20090819Application.pdf

Kathy McCrar, Paralegal
[phone]
kath~ocaaccess.coin
Richar A. Figan
[phone]
Law Office of
Richard A.Finnigan
2112 Black Lake Blvd. SW
Olympia, Washington 98512
Fax [phone]ri~ocalaccess.com
August 17, 2009
VI U.S. MAL ¡Ajj-t---oCf-O~
Jean Jewell, Commission Secretar
Idaho Public Utilities Commission
PO Box 83720
Boise, 10 83720-0074
sp-::0
m~CJô -0"" t.o¿3:t.t) ~?'t"'
~-': co(J)(", .,~o:.i:
~~~ø ::rn("rn
:2
-
Re: Agreement Between Midvale Telephone Exchange, Inc. and Verion
Wireless
Dear Ms. Jewell:
Enclosed are the original and three copies of the Traffic Exchange
Agreement between Midvale Telephone Exchange, Inc. and Verion Wireless.
Please send a copy of the final order to me for my records.
If you have any questions, please contact the undersigned. Thank you
for your attention to this matter.
RAFlkm
Enclosures
cc: Mar Bacigalupi
Steve Child
%1) .:~q -02-
RECE D
2009 AUG I 9 AM 8: I 2
TRAFFIC EXCHANGE AGREEMENT
By and Between
Midvale Telephone Exchange, Inc.
And
Verizon Wireless
Table of Contents
1. DEFINTIONS. ...............................................................................................................................................3
2. RUR TELEPHONE COMPANY................................................. ..............................................................5
3. TRAFIC INTERCHAGED.........................................................................................................................5
4. F ACILITIES....................................................................................................................................................6
5. RATES AN CHAGES................................................................ ................................................................7
6. BILLING AN PAYMNT OF CHAGES. ..................................................................................................8
7. NON-LOCAL TELECOMMICATIONS TRAFIC. ................................................................................9
8. IMPAIRMNT OF SERVICE. .......................................................................................................................9
9. CREDIT ALLOWANCE FOR SERVICE INTERRUPTIONS............................................. ........................10
10. SERVICE ORDERS........................................................... ...........................................................................10
11. RESOLUTION. .............................................................................................................................................1 0
12. TROUBLE REPORTING. ............................................................................................................................10
13. TERM AN TERMATION. .....................................................................................................................11
14. LIAILITY UPON TERMATION. ..........................................................................................................12
15. AMNDMENTS...........................................................................................................................................12
16. ASSIGNMNT. ............................................................................................................................................12
17. AUTHORITy................................................................................................................................................13
18. BINING AFFECT. .....................................................................................................................................13
19. COMPLIACE WITH LAWS AND REGULATIONS. ...............................................................................13
20. ENTIR AGREEMENT. ..............................................................................................................................13
21. EXPENSES...................................................................................................................................................13
22. FORCE MAJEUR. ......................................................................................................................................13
23. GOVERNING LAW. ................................................................................................:~:......i..................:,......14
24. INDEPENDENT CONTRACTOR RELATIONSHIP. ......................................................:....'.;....:..:............14.
25. LIAILITY AN INEMNITY. ..............................................................................:.......:....~..:.:.:...............14
25.1 Indemnifcation........................................................................................................................,......,.........14
25.2 Disclaimer. ...................................................................................................................:.:..........:.................15
25.3 Limitation o/Liability..........................................................................................................:....................15,
25.4 Relationship to Prices...............................................................................................................................15
25.5 Survival.....................................................................................................................................................15
25.6 Equipment... ... ....... ..... ....... ... ..... ............. ..... .... ...... ... ........ ............... ....... .............................. ........ ...... ... .... 15
25.7 Notice and Procedure. ..............................................................................................................................16
26. DISPUTE RESOLUTION.............................................................................................................................16
26.1 Alternative to Litigation............................................................................................................................ 16
26.2 Negotiations and Dispute Resolution Process. .........................................................................................17
26.3 Savings Clause..........................................................................................................................................18
26.4 Continuous Service. ..................................................................................................................................18
27. CONFIDENTIA INORMTION. ............................................................................................................18
27.1 Identifcation. ...........................................................................................................................................18
27.2 Handling. ..................................................................................................................................................19
27.3 Exceptions. ...............................................................................................................................................19
27.4 Survival.....................................................................................................................................................20
28. NOTICES. .....................................................................................................................................................20
29. REGULATORY AGENCY CONTROL......................................................... ..............................................21
30. SEVERAILITY. .........................................................................................................................................21
31. PATENTS. ....................................................................................................................................................21
32. FILING OF AGREEMENT...........................................................................................................................21
33. COUNTERPARTS........................................................................................................................................22
34. CONSTRUCTION........................................................................................................................................22
ATTACHMNT 1 RATES.......................................................................................................................................23
2
TRAFIC EXCHAGE AGREEMENT
This Trafc Exchange Agreement ("Agreement"), is entered into by and between Midvale
Telephone Exchange, Inc., an Idaho corporation ("Company") and the Verizon Wireless entities
listed on the signatue page of ths Agreement (collectively "Caret'), (each referred to as a "Par"
and collectively as "Paries") with an effective date of May 1, 2009.
WHREAS, Carer is authorized by the Federal Communcations Commssion ("FCC") to
provide commercial mobile radio servce ("CMRS") and provides such service to its End Users,
operatig wieless afliates and switch share/managed markets operating with the State of Idaho;
and
WHREAS, Company is a provider oflocal exchange servce in the State ofIdaho; and ,
WHREAS, Carer termates telecommuncations trafc that originates from Company's
End Users on the Company's network, and Company termnates telecommuncations traffic that
originates from Carer's End Users on the Carer's network; and
WHREAS, Carer provides a Point of Interconnection in the Company's servce areas, or
interconnects with Company's network via a thd par tandem switch; and
WHEREAS, the Paries wish to establish an arangement tht compensates each other for
-termatig telecommuncations trafc that originates on the other Par's network.
NOW, THEREFORE, IN CONSIDERATION of the covenats contained herein, the Paries
hereby agree as follows:
1. DEFINTIONS.
1.1 "Act" means the Communcations Act of 1934, as amended.
1.2 An "Afliate" of a Par means a person, corporation or other legal entity that,
directly or indirectly, owns or controls a Par, or is owned or controlled by, or is
under common ownership or control with a Par. For puroses of ths defition,
the term "own" means to have at least a ten percent (10%) ownership interest in, or
have voting control, such corporation or other legal entity. For Carer, each
individua entity listed on the signatue page of ths Agreement is an Afliate.
1.3 "Central Offce" means a switching facilty from which Telecommuncations
Servces are provided, includig, but not limted to:
a. An "End Offce Switch" or "End Offce" is used to, among other thgs,
termate telecommuncations traffc to End Users.
3
b. A "Tandem Switch" or "Tandem Offce" is a switching facility that is used to
interconnect tr circuits between and among End Offce Switches,
aggregation points, points of termination, or points of presence. A switch may
be both an End Offce Switch and a Tandem Switch.
c. A "Mobile Switch Center" or "MSC" is a switchig facility that provides
tandem and End Offce switchig capabilty.
1.4 "CMRS" means Commercial Mobile Radio Servce as defied in the Act.
1.5 "Confdential Inormation" shall have the meanng ascribed in Section 27.
1.6 "Commission" refers to the state reguatory commssion withn the state of Idao.
1.7 "End User" means, with respect to Carer, any subscriber to wieless service
fushed by Carer or by another entity resellng Carer's wieless servce, and
fuer mean any roamer using Carer's wieless network. With respect to
Company, "End User" means any subscriber to wie line local exchage servce
fushed to the End User by Company or by another entity resellng Company's
wireline local exchange service, and fuer means any casua user of Company's
wieline local exchange service. Carer and Company are each deemed to be
subscribers to their own wireless' seivÌce or wie line local exchange service,
respectively, for puroses of this defintion. \ '.d:l,.;-: '.
1.8 "Interconnection Facilties" are those Company facilities between the Company's
Central Offce switch and the POI.
1.9 "Interexchange Carer" or "IXC" is a telecommuncations company authorized by
the FCC and the Commssion to provide, diectly or indirectly, intraLATA or
interLATA telecommuncations toll services. IXC does not include CMRS providers
as herein defined for puroses of ths Agreement.
1.10 "Local Exchange Carier" is as defied in the Act at 47 U.S.C. § 153(26).
1.11 "Local Exchange Routing Guide" or "LERG" means the Telcordia reference
customarly used to identify NPA-NX routing and homing inormation.
1.12 "Local Trafc" for puroses of compensation under ths Agreement is that
telecommuncations trafc which originates and terminates with the same Major
Trading Area ("MTA"), as defmed in 47 C.F.R. § 24.202(a). For puroses of
determining whether trafc originates and termnates with the same MT A, and
therefore whether the trafc is local, the location of the wieline End User and the
location of the cell site that serves the wireless End User at the beginnng of the call
shal be used. Nothng in ths Agreement shall affect the rates either Par assesses
its End Users.
4
1.13 "Major Trading Area" or "MTA" means the service areas based on the Rad
McNally 1992 Commercial Atlas & Marketing Guide, 123rd edition, at pages 38-39.
47 C.F.R. § 24.202(a).
1.14 "POI" or "Point of Interconnection" means the point of interconnection on the
Company's network where the Paries have agreed to the exchange of Local Trafc
between Company's network and Carer's network.
1.15 "PSlN" means the Public Switched Telephone Network.
1.16 "Reciprocal Compensation" means a compensation arangement between two
carers in which each of the two carers receives compensation from the other
carer for the transport and Termnation on the recipient carer's network facilties
for Local Trafc. 47 C.F.R. § 51.701(E).
1.17 "Tandem Switchig" is when Company provides tandem switchig at the Company
switch for trafc between Carer and a Company End Office subtending the
Company switch.
1.18 "Telecommuncation Services" shall have the meang set fort in 47 § U.S.C.
153(46).
, .
1.19 "Termination" means the switching of Local Traffic at the terminating Par's End
Offce Switch,' or equivalent facility, and delivery of such trafc to the called Par's
End User.
1.20 "Usage Factors" are those factors set out in Attachment 1.
2. RURA TELEPHONE COMPANY.
Company is a "rual telephone company" as defined in the Act, 47 U.S.C. § 153(37). By
entering ths Agreement, Company does not waive any exemptions contaned in Section
251(f) of the Act.
3. TRAFIC INTERCHAGED.
3.1 The trafc subject to ths Agreement shall be that Local Trafc which originates
from an End User on the network of one Par and is delivered to an End User on the
network of the other Par. Such traffic includes that Local Trafc which is
delivered to a terminating par on an indiect basis via a thrd par tadem switch.
The trafc subject to ths Agreement also includes traffic that originates on Carer's
network outside the MT A, is delivered to Company for termation and is identified
by means of application of the InterMT A factor set fort on Attachment 1.
5
3.2 The Paries agree that the exchange of traffic of Company's extended area calling
service ("EAS") routes shall be considered Local Trafc and compensation for
Termnation of such trafc shall be paid pursuat to the terms of ths Agreement. An
NX assigned to Carer that is associated with a Company rate center where Carer
is providig service shall be included in an EAS optional calling scope, or similar
program to the same extent as any other NX in the same rate center. EAS routes
are those exchanges with a telephone exchage's local calling area, as defied in
Company's general End User taff.
4. FACILITIES.
4.1 Each Par shall constrct, equip, maita, and operate its network in accordance
with good engieering practices for telecommuncations systems and in compliance
with all applicable rues and reguations, as amended from tie-to-time, of any
reguatory body empowered to reguate any aspect of the facilities contemplated
herein.
4.2 Applicable to direct connection: Ths Agreement is designed to apply to facilities
that are not directly interconnected using a designted POI. Ths Agreement is
intended to begin as indirect connection. The terms and conditions related to direct
connection, .such as POI. or joint biling provisions in Section 7, are included for the
convenience/of thePartes should a direct connection be put in. placeundei.the'.
trgger set fort in Section 4.3, below. ..
4.3 . Applicable to indirect connection using thrd-par tandems: As between the Pares,
each Par shall be solely responsible for any charges the thd-par tadem provider
may assess for transiting trafc, if any, that originates on said Par's network. If
trafc exchanged between Company and Carer reaches 1,000,000 minutes per
month for three consecutive months, Company and Carer will provide a direct
connection between the two. Overfow trafc may continue to be delivered via a
thd par tandem in addition to the use of a diect connection. In ths case, as
between the Paries, each Par shall be responsible for its costs to reach the meet
point.
4.4 It shall be the responsibilty of each Par to program and update its own switches
and network systems pursuant to the LERG guidelines to recognze and route traffic
to the other Par's assigned NX codes, provided routes are established. Neither
Par shall impose any fees or charges whatsoever on the other Par for
programng and updating its own switches.
4.5 The Paries expect that where feasible, trafc will be delivered to each involved
network with CCS/SS7 protocol and the appropriate ISUP/TCAP message to
faciltate ful interoperabilty and biling fuctions. In-band signaling may be used if
CCS/SS7 is not available. The costs for SS7 messaging servce shall be borne by
6
each Par pursuant to a bil and keep arangement, meang that neither Par will
bil the other Par for expenses related to SS7 messaging service.
5. RATES AN CHAGES.
5.1 The Pares hereby agree to the following rates for the facilities and servces to be
provided pursuant to ths Agreement. The Paries hereby agree the rates set fort
herein shall become effective when ths Agreement is signed by both Paries.
Facilties Rates
a. Local Network Usage For Carer's Local Trafc that is termnated to a
Company End Offce, Carer will compensate
Company as set fort in Atthment 1. For
Company's Local Trafc that is termnated to
Carer, Company will compensate Carer as set
fort in Attchment 1. Attchment 1 is incorporated
as though fuly set fort.
b. Access . Services For the Carer's interMTA trafc originted or
termted by Company, the Company's taffed
access rates shall apply and Carer will pay the same
as set fort in said taffs.
5.2 Until such time as Company is capable of measurg terminating trafc, Company
shall bil Carer based upon a termnating to origiting ratio. See the description on
Attchment 1.
5.3 Company will prepare its bil in accordance with its existing CABS biling systems.
Notwthstanding anytg to the contrar in ths Agreement, until a more accurate
measurement system is in place, Company will prepare a net bil tht is calculated
according to the terminating to origiating ratios set out on Attchment 1, based on
Company's originating miutes destined to Carer NP AI combinations with
the MTA as set fort in the LERG. Carer shall not prepare a separate bil, but shall
pay Company based on the net bil rendered by Company, subject to rights to dispute
such bil as set out in ths Agreement. At the time either Par believes it ha a more
accurate measurement capability, it may propose an amendment to ths Section and
the Paries agree to negotiate in good faith concernng such amendment.
5.3.1 De Minìmis Trafc. Where the Local Traffic exchanged between the Paries
is less than five thousand (5,000) miutes per month, the Pares agree to bil each
other on a quaerly, rather than monthy basis.
5.4 When measurement of traffic is reasonably available, for puroses of biling
compensation for the interchange of Local Trafc, biled minutes will be based upon
7
conversation time for those miutes of use actually measured. When measurement is
available, conversation time will be determed from actu usage recordings.
Conversation time begins when the originating Par's network receives answer
supervision and ends when the originating Par's network receives disconnect
superv1sion.
5.5 The charges for Interconnection Facilities shall be determed by Company's
applicable tarff for such facilties or, if taff rates are not available, then by an
individua case contract. The nonrecurg and recurg chages for two-way
facilties shall be shared on a proportonate basis.
6. BILLING AN PAYMENT OF CHAGES.
6.1 Nonrecurng charges wil be biled upon completion of the work activity for which
the charge applies; monthy recurg charges will be biled in advance; and usage
will be biled in arears. All bils will be due upon receipt of the bil, and will
become delinquent if not paid withn th (30) days thereafer. All bils shall be
deemed received thee (3) business days afer the date of mailing. Each Par agrees
that it will make a good faith effort to resolve any biling dispute aring under ths
Agreement.
'.'.- I :',¡ ;-.,.' ,:¡.6~2!' If any undisputed amount due on the bil is not received by the bilingPar,before
the amount becomes delinquent, the billing Par may charge, and the biled Par
agrees to pay, interest on the past due balance at a rate equa to the lesser of one and
one-haf percent (1-1/2%) per month or the maximum nonusurous rate of interest
under applicable law. Late payment charges shall be included on a subsequent
invoice.
6.3 If any porton of an amount due to a biling Par under ths Agreement is subject to a
bona fide dispute between the Paries, the biled Par shall with thirt (30) days of
its receipt of the invoice contanig such disputed amount give notice to the biling
Par of the amounts it disputes ("Disputed Amounts") and include in such notice the
specific details and reasons for disputing each item. The biled Par shall pay all
undisputed amounts to the biling Par prior to those amounts becoming delinquent.
The balance of the Disputed Amount shall thereafer be paid with appropriate late
charges, if appropriate, upon final determnation of such dispute.
6.4 The billng Par shall charge and collect from the biled Par, and the biled Par
agrees to pay to the biling Par, appropriate federal, state, and local taes and
surcharges where applicable, except to the extent the biled Par notifies the biling
Par and provides appropriate documentation that the biled Par quaifies for a full
or paral exemption.
6.5 Either Par may conduct an audit .of the other Par's books and records pertainig
to the servces provided under ths Agreement no more than once per twelve (12)
8
month period to evaluate the other Par's accuracy of biling, data and invoicing in
accordance with this Agreement. Any audit shall be performed as follows: (a)
followig at least th (30) days prior wrtten notice to the audited Par, (b) subject
to reasonable scheduling requiements and limtations of the audited Par, (c) at the
auditing Par's sole expense, (d) of a reasonable scope and duration, (e) in a maner
so as not to interfere with the audited Par's business operations, and (f) in
compliance with the audited Par's securty rues.
7. NON-LOCAL TELECOMMCATIONS TRAFIC.
7.1 The Pares contemplate that they may exchange non-local interMTA
telecommuncations trafc over the interconnection facilties provided for under ths
Agreement. Compensation for non-local interMTA trafc shall be subject to the
appropriate access rates. Compensation shall be charged according to the Usage
Factors set out on Attchment 1.
7.2 When the Paries provide an access service connection between an IXC and each
other, each Par will provide its own access servces to the IXC. Each Par will bil
its own access servce rates to the IXC pursuat to the procedures described in
Multiple Exchange Carer Access Biling ("MECAB") document SR-BDS-000983,
issued 5, June 1994. The Pares shall provide to each other the Switched Access
Detail Usage Data and the, Switched. Access Sumar Usage Data to bil for jointly
provided switched access: service; such as: switched access Featue Groups Band D.
The Paries agree to provide ths.data to each other at no charge.
..'-,....
7.3 If the procedures in the MECAB document are amended or modified, the Paries
shall implement such amended or modified procedures with a reasonable period of
tie. Each Par shall provide the other Par the biling name, biling address, and
carer identification code ("CIC") of the IXCs tht may utilize any porton of either
Par's network in a Carer/Company Meet Point Biling (MPB) arangement in
order to comply with the MPB notification process as outlned in the MECAB
document.
8. IMPAINT OF SERVICE.
The characteristics and methods of operation of any circuits, facilities or equipment of either
Par connected with the services, facilities, or equipment of the other Par pursuat to ths
Agreement shall not interfere with or impair service over any facilities of the other Par, its
Afliates, or its connecting and concurg carers involved in its servces, cause damage to
their plant, violate any applicable law or reguation regarding the invasion of privacy of any
communcations cared over the Par's facilities or create hazards to the employees of
either Par or to the public (each hereinafer referred to as an "Impaient of Service").
9. CREDIT ALLOWANCE FOR SERVICE INTERRUPTIONS.
9
Credit allowance for interrption of servces provided under ths Agreement shall be
governed by the terms and conditions set fort in Company's intrastate access taiffs. For
puroses of ths Agreement, Carer adopts the credit allowances set fort in Company's
intrastate access taffs as its own for puroses of providing credit allowance to Company.
10. SERVICE ORDERS.
Carer shall order Interconnection Facilities on a per circuit basis and shall specify at the
time the circuit is ordered the date on which Carer desires that the service be provided.
Company will process such orders in accordance with its normal procedures for the
installation of comparable circuits and will advise Carer whether or not it can meet the
service date requested by Carer and, if not, the date by which servce will be provided. If
Carier wishes that the service be provided at an earlier date, Company will make reasonable
efforts to meet Carer's request on the condition that Carer agrees to reimburse Company
for all additional costs and expenses, including by not limited to, overte chages
associated with providing servce at the earlier date, provided Carer has pre-approved the
work and charges.
11. RESOLUTION.
If either Par causes an Impaient of Servce, the Par whose network or servce is being
impaired (the "Impaied..Par,,) shalL. promptly notify the Par causing the Impaient of .;:¿,!d,r'
Service (the "Impaiing- Par'') of the natue and .location of the problem and tht, uness
promptly rectified, a temporar' discontinuance ,of the use of any circuit, facilty or.
equipment may be requied. The Impairig Par and the Impaied Par agree to work
together to attempt to promptly resolve the Impairment of Service. If the Impairig Par is
unable to promptly remedy the Impairment of Servce, then the Impaied Par may at its
option temporarly discontinue the use of the affected circuit, facility or equipment until the
circumstance or condition givig rise to the Impairment of Service is eliminated or otherwse
resolved.
12. TROUBLE REPORTING.
12.1 In order to facilitate trouble reporting, each Par has established a single point of
contact with voicemail capability available twenty-four (24) hours per day, seven
days per week, at telephone numbers to be provided by the Pares. Each Par shall
call the other at these respective telephone numbers to report trouble with connection
facilities, trs, and other interconnection arangements, to inquire as to the status
of trouble ticket numbers in progress, and to escalate trouble resolution.
12.2 Before either Par reports a trouble condition, it must fist use its reasonable efforts
to isolate the trouble to the other Par's facilties, service, and arangements. Each
Par will advise the other of any critical natue of the inoperative facilities, service,
and arangements and any need for expedited clearance of trouble. In cases where a
Par has indicated the essential or critical need for restoration of the ,facilities,
10
services or arangements, the other Par shall use its best efforts to expedite the
clearce of trouble.
13. TERM AND TERMATION.
13.1 Ths Agreement. shall tae effect as of the date it is signed by both Paries and have
an intial term of one year, uness earlier termated as provided for in ths
Agreement, and shall continue in force and effect thereafer for successive one-year
terms, until replaced by another agreement or terminated by either Par upon th
(30) days wrtten notice to the other.
13.2 Notwthtading a notice of termtion, uness the Par receiving such notice
agrees to an earlier termination, ths Agreement shal remai in effect until replaced
by another agreement negotiated or arbitrated between the Paries pursuant to
applicable law with one hundred and eighty (180) calenda days from the date that
the notice of termation was received. This Agreement shall terminate on the one
hundred and eighty first (181st) day afer the date that the notice of termnation was
received if the Agreement has not been superseded by another agreement.
13.3 If ths Agreement is termated, each Par agrees to disconnect from each other's
network. ~'. ¡,
.: "'. ..~ .,ò','
13.4 . Notwthtading Section 13.T, ths Agreement shal be termated in the eventthat:;..:
a. the FCC revokes, cancels, does not renew, or otherwse terminates Carer's
authorization to provide CMRS in that portion of the MTA served by
Company as a wieline Local Exchange Carer, or the Commission revokes,
cancels, or otherwse termnates Company's certification or authority to
provide local service; or
b. either Par: (i) becomes banpt or insolvent; (ii) makes a general
assignent for the benefit of, or enters into any arangement with creditors;
(iii) files a voluntar petition under any banptcy, insolvency, or similar
laws; or (iv) proceedings are instituted under any banptcy, insolvency, or
similar laws seekig the appointment of a receiver, trstee, or liquidator for
the Par which are not termnated withn sixty (60) days of such
commencement.
13.5 Either Par shall have the right to terminate ths Agreement upon wrtten notice to
the other Par in the event:
a. a Par is in arears in the payment of any undisputed amount due under ths
Agreement for more than sixty (60) days, and the Par does not pay such
sums withn ten (10) business days of receipt by it of the other Par's wrtten
demand for payment; or
11
b. a Par is in material breach of the provisions of ths Agreement and that
breach contiues for a period of thrt (30) days afer the receipt by it of the
other Par's wrtten notification of such breach, including a reasonably
detailed statement of the natue of the breach.
14. LIAILITY UPON TERMATION.
Termination of ths Agreement, or any par hereof, for any cause shall not release either
Par from (1) any liabilty which at the time of termation ha aleady accrued to the other
Par or which thereafer accrues in any respect to any act or omission occurng prior to the
termination, or (2) from any obligation which is expressly stated in ths Agreement to
surive termintion.
15. AMNDMENTS.
Any amendment, modification, or supplement to ths Agreement must be in wrtig and
signed by an authorized representative of each Par. The term "ths Agreement" includes
Attchment 1 hereto and shall include futue amendments, modifications, and supplements.
16. ASSIGNMNT.
¡,,16; 1, ' Any,assignenf,ÎI whole or in par, by either Par ofanyright,:obligatiøn,ordllty ,:,
arsing under. ths Agreement or of any interest in ths Agreement to a non-afliated
par, without the wrtten consent of the other Par, which consent shal not be'
uneasonably witheld, shall be void, except that, without such consent but with
written notification to the non-assigng Par, either Par may assign all of its
rights, and delegate all of its obligations, liabilities, and duties, under ths Agreement
to any entity that is, or that was imediately precedig such assignent, a wholly
owned subsidiar or Afliate of tht Par. The effectiveness of an assignent shall
be conditioned upon the assignee's wrtten assumption of all of the rights,
obligations, liabilities and duties of the assigng Par arsing under ths Agreement
and the delivery of such wrtten assumption, or of a tre copy thereof, to the non-
assigng Par. In the event of a parial assignent of any right arsing under ths
Agreement or of any Iiterest in ths Agreement, the non-assignng Par shall have
any and all defenses agaist the assignee as it would have had agaist the assignor
had the assignment not occured.
16.2 Nothng in ths Agreement shall prohibit Carer from extending its CMRS network
though management contracts with thd pares for the constrction and operation
of a CMRS system under the Carier's brand name and license. Trafc originating
on such extended networks shall be treated as Carer's traffc subject to the terms,
conditions, and rates of ths Agreement. Trafc traversing such extended networks
shall be deemed to be and treated under ths Agreement as "Carer
telecommuncations trafc" when it originates on such extended network and
12
termates on Company's network, and as "Company telecommuncations trafc"
when it originates upon Company's network and termnates upon such extended
network. Telecommuncations traffic traversing on such extended networks shall be
subject to the terms, conditions, and rates of ths Agreement.
16.3 Either Par may enter into subcontracts with thrd pares or Affliates for the
performance of any of its duties or obligations under ths Agreement.
17. AUTHORITY.
Each person whose signatue appears on ths Agreement represents and warants that he or
she has authority to bind the Par on whose behalf he or she has executed ths Agreement.
18. BINING AFFECT.
Ths Agreement shall be binding on and inure to the benefit of the respective successors and
permitted assigns of the Pares.
19. COMPLIACE WITH LAWS AN REGULATIONS.
.,,1-.
Each Par shall comply with all federal, state, and local statutes, :reguations, rues,
ordiances, judicial decisions, and admnistrative ruings applicable to itsperformance under
. ths Agreement. ',í ;.";i.~".
20. ENTI AGREEMENT.
Ths Agreement constitutes the entire agreement of the Pares pertnig to the subject
matter of ths Agreement and supersedes all prior agreements, negotiations, proposals, and
representations, whether wrtten or oral, and all contemporaneous oral agreements,
negotiations, proposals, and representations concerng such subject matter. No
representations, understadings, agreements, or waranties, expressed or implied, have been
made or relied upon in the makg of ths Agreement other th those specifically set fort
herein.
21. EXPENSES.
Except as specifically set out in ths Agreement, each Par shall be solely responsible for its
own expenses involved in all activities related to the subject of ths Agreement.
22. FORCE MAUR.
In the event performance of ths Agreement, or any obligation hereunder, is either directly or
indirectly prevented, restricted, or interfered with by reason of fire, flood, earquae, or like
acts of God, wars, revolution, civil commotion, explosion, acts of public enemy, embargo,
acts of the governent in its sovereign capacity, labor diffculties, includig without
13
limitation, strikes, slowdowns, picketing, or boycotts, unavailability of equipment from
vendor, chages requested by the other Par, or any other circumstaces beyond the
reasonable control and without the fault or negligence of the Par afected, the Par
afected, upon giving prompt notice to the other Par, shall be excused from such
performance on a day-to-day basis to the extent of such prevention, restrction, or
interference (and the other Par shall likewise be excused from performance of its
obligations on a day-to-day basis until the delay, restrction or interference has ceased);
provided however, that the Par so afected shall use dilgent efforts to avoid or remove
such causes of nonperformance and both Pares shall proceed whenever such causes are
removed or cease.
23. GOVERNING LAW.
23.1 Ths Agreement shall be governed by and constred in accordance with the domestic
laws of the state having jurisdiction as well as the Act and other federal laws, and
shall be subject to exclusive jursdiction of the cours and/or reguatory commission
of such state, except to the extent that the Act and other federal laws provide for
federal jursdiction.
.. ; ~
23.2 The terms and conditions of ths Agreement shall be subject to any and all applicable
laws, rues, or reguations that subsequently may be adopted by any applicable
federal, state, or local governentalautnQrIty. Any modifications to ths Agreement
occasioned by such chages' shall be effected though good faith negotiations
concerng modifications to ths Agreement.
24. INEPENDENT CONTRCTOR RELATIONSHIP.
The persons implementing ths Agreement on behalf of each Par shall be solely that Par's
employees or contractors and shall be under the sole and exclusive direction and control of
that Par. They shall not be considered employees of the other Par for any purose. Each
Par shall remai an independent contractor with respect to the other. and shal be
responsible for compliance with all laws, rues and reguations involving, but not limted to,
employment of labor, hours of labor, health and safety, working conditions and payment of
wages. Each Par shall also be responsible for payment of taxes, including federal, state
and muncipal taxes, chargeable or assessed with respect to its employees, such as Social
Securty, unemployment, workers' compensation, disabilty insurance and federal and state
witholding. Each Par shall indemnfy the other for any loss, damage, liability, claim,
demand, or penalty that may be sustained by reason of its failure to comply with ths
provision.
25. LIAILITY AN INEMNTY.
25.1 Indemnfication.
14
Each Par agrees to indemnfy, defend, and hold harless the other Par from all
losses, claims, demands, damages, expenses, suits, or other actions, or any liabilty
whatsoever, includig, but not limited to, costs and attorney's fees, whether sufered,
made, instituted, or asserted by any other Par or person, for invasion of privacy,
personal injur to or death of any person or persons, or for losses, daages, or
destrction of propert, whether or not owned by others, proximately caused by the
indemnfyng Par's negligence or willful misconduct, regardless of form of action.
25.2. Disclaimer.
EXCEPT AS SPECIFICALLY PROVIED TO THE CONTRY IN THIS
AGREEMENT, NEITHER PARTY MAS ANY REPRESENTATIONS OR
WARTIES TO THE OTHER PARTY CONCERNG THE SPECIFIC
QUALITY OF AN SERVICES OR FACILITIES PROVIDED UNDER THS
AGREEMENT. EACH PARTY DISCLAIS, WITHOUT LIMTATION, ANY
WARTY OR GUARTEE OF MERCHATABILITY OR FITNSS FOR A
PARTICULAR PUROSE, OR ARSING FROM COURSE OF PERFORMCE,
FROM COURSE OF DEALING, OR FROM USAGES OF TRE OR
OTHERWISE.
l :, ~25.3 Limtation of Liability.
". ~..i J ',; .~,¡:';'. l-..-:' .. :':.
A Par's liability;.'.whether in tort or. otherwse, shall be limited to direct damages,
which shall not exceed the pro rata portion of the monthy charges for the servces or
facilities for the time period durng which the services or facilties provided pursuat
to ths Agreement are inoperative, not to exceed in tota the monthy chage payable
by the liable Par to the other Par. Under no circumstace shall a Par be
responsible or liable to the other Par for indiect, incidental, or consequential
daages, including, but not limited to, economic loss or lost business or profits,
daages arsing from the use or provisioning of services hereunder.
25.4 Relationship to Prices.
The prices for services provided under ths Agreement are set in express reliance
upon the enforceability of ths Section 25 and ths Section 25 constitutes an essential
element of the bargai.
25.5 Surival.
The provisions of ths Section 25 shall surive any termination of ths Agreement.
25.6 Equipment.
Except as otherwse provided in ths Section 25, no Par shall be liable to the other
Par for any loss, defect, or equipment failure caused by the conduct of the fist
15
Par, its agents, servants, contractors or others acting in aid or concert with that
Par, except in the case of gross negligence or willful misconduct.
25.7 Notice and Procedure.
a. The indemnfied Par will notify the indemnfyng Par promptly and in
wrting of any claims, lawsuits, or demands by End Users or other thd
paries for which the Indemnfied Par alleges that the indemnfyg Par is
responsible under ths Section, and, if requested by the indemnfyng Par,
will tender defense of such claim, lawsuit or demand.
b. If the indemnfyg Par does not promptly assume or diligently pursue the
defense of the tendered action, then the indemnfied Par may proceed to
defend or settle said action and the indemnfyng Par shall hold haress
the indemnfied Par from any loss, cost liability, daage and expense
resultig from such action. Furer, the indemnfyg Par shall bear all
costs and expenses, includig reasonable attorneys' fees, the indemnfied
Par incurs in defending and/or settling the action.
c.In the event the Par otherwse entitled to indemnfication from the other
elects to.decline such indemnfication, then the Par makng such an election
may, at its 'ownexpense, assume defense and settement of the claim, lawsuit
.. orderiand,which .election shall relieve the other Par from any fier'."
liabiltyocobligation to the ,Par'makng the election with respect to the
clai, lawsuit or demand,. or the subject matter thereof.
; '0,', :~ ':
d. The Paries will cooperate in every reasonable maner with the defense or
settlement of any claim, demand, or lawsuit subject to indemnfication
pursuant to ths Section 25.
e. Neither Par shall accept the terms of a settlement that involves or references
the other Par in any maner without the other Par's prior wrtten approval.
26. DISPUTE RESOLUTION.
Any controversy or clai arsing out of or relating to ths Agreement, or the breach thereof, will be
resolved by both Paries according to the procedures set fort below.
26.1 Alternative to Litigation.
The Paries desire to resolve disputes arsing out of or relating to ths Agreement
without litigation. Accordingly, the Pares agree to use the following alternative
dispute resolution procedures with respect to any controversy or claim arsing out of
or relating to this Agreement or its breach, except for (i) an action seeking a
temporar restraining order or injunction related to the confdentiality provisions of
16
Section 27 or to compel compliance with this dispute resolution process uness the
Pares agree at the time of the dispute to submit the matter to arbitration.
26.2 Negotiations and Dispute Resolution Process.
At the written request of a Par, each Par shall appoint, with ten (l0) business
days afer the date of the request, a knowledgeable, responsible representative to
meet and negotiate in good faith for a period of up to fort-five (45) days afer the
request to resolve any dispute arsing under ths Agreement. The Paries intend that
these negotiations be conducted by business representatives, who may be attorneys.
The location, format, frequency, duration, and conclusion of these discussions shall
be left to the discretion of the representatives. Upon mutual agreement, the
representatives may utilze other alternative dispute resolution procedures such as
private mediation to assist in the negotiations. Discussions and correspondence
between or among the representatives for puroses of these negotiations shall be
treated as confdential inormation developed for puroses of settlement, shall be
exempt from discovery and production, and shal not be admissible in the arbitrtion
described below or in any lawsuit without the concurence of all Paries. Documents
identified in or provided with such communcations, which are not prepared for
puroses of the negotiations, are not so exempted and may, if otherwse discoverable,
c ' be discovered and~ ifotherwse,admissible, be admtted in evidence, in the arbitration
"".',or lawsuit. ,',' ¡ ,; ..: ' " .
. .:~ ".,
If the negotiations: do not resolve the dispute with fort-five (45) days ,afer ,the
initial wrtten request, the Paries may raise such dispute to a cour of competent
jursdiction or, if the matter is within the jursdiction of the agency, the FCC or the
Commssion. Alternatively, the Pares may by mutu consent elect to submit such
claim to either non-binding or mutu binding arbitration by a single arbitrator
pursuant 'to the Commercial Arbitration Rules of the American Arbitration
Association or such other rues to which the Paries may agree, albeit not necessarly
under the auspices of the American Arbitration Association. Any arbitration mutually
agreed upon by the Paries will be conducted in accordance with the procedures set
out in those rues. Reasonable discovery shall be allowed and controlled by the
arbitrator. The arbitration hearg shall be commenced with sixt (60) days of the
demand for arbitration. The arbitration shall be held in Idaho or as mutually agreed to
by the Paries. The arbitrator shall control the scheduling so as to process the matter
expeditiously. The arbitrator shall rue on the dispute by issuig a wrtten opinon
with th (30) days afer the close of hearg. The times specified in ths
paragraph may be extended upon mutu agreement of the Paries or by the arbitrator
upon a showing of good cause. The arbitrator shal not have authority to award
puntive damages. Where both Paries consent to mutu binding arbitration, the
decision of the arbitrator shall be final and binding upon the Pares and judgment
upon the award rendered by the arbitrator may be entered in any cour having
jursdiction.
17
Each Par shall bear its own costs of these procedures. The Pares shall equally split
the fees of the arbitration and the arbitrator.
With respect to a biling dispute under Section 6, neither Par shall terminte or
suspend the provision of any service or other pedormance under ths Agreement
durng the pendency of any dispute resolution or arbitration undertaken pursuat to
ths Section. The disputig Par may withold payment of the disputed amount, but
must pay all charges not in dispute per the payment terms in ths Agreement. The
disputig Par will cooperate with the biling Par to resolve any dispute
expeditiously. If the Pares fail to resolve the biling dispute withn th (30) days
of wrtten notice of a disputed amount, then either Par may submit the dispute for
resolution pursuant to Section 26.2. Any amounts which are then determed to be
owig to the biling Par shal be paid with ten (10) days of the decision. In the
event the biling dispute is resolved in favor of the biling Par, any payments
withheld pending settlement of the dispute will be subject to a late payment penalty
under Section 6 applied back to the date each such payment shall have first become
delinquent.
No arbitration demand or other judicial or admnistrative action, regardless of form,
arsing out of or related to ths Agreement may be brought by either Par more th
two (2) years afer the cause of action arises. The limtation contaied. in ths Section
, shall not apply to causes of action arising in fraud. In the case of fraud, thè two (2);
year litation contained in ths Section shall ru from the time of discovery of the'
,basis for the claim of fraud,
26.3 Savings Clause.
Either Par may determine, in its own judgment, that negotiations are not producing
measurable results and may then avail themselves of any remedy they may have
under law, includig, but not limited to, resort to complaint to the appropriate
admstrative agency or cour action. The Paries may agree to submit the matter to
arbitration on such terms and conditions as may be mutually agreed upon by the
Pares.
26.4 Continuous Service.
The Pares shall continue providig servces to each other durng the pendency of
any dispute resolution procedure, and the Paries shall contiue to pedorm their
obligations (includig makg payments in accordance with Section 6) in accordance
with this Agreement.
27. CONFIDENTIA INFORMTION.
27.1 Identification.
18
Either Par may disclose to the other proprietar or confdential End User, techncal,
or business information in wrtten, graphic, electronic, oral or other tagible or
intagible forms ("Confdential Inormation"). In order for information to be
considered Confdential Inormation under ths Agreement, it must be marked
"Confdential" or "Proprieta," or bear a marking of similar import. Orally or
visUally disclosed inormation shall be deemed Confdential Inormation only if
contemporaneously identified as such and reduced to wrting and delivered to the
other Par with a statement or markig of confdentiality with thirt (30) calendar
days afer oral or visual disclosure. The following information shall be deemed
Confdential Inormation, whether or not marked as such: orders for servces, usage
inormation in any form, and Customer Proprieta Network Inormation ("CPNI")
as that term is defined by the Act and the rues and reguations of the FCC and
Commssion.
27.2 Handling.
In order to protect such Confdential Information from improper disclosure, each
Par agrees:
a. That all Confdential Inormation shall be and shall remai the exclusive
,..:' ., !7propert of the Par from whom or from whose representative(s), the.
'_ ,.. Î,.... ~. ì "', . . I.. Confdential Inormation is obtaied ("Source"); .
...,
b. . .. To limit access to such Confdential Inormation to authorized employees ånd
representatives who have a need to know the Confdential Inormation for ,
performance of ths Agreement;
c. To keep such Confdential Inormation confdential and to use the same level
of care to prevent disclosure or unauthorized use of the received Confdential
Inormation as it exercises in protecting its own Confdential Inormation of a
similar natue;
d. Except as permitted by b., above, not to copy, publish, or disclose such
Confdential Inormation to others or authorize anyone else to copy, publish,
or disclose such Confdential Inormation to others without the prior wrtten
approval of the Source;
e. To retu promptly any copies of such Confdential Inormation to the Source
at its request; and
f. To use such Confdential Inormation only for puroses of fufilling work or
services performed hereunder and for other puroses only upon such terms as
may be agreed upon between the Paries in writing.
27.3 Exceptions.
19
These obligations shall not apply to any Confdential Information tht was legally in
the recipient's possession prior to receipt from the Source, was received in good faith
from a thd par not subject to a confdential obligation to the Source, now is or
later becomes publicly known though no breach of confdential obligation by the
recipient, was developed by the recipient without the developing persons having
access to any of the Confdential Inormation received in confdence from the
Source, or tht is requied to be disclosed pursuat to subpoena or other process
issued by a cour or admnistrtive agency having appropriate jursdiction; provided,
however, that, with respect to disclosure pursuat to subpoena or other process, the
recipient shall give as much prior notice as possible to the Source and shall
reasonably cooperate if the Source deems it necessar to seek protective
arangements.
27.4 Surval.
The obligation of confdentiality and use with respect to Confdential Inormation
disclosed by one Par to the other shall surive any termination of ths Agreement
for a period of thee (3) years from the date of the initial disclosure of the
Confdential Information.
:.:::.;'
28.NOTICES.f:' .. '..' ~ '.
, Any notice to a Par required or permitted under this, Agreement shall;.be in:wrtig and;
shall be deemed to have been received on the date of servce if served personally, on-the date
receipt is acknowledged in wrting by the recipient if delivered by regular U.S. mail, or on
the date stated on the receipt if delivered by certified or registered mai or by a courer
service that obtains a wrtten receipt. Notice may also be provided by facsimile, which shall
be effective on the next business day followig the date of transmission. The Par receiving
the notice by facsimle will provide wrtten confiration to the other Par. Any notice shal
be delivered using one of the alterntives mentioned in ths section and shall be diected to
the applicable address indicated below or such address as the Par to be notified has
designated by giving notice in compliance with ths Section:
If to Company:Midvale Telephone Exchange, Inc.
Attention: CEO
2205 Keithey Creek Road
PO Box 7
Midvale, Idaho 83645
Telephone #: [phone]
With copy to (which shall not alone constitute notice):
Richard Finigan
2112 Black Lake Blvd SW
Olympia, WA 98512
20
If to Carer:Verizon Wireless
Attention: Regulatory Counsel - Interconnection
1300 I Street NW, Suite 400W
Washington DC 20005
Telephone #: [phone]
Facsimile #: 202-589-3750
With copy to:Verion Wireless
Attention: Mar Bacigalupi
2785 Mitchell Drive, MS 8-1
Walnut Creek, CA 94598
29. REGULATORY AGENCY CONTROL
This Agreement shal at all ties be subject to changes, modifications, orders, and ruings by
the FCC and/or the Commssion to the extent the substance of ths Agreement is or becomes
subject to the jursdiction of such agency.
30. SEVERAILITY.
If any provision of ths Agreement is held by a cour or reguatory agency of competent
jurisdiction to be unenforceable, the rest of the Agreement shal remain in ful force and
ieffect and shall not be afected uness removal of tht provision results in a material chage
to this Agreement. If a material chage as described in ths paragraph occurs. as a result of
action by a cour or reguatory agency, the Paries shall negotiate in good faith for
replacement language. If replacement languge canot be ageed upon withn a reasonable
period, either Par niay termnate ths Agreement without penaty or liabilty for such
termnation upon wrtten notice to the other Par.
31. PATENTS.
No license under patents is granted by Carer to Company, or by Company to Carer, or
shall be implied or arse by estoppel with respect to any circuit, apparatu, system, or method
used by either of them in connection with any facilities, servce or arangements fushed
under ths Agreement.
32. FILING OF AGREEMENT.
The Paries will cooperate in submittng ths Agreement for filing with the Commssion.
33. COUNTERPARTS.
21
This Agreement may be executed simultaeously in two or more counterpars, each of which
shall be deemed an original, but all of which together shal constitute one and the same
instrent.
34. CONSTRUCTION.
It is agreed and understood that both Paries negotiated the terms and conditions of ths
Agreement. Ths Agreement shall not be constred more favorably for one Par or the
other.
IN WIlNESS WHREOF, the Pares hereto have executed ths Agreement effective as of
the date signed by both Pares.
Verion Wireless (VA W) LLC d//a
Verion Wireless
Midvale Telephone Exchange, Inc.
Cellco Parership d//a Verizon Wireless
Cellular, Inc. Financial Corporation d//a
Verizon Wireless
: .. ~".~".'. .~'; .:: ",
;" Idaho RSA No.2 Limited Parership 'Ql/a.
-; Verizon Wireless
By Verizon Wireless (V A W) LLC, Its General
Parer
Idao RSA No.3 Limited Parership d//a
Verizon Wireless
By Verizon Wireless (VA W)LLC, Its General
Parer
Idaho 6-Clark Limited Parership d//a
Verizon Wireless
By Commet Cellular Inc., Its Managing
Agent
RCC Minnesota~.5b'/.,By:~
~~ dN-/(.p~Name: Walter L. Jones, Jr.Name:
Title: West Area Vice President - Network Title:
22
Date: 5/29/09 Date:
23
8/10109
Attachment 1 Rates
1.Trafc Factor
Land-to-Mobile
Mobile-to-Land
.30
.70
2.Usage Factors
Percent Local Usage (PLU)
Inter MTA Factor
*Percent Interstate Usage (PIU
*Intrastate Usage Percentage
.98
.02
.50
.50
*These factors apply only to InterMTA trafc.
3. Local Trafc Termnation Rates
Each Par agrees to compensate the other for termating local servce area calls originated
on the originatig Par's network at $0.015 per minute of use.
4. Ilustration of Application of Billng Rates
Company shall bil Caerbasedupon Company's originating minutes, as follows. ',First
assume that Company has 3,000 minutes that originate in a month and terminate ,to, Carer.
Using the ratios set fort in the Trafc Factors above, Company will then bill Carer for
7,000 minutes termating on Company's facilties. In ths example, the InterMTA factorI"s
2%.
The Usage Factors will be applied to the 7,000 minutes, resultig in 98%, or 6,860, of the
minutes will be rated at the Local Trafc termation rate of $0.015 per minute of use. Of
the remaig 140 miutes, 70 of those minutes will be charged intrastate access rates and 70
of the minutes will be charged interstate access rates.
Company will then factor the Land-to-Mobile trafc using the 3000 originting minutes
from the example and applyig the Trafc Factors above. Company will net these minutes
from the bil generated to Carer.
24