20021206Qwest to Staff Supp Response.pdf

RECElVED @ '
FiLED OMaryS.Hobson (ISB#2142)
Curtis D.McKenzie (ISB#5591 2W2 DEC -6 PM O 25
Stoel Rives LLP
101South CapitolBoulevard-Suite1900 diiL liiS ClilliiŠSi0NBoise,ID 83702
Telephone:[phone]
Facsimile:[phone]
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT APPLICATION CASE NO.USW-T-99-3OFUSWESTCOMMUNICATIONS,INC.AND
COVAD COMMUNICATIONS COMPANY FOR
APPROVAL OF AN INTERCONNECTION
AGREEMENT FOR THE STATE OF IDAHO
PURSUANT TO 47 U.S.C.§252(e)
IN THE MATTER OF THE JOINT CASE NO.QWE-T-00-7APPLICATIONOFQWESTCORPORATION
AND MCLEODUSA TELECOMMUNICATIONS
SERVICES,INC.FOR APPROVAL OF THE
AMENDMENT TO AN INTERCONNECTION
AGREEMENT FOR THE STATE OF IDAHO
PURSUANT TO 47 U.S.C.§252(e)
IN THE MATTER OF THE JOINT CASE NO.QWE-T-00-13APPLICATIONOFQWESTCORPORATION
AND ESCHELON TELECOM,INC.FOR
APPROVAL OF AN AMENDMENT TO AN
INTERCONNECTION AGREEMENT FOR THE
STATE OF IDAHO PURSUANTTO 47 U.S.C.§252(e)
QWEST CORPORATION'S SUPPLEMENT TO RESPONSES TO
FIRST PRODUCTION REQUESTOF THE COMMISSION STAFF
Qwest Corporation ("Qwest")supplements it response to Request for Production Number
5 by attaching as Exhibit A the Covad "Facility Decommissioning Agreement"dated January 3,
2002.
QWEST CORPORATION'S SUPPLEMENTTO RESPONSES TO FIRST PRODUCTIONREQUESTOFTHECOMMISSIONSTAFF--Page 1
Boise-148096.1 0029164-00016
Respectfully submitted this 6th day of December,2002.
Qw rpor
Cu is D.M e ie
Stoel Rives LL
Attorneys for Qwest
QWEST CORPORATION'S SUPPLEMENT TO RESPONSES TO FIRST PRODUCTIONREQUESTOFTHECOMMISSIONSTAFF-Page 2
Boise-148096.1 0029164-00016
CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of December,2002,I servedthe foregoing QWEST
CORPORATION'S SUPPLEMENT TO RESPONSES TO FIRST PRODUCTIONREQUESTOFTHECOMMISSIONSTAFFuponallpartiesofrecordinthismatteras follows:
Ms.Jean Jewell,Secretary X Hand Delivery
Idaho Public Utilities Commission U.S.Mail
472 West Washington Street Ovemight Delivery
P.O.Box 83720 Facsimile
Boise,Idaho 83720-0074
John Hammond X Hand Delivery
Idaho Public Utilities Commission U.S.Mail
472 West Washington Street Ovemight Delivery
P.O.Box 83720 Facsimile
Boise,Idaho 83720-0074
Lauraine Harding Hand DeliverySeniorManager,Interconnect Negotiation X U.S.MailMcLeodUSAOvemight Delivery
6400 C Street SW,Box 3177 Facsimile
Cedar Rapids,IA 52406-3177
[e-mail]
Dennis Ahlers,Senior Attorney Hand Delivery
Eschelon Telecom,Inc.X U.S.Mail730SecondAvenueSouth-Suite 1200 Ovemight DeliveryMinneapolis,MN 55402 Facsimile
Telephone:[phone]
Facsimile:[phone]
Dhruv Khanna Hand Delivery
Covad Communications Company X U.S.Mail3420CentralExpressWayOvernight Delivery
Santa Clara,CA 95051 Facsimile
Telephone:[phone]
[e-mail]
Megan Dobernack Hand DeliveryCovadCommunicationsCompanyXU.S.Mail
7901 Lowry Boulevard Overnight DeliveryDenver,Co 80230 Facsimile
Telephone [phone]
[e-mail]
rtis D.cKenzie
Stoel Rive LP
QWEST CORPORATION'S SUPPLEMENT TO RESPONSES TO FIRST PRODUCTIONREQUESTOFTHECOMMISSIONSTAFF-Page3
Boise-148096.1 0029164-00016
CONFIDENTIAL ge PROPRIETARY EXECUTIONAGREEMENT
FACILITYDEÇOMl\¶I$SIONINGAGREEWNT
THIS FACILITYDECOMMISSIONING AGREEMENT ("Agreement"),is made and entered
into as of this _3rd day of January.2002 (the "Effective Date").between Qwest Corporation
("Qwest")and Covad Communications Company ("Covad")(Qwest and Covad being sometimes
hereinafterrefened to collectively as the "Parties"and individuallyas a 'Tarty").
RECITALS
WIIEREAS,Qwest,a local incumbent exchange provider,and Covad,a competitive local exchangeprovider,are parties to a certain intercormection agreement (the "Interconnection Agreement"),executed
pursuant to sections 251 and 252 of the Federal TelecommunicationsAct of 1996 (the "Act);and
WHEREAS,pursuunt to the InterconnectionAgreement,Covad has purchased physical and/or virtualcollocationandanc.illary services from Qwest.Covad now desites to return to Qwest the collocation
sites identified in Exhibit A (the "Facilities")attached hereto and incorporated by reference,and
WHEREAS,the Panies volumarily enter into this Agreernent as a final tesolution of disputes arising
between the Parties regarding the terms and conditions of Covad's return of the Facilities and thefinancialoblignt¡onsof each Party with respect to each of the returned Facilities under the ImerconnectionAgreement.
AGREEMENT '
NOW,THER£FORE,in consideration of the foregoing and other good and valuable consideration,the
receiptand sufficicocy of which are bereby acknowledged,the Parties agree as fonows:
1.Facility Decommissionint.In consideration for the Release and Waiver set forth below,Qwest
hereby agress to dccommission the Facilities and to waive all fees and charges associated therewith.
2.;Credit/Reimbursement.In the event that Covadwas previouslyinvoiced and paid Qwestfor
the deconunissioningquotes and the monthly recurring charges past the date of acceptance of the valid
decommissioningapplication,Qwest shall make a one·àne credit to Covadfor the suta of any non-
recurring charges paid for the decommissioningand any monthly recurringcharges paid by Covadfor the
temtnedFacilitics (1)between the payment date ofthe decommissioningquotenon-«eentringcharge and
the date the serviceorderwas wrinen to discondnuemomhly recurring bining for each of the remmed
Facilitics:and (2)between the date Qwest accepted and validaredthe decommissioningmquest and the
paymentdate of the decommissioningquote non-recurringcharge.This credit amount will be applied,
first,to sadsfy any ontstandingbalances owed by Covadto Qwest,if any.If a credit balance remains.
Qwest shall providea one-time credit to Covadto be used to offset furareamounts payable to Qwest
pursuant to other agreements betweenthe Parties.
3.Release utd_Welver.
(a)For valuableconsiderationas identified in Sections 1 and 2 above,the Pardes bereby
release and forever discharge the otherand their respcetiveassociates,owners,stockholders.
predecessors.successors,agents,directors,officers.partners,ernployees,representatives,employees of
affiliates,employees of patents,employees of subsidiaries.affiliates,parents,subsidiaries,insurance
carriers.bondingcornpanies and attorneys,from any and all manner of action or actions,causes or causes
of action,in law,under statute,or in equity,suits.appeals.petidons.debts.liens.comracts,agreements.
promises,liability,claims.affirrnative defenses,offsets,demands.damages.losses.costs,claims for
itstitution,and expenses,of any nature whatsoever.fixed or contingent,known or unimown.past and
present asserted or that could have been asserted or could be asserted in any way relating to or arisingout
of the decommissioningof the retamed Facilities or this Agreement(the "Release and Waiver").The
i
EXHIBIT A
s
Parties hereby covenant and warrant that they have not assigned or transfenedto any person any claim,or
portion of any claim which is released or discharged by this Agreement.
(b)As part of the Release and Waiverdescribed in the previousparagraph.Covadexpressly
agrecs to relinquish foreverall rights and interest whatsoever in the returned Facilities and to remove aR
property it owns from the Facilitics within thiny (30)days of the Effective Date of this .-igreemem at
Covad's own expense.Notwithstandingthe above,Covadraay at any time submit an application for
coDocation through Qwest's standard orderingprocess in any of the central offices in which the returnedFacilitiesarelocated.
(c)In the event Covad fails to remove its equipment from the Facilities as providedabove,.Qwest may,without notice or demand and in addition to any otherright or remedy availableat law or
equity,remove an of Covad'sequipment from the Facility and store the same at Covad's expense.Covad
capressly waivesany damages occasioned by such removal.Any equipmemso removed will be retumedtoCovaduponpaymentinfullofallstoragecostswithinforty-five (45)days of the removaloftheequipment,If within forty-five (45)days foDowingsuch equipment removal.Covadhas not requested the
return of its equipmentand paid any sums owed,then Qwest may exercise all rights of ownership over
such equipmentincluding the right to sell same and retain possession of any safe proceeds.Qwest's
exercise of any rernedies provided for in this Section 3 shall be without prejudice to any other remedies -
Qwest snay have provided for herein or by law.
4.Confjdentiality,
(a)The Parties expressly agree that they will keep die substance of the negotiations and orconditionsoftheseulementandthetermsorsubstanceofthisAgreementstrictlycordidemial.The
Parties further agree that they will not communicate (orally or in writing)or in any way disclose the
substance of negotiations and/or condidons of the settlement and the terms or substance of thisAgreementtoanypárson,judicial or administrative agency or body,business,entity or association oranyoneelseforanyreasonwhatsoever,without the prior express written conssut of the other Party unlesscompelledtodosobylaw.It is expressly agreed that this confidentiality provision is an essential elementofthisAgreement.The Parties agree that this Agreernent,and the negotiations and all matters related to
the Agreementshall be subject to the Rule 408 of the Rules of Evidence,at the federal and state level.The Parties fwther agree that in the event of a breach of the confidentiality provisions of this Agreement,
the harm suffered by the injured Parry would not be compensable by monetary damages alone and,accordingly,that the injured Party shall,in addition to other availabic legal or equitable remedies,beentitledtoseekaninjunctionagainstsuchbreach.
(b)In the event either Pany has a legal obligation which requires disclosureof the terms andconditionsofthisAgreentent.the Party having the obligation shall immediatelynotify the otherParty inwritingofthenatute,scope and source of such obligation so as to enable the other Party,at its option,to
take such action as may be legally permissible so as to protect the confidentiality provided for in thisAgreement.The party from whom disclosure is required shau provide as much advance notice to theotherPartyasisreasonablypossible.
5.Bindlar Arbitretion.Any claim,comroversy or dispute between the Parries arising out of this
Agreement,shaH be resolved by private and confidential arbitration conducted by a single arbitrator
engaged in the practice of law,under the then current rules of the American ArbitrationAssociation.The
Federal Arbitration Act,9 U.S.C §§i-16.not state law.shall govem the arbitrabilityof all disputes.ThearbitratorshallonlyhavetheauthorítytodeterminebreachofthisAgreement,but shall not have the
authority to award punitive damages.The arbitmtor°s decision shall be fmal and binding and ruay be
entered in any court havingjurisdiction thereof.Each Party shan bear its own costs and actorneys'fees
and shall share equally in the fees and expenses of the arbitrator.
6.Full Settlement.The Patries acknowledge and agree that legitimate disputes regarding
collocation facility decommissioning and the monetary obligations of each of the Parties havebeen taised
and that the resolution reached in this Agreement represents a binding comprornise of the Parties'
positions.Therefore,the Parties agree that resolutionof the issues contained in this Agreementshall be
deemed full and complete and,except as provided in Section 5 above,cannot be used to the detrirnent of
eitherParty.
7.GoverningLaw.This Agreement shall be interpreted and construed in accordance with the laws
of the State of colorado,and shall not be imerpretedin favor or against any Party to this Agreement
except as expressly provided bettin.
8.Entire Aernement.This Agreemem constitutes the entire agreement between the Parties with
respect to the subject matter hereof and cannot be rescinded,amended or modified except in a writing
executed by authorizedrepresentativos of both Parties.TheParties have entered into this Agreement after
conferring with legal counsel.Each of the Parties forever waives all right to assert that this Agreement
was a resuk of a ruistake in law or in fact.
9.Sindine Arreement.The terrns and conditions contained in this Agreement shall inure to the
benefitof,and be binding upon,the Parties.their respective successors,affiliates and assigns.
10.SevernbilWT.If any provision of this Agreernentshould be declared to be uncaforceableby any
administrative agency.court of law,or other tribùnat of competput jurisdicdon the remainderof the
Agreement shall remain in full force and effect,and shall be binding upon the Parties hereto as if the
invalidatedprovision were not part of this AgreemenL
11.Waiver.The waiver of any right on one or more occasions by either Party shall not constitute a
waiver of any such.right in any otherinstance,
11 ..Ttis Agreement may be executed by facsimile signature (provided it is
ignmedístely followed by the original by mail)and in any numberof counterparts,eacht of which would be
deemed to be original and all of which taken togethershall constitute one and the same agreemcat.
13.Rulesof Construction.The captions or headings in this Agreementare strictly far convenience
and shall not be considered in imcrpreting this Agreementor as amplifying or limiting any of its content.
Words in this Agreementwhich import the singular connotationshall be interpretedas plural,and words
which import the plural connotatiortshall be interpretedas singular,as the identity of the Parties or
objects referredto may require.Unless cxyressly definedherein,words having well known technicalor
trade monings shall be so construed.All listing of items shallnot be taken to be exclusive,but shall
include other items,whether similar or dissimilar to those listed,as the context reasonablyrequires.
3
IN WITNESS OF,the Panies have caused this Facility Decommissioning Agreement to be
executed as of this -day of January,2001
COVAD SOfUNICATIONS COMPANY QwEST CORPORATION
By:By:
N atory .Andrey nuey
Title:Title:Senior Vice President
er
Steve Hansen
Title:Vibe President
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