200220021010Qwest to Staff Prod Resp to Part 2.pdf

e EXHIBIT A
s
DISTRlCT COURT,COLWTY OF EL PASO,STATE
OF COLORADO
Plaintiff(s):KING'S DEER TELEPHONE
COMPANY,INC.,n/k/a SUNWEST
COMMUNICATIONS,INC.,a Colorado corporation,
Defendaut(s):U.S.WEST COMMUNICATIONS,
INC..n/lda QWEST CORPORATION,a Colorado
corporation.A COURT USE ONLY
Leanne B.De Vos Case Number:00 CV 2143
Stefan D.Stein
Sherman &Howard L.L.C.Div.:9
633 17th Street,#3000
Denver,CO 80202
Phone:[phone]
Fax:[phone]
E-Mail:[e-mail]
[e-mail]
De Vos Attv.Reg.#15397
Stein Attv.Reg.#26694
Phillip L Douglass
Qwest Corporation
Law Department
180 1 Califomia,Suite 3800
Denver,CO 80202
Phone:[phone]
Fax:[phone]
Atty.Reg.#28152
STIPULATION FOR DISMISSAL WITH PREJUDICE
1.Pursuant to Colorado Rule of Civil Procedure 41(a)(l)(B),all parties agree
to the dismissal of this action with prejudice.
2.Each party shall bear its own costs and attorneys'fees.
6
9 Dated this day of May,2001.
DUFFORD &BROWN,P.C.SHERMAN&HOWARD L.L.C.
By:By:
Scott J.Mikulecky,#16113 Leanne B.DeVos,#15397
101 N.Tejon,Suite 410 Stefan D.Stein,#26694
Colorado Springs CO 80903 633 17*Street,Suite 3000
[phone] Denver,Colorado 80202
[phone] (fax)[phone]
[phone] (fax)
ATTORNEYS FOR PLAINTIFF
KING'S DEER TELEPHONE and
COMPANY,INC.,n/kla SUNWEST
COMMUNICATIONS,INC.Phillip L.Douglass.#28 l52
Qwest Corporation
Law Department
1801 California,Suite 3800
Denver,Colorado 80202
[phone]
[phone] (fax)
ATTORNEYS FOR DEFENDANT
US WEST COMMUNICATIONS,INC.
n/kla QWEST CORPORATION
$
DISTRICT COURT,COUNTY OF EL PASO,STATE
OF COLORADO
Plaintiff(s):IGNG'S DEER TELEPHONE
COMPANY,INC.,n/k/a SUNWEST
COMMUNICATIONS,INC.,a Colorado corporation,
Defendant(s):U.S.WEST COMMUNICATIONS,
INC.,n/kla QWEST CORPORATION,a Colorado
corporation.A COURT USE ONLY A
Leanne B.De Vos Case Number:00 CV 2143
Stefan D.Stein
Sherman &Howard L.LC-Div.:9
633 17*Street,#3000
Denver,CO 80202
Phone:[phone]
Fax:[phone]
E-Mail:[e-mail]
[e-mail]
De Vos Atty.Reg.#15397
Stein Atty.Reg.#26694
Phillip L.Douglass
Qwest Corporation
Law Department
1801 California,Suite 3800
Denver,CO 80202
Phone:[phone]
Fax:[phone]
Atty.Reg.#28152
ORDER OF DISMISSAL WITH PREJUDICE
The Court has considered the Stipulation for Dismissal with Prejudice filed by the
parties,along with the record.Good cause appearing,
O
IT IS HEREBY ORDERED that this action is dismissed with prejudice,each
party to bear its own costs and attomeys'fees.
Dated ,2001.
BY THE COURT:
Rebecca S.Bromley
Acting District Court Judge
O
EXHIBIT B
O
American Arbitration Association
Commercial ArbitrationRules
Case.No.77 Y 18 I 00313 00
In the Matter of the Arbitration between:
US WEST COMMOTTICATIONS,INC.,n/k/a QWEST CORPORATION,
and
KING'S DEER TELEPHONE CO.,INC.,a/k/a SUNWEST COMMUNICATIONS,INC.
STIPULATION FOR DISMISSAL WITH PREJUTHCE
1.All parties hereby agree to the dismissal of this action with prejudice.
2.Each party shall bear its own costs and attomeys'fees.
Dated this day of May,2001.
DUFFORD &BROWN,P.C.
By:
Scott J.Mikulecky
10 I N.Tejon,Suite 410
Colorado Springs CO 80903
[phone]
[phone] (fax)
ATTORNEYS FOR RESPONDENT AND
COU'NTER-CLAIMANT KING'S DEER
TELEPHONE COMPANY,INC.,olk/a SUNWEST
COMMUNICATIONS,INC.
O
SHERMAN &HOWARD LLC.
By:
Stefan D.Stein
Leanne B.DeVos
633 17*Street,Suite 3000
Denver,Colorado 80202
[phone]
[phone] (fax)
and
Phillip L Douglass,#28152
Qwest Corporation
Law Department
I801 California,Suite 3800
Denver,Colorado 80202
[phone]
[phone] (fax)
ATTOILVEYS FOR CLAIMANT AND
COUNTER-RESPONDENTUS WEST
CONŒILNCATIONS,INC.
n/k/a QWEST CORPORATION
O
s EXHIBIT C
IN THE UNITEDSTATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.01 D 0601
SLTAVEST COMMUNICATIONS,INC.,a Colorado corporation,
Plaintiff,
v.
QWEST CORPORATION,a Delaware corporation.
Defendant.
STIPULATION FOR DISMISSAL WITH PREJUDICE
1.Pursuant to Federal Rule of Civil Procedure41(a)(l)(ii),all parties agree
to the dismissal of this action with prejudice.
2.Each party shall bear its own costs and attorneys'fees.
Dated this day of May,2001.
DUFFORD &BROWN,P.C.
Scott J.Mikulecky
101 N.Tejon,Suite 410
Colorado Springs CO 80903
[phone]
[phone] (fax)
ATTORNEYS FOR PLA.INTIFF
SUNWEST COMMLWICATIONS,INC.
O
.SHERMAN &HOWARD LL.C.
Stefan D.Stein
Leanne B.DeVos
633 17*Street,Suite 3000
Denver,Colorado 80202
[phone]
[phone] (fax)
D.C.Box #12
and
Phillip L.Douglass
Qwest Corporation
Law Department
1801 California,Suite 3800
Denver,Colorado 80202
[phone]
[phone] (fax)
ATTORNEYS FOR DEFENDANT
QWEST CORPORATION
e EXHIBIT D
O
BEFORE THE PUBLIC UTILITIESCOMMISSION
OF THE STATE OF COLORADO
Docket No.O IF-166T
SUNWEST COMMUNICATIONS,INC.,
Complainant,
v.
QWEST CORPORATION,
Respondent.
STIPULATIONFOR DISMISSAL WITH PREJUDICE
Complainant SunWest Communications,Inc.("SunWest")and Respondent Qwest
Corporation ("Qwest")stipulate and agee that this maner be dismissed with prejudice.In
support of this Stipulation,the panies advise the Commission that they have resolved the
unde.rlying matters to their mutual satisfaction and no further Commission action is required.
DATED this day of May,2001.
SURVEST COMMUNICATIONS,INC.
By:
Scott J.Mikulecky,#16113
DUFFORD &BROWN P.C.
101 N.Tejon,Suite 410
Colorado Springs CO 80903
[phone] (telephone)
[phone] (fax)
Arorneys for SunWest Communications,Inc.
O
QWEST CORPORATION
By:
Leanne B.De Vos,#15397
Stefan D.Stein,#26694
SHERMAN &HOWARD L.L.C.
633 17"Street,#3000
Denver,CO 80202
[phone] (telephone)
[phone] (fax)
and
Kris Ciccolo,#17948
Qwest Corporation
Law Department
1005 17*Street.Suite 200
Denver,CO 80202
[phone] (telephone)
[phone] (fax)
Attorneys for Respondent Qwest Corporation
0
2
EXHIBIT E
S
O BEFORE THE PUBLIC UTILITIESCOMMISSION
OF THE STATE OF COLORADO
IN THE MATTER OF THE INVESTIGATION \
INTO US WEST COMMUNICATIONS,INC.'S \Docket No.97I-198T
COMPLIANCE WITH §271(C)OF THE
TELECOMMUNICATIONS ACT OF 1996
WITHDRAWAL OF OPPOSITION TO QWEST'S PETITION TO
OBTAINAPPROVAL TO ENTER THE IN-REGION INTERLATA
TELECOMMUNICATIONS MARKET
SunWest Communications,Inc.("SunWest")and Qwest Corporation ("Qwest")have
reached a settlement with respect to all outstanding claims made by Sunwest as to Qwest.On or
about Januart 31,2001,SunWest filed a Statement of Position Opposing [Qwest's]Petition to
Obtain Approval to Enter the In-Region Inter-LATA Telecommunications Market -Third and
Fourth Workshops.On or about May 9,2001,SunWest filed a Supplement to Statement of
Position Opposing (Qwest's]Petition to Obtain Approvalto Enter the In-Region Inter-LATA
Telecommunications Market -Fifth Workshop.Representatives from SunWest have also given
testimony before the CPUC in the Section 271 workshops.One of SunWest's concerns in the
Section 271 workshopswas how Qwest provisions unbundled loops deployedover IDLC with
number portability.This and other issues SunWest raised in the Section 271 workshops have
been resolved to SunWest's satisfaction,and are no longer a concern.Accordingly,SunWest
herebywithdraws its opposition to Qwest's Section 271 application.
DATED this day of May,200 L
SUNWEST COMMUNICATIONS,INC.
By:
Scott J.Mikulecky,#16113
DUFFORD &BROWN P.C.
101 N.Tejon,Suite 410
Colorado Springs CO 80903
[phone] (telephone)
[phone] (fax)
Attorneys for SunWest Communications,Inc.
B
2
Oct 02 01 04:1Sp E.,utive Extension,Inc.50:97-9166 p.<
'CONFIDENTIAL &PROPRIETARY
FACTLITYDECOMMISSIONINGAGREEMENT
THIS FACILITY DECOMMISSIONING AGREEMENT ("Agreement"),is made and entered
into as of this 2nd day of October,2001 (the "Effective Date"),between Qwest Corporation ("Qwest")
and Metstream O'CLEC")(Qwest and CLEC being sometimes hereinafterreferredto 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 interconnection agreement (the "InterconnectionAgreement"),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 vinual
collocation and ancillary services from Qwest.CLEC now desires to return to Qwest the collocation
sites identiñed 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 Parnes regardingthe terms and conditions of CLEC's return of the Facilities and the financial
obligationsof each Party with respect to each of the Facilities under e InterconnectionAgreement.
NOW,THEREFORE.in consideration of the foregoingand other good and valuableconsideration.the
receipt and suffici¿ncy 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 decominission the Facilities and to waive all fees and charges associated therewith.
2.Credit/Reimbursement.In the event that CLEC was previously invoiced and paid Owest for the
decommissioning quotes and the monthly recurringcharges past the date of acceptance of the valid
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 recurring charges paid for the Facilities
after the date of Qwest's acceptance and validationof the decommissioningrequest.This credit amount
will be applied,first,to satisfy any onmandinghalances owed bv CT FC m Owest.if any.If a credit
balance remains.[CHOOSE ONE c CLEC mav request the credit be paid the¡p via chec W Such
check shall be issued by Qwest within thirty (30)days of the Effective Date hereof.-OR -Qwest shall
provide a one-time credit to CLEC to be used to offsetfuture amounts payable to Qwest pursuant to other
agreements between the Parties.]
3.Release and Waiver.
(a)For valuableconsideration to be paid by Qwest to CLEC as provided in 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,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 have been asserted or could be asserted in any way relating-toor arising out
of the Facilides or this Agrecment(the "Release and Waiver ').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.
tiet or 01 o41sp Ex utive Extension,Inc.503 17-8166 p.
(b)As part of the Release and Waiverdescribed in the previousparagraph,CLEC expressly
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 the EffectiveDate 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 availableat 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 equipment so removed will be retumed
to CLEC upon paymeul 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
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.
.......b--B
4.Confidentiality.---.-..
(a)The Parues 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
Pardes 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 setdement and the terms or substance of this
Agreement to any person.judicial or administrBLive agency or body.business,entitv 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.
Tbc Parties further agree that in the event of a breach of the confidentiality provisions of this Agreement,
the hann suffered by the injured Pany 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 Partv has a legal obligation which requires disclosureof the terms and
conditions of this Agreement,the Party havingthe 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.Bindiqÿ Arbitration.Any claim,controversyor 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 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 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 detriment of
either Party.
.Oct 02 41 04:1Sp E utive E×tension,Inc.bu:UV-en e.
7.Governing Law.This Agreement shall be interpretedand construed in accordance with the laws
of the State of Colorado,and shall not be imerpreted 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 mattet hereofand 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 Partie.9 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.Severabilitv.If any provision of this Agreement should be declared to be unenforceableby any
administrative agengy,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 of this Agreement
I L 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 numberof tounterparts,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 Agreement are strictly for convenience
and shall not be considered in interpreting this Agreementor as amplifying or limiting any of its content.
Words in this Agreernent·which import the singular connotationshall be interpreted as plural,and words
which import the plural connotation shall be interpreted a singular,as the identity of the Parties or
objects.referredto may foquire.Unless expressly defined herein,words havingwell 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 Decommissioning Agreement to be
executed as of this day of ŒNhA 2001.
BCL QWES ATIO
Name of Signatory Audrey cKenney
Title:Ú Title:Senior Vice President
By:
Steve Hansen
Title:Vice President
3
SCT.UE 91 UN.cup -------------.
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CONFIDENTIAL BILLING SETTLEMENT AGREEMENT
This Confidential Billing Settlement Agreemententered as of August 29,2000 byandbetweenUSWESTCommunications,Inc.,now known as Qwest Corporation ("Owest")and Mid-Rivers Telephone Cooperative,Inc.("Mid-Rivers").
WHEREAS,on January 29,1997,QWEST and Mid-Rivers (hereinafter collectivelydescribedasthe"Parties")entered into an interconnection agreement in the State ofMontanapursuanttotheFederalTelecommunicationsActof1934,as amended by theTelecommunicationsActof1996,47 U.S.C.§151,et seq.(the "InterconnectionAgreement");
WHEREAS,the Parties are currently engaged in an arbitration proceeding to resolvedisputesconcerning(T)the applicability of reciprocal compensation for internet-relatedtraffic;(2)physical interconnection of facilities;and (3)the assessment of transportcharges(collectively,the "Disputes")arising out of interpretation and implementationoftheInterconnectionAgreement;
WHEREAS,the Parties have'reached a full settlement and compromise of theDisputes;
NOW,THEREFORE,in consideration of the mutual commitments contained hereinandforothergoodandvaluableconsideration,the receipt and sufficiency of which isherebyacknowledged,the Parties agree as follows:
1.In full settlement of the dispute with respect to reciprocal compensation forinternet-relatedtraffic:
A.QWEST shall pay Mid-Rivers the sum of
in immediately payable funds in fullsatisfactionofalloutstandingreciprocalcompensationbillingstenderedbyMid-Rivers to QWEST to date,and all amounts currently pending but unbilledbyMid-Rivers.QWEST shall tender full payment to Mid-Rivers on or beforeSeptember29,2000.Interest on any amount unpaid as of that date shall
accrue at the rate of eighteen per cent (18%)per annum,or at the highest
rate allowed by Montana law,which ever is less;
B.OWEST shall not bill Mid-Rivers and Mid-Rivers shall not bill QWEST forreciprocalcompensationforinternet-related traffic fiofriihe eie¯ãütiõn date of
this Billing Settlement Agreement through the effective date of theamendmenttotheParties'Interconnection Agreement described below in
Section 1.C.;
C.The Parties agree to amend the Interconnection Agreement to provide for abill-and-keep arrangement for all internet-related traffic for a two-year term
Mid-Rivers.4 1
(such term to initiate upon approval of the amendment by the MontanaPublicServiceCommission),such arrangements to be effective for the specifiedtwo-year period regardless of any state or federal findings or orders regardingtheeligibilityofinternet-related traffic for reciprocal compensation;D.The Parties agree to amend Section V.G.1.a by striking "+/-5%of balanceasmeasuredmonthly"and inserting in lieu thereof "+/-10%of balance(measured on a six-month rolling average beginning September 1,2000).The Parties agree to utilize the OWEST ISP tracking program (providingresultsinsubstantiallythesameforrnasthatreflectedonExhibitAattachedhereto)and agree further to provide each other with sufficient information toenableeachPartytomeasuredirectlysuchISPtraffic,including,but notlimitedto,the telephone number of iSP customers.
E.Upon the expiration of the two-year term referenced in Section 1.C above,the Parties agree to conform their arrangements with respect to reciprocalcompensationassociatedwithISP-bound traffic to the then-current rulingsandrequirementsofapplicablecommissionsorcourts;
F.The Parties acknowledgeand agre,e that they have a legitimate billing disputewhetherand/or the amounts of reciprocal compensation for internet-relatedtrafficowedbyQWESTundertheirexistingandpotentialfutureinterconnectionagreements.The terms and conditions contained in thisConfidentialBillingDisputeSettlementAgreementforinternet-relatedtrafficasitappliestoreciprocalcompensationdonotrepresenttheParties'positionontheseissuesandmaynotbeusedbyonepartyagainsttheotherpartyinanyforum.The Parties agree that this Confidential Billing Dispute SettlementAgreementisthecompromiseofdisputedissues;and
G.In the event either Party receives from any regulatory body or court arequest,subpoena or order commanding disclosure of the terms andconditionsofthisConfidentialBillingDisputeSettlementAgreement,thePartyreceivingtheorderorsubpoenashallimmediatelynotifytheotherpartyinwritingofthenature,source,and scope of such request,subpoena orordersoastoenabletheotherparty,at its option,to take such action asmaybelegallypermissiblesoastoprotecttheconfidentialityprovidedforparagraph6.
2.In full settlement of the dispute with respect to physical interconnection of
f acilities,
A.Mid-Rifëiš¯šnäll,n TäW INän Augüšf31 2DOT,törišffüërfãc¯ilitiës to meetwithandinterconnecttoQWESTfacilitiesinMilesCity,Montana (the "MilesCityMeetPoint").OWEST shall cooperate with Mid-Rivers in implementingthephysicalinterconnectionattheMilesCityMeetPointfortheexchangeoflocalserviceareatrafficoriginatingandterminatingbythePartiesinMilesCity.It is the intent of the Parties to exchange local traffic in Miles CitythroughtheMilesCityMeetPointassoonasispracticablefollowingMid-
Mid-Rivers.4227-131
Rivers'completion of construction.In the event that Mid-Rivers fails toconstructfacilitiestomeetwiththeQWESTfacilitiesbyAugust31,2001,OWEST shall bill direct trunk transport for facility utilization thereafter,untilsuchtimeasMid-Rivers constructs the facilities as required by this Section.The location of the Miles City Meet Point shall be determined by negotiationsbetweentheParties;
8.Mid-Rivers shall,no later than December 31,2001,complete constructionandroutingarrangementstoexchangewithQWESTlocalserviceareatrafficoriginatingandterminatingbythePartiesinTerry,Montana through theMilesCityMeetPoint.QWEST shall cooperate with Mid-Rivers inimplementingthisarrangement.It is the intent of the Parties to exchangelocaltrafficoriginatingandterminatinginTerry,Montana through the MilesCityMeetPointassoonasispracticablefoffowingMid-Rivers'completion ofconstructionandrouting;
C.The Parties confirm that each shall bear its own costs with respect tofacilitiesprovisionedtotheMilesCityMeetPoint;and
D.The Parties agree that existing facilities and interconnection arrangementswithrespecttoSidney,Wibaux,Fairview,and Glendive which do notterminatetoaMid-Rivers ACTL will be reconfigured in order to terminate atsuchapointoftermination.The Parties shall cooperate to effectuate thisreconfigurationandtakeallstepsnecessarytoavoiddegradationorinterruptionofservice.The Parties agree to establish new points ofinterconnectionconsistentwiththeprinciplesestablishedherein.
3.In full settlement of the dispute with respect to transport charges:
A.QWEST.shall reverse all charges reflected in current billings through theeffectivedateofthisBillingSettlementAgreementwithrespecttotransportcharges,regardless of whether such charges are termed DTT or LIS charges.Mid-Rivers shall not submit invoices for transport charges;and
B.QWEST shall not submit future invoices to Mid-Rivers for transport fees,norshallMidRiverssubmitinvoicestoOWESTfortransportfees,it being agreedbythePartiesthat,upon completion of the construction contemplatedpursuanttoSection2above,all Meet Points are deemed equidistant and,accordingly,no transport charges will be due and owing by either Party.
¯Ïñe Parties agree to use their best efforts to implemeri the arrangeTTTWFTTWcontemplatedunderthisBillingSettlementAgreementexpeditiouslyandefficiently.
5.The Parties agree that,except with respect to Section 1.A hereof,the terms of thisBillingSettlementAgreementshallbereflectedinappropriateamendmentstotheInterconnectionAgreement,which shall be filed by the Parties with the MontanaPublicServiceCommission,including the contemplationby the Parties that facilities
Mid-Rivers.4327-131
are equidistant,bill-and-keep arrangements for all internet-related transport and
termination charges,and a new two-year term.Just for purposes of the Disputes,
the Parties agree that these contemplatedamendments shall conclude the currentrenegotiationoftheInterconnectionAgreement.Mid-Rivers contemplates"optingin"to existing QWEST agreements for resale and unbundled network elementsarrangements.
6.The Parties agree that the amount and terms contained in Section 1.A hereof are tobeandremainconfidentialandareofnoprecedentialweight.No Party maydirectlyorindirectlydisclosethetermsandconditionscontainedinSection1.Ahereofexceptasmayberequiredbylaw.
7.This Billing Settlement Agreement constitutes the entire agreement between thePartieswithrespecttothesubjectmattercontainedherein,and supersedes all priororalorwrittenagreements,representations,statements,negotiations,understandings,proposals and undertakings with respect to the subject matterhereof.
8.Each Party agrees to share equally all \arbitration fees and expenses,pursuant toSectionXil.N.of the interconnection Agreement.
9.For valuable consideration mentioned above,Mid-Rivers and QWEST do herebyreleaseandforeverdischargetheotherandtheother's associates,owners,stockholders,predecessors,successors,agents,directors,officers,partners,employees,representatives,affiliates,parents,subsidiaries,subsidiaries,insurance
carriers,bonding companies,attorneys,and employees of the foregoing,from any
and all manner of causes of action and claims related to the current issues in
dispute and resolved by this Billing Settlement Agreement.
10.The parties agree that this settlement is the compromise of disputed claims and
neither Party is admittingto liability.
IN WITNESS WHEREOF,the Parties hereto have caused this Confidential Billing
Settlement Agreementto be executed by their respective duly authorized representatives.
Mid-Rivers Telephone Cooperative,
Inc.Name Printed/Typed
Signature Title
Mid-Rivers.4427-131
406245775789/24/2000 18:59 4052457757 COPYRIGHT PAGE 02
7.Thie Billing Settlement Agreement ennetitutaasne entire agreement betweenthe Partleswithrespecttothesubjectmattercontainedheraln,and supersedes all prior oral orwrittenagreements,repraeontstions,statements,riegotiations.understandings,proposalsandundertakingswithraapacttothesubjectmattarhereof.
8,Each Party agrasa to chang equally sli arbitration feet and expensen,Þutsuent to SectionXII.N.of the interconnection Agreement,
s.For valuable consideration mentioned above,Mid-Rivers and OWEST de hereby releaseandforeverdischargetheotherandtheother's assanistes,owners,stugatteiders,predecessors,successora,agents,dirastora,officera,partnera,employses,represermrtives,affiliates..perants,subsidiarise,subsiglaries,insurance carriers,bondingcompenlaa,attorneys,and employees of thoferegoing,from erne and en manner of causasofactionandclairnarelatedtothecurrentlasuesindisputaandresolvedbythisBillingSettlementAgreement.
10.The parties agree that thl;settlement is the compromise of disputed claims and neitherPartyisadmittingtofiabinty,
IN WITNEss WHEREDF,the Partles hemte have cañaed this Confidential BillingsentementAareementtobeexoputedbytheirroepentivedulyauthorizedregraanntatives.
I
Mio-RIVEnsTELEPNONE COOPdtpTIVE,INC.QvilEST CORPORATIDN
Gerry Anderson
Name PrimedfTyped Name PrintedfTyped
Generat Manager
Title
September 29,2000
sta Date
Owest CorporationDate
Signatur
Name Printed/Typed
Title
Date
M¡d-Rivers.4527-131
i c
Non nsit local
Period Period Orig USWC
110 ort 7/1/99 7/31/99
ISP 7/1/98 7/31/99 ISP was not tracked until August .
Diff.(e local).Isp tar .My is estirnate based c:
bion nsit ioca:
Period Period Term USWC
119 rt 7/1/99 7/31/99
ISP 7/1/99 7/31/99
Diff.(e local)
Out of Balance(+or.5¾)
110 7/31/99
119 7/31/99
ToTA.oo.oon
Non transit local i Non transit local
Period Period Orig USWC Period Period ce .
110 report .8/1/99 8131/99 110 report ..9/1/99 9/30/95
ISP 8/1/99 8/31/99 lŠP 9/1/99 9/30/99
Diff.(e local)Diff.(true local)
Non nsit local Non transit local
Period Period Term USWC Period Petico
ISP 8/1/99 8/31/99 ISP .-.9/1/99 9/30!
Offf.(local)Diff.(true locar)
Out lance(+or -5%)Out of Balance(+or -5%)
.10 8/31/99 110 9/30/99
119 8/31/99 .119 9/30/99
100.00%TOTAL
No transit local ..Non transit local
Period Period or g USWC Period Perio:
report :10/1/99 10/31/99 110 report :11/1/99 11/30/5
SP .10/1/99 ...10/31/99 ISP ,11/1/99 11/30/95
.'·..·.---DW.(itue loca -
nt ansit ocal Non transit local
eriod Period _Term USWC Period Period
rt 10/1/99 10/31/99 119 report 11/1/99 11/30/55
10/1/99 10/31/99 ISP 11/1/99 11/30/59
(local)Diff.(true local)
.10 10/31/99 110 11/30/99
i 9.10/31/99 119 11/30/99
ft-d'011/295 a gge-t lã2\988tBE ISH 10-
TOTAL ·100.00%TOTAL .M '.3
Non transit local Non transillocal
Period Period Orig USWC Period Feriod :
110 12/1/99 12/31/99 110 report 1/1/00 1/31/03
ISP 12/1/99 12/31/99 ISP 1/1/00 1/31/03
Diff.(e local)Diff.(true local)
Non nsit local Non transit local
Period Period Te SWC Period Period -
ils o;t 12/1/99 12/31/99 119 report 1/1/00 1/31/03
ISP 12/1/99 12/31/99 ISP 1/1/00 1/31/03
Diff.(e local)Diff.(true local)
Out of Balance(+or -S%)Out of Balance(+or -S%)
110 12/31/99 110 1/31/00
-119 12/31/99 119 1131/00
TOTAL 1 0.00%TOTAL
Non transit local ,Non transiMocal
Period Period Orig USWC Period Period :
110 report 2/1/00 2/29/00 110 report 3/1/00 3/31/00
ISP .2/1/00 2/29/00 ISP 3/1/00 3/31/00
.Diff.local)Diff.(ttue 10Cal)
Non local Non transit local
Period Period Term USWC Period Period Te
1 rt 2/1/00 2/29/00 119 report 3/1/00 3/31/00
isP 2/1/00 2/29/00 ISP 3/1/00 3/31/cc
ce(+or -6%)Out of Balance(+or -5%)
2/29/00 110 3/31/00
9 9/00 -
119 3/31/00
.00%..OTAL.
cil Non transit Ioeal
d Period Term USWC Period Period Term USV.C
4/1/00 4/30/00 119 report 5/1/00 5/31/00 M
4/1/00 4/30/00 ISP 5/1/00 5/31/00
Dift.(true local)
-5 Out of Balance(+or -5%)
110 4/30/00 110 5/31/00
'119 4/30/00 119 5/31/00TOT;L M R TOTAL
.i
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StW 900/901 d ggg.1 ¿S2|SigggE 15;¡gn
US WEST Communications,Inc.
1801 camorrua Street.Sune 2410
lites bener here o
Kathy Fleming
June 1,2000
Thomas W.Hartmann
General Counsel
SBC Telecom inc.
130 East Travis,5°Floor
San Antonio,TX 78205
Dear Tom:
This letter documents the proposed settlement terms discussed between
US WEST Communications,Inc.("US WEST")and SBC Telecom,Inc.("SBCT').
US WEST and SBCT are referred to as the "parties."If both parties accept the terms
of the settlement addressed in this letter,each will execute a copy of this letter in the
sigitature spaces provided on the last page.Such signature pages can be executed in
dupljcate,and faxes will be treat d as originals.All of the terms of settlement
documented in this letter are expressly contingent upon:(1)SBCT's immediate and
formal withdrawal,no later than June 2,2000,in writing,of its opposition to the
US WEST/OWEST merger in those proceedings where SBCT is an intervenor;and (2)
SBCTs immediate agreement not to intervene or otherwise oppose the
US WEST/QWEST merger in any other state forum.The terms of this proposed
settlement shall apply in all US WEST states in which SBCT is or becomes a certified
telecommunications carrier.
1.IMPLEMENTATION OF lNTERCONNECTION AGREEMENTSUPON
SIGNATURE
Subject to SBCTs immediate and formal withdrawalin the above referenced
proceedings,US WEST will,at SBCTs request,process SBCT's service orders upon
both parties'execution of an interconnection agreement prior to state commission
approval of such interconnection agreement.This commitmentonly pertains to the
processing of SBCTs orders for the establishment and testing of SBCTs network for
the purpose of interconnection and does not include processing of orders for unbundled
network elements.The parties agree that live customer traffic will not commence until
after the relevant state commission approves the interconnectionagreement,in
accordance with the terms of the interconnection agreement.The parties further agree
that any existing performance measurements or penalties that may be included in an
Thomas W.Hartmann
June 1,2000
Page2
interconnectionagreement or which apply to the interconnection agreement by state
commission rule will not apply prio to state commission approval of the interconnection
agreement.US WEST shall receive and process all appropriate forms and information,
in accordance with the interconnection agreement,that are necessary to activate pre-
order,order,maintenance and repair systems on and after the date of the relevant state
commission approval of the interconnectionagreement.US WEST shall implement this
commitment no later than June 9,2000.Consistent with the provisions in this
paragraph and beginning June 9,2000,SBCT may order,and US WEST shall
provision,services available under an interconnection agreement immediately upon
execution of that interconnection agreement by both parties and before state
commission approval;provided that SBCT has met the other US WEST administrative
prerequisites to place an order wit6 US WEST in the applicable state (e.g.,co-provider
questionnaire,forecasts).SBCT agrees to assume all the risks associated with a state
commission's failure to approve,o modification of,the interconnection agreement,
provided that US WEST supports approval of the interconnection agreement.In
addition,US WEST shall be relieved of its obligations in this paragraph in a particular
state if a cornmission in that state prohibits US WEST from implementing an
interconnection agreement upon signature,and prior to state commission approval,
provided that US WEST supports approval of the interconnection agreement.
2.PENDING DS3 FACILITY IN
In addition to SBCT's immediate and formal withdrawal in the above referenced
proceedings,SBCT will perform all activities necessary,including obtaining ladder
racking and obtaining power,in order for US WEST to terminate the OC12 at M
-nd to provide the DS3,
US WEST will commit to a June 27,2000 service ready date,if by June 12,2000,
SBCT can perform all activities necessary,includingobtaining ladder racking and
obtaining appropriate power,in order for US WEST to make the OC12 operationaland,
consequently,provide the DS3.If SBCT cannot perform by June 12,2000,US WEST
will make all reasonable efforts to provide the OC12 and DS3 as soon as possible,but
no later than 15 business days after SBCT has performed all necessary activities
required in order for US WEST to make the OC12 operational and,consequently,
provide the DS3.US WEST will,upon SBCT's request,provide available services
over copper facilities as they are available today.
3.AMENDMENTS TO INTERCONNECTIONAGREEMENTS
When SBCT opts into an interconnection agreementunder Section 252(i)of the
federal Telecommunications Act of 1996,US WEST w¡ll begin to negotiate
amendments to those agreements in good faith prior to state commission approvalof
Thomas W.Hartmann
June 1,2000
Page 3
the interconnectionagreement.Furthermore,when an amendment to an
interconnectionagreement is reached,US WEST will implement the amendment upon
execution by both parties prior to statè commission approvalof the interconnection
agreement or the amendment,providAdsuch action is not prohibited by the state
commission in thatstate.This commitment only pertains to the processing of SBCT's
orders for establishmentand testing of SBCTs network for the purpose of
interconnectionand does not include'processing of orders for unbundled network
elements.The parties agree that live customer traffic will not commence until the
appropriate state commission approves the interconnection agreement.The parties
furtheragree that any existing performance measurements or penaltiesthat may be
included in the interconnection agree'ment or which apply to the interconnection
agreement by state commission rule will not apply prior to the approvatof the
interconnection agreement by the relevant state commission.
4.AVAILABILITYOF INTERCONNECTION AGREEMENT AMENDMENTS
RESULTING FROM SETTLEMENT AGREEMENTS BY PARTIES TO THE
US WEST/QWEST MERGER DOCKET
in those states where US WEST has entered into a settlement agreement with a
party.to the US WEST/QWEST me(ger docket which results in an amendmentto the
interconnection agreement between U sWEST anghat party,US WES hall make
that aniŠnirtient available to SBCT in the state(s)where the amendment is fiÏŒ Ü¡ËÏn
execution of any amendment to an interconnection agreement with a partyto the state
merger proceeding which results frqm a settlement agreement with such party in the
US WEST/QWEST merger docket in a state proceeding,US WEST will provide such
amendment to SBCT within 7 business days after it has been filed for state
commission approval.US WEST gill then expeditiously make available an idenŠŠ
amendment to SBCT,if SBCT desires.
The parties agree that they have engaged in negotiations with regard to the
terms contained in this settlement¢ocumentand,as such,any term cannot be used by
one party against the other party ab an admission or to prove that the party supports or
has acquiesced in any way to the positions contained herein.The parties further agree,
that for an alleged breach of a ter contained in this agreement,an aggrieved party
may use any procedural avenue available to the party provided by the underlying
interconnection agreements,state statuteor commission rules.
Very truly yours,
Katherine Fleming
Thomas W.Hartmann
June 1,2000
Page 4
TERMSOF SETTLEMENTACCEPTED BY:
US WEST Communications Inc.
Iname]
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SBC Telecom,Inc.
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TERMS OF SETTLEMENT ACCEPTED BY
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'CONFIDENTIAL &PROPRIETARY
FACILITYDECOMMISSIONINGA GREEMENT
THIS FACglTY DECOMMISSIONING AGREEMENT ("Agreemem"),is made and entered
into as of this O *day of UkAox ,2001 (the "Effective Date"),between Qwest Corporation
("Qwest")and SBC Telecom.Inc (Qwest and SBC being sometimes hereinafterreferred to collectively as
the "Parties"and individually as a "Party").
RECITALS
WHEREAS,Qwest,a local incumbent exchange provider,and SBC,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,SEC has purchased physical and/or virtual
collocation and ancillary services from Qwest.SBC now desires to retum to Qwest the collocation sites
identified in Exhibit A (the "Facilities")attached hereto and incorporated by reference;and
WHERËAS,the Panies voluntarily enter into this Agreement as a final resolution to disputes arising
between the Panies regarding the terms and conditions of SBC'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 Parties agree as follows:
1.Facilitv Decomniissioning.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.I Credit/Reimbursement.In the event that SBC was previously invoicedand paid Qwest for the
decommissioningquotes and the monthly recurringcharges past the date of acceptance of the valid tr
decommissioningapplication,Qwest shall make a one-timecredit to SBC 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 outstandine balances owed by SBC to Owest,if anv.If a credit
balance remains.(CHOOSEONE.§SBC may request the credit be paid them via check.Such check shall
issued by Qwest within thirty (30)days of the Effective Date hereof.OR-Qwest shall provi a ,
one-timeere it to to be use to oliset tuture amounts payable to Qwest pursuantto other agreements J
betweenthe Parties.]
3.Release and Waiver.
(a)For valuableconsiderationto be paid by Qwest to SBC as provided in Sections 1 and 2
above,SBC hereby releases and forever discharges Qwest and its associates,owners,stockholders,
predecessors,successors,agems,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 havebeen asserted or could be asserted in any way relating to or arising out
of the Facilities or this Agreement(the "Release and Waiver").SBC 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 of the Release and Waiver described in the previousparagraph,SBC expressly
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 the EffectiveDate of this Agreementat SBC's own
expense.
(c)In the event SBC 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 availableat law or equity,
remove all of SBC's equipmentfrom the Facility and store the same at SBC's expense.SBC expossly
waivesany damages occasioned by such removaL Any equipment so removedwíll be returned to SBC
upon payment in full of all storage costs.If within forty-five (45)days following such equipmem
removal,SBC has not requested the return of its equipment and paid any sums owed,then Qwest may
exercise all rights of ownershipover such equipment includingthe right to sell same and retain possession
of any sale proceeds.Qwest's exercise of any remedies providedfor in this Section 3 shall be without
prejudiceto any other remedies Qwest may have provided for herein or by law.
4.Confidentiality.
(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 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 Parties further agree that in the eventof a breach of the confidentianty 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
entitledto seek an injunction against such breach.
(b)In the event either Party has a legal obligation which requiresdisclosure of the terms and
conditions of this Agreement,the Pany having the obligation shall iminediately notify the other Party in
writing of the nature,scope and source of such obligation so as to enablethe 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,controversyor 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 currentrules of the American ArtibrationAssociation.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 attorneys'fees
and shall share equally in the fees and expenses of the arbitrator.
6.Full Setdement.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 fvJJ and complete and,except as provided in Section 5 above,cannot be used to the detrimentof
eitherParty.
f
'7.GoverningLaw.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 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 Panies.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 Panies,their respective successors,affiliatesand 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 reinainder of the
Agreement shall reniain in full force and effect,and shall be binding upon the Parties heteto as if the
invalidatedprovision 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 in any numberof 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 Agreement are strictly for convenience
and shall not be considered in interpretingthis Agreement or as amplifying or limiting any of its content.
Words in this Agreementwhich import the singular connotationshall be interpreted as plural,and words
which import the plural connotationshall be interpreted as singular,as the identity of the Parties or
objects referredto may require.Unless expressly definedherein,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,whethersimilar or dissimilarto those listed,as the context reasonablyrequires.
IN WITNESS THEREOF,the Parties have caused this Facility DecommissioningAgreement to be
executed as of this i day of OCOM ..2001.
SEC QWEST CORPORATION
Name of Signatory Audre cKenney
Title i f.-i½+Title:Senior Vice President
By:
Steve Hansen
Title:Vice President
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COPY
CONFIDENTIAL BILLING SETTLEMENT AGREEMENT
0 This Confidential Billing Settlement Agreement (the "Agreement"),effective January 18.
2002 (the "Effective Date"),is entered into among Qwest Corporation ("Qwest"),successor to
US WEST Communications,Inc.,and SunWest Communications.Inc.,successor in interest to
King's Deer TelephoneCompany,("SunWest").Qwest and SunWest are collectively referred to
as the "Parties."
RECITALS
This Agreement is enteredinto with reference to the Íollowing facts:
A.WHEREAS,Qwest is an incumbent local exchange carrier operating in Colorado;
B.WHEREAS,SunWest,is a competitive local exchange carrier operating in
Colorado;
C.WHEREAS,the parties provide each other with various services and facilities
pursuant to effective state and federal tariffs and pursuant to an interconnection
agreemententered into on November 17,1999,and approved in 2000 pursuant to
the Telecommunications Act of 1996 (hereafter,"2000 Interconnection
Agreement");
D.WHEREAS,SunWest owes Qwest approximately not including
interest,in past-due payments as of the Effective Date of this Agreement with
future payments due for services rendered beginning with approximatelyg
due on January 28,2002;
E.WHEREAS,on December 13,2001,Qwest terminated provisioning ASR/LSR
services for nonpayment of past-due account balances;
I
F.WHEREAS.on December 21,2001,Qwest provided SunWest with a disconnect
notice indicating that Qwest would disconnect its services to SunWest on Januarv
14,2002.as a result of SunWest's failure to deliver to Qwest the past-due
payments.
G.WHEREAS,SunWest disclosed to Qwest that it is in the process of selling its
assets and that it anticipates completing that transaction within the next 120 days.
H.WHEREAS,each of the Parties considers it to be in its best interest and to its
advantageto avoid delay and costly litigation and to resolve both the past-due
balanceowed and the manner and method of payment for future services.
NOW,THEREFORE,to fully and finally resolve the disputes identified herein and in
consideration of the covenants below,the Parties agree as follows:
AGREEMENT AND RELEASE
1.Disputes.The Parties acknowledge disputes,including billing disputes,related to
the provisioning of services and performance by each Partv under the 2000
Interconnection Agreement and state and federal tariffs,including but not limited
to,Qwest's claim that SunWest owes Qwest substantial unpaid balances on past
invoices presented by Qwest (the "Disputes").
2.Settlement of Disputes.As a full and final settlement of any and all claims,
actions,causes of action,suits,debts,demands,damages,judgments,executions,
costs,expenses,liabilities,duties,amounts,accounts,reckonings,indemnities,
covenants,contracts,controversies,agreements,promises,doings,offsets,debts,
liens,omissions,losses,exposures and obligations of any kind whatsoever,
whether known or unknown,whether in law or in equity,including any related
interest expenses which may have accrued in connection therewith (hereafter,
2
"Claims"),which the Parties have,had,may have or claim to have had relating to
or arising out the Disputes described in paragraph 1 above from the beginning of
time through the date of this Agreement.the Parties shall undertake the following
actions:
a)Initial Pavment.On the Effective Date,SunWest shall hand .
deliver to Qwest a cashier's check,in the amount of a Jr
The cashier's check shall be made payable to
Qwest Communications and delivered to the following address:Qwest,1801
California,23rd Floor,Denver,Colorado 80202,Attn:Audrey McKenney/Stacy
Reed.
b)Catch-Up Pavments.SunWest agrees and acknowledges that it
owes to Qwest in prior,past-due
pavments under both the 2000 Interconnection Agreement and the applicable
tariff (the "Back Balance").The Parties agree that the Back Balance shall be
amortized over a six-month period and paid by SunWest to Qwest as follows:
SunWest agrees to transmit the Back Balance Payments,plus related interest,to
Qwest in four monthly installments by wire transfer.Interest on the Back Balance
Payments shall accrue at the applicable interest rate set forth in the 2000
Interconnection Agreement or applicable tariffs and Qwest shall notify SunWest
of the applicable interest by the 10th day of each month.Payments of the Back
Balance shall be made as follows:
Date Due 'Principal Amount (excluding
related interest)
Februarv 15.2002
March 15.2002
.
April 15.2002
May 15.2000
c)Current Obli2ations.SunWest shall remain current on all billings
due after the effective date of this Agreement,beginning Januarv 28,2002,and
shall make such payments to Qwest by wire transfer pursuant to the tenns of the
invoices presentedby Qwest.
d)Wire Instructions.The wire transfer instructions for Qwest are:
Account Name:QWEST Corporation
Account #:
Bank Name:
Bank ABA#:
e)Default/Termination.In consideration for SunWest remaining
current on all of its.payment and performance obligations to Qwest,including
those described in paragraphs 2(a)-(c)above,Qwest shall restore provisioning
ASR/LSR services to SunWest and shall not terminate the applicable services it
provides to SunWest.In the event SunWest fails to rnake the Initial Payment or
any of the monthly Back Balance Payments or any other payrnents as provided for
in this Agreement or if SunWest otherwise fails to comply with any other term
contained herein.or if SunWest fails to comply with any term contained in this
Agreement or any other agreement between SunWest and Qwest,including the
2000 Interconnection Agreement.or íf SunWest fails to comply with any term
contained in any of the tariffs filed by Qwest with the FCC or any state regulatory
body with respect to SunWest's obligations,Qwest is authorized to suspend or
terminate or disconnect all services rendered by Qwest to SunWest after five (5)
days after notice is sent to SunWest specifying such default unless
SunWest cures such default within twenty-four (24)hours or as otherwise agreed
in writing by the Parties.Notwithstanding the Notice provisions contained in
section 13 of this Agreement,any notice from Qwest to SunWest specifying a
default under this Agreement may be made by using one or more of the following
alternatives at Qwest's discretion:(a)regular U.S.Mail;(b)overnight delivery;
(c)facsimile;(d)electronic mail (e-mail);(e)telephone;or (f)telephonic voice
mail message.
g)SunWest Release.SunWest hereby fully waives,releases acquits,
discharges and holds harmless Qwest and its associates,owners,stockholders,
5
successors,assigns,partners,parents,insurance carriers,bonding companies,
affiliates and subsidiaries,and each of their respective directors,ofûcers,agents,
employees and representativesfrom any and all Claims,known and unknown.for
service,billed or unbilled pursuant to tariff or the 2000 Interconnection
Agreement which it has,had,may have or claims to have had against Qwest
relating to or arising out of the Disputes described in paragraph 1 from the
beginning of time through the date of this Agreement.
h)Owest Release.Except .
as otherwise provided in this
Agreement,Qwest hereby fully waives,releases,acquits,discharges and holds
harmless SunWest and each of its associates,owners,stockholders,successors,
assigns,partners,parents,insurance carriers,bonding companieš,affiliates and
subsidiaries,and each of their respective directors,officers,agents,employees
and representatives,from any and all Claims,known and unknown,for services
billed or unbilled pursuant to tariff or the 2000 Interconnection Agreement which
Qwest has,had,may have or claims to have had against SunWest from the
beginning of time through the date of this Agreement.
3.Successors and Assiens.The terms and conditions contained in this
Agreement shall inure to the benefit of,and be binding upon,the respective
successors,affiliatesand assigns of the Parties.
4.Assignment of Claims.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.
6
5.Representations.Wan·anties and Covenants.Each Partv represents,warrants and
covenants that (a)it has and will have full and sufficient rights to perform its
obligations under this Agreement,free and clear of any liens,claims and
encumbrances.(b)it has obtained or will obtain any and all consents,approvals
and/or other authorizations necessary for the performance of its obligations
hereunder,(c)it has all requisite corporate power and authority to enter into,and
fully perform pursuant to,this Agreement,(d)it will comply with all laws and
applicable regulations of governing authorities relating to its performance under
this Agreement and (e)except for regulatory approvals contemplated hereby,no
authorizations or other consents,approvals or notices of or to any third party are
required in connection with (i)the performance of its obligations under this
Agreement,(ii)the validity and enforceability of this Agreement;or (iii)its
execution,delivery and performance of this Agreement.
6.Confidentialitv.The Parties expressly agree that they will keep the existence,
substance and terms of this Agreement (including the negotiation thereof)strictly
a
confidentiaL The Parties further agree that they will not communicate (orally or
in writing)or in any way disclose the existence,substance or terms of this
Agreement (including the negotiation thereof)to any person,judicial or
administrative agency or body,business,entity or association or anyone else for
any reason whatsoever.without the prior express nTitten consent of the other
Party unless compelled to do so by law as described in to paragraph 7 below.It is
expressly agreed that this confidentiality provision is an essential element of this
Agreement.The Parties agree that this Agreement and the negotiation thereof,
7
and all matters related thereto,shall be subject to the Rule 408 of the Federal
Rules of Evidence,and similar rules at the state level.The Parties further agree
that a breach of the confidentiality provisions of this Agreement will materially
hann the other Party in a manner which cannot be compensated by monetars
damages,and that in the event of such breach the prerequisites for an injunction .
have been met.
7.Notice of Disclosure.
(a)In the event either Party has a legal obligation which requires
disclosure of the terms and conditions of this Agreement (including,without
limitation,with the Securities and Exchange Commission or other regulatory
agencies),the Party having the obligationshall immediately notify the other Partv
in writing of the nature,scope and source of such obligation so as to enable the
otherParty,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 (10)
business days advance notice under this paragraph shall be provided to the other
Party,whenever possible.
(b)Notwithstanding anything to the contrary contained herein,in the
event that either Party initiates or participates in an arbitration.
litigation or other legal proceeding relating to this Agreement other
than as described in subsection (b)above.unless ordered by the
presiding court or otherwise required by applicable,non-
bankruptcy law,it shall not attach this Agreement to any filings.
documents or disclosures provided in connection with such
8
arbitration,litigation or legal proceeding,or describe the details of
this Agreement in such filings,documents or disclosures unless,
prior to attaching this Agreement thereto otherwise disclosing the
contents of the Agreement,the Partv seeking to disclose the
contents of this Agreement shall use its best efforts to obtain entrr
of an order of the court presiding over such litigation or proceeding
or a ruling of the arbitrator in fonn and substance reasonably
acceptable to the other Party (i)authorizing the filing of this
Agreement with the Clerk of the presiding court under seal or with
the arbitrator,provided that the arbitrator has agreed to maintain
the confidentiality thereof,(ii)limiting the provision and
dissemination of copies of this Agreement,marked "Highly
Confidential Proprietary Information,"to opposing counsel in such
arbitration,litigation or other proceeding and such other persons as
the arbitrator or court may direct,and (iii)prohibiting all such
parties from disclosing the substance of the Agreement to any
other person or entity or in open court or in any other venue or
medium without the consent of the Parties or order of the court or
ruling of the arbitrator obtained after a hearing held on reasonable
notice to the Parties;provided,however,that a copy or detailed
description of this Agreement may be disclosed to (i)the court or
arbitrator on a confidential basis in connection with obtaining any
such order or ruling,and (ii)such persons as shall have executed
9
and delivered to the Party seeking disclosure (with a copy
simultaneously delivered to the other Party)a confidentiality
agreement in form and substance reasonably acceptable to the non-
disclosing Partv.
8.Settlement Agreement and Mutual Release.The terms and conditions of the
Settlement Agreement and Mutual Release between Qwest and SunWest effective
May 31,2001 (the "Settlement Agreement")remain in full force and effect.The
Agreement shall not in any way modify or supersedethe terms and conditions of
the SettlementAgreement.
9.Entire Agreement Amendments.This Agreement constitutes the entire
agreementbetween the Parties concerning the subject matter hereof,and shall be
deemed to supercedeany other understandings or agreements,whether written or
oral,express or implied,relating to the Claims or the Disputes.This Agreement
can only be amended or changed in a writing or writings executed by all of the
Parties,provided,that this Agreement may not be amended or modified in any
way by electronic message or e-mail communications.Each of the Parties forever
waives all right to assert that this Agreement was a result of a mistake in law or in
fact.
10.Governine Law.This Agreement shall be interpreted and construed in
accordance with the laws of the State of Colorado,notwithstanding its choice of
law provisions.This Agreement shall be deemed to have been jointlydrafted by
the Parties,and shall not be interpreted in favor or against any Party as a result of
10
which Party may or may not have had primary responsibility for the actual
preparationof this Agreement.
11.Advice of Counsel.The Parties haveentered into this Agreement after conferring
with legal counsel.
12.Arbitration.Any claim,controversy or dispute between the Parties related to or in
connection with this Agreement,including the enforceability,formation or
existence of this Agreement,shall be resolved by private and confidential
arbitration before a single arbitrator conducted in Denver,Colorado under the
then-current Commercial Arbitration rules of the American Arbitration
Association.The arbitrator shall be an attomey engaged in the practice of law.
The Federal Arbitration Act,9 U.S.C.§§et seq.,not state law,shall govern the
arbitrability of all disputes.The arbitrator shall not have the authority to award
punitive and/or exernplaty darnages.The arbitrator's decision shall be final and
binding and may be entered in any court having jurisdiction thereof.Each Pany
shall bear its own costs and attorneys'fees and shall share equally in the fees and
expenses of the arbitrator.
13.Notices.Except as otherwise provided in this Agreement,any notice to a Party
required or permitted under this Agreement shall be in writing and shall be served
personally,delivered by Certified mail,or by a courier service.Except as
otherwise provided in this Agreement,upon prior agreement of the Parties'
designatedrecipients identified below,notice may also be provided by facsimile.
Except as otherwise provided in this Agreement,any notice shall be delivered
using one of the alternatives mentioned in this paragraph and shall be directed to
11
the applicable address indicated below or such address as the Party to be notified
has designatedby giving notice in compliance with this paragraph:
If to Qwest:Qwest Corporation
Attention:Legal Department
1801 California Street,Suite 5100
Denver,Colorado 80202
Phone:[phone]
Fax:[phone]
If to SunWest:SunWest Communications,Inc.
Attention:Alan Johnson
6189 Lehman Drive,Suite 201
Colorado Springs,Colorado 80198
Phone:[phone]
Fax:[phone]
14..No Waiver.The Parties agree that their entering into this Agreement and the
other agreementscontemplated herein 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 Disputes.
15.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 represents a compromise of the Parties'positions.
Therefore,the Panies deny any wrongdoing or liability and expressly agree that
resolution of the issues 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).This Agreement does not constitute an admission by either
Pa.rty of the truth or merit of any fact,any asserted principle of law,any matter,
claim,or cause of action alleged or asserted in any legal regulatory or other
12
forum,past,present or future,relating to the matters addressedin this Agreement.
This Agreement also does not constitute an admission with respect to the
appropriatenessor legality of any charges,billed or unbilled,whether paid or
unpaid,nor does it constitute an ongoing tern or condition to interconnection
underany interconnection agreementor otherwise.
16.Counterparts.This Agreement may be executed by facsimile and in multiple
counterparts,each of which shall be deemed an original,but all of which together
shall constitute one and the same document.
[THIS SPACE LEFT BLANK INTENTIONALLY]
13
IN WITNESS THEREOF,the Parties have caused this Confidential Billing
Settlement Agreement to be executed as of the date first written above.
SunWest at s,Inc.Qwest Corporation
:By:LL¿b
Title:Title:U I '
CONFIDENTLE &PROPRIET.ARY £XECUTION AGREEMENT
FACILITY DECOMMlSSIONINGAGREEMENT
THIS FACILITYDECOMMISSIONTNGAGREElvŒNT ("Agreement"),is made and entered
into as of this day of December,2001 (the "Effective Date"),between Qwest Corporation
("Qwest")and McLeodUSA inc.("McLeodUSA")(Qwest and McLeodUSA being sometimes hereinafter
referred to collectively as the "Parties"and individually as a "Party").
RECITALS
WHEREAS,Qwest,a local incumbent exchange provider,and McLeodUSA.a competitive local
exchange provider,are parties to a certain interconnection agreement (the "Interconnection Agreement"),
executed pursuant to sections 25 I and 252 of the Federal TelecommunicationsAct of 1996 (the "Act");
and
WHEREAS,pursuant to the ImerconnectionAgreement,McLeodUSA has purchased physical and/or
virtual collocation and ancillary services from Qwest.McLeodUSA 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 Agfeement as a final resolution to disputes arising
between the Panies regardingthe terms and conditions of McLeodUSA's return of the Facilities and the
fmancial obligations of each Pany 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 Parties agree as follows:
L :Facilitv Decommissioning.In consideration for the Release and Waiver set forth below,Qwest
hereby agrees to decommission the Facilities and to waiveall fees and charges associatedtherewith.
2.Credit/Reimbursement.In the event that McLeodUSA was previously invoiced and paid Qwest
for the decommissioningquotes and the monthly recurringcharges past the date of acceptance ofthe valid
decommissioning application,Qwest shall make a one-time credit to McLeodUSA for the sum of any
non-recurringcharges paid for the decommissioning and any monthly recumng charges paid for the
Facilities after the date of Qwest's acceptance and validation of the decommissioning request.This credit
amount will be applied,first,to satisfy any undi uted outstandine balances owedby McLeodUSA to
Qwest,if any.If a credit balance remains,gLeodUSAmay request the credit be pai em via check.
Such check shall be issued by Qwest within thirty (.ib)days ot the Effecove Date hereof.
3.Release and Waiver.
(a)For valuableconsiderationto be paid by Qwest to McLeodUSA as provided in Sections I
and 2 above,McLeodUSA hereby releases and forever discharges Qwest and its associates,owners,
stockholders,predecessors,successors,agents,directors.officers,panners,employees,representatives,
employees õf affiliates,employees ofparentsremployeesof subsidiaries.allates,parents,subsidiaries,
insurance 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,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,Ex2own or unknown,
past and present asserted or that could havebeen asserted or could be asserted in any way relatingto or
ansing out of the Facilities or this Agreement.excepting any personal injury or propery damage
liabilities of Qwest relating to the Facilities arising under the InterconnectionAgreement(the "Release
e
and Waiver").McLeodCSA hereby covenants and warrants that it has not assigned or transferredto any
person any claim,or ponion of any claim which is released or discharged by this Agreement,
(b)As part of the Release and Waiverdescribed in the previousparagraph,McLeodUSA
expressly agrees to relinquish foreverall rights and interest whatsoeverin the Facilities and to remove all
propeny it owns from the Facilities within thirty (30)days of the Effective Date of this Agreement at
McLeodUSA s own expense.
(c)In the event McLeodUSA fails to remove its equipment from the Facilities as provided
above,Qwest may,without notice or demand and in addition to any otherright or retnedy available at law
or equity,remove all of McLeodUSA's equipment (using the same reasonable standard of care as Qwest
would utilize removing its own equipment)from the Facility and store the same at McLeodUSA°s
expense.Qwest shall notify McLeodUSA in writing that any such equipment has been removed.
McLeodUSA expressly waivesany damages occasioned by such removal.Any equipment so removed
will be retumed to McLeodUSA upon payment in full of all reasonable storage costs.If within forty-
five (45)days following such equipment removal,McLeodUSA has not requested the retum of its
equipment and paid any sums owed,then Qwest may exercise all rights of ownershipover 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 remediesQwest
may have provided for hereinor by law.
(d)The foregoingnotwithstanding,the releases and waiverscontained in this Section 3 shall
not apply to any required retroactivecollocation fee adjustments,impositions and/or refunds mandated by
the Federal CommunicationsCommission or other governing body of competent jurisdiction.TheParties
shall recognize and abide by any such requiredadjustments,impositions and/or refund obligations.
4.Confidentialitv..
(a)The Panies expressly agree that they will keep the subsunce of the negotiations and or
conditions of tbc 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 admimstrativeagency 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 and except as necessary to disclose to such Party's attorneys and/or
accountants who are under an obligation to protect the same.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
Federal Rules of Evidence at the federal level and its equivalent at the state leveL The Parties further
agree that in the event of a breach of the confidentiality provisions of this Agreemem.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 e¯nible the other Pany,atitsoption,to
take such action as may be legally pennissible so as to protect the confidentiality provided for in this
Agreement.At least ten days advancenotice under this paragraph shall be provided to the other Party,
wheneverpossible.
5.Binding Arbitration.The Parties hereby agree that 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 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 determinebreach of
this Agreement.but shall not have the authority to award punitive damages.The arbitrator's decision
shall be Snal and binding and may be entered in any court havingjudsdiction thereof.Each Party shall
bear its own costs and anomeys'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 obligationsof each of the Patties have been raised
and that the resolution mached in this Agreement represents a binding compromise of the Parties'
positions.Therefore,the Parties agree that resolution of the issues contained in this Agreememshall be
deemed full and cornplete and,except as providedin Section 5 above,cannot be used to the detriment of
eitherParty.
7.Governing Law.This Agreement shall be interpretedand constmed in accordance with the laws
of the State of Colorado,and sha11 aot be interpretedin 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 authorizedrepresentatives 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 raistake in law or in fact.
9.Binding Agreement.The terms and conditions contained in this Agreement shall ínure to the
benefit of,and be binding upon,the Panies,their respectivesuccessors,affiliatesand assigns,
10.Severabilitv.If any provision of this Agreementshould be declared to be unenforceableby any
admimstrative agency,pourt 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 of this Agreement.
11.·Waiver.The waiver of any right on one or more occasions by eitherParty 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 originalby mail)and in any number of counterparts,each ofwhich would be
deemed to be original and all ofwhich 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 Agreemem which import the singular connotation shall be interpretedas plural,and words
which import the plural.connotationshall be interpretedas singular,as the identity of the Parties or
objects referred to may require.Unless expressly defmedherein,words havingwell known technical or
trade meanings shall be so constmed.All listing of items shall not be taken to be exclusive,but shall
include other items.whether similar or dissitailar to those listed,as the context reasonablyrequires.
e
9
IN WITNESS THEREOF,the P es have caused this Facility Decommissioning Agreementto be
executedas of this L¾y of 2001.
MCLEODUSA .QWEST CORPORATION
of t Audrey enney
Title:-·Ø¥<¾Title:SeniorVice President
Steve Hansen
Title:Vice President
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CONFIDENTIALBILLING SETTLEMENT AGREEMENT
This Confidential Billing Settlement Agreement (the "Agreement"),dated and
effective as of December 31,2001,is entered into among Qwest Corporation ("QC"),successor
to US WEST Communications,Inc.,XO Arizona,Inc.,XO Colorado,LLC ("XO Colorado"),
XO Minnesota,LLC ("XO Minnesota"),XO Oregon,Inc.,XO Utah,Inc.and XO Washington,
Inc.("XO Washington")(collectively,the "XO Subs")and XO Communications,Inc.,formerly
known as NEXTLINK Communications,Inc.,("XO")(QC,the XO Subs and XO are
collectively referred to as the "Parties").
WITNESSETH:
WHEREAS,QC is,among other things,an incumbent local exchange carrier operating in
its 14-state region;
WHEREAS,the XO Subs are subsidiaries of XO,and are competitive local exchange
carriers that individually operate in several states within QC's operating region;
WHEREAS,QC,on the one hand,and the XO Subs,on the other hand,provide and bill
each other for various services and facilities pursuant to various Interconnection Agreements
listed on ScheduleI attached hereto (the "InterconnectionAgreements")and tariffs;
WHEREAS,billing-relateddisputes between the Parties have arisen under certain of such
Interconnection Agreements and tariffs;
WHEREAS,QC and XO (formerly known as NEXTLINK Communications,Inc.)are
parties to a Confidential Billing Settlement Agreement,dated May 12,2000,as amended on
April 17,2001 (the "2000 Settlement Agreement");and
WHEREAS,XO is contemplating a reorganization of its capital structure;
11118052.12
NOW,THEREFORE,in order to fully and finally resolve the specific disputes identified
herein which exÏsdetween the Parties in connection with the Disputes and to avoid delay and
costly litigation,and for good and valuable consideration,the Parties voluntarilyenter into this
Agreement and hereby agree to the terms thereof.
1.Disputes.The Parties acknowledge the existence of (but not necessarily the
validity of or any liability under)the following disputes (each,a "Dispute"and collectively,the
"Disputes")which have arisen under the 2000 Settlement Agreement and the Interconnection
Agreements:
a)Disputes have arisen between the Parties related to the appropriateness
and validity of historical billing of QC by the XO Subs for the use of
interconnection facilities,also known as direct trunk transport,in various
states through September 30,2001 (Usage Termination Date:September
.30,2001).
b)Disputes have arisen between the Parties related to billing of the XO
Subs by QC for the use of interconnection facilities,including,without
limitation,with respect to the application of the relative use factor
("RUF")for trunks utilized through September 30,2001 (Usage
Termination Date:September 30,2001).
c)Disputes have arisen concerning the interpretation of Section 2 of the
20005tde entigroment.
d)Disputes have arisen concerning the billing of QC by the XO Subs
under the Interconnection Agreements for local transit traffic through the
2
11118052.12
XO Subs'facilities through September30,2001 (Usage Termination Date:
September 30,2001).
e)Disputes have arisen between the Parties regarding the XO Subs
billing QC for local calls billed as intrastate switched access charges for
usage through October 31,2001 (Usage Termination Date:October 31,
2001).
f)Disputes have arisen concerning the billing of QC by XO Washington
under the Interconnection Agreement for the State of Washington in
respect of the appropriate commission-ordered rate for local and tandem
switching usage in that state through December 31,2001 (Usage
Termination Date:December 31,2001).
g)Disputes have arisen concerning the billingof QC by XO Colorado for
reciprocal compensation under the Interconnection Agreement for
Colorado for calls terminated in that state by XO Colorado during 2001
(Usage Termination Date:September 1,2001).
2.Settlement of Disputes.As full and final settlement of any and all claims,
actions,causes of action,suits,debts,demands,damages,judgments,executions,costs,
expenses,liabilities,duties,amounts,accounts,reckonings,indemnities,covenants,contracts,
controversies,agreements,promises,doings,offsets,debts,liens,omissions,losses,exposures
a d obÑations of any kind whatsoÂer hetier known r unkniwn,whether i law or in
equity,including any related interest expenses which may have accrued in connection therewith
("Claims"),which the Parties have,had,may have or claim to have had relating to or arising out
of (i)the currently existing Disputes described in subparagraph 1(c)and (ii)the Disputes
3
11118052.12
described in each of subparagraphs 1(a),(b)and (d)-(g)from the beginning of time through the
relevant Usagë Teriflinatiön Dates indi ätëd in eääli süëh sübilänigraph,the ¯Parties shall
undertake the followingactions:
a)Cash Payment.QC hereby agrees to pay to XO within five (5)
business days of the full execution of this Agreement an amount equal to
ia wire
transfer of immediately available funds to the account specified by XO.
b)Billing Credits.Each of the XO Subs hereby issues credits to QC such
that QC shall have no further obligation whatsoever to XO or any XO Sub
with respect to the Disputes described in subparagraphs 1(a)-(g)above
relating to such XO Sub through the Usage Termination Dates indicated in
subparagraphs 1(a)and 1(d)-(g).With respect to the Disputes describedin
subparagraph 1(b),no credits will be issued.
c)Amendments to Interconnection Agreements.Amendments to the
Interconnection Agreements in the states of Arizona,Colorado,
Minnesota,Oregon,Utah and Washington (collectively,the "States")will
be filed within fifteen (15)business days of the full execution of this
Agreement and such amendments shall provide for the following:
(i)Paging traffic will be treated for all purposes as Internet
service provider ("ISP")traffic for all States;
(ii)ISP traffic shall be determined pursuant to the terms of
FCC Order 01-131,docket no.96-98,released April 27,2001 and
4
11118052.12
effective June 14,2001 (the "FCC Order")for all States,effective
as of June 14,2001;
(iii)In all States other than Colorado,Minnesota and
Washington,beginning on January 1,2002,non-ISP traffic will be
billed by the relevant XO Subs at the end office rate.In all States
other than Colorado,Minnesota and Washington,áÊning on
January 1,2003,and except as otherwise set forth below,tandem
rates will apply for non-ISP traffic through the relevant XO Subs'
switches only if separately ordered in an appropriate commission
proceeding by the applicable state commission,and only on a
prospective basis,with the effective date thereof being the date of
the written commission order with respect thereto or as otherwise
ordered by the applicable state commission,provided,however,
that in no event will such rates be effective prior to January 1,
2003.Nothing herein shall preclude XO or the relevant XO Subs
from seeking or obtaining state commission orders in advance of
January 1,2003,provided,however,that no rates required by such
orders shall be effective prior to January 1,2003.Nothing herein
shall preclude the Parties from mutuallyagreeing that the relevant
XO Subs'switches meet the requirements for tandem
compensation without specific orders from the state commissions.
The Parties expressly agree that state commission approvals of the
amendments to the Interconnection Agreements contemplated by
5
11118052.12
this Section 2(c)does not constitute such orders.In addition,XO
agrees that the maximum minutes oÏ use ("ÏVfÕÜ")for ISP traffic
in 2002 and 2003,under the annual growth formula set forth in
paragraph 78 of the FCC Order (the "Annual Growth Formula"),
shall not exceed the following amounts:
Arizona:
Oregon:
traffic)
Utah:
(iv)Effective as of September 1,2001,in Colorado,QC and
XO Colorado will adopt "bill and keep"for non-ISP traffic.
Effective on January 1,2003,XO Colorado will bill non-ISP
traffic at the end office rate,and,except as othenvise set forth
herein,tandem rates will apply for non-ISP traffic through XO
Colorado's switches only if separately ordered in an appropriate
commission proceeding by the state commission,and only on a
prospective basis,with the effective date thereof being the date of
the written commission order with respect thereto or as otherwise
ordered by the commission,provided,however,that in no event
will such rates be effective prior to January 1,2003.Nothing
-arein-shall -preelude XO-or --XO Coloradedrom -seeking or
obtaining state commission orders in advance of January 1,2003,
provided,however,that no rates required by such orders shall be
effective prior to January 1,2003.Nothing herein shall preclude
6
11118052.12
the Parties from mutually agreeing that XO Colorado's switches
meet the requirements for tandem compensation without a specific
order from the state commission.The Parties expressly agree that
state commission approval of the amendments to the
Interconnection Agreement contemplated by this Section 2(c)does
not constitute such an order.In addition,XO agrees that the
maximum MOU for ISP traffic in 2001,2002 and 2003 under the
Annual Growth Formula shall not exceed zero (no billing allowed
for ISP traffic).
(v)In Minnesota,XO Minnesota will continue billing non-ISP
traffic at the end-office rate.QC and XO Minnesotacontinue to
agree that no billing will be allowed by XO Minnesota in
Minnesota for ISP traffic since,as of the date of the FCC Order,
Qwest was not delivering ISP traffic to XO.Effective as of
January 1,2003 and except as otherwise set forth herein,tandem
rates will apply for non-ISP traffic through XO Minnesota's
switches only if separately ordered in an appropriate commission
proceeding by the state commission,and only on a prospective
basis,with the effective date being the date of the written
commission order with respect thereto or as otherwise ordered by
he commission,provided,however,that in no exent will such
rates be effective prior to January 1,2003.Nothing herein shall
preclude XO or XO Minnesota from seeking or obtaining state
7
11118052.12
commission orders in advance of January 1,2003,provided,
however,that no rates required by such orders shall be effective
prior to January 1,2003.Nothing herein shall preclude the Parties
from mutually agreeing that XO Minnesota's switches meet the
requirements for tandem compensation without a specific order
from the state commission.The Parties expressly agree that state
commission approval of the amendments to the Interconnection
Agreement contemplated by this Section 2(c)does not constitute
such an order.
(vi)In Washington,beginning on January 1,2002,non-ISP
traffic will be billed at the tandem rate of $.00297 per minute of
use by XO Washington.XO and XO Washington agree that the
maximum MOU for ISP traffic in 2002 and 2003 under the Annual
Growth Formula in Washington pursuant to the FCC Order shall
not exceed Also,XO and its affiliates and
subsidiaries will no longer participate in the Washington Utilities
and Transportation Commission Docket UT 01 3073,including
petitions for reconsideration and related appeals,and there will be
no billing adjustments (historically or prospectively)through
December 31,2003 as a result of the outcome of such proceeding.
(vii)In the event that XO or any entity directly or indirectly
controlled by XO (each a "New State XO CLEC"and collectively,
"New State XO CLECs")begins offering local exchange carrier
8
11118052.12
services in any state that is not covered under a current
intëitonnectiön¯Xgreeniëntinihich QC is flië incumbent local
exchange carrier (each a "New State"and collectively,"New
States"),XO agrees on behalf of each such New State XO CLEC,
that non-ISP traffic will be billed at the end office rate,and that,in
accordance with the FCC Order,no billing will be allowed in such
New States for ISP traffic.Effective as of January 1,2003 in New
States and except as otherwise set forth herein,tandem rates will
apply for non-ISP traffic through a New State XO CLEC's
switches only if ordered by the applicable state commission,and
only on a prospective basis,with the effective date being the date
of the written commission order with respect thereto or as
otherwise ordered by the commission,provided,however,that in
no event shall such rates be effective prior to January 1,2003.
Nothing herein shall preclude XO or a New State XO CLEC from
seeking or obtaining state commission orders in advance of
January 1,2003,provided,however,that no rates required by such
orders shall be effective prior to January 1,2003.Nothing herein
shall preclude the Parties from mutuallyagreeing that a New State
XO CLEC's switches meet the requirements for tandem
compensatÏon NAt a specÑÍc oider from tie Aa or missio
(viii)As part of this Agreement,XO on behalf of itself and New
State XO CLECs,and the XO Subs,expressly agree not to exercise
9
11118052.12
any rights any of them may have under Sections 251(a)-(c),or
2Šž(aÑf)and (Ï)iÏÄe TicommunicationsAct of 1996 in order
to avoid or which may have the effect of avoiding any of the
obligations set forth in this paragraph 2(c)until December 31,
2003.
d)The Parties acknowledge that there have been billing errors by XO
Subs with respect to bills to QC for intrastate switched access charges.
The Parties shall meet within ten (10)business days following the full
execution of this Agreement to discuss and put in place protocols to insure
the accuracy of the XO Subs'records in comparison to QC's records.If
subsequent disputes regarding the accuracy of such billing occurs
hereafter,the Parties shall promptly meet to resolve such disputes,
.provided,however,that if such disputes are not resolved,the Parties shall
not resort to litigation or arbitration;instead,commencing with the usage
period beginning October 1,2001 and going forward until December 31,
2003,the XO Subs and XO on behalf of any New State XO CLECs,agree
to bill QC for intrastate switched access charges based on QC's records
with respect thereto,absent manifest error therein.In addition,the XO
Subs agree to adjust the billing for usage beginning on October 1,2001
and going forward until December 31,2003 for any misapplication of
rates based on QC's records,absent manifest error therein.
e)XO,on behalf of itself and any New State XO CLECs,and the XO
Subs agree to adopt,within sixty (60)days of the full execution of this
10
11118052.12
e
Agreement,any existing or future term pricing plan available under QC's
FCC lafins for at least eighty percent (80%)of XO's DS3 and higher
speed private line circuits.The Parties agree that any pricing changes will
be prospective from the date of such conversion.Consistent with QC's
tariff obligations,QC will agree to convert XO's private line circuits to the
above described plans without termination liability.
f)As part of this Agreement,the Parties shall execute simultaneously
with the execution of this Agreement,and cooperate as to the filing within
fifteen (15)business days with the appropriate state and federal regulatory
agencies of,a stipulation in the form attached hereto as Exhibit A.
g)XO and the XO Subs Release.Each of XO and the XO Subs hereby
fully waives,releases,acquits,discharges and holds harmless QC 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 Claims which it has,had,may have or
claims to have had against QC relating to or arising out of (i)the currently
existing Disputes described in subparagraph 1(c)and (ii)the Disputes
described in each of subparagraphs 1(a),(b)and (d)-(g)from the
beginning of time through the relevant Usage Termination Dates indicated
in each such subparagraph.
11
11118052.12
h)QC Release.QC hereby fully waives,releases,acquits,discharges and
hoÏÃ harmlessidhoÌ ÌŒandie XO Subs and each onheir 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 Claims which QC has,had,may have or claims to have had
against it relating to or arising out of (i)the currently existing Disputes
described in subparagraph 1(c)and (ii)the Disputes described in each of
subparagraphs1(a),(b)and (d)-(g)from the beginningof time through the
relevant Usage Termination Dates indicated in each such subparagraph.
3.Escalation Procedures.
a)QC and XO shall follow the procedures set forth on Exhibit B hereto
to implement a binding written escalation process,which will be in effect
until December 31,2003 and which shall provide for timely resolution of
business issues between the Parties prior to presenting the terms of this
Agreement to any regulatory or governmental bodies or agencies.
b)Notwithstanding the foregoing,the Parties agree that the escalation
process and procedures set forth herein will be used to settle business to
business issues between the Parties,including,without limitation,issues
arising under any proposed changes to the rates,terms and conditions of
the Parties'Interconnection Agreements,unless the issue is of an exigent
nature and the Party seeking to raise an issue or dispute has (i)reasonably
12
11118052.12
determined that compliance with the escalation process and procedures
wouÏÌeffectivelydeny it the right and opportunity to raise or pursue the
matter in a regulatory or judicial forum and (ii)has provided the other
Party with at least two (2)business days'advance written notice at the
level 2 escalation level set forth on Exhibit B hereto of the filing of any
claim,proceeding,action or complaint.
4.Successors and Assians.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,including contractors,
subcontractors and retained professionals.
5.Assignment of Claims.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.
6.Representations,Warranties and Covenants.Each Party represents,
warrants and covenants that (a)it has and will have full and sufficient rights to perform its
obligations under this Agreement,free and clear of any liens,claims and encumbrances,(b)it
has obtained or will obtain any and all consents,approvals and/or other authorizations necessary
for the performance of its obligations hereunder,(c)it has all requisite corporate power and
.authority to enter into,.and_fully-performpursuant_to,this_Agreement,(d)it will_comply with all
Jaws and applicable regulations of governing authorities relating to its performance under this
Agreement and (e)except for regulatory approvals contemplated hereby,no authorizations or
other consents,approvals or notices of or to any third party are required in connection with (i)
13
11118052.12
the performance of its obligations under this Agreement,.(ii)the validity and enforceability of
this Agreemen or (ílìTitsexeëution,deliverý anil pErfofiiianne of this Agreement.
7.Confidentiality.The Parties expressly agree that they will keep the
existence,substance and terms of this Agreement (including the negotiation thereof)strictly
confidential.The Parties further agree that they will not communicate (orallyor in writing)or in
any way disclose the existence,substance or tenns of this Agreement (including the negotiation
thereof)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 as described in to paragraph 8 below.It is expressly
agreed that this confidentialityprovision is an essential element of this Agreement.The Parties
agree that this Agreement and the negotiation thereof,and all matters related thereto,shall be
subject to the Rule 408 of the Federal Rules of Evidence,and similar rules at the 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 injunctionhave been met.
8.Notice of Disclosure.(a)Ir the event either Party has a legal obligation which
requires disclosure of the terms and conditions of this Agreement (including,without limitation,
with the Securities and Exchange Commission or other regulatory agencies),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
peÑs ble so aL praec te onfÃntial provÏded for in th s Agreement.t least ten (10)
business days advancenotice under this paragraph shall be provided to the other Party,whenever
possible.
14
11118052.12
(b)Notwithstanding anything to the contrary contained herein,in the event
that XO ömmences a voluntary case under chapter TI of the Bankruptcy Code (11 I
U.S.C.§§101 et seq.)or consents to entry of an order for relief in an involuntarycase,to
enable it to effectuate its recapitalization,and XO files a motion (the "Assumption
Motion")or a plan of reorganization (the "Plan")seeking to assume this Agreement (to
the extent still executory)under Section 365 of the Bankruptcy Code,unless ordered by
the court having jurisdiction over such bankruptcy case (the "Court")or otherwise
required by applicable,non-bankruptcy law,it shall not attach to the Assumption Motion
or the Plan,this Agreement or describe in the Assumption Motion or the Plan the details
of this Agreement,unless,prior to attaching this Agreement to a motion or plan of
IreorganizationorotherwisedisclosingthecontentsofthisAgreement,XO shall use its
best efforts to obtain entry of an order of the Court in form and substance reasonably
acceptable to QC (i)authorizing the filing of this with the Clerk of the Court under seal,
(ii)limiting the provision and dissemination of copies of this Agreement,marked "Highly
Confidential Proprietary Information,"to counsel for any official committees appointed
in XO's chapter 11 case;to committee members on any such committee and to counsel
for any banks or institutions that are parties to debtor-in-possession financing agreements,
and to the United States Trustee and such other persons as the Court may direct,and (iii)
prohibiting all such parties from disclosing the substance of such Agreementto any other
person or entity or in open court without the consent of the Parties or order of the Court
obtained after a hearing held on reasonable notice to the Parties;provided,however,that
a copy of this Agreement may be disclosed to (i)the Court on a confidential basis in
connection with obtaining any such order,and (ii)such persons,including,without
15
11118052.12
8
limitation,any such official committees and their members and professionals as shall
have executed and delivered to XO (with a copy simultaneously delivered to QC)a
confidentialityagreement in form and substance reasonably acceptable to QC.
(c)Notwithstanding anything to the contrary contained herein,in the event
that either Party initiates or participates in an arbitration,litigation or other legal
proceeding relating to this Agreement other than as described in subsection (b)above,
unless ordered by the presiding court or otherwise required by applicable,non-
bankruptcy law,it shall not attach this Agreement to any filings,documents or
disclosures provided in connection with such arbitration,litigation or legal proceeding,or
describe the details of this Agreement in such filings,documents or disclosures unless,
prior to attaching this Agreement thereto otherwise disclosing the contents of the
Agreement,the Party seeking to disclose the contents of this Agreement shall use its best
efforts to obtajn entry of an order of the court presiding over such litigation or proceeding
or a ruling of the arbitrator in form and substance reasonably acceptable to the other Party
(i)authorizing the filing of this Agreement with the Clerk of the presiding court under
seal or with the arbitrator,provided that the arbitrator has agæed to maintain the
confidentiality thereof,(ii)limiting the provision and dissemination of copies of this
Agreement,marked "Highly Confidential Proprietary Information,"to opposing counsel
in such arbitration,litigation or other proceeding and such other persons as the arbitrator
or court may diæct,and (iii)prohibiting all such parties from disclosing the substance of
the Agreement to any other person or entity or in open court or in any other venue or
medium without the consent of the Parties or order of the court or ruling of the arbitrator
obtained after a hearing held on reasonable notice to the Parties;provided,however,that
16
11118052.12
a copy or detailed description of this Agreement may be disclosed to (i)the court or
arbitrator on a confidential basis in connection with obtaining any such order or ruling,
and (ii)such persons as shall have executed and delivered to the Party seeking disclosure
(with a copy simultaneously delivered to the other Party)a confidentiality agreement in
form and substance reasonably acceptableto the non-disclosing Party.
9.Entire Agreement;Amendments.This Agreement constitutes the entire
agreement between the Parties,and shall be deemed to supercede any other understandings or
agreements,whether written or oral,express or implied,relating to the Claims or the Disputes.
This Agreement can only be amendedor changed in a writing or writings executed by all of the
Parties,provided,that this Agreement may not be amendedor modified in any way by electronic
message or e-mail communications.Each of the Parties forever waives all right to assert that this
Agreement was a result of a mistake in law or in fact.
10.Governing Law.This Agreement shall be interpreted and construed in
accordancewith the laws of the State of New York,except for its choice of law provisions and as
set forth in paragraph 12 below.This Agreement shall be deemed to have been jointlydrafted by
the Parties,and shall not be interpreted in favor or against any Party as a result of which Party
may or may not have had primary responsibilityfor the actual preparation of this Agreement.
11.Advice of Counsel.The Parties have entered into this Agreement after
conferring with legal counsel.
12.Arbitration.Any_claimscontroversy or dispute between the Patties related to
or in connection with this Agreement,including the enforceability,fonnation or existence of this
Agreement,shall be resolved by private and confidential arbitration before a single arbitrator
conducted in New York,New York under the then-current Commercial Arbitration rules of the
17
11118052.12
American Arbitration Association.The arbitrator shall be an attorney engaged in the practice of
law and knowledgeable in the area of telecommunications service contracts.The Federal
Arbitration Act,9 U.S.C.§§et seq.,not state law,shall govern the arbitrability of all disputes.
The arbitrator shall not have the authority to award punitive and/or exemplary damages.The
arbitrator's decision shall be final and binding and may be entered in any court having
jurisdiction thereof.Each Pany shall bear its own costs and attorneys'fees and shall share
equally in the fees and expenses of the arbitrator.
13.Notices.Any notice to a Party required or permitted under this Agreement
shall be in writing and shall be served personally,delivered by Cenified mail,or by a courier
service.Upon prior agreement of the Parties'designated recipients identified below,notice may
also be provided by facsimile.Any notice shall be delivered using one of the alternatives
mentioned in this paragraph and shall be directed to the applicable address indicated below or
such address as the Party to be notified has designated by giving notice in compliance with this
paragraph:
If to QC:Qwest Corporation
Attention:Legal Department
1801 California Street,Suite 5100
Denver,Colorado 80202
Phone:[phone]
Fax:[phone]
With a copy to:Rosenman &Colin LLP
575 Madison Avenue
New York,New York 10022
---attention:-Joel W-Sternman;-Esq;
Fax:[phone]
If to XO:R.Gerard Salemme
Senior Vice President External Affairs
XO Communications,Inc.
1730 Rhode Island Avenue NW
18
11118052.12
Suite 1000
Washington,DC 20036
Fax:[phone]
If to the XO Subs:Alaine Miller
Vice President Regulatory and Public Policy
1633 Westlake Avenue N.,Suite 200
Seattle,Washington 98109
Fax:[phone]
With a copy to:XO Communications,Inc.
11111 Sunset Hill Road
Reston,Virginia 20190
Attention:Assistant General Counsel,Commercial
Fax:[phone]
14.No Waiver.The Parties agree that their entering into this Agreement and the
other agreements contemplated herein 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 Disputes.
15.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 represents a compromise of the Parties'positions.Therefore,the Parties deny any
wrongdoing or liability and expressly agree that resolution of the issues contained in this
Agreement cannot be used against the other Party in any manner or in any forum (except for
Claims related to breachesof this Agreement).This Agreement does not constitute an admission
by either Party of the truth or merit of any fact,any asserted principle of law,any matter,claim,
or-cause of action alleged-or asserted in-any legal regulatory or other forum,past,present or
future,relating to the matters addressed in this Agreement.This Agreement also does not
constitute an admission with respect to the appropriateness or legality of any charges,billed or
19
l I l I 8052.12
unbilled,whether paid or unpaid,nor does it constitute an ongoing term or condition to
interconnection unfler any Ïnterconnectfon Agreement of6ffienvise.
16.Prior Agreements.The 2000 Settlement Agreement is hereby terminated in alÏ
respects and shall be of no further force or effect.
17.Counterparts.This Agreement may be executed by facsimile and in multiple
counterparts,each of which shall be deemed an original,but all of which together shall constitute
one and the same document.
I
20
11118052.12
IN WITNESS THEREOF,the Parties have caused thÏs Confidential Billing
Settlement Agreement to be executed as of the date first written above.
XO Communica ons,c.Qwest Corporation
By:/---By:LLtfA.C
R.Gerard Salemme,Title:SO
Senior Vice President,Extemal Affairs
R.Gerard Salemme,R.Gerard Salemme,
Senior Vice President Extemal Affairs Senior Vice President External Affairs
R.Gerard Salemme,R.Gerard Salemme,
Senior Vice President Extemal Affairs Senior Vice President External Affairs
XO Utah,Inc.XO Wa on,Inc.
R.Gerard Salemme,R.Gerard Salemme,
Senior Vice President Extemal Affairs Senior Vice President External Affairs
21
11118052.12
SCHEDULE I
INTERCONNECTIONÃGREEMENTS
(1)Interconnection Agreement between NEXTLINK Washington,LLC and US WEST
Communications,Inc.,dated3/19/97.
(2)Wireline Interconnection Agreement in the State of Colorado between NEXTLINK
Colorado,LLC and US WEST Communications,Inc.,dated 10/26/97.
(3)Interconnection Agreement between US WEST Communications,Inc.and NEXTLINK
Utah,Inc.for Service in the State of Utah,dated 1/23/98.
(4)Interconnection Agreement between US WEST Communications,Inc.and NEXTLINK
Arizona,Jnc.for Service in the State of Arizona,dated 9/17/98.
(5)Agreement for Local Wireline Network Interconnection and Service Resale between
NEXTLINK Oregon,LLC and US WEST Communications,Inc.,dated 6/14/99.
(6)Agreement for Local Wireline Network Interconnection and Service Resale between
NEXTLINK Minnesota,LLC and US WEST Communications,Inc.for Service in the State
of Minnesota,dated 5/16/00.
22
11118052.12
EXHIBIT A
STIPULATION
BEFORE THE CORPORATIONCOMMISSION
[NAME]
Chairman[NAME]
Commissioner[NAME]Commissioner
IN THE MATTER OF QWEST )Docket No.CORPORATION'S COMPLIANCE WITH )
§271 OF THE TELECOMMUNICATIONS )
ACT OF 1996 )
Stipulation Re 271 compliance
1.Subsidiaries of XO Communications,Inc.("XO"),have raised issues with Qwest
Corporation ("Qwest")regarding Qwest's compliance with the checklist in Section 271 of the
Telecommunications Act of 1996 ("271 Checklist").
2.Consistent with individual state commission initial or final orders resolving 271
Checklist-related issues as of December 31,2001,Qwest and XO have resolved XO's
outstanding 271 Checklist issues to the satisfaction of both parties.
3.Accordingly,as of this date,XO agrees that Qwest complies with the 271
Checklist in the following states:Arizona,Colorado,Oregon,Minnesota,Utah and Washington.
XO Commu °cations,Inc.Qwest Corporation ,
By:
R.GerariSal mme
Title:Senior Vice President,External Affairs Title:
23
11118052.12
EXHIBIT B
ESCALATIONPROCESS
Pursuant to paragraph 3 of the Agreement,the Parties wish to develop a business-to-
business relationship and agree to establish the following binding escalation process to resolve
any and all business issues that may arise between them.The escalation process is the following:
Level Participants Time frame for discussions
LEVEL 1 Directors (or designated æp)10 business days
LEVEL 2 Vice Presidents/Senior Vice Presidents 10 business days(or designatedrep)
LEVEL 3 Business Unit Presidents (or designated rep)10 business days
LEVEL 4 If a dispute is not resolved in Ovels 1
through 3,either Patty may resort to the
regulatory or legal process.
:The Parties agree,subject to paragraph 3 of the Agreement or any subsequent writtenagreementbetweentheParties,to:(1)utilize the established escalation process and time frames
to resolve such disputes;(2)commit the time,resources and good faith necessary to meaningfuldisputeresolution;(3)not proceed to a higherlevel of dispute resolution until either a æsponseisreceivedorexpirationofthetimeframeforthepriorlevelofdisputeresolution;(4)grant to oneanother,at the request of the other Party,one reasonable extension of time in the disputeresolutionprocessnottoexceed10businessdays;and (5)complete Levels 1,2,and 3 of disputeresolutionbeforeseekingresolutionthroughregulatoryprocesses,arbitration or the courts.
24
11118052.12
CONFIDENTIALBILLING SETTLEMENT AGREEMENT
This Confidential Billing Settlement Agreement ("Agreement"),dated and effective June
29,2001,is between Qwest C rporation ("Qwest")and MCI WORLDCOM Network
Services,Inc.,on behalf of itself and its affiliates and subsidiaries (collectively
"WorldCom")(Owest and WorldCom collectively referred to as the "Parties").who
hereby enter into this Confidential Billing Settlement Agreement with regard to the
following:
RECITALS
1.Qwest is an incumbent Iqcal exchange carrier ("lLEC")operating in its 14-state
region.
2.WorldCom is a competitive local exchange carrier ("CLEC")operating in Qwest's
14-state region and an interexch nge carrier.
3.Owest and WorldCom provide and bill each other for various services and
facilities provided to one another pursuant to various agreements,including
interco1nnectsnaamernedeemdentActerrtearedtospuresusaenr
i
es,hefedesraaWTealedemd
ra
tcaations
4.Certain disputes have arisen between the Parties in connection with certain
charges assessed by the Parties and certain services provisioned under the
aforementionedagreements and tariffs and because of disagreements over the effect,
meaning and impact of various state and federal regulatory decisions.
5.In an attempt to finally resolve the specific billing and provisioning disputes
Qwest /WorldCom-proprietary and contdential QC Settlemem Agreement NON COBRA FINAL
FINAL C_]
l
identified herein that exist between the Parties through the date of the execution of this
Agreement,and to avoid delay a d costly litigation,and for valuable consideration,the
Parties voluntarily enter into this greement and hereby agree to the following.
SETiTLEMENT AGREEMENT
1.In settlement of the disp Jtes,clairns and controversies referenced above and
adescobedm es tesw¡riemepayment to WorldCaominth
July 16,2001.As consideration for this payment and for the other commitments and
waivers by Qwest and WorldCom set forth herein,the Parties agree to the following
provisions.
2.EEL.WorldCom has claimed that approximately 2,500 private line circuits
provided by Owest to WorldCom in various states should have been converted td the
Unbundled Network Element Platform known as EEL from tariffed services during the
time period between September .1997 and the date of this Agreement,and therefore
disputes the billing associated with these circuits.Qwest denies WorldCom's
assertions and the Parties dispute their legal obligations conceming WorldCom's
request to convert the tariffed services to EEL.As part of this Agreement and to
resolve any disputes related to t is issue,WorldCom has agreed to waive any and all
claims it may have with respet to charges assessed by Qwest for these circuits
-through theeffective-date-of--ttiis-Ageement following-the effectivedtB¯of triis
Agreement,WorldCom agrees that in the event it desires to convert circuits to
Unbundled Network Elements (including EELs),WorldCom will submit orders and
Qwest /WorldCom-proprietary and confidential QC Settlement Agreement NON COBRA FINAL
FINAL C_l
cedifications in a manner consistent with the Parties'interconnection agreements,as
amended by the UNE combinations amendments.Until such time as the applicable
amendment is approved by the appropriate state commission,WorldCom will submit
conversion orders in a manner consistent with applicable FCC rules and Qwest
processes.
3.Reciprocal compensati nl Colorado.The Parties are currently engaged in
litigation in the state of Colorado at the Public Utilities Commission (Docket No.00F-
049T)concerning the application of Reciprocal Compensation,under applicable law
including the Parties'interconnection agreement,to internet-related traffic exchanged
between the Parties.The Colorado Public Utilities Commission recently issued a
decision in the above-referenced docket.As part of this Agreement,and in order to
resolve these disputes,the Parties agree either that they will take no further action in
the above-referenced docket or in the attemative,the Paities agree that WortdCom will
dismiss the above-referenced docket,with prejudice,by filing the appropriate pleading
or pleadings.In either event,the Parties agree to forego any appeals of that action that
may be available.
4.TerminatingCompensation.In addition,the Parties have certain other billing
disputes regarding terminating traffic and the application of Reciprocal Compensation,
under applicable law includi g the Parties'interconnection agreements,to local
exchange and Internet-bound traffic exchanged between the Parties.The Parties
agree to waive any and all claims they may have against each other with respect to any
and all billing disputes they may have concerning the application of Reciprocal
Compensation for local exchange and internet-bound traffic for usage through and
Qwest /WorldCom-proprietary and confidential QC Seulemem Agreemem NON COBRA FTNAL
FINAL Cl
including March 31,2001.
5.Reciprocal compensation I Amendments.In addition to the foregoing,the
Parties agree to execute all appropriate amendments to implement an intercarrier
compensation mechanism for reciprocal compensation for all local traffic and Internet-
bound traffic exchanged between the Parties,wherein one party originates the traffic
and the other terminates the traffic.An appropriate amendment will be executed in all
14 states in which Qwest operates as an lLEC and in which WoridCom has
interconnection arrangements with Qwest,both with respect to existing and future
interconnection agreements for the period beginning April 1,2001 and through March
31,2004.Such amendments will be in the form,or substantially in the form,attached
hereto as Exhibit A.The interLarriercompensation mechanism does not apply when
traffic from a third party is involved.The Parties agree that the intercarrier
compensation mechanism does not apply to charges related to transiting functions (i.e.
switching and transport),or for transport when it is not included in the termination
function,as provided for in the applicable interconnection agreement.As a part of this
Agreement,WorldCom express y agrees not to exercise any rights it may have under
Sections 251 and 252 of the Ac ,including pick-and-choose and arbitration,to avoid the
obligations of this paragraph un il March 31,2004.
id in
prCotepsroene2SOSO1,thePartesehavedisputafndhiAygrheae
e ,
onceerrannmWeS
'S
current PIC dispute resolution process whereby Owest investigates slamming claims
and bills the pany at fault for such claims.The Parties have worked to resolve these
disputes and,as a part of thi Agreement,the Parties agree to waive any and all
Qwest i WorldCom -proprietarv and conódential QC Settlement Agreement NON COBRA FTNAL
FTNAL C_l
pending claims and protests they may have through the effective date of this
Agreement r billing or othe disputes related to Owest's PIC dispute resolution
process.The Parties acknowledge that the disputes subject to this waiver are limited to
the PIC processing activity of th WorldCom wholesale unit.
7.DTT.In order to resolve past billing disputes related to LIS two-way direct trunk
transport ("DTT"),and to resolve this issue on a going forward basis,the Parties agree
as follows.As of the execution of this Agreement,the Parties waive any and all claims
they may have against one and another related to the billing of DTT for usage as of the
date of the execution of this Agreement in addition,on a going forward basis,the
arties will assume a Relative Use Factor ("RUF"of 50 per cent,for each Party,to
reduce the applicable rate elem nt charged to the purchaser by the provider of the DTT
facilities.The Panies agree to finalize the appropriate amendments to their
interconnection agreements,if necessary,within 30 days of the effective date of this
Agreement to implement this paragraph of this Agreement.The Parties wÑ use the 50
per cen RUF until they can neggtiate an appropriate RUF,or the parties shall negotiate
a RUF which will comply with future changes in law.
8.Billing Dispute Resolution Process.As part of this Agreement,the Parties
agree to negotiate promptly gn improved billing dispute resolution process which
includes a timely resolution of all billing disputes and which shall include a stated time-
frame within which billing disputes must be raised with the other Party.Further,the
Parties agree that this process shall include steps for involving progressively higher
management as necessary to a hieve efficient dispute resolution.
9.With respect to the specific billing and provisioning disputes referenced
Qwest i WorldCom -proprietary and cont)dential QC Settlement Agreement NON COBRA FINAL
FTNAL C 1
5
above,and for valuable considerâtion,the receipt and sufficiency of which are hereby
acknowledged,the Parties here y release and forever discharge one another,including
their associates,owners,stoc olders,predecessors,successors,agents,directors,
officers,partners,employees,epresentatives,employees of affiliates,employees of
parents,employees of subsidia es,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,p omises,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 c uld be asserted in any way relating to or arising out of
any billing or provisioning disputes described herein up to and including,the date of the
execution of this Agreement.
10.The terms and conditions contained in this Agreement shall inure to the benefit
of,and be binding upon,the re ective successors,affiliates and assigns of the Parties.
In addition,the terms and condi ions of this Agreement,including all facts leading up to
the signing of this Agreement shall bind the Padies,including contractors,
subcontractors and retained professionals.
11.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.
12.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 Agreement strictly
Qwest /WorldCom-proprietary and con dential QC Settlemem Agreement NON COBRA FINAL
FINAL C_1
6
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
oamspoenwhatsoevser.b
la I se
rreslpyœagSretehnatconsentnfhniao.theprroPanuess
essential element of this Agree ent.The Parties agree that this Agreement and
negotiations,and all matters relat d to these two matters,shall be subject to the Rule
408 of the Federal Rules of Evidence,and similar rules at the 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.
13.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 business days advance notice under this paragraph shall be provided to the
other Party,whenever possible.
14.This Agreement constitute the entire agreement between the Parties and can
only be changed in a writing or ritings executed by both of the Parties.Each of the
Parties forever waives all right to assert that this Agreernent was a result of a mistake in
Qwest /WorldCom -proprietary and confidhnlial QC Settlement Agreement NON COBRA FINAL
FINAL Cl
7
|
law or in fact.
15.This Agreement shall be interpreted and construed in accordance with the laws
of the State of Colorado except as set forth in paragraph 20 below,and shall not be
interpreted in favor or against any Party to this Agreement except as expressly provided
herein.
16.The Parties have entered into this Agreement after conferring with legal counsel.
17.If any provision of this Ag eement should be declared to be unenforceable by
any administrative agency,court f law,or arbitrator,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 of this Agreement.
18.Any claim,controversy or dispute between the Parties related to or in connection
with this Agreement,including the enforceability,formation or existence of this
Agreement,shall be resolved by private and confidential arbitration conducted under
the then current rules of the Amefican Arbitration Association.The Federal Arbitration
Act,9 U.S.C.§§et seq.,not staté law,shall govem the arbitrability of all disputes.The
arbitrator shall not have the at thority 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
1nthefeeseandexpenses of thdea'rbitrataor.ree
that they have legitimate disputes about
provisioning,billing and other isques and that the resolution reached in this Agreement
represents a compromise of th Parties'positions.Therefore,the Parties deny any
wrongdoing or liability and expnessly agree that resolution of the issues contained in
Qwest /WorldCom -proprietary and confic ential QC Settlement Agreement NON COBRA FINAL
FINAL C_l
8
20.This Agreement may be executed in counterparts and by facsimile.
IN WITNESS THEREOF,the .Parties have caused .this Confidential-Settlement
Agreement to be executed as of thisi day of June 200L
M r erv ces,Inc.Qwest Corporation
Title:Title:or T ge
Date:/I Date:4 2.9 ej
i
i
Qwest /WorldCom -proprietary and confiantial QC Settlement Agreement NON COBRA FINAL
FINAL C
9
BUSINESS ESCALATION AGREEMENT
This Business Escalation Agreement ("Agreement")is entered into this 29"day
of June,200 bÿ arid between Qwest Servicës Corporation ("Qwest")and MCI
WORLDCOM Network Sentices,Inc.("WorldCom"),on behalf of themselves and
their affiliates and subsidiaries,for consideration of the mutual promises herein
and other good and valuable cðnsideration.As a result of ongoing discussions
and recent positive developments between WorldCom and Qwest in recent
months,the parties have addressed numerous proposals intended to better the
parties'business relationship.n principle,the parties have agreed to:(1)
arrange quarterly meetings between executives of each company to address
unresolved and/or anticipated usiness issues;and (2)establish and follow
escalation procedures designed to facilitate and expedite business-to-business
dispute solutions.
1.QUARTERLY MEETINGS
Beginning in 2001,the parties egree to attend and participate in quarterly
executive meetings,the purpos'e of which will be to address and discuss
issues,open items or disputes,and future business needs.The participants
in the meeting will include executives from both companies at the
vice-president and/or above le el.
2.BUSINESS ESCALATION PROCEDURES
The parties wish to establish an improved business-to-business relationship and
agree that they will attempt to resolve business issues that may arise between
them,in accordance with the escalation procedures set forth herein.The parties
agree,subject to any subsequ nt written agreement between the parties,to:(1)
utilize the following escalation rocess and time frames to resolve such disputes;
(2)commit the time,resources nd good faith necessary to meaningful dispute
resolution;(3)grant to one an ther,at the request of the other party,reasonable
extensions of time at Levels 1 nd 2 of the dispute resolution process to facilitate
a business resolution.
Level Participants Time frame for discussions
LEVEL 1 Directors 15 business days
LEVEL 2 Vice Presidents 10 business days
LEVEL 3 Senior and/or 5 business days
Executive Vice P esidents
Qwest/Wdrldcom Confidential and Proprietary
In the event mutually agreeable resolution is not achieved,either party may seek
legal,regulatory,or other relief.
Notwithstanding the above esct lation procedures,the parties expressly
reserve the right to pursue legal,regulatory,and/or other relief at any time
before any court,administrative agency,or other body as each party,in its sole
discretion,deems appropriate or necessary to protect its interests.In the event
either party avails itself of such right to relief,the other party may,to the extent
feasible,accelerate the escalation process so as to reach Level 3 prior to the
time at which a responsive filing would be required of that party.
In the event either party pursues legal,regulatory,or other relief,both parties
agree that they will continue to use this escalation process in an attempt
to continue to seek settlement gf that dispute and other disputes that may
exist at that time or subsequently arise between the parties.
If the parties agree with the terms set forth above,they will each execute
a copy of this Agreementin the signature spaces provided on the last page.
Upon signature of both parties,the parties will be bound as of the date set forth
above by the terms set forth herein,through March 31,2004.This Agreement
may be executed in counterparts and exchanged by facsimile.
Qwest Services Corporation MCI WORLDCOM Network
and its affiliates Services.Inc.and its aff tes
By:By:
sig ture signature
Printed Name Printed Name
Title Title
Qwest/Wdrldcom Confidential and Proprietary
2
CONFIDENTIAL &TROPRIETARY EXECUTIONAGREEMENT
FACILITY DECOMMISSIONINGSETTLEMENT AGREEMENT
THIS FACILITY DECOMMISSIONING TTLEMENT AGREEMENT ("Agreemerit"),is made and
entered into as of this Q~7 day of Ú C.P..,2001 (the "EffectiveDate"),between Qwest
Corporation ("Qwest")and MCI WorldComNetwork Services,Inc.,on behalfof itself and its U.S.
domestic affiliates (collectively,"CLEC")(Qwest and CLEC being sometimes hereinafter referredto
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 interconnection agreement (the "Interconnection Agreement"),executed
pursuantto sections 251 and 252 of the Federal Telecommunications Act of 1996 (the "Act");and
WHEREAS,pursuátto the InterconnectionAgreement,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 Partid 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
settlement of financial obligations of each Party with respect ,to each of the Facilities under the
Interconnection Agreement.
NOW,THEREFORE,in consideration of the foregoing and other good and valuable consideration,the
receipt and sufficency of which are hereby acknowledged.the Parties agree as follows:
1.Facilitv Decommissioning.In considerationfor the CLEC 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.Qwest shall within thirty (30)days of the Effective Date hereof,payto
CLEC a decommissioning fee reimbursement totaling the amount of $15,665.84,for nonrecurring
charges,subject to ave-up as provided below,payable by check to WorldCom (the "Settlement
Payment").Reimbursementfor the recurring charges totaling $2,649.00 (the "Settlement Payment"),
subject to true-up as stated below,will be credited to the respective Billing Account Number for each site.
The Parties agree that the Settlement Payments quoted in the previoussentences are an estimate and is
subject to change upon true-up,such variation not to exceed One Hundred Dollars (USS100.00)teore or
less,combined,than the estimated Settlement Payments above,based upon the actual Effective Date
hereofand the time necessary for Qwest to finally process such settlement amounts.
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,agenis,directois;officers;pänneff;employees,representatives,employees of
affiliates,employees of parents,employees of,subsidiaries,affiliates,parents,subsidiaries,insurance
carriers,bonding companies 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,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 couÌd have been asserted or could be asserted in any way relating to or arising out
of the Facilities or this Agreement(the "CLEC Release and Waiver").CLEC hereby covenants and
I-bas---liliK
warrants that it has not assigned or transferred to any person any claim,or portion of any claim which is
released or discharged by CLEC pursuant to this Agreement.
(b)As part of the CLEC Release and Waiver described in the previousparagraph.CLEC
expressly agrees to relinquish foreverall 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 Agreementat
CLEC's own expense.
(c)In consideration of the mutual promises herein,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 an manner of action or actions,causes or causes of action,in law,understatute,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 related to the decommissioning
settlement hereunder or the payment ofany non-recurringor monthly recurring fees associated with the
Facilities (the "Qwest Release and Waiver").Qwest hereby covenants and warrants that it has not
assigned or transfened to any person any claim,or portion of any claim which is releasedor discharged
by Qwest pursuant to this Agreement.
(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 rernedy available at law or
equity,remove all of CLEC's equipment tiom the Facility and store the same at CLEC's expense.CLEC
expressly waives any damages occasioned by such removal.Anyequipment so removed will be retamed
to CLEC upon payment in full of all storage costs.If within forty-five (45)days follovving 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
retain possession of any sale proceeds.Owest's exercise of any remedies providedfor in this Section 3
shall be without prejudice to any other remedies Qwest may haveprovided for herem or by law.
4.ConfidentialiO'
(a)The Parties agree that this Agreemem shall be subject to the Confidentiality provisions of
the underlying interconnection agreement.The Parties will not disclose the contents of this Agreement,
the fact of this settlement and any matters pertaining to this settlement unless such disclosure is (i)
lawfully required by any govemmentalagency;(ii)Otherwise required by law;(iii)necessary in any legal
proceeding to enforce any provisions of this Agreement;or (iv)to legal counsel,accountants and other
tax,financial and legal advisors.The Parties will notify each other in writing within five (5)calendar
days of the receipt of any subpoena,court order,or administrative order requiring disclosure of
information subject to this non-disclosureprovision..
5.Dispute Resolution.Any claim,controversy or dispute between the Parties in connection with
this Agreement,shall be resolved in accordance with the Business Escalation Agreement,executed by the
Parties-on June 29,2001
6.M Settlement.The Parties acknowledge and agree that legitimate disputes regarding
collocation facility decommissioningset forth in this Agreement and the monetarvobligations ofeach of
the Parties have been raised and that the resolution reached in this Agreement represents a binding
compromise of the Parties'positions.Subject to Paragraph 5.,the Parties performance in Paragraphs 2.
and 3.,above shallíinallysettle and resolve all claims asserted or which could have been assertedagainst
any of the Parnes arising out of,or in any way relating to the decommissioning of the Facilities
hereunder.
2
1[
7.GoverningLaw.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 Agreemyt.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 ofboth 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.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 Agreernentshould be declared to be unenforceable by any
adrainistrative 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
invalidatedprovision were not part of this Agreement.
l 1.Waiver.The waiver of any right on one or more occasions by either Party shall not constitute a
waiver of any such nght in any other instance.
12.Counterparu.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 together shall constitute one and the same agreernent.
13.Rules of Construction.The captions or headings in this Agreementare strictly for convenience
and shall not be consideredin imerpretmg this Agreementor as amplifying or limiting any of its coment.
Words in this Agreemcht which import the singular connotation shall be interpretedas plural,and words
which unport the plurabconnotation shan be interpretedas singular,as the identity of the Parties or
objects referred to may require.Unless expressly defmed herem,words havmg wellknown technical or
trade meapittgs shall be so construed.All listing of items shall not be taken to be exclusive,but shall
includeother items,whether similar or dissimilar to those listed,as the context reasonably requires.
3

IN WITNESS THERE(3F,the es have caused this Facility Decommissioning Agreernent to be
executed as of this 97 day of ha 2001.
MCI WORLDCOM NETWORK QWEST CORPORATION
Title:
Name of S a ry
Title:
MCI WormCom
law &PubHC Poicy
4
IIlENTIAL &PROPRIETARY EXECUTIONAGREEMENT
EXRIBIT A
AN RELATED CILU Decom.Decom.CO Name Decom.MRC Estimated Total of ESTIMATED
BAN'S Submit Date Completion (State)NRCs Ban #MRCto me NRCs to be TOTALDate(Actual Paid Credited Credited CREDITFOR(Validation Data MRCa MRC-8 NRCDate)Ceased)
D CTED
COÑFÏDENTIAL &PROPRIETARY
FACILITY DECOMMISSIONINGAGREEMENT
THIS FACILITY DECOMMISSIONING AGREEMENT ("Agreement"),is made and entered
into as of this 2nd day of October,2001 (the "Effective Date"),between Qwest Corporation ("Qwest")
and Williams Local Network,Inc.("CLEC")(Qwest and CLEC being sometimes hereinafter referredto
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 "Interconnection Agreement"),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 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 Parties voluntarily enter into this Agreement as a final resolution to disputes arising
between the Parties regardingthe terms and conditionsof 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 othergoodand valuable consideration,the
receipt and sufficiency of which are hereby acknowledged,the Panies agree as follows:
1.Facility Decommissioning.In considerationfor the Release and Waiver set forth below,Qwest
hereby agrees to decommissionthe 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
decommissioningquotes and the monthly recurring charges past the date of acceptance of the valid
deconimissioningapplication,Qwest shall make a one-timecredit to CLEC for the sum of any non-4
recurring charges paid for the decommissioningand any monthly recurring charges paid for the Facilities y,
after the date of Qwest's acceptance and validation of the decommissioningrequest.This credit amount
will be applied,first,to satisfy any outstandingbalances owed by CLEC to Qwest,if any.If a credit
balance remains,(CHOOSE ONE:the CLEC may request the credit be paid them via check.Such
check shall be issued by Qwestwithin thirty (30)days of the Effective Date hereof.-OR -Qwest shall
provide a one-time credit to CLEC to be used to offset future amounts payable to Qvvestpursuant to other
agreements between the Parties.]
3.Release and Waiver.
(a)For valuable considerationto 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,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 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 herebycovenants and 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,CLEC expressly
agrees to relinquish forever all rights and interest whatsoeverin the Facilities and to remove all propertyit
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 equipmentfrom the Facility and store the same at CLEC's expense.CLEC
expressly waives any 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
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 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.Confidentiality.
(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
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 Party has a legal obligation which requires disclosureof 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 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 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 ArtibrationAssociation.The
Federal ArbitrationAct,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 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 Agreementshall be
deemed full and complete and,except as provided in Section 5 above,cannot be used to the detriment of
either Party.
7.GoverningLaw.This Agreement shall be interpretedand 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 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 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 Agreementshall inure to the
benefitof,and be binding upon,the Parties,their respective successors,affiliates and assigns.
10.Severability.If any provisionof 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 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 in any numberof 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.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 Agreementwhich import the singular connotation shall be interpreted as plural,and words
which import the plural connotation shall be interpretedas singular,as the identity of the Parties or
objects referred to may require.Unless expressly defined herein,words havingwell known technical or
trade meaningsshall be so construed.All listing of items shall not be taken to be exclusive,but shall
includelother items,whethersimilar or dissimilar to those listed,as the context reasonably requires.
IN WITNESS THERE F,the Partiesphav caused this FacilityDecommissioningAgreementto be
executed as of this f day of &¶2001.
CLEC QWEST CORPORATION
By:/,.C.,By:
Na f Signatofy Audre cKenney
Title:t/1¾J 2/F Title:Senior Vice President
By:
Steve Hansen
Title:Vice President
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CERTIFICATE OF SERVICE
I hereby certify that on this 19"day of September,2002,I servedthe foregoing APPLICATION
FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT upon all parties
of record in this matter as follows:
Ms.Jean Jewell,Secretary X Hand Delivery
Idaho Public Utilities Commission U.S.Mail
472 West Washington Street Overnight Delivery
P.O.Box 83720 Facsimile
Boise,Idaho 83720-0074
John Hammond X Hand Delivery
Idaho Public Utilities Commission U.S.Mail
472 West Washington Street Overnight Delivery
P.O.Box 83720 Facsimile
Boise,Idaho 83720-0074
Lauraine Harding Hand Delivery
Senior Manager,Interconnect Negotiation X U.S.Mail
McLeodUSA Overnight Delivery
6400 C Street SW,Box 3177 Facsimile
Cedar Rapids,IA 52406-3177
[e-mail]
Dennis Ahlers,Senior Attorney Hand Delivery
Eschelon Telecom,Inc.X U.S.Mail
730 Second Avenue South -Suite 1200 Overnight Delivery
Minneapolis,MN 55402 Facsimile
Telephone:[phone]
Facsimile:[phone]
Dhruv Khanna Hand Delivery
Covad Communications Company X U.S.Mail
3420 Central Express Way Overnight Delivery
Santa Clara,CA 95051 Facsimile
Telephone:[phone]
dkhanna covad.com
Megan Dobernack Hand Delivery
Covad Communications Company X U.S.Mail
7901 Lowry Boulevard Overnight Delivery
Denver,Co 80230 Facsimile
Telephone [phone]
[e-mail]
Brandi L.Gearhart,PLS
Legal Secretary to Mary S.Hobson
Stoel Rives LLP
QWEST CORPORATION'S RESPONSES TO FIRST PRODUCTIONREQUESTOFTHECOMMISSIONSTAFF-Page 3
Boise-148096.1 0029164-00016