Prison Phone Justice

ASSIGNMENT AND ASSUMPTION AGREEMENT

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the
"Assignment") is made as of M AV I Q J WO 7
(the
"Effective Date") by and between Qwest Corporation a Colorado corporation and
successor in interest to U.S. West Communications, Inc. (hereinafter "Qwest" or
"Assignor"), FSH Communications,LLC, a Delaware limited liability company
(hereinafter "Assignee") and State of South Dall:ota ("State"). Assignor, Assignee and
State are sometimes collectively referred to herein as the "Parties".
WHEREAS, on or about July I, 2002, Qwest (through its predecessor in interest,
U.S. West Communications, Inc.) and State entered into that certain Inmate Telephone
Service Agreement, as amended (the "Inmate Agreement").
WHEREAS, subsequent to entering into the Inmate Agreement, Assignor and
Assignee entered into certain agreements whereby Assignor agreed to dispose of and
Assignee agreed to acquire certain of Assignor's pay telephone business assets and
obligations.
WHEREAS, Assignor desires to assign all of its interest, rights and obligations
under the Inmate Agreement to Assignee, and Assignee desires to accept assignment of
Assignor's interest, rights and obligations under the Inmate Agreement.
WHEREAS, the Parties desire to document the formal Assignment of the Inmate
Agreement and State's consent to the Assignment.
NOW, THEREFORE, for good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Effective as of the Effective Date and subject to the terms and conditions hereof, the
Assignor transfers, assigns and sets over to the Assignee all of the Assignor's interest
in the Inmate Agreement and Assignee assmnes all of Assignor's interest in the
Inmate Agreement. Notwithstanding anything in the Inmate Agreement to the
contrary, this Assignment and State's consent to this Assignment shall release
Assignor from any and all obligations of Assignor under the Inmate Agreement.
2. Subject to the terms and conditions hereof, Assignee hereby accepts this Assignment
and the assignment of Assignor's interest in the Inmate Agreement. Assignee hereby
agrees to perform all obligations of Assignor under the Inmate Agreement and to hold
harmless, protect and indemnify Assignor against any and all claims, causes of action,
loss, costs, liabilities and expenses related to Assignee's performance or nonperformance under the Inmate Agreement.
.
3. State hereby consents to the assignment of the Inmate Agreement to the Assignee in
accordance with the terms and conditions of this Assignment, and joins in this
Assignment for the purpose of acknowledging its consent and approval thereto.
4. This Assignment may be executed via facsimile and in several counterparts and all so
executed shall constitute one agreement binding on all Parties hereto.
I'SH SD DOC Assignment Agreement! • JPP 041607l.doc

1

5. This Assignment shall be construed in accordance with laws of the State of South
Dakota, without regard to conflicts of law rules,· and the parties irrevocably consent to
the personal jurisdiction of the courts of South Dakota and irrevocably waive any
objections to personal jurisdiction or venue in South Dakota. The federal and state
courts of South Dakota shall have exclusive jurisdiction over any disputes arising out
of this Assignment or the Inmate Agreement All actions shall be venue<! in Hughes
County, South Dakota.

IN WITNESS WHEREOF, the Parties hereto have executed the Assignment as of the
. dates set forth below.

"Assignor"

"Assignee"

AGREED AND
CONSENTED TO BY:

"State"
Qwest Corporation
1801 California
Denver, CO 80202

State of South Dakota, for its
Bureau of Information and
Telecouununications

FSH Communications,

LLC
100 W. Monroe St., Suite 2101
Chicago, 1L 60603

700 Governor Drive
Pierre, SD 57501

~d~A~·
s~~ I/P
Print Name and Title

12tfo TId /I

S"lC'le"tV l..D6-fi-1tIV-S- VI'

Print Narne and Title

s-!e/-zooz
Date

FSHSD DOC As~gomenl Agreement! - JPP 041607I.doc

2

13tJ:::i;}J)w/JlVlr':55/'CiYter
an:te and Title
.

Print

.DP.:J3-<i7
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AMENDMENT ONE
TO AGREEMENT
BETWEEN
FSH COMMUNICATIONS, LLC
. ,
AND
STATE OF SOUTH DAKOTA
State of South Dakota ("State") and FSH Communications, LLC ("FSH"), hereby enter into Amendment
One to the Inmate Telephone SelVice Agreement Number CDS-020515-0007 ("Underlying Agreemenr').. in
which FSH provides the State with lnmate Telephone Communication Services.
MODIFICATIONS:
1.

Replace all references to Owest Corporation ("Qwes!") with FSH Communications, LLC ("FSH").

2.

SECTION 1. TERM. CHANGE to read:
This Agreement is effective July 1. 2007 ("Effective Date"), and shall continue in effect until June
30, 2009. Upon completion of this renewal term, this Agreement will continue on a month-tomonth basis under the same terms and conditions uniess terminated by either party upon thirty
(30) days written notice.

3.

SECTION 3. RESPONSIBILITY OF FSH. ADD 3.5 to read:
Jointly determine with the State on annual basis. periodic mutually agreeable time to revjew call
volumes, revenue performance, and services Rrovided. Any discrepancies noted during the
. review will be negotiated between the parties. FSH will submit to the State a monthly report
summarizing, at minimum, the gross revenue for all' completed calls and aSsociated commission.
Form and format will be one acceptable by the State.
FSH will coordinate with the authorized contact(s) for the State facilities any service
enhancements and or changes at any of the State correctional facilities.

,'.4.

SECTION 6. FUTHER LOCATIONS AND TELEPHONES. ADD to read:
FSH will agree to continue to provide and maintain all phones, lines, technology, and services
and continue to serve the State as' the prime vendor of record.
'. FSH will agree to provide an integrated networked solution with upgraded hardware and software
for all of the State DOC facilities. A separate Statement of Work will be developed between
FSH and the State which will detail the entire project plan, including timelines and training
. requirements. A list of all sites affected are listed on Schedule C.

5.

SECTiON 7. COMMISSION. CHANGE to read:
Schedule A: COMMISSON SCHEDULE FOR SOUTH DAKOTA. fiSH agrees to pay the State on
all billed collect calls for lacel. intraLATA, interlata, and interstate revenue. Specific detail
outlined in the attached revised Schedule A.

.Amendment One Inmate Telephone Services Agreement
Confidential
.

6.

SECTION 18. NOTICES. CHANGE to read:
Any notices or other communications to be given under this Agreement shall be sent to the following
persons:

FORFSH:

FOR SPACE PROVIDER:

FSH Communications, LLC
100 W. Monroe St. Suite 2101
Chicago, IL 60603
ATTN: Mike Johnson

State of South Dakota BIT

700 Governor Drive
Pierre, SO 57501
ATTN: Otto Doll

Either party may change its addresS for communications by giving notice in lM"iting.
All other terms and conditions of this Agreement shall remain in full force and effect. The effective date
of this Amendment One.shall be the date of the last signature shown below.

FSH Communications, LLC

State of South Dakota

Signature

Signatu'le

State of South Dakota

Steve Loggans

Name Printed!Typed
Vice President & General Manager

Title

Date

Date

. Amendment One Inmate Telephone Services Agreement
Confidential
.
.

Date

State ofSouth Dakota & FSH Communications, LLC

.

Pa~2

of 9

SCHEDULEB
COMMISSION SCHEDULE
FOR
STATE OF SOUTH DAKOTA
FSH agrees to pay Space Provider compensation for Inmate Telephone Service based upon
(38%) percent of billed ioeal and intraLATA coJlect call revenue and (33%) percent of billed interlata and
interstate collect call revenue as billed by FSH's underlying telecommunications providers, exdusive of
calls where no billing and collection agreements exist.

$.14'"
$.27- - weekdays $.25'" evening, night & weekend

$2.00'"
$3.50*"
$3.00'"

. Amendment One Inmate Telephone Services Agreement
Confidential

$0.44'"

State ofSouth Dakota & FSH Commuuications, LLC
.
.
Page 7 of 9

SCHEDULEC
FACILITY LOCATioNS & EQUIPMENT PROVISIONS
FOR
STATE OF SOUTH DAKOTA

Mike Durfee State Prison

State of South Dakota State Penitentiary
Jameson Unit
1600 North Drive
Sioux Falls, SO 57117
Description
25' M/M amo cable
APe Power strio
Panamax-towermax DS 25 Lightning
Protection
MlLT1
4 - KSU - 4 Oullet Suroe Suooressor
ADTRAN924E
ADTRAN924
Powerware Ethernet Mon Card
PW·51251500 RM UPS
Dell FS726T Switch
B-Line 4 FT Rack
Casters
Shelf

1412 Wood Street
Springfield,
SO 57062
.
~

Qty
4
2

3
2
1
1
4
1
1
1
.. 1

Amendment One Inmate Telephone SelViees Agreement
CoofidentiaI

3
1
1
1
1
1
1
1

3
1

Redfield Minimum Unit
th
17262 West 6 Street
Redfield, SO 57469
Qty
1
2
2
1

Descriotion
Quintum Box 8 Count
25' M/f amp cable
25' M/M amp cabie
Towermax Co 25 Liahtnina Protection

Qty
1
2
2
1

1

APC Power strip
Panamax-towermax co 25 Lightning
Protection
Towermax CO 25 liahtnlna Protection
4 - KSU - 4 Oullet Surge Suppressor

1

.

Towermax CO 25 Liahtnina Protection
4 - KSU - 4 Outlet Surae Suppressor
ADTRAN924
Powerware Ethernet Mon Card
PW-5125 1500 RM UPS
Adlran Rack Mount HW Kit 1200927:l19
Dell FS726T Switch (Per Mack Koramil
B-line 4 FT Rack
Casters
Shelf

Qty

1
2

South Dakota Women's Prison
3200 East Highway 34
Pierre, SO 57501
Descriotion
QUintum Box 24 Count
25' M/f amp cable
25' M/M amp cable
APe Power striP
Panamax-towermax co 25 Lightning
Protection

Description.
25' M/M amp cable
APC Power strip
Panamax-towermax DS 25 Lightning
Protection
MLlT1
4 - KSU - 4 Oullet Surae Suppressor
ADTRAN924
Powerware Ethernet Mon Card
PW-51251500 RM UPS
Adtran Rack Mount HW Kit
Dell FS726T Switch

1
1
1
1
1
1
1
1
1
1

State of South Dakota & FSR Communications, LLC
Page 8 of 9

1
1
1

Rapid City Minimum Unit
2317 Creek Drive
Rapid City, SO 5770~

Yankton Minimum Unit
178 Mickelson Drive
Yankton, SO 57078
Qty
1
2
2
1

Description
Quintum Box 8 Count
25' Mif amp cable
25' M/M amo cable
Towermax CO 25 liQhtninQ Protection

Qty
1
2
2
1

Protection.

1

1

Towermax CO 25 LiQhtnina Protection
4 - KSU - 4 Outlet SUrQe Suppressor
ADTRAN924
Powerware Ethernet Mon Card
PW-5125 1500 RM UPS
Adtran Rack Mount HW Kit 1200927119
Dell FS726T Switch (Per Mack Korami)

1
1
1
1
1
1

APC Power strip
Panamax-towermax co 25 lightning
Protection
Towermax CO 25 Liahtnina Protection
4 - KSU - 4 Outlet Surge Suopressor

Descriotion
Quintum Box 24 Count
25' Mlf amp cable
25' MIM amp cable
APC Power strip
Panamax~towermax

co 25 lightning

1
B-line 4 FT Rack
Casters
Shelf

1
1
2

Amendment One Inmate Telephone Services Agreement .
Confidential
. ..
.

.,' ..

State ofSouth Dakota & FSH Communications, LLC
.
Page 9 of 9

1

1
1

RELEASE AND WAIVER OF CLAIMS
THIS RELEASE AND WAIVER OF CLAIMS (hereinafter referred to as "Release") is
made this _14th_day of March 2007 by the State of South Dakota, FSH
Communications, LLC ("FSH") and Qwest Corporation ("Qwest") in consideration of the
following:
In July 2002, State of South Dakota ("South Dakota") and Qwest
Communications ("Qwest") entered into an Inmate Telephone Agreement ("South
. Dakota Agreement") for South Dakota Inmate and Public Payphone Services.

WHEREAS,

WHEREAS, In August 2004, Qwest sold certain assets related to its Public Access
Solutions unit and transferred (to the extent possible under the South Dakota
Agreement) the South Dakota Agreement and all of its rights and obligations there under
. to FSH Communications, LLC ("FSH");
WHEREAS, Page 6, Schedule A, Commission Schedule, of the Agreement described
above, reads as follows:
Type of Call Qwest Collect Inmate Telephone commission level 38%
Type of Call T-Netix Collect Inmate Telephone commission level 33%

WHEREAS, FSH and South Dakota mutually agreed to review the inmate telephone
. records and determine if all completed calls were properly commissioned. During FSH
review of the call detail records and billing files for South Dakota, FSH identified some
discrepancies in the data reported. FSH notified Qwest of their findings in September
2006, requesting an internal audit and review of the commissions paid at one facility.
WHEREAS, Qwest audited records from the inception of the Agreements through
August 23, 2004 (the "Qwest Audit") and concluded that the following facility were not
commissioned during said period as follows:
...•

Mike Dufree State Prison: Total Local and Intralata call revenue for the time
period 8/03 through 8/23/04 NOT commissioned $84,983.21;

WHEREAS, FSH audited records for each facility for the period JUly 1, 2002 through
November 2006 ("FSH AUdit") and concluded that the following facility were not
commissioned during said period as follows:
• . Mike Durfee Slate Prison: Total Local and intralala call revenue for the time
.period 8/24/06 through 7/06 NOT commissioned $169,433.16
•

Mike Durfee State Prison: Totallnter/ata and Interstate call revenue PAID for
time period 1/03 through 11/06$68,952.13; NOT commissioned $43,270.18;

1

ti

NOW THEREFORE,. in consideration of the foregoing and of the mutual promises and
undertakings set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENTS

To resolve the underpayment of commissions identified in the Owest Audit, Qwest will
pay South Dakota the sum of $84,983.21, plus 10% interest ($31 ,930.89) though 211/07,
for a total amount of $116,914.10. (the "Qwest Underpayment Amount)
Qwest represents and warrants to South Dakota that Qwest Underpayment Amount
represents full and complete payment due and owing to South Dakota under the South
Dakota Agreement for the period of time covered by the Owest Audit (i.e. prior to August
23,2004)
FSH will pay South Dakota the sum of $169,433.16, plus 10% interest ($28,447.52)
through 2/1/07, for a total amount of $197,880.68, for uncommissioned Local and
intralata call revenue identified during the FSH Audit. (the "FSH Underpayment Amounn
FSH will pay South Dakota, on behalf of Securus Corporation (formerly known as TNetix), the sum of $43,270.18, plus 10% interest ($12,206.48 through 211/07, for a total
.
amount of $55,476.66, for uncommissioned (nterlata and Interstate call revenue
identified during the FSH Audit. (the "Securus Underpayment Amount')
FSH represents and warrants to South Dakota that FSH and Securus Underpayment
Amount represents full and complete payments due and owing to South Dakota under
the South Dakota Agreement for the period of time covered by the FSH Audit.
South Dakota, hereby acknowledges the total combined settlement amount of
$370,271.44 as the full settlement for monies owed by Owest and FSH for
uncommissioned calls under the South Dakota Agreement.
The respective amounts will be paid by Owest and FSH within three (3) business days of
the completed execution hereof.
"
IN EXCHANGE for such consideration, South Dakota, hereby, on behalf of itself,
administrators, assigns and successors, covenants not to sue, and fully and forever
releases and discharges FSH, Securus Corporation, Owest and their affiliates, divisions,
successors and assigns, together with their managers, officers, agents, directors, and
representatives, from any and all claims for payment for services, demands, rights, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations, debts,
.costs, expenses, attomeys' fees, damages, jUdgments, orders or liabilities of whatsoever
kind or nature in law, equity or otherwise, whether now known or unknown which South
Dakota now owns or holds or has at any time heretofore owned or held as against FSH,
Securus Corporation and Owest as it solely relates to ttie underpayment of commissions
at the Mike Durfee State Prison under the South Dakota Agreement for the time period
of July.2002 through November 2006, including but not limited to the result of the Owest
Audit and FSH Audit.
..

2 -

THIS RELEASE constitutes the entire agreement concerning the audit and payment of
unpaid commissions due under the South Dakota Agreement. This Release supersedes
and replaces all prior negotiations and all agreements proposed or otherwise, whether
written or oral, concerning the sUbject matter covered herein.
IN WITNESS WHEREOF, the Slate of South Dakota, has caused this Release to be
executed and delivered, as of the date first written below.
StateIff Sfuth Dakota

By:~f)~
Title: j{1e.cD",mIl.1UW~
Date:

3! I q.1..t:.20~?4+-

nl~R..
_

Acknowledged and agreed:
FSH Communications LLC

Owest Corporation

By:

By:

Title:
. Date:

_
_

•

3

Title:

_

Da.te:

_

AMENDMENT TWO
TO AGREEMENT
BETWEEN
FSH COMMUNICATIONS, LLC.
AND
STATE OF SOUTH DAKOTA
State of South Dakota ("State") and FSH Communications, LLC ("FSH"). hereby enter into Amendment
,Two to the Inmate Telephone Service Agreement Number CD5-02051lKlOO7 ("Underlying Agreement"), in
which FSH provides the State with Inmate Telephone Communication Services.
MODIFICATIONS:
1.

SCHEDULE B IN AMENDMENT ONE. The original contract has SCHEDULE A as the Commission
Schedule. It was inadvertently inserted as Schedule B in Amendment One. CHANGE Title to
read:
SCHEDULE A: COMMISSION SCHEDULE 'FOR STATE OF SOUTH DAKOTA.

..2-

SECTION 7. COMMISSION. To correct the Setup Charges Jar local and intreLATA collect calls.
The Setup Charges of $3.00 for local collect and $2.80 for IntraLATA collect have been in effect
.for the State of SD since 3105. CHANGE to read:
SCHEDULE A: COMMISSION SCHEDULE FOR STATE OF SOUTH DAKOTA. FSH agrees to
pay the State on all billed collect calls for local, intraLATA, interlata. and interstate revenue.
Specific detail outlined in the attached revised Schedule A. .
. SCHEDULE A IN AMENDMENT ONE. The original contract does not include a list of telephones
and locations. Schedule 0 would be sequentially consistent with the original contract. CHANGE
Title to read:

.'3.

SCHEDULE 0: INMATE TELEPHONE LOCATIONS FOR STATE OF SOUTH DAKOTA.
All other terms and conditions of this Agreement shall remain in full force and effect. The effective date
Of this Amendment shall be the date of the last signature shown below.
FSH Communications, LLC•

i7

()JAr
"Signature

.

~

State of South Dakota

state of South Dakota

-; £./

Signature

Signature

Name PrintedfTyped

Name PrlntedfTyped

Title

Title

Date

Date

Ste.Je.tA LD 4l¥L"'--S .
··Name PrintedfTyped-l"

\fiL(.t>v'~i J e.J 'I- b.- h
Title
A

Date

J:76in a~

2-eO?
'.

'1

SCHEDULE A .

COMMISSION SCHEDULE
FOR
STATE OF SOUTH DAKOTA
FSH agrees to pay Space Provider compensation for Inmate Telephone Service based upon
(38%) percent of billed local and intraLATA collect call·revenue ahd (33%) percent oJ billed interlata and
interstate collect call revenue as billed by FSH's underlyinglelecommuriiealionsprQviders,exclusive of
calls where no billing and collection agreements exist.
•

38%*

33%""*

$.14'***:

$2.80*"

$.27*** - weekdays $.25*** _
evening, night & weekend· .

$2.00***

$3.50***

$0.50***

$3.00"*

.$0.44***

2.

21420 North IS'" Lane
Suite 100
Phoenix, AZ 85027
Office: 623-516-4540
steven.loggans@fshcommunicatioDs.com

F:;;tII;=

cornrnunlcat"~ons

Steven Loggans
Vice President & General Manager
Express Overnight Mail Deliverv
Mr. JeffPierce
State of South Dakota
Bureau ofInfonllation & Technology
910 E. Sioux Avenue
Pierre, South Dakota 57501-3904
May 15,2007
Re: Assignment and Assumption Agreement
DearMr. Pierce:
Enclosed, please find three copies ofthe Assignment and Assumption Agreement
executed by Qwest Corporation and FSH Communications. After signature, will you
please return two fully executed copies to my address above?
. I would like to thank you for assistance and patience in getting this matter resolved. As
always, if there is anything else we can assist you with, please call James Formanek,

Dana Alixander or myself.

·Sincerely, r

~bf~
Steven Loggans .
Cc:

,

i ..

..'

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