20050720Application Exhibits C-M.pdf

(THERE WAS NO EXHIBIT B FILED WITH THE APPLICATION)
EXHIBIT C
See Qwest's Wholesale web-site for the Service Interval Guide.
Exhibit C -Qwest Fourteen State Template Version 1., May 11 2005
Exhibit D
Date General Information Provided by Qwest:
General Agreement:
BAN Number(must be assigned before processing):
REVISED QWEST RIGHT OF WAY, POLE ATTACHMENT, INNERDUCT OCCUPANCY GENERAL
INFORMATION: EFFECTIVE 6/29/01
1. PURPOSE The purpose of this General Information document is to share information and
provide or deny permission to attach and maintain CLEC's facilities ("Facilities ) to Qwest
Corporation s ("Qwest") Poles , to place Facilities on or within Qwest's Innerduct (collectively
Poles/lnnerdu~t") and to obtain access to Qwest's private right of way ("ROW"), to the extent Qwest
has the right to grant such access. This General Information is necessary to determine if Qwest can
meetthe needs of the CLEC's request but does not guarantee that physical space or access is
currently available. Permission will be granted on a first-come, first-serve basis on the terms and
conditions set forth in the appropriate agreement pertaining to "Poles/lnnerduct"
PROCESS The Qwest process is designed to provide the CLEC the information so as to assist
CLEC and Qwest to make Poles, Innerduct and ROW decisions in a cost-efficient manner. The
Process has these distinct steps:
Inquiry Review - Attachment 1.A (Database Search). The GLEC is requested to review
this document and return Attachment 1.A along with two copies of a map and the nonrefundable
Inquiry Fee, calculated in accordance with Attachment 1.A hereto. These fees are intended to
cover Qwest's expenses associated with performing an internal record (database) review
preparing a cost estimate for the required field survey, setting up an account, and determining
time frames for completion of each task to meet the CLEC's Request. Be sure a BAN number is
assigned by the Qwest Service Support Representative for each request before sending an
Attachment 1.A. To request a BAN number send an email requesting one to:
wholesale.servicessupportteam~qwest.com. Include your name, company, phone number, email
address, city and state of our inquiry. A BAN number will be assigned to your inquiry and will be
emailed to you along with other materials.
As indicated on Attachment 1., a copy of the signed Attachment and maps of the desired route
must be emailed to wholesale.servicessupportteam~qwest.com while the fee must be sent to the
Qwest CLEC Joint Use Manager with the original signed Attachment 1.A. The map should clearly
show street names and highways along the entire route, and specific locations of entry and exit of
the ROW/duct/pole system. Area Maps should be legible and identify all significant geographic
characteristics including, but not limited to, the following: Qwest central offices, streets, cities
states, lakes, rivers, mountains, etc. Qwest reserves the right to reject illegible or incomplete
maps. If CLEC wishes to terminate at a particular manhole (such as a POI) it must be indicated
on the maps. For ROW: Section, Rangeand Township, to the % section must also be provided.
Qwest will complete the Inquiry review and prepare and return a Polesllnnerduct
Verification/ROW Access Agreement Preparation Costs Quotation (Attachment 1.B) to the GLEC
generally within ten (10) days or the applicable federal or state law, rule or regulation that governs
this Agreement in the state in which Innerduct attachment is requested. In the case of poles,
Qwest will assign a Field Engineer and provide his/her name and phone number to the CLEC.
The Field Engineer will check the local database and be available for a joint verification with the
. CLEC. The Polesllnnerduct Verification/ROW Access Agreement Preparation Costs Quotation
will be valid for thirty (30) calendar days from the date of quotation. The Inquiry step results only
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page
Exhibit D
in the location and mapping of Qwest facilities and does not indicate whether space is available.
This information is provided with Attachment 1.
In the case of ROW, Qwest will prepare and return a ROW information matrix and a copy
agreements listed in the ROW Matrix, within ten (10) days. The ROW Matrix will identify (a) the
owner of the ROW as reflected in Qwest's records , and (b) the nature of each ROW (i.e., publicly
recorded and non-recorded). The ROW information matrix will also indicate whether or not Qwest
has a copy of the ROW agreement in its possession. Qwest makes no representations or
warranties regarding the accuracy of its records, and CLEC acknowledges that, to the extent that
real property rights run with the land, the original granting party may not be the current owner of
. the property.
In the case of MDUs, Qwest will prepare and return an MDU information matrix, within ten (10)
days, which will identify (a) the owner of the MDU as reflected in Qwest's records , and (b)
whether or not Qwest has a copy of the agreement between Qwest and the owner of a specific
multi-dwelling unit that grants Qwest access to the multi-dwelling unit in its possession. Qwest
makes no representations or warranties regarding the accuracy of its records, and CLEC
acknowledges that the original landowner may not be the current owner of the property.
Qwest will provide to CLEC a copy of agreements listed in the Matrices that have not been
publicly recorded if CLEC obtains authorization for such disclosure from the third partyowner(s)
of the real property at issue by an executed version of the Consent to Disclosure form, which is
included in Attachment 4. Qwest will redact all dollar figures from copies of agreements listed in
the Matrices that have not been publicly recorded that Qwest provides to CLEC. Alternatively, in
order to secure any agreement that has not been publicly recorded , a CLEC may provide a
legally binding and satisfactory agreement to indemnify Qwest in the event of any legal action
arising out of Qwest's provision of such agreement to CLEC. In that event, the CLEC shall not be
required to execute the Consent to Disclosure form.
If there is no other effective agreement (i.an Interconnection Agreement) between CLEC and
Qwest concerning access to Poles, Ducts and ROW, then Attachment 3 must be executed by
both parties in order to start the Inquiry Review and in order for CLEC to obtain access to Poles
Ducts and/or ROW.
Attachment 1.(Verification) & Attachment 4 (Access Aqreement Preparation)With
respect to Poles and Innerduct upon review and acceptance of signed Attachment 1.B and
payment of the estimated verification costs by the CLEC, Qwest will conduct facilities verification
and provide the requested information which mayor may not include the following: a review of
public and/or internal Qwest right-of-ways records for restrictions, identification of additional
rights-of-way required; a field survey and site investigation. of the Innerduct, including the.
preparation of distances and drawings, to determine availability on existing Innerduct;
identification of any make-ready costs required to be paid by the CLEC, if applicable, prior to
installing its facilities. In the case of Poles, Attachment 1.B orders the field verification which maybe done jointly. A copy of the signed Attachment 1.should be emailed to
wholesale.servicessupportteam~qwest.com while the appropriate fees should be sent to the
Qwest-CLEC Joint Use Manager with the original signed Attachment 1.B. Upon completion of the
verification, Attachment "2 will be sent to the CLEC by Qwest.
With respect to ROW , upon review and acceptance of signed Attachment 1.B and payment of the
ROW conveyance consideration , Qwest will deliver to the CLEC an executed and acknowledged
Access Agreement to the CLEC in the form attached hereto as Attachment (the "Access
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4 2004 Page 2
Exhibit D
Agreement"). In the event that the ROW in question was created by a publicly recorded document
and Qwest has a copy of such document in its files, a copy of the Right-of-Way Agreement, as
defined in the Access Agreement, will be attached to the Access Agreement and provided to the
CLEC at the time of delivery of the Access Agreement. If the ROW was created by a document
that is not publicly recorded, or if Qwest does not have a copy of the Right-of-Way Agreement in
its possession , the Access Agreement will not have a copy of the Right-of-Way Agreement
attached. If the ROW wa~ created by a non-publicly recorded document, but Qwest does not
have a copy of the Right-of-Way Agreement in its possession , the CLEC must obtain a copy of
the Right-of-Way Agreement or other suitable documentation reasonably satisfactory to Qwest to
describe the real property involved and the underlying rights giving rise to the Access Agreement.
Although Qwest will provide the identity of the original grantor of the ROW, as reflected in
Qwest's records, the CLEC is responsible for determining the current owner of the property and
obtaining the proper signature and acknowledgement to the Access Agreement. If Qwest does
not have a copy of the Right-of-Way Agreement in its records, it is the responsibility of the CLEC
to obtain a copy of the Right-of-Way Agreement. If the ROW was created by a publicly recorded
document, the CLEC must record the Access Agreement (with the Right-of-Way Agreement
attached) in the real property records of the county in which the property is located. If the ROW
was created by a grant or agreement that is not publicly recorded , CLEC must provide Qwest with
a copy of the properly executed and acknowledged Access Agreement and , if applicable , properly
executed Consent Regarding Disclosure form or letter of indemnification.
Qwest is required to respond to each Attachment 1.B. submitted by CLEC within 35 days of
receiving the Attachment 1.B. In the event that Qwest believes that circumstances require a
longer duration to undertake the activities reasonably required to deny or approve a request, it
may petition for relief before the Commission or under the escalation and dispute resolution
procedures generally applicable under the interconnection agreement, if any, between Qwest and
CLEC.
Poles/Duct Order Attachment 2 (Access). In the case of Poles and Innerduct upon
completion of the inquiry and verification work described in Section 2.2 above, Qwest will provide
the CLEC a Poles/lnnerduct Order (Attachment 2) containing annual recurring charges, estimated
Make-ready costs. Upon receipt of the executed Attachment 2 Order form from the CLEC and
applicable payment for the Make-Ready Fees identified , Qwest will assign the CLEC's requested
space; Qwest will also commence the Make-ready work within 30 days following payment of the
Make-Ready Fees. Qwest will notify CLEC when Polesllnnerduct are ready for attachment or
placement of Facilities. A copy of the signed Attachment 2 form should be emailed to
wholesale.servicessupportteam~qwest.com while the payment should go to the Joint Use
Manager along with the original signed Attachment 2.
NOTE: Make-ready work performed by Qwest concerns labor only. For Poles it involves
rearrangement to accommodate the new attachment. For Innerduct, it involves placing the
standard three innerducts in the conduit to accommodate fiber cable where spare conduit exists.
Segments without conduit space are considered "blocked". Qwest will consider repair or clearing
damaged facilities, but may not construct new facilities as part of Make-ready work.
Construction work to place conduit or replace poles may be required where facilities are blocked.
The CLEC may contract separately with a Qwest-approved contractor to complete the
construction provided a Qwest inspector inspects the work during and after construction. If other
parties benefit from construction, the costs may be divided among the beneficiaries. Construction
Date/Initials/COMPANY /ST A TE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4 , 2004 Page 3
Exhibit D
costs are not included in Attachment 2. The CLEC is not encouraged to sign the Polesllnnerduct
Order (Attachment 2) until provisions have been made for construction.
2.4 Provision of ROW/Poles/lnnerduct.Qwest agrees to issue to CLEC for any lawful
telecommunications purpose , a nonexclusive, revocable Order authorizing CLEC to install
maintain , rearrange, transfer, and remove at its sole expense its Facilities on Polesllnnerduct to
the extent owned or controlled by Qwest. Qwest provides access to Polesllnnerduct/ROW
accordance with the applicable federal , state, or local law, rule , or regulation , incorporated herein
by this reference , and said body of law, which governs this Agreement in the state in which
Poles/lnnerduct is provided. Any and all rights granted to CLEC shall be subject to and
subordinate to any future federal, state, and/or local requirements. Nothing in this General
Information shall be construed to require or compel Qwest to construct, install , modify, or place
any Polesllnnerduct or other facility for use by the CLEC.
The costs included in the Polesllnnerduct Verification Fee are used to cover the costs incurred by
Qwest in determining if Poles/lnnerduct space is available to meet the CLEC's request; however
the CLEC must agree and will be responsible for payment of the actual costs incurred if such
costs exceed the estimate. If the actual costs are less than the estimate, an appropriate credit
can be provided upon request. If Qwest denies access, Qwest shall do so in writing, specifying
the reasons for denial within 45 days of the initial inquiry.
Likewise, the fees included in the. ROW processing costs quotation are used to cover the costs
incurred by Qwest in searching its databases and preparing the Access Agreement. In the event
that complications arise with respect to preparing the Access Agreement or any other aspect of
conveying access to Qwest's ROW , the CLEC agrees to be responsible for payment of the actual
costs incurred if such costs exceed the standard fees; actual costs shall include, without
limitation , personnel time, including attorney time.
DISPUTE RESOLUTION
1. Other than those claims over which a federal or state regulatory agency has exclusive
jurisdiction, all claims, regardless of legal theory, whenever brought and whether between the
parties or between one of the parties to this Agreement and the employees, agents or affiliated
businesses of the other party, shall be resolved by arbitration. A single arbitrator engaged in the
practice of law and knowledgeable about telecommunications law shall conduct the arbitration in
accordance with the then current rules of the American Arbitration Association ("AAA") unless
otherwise provided herein. The arbitrator shall be selected in accordance with AAA procedures
from a list of qualified people maintained by AAA. The arbitration shall be conducted in the
regional AAA office closest to where the claim arose.
2. All expedited procedures prescribed by the AAA shall apply. The arbitrator s decision
shall be final and binding and judgment may be entered in any court having jurisdiction thereof.
3. Other than the determination of those claims over which a regulatory agency has
exclusive jurisdiction , federal law (including the provisions of the Federal Arbitration Act, 9 U.
Sections 1-16) shall govern and control with respect to any issue relating to the validity of this
Agreement to arbitrate and the arbitrability of the claims.
4. If any party files a judicial or administrative action asserting claims subject to arbitration
and another party successfully stays such action and/or compels arbitration of such claims, the
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest.ldaho October 4 2004 Page 4
Exhibit D
party filing the action shall pay the other party s costs and expenses incurred in seeking such stay
or compelling arbitration, including reasonable attorney s fees.
Date/Initials/COMPANY /ST A TE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004
..."
Page 5
Exhibit D
ATTACHMENT 1. A
Poles/lnnerductl or ROW Inquiry Preparation Fee
General Agreement
BAN Number (one for each route must be assigned before processing):
Date Submitted:Date Replied to GLEC:
CLEC Name
Billing Address:
Phone Number:
State and city of inquiry:
Contact name:
e-mail address:
Polesllnnerduct Permit Database Search Costs Quotation
(One Mile Minimum) Costs Est. Miles Total
1. Pole Inquiry Fee (see attached pricing chart) X
2. Innerduct Inquiry Fee (see attached pricing chart) X
3. ROW Records Inquiry (see attached pricing chart) X
4. Estimated Interval for Completion of Items 1 , 2 or 3: 5. Additional requirements of CLEC: Days
This Inquiry will result in (a) for Poles and Innerduct: a drawing of the duct or innerduct structure
fitting the requested route, if available , and a quote of the charges for field verification, and/or (b)
in the case of ROW , a ROW identification matrix, a quote of the charges for preparation of and
consideration for, the necessary Access Agreements, and copies of ROW documents
Qwest's Possession. (c) For Poles , the name and telephone number of the Field Engineer are
provided so that the CLEC may contact the Qwest Field engineer and discuss attachment plans.
If a field verification of poles is required, Attachment 1.B must be completed and the appropriate
charges paid. Innerduct verification is always needed.
By signing below and providing payment of the Estimated Costs identified above, the CLEC
desires Qwest to proceed with the processing of its database/records search and acknowledges
receipt of this General Information , including the General Terms and Conditions under which
Qwest offers such Poles/lnnerduct. Quotes expire in 30 days.
Qwest Corporation
Signature Signature
Name Typed or Printed Name Typed or Printed
Title Title
Date Date
This signed form (original) must be sent with a check for the Inquiry amount (to "Qwest") to:
Date/Initials/COMPANY /ST A TE/ Agreements Number CDS~xxxxxx-xxxxQwest Idaho October 4, 2004 Page 6
Exhibit D
Manager, Qwest Joint Use, 6912 S Quentin, Suite 101 Englewood, CO 80112 303-784-0387
A copy of this form must be sent with two acceptably-detailed maps showing the requested route to:
Qwest Service Representative at: wholesale.servicessupportteam~qwest.com Put II Agree" on
signature line.
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 7
Exhibit D
ATTACHMENT 1.
General Agreement
BAN Number:
Polesllnnerduct Verification/ROW Access Agreement Preparation Costs Quotation
Date Nonrefundable Received:Date Replied to CLEC:
NOTE: THIS ATTACHMENT WILL BE COMPLETED BY QWEST AND SENT TO THE CLEC FOR
SIGNATURE AFTER THE DATABASE INQUIRY IS COMPLETE.
. Estimated Costs Number Total Charge
1. Pole Field Verification Fee (10 pole minimum)
2. Innerduct Field Verification Fee
3. Preparation of private ROW documents
4. Access Agreement Prep. and Consideration$10/ Access Agreement
5. Estimated Interval to Complete Items 1 or2 or 3 and/or 4:Working Days
Comments:
By signing below and providing payment of the Total Estimated Costs identified above, the CLEC desires
Qwest to proceed with the processing of its field survey/preparation of Access Agreements, and
acknowledges receipt of this General Information, including the General Terms and Conditions under
which Qwest offers such ROW /Polesllnnerduct. The CLEC acknowledges the above costs are estimates
only and CLEC may be financially responsible for final actual costs which exceed this estimate, or
receive credit if requested. Quotes expire in 30 days.
Qwest Corporation
Signature Signature
Name Typed or Printed Name Typed or Printed
Title Title
Date Date
The original signed form must be sent with a check for the verification amount to:
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 8
Exhibit D
Manager, Qwest CLEC Joint Use, 6912 S Quentin, Suite 101 Englewood, CO 80112
An email copy of this form must be sent to: wholesale.servicessupportteam~qwest.com, with "Agree" on
the signature line.
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 9
Exhibit D
ATTACHMENT 2
Polesllnnerduct Order General Agreement
BAN Number:
NOTE: THIS FORM WILL BE COMPLETED BY QWEST AND SENT TO CLEC FOR SIGNATURE**
Make-ready Work required: Yes ) No (Date Received
If Yes is checked , estimated Make-ready costs:
The following Attachments are hereby incorporated by reference into this Order:1. Term - Effective Date -2. Summary of Field Results (including Make-Ready work if required).3. When placing fiber, cLEc must:
a. provide Qwest representative, a final design of splice, racking and slack locations in Qwest utility holes.
b. tag all equipment located inIon Qwest's facilities from beginning of the route to the end, and at the entrance and
exit of each utility hole with the following information: (1) cLEc's Name and Contact Number, (2) Contract Number
and Date of Contract, (3) Number of Fibers in the Innerduct and Color of Occupied Innerduct.
thO Pnnuaecurnngarges or erml:
Total Annual
Annual charqe Quantity charae
1. Pole Attachment, Per Pole
, Innerduct Occupancy, Per Foot
Request conf. call for Construction?YES
Please check YES if construction by Qwest is needed for access to Qwest manholes (e.g. core drills, stubouts, not
innerduct placement) For Poles, quantity is based on the number of vertical feet used (One cable attachment = one
foot). If you do not place an order at this time, these Polesllnnerduct will be assigned on a first come-first served
basis.
Additional Comments: THE ESTIMATED COSTS ARE FOR THE INSTALLATION OF INNERDUcT OR
REARRANGEMENT PER THE WORK SHEETS. THE ANNUAL RECURRING CHARGE FOR YEAR 2001 HAS
BEEN PRORATED TO /DAY DAYS). PLEASE PROVIDE PAYMENT FOR THE MAKE-
READY COSTS AND THE PRORATED 2001 RECURRING FEE ALONG WITH THIS SIGNED ORDER
By signing below and providing payment of the Make-ready costs and the first year s prorated Annual Recurring
Charge (or, if cLEc requests Semiannual billing, then the first half-year s prorated Semiannual Recurring Charge),
the cLEc desires Qwest to proceed with the Make-ready Work identified herein and acknowledges receipt of the
General Terms and Conditions under which Qwest offers such Poles/lnnerduct. By signing this document you are
agreeing to the access described herein. Quotes expire in 90 days.
Return this signed form and check to: Manager, Joint Use Supervisor, Suite 101, 6912 S. Quentin,Engl ewood, CO 80112. Send a copy to: wholesale.servicessupportteam~qwest.com.
Qwest Corporation
Signature Signature
Name Typed or Printed Name Typed or Printed
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 10
Exhibit D
:::e :::e
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 11
Exhibit D
ATTACHMENT 3
General Agreement:
QWEST RIGHT OF WAY ACCESS, POLE ATTACHMENT ANDIOR INNERDUCT OCCUPANCY
GENERAL TERMS AND CONDITIONS
This is an Agreement between ("CLEC") and Qwest Corporation ("Qwest"), for
one or more Orders for the CLEC to obtain access to Qwest's Right-of-Way ("ROW") and/or to
install/attach and maintain their communications facilities ("Facilities ) to Qwest's Poles and/or placement
of Facilities on or within Qwest's Innerduct (collectively "Polesllnnerduct") described in the General
Information and CLEC Map, which are incorporated herein by this reference (singularly "Order" or
collectively, "Orders ). If there is no other effective agreement (i.an Interconnection Agreement)
between CLEC and Qwest concerning access to Poles Ducts and ROW then this
Agreement/Attachment 3 must be executed by both parties in order to start the Inquiry Review and in
order for CLEC to obtain access to Poles, Ducts and/or ROW.
SCOPE.
Subject to the provisions of this Agreement, Qwest agrees to issue to CLEC for any lawful
telecommunications purpose, (a) one or more nonexclusive, revocable Orders authorizing
CLEC to attach , maintain, rearrange, transfer, and remove at its sole expense its Facilities
on Polesllnnerduct owned or controlled by Qwest, and/or (b) access to Qwest's ROW to
the extent that (i) such ROW exists, and (ii) Qwest has the right to grant access to the
CLEC. Any and all rights granted to CLEC shall be subject to and subordinate to any
future local , state and/or federal requirements, and in the case of ROW , to the original
document granting the ROW to Qwest or its predecessors.
Except as expressly provided herein , nothing in this Agreement shall be construed to
require or compel Qwest to construct, install , modify, or place any Polesllnnerduct or other
facility for use by CLEC or to obtain any ROW for CLEC's use.
Qwest agrees to provide access to ROW/Polesllnnerduct in accordance with the
applicable local, state or federal law, rule, or regulation , incorporated herein by this
reference, which governs this Agreement in the state in which Polesllnnerduct is provided.
TERM. Any Order issued under this Agreement for Pole attachments or Innerduct occupancy
shall continue in effect for the term specified in the Order. Any access to ROW shall be non-
exclusive and perpetual, subject to the terms and conditions of the Access Agreement (as
hereinafter defined) and the original instrument granting the ROW to Qwest. This Agreement shall
continue during such time CLEC is providing Polesllnnerduct attachments under any Order to this
Agreement.
TERMINATION WITHOUT CAUSE.
To the extent permitted by law, either party may terminate this Agreement (which will have
the effect of terminating all Orders hereunder), or any individual Order(s) hereunder
without cause, by providing notice of such termination in writing and by certified Mail to the
other party. The written notice for termination without cause shall be dated as of the day it
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 . Page 12
3.4
Exhibit D
is mailed and shall be effective no sooner than one hundred twenty (120) calendar days
from the date of such notice.
Termination of this Agreement or any Order hereunder does not release either party from
any liability under this Agreement that may have accrued or that arises out of any claim
that may have been accruing at the time of termination , including indemnity, warrantiesand confidential information.
If Qwest terminates this Agreement for Cause, or if CLEC terminates this Agreement
without Cause , CLEC shall pay termination charges equal to the amount of fees and
charges remaining on the terminated Order(s) and shall remove its Facilities from the
. Poles/lnnerduct within sixty (60) days, or cause Qwest to remove its Facilities from the
Polesllnnerduct at CLEC's expense; provided , however, that CLEC shall be liable for and
pay all fees and charges provided for in this Agreement to Qwest until CLEC's Facilities
are physically removed. Notwithstanding anYthing herein to the contrary, upon the
termination of this Agreement for any reason whatsoever, all Orders hereunder shall
simultaneously terminate.
If this Agreement or any Order is terminated for reasons other than Cause, then CLEC
shall remove its Facilities from Polesllnnerduct within one hundred and eighty (180) days
from the date of termination; provided, however, that CLEC shall be liable for and pay all
fees and charges provided for in this Agreement . to Qwest until CLEC'Facilities are
physically removed.
Qwest may abandon or sell any Polesllnnerduct at any time by giving written notice to the
CLEC. Upon abandonment of Polesllnnerduct, and with the concurrence of the other
CLEC(s), if necessary, CLEC shall , within sixty (60) days of such notice, either apply for
usage with the new owner or purchase the Poles/lnnerduct from Qwest, or remove its
Facilities therefrom. Failure to remove its Facilities within sixty (60) days shall be deemed
an election to purchase the Polesllnnerduct at the current market value.
CHARGES AND BILLING.
CLEC agrees to pay Qwest Polesllnnerduct usage fees ("Fees ) as specified in the Order.
Fees will be computed in compliance with applicable local, state and Federal law
regulations and guidelines. Such Fees will be assessed, in advance on an annual basis.
Annual Fees will be assessed as of January 1 st of each year. Fees are not refundable
except as expressly provided herein. CLEC shall pay all applicable Fees and charges
specified herein within thirty (30) days from receipt of invoice. Any outstanding invoice will
be subject to applicable finance charges.
Qwest has the right to revise Fees, at its sole discretion, upon written notice to CLEC
within at least sixty (60) days prior to the end of any annual billing period.
INSURANCE. The CLEC shall obtain and maintain at its own cost and expense the following
insurance during the life of the Contract:
Workers Compensation and/or Longshoremen s and Harbor Workers Compensation
insurance with (1) statutory limits of coverage for all employees as required by statute;
and (2J although not required by statute, coverage for any employee on the job site; and
Date/lnitials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 13
5.4
Exhibit D
(3) Stop Gap liability or employer liability insurance with a limit of One Hundred
Thousand Dollars ($100 000.00) for each accident.
General liability insurance providing coverage for underground hazard coverage
(commonly referred to as "U" coverage), products/completed operations, premises
operations independent contractor s protection (required if contractor subcontracts the
work), broad form property damage and contractual liability with respect to liability
assumed by the CLEC hereunder. This insurance shall also include: (1) explosion
hazard coverage (commonly referred to as "X" coverage) if the work involves blasting and
(2) collapse hazard coverage (commonly referred to as "c" coverage) if the work may
cause structural damage due to excavation, burrowing, tunneling, caisson work, or under-
pinning. The limits of liability for this coverage shall be not less than One Million Dollars
($1 000 000.00) per occurrence combined single limit for bodily injury or property damage.
These limits of liability can be obtained through any combination of primary and excess or
umbrella liability insurance.
Comprehensive automobile liability insurance covering the use and maintenance of
owned, non-owned and hired vehicles. The limits of liability for this coverage shall be not
less than One Million Dollars ($1 000 000.00) per occurrence combined single limit for
bodily injury or property damage. These limits of liability can be obtained through any
combination of primary and excess or umbrella liability insurance.
Qwest may require the CLEC from time-to-time during the life of the Contract to obtain
additional insurance with coverage or limits in addition to those described above.
However, the additional premium costs of any such additional insurance required by
Qwest shall be borne by Qwest, and the CLEC shall arrange to have such costs billed
separately and directly to Qwest by the insuring carrier( s). Qwest shall be authorized by
the CLEC to confer directly with the agent(s) of the insuring carrier(s) concerning the
extent and limits of the CLEC's insurance coverage in order to assure the sufficiency
thereof for purposes of the work performable under the Contract and to assure that such
coverage as a hole with respect to the work performable are coordinated from the
standpoint of adequate coverage at the least total premium costs.
The insuring carrier(s) and the form of the insurance policies shall be subject to approval
by Qwest. The CLEC shall forward to Qwest, certificates of such insurance issued by the
insuring carrier(s). The insuring carrier(s) may use the ACORD form , which is the
Insurance Industries certificate of insurance form. The insurance certificates shall providethat: (1) Qwest is named as an additional insured; (2) thirty (30) calendar days prior
written notice of cancellation of, or material change or exclusions in , the policy to which
the certificates relate shall be given to Qwest; (3) certification that underground hazard
overage (commonly referred to as "U" coverage) is part of the coverage; and (4) the words
pertains to all operations and projects performed on behalf of the certificate holder" are
included in the description portion of the certificate. The CLEC shall not commence work
hereunder until the obligations of the CLEC with respect to insurance have been fulfilled.
The fulfillment of such obligations shall not relieve the CLEC of any liability hereunder or
in any way modify the CLEC's obligations to indemnify Qwest.
Whenever any work is performed requiring the excavation of soil or use of heavy
machinery within fifty (50) feet of railroad tracks or upon railroad right-of-way, a Railroad
Protective Liability Insurance policy will be required. Such policy shall be issued in the
name of the Railroad with standard limits of Two Million Dollars ($2 000,000.00) per
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 14
Exhibit D
occurrence combined single limit for bodily injury, property damage or physical damage to
property with an aggregate limit of Six Million Dollars ($6 000 000.00). In addition, said
policy shall name Qwest and the CLEC/SubCLEC on the declarations page with respect
to its interest in these specific job. Said insurance policy shall be in form and substance
satisfactory both to the Qwest and the Railroad and shall be delivered to and approved by
both parties prior to the entry upon or use of the Railroad Property.
Whenever any work must be performed in the Colorado State Highway right-of-way,
policies and certificates of insurance shall also name the State of Colorado as an
additional insured. Like coverage shall be furnished by or on behalf of any subcontractor.
Copies of said certificates must be available on site during the performance of the work.
CONSTRUCTION AND MAINTENANCE OF FACILITIES.
Qwest retains the right, in its sole judgment, to determine the availability of space on
Polesllnnerduct. When modifications to a Qwest spare conduit include the placement of
innerduct, Qwest retains the right to install the number of innerducts required to occupythe conduit structure to its full capacity. In the event Qwest determines that
rearrangement of the existing facilities on Poles/lnnerduct is required before CLEC'
Facilities can be accommodated , the cost of such modification will be included in the
CLEC's nonrecurring charges for the associated Poles/lnnerduct Order.
CLEC shall be solely responsible for obtaining the necessary underlying legal authority to
occupy Polesllnnerduct on governmental, federal , Native American, and private rights of
way, as applicable, and Qwest does not warrant or represent that providing CLEC with
access to the Polesllnnerduct in any way constitutes such legal right. The CLEC shall
obtain any necessary permits, licenses, bonds, or other legal authority and permission , at
the CLEC's sole expense, in order to perform its obligations under this Agreement. The
CLEC shall contact all owners of public and private rights-of-way, as necessary, to obtain
written permission required to perform the work prior to entering the property or starting
any work thereon and shall provide Qwest with written documentation of such legal
authority prior to placement of its facilities on or in the Polesllnnerduct. The CLEC shall
comply with all conditions of rights-of-way and Orders.
CLEC's Facilities shall be placed and maintained in accordance with the requirements and
specifications of the current applicable standards of Bellcore Manual of Construction
Standards, the National Electrical Code, the National Electrical Safety Code, and the rules
and regulations of the Occupational Safety and Health Act, all of which are incorporated
herein by reference, and any governing authority having jurisdiction of the subject matter
of this Agreement. Where a difference in specifications exi~ts, the more stringent shall
apply. Failure to maintain Facilities in accordance with the above requirements shall be
Cause as referenced in Section 3 to this Agreement for termination of the Order in
question. Termination of more than two (2) Orders in any twelve-month period pursuant
to the foregoing sentence shall be Cause as referenced in Section 3 for termination of this
Agreement. Qwest's procedures governing its standard maintenance practices shall be
made available upon request for public inspection at the appropriate Qwest premises.
CLEC's procedures governing its standards maintenance practices for Facilities shall be
made available to Qwest upon written request. CLEC shall within thirty(30) days comply
and provide the requested information to Qwest to bring their facilities into compliance
with these terms and conditions.
Date/Initials/COMPANY /ST A TE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 15
6.4.
Exhibit D
In the event of any service outage affecting both Qwest and CLEC, repairs shall be
effectuated on a priority basis as established by local , state or federal requirements, or
where such requirement do not exists, repairs shall be made in the following order:
electrical, telephone (local), telephone (long distance), and cable television , or as mutually
agreed to by the users of the effected Poles/lnnerduct.
In the event of an infrastructure outage, the CLEC should contact their Network
Maintenance Center at 1-800-223-7881 or the CLEC may contact their Account Manager
at the Interconnect Service Center.
MODIFICATION TO EXISTING POLES/INNERDUCT.
If CLEC requests Qwest to replace or modify existing Polesllnnerduct to increase its
strength or capacity for the benefit of the CLEC and Qwest determines in its sole
discretion to provide the requested capacity, the CLEC shall pay Qwest the total
replacement cost, Qwest's cost to transfer its attachments , as necessary, and the cost for
removal (including destruction fees) of any replaced Polesllnnerduct, if such is necessary.
Ownership of new Poles/lnnerduct shall vest in Qwest. To the extent that a modification is
incurred for the benefit of multiple parties, CLEC shall pay a proportionate share of the
total cost as outlined above, based on the ratio of the amount of new space occupied by
the Facilities to the total amount of space occupied by all parties joining the modification.
Modifications that occur in order to bring Polesllnnerduct into compliance with applicable
safety or other requirements shall be deemed to be for the benefit of the multiple parties
and CLEC shall be responsible for its pro rata share of the modification cost. Except as
set forth herein, CLEC shall have no obligation to pay any of the cost of replacement or
modification of Poles/lnnerduct requested solely by third parties.
Written notification of modification initiated by or on behalf of Qwest shall be provided to
CLEC at least sixty (60) days prior to beginning modifications if such modifications are not
the result of an emergency situation. Such notification shall include a brief description of
the nature and scope of the modification. If CLEC does not rearrange its facilitates within
sixty (60) days after receipt of written notice from Qwest requesting such rearrangement
Qwest may perform or cause to have performed such rearrangement and CLEC shall pay
for cost thereof. No such notice shall be required in emergency situations or for routine
maintenance of Polesllnnerduct.
INSPECTION OF FACILITIES. Qwest reserves the right to make final construction , subsequent
and periodic inspections of CLEC's facilities occupying the Poles/lnnerduct system. CLEC shall
reimburse Qwest for the cost of such inspections except as specified in Section 8 hereof.
CLEC shall provide written notice to Qwest, at least fifteen (15) days in advance, of the
locations where CLEC's plant is to be constructed.
The CLEC shall forward Exhibit A, entitled "Pulling In Report" attached hereto and
incorporated herein by this reference , to Qwest within five (5) business days of the date(s)
of the occupancy.
Qwest shall provide written notification to CLEC within seven (7) days of the date of
completion of a final construction inspection.
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 16
8.4.
Exhibit D
Where final construction inspection by Qwest has been completed CLEC shall be
obligated to correct non-complying conditions within thirty (30) days of receiving written
notice from Qwest. In the event the corrections are not completed within the thirty (30)-
day period, occupancy authorization for the Polesllnnerduct system where non-complying
conditions remain uncorrected shall terminate immediately, regardless of whether CLEC
has energized the facilities occupying said Poles/lnnerduct system, unless Qwest has
provided CLEC a written extension to comply. CLEC shall remove its facilities from said
Polesllnnerduct in accordance with the provisions set forth in Section 10 of this
Agreement. No further occupancy authorization shall be issued to CLEC until such non-
complying conditions are corrected or until CLEC'facilities are removed from the
Pole/Conduit system where such non-complying conditions exist. If agreed to in writing,
by both parties, Qwest shall perform such corrections and CLEC shall pay Qwest the cost
of performing such work. Subsequent inspections to determine if appropriate corrective
action has been taken my be made by Qwest.
Once the CLECs facilities occupy Qwest Polesllnnerduct system and Exhibit A has been
received by Qwest, Qwest may perform periodic inspections. The cost of such
inspections shall be borne by Qwest, unless the inspection reveals any violations
hazards, or conditions indicating that CLEC has failed to comply with the provisions set
forth in this Agreement, in which case the CLEC shall reimburse Qwest for full costs of
inspection , and re-inspection to determine compliance as required. A CLEC
representative may accompany Qwest on field inspections scheduled specifically for the
purpose of inspecting CLEC'Facilities; however, CLEC's costs associated with its
participation in such inspections shall be borne by CLEC. Qwest shall have no obligation
to notify CLEC, and CLEC shall have no right to attend, any routine field inspections.
The costs of inspections made during construction and/or the final construction survey
and subsequent inspection shall be billed to the CLEC within thirty (30) days upon
completion of the inspection.
Final construction subsequent and periodic inspections or the failure to make such
inspections, shall not impose any liability of any kind upon Qwest, and shall not relieve
CLEC of any responsibilities, obligations , or liability arising under this Agreement.
UNAUTHORIZED FACILITIES
If any facilities are found attached to Polesllnnerduct for which no Order is in effect,
Qwest, without prejudice to any other rights or remedies under this Agreement, shall
assess an unauthorized attachment administrative fee of Two Hundred Dollars ($200.00)
per attachment per Pole or innerduct run between manholes , and require the CLEC to
submit in writing, within ten (10) day after receipt of written notification from Qwest of the
unauthorized occupancy, a Polesllnnerduct application. Qwest shall waive the
unauthorized attachment fee if the following conditions are both met: (1) CLEC cures
such unauthorized attachment (by removing it or submitting a valid Order for attachment
in the form of Attachment 2 of Exhibit D, within thirty (30) days of written notification from
Qwest of the unauthorized attachment; and (2) the unauthorized attachment did not
require Qwest to take curative measures itself (e., pulling additional innerduct) prior to
the cure by CLEC. . Qwest shall also waive the unauthorized attachment fee if the
unauthorized attachment arose due to error by Qwest rather than by CLEC. If such
application is not received by Qwest within the specified time period, the CLEC will be
required to remove its unauthorized facility within ten (10) days of the final date for
Date/Initials/COMPANY /ST A TE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 17
10.
11.
Exhibit D
submitting the required application Qwest may remove the CLEC'facilities without
. liability, and the cost of such removal shall be borne by the CLEC.
For the purpose of determining the applicable charge, the unauthorized Polesllnnerduct
occupancy shall be treated as having existed for a period of five (5) years prior to its
discovery, and the charges, as specified in Section 4, shall be due and payable forthwith
whether or not CLEC is ordered to continue the occupancy of the Polesllnnerduct system.
No act or failure to act by Qwest with regard to an unauthorized occupancy shall be
deemed to constitute the authorization of the occupancy; any authorization that may be
granted subsequently shall not operate retroactively or constitute a waiver by Qwest
any of its rights of privileges under this Agreement or otherwise.
REMOVAL OF FACILITIES. Should Qwest, under the provisions of this Agreement, remove
CLEC'Facilities from the Polesllnnerduct covered by any Order (or otherwise), Qwest will
deliver the Facilities removed upon payment by CLEC of the cost of removal, storage and
delivery, and all other amounts due Qwes!.. If payment is not received by Qwest within thirty (30)
days, CLEC will be deemed to have abandoned such facilities, and Qwest may dispose of said
facilities as it determines to be appropriate. If Qwest must dispose of said facilities, such action
will not relieve CLEC of any other financial responsibility associated with such removal as
provided herein. If CLEC removes its Facilities from Poles/lnnerduct for reasons other than repair
or maintenance purposes, the CLEC shall have no right to replace such facilities on the
Polesllnnerduct until such time as all outstanding charges due to Qwest for previous occupancy
have been paid in full. CLEC shall submit Exhibit B, entitled "Notification of Surrender of
Modification of Conduit Occupancy License by CLEC " or Exhibit C , entitled "Notification of
Surrender of Modification of Pole Attachment by CLEC " each as attached hereto, advising Qwest
as to the date on which the removal of Facilities from each Poles/lnnerduct has been completed.
INDEMNIFICATION AND LIMITATION OF LIABILITIES. CLEC shall indemnify and hold
harmless Qwest, its owners, parents, subsidiaries , affiliates, agents, directors, and employees
against any and all liabilities, claims, judgments, losses , orders, awards, damages, costs, fines,
penalties, costs of defense, and attorneys' fees ("Liabilities ) to the extent they arise from or in
connection with: (1) infringement, or alleged infringement, of any patent rights or claims caused
or alleged to have been caused , by the use of any apparatus, appliances , equipment, or parts
thereof, furnished , installed or utilized by the CLEC; (2) actual or alleged fault or negligence of the
CLEC, its officers, employees, agents, subcontractors and/or representatives; (3) furnishing,
performance, or use of any material supplied by GLEC under this Contract or any product liability
claims relating to any material supplied by CLEC under this Contract; (4) failure of CLEC , its
officers, employees, agents, subcontractors and/or representatives to comply with any term of
this Contract or any applicable local, state, or federal law or regulation, including but not limited to
the OSH Act and environmental protection laws; (5) assertions under workers' compensation or
similar employee benefit acts by CLEC or its employees, agents, subcontractors, or
subcontractors' employees or agents; (6) the acts or omissions (other than the gross negligence
or willful misconduct) of Qwest, its officers, employees, agents, and representatives, except as
otherwise provided- in paragraphs 11.3 and 11.4 below; and/or
, .
(7) any economic damages that
may rise, including damages for delay or other related economic damages that the Qwest or third
parties may suffer or allegedly suffer as a result of the performance or failure to perform work by
the CLEC. If both Qwest and the CLEC are sued as a result of or in connection with the
performance of work arising out of this Contract, the parties hereby agree that the defense of the
case (including the costs of the defense and attorneys' fees) shall be the responsibility of the
CLEC, if Qwest desires. Qwest shall give the CLEC reasonable written notice of all such claims
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 18
Exhibit D
and any suits alleging such claims and shall furnish upon the CLEC's request and at the CLEC'
expense all information and assistance available to the Qwest for such defense. The parties shall
employ Article 13, Dispute Resolution, to resolve any dispute concerning the proportional fault
and liability after the underlying case is terminated.
11.
11.
11.
11.4
12.
IF WORK IS PERFORMED IN THE STATE OF WASHINGTON UNDER THIS
GENERAL CONTRACT, THE CLEC ACKNOWLEDGES AND AGREES THAT THIS
INDEMNIFICATION OBLIGATION SHALL INCLUDE, BUT IS NOT LIMITED TO , ALL
CLAIMS AGAINST QWEST BY AN EMPLOYEE OR FORMER EMPLOYEE OF THE
CLEC , AND THE CLEC EXPRESSLY WAIVES ALL IMMUNITY AND LIMITATION ON
LIABILITY UNDER ANY INDUSTRIAL INSURANCE ACT, OTHER WORKERS'
COMPENSATION ACT, DISABILITY BENEFIT ACT, OR OTHER EMPLOYEE
BENEFIT ACT OF ANY JURISDICTION WHICH WOULD OTHERWISE BE
APPLICABLE IN THE CASE OF SUCH A CLAIM.
Except as expressly provided herein, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY INCIDENTAL, INDIRECT SPECIAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY LOSS OF USE
LOSS OF BUSINESS OR LOSS OF PROFIT; provided, however, there shall be no
limitation on a party s liability to the other for any fines or penalties imposed on the
other party by any court of competent jurisdiction or federal, state or local
administrative agency resulting from the failure of the party to comply with any term or
condition of this Contract or any valid and applicable law, rule or regulation.
FOR ANY WORK PERFORMED IN ARIZONA, IDAHO, SOUTH DAKOTA, UTAH OR
WASHINGTON SECTION 11 (6) SHALL NOT EXTEND TO THE SOLE
NEGLIGENCE OF QWEST BUT SHALL EXTEND TO THE NEGLIGENCE OF
QWEST WHEN CONCURRENT WITH THAT OF THE CLEC.
FOR ANY WORK PERFORMED IN THE STATES OF MINNESOTA, NEBRASKA
NEW MEXICO, OR OREGON, ARTICLE 11 SHALL NOT APPLY EXCEPT THAT
SECTION 11 SHALL APPLY FOR WORK PERFORMED IN MINNESOTA FOR
MAINTENANCE OR REPAIR OF MACHINERY, EQUIPMENT , OR OTHER SUCH
DEVICES, USED AS PART OF A MANUFACTURING, COVERING OR OTHER
PRODUCTION PROCESS INDULGING ELECTRIC, GAS, STEAM, AND
TELEPHONE UTILITY EQUIPMENT USED FOR PRODUCTION, TRANSMISSIONOR DISTRIBUTION PURPOSES.
FORCE MAJEURE
12.
12.
The CLEC shall be excused from its performance as to any Order if prevented by acts or
events beyond the CLEC's reasonable control including extreme weather conditions
strikes, fires, embargoes, actions of civil or military law enforcement authorities, acts of
God, or acts of legislative , judicial , executive, or administrative authorities.
If such contingency occurs, Qwest may elect:
12.1 To terminate this Agreement as to the Order in question; or
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4 , 2004 Page 19
Exhibit D
12.2 To terminate already-assigned specific work assignment(s) the CLEC is unable to
perform , or any part thereof, and to assign new specific work assignments to other
parties for the duration of the cause of the delay; or
12.3 To suspend already-assigned specific work assignment(s) the CLEC is unable to
perform, or any part thereof, for the duration of the cause of the delay; and to
assign new specific work assignments to other parties for the duration of the cause
of the delay.
12.Qwest shall be deemed to have elected Section 12.3 above unless written notice of
termination is given by Qwest after the contingency occurs. With respect to Qwest's
election of Section 12.3 above:
12.1 Qwest shall give the CLEC written notice of the work to be performed by
such other party prior to its performance and shall deduct from the CLEC'
price the cost of the work or services actually performed by such other
parties.
12.2 The CLEC shall resume performance, and complete any work not
performed or to be performed by another party, once the delaying cause
ceases.
12.3 If appropriate, at the Qwest's discretion, the time f~r completion of specific
work assignment(s) shall be extended up to the length of time the
contingency endured.
12.4 Qwest shall be excused from its performance if prevented by acts or events beyond the
Qwest's reasonable control including extreme weather conditions, strikes, fires
embargoes, actions of civil or military law enforcement authorities, acts of God, or acts of
legislative, judicial , executive, or administrative authorities.
13.DISPUTE RESOLUTION.
13.1. Other than those claims over which a regulatory agency has exclusive jurisdiction, all
claims, regardless of legal theory, whenever brought and whether between the parties or
between one of the parties to this Agreement and the employees, agents or affiliated
businesses of the other party, shall be resolved by arbitration. A single arbitrator engaged
in the practice of law and knowledgeable about telecommunications law shall conduct the
arbitration in accordance with the then current rules of the American Arbitration
Association ("AAA") unless otherwise provided herein. The arbitrator shall be selected
accordance with AAA procedures from a list of qualified people maintained by AAA. The
arbitration shall be conducted in the regional AAA office closest to where the claim arose:
13.2. All expedited procedures prescribed by the AAA shall apply. The arbitrator s decision
shall be final and binding and judgment may be entered in any court having jurisdiction
thereof.
13.3. Other than the determination of those claims over which a regulatory agency has
exclusive jurisdiction , federal law (including the provisions of the Federal Arbitration Act, 9
C. Sections 1-16) shall govern and control with respect to any issue relating to the
validity of this Agreement to arbitrate and the arbitrability of the claims.
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 20
14.
15.
Exhibit D
13.4. If any party files a judicial or administrative action asserting claims subject to arbitration
and another party successfully stays such action and/or compels arbitration of such
claims, the party filing the action shall pay the other party s costs and expenses incurred
in seeking such stay or compelling arbitration , including reasonable attorney s fees.
LAWFULNESS. This Agreement and the parties' actions under this Agreement shall comply with
all applicable federal, state, and local laws , rules, regulations, court orders, and governmental
agency orders. Any change in rates, charges or regulations mandated by the legally constituted
authorities will act as a modification of any contract to that extent without further notice. This
Agreement shall be governed by the laws of the state where Polesllnnerduct is provided. Nothing
contained herein shall substitute for or be deemed a waiver of the parties' respective rights and
obligations under applicable federal, state and local laws, regulations and guidelines , including
(without limitation) Section 224 of the Communications Act of 1934, as amended (47 U.C. 224).
The CLEC represents that it is a certified Competitive Local Exchange Carrier or otherwise has
the legal right, pursuant to 47 U.C. 224 to attach to Qwest's pole pursuant to the terms thereof.
The CLEC acknowledges that Qwest will rely on the foregoing representation, and that if such
representation is not accurate, this Agreement shall be deemed void ab initio except for Article 9
hereof, for which CLEC shall remain fully liable.
SEVERABILITY. In the event that a court, governmental agency, or regulatory agency with
proper jurisdiction determines that this Agreement or a provision of this Agreement is unlawful
this Agreement, or that provision of the Agreement to the extent it is unlawful , shall terminate. If a
provision of this Agreement is terminated but the parties can legally, commercially and practicably
continue without the terminated provision , the remainder of this Agreement shall continue in
effect.
16.GENERAL PROVISIONS.
16.Failure or delay by either party to exercise any right, power, or privilege hereunder, shall
not operate as a waiver hereto.
16.This Agreement shall not be assignable by CLEC without the express written consent of
Qwest, which shall not be unreasonably withheld. Assignment of this Agreement by
CLEC to CLEC's subsidiary or affiliate shall be presumed to be reasonable; provided
however, that CLEC must obtain Qwest's consent in any event.
16.This Agreement benefits CLEC and Qwest. There are no third party beneficiaries.
16.4 This Agreement constitutes the entire understanding between CLEC and Qwest with
respect to Service provided herein and supersedes any prior agreements
understandings.
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 21
Exhibit D
The parties hereby execute and authorize this Agreement as of the latest date shown below:
CLEC Qwest Corporation
Signature Signature
Name Typed or Printed Name Typed or Printed
PRODUCT MANAGER
TitleTitle
Date Date
Address for Notices Address for Notices
Qwest Corporation
1801 California, Rm. 2330
Denver, CO 80202
Contact:
Phone:
FAX:
Contact: Manager
Phone: - 303-896-0789
FAX: [phone]
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxx
Qwest Idaho October 4, 2004 Page 22
Exhibit D
EXHIBIT A
PULLING IN REPORT
This report is to be completed by the CLEC when fiber cable is placed into innerduct.
Send to:
Manaqer. Qwest Corp
700 W Mineral, Rm IAF12
Littleton. CO 80120 (303-707-7598)
This is to advise you that pursuant to General Agreement No. granted to us
under the terms of the Innerduct Agreement dated ,- we have completed installation
of the following cable into the following ducts.
Municipality
Location
From
Manhole at Manhole at
Cable and
Equipment Installed
Name of CLEC
By:
Title:
Receipt of the above report is hereby acknowledged
Qwest Corporation
By:
Title:
Reports shall be submitted in duplicate.
A complete description of all facilities shall be given, including a print showing the locations,
quantities , sizes and types of all cables and equipment.
Sketch to be furnished showing duct used. Must be same duct assigned to Licensee by Licensor
as shown on Exhibit -' unless a change has been previously authorized in writing by Licensor.
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 23
Exhibit D
EXHIBIT B
CLEC:
NOTIFICATION OF SURRENDER OR MODIFICATION
OF CONDUIT OCCUPANCY ORDER BY CLEC
Return to:
Manaqer, Qwest Corp
700 W Mineral Rm IAF12
Littleton , CO 80120
In accordance with the terms and conditions of this Agreement between us, dated
notice is hereby given that the licenses covering occupancy of the following conduit are surrendered
(and/or modified as indicated in Licensee s prior notification to Licensor, dated
) effective
CONDUIT LOCATION LlC. NO. &SURRENDER OR DATE
DATE MODIFICATION FAC. RMVD. OR
MODIFIED
Name of Licensor Name of Co- Provider
Date Notification Received
Title
Date Modification Accepted
Discontinued:Total duct footage
Date/Initials/COMPANY /STA TE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 24
Exhibit D
EXHIBIT C
NOTIFICATION OF SURRENDER OR MODIFICATION
OF POLE ATTACHMENT ORDER BY CLEC
CLEC:
Return to:
Manaqer, Qwest Corp
700 W Mineral Rm IAF12
Littleton , CO 80120
In accordance with the terms and conditions of the Agreement between Qwest and CLEC, dated
, notice is hereby given that the licenses covering attachments to the following poles and/or
anchors, and/or utilization of anchor/guy strand is surrendered (or modified as indicated in CLEC's prior
notification to Qwest, dated , 20 ) effective
POLE NO.ASSOC. POLE LlC. NO. &SURRENDER OR DATE FAC.
NO.DATE MODIFICATION RMVD OR
MODIFIED
A/GS -
A/GS -
A/GS -
A/GS -
A/GS -
A/GS -
A/GS -
A/GS -
A/GS -
Date Notification Received
Date Modification Received
By:Name of CLEC
Discontinued:
Poles
Anchors
By:
Anchor/Guy Strands Its:
Date/Initials/COMP ANY /ST A TE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 25
Exhibit D
ATTACHMENT 4
FORM OF ACCESS AGREEMENT
After recording, please return to:
Manaqer
700 W Mineral, Rm IAF12
Littleton, CO 80120
ACCESS AGREEMENT
THIS ACCESS AGREEMENT (this "Aqreement ) is made as of the day of ,, by
and between QWEST CORPORATION a Colorado corporation, successor in interest to U S WEST
COMMUNICATIONS, INC.Colorado corporation Grantor
),
whose address and
, whose address is
Grantee
RECITALS
This Agreement relates to certain real property (the "Propertv ) located in the County of
(the "County ), State of (the "State
B. A copy of an agreement purporting to grant to Grantor certain rights to use the Property,
as described therein (the "Easement Riqhts ), is attached as Exhibit A (the "Riqht of Way Aqreement
C. Pursuant to 42 U.C. 99 224 and 251 (b)(5), Grantor, as a Local Exchange Carrier, is
required to provide access to rights-of-way to a requesting telecommunications carrier, as defined in 42
C. 9 224. Grantee is a telecommunications carrier that has requested access to Grantor s Easement
Rights. To comply with the aforementioned legal requirement, Grantor has agreed to share with Grantee
its Easement Rights , if any, relating to the Property, to the extent Grantor may legally convey such an
interest.
D. Subject to the terms and conditions set forth in this Agreement, Grantor has agreed to
convey to Grantee, without any representation or warranty, the right to use the Easement Rights, and
Grantee has agreed to accept such conveyance.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged , the parties hereby agree as follows:
1. Grant of Riqht of Access. Grantor hereby conveys to Grantee and its Authorized Users (as
defined below) a non-exclusive, perpetual right to access and use the Easement Rights, which right shall
be expressly (a) subject to, subordinate to, and limited by the Right of Way Agreement, and (b) subject to
the terms and conditions hereof. As used in this Agreement Authorized Users" of Owner, Grantor and
Grantee shall mean Owner, Grantor or Grantee, as applicable, their respective Affiliates and agents,
licensees, employees, and invitees, including, without limitation , contractors, subcontractors , consultants
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 26
Exhibit D
suppliers, public emergency vehicles , shipping or delivery vehicles, or construction vehicles. Affiliates
means, with respect to any Person , any Person that controls, is controlled by or is under common control
with such Person, together with its and their respective members, partners, venturers, directors, officers
stockholders, agents, employees and spouses. A Person shall be presumed to have control when it
possesses the power, directly or indirectly, to direct, or cause the direction of, the management or
policies of another Person , whether through ownership of voting securities , by contract, or otherwise.
Person" means an individual, partnership, limited liability company, association , corporation or other
entity.
2. Grantor s Reserved Riqhts. Grantor reserves to itself and its Authorized Users the right to use
the Easement Rights for any purpose not incompatible with the rights conveyed to Grantee by this
Agreement.
3. Conditions Precedent to Effectiveness of Aqreement.
conditioned on the following:
This Agreement is expressly
a. Recordation of Aqreement.If the Right-of-Way Agreement has been publicly
recorded, Grantee shall be responsible for assuring that the Agreement is in appropriate form for
recording in the real property records of the County, shall pay for the recording thereof, and shall
provide a copy of the recorded Agreement to Grantor at the address set forth above. A legible
copy of the Right of Way Agreement must be attached to the Agreement when recorded or the
Agreement shall not be effective.
b. Payment of Costs and Expenses . Grantee shall pay to or reimburse Grantor for all
costs and expenses, including reasonable attorneys' fees , relating to Grantor s execution and
delivery of this Agreement.
4. Grantee s Representations and Warranties . Grantee represents and warrants to Grantor that:
a. Authority. Grantee is a , duly formed and validly existing under the laws
of the State of . All necessary action has been taken by Grantee to execute and
deliver this Agreement and to perform the obligations set forth hereunder. Grantee is a
telecommunications carrier" as that term is defined in 42 U.C. ~ 224.
b. Due Diliqence. Grantee acknowledges and agrees that neither Grantor nor any agent
employee , attorney, or representative of Grantor has made any statements, agreements,
promises, assurances, representations, or warranties , whether in this Agreement or otherwise
and whether express or implied, regarding the Right of Way Agreement or the Easement Rights
or the assignability or further granting thereof, or title to or the environmental or other condition of
the Property. Grantee further acknowledges and agrees that Grantee has examined and
investigated to its full satisfaction the physical nature and condition of the Property and the
Easement Rights and that it is acquiring the Easement Rights in an "AS IS, WHERE IS" condition.
Grantee expressly waives all claims for damages by reason of any statement, representation
warranty, assurance, promise or agreement made, if any.
Date/Initials/COMPANY /ST A TE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4 , 2004 Page 27
Exhibit D
5. Grantee s Covenants.
a. Compliance with Riqht of Way Aqreement.Grantee agrees that the rights granted by
Grantor hereunder are expressly subject to, subordinate to, and limited by the Right of Way
Agreement, and Grantee further agrees to comply in all respects with the terms and conditions of
the Right of Way Agreement as they apply to the holder or user of the Easement Rights. In the
event Grantee fails to observe or perform any. of its obligations under the Right of Way
Agreement, Grantor shall have the right, but not the obligation , to perform or observe such
obligation to the extent that such obligation can be observed or performed by Grantor.
b. Compliance with Laws . Grantee agrees to use the Property and the Easement Rights
in compliance with all applicable laws.
c. No Further Grant.Grantee shall not grant to any Person other than Grantee
Authorized Users the right to use the Easement Rights without the prior written consent of
Grantor, which consent may be granted or withheld in Grantor s sole discretion.
d. Non-Interference . Grantee agrees that it will not interfere with Grantor s or Grantor
Authorized Users' use of the Easement Rights and will not take any action or fail to take any
action that would negatively affect the Easement Rights or cause or contribute to the termination
of the Right of Way Agreement.
6. Indemnification. Grantee hereby agrees to indemnify, defend and hold Owner, Grantor and
their respective Affiliates harmless from and against any and all claims, judgments, damages, liabilities
penalties, fines, suits , causes of action , costs of settlement, and expenses (including, without limitation
reasonable attorneys' fees) which may be imposed upon or incurred by Grantor or its Authorized Users
or any of them, arising from, relating to or caused by Grantee s breach of this Agreement or the use, or
the use by any of Grantee s Authorized Users, of the Easement Rights. In addition to the indemnity
obligations described above , in the event that any act or omission of Grantee or Grantee s Authorized
Users causes, directly or indirectly, and without reference to any act or omission of Owner, Grantor or
their respective Authorized users, the termination or revocation of the Easement Rights, Grantee shall be
liable to Grantor for all costs incurred in connection with (a) acquiring replacement Easement Rights overthe Property or over other suitable Property, as determined in Grantor sole judgment (the
Replacement Easement"), (b) the fully-loaded cost of constructing replacement facilities over the
Replacement Easement, (c) the cost of removing its facilities and personal property from the Property, if
required by the Right of Way Agreement, and (d) any other costs of complying with the Right of Way
Agreement, including, without limitation, reasonable attorneys' fees. Grantee shall pay all such amounts
within ten (10) days of receipt of any invoice for such costs delivered to Grantee by Owner , Grantor or
their respective Authorized Users.
7. Condemnation If any action is taken whereby the Right of Way Agreement or any part of the
Easement Rights are terminated, relocated or otherwise affected , by any taking or partial taking by a
governmental authority or otherwise, then such any compensation due or to be paid to the holder of the
Easement Rights due to such occurrence shall belong solely to Grantor.
8. Severable Provisions If any term of this Agreement shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby, and each term of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
9. Default Remedies. (a) If Grantee files a petition in bankruptcy, or a petition is bankruptcy is
filed against Grantee, which is not dismissed on or before fifteen (15) days after such filing, or (b) in the
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 28
Exhibit D
event of Grantee s breach or threatened breach of any term , covenant or condition of this Agreement
then Grantor shall have, in addition to all other legal and equitable remedies, the right to (x) terminate
this Agreement, (y) enforce the provisions hereof by the equitable remedy of specific performance, or (z)
enjoin such breach or threatened breach by injunctive action , all without the necessity of proof of actual
damages or inadequacy of any legal remedy. Grantee agrees to pay all costs of enforcement of the
obligations of Grantee hereunder, including reasonable attorneys' fees and all costs of suit, in case it
becomes necessary for Grantor to enforce the obligations of Grantee hereunder, whether suit be brought
or not, and whether through courts of original jurisdiction , as well as in courts of appellate jurisdiction, or
through a bankruptcy court or other legal proceedings.
10. Bindinq Effect.This Agreement shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement may be assigned at any time in
whole or in part by Grantor.
11. No Dedication . Nothing contained in this Agreement shall constitute a gift or dedication of any
portion of the Easement Rights to the general public or for any public purpose whatsoever. There are no
intended third-party beneficiaries to this Agreement.
12. Grantor s Waiver of Confidentiality. If the Right of Way Agreement is not publicly recorded
Grantor hereby grants a limited waiver of any right to keep the terms and conditions of the Right of Way
Agreement confidential, except for any dollar amounts in the Right of Way Agreement, which rights
Grantor expressly reserves, and subject to Grantee s and Owner s compliance with the terms and
conditions in this paragraph. In all instances, Grantee will use the Right of Way Agreement only for the
following purposes: (a) to determine whether Grantor has ownership or control over duct, conduits , or
rights-of-way within the property described in the Right of Way Agreement; (b) to determine the
ownership of wire within the property described in the Right of Way agreement; or (c) to determine the
demarcation point between Grantor facilities and the Owner s facilities in the property described in the
agreement. Grantee further agrees that Grantee shall not disclose the contents , terms, or conditions of
any agreement provided pursuant to Section 10.8 to any Grantee agents or employees engaged in
sales, marketing, or product management efforts on behalf of Grantee. Grantor s waiver of rights
subject to the limitations set forth above, is intended to be effective whether or not such right to
confidentiality is expressly set forth in the Right of Way Agreement or elsewhere or may have been
agreed to orally, and so long as Grantee and Owner comply with the conditions set forth above, Grantor
further covenants not to assert any claim or commence any action , lawsuit, or other legal proceeding
against Owner or Grantee, based upon or arising out of Grantor s alleged right to confidentiality relating
to the Right of Way Agreement, except in the event of disclosure of dollar amounts in the Right of Way
Agreement. Grantor s waiver is expressly conditioned on Owner s waiver of Owner confidentiality
rights, as set forth in the Consent to Disclosure form, which is a part hereof, or Grantee s provision to
Grantor of a legally binding and satisfactory agreement to indemnify Grantee in the event of any legal
action arising out of Owner s provision of a non-recorded agreement to Grantee. In the event that , the
person executing the Consent to Disclosure form does not have the legal right to bind the Owner
Grantor reserves the right to maintain an action for damages, including, without limitation, consequential
damages , arising from such improper execution against any Person improperly executing the Consent to
Disclosure form. In any event, Grantor reserves its right to (a) to enforce the confidentiality provisions of
the Right of Way Agreement as to any dollar amounts set forth in such Right of Way Agreements, and/or
(b) to maintain an action for damages, including, without limitation, consequential damages, arising from
the disclosure of the dollar amounts in any Right of Way Agreement, against any party, including, without
limitation, against Grantee or against any Person improperly executing the Consent to Disclosure form.
13. Notices All notices to be given pursuant to this Agreement shall be deemed delivered (a)
when personally delivered, or (b) three (3) business days after being mailed postage prepaid , by United
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 29
Exhibit D
States certified mail, return receipt requested, or (c) one business day after being timely delivered to an
overnight express courier service such as Federal Express which provides for the equivalent of a return
receipt to the sender, to the above described addresses of the parties hereto, or to such other address
as a party may request in a writing complying with the provisions of this Section.
14. Modification; Counterparts. This Agreement may not be amended, modified or changed, nor
shall any waiver of any provision hereof be effective, except by an instrument in writing and signed by the
party against whom enforcement of any amendment, modification , change or waiver is sought. This
Agreement may be executed in any number of counterparts, all of which shall constitute but one and the
. same document.
15. Controllinq Law. This Agreement shall be governed by and construed in accordance with the
laws of the State.
16. Waiver of JUry Trial.THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT OF APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION , PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
~nature lE!ges followl
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 30
Exhibit D
EXECUTED as of the date first written above.
GRANTOR:
Witnessed by:QWEST CORPORATION , a Colorado corporation
successor in interest to
U S WEST COMMUNICATIONS, INC.
a Colorado corporation
By:
Name:
Title:
) ss:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of, by
of QWEST CORPORATION, a Colorado
corporation.
Witness my hand and official seal.
(SEAL)
Notary Public
My Commission Expires:
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 31
Exhibit D
EXECUTED as of the date first written above.
GRANTEE:
Witnessed by:, a
By:
Name:
Title:
) ss:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
, by
Witness my hand and official seal.
(SEAL)
Notary Public
My Commission Expires:
Date/Initials/COMPANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 32
Exhibit D
CONSENT TO DISCLOSURE
THE UNDERSIGNED , a Ownerwhose address is , hereby
consents to the terms of the following paragraphs regarding the agreement described or entitled as
between Qwest Corporation, formerly U S WEST
Communications, Inc. ("Qwest") and Owner for the property located at
Property ) that provides Qwest with access to Owner s Property
(the "Aqreement"
FOR TEN DOLLARS ($10) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged , Owner agrees as follows:
1 ~ Title to Property. Owner represents and warrants either (a) that Owner is the owner of fee title to the
Property described in the Agreement or, if no description of the Property is given in the Agreement, then
(b) that Owner is the grantor, or the successor to or assignee of the grantor, of the easement rights, if
any, under the Agreement. Owner further represents and warrants that Owner has the legal right to
execute this Consent to Disclosure, including, without limitation , the right to waive the confidentiality of
the Agreement as set forth in paragraph 3 of this Consent to Disclosure.
2. Owner s Acknowledqments Owner expressly acknowledges that (a) this is a legal document that
may affect Owner s rights and Owner was given the opportunity to have the Agreement and this Consent
to Disclosure reviewed by Owner s attorney; and (b) Owner, by signing this Consent to Disclosure
waives any rights it may have to keep the terms and provisions of the Agreement confidential.
3. Owner s Waiver of Confidentiality Owner hereby waives any right it may have to keep the terms and
conditions of the Agreement confidential, whether or not such right to confidentiality is expressly set forth
in the Agreement or elsewhere or may have been agreed to orally, subject to the compliance of the
competitive local exchange carrier ("CLEC") with the requirements of paragraph 5. Owner further
covenants not to assert any claim or commence any action, lawsuit, or other legal proceeding against
Qwest or CLEC presenting this Consent to Disclosure, based upon or arising out of Owner s alleged right
to confidentiality relating to the Agreement. Owner s consent to disclosure applies only to the Agreement
that is described in this Consent to Disclosure form and only to the undersigned CLEC.
4. Qwest's Waiver of Confidentiality. Qwest represents and warrants that it is granting a limited waiver
of its confidentiality rights that permits CLEC to review the Agreement subject to CLEC's compliance with
the requirements of paragraph 5 and Qwest's right to redact all dollar amounts set forth in the
Agreement. Qwest's consent to disclosure applies only to the Agreement that is described in this
- Consent to Disclosure form and only to the undersigned CLEC.
5. CLEC's Obligations. CLEC shall use the Agreement exclusively for the following purposes and for no
other purpose whatsoever:
(a) to determine whether Qwest has ownership or control over duct, conduits, or rights-of-way
within the Property described in the Agreement; or
(b)to determine the ownership of wire within the Property described in the Agreement; or
Date/Initials/COMP ANY /ST A TE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4 , 2004 Page 33
Exhibit D
( c) to determine the demarcation point between Qwest facilities and the Owner s facilities in
the Property described in the Agreement.
CLEC further agrees that CLEC shall not disclose the contents, terms, or conditions of the Agreement to
any CLEC agents or employees engaged in sales, marketing, or product management efforts on behalfof GLEC.
6. Acknowledgement of Limitation on Waivers. Owner understands that Qwest does not agree to
waive the confidentiality of the dollar amounts set forth in any Agreement, and acknowledges
that Owner has no right to provide copies of such Agreements to any party unless Owner has
completely deleted the dollar amounts. Owner shall not provide a copy of the Agreement unless
Owner has completely deleted all dollar amounts. Whether provided by Owner or Qwest, CLEC
shall comply with the conditions set forth in paragraph 5.
7. Notices. All notices to be given pursuant to this Agreement shall be deemed delivered (a) when
personally delivered, or (b) three (3) business days after being mailed postage prepaid, by United States
certified mail, return receipt requested, or (c) one business day after being timely delivered to an
overnight express courier service such as Federal Express which provides for the equivalent of a return
receipt to the sender, to the above described addresses of the parties hereto, or to such other address
as a party may request in a writing complying with the provisions of this Section.
EXECUTED as of the date first written above.
OWNER:
CLEC:
ate/Initials/COMP ANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 34
Exhibit D
EXHIBIT 1
Right of Way Agreement
(This represents the ROW agreement between the Co-Provider and the property owner)
Date/Initials/COMP ANY/STATE/ Agreements Number CDS-xxxxxx-xxxxQwest Idaho October 4, 2004 Page 35
EXHIBIT F - SPECIAL REQUEST PROCESS
The Special Request Process shall be used for the following requests:
Requesting specific product feature(s) be made available by Qwest that are
currently available in a switch , but which are not activated.
Requesting specific product feature(s) be made available by Qwest that are not
currently available in a switch , but which are available from the switch vendor
Requesting a combination of Unbundled Network Elements that is a combination
not currently offered by Qwest as a standard product and:
that is made up of UNEs that are defined by the FCC or the Commission
as a network element to which Qwest is obligated to provide unbundled access
and'
that is made up of UNEs that are ordinarily combined in the Qwest
network.
1.4 Requesting an Unbundled Network Element that does not require a technical
feasibility analysis and has been defined by the FCC or the State Commission as a
network element to which Qwest is obligated to provide unbundled access, but for which
Qwest has not created a standard product, including, but not limited to, OC-192 (and
such higher bandwidths that may exist) UDIT, EEL between OC-3 and OC-192 and new
varieties of subloops.2. Any request that requires an analysis of Technical Feasibility shall be treated as
a Bona Fide Request (BFR), and will follow the BFR Process set forth in ~his Agreement.
If it is determined that a request should have been submitted through the BFR process
Qwest will consider the BFR time frame to have started upon receipt of the original
Special Request application form.3. A Special Request shall be submitted in writing and on the appropriate Qwest form
which is located on Qwest's website.4. Qwest shall acknowledge receipt of the Special Request within two (2) business days of
receipt.5. Qwest shall respond with an analysis, including costs and timeframes, within fifteen (15)
business days of receipt of the Special Request. In the case of UNE Combinations, the analysis
shall include whether the requested combination is a combination of network elements that are
ordinarily combined in the Qwest network. If the request is for a combination of network
elements that are not ordinarily combined in the Qwest network, the analysis shall indicate to
CLEC that it should use the BFR process if CLEC elects to pursue its request.6. Upon request Qwest shall provide CLEC with Qwest's supporting cost data and/or
studies for Unbundled Network Elements that CLEC wishes to order within seven (7) business
days, except where Qwest cannot obtain a release from its vendors within seven (7) business
days, in which case Qwest will make the data available as soon as Qwest receives the vendor
release. Such cost data shall be treated as Confidential Information , if requested by Qwest
under the non-disclosure sections of this Agreement.
Negotiations Template, Exhibit F 9/10104
EXHIBIT G
ntentionally Left Blank
Exhibit G -Qwest Fourteen State Template Version 1., May 11 , 2005
EXHIBIT H
Calculation of the Relative Use Factor (RUF)
Minutes that are qwest's responsibility (At,
All EAS/Local 251 (b )(5) Minutes of Use (MOU) that Qwest sends to CLEC
All Qwest Exchange Access MOU that Qwest sends to CLEC
EAS/Local 251 (b)(5) traffic that transits Qwest network and is terminated to CLEC,
for which Qwest receives compensation from the originating Carrier for performing
the local transiting function
AlllntraLA T A transit MOU that Qwest sends to CLEC
All ISP-bound and FX MOU that CLEC sends to Qwest
Minutes that are CLEC's responsibility (ID
All EAS/Local 251 (b )(5) MOU that CLEC sends to Qwest
All Exchange Access MOU that CLEC sends to Qwest.
All EAS/Local 251 (b )(5) traffic that CLEC sends to Qwest for termination on another
Carrier s network
AlllntraLATA transit MOU that CLEC to Qwest
All Jointly Provided Switched Access (unless joint NECA 4 billing percentages have
been filed) that Qwest sends to CLEC and that CLEC sends to Qwest
. AIIISP-bound and VNXX MOU that Qwest sends to CLEC
All VNXX MOU that transits Qwest network and is terminated to CLEC
The mathematical equation for RUF is as follows:
Qwest (A) (A+B)
CLEC (B) (A+B)
Rounded to nearest whole percentage
Rounded to nearest whole percentage
Data used for the calculation will be the average of the most recent three (3) months
usage determined not to be an anomaly.
Exhibit H -Qwest Fourteen State Template Version 1., May 11 2005
Qwest All States Except Minnesota and Washington
Exhibit Individual Case Basis
This Agreement contains references to both 1GB rates and 1GB intervals. The
purpose of this exhibit is to identify how CLEC's 1GB requests - whether they be
for rates or intervals - are processed through and by Qwest.
1GB Rate Intervals
For those products and services identified in the SGA T that contain a
provision for 1GB rates, Qwest will provide GLEC with a written quote of
the 1GB rate within twenty (20) business days unless a specific interval for
providing the quote is either contained in the SGA T or this Exhibit.
The purpose of this subsection is to identify those circumstances when
the generic twenty (20) business day interval in the aforementioned
subsection to this Exhibit does not apply. In these specified
circumstances, Qwest shall provide CLEC with an 1GB quote within the
stated specific intervals:
Quotes for all Bona Fide Requests (BFR) shall be provided "
accord with Section 17.
Quotes for all Special Request Processes (SRP) shall be provided
in accord with Exhibit F.
Quotes for all collocation requests, regardless of the type of
collocation , shall be provided in accord with the Section 8 interval.
2.4 Quotes for all Field Connection Point requests shall be provided in
accord with Section 9.
Quotes for all Advanced Intelligent Network (AIN) requests shall
be provided in accord with Section 9.
Upon request , Qwest shall provide CLEC with Qwest's supporting cost
data and/or cost studies for the Unbundled Network Element or service
that GLEe wishes to order within seven (7) business days, except where
Qwest cannot obtain a release from its vendors within seven (7) business
days , in which case Qwest will make the data available as soon as Qwest
receives the vendor release. Consistent with the terms and conditions of
any applicable vendor contract or agreement Qwest shall diligently
pursue obtaining the release of cost information as soon as reasonably
possible. To the extent consistent with the terms and obligations of any
applicable vendor contract or agreement, Qwest shall request the release
of vendor cost information when Qwest communicates with the vendor(s)
when Qwest seeks a quote for the costs of the 1GB project. Such cost
data shall be treated as confidential information if requested by Qwest
under the non-disclosure sections of this Agreement.
1GB Provisioning Intervals
For those products and services provided pursuant to this SGA T that
contain a provision for 1GB interval but do not contain a specific provision
Negotiations Template, Exhibit I 20-Page
Exhibit Individual Case Basis
for when the 1GB interval shall be provided , the 1GB interval shall
provided within twenty (20) business days of receipt of the order, requestor application.
For 1GB intervals for those products and services that require negotiated
project time lines for installation, such as 2/4 wire analog loop for more
than twenty-five (25) loops, the Qwest representative , authorized to
commit to intervals, shall meet with CLEC's representative within seven
(7) business days of receipt of the request from CLEC to negotiate
intervals.
Negotiations Template, Exhibit I 20-Page 2
Exhibit J
Election of Reciprocal Compensation Option
INTENTIONALLY LEFT BLANK
Negotiations Template Exhibit J - 9-10-
Exhibit K
PERFORMANCE ASSURANCE PLAN
Introduction
As set forth in this Agreement Qwest and CLEC voluntarily agree to the
terms of the following Performance Assurance Plan ("PAP"), prepared in conjunction
with Qwest's application for approval under Section 271 of the Telecommunications
Act of 1996 (the "Act") to offer in-region long distance service.
Plan Structure
The PAP is a two-tiered , self-executing remedy plan. CLEC shall be provided
with Tier 1 payments if, as applicable , Qwest does not provide parity between the
service it provides to CLEC and that which it provides to its own retail customers , or
Qwest fails to meet applicable benchmarks.
As specified in section 7., if Qwest fails to meet parity and benchmark
standards on an aggregate CLEC basis , Qwest shall make Tier 2 payments to a
Fund established by the state regulatory commission or, if required by existing law, to
the state general fund.
As specified in sections 6.0 and 7.0 and Attachments 1 and 2 , payment is
generally on a per occurrence basis, (Le., a set dollar payment times the number of
non-conforming service events). For the performance measurements which do not
lend themselves to per occurrence payment payment is on a per measurement
basis, (Le., a set dollar payment). The level of payment also depends upon the
number of consecutive months of non-conforming performance, (Le., an escalating
payment the longer the duration of non-conforming performance).
Qwest shall be in conformance with the parity standard when service Qwest
provides to CLEC is equivalent to that which it provides to its retail customers. The
PAP relies upon statistical scoring to determine whether any difference between
CLEC and Qwest performance results is significant, that is, not attributable to simple
random variation. Statistical parity shall exist when performance results for CLEC
and for Qwest retail analogue result in a z-value that is no greater than the critical z-
values listed in the Critical Z-Statistical Table in section 5.
For performance measurements that have no Qwest retail analogue, agreed
upon benchmarks shall be used. Benchmarks shall be evaluated using a "stare and
compare" method. For example , if the benchmark is for a particular performance
measurement is 950/0 or better, Qwest performance results must be at least 950/0 to
meet the benchmark. Percentage benchmarks will be adjusted to round the
allowable number of misses up or down to the closest integer, except when a
benchmark standard and low CLEC volume are such that a 1000/0 performance result
would be required to meet the standard and has not been attained. In such a
Qwest Idaho SGA T Third Revised, Fifth Amended Exhibit K, November 30, 2004 - 1-
Exhibit K
situation, the determination of whether Qwest meets or fails the benchmark standard
will be made using performance results for the month in question , plus a sufficient
number of consecutive months so that a 1000/0 performance result would not be
required to meet the standard. For purposes of section 6., a meet or fail determined
by this procedure shall count as a single month.
Performance Measurements
The performance measurements included in the PAP are set forth
Attachment 1. Each performance measurement identified is defined in the
Performance Indicator Definitions (liPIDs ) developed in the ROC Operational
Support System ("OSS") collaborative , and which are included in the SGAT at Exhibit
B. The measurements have been designated as Tier ., Tier 2 , or both Tier 1 and
Tier 2 and given a High , Medium , or Low designation.
Statistical Measurement
Qwest uses a statistical test, namely the modified "test " for evaluating the
difference between two means (Le., Qwest and CLEC service or repair intervals) or
two percentages (e., Qwest and CLEC proportions), to determine whether a parity
condition exists between the results for Qwest and the CLEC(s). The modified z-
tests shall be applicable if the number of data points are greater than 30 for a given
measurement. For testing measurements for which the number of data points are 30
or less, Qwest will use a permutation test to determine the statistical significance of
the difference between Qwest and CLEC.
Qwest shall be in conformance when the monthly performance results for
parity measurements (whether in the form of means, percents, or proportions and at
the equivalent level of disaggregation) are such that the calculated z-test statistics
are not greater than the critical z-values as listed in Table 1 , section 5.
Qwest shall be in conformance with benchmark measurements when the
monthly performance result equals or exceeds the benchmark, if a higher value
means better performance, and when the monthly performance result equals or is
less than the benchmark if a lower value means better performance.
The formula for determining parity using the modified z-test is:
z = DIFF / crOIFF
Where:
DIFF = Mowest - McLEc
MoWEST = Qwest average or proportion
Qwest Idaho SGA T Third Revised, Fifth Amended Exhibit K, November 30, 2004 - 2-
Exhibit K
McLEC = CLEC average or proportion
O"OIFF = square' root 0" Qwest (11 n CLEC + 11 n Owest))
0west = calculated variance for Qwest
nOwest = number of observations or samples used in Qwest
measurement
nCLEC = number of observations or samples used in CLEC
measurement
The modified z-tests will be applied to reported parity measurements that contain
more than 30 data points.
In calculating the difference between Qwest and CLEC performance , the above
formula applies when a larger Qwest value indicates a better level of performance.
cases where a smaller Qwest value indicates a higher level of performance, the order
is reversed , i.e., McLEc - MowEsT.
For parity measurements where the number of data points is 30 or less
Qwest will apply a permutation test to test for statistical significance. Permutation
analysis will be applied to calculate the z-statistic using the following logic:
Calculate the modified z-statistic for the actual arrangement of the data
Pool and mix the CLEC and Qwest data sets
Perform the following 1000 times:
Randomly subdivide the pooled data sets into two pools, one the same
size as the original CLEC data set (nCLEC) and one reflecting the
remaining data points , and one reflecting the remaining data points
(which is equal to the size of the original Qwest data set or nawEsT).
Compute and store the modified z~test score (Zs) for this sample.
Count the number of times the z-statistic for a permutation of the data
greater than the actual modified z-statistic
Compute the fraction of permutations for which the statistic for the rearranged
data is greater than the statistic for the actual samples
If the fraction is greater than a, the significance level of the test, the hypothesis of no
difference is not rejected , and the test is passed. The a shall be .05 when the critical
z value is 1.645 and .15 when the critical z value is 1.04.
Critical Z-Value
The following table shall be used to determine the critical z-value that is
referred to in section 6.0. It is based on the monthly business volume of the CLEC
Qwest Idaho SGA T Third Revised, Fifth Amended Exhibit K, November 30, 2004 - 3-
Exhibit K
for the particular performance measurements for which statistic testing is being
performed.
TABLE 1: CRITICAL Z-ALUE
CLEC volume LIS Trunks UDITs,All Other
(Sample size)Resale , UBL-DS1 and DS-
1 .04*645
11-1 50 645 645
151-300
301-600
601-3000
3001 and above
The 1.04 applies for individual month testing for performance measurements
involving LIS trunks and DS-1 and DS-3 that are UDITs, Resale, or Unbundled
Loops. The performance measurements are OP-3d/e , OP-4de, OP -, OP-4/5
MR-5a/b , MR-7d/e, and MR-
For purposes of determining consecutive month misses, 1.645 shall be used. Where
performance measurements disaggregate to zone 1 and zone 2, the zones shall be
combined for purposes of statistical testing.
Tier 1 Payments to CLEC
Tier payments to CLEC shall be made solely for the performance
measurements designated as Tier 1 on Attachment 1. The payment amount for non-
conforming service varies depending upon the designation of performance
measurements as High, Medium , and Low and the duration of the non-conforming
service condition as described below. Non-conforming service is defined in section
Determination of Non-Conforming Measurements: The number of
performance measurements that are determined to be non-conforming and
therefore, eligible for Tier 1 payments , are limited according to the critical z-value
shown in Table 1 , section 5.0. The critical z-values are the statistical standard that
determines for each CLEC performance measurement whether Qwest has met
parity. The critical z-value is selected from Table 1 according to the monthly CLEC
volume for the performance measurement. For instance, if the CLEC sample size for
that month is 100, the critical z-value is 1.645 for the statistical testing of that parity
performance measurement.
Determination of the Amount of Payment: Tier 1 payments to CLEC, except
as provided for in sections 6.3 and 10., are calculated and paid monthly based on
the number of performance measurements exceeding the critical z-value. Payments
Qwest Idaho SGA T Third Revised, Fifth Amended Exhibit K, November 30, 2004 - 4-
Exhibit K
will be made on either a per occurrence or per measurement basis , depending upon
the performance measurement, using the dollar amounts specified in Table 2 below.
The dollar amoUnts vary depending upon whether the performance measurement is
designated High , Medium, or Low and escalate depending upon the number of
consecutive months for which Qwest has not met the standard for the particular
measurement.
The escalation of payments for consecutive months of non-conforming
service will be matched month for month with de-escalation of payments for every
month of conforming service. For example, if Qwest has four consecutive monthly
misses" it will make payments that escalate from month 1 to month 4 as shown in
Table 2. If, in the next month, service meets the standard Qwest makes no
payment. A payment "indicator" de-escalates down from month 4 to month 3.
Qwest misses the following month , it will make payment at the month 3 level of Table
2 because that is where the payment "indicator" presently sits. If Qwest misses again
the following month , it will make payments that escalate back to the month 4 level.
The payment level will de-escalate back to the original month level only upon
conforming service sufficient to move the payment "indicator" back to the month 1
level.
For those performance measurements listed on Attachment 2
Performance Measurements Subject to Per Measurement Caps " payment to a
CLEC in a single month shall not exceed the amount listed in Table 2 below for the
Per Measurement" category. For those performance measurements listed on
Attachment 2 as "Performance Measurements Subject to Per Measurement
Payments " payment to a CLEC will be the amount set forth in Table 2 below under
the section labeled "per measurement."
TABLE 2: TIER-1 PAYMENTS TO CLEC
Per Occurrence
Measurement Group Month Month 2 Month 3 Month 4 Month 5 Month 6
and each
following
month
High $150 $250 $500 $600 $700 $800
Medium $ 75 $150 $300 $400 $500 $600
Low $ 25 $ 50 $100 $200 $300 $400
Per Me~surement
Cap
Measurement Group Month Month 2 Month 3 Month 4 Month 5 Month 6
and each
following
month
High $25 000 $50 000 $75 000 $100 000 $125 000 $150,000
Medium $10 000 $20,000 $30 000 $ 40 000 $ 50,000 $ 60 000
Low $ 5,000 $10 000 $15 000 $20 000 $ 25 000 $ 30 000
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30 2004 - 5-
Exhibit K
For collocation , CP-2 and CP-4 performance measurements shall be relied
upon for delineation of collocation business rules. For purposes of calculating Tier
payments , collocation jobs and collocation feasibility studies that are later than the
due date will have a per day payment applied according to Table 3. The per day
payment will be applied to any collocation job in which the feasibility study is provided
or the collocation installation is completed later than the scheduled date. The
calculation of the payment amount will be performed by applying the per day
payment amounts as specified in Table 3. Thus , for days 1 through 10, the payment
is $150 per day. For days 11 through 20, the payment is $300 per day and so on.
TABLE 3: TIER-1 COLLOCATION PAYMENTS TO CLECS
Days Late Completion Date Feasibility Study
1 to 10 days $150/day $45/day
11 to 20 days $300/day $90/day
21 to 30 days $450/day $135/day
31 to 40 days $600/day $180/day
More than 40 days 000/day $300/day
A minimum payment calculation shall be performed at the end of each year
for each CLEC with annual order volumes of no more than 1 200. The payment shall
be calculated by multiplying $2 000 by the number of months in which at least one
payment was due to the CLEC. To the extent that the actual CLEC payment for the
year is less than the product of the preceding calculation Qwest shall make an
additional payment equal to the difference.
Tier 2 Payments to the State
Payments to the State shall be limited to the performance measurements
designated in section 7.4 for Tier 2 per measurement payments and in Attachment
for per occurrence payments and which have at least 10 data points each month for
the period payments are being calculated. Similar to the Tier 1 structure, Tier 2
measurements are categorized as High , Medium, and Low and the amount of
payments for non-conformance varies according to this categorization.
Determination of Non-Conforming Measurements: The determination of non-
conformance will be based upon the aggregate of all CLEC data for each Tier 2
performance measurement. Non-conforming service is defined in section 4.(for
parity measurements) and 4.3 (for benchmark measurements), except that a 1.645
critical z-value shall be used for Tier 2 parity measurements that have Tier
counterparts. The critical z-value is the statistical standard that determines for each
performance measurement whether Qwest has met parity.
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30 2004 - 6-
Exhibit K
Determination of the Amount of Payment: Except as provided in section 7.
Tier 2 payments are calculated and paid monthly based on the number
performance measurements failing performance standards for a third consecutive
month , or if two out of three consecutive months in the 12 month period have been
missed , the second consecutive month for Tier 2 measurements with Tier
counterparts. For Tier 2 measurements that do not have Tier 1 counterparts
payments are calculated and paid monthly based on the number of performance
measurements exceeding the critical z-values, identified in section 5., in any single-
month. Payment will be made on either a per occurrence or per measurement basis
whichever is applicable to the performance measurement, using the dollar amounts
specified in Table 4 or Table 5 below. Except as provided in section 7., the dollar
amounts vary depending upon whether the performance measurement is designated
High , Medium, or Low.
For those Tier 2 measurements listed on Attachment 2 as "Performance
Measurements Subject to Per Measurement Caps " payment to the State in a single
month shall not exceed the amount listed in Table 4 for the "Per Measurement"
category .
TABLE 4: TIER-2 PAYMENTS TO STATE FUNDS
Per Occurrence
Measurement Group
High
$500
Medium
$300
Low
$200
Per MeasurementiCa
Measurement Grou
Hi h
Mediu
Low
$75 000
$30,000
$20,000
Performance Measurements Subject to Per Measurement Payment:The
following Tier 2 performance measurements shall have their performance results
measured on a region-wide (14 state) basis. Failure to meet the performance
standard , therefore, will result in a per measurement payment in each of the Qwest
in-region 14 states adopting this PAP. The performance measurements are:
GA-1 :
GA-
GA-3 :
GA-
GA-
PO-
OP-
Center
Gateway Availability - IMA-GUI
Gateway Availability - IMA-EDI
Gateway Availability - EB- T
System Availability EXACT
Gateway Availability - GUI-Repair
Pre-Order/Order Response Times
Call Answered within Twenty Seconds Interconnect Provisioning
Qwest Idaho SGA T Third Revised, Fifth Amended Exhibit K, November 30, 2004 - 7-
Exhibit K
MR-2: Calls Answered within Twenty Seconds - Interconnect Repair Center
GA-1 has two sub-measurements: GA-, and GA-1 D. PO-1 shall have two sub-
measurements: PO-1A and PO-1 B. PO-1A and PO-1 B shall have their transaction
types aggregated together.
For these measurements, Qwest will make a Tier 2 payment based upon monthly
performance results according to Table 5: Tier 2 Per Measurement Payments to
State Funds.
TABLE 5: TIER-2 PER MEASUREMENT PAYMENTS TO STATE FUNDS
Measuremen Performance State Payment 14 State Payment
GA-1 ,1 % or lower $1 ,000 $14 000
~1 % to 30/0 $10 000 $140 000
:::-30/0 to 50 $20 000 $280 000
~5O $30 000 $420 000
PO-2 sec. Or less 000 $14 000
sec.000 $70 000
sec.
~5 sec. to 10 $10 000 $140 000
sec.
:::-10 sec.$15 000 $210 000
OP-2/MR-1 % or lower 000 $14 000
:::-1 % to 30/0 000 $70 000
:::-30/0 to 50/0 $10 000 $140 000
~50/0 $15 000 $210 000
Step by Step Calculation of Monthly Tier 1 Payments to CLEC
Application of the Critical Z-Values: Qwest shall identify the Tier parity
performance measurements that measure the service provided to CLEC by Qwest for
the month in question and the critical z-value from Table 1 in section 5.0 that shall be
used for purposes of statistical testing for each particular performance measurement.
The statistical testing procedures described in section 4.0 shall be applied. For the
purpose of determining the critical z-values , each disaggregated category of a
performance measurement is treated as a separate sub-measurement. The critical
z-value to be applied is determined by the CLEC volume at each level of
disaggregation or- sub-measurement.
Performance Measurements for which Tier 1 Payment is Per Occurrence:
Performance Measurements that are Averages or Means:
Qwest Idaho SGA T Third Revised , Fifth Amended Exhibit K, November 30, 2004 - 8-
Exhibit K
1 Step 1: For each performance measurement, the average or the mean that
would yield the critical z-value shall be calculated. The same denominator as the one
used in calculating the z-statistic for the measurement shall be used. (For
benchmark measurements, the benchmark value shall be used.
2 Step 2: The percentage differences between the actual averages and the
calculated averages shan be calculated. The calculation is % diff = (CLEC result
Calculated Value )/Calculated Value. The percent difference shall be capped at a
maximum of 1000/0. In all calculations of percent differences in sections 8.0 and 9~0
the calculated percent differences is capped at 1000/0.
2 Step 3: For each performance measurement, the total number of data points
shall be multiplied by the percentage calculated in the previous step and the per
occurrence dollar amounts from the Tier 1 Payment Table shall determine the
payment to the CLEC for each non-conforming performance measurement.
Performance Measurements that are Percentages:
1 Step 1: For each performance measurement, the percentage that would yield
the critical z-value shall be calculated. The same denominator as the one used in
calculating the z- statistic for the measurement shall be used. (For benchmark
measurements, the benchmark value shall be used.
2 Step 2: The difference between the actual percentages for the CLEC and the
calculated percentages shall be determined.
3 Step 3: For each performance measurement, the total number of data points
shall be multiplied by the difference in percentage calculated in the previous step,
and the per occurrence dollar amount taken from the Tier 1 Payment Table, to
determine the payment to the CLEC for each non-conforming performance
measurement.
Performance Measurements that are Ratios or Proportions:
1 Step 1: For each performance measurement the ratio that would yield the
critical z-value shall be calculated. The same denominator as the one used in
calculating the z-statistic for the measurement shall be used. (For benchmark
measurements, the benchmark value shall be used.
2 Step 2: The absolute difference between the actual rate for the CLEC and
the calculated rate shall be determined.
3 Step 3: For each performance measurement, the total number of data points
shall be multiplied by the difference calculated in the previous step, and the per
occurrence dollar amount taken from the Tier 1 Payment Table, to determine the
payment to the CLEC for each non-conforming performance measurement.
Qwest Idaho SGAT Third Revised , Fifth Amended Exhibit K, November 30,2004 - 9-
Exh ibit K
Performance Measurements for which Tier 1 Payment is Per Measure:
For each performance measurement where Qwest fails to meet the standard
the payment to the CLEC shall be the dollar amount shown on the "per measure
portion of Table 2: Tier 1 Payments to CLEC.
Step by Step Calculation of Monthly Tier 2 Payments to State Funds
Application of the Critical Z-Value: Qwest shall identify the Tier 2 parity
performance measurements that measure the service provided by Qwest to all
CLECs for the month in question. The statistical testing procedures described in
section 4.0 shall be applied , except that a 1.645 critical z-value shall be used for Tier
parity measurements that have Tier 1 counterparts For Tier 2 parity
measurements that do not have Tier 1 counterparts, the statistical testing procedures
described section 4.0 shall be applied using the critical z-values identified in section
To determine if Tier 2 payments for performance measurements listed on
Attachment 1 shall be made in the current month, the following shall be determined.
For Tier 2 measurements that have Tier 1 counterparts it shall be determined
whether Qwest missed the performance standard for three consecutive months , or if
Qwest has rT!issed the standard in any two out of three consecutive months for the
month period and for an additional two consecutive months. For Tier 2
measurements that do not have Tier 1 counterparts, it shall be determined whether
Qwest missed the performance standard for single month. If any of these
conditions are met and there .are at least 10 data points for the measurement in each
month , a Tier 2 payment will be calculated and paid as described below and will
continue in each succeeding month until Qwest's performance meets the applicable
standard. For Tier 2 measures that have Tier 1 counterparts, the most recent three
months of nonconforming performance data that results in payment liability shall be
averaged to determine payment.
Performance Measurements for which Tier 2 Payment is Per Occurrence:
Performance Measurements that are Averages or Means:
1 Step 1: The monthly average or the mean for each performance
measurement that would yield the critical z-value for each month shall be calculated.
The same denominator as the one used in calculating the z-statistic for the
measurement shall be used. (For benchmark measurements, the benchmark value
shall be used.
2 Step 2: The percentage difference between the actual averages and the
calculated averages for the relevant month(s) shall be calculated . The calculation
for parity measurements is % diff = (actual average - calculated average)/calculated
Qwest Idaho SGAT Third Revised , Fifth Amended Exhibit K, November 30 2004 - 10-
Exhibit K
average. The percent difference shall be capped at a maximum of 1000/0. In all
calculations of percent differences in section 8.0 and section 9., the calculated
percent difference is capped at 1000/0.
3 Step 3: For each performance measurement, the total number of data points
for the relevant month(s) shall be multiplied by the percentage calculated in the
previous step. The amount (average amount, if more than one month) (rounded to
the nearest integer) is then multiplied by the result of the per occurrence dollar
amount taken from the Tier 2 Payment Table to determine the payment to the State
for each non-conforming performance measurement.
Performance Measurements that are Percentages:
Step 1: For each performance measurement , the monthly percentage that
would yield the critical z-value for each month shall be calculated. The same
denominator as the one used in calculating the z-statistic for the measurement shall
be used. (For benchmark measurements , the benchmark value shall be used.
2 Step 2: The difference between the actual percentages and the calculated
percentages for the relevant month(s) shall be calculated. The calculation for parity
measurement is diff = (CLEC result - calculated percentage). This formula shall be
applicable where a high value is indicative of poor performance. The formula shall be
reversed where high performance is indicative of good performance.
3 Step 3: For each performance measurement, the total number of data points
for the relevant month(s) shall be multiplied by the difference in percentage
calculated in the previous step. The amount (average amount, if more than one
month)(rounded to the nearest integer) is then multiplied by the result of the per
occurrence dollar amounts taken from the Tier 2 Payment Table to determine the
payment to the State.
Performance Measurements that are Ratios or Proportions:
Step 1: For ~ach performance measurement, the ratio that would yield the
critical z-value for each month shall be calculated. The same denominator as the
one used in calculating the z-statistic for the measurement shall be used. (For
benchmark measurements, the benchmark value shall be used.
1 Step 2: The difference between the actual rate for the CLEC and the
calculated rate for the relevant month(s) shall be calculated. The calculation is: diff =
(CLEC rate calculated rate). This formula shall apply where a high value is
indicative of poor performance. The formula shall be reversed where high
performance is indicative of good performance.
2 Step 3: For each performance measurement, the total number of data points
shall be multiplied by the difference calculated in the previous step for each month.
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30 2004 - 11-
Exhibit K
The amount (average amount, if more than one month)(rounded to the nearest
integer) is then multiplied by the result of the per occurrence dollar amounts taken
from the Tier 2 Payment Table to determine the payment to the State.
Performance Measurements for which Tier 2 Payment is Per Measure:
For each performance measurement where Qwest fails to meet the standard
the payment to the State Fund shall be the dollar amount shown on the "per
measure" portion of the Tier 2 Payment Table.
10.Low Volume, Developing Markets
10.For certain qualifying performance standards if the aggregate monthly
volumes of CLECs participating in the PAP are more than 10, but less than 100,
Qwest will make Tier 1 payments to CLECs for failure to meet the parity or
benchmark standard for the qualifying performance sub-measurements. The
qualifying sub-measurements are the UNE-P (POTS), megabit resale, and ADSL
qualified loop product disaggregation of OP-, OP-, OP-, MR-, MR-, MR-, and
MR-8. If the aggregate monthly CLEC volume is greater than 100, the provisions of
this section shall not apply to the qualifying performance sub-measurement.
10.The determination of whether Qwest has met the parity or benchmark
standards will be made using aggregate volumes of CLECs participating in the PAP.
In the event Qwest does not meet the applicable performance standards , a total
payment to affected CLECs will be determined in accordance with the high , medium
low designation for each performance measurement (see Attachment 1) and as
described in section 8., except that CLEC aggregate volumes will be used. In the
event the calculated total payment amount to CLECs is less than $5 000 , a minimum
payment of $5 000 shall be made. The resulting total payment amount to CLECs will
be apportioned to the affected CLECs based upon each CLEC's relative share of the
number of total service misses.
10.At the six (6)-month reviews , Qwest will consider adding to the above list of
qualifying performance sub-measurements new products disaggregation
representing new modes of CLEC entry into developing markets.
11.Payment
11.Payments to CLEC, the State , or the Special Fund shall be made one month
following the due date' of the performance measurement report for the month for
which payment is being made. Qwest will pay interest on any late payment and
underpayment at the prime rate as reported in the Wall Street Journal. On any
overpayment Qwest is allowed to offset future payments by the amount of the
overpayment plus interest at the prime rate.
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30 2004 - 12-
Exhibit K
11.Payment to CLEC shall be made via bill credits. Bill credits shall be identified
on a summary format substantially similar to that distributed as a prototype to the
CLECs and the Commissions. To the extent that a monthly payment owed to CLEC
under this PAP exceeds the amount owed to Qwest by CLEC on a monthly bill
Qwest will issue a check or wire transfer to CLEC in the amount of the overage.
Payment to the State shall be made via check or wire transfer.
11.Special Fund shall be created for the purpose of payment of an
independent auditor and audit costs as specified in section 15.and payment of
other expenses incurred by the participating Commissions in the regional
administration of the PAP.
11.1 Qwest shall establish the Special Fund as an interest bearing escrow account
upon the first FCC section 271 approval of the PAP applicable to a participating state
Commission. Qwest shall be authorized to withhold and deposit into the Special
Fund one-half of all Tier 2 payments. The cost of the escrow account will be paid
for from account funds.
11.2 Commissions participating in the Special Fund shall appoint a person
designated to administer and authorize disbursement of funds. All claims against the
fund shall be presented to the Commissions' designates and shall be the
responsibility of the participating Commissions.
11.3 Qwest shall advance funds to meet initial claims against the Special Fund to
the extent Tier 2 contributions are insufficient. Such funds shall not exceed $500 000
and shall be reduced appropriately in the event that at least six states in which the
QPAP is in effect do not agree to participate in the Special Fund. Upon a
determination by the participating Commissions that the Special Fund has become
self-sustaining or is no longer required Qwest shall be allowed to recover any such
advances plus interest at the rate that the escrow account would have earned.
11.4 Upon the execution of a memorandum of understanding with the Idaho
Commission Qwest shall establish an Idaho Discretionary Fund as a separate
interest bearing escrow account. Qwest shall deposit into the Discretionary Fund the
remaining balance of Tier 2 payments after disbursement of Tier 2 payments to the
Special Fund pursuant to section 13.1. The Commission shall appoint a person
designated to administer and authorize disbursements of funds from the
Discretionary Fund. Disbursements from the Discretionary Fund shall be limited to
competitively neutral Idaho telecommunications initiatives. The costs of the
Discretionary Fund will paid for from the account's funds.
12.Cap on Tier 1 and Tier 2 Payments
12.There shall be a cap on the total payments made by Qwest for a 12 month
period beginning with the effective date of the PAP for the State of Idaho. The
Qwest Idaho SGA T Third Revised, Fifth Amended Exhibit K, November 30, 2004 - 13-
Exhibit K
annual cap for the State of Idaho shall be 360/0 of ARMIS Net Return , recalculated
each year based upon the prior year Idaho ARMIS results , subject to any
applicable adjustment permitted pursuant to section 12.2. Qwest shall submit to the
Commission the calculation of each year s cap no later than 30 days after submission
of ARMIS results to the FCC. CLEC agrees that this amount constitutes a maximum
annual cap that shall apply to the aggregate total of Tier liquidated damages
including any such damages paid pursuant to this Agreement, any other
interconnection agreement , or any other payments made for the same underlying
activity or omission under any other contract, order or rule and Tier 2 assessments or
payments made by Qwest for the same underlying activity or omission under any
other contract, order or rule.
12.The 360/0 annual cap may be increased to 440/0 or decreased to 300/0 of
ARMIS Net Return as follows:
12.1 An increase in the cap of a maximum of 4 percentage points at anyone time
(Le., first to 40 percent) shall occur upon order by the Commission if the cap has
been exceeded for any consecutive period of 24 months by that same 4 percent or
more , provided that: (a) the Commission has determined that the preponderance ofthe evidence shows Qwest could have remained beneath the cap through
reasonable and prudent effort , and (b) the Commission has made that determination
after having available to it on the record the results of audits and root cause
analyses, and provided an opportunity for Qwest to be heard.
12.2 A decrease in the cap of a maximum of 4 percentage points at anyone time
shall occur upon order by the Commission after performance for any consecutive
period of 24 months in which total payments are 8 or more percentage points below
the cap ' amount, provided that: (a) the Commission has determined that the
preponderance of the evidence shows the performance results underlying those
payments results from an adequate Qwest commitment to meeting its responsibilities
to provide adequate wholesale service and to keeping open its local markets and (b)
the Commission shall have made that determination after providing all interested
, parties an opportunity to be heard.
12.3 The provisions of 12.1 and 12.2 shall be in effect for the next 24 month
period commencing with the end of the 24 month period upon which the
Commission s order is based.
12.If the annual cap is reached , each CLEC shall , as of the end of the year, be
entitled to receive the same percentage of its total calculated Tier 1 payments.
order to preserve the operation of the annual cap, the percentage equalization shall
take place as follows:
12.1 The amount by which any month'total year-to-date Tier 1 and Tier 2
payments exceeds the cumulative monthly cap (defined as 1/12th of the annual cap
times the cumulative number of months to date) shall be calculated and apportioned
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30 2004 - 14-
Exhibit K
between Tier 1 and Tier 2 according to the percentage that each bore of total
payments for the year-to-date. The Tier 1 apportionment resulting of this calculation
shall be known as the "Tracking Account."
12.2 The Tier 1 apportionment shall be debited against the monthly payment due
to each CLEC, by applying to the year-to-date payments received by each the
percentage necessary to generate the required total Tier 1 amount.
12.3 The Tracking Amount shall be apportioned among all CLECs so as to provide
each with payments equal in percentage of its total year to date Tier 1 paymentcalculations.
12.4 This calculation shall take place in the first month that the year-to-date total
Tier 1 and Tier 2 payments are expected to exceed the cumulative monthly cap and
for each month of that year thereafter. Qwest shall recover any debited amounts by
reducing payments due to any CLEC for that month and any succeeding months, asnecessary.
13.Limitations
13.The PAP shall not become available in the State unless and until Qwest
receives effective section 271 authority from the FCC for that State.
13.Qwest will not be liable for Tier 1 payments to CLEC in an FCC approved
state until the Commission has approved an interconnection agreement between
CLEC and Qwest which adopts the provisions of this PAP.
13.Qwest shall not be obligated to make Tier 1 or Tier 2 payments for any
measurement if and to the extent that non-conformance for that measurement was
the result of any of the following: 1) with respect to performance measurements with
a benchmark standard , a Force Majeure event as defined in section 5.7 of the SGAT.
Qwest will provide notice of the occurrence of a Force Majeure event within 72 hours
of the time Qwest learns of the event or within a reasonable time frame that Qwest
should have learned of it; 2) an act or omission by a CLEC that is contrary to any of
its obligations under its interconnection agreement with Qwest or under federal or
state law; an act or omission by CLEC that is in bad faith. Examples of bad faith
conduct include, but are not limited to: unreasonably holding service orders and/or
applications
, "
dumping" orders or applications in unreasonably large batches
dumping" orders or applications at or near the close of a business day, on a Friday
evening or prior to a holiday, and failing to provide timely forecasts to Qwest for
services or facilities when such forecasts are explicitly required by the SGA T;
problems associated with third-party systems or equipment, which could not have
been avoided by Qwest in the exercise of reasonable diligence provided, however
that this third party exclusion will not be raised in the State more than three times
within a calendar year. If a Force Majeure event or other excusing event recognized
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30 , 2004 - 15-
Exhibit K
in this section merely suspends Qwest's ability to .timely perform an activity subject to
a performance measurement that is an interval measure, the applicable time frame in
which Qwest's compliance with the parity or benchmark criterion is measured will be
extended on an hour-for-hour or day-for-day basis , as applicable, equal to the
duration of the excusing event.
13.1 Qwest will not be excused from Tier 1 or Tier 2 payments for any reason
except as described in Section 13.0. Qwest will have the burden of demonstrating
that its non-conformance with the performance measurement was excused on one of
the grounds described in this PAP. A party may petition the Commission to require
Qwest to deposit disputed payments into an escrow account when the requesting
party can show cause, such as grounds provided in the Uniform Commercial Code
for cases of commercial uncertainty.
13.2 Notwithstanding any other provision of section 13 of this QP AP , Qwest shall
not be excused for failing to provide such performance that Qwest could reasonably
have been expected to deliver assuming that it had designed, implemented, staffed
provisioned, and otherwise provided for resources reasonably required to meet
foreseeable volumes and patterns of demands upon its resources by CLECs.
13.Qwest's agreement to implement these enforcement terms, and specifically
its agreement to pay any "liquidated damages" or "assessments" hereunder, will not
be considered as an admission against interest or an admission of liability in any
legal , regulatory, or other proceeding relating in whole or in part to the same
performance.
13.CLEC may not use: 1) the existence of this enforcement plan; or 2) Qwest's
payment of Tier -1 "liquidated damages" or Tier 2 "assessments" as evidence that
Qwest has discriminated in the provision of any facilities or services under Sections
251 or 252, or has violated any state or federal law or regulation. Qwest's conduct
underlying its performance measures however are not made inadmissible by its
terms.
13.2 By accepting this performance remedy plan CLEC agrees that Qwest's
performance with respect to this remedy plan may not be used as an admission of
liability or culpability for a violation of any state or federal law or regulation. (Nothing
herein is intended to preclude Qwest from introducing evidence of any Tier
liquidated damages" under these provisions for the purpose of offsetting the
payment against any other damages or payments a CLEC might recover.The terms
of this paragraph do not apply to any proceeding before the Commission or the FCC
to determine whether Qwest has met or continues to meet the requirements of
section 271 of the Act.
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30,2004 - 16-
Exhibit K
13.By incorporating these liquidated damages terms into the PAP , Qwest and
CLEC accepting this PAP agree that proof of damages from any non-conforming
performance measurement would be difficult to ascertain and , therefore , liquidated
damages are a reasonable approximation of any contractual damages that may
result from a non-conforming performance measurement. Qwest and CLEC further
agree that Tier 1 payments made pursuant to this PAP are not intended to be a
penalty. The application of the assessments and damages provided for herein is not
intended to foreclose other noncontractual legal and non-contractual regulatory
claims and remedies that may be available to a CLEC.
13.This PAP cohtains a comprehensive set of performance measurements,
, statistical methodologies, and payment mechanisms that are designed to function
together, and only together, as an integrated whole. To elect the PAP, CLEC must
adopt the PAP in its entirety, in its interconnection agreement with Qwest. By
electing remedies under the PAP , CLEC waives any causes of action based on a
contractual theory of liability, and any right of recovery under any other theory of
. liability (including but not limited to a state utility regulatory commission or Federal
Communications Commission rule or order) to the extent such recovery is related to
harm compensable under a contractual theory of liability (even though it is sought
through a noncontractual claim , theory, or cause of action).
13.
If for any reason a CLEC agreeing to this QPAP is awarded compensation for the
same harm for which it received payment under the QPAP , the court or other
adjudicatory body hearing such a claim may offset the damages resulting from such
claim against payments made for the same harm.
13.Qwest shall not be liable for both Tier 2 payments under the PAP and
assessments, sanctions , or other payments for the same underlying activity or
omission pursuant to any Commission order or service quality rules.
13.Whenever a Qwest Tier 1 payment to an individual CLEC exceeds $3 million
in a month, Qwest may commence a proceeding to demonstrate why it should not be
required to pay any amount in excess of the $3 million. Upon timely commencement
of the proceeding, Qwest must pay the balance of payments owed in excess of $3
million into escrow, to be held by a third-party pending the outcome of the
proceeding. To invoke these escrow provisions , Qwest must file, not later than the
due date of the Tier 1 payments, its application. Qwest will have the burden of proof
to demonstrate why, under the circumstances, it would be unjust to require it to make
the payments in excess of $3 million. If Qwest reports non-conforming performance
to CLEC for three consecutive months on 200/0 or more of the measurements
reported to CLEC and has incurred no more than $1 million in liability to CLEC , then
Qwest Idaho SGA T Third Revised, Fifth Amended Exhibit K, November 30, 2004 - 17-
Exhibit K
CLEC may commence a similar proceeding. In any such proceeding CLEC will have
the burden of proof to demonstrate why, under the circumstances, justice requires
Qwest to make payments in excess of the amount calculated pursuant to the terms of
the PAP. The disputes identified in this section shall be resolved in a manner
specified in the Dispute Resolution section of the SGA T with the CLEC.
14.0' Reporting
14.Upon receiving effective section 271 authority from the FCC for a state,
Qwest will provide CLEC that has an approved interconnection agreement with
Qwest, a monthly report of Qwest's performance for the measurements identified in
the PAP by the last day of the month following the month for which performance
results . are being reported. However Qwest shall have a grace period of five
business days , so that Qwest shall not be deemed out of compliance with its
reporting obligations before the expiration of the five business day grace period.
Qwest will collect, analyze , and report performance data for the measurements listed
on Attachment 1 in accordance with the most recent version of the PIDs. Upon
CLEC's request, data files of the CLEC's raw data, or any subset thereof, will be
transmitted , without charge, to CLEC in a mutually acceptable format, protocol , and
transmission medium.
14.Qwest will also provide the Commission a monthly report of aggregate CLEC
performance results pursuant to the PAP by the last day of the month following the
month for which performance results are being reported. However , Qwest shall have
a grace period of five business days, so that Qwest shall not be deemed out of
compliance with its reporting obligations before the expiration of the five business day
grace period. Individual CLEC reports of participating CLECs will also be available to
the Commission upon request. By accepting this PAP, CLEC consents to Qwest
providing CLEC's report and raw data to the State Commission. Pursuant to the
terms of an order of the Commission , Qwest may provide qLEC-specific data that
relates to the PAP, provided that Qwest shall first initiate any procedures necessary
to protect the confidentiality and to prevent the public release of the information
pending any applicable Commission procedures and further provided that Qwest
provides such notice as the Commission directs to the CLEC involved , in order to
allow it to prosecute such procedures to their completion. Data files of participating
CLEC raw data, or any subset thereof, will be transmitted , without charge, to the
Commission in a mutually acceptable format, protocol , and transmission form.
14.In the event Qwest does not provide CLEC and the Commission with a
monthly report by the last day of the month following the month for which
performance results are being reported , Qwest will pay to the State a total of $500 for
each business day for which performance reports are 6 to 10 business days past the
due date; $1 000 for each business day for which performance reports are 11 to 15
Qwest Idaho SGA T Third Revised , Fifth Amended Exhibit K, November 30 , 2004 - 18-
Exhibit K
business days past the due date; and $2 000 for each business day for which
performance results are more than 15 business days past the due date. If reports
are on time but are missing performance results , Qwest will pay to the State a total of
one-fifth of the late report amount for each missing performance measurement
subject to a cap of the full late report amount. These amounts represent the total
payments for omitting performance measurements or missing any report deadlines
rather than a payment per report. Prior to the date of a payment for late reports
Qwest may file a request for a waiver of the payment, which states the reasons for
the waiveL The Commission may grant the waiver, deny the waiver, or provide any
other relief that may be appropriate.
14.To the extent that Qwest recalculates payments made under this PAP, such
recalculation shall be limited to the preceding three years (measured from the later of
the provision of a monthly credit statement or payment due date). Qwest shall retain
sufficient records to demonstrate fully the basis for its calculations for long enough to
meet this potential recalculation obligation. CLEC verification or recalculation efforts
should be made reasonably contemporaneously with Qwest measurements. In any
event, Qwest shall maintain the records in a readily useable format for one year. For
the remaining two years, the records may be retained in archived format. Any
payment adjustments shall be subject to the interest rate provisions of section 11.
15.Integrated Audit Program/Investigations of Performance Results
15.Audits of the PAP shall be conducted in a two-year cycle under the auspices
of the participating Commissions in accordance with a detailed audit plan developed
by an independent auditor retained for a two-year period. The participating
Commissions shall select the independent auditor with input from Qwest and CLECs.
15.1 The participating Commissions shall form an oversight committee of
Commissioners who will choose the independent auditor and approve the audit plan.
Any disputes as to the choice of auditor or the scope of the audit shall be resolved
through a vote of the chairs of the participating commissions pursuant to Section
15.
15.2 The audit plan shall be conducted over two years. The audit plan will identify
the specific performance measurements to be audited, the specific tests to
. conducted , and the entity to conduct them. The audit plan will give priority to auditing
the higher risk areas identified in the ass report. The two-year cycle will examine
risks likely to exist across that period and the past history of testing, in order to
determine what combination of high and more moderate areas of risk should be
examined during the two-year cycle.' The first year of a two-year cycle will
concentrate on areas most likely to require follow-up in the second year.
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30 2004 - 19-
Exhibit K
15.3 The audit plan shall be coordinated with other audit plans that may be
conducted by other state commissions so as to avoid duplication , shall not i"mpede
Qwest's ability to comply with the other provisions of the PAP and should be of a
nature and scope that can be conducted in accordance with the reasonable course of
Qwest's business operations.
15.4 Any "dispute arising out of the audit plan , the conduct of the audit, or audit
results shall be resolved by the oversight committee of Commissioners. Decisions
the oversight committee of Commissioners may be appealed to a committee of the
chairs of the participating Commissions.
15.Qwest may make management processes more accurate or more efficient to
perform without sacrificing accuracy. These changes are at Qwest's discretion but
will be reported to the independent auditor in quarterly meetings in which the auditor
may ask questions about changes made in the Qwest measurement regimen. The
meetings , which will be limited to Qwest and the independent auditor, will permit an
independent assessment of the materiality and propriety of any Qwest changes
including, where necessary, testing of the change details by the independent auditor.
The information gathered by the independent auditor may be the basis for reports bythe independent auditor to the participating Commissions and, where the
Commissions deem it appropriate, to other participants.
15.In the event of a disagreement between Qwest and CLEC as to any issue
regarding the accuracy or integrity of data collected, generated , and reported
pursuant to the PAP, Qwest and the CLEC shall first consult with one another and
attempt in good faith to resolve the issue. If an issue is not resolved within 45 days
after a request for consultation, CLEC and Qwest may, upon a demonstration of good
cause, (e., evidence of material errors or discrepancies) request an independent
audit to be conducted , at the initiating party s expense. The independent auditor will
assess the need for an -audit based upon whether there exists a material deficiency in
the data or whether there exists an issue not otherwise addressed by the audit plan
for the current cycle. The dispute resolution .provision of section 18.0 is available to
any party questioning the independent auditor s decision to conduct or not conduct a
CLEC requested audit and the audit findings, should such an audit be conducted. An
audit may not proceed until .dispute resolution is completed. Audit findings will
include: (a) general applicability of findings and conclusions (Le., relevance to
CLECs or jurisdictions other than the ones causing test initiation), (b) magnitude of
any payment adjustments required and, (c) whether cost responsibility should be
shifted based upon the materiality and clarity of any Qwest non-conformance with
measurement requirements (no pre-determined variance is appropriate, but should
be based on the auditor s professional judgment). CLEC may not request an audit of
data more than three years from the later of the provision of a monthly credit
statement or payment due date.
Qwest Idaho SGA T Third Revised, Fifth Amended Exhibit K, November 30 , 2004 - 20-
Exhibit K
15.Expenses for the audit of the PAP and any other related expenses , except
that which may be assigned under section 15., shall be paid first from the Tier 2
funds in the Special Fund. For Idaho, the remainder of the audit expenses will be
paid by Qwest.
15.Qwest will investigate any second consecutive Tier 2 miss to determine the
cause of the miss and to identify the action needed in order to meet the standard set
forth in the performance measurements. To the extent an investigation determines
that a CLEC was responsible in whole or in part for the Tier 2 misses, Qwest shall
receive credit against future Tier 2 payments in an amount equal to the Tier
payments that should not have been made. The relevant portion of subsequent Tier
2 payments will not be owed until any responsible CLEC problems are corrected. For
the purposes of this sub-section
, .
Tier 1 performance measurements that have not
been designated as Tier 2 will be aggregated and the aggregate results will be
investigated pursuant to the terms of this Agreement.
16.Reviews
16. 1 Every six (6) months, beginning six months after the effective date of section
271 approval by the FCC for the state of Idaho , Qwest, CLECs, or the Idaho Public
Utilities Commission may initiate a review of the performance measurements to
determine whether measurements should be added , deleted , or modified; whether
the applicable benchmark standards should be modified or replaced by parity
standards; and whether to move a classification of a measurement to High, Medium
or Low, Tier 1 or Tier 2. The criterion for reclassification of a measurement shall be
whether the actual volume of data points was less or greater than anticipated.
Criteria for review of performance measurements other than for possible
reclassification, shall be whether there exists an omission or failure to capture
intended performance, and whether there is duplication of another measurement. Any
disputes regarding adding, deleting, or modifying performance measurements shall
be resolved pursuant to a proceeding before the Commission and subject to judicial
review. No new performance measurements shall be added to this PAP that have
not been subject to observation as diagnostic measurements for a period of 6
months. Any changes made at the six-month review pursuant to this section shall
apply to and modify this agreement between Qwest and CLEC , subject to a stay,
modification or reversal upon appeal or judicial review.
16.Notwithstanding section 16., if any agreements on adding, modifying
or deleting performance measurements as permitted by section 16.1 are reached
between Qwest and CLECs participating in an industry Regional Oversight
Committee (ROC) PID administration forum, those agreements shall be incorporated
into the QPAP and modify the agreement between CLEC and Qwest at any time
those agreements are submitted to the Commission, whether before or after a six-
month review.
Qwest Idaho SGA T Third Revised , Fifth Amended Exhibit K, November 30, 2004 - 21-
Exhibit K
16.For the first twelve months that any changes made pursuant to paragraphs
16.1 or 16.1 are in effect, Qwest's liability for such changes shall be limited to 100
of the monthly payments that Qwest would have made absent the effect of such
changes as a whole. This provision shall be referred as "the 100/0 payment collar.
Such payment limitation shall be accomplished by factoring the payments resulting
from the changes to ensure that such payments remain within 100/0 of the payments
Qwest would have made absent such changes.
16.In the event that the Commission adds , modifies, or reclassifies a
performance measurement that has not been agreed upon in the ROC PID
administration forum process in 16., the 100/0 payment collar shall remain in effect
unless removed by the Commission pursuant to this section. If, after a minimum of 6
months of payments to a CLEC , Qwest's payments have been limited by the 100
payment collar to 800/0 or less of what the total payments would have been absent
the collar for the preceding 6-month period , the Commission may, upon motion by an
affected CLEC , conduct a record proceeding to determine whether the 100/0 payment
collar should be removed from any such performance measure. The Commission
can prospectively remove the 100/0 collar for Tier 1 payments to affected CLEC(s) for
any such performance measure upon a demonstration through a record proceeding
and a Commission determination that the total payments to the CLEC(s) under the
QPAP were inadequate to compensate CLEC(s) for actual harm incurred during the
same period and upon a determination that such change is otherwise necessary and
appropriate and in the public interest.
16.Two years after the effective date of the first FCC 271 approval of the PAP
the participating Commissions may conduct a joint review by a independent third
party to examine the continuing effectiveness of the PAP as a means of inducing
compliant performance. This review shall not be used to open the PAP generally to
amendment, but would serve to assist Commissions in determining existing
conditions and reporting to the FCC on the continuing adequacy of the PAP to serve
its intended functions. The expense of the reviews shall be paid from the Special
Fund.
16.Qwest will make the PAP available for CLEC interconnection agreements
until such time as Qwest eliminates its Section 272 affiliate. At that time, the
Commission and Qwest shall review the appropriateness of the PAP and whether its
continuation is necessary. However, in the event Qwest exits the interLA T A market
that State PAP shall be rescinded immediately.
17.Voluntary Performance Assurance Plan
This PAP represents Qwest's voluntary offer to provide performance assurance.
Nothing in the PAP or in any conclusion of non-conformance of Qwest's service
performance with the standards defined in the PAP shall be construed to be , of itselfnon-conformance with the Act.
Qwest Idaho SGA T Third Revised, Fifth Amended Exhibit K, November 30, 2004 - 22-
Exhibit K
18.Dispute Resolution
For the purpose of resolving disputes over the meaning of the provisions of the PAP
and how they should be applied , the dispute resolution provisions of the SGAT
section 5., shall apply whether the CLEC uses the SGA T in its entirety or elects to
make the PAP part of its interconnection agreements (Le., the unique dispute
resolution provisions of interconnection agreements should not apply).
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30 2004 - 23-
Exhibit K
Attachment 1: Tier 1 and Tier 2 Performance Measurements Subject to Per Occurrence
Payment
Performance Measurement Tier 1 Payments Tier 2 Payments
Low Med Low Med High
HiQh
GATEWAY
Timely Outage Resolution GA-
PRE-ORDER/ORDERS
LSR Rejection Notice Interval PO-
Firm Order Confirmations On Time PO-
Work Completion Notification Timeliness PO-
Billing Completion Notification Timeliness PO- 70
Jeopardy Notice Interval PO-
Timely Jeopardy Notices PO-
Release Notifications PO-
(Expanded)Manual Service Order PO-20c
Accuracy
ORDERING AND PROVISIONING
Installation Commitments Met OP-
Installation Intervals OP-
New Service Quality OP-
Delayed Days OP-
Number Portability Timeliness OP-
Coordinated Cuts On Time -Unbundled OP-13a
Loops
LNP Disconnect Timeliness OP-
MAINTENANCE AND REPAIR
Out of Service Cleared within 24 hours MR-
All Troubles Cleared within 4 hours MR-
Mean time to Restore MR-
Repair Repeat Report Rate MR-
Trouble Rate MR-
LNP Trouble Reports Cleared within 24 MR-
Hours
LNP Trouble Reports-Mean Time MR-
Restore
BILLING
Time to Provide Recorded Usage Records BI-
Billing Accuracy-Adjustments for Errors BI-
Billing Completeness BI-
NETWORK PERFORMANCE
Trunk Blocking N~1
NXX Code Activation NP-
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30,2004 - 24-
Exhibit K
a. PO-3 is limited to PO-3a-, PO-3b-, and PO-3c.
b. PO-6 is included with PO-7 as two "families:" PO-6a/PO-7a and PO-6b/PO-7b. Measurements within
each family share a single payment opportunity with only the measurements with the highest payment beingpaid.
c. Low Volume Exception: In lieu of Section 2.4 for PO-, where cLEc order volumes for a given month
are less than 17 in Phase 1 , less than 13 in Phase 2, and less than 10 in Phase 3 and subsequent phases
a benchmark standard of "no more than one order with PO-20 errors" is applied. Under this provision, no
payment applies if there is only one order with errors.
Stabilization Period: For each phase beginning with Phase 1 , there will be no more than a 3-month
measurement stabilization period for all fields introduced in that phase. Performance results that include all
such fields are not subject to payments during the measurement stabilization period.
d. OP-4 is included with OP-6 as five "families:" OP-4aIOP-, OP-4b/OP-, OP-4c/OP-, OP-4d/OP-
, and OP-4e/OP-5. Measurements within each family share a single payment opportunity with only the
measurement with the highest payment being paid.
e. Low volume treatment for OP-5b will apply if both (1) the cLEc volume of orders is less than or equal to
29 (the denominator of OP-5t) and (2) the number of orders with trouble in OP-5a is no more than one.
When these two conditions are met, a standard of no more than one order with new service trouble applies.
f. For purposes of the PAP, OP-6a and OP-6b will be combined and treated as one. The combined OP-
breaks down to OP-1 (within MSA), OP-2 (outside MSA), OP-3 (no dispatch), OP-4 (zone 1), and
OP-5 (zone 2).
g. Applicable only to xDSL-capable loops.
Qwest Idaho SGAT Third Revised , Fifth Amended Exhibit K, November 30,2004 - 25-
Exhibit K
Billing
Attachment 2: Performance Measurements Subject to Per Measurement Caps
Time to Provide Recorded Usage Records - BI-1 (Tier 1/Tier 2)
Billing Accuracy - Adjustments for Errors - BI-(Tier 1)
Billing Completeness - BI-(Tier 1/Tier 2)
Qwest Idaho SGAT Third Revised, Fifth Amended Exhibit K, November 30,2004 - 26-
EXHIBIT L
ADVICE ADOPTION LETTER
Manager Interconnection
Qwest
1801 California, Room 2410
Denver, CO 80202
Re: Qwest Corporation ("Qwest") New Product:
Dear Sir or Madam:
By its signature below
, ("
CLEC") hereby agrees to
be bound by the rates, terms and conditions that Qwest has offered and provided on its
Web Site for the New Qwest Product identified above as an amendment to its
Interconnection Agreement with Qwest for the state(s) of
CLEC certifies that the rates, terms, and conditions contained on Attachment A
(attached hereto) are the rates, terms and conditions contained on Qwest's web site that
have been provided for the New Product identified above.
CLEC
By:
Title:
Date:
Qwest CO, lA, ID, MN , MT, ND, NE, NM , OR, SD, UT, WA, WY, October 4 2004
EXHIBIT M
INTERIM ADVICE ADOPTION LETTER
Manager Interconnection
Qwest
1801 California, Room 2410
Denver, CO 80202
Re: Qwest Corporation ("Qwest") New Product:
Dear Sir or Madam:
By its signature below, ("CLEC") hereby agrees to
be bound by the rates , terms and conditions that Qwest has offered and provided on its
Web Site for the New Qwest Product identified above as an interim amendment to its
Interconnection Agreement with Qwest for the state(s) of
CLEC certifies that the rates , terms, and conditions contained on Attachment A
(attached hereto) are the rates, terms and conditions contained on Qwest's web site that
have been provided for the New Product identified above.
Qwest acknowledges that CLEC believes that the rates, terms and conditions for
the Qwest New Product should be altered and that CLEC enters into this Interim Advice
Adoption Letter with the express intention to renegotiate the rates, terms and conditions
associated with the Qwest New Product pursuant to the terms of Section 1.2 of-the
SGAT. CLEC enters into this Interim Advice Adoption Letter without prejudice to or
waiver of any of its rights to challenge the terms and conditions of this Interim Advice
Adoption Letter under the Interconnection Agreement, the Act, FCC or state Commission
rules.
CLEC
By:
Title:
Date:
Exhibit M-Qwest Fourteen State Template Version 1.8, May 11 2005