The prison phone industry, which provides telecom services for prisons, jails and other detention facilities, has a long and sordid history of exploiting prisoners and their families by charging exorbitant phone rates and fees. [See: PLN, Dec. 2013, p.1; April 2011, p.1]. Over the past decade the industry ...
WA Contract with AT&T 1992
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- . '!"""~... '. ; '''' . AGREEMENT ~ETWEEN STATE OF WASHINGTON DEPARTMENT OF CPRRECTIONS AND AMERICAN TELEPHONE AND FOR INSTALLATION AND OPERATION OF AT STATE CORRECTIONAL INSTITUTIONS TELEGRAP~ COKP~ AN rHHATE TELEPHO~ SYSTEH AND WORK RELEASE ~ACILITIES /,~ ~,: This Agreement is made and entered into this y of March, 1992, by and between the state of Washington De artment of Corrections ("Department"), and American Telephone ad Telegraph Company ("contractor"). I I WHEREAS, Department issued Request for Proposal ~o. CRFP2562, dated September 4, 1991, for an Inmate Telephonelj System and Recording/Monitoring at Department Correctional Instilitutions', and Work Release Facilities (the "RFP"); ~ I WHEREAS, on November 12, 1991, Contractor responded to the RFP with a total solution, combining a proposal by CQ~tractor, an interexchange carrier, to provide interLATA long dist nce service, with proposals by three local exchange companies ~"LECs"), GTE Northwest Incorporated ("GTE"), Telephone utilities 0' Washington, Inc. dba PTI communications ("PTI") and U S West C mmunications ("USWC"), to provide inmate telephone stations an: enclosures, recording and monitoring equipment and local ~ d intraLATA telephone service (collectively, the "Combined oposal" and individually, the "AT&T Proposal, II the "GTE Propo aI, the "PTI Proposal" and the "USWC Proposal"); . ; WHEREAS, on December 20, 1991, the Department ~nnounced its selection of Contractor as the successful vendor oni the basis of the Combined Proposal, with the understanding that'epartment and Contractor would enter into an Agreement coverig the entire project as set forth in the RFP and that Contract' would enter into Subcontracts with GTE, PTI and USWC to cover thQ e portions of the RFP for which those three LECs would be respons ble; , NOW, THEREFORE, Department and Contractor do mu~ually agree as follows: 1. Inco oration bv Reference of RFP and Pro osals. Contractor hereby agrees to provide the equipme t and services required by the RFP, on the basis set forth i~ the Combined Proposal. The RFP and the Combined Proposal, inc~uding the AT&T Proposal, GTE Proposal, PTI Proposal and the USWC Pi'oposal (e~cept for USWC's response to Attachment B to the RFP), s'all const~tute and hereby are made a part of this Agreement as t '. ~_!ully set forth herein. As used herein, the term "Contracto,. ~shall~~~ and refer to AT&T, its subcontractors and suppfJers-i;'JJ-@L~~Tfrf/ subsidiaries, affiliates, employees and agents of' 'I ~'ch of tii~~n:l 1\ ,J ,. ,1 ., J" ." . 'I .' ,I 'f ~II!! ; "1: ~::1. ! . .:.:... ~ -_ ....'i'J -. _"",,-,' . r._, ~ p 2. Scope of Agreement. A. The terms and conditions of this Agreement aPPly to the LEC Public Telephones at Department Correctional Institutions and Work Release Facilities listed on Attachment A to the ~PI as well as t~ new and expanded facilities for which the Departm,nt requests serv1ce. , I I LEC Public B. This Agreement applies to two types OftTelephones: PubI ic Telephones made available to I ates, from which only collect calls can be made ("Inmate Public "elephones n ) and other Public Telephones located on the premisesl of certain facilities for use by staff and visitors but not inm4tes ("Staff Public Telephones"), from which both "1+" and "O+n tel phone calls can be made. Unless otherwise stated in this Agreemet, the term "Public Telephone" shall refer both to Inmate Public Te: ephones and Staff Public Telephones. • 3. ProvisJ.on Contractor. of InterLATA and ." f • r I .;. InternatJ.onali ServJ.ce by 1 Contractor agrees to provide "0+" interLATA and ~'ii ternational service to all Pub I ic Telephones located on the· premises of Department Correctional Institutions and Work Releas. Facilities. The Department hereby selects Contractor as the I! 0+" primary interexchange carrier ("PIC") for operator assisted +) interLATA and international calls placed from all such LEC Publi Telephones. The Department appoints Contractor as its Agent for, purposes of submitting the Department's selection of Contractor a~ its PIC for such LEC Public Telephones. Nothing in this Agreement!j requires the Department to route "1+ 1r interLATA calls to AT1&T from any telephones covered by this Agreement. :1 ("t' 4. Subcontractors. The Department hereby approves Contractor's us~ of GTE, PTI and USWC as Subcontractors under this Agreement. S~~ forth below is a list of the equipment and services for which1i each of the Subcontractors will be responsible to provide to the jepartment, in accordance with the specifications of the RFP and the:GTE Proposal, PTI Proposal and USWC Proposal: A. GTE. GTE shall install and maintain pubiic telephone sets, all associated equipment, lines,· Dictaphone recording/monitoring equipment and call timing and jcall blocking software at the following location: I j i. Washington State Reformatory, MJnroe GTE shall install and maintain public telepho,e sets, all associated equipment, lines, call timing and blocki~g software at the following locations: - 2 - ii. Twin Rivers Corrections Center iii. Indian Ridge corrections center, Atlington I iv. Special Offender center, Monroe GTE shall also provide local and intraLATA telephone $ervice and operator service to the GTE Public Telephones at the I above four locations . 1 1 I PrI. PTI shall install and maintain publi~ telephone sets, all associated equipment, l i n e s , r Dictaphone recording/monitoring equipment and call timing and c~l blocking software at the following l o c a t i o n s : ! B. i. ii. Clallam Bay Corrections Center , Washington Correction Center for ,omen 1 PTI shall install and maintain public telephone' sets, all associated equipment, lines, call timing and call blockang soft~are at the following l o c a t i o n s : i ;;. iii. Olympic Corrections Center iv. Pine Lodge Pre-Release Coyote Ridge v. PTI shall also provide local telephone service and opel1lator service to PTI Public Telephones at the above five locations.: I C. I uswe. USWC shall install and maintain pUb ic telephone sets, all associated equipment, lines,! Dictaphone recording/monitoring equipment and call timing ~nd blocking software at the following locations: ' 1 I i. ii. iii. iv. Washington corrections center, s~elton McNeil Island Penitentiary Washington state Penitentiary, Wqlla Walla Airway Heights I USWC shall install and maintain public telephon~ sets, all associated equipment, lines, call timing and blockin~ software at the following locations: T ii v. Tacoma Pre-Release vi. Cedar Creek Corrections Center vii. Larch Corrections Center I USWC shall also provide local and intraLATA telepho~~ service and operator service to USWC Public Telephones at tlile above six locations. 5. Term. The term of this Agreement shall be five (5) yeajs, commencing as of March 16, 1992 ("Effective Date"). Upon at le st sixty (60) - 3 - 1 ! days' written notice prior to the end of the initial term or a renewal term, either party may request renewal of the A~eement, in which case the Agreement may be renewed for any len#h of time agreed upon by the parties. Upon expiration of the ini1:ltial term or a renewal term without either notice of termination orLsigning of an agreement to renew, this Agreement shall automatica~l1Y continue on a month-to-month basis. 6. Ownership of Equipment. All equipment installed on Department premises pursuant to this Agreement shall be provided as a service to the D~partment in accordance with the RFP. No equipment shall be sold qr leased to the Department under this Agreement. Title to all publ~c telephone equipment, monitoring/recording equipment, softwa~~, wiring, hardware and enclosures installed pursuant to this Agr~ement shall remain in contractor, or the applicable subcontractor ,r supplier, during the term of this Agreement. i_ 7. commissions Payable to the Department i A. In return for the right to provide Inmate! and Public Telephone Service under this Agreement, Contractor, GTE, PTI and USWC shall each pay to the Department on a month It basis the commissions set forth in Attachment 1 to this Agree)nent. Each carrier's monthly commission checks shall be s~nt to the Superintendent of each covered Correctional Institu~ion or Work Release Program, made payable to the Inmate Welfare fund, unless and until the Department shall specify a different p4yee for the carriers' commission checks. B. For all be payable as of facilities in GTE as of the cutover schedule mutually Subcontractors. facilities in USWC territory, commi~sions shall the Effective Date of this Agreemet. For all and PTI territory, commissions shal be payable date established pursuant to the im~lementation agreed upon by the Department, Contractor and its ; I C. The commission schedule set forth in Attac~ent 1 shall also apply to LEC public telephones at any ne~ Department correctional Institutions or Work Release FacilitiEijs which are added to this Agreement at the request of the Depart~ent. D. If any of the Commissions set forth in Att~chment 1 are not paid within 45 days after the end of any bi+ling cycle, interest at an annual rate of 10% shall be paid co~encing as of the 46th day. This interest charge shall not apply t~ the true-up commission payments made by Contractor and USWC with respect to the initial billing cycles of this Agreement. - 4 - 8. Reports. Contractor, GTE, PTI and USWC shall each provide t~~ following reports with respect to the traffic carried by that entity: A. A monthly call detail report for I~ate Public Telephones, by institution, and address~d to the superintendent of the institution showing the:etate, time, payphone number, called nwnber and length of~1 each call. I B. A monthly commission report for Inmat~ and staff Public Telephones, by institution, showing to~al revenues generated by each Inmate and Staff Public Te~ephone for that monthly commission cycle. Each such rep~rt shall be sent to two locations: one copy to the inst:;i.tution and one copy to the Department of Corrections,: Attention: Sharon Shue, Telecommunications Manager, P. 0 ~ Box 4J.l10, MS: 61, OlYmpia, WA 98504-41110. .~. 9. Maintenance Contractor, its subcontractors and suppliers sh~ll provide maintenance for the equipment, software and services sUQplied under this Agreement pursuant to the terms and conditions of:the RFP and Proposals submitted in response to the RFP .. The app~ppriate LEC (GTE, PTI or USWC) shall designate a single point of contact to receive trouble reports for each Correctional Institu~ion or Work Release Program in that LEC' s territory. The Department shall address trouble reports relating to any service ot equipment provided under this Agreement to these designated points of contact, which are listed in Attachment 2 to this' Agreement. Following the installation of equipment under this: Agreement, Contractor, its subcontractors and suppliers shall: leave the Department's premises in good condition and broom clean. 10. Responsibilities of the Department The Department shall: A. Take reasonable precautions to protect the public telephone stations and. related equipment and mon~toring and recording equipment and software from damage, vandali$m, theft or hazardous conditions and promptly report any dama,-e, service failure or hazardous condition to Contractor's points o~ contact as referred to in Section 9 and listed in Attachment: 2 to this Agreement. B. Subject to the Department's security r~quirements, provide access as needed to Contractor, its sub~ontractors, suppliers and agents to service the equipment provide4 herein. - 5 - C. Keep the public telephone stations clean and the station locations free from debris or obstructions. 11. InterIATA "0+ Service A. Staff Public Telephones shall comply with the~ignage and unblocking requirement of the Telephone Operator consum~r Services Improvement Act of 1990. • B. If this Agreement is amended to add a cprrectional Institution or Work Release Program located in an . area where Contractor does not track billed "0+" interIATA reven~s from LEC Public Telephones, a monthly average revenue (MAR) mutually agreed upon by the parties will be used in calculating Cpntractor •s monthly "0+" interLATA revenues. The developed MAR w:Ul.l be based. upon the monthly revenues generated from a like Washihgton State institution, with a similar inmate population and a similar ratio of inmates to public telephones. 12. Monitoring/Recording Contractor shall provide live or mechanica~ operator announcements for all personal calls made from Intilate Public Telephones that the call 'is coming from a prison inmate and that it will' be recorded and may be monitored and/ or intercl!.pted. The Department s~all be responsible for instituting proced~res at each location to ensure that attorney-client calls are not ~ecorded or monitored. ' 13. Indemnification A. The Contractor shall defend, protect and ho:ld harmless the state of Washington, the Department, or any employ~es thereof, from and against all Claims, suits, or actions arisihg from any negligent or deliberate act or omission of the Co~tractor or Subcontractor, or agents of either, while performin9 under the terms of this Agreement. The provisions of this paraBraph shall not apply to any act or omission by the Contractor fq~ which the Department, in the text of this Agreement, has agreed t~ defend and hold the Contractor harmless. The provisions of this Sl!.ction shall survive any termination or the expiration of this Agr~ement. B. The Department shall defend, protect and hCJi:ld harmless Contractor, its employees, agents or subcontractor$:, from and against all claims', suits, actions, loss or injury arising from any negligent or deliberate act or omission of the Department or any employee thereof, while performing under the ter$s of this Agreement, except to the extent that the claims result from the negligence or willful acts of Contractor's employees, agents or subcontractors. The Department shall defend, prote¢t and hold harmless the Contractor, its employees, agents or sub4ontractors, from and against all claims, suits, actions, loss or injury arising out of or in any way connected with Contractor's provi$ion of call - 6 - recording equipment and call monitoring equipment to the! Department under this Agreement. The provisions of this section shPII survive any termination or the expiration of this Agreement. 14. Regulatory The local, intraLATA and interLATA service provideq under this Agreement is subject to applicable tariffs or price lis~s, as filed pursuant to the requirements of the Federal Co~unications Commission and the Washington Public Service commission. 15. Force Majeure Neither party shall be held liable for any delay or failure in performance of any part of this Agreement caused by citcumstances beyond the reasonable control of the party affec,ed or its subcontractors or suppliers, inclUding, but not limitep to, fire, explosion, lightning, pest damage, power surges oJ:" failu~es, strikes or labor disputes, water, acts of God, the elejnents, '-war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw materials, transportation facilities, fuel or energy shortages. 16. Limitation of Liability Except in cases involving willful or wanto~ conduct, Contractor's liability to the Department with resp~ct to the provision of local, intraLATA or interLATA service shal~ be limited to its obligation to pay commissions as set fd~th above. Contractor's liability with respect to the provisioq of public telephone stations and related equipment and the Pfovision of monitoring and recording equipment is limited to dir~ct damages which are proven. CONTRACTOR SHALL NOT BE LIABLE TO TH~ DEPARTMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS (WHaTHER OR NOT CONTRACTOR HAD BEEN ADVISED OF THE POSSIBILITY OF SWCH LOSS OR DAMAGE), BY REASON OF ANY ACT OR OMISSION IN ITS PERFO~CE UNDER THIS AGREEMENT. 17. Conflict Resolution A. Should a dispute arise between the parties hereto, with respect to the terms of this Agreement or the perform~ce hereof, the parties shall attempt to resolve the dispute informally, by investigating and discussing the issues. In working toward a resolution of the dispute, the parties may seek the a$sistance of upper management within the respective organizatic:ms of the Department and the Contractor. B. In the event that informal efforts to resolVie a dispute are unsuccessful, the parties shall, prior to filing suit, submit their dispute to a mutually agreed upon third part¥ mediation service for non-binding mediation (for example, Judicial Mediation - 7 - Service, 1420 Fifth Avenue, suite 400, Seattle, WA party shall share the cost of such mediation. 18. 98~01). Each Termination and Termination Procedure A. In the event that a correctional facility coveted by this Agreement is closed for lack of funding, consolidation with other facilities or as a result of other judicial or governmental action, the Department may terminate this Agreement as to tha' facility. B. In the event of a failure by Contractor to perform any of the provisions hereof with respect to anyone or more c~rrectional facilities covered by this Agreement, or with respect td' anyone or more of the three LEC territories covered by this Agre$ment (GTE, PTI or USWC), the Department may give Contractor thirty (30) days' written notice of intent to terminate for defaUlt, spe¢ifying.the nature of the alleged failure of performance and identifyin~'the location(s) and/or LEC territory affected. Contractor snall not be deemed to be in default if Contractor cures the failure of performance within the thirty (30) day notice period, or if the nature of Contractor's default is such that more than thirty (30) days are reasonably required for its cure, then Contractor shall not be deemed to be in default if Contractor shall co$mence such cure within said thirty (30) day period and thereafter diligently prosecute such cure to completion. C. Unless there is a default consisting of a !failure of performance as to the entire Agreement, a terminatibn of this Agreement under the terms of this Section 18 a and b as to any single correctional facility or as to any single LEe territory shall not operate as a termination as to any other c~rrectional facility or other LEC territory, and this Agreement shall remain in full force and effect for all other correctional facili~ies and LEC territories. D. During the first three years of this Agr~ement, the Department may terminate this Agreement in whole or in part only upon one or more of the following events: fo~ 1. Termination for the reasons provided 18 a., b. and c. herein, or in section 2. Any action by the legislature, the Governor's office, the Federal communication commission, the Washington utilities and Transportation, Commission or a court of competent jurisdiction whach results in or necessitates termination of this A~reement in whole or in part. Any termination under paragraph 18 0(2) above :requires at least 90 calendar days written notice of sucp action be - 8 - " provided to Contractor by Department as Rrovided in section 19 "Notices." After the first three years of this Agreem~nt, either party may terminate this Agreement without cause by giving written notice to the other party, as p~ovided for herein, at least 180 calendar days prior to ~ effective date of said termination. ' 19. Notices A. Any notices or other communications to be ,iven under this Agreement shall be provided to the follc:>w~ng ::parties by personal delivery, first class u.s. mail or facs~m~le: state of Washington Department of Corrections P.o. Box 9699, MS: FN-61 Olympia, WA 98504 Attention: Gary L. Banning Administrator, Contracts and Regulations Facsimile no. (206) 586-8723 Tel. no. (206) 753-5770 AT&T 4460 Rosewood Drive!, Pleasanton, CA 94588 Attention: Patrici~ Facsimile no.: (5101~ Tel. no. (510 11) Room 6330 MaitIand 224-5498 224-4926 The name, address or facsimile number for notice may be chang~d by giving notice in accordance with this section. If mailed in accordance with this section, notice shall be deemed given When actually received by the individual addressee or desi~ated agent or three (3) business days after mailing, whichever is ~arlier. If transmitted by facsimile in accordance with this sectlon, notice shall be deemed given when actually received by the' individual addressee or designated agent or one (1) business' day after transmission, whichever is earlier. B. Courtesy copies of any notices provided by d,ne party to the other under this Agreement shall be provided, using any of the methods specified in Section 19A, to: ; u.S. West Communications, Inc. 14808 SE 16th, Basement Bellevue, WA 98007 Attention: Susan Haynes Facsimile no. (206) 451-6011 Tel. no. (206) 451-5328 GTE Northwest Incorporated 23120 West Casino Road Everett, WA 98204 Attention: Joanna S::issons Facsimile no.: (20«) 353-6558 Tel. no. (206) 356-4175 PTI Communications Post Office Box 90 Forks, WA 98331 Attention: John Fryling Facsimile no.: (206) 374-9636 Tel. no.: (206) 374-2300 - 9 - iii -, 20. Rights in Data The data covered by General Term "Rights in Data" c.iPntained in Attachment B to the RFP does not include information ~elating to interLATA, intraLATA or local calls, which shall remain the property of the applicable carrier (AT&T, USWC, PTI q~ GTE), and shall be kept confidential subject to the requtrements of Washington public records law. In the event of a third party request for such data, the Department shall notify Cdntractor in advance of responding to the request in sUfficient·t~e to allow Contractor to negotiate any appropriate protective arrangements, consistent with any applicable time limits for the D~partment to respond to the third party, but in any event prior tq disclosing the data. 21. Bond Contractor shall post a performance bond or a perform4nce/p~yment bond in the amount of $500,000 on a form accept~le tcr' the Department. Such bond shall be for the purpose of wuaranteeing satisfactory performance by Contractor of the servides required hereunder and the payment of commissions due or owing to the Department. 22. Incorporation of General Terms and Conditions The Department of Corrections General Terms and Co~ditions, as set forth in Attachment B to the RFP, are incorporated herein by reference, except as modified are amended herein, a:.:nd with the exception of the following, which are deleted as ina~plicable to this project: A. General Term "Indemnification" on page 5 of Appendix B is superseded by Section 13 above ("Indemnification").' B. General Term "Disputes" on page 10 of Ap~endix B is superseded by Section 17 above ("Conflict Resolution") ,,: and Section 18 ("Termination and Termination Procedure") . . C. General Terms "Termination by Contractor" and "Termination for Convenience on page 11 of Appendix B are supersed~ by Section 5 above ("Term") and Section 18 ("Termination and: Termination Procedure"). 23. Contract Modifications The parties may supplement or amend this Agreement by mutual consent, provided such supplement or amendment is i~ writing and signed by authorized representatives of both parties.: - 10 - ." ", " 24. Entire Agreement This Agreement and the documents incorporated herein by reference, i.e., the Combined Proposal, the RFP and the Department of Corrections General Terms and Conditions (Atta¢hment B), constitute the entire understanding between the p~rties and supersede all prior understandings, oral o~ written representations, statements, negotiations, propqsals and undertakings with respect to the subject matter here~~. In the event that any provisions of this Agreement and the i~corporated documents are inconsistent, the order of precedence ~all be as follows: (1) this Agreement; (2) the Combined Proposal:(except for USWC's response to Attachment B to the RFP: (3) the RFP and (4) the Department of Corrections General Terms and Conditions (Attachment B). TELEGRAPH STATE OF DEPARTME .0;. By: By: (Signature) Jo~n. t'olUtll Chase Riveland (Typed or Printed Name) ::».le s Secretary (Da~ 3/31/92 (Date) Approved as to Form: OFFICE OF THE ATTORNEY GENERAL STATE OF WASHINGTON ~~ Vr-~nature)~ 1~ - - -.,__--rt\O s J. ~ v '" 5 ;/ \-1 " (Typed or Printed Name) A~);fh", ~ (Title) V. l'. . (Ti~J7~ (Title) By: I' (Typed or Printed Name) A+~r""J ~~-----i](_"3 'i_'- _::i.:....-J GeV'l<?f\ \ _ (Date) - 11 - .. COMMISSION SCHEDULE 1. AT&T: commission rate of 24% on billed revenues fro~" operatorassisted intraLATA, interLATA and international calls icarried by AT&T. 2. GTE: commission rate of 27% on billed revenues fro. operatorassisted local and intraLATA calls carried by GTE. 3. PTI: commission rate of 27% on billed revenues assisted local calls carried by PTI. fro~ operator- 4. USWC: the following commission rates shall apply' to billed revenues from operator-assisted local and intraLATA catls carried by USWC: USWC agrees to pay the Department a commission rate of 3p%. At the end of each calendar year of this Agreement, USWC s~all review billed USWC revenues against the schedule shown below and increase the compensation, if appropriate, as follows: Adjustment Lev~l & New Commission:, Rate Annual USWC Revenue i $2.0 Million $3.0 Million $4.0 Million 35% 36% 37% The USWC commission rate will ~ot fall below 35%. Once: a level of commission has been achieved, it will remain in place throughout the remaining years of this Agreement unless the next appropriate level is attained. ATTACHMENT 1