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Agreement Number: _
Billing Number: _
QWEST NETWORK SERVICE AGREEMENT
QWEST DS1 SERVICE
Intrastate
This Qwest Corporation Intrastate OS1 Service Agreement ("Agreement") is between City of Auburn ("Customer") and Qwest
Corporation, ("Qwest") and is effective on the date Qwest signs it ("Effective Date"). Qwest will provide, and Customer will purchase,
Qwest Intrastate DS 1 Service provided under this Agreement ("Service"). Any Qwest tariff, price list, price schedule, administrative
guideline, and/or catalog (hereinafter, whether individually or together, "Tariff") applicable to the Service is incorporated into the
Agreement by reference and made a part of the Agreement. The Service will be govemed by: (a) the Tariff applicable to the Service;
and (b) to the extent a comparable Tariff term or condition does not apply to the Service, the terms and conditions set forth in this
Agreement. In the event of a conflict in any term or condition of any documents that govern the provision of the Service hereunder, the
following order of precedence will apply in descending order of control: the Tariff, this Agreement, and Qwest records.
1. Description of Service.
1.1 Qwest will provide Service up to the Standard Network Interface ("SNI") at Customer's premises. The SNI is that location where
Qwest's protected network facilities end and Customer's inside wiring or network begins.
1.2 Service provides for the twe-way transmission of 1.544 Megabits per second ("Mbitls") on a point-to-point basis only. Service may
be provisioned on copper, fiber, or other suitable facilities, at Qwest's discretion, and it may be used for the transmission of voice,
data, and/or video signals. Service is available between: (a) two customer-designated premises; (b) a customer-designated premises
and a Qwest serving wire center; or (c) Owest serving wire centers. When Service is requested between two Qwest serving wire
centers, Central Office Multiplexers ("CaMs") must also be ordered for each serving wire center of the DS 1 circuit, and Private Line
Transport service must be ordered to connect each COM to the Customer's premises.
1.3 Customer understands and agrees that Qwest supplies Service as an intrastate, intraLATA telecommunications service, as
defined by State and/or Federal Communications Commission ("F.C.C.") regulations, which are incorporated herein by this reference.
It is Customer's responsibility to ensure that Customer uses Service as an intrastate, intraLATA telecommunications service consistent
with such regulations. F .C.C. regulations permit interstate usage of Service if such usage does not exceed 10% of the total usage. If
Customer should use this Service for any other purpose, or if interstate usage exceeds 10%, it is Customer's responsibility to
immediately notify Qwest of such use and to place an order for appropriate service. Owest will bill, and Customer will promptly pay,
appropriate monthly recurring charges, for such use of and changes to Customer's telecommunications service including, but not
limited to all applicable Owest Access Tariff F.C.C. No.1 interstate access charges or intrastate Tariff access charges.
2. Term.
2.1 This Agreement will commence on the date on which Qwest signs it, following Customer's execution of this Agreement ("Effective
Date"), and it expires 12 months from the date Service is available to Customer, as evidenced by Qwest records ("Initial Term"). After
the expiration of the Initial Term, this Agreement will continue automatically on a month-te-month basis unless a party notifies the other
party in writing of its desire not to renew this Agreement at least 60 calendar days, and no more than 120 calendar days, prior to the
end of the Initial Term. After the Initial Term, either party may terminate this Agreement upon 30 calendar days prior written notice.
The Initial Term and any month-te-month period thereafter will be collectively referred to as the "Term."
2.2 After the Initial Term, Customer will pay for Service at Qwest's then-current rates. Qwest will inform Customer of its then-current
rates for Service upon written request.
3. Service Ordered.
3.1 Customer orders and Qwest will supply Service as follows.
No. of Circuits Address of Circuit Location 1 Address of Circuit Location 2 I
1 25 West Main Street, Aubum WA 2020 Mountain View Rd, Auburn, WA 3.2 Qwest will notify Customer of the date Service ordered is available to Customer under this Agreement. In the event Customer is
unable or unwilling to accept service at such time, the subject Service will be held available for Customer for CI period not to exceed 30
business days from such date ("Grace Period"). If after this Grace Period, Customer still has not accepted Service Qwest may, at its
sole discretion, after consultation with Customer either: (a) commence with regular monthly billing for the subject Service; or (b) cancel.
If Customer: (c) cancels an order for Service prior to the date Service is available fot use; or (d) is unable to accept Service during the
Grace Period and Qwest cancels the Service at the end of the Grace Period, Qwest may charge Customer for any costs incurred by
Qwest related to the provisioning of Service up through the date Service was made available to Customer.
4. Payment. Customer must pay Qwest all charges by the date on the invoice. Any amount not paid when due will be subject to a
late charge as specified by the Tariff, or if there is no such late charge specified in the Tariff, the amount due will be subject to late
interest at the lesser of the rate of 1 %% per month or the highest rate permitted by applicable law. Customer must also pay Qwest any
applicable Taxes assessed in connection with Customer's Service. "Taxes" means federal, state and local taxes, surcharges, and
other similar charges. Qwest may in its sole discretion modify the payment terms or require other reasonable assurance of payment if
Customer has failed to pay any invoice when due or there is a material and adverse change in Customer's financial condition.
Customer will pay those charges listed below. The charges for Services under this Agreement, including ;any and all discounts to
which Customer may be entitled, will be offered and charged to Customer independently from, and regardless of, Customer's purchase
of any customer premises equipment or enhanced services from Qwest.
Total Monthly Recurring Charge ("MRC"): $282.00
Total Nonrecurring Charge ("NRC"): $0.00
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5. Changes to Service. Pursuant to the applicable Tariff, if any, Customer may move the physical location of all or part of the Service to
another location within the same Qwest intrastate, intraLATA serving area, including within a building or among buildings. Customer will
pay all of the then-current installation and other charges for any such move.
6. Termination.
6.1 Either party may terminate Service and/or this Agreement in accordance with the applicable Tariff or for Cause. "Cause" means
the failure of a party to perform a material obligation under this Agreement, which failure is not remedied: (a) in the event of a payment
default by Customer, within five days of separate written notice from Qwest notifying Customer of such default (unless a different
notice period is specified in the Tariff); or (b) in the event of any other material breach, within 30 days of written notice (unless a
different notice period is specified in the Tariff or this Agreement). Customer will remain liable for charges accrued but unpaid as of
the termination date. If, prior to the conclusion of the Term, Service is terminated either by Qwest for Cause or by Customer for any
reason other than Cause, then Customer will also be liable for a termination charge "Termination Charge" of:
(a) If during the first 12 months of Service ("Minimum Service Period"), Customer will pay all accrued and unpaid charges for Service
provided through the effective date of such termination plus a Termination Charge of 100% of the MRCs for the terminated Service (or
any fraction thereof), multiplied by the number of months, or portion thereof, remaining in the Minimum Service Period, plus 40% of the
MRCs for the terminated Service (or any fraction thereof), multiplied by the number of months after the Minimum Service Period
remaining in the Initial Term.
(b) If after the Minimum Service Period, Customer will pay for all accrued and unpaid charges for Services provided through the
effective date of such termination plus a Termination Charge of 40% of the MRCs for the terminated ServiCE' (or any fraction thereof),
multiplied by the number of months, or portion thereof, remaining in the Initial Term.
6.2 A Termination Charge will be waived when all of the following conditions are met: (a) Customer discontinues Service and signs a
new service agreement(s) for any other Qwest-provided service(s); (b) the new service agreement(s) have a total value equal to or
greater than 115% of the remaining prorated value of the existing agreement(s) (excluding any special construction charges,
applicable nonrecurring charges, or previously billed but unpaid recurring and/or nonrecurring charges); (c) Customer places the
orders to discontinue Service and establish new service at the same time; and (d) a new minimum service period goes into effect when
the new service agreement term begins. The waiver does not apply to changes between regulated and unregulated or enhanced
products and services.
6.3 Qwest may: (a) immediately suspend all or any part of the Service; and/or (b) terminate this Agrel~ment (effective after the
applicable notice period): (i) for Cause (as defined herein); or (ii) upon written notice if Customer becomes or is declared insolvent or
bankrupt or is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer
for it.
7. Interruptions to Service. Tariff specifies the credit allowance due Customer, if any, for interruptions to Service which are not
caused by Customer. In the absence of a Tariff, the provisions of Qwest's F .C.C.1 Access Service Tariff will apply with respect to any
credit allowance due Customer for interruptions to Service.
8. Disclaimer Of Warranties. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY QWEST, ITS AFFILIATES, AGENTS, OR
CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WILL CREATE ANY WARRANTY. CUSTOMER ASSUMES TOTAL
RESPONSIBILITY FOR USE OF THE SERVICE.
9. Limitation of Liability. NEITHER PARTY, ITS AFFILIATES OR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS OR REVENUES
OR LOST DATA OR COSTS OF COVER RELATING TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF THE LEGAL
THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED. CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY AND ALL CLAIMS
RELATED TO THE SERVICE WILL BE LIMITED TO: (A) THOSE REMEDIES SET FORTH IN THE INTERRUPTIONS TO SERVICE
SECTION; OR (B) IF SUCH SECTION DOES NOT APPLY, THE TOTAL MRCS PAID, OR PAYABLE, BY CUSTOMER TO QWEST
FOR SERVICE IN THE MONTH IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.
NOTWITHSTANDING THE FOREGOING, THE LIMITATION OF LIABILITY IN THIS SECTION WILL NOT APPLY TO CUSTOMER'S
PAYMENT AND INDEMNIFICATION OBLIGATIONS.
10. Indemnification. Customer will defend and indemnify Qwest, its Affiliates, agents, and contractors against all third party claims,
liabilities, costs, and expenses, including reasonable attomeys' fees, arising from or related to the use, modification, or resale of the
Service by Customer or End Users. "End Users" means Customer's members, end users, customers, or any other third parties who
utilize or access the Service or the Qwest network via the Service provided hereunder. "Affiliate" means any entity controlled by,
controlling, or under common control with a party.
11. Confidentiality; Publicity. Neither party will, without the prior written consent of the other party: (a) issue any public
announcement regarding, or make any other disclosure of the terms of, the Agreement or use the name or marks of the other party or
its Affiliates; or (b) disclose or use (except as expressly permitted by, or required to achieve the purposes of, the Agreement) the
Confidential Information of the other party. Such consent may only be given on behalf of Owest by its Legal Department. A party may
disclose Confidential Information if required to do so by a govemmental agency, by operation of law, or if necessary in any proceeding
to establish rights or obligations under the Agreement, provided that the disclosing party gives the non-disclosing party reasonable
prior written notice. "Confidential Information" means any information that is not generally available to the public, whether of a
technical, business or other nature and that: (c) the receiving party knows or has reason to know is confidential, proprietary or trade
secret information of the disclosing party; and/or (d) is of such a nature that the receiving party should reasonably understand that the
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CONFIDENTIAL v1.050605
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disclosing party desires to protect such information against unrestricted disclosure. Confidential Information will not include
information that is in the public domain through no breach of this Agreement by the receiving party 01" is already known or is
independently developed by the receiving party.
12. Dispute Resolution; Governing Law. The Agreement and the parties' actions under the Agreement will comply with all
applicable federal, state, and local laws, rules, regulations, court orders, and governmental agency orders. Any dispute arising out of,
or relating to, the Agreement will be settled by arbitration to be conducted in accordance with the Judicial Arbitration and Mediation
Services ("JAMS") Comprehensive Arbitration Rules. The Federal Arbitration Act, 9 U.S.C. Sections 1-16, not state law, will govern the
arbitrability of disputes. The Agreement will otherwise be govemed by the laws of the state where Service is provided, without regard
to its choice of law principles. The costs of the arbitration, including the arbitrator's fees, will be shared equally by the parties;
provided, however, that each party will bear the cost of preparing and presenting its own claims and/or defenses (including its own
attorneys' fees). The venue for arbitration will be designated by the party not initiating the action with thl~ exception of any billing
collection disputes, which will be conducted in a location designated by Qwest or Denver, Colorado. The venue location designated
must be in a metropolitan area in which JAMS offers its dispute resolution services. A single arbitrator engaged in the practice of law,
who is knowledgeable about the subject matter of the Agreement, will conduct the arbitration. The arbitrator is bound to apply and
enforce the terms of the Agreement. The arbitrator's decision will be final, binding, and enforceable in a court of competent
jurisdiction. If a party is required to enforce compliance with this Section (including nonpayment of an award), then the noncomplying
party must reimburse all of the costs and expenses incurred by the party seeking such enforcement (including reasonable attorneys'
fees). This provision is not intended to deprive a small claims court or state agency of lawful jurisdiction that would otherwise exist
over a claim or controversy between the parties.
13. Notices. Except as otherwise provided herein, all required notices must be in writing and sent to Qwest at 1801 California Street,
Suite 900, Denver, Colorado 80202; Facsimile #: (888) 778-0054; Attn.: Legal Department, and to Customer at its then current address
as reflected in Qwest's records; Attn.: General Counselor other person designated for notices. Except as otherwise provided herein,
all notices will be deemed given: (a) when delivered in person to the recipient named above; (b) three business days after delivered via
regular U.S. Mail; (c) when delivered via overnight courier mail; or (d) when delivered by facsimile so long as duplicate notification is
also sent in the manner set forth in subsection (b).
14. General Provisions. Customer may not assign the Agreement or any of its rights or obligations under the Agreement without the
prior written consent of Qwest, which consent will not be unreasonably withheld. Customer may not assign to a reseller or
telecommunications carrier under any circumstances and represents that it will not resell the Service. The Agreement is intended
solely for Qwest and Customer and it will not benefit or be enforceable by any other person or entity, including without limitation, End
Users. If any term of the Agreement is held unenforceable, such term will be construed as near1y as possible to reflect the original
intent of the parties and the remaining terms will remain in effect. Neither party's failure to insist upon strict performance of any
provision of the Agreement will be construed as a waiver of any of its rights hereunder. All terms of the AgreE~ment that should by their
nature survive the termination of the Agreement will so survive. Neither party will be liable for any delay or failure to perform its
obligations hereunder if such delay or failure is caused by a Force Majeure Event. "Force Majeure Event" means an unforeseeable
event beyond the reasonable control of that party, including without limitation: act of God, fire, flood, labor strike, sabotage, fiber cuts,
acts of terror, material shortages or unavailability, govemment laws or regulations, war or civil disorder, or failures of suppliers of
goods and services. The Agreement constitutes the entire agreement between Customer and Qwest with respect to the subject matter
hereof, and supersedes all prior oral or written agreements or understandings relating to the subject matter hereof. Except for Tariff or
Service modifications initiated by Owest, all amendments to the Agreement must be in writing and signed by the parties' authorized
representatives. However, any change in rates, charges, or regulations mandated by the legally constituted authorities will act as a
modification of any contract to that extent without further notice. Qwest reserves the right at any time to reject any handwritten change
to the Agreement.
The parties have read, understand and agree to all of the above terms and conditions of this Agreement and hereby execute and
authorize this Agreement.
City of Auburn
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Authorized Signature
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Name Typed or Printed Name Typed or rinted
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Date Date
Address for Notices:
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