to familiarize the
mediator with the dispute. The mediator may request any Party to provide clarification and
additional information. The mediator may request each Party, separately or at a joint meeting, to
present its case informally to the mediator.
11.2.7 Negotiation of Settlement Terms: Once the mediator has familiarized
himself or herself with the case, he or she will hold discussions with the representatives of the
Parties. The mediator will decide when to meet or confer separately with each Party, and when
J:\DATA\lcs\Final Version PayPhone Contract.doc

to hold joint meetings. The mediator may assist the Parties in arriving at a settlement in a variety
of ways.
If the Parties fail to develop mutually acceptable settlement terms, the mediator, before
terminating the procedure, may submit to the parties a final settlement proposal which he or she
considers equitable to all Parties. The Parties will carefully consider such proposal, and at the
request of the mediator wil~ di~uss the proposal with him or her.

Efforts to reach a settlement will continue until (a) a settlement is reached, or (b) one of
the Parties withdraws from the process, or (c) the mediator concludes and informs the Parties that
further efforts would not be useful.
If a settlement is reached, the mediator, or one of the Parties at the mediator's request,
will draft a written settlement document incorporating all settlement terms. The draft will be
circulated among the Parties, edited as necessary, and if acceptable, formally executed.

11.3

SEVERABILITY

If any provision of this Contract is declared by a court to be illegal or in conflict with any
law, the validity of the remaining terms and conditions shall not be affected; and the rights and
obligations of the Parties shall be construed and enforced as if the Contract did not contain the
particular provision heldto be invalid.

11.4

TIME

Time is of the essence in this Contract.

.. 11.5 . ASSIGNMENT
Except as otherwise provided herein, without the prior written consent of DAS IR.MD
(which shall not be unreasonably withheld), Contractor shall not assign, delegate or Transfer its
rights, duties, or obligations under this Contract to any Person or entity, in whole or in part,
whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise.
Notwithstanding the foregoing or the provisions of Part X (Termination) above, Contractor may
assign its rights hereunder to a parent, subsidiary or affiliated company (including a company
formed as part of Contractor's planned merger with Qwest Communications, Inc. or any other
company with whom Contractor merges or consolidates) without DAS IR.MD's consent;
provided that (i) the assignment does not increase the obligations of State under this Contract, (ii)
such assignee or transferee shall be subject to all defenses of State under this Contract, (iii) such
assignee or transferee shall be responsible for all of Contractor's obligations under this Contract,
and (iv) Contractor shall not be released from its obligations under this Contract and Contractor
shall remain primarily liable for all of its obligations under this Contract as if no assignment had
occurred. Any attempt by Contractor, except as provided herein, to assign or in any way
Transfer its interest in the Contract without such prior written consent of DAS IRMD shall be
deemed a material breach of this Contract. Written requests for DAS IRMD's consent to an
assignment, delegation or Transfer shall be provided to State at least ninety (90) calendar days
]:\DATA\lcs\Final Version PayPhone Contract.doc

prior to the proposed effective date of the assignment. If DAS IRMD consents to such
assignment, delegation or Transfer, the assignee or transferee shall be entitled to all of
Contractor's rights under this Contract, provided that (i) the assignment does not increase the
obligations of State under this Contract, (ii) such assignee or transferee shall be subject to all
defenses of State under this Contract, (iii) such assignee or transferee shall be responsible for all
of Contractor's obligations under this Contract, and (iv) Contractor shall not be released from its
obligations under this Contract and Contractor shall remain primarily liable for all of its
obligations under this Contract as if no assignment had occurred.
The foregoing notwithstanding, Contractor may assign, delegate or Transfer its rights,
duties or obligations under this Contract to an Affiliate of Contractor, provided that (i) the
assignment, delegation or Transfer does not increase the obligations of State under this Contract,
(ii) such assignee or transferee shall be subject to all defenses of State under this Contract,
(iii) no Change of Control of Contractor shall have occurred, and (iv) Contractor shall not be
released from its obligations under this Contract and Contractor shall remain primarily liable for
its obligations under this Contract as if no assignment had occurred.

11.6

SUCCESSORS IN INTEREST

The provisions of this Contract shall be binding upon and shall inure to the benefit of the
Parties to this Contract and their respective pennitted successors and assigns.
'

11.7

ENTIRE AGREEMENT
..

~

.. ,.

This Contract, together with the Solicitation, the Proposal, all written clarification
materials, all supplementary documents incorporated by reference, all Written Authorizations,
and all exhibits and attachments hereto and thereto, constitute the entire agreement and
\Jll~~~~clin.g~~~n.tI1eP~es\\'itl1~~~!!()tI1~~-'!1>j~tIl1a.~1"h~~f8I!(itl1.~~f.8I!cJ.
.
supersede all prior-agreements mid UIlderstandings, whether oral, written~ implied or expressed,
relating to the subject matter hereof.

11.8

INTERPRETATION OF DOCUMENTS

The documents fonning this Contract (the "Contract Documents") consist of: (i) this
Contract; (ii) the Exhibits and/or Appendices to this Contract, which describe the specific
Service to be provided, the fees to be paid, the rates to be charged users of Pay Phones and
Iiunate Phones, and other information as may be necessary regarding the Service; (iii) the other
Exhibits and/or Appendices and/or Attachments to this Contract; (iv) the Solicitation and all
materials provided as part of or adjunct to the Solicitation, and written requests for clarification
or additional information; and (v) Contractor's Proposal, including all its submittals, pricing
information, reference materials, and any other documentation submitted with the Proposal and
accepted by State, or in response to a written request for clarifications to the Proposal which may
arise. The Contract Documents are complementary and what is called for by one shall be as
binding as if it were called for by all. The Contract Documents are intended to include all details
of the Services to be provided and the manner of provision. In case of conflict among any of the
Contract Documents, the order of precedence to resolve such conflict shall be the following:
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(1) this Contract and its Appendices, Exhibits, and Attachments; (2) the Solicitation; (3) the

Proposal; (4) written clarifications; (5) written submittals; then (6) Certificates of Insurance.
Without limiting the foregoing, any comments by Contractor contained in the Proposal or any
attachments to the Proposal (including, but not limited to, the copies of the Tariffs attached to the
Proposal) which limit the requirements contained in this Contract or the Solicitation or which
contain descriptive language or items which are not as favorable to State as the language or items
contained in this Contract <;>r t~ Solicitation shall not be deemed to be accepted and agreed to by
State unless such comments are specifically written into this Contract or the Appendices to this
Contract.

11.9

AMENDMENTS, WAIVERS

This Contract may not be amended except by an instrument in writing signed on behalf of
each of the Parties hereto. No term or condition of this Contract may be waived except by an
instrument in writing signed by the Party against whom such waiver is sought to be enforced.

11.10 CAPTIONS
The captions or headings in this Contract are for convenience only, and in no way define,
limit, or amend the scope or intent of any provision of this Contract. Any cross-references
provided are for convenience only, and in no way limit all references to a particular subject.

11.11 WAIVER
Failure of State to enforce any provision of this Contract shall not constitute a waiver or
relinquishment by State of the right to such performance in the future nor of the right to enforce
that or any other provision of this Contract, nor bar State from enforcing stric~ performance of
suchpmvisionin any..subsequentinstance.

11.12 FORCE MAJEURE
Except with respect to defaults of Subcontractors for which Contractor shall be
responsible, neither Party shall be held responsible for any delay in perfonilance or failure to
perform caused by fires, strikes, embargoes,computer failures resulting from situations out of
Contractor's control (provided, however, that this does not include computer failures caused by
failure of Contractor or any of its Subcontractors to be in Y2K Compliance), power outage, civil
or military authorities, acts of God, or other conditions beyond the reasonable control and not
caused or contributed to by fault or negligence of the Party (each a "Force Majeure Event").
This provision as it relates to strikes shall apply only to failure to perform or delay in installation
of the Services, and does not relieve Contractor from making every reasonable effort to maintain,
repair, or restore the Services. With respect to Contractor's obligations under Section 7.4 or
other section regarding any Y2K Compliance, such Y2K issues shall not be considered a Force
Majeure Event excusing Contractor's performance. If the delays are caused by the default of a
Subcontractor, and if such default arises out of causes beyond the control of both Contractor and
its Subcontractor, and without the fault or negligence of any of them, Contractor will not be
liable for damages for delays, unless the supplies or services to be furnished by their
J:\DATA\lcs\Final Version PayPhone Contract.doc

Subcontractors were obtainable from other sources in sufficient time to permit Contractor to
meet the required schedule.
In the event of a reduction or interruption of Services subject to this Section, Contractor
shall employ its best efforts to restore the Services to State and the applicable State Entities on
the highest priority basis consistent with applicable statutes, rules, regulations, or other valid law.
Contractor acknowledges that Services outages may affect users with public security and safety,
law enforcement, and military missions. Without limiting the foregoing, Contractor will make
all possible efforts to restore Mission Critical Services on an expedited basis. "Mission Critical
Services" are defined to include all of the Inmate Phone Services and Monitoring and Recording
Services, and those Pay Phone Services the loss of which may affect users with public security
and safety, law enforcement and military issues.

11.13 NOTICES
All notices, requests, demands or other ~ommunications required by or otherwise with
respect to this Contract shall be in writing and shall be deemed to have been duly given to any
Party when delivered personally (by courier service or otherwise), when delivered by facsimile
and confirmed by return facsimile, or seven days after being mailed by first-class mail, postage
prepaid and return receipt requested in each case to the applicable addresses set forth below:
IF TO CONTRACTOR:

WI1H A COpy To:

Joanna Sissons
Account Manager-Corrections
U SWEST Communications, Inc.
1600 7th Avenue, Room 2604
Seattle,WA98191

US WEST, Inc.
Law Department
1801 California St., Suite 5100
Denver, CO 80207
Attn: Attorney.forPublicAccess.Solutions..

Telephone: (206)345-2343
Facsimile: (206)345-2255

Telephone: (303)672-2700
Facsimile: (303)308-9456

IF TO STATE:

WI1H A COpy To:

RalphD. Cox
Voice Services Manager
Oregon Department of
Administrative Services
Network Communications Section
955 Center St. NE, 5th Floor
Salem, OR 97310

Randy C. Wells
Support Service Coordinator
Oregon Department of
Administrative Services
Network Communications Section
955 Center St. NE, 5th Floor
Salem, OR 97310

Telephone: (503)373-7211
Facsimile: (503)378-8333

Telephone: (503)373-1814
Facsimile: (503)378-8333

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or to such other address as such Party shall have designated by notice so given to each other
Party.

11.14

CONTRACTOR'S INFORMATION AND PROPERTY

"Confidential Information" shall mean any technical or business information, including
third-party information, marked as confidential or proprietary and furnished, disclosed or made
available in connection wi~h thjs Contract, in any form or medium, by one Party to the other,
including, without limitation, specifications, prototypes, software, models, drawings, marketing
plans, financial data and personnel statistics. Confidential Information does not include
information which (1) the recipient knew or had in its possession prior to disclosure, without
confidential limitation; (2) is independently developed by the recipient without breach of this
Contract; (3) becomes publicly available without breach ofthis Contract; (4) is received
rightfully from a third party and without obligation of confidentiality; or (5) is disclosed without
restriction by the disclosing party.
Except as may be required by applicable law (including without limitation Oregon's
Public Records law, ORS 192.410 et seq.), regulations, legal or agency order, demand or
process, neither Party shall disclose to a third party any Confidential Information or the contents
of this Contract without the prior written consent of the other Party.
All information relating to AT&T's Non-Sent Paid Calls such as usage information,
including, but not limited to, call tracking and call records (hereinafter "Information"), shall
remain the property of AT&T and when in tangible form shall be returned upon request. All
Information shall be kept confidential by State and shall be used only in State's performance
hereunder, subject to the requirements of Oregon's PuJ:>lic Records law and provided that the
obligation to keep confidential the Confidential Information referred to in this subsection does
not apply to information which (1) the recipient knew or had in its possession prior to disclosure,
withoutconfidential limitation; (2) is independently developed by the recipient without breach of

tlii.sConfraCi;-(j)tJeComespiibficlY·avallablewlthoiiibreachoftlii.scontract;(4Hs·recetved . .

rightfully from a third party and without obligation of confidentiality; or (5) is disclosed without
restriction by the disclosing party.

11.15

TIllRD PARTY BENEFICIARIES

Each of State and any State Entity that receives any of the Services shall be deemed a
third party beneficiary of this Contract. In addition to State, DAS IRMD or any other State
Entity is entitled to enforce the terms of this Contract and the remedies available due to any
breach of this Contract by Contractor.

11.16

INCORPORATION BY REFERENCE

All of the provisions of the Solicitation, including, but not limited to, Part II, Contract
Terms and Conditions, are incorporated herein and made a part of this Contract, except to the
extent specifically modified by the terms of this Contract, in which event the terms of this
Contract shall control. If there should exist a conflict between the express requirements of terms
of this Contract or the Appendices or other Attachments hereto and the provisions of the
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Solicitation, such conflict shall be resolved according to the order of precedence described in
Section 11.8. Any reference in the Solicitation to the term "Service" shall be deemed to be a
reference to the term "Services" as defined in this Contract. To the extent not in conflict with the
obligations under this Contract, the Parties hereto agree (and Contractor agrees to cause all
Subcontractors) to comply with the obligations contained in Part II, Terms and Conditions, of the
Solicitation.

..

~

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11.17

EXECUTION AND COUNTERPARTS

This Contract may be executed in several counterparts, each of which shall be an original,
all of which shall constitute one and the same instrument. Any counterpart may be executed and
delivered by means of a telecopy or other facsimile transmission.

STATE:

STATE OF OREGON
BY: DEPT. OF ADMINISTRATIVE
SERVICES
By

_
Donald F. Mazziotti
Chief Information Officer

STATE OF OREGON
BY: DEPT. OF ADMINISTRATIVE
SERVICES
PURCHASING SECTION
By

_

Robin J. Rickard
~~~()f . Q!~g()J:lJ.>t1r'cl1~in.gManager

BY: DEPT. OF ADMINISTRATIVE
SERVICES
PURCHASING SECTION
By

_
Marsceea Stone
DAS Contracts Coordinator

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APPROVED AND ACCEPTED:

STATE OF OREGON
DEPT. OF CORRECTIONS
By

_
Les S. Dolecal
Assistant Director and Inspector General

CONTRACTOR:

US WEST COMMUNICATIONS, INC.
By

_
Susan B. Parks
Vice President - General Manager
Business & Government Services Division

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FORM APPROVED FOR LEGAL SUFFICIENCY
By
Special Assistant Attorney General

_

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APPENDIX 1.1
DEFINITIONS
Additional Services: Any Services initiated or installed under this Contract beyond the
Initial Services, including, but not limited to, (i) any installation of new Inmate Phones or new
Pay Phones requested to be installed by State, or (ii) any removal of Inmate Phones or Pay
Phones requested to be removed by State.
Affiliate: As to any Person, any other Person which, directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control with, such Person.
As used in this definition "control" (including, with its correlative meanings, "controlled by" and
"under common control with") shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership of securities or
partnership or other ownership interest, by contract or otherwise).
Change of Control: Any Transfer of more than fifty percent (50%) of the voting
securities of a Person or Transfer of the power to direct or cause the direction of management
policies (whether through ownership of securities or partnership or other ownership interest, by
contract, operation of law or otherwise).
DAS IRMD: State of Oregon, Department of Administrative Services, Information
Resources Management Division, Telecommunications Section.
DOC: State of Oregon, Department of Corrections.
Emergency: A problem or outage that could potentially result in injury (broken glass,
exposed wires), loss of life, or is security threatening.
Equipment: All equipment installed or made available by Contractor in connection with
the delivery of the Services, including, but not limited to, the Inmate'Phones, the Monitoring and
Recording Systems equipment, the Pay Phones, and all equipment previously installed by
Contractor under other contracts between State and Contractor which is permitted to be used by
Contractor under this Contract.
Extended Term: Is as defined in Section 4.
FCC: The Federal Communications Commission.
GAAP or generally accepted accounting principles: United States generally accepted
accounting principles recommended from time to time by the Financial Accounting Standards
Board.
Indemnified Parties or Indemnified Party: State, all State Entities, their officers,
divisions, agents, employees, and representatives.

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Initial Services: Any Services required under Appendix 2.1 to be installed and
operational as soon as possible after the date of execution of this Contract without the need for
any Written Authorization.
Initial Term: Is as defined in Section 4.
Inmate Phone Seryice~: That portion of the Services related to the Inmate Phones.
Inmate Phones: All telephones located on DOC owned or operated facilities which are
available for use by DOC inmates, except Pay Phones.
IRS: Internal Revenue Service.
Key Personnel: Specific personnel of Contractor deemed by State to be key personnel
to the support of this Contract.
"Like-New": Equipment that is refurbished, at a minimum, to all original factory
specifications. Refurbishing shall be done by Contractor or its contracted representatives at an
ISO 9000 qualified refurbishment facility. Appearance and operation of the Equipment shall be
the same as new.
Loss: Any and all loss, damage, claim, obligation, liability, cost and expense (including,
but not limited to, reasonable attorney and other professional fees and costs and expenses
incurred in investigating, preparing, defending against or prosecuting any Proceeding).
OAR: The Oregon Administrative Rules.

ORS: Oregon Revised Statutes.
OVA: State of Oregon, Oregon Youth Authority.
Pay Phone Services: That portion of the Services related to the Pay Phones.
Pay Phones: All public payphones (including, but not limited to, coin telephones)
located on State owned or operated properties.
Person: Any individual or corporation, company, general partnership, limited
partnership, limited liability company, limited liability partnership, trust, incorporated or
unincorporated association, joint venture, governmental authority or other entity of any kind.
Proceeding or proceeding: Any claim, suit, action, arbitration, investigation, protest or
proceeding.

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Proposal: Contractor's written Response to Solicitation #10704001 98 for State of
Oregon Pay and Inmate Telephones Presented by US WEST, Joanna Sissons, Account Manager,
1-800-275-0616, including all pricing information, attachments, reference materials, and written
clarification's submitted as part of the response to the Solicitation, and additional information
provided in response to subsequent requests or inquiries from DAS IRMD. The term Proposal
includes Alternate (Multiple) Proposals submitted by Contractor.
Monitoring and Recording Services: The monitoring and recording services for the
Inmate Phones described more fully in Appendix 2.1.
Monitoring and Recording Systems: The Equipment, software and other products
utilized by DOC and Contractor to provide the Monitoring and Recording Services, as more fully
described in Appendix 2.1.
Recording Media: The DAT tapes, CD's, diskettes and other recording media used in
connection with the Inmate Phones and the Monitoring and Recording Systems.
Specifications: All requirements and specifications set forth in this Contract, the
Solicitation, the Proposal and all appendices and other attachments to this Contract, the
Solicitation and the Proposal, including, but not limited to, the performance requirements and
specifications for the Service set forth in Appendix 2.1 to.this Contract.
'.

)

State: State of Oregon, acting by and through DAS, and, on and after the date of this
Contract, any designee of DAS authorized to act under this. Contract, for a particular purpose,
pursuant to a Written Designation.
State Entity (collectively referred to as "State Entities"): State, DAS IRMD, DOC or
any S~te of0regon·Institution" Board" Commission, Agency or-Department ofthe State of
Oregon which may be the direct or indirect recipient of the Service provided herein; provided,
however that this shall not include the Oregon State Lottery, the Oregon State Lottery
Commission, the SAIF Corporation or Oregon Health Sciences University (OHSU).
Station Wiring: The wiring from the phone closet to the instrument.
Subcontractor: The individual, firm, corporation, or organization having a direct
contract with Contractor to furnish Service, either wholly as described in the Contract, or in
support of or as part of Service, which is the responsibility of Contractor.
Term: The Initial Term together with any Extended Term.
Transfer: To grant, sell, assign, encumber, permit the utilization of, license, lease,
sublease or otherwise convey, directly or indirectly, in whole or in part.
Turn Key: Complete installation including all craft work, training, etc., as necessary to
fully implement or operate a system. All that remains is for the end user customer to tum the
key.
J:\DATA\lcs\Final Version PayPhone Contract.doc

Y2K Compliance: The tenn "Y2K Compliance" shall include but not be limited to: (i)
accurately processing and reporting on (including but not limited to calculating, comparing and
sequencing, moving backward and forward in time, including leap-year calculations), without
human intervention, date/time data with respect to dates and data prior to, through and beyond
January 1,2000; (ii) perfonnance of the Services without interruption, damage and/or
interference due to the transition from the 20th to the 21st Centuries and/or due to ongoing
operation in the 21st Century; (iii) correctly differentiating between years in different centuries
that end in the same two digits; and (iv) ensuring that all data inputs, outputs and results with
respect to the Services, the Equipment and systems used in support of the Services include a
century indicator.
Written Designation: A letter from DAS to Contractor advising Contractor that a
specific State Entity designated by DAS in such letter is authorized to act, on behalf of the State
under this Contract, for the purpose described in such letter.

APPENDIX 2.1
SERVICE
Contractor agrees to provide to State and all applicable State Entities, and State
agrees to purchase from Contractor, the following Services (individually, a "Service",
and collectively, the "Services") pertaining to Inmate Phones and Pay Phones currently
installed and which may be installed in the future during the Term of this Contract.
The representations about the Services to be provided contained in the Proposal
are incorporated herein by this reference to the extent they are not inconsistent with or
. less protective to State. If there is any conflict or inconsistency between the Proposal
and this Appendix, the terms of this Appendix shall control.

2.1.1

PAY PHONE SERVICES
2.1.1.1

iQsWlI~tion'COsts,~~q~~,q1tl).~,applicable;'ariioltIlt'descriDed;uttli~;pnQts~nt~ ceifthe ,:"

l'rorcaole~tfitit:;."

'(o'the'amourif'dfthEfiristallaliOn:cos

' " or'

$~~~otiIl0~~~ri~~:~~~'V~'~;'lip~~2a~l~iE2~~£\flt'~M~i;Pt~ytcte;rq1tmI~"~'

,
mamtam ,'and keep In .operatlon'such new PayPhone. Factors that determIne the cost of
installation include but are notlimited t(n6catioilfeasibility~tcablepairavailability;
distance' to service area;"means'of' providifig"mfil'ton€~"nrmntefiIDi~!:~(lIttii.rtc~'to''§efVice
andrep3ir~The foregoing notwithstanding, except with respect to DOC facilities,
"
unless otherwise agreed to byContractor,th¢':l1umber;pf1ww..P ayPhoneswhich

Gontractorshallbe.reqUire(ftoinsti11sf1atlndf"'6'~~~i)'11ttiflng!t1lSlDinm11"~i1n.tl1irtY

(30}PaY',Phones~''Wd(ii) diliing'the'Eii~rtaecrTe-rm:'ir'~X;jteff'lrOj;'fay'~6oIfes~'p(;r

eaCh't\V~lY~'(l2)moijtli~ffg~r'Q¥ifgthe:gxt"§ii'~e(1'jf~rfii"':~t~ontractor, at its expense,
also shall provide, instail,ihaihtai:nandkeepirioperation all new Pay Phones requested
by DOC, including line activation and all required station wiring and enclosures, at any
location owned, leased, rented, or operated by DOC now or in the future, regardless of
whether such new Pay Phone is uneconomical to Contractor.';'

)

2.1.1.2 AIl new Pay Phones provided under this Contract shall be
installed in compliance with current ADA (Americans with Disabilities Act)
requirements, contain no removable:parts, and be designed; constructed, and installed
in such a manner as to minimize vandalism and destruction of property and to present
no safety hazard to the user.
2~1~13The-Paffi.esagreethat 'Contractor Will'installateaClfPay
Phone location a Classic Payphone (Western Electric ID2), an Automatic Electric
120B, a Nortel Millennium Advanced Payphone, an Elcotel Series 5 or a Fortec 31K"
or a mutually agreed to replacement phone and/or equivalent. Calling cards and coins
shall be useable with any model of payphone listed above. To the extent not
inconsistent with the requirements set forth in this Appendix and elsewhere in the
Contract, these payphones shall be constructed and configured, and shall perform, as
represented in the brochures attached to Contractor's Proposal.

2.1.1.4 The Pay Phones provided under this Contract shall be
programmed, either via the set or the line class-of-service, to deny or allow incoming
calls, as detennined by State. Unless specifically designated otherwise by DAS IRMD,
all Pay Phones shall be programmed to deny incoming calls.
2.1.1.5 Contractor shall provide statewide installation, maintenance,
and service to all Pay Phone locations detennined by State, in its sole discretion.

J:\DATA\lcs\Final Version PayPhone Contract.doc

2.1.1.6 Contractor shall have emergency support personnel
available by pager 24 hours per day, seven days per week to respond to Pay Phone
outages. For normal repair and maintenance work, field technicians and their
supervisors shall be available five (5) days a week, between 7:00 a.m. and 4:00 p.m.
The repair interval for a minor repair fix or maintenance shall be 24 hours or less, five
(5) days a week. A major repair fix shall be completed within four (4) hours after the
outage is reported. A major failure is an outage that may cause injury or a life
threatening situation.
2.1.1.7 Contractor shall provide the following for all Pay Phones:
(1) 24 hour per day, seven days per week operator service
for call handling, domestic and international directory service, complaint reports, and
credit adjustments for cutoffs and poor transmission quality;
(2) A 24 hour per day, seven days per week toll-free
number for reporting telephone set troubles;

(3) A minimUm of two alternate language voice prompts for
Nortel Millennium Advanced Payphones only (provided, however, that for currently
installed Pay Phones and all new Pay Phones, including all Nortel Millennium
Advanced payphones,··theoperaforsernces··providerutilizecf6YContractorfor·sucli
Pay Phones shall offer numerous foreign languages accessible through live operators);

(4) Multilingual operator service;
(5) The ability to place calls to all domestic and
international locations within the North American Dialing Plan;
(6) P.01 Busy Hour grade of service;

(7) Less than one percent of phone calls shall be lost due to
hardware/software failure;
(8) Short call setup time (industry standard) from last digit
dialed to credit card tone dial signals, operator answer, and first ring at destination;
(9) Easy to understand charge records for users of Pay
Phones;
J:\DATA\lcs\Final Version PayPhone Contract.doc

(10) Methods to control fraud using Pay Phones;
(11) Alphabetical and classified directories; and
(12) All signage and notices required by the FCC and the

oPUC.

2.1.1.8 Within 60 days of the close of Contractor's fiscal year, an
annual report containing an inventory of the telephone numbers and locations for each
Pay Phone covered by this Contract shall be provided to DAS IRMD.

2.1.1.9 Contractor or its Subcontractors shall provide, at its
expense, local and long distance (intraLATA, interLATA, intrastate, interstate, and
international) calling service for all of the Pay Phones located on properties owned or
operated by State or any State Entity, including those currently installed and those yet
to be identified or installed in the future during the term of this Contract.

2.1.1.10 All local and long distance services, whether provided
with Contractor's resources and over its network, or with the resources and networks of
other telecommunications companies shall integrate with one another and operate
seamlessly. Full reporting of all usage for all calling services shall be provided.
Contractor shall also provide access to seven days per week, 24 hour per day
professtonal··security···and·fraudmonitoring;·and·fully··interactivecalltrace·capability
that will immediately report the addresses of call origins where technology permits.

2.1.1.11 Contractor shall be able to utilize the long distance
carrier selected by DASIRMD and Contractor without degradation of service, loss of
fees to State or any of its entities, or loss of monitoring capability where required by
DASIRMD.
2.1.1.12 Contractor shall meet with State personnel, on a quarterly
basis, during the Term of this Contract, to review and discuss Contractor's
performance under this Contract.

2.1.2

INMATE PHONE SERVICES
2.1.2.1 Inmate Phones

2.1.2.1.1 Contractor, at its expense, shall provide, install,
maintain and keep in operation Inmate Phones, which shall be industry standard US
J:\DATA\lcs\Final Version PayPhone Contractdoc

WEST lOA c~inless telephone station equipment and/or equivalent (including line
activation and all required station wiring) designed for and capable of providing service
to prison inmates at all locations within DOC facilities where Inmate Phones are
currently installed and may be requested by DOC to be installed in the future in
existing facilities, in expansion of existing facilities, or in new construction under way
or yet to be initiated, regardless of whether such Inmate Phones are uneconomical to
Contractor. To the extent not inconsistent with the requirements set forth in this
Appendix and elsewhere in the Contract, these Inmate Phones shall be constructed and
configured, and shall perform, as represented in the brochures attached to Contractor's
Proposal, and/or equivalent. Installation shall include line activation, all required
station wiring, and interconnection with Monitoring and Recording Systems equipment
where equipped.
2.1.2.1.2 All Inmate Phones shall be installed with a cutoff
switch located in a controlled area that, when activated, can physically disable the
telephone to prevent any incoming or outgoing calls and disrupt any call in progress..
A call deactivation capability shall also be provided that will allow DOC personnel to
disable any Inmate Phone from a local control center or area designated by DOC where
station wire can be installed and cable provided by the State.
2.1.2.1.3 . All Inmate Phones provided under this Contract
shall be installed in compliance with current ADA (Americans with Disabilities Act)
requirefi1efits~cofitaififiOrefi1ovableparts;andbedesigned;·const:fticted,· and installed
in such a manner as to minimize vandalism and destruction of property and to present
no safety hazard to the user. Telephone Devices for the Deaf (1DD)(acoustic couplers)
shall be provided where required at each DOC facility.
2.1.2.1.4 Except with respect to features required by law or
regulations, upon request from State and upon mutual agreement of the Parties,
Contractor will provide additional features for the standard Inmate Phones, including
hands-free speaker phones and amplified volume control.
2.1.2.1.5 Contractor or its Subcontractors, at its expense,
shall provide local and long distance (intraLATA, interLATA, intrastate, and interstate)
calling service and equipment for all of the Inmate Phones located within all DOC
facilities both currently installed and as may be installed in the future during the Term
of this Contract, in expansion of existing facilities or in new construction under way or
yet to be initiated. Contractor or its Subcontractors, at its expense, shall provide
international calling service and equipment for designated Inmate Phones both
currently installed and as may be installed in the future during the Term of this
J:\DATA\lcs\Final Version PayPhone Contract.doc

Contract, in expansion of existing facilities or in new construction under way or yet to
be initiated, at each DOC facility (such phones to be designated by DOC).
2.1.2.1.6 All local and long distance services, whether
provided with Contractor's resources and over its network, or with the resources and
networks of other telecommunications companies shall integrate with one another and
operate seamlessly.
2.1.2.1.7 Contractor shall be able to utilize the long
distance carrier selected by Contractor and agreed to by DAS IRMD without
degradation of service, loss of fees to DOC, or loss of monitoring capability where
required by DOC.
2.1.2.1.8 Contractor shall provide P.01 Busy Hour grade of
service to all Inmate Phones.
2.1.2.1.9 Except to the extent in conflict with any of the
provisions contained in this Section 2.1.2 of Appendix 2.1, the obligations of
Contractor applicable for Pay Phone Services described in Section 2.1.1 of Appendix
2.1 shall also apply to Inmate Phone Services.

J:\DATA\lcs\Final Version PayPhone Contract.doc

APPENDIX 3.1
The following rates and surcharges shall be charged to users of Pay Phones and
Inmate Phones (which in the case of collect calls, shall be the recipients of the calls) for
local calls; intrastate, intraLATA calls; intrastate, interLATA calls; interstate calls; and
international calls. These rates and surcharges shall constitute the total costs to users of
the Pay Phones or Inmate Phones; no additional rates or charges per call, per minute,
per mileage band may be imposed, and no additional rate periods applied without the
written consent of DAS IRMD.
1.
For users of Inmate Phones, for interLATA, intrastate calls within
the State of Oregon, Contractor and its applicable Subcontractor will charge only (i) a
set-up fee per call which shall not exceed $2.75, and (ii) a per minute charge which
shall not exceed $0.59. In the event Contractor or its applicable Subcontractor
introduces an inmate calling plan for interLATA, intrastate calls within the State of
Oregon, Contractor and its Subcontractor will chargefor inmate phone calls either (a)
for users who choose to utilize such inmate calling plan, the set-up fee and per minute
charge applicable under such inmate calling plan, or (b) for users who choose not to
subscribe to such inmate calling plan, the rates published by Contractor or its
applicable Subcontractor in their respective tariffs, general catalogue rates, or price
lists; provided that the inmate calling plan offers to subscribers a rate that is lower than
the rate available to non-subscribers pursuant to Contractor's or its applicable
Subcontractor's' .tariffs;general'cataloguerates'orpricelists;
2.
For users of Pay Phones, for interLATA, intrastate calls within the
State of Oregon, Contractor and its applicable Subcontractor will charge only the
applicable rates and other charges published by Contractor and its Subcontractors in
their respective tariffs, general catalogue rates, or price lists.
3.
For users of·Inmate Phones and Pay Phones, for interstate and
international calls, Contractor and its Subcontractors will charge only the applicable
rates and other charges published by Contractor and its Subcontractors in their
respective tariffs, general catalogue rates, or price lists.
4.
For users of Inmate Phones and Pay Phones, for local and
intraLATA, intrastate calls, Contractor and its Subcontractors will charge only the
normal and customary prices, rates and other charges published by Contractor and its
Subcontractors in their respective tariffs, general catalogue rates, or price lists.

J:\DATA\lcs\Final Version PayPhone Contractdoc

APPENDIX 3.2
Contractor shall pay to DOC each quarter during the Initial Tenn, payable on
the final day of each calendar quarter, the following fees:

AMOUNT
Each quarter during first year of Initial Tenn of Contract:

$625,000

Each quarter during second year of Initial Tenn of Contract:

$681,250

Each quarter during third year of Initial Tenn of Contract:

$750,000

J:\DATA\lcs\Final Version PayPhone Contract.doc

KEY PERSONNEL

Teresa O'Keefe

Sales Manager

Tt(()KtEEFr{; t/ :-:!/(' -(J: UJP7-/
Inmate

-it Joanna Sissons

Account Manager - Corrections
Senior Account Manager - Corrections
Account Manager - Corrections
Account Manager - Corrections
Regional Account Manager CorrectionslPay Phones
Account Consultant - Corrections

-Jim Crouch
Dale Cherrington
Linda Aronson
Sydney Carrick
Denitrice Jenkins

Pay Phone

~7 _

Lance Lorenz ~yrna Victoriano
JIm Brandt
Dean Lagrave
Dianna Isom
Sydney Carrick

~;)S-55bS-

~6 -3 ~q ()

Regional Account Manager
Account Consultant
Retail Services Product Manager
Regional Account Manager
Regional Account Manager
Regional Account manager

J:\DATA\lcs\Final Version PayPhone Contract.doc

APPENDIX 6.13

SUBCONTRACTORS
1.

Century Tel- intraLATA and local phone service

1.

Sprint-United - intraLATA and local phone service

1.

GTE - intraLATA and local phone service

1.

AT&T - international, interLATA, 0+ and 1+ phone service

1.

Dictaphone, Inc. - Monitoring and Recording Systems, inmate call recording and ''Track
Down" call detail management systems

1.

T-NETIX, Inc. - hardware and software for inmate call control systemNovember 28,
2001November 28, 2001November 28, 2001November 28, 2001November
28, 2001November 28, 2001November 28, 2001November 28,
2001November 28, 2001November 28, 2001November 28, 2001November
28, 2001

J:\DATA\lcs\Final Version PayPhone Contract.doc

USWEST
1801 California Street, Suite 5200
Denver. Colorado 80202
(303) 896-8608 (phone)

(303) 965-2484 (fax)
e-mail: sparks@uswesl.com

ll~WEST

Susan B. Parks

fife's better here" @

VICe President and General ManagerBusiness & Government Solutions

May 30,2000

State of Oregon, Department of Administrative Services
955 Center St., NE, 5th Floor
Salem, Oregon 97310
Re:

Fees Payable to State of Oregon, Department of Corrections

Dear Sir or Madam:
In consideration of the State of Oregon permitting U S WEST Communications, Inc. (" Contractor") to
render telecommunications services to the State of Oregon, Department of Corrections (" DOC" ) during
the period from May 16,2000, to June 30, 2000, whereby Contractor earns revenue from, among other
things, telephone calls made by inmates at DOC facilities, Contractor agrees to pay to DOC an amount
equal to Three Hundred Fifteen Thousand Nine Hundred Thirty Four Dollars ($315,934), payable in cash
on June 30, 2000, less any amounts of commissions actually paid to DOC by Contractor before June 30,
2000, with respect to such telecommunications services for the period May 16, 2000, to June 30, 2000,
under the existing contractual relationship between DOC and Contractor or paid directly to DOC by GTE,
Sprint, AT&T and Century-Tel for that same period under their existing contractual relationships with
DOC.
US WEST COMMUNICATIONS, INC.

By:

_~A-l\.l-i o_:~=jj---:'

'_-oA_i/"'-_-__

J1=--ooo

Susan B. Parks
Vice President and General ManagerBusiness & Government Solutions

AGREED AND ACCEPTED:
STATE OF OREGON
DEPARTMENT OF ADMINISTRATIVE SERVICES

By:

MA~

Name~~------Title: lID

USA

OQ9
Proud Sponsor
36USC380

CONFIDENTIAL PURSUANT TO ORS 192.502(5)
Reference is made to the Contract for Inmate and Payphone Equipment and Services and
Associated Inmate Monitoring & Recording Equipment and Services dated as of July 1,
2000 (the "Contract") between US WEST COMMUNICATIONS, INC. and the STATE
OF OREGON, acting by and through its DEPARTMENT OF ADMINISTRATIVE
SERVICES (hereafter "DAS"), and to Amendment No.2 to Contract dated
~(QJh"""'"No d..'f
' 20ot, between QWEST COMMUNICATIONS, INC., successor in
interest to 'US WEST COMMUNICATIONS, INC. (hereafter "Contractor") and State.
Pursuant to Section 2.1 of Contract, Contractor and DAS hereby confirm and agree that
the attached are Sections 2.1.2.2 and 2.1.2.3 of Appendix 2.1 of Contract, that the
attached are part of Contract and are incorporated by reference into Contract, and that the
attached shall be held by the State of Oregon, Department of Corrections ("DOC") as
information or records of DOC entitled to confidential treatment under ORS 192.502(5)
and otherwise in accordance with Section 2.1 of Contract.

c:., Dated as of .:rUo"~ OlQ
STATE:

, 200y'

STATE OF OREGON
BY: DEPT. OF ADMINISTRATIVE

:~RV~£=D
BY:_~~
?
STATE OF.'::'.I.,"'-L:.I....:I"'-"I
BY: DEPT. OF ADMINISTRATIVE
SERVICES
PURCHASING SECTION

State of Oregon Purchasing Manager

BY: DEPT. OF ADMINISTRATIVE SERVICES
PU
HASING SECTION
By: -I/V!!!!!!q,o~~~:L..-_---