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Home My WebLink About20132831.tiffRESOLUTION RE: APPROVE REQUEST FOR ASSISTANCE TEXT MESSAGE GATEWAY AGREEMENT AND AUTHORIZE CHAIR TO SIGN - QWEST CORPORATION, DBA CENTURYLINK QC WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with a Request for Assistance Text Message Gateway Agreement among the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, Weld 911 Emergency Telephone Service Authority Board, and Qwest Corporation, dba Centurylink QC, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Request for Assistance Text Message Gateway Agreement among the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, Weld 911 Emergency Telephone Service Authority Board, and Qwest Corporation, dba Centurylink QC, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 7th day of October, A.D., 2013. BOARD OF C.UNTY COMMISSIONERS WELD C , r.LORADO ATTES Weld County Clerk to the Board BY: AP "Clark to the Bnar.9 (County Attorney illiam . Garcia, Chair �An-,6 �-� Douglas I4ademache , Pro-Tem Date of signature: OCT 1 6 2013 an P. Conway Sue _ - e Freeman rbara Kirkmeyjf eelAire 42i/aen (?Uz ) airlek groom 2013-2831 CM0005 CM0022 REQUEST FOR ASSISTANCE TEXT MESSAGE GATEWAY Agreement Number Billing Number This CenturyLink Request for Assistance Text Message Gateway Service Agreement ("Agreement") is between Weld County and Weld 911 Emergency Telephone Service Authority Board ("Customer") and Qwest Corporation d/b/a CenturyLink QC ("CenturyLink"). Customer represents that it is a municipality, state, or local government unit or an authorized agent of one or more of these units acting in its capacity as a PSAP, and that it is authorized to subscribe to the Service and respond to public emergency calls. 1. Definitions "ETG" means Emergency Text Gateway, which is a system that on receipt of a new SMS message requests the location of the caller from the participating wireless carriers' location server and is able to simultaneously process, route, and track emergency text dialogues for multiple PSAP users. "PSAP" means an agency authorized to receive and respond to emergency calls. One or more PSAPs may be required for any given municipality or metropolitan area. "Request Initiator" means the person sending a text message from a wireless device to request assistance from a PSAP. "SMS" means Short Message Service, which is a protocol for text messaging. SMS text messages are delivered through wireless carrier networks on a bandwidth -available basis, and message delivery is not guaranteed. 2. Scope. 2.1 CenturyLink will provide, and Customer will purchase, the CenturyLink Request for Assistance Text Message Gateway Service ("Service") provided under this Agreement. CenturyLink will provide the ETG systems to enable routing and processing of text message dialogues to and between Customer and the Request Initiator. CenturyLink does not provide SMS text messaging services. CenturyLink's responsibility for Request for Assistance Text Message Gateway Service begins when text messages have been delivered to the ETG. CenturyLink does not answer and forward SMS text messages. 2.2 Service does not include any transport. Customer acknowledges and understands that any transport used in conjunction with the Service is ordered separately. Customer further acknowledges and understands that these separate transport options, (such as IP transport) may create limitations on access to the Service provided under this Agreement. 2.3 Service cannot be enabled until Customer has implemented its transport method. 2.4 Service 'does not currently have transfer capability. If it is determined that a request belongs to another PSAP, the Request Initiator or the call taker will have to call the other PSAP and relay the message via voice or other transmission method. 2.5 Only SMS text messages that originate within the PSAP's boundaries will be routed to the PSAP. 2.6 A PSAP cannot originate SMS text messages using this Service. 2.7 PSAP facilities must meet the Power 9-1-1's currently supported revision level and hardware requirements for the Service and must maintain a supported revision level at all times. 2.8 CenturyLink will be responsible for on -site installation for equipment that will be located at Customer's premises solely in connection with the Service. Customer will ensure that its personnel are available to receive delivery of the equipment at a date and time to be determined between CenturyLink and Customer. Customer agrees to grant reasonable right of entry to CenturyLink to deliver the equipment or perform services contemplated under or by virtue of this Agreement, or both, and will make available a reasonable amount of appropriate, secure space for storage of the equipment as necessary. Customer is also responsible for proper site preparation, meeting and maintaining proper environmental conditions, including but not limited to, air conditioning, cleanliness, temperature requirements, and electrical requirements as indicated by the equipment's manufacturer. Customer will not obtain any ownership interests in the equipment, and Customer will: (i) at its own expense, keep the equipment free and clear of any claims, liens, and encumbrances of any kind, and (ii) make no alterations or affix any additions or attachments to the equipment, except as approved by CenturyLink in writing. 2.9 Customer will cooperate with CenturyLink to ensure that all necessary physical requirements are met. 3. Limitations of Service using SMS Text Messaging. The parties agree and understand that CenturyLink does not provide SMS text messaging service. The following section sets out some limitations inherent with SMS text messaging. Customer acknowledges that it understands these limitations. 3.1 SMS text messaging for emergency use is an emerging technology and Service is not a replacement for established landline and wireless 9-1-1 services. SMS infrastructure is not currently built to public safety standards and may experience increased latency and potential for dropped messages. NSP-63039 Page 1 of 5 CONFIDENTIAL © CenturyLink, Inc. einen7.A All Rights Reserved. v1.080813 oWS 07.4:S/ REQUEST FOR ASSISTANCE TEXT MESSAGE GATEWAY 3.2 There is no prioritization of a 9-1-1 message over other traffic (i.e., a 9-1-1 text message will not go to the top of the queue.) 3.3 New and in -process text dialogues could be delayed, dropped, or lost due to SMS, systems, or network failures for both incoming text messages and for outgoing returned messages from PSAP to Request Initiator. 3.4 SMS text messaging does not include Automatic Location Information (ALI) capabilities. Location and contact information must be provided by the Request Initiator. The Power 9-1-1 system will not query the ALI system nor receive an ALI response for text messages. 3.5 The maximum number of text messages that can be queued is configurable by the PSAP. If the upper limit is exceeded, new text messages will not be delivered. 3.6 SMS Text messages are limited to a 160 character limit. 3.7 Serious SMS system or SMS network failures could result in Service being temporarily unavailable due to the SMS network and/or a wireless carrier location server. 3.8 CENTURYLINK ACCEPTS NO RESPONSIBILITY FOR THE DELIVERY OR TIMING OF SMS TEXT MESSAGES, THE CONTENT OF THE SMS TEXT MESSAGES THAT ARE RECEIVED, OR FOR THE ACCURACY OF THE IDENTITY, LOCATION, OR CALLBACK NUMBER OF THE REQUEST INITIATOR. 4. Term; Cancellation. This Agreement will become in effect on the latest signature date. The Term will begin on the first installation date of Service (as evidenced by CenturyLink's records) and will continue for 12 months ("Term"). Either party may cancel Service by providing at least 30 days notice of such cancellation to the other party. Upon expiration of the Term, Service will continue on a month -to month basis until canceled by either party with 30 days' notice. If Service is canceled before the expiration of the Term for reasons other than by Customer for Cause, then Customer will pay to CenturyLink a cancellation charge equal to: (a) 100% of the Service MRCs multiplied by the number of months remaining to complete the first 12 months of the Term, if applicable; plus (b) 50% of the Service MRCs multiplied by the number of months remaining in the Term. "Cause" means the failure of a party to perform a material obligation under this Agreement, which failure is not remedied: (a) for payment defaults by Customer, within five days of separate written notice from CenturyLink of such default; or (b) for any other material breach, within 30 days of written notice (unless a different notice period is specified in this Agreement). Customer remains responsible for all accrued and unpaid charges for the canceled Service provided through the effective date of such cancellation. 5. Charges and Billing. 5.1 Charges. Customer will pay the following charges. Service Description Number of seats at the PSAP Monthly Recurring Charge (MRC) per PSAP Non -recurring Charge (NRC) per PSAP 1 -4 Seats $130 $1,300 5 - 10 Seats $338 $3,500 11+ Seats $988 $9,800 5.2 CenturyLink reserves the right to revise rates if a change in the statutes or administrative rules affects the cost of providing Service. Customer must pay CenturyLink all charges by the payment due date on the invoice. Any amount not paid when due is subject to late interest at the lesser of 1.5% per month or the maximum rate allowed by law. In addition to payment of charges for Service, Customer must also pay CenturyLink any applicable Taxes assessed in connection with Service. "Taxes" means federal, state, and local excise, gross receipts, sales, use, privilege, or other tax (other than net income) now or in the future imposed by any governmental entity (whether such Taxes are assessed by a governmental authority directly upon CenturyLink or Customer) attributable or measured by the sale price or transaction amount, or surcharges, fees, and other similar charges that are required or permitted to be assessed on Customer. These charges may include state and federal Carrier Universal Service Charges, as well as charges related to E911, and Telephone Relay Service. Taxes may vary and are subject to change. CenturyLink reserves the right to charge administrative fees when Customer's payment preferences deviate from CenturyLink's standard practices. 5.3 Customer may add Service under this Agreement at the rates and charges in effect at the time of the addition(s). 6. Responsibilities. To the extent permitted under law, each party agrees to be responsible to the other, their Affiliates, agents, and contractors against all third party claims for damages, liabilities, or expenses, including reasonable attorneys' fees, arising directly from performance of the Agreement and related to personal injury or death, or damage to personal tangible property that is alleged to have been caused by the negligence or willful misconduct of the responsible party unless otherwise stated in a CenturyLink QC Service Exhibit or Tariff. To the extent permitted under law, Customer also agrees to be responsible for all third party claims for damages, liabilities, or expenses, including reasonable attorneys' fees against CenturyLink, its Affiliates, and contractors, related to the modification or resale of the Services by Customer or End Users, or any AUP violation. 7. Confidentiality. Unless required by State of Federal law, neither party will, without the prior written consent of the other party: (a) disclose any of the terms of this Agreement; or (b) disclose or use (except as expressly permitted by, or required to achieve the Page 2 of 5 © CenturyLink, Inc. All Rights Reserved. NSP-63039 CONFIDENTIAL v1.080813 REQUEST FOR ASSISTANCE TEXT MESSAGE GATEWAY purposes of, this Agreement) the Confidential Information of the other party. "Confidential Information" means any information that is not generally available to the public, whether of a technical, business, or other nature, and that: (a) the receiving party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party; or (b) is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect the information from disclosure. Confidential Information will not include information that is in the public domain through no breach of this Agreement by the receiving party or is already known or is independently developed by the receiving party. Each party will use reasonable efforts to protect the other's Confidential Information, and will use at least the same efforts to protect such Confidential Information as the party would use to protect its own. CenturyLink's consent may only be given by its Legal Department. A party may disclose Confidential Information if required to do so by a governmental agency, by operation of law, or if necessary in any legal proceeding to establish rights or obligations under this Agreement. SMS text messages might contain names, addresses and telephone numbers of telecommunication service subscribers, including non - published and non -listed telephone service. The parties understand and agree that such information may be considered to be Confidential Information under state or federal laws or regulations, and there are certain duties and responsibilities imposed by this Agreement and by law or tariff with regard to the use and distribution of such information. 8. Use of Name and Marks. Neither party will use the name or marks of the other party or any of its Affiliates for any purpose without the other party's prior written consent. CenturyLink's consent may only be given by its Legal Department. "Affiliate" means any entity controlled by, controlling, or under common control with a party. 9. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SERVICE IS PROVIDED "AS IS." CENTURYLINK DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT. 10. Limitations of Liability. The remedies and limitations of liability for any claims arising between the parties are set forth below and in any applicable Tariff, regulation, or statute. 10.1 Consequential Damages. NEITHER PARTY OR ITS AFFILIATES, AGENTS, OR CONTRACTORS IS LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE, DAMAGES OR FOR ANY LOST PROFITS, LOST REVENUES, LOST DATA, LOST BUSINESS OPPORTUNITY, OR COSTS OF COVER. THESE LIMITATIONS APPLY REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF FORESEEABILITY. IN ADDITION, CENTURYLINK WILL NOT BE LIABLE FOR ANY DAMAGE THAT RESULTS FROM INFORMATION PROVIDED TO CUSTOMER BY ANY OTHER DATA PROVIDER(S). This limitation of liability will not apply to Customer's indemnification obligations or Customer's payment obligation for charges under the Agreement, (e.g., Service charges, Taxes, interest, and termination or cancellation charges). 10.2 Claims related to Service. CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY AND ALL CLAIMS RELATED TO THE SERVICE WILL BE LIMITED TO THE TOTAL MONTHLY RECURRING CHARGE PAID OR PAYABLE BY CUSTOMER TO CENTURYLINK FOR SERVICE IN THE MONTH IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. CENTURYLINK'S TOTAL AGGREGATE LIABILITY RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL RECURRING CHARGES PAID OR PAYABLE BY CUSTOMER TO CENTURYLINK PURSUANT TO THIS AGREEMENT IN THE MONTH IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. 10.3 Personal Injury; Death; Property Damages. For claims arising out of personal injury or death to a party's employee, or damage to a party's real or personal property, that are caused by the other party's willful misconduct in the performance of this Agreement, each party's liability is limited to proven direct damages. 11. Miscellaneous. 11.1 General. This Agreement's benefits do not extend to any third party (e.g., an End User). "End User" means Customer's members, end users, customers, or any other third parties who use or access Service or the CenturyLink network via the Service. If any term of this Agreement is held unenforceable, the remaining terms will remain in effect. Neither party's failure to exercise any right or to insist upon strict performance of any provision of this Agreement is a waiver of any right under this Agreement. The terms and conditions of this Agreement regarding confidentiality, limitation of liability, warranties, payment, dispute resolution, and all other terms of this Agreement that should by their nature survive the termination of this Agreement will survive. Each party is not responsible for any delay or other failure to perform due to 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, explosion, lightning, hurricane, labor dispute, cable cuts by third parties, acts of terror, material shortages or unavailability, government laws or regulations, war or civil disorder, or failures of suppliers of goods and services. Customer may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of CenturyLink, which consent will not be unreasonably withheld. Customer may not assign to a reseller or a telecommunications carrier under any circumstances. 11.2 Conflicts Provision. If a conflict exists among provisions within this Agreement, the following order of precedence will apply in descending order of control: this Agreement, and CenturyLink records. 11.3 Independent Contractor. CenturyLink provides the Service as an independent contractor. This Agreement will not create an employer -employee relationship, association, joint venture, partnership, or other form of legal entity or business enterprise between the Page 3 of 5 © CenturyLink, Inc. All Rights Reserved. NSP-63039 CONFIDENTIAL v1.080813 REQUEST FOR ASSISTANCE TEXT MESSAGE GATEWAY parties, their agents, employees or affiliates. 11.4 ARRA. Customer will not pay for the Service with funds obtained through the American Recovery and Reinvestment Act or other similar stimulus grants or loans that would obligate CenturyLink to provide certain information or perform certain functions unless each of those obligations are explicitly identified and agreed to by the parties in this Agreement or in an amendment to this Agreement. 11.5 HIPAA. CenturyLink does not require or intend to access Customer data in its performance hereunder, including but not limited to any confidential health related information of Customer's clients, which may include group health plans, that constitutes Protected Health Information ("PHI"), as defined in 45 C.F. R. §160.103 under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA Rules"). Any exposure to PHI will be random, infrequent and incidental to CenturyLink's provision of Service and is not meant for the purpose of accessing, managing the PHI or creating or manipulating the PHI. Such exposure is allowable under 45 CFR 164.502(a)(1)(iii). As such, if Customer is a Covered Entity or Health Care Provider under the HIPAA Rules or supports the health care industry, CenturyLink and Customer agree that CenturyLink is not a "Business Associate" or "Covered Entity" under the HIPAA Rules for the purposes of the Agreement. 11.6 Credit Approval. Provision of Service is subject to CenturyLink's credit approval of Customer. As part of the credit approval process, CenturyLink may require Customer to provide a deposit or other security. Additionally during the Term, if Customer's financial circumstance or payment history becomes reasonably unacceptable to CenturyLink, CenturyLink may require adequate assurance of future payment as a condition of continuing CenturyLink's provision of Service. Customer's failure to provide adequate assurances required by CenturyLink is a material breach of this Agreement. CenturyLink may provide Customer's payment history or other billing/charge information to credit reporting agencies or industry clearinghouses. 11.7 Governing Law; Dispute Resolution. (a) Governing Law; Forum. Colorado state law, without regard to choice -of -law principles, governs all matters relating to this Agreement, except with regard to matters which are within the exclusive jurisdiction of the state or federal regulatory agency. Any legal proceeding relating to this Agreement will be brought in a U.S. District Court, or absent federal jurisdiction, in a state court of competent jurisdiction, in Denver, Colorado. 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. (b) Waiver of Jury Trial and Class Action. Each party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a jury trial and any right to pursue any claim or action relating to this Agreement on a class or consolidated basis or in a representative capacity. If for any reason the jury trial waiver is held to be unenforceable, the parties agree to binding arbitration for any dispute relating to this Agreement under the Federal Arbitration Act, 9 U.S.C. § 1, et. seq. The arbitration will be conducted in accordance with the JAMS Comprehensive Arbitration Rules. Judgment upon the arbitration award may be entered in any court having jurisdiction. (c) Limitations Period. Any claim relating to this Agreement must be brought within two years after the claim arises. 11.8 No Resale; Compliance. Customer represents that it is not a reseller of any telecommunication services provided under this Agreement as described in the Telecommunications Act of 1996, as amended, or applicable state law and acknowledges it is not entitled to any reseller discounts under any laws. Customer's use of Service must comply with all applicable laws. 11.9 Amendments; Changes. This Agreement may be amended only in a writing signed by both parties' authorized representatives. Each party may, at any time, reject any handwritten change or other alteration to this Agreement. CenturyLink may amend, change, or withdraw the Tariffs, with such updated Tariffs effective upon posting or upon fulfillment of any necessary regulatory requirements. 11.10 Required Notices. Unless provided otherwise in this Agreement, all required notices to CenturyLink must be in writing, sent to 1801 California St., #900, Denver, CO 80202; Fax#: 888-778-0054; Attn.: Legal Dep't, and to Customer at its then current address as reflected in CenturyLink's records; Attn.: General Counsel or other person designated for notices. All notices are effective: (a) when delivered via overnight courier mail or in person to the recipient named above; (b) three business days after mailed via regular U.S. Mail; or (c) when delivered by fax if duplicate notice is also sent by regular U.S. Mail. Page 4 of 5 © CenturyLink, Inc. All Rights Reserved. NSP-63039 CONFIDENTIAL v1.080813 REQUEST FOR ASSISTANCE TEXT MESSAGE GATEWAY 11.11 Entire Agreement. This Agreement (including all referenced documents) constitutes the entire agreement between the parties and supersedes all prior oral or written agreements or understandings relating to the same service or circuits at the same locations as covered under this Agreement. Using CenturyLink's electronic signature process for this Agreement is acceptable. Weld 911 Emergency Telephone Service Authority Boar uthorized Signature Barbara Kirkmeyer Name Typed or Printed Chair, Weld County E-911 Authority Title 10-14-2013 Date r Customer Address: Ai1fliddied Signature William F. Garcia Name Typed or Printed Chair, Board of Weld: -County Commissioners Title OCT 0 7 2013 Date Qwest Corporation d/b/a CenturyLink QC Authorized Signature btA l Name Typed or Printe l Title Date Page 5 of 5 © CenturyLink, Inc. All Rights Reserved. NSP-63039 CONFIDENTIAL v1.080813 Esther Gesick From: Sent: To: Cc: Subject: Hi Mike, Esther Gesick Thursday, October 03, 2013 3:56 PM Mike Wallace Bruce Barker; Esther Gesick RE: Txt Msging contract I'll print the three originals and get Bill's signature after the meeting on Monday, then you can have all three and chase down the E911 and Century Link signatures. I will need one fully executed original returned to complete the Commissioners records. Thanks! Esther E. Gesick Deputy Clerk to the Board/Office Manager 1150 O Street/P.O. Box 758/Greeley, CO 80632 tel: (970) 336-7215 X4226 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Mike Wallace Sent: Thursday, October 03, 2013 3:28 PM To: Esther Gesick Cc: Bruce Barker Subject: Fwd: Txt Msging contract Esther, below is a Century Link Contract for Texting to 9-1-1 that I need to get the on the agenda for Monday for the Commissioners Meeting, I have had work sessions with them on this prior. I'm out of the office tomorrow in meetings, but can bring in copies on Monday AM, as I will need three signed. Let me know if there is anything else that is needed. Michael R Wallace, ENP Sent from my iPad Begin forwarded message: From: "Horn, Wes" <Wes.Horn@CenturyLink.com> Date: October 3, 2013 at 3:17:47 PM MDT To: Mike Wallace <mrwallace@co.weld.co.us> Cc: "Horn, Wes" <Wes.Horn@CenturyLink.com> Subject: Txt Msging contract Mike, Sorry if this is the second time I sent it. Call me if you have any questions but this should do it. Do you want me at the Monday board meeting? 2013-2831 1 Hello