20021010Qwest to Staff Prod Resp Part 1.pdf

LED 1015.Capitol Boulevard.Suite 1900STOEL·
Boise.Idaho 83702RIVES202oliLOE",3·"2°633"°°°
LLP fax [phone]
ATTORNEYS AT LAW Uli i icS
MARY S.HOBSON
Direct [phone]
October 9,2002 [e-mail]
VIA HAND DELIVERY
Ms.Jean Jewell,Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise,ID 83720-0074
Re:Case Nos.USW-T-99-3,QWE-T-00-7,QWE-T-00-13
Dear Ms.Jewell:
Enclosed for filing with this Commission is an original and three copies of QwestCorporation'sResponses to First Production Request of the Commission Staff in the above-referenced matter.
Attachment B to Response to Request No.3 is considered confidential and proprietary and isbeingfiledunderseparatecoverwiththisCommission.
Thank you for your cooperation in this matter.
Very truly yours,
Mary S.H son
:blg
Enclosures
Oregon
Washington
California
Ut a h
Boise-148078.1 0029164-00016 1 d a ho
RECElVED G
iLEDMaryS.Hobson (ISB#2142)
Stoel Rives LLP NOÎ Û
101 South Capitol Boulevard -Suite 1900
Boise,ID 83702 Un S 00 MSSt0NTelephone:[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 PURSUANT TO 47 U.S.C.§252(e)
QWEST CORPORATION'S RESPONSES TO
FIRST PRODUCTION REQUESTOF THE COMMISSION STAFF
Qwest Corporation ("Qwest")through its undersigned attorneys provide the attached
responses to First Production Request of the Cornmission Staff.
QWEST CORPORATION'S RESPONSES TO FIRST PRODUCTIONREQUESTOFTHECOMMISSIONSTAFF-Page 1
Boise-148096.1 0029164-00016
Respectfullysubmitted this 9th day of October,2002.
Qwest Corporation
M n
Stoel Rives LLP
Attorneys for Qwest
QWEST CORPORATION'S RESPONSES TO FIRST PRODUCTIONREQUESTOFTHECOMMISSIONSTAFF-Page 2
Boise-148096.1 0029164-00016
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;
USW-T-99-3
STF 01-001
INTERVENOR:Staff of the Idaho Public Utilities Commission
REQUEST NO:001
Please provide a copy of any agreements or contracts which thesenegotiatedagreementsinCaseNo.QWE-T-00-7,QWE-T-00-13 and USW-T-99-3replace,supersede or terminate,such as each of the "terminated
agreements"identified in section 3.(b)of the Eschelon agreement.(QWE-T-00-13).
RESPONSE:
There is only one negotiated agreement filed in case Nos.QWE-T-00-7,QWE-T-00-13 and QWE-T-99-3 that replaces,supersedes or terminates anagreementorcontract.That is the Settlement Agreement dated March 1,2002betweenQwestCorporationandEschelonTelecomInc.The agreements that areterminatedbytheSettlementAgreementareattachedheretoasAttachmentA.
Respondent:Legal
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;USW-
T-99-3
STF 01-001
Attachment A
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;
USW-T-99-3
STF 01-003
INTERVENOR:Staff of the Idaho Public Utilities Commission
REQUEST NO:003
The affidavit of Deanhardt and an affidavit of Blake O.Fisher,filed on
the same day in the same proceeding,refers to an oral agreement between
Qwest and McLeodUSA that provided McLeodUSA with discounts of up to 10%on
its purchases from Qwest.The Fisher affidavit describes the circumstances
leading to the oral agreement and the terms of the agreement.Does QwestdisputeanyoftheitemsincludedintheFisheraffidavit,and if so,please identify which items are disputed and clarify Qwest's position on
the item.Why was the oral agreement with McLeodUSA agreement not reduced
to writing?
RESPONSE:
Objection.This request is overbroad,seeks information that is not
relevant to this docket and is not reasonably calculated to lead to the
discovery of admissible evidence inasmuch as the alleged agreement was not
filed in Idaho and otherwise has no relation to Idaho.By way of furtherobjection,Qwest asserts that the filing of such documents or the provision
of such information to the state commission goes well beyond the requirements
of Section 252(a)Qwest reserves its rights to demonstrate that the alleged
agreement need not have been filed and that state commission approval under
Section 252(e)is not required.Without waiver of the foregoing objections,
and specifically subject thereto,Qwest provides the information requested in
order to cooperate in good faith and otherwise assist the commission in its
endeavors.
Qwest's position with respect to this issue is set forth in the attachedexcerptfromaBrieffiledbyQwestwiththeMinnesotaPUC.A redactedversionisattachedheretoasAttachmentA.A nonredacted version is attached
hereto as Confidential Attachment B.
Respondent:Legal
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;USW-
T-99-3
STF 01-003
Attachment A
McLeod Excerpt taken from pages 55-60 of the Qwest Post Hearing Brief,Public Version
3.McLeod Agreement III
The Department alleges that on October 26,2000 Qwest entered into an oral agreement
to provide McLeod with a 10%discount on all purchases made by McLeod from Qwest between
October 2,2000 and December 31,2003.This allegation is contradicted by the parties'written
agreement which,according to the Fisher affidavit drafted by Mr.Deanhardt,was modified by
the alleged oral agreement.That written agreement makes no mention of any discount,and
provides:"This [Purchase Agreement]may be amended or altered only by written instrument
executed by an authorized representative of both Parties."1/The Department's allegation is also
contradicted by McLeod's treatment of the payments it received from Qwest as revenue,
consistent with the terms of the written take or pay agreement,and inconsistent with the terms of
the alleged oral agreement.Finally,it is incredible that McLeod,which had a highly contentious
relationship with Qwest,would have accepted an oral agreement that contradicted the terms of a
written agreement that expressly disclaimed the existence of any other agreements,especially an
agreement that,as alleged by the Department,obligated Qwest to pay [BEGINTRADE
SECRET][END TRADE SECRET]to McLeod.
The only witness at the hearing with first-hand knowledge of the relevant negotiations
between Qwest and McLeod,Audrey McKenney,testified that Qwest did not enter into such an
agreement.Ms.McKenney testified that during the parties'negotiations,McLeod repeatedly
asked Qwest for a volume term discount,and Qwest -after considering those requests and
performing financial calculations -rejected McLeod's requests.2/Blake Fisher,a former
employee of McLeod who refused to testify at the hearing and subject his story to cross-
/Exhibit 404-J,at §1.2.
examination in a setting other than a discovery deposition,contends that Ms.McKenney was a
participant on a phone call during which he claims Qwest and McLeod orally agreed to a volume
term discount./But although Ms.McKenneytestified that she was indeed a participant on the
conference calls during which the parties agreed to the final form of their agreement -a take-or-
pay agreement with a fixed minimum amount of purchases -she denied that there was any such
oral agreement for a discount./The draft agreement that was created by McLeod and sent to
Qwest on October 23,2000 was in the form of a take or pay with guaranteed profits and did not
include a discount.3/This further confirms Ms.McKenney'stestimony that before the final
documents were drafted,McLeod's requests for a volume term discount were rejected.
The final agreement between the companies was reduced to writing in the form of two
purchase agreements executed by Qwest Communications Corporation ("QCC")and McLeod on
October 26,2000.Under the terms of the McLeod Purchase Agreement (Exhibit 403),McLeod
agreed to purchase from QCC and its subsidiaries a minimum amount of "telecommunications,
enhanced or information services,network elements,interconnection or collocation services or
elements,capacity,termination or origination services,switching or fiber rights."The total
value of McLeod's commitment to QCC is [BEGINTRADE SECRET].[END
TRADE SECRET]Under the terms of the Qwest Purchase Agreement (Exhibit 404),QCC
agreed to purchase quarterly between January 1,2001 and December 31,2003 a set minimum
amount of products from McLeod.The total value of QCC's commitment to McLeod is
[BEGINTRADE SECRET].[END TRADE SECRET]67
/Direct Testimony of AudreyMcKenney,at 6:20-7:2.
/Deposition of Blake Fisher ("Fisher Dep."),at 36:5-37:l l.
/Tr.,Vol.V,Testimony of AudreyMcKenney,at 137:25-138:4;154:25-156:2.
/Exhibit 463;Rebuttal Testimony of AudreyMcKenney,at 14:17-15:13.
/Both the McLeod Purchase Agreement and the QCC Purchase Agreement are take or
Unfortunately,those purchase agreements were not implemented flawlessly.Under the
Qwest Purchase Agreement,QCC was obligated to purchase a minimum amount of products
from McLeod on a proportionate quarterlybasis.If QCC failed to purchase that minimum
amount,it agreed to pay McLeod the difference between the amount of actual purchases and the
amount of the minimum.QCC was making purchases from McLeod,but not enough to satisfy
the amounts specified in the Qwest Purchase Agreement.Instead of performing this calculation,
as a method for determining the payment to McLeod for the shortfall by QCC,QCC calculated
10%of most of McLeod's aggregate purchases from Qwest.Pursuant to the contract,there was
to be an off-set in any payments for actual purchases.However,the Qwest employees involved
in determining the invoice were not aware of the actual purchases,thus failing to perform the
off-set term./
Ms.McKenney identified several factors that led to (and explained)the erroneous
payments.First,the people responsible in her organization were last involved in the discussions
when the take-or-pay amounts were a floating value and not the fixed dollar amounts that were
agreed to and became the final terms of the agreement.Second,Qwest had a process breakdown
and failed to distribute copies of the final agreement to the appropriateindividuals.Finally,Ms.
McKenney'sorganization also was unaware of what QCC was purchasing from McLeod,a
disconnect exacerbated by post-merger integration problems.As a result,the take or pay
shortfall payments were calculated using a flawed methodology.E/
pays,meaning that in the event the purchaser failed to meet the minimum,it agreed to pay thevendorthedifferencebetweentheamountofactualpurchasesandtheamountoftheminimum.Direct Testimony of AudreyMcKenney,at 17:4-7.
/Direct Testimony of AudreyMcKenney,at 18:14-24.
/Direct Testimony of AudreyMcKenney,at 19:1-10.
Despite the errors made in the implementation of the agreements,the accounting
treatment by McLeod and Qwest indicates that both parties understood that the agreement was a
purchase agreement,rather than an agreement for a discount.Initially,Qwest mistakenly booked
the first payment pursuant to the Qwest Purchase Agreement (made in June 2001)as [BEGIN
TRADE SECRET].[END TRADE SECRET]/However,Qwest
caught the mistake internallyand corrected it that same month -eight months before the
commencement of this litigation and five months before the Department commenced the
investigation begetting to this docket.Qwest correctlybooked the first payment and all other
payments as [BEGINTRADE SECRET][END TRADE SECRET]which is
consistent with fact that the agreement was a take-or-pay,not a discount arrangement./
McLeod recorded the payments it received as revenue,which is also consistent with a purchase
agreement -and Qwest's accounting treatment -and inconsistent with a discount
I larrangement.-¯/
Mr.Deanhardt,the Department's "expert,"2/suggested,despite never having negotiated
a take-or-pay agreement in which his company was the seller of services,that aspects of Qwest
and McLeod's negotiation and implementation of the Purchase Agreements were outside
ordinary business practices.U/Yet,Mr.Deanhardt's own theory is an even greater deviation
from accepted protocols.Certainly,it is not a typical business practice for two publicly traded
/Id.at 28:14-16.
/Id.at 28:16-21;Exhibit ACM-5.
/See Exhibit ACM-4.
/Qwest reiterates its objections to this sort of "expert"testimony.As Qwest demonstratedinitsMotioninLiminetoExcludeSupplementalTestimonyofW.Clay Deanhardt,Mr.Deanhardt's speculations regarding the credibility of witnesses and the meaning of documents
are an inappropriate subject of expert testimony.
/Tr.,Vol.V,Testimony of W.Clay Deanhardt,168:22-171:6;184:8-185:8.
corporations to enter into an oral agreement worth many millions of dollars.Moreover,under
Mr.Deanhardt's theory,McLeod's accounting treatment of payments received from Qwest was
"incorrect."2/If McLeod believed Qwest agreed to a volume term discount,it would not be an
ordinary business practice for McLeod to disregard Generally Accepted Accounting Principles
and book payments received as revenue rather than a reduction in expense.As noted above,
Qwest's and McLeod's accounting treatments of payments made and received pursuant to the
October 26,2000 agreements are consistent with each other and with the Generally Accepted
Accounting Practices for purchase agreements -and inconsistent with Mr.Deanhardt's discount
theory.Specifically,McLeod's treatment of the payments it received from Qwest as revenues
evidence McLeod's understandingthat the parties had agreed to a "take or pay arrangement"that
was not subject to Sections 251 and 252,and not a discount off services subject to those
provisions.
As Ms.McKenneytestified,the final agreement between Qwest and McLeod is
memorialized in the Purchase Agreements that were executed on October 26,2000.Those
agreements are not subject to the filing requirements of the Act.The McLeod Purchase
Agreement is a commitment by McLeod to purchase products and services from QCC and does
not include any commitment by QCC that is subject to the Section 251/252 regulatory
framework.The Qwest Purchase Agreement is a commitment by QCC to purchase a minimum
amount of products from McLeod.Agreements by QCC to purchase goods or services from
vendors,includingCLECs,are not regulated by the Act of 1996.
/Id.,at 76:25-77:4;77:12-15.
FILED UNDER SEPARATE COVER
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;USW-
T-99-3
STF 01-003
Confidential Attachment B
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;
USW-T-99-3
STF 01-004
INTERVENOR:Staff of the Idaho Public Utilities Commission
REQUEST NO:004
For all agreements,including those provided in response to Question 1 and2,please identify the date the agreement became effective,and a date oftermination,if applicable.
RESPONSE:
Objection.This request is overbroad,seeks information that is not relevanttothisdocket,and is not reasonably calculated to lead to the discovery ofadmissibleevidenceinasmuchassome(all)of these agreements were not filedinIdaho,involve CLECs who do not conduct business in Idaho,and otherwisehavenorelationtoIdaho.By way of further objection,Qwest asserts thatthefilingofsuchdocumentswiththestatecommissiongoeswellbeyondtherequirementsofSection252(a).Qwest reserves its rights to demonstratethattheseagreementsneednothavebeenfiledandthatstatecommissionapprovalunderSection252(e)is not required.Without waiver of theforegoingobjections,and specifically subject thereto,Qwest is providingallagreementsandrelatedinformationrequestedinordertocooperateingoodfaithandotherwiseassistthecommissioninitsendeavors.
MN-1 ATI (Eschelon)Confidential Trade Secret Stipulation between ATI andUSWestdated2/28/00
Terminated on 3/17/02 by its terms.
MN-2 Eschelon Trial agreement -7/21/00
Effective as of 5/1/00
Terminated on 5/1/01 by its terms.
MN-3 Eschelon Confidential Agreement (escalation)11/15/00
Terminated on 3/1/02 by settlement Agreement between the parties of thatdate.
MN-4 Eschelon Confidential Amend.to Confidential/Trade Secret Stipulation11/15/2000
Terminated on 3/1/02 by Settlement Agreement between the parties of thatdate.
MN-5 Eschelon Confidential letter re:switched access
Effective as of 1/1/01
Terminated on 3/1/02 by settlement Agreement between the parties of thatdate.
MN-6 Eschelon Implementation Plan 7/31/01
Terminated on 3/1/02 by settlement Agreement between the parties of that
date.
MN-7 Covad Service level Agreement -Unbundled Loop 4/19/00
Effective as of 3/31/00
Relevant provisions are effective until the parties terminate their
interconnection agreement.
MN-8 Small CLECs Confidential Stipulation 4/18/00
Termination date varies with specific provisions.Specific provisions
terminate at various dates including 3/17/02,7/1/03 and 12/31/03.
MN-9 McLeod Confidential Letter Agreement 4/28/00
Provisions relating to 251 Da and c)services terminate on 12/3102.
MN-10 McLeod Confidential Letter Agreement 10/26/00
Provisions in paragraph 2 terminate on 12/31/03;Provisions in paragraph
3 are effective until the parties terminate their interconnection agreement.
All other provisions are currently terminated.
MN-11 USLink Confidential Letter Agreement re:Local Tandem Switching 7/14/99
Terminated on 3/17/02 by its terms.
Covad Decommissioning Agreement 1/3/02
Agreement terminates upon completion of decommissioning.
Eschelon Settlement Agreement 3/1/02
Terminates on 12/31/05 by its terms.
McLeod Confidential Billing Agreement 5/1/00
Relevant provisions are effective until the parties'terminate theirinterconnectionagreement.
Respondent:Legal
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;
USW-T-99-3
STF 01-005
INTERVENOR:Staff of the Idaho Public Utilities Commission
REQUEST NO:005
Please provide non-redacted versions of all agreements.(Requests for
confidential treatment of submitted materials will be handled in accordance
with the Commission's Rules of Procedure.)
RESPONSE:
Objection.This request is overbroad,seeks information that is not relevant
to this docket,and is not reasonably calculated to lead to the discovery ofadmissibleevidenceinasmuchassome(all)of these agreements were not filedinIdaho,involve CLECs who do not conduct business in Idaho,and otherwise
have no relation to Idaho.By way of further objection,Qwest asserts that
the filing of such documents with the state commission goes well beyond therequirementsofSection252(a).Qwest reserves its rights to demonstrate
that these agreements need not have been filed and that state commissionapprovalunderSection252(e)is not required.Furthermore Qwest relies on
the FCC's Memorandum Opinion and Order in In the Matter of Qwest
Communications International Inc.Petition for Declaratory Ruling on the
Scope of the Duty to File and Obtain Prior Approval of Negotiated ContractualArrangementsUnderSection252(a)(1),WC Docket No.02-89,released October
4,2002,for the proposition that agreements settling past disputes need not
be filed as interconnection agreements.
Without waiver of the foregoing objections,and specifically subject thereto,Qwest has provided non-redacted versions of three of the agreements in itsresponsetoRequestNo.2.See STF 01-002,Attachment A,exhibits nos.7,9,
and 10.Attached hereto as Attachment A is a non-redacted version of the
Settlement Agreement between Qwest and Eschelon dated March 3,2002.
There remain two agreements,the McLeod "Confidential Settlement Agreement"
dated May 11,2000 and the Covad "Facility Decommissioning Agreement"datedJanuary3,2002,which have not been provided in a non-redacted form because
of confidentiality provisions that require Qwest to obtain permission fromtheCLECpartypriortoanydisclosure.Qwest commits to seek suchpermissiontodisclosetheredactedinformationandwillprovideit to theStaffifpermissionisgranted.
Respondent:Legal
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;USW-
T-99-3
STF 01-005
Attachment A
Settlement Agreement
This Settlement Agreement (this "Aereement")is dated March 1,2002 (the
"Effective Date"),and is between Qwest Corporation,a Colorado corporation ("Owest").and
Eschelon Telecom,Inc.,a Delaware corporation ("Eschelon").Qwest and Eschelon are referred
to collectively as the "Parties"and individually as the "Partv."
Whereas,Qwest is an incumbent local exchangecarrier operating in the states of
Arizona,Colorado,Idaho,Iowa,Minnesota,Montana,Nebraska,New Mexico,North Dakota,
Oregon,South Dakota,Utah,Washington,and Wyoming;
Whereas,Eschelon is a competitive local exchangecarrier operating in the states
of Arizona,Colorado,Minnesota,Oregon,Utah,and Washington,as well as Nevada;
Whereas,each of the Parties seeks to avoid delay and costly litigation and to
resolve certain issues in dispute.
Qwest and Eschelon therefore agree as follows:
1.Definitions.When used in this Agreement,the following terms have the
following meanings:
"Act"means the Telecommunications Act of 1996.
"CABS"means carrier access billing system.
"Claims"means,individually and collectively,each and every claim,action,
causes of action,suit,demand,damage,judgment,execution,cost,expense,liability,
controversy,setofT,omission,and loss of any kind whatsoever,whether known or unknown,
whether in law or in equity,including any related interest expenses that may have accrued in
connection therewith,from the beginning of time through February 28,2002,that Eschelon or
Qwest has,had or may have against the other Party arising out of the Disputes through February
28,2002.
"Disputes"means,for the time period through February 28,2002:(1)disputes
concerning service credits;(2)disputes concerning consulting and network-related services
provided by Eschelon to Qwest;(3)CABS disputes concerning switched access minutes of use;
(4)disputes concerning payment of UNE-E line and UNE-E Non-Recurring Chargecredits;and
(5)disputes concerning Eschelon's claims of anti-competitive conduct and unfair competition.
"Interconnection Agreement"means the interconnection agreements and all
amendmentsthereto filed with the PUC in each state in which Eschelon obtains services and
facilities from Qwest.
"P.U_C"means state public utilitycommission.
03/06/02 10:40 AM SettlementAgreement
Page 1 of 6
\\\DC-66983/45 -*1488679 v2
"Terminated Agreements"has the meaning set forth in paragraph 3(b)below.
"UNE-E"means Unbundled Network Element -Eschelon,a product purchased
by Eschelon under its Interconnection Agreement,as amendedin November of 2000 and July
and August of2001.
"UNE-P"means Unbundled Network Element -Platform.
2.Release of Claims.(a)For valuable consideration to be paid by Qwest to
Eschelon as provided in Paragraph 3(a)below,Eschelon hereby fully waives,releases,acquits,
and discharges Qwest and its associates,owners,stockholders,successors,assigns,partners,
parents.insurance carriers,bonding companies,affiliates and subsidiaries,and each of their
respective directors,officers,agents,employees and representatives from any and all ClaimsarisingoutoftheDisputesthroughFebruary28,2002.
(b)In consideration of the waiver and release described in Paragraph2(a)abovexQwest hereby fully waives,rejeases,acquits,and discharges Eschelon and its associates,
owners,stockholders,successors,assigns,partners,parents,insurance carriers,bonding
companies,affiliates and subsidiaries,and each of their respective directors,officers,agents,
employees and representativesfrom any and all Claims arising out of the Disputes through
February 28,2002..
3.Actions to be Taken.The Parties shall undertake the following actions:
(a)On the Effective Date,Qwest shall provide payment,using credits,
to Eschelon in an amount equal to $7,912,000,with offsets as follows:(i)apply $6,380,000
against UNE-E charges and associated charges that are not disputed by the Parties as of February
28,2002;and (ii)apply and credit $1,532,000 -which sum represents$7,912,000 less
$6,380,000 -against all current and non-disputed invoices that are payable by Eschelon to
Qwest.Eschelon shall determine how the offset amounts in each of clauses (i)and (ii)will beappliedandsliallsodesignateinwritingtoQwestwithintendaysoftheEffectiveDate.
(b)For convenience and various reasons,the Parties hereby terminate
the followmg agreements('Terminated Agreements"),as of the Effective Date:
(1)Feature Letter dated November 15,2000;(2)Implementation Plan Letter dated November 15,2000;
(3)Escalation procedures and business solution letter dated November 15,2000;
(4)Confidential Purchase Agreement dated November 15,2000;
(5)Confidential Amendment to Confidential/Trade Secret Stipulation dated November 15,
2000;
(6)Third Amendment to Confidential/Trade Secret Agreement dated July 3,2001;
(7)Status of switched access minute reporting letter dated July 3,2001;and
(8)Implementation Plan dated July 31,2001/August 1,2001.
03/06/02 10:40 AM
Settlement Agreement
Page 2 of 6
\\\DC -66983/45 -*1488679 v2
(c)Attachment 3 to the Implementation Plan dated July 31,
2001/August 1,2001 relating to UNE-E will continue to bind the Parties unless the Parties agree
otherwise in a writing executed by both Parties.Eschelon agrees that Qwest will file this
Attachment 3 as an amendment to the Interconnection Agreement.
(d)The Billing/Usage letter dated November 15,2000 will be
tenninated when the Parties agree the manual process is terminated and Eschelon moves to the
mechanized process described in Paragraph 3(g)below.
(e)Qwest shall make the UNE-E offering and existing business
processes related to the UNE-E offering available to Eschelon through the current term of the
Interconnection Agreement Amendment Terms dated November 15,2000.
(f)Within ten days of the Effective Date,the Parties shall form a joint
team.The purpose of the joint team shall be to develop a mutually acceptable plan (the "g)to
convert UNE-E lines to UNE -P.Qwest and Eschelon shall use best efforts to cooperatein
converting UNE-E lines to UNE-P in accordancewith the Plan..
(g)Qwest and Eschelon shall work closely together in moving
Eschelon from a manual to a mechanizedprocess so that Eschelon can bill for access on UNE-P.
The Parties shall work closely for 60 days to validate working telephone numbers and associated
minutes of use,and will terminate the manual process after these 60 days with the consent of
both Parties.If the parties are unable to agree on the date of the termination of the manual
process,then the Parties shall follow the procedures described in paragraph 8 below.
(h)Level 3 Escalation.Upon execution of this Agreement,Eschelon's
February 8,2002 request for a Level 3 escalation will be deemed permanently withdrawn.
4.Successors and Assigns.The terms and conditions contained in this
Agreement shall inure to the benefit of and be binding upon,the respective successors,affiliates
and assigns of the Parties.
5.Assienment of Claims.No Party has assigned or transferred to any person
any Claim,or portion of any Claim,released or discharged by this Agreement.
6.Filing of Agreement.The Parties agree that negotiation of this Agreement
is subject to Rule 408 of the Federal Rules of Evidence,and similar rules at the state level.
Notwithstanding the foregoing,nothing in this Agreement shall prevent a Party from asserting a
claim against the other Party to enforce this Agreement and nothing herein shall bar a Party from
filing this Agreement as it deems necessary and appropriate in order to comply with state or
federal law,or in connection with a relevant legal or regulatory proceeding in which Qwest or
Eschelon is a party.Qwest and Eschelon expressly contemplate that this Agreement will be filed
03/06/02 10:40 AM Settlement Agreement
Page 3 of 6
\\\DC -66983/45 -#1488679 v2
with the PUCs in its region in states where Eschelon is certified and has an interconnection
agreement.
7.Entire Aereement;Amendments.This Agreement constitutes the entire
agreementbetween the Parties.This Agreement can be amended or changed only in a writing or
writings executed by both of the Parties,except that this Agreement must not be amended or
modifled in any way by electronic message or e-mail communications.
8.Dispute Resolution.Each Party reserves its rights to resort to all
remedies,includingseeking resolution by a PUC or a court,agency,arbitrator,or regulatory
authority of competentjurisdiction.
9.Notices.Except as otherwise provided in this Agreement,every notice or
other comrnunication to a Party required,permitted or contemplated under this Agreement must
be m writmg and (a)servedpersonally,in which case delivery will be deemed to occur at the
time and on the day of delivery;(b)delivered by certified mail or registered mail,postage
prepaid.retum receipt requested,in which case delivery will be deemed to occur the day it is
officiallyrecorded by the U.S.Postal Service as delivered tor the intended recipient;or (c)
delivered by next-day delivery to a U.S.address by recognized overnight delivery service such as
Federal Express,in which case delivery will be deemed to occur upon receipt.Upon prior
agreementof the Parties'designated recipients identified below,notice may also be provided by
facsimile.Except as otherwise provided in this Agreement,every notice or other communication
must be delivered using one of the alternatives mentioned in this paragraph and must be directed
to the.applicable address indicated below or such address as the Party to be notified has
designatedby giving written notice in compliance with this paragraph:
If to Qwest:If to Eschelon:
Qwest Corporation Eschelon Telecom,Inc.
Attention:GeneralCounsel Attention:General Counsel
1801 California Street,Suite 5200 730 2nd Avenue,Suite 1200
Denver,Colorado 80202 Minneapolis,MN 55402
Tel:[phone] Tel:[phone]
Fax:[phone] Fax:[phone]
10.No Waiver.The Parties agree that their entering into this Agreement is
without prejudice to,and does not waive,any positions they may have taken previously,or may
take in the future,in any legislative,regulatory,judicial,or other forum addressing any matters
other than the Claims.
I l.No Admission.The Parties acknowledge and agree that they have
legitimate disputes relating to the issues described in this Agreement,and that the resolution
reached in this Agreement representsa compromise of the Parties'positions.Therefore,the
Parties deny any wrongdoing or liability and expressly agree that resolution of the issues
03/06/02 10:40 AM Settlemerit Agreement
Page 4 of 6
\\\DC -66983/45 .a 1488679 v2
contained in this Agreement cannot be used against the other Party in any manner or in any
forum (except for claims related to breaches of this Agreement).
12.Counterparts.This Agreement may be executed by facsimile and in
counterparts,each of which is an original and all of which together constitute one and the same
mstrument.
EXECUTION PAGE FOLLOWS
03/06/02 10:40 AM
Settlernent Agreernent
Page 5 of 6
\\\DC -66983/45 -*1488679 v2
Counterpart Execution Page
Settlement Agreement
The undersigned are executing this Settlement Agreement on the date stated m the
introductory clause.
QWEST CORPORATION
Name:Dãna Filip
Title:Senior Vice President
ESCHELON TELECOM,INC.
By:
Name:Cli rd D.Williams
Title:Chief Executive Officer
03/06/02 10:40 AM SettlementAgreernent
Page 6 of 6
\\\DC-66983/45 -«1488679v2
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;
USW-T-99-3
STF 01-006
INTERVENOR:Staff of the Idaho Public Utilities Commission
REQUEST NO:006
Please provide copies of any other agreement that has been identified orallegedtobeanagreementthatshouldhavebeenfiledwithastateutilityregulatorycommissionbytheCommission,Commission Staff,oradministrativelawjudgeorothercommissionauthorityofanyotherstateregulatoryagencywithinQwest's 14 state region.
RESPONSE:
Objection.This request is overbroad,seeks information that is not relevanttothisdocket,and is not reasonably calculated to lead to the discovery ofadmissibleevidenceinasmuchassome(all)of these agreements were not filedinIdaho,involve CLECs who do not conduct business in Idaho,and otherwisehavenorelationtoIdaho.By way of further objection,Qwest asserts thatthefilingofsuchdocumentswiththestatecommissiongoeswellbeyondtherequirementsofSection252(a).Qwest reserves its rights to demonstratethattheseagreementsneednothavebeenfiledandthatstatecommissionapprovalunderSection252(e)is not required.Furthermore Qwest relies ontheFCC's Memorandum Opinion and Order in In the Matter of QwestCommunicationsInternationalInc.Petition for Declaratory Ruling on theScopeoftheDutytoFileandobtainPriorApprovalofNegotiatedContractualArrangementsUnderSection252(a)(1),WC Docket No.02-89,released October4,2002,for the proposition that agreements settling past disputes need notbefiledasinterconnectionagreements.
Without waiver of the foregoing objections,and specifically subject thereto,Qwest is providing all agreements and related information requested in ordertocooperateingoodfaithandotherwiseassistthecommissioninitsendeavors.
Attached as Attachment A are all agreements filed in the 14 state region,except for a March 14,2001 Confidential Billing Settlement Agreement withTimeWarner;Time Warner has objected to this agreement being produced and infacthasalreadybroughtsuitagainstQwestforproducingittotheArizonaCommission.
Respondent:Legal
Idaho
Case No.QWE-T-00-7;QWE-T-00-13;USW-
T-99-3
STF 01-006
Attachment A
CONFIDEg &c PROPRIETARY
FA CTT ITY DECOMMISSIONING REIMBURSEMENT AGREEMENT
THIS FACILITYDECOMMISSIONTNGREIMBURSEMENTAGREEMENT ("Agreement"),
is made and entered into as of this F7 day of N //A,2001 (the "Effective Date"),between
Qwest Corporation ("Qwest")and AT&T Corp.,on behalf itself and certain of its affiliates who ordered
the Facilities,("CLEC")(Qwest and CLEC being sometimes hereinafter referred to collectively as the
"Parties"and individually as a "Party").
RECITALS
WHEREAS,Qwest,a local incumbent exchange provider,and CLEC,a competitive local exchange
provider,are parties to certain interconnection agreements (the "Interconnection Agreements"),executed
pursuant to sections 251 and 252 of the Federal Telecommunications Act of 1996 (the "Act");and
WHEREAS,pursuant to the Interconnection Agreements,CLEC has purchased physical and/or virtual
collocation and ancillary services from Qwest.CLEC now desires to return,or has already retumed,to
Qwest the collocation sites identified in Exhibit A (the "Facilities")attached hereto and incorporated by
reference;and
WHEREAS,the Parties dispute the rates,terms and conditions that are applicable when CLEC
decommissions a collocation site;and
WHEREAS,for some or all of the Facilities,Qwest has charged and CLEC has paid such charges to
Qwest in order to decommission the Facilities;and
WHEREAS,the Parties voluntarily enter into this Agreement as a final resolution to disputes arising
between the Parties regarding the terms and conditions of CLEC's return of the Facilities and the financial
obligationsof each Party with respect to each of the Facilities under the InterconnectionAgreements.
NOW,THEREFORË,in consideration of the foregoingand other good and valuable consideration,the
receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows:
1.Facility pecommissioning.In consideration for the Release and Waiver set forth below,Qwest
hereby agrees to decommission the Facilities and to waive all fees and charges associated therewith.
2.Credit/Reimbursement.In the event that CLEC was previously invoiced and paid Qwest for the
decommissioning quotes and the monthly recurringcharges past the date of acceptance of the yalid
decommissioning application,Qwest shall make a one-time credit to CLEC for the sum of any non-
recurringcharges paid for the decommissioning and any monthly recurringcharges paid for the Facilities
after the date of Qwest's acceptance and validationof the decommissioning request.The estimated
aggregate credit amount for each collocation site is reflectedon Exhibit A.This credit amount will be
applied,first,to satisfy any outstanding balances (except amounts in dispute)owed by CLEC to Qwest,if
any.If a credit balance remains,the CLEC may request the credit be paid them via check.Such check
shall be issued by Qwest within thirty (30)days of the Effective Date hereof.
3.Release and Waiver.
(a)In consideration for the credit and/or payments to be made by Qwest to CLEC as
providedin Sections 1 and 2 above,CLEC hereby releases and foreverdischarges Qwest and its
associates,owners,stockholders,predecessors,successors,agents,directors,officers,partners,
employees,representatives,employees of affiliates,employees of parents,employees of subsidiaries,
affiliates,parents,subsidiaries,msurance carriers,bondingcompanies and attomeys,from any and all
manner of action or actions,causes or causes of action,in law,under statute,or in equity,suits,appeals,
petitions,debts,tiens,contracts,agreements,promises.liability,claims,affirmative defenses,offsets.
EXECUTIONAGREEMENT
demands,damages,losses,costs,claims for restitution,and expenses,of any nature whatsoever,fixed or
contingent,known or unknown,past and present asserted or that could have been asserted or could be
asserted in any way relating to or arising out of the decommissioning of the Facilities hereunder(the
"CLEC Release and Waiver")as of the EffectiveDate of this Agreement.CLEC hereby covenants and
warrants that it has not assigned or transferred to any person any claim,or portion of any claim which is
released or discharged by this Agreement.
(b)In consideration for the CLEC Release and Waiver,Qwest hereby releases and forever
discharges CLEC and its associates,owners,stockholders,predecessors,successors,agents,directors,
officers,partners,employees,representatives,employees of affiliates,employees of parents,employees of
subsidiaries,affiliates,parents,subsidiaries,insurance carriers,bonding companies 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,petitions,debts,liens,contracts,agreements.promises,liability,claims,affirmative
defenses,offsets,demands,damages,losses,costs,claims for restitution,and expenses,of any nature
whatsoever,fixed or contingent,known or unknown,past and present asserted or that could have been
asserted or could be asserted in any way relating to or arising out of the decommissioningof the Facilities
hereunder (the "Qwest Release and Waiver")as of the EffectiveDate of this Agreement.Qwest hereby
covenants and warrants that it has not assigned or transferred to any person any claim.or portionof any
claim which is released or discharged by this Agreement.
(c)As part of the CLEC Release and Waiver described,CLEC expressly agrees to relinquish
foreverall rights and interest whatsoever in the Facilities and to remove all property it owns from the
Facilities within thirty(30)days after the EffectiveDate of this Agreement at CLEC's own expense.
(d)In the event CLEC fails to remove its equipment from the Facilities as provided above,Qwest
may,without notice or demand and in addition to any other right or remedy available at law or equity,
remove all of CLEC's equipmem from the Facility and store the same at CLEC's expense.CLEC
expressly waives any damages occasioned by such removal,provided that Qwest has used due care.Any
equipment so rernovedwill be returned to CLEC upon payment in full of all storage costs.If within
forty-five (45)days following such equipment removal.CLEC has not requested the return of its
equipment änd paid any sums owed,then Qwest may exercise all rights of ownership over such
equipment including the right to sell same and retain possession of any sale proceeds to cover Qwest's
costs of sale and any other undisputed amounts owed by CLEC to Qwest for the Facilities.If there are
any amounts in excess of what CLEC owes to Qwest as described in the preceding sentence,Qwest shall
remit such amounts to CLEC within thirty (30)days after such sale.Qwest's exerciseof any remedies
providedfor in this Section 3 shall be without prejudice to any other remedies Qwest may have provided
for herein or by law-
4.Confidentinh3y.7
(a)The Parties expressly agree that they will keep the substance of the negotiations and or
conditions of the settlement and the terms or substance of this Agreement strictly confidentiaL The
Parties further agree that they will not communicate (orally or in writing)or in any way disclose the
substance of negotiations and/or conditions of the settlement and the terms or substance of this
Agreement to any person,judicial or administrativeagency or body,business,entity or association or
anyone else for any reason whatsoever,without the prior express written consent of the other Party unless
compelled to do so by law.It is expressly agreed that this confidentiality provision is an essential element
of this Agreement.The Parties agree that this Agreement and negotiations,and all matters related to
these two matters,shall be subject to Rule 408 of the Rules of Evidence,at the federal and state level.
The Parties further agree that in the event of a breach of the confidentiality provisions of this Agreement,
the harm suffered by the injured Party would not be compensable by monetary damages alone and,
accordingly,that the injured Party shall,in addition to other available legal or equitable remedies,be
entitled to seek an injunction against such breach.Notwithstanding the foregoing,the Parties
acknowledge that the fact that Qwest will reimburse CLECs for decommissioning payments previously
'made to Qwest has been the subject of non-confidentialdiscussions among Qwest and a group of CLECs,
Those discussions are not made confidential by entering into this Agreement.The intent of this Section
4(a)is to maintain in confidence the negotiations between CLEC and Qwest that were specific to the
terms of this Agreement,including but not limited to the specific facilities and reimbursement amounts.
(b)In the event either Party has a legal obligation which requires disclosure of the terms and
conditions of this Agreement,the Party having the obligation shall immediately notify the other Party in
writing of the nature,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 this
Agreement.At tenst ten days advance notice under this paragraph shall be provided to the other Party,
wheneverpossible.
5.Binding Arbitration.Any claim,controversy or dispute between the Parties in connection with
this Agreement,shall be resolved by privateand confidential arbitration conducted by a single arbitrator
engaged in the practice of law,under the then currem rules of the American Arbitration Association.The
Federal ArbitrationAct,9 U.S.C.§§1-16,not state law,shall govem the arbitrability of all disputes.The
arbitrator shall only have the authority to determine breach of this Agreement,but shall not have the
authority to award punitive damages.The arbitrator's decision shall be final and binding and may be
entered in any court havingjurisdiction thereof.Each Party shall bear its own costs and attorneys'fees
and shall share equallyin the fees and expenses of the afbitrator.
6.Full Setti.e_q;ent.The Parties acknowledge and agree that legitimate disputes regarding
decommissioningof the Facilities and the monetary obligations of each of the Parties with respect to the
decommissioning of the Facilities have been raised and that the resolution reached in this Agreement
represents a binding compromise of the Parties'positions.Therefore,the Parties agree that resolution of
the issues contained in this Agreement shall be deemed full and complete and,except as provided in
Section 5 above,cannot be used to the detriment of either Party.
7.Governing B.This Agreement shall be interpreted and construed in accordance with the laws
of the State of Colorado,and shall not be interpreted in favor or against any Party to this Agreement
except as expressly providedherein.
8.Entire Agreement.This Agreement 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 authorized representatives of both Parties.The Parties 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 result of a mistake in law or in fact.
9.g Agreement.The terms and conditions contained in this Agreernent shall inure to the
benefitof,and be bindingupon,the Parties,their respective successors,affiliates and assigns.
10.Severability.If any provision of this Agreement should be declared to be unenforceableby any
administrative agency,court of law,or other tribunal of competent jurisdiction the remainder of the
Agreement shall remain in full force and effect,and shall be binding upon the Parties hereto as if the
invalidatedprovisionwere not part of this Agreement,
ll.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 other instance.
12.Counterpam.This Agreement may be executed by facsimile signature (provided it is
immediately followedby the original by mail)and in any number of counterparts,each of which would be
deemed to be original and all of which taken together shall constitute one and the sarne agreement.
13.Rules of Construction.The captions or headings in this Agreement are strictly for convenience
and shall not be considered in interpretingthis Agreementor as amplifying or limiting any of its content.
Words in this Agreement which import the singular connotation shall be interpretedas plural,and words
3
which import the plural connotation shall be interpreted as singular,as the identity of the Parties or
objects referred to roay require.Unless expressly defined herein,words having well known technical or
trade meanings shall be so construed.All listing of items shall not be taken to be exclusive,but shall
include other items.,whether similar or dissimilar to those listed,as the context reasonably requires.
E4 WITNESS THEREOF,the Parties have caused this Facility Decommissioning Reimbursement
Agreementto be executed as of this 4 day of M.2001.
AT&T Corp.QWEST CORPORATION
Name of Signa Audrey Kenney
Title:gy Title:Senior Vice President
By:
ve Hansen
le:Vice President
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'GONFIDENTIAL &PROPRIETARY
FACILITY DECOMMISSIONINGAGREEMENT
THIS FACILITY DECOMMISSIONING AGREEMENT-("Agreement"),is made and entered
into as of this 47/day of $4/af200l (the "Effective Date"),between Qwest Corporation
("Qwest")and ALLTEL Communications,Inc.("CLEC")(Qwest and CLEC being sometimes hereinafter
referredto collectively as the "Parties"and individually as a "Party").
RECITALS
WIŒREAS,Qwest,a local incumbent exchange provider,and CLEC,a competitive local exchange
provider,are parties to a certain interconnectionagreement (the "InterconnectionAgreement"),executed
pursuant to sections 251 and 252 of the Federal TelecommunicationsAct of 1996 (the "Act");and
WHEREAS,pursuant to the Interconnection Agreement,CLEC has purchased physical and/or virtual
collocation and ançillary services from Qwest.CLEC now desires to return to Qwest the collocation
sites identined in Exhibit A (the "Facilities")attached hereto and incorporated by reference;and
WHEREAS,the Parties voluntarily enter into this Agreement as a final resolution to disputes arising
between the Parties regardingthe terms and conditions of CLEC s return ofthe Facilities and the Snancial
obligations of each Party with respect to each of the Facilities under the Interconnection Agreement.
NOW,THEREFORE,in considerationof the foregoing and other good and valuable consideration,the
receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows:
1.Facilitv Depommissioning.In considerationfor the Release and Waiver set forth below,Owest
hereby ag-ecs to decomtnission be ½cilities and to waive all fees and charges associated therewith.
2.Credit/Reimbursement.In the event that CLEC was previously invoiced and paid Qwest for the
decomin,issioning quotes and the monthly recurring charges past the date of acceptance of the valid
decommissioningapplication,Qwest shall make a one-time credit to CLEC for the sum of any non-
recurring charges paid for the decommissioningand any monthly recurring charges paid for the Facilities
after the date of Qwest's acceptance and validation of the decommissioningrequest.This credit amount
will.be applied,first,to satisfy any outstandingbalances owed bv to credit
balance remains,[CHOOSE the C mav re uest e credit be aid them via check och
check shall be issued by Qwest within thirty(30)days of ctive Date hereof.-
3.Release and Waiver.
(a)For valuable considerationto be paid by Qwest to CLEC as provided in Sections I and 2
above,CLEC hereby releases and forever discharges Qwest and its associates,owners,stockholders,
predecessors,successors,agents,directors,officers,partners,employees,representatives,employees of
affiliates,employees of parents,employees of subsidiaries,affiliates,parents,subsidiaries,insurance
carrig þqading companies and attorneys,from any and all manner of action or actions,causes or causes
of action,in law,under statute,or in Eq¯úi¯t aþþeälá,¯µtitio ebts-liens,co tements,
promises,liability,claims,affirmative defenses,offsets,demands,damages,losses,costs,claims for
restitution.and expenses,of any nature whatsoever,fixed or contingent,known or unknown,past and
present asserted or that could havebeen assened or could be asserted in any way relating to or arising out
ofthe Facilities or this Agreement (the "Releaseand Waiver").CLEC hereby covenantsand warrants that
it has not assigned or transferred to any person any claim,or portion of any claim which is released or
discharged by this Agreement.
(b)As part ofthe Release and Waiverdescribed in the previous paragraph,CLEC expressly
agrees to refinquish forever all rights and interest whatsoeverin the Facilities and to remove all property it
owns from the Facilities within thirty (30)days of the Effective Date ofthis Agreement at CLEC's own
expense.
(c)In the event CLEC fails to remove its equipmentfrom the Facilities as provided above,Qwest
may,without notice or demand and in additionto any other right or remedy available at law or equity,
remove all of CLEC's equipmentfrom the Facility and store the same at CLEC's expense.CLEC
expressly waives any damages occasioned by such removal.Any equipment so removed will be retumed
to CLEC upon payment in full of all storage costs.If within forty-five (45)days following such
equipmentremoval,CLEC has not requested the retum of its equipment and paid any sums owed,then
Qwest may exercise all rights of ownership over such equipment includingthe right to sell same and
retain possession of any sale proceeds.Qwest°s exercise of any remedies provided for in this Section 3
shall be without prejudice to any other remedies Qwest may have providedfor herein or by law.
4.Confidentisiity.
(a)The Parties expressly-agree that they will keep the substance of the negotiations and or
conditions of the settlement and the terms or substance of this Agreement strictly confidential.The
Parties further agree that they will not communicate (orally or in writing)or in any way disclosethe
substance of negotiations and/or conditions of the settlement and the tenns or substance of this
Agreement to any person,judicial or administrative agency or body,business,entity or association or
anyone else for any reason whatsoever,without the prior express written consent of the otherParty unless
compelledto do so by law.It is expressly agreed that this confidentiality provision is an essential element
of this Agreement.The Parties agree that this Agreement and negotiations,and all matters related to
these two matters,shall be subject to the Rule 408 of the Rules of Evidence,at the federal and state level
The Panies further agree that in the event of a breach of the confidentiality provisions of this Agreemëm,
the harm suffered by the injured Party would not be compensable by monetary damages alone and,
accordingly,that the injured Party shall,in addition to other available legal or equitable remedies,be
entitled to seek an injunction against such breach.
(b)In the evem either Party has a legal obligation which requires disclosure of the terms and
conditions of this Agreement,the Party havingthe obligation shall immediately notifythe other Party in
writing of the nature,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 this
Agreement.At least ten days advance notice under this paragraphshall be provided to the other Party,
wheneverpossible.
5.Binding Arbitration.Any claim,controversy or dispute between the Parties in connection with
this Agreement,shall be resolvedby private and confidential arbitration conducted by a single arbitrator
engaged in the practice of law,under the then current rules of the AmericanArtibration Association.The
Federal Arbitration Act,9 U.S.C.§§1-16,not state law,shall govern thearbitrabilityof all disputes.The
arbitrator shall only have the authority to determine breach of this Agreement,but shall not have the
authority to award punitive damages.The arbitrator's decision shall be final and binding and may be
entered in any court having jurisdiction thereof.Each Party shall bear its own costs and attorneys'fees
and shall share equally in the fees and expenses of the arbitrator.
6.Full Settlement.The Parties acknowledge and agree that legitimate disputes regarding
collocation facility decommissioningand the monetary obligations of each of the Parties havebeen raised
and that the resolution reached in this Agreement represents a binding compromise of the Parties'
positions.Therefore,the Parties agree that resolution of the issues contained in this Agreement shall be
deemed full and complete and,except as provided in Section 5 above,cannot be used to the detriment of
either Pany.
2
'7.Governing Law.This Agreement shall be interpreted and construed in accordance with the laws
of the State of Colorado,and shall not be interpreted in favor or against any Party to this Agreement
except as expressly provided herein.
8.Entire Agreement.This Agreement constitutes the entire agreement betwe Parties with
respect to the subject matter hereof and cannot be rescinded,amended or modified except in a writing
executed by authorized representatives of both Parties.The Parties have entered into this Agreementafter
conferring with legal counseL Each of the Parties forever waives all right to assert that this Agreement
was a result of a mistake in law or in fact.
9.Binding.Agreement.The terms and conditions contained in this Agreement shall inure to the
benefit of,and be binding upon,the Parties,their respective successors,affiliates and assigns.
10.Severability.If any provision of this Agreementshould be declared to be unenforceableby any
administrative agency,court of law,or other tribunal of competent jurisdiction the remainder of the
Agreement shall remain in full force and effect,and shall be binding upon the Parties hereto as if the
invalidated provisioli were not part of this Agreement.
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 other instance.
12.Counterparts.This Agreement may be executed by facsimile signature (provided it is
immediately followed by the original by mail)and.inany number of counterparts,each of which would be
deemed to be original and all of whichtaken togethershall constitute one and the same agreement.
13.Rules of Construction.The captions or headings in this Agreementare strictly for convenience
and shall not be considered in interpretingthis Agreementor as amplifying or limiting any of its content.
Words in this Agreement which importthe singular connotation shall be interpretedas plural,and words
which import the plural connotationshall be imerpretedas singular,as the identity ofthe Parties or
objects referredto may require.Unless expressly defined herein,words having well known tecimical or
trademeanings shall be so construed.All listing of items shall not be taken to be exclusive,but shall
include othdr items,whether similar or dissimilar to those listed,as the context reasonablyrequires.
IN WITNESS THEREOF,the Parties have caused this Facility DecommissioningAgreement to be
executed as of this g day of N VM/Jhool.
CLEC QWEST CORPORATION
By:By:
Name of Signatory Audre cKenney
Title:/Ñ£¿7M-U Title:Senior Vice President
By:
Steve Hansen
Title:Vice President
EXHTRITA
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JuH7-2001 ,Ç:47æ FrorCEST 4024222182 T-531 P.002/OOB F-4OT
CONFIDENTIAL BILLING SETTLEMENTAGREEMENT AND RELEASE
THIS CONFIDENTlAL BILLING SETTLEMENT AGREEMENT AND RELEASE ("Settlement
Agreement"),by and between US WEST Communications,Inc.("USW'),and Aliant Midwest inc.
dba ALLTEL ("ALLTEL"),is a complete and final settlement of the disputes described here.
1.DESCRIPTION OF DISPUTE.ALLTEL and USW entered into Interconnection
Agreements in the states of lowa and Nebraska,effective December 12,1997 and June 16,1997,
respectively ("InterconnectionAgreements"),which are now in dispute.
2.PURPOSE OF AGREEMENT.There have been disputes arising out of the
interconnection Agreements regarding amounts due by either party with respect to reciprocal
compensation.The parties desire to resolve their differences and settle all disputes relating to the
InterconnectionAgreements.
3.PAYMENT.Within five (5)business days from the date of ex-c lo ·.~s Settlement
Agreement,USW shall pay ALLTEL the sum of in complete
settlement of all outstandingamounts,both billed and unbilled,due for usage through February
29,2000.This settlement agreementcovers all amounts,both billed and unbilled,for Direct Trunk
Transport,Toll Access,and Reciprocal Compensationincludingtransit traffic.
4.BILL AND KEEP.This Settlement Agreement is,contingent upon the execution of an
amendment to the existing Interconnection Agreements changing the reciprocal compensation
arrangements to a system of hbill and keep,"under which the parties will no longer bili each other
for the termination of local traffic as of Wlarch 1,2000.Any future Interconnection Agreements
between the pahies will contain a "bill and keep"reciprocal compensation arrangement.Such
.arrangementwillbe effective at least untît December 31,2003.The Parties agree to move to "bill
and keep"for reciprocal compensation purposes because such a mechanism is appropriate.The
Parties also agree to treat ISP traffic under this "bill and keep"mechanism for compensation
purposes.
5.RELEASE..For valuable consideration mentioned above,the receipt and sufficiency of
which is hereby acknowledged,ALLTEL and USW do hereby release and forever discharge the
other and the other's associates,owners,stockholders,predecessors,successors,agents,
directors,officers,partners,employees,representatives,employees of affiliates,employees of
parents,employees of subsidiaries,affiliates,parents,subsidiaries,insurance carriers,bonding
companies and attorneys,from any and all manner of action or actions,causes or causes of
action,in law,under statute,or in equlty,suits,appeals,petitions,debts,fiens,contracts,
'-'agreements,promises,liability,claims,affirmative defenses,offsets,dernands,damages,losses,
costs,claims for restitution,and expenses,of any nature whatsoever,fixect or contingent,known
or unknown,past and present,asserted or that could have been asserted,in any way relatingto
or arising out of the areas discussed under Paragraph 3 above,which are guided by the
InterconnectionAgreementsin the states of lowa and Nebraska.
ALLTEL agrees not to seek reimbursement pursuant to the Nebraska Public Service
Commission order issued in Docket No.C-1950;and,within fifteen (15)days of the execution of
this Settlement Agreement,agrees to withdraw its appeals in Civil Action No.8:00CV16,before
the United States District Court for the District of Nebraska and Application No.A-00-0020,before
the Court of Appeals in Nebraska.
4-13-00/kdd/ALLTELISettlementAgreement 1
COS-000328-0109/c
HuH7-2OO1 07:47u From-QMST 4024222182 T-531 P.OO3/005 F-4OT
A 6.COMPROMISE.The parties agree that this settlement is the compromise of disputed
r claims and that neither party is admitting to liablDty.
'¯'7.ARBITRATION.In the event that either party asserts that the other party has breached its
obligations under this SettlementAgreement,the parties agree to submit the dispute to binding
arbitration,closed to the public,and conducted by the Rules of the American Arbitration
Association.Each party shall be responsiblefor its own fees and costs.The parties shall equally
share the fees and expenses of the arbitrator.
8.ENTIRE AGREEMENT.This Settlement Agreement is the entire agreement between
ALLTEL and USW and replaces any previous understanding or agreement.Any modification to
this Settlement Agreementmust be in writing and signed by both parties to be effective.
9.CONFIDENTIALITY.The parties agree that this Settlement Agreement is confidential and
will not disclose the terms and conditions herein.In the event either party breaches the
confidentiality of this Settlement Agreement,a monetary penalty will be assessed against the
breaching party.Given the difficult nature to asceltain harm that will result to the other pany upon
breach of the confidentiality provisions of this Settlement,Agreement,the parties agree that,in
case of a breach,the breaching party will pay the non-breaching party $250,000 in liquidated
damages within ten (10)days that the breachingparty leams of the breach or the non-breaching
party learns of the breach.whichever comes first.The parties agree that this amount reflects the
most likely damages that will occur as a result of a breach of the confidentiality provisions of this
Settlement Agreement.
10,APPLICABLE LAW.The laws of the state of Colorado shall govern the interpretation of
this SettlementAgreement
THE UNDERSIGNED DECLARE THAT THE TERMS OF THIS SETTLEMENT AGREEMENT
HAVE BEEN COMPLETELYREAD AND ARE FULLY UNDERSTOOD AND ARE VOLUNTARILY
ACCEPTED FOR THE PURPOSE OF MAKING A FULL AND FINAL COMPROMISE OF THE
DISPUTES BETWEEN THE PARTIES.
AI)t Midwest Inc.dba ALLTEL USW T Communicati ns,Inc.
gnature Signature
'James W.Strand Audrey McKenney
Name Printed/Typed Name Printedifyped
Vice President-Wholesale Markets
President Finance
Title Title
Date Date
1440 M Street,PO Box 81309 1801 California St.,#2410
Lincoln,NE 6850.1,2_Denver,CO 80202
Address of Notices Address of Notices
4-13-00/kdd/AŒTEUsettlement Agreement 2
CDS40032MM09/c
CONFIDENTIAL &PROPRIETARY
FACILITY DECOMMISSIONd AGREEMENT
TIES FACILIÈ DECOMMISSIONING A0REllifENT ("Agreement"),is made and
entered into as of this 8*day of October,2001 (the "Effective Date"),between Qwest Corporation
("Qwest")and Advanced Telcom Group,Inc.("CLEC")(Qwest and CLEC being sometimes
hereinafter referredto collectively as the "Parties"and individually as a "Party").
RECITALS
WEEREAS,Qwest,a local incumbent exchange provider,and CLEC,a competitive local exchange
provider,are parties to a certain interconnection agreement (the "Interconnection Agreement"),
executed pursuant to sections 251 and 252 of the Federal Telecommunications Act of 1996 (the
"Act");and
WHEREAS,pursuant to the Interconnection Agreement,CLEC has purchased physical and/or
virtual collocation and ancillary services from Qwest..
CLEC now desires to return to Qwest the
collocation sites identified in Exhibit A (the "Facilities")attached hereto and incorporated by
reference;and
WHEREAS,the Parties voluntarily enter into this Agreement as a final resolution to disputes
arising between the Parties regarding the terms and conditions of CLEC's retum of the Facilities
and the financial obligations of each Party with respect to each of the Facilities under the
InterconnectionAgreement.
NOW,THEREFORE,in considerationof the foregoingand other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows:
L Facility Decommissioning.In consideration for the Release and Waiver set forth below,
Qwest hereby agrees to decommission the Facilities and to waive all fees and charges associated
therewith.
2.Credit/Reimbursement.With respect to decommissioningquotes and the monthly
recurring charges previously invoiced to CLEC by Qwest,Qwest shall make a one-time creditto
CLEC for such deco issioning quotes non-recurringcharges and monthly recurring charges in
the sum of $6 the detail of which is set forth in Appendix A,hereto.This credit amount
will be applied,first,to satisfy any outstanding balances owed by CLEC to Qwest,if any,If a credit
balance remains,Qwest shall issue CLEC a check within thirty (30)days of the Effective Date
hereof.
3.Release and Waiver.
(a)For valuableconsiderationgiven by Qwest to CLEC as provided in Sections I and 2
above,CLEC hereby releases and forever discharges Qwest and its associates,owners,
stockholders,_predecessors,successors,agents,directors,officers,partners,employees,
representatives,emp Ñf affil öf parems employees of subsidiaries,-añiliates,
parents,subsidiaries,insurance carriers,bonding companies and attorneys,from any and all
manner ofaction or actions,causes or causes of action,in law,under statute,or in equity,suits,
appeals,petitions,debts,liens,contracts,agreements,promises,liability,claims,affirmative
defenses,offsets,demands,damages,losses,costs,claims for restitution,and expenses,of any nature
whatsoever,fixed or contingent,known or unknown,past and present asserted or that could have
been asserted or could be asserted in any way relating to or arising out ofthe Facilities or this
Agreement(the "Release and Waiver").CLEC hereby covenantsand warrantsthat it has not
assigned or transferredto 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,CLEC
expressly agrees to relinquish forever all rights and interest whatsoeverin the Facilities and to
remove all property it owns from the Facilities within thirty (30)days of the Effective Date of this
Agreementat CLEC's own expense.
(c)In the event CLEC fails to remove its equipment from the Facilities as provided above,
Qwest may,without notice or demand and in addition to any other right or remedy available at law
or equity,remove all of CLEC's equipment from the Facility and store the same at CLEC's
expense.CLEC expressly waivesany damages occasioned by such removal.Any equipmentso
removedwi]1 be retumed to CLEC upon payment in full of all storage costs.If within forty.
five (45)days following such equipmentremoval,CLEC has not requested the retum of its
equipmentand paid any sums owed,then Qwest may exercise all rights af ownership over such
equipmentincluding the right to sell same and retain possession of any sale proceeds.Qwest's
exercise of any remedies provided for in this Section 3 shall be without prejudice to any other
remedies Qwest may have provided for herein or by law.
4.Confidentialítv.
(a)The Parties expressly agree that they will keep the substance of the negotiations and .
or conditions of the settlement and the terms or substance of this Agreement strictly confidential.
The Parties further agree that they will not communicate (orally or in writing)or in any way
disclose the substance of negotiations and/or conditions of the settlement and the terms or
substance of this Agreement to any person,judicial or administrative agency or body,business,
entity or association or anyone else for any reason whatsoever,without the prior express written
consent of the other Party unless compelled to do so by law.It is expressly agreed that this
confidentiality provision is an essential element of this Agreement.The Parties agree that this
Agreement and negotiations,and all matters related to these two matters,shall be subject to the
Rule 408 of the Rules of Evidence,at the federal and state level.The Parties further agree that in
the event of à breach of the confidentíality provisions of this Agreement,the harm suffered by the
injured Party would not be compensable by monetary damages alone and,accordingly,that the
injured Party shall,in addition to other available legal or equitable remedies,be entitled to seek an
injunction against such breach.
(b)In the event either Party has a legal obligation which requires disclosure of the
terms and conditions of this Agreement,the Party having the obligation shall immediately notify
the other Party in writing of the nature,scope and source of such obligation so as to enable the
other Party,at its option,to take such action as may be legally pennissible so as to protect the
confidentiality provided for in this Agreement.At least ten days advance notice under this
paragraphshall be provided to the otherParty,wheneverpossible.
5.Binding Arbitration.Any claim,controversy or dispute between the Parties in connection
with this Agreement,shall 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 Artibration
Association.The Federal Arbitration Act,9 U.S.C.§§1-16,not state law,shall govern the
arbitrability of all disputes.T he¯ãrbilfãti ihall-only havenhe-authority--to-determine boch of
this Agreement,but shall not have the authority to award punitive damages.The arbitrator's
decision shall be final and binding and may be entered in any court having jurisdiction thereof.
Each Party shall bear its own costs and attomeys'fees and shall share equally in the fees and
expenses of the arbitrator.
6.Full Settlement.The Parties acknowledge and agree that legitimate disputes regarding
collocation facility decommissioning and the monetary obligations of each of the Parties have been
raised and that the resolution reached in this Agreement represents a binding compromise of the
Parties'positions.Therefore,the Parties agree that resolution of the issues contained in this
Agreement shall be deemed full and complete and,except as provided in Section 5 above,cannot be
used to the detrimentof either Party.
7.Governing Law.This Agreement shall be interpreted and construed in accordance with the
i laws of the State of Colorado,and shall not be interpreted in favor or against any Party to this
Agreementexcept as expressly providedherein.
8.Entire Agreement.This Agreement constitutes the entire agreement between tfie Èarties
with respect to the subject matter hereof and cannot be rescinded,amended or modified except in a
writing executed by authorized representatives of both Patties.The Parties have entered into this
Agreement after conferring with legal counsel.Each of the Parties forever waives all right to assert
that this Agreementwas a result of a mistake in law or in fact,
9.Binding Áfreement.The terms and conditions contained in this Agreement shall inure to
the benefit of,and be binding upon,the Parties,their respective successors,affiliates and assigns.
10.Severability.If any provision of this Agreement should be declared to be unenforceableby
any administrative agency,court of law,or other tribunal of competent jurisdiction the remainder
of the Agreement shall remain in full force and effect,and shall be binding upon the Parties hereto
as ifthe invalidated provision were not part ofthis Agreement.
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 other instance.
12.Counterparts.This Agreement may be executed by facsimile signature (provided it is
immediately followed by the original by mail)and in any numb,er of counterparts,each of which
would be deemed to be original and all of which taken together shall constitute one and the same
agreement.
13.Rules of Coristruction.The captions or headings in this Agreementare strictly for
convenienceand shalinotbe considered in interpretingthis Agreementor as amplifying or limiting
any of its content.Words in this Agreementwhich import the singular connotationshall be
interpretedas plural,and nords which import the plural connotationshall be interpreted as
singular,is the identity of the Parties or objects referredto may require.Unless expressly defined
herein,words having well known technical or trade meanings shall be so construed.All listing of
items shall not be taken to be exclusive,but shall include other items,whether similar or dissimilar
to those listed,as the context reasonably requires.
IN WITNESS THEREOF,the Parties have caused this Facility DecommissioningAgreementto be
executed as of this 86 day of October,2001.
QWES O ORATIONC
Eric Russell--Audre e enney
Title:Vice President Title:SeniorV President
By:
|Steve Hansen
Title:Vice President
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_CONFIDENTIAL &PROPRIETARY
FACILITY DECOMMISSION AGREEMENT
THIS FACILIÑ DECOl IISSIONING AÖREEIVIENT ("Agreement"),is made and
entered into as of this 86 day of October,2001 (the "Effective Date"),between Qwest Corporation
("Qwest")and Advanced Telcom Group,Inc.("CLEC")(Qwest and CLEC being sometimes
hereinafter refered to collectively as the "Parties"and individually as a "Party").
RECTTALS
WHEREAS,Qwest,a local incumbent exchange provider,and CLEC,a competitive local exchange
provider,are parties to a certain interconnection agreement (the "Interconnection Agreement"),
executed pursuant to sections 251 and 252 of the Federal Telecommunications Act of 1996 (the
"Act");and
WHEREAS,pursuant to the Interconnection Agreement,CLEC has purchased physical and/or
virtual collocation and ancillary services from Qwest..
CLEC now desires to return to Qwest the
collocation sites identified in Exhibit A (tbe "Facilities")attached hereto and incorporated by
reference;and
WHEREAS,the Parties voluntarily enter into this Agreement as a final resolution to disputes
arising between the Parties regarding the terms and conditions of CLEC's retum of the Facilities
and the f3nancial obligations of each Party with respect to each of the Facilities under the
InterconnectionAgreement.
NOW,THEREFORE,in·considerationof the foregoingand other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows:
1.Facilitv Decommissioning.In consideration for the Release and Waiver set forth below,
Qwest hereby agrees to decommission the Facilities and to waive all fees and charges associated
therewith.
2,Credit/Reimbursement.With respect to decommissioningquotes and the monthly
recurring charges previously invoiced to CLEC by Qwest,Qwest shall make a one-time credit to ,
CLEC for such deco issioningquotes non-recurringcharges and monthly recurring charges in
the sum of $6 the detail of which is set forth in Appendix A,hereto.This credit amount
will be applied,first,to satisfy any outstandingbalances owedby CLEC to Qwest,if any.If a credit '
balance remains,Qwest shall issue CLEC a check within thirty (30)days of the Effective Date
hereof.
3.Release and Waiver.
(a)For valuableconsiderationgiven by Qwest to CLEC as provided in Sections 1 and 2
above,CLEC hereby releases and forever discharges Qwest and its associates,owners,
stockholders,1re lecessors,successors,agents,directors,officers,partners,employees,
representatives,employeeii 11 öf pättimmployeerofobsidiariesgliates,
parents,subsidiaries,insurance carriers,bonding companies and attorneys,from any and all
manner ofaction or actions,causes or causes of action,in law,under statute,or in equity,suits,
appeals,petitions,debts,liens,contracts,agreements,promises,liability,claims,affirmative
defenses,offsets,dernands,damages,losses,costs,claims for restitution,and expenses,of any nature
whatsoever,fixed or contingent,known or unknown,past and presentasserted or that could have
been asserted or could be asserted in any way relating to or arising out of the Facilities or this
Agreement(the "Release and Waiver").CLEC herebycovenantsand warrantsthat it has not
assigned or transferredto 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,CLEC
expressly agrees to relinquish forever all rights and interest whatsoeverin the Facilities and to
remove all property it owns from the Facilities within thirty (30)days ofthe Effective Date of this
Agreement at CLEC's own expense.
(c)In the event CLEC fails to remove its equipment from the Facilities as provided above,
Qwest may,without notice or demand and in addition to any other right or remedy available at law
or equity,remove all of CLEC's equipment from the Facility and store the same at CLEC's
expense.CLEC expressly waivesany damages occasioned by such removal.Any equipmentso
removedwill be returned to CLEC upon payment in full of all storage costs.If within forty-
five (45)days following such equipment removal,CLEC has not requested the return of its
equipmentand paid any sums owed,then Qwest may exercise all rights of ownershipover such
equipmentincluding the right to sell same and retain possession of any sale proceeds.Qwest's
exercise of any remedies provided for in this Section 3 shall be without prejudice to any other
remedies Qwest may haveprovidedfor herein or by law.
4.Confidentialítv.
(a)The Parties expressly agree that they will keep the substance of the negotiations and .
or conditions of the settlement and the terms or substance of this Agreement strictly confidential.
The Parties father agree that they will not communicate (orally or in writing)or in any way
disclose the substance of negotiations and/or conditions of the settlement and the terms or
substance of this Agreement to any person,judicial or administrative agency or body,business,
entity or association or anyone else for any reason whatsoever,without the prior express written
consent of the other Party unless compelled to do so by law.It is expressly agreed that this
confidentiality provision is an essential element of this Agreement.The Parties agree that this
Agreement and negotiations,and all matters related to these two matters,shall be subject to the
Rule 408 of the Rules of Evidence,at the federal and state level.The Parties further agree that in
the event of à breach of the confidentiality provisions of this Agreement,the harm suffered by the
injured Party would not be compensable by monetary damages alone and,accordingly,that the
injured Party shall,in addition to other available legal or equitable remedies,be entitled to seek an
injunction against such breach.
(b)In the event either Party has a legal obligation which requires disclosure of the
terms and conditions of this Agreement,the Party having the obligation shall immediately notify
the other Party in writing of the nature,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 this Agreement.At least ten days advance notice under this
paragraph shall be provided to the other Party,wheneverpossible.
5.Binding Arbitration.Any claim,controversy or dispute between the Parties in connection
with this Agreement shall 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 Artibration
Association.The Federal Arbitration Act,9 U.S.C.§§1-16,not state law,shall govern the
arbitrability of all dispulis¯¯¯ThT¯iiniiffãtõt shall¯¯only have e-authorityde-determinediceach of
this Agreement,but shall not have the authority to award punitive damages.The arbitrator's
decision shall be final and binding and may be entered in any court having jurisdiction thereof.
Each Party shall bear its own costs and attomeys'fees and shall share equally in the fees and
expenses of the arbitrator.
6.Full Settlement.The Parties acknowledge and agree that legitimate disputes regarding
collocation facility decommissioning and the monetary obligations of each of the Parties have been
raised and that the resolution reached in this Agreement represents a binding compromise of the
Parties'positions.Therefore,the Parties agree that resolution of the issues contained in this
Agreement shall be deemed full and complete and,except as provided in Section 5 above,cannot be
used to the detrimentof either Party.
7.Governing Law.This Agreement shall be interpreted and construed in accordance with the
1 laws of the State of Colorado,and shall not be interpreted in favor or against any Party to this
Agreementexcept as expressly.providedherein.
8.Entire Agreement.This Agreement constitutes the entire agreement
between¯tiParties
with respect to the subject matter hereof and cannot be rescinded,amended or modified except in a
writing executed by authorized representatives of both Parties.The Parties have entered into this
Agreement after conferring with legal counsel.Each of the Parties forever waives all right to assert
that this Agreementwas a result of a mistake in law or in fact.
9.Binding Aÿreement.The terms and conditions contained in this Agreement shall inure to
the benefit of,and be binding upon,the Parties,their respective successors,affiliates and assigns.
10.Severability.If any provision of this Agreementshould be declared to be unenforceableby
any administrative agency,court of law,or other tribunal of competent jurisdiction the remainder
of the Agreement shall remain in full force and effect,and shall be binding upon the Parties hereto
as if the invalidated provision were not part ofthis Agreement.
I1.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 other instance.
12.Counterparts.This Agreement may be executed by facsimile signature (provided it is
immediately followed by the original by mail)and in any numb,er of counterparts,each of which
would be deemed to be original and all of which taken together shall constitute one and the same
agreement.
13.Rules of Construction.The captions or headings in this Agreementare strictly for
convenienceand shall not be considered in interpretingthis 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 connotationshall be interpretedas
singular,is the identity of the Parties or objects referredto may require.Unless expressly defined
herein,words having well known technical or trade meanings shall be so construed.A11 listing of
items shall not be taken to be exclusive,but shall include other items,whether similar or dissimilar
to those listed,as the context reasonably requires.
IN WITNESS THEREOF,the Parties havecaused this Facility Decommissioning Agreernentto be
executed as of this 8*day of October,2001.
B
BySOOM
Eric Russell---.&c enney
Title:Vice President Title:SeniorV President
By:;
Steve Hansen
Title:Vice President
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i.PURPOSE
This Confidential SettlementAgreementand Release ("Agreement")is
entered into between-Owest Corporation,on behalfof itself and its subsidiaries,
affiliated companies,directors,officers,employees,and shareholders
(collectively "Qwest"),and Ernest Communications,Inc.,on behalf of itself and
its subsidiaries,affiliated companies,directors,officers,employees,and
shareholders (collectively Ernest"),to effect a complete and final settlementof
all of Ernest's claims or causes of action related to its request on February 16,
2001 of the Federal Communications Commission (the "Commission")for
Accelerated Docket treatment of Ernest's dispute with Qwest concerning the
provision of the unbundlednetwork element platform ("UNE-P")for lines servingpayphones.
II.RECITALS
A.In November of 1998,the parties entered into interconnection
agreements under 47 U.S.C.§252 in the states of Arizona,Colorado,Oregon,
and Washington.Each of these agreements later became effective upon
approval by the respective state commissions in those states.
B.Following the Commissioris issuance of its decision in in the Matter
of Implementst¡onof the Local Competition Provisions of theTelecommunicationsActof1996,CC Docket No.96-98,Third Reportand Ottier,
FCC 99-266 (rel.Nov.5,1999)("UNE Remand Order"),the parties amended
their interconnectionagreements to specify that Qwest is generally obligated to
provide UNE-P to Emest.
C.Ernest and Qwest disputed the rights and obligations of each with
respect to Ernest's request that Qwest provide UNE-P for lines serving
payphones (the "Disputes").
D.After discussions between the parties,the parties could not reach
an agreement concerning the Disputes.
E.Ernest subsequentlyrequested,by a letter filed February 16,2001,
that the Commission resolve the Disputes through the Commission's
Accelerated Docket process.
F.Without resort to further litigation of any nature,the parties desire
to confidentiallysettle the Disputes,including all claims arising out of the
Disputes that Emest raised or could have raised through the date of thisAgreement.
G.The Parties agree that this Agreementis entered to resolve past
Disputes anct,_in significant part,based on Ernest's customer profile.
III.TERMS
Pa ment to Ernest.Qwestwill wire to Ernest a paymento
(the "Payment")wi I
ve usmes .
n42m vi:sa_on.ooc
Confidential SettlementAgreement
Ernest/Qwestp.2of4
B.Provision of UNE-P for Lines Serving Payphones.Qwest will,as
of September 1,2001 and consistent with its UNE-P PAL product offering,
accept orders from Ernest for payphone access lines,includingorders to convert
Ernest's current base of resold payphone lines to UNE-P PAL.Emest agrees to
follow Qwèst'sprocesses for submitting orders for UNE-P PAL including paying
all applicable recurring and non-recurringcharges for such services.
C.Dismissal of Complaint.Within two business days of receipt of
the Payment,Ernest will withdraw as February 16,2001 Accelerated Docket
request with prejudice,in a form mutuallyagreeable to both parties,and provide
a copy of such withdrawalto Qwest.
D.Release of Claims.For valuable consideration,the receipt and
sufficiencyof which are hereby acknowledged,the Parties do hereby release,
forego,and forever discharge each other and their respective associates,
owners,stockholders,predecessors,successors,agents,directors,officers,
partners,employees,representatives,emplóyees of affiliates,employees of
parents,employees of subsidiaries,affiliates,parents,subsidiaries,insurance
carriers,bonding companies,and attomeys,from any and all claims,demands,
actions,causes,causes of action,suits,appeals,petitions,oppositions,
statements,debts,liens,contracts,agreements,promises,liability,affirmative
defenses,offsets,demands,damages,josses,costs,claims for restitution,and
expenses,of any nature whatsoever,whetherthose be in law,under statute,or
in equity,fixed or contingent,past and present,known or unknown,asserted,or
which could have been asserted by either Party arising out of or related to the
Disputes,through the date of this Agreement.
E.Use of UNE-P by Non-CLEC Affiliated PayphoneService
Providers.Emest agrees that it will not fumish payphone service through UNE-
P to any affiliated payphone service provider entity.For the purposes of this
Section E,an affiliated payphone service provider entity is any entity providing
service to payphone providers that is controlled by,controls,or is under common
control with,Ernest.
F.Compromise.This Agreementis made for settlement purposes
only.The terms in this Agreement are the resultof compromise and negotiation
by both Parties of positions which they held and continueto hold.Nothing in this
Agreement,including the fact that it was entered into by the Parties,shall
constitute,or be construed as,an admission on behalf of any of the Parties as to
the validityof any claims,defenses,or allegations made in connection with this
Dispute.No precedential effect or other significance exceptas may be
necessary to enforce this Agreement,shall attach to any principle or
methodology contained in this Agreement.
G.Confidentiality.The Parties and their respective attorneys and
agents expressly agree that they will keep the substance of the negotiations
and/or conditions of the settlement and the terms or substance of this Agreement
strictly confidential,except to the extent that such disclosure is required by law or
is necessary to enforce the Agreement.The Parties further agree that,unless
compelled to do so by law,they will not communicate (either orally or in writing)
ConfidentialSettlement Agreement
;-Emest/Qwest
p.3of4
or in anyway disclose the substance.ofnegotiations and/or conditions of the
settlementand the terms or substance of this Agreementto any person,Judicial,
or administrativeagency or body,business,entity,or association,or anyoneelse
for any reason whatsoever,without the prior express written consent of the other
Party.It is.expressly agreed that this confidentialityprovision is an essential
element of this Agreement.The Parties furtheragree that this Agreementand
negotiations,and all disputes related to these matters,shall be subjectto Rule
408 of the Rules of Evidence,at both the state and federal level.Finally,in the
event either Party has a legal obligation that requires disclosure of the terms and
conditions of this Agreement,the Party having the obligation shall immediately
notifythe other Party in writíngof the nature,scope,and source of such
obligations,so as to enable the other Party,at its option,to take such action as
may be legally permissible so as to protect the confidentialityprovidedfor in this
Agreement.
H.Dispute Resolution.Any claim,controversyor disputearising out
of this Agreement,whether sounding in contract,statute,tort,fraud,
misrepresentation or other legal theory,between or among the parties or their
officers,directors or employees shall be resolved by arbitration.The Federal
Arbitration Act,9 U.S.C.§§1-16,not state law,shall govem the arbitrability of all
claims.A single arbitrator engaged in the practice of law shall conduct the
arbitration under the then-current rules of the American Arbitration Association.
The arbitrato(s award shall be final and binding and may be entered in any court
having jurisdiction thereof.The prevailing party,as determined by the arbitrator,
shall be entitled to an award of reasonable attorneys'fees and costs.The laws
of the State of Colorado shall govern the construction and interpretation of this
Agreement and the arbitration shall occur in the State of Colorado.It is
expressly agreed that either party may seek injunctive relief or specific
performance of the obligations hereunderin an appropriate court of law or equity
pending an award in arbitration.
I.Binding.This Agreement shalt inure to and bind the parties
hereto,their respective legal representatives,successors,assigns,affiliates,
shareholders,officers,directors,employees,principals,agents,and
underwriters.
J.Authorization to Execute this Agreement.The undersigned,by
their execution of this Agreement,representthat they are duly authorized to
enter into this Agreement on behalf of Ernest and Qwest,respectively,and that
their signatures to this Agreement bind their respective principals to the terms of
this Agreement.
K.Counterparts.This Agreementmay be executedin one or more
counterparts,and transmitted by facsimiië¯Thecountëfgiaitš taken together
shall constitute the whole Agreement.
L.Entire Agreement.Each party acknowledgesthat no promise,
inducement,or agreement not expressed herein has been made,and that this
Agreement contains the entire agreement between the parties,and that the
terms of this Agreement are contractual and not a mere recitaL Any modification
to this Agreement must be in writing and signed by both parties to be effective.
.'Confidential SettlementAgreement
'EmestlQwest
p.4 of 4
M.Severability.If any provision of this Agreement-is held to be
invalid,the remaining provisions shall remain in full force and effect.
N.Assignment.-EachParty represents and warrants that the Pady
owns the çIaims released herein by that Party and it has not sold,assigned,or
otherwisetransferred such claims,or any interest in them.
O.Costs and Fees.The Parties agree that each Party will be
responsible for the paymentof its own attomeys'fees and other expenses
incurred in connectionwith the dispute which led to this Agreement.
P.No Third Party Beneficiaries.This Agreement is intended to
inure only to the benefit of Ernest and Qwest,and their respective associates,
owners,shareholders,predecessors,successors,agents,directors,officers,
partners,employees,representatives,employees of affiliates,employees of
parents,employees of subsidiaries,affiliates,parents,subsidiaries,insurance
carriers,bonding companies,and attorneys The parties do not intent to create
any rights or benefits for any other persons or entities.
DATE:
S,INC
Its:
DATE:7/ot
QWEST CORPORATION
1342227 vi;sa_sottooc
CONFIDENTIAL &FROPRIETARY
FA CILITYDECOMMISSIONINGAGREEMENT
THIS FA ITY DECOMMIpSSNING AGREEMENT ("Agreement"),is made and entered
into as of this day of UV ,2001 (the "Effective Date"),between Qwest Corporation
("Qwest")and DSLaet Communications,LLC ("DSLaet")(Qwest and DSLoet being sometimes
hereinanerreferredto collectively as the "Parties"and individually as a "Patty").
RECITALS
WIIEREAS,Qwest,a local incumbent exchange provider,and DSLaet,a competitive local exchange
provider,are parties to a certain interconnection agreement (the "InterconnectionAgreement"),executed
pursuant to sections 251 and 252 of the Federal TelecommunicationsAct of 1996 (the "Act");and
WHEREAS,pursuant to the Interconnection Agreement,DSLnet has purchased physical and/or virtual
collocation and ancillary services from Qwest.DSLaet now desires to return to Qwest the collocation
sites identified in Exhibit A (the "Facilities")attached bereto and incorporatedby reference;and
WHEREAS,the Parties voluntarily enter into this Agreement as.a final resolution to disputes arising
between the Panies regarding the terms and conditions of DSLaet's return of the Facilities and the
financial obligations of each Party with respect to each of the Facilities under the Interconnection
Agreement.
NOW,THER£FORE,in consideration of the foregoingand other good and valuable consideration,the
receipt and sufficienäy of yvhich are hereby acknowledged,the Parties agree as follows:
1.Facility Decommissioning.In consideration for the Release and Waiver set forth below,Qwest
hereby agrees to decommission the Facilities and to waive all fees and charges associated therewith.
2,~Ùredit/Reimbursement.In the event that DSLnet was previously invoiced and paid Qwest for
the decommissioningquotes and the monthly recuning charges past the date of acceptance of the valid
decommissioningapplication,Qwest shall make a one-time credit to DSLeet for the sum of any non-
recurring charges paid for the decommissioningand any monthly recurring charges paid for the Facilities
afterthe date of Qwest's acceptance and validation of the decommissioningrequest.This creditamount e,
will be applied,first,to satisfy any outstandin balances owed bv DSLnet to est,if any.If a credit
balance remains,(CHOOSËONE e DSLnet may request the credit be paid them via check.uch
check shall be issued by Qwest withm Irty (3 ys o cave hereo est shall
provide a one-time credit to DSLnet to be used to offset future amounts payable to Qwest pursuantto
other agreements between the Parties.]
3.Release and Waiver.
(a)Forvaluableconsiderationto be paid by Qwest to DSLuet as provided in Sections 1 and
2 above,DSLnet bereby releases and forever discharges Qwest and its associates,owtters,stockholders,
predecessors,successors,agents,directors,of5cers,partners,employees,representatives,employeesof
affiliates,employees of parents,employees of subsidiaries,affiliates,parents,subsidiaries,insurance
catriers,bonding companies and attomeys,from any and alÍ manner of action or actions,causes or causes
of action,in law,under statute,or in equity,suits,appeals,petitions,debts,liens,comracts,agreements,
promises,liability,claims,affirmative defenses,offsets,demands,damages,losses,costs,claims for
restitution,and expenses,of any nature whatsoever,fixed or contingent,known or unknown,past and
present asserted or that could havebeen asserted or could be asserted in any way relating to or arising out
of the Facilities or this Agreelnent (the "Release and Waiver").DSLaet hereby covenantsand warrants
that it has not assigned or transferredto 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,DSLaetexpressly
agrees to relinquish foreverall rights and interest whatsoever in the Facilities and to remove all property it
owns from the Facilities within thirty (30)days of the EffectiveDate of this Agreement at DSLaet's own
expense.
(c)In the eventDSLnet fails to remove its equipment from the Facilities as provided above,
Qwest may,without notice or demand and in addition to any other right or remedy available at law or
equity,remove an of DSLnet's equipment from the Facility and store the sarne at DSLaet's expense.
DSLnet expressly waivesany damages occasioned by such removal.Any equipmentso removed will be
returnedto DSLnet upon payment in full of all storage costs.If within forty-five (45)days following
such equipmentremoval,DSLuet has not requested the return of its equipment and paid any sums owed,
then Qwest may exercise all rights of ownership over such equipment including the right to sell same and
retain possession of any sale proceeds.Qwest's exercise of any remedies provided for in this Section 3
shall be without prejudiceto any other remedies Qwest may have provided for herein or by law.
4.Confidentialitv.
(a)The Parties expressly agree that they will keep the substance of the negotiations and or
conditions of the settlement and the terms or substance of this Agreement strictly confidential.The ..
Parties further agree that they will not communicate (o'rally or in writing)or in any way disclose the
substance of negotiations and/or conditions of the settlement and the terms or substance of this
Agreement to any person,judicial or administrative agency or body,business,entity or association or
anyone c]se for any reason whatsoever,without the prior express written consent of the other Party unless
compelledto do so by law.It is expressly agreed that this confidentiality provision is an essential element
of this Agreement.The Parties agree that this Agreement and negotiations,and all matters related to
these two matters,shall be subject to the Rule 408 of the Rules of Evidence,at the federal and state level.
The Panies further agree that in tbe event of a breach of the confidentiality provisions of this Agreement,
the harm suffered by the injured Party would not be compensable by monetary damages alone and,
accordingly;that the igj.ured Party shall,in addition to other available legal or equitable remedies,be
entitled to seek an injunction against such breach.
(b)In the event either Party has a legal obligation which requires disclosure of the terms and
conditions of this Agreement,the Party having the obligation shall ímmediately notify the other Party in
writing of the nature,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 se as to protect the confidentiality provided for in this
Agreement.At least ten days advance notice under this paragraphshall be provided to the other Party,
wheneverpossible.
5.Binding Arbitration.Any claim,controversyor dispute between the Parties in connection with
this Agreement,shall be resolvedby private and confidential arbitration conducted by a single arbitrator
engaged in the practice of law,underthe then current rules of the American Artibration Association.The
Federal Arbitration Act,9 U.S.C.§§1-16,not state law,shall govern the arbitrability of all disputes.The
arbitrator shall only have the authority to determine breach of this Agreement,but shall not have the
authority to award punitive damages.The arbitrator's decision sball be final and binding and may be
entered in any court havingjurisdiction thereof.Each Party shall bear its own costs and attorneys'fees
and shall share equally in the fees and expenses of the arbitrator.
6.Full Settlement.The Parties acknowledge and agree that legitimate disputes regarding
colocation facility decommissioningand the monetary obligations of each of.tbe Parties have been raised
and that the resolution reached in this Agreement represents a binding compromise of the Parties'
positions.Therefore,the Parties agree that resolution of the issues contained in this Agreement shall be
deemed full and complete and,except as provided in Section 5 above,cannot be used to the detriment of
either Party.
2
7.GoverninÿLaw.This Agreement shall be interpreted and construed in accordance with the laws
of the State of Colorado,and shall not be interpreted in favor or against any Party to this Agreement
except as expressly providedherein.
8.Entire Agreement.This Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereofand cannot be rescinded,amended or modified except in a writing
executed by authorized representatives of both Panies,The Parties have entered into this Agreementafter
conferring with legal counsel.Each of the Parties forever waives all right to assen that this Agreement
was a result of a mistake in law or in fact.
9.Bindinÿ Agreement.The terns and conditions contained in this Agreement shall inure to the
benefit of,and be binding upon,the Parties,their respective successors,affiliatesand assigns.
10.Severability.Ifanyprovision of this Agreementsbould be declared to be unenforceable by any
administrative agency,court of law,or other tribunal of competent jurisdiction the remainder of the
Agreement shall remfin in full force and effect,and shall be binding upon the Parties hereto as if the
invalidated provision were not part of this Agreement.
11.Waiver.De waiverof any right on one or more occasions.by either Party shall not constitute a
waiver of any such right in any other instance.
12.Counterparts.This Agreement may be executed by facsimile signature (provided it is
immediately followed by the original by meil)and in any number o¶pounterpans,each of which would be
deemed to be original and all of which taken togethershall constitute one and the same agreement.
13.Rules of Construction.The captions or headings in this Agreementare strictly for convenience
and shall not be considered in interpretingthis Agreement or as amplifying or limiting any of its content.
Words in this Agreement Yvhich import the singularconnotationshall be interpreted as plural,and words
which import the plural connotation shall be interpretedas singular,as the identity of the Parties or
objects.referredto may réquire.Unless expressly defmedherein,words having well known technical or
trade tricanings shall be so construed.All listing of items shall not be taken to be exclusive,but shall
include other items,whether similar or dissimilar to those listed,as the context reasonablyfequires.
IN WITNESS THERgF,the Par ies have caused this Facility DecommissioningAgreement to be
executed as of this y day of Ald/2001.
BDSLuetComrmmintions,LLC QWES CORPORA
Wendy Bluemling Au e eKenmy
Title:AVP RegulatoryAffairs Title:Se ser Vice President
By:
|Steve Hansen
Title:Vice President
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CONFIDENTIAL &PROPRIETARY
FACILITYDECONTMISSIONINGAGREENŒNT
THIS FACILTTY DECO IISSI AGREEMENT ("Agreement"),is made and entered
into as of this ]day of M AM001 (the "Effective Date"),betweenQwest Corporation
("Qwest")and Integra Telecom west and Integra being sometimes hereinafterreferred to collectively
as the "Parties"and individuallyas a "Party").
RECTTALS
WHEREAS,Qwest,a local incumbent exchange provider,and INTEGRA,a competitive local exchange
provider,are parties to a certain interconnection agreement (the "InterconnectionAgreement"),executed
pursuant to sections 25 I and 252 of the Federal Telecommunications Act of 1996 (the "Act");and
WHEREAS,pursgant to the Interconnection Agreement,INTEGRA has purchased physical and/or
virtual collocation and ancillary services from Qwest.INTEGRA now desires to return to Qwest the
collocation sites identified in Exhibit A (the "Facilities")attached hereto and incorporatedby reference;
and
WHEREAS,the Pames voluntarily enter into this Agreement as a fmal resolution to disputes arising
between the Parties regardingthe terms and conditions of INTEGRA's return of the Facilities and the
financial obligations of each Party with respect to each of the Facilities under the Interconnection
Agreement.
NOW,THEREFORE,.in consideration of the foregoingand other good and valuable consideration,the
receipt and sufficiency of which are hereby acknowledged,the Panies agree as follows:
1..Facilkv Decommissioning.In considemtion for the Release and Waiver set forth below,Qwest
hereby agree:s to decommission the Facilities and to waiveall fees and charges associated therewith.
2.Credit/Reimbursement.In the event that INTEGRA was previouslyinvoiced and paidQwest
for the decommissioning quotes and the monthly recurringcharges past the date of acceptance ofthe valid \
decommissioning application,Qwest shall make a one-time credit to INTEGRA for the sum of any non-
,recumng charges paid for the decommissionmg and any monthly recurringcharges paid for the Facilities
afterthe date of Qwest's acceptance and validation of the decommissioning request.This creditamount
will be applied,first,to satisfy any outstanding balances owed by 1NTEGRAto Qwest,if any.If a credit
balance remams,(CEOOSE ORE:INTEGRA may request the credit be paid them via chec uch
check sha «st withm thirry (30)days of the Fffective Thte herrnf -OR est s pl3
ro a one-time creditto INTEGRA to be used to offset future amounts payable to Qwest pursuantto *
other agreements between the Panies.
3.Release and Waiver.
(a)For valuableconsideration to be paidby Qwest to INTEGRA as provided in Sections 1
and 2 above,INTEGRAbereby releases and forever discharges Qwest and its associates,owners,
stockholders,predecessors,successors,agents,directors,officers,parmers,employees,representatives,
employees of af61iates,employees of parems,employees of subsidiaries,affiliates,parems,subsidiaries,
insurance carriers.bondingcompanies and attomeys,from any and all manner of action or actions,cause:
or causes of action,in law,under statute,or in equity,suits,appeals,petitions,debts,¡ieña,contracts,
agreements,promises,liability,claims,affirmative defenses,offsets,demands,damages,losses,costs,
claims for restitution,and expenses,of any nature whatsoever,fixed or contingent,known or unknown,
past and present asserted or that could have been asserted or could be asserted in any way relating to or
arising out.ofthe Facilities or this Agreement (the "Release and Waivef).INTEGRAhereby covenants
a
r
and warrants that it has not assigned or transferred to any person any claim,or portion of any claim which
is released or discharged by this Agreement.
(b)As part of the Release and Waiverdesenbed in the previous paragraph,INTEGRA
expressly agrees to relinquishforeverall rights and interest whatsoever in the Facilities and to remove all
property it owns from the Facilities within thirty (30)days of the EffectiveDate of this Agreement at
INTEGRA's own expense.
(c)In the event INTEGRA fails to remove its equipment fromthe Facilities as providedabove,
Qwest raay,without notice or demand and in addition to any other right or remedy availableat law or
equity,remove all of INTEGRA's equipment from the Facility and store the same at INTEGRA's
expense.INTEGRA expressly waives any damages occasioned by such removal.Any equipment so
removedwill be returned to INTEGRAupon payment in full of all storage costs.If withm forty-five (45)
days following such equipment removal,INTEGRA bas not requested the retum of its equipment and
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 sale proceeds.Qwest's exercise of any remedies provided
for in this Section 3 shall be without prejudice to any other remedies Qwest may haveprovidedfor herein
or by law.
(d)For valuableconsideration to be paid by INTEGRA to Qwest as provided herein,Qwest hereby
releases and forever discharges INTEGRA and its associates,owners,stockholders,predecessors,
successors,agents,directors,officers,paliners,employees,representatives,employees of affiliates,
employees of parents,employees of subsidiaries,añiliates,parents,subsidiaries,insurance carrien,
bonding companies 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,petitions,debts,liens,contracts,agreements,
promises,liability,claims,affirmative defenses,offsets,demands,damages,losses,costs,claims for
restitution,and expenses,of any nature whatsoever,fixed or contingent,loown or unknown,past and
present asserted or that could have been asserted or could be asserted in any way relating to or arising out
of the decommissioning fees for those Facilities set forth in Exhibit A hereto.
4.Confidentialitv.
(a)The Parties expressly agree that they will keep the substance of the negotiations and or
conditions of the settlement and the terms or substance of this Agreement strictly confidential.The
Parties further agree that they will not communicate (orally or in writing)or in any way disclose the
substance of negotiations and/or conditions of the settlement and the terms or substance of this
Agreementto any person,judicial or administrativeagency or body,business,entity or association or
anyone else for any reason whatsoever,without the prior express written consent of the other Party unless
compelled to do so by law.It is expressly agreed that this confidentiality provision is an essential element
of this Agreement.The Parties agree that this Agreementand negotiations,and all matters related to
these two matters,shall be subject to the Rule 408 of the Rules of Evidence,at the federaland state Icvel.
The Parties furtheragree that in the event of a breach of the confidentiality provisions of this Agreement,
the hann suffered by the injured Party would not be compensable by monetary damages alone and,
accordingly,that the injured Party shall,in addition to other available legal or equitable remedies,be
entitledto seek an injunction against such breach.
(b)In the event either Party has a legal obligation which requires disclosure of the terms and
conditions of this Agreement,the Party having the obligation shall immediatelynotify the other Putya
writing of the nature,scope and source of such obligation so as to enable the other Party,at as opnu,to
take such action as may be legally permissible so as to protect the confidentiality provided for in this
Agreement.At least ten days advance notice under this paragraphshall be provided to the other Party,
wheneverpossible.
5.Binding Arbitration.Any claim.controversyor dispute between the Parties in connection with
2
this Agreement,shall be resolved by påvate and confidentialarbitration conducted by a single arbitrator
engaged in the practice of law,under the then current rules of the Arnerican Arbitration Association.The
Federal ArbitrationAct,9 U.S.C.§§1-16,not state law,shall govem the arbitrability of all disputes.The
arbitrator shall only have the authority to determine breach of this Agreement,but shall not have the
authority to award punitive damages.The arbitrator'sdecision shan be final and binding and may be
entered in any court havingjurisdiction thereof.Each Party shall bear its own costs and attomeys'fees
and shall share equally in the fee_s and expenses ofthe arbitrator.
6.Full Settlement.The Parties acknowledge and agree that legitimate disputes regarding
coDocation facility decommissioning and the monetary obligations of each of the Parties havebeen raised
and that the resolution reached in this Agreement represents a binding compromise of the Parties'
positions.Therefore,the Parties agree that resolutionof the issues contained in this Agreement shall be
deemed full and complete and,except as providedin Section 5 above,cannot be used to the detriment of
eitherParty.
7.Governing Law.This Agreement shall be interpreted and construed in accordancewith the laws
of the State of Colorado,and shall not be interpreted in favor or against any Party to this Agreement
except as expressly providedherein.
8.Entire Ayreement.This Agreernent constitutes the entire agreement betweert the Parties with
respect to the subject matter hereof and cannot be rescinded,amended or modified except in a writing
executedby authorized representatives ofboth Parties.TheParties have entered into this Agreement after
conferringwith legal counsel.Each of the Parties foreverwaivesall right to assert that this Agreement
was a result of a mistake in law or in fact.
9.Binding Agreement.The terms and conditions contained in this Agreement shall inure to the
benefitof,and be bindingu¡ion,the Parties,their respective successors,af61iates and assigns.
10.Severnbilitv.If any provision of this Agreement should be declared to be unenforceableby any
admimstrativeagency,court of law,or other tribunal of competent jurisdiction the remainderof the
Agreement shall remain in full force and effect,and shall be binding upon the Parties hereto as if the
invalidatedprovisionwere not part of this Agreement.
11.Waiver.The waiver of any right on one or more occasions by eitherParty shall not constitute a
waiverof any such rightin any otherinstance.
12.Counterparts.This Agreement may be executed by facsimile signature (provided it is
immediately followedby the original by mail)and in any number of counterparts,each of whichwould be
deemed to be originaland all of which taken together shall constitute one and the same agreement.
13.Rules of Construction.The captions or headings in this Agreement are strictly for convenience
and shall not be considered in interpretingthis Agreementor as amplifying or limiting any ofits content.
Words in this Agreement which import the singular connotationshall be interpretedas plural,and words
which import the plural connotation shall be interpretedas singular,as the identity of the Parties or
objects referredto may require.Unless expressly defmedherein,words having well known technical or
trade meanings shall be so construed.All listing of items shall not be taken to be exclusive,but shall
include other items,whether similar or dissimilarto those listed,as the context reasonablyrequires.
IN WITNESS TBEREOF,the Parties have caused this Facility DecommissioningAgreement to be
executed as of this 9 day of Mht 2001.
INTEGRA Te\tcc.wŒng.QWEST CORPORATION
3
By:By:
Name of Signatory Audrey enney
Title:M 3 0 Q Title:Senior Vice President
Steve Hansen
Title:Vice President
EXHIBIT A
See Attached
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SUBJECT TO RULE OF EVIDENCE 408
CONFIDENTIALBILLING SETTLEMENTAGREEMENT
This Confidential Billing Settlement Agreement ("Agreement"),dated July 13,
2001,is between Qwest Corporation ("Qwest")and Global Crossing Local Services,
Inc.and Global Crossing Telemanagement,Inc.,and all of its agents,affiliates,
employees,principais,officers,directors,successors,assigns,parents,and
subsidiaries (hereafter "Global Crossing")(together the "Parties").The Parties hereby
enter into this Confidential Billing Settlement Agreement with regard to the following:
RECITALS
Whereas,Qwest is an incumbent local exchange provider operating in the states of
Arizona,Colorado,Idaho,lowa,Minnesota,Montana,Nebraska,New Mexico,North
Dakota,Oregon,South Dakota,Utah,Washington,and Wyoming.
Whereas,Global Crossing is a competitive local exchange provider and an
interexchangecarrier that operates in the various states listed above.
Whereas,the Parties have had various disputes regarding the pricing for private line
facilities,including the provisioning and pricing of private line on an EEL basis.
Whereas the Parties entered into a Settlement Agreement and Release dated
September 18,2000 as part of the Qwest/U S WEST merger,which covered the
following areas:(1)billing for the unbundled network element platform ("UNE-P")when
a service (including Centrex and Centrex-like service)is converted from a resold or
other service;(2)installation intervals for subsequentUNE-P requests placed through
Qwest'sinterrnediate mediated access for POTS (plain old telephoneservice);and (3)
installationintervalsfor subsequentmanual UNE-P requests for designed circuits.
Whereas disputes have arisen between the Parties with regard to the September 18,
2000,SettlementAgreement and Release,and its meaning and financial impact to the
Parties.
Now therefore,in an attempt to finally resolve the issues in dispute and to avoid delay
and costly litigation,and for valuable consideration,the Parties voluntarilyenter into this
Confidential Billing Settlement Agreement to resolve the existing disputes,claims and
controversiesbetween the Parties,as of the date of this Agreementthat relate to the
matters addressed herein and release all existing claims related to these matters.
CONFIDENTIALBILLING SETTLEMENTAGREEMENT
1.Qwest will make a one-time
ayment to Global Crossing in exchange for a release and satisfaction of
the September 18,2000,Settlement Agreement and other billing and provisioning
disputes which exist between the Parties.Global Crossing will provideto Qwest wiring
instructions within three business days of the signing of this Confidential Billing
SettlementAgreement,and Qwest will transmit by wire transfer to Global Crossing the
total payment of within five business days of receiving the wiring
instructions.
2
2.For those lines or private lines that have not been converted from resale or
other lines to UNE-P or EEL,Qwest will bill Global Crossing at the appropriate resale or
other rate,until the date that each such line has been converted to UNE-P or EEL (the
"ConversionDate").With respect to each such line (including Centre× and Centrex-like
lines)that is converted,the Effective Billing Date ("EBD")shall be the Conversion Date.
Upon the Conversion Date,Owest shall bill Global Crossing,with respect to each such
line that has been converted,the applicable UNE-P or EEL rate and shall cease billing
interstate and intrastate access and related charges (including primary interexchange
carrier charge)with respect to each such line,but shall in no way be precluded from
billing the appropriate charge to change the primary interexchange carrier on any such
fine.Until such resale or other line has been converted to UNE-P or EEL,Qwest will bill
Global Crossing applicable interstate and intrastate access,and associated charges,
with respect to each such line.In order for Global Crossing to receive a UNE-P or EEL
rate,it must submit an accurate and completeorder,and follow Qwest's processes to
convert services to UNE-P or EEL.Also,Global Crossing must meet applicable
restrictions,as they may exist or change from tine to time,on UNE conversion.Qwest
shall process such orders in a timely and accurate manner in accordance with standard
provisioning intervals as may be specified in applicable tariffs,interconnection
agreements or state commission regulationsor rulings.
3.For valuable consideration,the receipt and sufficiency of which are hereby
acknowledged,Global Crossing and Qwest do hereby release and forever discharge
the other and the other's associates,owners,stockholders,predecessors,successors,
agents,directors,officers,partners,employees,representatives,employees of
3
affiliates,employees of parents,employees of subsidiaries,affiliates,parents,subsidiaries,insurance carriers,bonding companies and attorneys,from any and allmannerofactionoractions,causes or causes of action,in law,under statute,or inequity,suits,appeals,petitions,debts,tiens,contracts,agreements,promises,liability,claims,affirmative defenses,offsets,demands,damages,losses,costs,claims forrestitution,and expenses,of any nature whatsoever,fixed or contingent,known orunknown,past and present asserted or that could have been asserted or could beassertedinanywayrelatingtoorarisingoutofthemattersaddressedhereinasofthedateoftheexecutionofthisConfidentialBillingSettlementAgreementbybothParties.4.The terms and conditions contained in this Confidential Billing SettlementAgreementshallinuretothebenefitof,and be binding upon,the respective.
successors,affiliates and assigns of the Parlies.
5..Each Party hereby covenants and warrants that it has not assigned ortransferredtoanypersonanyclaim,or portion of any claim which is released ordischargedbythisConfidentialBillingSettlementAgreement.
6.The Parties expresslyagree that they will keep the substance of the negotiations
and or conditions of the settlementand the terms or substance of this Confidential
Billing SettlementAgreement strictly confidential.The Parties further agree that theywillnotcommunicate(orally or in writing)or in any way disclose the substance of
negotiations and/or conditions of the settlementand the terms or substance of thisAgreementtoanyperson,judicialor administrativeagency or body,business,entity or
association or anyoneelse for any reason whatsoever,withoutthe prior express written
consent of the other Party unless compelledto do so by law.It is expresslyagreed that
4
this confidentiality provision is an essential element of this Confidential Billing
Settlement Agreement.The Parties agree that this Confidential Billing Settlement
Agreement and negotiations,and all matters related to these two matters,shall be
subject to the Rule 408 of the Rules of Evidence,at the federal and state level.
7.In the event either Party has a legal obligation which requires disclosure of the
terms and conditions of this Confidential Billing Settlement Agreement,the Pady having
the obligation shall immediately notify the other Party in writing of the nature,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
this Agreement.
8.This Confidential Billing Settlement Agreement constitutes the entire agreement
between the Parties and can only be changed in a writing or writings executed by both
of the Parties.Each of the Padies forever waives all right to assert that this
Confidential Billing Settlement Agreement was a result of a mistake in law or in fact.
9.This Confidential Billing Settlement Agreement shall be interpreted and
construed in accordance with the laws of the State of Minnesota,and shall not be
interpreted in favor or against any Pady to this Agreementexcept as expresslyprovided
herein.
10.The Parties have entered into this Confidential Billing Settlement Agreement
after conferring with legal counsel.
11.If any provision of this Confidential Billing Settlement Agreement should be
declared to be unenforceable by any administrative agency or court of law,the
remainder of the Confidential Billing SettlementAgreementshall remain in full force and
5
effect,and shall be binding upon the Parties hereto as if the invalidated provision were
not part of this Confidential Billing SettlementAgreement.
12.Any claim,controversy or dispute between the Parties in connection with this
Confidential.Billing SettlementAgreement shall 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 Arbitration Association.The Federal Arbitration Act,
9 U.S.C.§§1 16,not state law,shall govem the arbitrability of all disputes.The
arbitrator shall only have the authorityto determine breach of this Agreement,but shall
not have the authority to award punitive damages.The arbitrator's decision shall be
final and binding and may be entered in any court having jurisdiction thereof.Each
Party shall bear its own costs and attorneys'fees and shall share equallyin the fees
and expenses of the arbitrator.
13.:The Parties acknowledge and agree that they have a legitimate billing dispute
about the issues described in this Confidential Billing Settlement Agreementand that
the resolution reached in this Agreement represents a compromise of the Parties'
positions.Therefore,the Parties agree that resolution of the issues contained in this
Agreement cannot be used against the other Party.
14.This Confidential Billing SettlementAgreementmay be executed in counterparts
and by facsimile.
6
IN WITNESS THEREOF,the Parties have caused this Confidential Billing Settlernent
Agreementto be executed as of this 13*day of July 2001.
Global Crossing Local Services,Inc.Qwest Corporation
B
:lobalCrossing Telemanagement,Inc.
Title:Title:d i /
Date:Date:7 |
7
80E WM U0ilfl (4W)JO/SW1 10.MM m:;µgr.wa linn.,um
.18.2001 1:1QPM ROBAL CROSSING NO.961 P.2
IN WITNESS THEREOF,the Parties have caused this Confidential Billing
Agreementto be executed as of this 17*day of July 2001.
Global Crossing Lo I Services.Inc.Qwest Corporation
Global C ssing Tel anagement,Inc.
8 AM p By'
Date:Date:
7
CONFIDENTIAL &PROPRIETARY
Y'
FACILITYDECOMMISSIONTNG AGREEMENT
THIS FACILITY DECOMMISSIONING AGREEMENT ("Agreement"),is made and entered
into as of this 6 day of ('rycher ,2001 (the "Effective Date"),between Qwest Corporation
("Qwest")and ihrkorgTyrn ("CLEC")(Qwest and CLEC being sometimes hereinafterreferred
to collectively as the "Parties"and individually as a "Party").
RECITALS
WHEREAS,Qwest,a local incumbent exchange provider,and CLEC,a competitive local exchange
provider,are parties to a certain interconnectionagreement (the "Intemonnection Agreement"),executed
pursuant to sections 251 and 252 of the Federal TelecommunicationsAct of 1996 (the "Act");and
WHEREAS,pursuant to the InterconnectionAgreement,CLEC has purchased physical and/or virtual
coDocation and ancillary services from Qwest.CLEC now desires to return to Qwest the collocation
sites identified in Exhibit A (the "Facilities")attached hereto and incorporatedby reference;and
WHEREAS,the Panies voluntarily enter into this Agreement as a fmal resolution to disputes arising
betweenthe Parnes regardingthe terms and conditions of CLEC's return of the Facilities and the financial
obligations of each Party with respect to each of the Facilities under the Interconnection Agreement.
NOW,THEREFORE,in considerationof the foregoing and other good and valuable consideration,the
receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows:
1.Facilitv Découppissioning.In considerationfor the Release and Waiver set forth below,Qwest
hereby agrees to detioinmissionthe Facilities and to waive all fees and charges associated therewith.
2...Credit/Reimbtiisement.In the event that CLEC was previously invoiced and paid Qwest for the
decomriiissioningquotes and the monthly recurring charges past the date of acceptance of the valid ¥
decommissioning application,Qwest shall make a one-timecredit to CLEC for the sum of any non-V
recurring charges paid for the decommissioningand any monthly recurring charges paid for the Facilities er .
after the date of Qwest's acceptance and validation of the decommissioningrequest.This credit amount
will be applied,first,to satisfy any o ding balances owed by CLEC to west,if anv Tfa credit Ñ 0
ba e remains,CHOOSE the CLEC may reques e cre e paid them via check.Sþ g
check shall be issued by Qwest wt -UR -Qwest shall
provide a one-tune credit to CLEC to be used to offset future amounts payableto Qwest pursuant to other
agreements between the Parties.]
3.Release and Waiver.
(a)For valuableconsiderationto be paid by Qwest to CLEC as provided in Sections 1 and 2
above,CLEC hereby releases and forever discharges Qwest and its associates,owners,stockholders,
predecessors,successors,agents,directors,officers,partners,employees,representatives,employees of
affiliates,employees of parents,employees of subsidiaries,affiliates,parents,subsidiaries,insurance
carriers,bondingcompanies 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,petitions,debts,liens,contracts,agreements,
promises,liability,claims,affirmative defenses,offsets,demands,damages,losses,costs,claims for
restitution,and expenses,of any nature whatsoever,fixed or contingent,known or unknown,past and
present asserted or that could havebeen asserted or could be asserted in any way relating to or arising out
of the Facilities or this Agreement(the "Release and Waiver").CLEC hereby covenants and warrantsthat
it has not assigned or transferredto any person any claim,or portion of any claim which is released or
discharged by this Agreement.
(b)As part of the Release and Waiver described in the previousparagraph,CLECexpressly
agrees to relinquish forever all rights and interest whatsoever in the Facilities and to remove all property it
owns from the Facilities within thirty (30)days of Qwest's notice that the same is available for removal.
(c)In the event CLEC fails to remove its equipment from the Facilities as provided above,Qwest
may,without notice or demand and in addition to any other right or remedy available at law or equity,
remove all of CLEC's equipmentfrom the Facility and store the same at CLEC's expense.CLEC
expressly waivesany damages occasioned by such removal.Any equipment so removed will be retumed
to CLEC upon payment in full of all storage costs.If within forty-five (45)days following such
equipmentremoval,CLEC has not requested the retum of its equipment and paid any sums owed,then
Qwest may exercise all rights of ownership over such equipment including the right to sell same and
retainpossession of any sale proceeds.Qwest's exercise of any remedies provided for in this Section 3
shall be without prejudice to any other remedies Qwest may have providedfor herein or by law.
4.Conf1dentialltv.
(a)The Panies expressly agree that they will keep the substance of the negotiations and or
conditions of the settlement and the terms or substance of this Agreement strictly confidential.The
Parties further agree that they will not communicate (orally or in writing)or in any way disclose the
substance of negotiations and/or conditions of the settlement and the terms or substance of this
Agreement to any person,judicial or administrativeagency or body,business,entity or association or
anyone else for any reason whatsoever,without the prior express written consent of the other Party unless
compelledto do so by law.It is expressly agreed that this confidentiality provision is an essential element
of this Agreement.The Parties agree that this Agreement and negotiations,and all matters related to
these two matters,shall be subject to the Rule 408 of the Rules of Evidence,at the federal and state level.
The Parties further agree that in the event of a breach of the confidentiality provisions of this Agreement,
the harm suffered by the injured Party would not be compensable by monetary damages alone and,
accordingly,that the injured Party shall,in addition to other available legal or equitable remedies,be
entitled to seek an injunction against such breach.
(b)In the event either Pany has a legal obligation which requires disclosure of the terms and
conditions of this Agreement,the Party having the obligation shall immediately notify the other Party in
writing of the nature,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 confidentialityprovided for in this
Agreement.At least ten days advance notice under this paragraph shall be provided to the other Party,
wheneverpossible.
5.Binding Arbitration.Any claim,controversyor dispute between the Parties in connection with
this Agreementshall be resolved by privateand confidential arbitration conducted by a single arbitrator
engaged in the practice of law,underthe then current rules of the American Arbitration Association.The
Federal Arbitration Act,9 U.S.C.§§1-16,not state law,shall govern the arbitrability of all disputes.The
arbitrator shall only have the authority to determine breach of this Agreement,but shall not have the
authority to award punitive damages.The arbitrator's decision shall be final and binding and may be
entered in any court havingjurisdiction thereof.Each Party shall bear its own costs and attomeys'fees
and shall share equally in the fees and expenses ofthe arbitrator.
6.Full Settlement.The Parties acknowledge and agree that legitimate disputes regarding
collocation facility decommissioningand the monetary obligations of each of the Parties havebeen raised
and that the resolution reached in this Agreement represents a binding compromise of the Parties'
positions.Therefore,the Parties agree that resolution of the issues contained in this Agreement shall be
deemed full and complete and,except as provided in Section 5 above cannot be used to the detriment of
either Party.
7.Governing Law.This Agreementshall be interpreted and construedin accordance with the laws
2
of the State of Colorado,and shall not be interpreted in favor or against any Party to this Agreement
except as expressly provided herein.
8.Entire Agreement.This Agreement 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 authorizedrepresentatives of both Parties.The Parties haveentered into this Agreement after
conferring with legal counsel.Each of the Parties forever waives all right to assert that this Agreement
was a result of a mistake in law or in fact.
9.Binding Agreement.The terms and conditions contained in this Agreement shall inure to the
benefit of,and be binding upon,the Parties,their respective successors,affiliates and assigns.
10.Severability.If any provision of this Agreementshould be declared to be unenforceableby any
administrative agency,court of law,or other tribunal of competent jurisdiction the remainder of the
Agreement shall remain in full force and effect,and shall be binding upon the Parties bereto as if the
invalidated provision were not part of this Agreement.
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 other instance.
12.Counterparty..This Agreement may be executed by facsimile signature (provided it is
immediately followed by the original by mail)and in any number of counterparts,each of which would be
deemed to be original and all of which taken togethershall constitute one and the same agreement.
13.Rules of Construction.Thecaptions or headings in this Áýeement are strictlyfor convenience
and shall not be considered in interpretingthis Agreementor as amplifying or limiting any of its content.
Words in this Agreementwhich importthe singularconnotationshall be interpretedas plural,and words
which import the phiral connotationshall be interpretedas singular,as the identity of the Parties or
objects referred to may feguire.Unless expressly defined herein,words having well known tecimical or
trade meanings shall be so constmed.All listing of items shall not be taken to be exclusive,but shall
include sither items,whether similar or dissimilarto those listed,as the context reasonably requires.
IN WITNESS THE OF,the Paniegvecaused this Facility Decommissioning Agreement to be
executed as of this day of QG 2001.
B
BQWESTCORPORATI
of Signatory Audre cKenney
Title:(È (báÁ Title:Semor Vice President
By:
/Steve Hansen
Ti e:Vice President
EXHIBITA
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CONFIDENTIALBILLING SETTLEMENTAGREEMENT
This Confidential Billing Settlement Agreement ("Agreement"),dated September i2001,is between Qwest Corporation ("Qwest")and FairPoint Communications Solutions Corp.("FairPoint")(collectively the "Parties")who hereby enter into this Confidential BillingSettlementAgreementwithregardtothefollowing:
RECITALS
1.Qwest is an incumbent local exchange provider operating in various statesincludingthestatesofWashingtonandOregon.
2.FairPoint is a competitive local exchange provider that operates in various statesincludingthestatesofWashingtonandOregon.
3.Qwest and FairPoint are parties to interconnection agreements,executed pursuant
to sections 251 and 252 of the federal Telecommunications Act of 1996 ("Act")and approved bytheWashingtonUtilitiesandTransportationCommissionandtheOregonPublicUtilityCommissionreferredtohereinafterasthe"InterconnectionAgreements."
4.Various billingdisputes have arisen between the Parties in the performance undertheInterconnectionAgreementsregardingcertaininterconnectionservices,including collocation
decommissioning and the provisioning of interconnection trunks and interoffice transportfacilities(referred to hereinafteras the "Disputes").
5.In an attempt to finally resolve the Disputes and to avoid delay and costlylitigation,and for valuable consideration,the Parties voluntarilyenter into this Agreement toresolvefullytheDisputes.
CONFIDENTIALSETTLEMENTAGREEMENT
6.Qwest and FairPoint agree to resolve the Disputes as of the date of this Agreement asfollows.In consideration for Qwest's payment to FairPoint described in this paragraph,
FairPoint agrees to the waiver and release described in paragraph 8 below.Qwest will make a
one-time payment to FairPoint in the amount of Qwest will wire that sum of
money to FairPoint within three (3)business days of the execution of this Agreement.The WireinformationtobeusedbyQwestis:
hingtonthrough-December
ek ler y-Deee Enot-be
nt.
7.Further,as part of this Agreement,and to foster improved communications between the
Parties for the purpose of avoiding costly disputes in the future,the Parties agree to implement
the dispute resolution escalation process attached hereto as Attachment A,applicable to any
business issues that may arise under the Interconnection Agréements.
8.For valuable consideration to be paid by Qwest tŠ ÙairPoint as provided in paragraph 6
above,FairPoint hereby releases and forever discharges Qwest and its associates,owners,
stockholders,predecessors,successors,agents,directors,officers,partners,employees,
representatives,employees of affiliates,employees of parents,employees of subsidiaries,
affiliates,parents,subsidiaries,insurance carriers onding companies 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,petitions,debts,liens,contracts,agreements,promises,liability,claims,
affirmative defenses,offsets,demands,damages,losses,costs,claims for restitution,and
expenses,of any nature whatsoever,fixed or contingent,known or unknown,past and present
asserted or that could have been asserted or could be asserted through the date of the execution of
this Agreement in any way relating to or arising out of the Disputes.
9.The terms and conditions contained in this Agreement shall inure to the benefit of,and
be binding upon,the respective successors.affiliates and assigns of the Parties.In addition,the
terms and conditions of this Agreement,including all facts leading up to the signing of this
Agreement shall bind the Parties.
10.Each Party hereby covenants and warrants that it has not assigned or transferred to any
person any claim,or portion of any claim which is released or discharged by this Agreement.
11.The Parties expressly agree that they will keep the substance of the negotiations and or
conditions of the settlement and the terms or substance ofAgreement strictly confidentiaL The
Parties furtheragree that they will not communicate (orally or in writing)or in any way disclose
the substance of negotiations and/or conditions of the settiement and the terms or substance of
this Agreement to any person,judicial or administrative"pgency or body,business,entity or
association or anyone else for any reason whatsoever.witjioutthe prior express written consent
of the other Party unless compelled to do so by law.It is expressly agreed that this
confidentiality provision is an essential element of this Agreement.The Parties agree that this
Agreement and negotiations,and all matters related to these two matters,shall be subject to the
Rule 408 of the Rules of Evidence,at the federal and state level.The Parties further agree that a
breach of the confidentiality provisions of this Agreement will materially harm the other Party in
a manner which cannot be compensated by monetary damages,and that in the event of such
breach the prerequisites for an injunction have been met.
12.In the event either Party has a legal obligation which requires disclosure of the terms and
conditions of this Agreement,the Party having the obligation shall immediately notify the other
Party in writing of the nature,scope and source of such obligation so as to enable the other Party,
at its option,to take such action as may be legallypermissible so as to protect the confidentiality
provided for in this Agreement.At least ten days advance notice under this paragraph shall be
provided to the other Party,whenever possible.
13.This Agreement constitutes the entire agreement between the Parties and can only be
changed in a writing or writings executed by both of the Parties.Each of the Parties forever
waives all right to assert that this Agreement was a result of a mistake in law or in fact.
14.This Agreement shall be interpreted and construed in accordance with the laws of the
State of Colorado,and shall not be interpreted in favor or against any Party to this Agreement
except as expressly provided herein.
15.The Parties have entered into this Agreement after conferring with legal counsel.
16.If any provision of this Agreement should be declared to be unenforceable by any
administrative agency,court of law,or other tribunal of comgetent jurisdiction the remainder of
the Agreement shall remain in full force and effect,and shalÏbe.binding upon the Parties hereto
as if the invalidated provision were not part of this Agreement.
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17.Any claim,controversy or dispute between the Parties in connection with this Agreement,
shall 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 Bar Association.The Federal
Arbitration Act,9 U.S.C.§§1-16,not state law,shall govem the arbitrability of all disputes.The
arbitrator shall only have the authority to determine breach of this Agreement,but shall not have
the authorityto award punitive damages.The arbitrator's decision shall be final and binding and
may be entered in any court having jurisdiction thereof.Each Party shall bear its own costs and
attorneys'fees and shall share equally in the fees and expensesof the arbitrator.
18.The Parties acknowledge and agree that they have legitimate disputes about the billing
and provisioning issues and that the resolution reached in this Agreement represents a
compromise of the Parties'positions.Therefore,the Parties agree that resolution of the issues
contained in this Agreement cannot be used against the other Party.
19.This Agreement may be executed in counterparts and by facsimile.
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AttachmentAEscalationProcess
The Parties wish to continue developing a business-to-business relationship and agree toestablishthefollowingbindingescalationprocesstoresolveanyandallbusinessissuesthatmayarisebetweenthemundertheirinterconnectionagreementsenteredpursuanttosections251and252oftheTelecommunicationsActof1996.The escalation process to be used if the Parties are unable to resolvedisputesthroughstandardchannelsofcommunication,is the following:
Level Participants Time frame for discussions
LEVEL 1 Directors (ordesignated rep)10 business days
LEVEL 2 Senior/ExecutiveDirectors (or designated rep)10 business days
LEVEL 3 Vice Presidents/Senior Vice Presidents (or designated rep)10 business days
LEVEL 4 If a dispute is not resolved in Levels 1
through 3,either party may reson to theregulatoryorlegalprocess.
The Parties agree,subject to any subsequent written agreement between the Parties,to:(1)utilize the established escalation process and time frames to resolve such disputes;(2)commit the time,resources and good faith necessary to meaningful dispute resolution;(3)not proceed to a higher levelofdisputeresolutionuntileitheraresponseisreceivedorexpirationofthetimeframeforthepriorlevelofdisputeresolution;(4)grant to one another,at the request of the other Party,reasonableextensionsoftimeinthedisputeresolutionprocess;and (5)complete Levels 1,2,and 3 of disputeresolutionbeforeseekingresolutionthroughregulatoryprocesses,arbitration or the courts.
IN WITNESS THEREOF,the Parties have caused this Confidential Billing Settlement
Agreement to be executed as of this day of September 2001.
FairPoint Communications Solutions Corp.QWEST Corporation
By:By:C-
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement")is between Qwest
Corporation,successor in interest to US WEST Communications,Inc.(collectively,"Qwest"),
and SunWest Cornmunications,Inc.,successor in interest to King's Deer Telephone Company,
Inc.(collectively,"SunWest").Qwest and Sun West are sometimes referred to collectively as the
"Parties"or individuallyas a "Party."
1.Recitals.This Agreement is entered into with reference to the following facts:
(a)Qwest and SunWest are panies in the following four legal proceedings
(collectively referred to as the "Legal Proceedings"):
(1)a lawsuit pending in the District Court of El Paso County,
Colorado,Civil Action No.00CV2143;
(2)arbitration proceedings pending before Justice William Erickson,
American ArbitrationAssociation Case No.77 Y 181 00313 00;
(3)a lawsuit pending in the United States District Court for the
District of Colorado,Civil Action No.01 D 0601;and
(4)administrative proceedings pending before the Public Utilities
Commission of the State of Colorado (the "CPUC"),Docket No.
01F-166T.
(b)SunWest has also intervened in a proceeding before the CPUC regarding
Qwest's petition to enter the in-region inter-LATA telecommunications market,Docket No.971-
198T (the "Section 271 Workshops").
(c)To avoid the expense,uncertainty,and inconvenience of further litigation
and legal proceedings,each of the Parties considers it to be in its best interest and to its -
advantageto dismiss,settle and compromise the matters released herein forever.
2.Definitions.
(a)1997 Interconnection Agreement.As used herein,the term "1997
Interconnection Agreement"shall mean that certain Interconnection Agreement Between US
WEST Communications,Inc.("USWC")and King's Deer Telephone Co.("King's Deer")
executed by USWC on May 16,1997,and by King's Deer on May 6,1997,and approved by the
CPUC in 1997.
(b)Februarv 1998 .Àsreement.As used herein,the term "February 1998
Agreement"shall mean that certain letter agreement dated February 27,1998,addressed to
GeorgeCoon and Chris Holden of King's Deer and signed by Larry Brotherson of USWC.
(c)2000 interconnection Aereement.As used herein,the term "2000InterconnectionAgreement"shall mean that certain Local Interconnection Agreement Between
US WEST Communications,Inc.and King's Deer TelephoneCompany,Inc.for Colorado,
executed by USWC on November 17,1999 and by IGng's Deer at or about the same date,and
approved by the CPUC in 2000.
(d)Facilities and/or Services.As used herein,the term "Facilities and/or
Services"shall mean wholesale telecommunications facilities and/or services ordered from
Qwest by SunWest under the 2000 Interconnection Agreement or a Qwest tariff.
3.Pavment and Services.
(a)Within one business day after the Parties have executed this Agreement.but subject to and expressly conditioned on the execution and filing of the stipulations of
dismissal with prejudice and the Withdrawal Statement described in paragraphs 4(a)and (b),below,Qwest shall pay SunWest less the estimated amount of charges for
Facilities and/or Services provided to SunWest by Qwest from the beginning ofQwest's MaybillingcyclethroughMay31,2001,estimated to be g for a total payment of
(the "Cash Pavment").Once Qwest has determined the actual amount of its bill toSunWestforthetimeperiodfromthebeginrungoftheMaybillingcyclethroughMay31,200l
(the "May 2001 Amount"),the difference between the May 2001 Amount and vill be
either added to (if the May 200 I Arnount is less than or deducted from (if the May
2001 Amount is greater than )thegredit toward Facilities and/or Services ,
described in paragraph3(b),below.
(b)In addition to the Cash Payment,Qwest will provide a credit to SunWest
in the total amount of as adjusted pursuant to paragraph 3(a),above)which may be
used by SunWest to purchaseFacilities and/or Services during the time period beginning June 1,
2001 and ending December 31,200l (the "Credited Facilities and/or Services").If and when
SunWest uses the entire amount of the Credited Facilities and/or Services,then SunWest must,
from that point forward,make paymem to Qwest for any Facilities and/or Services it orders in
accordance with Qwest's usual billing terms.The prices charged for Facilities and/or Services ,shall be calculated based on the 2000 Interconnection Agreement price,the applicable tariff
price,or the price Qwest is charging other providers for identical services in the state of
Colorado,except as provided in paragraph 3(c),below.If,as of December 31,2001,SunWest
has not incurred charges for Facilities and/or Services from Qwest totalingg(as adjusted
pursuant to paragraph3(a),above)for the period June 1,2001 through December 31,2001,then
SunWest shall forfeit its right to any remaining Credited Facilities and/or Services.
(c)From May 29,2001 through August 31,2001,SunWest shall only place
orders for unbundledloops with number portability using coordinated cuts,rather than basic cuts,
and such orders,other than those that are not provisioned by August 31,2001 for reasons of
integrated pair gain or lack of facilities,shall be charged at the rate applicable to a basic cut
rather than a coordinated cut.The price ofsuch orders shall be applied against the amount of
Credited Facilities and/or Services described in paragraph 3(b),above.After August 31,2001,
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SunWest mav choose to (i)maintain all or a portion of any orders not provisioned for
coordinated cuts in place with Qwest,and the price shall be the rate for coordinated cuts when
any such orders not provisioned are completed,o li)resubmit all or a portion of any orders not
provisioned for a tiasic cut,and the gnce shall be the rate for a
b^asi cut when a Sue geri
not provisioned are completed.I the orders described in the preceding sentence are placed prior ..
to December.H,.¿001,the cost of these orders shall be applied against the amount of Credited
Facilities and/or Services described in paragraph3(b),above.SunWest will work in good faith -
with Qwest before submitting orders for unbundledloops to rninimize orders that may be
rejectedor delayed in provisioningby reason of integrated pair gain or lack of facilities.
SunWest understands and acknowledgesthat certain of SunWest's customer's loops are (or,in the
case of future customers,may be)provisioned using integratedpair gain technology,and
therefore,if SunWest places orders for unbundledloops with number portability for such loops,
such orders may not be provisioned unless and until altemative facilities or technologies are
reasonably available for providing such loops.SunWest further understands and acknowledges
that Qwest has no obligation to cogplete ordergfor unbundled loops that are provisioned using
integrated pair gain technology unless and until altemative facilities or technologies are
reasonablyavailable for providing such loops.SunWest covenants and agrees never to institute
any claim,action,suit or proceeding against Qwest that is inconsistent with the understandings
and acknowledgments set forth in this paragraph3(c),and further covenants and agrees that this
Agreement is a bar to any such claim,action,suit or proceeding.
4.Dismissal of the Partjgs'Claims.Wgin one brisiness day after the execution of
this Agreement:
(a)SunWest and Qwest,through their attomeys,shall execute and file
stipulations of dismissal with rejudice of each of the Legal Proceedings,in the forns attached
hereto as Exhibits A througli 0;and
(b)SunWest shall execute and file a document with the CPUC withdrawing
its opposition to Qwest's petition to obtain approval to enter the in-region inter-LATA
telecommunications market (the "Withdrawal Statement")in the form attached hereto as Exhibit
E.
5.Mutual Releases.In consideration of the terms and conditions of this Agreement,
including the Cash Payment by Qwest to SunWest,the providing of Credited Facilities and/or .
Services by Qwest to SunWest,each Partv's dismissals with prejudice of it's claitÈinthe Legal
Proceedings,SunWest's filing of the Withdrawal Statement,and each Party's waiver of any right
to attorneys'fees or any other cost or expense related to the Legal Proceedings,Qwest and
SunWest,and each of their past,present and future affiliates,subsidiaries,predecessors,
successors,parent corporations,divisions,operating companies,officers,directors,shareholders,
parmers,employees,employers,administrators,independent contractors,insurers,agents,
B representatives,assigns and attomeys (collectively with respect to each Party,the "Affiliated
Parties")each fully and forever release and discharge each other,and each other's Affiliated
Parties,from any and all actions,causes of action,claims,suits,debts,liabilities,damages,
obligations,promises,acts,omissions,agreements,judgments,demands,defenses (including
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without limitation,recoupmentand setoff)costs and expenses (including without limitation,
attorneys'fees)of every kind or nature whatsoever,in law or in equity,whether known or
unknown,suspected or unsuspected,which Qwest er SunWest,or their respective Affiliated
Parties,or any person acting on behalf of any of them,may now have,may have had,or may
claim at any future time to have,based in whole or in part,upon any act,process,allegation or .
omission by a Party from the beginning of time until the last date on which a Party executes this
Agreement,including but not limited to,any act,process,fact,allegation or omission related to
any claim asserted in any of the Legal Proceedings.Each Party and its Affiliated Parties further
agree that they shall not assert any claim arising after the execution of this Agreement that relies
upon,relates to,or refers to,in whole or in part,any act,process,fact,allegationor omission that
occurred,or should have occurred,in whole or in part,prior to the execution of this Agreement.
6.Value of Consideration.SunWest recognizes and acknowledges that the
consideration it is receiving from Qwest pursuant to the terms of this Agreement represents
reasonably equivalent value for the considerationSunWest is providing to Qwest.SunWest also
recognizes and acknowledges that it is releasing its claims against Qwest in exchange for (i)the
payment and services it is receiving from Qwest pursuant to paragraph3 of this Agreement,and
(ii)the benefit of being free of the Legal Proceedings with Qwest,now and in the future,so that
SunWest can concentrateon the pursuit of its business plan.
O 7.Current Exchange for New Value.Each Party represents that it intends the
consideration exchanged in this Agreement to be a contemporaneousexchange for new value,
and will perform its obligations under this Agreement so that the transfer of consideration by the
Parties will in fact be a substantially contemporaneousexchange.
8.Avoidance Actions.In the event any person or entity other than Qwest ever
commences litigation,arbitration,or any proceeding,effort or attempt to avoid,void,nullify or
othenvise alter,modify,reform,compromise or ovenurn this Agreement or any part of it (an
"Avoidance Action"),SunWest herebydirects all ofits officers,directors,employees,
representatives,agents,and attomeys to (i)defend the bona fides of this Agreement in all such
Avoidance Actions,and (ii)cooperatewith Qwest in defending all such Avoidance Actions,
including without limitation,sharing with Qwest all infornation,confidential,privileged,or .
otherwise,conceming.SunWest's analysis of the Legal Proceedings and this Agreement,and
SunWest's waiver of its privileges is effective upon the effective date of this Agreement.
9.SunWest's ReoresentationsReenrdine Bankruptcv.SunWest and the otTicer
signing this agreement on behalf of SunWest represent that SunWest does not intend to seek
protection underthe provisions of the United States Bankruptcy Code,Title 11 of the United
States Code (the "Bankruptcy Code"),or any other federal or state law insolvencyor receivership
statute,and further represents that no creditor of SunWest has stated or otherwise indicated an
intention to subject SunWest to an involuntary bankruptcy Eling under the Bankruptcy Code,or
any other federal or state law insolvency or receivership statute.
10.Contract Terminations.To the extent that any prior contracts,written or oral,
express or implied,in fact,law or equity,are currently in force between the Parties,including but
4
not limited to the 1997 InterconnectionAgreement,the February 1998 Agreement and the MOU
(as defined in paragraph 13(a),below),all such contracts,except the 2000 Interconnection
Agreement,are hereby terrninated,in their entirety,and are of no further force and effect.
11.Covenant Not to Sue.Qwest and SunWest expressly covenant and agree with
each other never to institute any claim,action,suit,or proceeding against each other,directly or
indirectly,regarding or relating to the matters released through this Agreement,and further
covenant that this Agreement is a bar to any such claim,action,suit,or proceeding.
12.Denial of Liabilitv.It is understood and agreed by the Parties to this Agreement
that this settlement is not,and is not to be construed as,an admission of liability on the part of
any Pary and that the Parties expressly deny any liability or wrongdoing.
13.Confidentialitv.
(a)The terms of this Agreement,and the Memorandum of Understanding
entered into between the Parties on May 25,2001 (the "MOU"),and all documents and
discussions related to this Agreement and the MOU,shall be kept confidential,except in a
próceeding or action to enforce this Agreement,to remedy the breach of this Agreement,or in
which the terms of this Agreement are at issue.Subject to the exception in the preceding
sentence,the Parties agree not to directly or indirectly divulge,publicize,reveal,or otherwise
O disclose to any person the terms of this Agreement,the MOU,or any documents or discussions
related to this Agreement or the MOU,or to cornmunicate to anyone infornation concerning the
scope,nature,type or extent of the terms of this Agreement or the MOU (other than to the
Parties'accountants and attomeys on a need to know basis).If asked about this matter,the
Parties are permitted to say only words to the effect that:"The matter has been resolved or settled
to the Parties'satisfaction."If asked to provide.furthercomment or information,the Parties shall
only say words to the effect that:"I cannot make any further comment;the terms of the
settlement are confidential."Notwithstanding the foregoing,at Qwest's sole discretion,the
Parties shall issue a joint press release announcing that the Parties have resolved their disputes to
their mutual satisfaction.
(b)SunWest further agrees not to:(i)communicate in any manner,directly or
indirectly,unless required by law,any of the facts or allegations raised in any of the Legal -
Proceedings,and (ii)disparage or make any negative public comments about Qwest that relate to
any act,process,fact,allegation or omission that occurred,or should have occurred,in whole or
in part,through the date of this Agreement.
(c).
SunWest further agrees that prior to making any public statement
concerning Qwest that relates to any act,process,fact,allegation or omission that occurs
subsequentto the execution of this Agreement,including but not limited to,statements to the
media or any legislative,executive or regulatory body,SunWest will complete the dispute
resolution process set forth in Section (A)3.17 of the 2000 Interconnection Agreement through
all steps up to arbitration.SunWest also agrees that for twelve months from the execution of this
Agreement,it shall not volumarily appear in any proceeding,or submit or cause to be submitted
5 '
comments,statements,or testimony,conceming Qwest that relate to any act,process,fact,
allegation or omission that occuned,or should have occurred,in whole or in part,prior to the
execution of this Agreement.In addition,for a period of twelve months subsequent to the
execution of this Agreement,Sun West shall take no actions,directly or indirectly,that would
suggest to any person or entity a willingness or availabilityto participate in any proceeding in
which Qwest has an interest.
(d)The Parties further agree that each of them will resist by all legitimate
means any attempt to compel disclosure of the terms of this Agreement or the MOU or otherwise
to breach the confidentialityof the terms of this Agreement or the MOU.Each Party agrees that,
in the event such disclosure is sought to be compelled through subpoenaor other legal process in
a proceeding of any kind,it will give written notice to the other Party and its counsel within
forty-eight (48)hours of receipt of such subpoena or other legal process,so that the other Party
has an opportunity to oppose such attempt to compel disclosure.NeitherParty shall make such
disclosure unless ordered by a court or arbitrator of competentjurisdiction.
(e)Notwithstanding anything contained in this Agreement,the terms of this
Agreement or the MOU may be provided by a Party to (i)any shareholder of or lender to that
Party,or (ii)any Snancial,legal or tax professional specifically retained by that Party to provide
financial,legal or tax advice.
O 14.Representations and Warranties.The Parties hereto,and each of them,represent
and warrant to each other and agree with each other,as follows:
(a)Each of the Parties hereto has received independent legal advice from
attomeys of its own choice with respect to the advisabilityof making the settlement and releases
provided for in this Agreement,and with respect to the advisability of executing this Agreement.
Prior to the execution of this Agreement,each Party's attomeys reviewed this Agreement at
length,made all desired changes,and signed this Agreement to indicate that said attomeys
approved this Agreement as to form.
(b)Each Party and its attorneys have made various statements and
representations to the other Party and its attomeys during the Legal Proceedings and during >
negotiations leading to this Agreement.Nevertheless,each Party specifically does not rely upon
any statement,representation,legal opinion,or promise of the other Party or its counsel in
executing this Agreement or in making the settlement provided for herein,except as expressly
stated in this Agreement.
(c)Each Party,together with its attorneys,has made such investigation of the
facts and the law pertaining to this settlement and this Agreement,and of all the matters
pertaining thereto,as it deems necessary.Each Party forever waives all rights to assert that this
Agreement was the result of a mistake in law or in fact.
(d)Each Party forever waives all rights to assert that any or all of the legal
theories or factual assumptions used or relied upon in the negotiations leading to this Agreement
6
were for any reason inaccurate or inappropriate.
(e)This Agreement has been carefully read by,the contents hereofare known
and understood by,and it is freely signed by,each person executing this Agreement.
(f)Each Party hereto agrees that such Party will not take any action which
would interfere with the performance of this Agreementby the other Party hereto or which would
adversely affect any of the rights provided for herein.
(g)Each Party represents and covenants that it is the sole and lawful owner of
all right,title and interest in and to every claim and other matter which it releases through this
Agreement,and that it has not assigned or transferred,or purported to assign or transfer to any
person or entity any claims or other matters released through this Agreement.Each Party shall
indemnify,defend and hold harmless the other Party from and against any claims based upon or
arising in connection with any such prior assignment,transfer,lien,and/or right.
(h)Each Party represents that it has not filed any complaints,charges,causes
of action,positions or other claims in any jurisdiction against the other Party except for those
asserted in the Legal Proceedings and the 271 Workshops.Each Party further represents that it
will not file any further complaints,charges,causes of action,positions or claims conceming any
matter which is released through this Agreement.
O 15.Enforcement of This Aereement.·
(a)The Parties agree that all disputes arising in connection with or related to
this Agreement,including but not limited to,the breach of this Agreement shall be resolved
through binding arbitration.Such arbitration shall be conducted by a single arbitrator affiliated
with the Judicial Arbiter Group and conducted in Denver,Colorado.The Federal Arbitration
Act,9 U.S.C.§§1-16,not state law,shall govem the arbitrability of any such dispute.The
arbitrator shall have the authority to order specific perfornance,injunctive or declaratory relief
and to grant dispositive motions,but shall not have the authority to award punitive damages.
The arbitrator's award shall be final and binding and may be entered in any court that has
jurisdiction.Should it become necessarv to resort or respond to court proceedings to enforce a ~
Party's compliance with this paragraph 15(a),and the court directs or otherwise requires
compliance herewith,then all of the costs and expenses,including the reasonable attomeys'fees
incurred by the Party requesting such enforcement,shall be reimbursed by the non-complying.
Party to the requestingParty.
(b)In the event that an arbitration is instituted to enforce,remedy,prevent,or
obtain relief from a breach of this Agreement,the prevailingParty shall recover all of such
Party's reasonable attorneys'fees incurred in each and every such proceeding,including any and
all appeals or petitions therefrom.
16.Construction.The language used in this Agreement is language chosen by the
Parties to express their mutual iment,and no rule of strict construction shall be applied aSainst
7
any Party hereto.The Panies hereby acknowledgeand agree that they have been represented by
counsel in the negotiation and drafting of this Agreement and,accordingly,this Agreement shall
be deemed to have been preparedjointlyby the Parties,and shall not be construed against any
Party as the drafter.
17.Successors and Assiens.This Agreement shall inure to the benefit of,and shall
be binding upon,the successors and assigns of the Parties hereto,and each of them.This
Agreement is intended to release and inure to the benefit of each Party's past,present and future
affiliates,subsidiaries,predecessors,successors,parentcorporations,divisions,operating
companies,officers,directors,shareholders,partners,employees,employers,administrators,
independent contractors,insurers,agents,representatives,assigns and attomeys,individually as
well as in the capacity indicated.Except as expressly provided herein,this Agreement is not for
the benefit of any person not a party hereto or specifically identified as a beneficiary berein,and
is not otherwise intended to constitute a third party beneficiary contract.
18.Integration.This Agreement constitutes a single integrated written contract
expressing the entire agreementof the Parties hereto relative to the subject matter hereof.All
prior discussions and negotiations and agreements relating to the Parties'settlement,including
the MOU,are supersededby this Agreement.This Agreement may not be amendedexcept
.
through a writing signed by each of the Parties.
19.Severabilitv.In the event that any provision of this Agreement should be held to
be void,voidable,or unenforceable,the remaining portions hereof shall remain in full force and
effect.
20.Survival of Warranties and Reoresentation.The warranties and representationsin
this Agreement are deemed to survive the date of execution hereof.
21.Reoresentative Capacitv.Each person executing this Agreement on behalf of a
Party hereby warrants that he or she has been duly authorized by such Party to do so.
22.Headings Not Part of Aereement.The headings contained in this Agreement are
for convenience only,do not constitute part of this Agreement,and shall not limit,expand,affect
the interpretation of,or otherwise affect in any way the provisions of this Agreement.
23.Govemine Law.This Agreement shall be governed under the laws of the state of
Colorado.
24.Counterparts.This Agreement may be executed in counterparts.This Agreement
shall be deemed to be executed on the last date any such counterpart is executed.Facsimile
signatures shall be valid and effective as original signatures.
O
8
IN WITNESS WHEREOF,this Agreement has been executed on the dates below written,
to be effective on the last such date.
EACE OF THE PARTIES TO THIS AGREEMENT CERTIFIESTHAT IT HAS
CAREFULLYREVIEWED THIS A GREEMENT WITH THE ASSISTANCE OF
COUNSEL AND IS EXECUTING THIS AGREEMENT VOLUNTARILY AND WITH A '
FULL UNDERSTANDING OF ITS PROVISIONS.
By
/S
Date05/31/01
Title Executive vice President
SUN,WEST COMMUNICATIONS,INC.
By:Date
O Titir·
6
9
Approvedas to fonn by the Parties'attomeys as follows:
SHERMAN H WARDpL
/Stefan D.Stein Date
633 SeventeenthStreet,Suite 3000
Denver,Colorado 80202
Telephone:[phone]
Attomeys for Qwest Corporation
DUFFO O
Scott J.Mjulecky'Date
1700 Broadway,Suite 1700
Denver,Colorado 80910
Telephone:[phone]
Attorneys for SunWest Communications,Inc.
0
10
.'°T-581 P.022/023 HT3
-Mar30-2001.05:38pm.From-
e JN WITNESS WHEREOF,this Agreement has been executed on the dates below wriren,
to be efective on the last such date.
EA CH OF THE PARTIES TO THIS AGRE£MENT CERTIFIES THAT IT HAS
CAREFULLYREV1EWED THIS AGREEMENT WITR THE ASSISTANCEOF
COUNSEL AND IS EXECUTINGTHIS AGREEMENT VOLUNTARILY AND WITII A
FULL UNDERSTANDING OF ITS PROVISIONS.
QWEST CORPORATION
By .
Date
Title:
SUNWEST COMMLWICATIO S.INC
J·30 -Mer/
By:¯ima er L/A .«L Date
Ti>Vac.«Padwer
11 -