<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 4, 2000
REGISTRATION NO. 333-34870
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
ESCHELON TELECOM, INC.
(FORMERLY ADVANCED TELECOMMUNICATIONS, INC.)
(Exact Name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4813 41-1843131
(State or other jurisdiction of (Primary Standard Industrial (IRS Employer
incorporation or organization) Classification Code Number) Identification Number) `
</TABLE>
730 SECOND AVENUE, SUITE 1200
MINNEAPOLIS, MINNESOTA 55402
(612) 376-4400
(Address, including zip code, and telephone number, including area code
of registrant's principal executive offices)
--------------------------
CLIFFORD D. WILLIAMS
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ESCHELON TELECOM, INC.
730 SECOND AVENUE, SUITE 1200
MINNEAPOLIS, MINNESOTA 55402
(612) 376-4400
(Name, address, including zip code and telephone number,
including area code of agent for service)
--------------------------
COPIES TO:
<TABLE>
<S> <C>
EDWIN M. MARTIN, JR., ESQUIRE JOHN D. WATSON, JR., ESQUIRE
THOMAS L. HANLEY, ESQUIRE LATHAM & WATKINS
PIPER MARBURY RUDNICK & WOLFE LLP 1001 PENNSYLVANIA AVENUE
1200 19(TH) STREET, NW SUITE 1300
WASHINGTON, DC 20036 WASHINGTON, DC 20004
(202) 861-3900 (202) 637-2200
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective. If any of the
securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Securities Act") check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / / _________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _________
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSEDMAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE(3)
<S> <C> <C>
Common Stock, par value $.01 per share...................... $172,500,000 $45,540
</TABLE>
(1) Includes shares of common stock which may be purchased by the underwriters
to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act.
(3) Previously paid
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
[INSERT FINANCIALS]
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses payable by us in
connection with the sale and distribution of the securities offered hereby,
other than underwriting discounts and commissions. All of the amounts shown are
estimated except the Securities and Exchange Commission registration fee, the
National Association Securities Dealers, Inc. filing fee and the Nasdaq National
Market listing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $45,540
National Association of Securities Dealers, Inc. filing
fee....................................................... 17,750
Nasdaq National Market listing fee.......................... *
Transfer agent's and registrar's fees....................... *
Printing expenses........................................... *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Blue Sky filing fees and expenses........................... *
Miscellaneous expenses...................................... *
-------
Total..................................................... *
-------
</TABLE>
- ------------------------
* To be filed by amendment.
14. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware general corporation law ("Section 145") permits
indemnification of directors, officers, agents and controlling persons of a
corporation under certain conditions and subject to certain limitations. Our
bylaws include provisions to require us to indemnify our directors and officers
to the fullest extent permitted by Section 145, including circumstances in which
indemnification is otherwise discretionary. Section 145 also empowers us to
purchase and maintain insurance that protects our officers, directors, employees
and agents against any liabilities incurred in connection with their service in
such positions.
At present, there is no pending litigation or proceeding involving any of
our directors or officers as to which indemnification is being sought nor are we
aware of any threatened litigation that may result in claims for indemnification
by any officer or director.
15. RECENT SALES OF UNREGISTERED SECURITIES
During the last three years, we have issued unregistered securities in the
transactions described below. These securities were offered and sold by us in
reliance upon the exemptions provided for in Section 4(2) of the Securities Act,
relating to sales not involving any public offering, Rule 506 of the Securities
Act relating to sales to accredited investors and Rule 701 of the Securities Act
relating to compensatory benefit plans and contracts relating to compensation.
The sales were made without the
II-1
<PAGE>
use of an underwriter and the certificates representing the securities sold
contain a restrictive legend that prohibits transfer without registration or an
applicable exemption.
1) In August 1997 and December 1997, we issued series A convertible
subordinated promissory notes in the aggregate principal amount of
$3,153,677 to Stolberg Partners, L.P. and certain employees.
2) In December 1997, we issued series B convertible subordinated promissory
notes in the aggregate principal amount of $2,500,000 to Stolberg, Meehan &
Scano II, L.P. and Stolberg Partners, L.P.
3) In July 1998, we issued 296,160 shares of common stock in consideration for
the merger of Tele-Contracting Specialists, Inc. with and into American
Telephone Technology, Inc.
4) In October 1998, in connection with a loan guaranteed by Stolberg Partners,
L.P., we issued 39,960 shares of common stock Stolberg Partners, L.P. In
January 1999, in connection with loans guaranteed by Stolberg Partners,
L.P., we issued 58,920 shares of common stock to Stolberg Partners, L.P.
5) In October 1998, we issued 360 shares of our common stock in consideration
of contribution for retention bonuses to Artesian Capital and two other
investors.
6) In December 1998, in connection with the merger of One Call Telecom, Inc.,
with and into Cady Communications, Inc. we issued 468,000 shares of our
common stock to former One Call shareholders.
7) In December 1998, we granted to Mr. Moses, a member of our board of
directors, options to purchase 58,800 shares of our common stock at an
exercise price of $2.85, in connection with his service as a member of our
board of directors.
8) In July 1998, we granted options to purchase 30,000 shares of common stock
to one of our executive officers at an exercise price of $2.17 per share.
9) In February 1998, we granted options to purchase 9,000 shares of common
stock to one of our executive officers at an exercise price of $2.03 per
share.
10) In December 1999, we granted options to purchase 90,000 shares of common
stock to one of our executive officers at an exercise price of $5.00 per
share.
11) In February 1998, we granted options to purchase 52,800 shares of common
stock to one of our executive officers at an exercise price of $2.08 per
share.
12) In December 1999, we granted options to purchase 30,000 shares of common
stock to one of our executive officers at an exercise price of $5.00 per
share.
13) In October 1998, we granted options to purchase 96,000 shares of common
stock to our president and chief operating officer at an exercise price of
$2.08 per share.
14) In January 1999, we issued 39,960 shares of our common stock to two
stockholders as part of the consideration for the merger of One Call Telecom
merger consideration.
15) In January 1999, we issued 18,960 shares of our common stock to Stolberg
Meehan & Scano, II, L.P. in consideration of a $500,000 guarantee of our
indebtedness to Imperial Bank.
16) In February 1999, we issued 88,260 shares of common stock to a stockholder
in exchange for cash and 17,640 shares of common stock to one of our
directors as compensation for serving on our board.
17) In February 1999, we granted options to purchase 64,020 shares of common
stock to our president and chief operating officer at an exercise price of
$2.83 per share.
II-2
<PAGE>
18) In February 1999, we granted options to purchase 9,000 shares of common
stock to one of our executive officers at an exercise price of $2.68 per
share.
19) In March 1999, we issued 32,520 shares of common stock to Stolberg Partners,
L.P. and Stolberg Meehan & Scano II. L.P. in connection with a guaranty of
indebtedness to Imperial Bank.
20) In March 1999, we issued series B convertible subordinated promissory notes
to our president and chief operating officer in the aggregate principal
amount of $200,000.
21) In April 1999, we issued a warrant to acquire 12,000 shares of our common
stock to one of our lenders.
22) In April 1999, we granted options to purchase 90,000 shares of common stock
to one of our executive officers at an exercise price of $5.00 per share.
23) In May 1999, we issued 36,000 shares of common stock to Stolberg Partners,
L.P. and Stolberg, Meehan & Scano II, L.P. in connection with a $1,000,000
guaranty of our indebtedness to one of our lenders.
24) In July 1999, we issued a warrant to acquire 428,500 shares of common stock
to one of our lenders.
25) In August 1999, we granted options to purchase 60,000 shares of common stock
to our president and chief operating officer at an exercise price of $5.00
per share.
26) In August 1999, we granted options to purchase 33,000 shares of common stock
to one of our executive officers at an exercise price of $.01 per share.
27) In August 1999, we granted options to purchase 90,000 shares of common stock
to one of our executive officers at an exercise price of $5.00 per share.
28) In August 1999, we issued 76,260 shares of common stock to former One Call
Telecom stockholders in connection with the merger of One Call
Telecom, Inc. with and into Cady Communications, Inc.
29) In August 1999, we issued 11,880 shares of common stock pursuant to an
earnout provision under the merger agreement with Tele-Contracting, Inc. and
American Telephone Technology, Inc. and us.
30) In September 1999, we granted options to purchase 60,000 shares of common
stock to one of our executive officers at an exercise price of $5.00 per
share.
31) In September 1999, we issued 8,576,000 shares of our series C convertible
preferred stock to a group of accredited investors at a price per share of
$5.00.
32) In September 1999, we issued 1,349,506 shares of series B1 convertible
preferred stock, 1,552,154 shares of series B2 convertible preferred stock,
1,296,704 shares of series B3 convertible preferred stock and 294,254 shares
of series B4 convertible preferred stock to a group of 24 accredited
investors.
33) In November 1999, we issued 114,300 shares of common stock to One Call
Telecom shareholders in connection with the merger of One Call
Telecom, Inc. with and into Cady Communications.
34) In December 1999, we issued 580,000 shares of series C convertible preferred
stock to Stolberg, Meehan & Scano II, L.P.
35) In January 2000, we granted options to purchase 45,000 shares of common
stock to one of our executive officers at an exercise price of $6.00 per
share.
II-3
<PAGE>
36) In January 2000, we issued an aggregate of 1,684,634 shares of series C1
convertible preferred stock issued to a group of accredited investors at an
exercise price of $6.00 per share.
37) In January 2000, we issued 569,166 shares of our common stock to
shareholders of Fishnet.com in connection with our acquisition of them.
38) In January 2000, we issued an aggregate of 40,000 shares of common stock to
two members of our board of directors at a price per share of $6.00.
39) In March 2000, we granted options to purchase 378,575 shares of common stock
to our chairman and chief executive officer at an exercise price of $6.00
per share.
40) In March 2000, we granted options to purchase 378,525 shares of common stock
to our president and chief operating officer at an exercise price of $6.00
per share.
41) In March 2000, we granted options to purchase 250,000 shares of common stock
to our chief financial officer at an exercise price of $6.00 per share.
42) In March 2000, we granted options to purchase 20,000 shares of common stock
to one of our executive officers at an exercise price of $6.00 per share.
43) In October 1999, we granted options to purchase 60,000 shares of common
stock to our president and chief operating officer at an exercise price of
$5.00 per share.
44) In March 2000, we granted options to purchase 20,000 shares of common stock
to one of our executive officers at an exercise price of $6.00 per share.
45) In April 2000, we issued an aggregate of 480,206 shares of common stock to a
group of investors at a price of $6.54 per share.
II-4
<PAGE>
16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
1.1* Form of Underwriting Agreement
2.1.1** Agreement and Plan of Merger Dated July 14, 1998 by and
among Eschelon Telecom, American Telephone Technology, Inc.,
Tele-Contracting Specialists, Inc.
2.1.2** Agreement and Plan of Merger by and among Eschelon Telecom,
One Call Acquisition Corp and One Call Telecom, Inc. dated
June 22, 1998
2.1.3** Agreement and Plan of Merger by and among Eschelon Telecom,
Cady Communications, Inc. and One Call Telecom, Inc. dated
June 22, 1998
2.1.4** Agreement and Plan of Merger by and among Eschelon Telecom,
Fishnet Acquisition Corp., Fishnet.com, Inc. and Steven S.
Solbrack, Steven Holland and Steven G. Kolar dated
December 23, 1999
3.1.1** Second Amended and Restated Certificate of Incorporation
dated December 10, 1999
3.1.2** Certificate of Amendment to Second Amended and Restated
Certificate of Incorporation, dated April 14, 2000
3.1.3* Form of Third Amended and Restated Certificate of
Incorporation (to be effective immediately after the closing
of this offering)
3.1.4** Bylaws dated September 21, 1999
3.1.5** First Amendment to Bylaws dated September 30, 1999
3.1.6* Second Amendment to Bylaws dated , 2000
3.1.7* Form of Amended and Restated Bylaws (to be effective
immediately after the closing of this offering)
4.1* Specimen stock certificate for shares of common stock
5.1* Form of opinion of Piper Marbury Rudnick & Wolfe LLP,
regarding legality of securities being registered
10.1.1** Amended and Restated Stockholders Agreement dated
September 30, 1999 by and among Eschelon Telecom and certain
stockholders listed therein.
10.1.2** Baker Center Lease of Office Space dated August 14, 1996
between St. Paul Properties, Inc. and Eschelon Telecom
10.1.3** First Amendment to Baker Center Lease dated September 5,
1996 between St. Paul Properties, Inc. and Eschelon Telecom
10.1.4** Baker Center Lease of additional office space dated
January 22, 1997 between St. Paul Properties and Eschelon
Telecom
10.1.5** Baker Center Amendment of Lease dated May 15, 1997 between
St. Paul Properties and One Call Telecom, Inc.
10.1.6** Baker Center Second Lease of additional office space dated
August 4, 1997 between St. Paul Properties, Inc. and
Eschelon Telecom
10.1.7** Baker Center Lease dated September 15, 1997 between
St. Paul Properties and Eschelon Telecom
10.1.8** Baker Center Second Amendment of Lease dated October 15,
1998 between St. Paul Properties, Inc. and Eschelon Telecom
10.1.9** Lease Agreement between Denver FDS, L.P. and Eschelon
Telecom, Inc. dated November 29, 1999
10.1.10** Lease Agreement between Alco Investment Company and Eschelon
Telecom, Inc. dated November 29, 1999
10.1.11** Lease Agreement between SOFI-IV SIM Office Investors II,
Limited Partnership and Eschelon Telecom dated December 1,
1999
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
10.1.12** Lease Agreement between Seattle Telecom LLC and Eschelon
Telecom dated December , 1999
10.1.13** Lease Agreement between Parkside Salt Lake Corporation and
Eschelon Telecom dated December 28, 1999.
10.1.14** Lease Agreement between Timeshare Systems, Inc, and Eschelon
Telecom
10.1.15 Series C Preferred Stock Purchase Agreement dated as of
September 30, 1999 by and among Eschelon Telecom and the
purchasers named therein.
10.1.16** Loan and Security Agreement dated as of July 16, 1999 among
ATI Operating Company, as Borrower, Eschelon Telecom and
Certain Operating Subsidiaries of Eschelon Telecom as
Guarantors, NTFC Capital Corporation, as Lender, the other
Lenders party hereto and General Electric Capital
Corporation as Administrative Agent
10.1.17** Stock Purchase Warrant Agreement dated as of July 19, 1999,
by and between Eschelon Telecom and General Electric Capital
Corporation
10.1.18** General Electric Capital Corporation Warrant Certificate
10.1.19** Form of Non-competition Agreement
10.1.20 1996 Second Amended and Restated Employee Stock Option Plan
10.1.21** Employment Agreement dated July 1, 1996 between Eschelon
Telecom and Clifford D. Williams
10.1.22** Employment Agreement dated April 15, 1999 between Eschelon
Telecom and Satish C. Tiwari
10.1.23** Employment Agreement dated August 4, 1999 between Eschelon
Telecom and Michael J. Robinson
10.1.24** Employment Agreement dated March 19, 1999 between Eschelon
Telecom and David A. Kunde
10.1.25** Employment Agreement dated July 16, 1999 between Eschelon
Telecom and John E. Beesley
10.1.26** Employment Agreement dated March 7, 2000 between Eschelon
Telecom and Geoffrey M. Boyd
10.1.27** Employment Agreement dated July 19, 1999 between Eschelon
Telecom and Steven K. Wachter
10.1.28** Employment Agreement dated June 4, 1998 between Eschelon
Telecom and Richard A. Smith
10.1.29** Amendment to Employment Agreement dated March 10, 1999
between Eschelon Telecom and Richard A. Smith
10.1.30** Advisory Agreement dated as of September 30, 1999 by and
among Eschelon Telecom, Bain Capital Partners VI, L.P. and
Stolberg Partners, L.P.
10.1.31+ Master Purchase and Services Agreement dated June 1, 1999
between Eschelon Telecom and Nortel Networks Inc.
10.1.32 Series C1 Preferred Stock Purchase Agreement dated as of
December 13, 1999 by and among Eschelon Telecom and the
investors named therein
10.1.33 Common Stock Purchase Agreement dated as of March 31, 2000
by and among Eschelon Telecom and the investors named
therein
10.1.34 Amendment No. 2 to Amended and Restated Stockholders
Agreement dated March 31, 2000 by and among Eschelon
Telecom and certain stockholders listed therein
10.1.35 Interconnection Agreement by and between American Telephone
Technology, Inc. and US WEST Communications, Inc. for the
state of Washington
10.1.36 Interconnection Agreement by and between Electro-Tel, Inc.
and US WEST Communications, Inc. for the state of Colorado
10.1.37 Interconnection Agreement by and between Eschelon Telecom
and US WEST Communications, Inc. for the state of Utah
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
10.1.38 Resale and Unbundling Agreement by and between American
Telephone Technology Inc. and GTE Northwest Incorporated for
the state of Washington
10.1.39 Interconnection Agreement by and between American Telephone
Technology, Inc. and US WEST Communications, Inc. for the
state of Oregon
10.1.40 Interconnection Agreement by and between Cady
Telemanagement, Inc. and US WEST Communications, Inc. for
the state of Minnesota
10.1.41 Interconnection Agreement by and between Eschelon Telecom
and NEVADA BELL for the state of Nevada
10.1.42 Interconnection Agreement by and between Eschelon Telecom
and US WEST Communications, Inc. for the state of Arizona
21** Subsidiaries of Eschelon Telecom
23.1** Consent of Ernst & Young LLP
23.2* Consent of Piper Marbury Rudnick & Wolfe LLP (included as
part of Exhibit 5.1 hereto)
24.1** Power of Attorney (included in signature pages)
27** Financial Data Schedule
</TABLE>
- ------------------------
* To be filed by amendment
** Previously filed
+ Portions of this exhibit were omitted and have been separately filed with
the Secretary of the Commission pursuant to the Registrant's Application
Requesting Confidential Treatment under Rule 406 of the Securities Act.
(B) FINANCIAL STATEMENT SCHEDULES:
Schedules have been omitted because the information required to be shown in
the schedules is not applicable or is included elsewhere in our financial
statements or the notes thereto.
17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the underwriter
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of its Charter or Bylaws or the Delaware
General corporation Law or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted form the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
II-7
<PAGE>
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Minneapolis, Minnesota,
on the 4th day of May, 2000.
<TABLE>
<S> <C> <C>
ESCHELON TELECOM, INC.
By: *
-----------------------------------------
Clifford D. Williams
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment to Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
* Chairman of the Board and May 4, 2000
- ------------------------------------------- Chief Executive Officer
Clifford D. Williams (Principal Executive
Officer)
/s/ RICHARD A. SMITH President and Chief May 4, 2000
- ------------------------------------------- Operating Officer
Richard A. Smith
* Chief Financial Officer May 4, 2000
- ------------------------------------------- (Principal Accounting and
Geoffrey M. Boyd Financial Officer)
* Director May 4, 2000
- -------------------------------------------
Tansukh V. Ganatra
* Director May 4, 2000
- -------------------------------------------
Michael A. Krupka
* Director May 4, 2000
- -------------------------------------------
Marvin C. Moses
</TABLE>
II-9
<PAGE>
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<S> <C> <C>
* Director May 4, 2000
- -------------------------------------------
Mark E. Nunnelly
* Director May 4, 2000
- -------------------------------------------
E. Theodore Stolberg
* Director May 4, 2000
- -------------------------------------------
Peter M. Van Genderen
</TABLE>
<TABLE>
<S> <C> <C>
*By: /s/ RICHARD A. SMITH
-------------------------------------
Richard A. Smith
Attorney-In-fact
</TABLE>
II-10
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
1.1* Form of Underwriting Agreement
2.1.1** Agreement and Plan of Merger Dated July 14, 1998 by and
among Eschelon Telecom, American Telephone Technology, Inc.,
Tele-Contracting Specialists, Inc.
2.1.2** Agreement and Plan of Merger by and among Eschelon Telecom,
One Call Acquisition Corp and One Call Telecom, Inc. dated
June 22, 1998
2.1.3** Agreement and Plan of Merger by and among Eschelon Telecom,
Cady Communications, Inc. and One Call Telecom, Inc. dated
June 22, 1998
2.1.4** Agreement and Plan of Merger by and among Eschelon Telecom,
Fishnet Acquisition Corp., Fishnet.com, Inc. and Steven S.
Solbrack, Steven Holland and Steven G. Kolar dated
December 23, 1999
3.1.1** Second Amended and Restated Certificate of Incorporation
dated December 10, 1999
3.1.2** Certificate of Amendment to Second Amended and Restated
Certificate of Incorporation, dated April 14, 2000
3.1.3* Form of Third Amended and Restated Certificate of
Incorporation (to be effective immediately after the closing
of this offering)
3.1.4** Bylaws dated September 21, 1999
3.1.5** First Amendment to Bylaws dated September 30, 1999
3.1.6* Second Amendment to Bylaws dated , 2000
3.1.7* Form of Amended and Restated Bylaws (to be effective
immediately after the closing of this offering)
4.1* Specimen stock certificate for shares of common stock
5.1* Form of opinion of Piper Marbury Rudnick & Wolfe LLP,
regarding legality of securities being registered
10.1.1** Amended and Restated Stockholders Agreement dated
September 30, 1999 by and among Eschelon Telecom and certain
stockholders listed therein.
10.1.2** Baker Center Lease of Office Space dated August 14, 1996
between St. Paul Properties, Inc. and Eschelon Telecom
10.1.3** First Amendment to Baker Center Lease dated September 5,
1996 between St. Paul Properties, Inc. and Eschelon Telecom
10.1.4** Baker Center Lease of additional office space dated
January 22, 1997 between St. Paul Properties and Eschelon
Telecom
10.1.5** Baker Center Amendment of Lease dated May 15, 1997 between
St. Paul Properties and One Call Telecom, Inc.
10.1.6** Baker Center Second Lease of additional office space dated
August 4, 1997 between St. Paul Properties, Inc. and
Eschelon Telecom
10.1.7** Baker Center Lease dated September 15, 1997 between
St. Paul Properties and Eschelon Telecom
10.1.8** Baker Center Second Amendment of Lease dated October 15,
1998 between St. Paul Properties, Inc. and Eschelon Telecom
10.1.9** Lease Agreement between Denver FDS, L.P. and Eschelon
Telecom, Inc. dated November 29, 1999
10.1.10** Lease Agreement between Alco Investment Company and Eschelon
Telecom, Inc. dated November 29, 1999
10.1.11** Lease Agreement between SOFI-IV SIM Office Investors II,
Limited Partnership and Eschelon Telecom dated December 1,
1999
10.1.12** Lease Agreement between Seattle Telecom LLC and Eschelon
Telecom dated December , 1999
10.1.13** Lease Agreement between Parkside Salt Lake Corporation and
Eschelon Telecom dated December 28, 1999.
10.1.14** Lease Agreement between Timeshare Systems, Inc, and Eschelon
Telecom
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
10.1.15 Series C Preferred Stock Purchase Agreement dated as of
September 30, 1999 by and among Eschelon Telecom and the
purchasers named therein.
10.1.16** Loan and Security Agreement dated as of July 16, 1999 among
ATI Operating Company, as Borrower, Eschelon Telecom and
Certain Operating Subsidiaries of Eschelon Telecom as
Guarantors, NTFC Capital Corporation, as Lender, the other
Lenders party hereto and General Electric Capital
Corporation as Administrative Agent
10.1.17** Stock Purchase Warrant Agreement dated as of July 19, 1999,
by and between Eschelon Telecom and General Electric Capital
Corporation
10.1.18** General Electric Capital Corporation Warrant Certificate
10.1.19** Form of Non-competition Agreement
10.1.20 1996 Second Amended and Restated Employee Stock Option Plan
10.1.21** Employment Agreement dated July 1, 1996 between Eschelon
Telecom and Clifford D. Williams
10.1.22** Employment Agreement dated April 15, 1999 between Eschelon
Telecom and Satish C. Tiwari
10.1.23** Employment Agreement dated August 4, 1999 between Eschelon
Telecom and Michael J. Robinson
10.1.24** Employment Agreement dated March 19, 1999 between Eschelon
Telecom and David A. Kunde
10.1.25** Employment Agreement dated July 16, 1999 between Eschelon
Telecom and John E. Beesley
10.1.26** Employment Agreement dated March 7, 2000 between Eschelon
Telecom and Geoffrey M. Boyd
10.1.27** Employment Agreement dated July 19, 1999 between Eschelon
Telecom and Steven K. Wachter
10.1.28** Employment Agreement dated June 4, 1998 between Eschelon
Telecom and Richard A. Smith
10.1.29** Amendment to Employment Agreement dated March 10, 1999
between Eschelon Telecom and Richard A. Smith
10.1.30** Advisory Agreement dated as of September 30, 1999 by and
among Eschelon Telecom, Bain Capital Partners VI, L.P. and
Stolberg Partners, L.P.
10.1.31+ Master Purchase and Services Agreement dated June 1, 1999
between Eschelon Telecom and Nortel Networks Inc.
10.1.32 Series C1 Preferred Stock Purchase Agreement dated as of
December 13, 1999 by and among Eschelon Telecom and the
investors named therein
10.1.33 Common Stock Purchase Agreement dated as of March 31, 2000
by and among Eschelon Telecom and the investors named
therein
10.1.34 Amendment No. 2 to Amended and Restated Stockholders
Agreement dated March 31, 2000 by and among Eschelon
Telecom and certain stockholders listed therein
10.1.35 Interconnection Agreement by and between American Telephone
Technology, Inc. and US WEST Communications, Inc. for the
state of Washington
10.1.36 Interconnection Agreement by and between Electro-Tel, Inc.
and US WEST Communications, Inc. for the state of Colorado
10.1.37 Interconnection Agreement by and between Eschelon Telecom
and US WEST Communications, Inc. for the state of Utah
10.1.38 Resale and Unbundling Agreement by and between American
Telephone Technology Inc. and GTE Northwest Incorporated for
the state of Washington
10.1.39 Interconnection Agreement by and between American Telephone
Technology, Inc. and US WEST Communications, Inc. for the
state of Oregon
10.1.40 Interconnection Agreement by and between Cady
Telemanagement, Inc. and US WEST Communications, Inc. for
the state of Minnesota
10.1.41 Interconnection Agreement by and between Eschelon Telecom
and NEVADA BELL for the state of Nevada
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
10.1.42 Interconnection Agreement by and between Eschelon Telecom
and US WEST Communications, Inc. for the state of Arizona
21** Subsidiaries of Eschelon Telecom
23.1** Consent of Ernst & Young LLP
23.2* Consent of Piper Marbury Rudnick & Wolfe LLP (included as
part of Exhibit 5.1 hereto)
24.1** Power of Attorney (included in signature pages)
27** Financial Data Schedule
</TABLE>
- ------------------------
* To be filed by amendment
** Previously filed
+ Portions of this exhibit were omitted and have been separately filed with
the Secretary of the Commission pursuant to the Registrant's Application
Requesting Confidential Treatment under Rule 406 of the Securities Act.
<PAGE>
Exhibit 10-1-15
Execution Copy
- -------------------------------------------------------------------------------
ADVANCED TELECOMMUNICATIONS, INC.
____________________
SERIES C PREFERRED STOCK
PURCHASE AGREEMENT
____________________
Dated as of September 30, 1999
- -------------------------------------------------------------------------------
<PAGE>
INDEX
Page
SECTION 1. PURCHASE AND SALE OF SHARES .................................1
1.1. SALE OF SHARES AT INITIAL CLOSING ...........................1
1.2. SALE OF SHARES AT SECOND CLOSING ............................1
1.3. SALE OF SHARES AT SUBSEQUENT CLOSING ........................2
1.4. INITIAL CLOSING .............................................2
1.5. SECOND CLOSING ..............................................2
1.6. SUBSEQUENT CLOSINGS .........................................2
1.7. USE OF PROCEEDS FROM INITIAL CLOSING ........................3
1.8. USE OF PROCEEDS FROM SECOND CLOSING .........................3
1.9. USE OF PROCEEDS FROM SUBSEQUENT CLOSINGS ....................4
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY ...............4
2.1. ORGANIZATION.................................................4
2.2. SUBSIDIARIES ................................................4
2.3. AUTHORIZATION ...............................................5
2.4. NO CONFLICTS: APPROVALS .....................................5
2.5. CAPITALIZATION ..............................................6
2.6. FINANCIAL STATEMENTS; FINANCIAL CONDITION ...................6
2.7. ABSENCE OF CHANGES ..........................................7
2.8. TITLE TO PROPERTIES .........................................8
2.9. ACCOUNTS RECEIVABLE .........................................9
2.10 INTELLECTUAL PROPERTY .......................................9
2.11. CONTRACTS, ETC. ............................................10
2.12. LABOR MATTERS ..............................................13
2.13. EMPLOYEE BENEFIT PLANS .....................................13
2.14. CUSTOMERS AND SUPPLIERS ....................................15
2.15. LITIGATION .................................................15
2.16. CONFORMITY WITH LAW ........................................15
2.17. ENVIRONMENTAL MATTERS ......................................16
2.18. TAXES ......................................................17
2.19. YEAR 2000 ..................................................18
2.20. BOOKS AND RECORDS ..........................................18
2.21. GOVERNMENTAL REGULATIONS ...................................18
2.22. BROKERS AND FINDERS ........................................19
2.23. AFFILIATE TRANSACTIONS .....................................19
2.24. CERTAIN CONTRACTS ..........................................19
2.25. NO ILLEGAL PAYMENTS, ETC....................................19
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<PAGE>
2.26. PURCHASE AND SALE AGREEMENTS ...............................19
2.27. AVAILABILITY INCREASE DATE .................................20
2.28. POWERS OF ATTORNEY .........................................20
2.29. DISCLOSURE .................................................20
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASERS................20
3.1. ORGANIZATION AND STANDING ..................................20
3.2. NONCONTRAVENTION ...........................................20
3.3. CONSENTS AND APPROVALS .....................................21
3.4. BROKER .....................................................21
3.5. AUTHORIZATION ..............................................21
3.6. ACCREDITED INVESTORS .......................................21
3.7. OWN ACCOUNT ................................................21
3.8. TRANSFER RESTRICTIONS ......................................21
3.9. PRIVATE PLACEMENT ..........................................22
SECTION 4. CONDITIONS TO THE CLOSINGS .................................22
4.1. INITIAL CLOSING ............................................22
4.2. SECOND CLOSING .............................................24
4.3. SUBSEQUENT CLOSINGS ........................................24
4.4. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT EACH CLOSING.....25
SECTION 5. CERTAIN AGREEMENTS OF THE PARTIES ..........................26
5.1. EXPENSES ...................................................26
5.2. FINANCIAL STATEMENTS .......................................26
5.3. BUDGET AND OPERATING FORECAST ..............................27
5.4. VISITS AND DISCUSSIONS .....................................27
5.5. ADVERSE CHANGE: LITIGATION .................................27
5.6. OTHER INFORMATION ..........................................28
5.7. MAINTENANCE OF CORPORATE EXISTENCE AND PROPERTIES ..........28
5.8. PAYMENT OF TAXES ...........................................29
5.9. HOLDING COMPANY STRUCTURE ..................................29
5.10. RICHARD SMITH EXECUTION OF STOCKHOLDERS AGREEMENT ..........29
5.11. REPURCHASE OF CAPITAL STOCK ................................29
5.12. FILING FOR INTERNATIONAL LONG DISTANCE
SECTION 214 CERTIFICATE.....................................29
SECTION 6. DEFINITIONS ................................................29
6.1. CERTAIN MATTERS OF CONSTRUCTION ............................29
6.2. CROSS REFERENCE TABLE ......................................30
6.3. CERTAIN DEFINITIONS ........................................31
SECTION 7. INDEMNIFICATION ............................................36
7.1. SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
INDEMNITIES ................................................36
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<PAGE>
7.2. INDEMNIFICATION.............................................37
SECTION 8. GENERAL ....................................................38
8.1. AMENDMENTS, WAIVERS AND CONSENTS ...........................38
8.2. SURVIVAL OF COVENANTS: ASSIGNABILITY OF RIGHTS .............38
8.3. SECTION HEADINGS ...........................................38
8.4. COUNTERPARTS ...............................................38
8.5. NOTICES AND DEMANDS ........................................39
8.6. SEVERABILITY ...............................................40
8.7. CONSTRUCTION ...............................................40
8.8. INCORPORATION OF EXHIBITS, ANNEXES AND SCHEDULES ...........41
8.9. GOVERNING LAW ..............................................41
8.10. CONSENT TO JURISDICTION ....................................41
8.11. WAIVER OF JURY TRIAL .......................................42
8.12. EXERCISE OF RIGHTS AND REMEDIES ............................42
<PAGE>
SCHEDULES
Schedule 2.1 - Organization
Schedule 2.2 - Subsidiaries
Schedule 2.4.1 - No Conflicts
Schedule 2.4.2 - Approvals
Schedule 2.5.1 - Capitalization Tables
Schedule 2.5.2 - Capitalization - Rights
Schedule 2.6(a) - Financial Statements
Schedule 2.6(b) - Financial Statements - Other Liabilities
Schedule 2.6(c) - Financial Statements - Debt Schedule
Schedule 2.7 - Absence of Changes
Schedule 2.10 - Intellectual Property
Schedule 2.10(a) - Confidentiality and Non-Compete Agreements
Schedule 2.11.1 - Contracts - Liability Policies
Schedule 2.11.2 - Contracts - Other Contracts
Schedule 2.12 - Labor Matters
Schedule 2.13 - Employee Benefit Plans
Schedule 2.14 - Customers and Suppliers
Schedule 2.15 - Litigation
Schedule 2.16 - Permits
Schedule 2.18.1 - Taxes
Schedule 2.22 - Brokers and Finders
Schedule 2.23 - Affiliate Transactions
Schedule 2.26 - Purchase and Sale Agreements
EXHIBITS
Exhibit A - Purchasers and Shares
Exhibit B - Amended Charter
Exhibit C - Operational and Financial Targets
Exhibit D - Base Market Value
Exhibit E - Form of Stockholders Agreement
Exhibit F - Form of Confidentiality and
Non-Compete Agreement
Exhibit G - Form of Opinion of Piper & Marbury L.L.P.
Exhibit H - Form of Stock and Stock Option
Repurchase Agreement
Exhibit I - Form of Consent and Amendment No. 1 to
Loan and Security Agreement
Exhibit J - Form of Amendment to Stock Purchase
Warrant Agreement
Exhibit K - Form of Amendment to Nortel Master
Purchase Services Agreement
-iv-
<PAGE>
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This Series C Preferred Stock Purchase Agreement is made as of September
30, 1999 by and among the following:
(i) Advanced Telecommunications, Inc., a Delaware corporation (the
"COMPANY"); and
(ii) each of the Persons named in EXHIBIT A, hereto (each, individually
a "PURCHASER," and collectively, the "PURCHASERS").
Certain capitalized terms are used in this Agreement as specifically
defined herein. These definitions are set forth or referred to in Section 6
hereof.
WITNESSETH:
WHEREAS, on the conditions and subject to the terms set forth in this
Agreement, the Purchasers have agreed to invest up to $75,400,000 in the
Company; and
WHEREAS, the Company and the Purchasers wish to set forth their
understanding with respect to certain aspects of such investment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth below, the parties hereto hereby agree as
follows:
SECTION 1. PURCHASE AND SALE OF SHARES
1.1 SALE OF SHARES AT INITIAL CLOSING. The Company shall adopt and
file with the Secretary of State of Delaware on or prior to the Initial
Closing (as defined in Section 1.4) an Amended and Restated Certificate of
Incorporation in the form attached hereto as EXHIBIT B ("AMENDED CHARTER").
Subject to all of the terms and conditions of this Agreement, and based on
the representations and warranties contained herein, each Purchaser agrees,
severally, to purchase, and the Company agrees to issue and sell to each
Purchaser at the Initial Closing, that number of shares of the Company's Series
C Preferred Stock set forth in the column Initial Closing opposite each
Purchaser's name on EXHIBIT A hereto at the per share purchase price of $5.00
(the "PURCHASE PRICE"). The shares of Series C Preferred Stock sold to the
Purchasers pursuant to this Agreement are hereinafter referred to as the
"SHARES." The Shares and the Common Stock issuable upon conversion of the
Shares are hereinafter collectively referred to as the "SECURITIES."
1.2 SALE OF SHARES AT SECOND CLOSING. Subject to all of the terms and
conditions of this Agreement and based on the representations and warranties
contained herein, upon approval of the Phase II Plan by the Company's board of
directors, Stolberg agrees to
<PAGE>
purchase, and the Company agrees to sell and issue to Stolberg at the Second
Closing (as defined in Section 1.5), that number of Shares set forth in the
column Second Closing opposite Stolberg's name on EXHIBIT A hereto at the
per share purchase price of $5.00.
1.3 SALE OF SHARES AT SUBSEQUENT CLOSINGS. Subject to all of the terms
and conditions of this Agreement and based on the representations and
warranties contained herein, at any time after March 31, 2000 and prior to
September 30, 2001, at the option of the Company and upon not less than ten
Business Days prior written notice to the Bain Purchasers, the Bain
Purchasers will purchase at not more than four subsequent closings (each a
"SUBSEQUENT CLOSING") at a per share purchase price of $5.00 (or such other
per share purchase price as shall be agreed to in writing by the Majority
Bain Purchasers and a majority of the disinterested members of the Company's
board of directors) a number of Shares not exceeding 6,000,000 shares;
PROVIDED that in addition to the conditions set forth in Section 4.3 hereof,
the following conditions have been met: (a) the Company shall have achieved
the operational and financial targets set forth on EXHIBIT C hereto and (b)
the CLEC Basket Market Value shall be greater than 11.2, as calculated on
EXHIBIT D hereto (the "BASE MARKET VALUE"); PROVIDED, HOWEVER that in the
event that one or more of the Designated CLECs ceases to be a publicly traded
company trading under the ticker symbol under which it is trading as of
Initial Closing, the Base Market Value shall be recalculated in good faith to
exclude such Designated CLEC from the calculation.
1.4 INITIAL CLOSING. The initial purchase of Shares hereunder (the
"INITIAL CLOSING") shall take place at the offices of Ropes & Gray, One
International Place, Boston, Massachusetts at 10:00 a.m., on September 30,
1999, or at such other time and place as the Company and the Majority
Purchasers mutually agree upon. At the Initial Closing, the Company shall
deliver to each Purchaser a certificate representing the Shares which such
Purchaser is purchasing at the Initial Closing against delivery to the
Company by such Purchaser of a check or wire transfer in the amount of the
purchase price therefor.
1.5 SECOND CLOSING. A second purchase of shares hereunder (the
"SECOND CLOSING") shall take place at the offices of Ropes & Gray, One
International Place, Boston, Massachusetts at 10 a.m., on the date ten days
after the Company's board of directors approves the Phase II Plan, or at such
other time and place as the Company and Stolberg mutually agree upon. At the
Second Closing, the Company shall deliver to Stolberg a certificate
representing the Shares which Stolberg is purchasing at the Second Closing
against delivery to the Company by Stolberg of a check or wire transfer in the
amount of the purchase price therefore.
1.6 SUBSEQUENT CLOSINGS. Subsequent Closings shall take place at the
offices of Ropes & Gray, One International Place, Boston, Massachusetts at
10:00 a.m., on each date specified with notice given pursuant to Section 1.3,
or at such other time and place as the Company and the Majority Bain
Purchasers mutually agree upon. At each Subsequent Closing, the Company
shall deliver to each Bain Purchaser a certificate representing the Shares
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<PAGE>
which such Bain Purchaser is purchasing at such Subsequent Closing against
delivery to the Company by such Bain Purchaser of a check or wire transfer in
the amount of the purchase price therefor.
1.7 USE OF PROCEEDS FROM INITIAL CLOSING. The Company covenants that
it will apply the $42,730,000 in cash proceeds from the sale of the Shares at
the Initial Closing solely for the following lawful corporate purposes:
1.7.1 $28,646,980.83 of the cash proceeds shall be used in
furtherance of the execution of the Phase I Plan, and to pay third party fees
and expenses associated with the Initial Closing (other than the fees
described in Section 1.7.3);
1.7.2 $9,595,000 of the cash proceeds shall be used in furtherance
of the execution of the Phase II Plan; PROVIDED, HOWEVER, that such amount
shall be deposited in a separate account at the Closing and invested in
United States Treasury bills or similar liquid securities intended to provide
for the preservation of principal and shall not be used by the Company unless
and until such time as (a) the Phase II Plan has been approved by the
Company's board of directors and (b) the Second Closing has occurred;
1.7.3 $2,146,876.17 of the cash proceeds shall be used to pay the
fees of BancBoston Robertson Stephens, Inc. ("BancBoston");
1.7.4 $1,561,143 of the cash proceeds shall be used to repurchase
from Paul Cady 129,500 shares of Series A Preferred Stock (previously
designated Preferred Stock) of the Company, options to purchase 125,280 shares
of Common Stock of the Company, 94,743 shares of Series B1 Preferred Stock of
the Company, and 7,293 shares of Series B4 Preferred Stock of the Company; and
1.7.5 $780,000 of the cash proceeds shall be used to repurchase
from Sheldon Allen 160,000 shares of Common Stock of the Company.
1.8 USE OF PROCEEDS FROM SECOND CLOSING. The Company covenants that it
will apply the $2,900,000 in cash proceeds from the sale of the Shares at the
Second Closing solely for the following lawful corporate purposes:
1.8.1 $2,755,000 of the cash proceeds shall be used in furtherance
of the execution of the Phase II Plan, and to pay third party fees and
expenses associated with the Second Closing (other than the fees described in
Section 1.8.2); and
1.8.2 $145,000 of the cash proceeds shall be used to pay the fees
of BancBoston.
-3-
<PAGE>
1.9 USE OF PROCEEDS FROM SUBSEQUENT CLOSINGS. The Company covenants
that it will apply the cash proceeds from the sale of Shares at the
Subsequent Closings in furtherance of the execution of the Phase II Plan, to
pay the fees of BancBoston, to pay other third party fees and expenses
associated with the Subsequent Closings and for such other purposes as may be
approved by the Company's board of directors.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
In order to induce the Purchasers to enter into and preform this
Agreement and to consummate the transactions contemplated hereby, the Company
hereby severally represents and warrants to each Purchaser that:
2.1. ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. The Company is duly authorized, qualified, licensed and in good
standing under all applicable Legal Requirements, to carry on its business in
the places and in the manner as now conducted, except where the failure to be
so authorized, qualified, licensed or in good standing has not had and would
not have a material adverse effect on the business (as presently conducted
or proposed to be conducted), operations, prospects, assets, properties or
condition (financial or otherwise) of the Company and its Subsidiaries, taken
as a whole (a "MATERIAL ADVERSE EFFECT"). The Company has delivered to the
Purchasers a true, complete and correct copy of each of the Company's charter
and bylaws, each as in effect on the date hereof before the filing of the
Amended Charter (collectively, the "COMPANY CHARTER DOCUMENTS"). The
Company is not in default under its charter documents or, in any material
respect, its bylaws. There exists no condition, event or act which after
notice, lapse of time, or both, could constitute such a default by the Company
under the Company Charter Documents. SCHEDULE 2.1 sets forth (a) the
directors and officers of the Company and (b) each jurisdiction in which the
Company is qualified to do business as a foreign corporation.
2.2 SUBSIDIARIES. SCHEDULE 2.2 sets forth: (a) the name and
jurisdiction of incorporation of each Subsidiary of the Company, (b) the
directors and officers of each such Subsidiary and (c) each jurisdiction in
which each such Subsidiary has qualified to do business as a foreign
corporation. Each Subsidiary of the Company is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation. Each Subsidiary of the Company is duly authorized, qualified,
licensed and in good standing under all applicable Legal Requirements, to
carry on its business in the places and in the manner as now conducted,
except where the failure to be so authorized, qualified, licensed or in good
standing has not had and would not have a Material Adverse Effect. The
Company has delivered to the Purchasers true, complete and correct copies of
the respective charter and bylaws of each of its Subsidiaries, each as in
effect on the date hereof (collectively, the "SUBSIDIARY CHARTER DOCUMENTS").
None of the Subsidiaries is in default under its charter documents or, in any
material respect, its bylaws. There exists no condition, event or act
-4-
<PAGE>
which after notice, lapse of time, or both, could constitute such a default
by any Subsidiary under the Subsidiary Charter Documents.
2.3 AUTHORIZATION. The Company has all corporate power and authority
to enter into and perform this Agreement, the Stockholders Agreement (as
defined in Section 4.1.5) and the other documents and instruments to be
delivered pursuant to this Agreement, and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by the Company of
this Agreement, the Stockholders Agreement and each other document and
instrument to which it is a party and the consummation by the Company of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action on the part of the Company and
its directors and stockholders. This Agreement, the Stockholders Agreement
and each other document and instrument to which the Company is a party have
been duly and validly executed and delivered by the Company and each
constitutes the legal, valid and binding obligation of the Company and is
enforceable against the Company, in accordance with its terms.
2.4 NO CONFLICTS: APPROVALS.
2.4.1 Except as set forth on Schedule 2.4.1, neither the
execution, delivery and performance of this Agreement or the Stockholders
Agreement by the Company nor the consummation by the Company of the
transactions contemplated hereby will (a) conflict with or result in a breach
of any provision of the Company Charter Documents or the Subsidiary Charter
Documents, (b) result in any conflict with or breach of any of the terms,
conditions or provisions of, or default or event that with the passage of
time would be a default (or give rise to any right to termination,
cancellation or acceleration or loss of any right or benefit) under, any
Contractual Obligation (or, in the case of the consummation by the Company of
the merger effected for purposes of reincorporating in Delaware, any material
Contractual Obligation) to which the Company or any of its Subsidiaries is a
party or by which it or its respective properties or assets is subject or
bound, (c) result in the imposition of a Lien upon or with respect to any
assets of the Company or any of its Subsidiaries, or (d) violate any Legal
Requirement applicable to the Company or any of its Subsidiaries, or by which
it or its properties or assets is subject or bound.
2.4.2 Expect as set forth on Schedule 2.4.2, no authorization,
action, consent, approval or other order of, declaration to, or filing by
the Company with, any federal, state, municipal, foreign or other court or
governmental body or agency, or any other regulatory body, or any other
person or entity is required in connection with the valid and lawful
authorization, execution, delivery and performance by the Company of this
Agreement or the Stockholders Agreement or the valid and lawful consummation
by the Company of the transactions contemplated hereby or thereby, except any
filing, consent or approval that has been made or obtained.
-5-
<PAGE>
2.5. CAPITALIZATION
2.5.1 The authorized and issued capital stock of the Company and
each of its Subsidiaries is as set forth on SCHEDULE 2.5.1. SCHEDULE 2.5.1
also lists all shares of capital stock which have been reserved for issuance.
All shares of capital stock of the Company and each of its Subsidiaries
outstanding immediately prior to the Closing are duly authorized, validly
issued and fully paid and non-assessable, and were not issued in violation of
any law or the preemptive right (or similar right) of any Person, and all
such shares of capital stock of the Company and its Subsidiaries are owned
beneficially and of record by the Persons set forth on SCHEDULE 2.5.1. When
issued, sold and delivered in accordance with the terms of this Agreement,
the Shares will be duly authorized, validly issued, fully paid, nonassessable
and free and clear of all Liens of any kind created by the Company other than
as set forth in the Stockholders Agreement.
2.5.2 Except as set forth in the Amended Charter or the
Stockholders Agreement or on SCHEDULE 2.5.1 or SCHEDULE 2.5.2, there is no
warrant, right, option, conversion privilege, stock purchase plan, put, call
or other Contractual Obligation relating to the offer, issuance, purchase or
redemption, exchange, conversion, voting or transfer of any shares of capital
stock or indebtedness of the Company or any of its Subsidiaries or other
securities convertible into or exercisable or exchangeable for capital stock
or indebtedness of the Company or any of its Subsidiaries (now, in the future,
or upon the occurrence of any contingency), or that provides for any stock
appreciation or similar right. Under the Company's Second Amended and
Restated Stock Option Plan of 1996, the board of directors has authority to
grant options under which not more than an aggregate of 2,400,000 shares of
Common Stock may be issued, including options granted prior to or as of the
date hereof. Other than as set forth in the Stockholders Agreement, the
Amended Charter or SCHEDULE 2.5.2. (a) there are no existing rights with
respect to registration or sale or resale under the Securities Act of 1933,
as amended (the "SECURITIES ACT") or the securities or blue sky laws of any
state or jurisdiction, of any securities of the Company or of any Subsidiary
of the Company, (b) there are no preemptive rights (or similar rights) with
respect to the issuance or sale of the capital stock of the Company or any of
its Subsidiaries, (c) no securities issued by the Company or any of its
Subsidiaries have anti-dilution protections or contain similar provisions, and
(d) there are no restrictions on the transfer of the Company's capital stock
other than those arising from federal and state securities laws. Neither the
Company nor any of its Subsidiaries controls directly or indirectly, or has
any direct or indirect equity participation or ownership interest in, any
Person that is not a Subsidiary of the Company.
2.6. FINANCIAL STATEMENTS: FINANCIAL CONDITION. Attached as
SCHEDULE 2.6(a) are copies of the following financial statements of the
Company (the "FINANCIAL STATEMENTS"):
(a) the audited combined balance sheets for the Company and
its Subsidiaries for the years ended December 31, 1998 (the "BALANCE SHEET")
and December 31,
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<PAGE>
1997, and the related statements of income and cash flows for each of the
years then ended, including in each case the notes thereto; and
(b) the unaudited balance sheet of the Company as of
July 31, 1999 and the related statement of income and cash flows for the
seven-month period then ended (the "INTERIM FINANCIALS").
The Financial Statements have been prepared in accordance with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods indicated above. The Financial Statements present
fairly the consolidated financial condition of the Company and its
Subsidiaries at the respective dates thereof and the results of its operations
for the periods covered thereby in conformity with GAAP, except, in the case
of the Interim Financials, for the absence of notes and normal year-end
adjustments. Except as set forth in SCHEDULE 2.6(b), to the knowledge of the
Company, the Company does not have any material Liability, except for (a)
Liabilities set forth on the face of the Balance Sheet (rather than in any
notes thereto), (b) Liabilities that have arisen after the date of the
Balance Sheet in the Ordinary Course of Business of the Company and its
Subsidiaries in connection with the sale of goods and services to customers
and purchases of goods and services from suppliers, and (c) other Liabilities
that have arisen in the Ordinary Course of Business for the Company and its
Subsidiaries under the Contracts (none of which Liabilities referred to under
subsections (b) and (c) of this Section 2.6 results from, arises out of,
relates to, is in the nature of, or was caused by any breach of contract,
breach of warranty, (on infringement or violation of law). SCHEDULE 2.6(c)
sets forth a list, including dollar amounts, of all Indebtedness (in amounts
in excess of $10,000) of the Company and its Subsidiaries.
2.7. ABSENCE OF CHANGES. Since December 31, 1998, each of the
Company and its Subsidiaries has operated its business in the Ordinary Course
of Business; and, without limiting the generality of the foregoing, except as
set forth on SCHEDULE 2.7. there has not been:
(a) any Material Adverse Effect or any event or events
which individually or in the aggregate would have a Material Adverse Effect;
(b) any damage, destruction or loss (whether or not
covered by insurance) affecting the material properties of the Company or its
Subsidiaries or assets of the Company or its Subsidiaries;
(c) prior to or as of July 31, 1999, any increase in the
compensation, bonus, commissions or fee arrangement (other than fringe
benefits) payable or to become payable by the Company or its Subsidiaries to
its officers, directors, employees, consultants, agents or stockholders,
other than in the Ordinary Course of Business of the Company and its
Subsidiaries, and after July 31, 1999, any such material increase;
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(d) any sale, assignment or transfer, or any agreement to
sell, assign or transfer, any material asset, Liability, property, obligation
or right of the Company or its Subsidiaries to any Person;
(e) except as specifically set forth in the Financial
Statements or on SCHEDULE 2.23, any obligation or Liability incurred, or any
loans or advances made, by the Company to any of its Affiliates, other than
for the reimbursement of expenses in the Ordinary Course of Business of the
Company and its Subsidiaries;
(f) any purchase or acquisition of, or agreement, plan or
arrangement to purchase or acquire, any material property, rights or assets
other than in the Ordinary Course of Business of the Company and its
Subsidiaries;
(g) any assignment, lease or other transfer or disposition, or
any other agreement or arrangement therefor by the Company or its Subsidiaries
of any property or equipment having a value in excess of $50,000;
(h) any capital expenditure (or series of related expenditures)
by the Company or its Subsidiaries involving more than $50,000;
(i) any waiver of any material rights or claims of the Company
or any of its Subsidiaries;
(j) any written or enforceable oral agreement or commitment by
the Company or any of its Subsidiaries to do any of the foregoing or any
transaction by the Company or any of its Subsidiaries outside the Ordinary
Course of Business of the Company and its Subsidiaries;
(k) any Lien upon or adversely affecting any material property
or other assets of the Company; or
(l) any dividend or distribution of any kind in respect of the
capital stock of the Company.
2.8. TITLE TO PROPERTIES. Each of the Company and its Subsidiaries has
good and marketable title to, or, in the case of property held under lease or
other Contractual Obligation, a valid or enforceable right to use all of its
properties, whether real or personal and whether tangible or intangible
(collectively, the "ASSETS"), free and clear of all Liens, except as have not
had and would not have, individually or in the aggregate, a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries owns, nor has it ever
owned, real property. The Assets constitute all properties, rights and assets
necessary for the conduct of business of the Company as currently conducted,
although additional Assets will be necessary for the conduct of the business of
the Company as proposed to be conducted. Neither the Company
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nor any of its Subsidiaries is in default under any lease of real or personal
property to which the Company or its Subsidiaries is a party, nor to the
knowledge of the Company is any other party to any such lease in default
thereunder, which default has had or would have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries has knowledge of any
circumstances that challenge the Company's or its Subsidiaries' peaceful and
undisturbed possession of the subject matter of any such lease. To the
Company's knowledge, neither the Company nor any of its Subsidiaries is in
violation of any zoning, building or safety ordinance, regulation or
requirement or other law or regulation applicable to it or to the operation
of its owned or leased tangible properties except such violations that have
not and would not have a Material Adverse Effect. Neither the Company nor any
of its Subsidiaries has received any notice of violation with which it has
not complied, in any case in which the consequences of such violation, if
asserted by the applicable regulatory authority, would have a Material
Adverse Effect. For purposes of this Section 2.8, "tangible properties"
specifically excludes patent, trademark, copyright, trade secret and other
proprietary rights.
2.9 ACCOUNTS RECEIVABLE. All accounts receivable of the Company and its
Subsidiaries reflected on the Balance Sheet and the Interim Financials arose
from the sale of products and services in the Ordinary Course of Business of the
Company and its Subsidiaries, and are valid and binding claims of the Company
and its Subsidiaries for payment for goods and sold or services rendered by it
in the Ordinary Course of Business.
2.10. INTELLECTUAL PROPERTY. Each of the Company and its Subsidiaries has
ownership of, or the right to use, all Intellectual Property used in its
business as currently conducted or presently proposed to be conducted. SCHEDULE
2.10 sets forth a list of each patent, patent application, registered trademark
and registered copyright owned or used by the Company and its Subsidiaries as
well as a list of each license or other Contractual Obligation under which the
Company and its Subsidiaries has the right to use Intellectual Property
(collectively, the "LICENSES"). Each item of Intellectual Property owned or
used by the Company and its Subsidiaries in its business immediately prior to
the Closing will be owned or available for use by the Company and its
Subsidiaries on identical terms and conditions immediately subsequent to the
Closing. Except as set forth on SCHEDULE 2.10, each of the Company and its
Subsidiaries has taken all reasonable steps necessary and desirable to maintain
and protect each item of Intellectual Property that the Company and its
Subsidiaries owns or uses. With respect to each License relating to Intellectual
Property:
(a) the License relating to Intellectual Property covering the item
is a legal, valid, binding and enforceable obligation of the Company and its
Subsidiaries, and is in full force and effect;
(b) the License will continue to be a legal, valid, binding and
enforceable obligation of the Company or such Subsidiary, and will continue to
be in full force and effect on identical terms following the consummation of the
transactions contemplated hereby;
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(c) to the Company's knowledge, no party to the License is in
breach or default, and no event has occurred that with notice or lapse of time
would constitute a breach or default or permit termination, modification, or
acceleration thereunder;
(d) with respect to each sublicense of Intellectual Property, the
representations and warranties set forth in subsections (a) through (c) above
are true and correct in all material respects with respect to the underlying
license; and
(e) neither the Company nor any of its Subsidiaries has granted
any sublicense or similar right with respect to any License relating to
Intellectual Property.
There has not been in the last two years prior to the date hereof and there is
not now pending any claim, and there is no claim overtly threatened, that the
Company or any of its Subsidiaries has or is infringing any patent,
copyright, trade secret, trademark or other proprietary right of any other
person or entity, except where it has not and would not have a Material
Adverse Effect. To the knowledge of the Company, the activities of the
employees of the Company and its Subsidiaries on behalf of the Company and
its Subsidiaries do not violate any agreements or arrangements that any such
employees of the Company or its Subsidiaries have with former employers. To
the knowledge of the Company, no other person is infringing any Intellectual
Property of the Company or its Subsidiaries. SCHEDULE 2.10 sets forth a list
of each person employed by the Company or its Subsidiaries that has executed
and delivered to the Company a confidentiality and non-compete agreement in
substantially the form attached hereto as EXHIBIT F (the "IDENTIFIED
EMPLOYEES"). To the Company's knowledge, no present or former employee has
breached any of the agreement referenced in the preceding sentence.
2.11. CONTRACTS, ETC.
2.11.1 INSURANCE. Set forth on SCHEDULE 2.11.1 is a list of all
liability (including, without limitation, public liability, products
liability and automobile liability) policies that are in effect (the
"LIABILITY POLICIES"), true and complete copies of which have been furnished
to the Purchasers, and all outstanding liability claims thereunder. Since
January 1, 1999, there have been no liability claims made against the Company
or its Subsidiaries or, to the knowledge of the Company, any occurrence that
would reasonably be expected to give rise to any such claim against the
Company or its Subsidiaries, except claims made for workers' compensation
that, to the knowledge of the Company, are not expected to exceed workers'
compensation coverage maintained by the Company or its Subsidiaries.
Statutory workers' compensation has been maintained on all employees of the
Company and its Subsidiaries and all such policies currently in effect were
written by insurers with a rating of A or higher by A.M. Best Company, Inc.
The premiums for all Liability Policies and workers' compensations policies
have been fully paid to the extent due. Set forth on SCHEDULE 2.11.1 is a
list of all insurance policies of the Company and its Subsidiaries currently
in effect other than the Liability Policies and the workers' compensation
policies (together with the Liability
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(c) to the Company's knowledge, no party to the License
is in breach or default, and no event has occurred that with notice or lapse
of time would constitute a breach or default or permit termination,
modification, or acceleration thereunder;
(d) with respect to each sublicense of Intellectual
Property, the representations and warranties set forth in subsections (a)
through (c) above are true and correct in all material respects with respect
to the underlying license; and
(e) neither the Company nor any of its Subsidiaries has
granted any sublicense or similar right with respect to any License relating
to Intellectual Property.
There has not been in the last two years prior to the date hereof and there
is not now pending any claim, and there is no claim overly threatened, that
the Company or any of its Subsidiaries has or is infringing any patent,
copyright, trade secret, trademark or other proprietary right of any other
person or entity, except where it has not and would not have a Material
Adverse Effect. To the knowledge of the Company, the activities of the
employees of the Company and its Subsidiaries on behalf of the Company and
its Subsidiaries do not violate any agreements or arrangements that any such
employees of the Company or its Subsidiaries have with former employers. To
the knowledge of the Company, no other person is infringing any Intellectual
Property of the Company or its Subsidiaries. SCHEDULE 2.10 sets forth a list
of each person employed by the Company or its Subsidiaries that has executed
and delivered to the Company a confidentiality and non-compete agreement in
substantially the form attached hereto as EXHIBIT F (the "IDENTIFIED
EMPLOYEES"). To the Company's knowledge, no present or former employee has
breached any of the agreements referenced in the preceding sentence.
2.11. CONTRACTS, ETC.
2.11.1 INSURANCE. Set forth on SCHEDULE 2.11.1 is a list of all
liability (including, without limitation, public liability, products
liability and automobile liability) policies that are in effect (the
"LIABILITY POLICIES"), true and complete copies of which have been furnished
to the Purchasers, and all outstanding liability claims thereunder. Since
January 1, 1999, there have been no liability claims made against the Company
or its Subsidiaries or, to the knowledge of the Company, any occurrence
that would reasonably be expected to give rise to any such claim against the
Company or its Subsidiaries, except claims made for workers' compensation
that, to the knowledge of the Company, are not expected to exceed workers'
compensation coverage maintained by the Company or its Subsidiaries.
Statutory workers' compensation has been maintained on all employes of the
Company and its Subsidiaries and all such policies currently in effect were
written by insurers with a rating of A or higher by A.M. Best Company, Inc.
The premiums for all Liability Policies and workers' compensation policies
have been fully paid to the extend due. Set forth on SCHEDULE 2.11.1 is a
list of all insurance policies of the Company and its Subsidiaries currently
in effect other than the Liability Policies and the workers' compensation
policies (together with the Liability
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Policies and the worker's compensation policies, the "INSURANCE POLICIES"),
summaries of which have been furnished to the Purchasers.
2.11.2 CERTAIN CONTRACTUAL OBLIGATIONS. Set forth on SCHEDULE
2.11.2 hereto is a true and complete list of all of the following Contractual
Obligations and, to the extent noted below, Informal Arrangements of the
Company or its Subsidiaries:
(a) All collective bargaining agreements and other labor
agreements, all employment agreements (other than non-binding offer
letters) or consulting agreements, and all other plans, agreements,
arrangements, practices or other Contractual Obligations or Informal
Arrangements (other than any Employee Plan) that constitute
compensation or benefits, including post retirement benefits, to any
of the officers or employees or former officers or employees (or any
spouse or family member of any such current or former officer or
employee) of the Company or its Subsidiaries.
(b) All Contractual Obligations or Informal Arrangements
under which the Company or its Subsidiaries is or may become
obligated to pay any legal, accounting, brokerage, finder's or
similar fees or expenses in connection with, or has incurred any
severance pay or special compensation obligations that would
become payable by reason of this Agreement or the consummation of
the transactions contemplated hereby.
(c) All Contractual Obligations (including, without
limitation, options) to sell or otherwise dispose of any assets of
the Company or its Subsidiaries having a value in excess of
$10,000, except in the Ordinary Course of Business.
(d) Other than the stock option grants set forth on
SCHEDULE 2.5.1, all Contractual Obligations or Informal Arrangements
under which the Company or its Subsidiaries has or will after the
Closing have any Liability or obligation in excess of $5,000 to or
for the benefit of any Stockholder or any Affiliate of any
Stockholder.
(e) All Contractual Obligations under which the Company or
its Subsidiaries has any Liability or obligation constituting or
giving rise to a guarantee of any Liability or obligation of any
Person, or under which any Person has any Liability or obligation
constituting or giving rise to a guarantee of any Liability or
obligation of the Company (including, without limitation,
partnership and joint venture agreements).
(f) All Contractual Obligations under which the Company or
its Subsidiaries is or may become obligated to pay any amount in
respect of
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indemnification obligations, purchase price adjustment or otherwise
in connection with any (i) acquisition or disposition of assets or
securities, (ii) merger, consolidation or other business
combination, or (iii) series or group of related transactions or
events of a type specified in subclauses (i) and (ii).
(g) All distributorship agreements, commercial agency
agreements, agreements with sales representatives and all other
Contractual Obligations and Informal Arrangements (other than such
agreements, purchase orders and sales orders entered into in the
Ordinary Course of Business) with distributors, suppliers, vendors,
or other suppliers of goods or services.
(h) All purchase obligations (whether or not in the
Ordinary Course of Business) that require minimum purchases by the
Company or its Subsidiaries.
(i) All interconnection agreements, resale agreements,
services agreements and similar Contractual Obligations and Informal
Arrangements with distributors, suppliers, vendors, or other
suppliers of goods or services, including without limitation any
preliminary drafts or forms of any such agreements that have not
yet been finalized.
(j) All standard forms of purchase orders and sales orders.
(k) All non-terminable Contractual Obligations involving
consideration to or Liabilities of the Company in excess of $10,000.
(l) All Contractual Obligations or Informal Arrangements
with customers of the Company involving consideration in excess of
$50,000 in any twelve (12) month period.
(m) All Contractual Obligations (other than purchase
orders, sales orders or operating expenses incurred in the Ordinary
Course of Business) not required to be listed on SCHEDULE 2.11.2
pursuant to clauses (a) through (l) above that individually involve
Liabilities of the Company in excess of $50,000.
The Company has heretofore delivered to the Purchasers a true and complete
copy of each of the Contractual Obligations (or narrative descriptions of
each Informal Arrangement and of each of those Contractual Obligations that are
not in writing) listed on SCHEDULE 2.11.2, each as in effect on the date
hereof, including, without limitation, all amendments thereto (the "LISTED
CONTRACTS"). The Listed Contracts, together with the Insurance Policies,
the Licenses and leases to which the Company is a party, are hereinafter
referred to as the "CONTRACTS."
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2.11.3 NATURE OF CONTRACTUAL OBLIGATIONS ETC. Each Contractual
Obligation in respect of the Listed Contracts is, and after giving effect to
the Closing hereunder and the consummation of the transactions contemplated
hereby will be, enforceable by the Company or the Subsidiary of the Company
party thereto except for such failures to be so enforceable as do not and
will not, individually or in the aggregate, have a Material Adverse Effect.
No breach or default by the Company or the Subsidiary of the Company party
thereto under any of the Contractual Obligations in respect of the Listed
Contracts has occurred and is continuing, and no event has occurred that with
notice or lapse of time would constitute such a breach or default or permit
termination, modification or acceleration by any other Person under any of
the Contractual Obligations, other than such breaches, defaults and events as
have not had and will not have, individually or in the aggregate, a Material
Adverse Effect. To the knowledge of the Company, no breach or default by any
other Person under any of the Contractual Obligations has occurred and is
continuing, and no event has occurred that with notice or lapse of time would
constitute such a breach or default or permit termination, modification or
acceleration by the Company or the Subsidiary of the Company party thereto
under any of such Contractual Obligations, other than breaches, defaults and
events that have not had and will not have, individually or in the aggregate,
a Material Adverse Effect.
2.12. LABOR MATTERS. SCHEDULE 2.12 sets forth, as of July 31, 1999, a
list of all employees of the Company and its Subsidiaries and their annual
salary and date of hire. To the knowledge of the Company, no Identified
Employee of the Company or any Subsidiary has given the Company or any
Subsidiary notice of any present intention of terminating his or her
employment therewith nor does the Company or any Subsidiary have any present
intention of terminating any such employment. Except as set forth on
SCHEDULE 2.12, neither the Company nor any of its Subsidiaries is bound by or
subject to (and none of its assets or properties is bound by or subject to)
any arrangement with any labor union. Except as set forth on SCHEDULE 2.12,
no employee of the Company or its Subsidiaries is represented by any labor
union or covered by any collective bargaining agreement nor, to the Company's
knowledge, is any campaign to establish such representation in progress.
There is no pending or, to the Company's knowledge, threatened labor dispute
of any kind involving the Company and any group of employees, and the Company
has not experienced any labor interruptions over the past three years. The
Company and each Subsidiary has complied in all material respects with all
applicable federal, state and local laws and regulations respecting
employment and employment practices, terms and conditions of employment,
wages and hours and other laws related to employment, and there are no
arrears in the payments of wages, withholding, unemployment insurance
premiums or other similar obligations.
2.13. EMPLOYEE BENEFIT PLANS. SCHEDULE 2.13 sets forth all Employee
Plans to which the Company contributes or is obligated to contribute, or
under which the Company or any of its Subsidiaries has or may have any
liability for premiums or benefits, or which benefits any employee, former
employee, director or independent contractor of the Company or any dependent
or beneficiary of such individual (a "COMPANY PLAN"). For purposes of this
Agreement, the term "EMPLOYEE PLAN" means any plan, program, agreement,
policy or
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arrangement, whether or not reduced to writing and whether covering a single
individual or a group of individuals, that provides for material fringe
benefits beyond regular cash salary or wages (including, without limitation,
each "employee benefit plan" within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974 as amended ("ERISA")). With
respect to each Company Plan, the Company has provided to the Purchasers
accurate, current and complete copies of each of the following: (a) where the
plan has been reduced to writing, the plan document together with all
amendments; (b) where the plan has not been reduced to writing, a written
summary of all material plan terms; (c) trust agreements, insurance policies,
administration agreements or similar agreements (if applicable); (d) summary
plan descriptions, employee handbooks or similar employee communications; (e)
the most recent determination letter from the Internal Revenue Service ("IRS")
(if applicable); (f) a copy of the two (2) most recently filed Forms 5500,
with schedules attached (if applicable); and (g) any notices, letters or
other correspondence from the IRS or the United States Department of Labor
("DOL") relating to the plan.
2.13.1 PLAN QUALIFICATION: PLAN ADMINISTRATION. Each
Company Plan that is intended to be qualified under Section 401(a) of the
Code is so qualified. Each Company Plan has been administered in accordance
with its terms and with applicable Legal Requirements, including, without
limitation, ERISA and the Code, except where the failure to do so has not and
would not have a Material Adverse Effect. All contributions required by law
or by the terms of each such Company Plan to have been made to any fund or
trust established thereunder or in connection therewith have been made by the
due date thereof and there are no unfunded liabilities of the Company or any
Subsidiary or any other deficiency with respect to any Company Plan.
2.13.2 TITLE IV OF ERISA, ETC. No Employee Plan that is
maintained by the Company or by any entity that is considered to be a single
employer with the Company under Sections 414(b) or 414(c) of the Code (a
"RELATED ENTITY") is or ever has been subject to Title IV of ERISA. No
Company Plan or Employee Plan maintained by a Related Entity is a
multi-employer plan, nor does the Company or a Related Entity have any
contingent liability with respect to such plan.
2.13.3 CLAIMS. There are no pending, or to the knowledge of
the Company, threatened lawsuits, claims or other controversies relating to a
Company Plan, other than claims for routine benefits in the normal course.
No Company Plan is the subject of an audit or examination by a government
agency or the subject of a filing or application under a government-sponsored
voluntary compliance, amnesty or similar program.
2.13.4 RETIREE BENEFITS: CERTAIN WELFARE PLANS. Other than as
required under Section 601 et seq. of ERISA, no Company Plan that is a
Welfare Plan (within the meaning of Section 3(1) or ERISA) provides benefits
or coverage following retirement or other termination of employment. Nothing
has occurred with respect to any Employee Plan described in Section 4980B of
the Code that could subject the Company to a tax under Section 4980B of the
Code.
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2.14. CUSTOMERS AND SUPPLIERS. Except as set forth on SCHEDULE 2.14,
since December 31, 1998, (a) no significant customer (or group of customers
that in the aggregate is significant) of the Company or its Subsidiaries has
given the Company or its Subsidiaries overt notice or, to the knowledge of
the Company, has taken any other action that has given the Company or its
Subsidiaries any significant reason to believe that such customer (or group
of customers) will cease to purchase products or services or reduce
significantly the amount of products and services purchased from the Company
or its Subsidiaries, and (b) no significant supplier or vendor (or group of
suppliers or vendors that in the aggregate is significant) of the Company or
its Subsidiaries has given the Company or its Subsidiaries notice or, to the
knowledge of the Company, has taken any other action that has given the
Company or its Subsidiaries any reason to believe that such supplier or
vendor (or group of suppliers or vendors) will cease to supply, restrict the
amount supplied, or adversely change its price or terms to the Company or its
Subsidiaries, of any products or services.
2.15. LITIGATION. No judgment, decree or order of any governmental
authority or any arbitrator has been issued against the Company or any of its
Subsidiaries, or, to the knowledge of the Company, any other Person that has
had, or would have, a Material Adverse Effect. Except as set forth on Schedule
2.15, there is no Action or, to the knowledge of the Company, investigation
pending against the Company or any of its Subsidiaries. Except as set forth
on Schedule 2.15, to the knowledge of the Company, there is no such Action or
investigation that is threatened against the Company or any of its
Subsidiaries, or that is pending or threatened affecting the Company or any
of its Subsidiaries or any of its properties or assets, or that is pending or
threatened against any officer or key employee of the Company or any of its
Subsidiaries, or that is pending or threatened and has a reasonable
possibility of calling into question the validity, or materially hindering
the enforceability or performance of this Agreement, any other document or
instrument to be delivered pursuant to this Agreement, or any action taken or
to be taken pursuant hereto.
2.16 CONFORMITY WITH LAW; PERMITS. Neither the Company nor any of its
Subsidiaries is in default under any applicable Legal Requirement, except
where such default has not had, and would not have, a Material Adverse
Effect. There exists no condition, event or act which after notice, lapse of
time, or both, could constitute such a default by the Company or any
Subsidiary. Each of the Company and its Subsidiaries has conducted and is
conducting its business in compliance with all applicable Legal Requirements
and is not in violation of any of the foregoing, except where such
non-compliance or violation has not had, and would not have, a Material
Adverse Effect. The Company and each of the Subsidiaries has all franchises,
permits, licenses, consents, concessions, variances, exemptions, orders and
other authorizations of governmental, regulatory or administrative agencies
or authorities, whether foreign, federal, state or local, including without
limitation all permits, licenses, authorizations or approvals from the
Federal Communications Commission and any state public utilities commissions
or agencies (collectively, "PERMITS"), required to own and lease its
properties and assets and to conduct its business as now conducted, including
without
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limitation to provide local, local access and intrastate long distance
service, except where failure to have such Permits would not have a Material
Adverse Effect. All Permits related to the telecommunications business in
effect on the date hereof are described on SCHEDULE 2.16. The Company and
each of the Subsidiaries is in compliance with the terms of the Permits,
except to the extent that the failure to be in compliance would not have a
Material Adverse Effect, and no revocation, limitation or non-renewal of any
Permit is pending or threatened, except to the extent that the failure to
renew would not have a Material Adverse Effect. No event has occurred, and
there is no event or transaction contemplated by this Agreement, which (i)
could result in the Company or any of its Subsidiaries being found unqualified
to hold, or which permits, or after notice or lapse of time would permit,
the revocation or termination of any of the Permits or the denial of an
application for the renewal thereof, or (ii) would result in any impairment
of the rights of the Company or any such Subsidiary as holder of any such
Permits, except where such failure to hold, revocation, termination, denial
of renewal or impairment would not have a Material Adverse Effect on the
Company or such Subsidiary. The Company and its Subsidiaries are registered
as competitive local exchange carriers in each state or jurisdiction in which
such registration is required in order for the Company and its Subsidiaries to
own and lease its properties and assets and to conduct its business as now
conducted, including without limitation to provide local, local access and
intrastate long distance service, and have filed or will file applications to
register as such in each state or jurisdiction where such registration is
required for the Company and its Subsidiaries to conduct its business as
presently proposed to be conducted. A Regulatory Event will not occur solely
by reason of the consummation of the transactions contemplated by this
Agreement.
2.17 ENVIRONMENTAL MATTERS. Each of the Company and its Subsidiaries
has conducted and is conducting its business in compliance with all applicable
Environmental Laws except to the extent that the failure to be in compliance
would not have a Material Adverse Effect. There are at the date hereof no
pending or, to the knowledge of the Company, threatened actions or proceedings
against the Company or any of its Subsidiaries by any governmental authority
or other third party relating, directly or indirectly, to the release of
Hazardous Materials on, at or migrating to or from any property presently
owned, occupied or operated by the Company or any of its Subsidiaries or
relating to any violation by the Company or any of its Subsidiaries of any
Environmental Laws. All environmental notices, permits or similar
authorizations, if any, required to be obtained or filed by the Company and
its Subsidiaries including, without limitation, those addressing treatment,
storage, disposal or release of Hazardous Materials or solid waste into the
environment, have been duly obtained or filed and are in full force and effect,
except where the failure to obtain or file such notices, permits or similar
authorizations has not and would not have a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries has any material obligations or
Liabilities, whether absolute, contingent or otherwise and whether due or to
become due, with respect to the clean-up of the presence or release of
Hazardous Materials into the environment, and to the knowledge of the Company,
there are no underground storage tanks located on any property presently or
formerly owned, operated or occupied by the Company or it Subsidiaries.
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2.18 TAXES
2.18.1 SCHEDULE 2.18.1 lists all federal, state, local and
foreign income Tax Returns filed with respect to the Company and its
Subsidiaries for taxable periods ended on or after December 31, 1995,
indicates those Tax Returns that have been audited and indicates those Tax
Returns that currently are the subject of audit. The Company has delivered
to the Purchasers correct and complete copies of all federal, state and local
income Tax Returns, examination reports, and statements of deficiencies
assessed against or agreed to by the Company or its Subsidiaries for taxable
periods ended on or after December 31, 1995. Other than as disclosed in
SCHEDULE 2.18.1 (a) all Tax Returns required to be filed by the Company and
its Subsidiaries have been filed by or on behalf of it and all such Tax
Returns were correct and complete in all material respects, (b) each of the
Company and its Subsidiaries has paid all Taxes (whether or not shown on any
Tax Return) in respect of all periods ending on or prior to July 31, 1999 (c)
no Tax Return referred to in clause (a) has been the subject of examination by
the IRS or the appropriate state, local or foreign taxing authority, of which
written notice was received by the Company or its Subsidiaries, (d) no
deficiencies have been asserted or assessments made as a result of any
examinations of the Tax Returns referred to in clause (a) by the IRS or the
appropriate state, local or foreign taxing authority, (e) no action, suit,
proceeding, audit, claim, deficiency or assessment is pending (or, to the
knowledge of the Company, threatened) with respect to any Taxes of the
Company or its Subsidiaries, (f) each of the Company and its Subsidiaries has
withheld from its employees, customers, and other payees (and timely paid to
the appropriate governmental authority) all amounts required by the Tax
withholding provisions of applicable federal, state, local, and foreign laws
(including, without limitation, income, social security, and employment Tax
withholding for all types of compensation, sales and use Taxes and
withholding on payments to non-United States persons) for all periods, (g)
there has not been filed a consent under Code section 341(f) concerning
collapsible corporations with respect to the Company or its Subsidiaries, (h)
neither the Company nor any of its Subsidiaries has made any payment, nor is
obligated to make any payment, or is a party to any agreement that could
obligate it to make any payment that will not be deductible under Code
section 280G or will be subject to the excise tax of Code section 4999, (i) no
claim has ever been made by any authority in a jurisdiction where the Company
or its Subsidiaries does not file Tax Returns that it is or may be subject to
tax by that jurisdiction, of which written notice was received by the Company or
its Subsidiaries, (j) there are no other Taxes that would be due if asserted by
a taxing authority, except with respect to which the Company or its Subsidiaries
is maintaining adequate reserves to the extent currently required, (k) there are
no Liens in respect of Taxes on any assets of the Company or any of its
Subsidiaries other than for Taxes not yet due and payable, (l) neither the
Company nor any of its Subsidiaries has granted any waiver of any statute of
limitations with respect to, or any extension of a period for the assessment of,
any Tax, (m) neither the Company nor any of its Subsidiaries has any Liability
for the Taxes of any other person as a result of Treasury Regulation Section
1.1502-6 or otherwise, and (n) neither the Company nor any of its Subsidiaries
is a party to any Tax sharing or allocation agreement.
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2.18.2 Neither the Company nor any of its Subsidiaries has been a
United States real property holding corporation (as defined in Section
897(c)(2) of the Code) during the applicable period specified in Section
897(c)(1)(A)(ii) of the Code. Neither the Company nor any of its Subsidiaries
owns any property of a character, the possible indirect transfer of which as a
result of the transactions contemplated by this Agreement, would give rise to
any material documentary, stamp or other transfer Tax.
2.19. YEAR 2000. Except to the extent that the failure to be Year 2000
compliant would not have a Material Adverse Effect, all computer programs
(source code and/or object code), firmware or hardware used by the Company
and its Subsidiaries in the conduct of its business as presently conducted
and as proposed to be conducted, including without limitation the SciCom and
Titan information systems, are Year 2000 compliant in that they: (i)
consistently handle date information before, during and after January 1,
2000, including but not limited to accepting date input, providing date
output, and performing calculations on dates or portions of dates: (ii)
function accurately in accordance with all applicable specifications and
documentation and without interruption before, during and after January 1,
2000, without any change in operations associated with the advent of the new
century; (iii) respond to two-digit date input in a way that resolves any
ambiguity as to century in a disclosed, defined and predetermined manner;
(iv) store and provide output of date information in ways that are
unambiguous as to century, and (v) yield data that is compatible with both
Year 2000 compliant and non-Year 2000 compliant computer programs, firmware
and hardware.
2.20. BOOKS AND RECORDS. The minute books of the Company and of each
of the Subsidiaries contain, in all material respects, true, complete and
accurate records of all meetings and other corporate actions of each of their
respective stockholders, partners, members, board of directors and all
committees, if any, appointed by its board of directors in each case, since
the later of (x) the formation of the Company or such Subsidiary or (y)
January 1, 1995. The stock ledger or stock record book of the Company and of
each of the Subsidiaries are true, complete and accurate and reflect all
issuances, transfers, repurchases and cancellations of shares of capital
stock and of each of the Company and the Subsidiaries of which the Company
has been notified. Copies of the minute books and the stock ledgers or stock
record books of the Company and each Subsidiary have been delivered to the
Purchasers. The books of account, ledgers, order books, records and
documents of the Company and those of each of the Subsidiaries accurately and
completely reflect in all material respects all material information relating
to their respective businesses, the nature, acquisition, maintenance,
location and collection of their respective assets and the nature of all
transactions giving rise to their respective obligations and accounts
receivable.
2.21. GOVERNMENTAL REGULATIONS. Neither the Company nor any of its
Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company" or an "affiliate" of a "holding company," as such terms are defined
in the Public Utility Holding Company Act of 1935, as amended, nor is the
Company or any of its Subsidiaries an "investment company," or
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an "affiliated person" or a "principal underwriter" of an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended. Neither the Company nor any of its Subsidiaries is now, nor has it
been within the past five years, a "United States real property holding
corporation" as defined in Section 897 of the Internal Revenue Code of 1986,
as amended.
2.22. BROKERS AND FINDERS. Except as set forth on SCHEDULE 2.22,
neither the Company nor any of its Subsidiaries nor any officer, director, or
employee of the Company or any of its Subsidiaries has incurred any
Liabilities for any financial advisory fees, brokerage fees, commissions or
finder's fees in connection with this Agreement or any of the transactions
contemplated hereby.
2.23. AFFILIATE TRANSACTIONS. Other than the stock option grants set
forth on SCHEDULE 2.5.1 and the employment agreements set forth on SCHEDULE
2.11.2 and except as set forth in SCHEDULE 2.23, neither the Company nor any
of its Subsidiaries is a party to or bound by any Contractual Obligation or
Informal Arrangement with, and does not have any obligation owing from or to,
any of the stockholders, directors, officers or employees of the Company or
its Subsidiaries or any of their Affiliates, which Contractual Obligation or
Informal Arrangement involves consideration in excess of $5,000. All
transactions between each of the Company and its Subsidiaries and any of its
Affiliates that occurred during the periods covered by the Financial
Statements are reflected in the Financial Statements.
2.24. CERTAIN CONTRACTS. To the knowledge of the Company, neither the
Company nor any of its Subsidiaries is currently a party to any covenant
limiting in any material respect the ability of the Company to engage in the
business of providing telecommunications services or compete in such business
with any person in any area of the world.
2.25. NO ILLEGAL PAYMENTS, ETC. Neither the Company or its
Subsidiaries, nor any of their directors, officers, employees or agents, has
(a) directly, or indirectly given or agreed to give any illegal gift,
contribution, payment or similar benefit to any supplier, customer, governmental
official or employee or other person who was, is or may be in a position to help
or hinder the Company or any of its Subsidiaries (or assist in connection with
any actual or proposed transaction) or made or agreed to make any illegal
contribution, or reimbursed any illegal political gift or contribution made by
any other person, to any candidate for federal, state, local or foreign
public office (i) which might subject any of the Company and its Subsidiaries
to any damage or penalty in any civil, criminal or governmental litigation or
proceeding or (ii) the non-continuation of which has had or might have,
individually or in the aggregate, a Material Adverse Effect or (b)
intentionally established or maintained any unrecorded fund or asset or made
any false entries on any books or records for any purpose.
2.26. PURCHASE AND SALE AGREEMENTS. There have not been and are not any
claims made by or against the Company under any agreements relating to
acquisitions or dispositions of the Company's assets, mergers or other
material transactions (the "PURCHASE AND SALE
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AGREEMENTS"). Except as set forth on SCHEDULE 2.26, there are no additional
payments, whether in cash or equity of the Company, owing the Company or its
Subsidiaries to any party under the Purchase and Sale Agreements. SCHEDULE
2.26 sets forth the maximum number of shares of the Company's capital stock
due or to become due to any party to the Purchase and Sale Agreements.
2.27. AVAILABILITY INCREASE DATE. As of the Initial Closing, the
"Availability Increase Date" as defined in the Loan and Security Agreement dated
July 16, 1999 by and among the Company, General Electric Capital Corporation and
the other parties thereto (the "GECC LOAN AGREEMENT") shall have occurred.
2.28. POWERS OF ATTORNEY. There are no outstanding powers of attorney
executed on behalf of the Company in respect of the Company, its assets,
Liabilities or business.
2.29. DISCLOSURE. This Agreement, the schedules attached hereto and
furnished contemporaneously herewith, the Stockholders Agreement and each
other agreement, document, certificate or written statement, including
without limitation the Private Placement Memorandum dated May 27, 1999,
previously furnished or to be furnished to the Purchasers through any Closing
Date by or on behalf of the Company or any Subsidiary in connection with the
transactions contemplated hereby, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements contained therein or herein in light of the circumstances
in which they were made not misleading.
SECTION 3. REPRESENTATION AND WARRANTIES OF PURCHASERS
In order to induce the Company to enter into and perform this Agreement
and to consummate the transactions contemplated hereby, each Purchaser
hereby severally represents and warrants (solely as to itself) to the Company
that:
3.1. ORGANIZATION AND STANDING. Each Purchaser is a corporation or
other entity duly organized and validly existing, and has the power and
authority to execute and deliver this Agreement and all other documents,
certificates and instruments contemplated hereby, and to carry out
transactions contemplated hereby and thereby.
3.2. NONCONTRAVENTION. The execution, delivery and performance by each
Purchaser of this Agreement and all other documents, certificates and
instruments contemplated hereby, the fulfillment of and compliance with the
respective terms and provisions hereof and thereof, and the consummation by
each Purchaser of the transactions contemplated hereby and thereby do not
and will not conflict with, or violate any provision of, any legal
requirement having applicability to such Purchaser.
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3.3. CONSENTS AND APPROVALS. No consent, approval, authorization or
determination of, or declaration, filing or registration with, or other
action by, any governmental entity or any other person is required to be made
or sought by a Purchaser in connection with the execution, delivery and
performance of this Agreement or any other document, certificate or
instrument executed or delivered pursuant to this Agreement, and the
consummation by such Purchaser of the transactions contemplated hereby and
thereby.
3.4. BROKER. Each Purchaser represents that it has no contract,
arrangement or understanding with any broker, finder or similar agent with
respect to the transactions contemplated by this Agreement.
3.5. AUTHORIZATION. The execution, delivery and performance of this
Agreement, the Stockholders Agreement and the documents and instruments
executed pursuant hereto have been duly authorized by all necessary action on
the part of such Purchaser, and this Agreement and each other document and
instrument which it is required to deliver hereunder constitutes the valid,
legal and binding obligation of such Purchaser, enforceable in accordance
with its terms.
3.6. ACCREDITED INVESTORS. Such Purchaser is an "accredited investor"
as such term is defined under Rule 501 under the Securities Act. The
Purchaser's investment decisions are made by persons having such knowledge
and experience in business and financial matters as to be capable of
evaluating the merits and risk of the investment contemplated hereby.
3.7. OWN ACCOUNT. The Purchaser is acquiring the Securities for its own
account, for investment, and not with a view to any "distribution" thereof
within the meaning of the Securities Act.
3.8. TRANSFER RESTRICTIONS. Such Purchaser understands that the Company
may, as a condition to the transfer of any of the Securities, require that the
request for transfer be accompanied by an opinion of counsel, in form and
substance satisfactory to the Company, to the effect that the proposed
transfer does not result in violation of the Securities Act, unless such
transfer is covered by an effective registration statement under the
Securities Act or by Rule 144(k) of the Securities Act. Such Purchaser
understands that each certificate representing the Securities will bear the
following legend or one substantially similar thereto:
The securities represented by this certificate were issued in a
private placement, without registration under the Securities Act of
1933, as amended (the "Act"), and may not be sold, assigned,
pledged or otherwise transferred in the absence of an effective
registration under the Act covering the transfer or an opinion of
counsel, satisfactory to the issuer, that registration under the
Act is not required.
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3.9. PRIVATE PLACEMENT. Such Purchaser has been advised that the
Securities have not been and are not being registered under the Securities
Act, and that the Company in issuing the Securities is relying upon, among
other things, the representations and warranties of each Purchaser contained
in this Section 3 in concluding that the offer and sale of the Securities
shall be exempt from the provisions of Section 5 of the Securities Act.
SECTION 4. CONDITIONS TO THE CLOSINGS.
4.1. INITIAL CLOSING. The obligations of each of the Purchasers under
Section 1 of this Agreement to purchase Shares at the Initial Closing is
subject to the fulfillment on or before the Initial Closing of each of the
following conditions unless waived in accordance with Section 8.1:
4.1.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2, shall be true and correct
in all material respects on and as of the date of the Initial Closing with
the same effect as though such representations and warranties had been made
on and as of the date of the Initial Closing and the Purchasers shall have
received a certificate of the Chief Executive Officer or Chief Financial
Officer of the Company to that effect.
4.1.2 PERFORMANCE. The Company shall have performed and complied
with all agreements, obligations, and conditions contained in this Agreement
that are required to be performed or complied with by it on or before the
Initial Closing.
4.1.3 FILING OF AMENDED CHARTER. The Company shall have filed
with the Secretary of State of Delaware the Amended Charter in the form
attached hereto As EXHIBIT B and the Amended Charter shall have become
effective.
4.1.4 QUALIFICATIONS. All authorizations, approvals, or permits,
if any, of any governmental authority or regulatory body of the United States
or of any state that are required in connection with the lawful issuance and
sale of the Shares to the Purchasers or the execution, delivery and
performance by the Company of this Agreement and the Stockholders Agreement
shall have been duly obtained and shall be effective on and as of the Initial
Closing.
4.1.5 STOCKHOLDERS AGREEMENTS. An Amended and Restated
Stockholders Agreement in the form attached hereto as EXHIBIT E (the
"STOCKHOLDERS AGREEMENT") shall have each been executed and delivered by the
parties thereto (other than the Purchasers in their capacity as such), no
such party shall be in breach or default thereof and the Stockholders
Agreement shall be in full force and effect as of the Initial Closing.
4.1.6 CONFIDENTIALITY AND NON-COMPETE AGREEMENTS. The Identified
Employees shall have executed a Confidentiality and Non-Compete Agreement in
the form attached hereto as EXHIBIT F.
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4.1.7 OPINION OF COMPANY COUNSEL. The Purchasers shall have
received from Piper & Marbury L.L.P., counsel for the Company, an opinion in
substantially the form attached hereto as EXHIBIT G.
4.1.8 SECRETARY'S CERTIFICATE. The Secretary of the Company shall
have delivered to the Purchasers at the Initial Closing a Certificate, dated
as of the Initial Closing, certifying: (a) that attached thereto is a true
and complete copy of the by-laws of the Company as in effect on the date of
such certification; (b) that attached thereto is a true and complete copy of
all resolutions adopted by the board of directors of the Company authorizing
the execution, delivery and performance of this Agreement and the
Stockholders Agreement and the issuance, sale and delivery of the Shares, and
that all such resolutions are in full force and effect and are all the
resolutions adopted in connection with the transactions contemplated by this
Agreement and the Stockholders Agreement; (c) that attached thereto is a true
and complete copy of the charter of the Company as amended by the Amended
Charter and (d) to the incumbency and specimen signature of certain officers
of the Company.
4.1.9 THIRD PARTY CONSENTS. The Company and each Subsidiary shall
have received all required third party consents necessary to the consummation
of the transactions contemplated by this Agreement.
4.1.10 EXCHANGE OF NOTES. Each holder of the Company's Series A
8% Convertible Subordinated Promissory Notes ("SERIES A NOTES") and each
holder of the Company's Series B 8% Convertible Subordinated Promissory Notes
("SERIES B NOTES" and together with the Series A Notes, the "NOTES") shall
have either (a) exchanged such holder's Notes for shares of the Company's
Series B Preferred Stock, (b) been paid in full by the Company for the
principal and accrued interest of such holder's Notes, or (c) waived any and
all of such holder's rights under the Note Purchase Agreement dated February
7, 1997, as amended, relating to the Series A Notes and the Note Purchase
Agreement dated as of August 15, 1997 relating to the Series B Notes
(collectively, the "NOTE PURCHASE AGREEMENTS") and consented to the amendment
of each Note Purchase Agreement to delete Articles 6 and 7, and Section 9.8
thereof.
4.1.11 STOCK AND STOCK OPTION REPURCHASE AGREEMENT. The Stock and
Stock Option Repurchase Agreement in the form attached hereto as EXHIBIT H
shall have been executed and delivered by the parties thereto.
4.1.12 AMENDMENT TO GECC AGREEMENTS. A Consent and Amendment No.
1 to Loan and Security Agreement in the form attached hereto as EXHIBIT I
shall have been executed and delivered by the parties thereto. An Amendment
to Stock Purchase Warrant Agreement in the form attached hereto as EXHIBIT J
shall have been executed and delivered by the parties thereto.
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4.1.13 AMENDMENT TO NORTEL AGREEMENT. An Amendment to Nortel
Master Purchase Services Agreement in the form attached hereto as EXHIBIT K
shall have been executed and delivered by the parties thereto.
4.1.14 PROCEEDINGS AND DOCUMENTS. All instruments and legal,
governmental, administrative, corporate and partnership proceedings in
connection with the transactions contemplated by this Agreement and the
Stockholders Agreement shall be reasonably satisfactory in form and substance
to the Purchasers, and the Purchasers shall have received copies of all
documents, including, without limitation, records of corporate or other
proceedings, and any consents, licenses, approvals, permits and orders
required to be secured by the Company in connection with the transactions
contemplated herein or which any Purchaser may have reasonably requested in
connection therewith.
4.2 SECOND CLOSING. The obligations of Stolberg under Section 1 of
this Agreement to purchase Shares at the Second Closing are subject to the
fulfillment on or before the Second Closing of the following condition unless
waived in accordance with Section 8.1.
4.2.1 PHASE II PLAN: BOARD DETERMINATIONS. The board of directors
of the Company shall have approved the Phase II Plan and all issuances of
Shares at the Second Closing, and determined that the financing to be
provided by the issuance and sale of Shares at such Second Closing is
necessary or desirable in connection with the funding of the business of the
Company and its Subsidiaries.
4.3 SUBSEQUENT CLOSINGS. The obligations of each of the Bain
Purchasers under Section 1 of this Agreement to purchase Shares at each
Subsequent Closing are subject to the fulfillment on or before each
Subsequent Closing of each of the following conditions unless waived in
accordance with Section 8.1:
4.3.1 REPRESENTATIVES AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects on and as of the date of each Subsequent Closing with
the same effect as though such representations and warranties had been made
on and as of the date of such Subsequent Closing and the Bain Purchasers
shall have received a certificate of the Chief Executive Officer or Chief
Operating Officer of the Company to that effect.
4.3.2 PERFORMANCE. The Company shall have performed and complied
with all agreements, obligations, and conditions contained in this Agreement
and the Stockholders Agreement that are required to be performed or complied
with by it on or before such Subsequent Closing.
4.3.3 BOARD DETERMINATIONS. The board of directors of the Company
shall have approved all issuances of Shares at such Subsequent Closing and
determined that the financing to be provided by the issuance and sale of
Shares at such Subsequent Closing is
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necessary or desirable in connection with the funding of the business of the
Company and its Subsidiaries.
4.3.4 CONTINUED FULFILLMENT, ETC. The conditions set forth
in Sections 4.1.4, 4.1.5 and 4.1.6 shall continue to have been fulfilled at
each such Subsequent Closing. There shall have been no change in the facts
certified by the Secretary of the Company in the certificate delivered
pursuant to Section 4.1.8 and the Bain Purchasers shall have received a
certificate of the Secretary of the Company to that effect.
4.3.5 QUALIFICATIONS. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body of the
United States or of any state that are required in connection with the lawful
issuance and sale of Shares to the Bain Purchasers or the execution, delivery
and performance by the Company of this Agreement and the Stockholders
Agreement shall have been duly obtained and shall be effective on and as of
each Subsequent Closing, other than those which are not required to be
obtained before each Subsequent Closing.
4.3.6 OPINION OF COMPANY COUNSEL. The Purchasers shall
have received from Piper & Marbury L.L.P., counsel for the Company, an
opinion substantially in the form (other than paragraph 3) attached hereto
as EXHIBIT G.
4.3.7 THIRD PARTY CONSENTS. The Company and each
Subsidiary shall have received all required third party consents necessary to
the consummation of the transactions contemplated by this Agreement.
4.3.8 PROCEEDINGS AND DOCUMENTS. All instruments and
legal, governmental, administrative, corporate and partnership proceedings in
connection with the issuance of Shares, this Agreement and the Stockholders
Agreement shall be reasonably satisfactory in form and substance to the Bain
Purchasers, and the Bain Purchasers shall have received copies of all
documents, including, without limitation, records of corporate or other
proceedings, and any consents, licenses, approvals, permits and orders
required to be secured by the Company in connection with the issuance of
Shares, this Agreement and the Stockholders Agreement or which any Purchaser
may have reasonably requested in connection therewith.
4.4 CONDITIONS OF THE COMPANY'S OBLIGATIONS AT EACH
CLOSING. The obligations of the Company to each Purchaser under this
Agreement are subject to the fulfillment on or before each Closing of each of
the following conditions, the waiver of which shall not be effective unless
consented to in writing by the Company.
4.4.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of each Purchaser contained in Section 3 shall be true and
correct in all respects on and as of the date of each Closing with the same
force and effect as though such representations and warranties had been made
on and as of such date of such Closing.
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4.4.2 PAYMENT OF PURCHASE PRICE. The Purchasers shall have
delivered the applicable purchase price specified in Section 1.
4.4.3 STOCKHOLDERS AGREEMENT. The Company, each Purchaser
and the other parties thereto shall have entered into the Stockholders
Agreement.
SECTION 5. CERTAIN AGREEMENTS OF THE PARTIES
5.1. EXPENSES. The Company shall pay all reasonable costs and
expenses, including without limitation the $45,000 filing fee under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR FEE"),
incurred by the Purchasers with respect to the negotiation, execution,
delivery, performance of and ongoing operations and matters arising under
this Agreement, the Stockholders Agreement and any related documents and the
investments in the Company made pursuant hereto including, without
limitation, the Purchasers' reasonable legal, accounting and other
out-of-pocket fees and expenses; PROVIDED, HOWEVER, that (i) the
out-of-pocket expenses of the Bain Purchasers for out-of-pocket expenses
through the Initial Closing other than legal and accounting fees shall not
exceed $40,000, (ii) the out-of-pocket expenses of Stolberg for out-of-pocket
expenses through the Initial Closing other than legal and accounting fees
shall not exceed $40,000, and (iii) the Purchasers shall provide estimates of
all such fees and expenses to the Company approximately 72 hours prior to the
applicable Closing Date.
5.2. FINANCIAL STATEMENTS. After the Initial Closing and until such
time that the Company shall have a class of stock registered pursuant to the
provisions of the Securities Exchange Act of 1934, the Company and its
Subsidiaries will maintain an adequate system of internal accounting
controls, keep full and complete financial records, and furnish to the
Purchasers (a) within 90 days after the end of each fiscal year, a copy of
the consolidated balance sheet of the Company and its Subsidiaries as of the
end of such year, together with a consolidated statement of income and cash
flows of the Company and its Subsidiaries for such year, certified by
independent public accountants of recognized national standing prepared in
accordance with GAAP consistently applied, each of the foregoing balance
sheets and statements to set forth in comparative form the corresponding
figures for the prior fiscal year and the Budget, (b) within 45 days after
the end of the first three quarters of each fiscal year, a copy of the
consolidated balance sheet of the Company and its Subsidiaries as of the end
of such quarter, and statements of the consolidated income and cash flows of
the Company and its Subsidiaries for the fiscal quarter and for the portion
of the fiscal year ending on the last day of such quarter, each of the
foregoing balance sheets and statements to set forth in comparative form the
corresponding figures for the same period of the prior fiscal year and the
Budget, to be in reasonable detail (PROVIDED, HOWEVER, such interim financial
statements need not contain all footnotes required under GAAP) and to be
certified, subject to normal year-end audit adjustments, by the Chief Financial
Officer of the Company that they have been prepared in accordance with GAAP
consistently applied, except for footnotes and normal year end
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adjustment, and fairly present the consolidated financial position of the
Company and its Subsidiaries as of the date thereof and the results of their
operations for the periods covered thereby, (c) within 45 days after the end of
each month that is not the end of a fiscal quarter, a copy of the
consolidated balance sheet of the Company and its Subsidiaries as of the end
of such month, and statements of the consolidated income and cash flows of
the Company and its Subsidiaries for the month and for the portion of the
fiscal year ending on the last day of such month, each of the foregoing
balance sheets and statements to set forth in comparative form the
corresponding figures for the same month of the prior fiscal year and the
Budget, to be in reasonable detail (PROVIDED, HOWEVER, such interim financial
statements need not contain all footnotes required under GAAP) and to be
certified, subject to normal year-end audit adjustments, by the Chief
Financial Officer of the Company that they have been prepared in accordance
with GAAP consistently applied, except for footnotes and normal year end
adjustment, and fairly present the consolidated financial position of the
Company and its Subsidiaries as of the date thereof and the results of their
operations for the periods covered thereby, and (d) within twenty (20) days of
receipt by the Company or any of its Subsidiaries, any management letters
from its accountants.
5.3. BUDGET AND OPERATING FORECAST. The management of the Company and
its Subsidiaries will prepare and submit to the board of directors of the
Company a budget for each fiscal year of the Company and its Subsidiaries at
least thirty (30) days prior to the beginning of such fiscal year, together
with management's written discussion and analysis of such budget. The budget
shall be accepted as the budget for the Company and its Subsidiaries for such
fiscal year when it has been approved by at least two-thirds (66.67%) of the
full board of directors of the Company (the "BUDGET"). Management shall
review the budget monthly, and shall advise the Purchasers at such time and
the full board of directors of all material changes therein, and all
material deviations therefrom. The Company will furnish to the Purchasers
copies of all financial projections and updates of such projections provided
by the Company to General Electric Capital Corporation.
5.4. VISITS AND DISCUSSIONS. The Company and its Subsidiaries will
permit each of the Bain Purchasers and Stolberg and the authorized
representatives of the Bain Purchasers and Stolberg and one representative of
the Other Purchasers, at all reasonable times during normal business hours
and as often as reasonably requested, to visit and inspect, at the expense
of such Purchaser, any of the properties of the Company and its Subsidiaries,
including its books and records and lists of security holders and to make
extracts therefrom and to discuss the affairs, finances, and accounts of the
Company with its officers.
5.5. ADVERSE CHANGE LITIGATION. The Company will promptly advise each of
the Purchasers in writing of each suit or proceeding commenced or overtly
threatened against the Company or any Subsidiary which, if adversely
determined, would result in a Material Adverse Effect on the condition or
business, financial or otherwise, of the Company and its Subsidiaries and of
any facts that come to the Company's attention which would lead it to
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believe that the representations and warranties contained herein were not
true and correct in all material respects when made.
5.6. OTHER INFORMATION. The Company will also furnish to each of the
Purchasers with reasonable promptness, upon the request of the Bain
Purchasers or Stolberg, (a) financial statements by business segment, (b)
internal management reports including without limitation legal reports, (c)
all regular or special reports which the Company or its Subsidiaries shall
file with any governmental, regulatory or administrative agencies or
authorities, including the Federal Communications Commission or any state or
local public utilities commission, (d) financial statements, material reports
and other information distributed by the Company or its Subsidiaries to its
creditors, General Electric Capital Corporation or the financial community in
general, (e) all press releases issued by the Company or it Subsidiaries, and
(f) such other information and data with respect to the Company or any
Subsidiary as the Purchasers may from time to time reasonably request.
5.7. MAINTENANCE OF CORPORATE EXISTENCE AND PROPERTIES.
5.7.1 The Company and each of its Subsidiaries will at all times
do or cause to be done all things necessary to maintain, preserve and renew
its corporate charter and its leases, privileges, franchises, qualifications
and rights that are necessary in the ordinary conduct of its business as
presently conducted or as proposed to be conducted in an orderly and
efficient manner in accordance with good business practices.
5.7.2 The Company and each of its Subsidiaries will provide or
cause to be provided for itself insurance against loss or damage of the kinds
customarily insured against by corporations similarly situated, with
reputable insurers, in such amounts, with such deductible and by such methods
as shall be adequate, and in any event in amounts not less than amounts
generally maintained by other companies engaged in similar businesses.
5.7.3 The Company and each of its Subsidiaries will keep true
books of records and accounts in which full and correct entries will be made
of all its business transactions, and will reflect in its financial statements
adequate accruals and appropriations to reserves, all in accordance with
generally accepted accounting principles.
5.7.4 The Company and each of its Subsidiaries will comply with
all applicable statutes, rules, regulations, orders and restrictions of the
United States of America, foreign countries, states and municipalities and of
any governmental department, commission, board, regulatory authority, bureau,
agency, and instrumentality of the foregoing, and of any court, arbitrator or
grand jury, in respect of the conduct of its business and the ownership of its
properties, except such as are being contested in good faith and except where
the failure to comply will not have a Material Adverse Effect.
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5.8. PAYMENT OF TAXES. The Company and each of its Subsidiaries will
pay or discharge, at or before maturity or before becoming delinquent all
taxes, levies, assessments and other governmental charges which may be
imposed or which may become a lien upon any property owned by the Company or
any such Subsidiary or arising with respect to the occupancy, use, possession
or leasing thereof; PROVIDED, HOWEVER, that such payment and discharge shall
not be required with respect to any such tax, assessment charge, levy or
claim so long as the validity or amount thereof shall be contested in good
faith by appropriate proceedings and the company and its Subsidiaries, as
applicable, shall have set aside on its books adequate reserves with respect
thereto in accordance with GAAP and such contest operates to suspend
collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien.
5.9. HOLDING COMPANY STRUCTURE. At such time as the Majority Bain
Purchasers shall reasonably request, the Company shall form a holding company
through a merger whereby all of the then outstanding Common Stock and Preferred
Stock of the Company will be exchanged for common stock of the new holding
company.
5.10. RICHARD SMITH EXECUTION OF STOCKHOLDERS AGREEMENT. The Company
shall use all commercially reasonable efforts to cause Richard Smith to
execute the Stockholders Agreement within five Business Days after the
Initial Closing.
5.11. REPURCHASED OF CAPITAL STOCK. The Company shall repurchase
options and shares of the Company's capital stock from Paul Cady and Sheldon
Allen pursuant to Sections 1.7.3 and 1.7.4 contemporaneously with the
Initial Closing.
5.12. FILING FOR INTERNATIONAL LONG DISTANCE SECTION 214 CERTIFICATE.
Immediately following the Initial Closing hereunder, the Company and each of
its Subsidiaries providing the resale of international telecommunications
services shall file for an International Long Distance Section 214
Certificate from the Federal Communications Commission.
SECTION 6. DEFINITIONS
For purposes of this Agreement.
6.1. CERTAIN MANNERS OF CONSTRUCTION. In addition to the
definitions referred to as set forth below in this Section 6.
6.1.1. The words "hereof" "herein," "hereunder" and words of similar
import shall refer to this Agreement as a whole and not to any particular
Section or provision of this Agreement except as expressly provided in this
Agreement, and reference to a particular Section of this Agreement shall
include all subsections thereof.
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6.1.2 The words "party" and "parties" shall refer to each of the
Purchasers and the Company.
6.1.3 Definitions shall be equally applicable to both the singular
and plural forms of the terms defined, and references to the masculine,
feminine or neuter gender shall include each other gender.
6.1.4 Accounting terms used herein and not otherwise defined herein
are used herein as defined by GAAP in the United States in effect as of the
date hereof.
6.2. CROSS REFERENCE TABLE. The following terms defined elsewhere in
this Agreement in the Sections set forth below shall have the respective
meanings therein defined.
TERM SECTION
Amended Charter 1.1
Assets 2.8
Balance Sheet 2.6(a)
Base Market Value 1.3
Budget 5.3
Company Preamble
Company Charter Documents 2.1
Company Plan 2.13
Contracts 2.11.2
DOL 2.13
Employee Plan 2.13
ERISA 2.13
Financial Statements 2.6
GAAP 2.6
GECC Loan Agreement 2.27
HSR Fee 5.1
Identified Employees 2.10
Initial Closing 1.4
Interim Financials 2.6(b)
Insurance Policies 2.11.1
IRS 2.13
Liability Policies 2.11.1
Licenses 2.10
Listed Contracts 2.11.2
Material Adverse Effect 2.1
Note Purchase Agreements 4.1.10
Notes 4.1.10
Permits 2.16
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Purchase Price 1.1
Purchaser(s) Preamble
Purchase and Sale Agreements 2.26
Qualified Public Offering 7.1.1
Related Entity 2.13.2
Second Closing 1.5
Securities 1.1
Securities Act 2.5.2
Series A Notes 4.1.10
Series B Notes 4.1.10
Shares 1.1
Stockholders Agreement 4.1.5
Subsequent Closing 1.3
Subsidiary Charter Documents 2.2
6.3. CERTAIN DEFINITIONS. The following terms shall have the following
meanings:
"ACTION" shall mean any claim, action, cause of action or suit (in
contract or tort or otherwise), arbitration or proceeding by or before any
governmental authority.
"AFFILIATE" shall mean, as to any specified Person at any time (i) any
other Person that directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
specified Person (for the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and
"under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise), (ii) any Person
that is or has been within two (2) years prior to the time in question an
officer, director, or direct or indirect beneficial interest of at least five
percent (5%) of the outstanding capital stock or other evidence of beneficial
interest of such specified Person and the Members of the Immediate Family of
each such officer, director or holder (and, if such specified person is a
natural person, of such specified Person) and (iii) each Person of which such
specified Person or an Affiliate (as defined in clauses (i) or (ii) above)
thereof shall, directly or indirectly, beneficially own at least five percent
(5%) of the outstanding capital stock or other evidence of beneficial
interest at such time.
"AGREEMENT" shall mean this Series C Preferred Stock Purchase Agreement
as amended and in effect from time to time.
"BAIN PURCHASERS" shall mean Bain Capital Fund VI, L.P., BCIP Associates
II, BCIP Trust Associates II, BCIP Associates II-B, BCIP Trust Associates
II-B, BCIP Associates II-C, PEP Investments PTY Ltd., Sankaty High Yield
Asset Partners, L.P and RGIP, LLC.
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"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or other
day on which banks are required or authorized to be closed for business in
Boston, Massachusetts.
"CLEC BASKET MARKET VALUE" shall mean, at any point in time, (a) the
aggregate sum of the Total Enterprise Value of each Designated CLEC, divided
by (b) the aggregate sum of the Last Twelve Months Net Revenue of each
Designated CLEC.
"CLOSING" shall mean the Initial Closing, Second Closing or any
Subsequent Closing, as applicable based upon the context in which it is used.
"CLOSING DATE" shall mean the date of the Initial Closing, the Second
Closing or any Subsequent Closing, as applicable based upon the contest in
which it is used.
"CODE" shall mean the federal Internal Revenue Code of 1986 or any
successor statute, and the rules and regulations thereunder, and in the case of
any referenced section of any such statute, rule or regulation, any successor
section thereto, collectively and as from time to time amended and in effect.
"COMMON STOCK" shall mean the Company's Common Stock, par value $0.01
per share.
"CONTRACTUAL OBLIGATION" shall mean, with respect to any Person, any
written contract, agreement, understanding, deed, mortgage, lease, license,
commitment, undertaking, arrangement or understanding or other document or
instrument including, without limitation, any document or instrument
evidencing or otherwise relating to any indebtedness but excluding the charter
and by-laws of such Person, to which or by which such Person is a party or
otherwise subject or bound, or to which or by which any property or right of
such Person is subject or bound.
"DESIGNATED CLEC" shall mean each of the following Persons: Allegiance
Telecom, Inc., MGC Communications, Inc., US LEC Corp., McLeodUSA
Incorporated, ICG Communications, Inc., Electric Lightwave, Inc., e.spire
Communications, Inc., GST Telecommunications, Inc., Intermedia Communications,
Inc., ITC DeltaCom, Inc. Covad Communications Group, Inc., NorthPoint
Communications Group, Inc., NEXTLINK Communications, Inc., Hyperion
Telecommunications, Inc. and CapRock Communications Corp; PROVIDED, HOWEVER,
that in the event that one or more of the Persons listed above ceases to be a
publicly traded company trading under the ticker symbol under which it is
trading as of Initial Closing, such Person or Persons shall be excluded from
the definition of "Designated CLEC."
"ENVIRONMENTAL LAW" shall mean any applicable federal, state or local
law, statute or regulation, or any judgment, decree, order, arbitration
award, or any license or permit issued
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by any federal, state or local governmental authority relating to
occupational health and safety or pollution or protection of the environment.
"HAZARDOUS MATERIALS" shall mean any hazardous substance, hazardous or
solid waste, pollutant, contaminant or toxic chemical, including petroleum or
fraction thereof, as such terms are defined in or regulated pursuant to any
applicable Environmental Law.
"INDEBTEDNESS" shall mean, with respect to any Person, all obligations
contingent or otherwise, in respect of: (a) borrowed money; (b) indebtedness
evidenced by notes, debentures or similar instruments; (c) capitalized lease
obligations; (d) the deferred purchase price of assets, services or
securities, including related non-competition, consulting and stock
repurchase obligations (other than ordinary trade accounts payable within six
(6) months after the incurrence thereof in the Ordinary Course of Business);
(e) conditional sale or other title retention agreements; (f) reimbursement
obligations, whether contingent or matured, with respect to letters of
credit, bankers' acceptances, surety bonds, other financial guarantees and
interest rate protection agreements (without duplication of other
indebtedness supported or guaranteed thereby); (g) dividends payable; and (h)
interest, premium, penalties and other amounts owing in respect of the items
described in the foregoing clauses (a) through (g).
"INFORMAL ARRANGEMENT" shall mean an unwritten arrangement between or
among the Company and any other Person or Persons.
"INTELLECTUAL PROPERTY" shall mean all proprietary rights in Technology,
including all patents, copyrights, mask works, and any applications or
registrations therefor, trade secrets, licenses and propriety information,
whether existing now or in the future.
"LAST TWELVE MONTHS NET REVENUE" of a Person as of a specified date
shall mean such Person's net revenue, as reported on such Person's annual
reports on Form 10-K and quarterly reports on Form 10-Q, for the 12-month
period ended on the date of such Person's most recently filed annual report
on Form 10-K or quarterly report on Form 10-Q as the case may be.
"LEGAL REQUIREMENT" shall mean any United States federal, state, local
or foreign law, statute, standard, ordinance, code, order, rule, regulation,
resolution or promulgation, or any order, judgment or decree of any
governmental authority, or any license, franchise, permit or similar right
granted under any of the foregoing, or any similar provision having the force
and effect of law.
"LIABILITY" shall mean any liability or obligation of any kind of nature
(whether known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether liquidated or unliquidated, whether incurred or
consequential, and whether due or to become due), including without
limitation any liability for Taxes.
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"LIEN" shall mean any mortgage, pledge, lien, security interest, charge,
claim, equity, encumbrance, adverse claim restriction on transfer (excluding,
in the case of property constituting a contract listed on a schedule hereto
and furnished to the Purchasers, restrictions on transfer of the contract
contained in the terms of the contract itself), conditional sale or other
title retention device or arrangement (including, without limitation, a
capital lease but excluding any lessor's interest in the leased property
under any operating lease), transfer for the purpose of subjection to the
payment of any indebtedness, or restriction on the creation of any of the
foregoing, whether relating to any property or right or the income or profits
therefrom; PROVIDED, HOWEVER, that the term "Lien" shall not include (i)
statutory liens for Taxes to the extent that the payment thereof is not in
arrears or otherwise due, (ii) encumbrances in the nature of zoning
restrictions, easements, rights or restrictions of record on the use of real
property, if the same do not materially detract from the value of such
property or materially impair its use in the Company's business as currently
conducted, (iii) statutory or common law liens to secure landlords, lessors or
renters under leases or rental agreements confined to property on the premises
rented to the extent that no payment or performance under any such lease or
rental agreement is in arrears or is otherwise due, (iv) deposits or pledges
made in connection with, or to secure payment of, worker's compensation,
unemployment insurance, old age pension programs mandated under applicable
Legal Requirement or other social security, and (v) statutory or common law
liens in favor of carriers, warehousemen, mechanics and materialmen, statutory
or common law liens in favor of carriers, warehousemen, mechanics and
materialmen, statutory or common law liens to secure claims for labor,
materials or supplies and other like liens that secure obligations, to the
extent that payment thereof is not in arrears or otherwise due.
"MAJORITY BAIN PURCHASERS" shall mean Bain Purchasers who hold a
majority of the outstanding securities held by the Bain Purchasers determined
by vote.
"MAJORITY PURCHASERS" shall mean Purchasers who hold a majority of the
outstanding securities held by the Purchasers determined by vote.
"NASD" shall mean The National Association of Securities Dealers, Inc.
"ORDINARY COURSE OF BUSINESS" with respect to a Person shall mean the
ordinary course of business in accordance with past practice of such Person
or of other companies in the industry of such Person.
"OTHER PURCHASERS" shall mean BancBoston Robertson Stephens Inc.,
Bayview 99 I, L.P., Bayview 99 II, L.P., Clark Callander and Richard
Innenberg.
"PERSON" shall mean any individual, partnership, corporation,
association, trust, joint venture, unincorporated organization or other
entity, and any government, governmental department or agency or political
subdivision thereof.
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"PHASE I PLAN" shall mean the Company's installation of voice and data
switches in Seattle, Washington; Portland, Oregon; Denver, Colorado; and
Minneapolis, Minnesota, along with related workforce build-out in such cities
and in Reno, Nevada.
"PHASE II PLAN" shall mean the Company's installation of voice and data
switches in such cities other than the Phase I cities as determined by the
Company's board of directors, along with related workforce built-out.
"REGULATORY EVENT" shall mean any of the following events; (a) any
Purchaser becomes subject to regulation as a "carrier," a "telephone
company," a "common carrier," a "public utility" or otherwise under any
applicable law or governmental regulation, federal, state or local, solely as
a result of the transactions contemplated by this Agreement or (b) the
Company or any of its Subsidiaries becomes subject to regulation by any
governmental authority in any way that is materially different from the
regulation existing at the date hereof and that has a Material Adverse Effect
or (c) the Federal Communications Commission or any public utilities commission
for a state or jurisdiction in which all or any part of a telecommunications
system of the Company and its Subsidiaries is located issues an order revoking,
denying or refusing to renew, or recommending the revocation, denial or
non-renewal of, any Permit that has a Material Adverse Effect.
"STOCKHOLDER" shall mean any holder of shares of the Company's capital
stock.
"STOLBERG" shall mean Stolberg, Meehan & Scano II, L.P.
"SUBSIDIARY" means with respect to any Person: (a) any corporation at
least a majority of whose outstanding voting stock is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (b) any general partnership,
joint venture or similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such Person, or
by one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries, and (c) any limited partnership of which such Person or any of its
Subsidiaries is a general partner. For the purposes of this definition,
"voting stock" means shares, interests, participations or other equivalents
in the equity interest (however designated) in such Person having ordinary
voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of contingency.
"TAXES" shall mean any federal, state, local, foreign, or other tax,
fee, levy, assessment or other governmental charge, including without
limitation, any income, franchise, gross receipts, property, sales, use,
services, value added, withholding, social security, estimated, accumulated
earnings, alternative or add-on minimum, transfer, license, privilege,
payroll, profits, capital stock, employment, unemployment, excise, severance,
stamp,
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occupancy, customs or occupation tax, and any interest, additions to tax and
penalties in connection therewith.
"TAX RETURNS" shall mean all returns, amended returns, declarations,
reports, estimates, information returns and statements regarding Taxes that
are or were filed or required to be filed under applicable Legal Requirements,
whether on a consolidated, combined, unitary or individual basis.
"TECHNOLOGY" shall mean all computer programs and related documentation
and technical specifications and all other inventions, discoveries,
innovations, know-how, information and all other forms of technology,
including improvements, modifications, derivatives or changes, whether
tangible or intangible, embodied in any form, including without limitation
documents, technical data, computer programs, documentation, hardware,
databases, integrated circuits, net lists and schematics, whether or not
protectable or protected by patent, copyright, mask work right, trade secret
law or otherwise.
"TOTAL ENTERPRISE VALUE" of a Person as of a specified date shall mean
(a) the number of fully-diluted shares of such Person's common stock
outstanding on such date, multiplied by the average closing share price of
such Person's common stock for the twenty trading days ending on the day
immediately preceding such date, plus (b) the amount of long term debt,
including the current portion of long-term debt, of such Person outstanding
as of such date, minus (c) the amount of cash, cash equivalents and marketable
securities of such Person as of such date.
SECTION 7. INDEMNIFICATION
7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
INDEMNITIES.
7.1.1 REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITIES OF
THE COMPANY. All of the representations and warranties of the Company
(except for those contained in Sections 2.1 (Organization), 2.2
(Subsidiaries), 2.3 (Authorization), 2.5 (Capitalization), 2.7(1) (absence of
dividends) and 2.18 (Taxes)) contained herein or in any document,
certificate or other instrument required to be delivered hereunder, and the
related indemnities of the Company for breach or inaccuracy of such
representations and warranties, shall survive the Closing and continue in
full force and effect until the earlier of (i) sixty (60) days after delivery
of the Company's audited financial statements for the fiscal year ending
December 31, 2000 or (ii) the closing of a public offering pursuant to the
Securities Act of 1933 as in effect from time to time (other than a public
offering or sale pursuant to a registration statement on Form S-8 or comparable
form), in which the aggregate price to the public of all Common Stock sold in
such offering shall exceed $30,000,000 (a "QUALIFIED PUBLIC OFFERING"). The
representations and warranties of the Company contained in Sections 2.1
(Organization), 2.2 (Subsidiaries), 2.3 (Authorization), 2.5
(Capitalization), 2.7(1) (absence of dividends) and 2.18 (Taxes), and the
related indemnities of the Company for breach or inaccuracy of such
representations and warranties, shall survive the Closing, and
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shall continue in full force and effect without limit as to time (subject to
any applicable statutes of limitations and any extensions or waivers thereof
with respect to Tax matters and employee benefit matters). The termination of
any such representation and warranty, however, shall not affect any claim for
any breach of any representation or warranty if (i) written notice thereof is
given to the breaching party or parties prior to such termination date, or
(ii) such breach is a result of fraud or the violation of any criminal law. All
covenants of the Company in this Agreement or in any document, instrument or
certificate delivered in connection herewith shall, unless otherwise
specifically provided herein or therein, remain in full force and effect (x) as
to the Bain Purchasers, until such time as the Bain Purchasers and their
Affiliates hold less than 354,000 Shares (including shares of Common Stock
issued upon conversion of Shares held by the Bain Purchasers, and subject to
adjustment for stock splits, stock dividends, and the like), (y) as to
Stolberg, until such time as Stolberg and its Affiliates hold less than 523,280
Shares (including shares of Common Stock issued upon conversion of Shares held
by Stolberg, and subject to adjustment for stock splits, stock dividends, and
the like), (z) as to the Other Purchasers, until the closing of a Qualified
Public Offering. All other indemnities of the Company in this Agreement or in
any document, instrument or certificate delivered in connection herewith
(except for indemnities with respect to any breach of the representations and
warranties) shall, unless otherwise specifically provided herein or therein,
remain in full force and effect until the closing of a Qualified Public
Offering.
7.1.2 REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITIES OF
THE PURCHASERS. All of the representations and warranties of the Purchasers
contained in Section 3 shall survive the Closing and shall continue in full
force and effect without limit as to time. All covenants and indemnities of
the Purchasers in this Agreement or in any document or certificate delivered
hereunder shall, unless otherwise specifically provided herein or therein,
remain in full force and effect forever.
7.2 INDEMNIFICATION. The Company hereby agrees to indemnify each of
the Purchasers and its Affiliates (each in its capacity as indemnified party,
an "INDEMNITEE") and hold each of the Purchasers and such Affiliates harmless
from, against and in respect of the following (herein called a "LOSS" or
"LOSSES"): any and all actual and established damages, deficiencies, claims,
actions, charges, suits, proceedings, demands, assessments, judgments, orders,
decrees, awards, penalties, fines, amounts paid in settlement, losses,
including, without limitation, any diminution in value, costs, expenses,
fees, obligations and liabilities, including, without limitation, costs of
collection and attorneys' fees and expenses arising from or related to any of
the following: (i) any breach of or inaccuracy in any representation or
warranty made by or on behalf of the Company or its Subsidiaries in this
Agreement (including, without limitation, the Schedules hereto) or any
document, instrument or certificate delivered pursuant hereto or (ii) any
breach or violation of any covenant or agreement made by or on behalf of the
Company in this Agreement (including, without limitation, the Schedules which
relate to such Sections).
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SECTION 8. GENERAL
8.1. AMENDMENTS, WAIVERS AND CONSENTS. For the purposes of this
Agreement and all agreements, documents and instruments executed pursuant
hereto, except as otherwise specifically set forth herein or therein, no
course of dealing between the Company and any Purchaser and no delay on the
part of any party hereto in exercising any rights hereunder or thereunder
shall operate as a waiver of the rights hereof and thereof. No covenant or
other provision hereof or thereof may be waived otherwise than by a written
instrument signed by the party so waiving such covenant or other provision;
PROVIDED, HOWEVER, that except as otherwise provided herein or therein, the
written consent of the Majority Purchasers and the Company shall be required
for changes in or additions to, and any consents required by this Agreement,
and omissions or waivers of compliance with any term, covenant, condition or
provision set forth herein (either generally or in a particular instance, and
either retroactively or prospectively); PROVIDED, HOWEVER, that,
notwithstanding the foregoing proviso, (i) the written consent of the Majority
Bain Purchasers and the Company shall be required for changes in or additions
to, and any consents required by this Agreement, and omissions or waivers of
compliance with any term, covenant, condition or provision set forth herein
(either generally or in a particular instance, and either retroactively or
prospectively) which materially adversely affects the rights of the Majority
Bain Purchasers as such, and (ii) the written consent of Stolberg and the
Company shall be required for changes in or additions to, and any consents
required by this Agreement, and omissions or waivers of compliance with any
term, covenant, condition or provision set forth herein (either generally or
in a particular instance, and either retroactively or prospectively) which
materially adversely affects the rights of Stolberg as such. Any amendment or
waiver affected in accordance with this paragraph shall be binding upon each
holder or any Securities purchased under this Agreement at the time
outstanding.
8.2. SURVIVAL OF COVENANTS; ASSIGNABILITY OF RIGHTS. All covenants,
agreements, representations and warranties of the Company made herein, except
as provided otherwise in this Agreement, shall survive the delivery of the
Securities and shall bind the Company and their respective successors and
assigns, whether so expressed or not, and, except as otherwise provided in
this Agreement, all such covenants, agreements, representations and
warranties shall inure to the benefit of the Purchasers' successors and
assigns and to transferees of the Stock, whether so expressed or not.
8.3. SECTION HEADINGS. The descriptive headings in this Agreement have
been inserted for convenience only and shall not be deemed to limit or
otherwise affect the construction of any provision thereof or hereof.
8.4. COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which when so executed and delivered
shall be taken to be an original; but such counterparts shall together
constitute but one and the same document.
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<PAGE>
8.5. NOTICES AND DEMANDS. All notices, requests, payments,
instructions or other documents to be given hereunder shall be in writing or
by written telecommunication, and shall be deemed to have been duly given if
(i) delivered personally (effective upon delivery), (ii) mailed by certified
mail, return receipt requested, postage prepaid (effective two (2) business
days after dispatch), (iii) sent by a reputable, established courier service
that guarantees next business day delivery (effective the next business day),
or (iv) sent by telecopier followed within twenty-four (24) hours by
confirmation by one of the foregoing methods (effective upon receipt of the
telecopy in complete, readable form), addressed as follows (or to such other
address as the recipient may have furnished for the purpose pursuant to this
Section 7.7):
if to the Company, to:
Advanced Telecommunications, Inc.
730 2nd Avenue South
Suite 1200
Minneapolis, MN 55402
Attention: Chief Executive Officer
with a copy to:
Piper & Marbury
1200 Nineteen St., N.W.
Washington, DC 20036-2430
Attention: Edwin M. Martin, Esq.
and with a copy to:
Robins, Kaplan, Miller & Ciresi L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
Attention: David L. Mitchell, Esq.
If to a Bain Purchaser, to:
c/o Bain Capital, Inc.
Two Copley Place, 7th Floor
Boston, MA 02116
Attn: Michael A. Krupka
with a copy to:
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<PAGE>
Ropes & Gray
One International Place
Boston, MA 02110
Attn: Philip J. Smith, Esq.
if to Stolberg, to:
c/o Stolberg Partners, L.P.
370 17th Street
Suite 4240
Denver, CO 80202
Attention: Peter Van Genderen
with a copy to:
Holland & Hart
555 Seventeenth Street, Suite 3200
P.O. Box 8749
Denver, CO 80201
Attention: Betty Arkell, Esq.
if to an Other Purchaser, to it at the address set forth in the
stock record book of the Company; and
if to a permitted assignee of a Purchaser, to its address as
designated to the Company in writing (or if none, to the last address of the
assignor given to the Company pursuant to this Section 8.5).
8.6. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be deemed
prohibited or invalid under such applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such
provision or the other provisions of this Agreement.
8.7. CONSTRUCTION. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any of the provisions of this Agreement. Any reference to
any federal, state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. The word "including" shall mean including without
limitation. The parties hereto intend that each representation,
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<PAGE>
warranty, and covenant contained herein shall have independent significance.
If any party hereto has breached any representation, warranty, or covenant
contained herein in any respect, the fact that there exists another
representation, warranty, or covenant relating to the same subject matter
(regardless of the relative levels of specificity) that the party has not
breached shall not detract from or mitigate the fact that the party is in
breach of the first representation, warranty, or covenant.
8.8. INCORPORATION OF EXHIBITS, ANNEXES AND SCHEDULES. The exhibits,
annexes and schedules identifies in this Agreement are incorporated herein by
reference and made a part hereof.
8.9. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the domestic substantive laws of the State of Delaware
without giving effect to any choice or conflict of laws provision or rule that
would cause the application of the domestic substantive laws of any other
jurisdiction.
8.10. CONSENT TO JURISDICTION. Each party to this Agreement, by its
execution hereof, (a) hereby irrevocably submits to the exclusive
jurisdiction of the state courts of the State of Delaware sitting in the
County of Wilmington or the United States District Court for the District of
Delaware for the purpose of any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising
out of or based upon this Agreement or relating to the subject matter hereof,
(b) hereby waives to the extent not prohibited by applicable law, and agrees
not to assert, and agrees not to allow any of its subsidiaries to assert, by
way of motion, as a defense or otherwise, in any such action, any claim that
it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that any
such proceeding brought in one of the above-named courts is improper, or that
this Agreement or the subject matter hereof or thereof may not be enforced in
or by such court and (c) hereby agrees not to commence or maintain any
action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation arising out of or based upon this
Agreement or relating to the subject matter hereof or thereof other than before
one of the above-named courts nor to make any motion or take any other action
seeking or intending to cause the transfer or removal of any such action,
claim, clause of action or suit (in contract, tort or otherwise), inquiry,
proceeding or investigation to any court other than one of the above-named
courts whether on the grounds of inconvenient forum or otherwise.
Notwithstanding the foregoing, to the extent that any party hereto is or
becomes a party in any litigation in connection with which it may assert
indemnification rights set forth in this agreement, the court in which such
litigation is being heard shall be deemed to be included in clause (a) above.
Each party hereto hereby consents to service of process in any such
proceeding in any manner permitted by Delaware law, and agrees that service
of process by registered or certified mail, return receipt requested, at its
address specified pursuant to Section 8.5 hereof is reasonably calculated to
give actual notice.
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<PAGE>
8.11. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM,
CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING
OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED
BY THE OTHER PARTIES HERETO THAT THIS SECTION 8.11 CONSTITUTES A MATERIAL
INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS
AGREEMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION 8.11 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH
SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
8.12. EXERCISE OF RIGHTS AND REMEDIES. No delay of or omission in the
exercise of any right, power or remedy accruing to any party as a result of
any breach or default by any other party under this Agreement shall impair
any such right, power or remedy, nor shall it be construed as a waiver of or
acquiescence in any such breach or default, or of any similar breach or
default occurring later; nor shall any such delay, omission nor waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
[The remainder of this page has been intentionally left blank]
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<PAGE>
Series C Preferred Stock Purchase Agreement
September 30, 1999
------------
IN WITNESS WHEREOF, the undersigned have executed this Agreement as a
sealed instrument as of the day and year first above written.
THE COMPANY: ADVANCED TELECOMMUNICATIONS, INC.
By: /s/ Cliff D. Williams
----------------------
Name: Cliff D Williams
Title: CEO
[Signatures continue on following page]
<PAGE>
Series C Preferred Stock Purchase Agreement
September 30, 1999
------------
THE BAIN PURCHASERS: BAIN CAPITAL FUND VI, L.P.
By: Bain Capital Partners VI, L.P.,
its general partner
By: Bain Capital Partners VI, Inc.,
its general partner
By: /s/ Michael A. Krupka
----------------------
Name: Michael A. Krupka
Title: Managing Director
BCIP Associates II
BCIP Trust Associates II
BCIP Associates II-B
BCIP Trust Associates II-B
BCIP Associates II-C
By: Bain Capital, Inc.,
their Managing Partner
PEP Investments PTY Ltd.
By: Bain Capital, Inc.,
its attorney-in-fact
By: /s/ Michael A. Krupka
---------------------
Name: Michael A. Krupka
Title: Managing Director
RGIP, LLC
By: ______________________
Name:
Title:
[Signatures continue on following page]
<PAGE>
Series C Preferred Stock Purchase Agreement
September 30, 1999
------------
THE BAIN PURCHASERS: BAIN CAPITAL FUND VI, L.P.
By: Bain Capital Partners VI, L.P.,
its general partner
By: Bain Capital Investors VI, Inc.,
its general partner
By ______________________________
Name: Michael A. Krupka
Title: Managing Director
BCIP Associates II
BCIP Trust Associates II
BCIP Associates II-B
BCIP Trust Associates II-B
BCIP Associates II-C
By: Bain Capital, Inc.,
their Managing Partner
PEP Investment PTY Ltd.
By: Bain Capital, Inc.,
its attorney-in-fact
By: ______________________
Name: Michael A. Krupka
Title: Managing Director
RGIP, LLC
By: /s/ R. Bradford Malt
---------------------
Name: R. Bradford Malt
Title: Managing Member
[Signatures continue to following page]
<PAGE>
Series C Preferred Stock Purchase Agreement
September 30, 1999
------------
THE BAIN PURCHASERS (CONTINUED): SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By: /s/ Jonathan S. Lavine
-------------------------
Name: Jonathan S. Lavine
Title: Managing Director
[Signatures continue to following page]
<PAGE>
Series C Preferred Stock Purchase Agreement
September 30, 1999
------------
OTHER PURCHASERS: BANCBOSTON ROBERTSON STEPHENS INC.
By: /s/ David Weldon
---------------
Name: David Weldon
Title: Chief Administrative Officer
Bayview 99 I, L.P.
By: Bayview 99 GP, LLC,
its General Partner
By: /s/ David Weldon
------------------
Title: Authorized Signatory
Bayview 99 II, L.P.
By: Bayview 99 GP, LLC,
its General Partner
By: /s/ David Weldon
------------------
Title: Authorized Signatory
______________________
Clark Callander
______________________
Richard Innenberg
[Signatures continue on following page]
<PAGE>
Series C Preferred Stock Purchase Agreement
September 30, 1999
------------
OTHER PURCHASERS: BANCBOSTON ROBERTSON STEPHENS, INC.
By:
----------------------------------------
Name:
Title:
BAYVIEW 99 I, L.P.
By: Bayview 99 GP, LLC,
its General Partner
By:
----------------------------------------
Title: Authorized Signatory
BAYVIEW 99 II, L.P.
By: Bayview 99 GP, LLC,
its General Partner
By:
----------------------------------------
Title: Authorized Signatory
/s/ Clark Callander
----------------------------------------
Clark Callander
/s/ Richard Innenberg
----------------------------------------
Richard Innenberg
[Signatures continue on following page]
<PAGE>
Series C Preferred Stock Purchase Agreement
September 30, 1999
------------
STOLBERG: STOLBERG, MEEHAN & SCANO II, L.P.
By: Stolberg, Meehan & Scano LLC,
its general partner
By: /s/ Peter Van Genderen
----------------------------------------
Name: Peter Van Genderen
Title: Partner
<PAGE>
Exhibit 10.1.20
ADVANCED TELECOMMUNICATIONS, INC.
FIRST AMENDMENT TO THE
SECOND AMENDED AND RESTATED STOCK OPTION PLAN OF 1996
(November 19, 1999)
RECITALS:
A. The Advanced Telecommunications, Inc. Stock Option Plan of 1996 (the
"Plan") as originally adopted by the Board ofDirectors of Advanced
Telecommunications, Inc. (the "Company'~) on July 1, 1996, and as
amended and restated to date, is now in full force and effect.
B. On May 27, 1999, the Board of Directors approved a 60 to 1 stock split
of the Company's common and preferred stock, which stock split became
effective upon the filing of the Fifth Articles ofAmendment to the
Articles oflncorporation with the Minnesota Secretary of State on July
15, 1999.
C. Effective September 30, 1999, the Company was reincorporated as a
Delaware corporation by merger of the Company with and into a
wholly-owned Delaware subsidiary. Pursuant to the merger, each share of
the Company's Class A common stock was converted into a share of the
surviving Delaware corporation's common stock.
D. After giving effect to the stock split and the reincorporation, the
total number of shares of the Company's common stock set aside for
issuance upon exercise of options granted under the Plan was 2,400,000.
E. On November 17, 1999, the Board of Directors unanimously approved an
increase in the number of shares of the Company's common stock set
aside for issuance upon exercise of options granted under the Plan from
2,400,000 to 4,400,000.
F. By Written Consent effective November 19, 1999, stockholders holding a
majority of the issued and outstanding capital stock of the Company
approved the increase in the number of shares of the Company's common
stock set aside for issuance upon exercise of options granted under the
Plan from 2,400,000 to 4,400,000.
NOW THEREFORE, in consideration of the foregoing, the Plan is amended as
follows:
1. Section 3 of the Plan is amended to read in its amended form as
follows:
"3. AUTHORITY TO GRANT OPTIONS.
Subject to adjustment as provided in Section 11 of the Plan, the Board
of Directors of
<PAGE>
ADVANCED TELECOMMUNICATIONS, INC.
the Company, or the Committee, if created, may from time to time in its
discretion grant to Eligible Recipients of the Company or its
Subsidiary Corporations (whether now existing or hereafter acquired)
options under which up to, but not more than, an aggregate of Four
Million Four Hundred Thousand (4,400,000) shares of the Company's
Common Stock, $0.01 par value per share, may be issued, such options
to contain the terms and be subject to the conditions hereinafter
provided.
The shares shall be made available from authorized and
unissued common stock or from Common Stock issued and held in the
Treasury of the Company, as shall be determined by the Board
of Directors."
2. This First Amendment to the Advanced
Telecommunications, Inc. Second
Amended and Restated Stock Option Chief
Plan of 1996 is effective as of Executive
November 19, 1999.
ATTEST:
David L. Mitchell, Secretary
<PAGE>
ADVANCED TELECOMMUNICATIONS, INC.
ADVANCED TELECOMMUNICATIONS, INC.
SECOND AMENDED AND RESTATED STOCK OPTION PLAN OF 1996
(DATED AS of JANUARY 25, 1999)
1. PURPOSE.
This Stock Option Plan (the "Plan") is intended to enable
Advanced Telecommunications, Inc. (the "Company") and its Subsidiary
Corporations (now existing or hereinafter acquired or created) to attract and
retain persons of ability to perform services for the Company and its Subsidiary
Corporations by providing an incentive to such individuals through equity
participation in the Company and by rewarding such individuals who contribute to
the achievements by the Company of its economic objectives. The purpose of the
Plan Will be accomplished through the granting of stock options as herein
provided, which may be issued in a form to qualify as "incentive stock options"
within the meaning of the provisions of Section 422 of the Internal Revenue Code
of 1986, as amended ("Incentive Options"), or as stock options not within the
meaning of such section ("Nonqualified Option"), in the discretion of the Board
of Directors of the Company or the Committee.
This Plan amends and restates in its entirety the Company's
Incentive Stock Option Plan of 1996.
2. DEFINITIONS.
Whenever used in this Plan, the following terms shall have the
respective meanings set forth below, unless the context clearly requires
otherwise, and when the defined meaning is intended, the term is capitalized:
(a) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(b) "Committee" shall mean the Committee provided for by
Section 4 hereof.
(c) "Parent Corporation" shall have the meaning set forth
in Code Section 424(e), with the Company being treated as the employer
corporation for purposes of said definition.
(d) "Subsidiary Corporation" shall have the meaning set
forth in Code Section 424(f), with the Company being treated as the
employer corporation for purposes of said definition.
(e) "Significant Shareholder" means an individual who
within the meaning of Code Section 422(b)(6) owns stock possessing more
than ten percent
<PAGE>
ADVANCED TELECOMMUNICATIONS, INC.
(10%) of the total combined voting power of all classes of stock of
Subsidiary Corporation. In determining whether an individual is a
Significant Shareholder, an individual shall be treated as owning stock
owned by certain relatives of the individual and certain stock owned by
corporation in which the individual is a shareholder, partnerships in
which the individual is a partner, and estates or trusts of which the
individual is a beneficiary, all as provided in Code Section 424(d).
(f) "110% Five Year Option" means an option (i) that has
an option price of at least 110% of the price of the stock subject to
such option on the date such option is granted, and (ii) that by its
terms is not exercisable after the expiration of five (5) years from
the date such option is granted.
(g) "Participant" means an Eligible Recipient who
receives one or more options under the Plan.
3. AUTHORITY TO GRANT OPTIONS.
The Board of Directors of the Company, or the Committee, if
created, may from time to time in its discretion grant to Eligible Recipients of
the Company or its Subsidiary Corporations (whether now existing or hereafter
acquired) options under which up to, but not more than, an aggregate of Forty
Thousand (40,000) shares of the Company's Class A common stock, $.0l par value
(hereinafter referred to as "Common Stock") may be issued, such options to
contain the terms and be subject to the conditions hereinafter provided.
The shares shall be made available from authorized and
unissued common stock or from Common Stock issued and held in the Treasury of
the Company, as shall be determined by the Board of Directors.
4. ADMINISTRATION.
At the discretion of the Board of Directors of the Company,
this Plan may be administered by a Committee which shall be an executive
committee of the Board of Directors of the Company consisting of not less than
two members of the Board of Directors who are nc employees of the Company. Such
Committee shall have full power and authority, subject to the limitations of the
Plan and the specific terms of any options granted under this Plan, to construe
interpret and administer this Plan and to make determinations and, by resolution
or resolution providing for the creation and issuance of any such option, to fix
the terms upon which, the time ( times at or within which, and the price or
prices at which any such shares may be purchased from the Company upon the
exercise of such option, which terms, time or times and price or prices shall in
every case, be set forth or incorporated by reference in the instrument or
instruments evidencing such option, and shall be consistent with the provisions
of this Plan. The Board of Directors may from time to time remove members from,
or add members to, the Committee. Vacancies on the Committee, howsoever caused,
shall be filled by the Board of Directors. The Committee shall select one of its
members as
<PAGE>
ADVANCED TELECOMMUNICATIONS, INC.
Chairman, and shall hold meetings at such times and places as the Chairman
may determine. A majority of the Committee at which a quorum is present, or
acts reduced to approved in writing by all of the members of the Committee,
shall be the valid acts of the Committee. The Board of Directors shall have
all of the enumerated powers of the Committee, but shall not be limited to
such powers. No member of the Board of Directors or the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any option granted under it.
5. ELIGIBILITY.
Employees, directors, consultants and independent contractors
of the Company or of a Subsidiary Corporation (now existing or hereafter created
or acquired) shall be eligible to participate in this Plan and will herein be
referred to as "Eligible Recipients."
6. SIGNIFICANT SHAREHOLDERS.
No option shall be granted hereunder to an individual who, at
the time the option is granted, is a Significant Shareholder unless the option
is a 110% Five-Year Option or is a Nonqualified Option.
An option granted to a Significant Shareholder in violation of
the provisions of this section shall be void.
7. ALLOTMENT OF SHARES.
Options may be allotted to such Eligible Recipients, in such
amounts, consistent with the provisions of the Code, as the Committee or Board
of Directors in its discretion may from time to time determine.
8. TERM OF PLAN.
No option shall be granted pursuant to this Plan after the
expiration (the "Expiration Date") often (10) years from the earlier of the date
of its adoption prior to the Expiration Date by the Board of Directors or its
approval by shareholders, but options granted prior to the Expiration Date may
be exercisable after the Expiration Date.
9. TERMS AND CONDITIONS OF OPTIONS.
Subject to the following provisions (which may be amended as
provided in Section 14 hereof), all options granted pursuant to this Plan shall
be in such form and subject to such terms and conditions, including vesting
provisions, as the Committee or the Board of Directors, in its discretion, may
from time to time determine, provided, however, that with regard to any options
intended to qualify as "incentive stock options," such terms and conditions must
be consistent with the provisions of Code Section 422.
<PAGE>
ADVANCED TELECOMMUNICATIONS, INC.
(a) OPTION PRICE. The option price per share with respect
to each option which is an Incentive Option shall be not less than the
fair market value of the Common Stock (110% of the fair market value if
granted to an individual who is a Significant Shareholder at the date
of grant) on the date the option is granted.
(b) PERIOD OF OPTION. In no event shall an option be
exercisable after the expiration of ten (10) years from the date of
grant thereof (five [5] years from the date of grant if granted to an
individual who is a Significant Shareholder at the date of grant), and
each option shall so provide by its terms.
(c) PAYMENT. Payment for all shares shall be made at the
time that an option, or any part thereof, is exercised, and no shares
shall be issued until full payment therefor has been made. Payment
shall be made in cash or at the discretion of the Board of Directors in
stock of the Company, or in such other form which is acceptable to the
Board of Directors and, in the case of Incentive Options, which does
not prevent such options from qualifying for treatment as an "incentive
stock option" within the meaning of the Code.
(d) EXERCISE OF OPTION. Unless an option is terminated as
provided hereunder or expires by its terms, a Participant may exercise
his or her vested options in whole or in part at any time or from time
to time in accordance with the terms and conditions of this Plan.
(e) NON-TRANSFERABILITY OF OPTIONS. During a
Participant's lifetime, an option, by its terms, shall be exercisable
only by such Participant and shall not be transferable except by will
or the laws of descent and distribution.
(f) DEATH OF OPTION HOLDER. Upon the death of a
Participant, such Participant's option privileges shall appy to those
shares which were immediately purchasable by the Participant at the
time of death, and such privileges shall expire unless exercised by the
executor or administrator of the Participant's estate, or by a person
who acquired the right to exercise such option by bequest or
inheritance or by reason of the Participant's death, within one (1)
year after the date of death or such shorter period as may be
determined by the Committee or the Board of Directors; provided,
however, that in any event the option may not be exercised after the
expiration of term (10) years from the date the option is granted (five
[5] years in the case of 110% Five Year Option), or such shorter
periods as may be provided in the instrument granting the option.
(g) RESTRICTION ON ISSUANCE OF SHARES. The Company shall
not be obligated to sell or issue any shares pursuant to any stock
option unless the shares with respect to which the option is being
exercised are at that time effectively registered or exempt from
registration under the Securities Act of 1933, as amended, and any
other applicable laws. The Company may require (i) as a condition to
the sale of shares on the exercise of any option, that the person
exercising such
<PAGE>
ADVANCED TELECOMMUNICATIONS, INC.
option give to the Company representations that the Participant (a) is
acquiring such shares without a view to the distribution thereof,
and (b) accepts as a condition before any transfer in connection with
the resale of such shares, the Participant will obtain the written
opinion of counsel for the Company, or other counsel acceptable to
the Company, that such shares may be transferred; and (ii) that any
stock certificate issued under this Plan have an appropriate legend
inscribed thereon.
(h) RIGHTS AS A STOCKHOLDER. A Participant shall have no
rights as a stockholder with respect to any shares covered by an option
until the date of issuance of a stock certificate to such Participant
for such shares.
(i) TIME OF GRANTING OPTION. Nothing contained in the
Plan shall constitute the granting of any option hereunder. An option
shall be granted only pursuant to a resofution of the Committee or the
Board of Directors of the Company.
(j) TERMINATION OF SERVICE. In the event of termination
of service of a Participant, other than (a) by reason of death, or (b)
by the Company for cause, defined as set forth in the instrument
granting the option, the Participant may exercise such portion of the
option as was exercisable by such Participant at the date of
termination of service at any time within three (3) months (one (1)
year after death in the case of a Participant whose service terminates
by reason of death) but in no event after ten (10) years (five [5]
years in the case of a 110% Five Year Option) from the date such option
was granted to such Participant, or such shorter periods as may be
provided in the instrument granting the options. Options not exercised
within the applicable period, shall terminate. In the event a
Participant's service is terminated by the Company for cause, any
option or options held by the Participant under the Plan, to the extent
not exercised before such termination, shall forthwith terminate. A
change of duties or position within the Company or an assignment of
employment or service in a Subsidiary Corporation of the Company shall
not be considered a termination of service for the purposes of this
Plan. The written option agreements may contain such provisions as the
Committee or the Board of Directors of the Company shall approve with
reference to the effect of approved leaves of absence upon termination
of service.
(k) $100,000 DOLLAR LIMITATION. With respect to Incentive
Options, the aggregate fair market value (determined as of the time the
option is granted) of the stock with respect to which options of any
Participant are exercisable for the first time in any calendar year
(including options granted under this Plan and under any other
incentive stock option plan of the Company or any Parent Corporation or
Subsidiary Corporation of the Company) shall not exceed One Hundred
Thousand Dollars ($100,000), or any limit as may be imposed by the Code
from time to time.
10. RIGHT TO PROPERTY AT EXERCISE.
4
<PAGE>
ADVANCED TELECOMMUNICATIONS, INC.
If approved by the Board of Directors of the Company, a
Participant may be granted the right to receive cash or property from the
Company at the time such Participant exercises an option granted hereunder;
provided, however, that if property other than cash is to be transferred to
the Participant, Section 83 of the Code must apply to the property so
transferred, as provided by Code Section 422(c)(4).
11. ADJUSTMENT IN EVENT OF REORGANIZATION, ETC.
In the event of a reorganization, recapitalization, stock
split, stock dividend, combination of shares, merger, consolidation, rights
offering, or any other change in the corporate structure or shares of the
Company, the Board of Directors of the Company or the Committee shall make such
adjustment, if any, as may be appropriate in the number and kind of shares
authorized by this Plan, or in the number, option price and kind of shares
authorized by this Plan, or in the number, option price and kind of shares
covered by the options granted. Any option granted hereunder may provide that,
at the option of the Board of Directors or the Committee, (a) upon the
dissolution or liquidation of the Company, all (or portions of) options then
issued and outstanding shall either terminate or become immediately exercisable
in full, without regard to the period of continuous service to the Company
subsequent to the granting of such option, and (b) upon any merger,
consolidation, or other form of reorganization in which the Company is not the
surviving corporation, all options then issued and outstanding shall either
terminate or be immediately exercisable in full, without regard to the period of
continuous service to the Company subsequent to the granting of the options,
unless the surviving corporation or its parent corporation shall issue
substitute options for shares for the surviving corporation or its parent
corporation on similar terms and conditions as the options then outstanding.
12. REALLOCATION OF LAPSED OPTIONS.
Shares covered by options which have lapsed or have terminated
may be subject to new option grants under the Plan.
13. GOVERNMENTAL REGULATIONS.
This Plan, and the grant and exercise of options hereunder,
shall be subject to all applicable rules and regulations of the Federal
govemment and other applicable governmental authorities.
14. TERMINATION AND AMENDMENT OF PLAN AND OPTIONS.
The Board of Directors of the Company may from time to time
alter, amend, modify or terminate this Plan, as it shall deem advisable,
provided, however, that the Board of Directors may not, without prior approval
of the holders of a majority of the issued and outstanding stock of the Company,
change the definition of persons eligible to participate in the Plan or increase
the maximum number of shares which may be issued pursuant to options granted
under the Plan, except on account of adjustments under Section 11. The Board of
Directors of the Company or the
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<PAGE>
ADVANCED TELECOMMUNICATIONS, INC.
Committee may amend, modify, or terminate options, provided that such
Participant's consent to such actions shall be required unless such actions are
not materially adverse to the Participant.
15. CONTINUED SERVICE.
Nothing in this Plan or in any option agreement under this
Plan shall confer on any individual any right to continue in the employ or
service of the Company or its Subsidiary Corporations or affect in any way the
right of the Company or its Subsidiary Corporations to terminate his or her
employment or service at any time.
16. EFFECTIVE DATE OF PLAN.
The Plan shall become effective upon the adoption thereof by
the Board of Directors of the Company. However, the Plan shall be submitted to
the stockholders of the Company for their approval within a period of not to
exceed twelve (12) months from the date of its adoption by the Board of
Directors.
17. COMPLIANCE WITH CODE.
Options granted hereunder may be Incentive Options or
Nonqualified Options.
18. NO OBLIGATION TO EXERCISE OPTION.
The granting of an option shall impose no obligation upon the
Participant to exercise such option.
6
<PAGE>
ADVANCED TELECOMMUNICATIONS, INC.
7
<PAGE>
MASTER PURCHASE
AND
SERVICES AGREEMENT
<PAGE>
MASTER PURCHASE AND SERVICES AGREEMENT
BETWEEN
ADVANCED TELECOMMUNICATIONS INC.
AND
NORTEL NETWORKS INC.
<PAGE>
TABLE OF CONTENTS
ARTICLES:
Article 1 - Definitions
Article 2 - Scope of Agreement
Article 3 - Placement of Orders
Article 4 - Price and Payment
Article 5 - Shipment, Title and Risk of Loss under Product Annex
Article 6 - Commencement of Services under Services Annex
Article 7 - Testing, Turnover and Acceptance of Systems
Article 8 - Order Cancellation
Article 9 - Warranty
Article 10 - Nortel Networks' Additional Obligations
Article 11 - Software License
Article 12 - Intellectual Property Rights
Article 13 - Liability for Bodily Injury, Property Damage and Patent
Infringement
Article 14 - Remedies and Limitation of Liability
Article 15 - Term and Termination
Article 16 - Confidentiality
Article 17 - Miscellaneous
EXHIBITS:
Exhibit A - Product Annexes including Lists of Product and Prices
- Product Annex A.1, Attachments 1 thru 4
- Product Annex A.2 and AccessNode Pricing
Exhibit B - Services Annex including list of Services and Prices
- Service Annexes 1.0 thru 1.3
<PAGE>
MASTER PURCHASE AND SERVICES AGREEMENT
This Master Purchase and Services Agreement ("Agreement"), effective as of
the 1st day of June, 1999, is entered into by and between Advanced
Telecommunications Inc. (hereinafter "Company"), a Minnesota corporation with
executive offices located at 730 Second Avenue South, Suite 1200,
Minneapolis, Minnesota 55402, and Nortel Networks Inc. (hereinafter "Nortel
Networks"), a Delaware corporation with offices located at 2350 Lakeside
Blvd., Richardson, Texas 75082.
WHEREAS, Company is engaged in providing communication services and
products, providing and maintaining public and private communication
networks; and
WHEREAS, Nortel Networks, in conjunction with Nortel Networks Affiliates, is
engaged in the design, development, manufacture and sale of various products
and offers services associated with such products, which can be used in
connection with the communication services, products and networks of Company;
and
WHEREAS, Company wishes to be able to purchase and/or license various
products and services for delivery and installation in the United States from
Nortel Networks, which Company will use for its own internal use and not for
resale or as stock in trade and Nortel Networks is willing to sell and/or
license such products as Company, subject to the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein set forth, the parties agree as follows:
ARTICLE 1. DEFINITIONS
The following words shall have the meaning set forth below. Words in the
singular shall be held to include the plural and vice versa, and words of
gender shall be held to include the other gender as the context requires.
1.1 "Acceptance" shall mean the either (i) Company has indicated in
writing that an ordered Product is operating substantially in accordance with
the applicable Specification; or (ii) an ordered Product or Services has been
deemed to be accepted pursuant to criteria set forth in Article 7.
1.2 "Affiliate" shall mean, for either party, any entity in which that
party (or, in the case of Nortel Networks, its parent corporation, Nortel
Networks Corporation) owns and controls and continues to own or control more
than fifty percent (50%) of the shared entitled to elect the board of
directors of such entity. For greater clarity, "Company Affiliate" shall mean
any entity mutually agreed to by the parties and listed in Exhibit C, if any.
<PAGE>
1.3 "Applications" shall mean any program, product, service,
development or invention developed by a party using the Building Blocks,
including any modified or created Building Blocks, created by the Company.
1.4 "Background IPR" shall mean any Intellectual Property Rights that
are conceived, created, or developed by a party or its Affiliates prior to,
or independently of, any Services performed pursuant to this Agreement.
1.5 "Building Block(s)" shall mean those Software files provided by
Nortel Networks with Modifiable Software that are manipulatable or which may
be created by Company with such Modifiable Software and which can be used,
created or manipulated by Company to create Applications.
1.6 "Commencement Date" shall mean the date, as agreed to by the
parties, on which Nortel Networks is to commence performance of Services
ordered by Company pursuant to a Services Annex to this Agreement.
1.7 "Confidential Information" shall mean all information, included
without limitation, specifications, drawings, documentation, designs, test
results, programs, know-how, pricing information and market information of
every kind or description which may be disclosed by one party to the other
party in connection with this Agreement; provided that, the disclosing party
shall clearly mark all such information disclosed in writing as the
confidential or proprietary property of the disclosing party and, in the case
of oral disclosure, the disclosing party shall identify the confidential or
proprietary nature of any such information at the time of such oral
disclosure and shall provide a written summary (labeled as confidential or
proprietary) of the orally disclosed information to the recipient within
fifteen (15) business days following such disclosure.
1.8 "Customer" shall mean entities to whom Company provides
communication services as a result of Company's internal use of Products.
1.9 "Customer Information" or "CI" shall mean the information provided
by Company to Nortel Networks in order for Nortel Networks to engineer and/or
provide the components of Systems.
1.10 "Customized Service(s)" shall mean, individually and collectively,
any Services other than Standard Services, including, without limitation,
those Services described in a Services Annex, if any.
1.11 "Documentation" shall mean the documents which Nortel Networks
generally makes available to its customers containing descriptive,
operating, installation, engineering and maintenance information for
Products, including Specifications, as such documents may be amended from
time to time.
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<PAGE>
1.12 "Effective Date" shall mean the date this Agreement becomes
effective which shall be the date first identified above.
1.13 "Extension" shall mean Hardware or Software which is engineered by
Nortel Networks and added to an Initial System after the Turnover Date of the
Initial System.
1.14 "Financing Commitment" shall mean a firm written commitment to
fund monies sufficient to pay for all purchases made by the Company pursuant
to this Agreement, whether that Financing Commitment is in the form of third
party financing or a letter of credit from a financial institution,
corporation, or individual; or a lease agreement between the Company and a
third party lessee covering the Hardware and Software purchased by Company
from Nortel Networks.
1.15 "Foreground IPR" shall mean any Intellectual Property Rights that
are conceived, created, or developed by a party or its Affiliates in the
course of performing Services pursuant to a Services Annex to this Agreement.
1.16 "Hardware" shall mean, individually and collectively, the Nortel
Networks equipment listed in the Product Annexes of Exhibit A or otherwise
purchased by Company from Nortel Networks from time to time, and shall be
deemed to include any equipment which Nortel Networks adds to its generally
available Hardware price lists or so identifies to Company in a Quotation.
1.17 "Hazardous Material" shall mean any pollutants or dangerous, toxic
or hazardous substances (including without limitation, asbestos) as defined
in, or pursuant to the OSHA Hazard Communication Standard (29 CFR Part 1910,
Subpart Z), the Resource Conservation and Recovery Act (15 USC Section 6901,
et seq.), the Toxic Substances Control Act (15 USC Section 2601, et seq.),
the Comprehensive Environmental Response Compensation and Liability Act (42
USC Section 9601, et seq.), and any other federal, state or local
environmental law, ordinance, rule or regulation or equivalent law or
regulation in the location to which the Product is shipped by Nortel Networks.
1.18 "Initial System" shall mean Hardware and Software, inclusive of a
central processor unit, included in a configuration which Nortel Networks
identifies as a System and which is initially engineered by Nortel Networks
and installed at a specific Installation Site.
1.19 "Installation Site" shall mean the location or facility identified
in an Order at which the applicable Products will be installed.
1.20 "Intellectual Property Rights" shall mean any and all rights in
any invention, discovery, improvement, utility model, copyright trademark,
Services mark, patent, industrial design or mask work right, and any and all
rights of whatever nature in
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<PAGE>
computer software and data, Confidential Information, trade secrets or
know-how, and any and all intangible rights and privileges of a nature
similar to any of the foregoing, in every case in any part of the world and
whether or not registered, and shall include all rights in any applications
and granted applications for any of the foregoing.
1.21 "Licensed Software" shall mean the Software which Company has
licensed pursuant to this Agreement.
1.22 "Merchandise" shall mean any Hardware or other parts or components
which are not ordered as part of a System and with respect to which no
engineering, installation or other Services are provided by Nortel Networks.
1.23 "Modifiable Software" shall mean Software, or a portion of Software
that is identified as such by Nortel Networks in its applicable
Documentation, which Company may have certain rights to modify and
potentially create Applications or Building Blocks in accordance with the
applicable Documentation.
1.24 "Non-Licensed Software" shall mean Software for which Company has
not yet obtained a license nor paid applicable right-to-use fees, but which
Software may be included with Software loads delivered to Company hereunder.
1.25 "Order" shall mean a numerically controlled purchase authorization
document issued by Company to Nortel Networks specifying the types and
quantities of Products and Services to be furnished by Nortel Networks
pursuant to this Agreement.
1.26 "Product(s)" shall mean, individually and collectively, the
Hardware, Software, and Documentation.
1.27 "Product Annex" shall mean, with respect to a specific Product,
additional or modified terms and conditions as set forth in Exhibit A,
inclusive of but not limited to those that may apply to any Third Party
Hardware or Third Party Software, unique to such Product.
1.28 "Quotation" shall mean a written budgetary or firm price quotation
issued by Nortel Networks to Company for the supply of any Products or
Services pursuant to this Agreement.
1.29 "Service(s)" shall mean, individually and collectively, any of the
Standard Services and/or Customized Services set forth in this Agreement and
Annexes that Company may acquire from Nortel Networks, including but not
limited to maintenance, engineering, installation, training, data management,
program management, project management, commissioning, testing, technical
assistance Services with respect to Products and installation, and consulting.
7
<PAGE>
1.30 "Services Annex" shall mean, with respect to a specific type of
Service, the attachment hereto documenting the terms and conditions that
relate to such type of Service.
1.31 "Services Site" shall mean the location or facility identified
within an Order or Services Annex where the Services are to be performed.
1.32 "Services Software" shall mean that Software and related
documentation made available by Nortel Networks which may be used by Company
for estimation, planning or information purposes.
1.33 "Ship Date" shall mean the date as agreed to by the parties, on
which a Product ordered by Company is scheduled to be shipped from Nortel
Networks' facility or in the case of Software which is downloaded, the date
upon which such Software is to be downloaded to the System; however, Ship
Date shall not mean the date on which Non-Licensed Software is activated.
1.34 "Software" shall mean (i) computer programs in object code form or
firmware which (a) are owned by, or licensed to, Nortel Networks, (b) reside
in Product memories, tapes, disks or other media, and (c) provide basic logic
operating instructions and user-related application instructions; and (ii)
documentation associated with such computer programs which may be furnished
by Nortel Networks to Company from time to time, including both Licensed
Software and Non-Licensed Software, but in no event shall Software include
source code.
1.35 "Software Release" shall mean Software or revisions to Software
containing problem fixes, new features and/or enhancements.
1.36 "Specifications" shall mean with respect to any Product the
specifications and/or practices set forth in any Nortel Networks or documents
which Nortel Networks identifies as the standard performance specifications
and practices for such Product.
1.37 "Standard Service(s)" shall mean, individually and collectively,
any of the Services described in a Services Annex and shall be deemed to
include any similar services which Nortel Networks adds to its generally
available Services offerings or so identifies to Company in writing.
1.38 "Statement of Work" shall mean a document that describes the
scope, activities, schedule, prices, deliverables (including, but not
limited to, any drawings, specifications, reports, designs, and test results
to be prepared or produced by Nortel Networks) related to, and/or any
additional terms and conditions pertaining to, such Customized Service(s) as
may, from time to time, be mutually agreed to in writing by Company and
Nortel Networks pursuant to this Agreement.
8
<PAGE>
1.39 "System" shall mean a configuration of Hardware and Software
providing a specified functionality and includes an Initiall System and its
Extensions, if any.
1.40 "Third Party Hardware" shall mean any hardware not of Nortel
Networks' manufacture which Nortel Networks adds to its generally available
Third Party Hardware price lists or so identifies to Company in a Quotation.
1.41 "Third Party Software" shall mean any Software not owned by Nortel
Networks which is included within Licensed Software or Non-Licensed Software.
1.42 "Turnover" shall mean, with respect to any System installed by
Nortel Networks, that Nortel Networks has completed its standard
manufacturing test procedures, as applicable, and that the System is ready
for acceptance testing by Company.
1.43 "Turnover Date" shall mean, with respect to any Product installed
by Nortel Networks hereunder, the date on which Nortel Networks provides a
notice of Turnover to Company.
ARTICLE 2. SCOPE OF AGREEMENT
2.1 This Agreement sets forth the terms and conditions under which
Company may order Products and/or Services from Nortel Networks. Company shall
use the Products itself, including to provide services to others, subject to
the terms and conditions of this Agreement. Company expressly represents that
it is not buying Product for resale. All Products shall be delivered and
installed, and all Services shall be performed, in the United States.
2.2 To the extent any terms and conditions set forth in this Agreement
are inapplicable to a Product or type of Service, the applicable terms and
conditions and any additional terms and conditions for such Product or type
of Services shall be set forth in the respective Product or Services Annex.
The specific terms and conditions set forth in the Products or Services Annex
shall take precedence over any conflicting terms and conditions contained in
this Agreement.
2.3 If specified in a Product Annex as a requirement, Company shall,
fifteen (15) days prior to each calendar quarter, submit to Nortel Networks a
consolidated non-binding forecast of Products by geographic region, that
Company anticipates purchasing or licensing over the next four (4) calendar
quarters. In addition to the type, quantity and cumulative dollar amounts or
Products, the parties may agree upon additional information to be included in
such forecast.
2.4 All references to prices, charges, fees or other amounts herein
shall be in U.S. dollars and all documentation, correspondence and
communication shall be in the English language.
9
<PAGE>
2.5 Nortel Networks and Company agree to undertake a cooperative
marketing and joint advertising campaign. The parties shall mutually agree on
the content and placement of such cooperative marketing and advertising.
Nortel Networks agrees to make a total expenditure equal to Company's
expenditures for such cooperative marketing and joint advertising.
Notwithstanding the foregoing, Nortel Networks' expenditures for such
cooperative marketing and joint advertising shall not exceed two percent (2%)
of the price of products purchased pursuant to this Agreement.
2.6 In consideration of Nortel Networks pricing its Products and
Services as set forth and described in this Product Annex, and in order to
ensure that Nortel Networks warranty and other support obligations pursuant
to the Agreement apply to all telecommunications switching Products installed
in the Company's network, Company shall purchase, during the Term, any and
all of its requirements for telecommunications switching Products and
Services that will be used by Company for the same or similar purposes as the
telecommunications switching Products and Services currently produced by or
to be produced by Nortel Networks, including, but not limited to the
telecommunications switching Products and Services set forth in this
Agreement. In the event that there is a substantial difference in the
purchase price of the telecommunications switching Products and Services, or
Nortel Networks does not offer for sale a similar Product or Service and is
thus unable to provide such telecommunications switching Products and
Services to Company, and both parties have made a good faith effort to
negotiate a resolution, Nortel Networks will consent to Company's purchase or
substitute products from vendors.
ARTICLE 3. PLACEMENT OF ORDERS
3.1 To order Products and/or Services, Company shall submit to such
person as Nortel Networks shall designate, an Order which shall be at a
minimum specify the following, if applicable:
(i) the types and quantities of Products and/or Services to be
furnished by Nortel Networks;
(ii) the applicable prices, charges and fees with respect to such
Products and/or Services as quoted to Company;
(iii) the location or facility to which the Products are to be
delivered or where Systems are located;
(iv) the incorporation by reference of this Agreement;
(v) the Installation Site or Services Site, if known;
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<PAGE>
(vi) the requested Ship Date and Turnover Date of the System or the
requested Commencement Date of the Services; and
(vii) any other information required under this Agreement to be
included in an Order.
3.2 All purchases pursuant to this Agreement shall be made by means of
Orders issued from time to time by Company and accepted by Nortel Networks in
writing within fifteen (15) days after receipt of the Order. In the event
that Nortel Networks fails to provide its acceptance of an Order in writing
within such fifteen (15) day period, such Order shall be deemed to be
accepted; provided that any additional or special terms and conditions
written on the face of or otherwise incorporated into such Order shall not be
deemed accepted except by Nortel Networks in writing, and any Order
containing additional or special terms and conditions shall not be deemed
accepted merely by the passage of time. Nortel Networks shall have the right
to reject any Order, or the applicable portion of such Order, placed hereunder
where Company has a separate agreement with Nortel Networks for the provision
of the Products or Services requested in such Order or the Order is otherwise
not in accordance with this Agreement.
3.3 All Orders issued by Company pursuant to this Agreement shall refer
to and specifically incorporate this Agreement by reference, and the terms
and conditions herein shall govern the transaction resulting from such Order
PROVIDED THAT such Order is accepted or deemed accepted by Nortel Networks.
Preprinted terms and conditions set forth in Orders issued by Company, or in
any prior Quotations, acknowledgments or other related documentation issued by
any party, shall be considered null and void and shall have no force or
effect unless any special terms and conditions written on the face of or
otherwise incorporated into an Order are accepted by Nortel Networks, and for
such Order only such special terms and conditions shall supersede the
specific terms and conditions contained in this Agreement, including all
Exhibits attached hereto, which are in conflict, but only to the extent of
such conflict.
3.4 Company may at any time request additions, alterations, deductions
or deviations to an Order subject to the condition that such changes and any
adjustments resulting from such changes, including, but not limited to,
schedules and prices, shall be mutually agreed upon and, if so agreed,
subsequently detailed in a written revision to the applicable Order ("Change
Order"). Company acknowledges that a premium charge may be applied by Nortel
Networks should Nortel Networks agree to process a Change Order outside of
its standard Order processing cycle for a Product or in the event that a
Change Order requires an additional amount of work (such as engineering) to
be undertaken to comply with such changes.
3.5 If Company desires to receive a budgetary or firm Quotation from
Nortel Networks for a Product or Service, Company shall submit such request
in writing to Nortel Networks' Director, Commercial Marketing, or such other
person as designated by
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<PAGE>
Nortel Networks. The request for Quotation shall include the information
listed in Section 3.1, as applicable.
3.6 Nortel Networks shall respond in writing to requests for budgetary
Quotations and requests for firm Quotations within thirty (30) days. Unless
otherwise specified in the firm Quotation, such firm Quotation shall be valid
for ninety (90) days from the date of such Quotation. Budgetary Quotations
shall be provided for information and planning purposes only and shall not be
a final or firm statement binding on either party. The Quotations shall
include the following information:
(i) Budgetary Quotations
(a) preliminary Hardware and Software lists;
(b) the estimated charges for the Products;
(c) the estimated charges for Services requested; and
(d) any other information requested by Company.
(ii) Firm Quotations
(a) the price to be paid by Company for the Products, after
applying the applicable discounts, if any;
(b) fixed charges for Services requested;
(c) complete Hardware and Software lists and project schedules; and
(d) any other information requested by Company.
3.7 If Company desires to receive a Statement of Work from Nortel
Networks for Consulting or Customized Services, Company shall submit such
request in writing to such person as Nortel Networks may designate. The
request for a Statement of Work shall include the information listed in
Section 3.1, as applicable. Nortel Networks shall prepare a Statement of Work
in response to Company's request. Any changes to the proposed Statement of
Work shall be negotiated and agreed to in writing by the parties. Any
Statement of Work and any changes to an existing Statement of Work shall not
be binding unless and until the terms are reduced to a writing signed by the
authorized representatives of both parties. Company's Order(s) for the
Consulting or Customized Services described within a Statement of Work shall
be based upon the contents of the Statement of Work as mutually agreed to by
the parties and attached to such Order(s).
3.8 The Ship Date for Products shall be based on Nortel Networks'
standard intervals for the applicable Product; however, the parties shall
always mutually agree on the Ship Date and take into consideration any unique
aspect of the applicable project.
3.9 The Commencement Date for ordered Services shall be based on Nortel
Networks' standard intervals for the applicable Service; however, the parties
shall always agree, in writing, on the Commencement Date taking into
consideration any unique aspect of the applicable project.
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<PAGE>
3.10 Orders may be issued either electronically, such as through electronic
data interchange, or via traditional manual methods, as mutually agreed to by
the parties.
ARTICLE 4. PRICE AND PAYMENT
4.1 Nortel Networks shall charge Company for each Product and/or
Services ordered by Company in accordance with the prices set forth in each
accepted Order, which prices shall be based upon prices identified in one of
(i) a Product Annex; (ii) a Services Annex; (iii) a Firm Quotation; (iv)
Nortel Networks' then current prices; or (v) as specified elsewhere in this
Agreement or as otherwise mutually agreed in writing.
4.2 Nortel Networks' prices set forth in attached Exhibits, may not be
revised during the first year of the Original Term of this Agreement.
However, in the event that there is a recognized industry-wide shortage of a
component that is incorporated in a Product, Nortel Networks may increase the
price of such Product, following the provision of written notice to Company
fifteen (15) days prior to the effective date of such increase or such
shorter date as is mutually agreed in view of the shortage. The price
increase of such Product due to a component shortage shall be limited to a
reasonable amount under the then-current circumstances having regard for
industry conditions for the period of time during which such recognized
shortage exists. Following the implementation of a price increase due to a
component shortage, the parties shall jointly review every three (3) months
or at such other time as is mutually agreed, in good faith, whether such
component shortage still exists. If the component shortage has abated, the
parties shall jointly determine whether there still is a need for such price
increase.
4.3 Unless otherwise set forth in a Product or Services Annex or a
Statement of Work, Nortel Networks shall invoice Company for Products and
Services as follows, unless otherwise agreed to in writing:
(i) for Systems, whether or not installation has been ordered from
Nortel Networks, one hundred percent (100%) of the price for such
System(s) on the Ship Date, and one hundred percent (100%) of the price
of the Services upon the date of completion of such Services;
(ii) for Merchandise or Documentation provided on a furnish-only basis,
one hundred percent (100%) of the price on the Ship Date; and
(iii) for Orders covering Services only, one hundred percent (100%) of
the price for such Services following completion of performance, except
for recurring support Services which shall be billed quarterly in
advance unless otherwise agreed. Some Services may be subject to monthly
invoicing as set out in a Product Annex or Services Annex.
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<PAGE>
4.4 Each invoice shall be paid in full within thirty (30) days after
the date of such invoice. In the event that Company does not pay an invoice
in full within such thirty (30) day period, then Nortel Networks may charge
Company interest on the outstanding portion of such invoice, from day
forty-five (45) forward, at the rate of one percent (1.0%) simple compound
interest per month, or such lesser amount as may be the maximum permissible
rate under applicable law, until such time as the outstanding invoice is
paid. In addition, Company agrees to pay all collection costs and reasonable
legal fees incurred by Nortel Networks as a result of late payment or
non-payment by Company.
ARTICLE 5. SHIPMENT, TITLE, RISK OF LOSS, AND SECURITY INTEREST FOR PRODUCTS
PROVIDED HEREUNDER
5.1 Prior to the Ship Date, Company shall have the right to reschedule
any pending Orders; provided that (i) a minimum period of notice prior to
such Ship Date is given to Nortel Networks by Company in accordance with the
applicable Product Annex; and (ii) the new Ship Date is within ninety (90)
days of the original Ship Date. However, each Order may only be rescheduled
once. Company shall reimburse Nortel Networks for any out of pocket storage
fees, insurance and demurrage costs incurred with respect to such rescheduled
Orders.
5.2 Risk of loss and damage to Products shall pass to Company upon
delivery to the loading dock at the Installation Site or other delivery
location specified by Company in an Order. Company shall keep such Products
fully insured for the total amount then due Nortel Networks for such
Products. Company shall pay transportation charges, including insurance,
associated with the shipment of Products; provided however, that if the
parties agree, Nortel Networks shall prepay transportation charges, and
insurance for delivery of Product to the Installation Site or other delivery
location or other designated receiving point as specified in an Order. These
charges shall be invoiced by Nortel Networks and paid by Company to Nortel
Networks in accordance with Article 4 above.
5.3 Good title to Hardware furnished hereunder, free and clear of all
liens and encumbrances, shall vest in Company upon full payment to Nortel
Networks of the total amount payable by Company for such Hardware and any
related Licensed Software or Services ("Total Fee") furnished by Nortel
Networks in connection with such Hardware. Prior to payment of the Total Fee
for the Products and Services in an Order, Company shall not sell or lease
the Hardware, or allow any liens or encumbrances to attach to the Hardware or
Software, or remove the Hardware or Software from the Installation Site
without the prior written consent of Nortel Networks, such consent not to be
unreasonably withheld, conditioned or delayed.
5.4 If Company notifies Nortel Networks prior to a Ship Date that
Company does not wish to receive such Products on the Ship Date, or the
Installation Site or other delivery location is not prepared in sufficient
time for Nortel Networks to make delivery
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in accordance with such date, or Company fails to take delivery of any
portion of the Products in an Order when shipped, Nortel Networks may place
the applicable Products in storage. In that event, Company shall be liable
for all additional costs thereby incurred by Nortel Networks. Delivery by
Nortel Networks of any Products to a storage location as provided in this
Paragraph shall be deemed to constitute delivery of the Products to Company
for purposes of this Agreement, including, without limitation, provisions for
payment, invoicing, passage of risk of loss, and commencement of the warranty
period.
5.5 Until the Total Fee is paid, Company grants to Nortel Networks a
purchase money security interest in the Products in an Order and their
proceeds or such other similar protection a may be available in the
applicable jurisdiction. Company shall cooperate with Nortel Networks in
preserving and perfecting Nortel Networks' security interest in the Products
and Company shall promptly execute and deliver to Nortel Networks such
financing statements and such other agreements, documents and instruments as
Nortel Networks may require to perfect and maintain the validity effectiveness
and priority of the security interest created or intended to be creased by this
Agreement. Notwithstanding anything to the contrary herein, Nortel Networks
will subordinate its purchase money security interest in such equipment upon
Company's demonstration that: (i) it has obtained a financing commitment from
NTFC or other third party lender in the amount of at least Fifty Million
Dollars ($50,000,000.00); and (ii) that Company has satisfied the conditions
to funding under that financing commitment; and, (iii) Company has drawn down
at least Two Million Dollars ($2,000,000.00) of its available credit line to
repay Nortel for a working capital loan extended to Company.
5.6 Company authorizes Nortel Networks to file to one or more financing
or continuation statements and amendments thereto, relating to all or any
part of the Products in an Order without signature of the Company where
permitted by law. A carbon, photographic or other reproduction of this
Agreement or of any financing statement covering the Products or any part
thereof shall be sufficient as a financing statement and may be filed as a
financing statement.
5.7 Notwithstanding the foregoing, Nortel Networks obligation to ship
any Products ordered pursuant to this Agreement is contingent upon Nortel
Networks receipt of verification that Company has obtained the financing
commitment described in Section 5.5 of this Agreement and Nortel Networks
receipt of the Two Million Dollar payment referenced in Section 5.5; and
receipt of applicable executed financing statements UCC-1 filings, or other
documents necessary to perfect Nortel Networks security interest granted
pursuant to Section 5.5 and 5.6 of this Agreement.
ARTICLE 6. COMPANY'S ADDITIONAL RESPONSIBILITIEs
6.1 Company shall provide Nortel Networks or its subcontractors with
access to its personnel and Installation Sites, Services Site, or other
Company facilities during the times specified by Nortel Networks and as are
reasonably necessary for Nortel
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Networks to perform its obligations hereunder. Nortel Networks shall comply
with Company's reasonable site and security regulations of which Nortel
Networks is informed by Company.
6.2 All sites at which the Products shall be delivered or installed, or
at which Services shall be performed, shall be prepared by Company in
accordance with Nortel Networks' standards, including without limitation,
environmental requirements. Prior to and during installation, Company shall
ensure the timely and adequate delivery, installation and functioning of the
electrical and communications connections and other environmental
requirements, including but not limited to, HVAC systems, specified in Nortel
Networks' instructions, Specifications, Documentation, a Product or Services
Annex, or a Statement of Work.
6.3 Company shall provide reasonable working space and facilities,
including heat, light, ventilation, telephones, electrical current, waste
removal and other necessary utilities for use by Nortel Networks personnel
performing installation or other Services and adequate secure storage space,
if required by Nortel Networks, for Products and materials. Company shall
also provide adequate security against theft, damage or other loss for the
Products while on Company's Installation Site or other delivery location
specified by Company.
6.4 Company shall obtain all necessary governmental permits applicable
to Company in connection with the installation, operation, and maintenance of
Products furnished hereunder, excluding any applicable permits required in
the normal course of Nortel Networks' doing business. Any information which
Nortel Networks reasonably requests from Company and which is necessary for
Nortel Networks to properly install or maintain the Products shall be
provided by Company to Nortel Networks in a timely fashion and in a form
reasonably specified by Nortel Networks.
6.5 If (a) Company notifies Nortel Networks, prior to the Commencement
Date for ordered Services, that Company wishes to postpone the commencement of
such Services, or (b) the Services Site (or other location), necessary
information or key Company representatives are not available or prepared in
sufficient time for Nortel Networks to commence such Services in accordance
with such date, then Company shall be liable for all additional costs related
to the postponed Services, including, without limitation, (i) standard rates
(including any overtime premium) for Nortel Networks' personnel and/or
contractors who travel to the Services Site or other location, and the actual
travel and living expenses (plus a fifteen percent (15%) administrative fee)
and/or relocation expenses incurred by such personnel and/or contractors, and
(ii) any costs, charges or expenses incurred by Nortel Networks under its
arrangements with third party vendors, licensors, lessors, and/or
contractors. In addition, if Company provides less than thirty (30) days'
notice of the postponement, Company shall pay to Nortel Networks a
postponement charge equal to ten percent (10%) of the Order amount for the
postponed Services.
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ARTICLE 7. TESTING, TURNOVER AND ACCEPTANCE OF PRODUCTS AND SERVICES
7.1 If installation Services are ordered by Company, Nortel Networks
shall, upon completion of such installation test the Products in accordance
with Nortel Networks' Turnover procedures to verify that such Products
function substantially in accordance with applicable Specifications. Upon
completion of such verification, Nortel Networks shall provide to Company a
written notice of Turnover. Company shall be permitted an opportunity to have
an appropriately qualified individual in attendance to observe the
performance of such tests, however, the absence of such Company individual
for any reason shall not invalidate the tests nor be a reason for Company to
withhold Acceptance.
7.2 Within ten (10) business days after the Turnover Date, Company
shall either accept the Product by execution of a notice of Acceptance, or
notify Nortel Networks in writing, giving reasonable detail about those
particulars in which, in Company's opinion, the Product does not materially
conform to the Specifications. If neither Acceptance nor Company's written
notification to Nortel Networks detailing its basis for not accepting such
Product occurs within ten (10) days after the Turnover Date, then Acceptance
shall be deemed to have occurred.
7.3 If Nortel Networks does not install Products furnished hereunder,
Nortel Networks shall, prior to delivery of the Products, perform such
factory tests as Nortel Networks determines to be appropriate in order to
confirm that such Products perform substantially in accordance with the
applicable Specifications. Company shall be deemed to have accepted the
Products based upon such tests and Acceptance shall be deemed to have
occurred upon the Ship Date. In the event that Company or any other entity
intends to perform installation of Products, (except for installation of
Products which are not permitted to be installed other than by Nortel
Networks, as specified in the applicable Product Annex or Documentation)
Company or such entity may be required to complete prerequisite training or
certification prior to Company being allowed to install such Products.
7.4 In the event that Company is utilizing any Product in a
revenue-generating capacity, Acceptance shall be deemed to have occurred
without limitation or restriction, upon the date of placement of such Product
into revenue generating service.
7.5 Products, such as Merchandise, which are purchased separately from
a System, shall be deemed accepted upon the Ship Date.
7.6 Company shall not unreasonably withhold Acceptance. Nortel Networks
shall correct any deficiencies identified by Company as not materially
conforming to the Specifications. When Nortel Networks has corrected such
deficiencies, Company shall accept the Products in writing. Company's failure
to either accept or provide notice to
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non-conformance within the timeframe from the Turnover Date, as prescribed in
Section 7.2, above, shall constitute Acceptance of the Products.
7.7 Following Acceptance of Products, Company shall execute Nortel
Networks' Acceptance notice, confirming Acceptance without any conditions,
restrictions, or limitations of any nature whatsoever.
7.8 Acceptance shall not be withheld or postponed due to:
(i) Deficiencies of such Products resulting from causes not
attributable to Nortel Networks, such as, but not limited to (a)
material change in or inaccuracy of Customer Information, (b)
inadequacy or deficiencies of any materials, information,
facilities or services provided directly or indirectly by Company
and tested in conjunction with the applicable Products, or spurious
outputs from adjacent material, or (c) other conditions external to
the Products which are beyond the limits specified by Nortel
Networks in the Specifications for the Products; or
(ii) Minor deficiencies or shortages with respect to such Products
which are attributable to Nortel Networks, but of a nature that do
not prevent operation of the Products in revenue-generating service.
7.9 With respect to any deficiencies of the type described in Section
7.8(i), Nortel Networks shall at Company's request and expense assist Company
in the elimination or minimization of any such deficiencies. With respect to
any deficiencies or shortages as described in Section 7.8(ii), Nortel
Networks shall, at Nortel Networks' expense, correct any such deficiencies or
shortages within thirty (30) days of the date of Acceptance or as otherwise
agreed by the parties.
7.10 In the event that Company notifies Nortel Networks of
non-acceptance of a Product and Nortel Networks personnel travels to the
Installation Site to remedy such non-acceptance and determines that
non-acceptance is due to a deficiency of the type described in Section
7.8(i), Nortel Networks will invoice Company for Nortel Networks'
investigation of the matter, consisting of the standard labor rate for Nortel
Networks' personnel who travel to the Installation Site and the reasonable
travel and living expenses incurred by such personnel.
7.11 Services shall be deemed to be accepted upon: (i) completion of
such Services; or (ii) completion of specific milestones as may be identified
in a Services Annex or Statement of Work; or for ongoing Services purchased
on an annual basis, upon agreement of the parties in writing to purchase and
provide such Services.
ARTICLE 8. ORDER CANCELLATION
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8.1 If, prior to the Ship Date, Company cancels all or any part of an
Order, Company shall pay to Nortel Networks a cancellation charge for the
Products or each item of Third Party Hardware or Third Party Software that
has been cancelled in accordance with the schedule set forth in the
applicable Product Annex.
8.2 Orders for Products that have been shipped may not be cancelled.
Furthermore, Orders for Products which Nortel Networks customizes in
accordance with a specific Company request may not be cancelled.
8.3 In the event that Company cancels all or part of an Order for
Products, Company shall pay to Nortel a cancellation charge for each Product
or each item of Third Party Hardware or Third Party Software that has been
cancelled in accordance with the following schedule:
-60 days or more prior to Ship Date 100% of Engineering Charges
-30-59 days prior to Ship Date 25% of Order amount
-15-29 days prior to Ship Date 35% of Order amount
- 0-14 days prior to Ship Date 50% of Order amount
8.4 Unless otherwise set forth in a Services Annex or Statement of
Work, in the event that Company cancels all or any part of an Order for
Services, Company shall pay to Nortel Networks a cancellation charge for the
Services that have been cancelled in accordance with the following schedule:
- 60 or more days prior to Commencement Date No cancellation charge
- 45-59 days prior to Commencement Date 5% of Order amount
- 30-44 days prior to Commencement Date 10% of Order amount
- 0-29 days prior to Commencement Date 20% of Order amount
In addition, Company shall be liable for all additional costs related to the
cancelled Services, including, without limitation, (i) standard rates
(including any overtime premium) for Nortel Networks' personnel and/or
contractors who travel to the Services Site or other location, and the actual
travel and living expenses (plus a fifteen percent (15%) administrative fee)
and/or relocation expense incurred by such personnel and/or contractors, and
(ii) any costs, charges or expenses incurred by Nortel Networks under its
arrangements with third party vendors, licensors, lessors and/or contractors.
ARTICLE 9 WARRANTY
9.1 Nortel Networks warrants that for a period of twelve (12) months
from the Ship Date of a System the Hardware contained in such System under
normal use and Services will be free from defective material and faulty
workmanship and shall comply with the applicable Specifications. The warranty
period for Merchandise shall be ninety (90) days from the Ship Date of such
Merchandise. The foregoing warranties shall not
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apply to items normally consumed during operation of a System such as, but not
limited to, lamps and fuses.
9.2 Nortel Networks warrants that any installation Services, Standard
Services, or Customized Services performed by Nortel Networks with respect to
a System will be free from defects in workmanship for a period of twelve (12)
months from the completion date of such Services.
9.3 Nortel Networks warrants that any Licensed Software shall function
during the warranty period of the Hardware with respect to which such Licensed
Software is furnished without any material, service-affecting,
non-conformance to the applicable Specifications. Licensed Software that is
delivered separately from Hardware is warranted for a period of twelve (12)
months from the applicable Ship date. If the Licensed Software fails to so
function, Company's exclusive remedy and Nortel Networks' sole obligation
under this warranty is for Nortel Networks to correct such failure through,
at Nortel Networks' option, the replacement or modification of the Licensed
Software or such other actions as Nortel Networks reasonably determines to be
appropriate, all within a reasonable time having regard to all of the
circumstances and failing with the parties agree to negotiate a commercially
reasonable solution. Any modification to the Software not performed by Nortel
Networks, other than with respect to Modifiable Software, shall void this
warranty.
9.4 If Hardware is not free from defects in material or workmanship and
fails to comply with the applicable Specifications during the warranty
period, Nortel Networks will at its sole option repair, replace or modify the
defective Hardware so that it substantially complies with the applicable
Specifications. The warranty Services shall be performed at the Installation
Site or Nortel Networks' facility as determined by Nortel Networks. If Nortel
Networks is unable to repair or modify the defective Hardware within a
reasonable period of time so that such Hardware conforms to the applicable
Specification, Nortel Networks shall replace the defective Hardware with
Hardware that conforms to such Specifications, which may be new or
reconditioned at Nortel Networks' option.
9.5 Nortel Networks' sole obligation and Company's exclusive remedy
under the warranty provisions of this Article with respect to Hardware and
those Services specified in this Article 9 shall be limited to repair,
modification or replacement of the defective Hardware or correction of the
defective Services.
9.6 Notwithstanding the foregoing, the warranty period of Hardware
which has been subject to repair or replacement by Nortel Networks shall
commence upon the Ship Date of the repaired or replacement Hardware to
Company and shall expire on the later of ninety (90) days or the last day of
the original warranty period with respect to Hardware which was repaired or
replaced. The warranty period of Licensed Software which has been corrected,
due to a material, service-affecting non-conformance found in such Licensed
Software, shall expire on the later of ninety (90) days from the Ship Date
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of the corrected Licensed Software to Company or the last day of the original
warranty period with respect to such Licensed Software.
9.7 Nortel Networks warrants that its Products and deliverables shall
comply in all material aspects with all applicable laws and regulations known
to Nortel Networks, which are in force on the date of acceptance of the
applicable Order therefor, which laws or regulations directly impose
obligations upon any manufacturer, seller or, if applicable, installer of
such Products.
9.8 The performance by Nortel Networks of any of its obligations
described in this Article 9 shall not extend the applicable warranty period.
9.9 The warranties set forth in this Article shall not apply to any
Products where the defect or non-conformance is due to (i) accident, fire,
explosion, power failure, power surge or other power irregularity, lightning,
alteration, abuse, misuse or repair not performed by Nortel Networks; (ii)
improper storage; (iii) failure to comply with all applicable environmental
requirements for the Products as specified by Nortel Networks or any other
applicable supplier, such as but not limited to temperature or humidity
ranges; (iv) improper performance of installation, maintenance, operation or
other Services in connection with the Products, provided that such Services
was not performed by Nortel Networks or on Nortel Networks' behalf; (v) use
in conjunction with an incompatible product or a product not purchased under
this Agreement; (vi) any error, act or omission by anyone other than Nortel
Networks; or (vii) where written notice of the defect has not been given to
Nortel Networks within the applicable warranty period.
9.10 The warranties set forth in this Article shall not apply to (i)
Non-Licensed Software for which the right to use fees have not been paid; or
(ii) Third Party Software or Third Party Hardware, provided however that
Nortel Networks shall assign to Company (to the extent of Nortel Networks'
right to do so) the warranty rights granted to Nortel Networks by the
appropriate vendor of such Third Party Software or Third Party Hardware.
9.11 Unless mutually agreed otherwise, all Hardware to be repaired or
replaced, whether in or out of warranty, shall be de-installed and packed by
Company in accordance with Nortel Networks' instructions. Nortel Networks
shall use reasonable efforts to ship repaired or replacement Hardware within
thirty (30) days of receipt of the defective Hardware. To facilitate the
processing of the defective Hardware returned hereunder, Nortel Networks
may ship replacement Hardware prior to Nortel Networks receiving the defective
Hardware. In the event that Company fails to return defective Hardware and
Nortel Networks has shipped such replacement Hardware, Nortel Networks shall
invoice Company at Nortel Networks' applicable then-current prices for such
replacement Hardware, thirty (30) days after the Ship Date of such
replacement Hardware. If mutually agreed, Nortel Networks will make repairs
on-site at Nortel Networks' then-current charge for such repairs.
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9.12 If the Hardware returned to Nortel Networks pursuant to Section
9.11 is determined by Nortel Networks to be beyond repair and is outside the
warranty period, Nortel Networks shall notify Company and if requested Nortel
Networks shall sell Company replacement Hardware at Nortel Networks'
then-current prices for such replacement Hardware.
9.13 Company shall bear risk of loss or damage and shall pay for all
transportation charges for Hardware returned to Nortel Networks, and Nortel
Networks shall bear risk of loss or damage and pay for transportation charges
for repaired or replacement Hardware shipped to Company. Title or returned
Hardware shall pass to Nortel Networks upon receipt. Title to replacement
Hardware shall pass to Company upon receipt. Title to Hardware shipped to
Nortel Networks for repairs remain with Company at all times.
9.14 Nortel Networks and Nortel Networks' vendors of Third Party
Hardware and Third Party Software, as appropriate, shall not have any
responsibility to Customers for warranties offered by Company to such
Customers and Company hereby indemnifies and holds harmless Nortel Networks
and Nortel Networks' vendors, as appropriate, from any claims, damages or
liabilities arising out of, or relating to, any warranties offered by Company
to such Customers.
9.15 Nortel Networks' represents and warrants that both before and
after January 1, 2000, any software licensed by Nortel Networks to the
Company under this Agreement shall function, during the warranty period of the
product with which such software is provided, without any material,
service-affecting nonconformance to the applicable specifications. If the
software fails to so function, Company's sole remedy and Nortel Networks
sole obligation under this warranty is for Nortel Networks to correct such
failure through, Nortel Networks sole option, the replacement or modification
of the software or such other actions as Nortel Networks reasonably
determines to be appropriate.
9.15.1 Without limiting the generality of the foregoing paragraph,
Nortel Networks products may continue to use year representations which do
not use four digits where such representations do not constitute a material,
service-affecting nonconformance to the applicable specifications. Nortel
Networks shall not be obliged to convert any time-date representations to any
arbitrary time-date representation format or standard. Nortel Networks shall
not be responsible for the failure of any Nortel Networks product to comply
with the applicable specifications if such failure was the result of (i) the
combination of Nortel Networks products with non-Nortel Products; or, (ii)
modification of a Nortel Networks product by the Company or any other third
party.
9.16 THE WARRANTIES, CONDITIONS AND REMEDIES SET FORTH HEREIN
CONSTITUTE THE ONLY WARRANTIES, OBLIGATIONS OR CONDITIONS OF NORTEL NETWORKS
WITH RESPECT TO THE PRODUCTS AND SERVICES AND ARE COMPANY'S SOLE AND EXCLUSIVE
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REMEDIES IN THE EVENT THAT SUCH WARRANTIES OR CONDITIONS ARE BREACHED. THEY
ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NORTEL
NETWORKS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES OR
PROFITS OR OTHER ECONOMIC LOSS, OF ANY NATURE WHATSOEVER ARISING OUT OF
NORTEL NETWORKS' BREACH OF WARRANTY OR CONDITION.
ARTICLE 10. NORTEL NETWORKS' ADDITIONAL OBLIGATIONS
10.1 Nortel Networks shall make training available to representatives
of Company with respect to the operation, configuration, installation,
service, maintenance and support of the Products at Nortel Networks' then
current prices and at Nortel Networks' facilities, subject to course and
class availability. Nortel Networks shall provide Company with a certain
number of training credits ("Training Credits"), as set forth in the
applicable Product Annex, to be used by Company in any of Nortel Networks'
training courses related to the Products that Company has purchased. The
Training Credits for each Product may only be used in connection with such
Product and must be used within two (2) years from the date such Training
Credits were earned, after which such Training Credits will be forfeited by
Company.
10.2 Upon request, Nortel Networks shall provide Company with copies of
its then current training catalogue. Upon the request of Company, Nortel
Networks shall provide to Company such training as Company requests, at a
time and place mutually agreed upon and at the then-current prices for such
training. The cancellation fees set forth in the training catalogues shall
apply.
10.3 Nortel Networks shall include its standard Documentation package,
if any, with each shipment of Products. Nortel Networks shall make the
Documentation available on its choice of media, which may include CD-ROM or
other electronic media. Nortel Networks shall provide Company with any other
Documentation that is ordered at its then-current prices therefor.
Documentation provided via Nortel Networks' CD-ROM media may be printed and
copied and Documentation provided in paper format may be copied only to the
extent such printing or copying is necessary for the operation and
maintenance of the Products to which the Documentation pertains, and only to
the extent allowed in the Documentation. However, Company may not press or
burn any copies of CD-ROM discs.
10.4 During the term of this Agreement, Company may receive various
support Services from Nortel Networks in connection with the Products
Company acquires from Nortel Networks under this Agreement. These Services
may include, but are not limited to the following: technical assistance
Services, installation Services, Hardware
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maintenance Services, Software maintenance Services and parts repair and
replacement Services. The various support Services that Company may obtain
and the manner in which they will be provided are set forth in a Services
Annex, which is attached hereto and incorporated herein. The fees for these
Services, if available upon execution of this Agreement, are set forth in
Exhibit B. Fees for any support Services not specified in Exhibit B shall be
provided on an as-quoted basis or in a Statement of Work pursuant to Nortel
Networks' applicable terms and conditions.
10.5 For the period following the Ship Date of a System as specified in
the applicable Product Annex, Nortel Networks shall make replacement parts, or
their functional equivalent, available for purchase by Company. Nortel
Networks shall also make available to Company such information as is
reasonably required in order to allow functionally equivalent spare parts to
perform with Products previously delivered to Company. The prices charged for
the spare parts shall be Nortel Networks' then current published list price
or its then current policy.
10.5.1 In the event Nortel Networks intends to discontinue the
availability of, or support Service for, a major module of a Product, Nortel
Networks shall provide Company with at least ninety (90) days prior written
notice of such event and the applicable Product or support Service shall be
considered manufacture discontinued or discontinued, respectively, after such
ninety (90) day period. Nortel Networks shall have no obligation to provide
notice of manufacture discontinue if only components and individual circuit
packs of a Product are being discontinued or replaced.
ARTICLE 11. SOFTWARE LICENSE
11.1 Company acknowledges that the Software may contain programs which
have been supplied by, and are proprietary to, Third Party Software vendors.
In addition to the terms and conditions herein, Company shall abide by any
additional terms and conditions specified in a Product Annex with respect to
any Software provided by any Third Party software vendor.
11.2 Upon Company's payment to Nortel Networks of the applicable fees
with respect to any Software furnished to Company pursuant to this Agreement,
Nortel Networks hereby grants to Company, subject to the applicable terms and
conditions of this Article 11, a personal, non-transferable, non-assignable,
and non-exclusive, right and license to use the Licensed Software furnished to
Company, but only in conjunction with Company's use of the Hardware and/or
the Documentation with respect to which such Licensed Software was furnished.
The duration of such right to use shall last (i) with respect to Licensed
Software furnished in connection with Hardware, for the life of that Hardware
as it may be repaired or modified, and (ii) with respect to Licensed Software
furnished otherwise, for the duration of Company's right to use the Licensed
Software as demonstrated in the appropriate license. Company shall be granted
no title or ownership rights to the Software, which rights shall remain in
Nortel Networks or its suppliers.
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11.3 As a condition precedent to this license and to the supply of
Software by Nortel Networks pursuant to this Agreement, Nortel Networks
requires Company to give proper assurances to Nortel Networks for the
protection of the Software. Accordingly, all Software supplied by Nortel
Networks under or in implementation of this Agreement shall be treated by
Company as the exclusive property, and as proprietary and a trade secret, of
Nortel Networks and/or its suppliers, as appropriate, and Company shall:
(i) hold the Software, including, without limitation, any methods or concepts
utilized therein, in confidence for the benefit of Nortel Networks and/or its
suppliers, as appropriate; (ii) not provide or make the Software available to
any person except to its employees on a 'need to know' basis and then only
under confidentiality obligations; (iii) not reproduce, copy, or modify the
Software in whole or in part except as specifically authorized in writing by
Nortel Networks; (iv) not attempt to decompile, reverse engineer,
disassemble, reverse translate, or in any other manner decode the Software;
(v) issue adequate instructions to all persons, and take all actions
reasonably necessary, to satisfy Company's obligations under this license;
and (vi) forthwith return to Nortel Networks, or with Nortel Networks'
consent destroy (a) upon termination of the license for any reason, or (b)
upon receipt of replacement, modified, or updated Software, any magnetic
tape, disc, semiconductor device or other memory device or system memory
and/or Documentation or other material, including, but not limited to all
printed material furnished by Nortel Networks to Company. An appropriate
officer or other authorized representative of Company shall certify in
writing to Nortel Networks that all copies of material in the possession or
control of Company have been destroyed as required in this Paragraph.
11.4 The obligations of Company hereunder shall not extend to any
information or data relating to the Software which: (a) was known by Company
prior to disclosure, as evidenced by its business records; (b) was lawfully
in the public domain prior to its disclosure, or becomes publicly available
other than through a breach of this Agreement; (c) was disclosed to Company
by a third party provided such third party, or any other party from whom such
third party receives such information, is not in breach of any
confidentiality obligation in respect of such information; (d) is
independently developed by Company, as evidenced by its business records; or
(e) is disclosed when such disclosure is compelled pursuant to legal,
judicial, or administrative proceedings, or otherwise required by law,
subject to Company using reasonable efforts to provide prior notice to Nortel
Networks to allow it to seek protective or other court orders.
11.5 Nortel Networks may issue updates to the Software from time to
time, and upon Company's payment of any applicable right to use fees shall
license such updates to Company. The right to use fees for such updates do
not include the price of any associated Hardware that may be required to use
such updates.
11.6 Neither Company nor any successor to Company's title in the
applicable Hardware shall have the right to (i) assign this license as to the
applicable Licensed Software to any other person who acquires legal title to
such Hardware; or (ii) sublicense
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the rights herein granted as to such Licensed Software to any other person
who subsequently acquires the right to use such Hardware, unless agreed to in
writing by Nortel Networks, such consent not to be unreasonably withheld.
11.7 Company shall indemnify and hold Nortel Networks and its suppliers,
as appropriate, harmless from any loss or damage resulting from a breach of
this Article 11. The obligations of Company under this Article 11 shall
survive the termination of the Agreement and shall continue after the
Software is removed from service.
NON-LICENSED SOFTWARE
11.8 Certain Software delivered by Nortel Networks may include
Non-Licensed Software. Non-Licensed Software includes (i) any Software for
which the applicable right to use fees have not been paid; and (ii) Software
for which a periodic right to use fee has expired and the applicable
additional periodic right to use fees have not been paid. Company shall
submit to Nortel Networks an Order for any Non-Licensed Software that Company
desires to license or renew.
11.9 When Non-Licensed Software is placed into service, even without the
submission of an Order, the applicable right to use fees shall be payable.
Company shall also have the option to pay the applicable right to use fees
for any Non-Licensed Software upon installation of a Software load containing
such Non-Licensed Software.
11.10 To ensure Company's proper activation and/or usage of only the
appropriate Software, Company shall complete the appropriate form designated
by Nortel Networks prior to the activation and/or usage by Company of any
Non-Licensed Software. Company shall identify all Software desired to be
activated and/or used (including the number of lines or other units
activated, if applicable) in each System and shall transmit such form to
Nortel Networks.
11.11 Nortel Networks shall promptly review any form submitted pursuant
to Section 11.10 and respond in writing, identifying whether (i) any
applicable prerequisite Hardware or Software is required by Company prior to
activation and/or usage of the applicable Software; or (ii) whether the use
of such Software requires Nortel Networks to determine whether the current
System configuration will require additional elements, such as Hardware,
other hardware and/or System memory, prior to activation and/or usage; or
(iii) whether Company can use such Software without any additional Hardware
or Software.
11.12 Nortel Networks reserves the right to access by remote polling any
site in which Software has been installed to determine which Software has
been activated. Such polling shall be done so as not to unreasonably
interfere with Company's use of the Products.
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11.13 Nortel Networks shall issue invoices to Company, in addition to
those amounts previously invoiced, for amounts payable as a result of
Company's activation and/or usage of any Software which Nortel Networks
determines as a result of the remote polling of a site and for which Company
has not previously paid the appropriate right to use fee.
11.14 The warranty period for Software activated later than the original
Ship Date of the Software load shall be for the same period as such original
Software load and shall not be extended to provide for an additional period of
warranty based upon the date individual features or units are activated
and/or utilized by Company or the date Company pays any applicable right to
use fees.
11.15 Nortel Networks shall provide the Software support Services
specified in Article 10 or in a Services Annex, provided that Company
operates the Software at Nortel Networks' current Software release level or
within at least two (2) previous Software release levels, unless otherwise
specified in the Product or Services Annex.
MODIFIABLE SOFTWARE
11.16 Notwithstanding anything to the contrary above, upon payment to
Nortel Networks of the applicable fees, Nortel Networks hereby grants to
Company, subject to the applicable terms and conditions of this Article 11, a
personal, non-transferable, non-assignable and non-exclusive right and
license to modify Licensed Software which Nortel Networks identifies as
Modifiable Software.
11.17 Upon the modification or creation of any Applications, or the
modification or creation of any Building Blocks, Nortel Networks shall have
no obligations with regard to warranty under Article 9 or indemnity under
Article 12 for such Applications or Building Blocks.
11.18 Nothing contained in this Section 11.16 shall transfer, or be
deemed to transfer, or contemplate the transfer of, any rights in or to the
Software other than those rights specifically granted herein, and in
particular but without restricting the generality of the foregoing, Nortel
Networks does not in any way transfer any right, title or interest in or to
the Software or any element constituting a portion thereof to Company, other
than the right of Company to modify or create Building Blocks and
Applications.
11.19 For any Building Blocks and Applications created solely by
Company, and with respect to only the modified portions of all
Company-modified portions of the Nortel Networks-provided Building Blocks,
Company shall own all forms of intellectual property rights (including but
not limited to patent, trade secret, copyright and mask rights) pertaining to
such Applications, Building Blocks or portions thereof and shall have the
right to file for or otherwise secure and protect such rights. For all such
Company created Applications or Building Blocks or modified portions of
Building Blocks, the parties shall, on a case by case basis, negotiate in
good faith to determine
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whether Company may desire to license any such Applications or Building Blocks
to Nortel Networks, such license to be at no charge to Nortel Networks as long
as Company is licensed hereunder.
11.20 For any Applications created solely by Nortel Networks, and for
the Nortel Networks-provided Building Blocks, Nortel Networks shall own all
forms of intellectual property rights (including but not limited to patent,
trade secret, copyright and mask rights) pertaining to such Applications or
Building Blocks and shall have the right to file for or otherwise secure and
protect such rights. For all such Nortel Networks Applications or Building
Blocks, Company may license any such additional Nortel Networks Products upon
Nortel Networks making such software generally available to its customers.
11.21 In the event that Company and Nortel Networks intend to jointly
create Applications or Building Blocks, the parties shall mutually agree in
writing as to applicable terms and conditions.
SERVICES SOFTWARE
11.22 With respect to Services Software, Company shall: (i) utilize
such Services Software and the results thereof solely for the purposes
described in Section 1.32; and (ii) comply with additional terms, if any,
applicable to such. Services Software as specified in a Product Annex. Nortel
Networks may, at any time and without liability or obligation to Company,
modify the Services Software, any computer equipment of Nortel Networks or
suppliers used in connection with such Services Software, and identification
codes, manuals or other information or Documentation used in connection with
the Services Software.
11.23 SERVICES SOFTWARE IS PROVIDED AS IS AND WITHOUT WARRANTY OR
CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. NORTEL NETWORKS DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR
RESULTS THAT MAY BE OBTAINED BY USING SERVICES SOFTWARE. COMPANY ASSUMES SOLE
RESPONSIBILITY FOR THE SELECTION OF THE SERVICES SOFTWARE TO ACHIEVE
COMPANY'S INTENDED RESULTS, AND FOR THE INSTALLATION, USE, AND RESULTS
OBTAINED FROM THE SERVICES SOFTWARE. IN NO EVENT SHALL NORTEL NETWORKS BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS OR OTHER
ECONOMIC LOSS, OF ANY NATURE WHATSOEVER ARISING OUT OF COMPANY'S USE OF
SERVICES SOFTWARE.
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ARTICLE 12. INTELLECTUAL PROPERTY RIGHTS
12.1 The Services performed by Nortel Networks and its Affiliates
pursuant to this Agreement (and any deliverables provided to Company in
connection therewith) are not "works for hire".
12.2 All Background IPR of a party or its Affiliate shall remain the
exclusive property of such party or its Affiliate, and the information
contained therein shall be deemed to be Confidential Information of such
party or its Affiliate.
12.3 With respect to any Background IPR of Company disclosed to Nortel
Networks, its Affiliates, and/or its contractors in connection with this
Agreement, Company hereby grants to Nortel Networks, Nortel Networks'
Affiliates, and Nortel Networks' contractors a non-exclusive, royalty-free,
worldwide right to make, use, and reproduce such Background IPR, but only to
the extent that such right is necessary for the performance of Nortel
Networks; obligations under this Agreement and the Services contemplated
hereunder.
12.4 With respect to any Foreground IPR of Nortel Networks and its
Affiliates which is incorporated or contained within, or which is required
for the implementation of, any recommendations(s) or conclusions(s) advanced
by Nortel Networks in the course of performing Services under this Agreement,
Nortel Networks hereby grants to Company a non-exclusive, royalty-free,
worldwide right to use and disclose such Foreground IPR, but only to the
extent necessary for Company to implement such recommendations(s) or
conclusions(s) in the implementation, operation and maintenance of Company's
communications network or in Company's provision of communications services.
12.5 With respect to any Background IPR of Nortel Networks and its
Affiliates which is incorporated or contained within, or which is required
for the implementation of, any recommendations(s) or conclusions(s) advanced
by Nortel Networks in the course of performing Services under this Agreement,
Nortel Networks will grant to Company, upon reasonable commercial terms, a
non-exclusive, worldwide right to use and disclose such Background IPR, but
only to the extent necessary for Company to implement such recommendations(s)
or conclusions(s) in the implementation, operation and maintenance of
Company's communications network or in Company's provision of communications
services. Notwithstanding the foregoing, the grant to Company of rights in the
Background IPR of Nortel Networks and its affiliates shall not include
product design information of Nortel Networks and its Affiliates, but shall
be limited to that Background IPR within the scope of the technical
information to be included within the deliverables.
12.6 Prior to disclosing to any third party any Foreground IPR or
Background IPR of Nortel Networks and its Affiliates pursuant to Sections
12.2 or 12.5. Company shall (i) advise such third party in writing of the
confidential and proprietary nature and the limitations on use of the
information to be disclosed, as set forth in Sections 12.4 and
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12.5, and shall (ii) obtain from such third party a written undertaking to
respect such obligations.
12.7 Nothing contained in this Agreement shall transfer, or be deemed
to transfer or contemplate the transfer of, any Intellectual Property Right
other than those rights specifically granted herein, and in particular but
without restricting the generality of the foregoing, Nortel Networks does not
in any way grant any license in, to, or under any of its Intellectual
Property Rights.
12.8 Nothing contained in this Agreement shall prevent, or be deemed
to prevent, Nortel Networks or its Affiliates from providing to any third
party the same or similar Services (including the same or similar
recommendations or conclusions) as may be provided to Company pursuant to
this Agreement.
ARTICLE 13. LIABILITIES FOR BODILY INJURY, PROPERTY DAMAGE AND PATENT
INFRINGEMENT
13.1 A party hereto shall defend the other party against any suit,
claim, or proceeding brought against the other party for direct damages due
to bodily injuries (including death) or damage to tangible property which
allegedly result from the negligence or willful misconduct of the defending
party in the performance of this Agreement. The defending party shall pay all
litigation costs, reasonable attorney's fees, settlement payments and such
direct damages awarded or resulting from such suit, claim or proceeding.
13.2 Nortel Networks shall defend Company against any suit, claim or
proceeding brought against Company alleging that the sale to, or use by
Company of, any Products, excluding Third Party Hardware or Third Party
Software, furnished hereunder infringes any patent ("Infringement Claim").
Nortel Networks shall pay, subject to Section 13.3 below, all litigation
costs, reasonable attorney's fees, settlement payments and damages awarded or
resulting from any such suit, claim or proceeding. With respect to Third
Party Hardware or Third Party Software, Nortel Networks shall assign any
rights with respect to infringement of patents granted to Nortel Networks by
the supplier of such items to the extent of Nortel Networks' right to do so.
13.3 Nortel Networks' cumulative liability, pursuant to this Article
13 and including its costs and expenses incurred in satisfying its
obligations set forth below, shall not exceed one hundred percent (100%) of
the purchase price of the Products or Services giving rise to the
Infringement Claim. Nortel Networks shall not be liable and Company shall
indemnify Nortel Networks for any costs incurred by Nortel Networks or
liabilities of Nortel Networks arising under this Article in excess of the
amounts so stated above.
13.4 Nortel Networks shall have no liability, in respect of any
Infringement Claim based on the use of a Product in the event that such
Product: (i) is manufactured,
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designed or supplied by Nortel Networks in accordance with any design or any
special instruction furnished by Company; (ii) is used by Company in a manner
or for a purpose not contemplated by this Agreement; (iii) is used by Company
in combination with other products not provided or approved by Nortel
Networks, including, without limitation, any software developed solely by
Company through the permitted use of Products furnished hereunder, provided
that the Infringement Claim arises from such combination or the use thereof;
or (iv) is modified by Company where such modification is not authorized by
Nortel Networks. In these cases, Company shall indemnify and hold Nortel
Networks harmless against any loss, cost, expense, damage, settlement or
other liability, including, but not limited to, attorneys' fees, which may be
incurred by Nortel Networks with respect to any suit, claim, or proceeding
described in this Section 13.5. Company shall waive any and all claims that
Company may have against Nortel Networks that Company may have due to any use
by Company of Modifiable Software and any modification Company may have made
to a Product as a result of such use. Further, Company shall be responsible
for any additional hardware, software or services required as a result of
such use.
13.6 Nortel Networks may provide Company with notice of an actual or
potential Infringement Claim. Nortel Networks shall consult with Company
regarding the Infringement Claim and the course of action to be pursued as a
result thereof. In the event that the parties fail to agree on a
satisfactory course of action for dealing with the matter, Company may
either: (i) return to Nortel Networks the affected portion of the Product(s)
or deliverable(s) in return for a refund of the depreciated value (as carried
on the books of Company) of the Product(s) or deliverable(s) so returned, or
terminate the Services; or (ii) continue to use the Product(s), Services, or
deliverable(s) at Company's own risk.
13.7 Nortel Networks shall not be liable for, and Company shall
indemnify Nortel Networks in respect of, any damages awarded based on
Company's willful, knowing or deliberate infringement of a patent, copyright,
trade secret, trademark or other proprietary right where such infringement
results in a pecuniary damage award. Nortel Networks shall not be liable
for, and Company shall indemnify Nortel Networks in respect of any
Infringement Claim(s) where Nortel Networks has provided notice to Company of
the Infringement Claim(s) and Company elects to continue its use of the
Product(s) or deliverable related to or covered by the Infringement Claim.
13.8 If as a result of an Infringement Claim, other than those
contemplated above, an injunction is obtained against Company's use of any
Product(s), Service(s) or deliverable(s), Nortel Networks shall, at Nortel
Networks' option: (i) procure for Company the right to continue using the
alleged infringing Product(s) or deliverable; (ii) replace or modify the same
with equivalent or better Product(s), Service(s), or deliverable(s) so that
Company's use is non-infringing; or (iii) accept return of the affected
portion of the Product(s), Service(s) or deliverable(s) and refund to Company
the depreciated value (as carried on the books of Company) of such
Product(s), Service(s), or deliverable(s) so returned.
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13.9 The defense of any claim which is predominantly covered by the
provisions of this Agreement shall be controlled by the party upon whom the
majority of the ultimate liability is likely to be imposed. Such controlling
party shall give the other party a reasonable opportunity to participate in
negotiation or defense of the claim so that such other Party may reasonably
protect its own interests. Neither Party shall be liable for any settlement
obligation incurred without its written consent.
13.10 THE REMEDIES SET FORTH IN THIS ARTICLE 13 ESTABLISH THE ENTIRE
OBLIGATION OF THE PARTIES IN REGARD TO CLAIMS RELATING TO INTELLECTUAL
PROPERTY RIGHTS INCLUDING CLAIMS DIRECTED TO THE INFRINGEMENT OF PATENTS,
COPYRIGHT, TRADE SECRETS AND OTHER PROPRIETARY RIGHTS. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS
OR OTHER ECONOMIC LOSS OF ANY NATURE WHATSOEVER, ARISING FROM SUCH
INFRINGEMENT CLAIMS AND/OR RELATED MATTERS, OTHER THAN AS SPECIFICALLY SET
FORTH HEREIN.
ARTICLE 14. REMEDIES AND LIMITATION OF LIABILITY
14.1 Nortel Networks shall have the right to suspend its performance,
upon written notice to Company, and forthwith remove and take possession of
all Products and deliverables that shall have been delivered to Company, and
terminate any Services being provided to Company, if, prior to payment to
Nortel Networks of any amounts due pursuant to this Agreement with respect to
such Products or Services, Company shall (i) become insolvent or bankrupt or
cease to conduct business in the ordinary course, or be unable or admit in
writing its inability, to pay all debts as they mature, or make a general
assignment for the benefit of, or enter into any arrangement with,
creditors; (ii) authorize, apply for, or consent to the appointment of, a
receiver, trustee, or liquidator of all or a substantial part of its assets
or have proceedings seeking such appointment commenced against it which are
not terminated within sixty (60) days of such commencement; or (iii) file a
voluntary petition under any bankruptcy or insolvency law or under the
reorganization or arrangement provisions of the United States Bankruptcy Code
or any similar law of any jurisdiction or have proceedings under any such law
instituted against it which are not terminated within sixty (60) days of such
commencement.
14.2 In the event of any material breach of this Agreement which shall
continue for thirty (30) or more days after written notice of such breach
(including a reasonably detailed statement of the nature of such breach) has
been given to the breaching party by the aggrieved party, the aggrieved party
shall be entitled at its option to avail itself of any and all remedies
available at law or equity, except as otherwise limited in this Agreement.
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14.3 Nothing contained in Section 14.2 or elsewhere in this Agreement
shall make Nortel Networks liable for any indirect, incidental, punitive,
special, or consequential damages of any nature whatsoever for any breach of
this Agreement whether the claims for such damages arise in tort (including
negligence regardless of degree of fault), contract, or otherwise.
14.4 Nortel Networks shall not be liable for any additional costs,
expenses, losses or damages resulting from errors, acts or omissions of
Company, including, but not limited to, inaccuracy, incompleteness or
untimeliness in the provision of information by Company to Nortel Networks or
fulfillment by Company of any of its obligations under this Agreement.
Company shall pay Nortel Networks the amount of any such costs, expenses,
losses or damage incurred by Nortel Networks.
14.5 Any action for breach of this Agreement or to enforce any right
hereunder shall be commenced within two (2) years after the cause of action
accrues or it shall be deemed waived and barred, except any action for
nonpayment by Company of any prices, charges, fees or other amounts payable
hereunder may be brought by Nortel Networks at any time permitted by
applicable law, and Nortel Networks may suspend performance of any of its
obligations hereunder until all such payments are made.
ARTICLE 15. TERM AND TERMINATION
15.1 This Agreement will be in effect from the Effective Date for a
period of three (3) years. Thereafter, this Agreement shall automatically
renew for one (1) year terms, unless either party provides the other party
with written notice of its intent not to renew at least sixty (60) days prior
to the end of the original term or any renewal term.
15.2 Either party may delay performance under this Agreement or
terminate this Agreement, in whole or in part, in the event of a default by
the other, provided that the non-defaulting party so advises the defaulting
party in writing of the event of alleged default and the defaulting party
does not remedy the alleged default within thirty (30) days after written
notice thereof. If the alleged default is not capable of being remedied
within thirty (30) days, the defaulting party must commence to remedy the
alleged default within such thirty (30) day period and provide to the
non-defaulting party a plan for timely remedying the alleged default in order
to avoid termination. A default shall include: (i) a party's insolvency or
initiation of bankruptcy or receivership proceedings by or against a party or
the execution of an assignment for the benefit of creditors; or (ii) either
party's material breach of any of the terms or conditions hereof including
the failure to make any payment when due.
15.3 The expiration or termination of this Agreement for any cause
shall not release either party from: (i) any obligations and duties
remaining under any Order accepted by Nortel Networks prior to such
expiration or termination, except that Nortel Networks shall not be required
to fulfil the Order if the termination is due to a breach or default by
Company; (ii) any liability which at the time of expiration or termination has
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already accrued to the other party, or, which thereafter may accrue in
respect to any event prior to expiration or termination; or (iii) any
liability from any obligation specified in Section 17.18 below to survive
expiration or termination.
15.4 Notwithstanding the foregoing, Nortel shall not be obligated to
provide any Services pursuant to this Agreement after termination of this
Agreement. Company shall pay the full price for Services performed prior to
the Effective Date of termination plus the costs to Nortel of, and
necessarily incidental to, termination, including such other costs, charges
or expenses for which Nortel has the right to reimbursement hereunder.
Termination of this Agreement shall not entitle Company to withhold payment
of any amount due or accruing to Nortel hereunder prior to the effective date
of termination, or to reimbursement of any amount previously paid to Nortel.
ARTICLE 16. CONFIDENTIALITY
16.1 Each party which receives the other party's Confidential
Information shall use reasonable care to hold such Confidential Information
in confidence and not disclose such Confidential Information to anyone other
than to its employees and employees of a Nortel Networks Affiliate, as
applicable, with a need to know. A party that receives the other party's
Confidential Information shall not reproduce such Confidential Information,
except to the extent reasonably required for the performance of its
obligations pursuant to this Agreement and in connection with any permitted
use of such Confidential Information.
16.2 Company shall take reasonable care to use Nortel Networks'
Confidential Information only for study, operating, or maintenance purposes
in connection with Company's use of Products and/or Services furnished by
Nortel Networks pursuant to this Agreement.
16.3 Notwithstanding the foregoing, either party shall be free to use
that portion of the Confidential Information which may be retained in
intangible form by those employees who have had access to the Confidential
Information, for any purpose, including use in the development, manufacture,
marketing and maintenance of its products and services. The marketing of any
product or service, including the dissemination of supporting documentation,
which inherently discloses the disclosing party's Confidential Information
shall not be deemed a breach by the recipient of such obligations; provided
however, that ownership of the Confidential Information and all intellectual
property rights to such Confidential Information remain with the disclosing
party.
16.4 The obligations of either party pursuant to this Article 16 shall
not extend to any Confidential Information which a recipient can demonstrate
through written documentation was already known to the recipient prior to its
disclosure to the recipient or was known or generally available to the public
at the time of disclosure to the recipient; becomes known or generally
available to the public (other than by act of the
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recipient) subsequent to its disclosure to the recipient; is disclosed or
made available in writing to the recipient by a third party having a bona
fide right to do so and without similar confidentiality obligations; is
independently developed by recipient as shown by the recipient's written
records; or is required to be disclosed by subpoena or other process of law,
provided that the recipient shall notify the disclosing party promptly of any
such subpoena or other process of law requiring disclosure and permits
(assisting where reasonably required) the disclosing party to assert its
right to protect its Confidential Information.
16.5 Nortel Networks represents that each of its agents and employees
who provide services on Company's premises is subject to a confidentiality
agreement requiring each agent and employee to maintain Company's information
as Confidential Information.
ARTICLE 17. MISCELLANEOUS
17.1 PUBLICITY - A party shall not release any advertising or other
publicity relating to this Agreement or the contents hereof wherein such
other party may reasonably be identified without the prior written approval
of the other party. In addition, each party shall take reasonable
precautions to keep the existence and the contents of this Agreement
confidential so long as this Agreement remains in effect and for a period of
five (5) years thereafter, except as may be otherwise expressly provided in
this Agreement or as may be reasonably required to enforce this Agreement by
law.
17.2 APPLICABLE LAW - The validity, construction and performance of
this Agreement shall be governed by and interpreted in accordance with the
laws of the State of Texas, except for its rules with regard to the conflict
of laws and venue portions thereof.
17.3 EFFECTS OF HEADINGS - All headings used herein are for index and
reference purposes only, and shall not be given any substantive effect. This
Agreement has been created jointly by the parties and no rule of construction
requiring interpretation against the drafter of this Agreement shall apply in
its interpretation.
17.4 ASSIGNMENT - Other than as explicitly stated below, neither party
may assign or transfer this Agreement or any of its rights hereunder without
the prior written consent of the other party, such consent not to be
unreasonably withheld. A change in control of Company shall be deemed an
assignment hereunder. A change in control shall occur if ownership or
control of more than fifty percent (50%) of the shares of the Company
entitled to elect the board of directors changes during the term of this
Agreement. Company's consent shall not be required for any assignment or
transfer by Nortel Networks (i) to any Nortel Networks Affiliate of all or
any part of this Agreement or of Nortel Networks' rights hereunder; or (ii)
to any third party of Nortel Networks' right to receive any monies
("Receivables") which may become due to Nortel Networks pursuant to this
Agreement. Company hereby consents to the sale of Receivables by
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Nortel Networks without the necessity for any further notice and without any
qualification on such consent. Company grants permission for Nortel Networks
to disclose the provisions of this Agreement to purchasers and prospective
purchasers of Receivables, or their affiliates and others with a present or
prospective financial interest in such Receivables, and their respective
agents, attorneys, auditors, rating agencies and other advisors.
17.5 SUBCONTRACTING - Nortel Networks may subcontract any of its
obligations under this Agreement, but no such subcontract shall relieve
Nortel Networks of primary responsibility for performance of its obligations.
17.6 NON-WAIVER - The failure by either party hereto at any time to
require performance by the other party or to claim a breach of any provision
of this Agreement shall not be construed as affecting any subsequent breach
or the right to require the performance with respect thereto or to claim a
breach with respect thereto.
17.7 RELATIONSHIP OF THE PARTIES - The provisions of this Agreement
shall not be construed to establish any form of partnership, agency or joint
venture of any kind between Nortel Networks and Company, nor to constitute
either party as the agent, employee or legal representative of the other. To
the extent Nortel Networks provides Services under this Agreement, those
Services are provided as an independent contractor. All persons furnished by
either party to accomplish the intent of this Agreement shall be considered
solely as the furnishing party's employees or agents and the furnishing party
shall be solely responsible for compliance with respect to its employees with
all laws, rules and regulations involving, but not limited to, employment of
labor, hours of labor, working conditions, workers' compensation, payment of
wages, and withholding and payment of applicable taxes, including, but not
limited to income taxes, unemployment taxes, and social security taxes.
17.8 FORCE MAJEURE - If the performance by a party of any of its
obligations under this Agreement shall be interfered with by reason of any
circumstances beyond the reasonable control of that party, including without
limitation, fire, explosion, acts of God, war, revolution, civil commotion,
unavailability of supplies or sources of energy, power failure, breakdown of
machinery, delays regarding zoning, easements or deed restrictions, any legal
proceedings between parties unrelated to the parties hereto or labor
difficulties, including without limitation, strikes, slowdowns, picketing or
boycotts, then that party shall be excused from such performance for a period
equal to the delay resulting from the applicable circumstances and such
additional period as may be reasonably necessary to allow that party to
resume its performance. With respect to labor difficulties as described
above, a party shall not be obligated to accede to any demands being made by
employees or other personnel.
17.9 TAXES - Company shall at Nortel Networks' direction promptly
reimburse Nortel Networks or pay directly to the applicable government or
taxing authority all taxes and charges arising hereunder, including, without
limitation, penalties and interest,
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except for taxes computed upon the net income of Nortel Networks. If Company
provides Nortel Networks with a certificate of exemption for the applicable
taxes, in a timely manner, then Nortel Networks shall not invoice Company for
such taxes. Nortel Networks will assist the Company, to the extent
permissible, with any Company tax minimization strategy made known to Nortel
Networks.
17.10 HAZARDOUS MATERIALS - Prior to issuing any Order for Services to
be performed at Company's facilities, Company shall identify and notify
Nortel Networks in writing of the existence of all Hazardous Materials which
Nortel Networks may encounter during the performance of such Services,
including without limitation, any Hazardous Materials contained within any
equipment to be removed by Nortel Networks. If Company breaches its
obligations pursuant to this Paragraph, (i) Nortel Networks may discontinue
the performance of the applicable Services until all the Hazardous Materials
have been removed or abated to Nortel Networks' satisfaction by Company at
Company's sole expense; and (ii) Company shall defend, indemnify and hold
Nortel Networks harmless from any and all damages, claims losses, liabilities
and expenses, including without limitation, attorney's fees, which arise out
of Company's breach of such obligations.
17.11 NOTICE - All notices required or permitted to be given hereunder
shall be in writing and shall be deemed given when delivered (i) by hand; or
(ii) by facsimile transmission (confirming the same by mail); or (iii) by
certified or next-day mail addressed as follows:
IF TO COMPANY:
Advanced Telecommunications Inc.
730 Second Avenue South, Suite 1200
Minneapolis, Minnesota 55402
Attention: RICHARD A. SMITH, CFO
Facsimile: (612) 376-4411
IF TO NORTEL NETWORKS:
Nortel Networks Inc.
2350 Lakeside Blvd.
Richardson, Texas 75082
Attention: Senior Manager, Contracts Management & Negotiations
Facsimile: 972/685-3284
Either party hereto may change its address by a notice given to the other
party hereto in the manner set forth above.
17.12 INFORMATION AND DOCUMENTATION - Company shall provide any
information and/or documentation that Nortel Networks reasonably requests
from Company and that is necessary for Nortel Networks to properly perform
any of its obligations hereunder.
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Such information shall be provided in a form reasonably specified by Nortel
Networks by the dates specified by Nortel Networks.
17.13 EXPORT--Company shall not export any Products or technical data
received from Nortel Networks pursuant to this Agreement, or release any such
Products or technical data with the knowledge or intent that such will be
exported or transmitted to any country or to foreign nationals of any
country, except in accordance with applicable U.S. laws and regulations
concerning exporting and with the prior written consent of Nortel Networks.
Company shall obtain all government authorizations, in accordance with
applicable law prior to exporting or transmitting any such Products or
technical data.
17.14 SEVERABILITY--If any provision of this Agreement is declared or
judicially determined to be invalid or unenforceable under applicable law,
the remaining provisions shall continue in full force and effect and the
parties shall substitute for the invalid provision a valid provision which
most closely approximates the economic effect and intent of the invalid
provision.
17.15 ENTIRE AGREEMENT--This Agreement, including the Exhibits,
Schedules and Annexes which are attached hereto and incorporated herein,
comprises all the terms, conditions and agreements of the parties hereto with
respect to the subject matter hereof and supersedes all previous negotiations,
proposals, commitments, writings, publications and understandings of any
nature whatsoever. Company hereby acknowledges and agrees that it has not
relied on any representations or warranties other than those expressly set
forth in this Agreement.
17.16 MODIFICATION OF AGREEMENT--No addition to or modification of this
Agreement, including Exhibits, Schedules, or Annexes, shall be effective or
binding on either of the parties hereto unless reduced to writing and
executed by the respective duly authorized representatives of each of the
parties hereto.
17.17 REGULATORY COMPLIANCE--In the event of any change in the
Specifications or Nortel Networks' manufacturing or delivery processes for
any Products as a result of the imposition of requirements by any government,
Nortel Networks may upon notice to Company, increase its prices, charges and
fees to cover the added costs and expenses directly and indirectly incurred
by Nortel Networks as a result of such change.
17.18 SURVIVORSHIP--Any terms of this Agreement, which by their nature
are intended to survive, including but not limited to those Articles titled
"Warranty," "Intellectual Property Rights," "Liability for Bodily Injury,
Property Damages and Patent Infringement," "Remedics and Limitation of
Liability," "Confidentiality, and "Miscellaneous," as well as Section 403
("Price and Payment"), 11.3 ("Software License"), and 15.3 ("Terms and
Termination"), shall survive the termination or expiration of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement.
NORTEL NETWORKS INC. ADVANCED TELECOMMUNICATIONS INC.
By: /s/ Patti Jacobs By: /s/ Richard A. Smith
-------------------------------- ---------------------------
Name: Patti Jacobs/Jim Bartoszewicz Name: Richard A. Smith
------------------------------ -------------------------
Title: Director / V.P. Title: Chief Financial Officer
----------------------------- ------------------------
Date: 6/3/99 Date: 6/1/99
------------------------------ -------------------------
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EXHIBIT A
PRODUCT ANNEX A.1
DMS-FAMILY PRODUCTS AND STP PRODUCTS
The supplemental terms and conditions provided below take precedence over any
conflicting terms and conditions specified, in the Sections noted below or
elsewhere, in the Agreement as such terms and conditions apply to the DMS-10,
DMS-100, DMS-200, DMS-100/200, DMS-250, DMS-300, DMS-300/250, or DMS-500
Products ("DMS-Family Products") or the DMS STP or Broadband STP Products
("STP Products").
ARTICLE 2, SECTION 2.1
2.1.1. During the Original Term, Company commits to purchase and/or
license, as applicable, and take delivery of the Products described in
Attachment 1, Part I (DMS-500 Initial Systems) and Part III (DMS-500
Initial System Standard/Additional Software Features), in a minimum
dollar amount of Ten Million Dollars ($10,000,000.00) (the "Initial
Commitment Amount"), which amount shall include without limitation,
no less than four (4) DMS-500 Initial Systems as described in
Attachment 1, Part I. The prices, charges and fees for the Products
shall be paid in accordance with Article 4 of the Agreement.
2.1.2 From time to time during the Term, Company may license any of the
DMS-500 Optional Software listed in Attachment 1, Part IV ("Optional
Software"). In the event that Nortel Networks receives an Order for
Optional Software prior to the Ship Date of a DMS-500 Initial System
purchased hereunder, Company shall receive a *** discount off the
licensing fees for such Optional software as set forth in Attachment I,
Part IV. For all other Optional Software Orders issued by Company during
the Term, Company shall receive a *** discount off the licensing fees set
forth in Attachment 1, Part IV.
ARTICLE 2, SECTION 2.3
With regard to the subject of forecasts, the following shall apply for
DMS-250, DMS-300, DMS-300/250, or DMS-500 Products:
Company shall submit a non-binding forecast to Nortel Networks, in
accordance with Section 2.3 of the Agreement.
ARTICLE 2, SECTION 27
2.7 If Company purchases ports from a supplier other than Nortel ("Third
Party Ports") and installs such Third Party Ports on any DMS-500 Switching
System purchased by Company under the Agreement, Nortel will invoice Company
for the following fees
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
1
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for use of Nortel's ENET software in connection with such Third Party Ports:
*** per port for the first three thousand (3000) DS-0 ports and *** per port
for each additional DS-0 port thereafter. Furthermore, upon the installation
of such Third Party Ports, Nortel shall suspend any service and/or
maintenance responsibilities or obligations that Nortel may then have with
regard to each DMS-500 Switching System upon which such Third Party Ports are
installed (each, an "Affected Switch"), and the Warranty provisions set forth
in the Agreement shall be suspended until such time as Nortel certification
of each Affected Switch has been completed. Company shall issue an order for
Nortel certification of each Affected Switch and shall pay to Nortel,
Nortel's then-current price for each such certification.
ARTICLE 4, SECTION 4.3(i)
With regard to the subject of invoicing for Systems, the following shall
apply for DMS-250, DMS-300, DMS-300/250, or DMS-500 Products:
(i) for Systems, whether or not installation has been ordered from
Nortel Networks, *** of the price for such System(s) including Products
and Services related thereto which are included in the price) shall be
invoiced on the Ship Date; *** of the price for such System(s) shall be
invoiced on the Turnover Date; and *** of the price for such System(s)
shall be invoiced on the Acceptance Date.
ARTICLE 5, SECTION 5.1
With regard to the subject of reschedule of an Order, the following shall
apply:
Sixty (60) days notice must be provided to Nortel Networks prior to the
scheduled Ship Date.
ARTICLE 7, SECTION 7.3
With regard to the subject of Company performing installation of any of the
DMS-250, DMS-300, DMS-300/250, or DMS-500 Products, the following shall apply:
Company shall not have the right to perform installation Services.
ARTICLE 7, SECTION 7.3.1
With regard to the subject of Company performing installation of any of the
DMS-10, DMS-100, DMS-200, DMS-100/200 or STP Products, the following shall
apply:
Company shall not initially have the right to perform installation
Services, but may obtain the right to install certain DMS-10, DMS-100,
DMS-200, DMS-100/200 or STP Products, subject to attending applicable
training courses,
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
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obtaining the required training certifications to perform same, and
obtaining Nortel Networks' written concurrence to do so.
ARTICLE 9, SECTION 9.1.1
With regard to the subject of warranty, the following shall apply:
9.1.1 Upon the expiration of the warranty for each System provided by
Section 9.1 of the Agreement, Nortel shall provide to Company, at no
additional charge, a twenty-four month Service & Support Plan with respect to
each of the Initial System(s) purchased hereunder. The Service & Support Plan
shall provide the support services described on Attachment 4 to this Exhibit
A, Product Annex A.1. Upon the expiration of the S&SP term for each System,
Company may renew the S&SP at the then-current rates for such services.
ARTICLE 10, SECTION 10.1
With regard to the subject of Training Credits, the following shall apply:
With each DMS-250, DMS-300 Initial System purchased hereunder, Nortel
Networks shall provide to Company a total of fifty (50) student training
days. With each DMS-300/250 or DMS-500 Initial System purchased
hereunder, Nortel Networks shall provide to Company a total of one
hundred (100) student training days.
With each DMS-100, DMS-200 or DMS-100/200 Initial System purchased
hereunder, Supplier shall provide to Company one hundred sixty (160)
Training Credits. No such Training Credits shall be provided for DMS-10
Systems nor for STP Products purchased hereunder.
ARTICLE 10, SECTION 10.5
With regard to the subject of support services, the following shall apply:
Nortel shall make available Post-Cutover Integration Services as set
forth in Attachment 3 to this Product Annex A.1.
ARTICLE 11, SECTION 11.1
With regard to the subject of Third Party Software, the following shall apply:
With regard to Third Party Software from Glenayre Electronic, Inc.,
("Glenayre") including but not limited to a product referred to as
"modular voice processing," Company shall abide by the terms and
conditions specified in the Software License shown in Attachment 2 to
this Product Annex A.1, in addition to the terms and conditions of this
Agreement.
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At the present time, there are no additional terms with regard to Third Party
Hardware that must be observed by Company.
ARTICLE 11, SECTION 11.5
With regard to the subject of Software updates, the following shall apply:
Nortel Networks shall classify such updates as either (i)
incremental Software upgrades ("ISUs"), designed to correct any
nonconformance to the applicable Software specifications; or (ii)
enhancements which will provide additional features or functionality
("Enhancements"). Updates classified as ISUs by Nortel Networks will
be provided at no cost to Company during the warranty period for
such Licensed Software. Updates classified as Enhancements by Nortel
Networks will be made available to Company at Nortel Networks
applicable right to use fees. In the event that Nortel Networks
determines that an update includes both ISUs and Enhancements, such
update shall be made available to Company. If Company elects to
receive the update, Nortel Networks shall invoice Company
only for the right to use fees applicable to the Enhancements
contained in such update, unless the Enhancements are provided by
Nortel Networks at no charge as described in this Product Annex A.1,
Attachment 1, Part V, Section V.1.0.
ARTICLE 17, SECTION 17.9
With regard to the subject of taxes, the following shall apply:
The prices do not include any applicable taxes.
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ATTACHMENT 1 TO EXHIBIT A, PRODUCT ANNEX A.1
PART I. DMS-500 INITIAL SYSTEMS
***
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
ATTACHMENT 1 TO EXHIBIT A, PRODUCT ANNEX A.1
PART II. ADD-ON/EXTENSION PORTS AND LINK PERIPHERAL PROCESSORS
(DMS-500 INITIAL SYSTEMS)
***
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
ATTACHMENT 1 TO EXHIBIT A, PRODUCT ANNEX A.1
PRODUCTS AND PRICING FOR DMS SYSTEMS
PART III. DMS-500 STANDARD/ADDITIONAL SOFTWARE FEATURES
***
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
ATTACHMENT 1 TO EXHIBIT A, PRODUCT ANNEX A.1
PRODUCTS AND PRICING FOR DMS SYSTEMS
PART IV. DMS-500 OPTIONAL SOFTWARE FEATURES
***
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
ATTACHMENT 1 TO EXHIBIT A, PRODUCT ANNEX A.1
PRODUCTS AND PRICING FOR DMS SYSTEMS
PART V. MISCELLANEOUS PRODUCTS & SERVICES
***
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
EXHIBIT A
ATTACHMENT 2 TO PRODUCT ANNEX A.1
GLENAYRE SOFTWARE LICENSE
RECITALS
1.1 To enable Company to operate equipment sold by Glenayre to Company,
Glenayre wishes to grant to Company and Company wishes to acquire from
Glenayre a non-exclusive right to use computer software in object code
form only, to practice inventions protected by issued patents or pending
applications, and to use materials, subject to the provisions of this
License Agreement. The Software Licenses, the User Material Licenses and
the Patent Licenses granted by Glenayre under this License Agreement are
referred to collectively as the "Licenses".
LICENSE FEES
2.1 The purchase price of the Equipment includes the fees for the Licenses
(the "License Fees").
SOFTWARE LICENSES
3.1 Glenayre grants to Company a non-exclusive license or sublicense to use,
in object code form only, the Software (the "Software Licenses"). The
"Software" collectively means the software owned by Glenayre and itemized
in Glenayre's Quotation/Sales Order Acknowledgment or contained in the
equipment listed in Glenayre's Quotation/Sales Order acknowledgment
(the "Equipment") and any third party owned software contained in the
Equipment. The Software Licenses are effective upon installation of the
Software and the Equipment and are specifically limited to Company's use
of the Software in the Equipment in the country designated by Company
prior to delivery. The software Licenses do not include any rights with
respect to the source code form of the Software.
USER MATERIAL LICENSE
4.1 Glenayre may provide Company with materials, including drawings,
diagrams, specifications, documentation, training manuals and user
manuals, for the use and servicing of the Equipment and the Software
(the "User Material"). Glenayre licenses or sublicenses Company the
non-exclusive right to use the Glenayre owned User material and any
third party owned User materials in conjunction with the use and
servicing of Equipment and Software (the "User material Licenses").
Glenayre and the third parties reserve all rights in their respective
User Materials.
NO TRANSFER OF SOFTWARE OR USER MATERIALS
5.1 Company shall not assign, transfer or sublicense the Software or the
User materials, whether separately or as part of a sale of the Equipment,
without the prior written consent of Glenayre.
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ACKNOWLEDGEMENT OF PATENT RIGHTS
6.1 Company acknowledges that various components of the Equipment and
Software are the subject of one or more Glenayre patents or pending patent
applications, or third party patents or pending patent applications under
which Glenayre is licensed.
LIMITED, NON-EXCLUSIVE LICENSE UNDER PATENTS
7.1 Glenayre grants Company a non-exclusive right (the "Patent License") to
practice the inventions protected by Glenayre patents or pending patent
applications or third party patents or pending patent applications that
are embodied in either the Equipment or Software.
7.2 If any improvements to the Equipment or Software are claimed in any
patents, or any patents issuing from any pending patent applications,
owned by or licensed to Company, Company shall grant Glenayre a
royalty-free, transferable license to make, use or sell, and to grant
sublicenses to make, use or sell the Equipment, Software and improvements.
The provisions of this Paragraph 7.2 shall survive the termination of this
License Agreement.
TERMINATION OF LICENSES
8.1 The Licenses shall terminate if:
(a) the Equipment or Software is moved by Company outside of the country
in which the Equipment and Software were first installed;
(b) the Equipment is sold, except as provided in paragraph 5.1 or 8.2; or
(c) the Software is no longer used in connection with the Equipment.
8.2 If Company purchases the Equipment from Glenayre solely to resell it to
a third party and Company resells it to the Third party, the Licenses shall
transfer to the third party.
PROPRIETARY INFORMATION
9.1 "Proprietary Information" means any scientific, technical or business
information relating to Glenayre's products or business that is valuable to
Glenayre and not generally known to those outside Glenayre, or relating to
the third party's products or business that is valuable to the third party
and not generally known to those outside the third party.
9.2 Company acknowledges that:
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(a) the Software and all materials supplied in connection with the Software,
including flow charts, object code and input data formats, contained
Proprietary Information that has been developed by Glenayre or third
parties at great expense and considerable effort of skilled professions,
and is entrusted by Glenayre to Company under this License Agreement for
use only as specifically set out in this License Agreement;
(b) to carry out the terms and conditions of this License Agreement,
Glenayre may have to disclose to Company certain Proprietary
Information; and
(c) Glenayre and the third parties claim and reserve all rights in the
Software, and all materials supplied or produced in connection with the
Software, as an unpublished copyrighted work.
9.3 Company acknowledges the Proprietary Information has substantial value and
that any use or disclosure of Proprietary Information by Company or its
personnel in a manner not authorized by this License Agreement would likely
cause Glenayre and the third parties irreparable damage that could not be
fully remedied by monetary damages. So, Company.
(a) shall maintain all Proprietary Information in strict confidence and
shall neither use, copy or disclose, nor permit any Company personnel
to use, copy or disclose, the Proprietary Information for any purpose
not specifically authorized under this License Agreement;
(b) shall ensure that the Software and all copies of it and User Materials,
when not in use, are kept in a secure place, subject to restricted
access only by those persons authorized to use and maintain the
Equipment and Software;
(c) shall not decode, reverse engineer, reprint, transcribe or reproduce, in
whole or in part, the Software and User Materials without the prior
written consent of Glenayre;
(d) shall not in any way modify or enhance the Software without the prior
written consent of Glenayre; and
(e) grants to Glenayre the right to obtain injunctive or other equitable
relief from a court of competent jurisdiction to prevent unauthorized or
unlawful action.
9.4 Company may make a reasonable number of copies of the object code version of
the Software for backup purposes only.
9.5 Company's rights under this License Agreement shall terminate upon breach of
any of the provisions set out in Section 9. The provisions of Paragraph 9.3
shall survive termination of this License Agreement. Company shall promptly
return all copies of
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the Proprietary Information, including the Software and all User materials
provided for the Software, if:
(a) this License Agreement is terminated for any reason; or
(b) Company ceases control, possession or use of the Equipment, the
Software or the User Materials.
9.6 To assist Glenayre in the protection of the proprietary rights of Glenayre
and the third parties, Company shall permit representatives of Glenayre to
enter Company's premises an inspect the Equipment and Software at any
reasonable time.
INDEMNITY AGAINST INFRINGEMENT
10.1 If the Equipment or Software supplied by Glenayre is in its opinion likely
to or does become the subject of a claim of infringement of a copyright or
subsisting patent, Glenayre shall, at its expense, either procure for
Company the right to continue using the equipment or Software, modify the
Equipment or Software to make it non-infringing, or substitute other
equipment or software of similar capability.
10.2 If a proceeding based on a claim that the Equipment or Software constitutes
an infringement of a copyright or a subsisting patent is brought against
Company, Glenayre shall defend or settle the claim and shall pay all
damages and costs awarded against Company, subject to strict compliance
with all of the following conditions:
(a) the Equipment or Software must have been made to Glenayre's
specifications and used within the scope of this License Agreement;
(b) Company must give Glenayre prompt written notice of the claim;
(c) Company must give Glenayre complete authority and information to
defend the claim;
(d) Company must not settle or compromise the claim without Glenayre's
written consent;
(e) the claim must not be based on Company's use of an altered version of
the Equipment or the Software, Company's use of a non-current version
of the Software, Company's use of the Equipment or Software in
combination with other equipment or software, or be based solely on
Company's use of other equipment or software; and
(f) in no event shall Glenayre's total liability under this Section 10
exceed the price set out in the Sales order Acknowledgment for that
piece of Equipment, and for Software, the price of the particular item
of Equipment that includes the Software.
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10.3 THIS SECTION 10 STATES THE ENTIRE LIABILITY OF GLENAYRE WITH RESPECT TO
INFRINGEMENT OF ANY COPYRIGHTS, PATENTS OR ANY OTHER PROPRIETARY RIGHTS OF
THIRD PARTIES THROUGH COMPANY'S USE OF ANY PART OF THE EQUIPMENT OR THE
SOFTWARE.
REVISED VERSIONS OF THE SOFTWARE
11.1 Company agrees that if Glenayre provides revised versions of the Software
to use in the Equipment, the revised versions shall be covered by the
provisions of this License Agreement.
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EXHIBIT A
ATTACHMENT 3 TO PRODUCT ANNEX A.1
POST CUTOVER INTEGRATION SERVICES
ARTICLE 9, SECTION 9.4
9.4.1 Subsequent to the Turnover Date for an Initial System, Nortel
will assign one (1) technician to provide Post Cutover Integration Services
("PCI Services") at the Service Site during Normal Business Hours. PCI
Services will include testing of each Initial System to confirm that each
Initial System operates as designed ("Switch Grooming") and that the features
engineered for each Initial System operate correctly in accordance with
Nortel's standards and procedures ("Feature and Call Through Testing"). The
tests to be performed by Nortel will include, but will not be limited to, the
following:
9.4.2 HARDWARE AND SOFTWARE TESTING
A. Install and Test Alarms
1) install cross connects, datafill scan and SD points
2) verify operation and detection of alarms
B. Patch Verification
1) verify patching of peripherals
C. REX Testing
1) set up switch to test its integral parts
D. Switch Grooming
1) set up switch to run Operation and Measurement ("OM") logs
2) set up switch to run maintenance reports
3) set up switch security measures
9.4.3 TRUNK TESTING
A. Install and Perform Transmission Tests
1) test Call Through Features
2) verify CDR trunks
3) verify SS7 Translations and confirm that datafill properly
performed
B. Wire and Cross Connect DSX
1) establish links between transmission facilities with all
testing being performed within the switch room
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EXHIBIT A
ATTACHMENT 3 TO PRODUCT ANNEX A.1
POST CUTOVER INTEGRATION SERVICES
C. Verification of DSX Cross Connect.
D. Interconnection Testing
1) test Transmission and/or ROTL
2) test Call Through dial plan on one trunk member per card
9.4.4 REQUIRED LINE TESTING (DMS-500)
A. Line to Line Matching
1) verify NPA'S, NNX'S and AMA'S with the demarcation point for
testing set inside the main distribution frame within the switch
room.
9.4.5 COMPANY'S RESPONSIBILITIES
In order for Nortel to commence the PCI Services, Company must complete the
following activities with respect to each Initial System at a Service Site:
A. Ensure that all transmission links are terminated and labeled on the
DSX or distribution frame
blocks;
B. Ensure that trunk facilities are connected to the respective Local
Exchange Carriers ("LEC") at the above sites;
C. Order the appropriate translations from the LEC's access tandem in
order to translate Company's originated calls;
D. Establish a phone board for telephone set and feature evaluations;
E. Provide a test unit or equivalent for DS-1/DS-3 testing, as well as a
PRI monitor; and
F. Provide a template which identifies specific cross-connect allocations
for trunk and any line facilities.
9.4.6 TERM
Nortel will provide to Company at no charge, initial PCI Services ("Initial
PCI Services") for the Initial System in the total amount of two hundred forty
(240) hours. The Company may purchase Extended PCI Services in increments of
forty (40) hours. The price for the each 40-hour increment of Extended PCI
Services is Five Thousand Dollars ($5,000.00) per Initial System.
Nortel's overtime rate for PCI Services is Two Hundred Dollars ($200.00)
per hour for each hour of PCI Services provided by Nortel after Normal Business
Hours.
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EXHIBIT A
ATTACHMENT 3 TO PRODUCT ANNEX A.1
POST CUTOVER INTEGRATION SERVICES
"Normal Business Hours" are from 8:00 a.m. until 5:00 p.m. (with a one(1)
hour lunch break), from Monday through Friday, excluding Nortel's standard
holidays.
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EXHIBIT A
ATTACHMENT 4 TO PRODUCT ANNEX A.1
SERVICE & SUPPORT PLAN
A. COVERED SYSTEM(S) AND SERVICES:
This S&SP shall include those Services described hereafter for the Initial
System(s) purchased by Company pursuant to the Master Purchase and Service
Agreement, Product Annex A.1, Section 9.1.1:
TECHNICAL ASSISTANCE (Emergency and Non-Emergency)
___________________________________________________________________________
A.1 EMERGENCY Technical Assistance*
Emergency technical assistance ("ETAS") for the Covered System(s) is included
in the S&SP, and is defined as immediate assistance for operational problems,
such as loss of call processing or loss of billing. ETAS is available 24
hours a day, seven (7) days a week. When Company places an emergency trouble
call to ETAS, ETAS technicians and engineers perform remote diagnoses of the
affected System and recommend actions to restore the System to stable
operation as quickly as possible.
Emergencies* are classified as follows:
- E1: Critical (service degradation or outage)
- E2: Critical (partial or potential degradation or outage)
- E3: Critical (E1/E2 follow-up)
If the customer's switch is OUT OF WARRANTY, and they DO NOT HAVE AN S&SP,
emergency technical assistance is BILLABLE at the applicable hourly rate. If
ETA diagnoses a problem requiring on-site repairs by ETAS technicians, such
on-site support is covered by this S&SP. If Company requests on-site support
despite ETAS diagnoses that the problem is repairable remotely, Company and
ETAS shall mutually agree on the commencement of on-site repairs for which
Company will pay Nortel Networks then-current hourly rate, travel and per
diem expenses of ETAS technician(s) sent on-site.
*This description relates to Nortel Networks' ETAS organization supporting
DMS-250, DMS-300 and DMS-500 customers.
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____________________________________________________________________________
A.2 NON-EMERGENCY TECHNICAL ASSISTANCE
The S&SP expands the level of technical assistance available for Covered
Systems to include "how-to" support, such as guidance in changing a tape
drive, programming or activating a feature, implementing a new application,
troubleshooting non-Nortel Networks equipment, or adding a patch to the
software. Non-emergency technical assistance also includes limited
translations support and debugging for DMS applications.
NON-EMERGENCY TECHNICAL ASSISTANCE PROVIDES:
- - Dedicated TAS and emergency response prime
- - 24x7 problem reports and inquiries
- - Standard CSR priority; customer may designate CSR as business critical
- - Review of problem status reports by Nortel Networks staff with your site
primes
- - Non-billable emergency on-site support for product defects (non-emergency
on-site support is billable unless Nortel Networks determines that on-site
repairs are required)
____________________________________________________________________________
A.3 PATCH ADMINISTRATION SERVICES
The following Patch Administration Services in respect of Covered Systems are
included in the S&SP.
1. PATCH ADMINISTRATION AND APPLICATION: The patch Operations group logs
onto each customer's DMS switch and completes an audit of the Software
Modules. A patch calculation is performed using this audit information and
the current release of the same Software Modules in the Nortel Networks
vaulted loads. Missing patches are then downloaded to each customer's DMS
switch using Turbolink or Modem.
2. PATCH DELIVERY: Patches are downloaded to Turbolink-equipped DMS switches
on a 14-day cycle. Non-Turbolink DMS switch sites receive downloaded patches
on a 28-day cycle.
3. EMERGENCY AND BUSINESS CRITICAL PATCHES: Once ETAS or Nortel Networks
determines a patch is required to prevent emergencies or business critical
problems, the patch is spooled to every switch requiring the resolution
within 2 working days.
4. VERIFY (V) STATUS PATCHES: V-status patches are patches currently being
tested for resolution of known or suspected problems. Once a V-status patch
has been successfully tested, it is then moved to General Release status and
is made available for the next patch cycle.
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5. NON-CM (COMPUTING MODULE) PATCHES: Are applied to peripheral modules
(XPMs) or ISN nodes by the CSC if the customer has requested them.
- -----------------------------------------------------------------------------
A.4 REPAIR AND RETURN-NORTEL NETWORKS PRODUCTS
- - Repair and/or Return of Nortel Networks ("NT") coded Provisionable Circuit
Packs ("PCP").
- - Nortel Networks will provide a new or repaired, functionally equivalent
replacement circuit pack (in exchange) for the customer's defective circuit
pack.
- - ROUTINE SERVICE circuit pack Repair and Return is available 8 a.m. - 5 p.m.
Central Time, Monday to Friday
- Nortel Networks will ship a replacement circuit pack (in exchange)
within 5 days after receipt of customer's request.
- - EMERGENCY SERVICE for circuit pack replacement is available 24 hours a
day, 7 days a week
- Nortel Networks will ship the replacement unit within 24 hours of
request (emergency replacement order charge will apply).
- Only parts vital to the call processing capability of the system are
considered emergency parts. These will be replaced under the following
circumstances:
- The last spare of a circuit pack has been used to replace a
defective pack in the switch, and all similar packs in the switch
are carrying live traffic, and
- Nortel Networks' TAS group determines that emergency service is
required to correct the situation.
- - Emergency Replacement Order charges are $250 per emergency replacement
module.
- - Counter-to-Counter Emergency Replacement Order charges are $250 per order,
plus $250 per emergency replacement module.
A.5 REPAIR AND RETURN--OEM/VENDOR EQUIPMENT
- - NORTEL NETWORKS SUPPLIED OEM/VENDOR EQUIPMENT REPAIR AND REPLACEMENT:
OEM/Vendor equipment refers to equipment manufactured by another vendor but
purchased through Nortel Networks and serviced through Nortel Networks as an
integral part of the system.
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- OEM/VENDOR REPAIR/REPLACEMENT. The equipment is shipped directly to the
Nortel Networks specified location for a like-for-like replacement under
a routine or emergency situation.
- OEM/VENDOR TRACKING REPAIR. The equipment is shipped directly to the
vendor who will repair it and return it to the customer address. Orders
are tracked by Nortel Networks.
- ON-SITE VENDOR REPAIR. The equipment is repaired by a Nortel Networks
specified vendor on the customer's premises serviced through Nortel
Networks as an integral part of the system.
- - MOL POLICY (MATERIAL ON LOAN): The customer will be invoiced for the
current purchase price of any defective equipment not received by Nortel
Networks within thirty (30) days after shipment of a replacement part.
NOTE: A separate order must be placed for each project number.
WARRANTY
- --------
NORTEL WARRANTS THAT ANY PCP REPAIRED PURSUANT TO THIS S&SP SHALL, UNDER
NORMAL USE AND SERVICE, BE FREE FROM THE SPECIFIC DEFECT WHICH WAS REPAIRED
FOR A PERIOD OF NINETY (90) DAYS, FROM THE DATE OF SHIPMENT OF THE REPAIRED
PCP TO COMPANY.
B. EXCLUSIONS FROM S&SP COVERAGE:
- ---------------------------------
The following equipment (whether associated with a Covered System or not) is
excluded from coverage under the S&SP. [If not covered under an existing
System warranty, repairs to such equipment are billable at the current hourly
rate plus any required travel and per diem expenses.]
- OEM/VENDOR EQUIPMENT NOT FURNISHED BY NORTEL NETWORKS
- CABLE PLANT, INCLUDING MDF
- POWER EQUIPMENT
- Fuse Panel
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- Batteries, L.V. Discharger
- Miscellaneous hardware, racks and cabling
- CONSUMABLE ITEMS
- Supplies which are "used up" through normal use, i.e. printer
ribbons, light bulbs, etc.
- Items that have a new item replacement price low enough to make
repair unattractive.
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EXHIBIT A
ATTACHMENT 5 TO PRODUCT ANNEX A.1
FORECAST OF PRODUCT PURCHASES
Pursuant to Section 2.3 of Product Annex A.1, Company submits the
following forecast for the purchase of Nortel Networks Products:
Company commits to purchasing four (4) DMS-500 SN70EM (11,520 ports)
Initial Systems with an Astec Power supply and Long Distance functionality,
on the following schedule and for the minimum purchase prices set forth below:
<TABLE>
<CAPTION>
Switch Site Delivery Purchase Price
----------- -------- --------------
<S> <C> <C>
Minneapolis, MN Sept. 1999 ***
Seattle, WA Dec. 1999 ***
Portland, OR March, 2000 ***
Denver, CO June, 2000 ***
</TABLE>
The pricing set forth above does not include any costs for AccessNode
Products, Optional Software, additional feature functionality, extensions, or
any other Nortel Networks Products offered under the Agreement.
Signed this _______ day of ______________, 1999.
ADVANCED TELECOMMUNICATIONS INC.
By:
-------------------------------------
Richard Smith, CFO
<PAGE>
EXHIBIT A
PRODUCT ANNEX A.2
S/DMS AccessNode PRODUCTS
The supplemental terms and conditions provided below take precedence over any
conflicting terms and conditions specified, in the Sections noted below or
elsewhere, in the Agreement as such terms and conditions apply to Nortel
Networks' S/DMS AccessNode Products.
ARTICLE 2, SECTION 2.1
- ----------------------
With regard to the subject of AccessNode purchasing incentives, the following
shall apply:
2.1.3 With each DMS-500 Initial System(s) purchased hereunder, Nortel
Networks will provide to Company one AccessNode CServer plus OPC including
engineering and installation at no additional cost.
ARTICLE 2, SECTION 2.3
- ----------------------
With regard to the subject of issuing forecasts, the following shall apply:
Company shall issue a non-binding forecast in accordance with Section 2.3
describing the specific types and quantities of S/DMS AccessNode Products
required.
ARTICLE 4, SECTION 4.3
- ----------------------
With regard to the subject of invoicing and payment for AccessNode products,
the following shall apply:
4.3(i)(a) for Systems, whether or not installation has been ordered
from Nortel, one hundred percent (100%) of the price of the Products
on the Ship Date, one hundred percent (100%) of the price of any
Services upon the date of completion and acceptance of such Services.
Except for installation Services, for Services that have a duration
of more than one (1) month to complete, Nortel may invoice Company
monthly for that portion of such Services which have been performed
as of such invoicing date;
ARTICLE 5, SECTION 5.1
- ----------------------
With regard to the right to reschedule an Order, the following shall apply:
Thirty (30) days notice must be provided to Nortel Networks prior to the
scheduled Ship Date.
ARTICLE 7, SECTION 7.3
- ----------------------
With regard to the subject of Company performing installation of any of the
S/DMS AccessNode
<PAGE>
Products, the following shall apply:
Company shall not initially have the right to perform any installation
services but may obtain the right to install the S/DMS AccessNode
Products, subject to attending the applicable Nortel Networks training
courses and obtaining the required Nortel Networks training
certifications.
ARTICLE 8, SECTION 8.1
- ----------------------
With regard to the subject of Company's cancellation of an Order, the
following shall apply:
In the event Company cancels all or any part of an AccessNode Order,
Company shall pay to Nortel Networks a cancellation charge for each
Product that has been canceled in accordance with the following schedule:
GREATER THAN 15 days prior to Ship Date 100% of engineering charges plus
10% of the Product price
0-14 days prior to Ship Date 100% of engineering charges plus
15% of the Product price
ARTICLE 10, SECTION 10.1
- ------------------------
With regard to the subject of Training Credits, the following shall apply:
For each DMS-500 Initial System purchased pursuant to Product Annex A.1,
for which one or more AccessNode UE9000s are purchased hereunder, Nortel
Networks shall provide to Company a total of fifty (50) student training
days which may be used for AccessNode training.
ARTICLE 11, SECTION 11.1
- ------------------------
At the present time, there are no additional terms regarding Third Party
Hardware and Third Party Software.
ARTICLE 11, SECTION 11.5
- ------------------------
With regard to the subject of Software updates, the following shall apply:
Nortel Networks shall classify such updates as either (i) incremental
Software upgrades ("ISUs"), designed to correct any nonconformance to the
applicable Software specifications; or (ii) enhancements which will
provide additional features or functionality ("Enhancements"). Updates
classified as ISUs by Nortel Networks will be provided at no cost to
Company during the warranty period for such Licensed Software.
<PAGE>
Updates classified as Enhancements by Nortel Networks will be made
available to Company at Nortel Networks' applicable right to use fees.
In the event that Nortel Networks determines that an update includes both
ISUs and Enhancements, such update shall be made available to Company. If
Company elects to receive the update, Nortel Networks shall invoice
Company only for the right to use fees applicable to the Enhancements
contained in such update.
<PAGE>
ATTACHMENT 1 TO EXHIBIT A, PRODUCT ANNEX A.2
ACCESSNODE PRODUCTS AND PRICING
***
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
EXHIBIT B TO
MASTER PURCHASE AND SERVICES AGREEMENT
SERVICE ANNEXES
***
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
SECOND AMENDMENT TO THE MASTER PURCHASE AND SERVICES
AGREEMENT
BETWEEN
NORTEL NETWORKS INC.
AND
ADVANCED TELECOMMUNICATIONS INC.
THIS SECOND AMENDMENT TO THE MASTER PURCHASE AGREEMENT is effective
as of the data executed by the latter of the parties below, (the "Second
Amendment"), is by and between Nortel Networks Inc. ("Nortel Networks") and
Advanced Telecommunications Inc. ("Company") and amends the Master Purchase
and Services Agreement dated June 3, 1999, (the "MPSA") by and between Nortel
and Company;
WHEREAS, the parties wish to amend the MPSA Exhibit A, Product Annex
A.1 and Product Annex A.2 to reflect revisions in the "Commitment Amount" and
the per pricing under this Agreement;
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereby amend the MPSA Exhibit A, Product Annex
A.1 and Product Annex A.2, as follows:
1. The MPSA Exhibit A, Product Annex A.1 and Product Annex A.2 is amended as
set forth in the attached Exhibit 1.
Except to the extent modified herein, all other terms and conditions of the
MPSA, Exhibit A, Product Annex A.1 and Product Annex A.2 shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be executed by their duly authorized representatives.
NORTEL NETWORKS INC. ADVANCED TELECOMMUNICATIONS INC.
By: /s/ James Bartoszewicz By: /s/ Richard A. Smith
---------------------------------- -----------------------------
Name: James Bartoszewicz Name: Richard A. Smith
-------------------------------- ---------------------------
Print Print
Title: Vice-President Title: COO/CFO
------------------------------- --------------------------
Date: 11/16/99 Date: 11/10/99
-------------------------------- ---------------------------
1
<PAGE>
EXHIBIT #1 TO AMENDMENT #2 TO
MASTER PURCHASE AND SERVICES AGREEMENT
The following amendments and modifications are made to Product Annexes A.1
and A.2 of Exhibit A to the MPSA between Nortel and Company:
A. PRODUCT ANNEX A.1, ARTICLE 2, SECTION 2.1.1
Article 2, Section 2.1.1 of MPSA Exhibit A, Product Annex A.1 is amended
and restated in its entirety as follows:
2.1.1(a) During the Original Term, Company commits to purchase
and/or license, as applicable, and take delivery of Nortel Products
described in the attached Product Annexes in the minimum dollar
amount of Thirty Five Million Dollars ($35,000,000.00) (the "Initial
Commitment Amount"). Such amounts shall include without limitation,
no less than Ten Million Dollars ($10,000,000.00) in Carrier Network
Switching Products as described in Product Annex A.1; and, no less
than Ten Million Dollars ($10,000,000.00) in Nortel AccessNode
Products as described in Annex A.2. The prices, charges and fees
for the Products shall be paid in accordance with Article 4 of the
Agreement.
B. PRODUCT ANNEX A.1, ATTACHMENT 1, PART I, SECTION I.1.2
Part I, Section I.1.2 of MPSA Attachment 1 to Exhibit A, Product Annex
A.1 is amended and restated in its entirety as follows:
I.1.2 DMS-500 70EM INITIAL SYSTEM (11,520 PORT MODEL) PRICING
(a) The price for the DMS-500 70EM Initial System (11,520
Port Model) is ***
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
C. PRODUCT ANNEX A.1, ATTACHMENT 1, PART II, SECTION II.1.2
Part II, Section II.1.2 of Attachment 1 to Exhibit A, Product Annex A.1
is amended and restated in its entirety as follows:
II.1.2 DTEI ADD-ON AND EXTENSION PORT PRICES FOR WIRED AND EQUIPPED
***
D. PRODUCT ANNEX A.1, ARTICLE 2, SECTION 2.1.2(a)
Article 2, Section 2.1.2 of Exhibit A, Product Annex A.1 is amended to
add the following subparagraph in its entirety:
With regard to the Nortel Networks Product pricing set forth in
Attachments 1 to Product Annexes A.1 and A.2, the following shall apply:
2.1.2(a) ***
*** Confidential information has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
[ATI LOGO]
ADVANCED TELECOMMUNICATIONS, INC.
ISSUANCE AND SALE OF
SERIES Cl PREFERRED STOCK
DECEMBER 13, 1999
<PAGE>
AMENDMENT NO. 1
TO
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This Amendment No. 1 to Series C Preferred Stock Purchase Agreement (the
"AMENDMENT") is made as of December 13, 1999 by and among:
(i) Advanced Telecommunications, Inc., a Delaware corporation (the
"Company");
(ii) Stolberg, Meehan & Scano II, L.P. ("Stolberg");
(iii) Bain Capital Fund VI, L.P. ("Bain") and the other Persons who are
listed on the signature pages hereto as Bain Purchasers (the "BAIN
PURCHASERS");
(iv) J.P. Morgan Ventures Corporation ("JP Morgan");
(v) Mount Washington Associates L.L.C. ("MOUNT WASHINGTON");
(vi) Steven M. Simon ("Simon");
(vii) Paul Cady ("P._Cady");
(viii) Daniel P. Cady and Jane Maland Cady ("D. Cady"); and
(ix) David G. Cady and Kim S. Cady ("DG Cady").
RECITALS
1. The Bain Purchasers, Stolberg, JP Morgan, Mount Washington, Simon, P.
Cady, D. Cady and DG Cady (collectively, the "SUBSEQUENT PURCHASERS") have
agreed to purchase shares of the Company's Series Cl Preferred Stock, par value
$0.01 per share (the "SERIES Cl PREFERRED STOCK") on the conditions and subject
to the terms set forth in the Series C Preferred Stock Purchase Agreement dated
September 30, 1999 by and among the Company, the Bain Purchasers, Stolberg and
certain other Purchasers (the "STOCK PURCHASE AGREEMENT"), as amended by this
Amendment.
2. The Company and the Majority Purchasers, which includes the Majority
Bain Purchasers and Stolberg, desire to amend the Stock Purchase Agreement to
include JP Morgan, Mount Washington, Simon, P. Cady, D. Cady and DG Cady as
parties thereto and to include the Series Cl Preferred Stock as Shares
thereunder. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Stock Purchase Agreement.
<PAGE>
AGREEMENT
Therefore, the parties hereto hereby agree as follows:
1. All references in the Stock Purchase Agreement and this Amendment to the
"STOCK PURCHASE AGREEMENT" or the "AGREEMENT" shall be deemed to mean the Stock
Purchase Agreement, as amended by this Amendment.
2. The defined term "SHARES" in the Stock Purchase Agreement shall be
deemed to include the shares of Series Cl Preferred Stock sold to the Subsequent
Purchasers pursuant to the Stock Purchase Agreement.
3. The defined term "STOCKHOLDERS AGREEMENT" shall be deemed to mean the
Stockholders Agreement, as amended by Amendment No. 1 to Amended and Restated
Stockholders Agreement dated as of the date hereof by and among the Company, the
Bain Purchasers, Stolberg and certain other stockholders of the Company (the
"AMENDMENT TO STOCKHOLDERS AGREEMENT").
4. Section 1.3 of the Stock Purchase Agreement is hereby amended by
replacing it in its entirety with the following:
"1.3. SALE OF SHARES AT SUBSEQUENT CLOSINGS.
1.3.1 SALE OF SHARES AT FIRST SUBSEQUENT CLOSING. The Company
shall adopt and file with the Secretary of State of Delaware on or
prior to the closing of the purchase of Series Cl Preferred Stock
hereunder on December 13, 1999 (the "FIRST SUBSEQUENT CLOSING") a
Second Amended and Restated Certificate of Incorporation in the form
attached hereto as EXHIBIT L (the "SECOND AMENDED CHARTER").
Subject to the terms and conditions contained herein, and based on the
representations and warranties contained herein, each Subsequent
Purchaser agrees, severally, to purchase, and the Company agrees to
issue and sell to each Subsequent Purchaser on January 4, 2000, that
number of shares of Series Cl Preferred Stock set forth in the column
First Subsequent Closing opposite each Subsequent Purchaser's name on
EXHIBIT A hereto at the per share purchase price of $6.00 (the "FIRST
SUBSEQUENT PURCHASE PRICE").
1.3.2 SALE OF SHARES AT OTHER SUBSEQUENT CLOSINGS. Subject to all
of the terms and conditions of this Agreement and based on the
representations and warranties contained herein, at any time after
March 31, 2000 and prior to September 30, 2001, at the option of the
Company and upon not less than ten Business Days prior written notice
to the Bain Purchasers, the Bain Purchasers will purchase at not more
than three subsequent closings (each, together with the First
Subsequent Closing, a "SUBSEQUENT CLOSING") at a per share purchase
price of $5.00 (or such other per share purchase price
-2-
<PAGE>
as shall be agreed to in writing by the Majority Bain Purchasers and a
majority of the disinterested members of the Company's board of
directors) a number of Shares not exceeding 6,000,000 shares; PROVIDED
that in addition to the conditions set forth in Section 4.4 hereof,
the following conditions have been met: (a) the Company shall have
achieved the operational and financial targets set forth on EXHIBIT C
hereto and (b) the CLEC Basket Market Value shall be greater than
11.2, as calculated on EXHIBIT D hereto (the "BASE MARKET VALUE");
PROVIDED, HOWEVER that in the event that one or more of the Designated
CLECs ceases to be a publicly traded company trading under the ticker
symbol under which it is trading as of Initial Closing, the Base
Market Value shall be recalculated in good faith to exclude such
Designated CLEC from the calculation."
5. Section 4.4 of the Stock Purchase Agreement is hereby amended by
renumbering it as Section 4.5.
6. Section 4.3 of the Stock Purchase Agreement is hereby amended by
replacing it in its entirety with the following:
"4.3. FIRST SUBSEQUENT CLOSING. The obligations of each of the
Subsequent Purchasers under Section 1 of this Agreement to purchase
Shares at the First Subsequent Closing are subject to the fulfillment
on or before the First Subsequent Closing of each of the following
conditions unless waived in accordance with Section 8.1:
4.3.1. REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company contained in Section 2, as amended
by the amended Schedules attached hereto as EXHIBIT M (the
"AMENDED SCHEDULES"), shall be true and correct in all material
respects on and as of the date of the First Subsequent Closing
with the same effect as though such representations and
warranties had been made on and as of the date of such First
Subsequent Closing and the Subsequent Purchasers shall have
received a certificate of the Chief Executive Officer or Chief
Operating Officer of the Company to that effect.
4.3.2 PERFORMANCE. The Company shall have performed and
complied with all agreements, obligations, and conditions
contained in this Agreement and the Stockholders Agreement that
are required to be performed or complied with by it on or before
the First Subsequent Closing.
4.3.3 BOARD DETERMINATIONS. The board of directors of the
Company shall have approved all issuances of Shares at the First
Subsequent Closing and determined that the financing to be
provided by the issuance and sale of Shares at the First
Subsequent Closing is necessary or desirable in connection with
the funding of the business of the Company and its Subsidiaries.
-3-
<PAGE>
4.3.4 FILING OF SECOND AMENDED CHARTER. The Company shall
have filed with the Secretary of State of Delaware the Second
Amended Charter in the form attached hereto as EXHIBIT L and the
Second Amended Charter shall have become effective.
4.3.5 OUALIFICATIONS. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in
connection with the lawful issuance and sale of Shares to the
Subsequent Purchasers or the execution, delivery and performance
by the Company of this Agreement and the Stockholders Agreement
shall have been duly obtained and shall be effective on and as of
the First Subsequent Closing, other than those which are not
required to be obtained before the First Subsequent Closing.
4.3.6 AMENDMENT TO STOCKHOLDERS AGREEMENT. The Amendment to
Stockholders Agreement in the form attached hereto as EXHIBIT N
shall have been executed and delivered by the parties thereto
(other than the Purchasers in their capacity as such), no such
party shall be in breach or default thereof and the Amendment to
Stockholders Agreement shall be in full force and effect as of
the First Subsequent Closing.
4.3.7 CONTINUED FULFILLMENT. The conditions set forth in
Sections 4.1.4, 4.1.5 and 4.1.6 shall continue to have been
fulfilled at the First Subsequent Closing.
4.3.8 SECRETARY'S CERTIFICATE. The Secretary of the Company
shall have delivered to the Subsequent Purchasers at the First
Subsequent Closing a Certificate dated as of the First Subsequent
Closing, certifying: (a) that attached thereto is a true and
complete copy of the by-laws of the Company as in effect on the
date of such certification; (b) that attached thereto is a true
and complete copy of all resolutions adopted by the board of
directors of the Company authorizing the execution, delivery and
performance of this Amendment and the Amendment to Stockholders
Agreement and the issuance, sale and delivery of the Shares, and
that all such resolutions are in full force and effect and are
all the resolutions adopted in connection with the transactions
contemplated by this Agreement and the Stockholders Agreement;
(c) that attached thereto is a true and complete copy of the
charter of the Company as amended by the Second Amended Charter
and (d) to the incumbency and specimen signature of certain
officers of the Company.
4.3.9 OPINION OF COMPANY COUNSEL. The Subsequent Purchasers
shall have received from Piper Marbury Rudnick & Wolfe LLP,
counsel for the Company, an opinion substantially in the form
(including, with respect to the Second Amended Charter, paragraph
3) attached hereto as EXHIBIT G.
-4-
<PAGE>
4.3.10 THIRD PARTY CONSENTS. The Company and each Subsidiary
shall have received all required third party consents necessary
to the consummation of the transactions contemplated by this
Agreement.
4.3.11 PROCEEDINGS AND DOCUMENTS. All instruments and legal,
governmental, administrative, corporate and partnership
proceedings in connection with the issuance of Shares, this
Agreement and the Amendment to Stockholders Agreement shall be
reasonably satisfactory in form and substance to the Subsequent
Purchasers, and the Subsequent Purchasers shall have received
copies of all documents, including, without limitation, records
of corporate or other proceedings, and any consents, licenses,
approvals, permits and orders required to be secured by the
Company in connection with the issuance of Shares, this Agreement
and the Amendment to Stockholders Agreement or which any
Purchaser may have reasonably requested in connection therewith.
4.4. OTHER SUBSEQUENT CLOSINGS. The obligations of each of the
Bain Purchasers under Section 1 of this Agreement to purchase Shares
at each Subsequent Closing other than the First Subsequent Closing are
subject to the fulfillment on or before each such Subsequent Closing
of each of the following conditions unless waived in accordance with
Section 8.1:
4.4.1. REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Company contained in Section 2 shall be
true and correct in all material respects on and as of the date
of each Subsequent Closing with the same effect as though such
representations and warranties had been made on and as of the
date of such Subsequent Closing and the Bain Purchasers shall
have received a certificate of the Chief Executive Officer or
Chief Operating Officer of the Company to that effect.
4.4.2 PERFORMANCE. The Company shall have performed and
complied with all agreements, obligations, and conditions
contained in this Agreement and the Stockholders Agreement that
are required to be performed or complied with by it on or before
such Subsequent Closing.
4.4.3 BOARD DETERMINATIONS. The board of directors of the
Company shall have approved all issuances of Shares at such
Subsequent Closing and determined that the financing to be
provided by the issuance and sale of Shares at such Subsequent
Closing is necessary or desirable in connection with the funding
of the business of the Company and its Subsidiaries.
4.4.4 CONTINUED FULFILLMENT. The conditions set forth in
Sections 4.1.4, 4.1.5 and 4.1.6 shall continue to have been
fulfilled at each such Subsequent Closing.
-5-
<PAGE>
4.4.5 SECRETARY'S CERTIFICATE. The Secretary of the Company
shall have delivered to the Bain Purchasers at such Subsequent
Closing a Certificate, dated as of such Subsequent Closing,
certifying: (a) that attached thereto is a true and complete copy
of the by-laws of the Company as in effect on the date of such
certification; (b) that attached thereto is a true and complete
copy of all resolutions adopted by the board of directors of the
Company authorizing the issuance, sale and delivery of the
Shares, and that all such resolutions are in full force and
effect and are all the resolutions adopted in connection with the
transactions contemplated by this Agreement and the Stockholders
Agreement; (c) that attached thereto is a true and complete copy
of the charter of the Company as amended by the Second Amended
Charter and (d) to the incumbency and specimen signature of
certain officers of the Company.
4.4.6 OUALIFICATIONS. All authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in
connection with the lawful issuance and sale of Shares to the
Bain Purchasers or the execution, delivery and performance by the
Company of this Agreement and the Stockholders Agreement shall
have been duly obtained and shall be effective on and as of each
Subsequent Closing, other than those which are not required to be
obtained before each Subsequent Closing.
4.4.7 OPINION OF COMPANY COUNSEL. The Purchasers shall have
received from Piper Marbury Rudnick & Wolfe LLP, counsel for the
Company, an opinion substantially in the form (other than
paragraph 3) attached hereto as EXHIBIT C.
4.4.8 THIRD PARTY CONSENTS. The Company and each Subsidiary
shall have received all required third party consents necessary
to the consummation of the transactions contemplated by this
Agreement.
4.4.9 PROCEEDINGS AND DOCUMENTS. All instruments and legal,
governmental, administrative, corporate and partnership
proceedings in connection with the issuance of Shares, this
Agreement and the Stockholders Agreement shall be reasonably
satisfactory in form and substance to the Bain Purchasers, and
the Bain Purchasers shall have received copies of all documents,
including, without limitation, records of corporate or other
proceedings, and any consents, licenses, approvals, permits and
orders required to be secured by the Company in connection with
the issuance of Shares, this Agreement and the Stockholders
Agreement or which any Purchaser may have reasonably requested in
connection therewith."
7. Section 6.3 of the Stock Purchase Agreement is hereby amended by
replacing it in its entirety with the following:
-6-
<PAGE>
"OTHER PURCHASERS" shall mean BancBoston Robertson Stephens Inc.,
Bayview 99 I, L.P., Bayview 99 II, L.P., Clark Callander, Richard
Innenberg, JP Morgan, Mount Washington, Simon, P. Cady, D. Cady and DG
Cady."
8. Each of JP Morgan, Mount Washington, Simon, P. Cady, D. Cady and DG Cady
shall become a party to the Stock Purchase Agreement by its execution of the
signature page hereto and shall be designated as a "Purchaser" thereunder.
9. EXHIBIT A to the Stock Purchase Agreement is hereby amended by replacing
it in its entirety with EXHIBIT A attached hereto.
10. The parties hereto acknowledge that Susan E. Rivera and Thomas J.
Rivera ("RIVERA") have preemptive rights under the Stockholders Agreement in
connection with the issuance of Shares at the First Subsequent Closing which
they have not exercised to date. The number of shares of Series Cl Preferred
Stock authorized in the Second Amended Charter shall be sufficient to
accommodate the issuance of Shares to Rivera in the event Rivera exercises its
preemptive rights. In the event that Rivera exercises its preemptive rights to
purchase shares of Series Cl Preferred Stock, the parties agree that Rivera may
become a party to the Stock Purchase Agreement by executing a joinder agreement
and upon execution of such joinder agreement shall be designated as a
"Purchaser" under the Stock Purchase Agreement entitled to rights and subject to
obligations applicable to a Purchaser thereunder.
11. Except as specifically amended by this Amendment, the Stock Purchase
Agreement shall remain in full force and effect in accordance with its terms.
12. This Amendment may be executed in any number of counterparts, each of
which shall constitute an original, but all of which, taken together, shall
constitute one and the same agreement.
-7-
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Amendment as of the date first written above.
THE COMPANY: ADVANCED TELECOMMUNICATIONS, INC.
By: /s/ Clifford D. Williams
-----------------------------------------
Clifford D. Williams,
Chief Executive Officer
<PAGE>
BAIN PURCHASERS: BAIN CAPITAL FUND VI, L.P.
By: Bain Capital Partners VI, L.P.,
its general partner
By: Bain Capital Investors VI, Inc.,
its general partner
By: /s/ Michael A. Krupka
-----------------------------------
Name: Michael A. Krupka
Title: Managing Director
BCIP ASSOCIATES II
BCIP TRUST ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II-B
BCIP ASSOCIATES II-C
By: Bain Capital, Inc.,
their Managing Partner
PEP INVESTMENTS PTY LTD.
By: Bain Capital, Inc.,
its attorney-in-fact
By: /s/ Michael A. Krupka
------------------------------------
Name: Michael A. Krupka
Title: Managing Director
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By /s/ Jonathan S. Levine
------------------------------------
Name: Jonathan S. Levine
Title: Managing Director
RGTP, LLC
By:_____________________________________
Name:
Title:
<PAGE>
BAIN PURCHASERS: BAIN CAPITAL FUND VI, L.P.
By: Bain Capital Partners VI, L.P.,
its general partner
By: Bain Capital Investors VI, Inc.,
its general partner
By:______________________________________
Name: Michael A. Krupka
Title: Managing Director
BCIP ASSOCIATES II
BCIP TRUST ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II-B
BCIP ASSOCIATES II-C
By: Bain Capital, Inc.,
their Managing Partner
PEP INVESTMENTS PTY LTD.
By: Bain Capital, Inc.,
its attorney-in-fact
By:_______________________________________
Name: Michael A. Krupka
Title: Managing Director
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By _______________________________________
Name:
Title: Managing Director
RGIP, LLC
By: /s/ R. Bradford Malt
--------------------------------------
Name: R. Bradford Malt
Title: Managing Member
<PAGE>
STOLBERG: STOLBERG MEEHAN & SCANO II, L.P.
A DELAWARE LIMITED PARTNERSHIP
BY: STOLBERG MEEHAN & SCANO LLC,
GENERAL PARTNER
By: /s/
----------------------------------------
Name:
Title:
<PAGE>
JP MORGAN: J.P. MORGAN VENTURES CORPORATION
By: /s/ John A. Mayer
----------------------------------------
Name: John A. Mayer
Title: Director
<PAGE>
MOUNT WASHINGTON: MOUNT WASHINGTON ASSOCIATES L.L.C.
By: /s/ Edwin M. Martin, Jr.
----------------------------------------
Name: Edwin M. Martin, Jr.
Title: Managing Member
<PAGE>
SIMON: /s/ Steven M. Simon
-------------------------------------------
Steven M. Simon
<PAGE>
CADY: /s/ Paul Cady
-------------------------------------------
Paul Cady
<PAGE>
DG CADY: /s/ David G. Cady & Kim S. Cady
-------------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
<PAGE>
D. CADY: /s/ Daniel P. Cady & Jane Maland Cady
-------------------------------------------
Daniel P. Cady & Jane Maland Cady,
as Joint Tenants
<PAGE>
Exh.10.1.33
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made
as of March 31, 2000 by and among Advanced Telecommunications, Inc., a Delaware
corporation (the "Company"), FSC Corp. ("FSC CORP."), General Electric Capital
Corporation ("GECC"), and the other investors listed on SCHEDULE I hereto
(collectively with FSC Corp. and GECC, the "PURCHASERS" and each, a
"PURCHASER").
WHEREAS, the Company wishes to issue and sell to the
Purchasers an aggregate of 488,742 shares (the "PURCHASED COMMON SHARES") of the
authorized but unissued Common Stock, $0.01 par value per share, of the Company
(the "COMMON STOCK"); and
WHEREAS, the Purchasers wish to purchase the Purchased Common
Shares on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual
covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE I
THE PURCHASED COMMON SHARES
Section 1.1. ISSUANCE, SALE AND DELIVERY OF THE PURCHASED
COMMON SHARES. The Company agrees to issue and sell to the Purchasers, and the
Purchasers hereby agree to purchase from the Company, the number of Purchased
Common Shares set forth opposite the name of each Purchaser under the heading
"Number of Purchased Common Shares" on SCHEDULE I.
Section 1.2. PURCHASE PRICE OF PURCHASED COMMON SHARES. Each
Purchaser shall pay $6.54 per share for its respective number of the Purchased
Common Shares. The portion of the aggregate purchase price for the Purchased
Common Shares to be paid by each Purchaser is set forth opposite the name of the
Purchaser under the heading "Aggregate Purchase Price" on SCHEDULE I.
Section 1.3. CLOSING.
(a) The initial closing of the sale and purchase of the
Purchased Common Shares (the "INITIAL CLOSING") shall take place at the office
of Piper Marbury Rudnick & Wolfe LLP, 1200 Nineteenth Street, N.W., Washington,
D.C. 20036, at 10 a.m., on March 31, 2000, or via facsimile on that date and at
such time as the Company and the Purchasers participating in the Initial Closing
shall designate (such date is hereinafter referred to as the "INITIAL CLOSING
DATE").
<PAGE>
(b) The subsequent closing of the sale and purchase of the
Purchased Common Shares (the "SUBSEQUENT CLOSING") shall take place on or before
the 10th day following the Initial Closing Date. The date of the Subsequent
Closing is hereinafter referred to as the "SUBSEQUENT CLOSING DATE". Each
closing, including the Initial Closing, is hereinafter referred to as a
"CLOSING", with the respective date referred to as the "CLOSING DATE". This
Purchase Agreement shall become effective as to each Purchaser on such
Purchaser's Closing Date, which is set forth next to such Purchaser's name on
the signature pages hereto.
(c) As soon as practicable after each Closing, the Company
shall issue and deliver to each Purchaser a stock certificate issued in the name
of such Purchaser representing the Purchased Common Shares being purchased by
it. As payment in full for the Purchased Common Shares being purchased by it
under this Agreement, and against delivery of such stock certificate, at each
Closing each Purchaser shall deliver to the Company by certified check or wire
transfer the "Aggregate Purchase Price" set forth opposite such Purchaser's name
on SCHEDULE I.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that:
Section 2.1. ORGANIZATION, QUALIFICATIONS AND CORPORATE POWER.
The Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is duly licensed or
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the nature of the business transacted by it or the
character of the properties owned or leased by it requires such licensing or
qualification. The Company has the corporate power and authority to own and hold
its properties and to carry on its business as now conducted and as proposed to
be conducted, to execute, deliver and perform this Agreement and Amendment No. 2
to Amended and Restated Stockholders Agreement by and among the Company and
certain of the Purchasers, dated as of the date hereof ("AMENDMENT NO. 2"), and
to issue, sell and deliver the Purchased Common Shares.
Section 2.2. DUE AUTHORIZATION; NON-CONTRAVENTION.
(a) The execution and delivery by the Company of this
Agreement and Amendment No. 2, the performance by the Company of its obligations
hereunder and thereunder, and the issuance, sale and delivery of the Purchased
Common Shares (i) have been duly authorized by all requisite corporate action,
(ii) will not violate any provision of law, any order of any court or other
agency of government, the Certificate of Incorporation, as amended and in effect
on the date hereof (the "CHARTER") or the By-laws of the Company, as amended and
in effect on the date hereof, or any provision of any indenture, agreement or
other instrument to which the Company or any of its properties or assets is
bound, or conflict with, result in a breach of, constitute (with due notice or
lapse of time or both) a default under, accelerate or terminate
- 2 -
<PAGE>
any such indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge, restriction, claim or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company and (iii) will
not require any notice, consent or waiver under any material indenture,
agreement or other instrument to which the Company is a party or by which any of
its properties or assets are bound.
(b) When issued in accordance with this Agreement, the
Purchased Common Shares will be duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock and will be free and clear of all liens,
charges, restrictions, claims and encumbrances imposed by or through the Company
except as set forth in this Agreement, that certain Amended and Restated
Stockholders Agreement by and among the Company and the stockholder parties
thereto, dated September 30, 1999 (the "STOCKHOLDERS AGREEMENT"), as amended
through Amendment No. 2, and the Charter. The issuance, sale or delivery of the
Purchased Common Shares is not subject to any preemptive right of stockholders
of the Company, or to any right of first refusal or other right in favor of any
person, which right has not been duly and validly waived.
Section 2.3. CONSENTS AND APPROVALS. No authorization, action,
consent, approval or other order of, declaration to, or filing by the Company
with any federal state, municipal, foreign or other court or governmental body
or agency, or any other regulatory body, or any other person or entity is
required in connection with the valid and lawful authorization, execution,
delivery and performance by the Company of this Agreement or Amendment No. 2, or
the valid and lawful consummation by the Company of the transactions
contemplated hereby or thereby, except any filing, consent or approval that has
been made or obtained, and any "blue sky" filings to be made in connection with
the issuance of the Purchased Common Shares.
Section 2.4. VALIDITY. This Agreement has been duly executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance with its terms. Amendment
No. 2, when executed and delivered in accordance with this Agreement, will
constitute the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms.
Section 2.5. CAPITALIZATION. As of the date hereof, the
capitalization of the Company is as set forth on SCHEDULE II hereto.
Section 2.5. NO MATERIAL CHANGES. There have been no material
changes to the business or to the financial condition of the Company since the
sale of Series C1 Preferred Stock of the Company on December 13, 1999 pursuant
to that certain Series C Preferred Stock Purchase Agreement by and among the
Company and the purchasers listed therein, dated as of September 30, 1999, as
amended by Amendment No. 1 to Series C Preferred Stock Purchase Agreement, by
and among the Company and the purchasers listed therein, dated as of December
13, 1999.
- 3 -
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Each Purchaser hereby represents and warrants to the Company
that:
Section 3.1. BLUE SKY MATTERS. It received any materials in
connection with the offering of the Purchased Common Shares and first learned of
such offering in the state listed as its home state set forth on SCHEDULE I
hereto, and intends that the state securities laws of that state alone shall
govern its purchase of the Purchased Common Shares.
Section 3.2. CERTAIN SECURITIES MATTERS.
(a) It has sufficient knowledge and experience in investing in
companies similar to the Company in terms of the Company's stage of development
so as to be able to evaluate the risks and merits of its investment in the
Company and it is able financially to bear the risks thereof;
(b) It has had an opportunity to discuss the Company's
business, management and financial affairs with the Company's management;
(c) The Purchased Common Shares being purchased by it are
being acquired for its own account for the purpose of investment and not with a
view to or for sale in connection with any distribution thereof, except in
accordance with the Securities Act of 1933, as amended (the "SECURITIES ACT")
and the rules and regulations promulgated thereunder and all applicable state
securities or blue sky laws;
(d) It understands that (i) the Purchased Common Shares have
not been registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the Securities Act and
the Company's reliance on such exemption is predicated upon the Purchaser's
representations set forth in this Article III, (ii) the Purchased Common Shares
must be held indefinitely unless a subsequent disposition thereof is registered
under the Securities Act and all applicable state securities and "blue sky" laws
or unless such disposition is exempt from such registration, (iii) the Purchased
Common Shares will bear a legend to such effect and (iv) the Company will make a
notation on its transfer books to such effect;
(e) If it sells any Purchased Common Shares pursuant to Rule
144A promulgated under the Securities Act, it will take all necessary steps in
order to perfect the exemption from registration provided thereby, including (i)
obtaining on behalf of the Company information to enable the Company to
establish a reasonable belief that the purchaser is a qualified institutional
buyer and (ii) advising such purchaser that Rule 144A is being relied upon with
respect to such resale;
- 4 -
<PAGE>
(f) It acknowledges and agrees that (i) a reasonable time
prior to the date hereof it received from the Company, and carefully reviewed,
certain materials prepared by the Company that describe the business and
financial condition of the Company (the "DISCLOSURE MATERIALS"), and (ii) it had
reasonable time and opportunity to ask questions and receive answers concerning
the Disclosure Materials and to obtain any additional information from the
Company that was necessary for it to verify the accuracy of the Disclosure
Materials; and
(g) It acknowledges and agrees that the stock certificate
representing the Purchased Common Shares shall bear the legend set forth in the
Stockholders Agreement.
Section 3.3. BROKERS. It has no contract, arrangement or
understanding with any broker, finder or similar agent with respect to the
transactions contemplated by this Agreement.
Section 3.4. INVESTMENT INTENT. It confirms that its purchase
of the Purchased Common Shares is solely for investment and that pursuant to
this Agreement the Purchaser is making an acquisition of voting securities
solely for purposes of investment in accordance with 16 CFR Section 802.9.
ARTICLE IV
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER AND THE COMPANY
Section 4.1. CONDITIONS TO THE OBLIGATION OF THE PURCHASER.
The obligation of each Purchaser to purchase and pay for the Purchased Common
Shares being purchased by it on the Closing Date is, at its option, subject to
the satisfaction, on or before the Closing Date, of the following conditions:
(a) OPINION OF COMPANY'S COUNSEL. The Purchaser shall have
received from Piper Marbury Rudnick & Wolfe LLP, special counsel for the
Company, one or more opinions dated as of the Initial Closing Date in form and
scope satisfactory to the Purchaser and its counsel.
(b) REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT. The
representations and warranties contained in Article II shall be true, complete
and correct on and as of the Initial Closing Date with the same effect as though
such representations and warranties had been made on and as of such date, and an
authorized officer of the Company shall have certified to such effect to the
Purchaser in writing.
(c) PERFORMANCE. The Company shall have performed and complied
in all material respects with all agreements contained herein required to be
performed or complied with by it prior to or at the Initial Closing Date, and an
authorized officer of the Company shall have certified to the Purchaser in
writing to such effect and to the further effect that all of the conditions set
forth in this Section 4.1 have been satisfied.
- 5 -
<PAGE>
(d) SUPPORTING DOCUMENTS. The Purchaser shall have received
copies of the following documents:
(i) (A) the Charter, certified as of a recent date by the
Secretary of State of the State of Delaware and (B) a certificate of said
Secretary dated as of a recent date as to the due incorporation and good
standing of the Company; and
(ii) a certificate of the Secretary or an Assistant Secretary
of the Company dated the Initial Closing Date and certifying: (A) that attached
thereto is a true and complete copy of the By-laws of the Company as in effect
on the date of such certification; (B) that attached thereto is a true and
complete copy of all resolutions adopted by the Board of Directors of the
Company authorizing the execution, delivery and performance of this Agreement
and Amendment No. 2, the issuance, sale and delivery of the Purchased Common
Shares and that all such resolutions are in full force and effect; (C) that the
Charter has not been amended since the date of the certificate delivered
pursuant to clause (i) above; and (D) to the incumbency and specimen signature
of each officer of the Company executing this Agreement and Amendment No. 2 and
any certificate or instrument furnished pursuant hereto.
(e) STOCKHOLDERS AGREEMENT. The Company shall have executed
and delivered Amendment No. 2.
Section 4.2. CONDITIONS TO THE OBLIGATION OF THE COMPANY. The
obligation of the Company to issue the Purchased Common Shares being sold by it
on the Closing Date is, at its option, subject to the satisfaction, on or before
the Closing Date, of the following conditions:
(a) PURCHASE PRICE. Each Purchaser shall have paid the
aggregate purchase price for the Purchased Common Shares set forth opposite the
Purchaser's name under the heading "Aggregate Purchase Price" on SCHEDULE I.
(b) STOCKHOLDERS AGREEMENT. Each Purchaser who is not already
a party to the Stockholders Agreement, as amended, shall have executed and
delivered Amendment No. 2.
ARTICLE V
MISCELLANEOUS
Section 5.1. EXPENSES. Each party hereto will pay its own
expenses in connection with the transactions contemplated hereby, whether or not
such transactions shall be consummated.
Section 5.2. SURVIVAL OF AGREEMENTS. All covenants,
agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement and the issuance, sale and delivery of
the Purchased Common Shares.
- 6 -
<PAGE>
Section 5.3. BROKERAGE. Each party hereto will indemnify and
hold harmless the others against and in respect of any claim for brokerage or
other commissions relative to this Agreement or to the transactions contemplated
hereby, based in any way on agreements, arrangements or understandings made or
claimed to have been made by such party with any third party.
Section 5.4. PARTIES IN INTEREST. All representations,
covenants and agreements contained in this Agreement by or on behalf of any of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
Section 5.5. NOTICES. All notices, requests, consents and
other communications hereunder shall be in writing and shall be delivered in
person, mailed by certified or registered mail, return receipt requested, or
sent by facsimile, telecopier or telex, addressed as follows:
(a) if to the Company, at 730 2nd Avenue South, Suite 1200,
Minneapolis, Minnesota 55402, Attention: Chief Financial Officer, (612) 376-4411
(facsimile), with a copy to Edwin M. Martin, Jr., Piper Marbury Rudnick & Wolfe
LLP, 1200 Nineteenth Street, N.W., Washington, D.C. 20036, (202) 223-2085
(facsimile); and
(b) if to any Purchaser, at the address or facsimile,
telecopier or telex number of such Purchaser on record with the Company;
(c) or, in any such case, at such other address or addresses
as shall have been furnished in writing by such party to the others.
Each such notice, request, consent or other communication shall be treated as
having been given when delivered if delivered personally, or upon confirmation
of receipt if sent by facsimile, mail or overnight delivery.
Section 5.6. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware.
Section 5.7. ENTIRE AGREEMENT. This Agreement, including the
Schedules hereto, constitutes the sole and entire agreement of the parties with
respect to the subject matter hereof.
Section 5.8. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 5.9. AMENDMENTS. This Agreement may not be amended or
modified, and no provisions hereof may be waived, without the written consent of
the Company and the Purchasers purchasing a majority of the Purchased Common
Shares.
- 7 -
<PAGE>
Section 5.10. SEVERABILITY. If any provision of this Agreement
shall be declared void or unenforceable by any judicial or administrative
authority, the validity of any other provision and of the entire Agreement shall
not be affected thereby.
Section 5.11. TITLES AND SUBTITLES. The titles and subtitles
used in this Agreement are for convenience only and are not to be considered in
construing or interpreting any term or provision of this Agreement.
- 8 -
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Common
Stock Purchase Agreement as of the day and year first above written.
ADVANCED TELECOMMUNICATIONS, INC.
By:
--------------------------------------
Name: Date
Title:
FSC CORP.
By:
--------------------------------------
Name: Date
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
--------------------------------------
Name: Date
Title:
-----------------------------------------
Sheldon Allen Date
-----------------------------------------
Gerry Boeke Date
-----------------------------------------
Carol Braun Date
- 9 -
<PAGE>
-----------------------------------------
Janet Darkenwald Date
-----------------------------------------
Arlin Goldberg Date
-----------------------------------------
Greg Griffiths Date
-----------------------------------------
Paul Hanser Date
-----------------------------------------
Dave Kunde Date
-----------------------------------------
Greg Lopata Date
-----------------------------------------
Mike Lopata Date
-----------------------------------------
Bill Markert Date
- 10 -
<PAGE>
-----------------------------------------
Marvin Moses Date
-----------------------------------------
Kris Nandakumar Date
-----------------------------------------
Jeff Oxley Date
-----------------------------------------
Bob Pickens Date
-----------------------------------------
Lynne Powers Date
-----------------------------------------
Mike Robinson Date
-----------------------------------------
Ninette Sandefeur Date
-----------------------------------------
Bill Shanley Date
- 11 -
<PAGE>
-----------------------------------------
Steven Simon Date
-----------------------------------------
Richard Smith Date
-----------------------------------------
Bob Thompson Date
-----------------------------------------
Satish Tiwari Date
-----------------------------------------
Steve Wachter Date
-----------------------------------------
Bill Whitney Date
-----------------------------------------
Arthur H. Zeile Date
-----------------------------------------
Geoffrey Boyd Date
- 12 -
<PAGE>
Exhibit 10.1.34
AMENDMENT NO. 2
TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amendment No. 2 to Amended and Restated Stockholders Agreement
(the "AMENDMENT") is made as of March 31, 2000 by and among:
(i) Advanced Telecommunications, Inc., a Delaware corporation (the
"COMPANY");
(ii) General Electric Capital Corporation ("GECC");
(iii) FSC Corp.;
(iv) the individual investors listed on SCHEDULE I hereto (the
"INDIVIDUAL INVESTORS");
(v) Stolberg Partners, L.P. and Stolberg, Meehan & Scano II, L.P. (the
"STOLBERG INVESTORS"); and
(vi) Bain Capital Fund VI, L.P. and the other Persons who are listed on
the signature pages hereto as Bain Investors (the "BAIN INVESTORS").
RECITALS
A. As of the date hereof, GECC, FSC Corp., and the Individual Investors
(collectively with GECC and FSC Corp., the "NEW STOCKHOLDERS") have purchased
shares of the Company's Common Stock, par value $0.01 per share (the "COMMON
STOCK") pursuant to a Common Stock Purchase Agreement dated as of the date
hereof between the Company and the Purchasers (as defined therein).
B. The Company, the New Stockholders, the Stolberg Investors and the
Bain Investors desire to amend that certain Amended and Restated Stockholders
Agreement dated as of September 30, 1999, as amended and in effect on the date
hereof (the "AGREEMENT") to include the New Stockholders as parties thereto.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
AGREEMENT
Therefore, the parties hereto hereby agree as follows:
1. GECC shall become a party to the Agreement by its execution of the
signature page hereto and shall be designated as a "Minority Stockholder"
thereunder.
<PAGE>
2. FSC Corp. shall become a party to the Agreement by its execution of
the signature page hereto and shall be designated as a "Minority Stockholder"
thereunder.
3. Each of the Individual Investors shall become parties to the
Agreement by their respective execution of the signature pages hereto, and each
shall be designated as a "Minority Stockholder" thereunder.
4. SCHEDULE I to the Agreement is hereby amended to add GECC, FSC
Corp., and each of the Individual Investors to such Schedule.
5. Except as specifically amended by this Amendment, the Agreement
shall remain in full force and effect in accordance with its terms.
6. The Stolberg Investors and the Bain Investors hereby consent to this
Amendment.
7. This Amendment may be executed in any number of counterparts, each
of which shall constitute an original, but all of which, taken together, shall
constitute one and the same agreement.
[SIGNATURES ON FOLLOWING PAGES.]
-2-
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Amendment as of the date first written above.
ADVANCED TELECOMMUNICATIONS, INC.
By:
-----------------------------
Clifford D. Williams,
Chief Executive Officer
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-----------------------------
Name:
Title:
FSC CORP.
By:
-----------------------------
Name:
Title:
--------------------------------
Gerry Boeke
--------------------------------
Geoffrey Boyd
--------------------------------
Janet Darkenwald
-3-
<PAGE>
--------------------------------
Paul Hanser
--------------------------------
Dave Kunde
--------------------------------
Greg Lopata
--------------------------------
William Markert
--------------------------------
Kris Nandakumar
--------------------------------
Jeff Oxley
--------------------------------
Lynne Powers
--------------------------------
Mike Robinson
-4-
<PAGE>
--------------------------------
Ninette Sandefeur
--------------------------------
Robert Thompson
--------------------------------
Steve Wachter
--------------------------------
Arthur H. Zeile
-5-
<PAGE>
BAIN INVESTORS: BAIN CAPITAL FUND VI, L.P.
By: Bain Capital Partners VI, L.P.,
its general partner
By: Bain Capital Investors VI, Inc.,
its general partner
By:
-----------------------------
Name: Michael A. Krupka
Title: Managing Director
BCIP ASSOCIATES II
BCIP TRUST ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II-B
BCIP ASSOCIATES II-C
By: Bain Capital, Inc.,
their Managing Partner
PEP INVESTMENTS PTY LTD.
By: Bain Capital, Inc.,
its attorney-in-fact
By:
-----------------------------
Name: Michael A. Krupka
Title: Managing Director
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By:
-----------------------------
Name:
Title: Managing Director
RGIP, LLC
By:
-----------------------------
Name:
Title:
-6-
<PAGE>
STOLBERG INVESTORS: STOLBERG PARTNERS, L.P.,
By: SGMS, L.P., General Partner
By: Stolberg Meehan & Scano, Inc.
General Partner
By:
-----------------------------
Name:
Title:
STOLBERG MEEHAN & SCANO II, L.P.
a Delaware limited partnership
By: Stolberg Meehan & Scano LLC,
General Partner
By:
-----------------------------
Name:
Title:
-7-
<PAGE>
SCHEDULE I
INDIVIDUAL INVESTORS
Geoffrey Boyd
Janet Darkenwald
Paul Hanser
Dave Kunde
Greg Lopata
William Markert
Kris Nandakumar
Jeff Oxley
Lynne Powers
Mike Robinson
Ninette Sandefeur
Robert Thompson
Steve Wachter
Arthur H. Zeile
<PAGE>
Exh. 10.1.35
----------
RECEIVED
MAR 9 2000
By________
----------
AGREEMENT
FOR LOCAL WIRELINE NETWORK INTERCONNECTION
AND
SERVICE RESALE
BETWEEN
AMERICAN TELEPHONE TECHNOLOGY, INC.
AND
U S WEST COMMUNICATIONS, INC.
FOR THE STATE OF WASHINGTON
CDS-000118-0201
[This agreement uses different types of print to indicate the origins of
different provisions. Plain language that is neither in italics nor bold
reflects: (1) language that U S WEST Communications, Inc. ("U S WEST") and AT&T
Communications of the Northwest, Inc. ("AT&T") agreed to in the interconnection
agreement that this Commission ordered on July 11, 1997 and that American
Telephone and Technology, Inc. ("ATTI") is opting into; or (2) language that U S
WEST and ATTI have agreed to. Language that is in bold refers to language that
this Commission ordered in the arbitration between U S WEST and AT&T and that
ATTI is opting into. Language that is in both bold and italics refers to
language that implements the Commission's decision issued in the Washington
arbitration between U S WEST and ATTI on February 24, 2000.
In the footnotes that appear in this agreement, "Commission Decision" refers to
the Commission's decision issued February 24, 2000. "AT&T Order" refers to the
Arbitrator's Report and Decision issued November 27, 1996 in the arbitration
between U S WEST and AT&T Communications of the Northwest, Inc.; "AT&T
Recommendations" refers to to the Arbitrator's Report and Decision issued June
6,1997 in the U S WEST/AT&T arbitration; and "AT&T Approval" refers to this
Commission's Order issued July 11, 1997 Modifying Arbitrator's Decision and
Arbitrator's Recommendations and Approving Interconnection Agreement with
Modifications."]
<PAGE>
TABLE OF CONTENTS
CONTENTS
RECITALS ......................................................................1
SCOPE OF AGREEMENT ............................................................1
DEFINITIONS ...................................................................2
TERMS AND CONDITIONS .........................................................12
1. General Provisions ................................................12
2. Most Favored Nation Terms and Treatment ...........................13
3. Payment ...........................................................13
4. Taxes .............................................................14
5. Intellectual Property .............................................14
6. Severability ......................................................15
7. Responsibility for Environmental Contamination ....................15
8. Branding ..........................................................16
9. Independent Contractor Status .....................................17
10. Referenced Documents ..............................................18
11. Publicity and Advertising .........................................18
12. Executed in Counterparts ..........................................18
13. Headings Not Controlling ..........................................18
14. Joint Work Product ................................................19
15. Survival ..........................................................19
16. Effective Date ....................................................19
17. Amendment of Agreement ............................................19
18. Indemnification ...................................................19
19. Limitation of Liability ...........................................20
20. Term of Agreement .................................................21
21. Governing Law .....................................................21
22. Cancellation Charges ..............................................21
23. Regulatory Approvals ..............................................21
24. Compliance ........................................................22
25. Force Majeure .....................................................23
26. Escalation Procedures .............................................23
27. Dispute Resolution ................................................23
28. Nondisclosure .....................................................24
29. Notices ...........................................................26
30. Assignment ........................................................27
31. Warranties ........................................................27
32. Default ...........................................................27
33. Remedies ..........................................................28
<PAGE>
34. Waivers ...........................................................29
35. No Third Party Beneficiaries ......................................29
36. Physical Security .................................................29
37. Network Security ..................................................30
38. Revenue Protection ................................................30
39. Law Enforcement Interface .........................................31
40. Collocation .......................................................31
42. Number Portability ................................................50
43. Dialing Parity ....................................................57
44. Directory Listings ................................................57
45. Directories .......................................................60
46. U S WEST Dex Issues ...............................................61
47. Access to Poles, Ducts, Conduits, and Rights of Way ...............61
48. Bona Fide Request Process for Further Unbundling ..................66
49. Audit Process .....................................................69
50. Miscellaneous Services ............................................70
51. Unused Transmission Media .........................................86
52. Service Standards .................................................88
53. Entire Agreement ..................................................90
54. Reservation of Rights .............................................91
ATTACHMENTS
Attachment 1 Rates and Charges
Attachment 2 Resale
Attachment 3 Unbundled Access/Elements
Attachment 4 Interconnection
Attachment 5 Business Process Requirements
Attachment 6 Electronic Interfaces
Attachment 7 Implementation Schedule
<PAGE>
This Interconnection Agreement (this "Agreement") is made (1) by and
between American Telephone Technology, Inc., a Washington corporation ("ATTI"),
and U S WEST Communications, Inc., a Colorado corporation ("U S WEST"), to
establish the rates, terms and conditions for local interconnection, local
resale, and the purchase of unbundled network elements (individually referred to
as the "service" or collectively as the "services").
RECITALS
WHEREAS, pursuant to this Agreement, ATTI and U S WEST will extend certain
arrangements to one another within each LATA in which they both operate within
Washington. This Agreement is a combination of agreed terms and terms imposed by
arbitration under Section 252 of the Communications Act of 1934, as modified by
the Telecommunications Act of 1996, the rules and regulations of the Federal
Communications Commission (the "FCC"), and the orders, rules and regulations of
the Washington Utilities and Transportation Commission (the "Commission"); and
as such does not necessarily represent the position of either Party on any given
issue; and
WHEREAS, the Parties wish to interconnect their local exchange networks in
a technically and economically efficient manner for the transmission and
termination of calls, so that subscribers of each can seamlessly receive calls
that originate on the other's network and place calls that terminate on the
other's network, and for ATTI's use in the provision of exchange access ("Local
Interconnection"); and
WHEREAS, ATTI wishes to purchase Telecommunications Services for resale to
others, and U S WEST is willing to provide such services; and
WHEREAS, ATTI wishes to purchase on an unbundled basis Network Elements,
Ancillary Services and Functions and additional features separately or in any
Combination, and to use such services for itself or for the provision of its
Telecommunications Services to others, and U S WEST is willing to provide such
services;
Now, therefore, in consideration of the terms and conditions contained
herein, ATTI and U S WEST hereby mutually agree as follows:
SCOPE OF AGREEMENT
A. This Agreement specifies the rights and obligations of each Party with
respect to the purchase and sale of Local Interconnection, Local Resale and
Network Elements in the LATAs in Washington where U S WEST operates.
B. In the performance of their obligations under this Agreement, the
Parties shall act in good faith and consistently with the intent of the Act.
Where notice, approval or similar action by a Party is permitted or required by
any provision of this Agreement (including, without limitation, the obligation
of the Parties to further negotiate the resolution of new or open issues under
this Agreement) such action shall not be unreasonably delayed, withheld or
conditioned.
C. U S WEST will provide ATTI with at least the level of service quality
or performance of obligations under this Agreement as U S WEST provides itself
or any other Person with respect to all Telecommunications Services, Local
Interconnection, Services for Resale, and Network Elements as applicable and
shall provide such level of service quality or performance of service
obligations in accordance with the specific requirements agreed to in Attachment
5.
D. U S WEST shall provide to ATTI Services for Resale that are equal in
quality, subject to the same conditions (including the conditions in U S WEST's
effective tariffs which are not otherwise inconsistent with the terms and
conditions contained herein), within the same provisioning time intervals
- ----------
(1) Per AT&T Approval at page 14, paragraph 2 (This footnote is not applicable
to ATTI)
1
<PAGE>
Part A
that U S WEST provides these services to itself, its Affiliates and others,
including end users, and in accordance with any applicable Commission service
quality standards, including standards the Commission may impose pursuant to
Section 252(e)(3) of the Act.
E. Each Network Element provided by U S WEST to ATTI shall be at least
equal in the quality of design, performance, features, functions, capabilities
and other characteristics, including, but not limited to, levels and types of
redundant equipment and facilities for power, diversity and security, that U S
WEST provides to itself, U S WEST's own subscribers, to a U S WEST Affiliate or
to any other entity.
F. The Parties agree to work jointly and cooperatively in testing and
implementing processes for pre-ordering, ordering, maintenance, provisioning and
billing and in reasonably resolving issues which result from such implementation
on a timely basis.
G. If a Party makes a change in its network which it believes will
materially affect the interoperability of its network with that of the other
Party, the Party making the change shall provide advance notice of such change
to the other Party in accordance with applicable FCC or Commission regulations.
H. In accordance with Section 251(c)(5) of the Act and the rules and
regulations established by the FCC and the Commission, the Parties shall provide
reasonable notice of changes in the information necessary for the transmission
and routing of services using that local exchange carrier's facilities or
network, as well as of any other changes that would affect the interoperability
of those facilities and networks.
I. Except as otherwise provided for in Section 8 of Attachment 2, U S WEST
shall not discontinue or refuse to provide any service required hereunder
without ATTI's prior written agreement in accordance with Section 17 of this
Part A of this Agreement, nor shall U S WEST reconfigure, reengineer or
otherwise redeploy its network in a manner which would materially impair ATTI's
ability to offer Telecommunications Services in the manner contemplated by this
Agreement, the Act or the FCC's rules and regulations. U S WEST agrees that all
obligations undertaken pursuant to this Agreement, including, without
limitation, performance standards, intervals, and technical requirements are
material obligations hereof and that time is of the essence.
DEFINITIONS
Certain terms used in this Agreement shall have the meanings set forth
herein or as otherwise elsewhere defined throughout this Agreement. Other terms
used but not defined herein will have the meanings ascribed to them in the Act
and the FCC's rules and regulations.
"911 Service" means a universal telephone number which gives the public direct
access to the Public Safety Answering Point (PSAP). Basic 911 service collects
911 calls from one or more local exchange switches that serve a geographic area.
The calls are then sent to the correct authority designated to receive such
calls.
"911 Site Administrator" is a person assigned by ATTI to establish and maintain
911 service location information for its subscribers.
"Access Services" refers to interstate and intrastate switched access and
private line transport services.
"Act" means the Communications Act of 1934 (47 U.S.C. Section 151 et seq.), as
amended by the Telecommunications Act of 1996, and as from time to time
interpreted in the duly authorized rules and regulations of the FCC or by the
Commission.
2
<PAGE>
Part A
"ADSL" or "Asymmetrical Digital Subscriber Line" means a transmission technology
which transmits an asymmetrical digital signal using one of several transmission
methods (for example, carrier-less AM/PM discrete multi-tone, or discrete
wavelet multi-tone).
"Affiliate" is an entity, as defined in the Act, that directly or indirectly
owns or controls, is owned or controlled by, or is under common ownership or
control with, another entity. For the purposes of this Agreement, "own" or
"control" means to own an equity interest (or equivalent) of at least ten
percent (10%), or the right to control the business decisions, management and
policy of another entity performing any of the obligations set forth in this
Agreement.
"AIN" (Advanced Intelligent Network) is a network functionality that permits
specific conditions to be programmed into a switch which, when met, directs the
switch to suspend call processing and to receive special instructions for
further call handling instructions in order to enable carriers to offer advanced
features and services.
"AIN Services" means architecture and configuration of the AIN Triggers within
the SCP as developed and/or offered by U S WEST to its customers.
"ALI" (Automatic Location Identification) is a database developed for E911
systems that provides for a visual display of the caller's telephone number and
address, and the names of the emergency response agencies responsible for that
address. The ALI also shows an Interim Number Portability (INP) number, if
applicable.
"ALI/DMS" (Automatic Location Identification/Data Management System) means the
emergency service (E911/911) database containing subscriber location information
(including name, address, telephone number, and sometimes special information
from the local service provider) used to determine to which Public Safety
Answering Point (PSAP) to route the call.
"AMA" means the Automated Message Accounting structure that initially records
telecommunication message information. AMA format is contained in the Automated
Message Accounting document, published by Bellcore as GR-1100-CORE, which
defines the industry standard for message recording.
"Ancillary Services" or "Ancillary Functions" means, collectively, the
following: (1) Collocation as described in Section 40 of this Part A of this
Agreement; (2) access to poles, ducts, conduits and rights of way as described
in Section 47 of this Part A of this Agreement; (3) unused transmission media as
described in Section 51 of this Part A of this Agreement; (4) Directory Listings
as described in Section 44 of this Part A of this Agreement; (5) E911 as
described in Section 50.1 of this Part A of this Agreement; (6) Directory
Assistance Service as described in Section 50.2 of this Part A of this
Agreement; (7) Operator Services as described in Section 50.3 of this Part A of
this Agreement; (8) Directory Assistance and Listings services requests as
described in Section 50.4 of this Part A of this Agreement; and (9) directory
assistance data as described in Section 50.5 of this Part A of this Agreement.
"ANI" (Automatic Number Identification) is a feature that identifies and
displays the number of a telephone that originates a call.
"ARS" (Automatic Route Selection) is a service feature that provides for
automatic selection of the least expensive or most appropriate transmission
facility for each call based on criteria programmed into the system.
"ASR" (Access Service Request) means the industry standard forms and supporting
documentation used for ordering Access Services. The ASR may be used to order
trunking and facilities between ATTI and U S WEST for Local Interconnection.
3
<PAGE>
Part A
"BLV/BLI" (Busy Line Verify/Busy Line Interrupt) means an operator call in which
the end user inquires as to the busy status of, or requests an interruption of,
a telephone call.
"Business Day" means any day Monday through Friday except for mutually agreed to
holidays.
"CABS" means the Carrier Access Billing System which is defined in a document
prepared by the Billing Committee of the OBF. The Carrier Access Billing System
document is published by Bellcore in Volumes 1, 1A, 2, 3, 3A, 4 and 5 as Special
Reports SR-OPT-001868, SR-OPT-0011869, SR-OPT-001871, SR-OPT-001872,
SR-OPT-001873, SR-OPT-001874, and SR-OPT-001875, respectively, and contains the
recommended guidelines for the billing of access and other connectivity
services.
"Calling Party Number" or "CPN" is a CCS parameter which refers to the number
transmitted through a network identifying the calling party.
"CCS" (Common Channel Signaling) means a method of digitally transmitting call
set-up and network control data over a digital signaling network fully separate
from the public switched telephone network that carries the actual call.
"Central Office Switch" means a switch used to provide Telecommunications
Services, including, but not limited to:
(a) "End Office Switches" which are used to terminate Customer station
loops for the purpose of interconnecting to each other and to
trunks;
(b) "Tandem Office Switches" which are used to connect and switch trunk
circuits between and among other Central Office Switches. Access
tandems provide connections for exchange access and toll traffic
while local tandems provide connections for local/EAS traffic; or
(c) Combination End Office/Tandem Office Switches.
"Centrex", including Centrex Plus, means a Telecommunications Service that uses
central office switching equipment for call routing to handle direct dialing of
calls and to provide numerous private branch exchange-like features.
"Charge Number" is a CCS parameter which refers to the number transmitted
through the network identifying the billing number of the calling party.
"CLASS" (Bellcore Service Mark) is a set of call-management service features
that utilize the capability to forward a calling party's number between end
offices as part of call setup. Features include Automatic Callback, Automatic
Recall, Caller ID, Call Trace, and Distinctive Ringing.
"Combinations" means provision by U S WEST of two or more connected Network
Elements ordered by ATTI to provide its Telecommunication Services in a
geographic area or to a specific subscriber and that are placed on the same or
related order by ATTI, subject to restrictions, if any, imposed by the
Commission.
"Commission" means the Washington Utilities and Transportation Commission.
"Competitive Local Exchange Carrier" or "CLEC" means an entity authorized to
provide Local Exchange Service that does not otherwise qualify as an incumbent
LEC.
"Conduit" means a tube or protected pathway that may be used to house
communication or electrical cables. Conduit may be underground or above ground
(for example, inside buildings) and may contain one or more innerducts.
4
<PAGE>
Part A
"Confidential Information" has the meaning set forth in Section 28 of Part A of
this Agreement.
"Contract Year" means a twelve (12) month period during the term of this
Agreement commencing on the Effective Date and each anniversary thereof.
"Control Office" is an exchange carrier center or office designated as its
company's single point of contact for the provisioning and maintenance of its
portion of local interconnection arrangements.
"Custom Calling Features" is a set of call-management service features available
to residential and business subscribers including call-waiting, call-forwarding
and three-party calling.
"Customer" means a third-party (residence or business) that subscribes to
Telecommunications Services provided by either of the Parties.
"DBMS" (Database Management System) is a computer system used to store, sort,
manipulate and update the data required to provide, for example, selective
routing and ALI.
"Databases" are the Network Elements that provide the functionality for storage
of, access to, and manipulation of information required to offer a particular
service and/or capability. Databases include, but are not limited to: Number
Portability, LIDB, Toll Free Number Database, Automatic Location
Identification/Data Management System, and AIN.
"Digital Signal Level" means one of several transmission rates in the time
division multiplexing hierarchy, including, but not limited to:
"Digital Signal Level 0" or "DS-0" means the 56 or 64 Kbps zero-level
signal in the time-division multiplex hierarchy.
"Digital Signal Level 1" or "DS-1" means the 1.544 Mbps first-level signal
in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS-1 is the initial level
of multiplexing.
"Digital Signal Level 3" or "DS-3" means the 44.736 Mbps third-level in
the time-division multiplex hierarchy. In the time-division multiplexing
hierarchy of the telephone network, DS-3 is defined as the third level of
multiplexing.
"Directory Assistance Database" refers to any set of subscriber records used by
U S WEST in its provision of live or automated operator-assisted directory
assistance including, but not limited to, 411, 555-1212, NPA-555-1212.
"Directory Assistance Service" provides Listings to callers. Directory
Assistance Service may include the option to complete the call at the callers
direction.
"Directory Listings" or "Listings" refers to subscriber information, including,
but not limited to, name, address and phone numbers, in Directory Assistance
Services or directory products.
"Discloser" means that Party to this Agreement which has disclosed Confidential
Information to the other Party.
"E911" (Enhanced 911 Service) means a telephone communication service which will
automatically route a call dialed "911" to a designated Public Safety Answering
Point (PSAP) attendant and will provide to the attendant the calling party's
telephone number and, when possible, the address from which the call is being
placed, and the emergency response agencies responsible for the location from
which the call was dialed.
5
<PAGE>
Part A
"E911 Message Trunk" is a dedicated line, trunk or channel between two central
offices or switching devices which provides a voice and signaling path for E911
calls.
"EAS" (Extended Area Service) is intraLATA traffic treated as "local" traffic
between exchanges (rather than as "toll" traffic) as established by the
Commission and as reflected in the effective U S WEST tariffs.
"Effective Date" is the date the Commission approves this Agreement.
"Emergency Response Agency" is a governmental entity authorized to respond to
requests from the public to meet emergencies.
"EMR" means the Exchange Message Record System used among LECs for exchanging
telecommunications message information for billable, non-billable, sample,
settlement and study data. EMR format is contained in BR-010-200-010 CRIS
Exchange Message Record, published by Bellcore, which defines the industry
standard for exchange message records.
"ESN" (Emergency Service Number) is a number assigned to the ALI and selective
routing databases for all subscriber telephone numbers. The ESN designates a
unique combination of fire, police and emergency medical service response
agencies that serve the address location of each in-service telephone number.
"FCC" means the Federal Communications Commission.
"FCC Interconnection Order" is the Federal Communications Commission's First
Report and Order in FCC Docket No. 96-98 released August 8, 1996, as effective.
"Fiber-Meet" means an Interconnection architecture method whereby the Parties
physically interconnect their networks via an optical fiber interface (as
opposed to an electrical interface) at a mutually agreed upon location.
"Gateway" (ALI Gateway) is a telephone company computer facility that interfaces
with ATTI's 911 administrative site to receive ALI data from ATTI. Access to the
Gateway will be via a dial-up modem using a common protocol.
"HDSL" (High-Bit Rate Digital Subscriber Line) means a two-wire or four-wire
transmission technology which typically transmits a DS1-level signal (or, higher
level signals with certain technologies), using, for example, 2 Binary / 1
Quartenary ("2B1Q").
"IDLC" (Integrated Digital Loop Carrier) means a digital subscriber loop carrier
system which interfaces with the switch digitally at a DS1 (1.544Mbps) or higher
level.
"ILEC" means an incumbent local exchange carrier.
"Information Service Traffic" means traffic which originates on a local access
line and which is addressed to an information service provider.
"INP" (Interim Number Portability) is a service arrangement whereby subscribers
who change local service providers may retain existing telephone numbers with
minimal impairment of quality, reliability, or convenience when remaining at
their current location or changing their location within the geographic area
served by the initial carrier's serving central office.
"Interconnection" is as described in the Act and refers to the connection of
separate pieces of equipment, facilities, or platforms between or within
networks for the purpose of transmission and routing of telephone exchange
service traffic and exchange access traffic.
6
<PAGE>
Part A
"ISDN" (Integrated Services Digital Network) means a switched network service
that provides end-to-end digital connectivity for the simultaneous transmission
of voice and data. Basic Rate Interface-ISDN (BRI-ISDN) provides for a digital
transmission of two 64 Kbps bearer channels and one 16 Kbps data channel (2B+D).
Primary Rate Interface-ISDN (PRI-ISDN) provides for a digital transmission of
twenty-three (23) 64 Kbps bearer channels and one 64 Kbps data channel (23B+D).
"IXC" (Interexchange Carrier) means a provider of interexchange
Telecommunications Services.
"LATA" means Local Access Transport Area.
"LEC" means local exchange carrier.
"LIDB" (Line Information Data Base(s)) is an SCP database that provides for such
functions as calling card validation for telephone line number cards issued by
LECs and other entities and validation for collect and billed-to-third-party
services.
"Local Interconnection" shall have the meaning set forth in the Recitals to this
Agreement.
"Local Resale", "Services for Resale" or "Resale Services" means, collectively,
Telecommunications Services and service functions provided by U S WEST to ATTI
pursuant to Attachment 2 of this Agreement.
"Local Traffic" is intraLATA traffic within an exchange that is treated as toll
free traffic as established by the Commission and as reflected in the effective
tariffs of U S WEST.
"Loop" is a transmission facility between a distribution frame, or its
equivalent, in a U S WEST central office or wire center, and the Network
Interface Device (as defined herein) or network interface at a subscriber's
premises, to which ATTI is granted exclusive use. This includes, but is not
limited to, two-wire and four-wire analog voice-grade loops, and two-wire and
four-wire loops that are conditioned to transmit the digital signals needed to
provide ISDN, ADSL, HDSL, and DS-1 level signals. A Loop may be composed of the
following components:
Loop Concentrator / Multiplexer
Loop Feeder
Network Interface Device (NID)
Distribution
"Main Distribution Frame" or "MDF" means the distribution frame of the Party
providing the Loop used to interconnect cable pairs and line and trunk equipment
terminals on a switching system or transmission facility.
"MECAB" refers to the Multiple Exchange Carrier Access Billing (MECAB) document
prepared by the Billing Committee of the OBF, which functions under the auspices
of the Carrier Liaison Committee (CLC) of the Alliance for Telecommunications
Industry Solutions (ATIS). The MECAB document, published by Bellcore as Special
Report SR-BDS-000983, contains the recommended guidelines for the billing of an
Access Service provided by two or more LECs (including a LEC and a CLEC), or by
one LEC in two or more states within a single LATA.
"MECOD" refers to the Multiple Exchange Carriers Ordering and Design (MECOD)
Guidelines for Access Services - Industry Support Interface, a document
developed by the Ordering/Provisioning Committee under the auspices of the OBF,
which functions under the auspices of the Carrier Liaison Committee (CLC) of the
Alliance for Telecommunications Industry Solutions (ATIS). The MECOD document,
published by Bellcore as Special Report SR STS-002643, establishes recommended
guidelines for
7
<PAGE>
Part A
processing orders for Access Service which is to be provided by two or more LECs
(including a LEC and a CLEC). It is published by Bellcore as SRBDS 00983.
"Meet-Point Billing" or "MPB" refers to an arrangement whereby two LECs
(including a LEC and ATTI) jointly provide Switched Access Service to an
Interexchange Carrier, with each LEC (or ATTI) receiving an appropriate share of
the access element revenues.
"Mid-Span Meet" is a Point of Interconnection between two networks, designated
by two Telecommunications Carriers, at which one carrier's responsibility for
service begins and the other carrier's responsibility ends.
"MSAG" (Master Street Address Guide) is a database defining the geographic area
of an E911 service. It includes an alphabetical list of the street names,
high-low house number ranges, community names, and emergency service numbers
provided by the counties or their agents to U S WEST.
"NANP" (North American Numbering Plan) means the numbering plan used in the
United States that also serves Canada, Bermuda, Puerto Rico and certain
Caribbean Islands. The NANP format is a 10-digit number that consists of a
3-digit NPA code (commonly referred to as the area code), followed by a 3-digit
NXX code and 4-digit line number.
"NENA" (National Emergency Number Association) is an association with a mission
to foster the technological advancement, availability and implementation of 911
nationwide
"Network Element" means a facility or equipment used in the provision of a
Telecommunications Service including all features, functions and capabilities
embedded in such facility or equipment.(2)
"NP" (Number Portability) means the use of the Location Routing Number (LRN)
database solution to provide fully transparent NP for all subscribers and all
providers without limitation.
"NPA" (Numbering Plan Area) (sometimes referred to as an area code) is the three
digit indicator which is designated by the first three digits of each 10-digit
telephone number within the NANP. Each NPA contains 792 possible NXX Codes.
There are two general categories of NPA, "Geographic NPAs" and "Non-Geographic
NPAs." A "Geographic NPA" is associated with a defined geographic area, and all
telephone numbers bearing such NPA are associated with services provided within
that geographic area. A "Non-Geographic NPA," also known as a "Service Access
Code (SAC Code)" is typically associated with a specialized Telecommunications
Service which may be provided across multiple geographic NPA areas; 500, 800,
900, 700, and 888 are examples of Non-Geographic NPAs.
"NXX" means the fourth, fifth and sixth digits of a ten-digit telephone number
within the NANP.
"OBF" means the Ordering and Billing Forum, which functions under the auspices
of the Carrier Liaison Committee (CLC) of the Alliance for Telecommunications
Industry Solutions (ATIS).
"Operator Services" includes, but is not limited to, (1) operator handling for
call completion (e.g., collect calls); (2) operator or automated assistance for
billing after the subscriber has dialed the called number (e.g., credit card
calls); and (3) special services (e.g., BLV/BLI, emergency agency call).
"Operator Systems" is the Network Element that provides operator and automated
call handling with billing, special services, subscriber telephone listings, and
optional call completion services.
- ----------
(2) Per AT&T Order at page 10, Issue 18.
8
<PAGE>
Part A
"P.01 Transmission Grade of Service" (GOS) means a trunk facility provisioning
standard with the statistical probability of no more than one call in 100
blocked on initial attempt during the average busy hour.
"PLU" (Percent Local Usage) is a calculation which represents the ratio of the
local minutes to the sum of local and intraLATA toll minutes between exchange
carriers sent over Local Interconnection trunks. Directory assistance, BLV/BLI,
900, 976, transiting calls from other exchange carriers and switched access
calls are not included in the calculation of PLU.
"Party" means either U S WEST or ATTI and "Parties" means U S WEST and ATTI.
"Person" means, collectively, an Affiliate, subsidiary, Customer, end user and
subscriber of U S WEST.
"POI" (Point of Interconnection) means the physical point that establishes the
technical interface, the test point, where applicable, and the operational
responsibility hand-off between ATTI and U S WEST for the local interconnection
of their networks for the mutual exchange of traffic.
"Point of Interface" is the physical point where ATTI hands off transmission
media to the U S WEST provided entrance facility associated with a collocation
arrangement for the purpose of connecting the entrance facility to some point
located within U S WEST's premises.
"Pole Attachment" means the connection of a facility to a utility pole. Some
examples of facilities are mechanical hardware, grounding and transmission
cable, and equipment boxes.
"POP" means an IXC's point of presence.
"Port" means a termination on a Central Office Switch that permits Customers to
send or receive Telecommunications Services over the public switched network,
including switch features or switching functionality.(3)
"Premium Listing", such as additional, foreign, cross reference, informational,
non-listed, privacy, etc., are as described in the U S WEST general exchange
listing tariff.
"Primary Listing" (for example, main list, additional main, joint user, client
main list or answering service list) shall mean the one appearance of an end
user telephone subscriber's main telephone number and other content such as name
and address, which each ATTI residence or business subscriber is entitled to
receive in the white pages directory published by U S WEST Dex at no charge from
U S WEST Communications. Where U S WEST business end users are entitled to
receive a courtesy Listing in the yellow pages section of any directory
published on U S WEST's behalf, ATTI's business customers will receive the same
entitlement.
"Proprietary Information" shall have the same meaning as Confidential
Information.
"PSAP" (Public Safety Answering Point) is the public safety communications
center where 911 calls placed by the public for a specific geographic area will
be answered.
"Rate Center" means the geographic point and corresponding geographic area which
are associated with one or more particular NPA-NXX codes which have been
assigned to U S WEST or ATTI for its provision of basic exchange
Telecommunications Services. The "Rate Center Point" is the finite geographic
point identified by a specific V&H coordinate, which is used to measure
distance-sensitive end user traffic to/from the particular NPA-NXX designations
associated with the specific Rate Center. The "Rate Center Area" is the
exclusive geographic area identified as the area within which U S WEST or ATTI
will provide
- ----------
(3) Per AT&T Order at page 10, Issue 18.
9
<PAGE>
Part A
basic exchange Telecommunications Services bearing the particular NPA-NXX
designations-associated with the specific Rate Center. The Rate Center Point
must be located within the Rate Center Area.
"Rating Point" means the point at which transport mileage is calculated for the
termination of calls. Each Party shall establish its own Rating Point(s) for its
own services.
"Real Time" means the actual time in which an event takes place, with the
reporting on or the recording of the event simultaneous with its occurrence.
"Recipient" means that Party to this Agreement (1) to which Confidential
Information has been disclosed by the other Party, or (2) who has obtained
Confidential Information in the course of providing services under this
Agreement.
"Reseller" is a category of Telecommunications Services providers who obtain
Telecommunications Services from another provider through the purchase of
wholesale priced services for resale to their end user subscribers.
"Routing Point" means a location which U S WEST or ATTI has designated on its
own network as the homing (routing) point for traffic inbound to basic exchange
Telecommunications Services provided by U S WEST or ATTI which bear a certain
NPA-NXX designation. The Routing Point is employed to calculate mileage
measurements for the distance-sensitive transport element charges of Switched
Access Services. Pursuant to Bellcore Practice BR 795-100-100, the Routing Point
may be an "End Office" location, or a "LEC Consortium Point of Interconnection."
Pursuant to that same Bellcore Practice, examples of the latter shall be
designated by a common language location identifier (CLLI) code with (x)KD in
positions 9, 10, 11, where (x) may by any alphanumeric A-Z or 0-9. The Routing
Point need not be the same as the Rate Center Point, nor must it be located
within the Rate Center Area, but must be in the same LATA as the NPA-NXX.
"ROW" (Right of Way) means the right to use the land or other property owned,
leased, or controlled by another party to place poles, conduits, cables, other
structures and equipment, or to provide passage to access such structures and
equipment. A ROW may run under, on, or above public or private property
(including air space above public or private property) and may include the right
to use discrete space in buildings, building complexes or other locations.
"SAG" (Street Address Guide) is a database containing an alphabetical list of
street names, high-low house number ranges, descriptive addresses, community
names, tax codes, subscriber names, telephone numbers, NXXs, central office
names, CLLI and other information maintained by U S WEST.
"SCP" (Service Control Point) is a specific type of Database Network Element
functionality deployed in a Signaling System 7 (SS7) network that executes
service application logic in response to SS7 queries sent to it by a switching
system also connected to the SS7 network. SCPs also provide operational
interfaces to allow for provisioning, administration and maintenance of
subscriber data and service application data (e.g., a toll free database stores
subscriber record data that provides information necessary to route toll free
calls).
"SECAB" means the Small Exchange Carrier Access Billing document prepared by the
Billing Committee of the OBF. The Small Exchange Carrier Access Billing
document, published by Bellcore as Special Report SR OPT-001856, contains the
recommended guidelines for the billing of access and other connectivity
services.
"Selective Routing" is a service which automatically routes an E911 call to the
PSAP that has jurisdictional responsibility for the service address of the
telephone from which 911 is dialed, irrespective of telephone company exchange
or wire center boundaries.
10
<PAGE>
Part A
"STPs" (Signaling Transfer Points) provide functionality that enable the
exchange of SS7 messages among and between switching elements, database elements
and Signaling Transfer Points.
"Switch" -- See Central Office Switch.
"Switched Access", "Switched Access Service", "Switched Exchange Access Service"
or "Switched Access Traffic" are as defined in the Parties' applicable tariffs.
"Tandem Office Switches" are Class 4 switches which are used to connect and
switch trunk circuits between and among End Office Switches and other tandems.
"Tariff Services" as used throughout this Agreement refers to the applicable
Party's interstate tariffs and state tariffs, price lists, price schedules and
catalogs.
"Technically Feasible" refers solely to technical or operational concerns,
rather than economic, space, or site considerations, in accordance with the
rules and regulations of the FCC and the Commission.
"Telecommunications" means the transmission, between or among points specified
by the user, of information of the user's choosing, without change in the form
or content of the information as sent and received.
"Telecommunications Carrier" means any provider of Telecommunications Services,
except that such term does not include aggregators of Telecommunications
Services (as defined in Section 226 of the Act). A Telecommunications Carrier
shall be treated as a common carrier under the Act only to the extent that it is
engaged in providing Telecommunications Services, except that the Commission
shall determine whether the provision of fixed and mobile satellite service
shall be treated as common carriage.
"Telecommunications Services" means the offering of Telecommunications for a fee
directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used.
"Toll Traffic" is traffic that originates in one Rate Center and terminates in
another Rate Center with the exception of traffic that is rated as EAS.
"Transit Service" provides the ability for a Telecommunications Carrier to use
its connection to a local or access tandem for delivery of calls that originate
with a Telecommunications Carrier and terminate to a company other than the
tandem company, such as another CLEC, an existing LEC, or a wireless carrier. In
these cases, neither the originating nor terminating end user is a customer of
the tandem Telecommunications Carrier. The tandem Telecommunications Carrier
will accept traffic originated by a Party and will terminate it at a Point of
Interconnection with another local, intraLATA or interLATA network
Telecommunications Carrier. This service is provided through local and access
tandem switches.
"Transit Traffic" is any traffic, other than Switched Access Traffic, that
originates from one Telecommunications Carrier's network, transits another
Telecommunications Carrier's network, and terminates to yet another
Telecommunications Carriers network.
"TRCO" means Trouble Reporting Control Office.
"U S WEST" means U S WEST Communications, Inc. and any Affiliates, subsidiary
companies or other entities performing any of the obligations of U S WEST set
forth in this Agreement.
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Part A
"Voluntary Federal Subscriber Financial Assistance Programs" are
Telecommunications Services provided to low-income subscribers, pursuant to
requirements established by the appropriate federal or state regulatory body.
"Wire Center" denotes, for the purposes of collocation, a building or space
within a building, that serves as an aggregation point on a given carriers
network, where transmission facilities and circuits are connected or switched.
Wire Center can also denote a building where one or more central offices, used
for the provision of Telecommunications Services and Access Services, are
located. Wire Center shall mean those points eligible for such connections as
specified in FCC Docket No. 91-141, and rules adopted pursuant thereto.
TERMS AND CONDITIONS
1. General Provisions
1.1 Each Party is individually responsible to provide facilities within
its network which are necessary for routing, transporting,
measuring, and billing traffic from the other Party's network and
for delivering such traffic to the other Party's network in the
standard format compatible with ATTI's network and to terminate the
traffic it receives in that standard format or the proper address on
its network. The Parties are each solely responsible for
participation in and compliance with national network plans,
including the National Network Security Plan and the Emergency
Preparedness Plan.
1.2 Neither Party shall impair the quality of service to other carriers
or to either Party's Customers, and each Party may discontinue or
refuse service if the other Party violates this provision. Upon such
violation, either Party shall provide the other Party notice of such
violation, at the earliest practicable time.
1.3 Each Party is solely responsible for the services it provides to its
Customers and to other Telecommunications Carriers.
1.3.1 The Parties recognize that equipment vendors may manufacture
telecommunications equipment that does not fully incorporate
and may deviate from industry standards referenced in this
Agreement. Due to the manner in which individual equipment
manufacturers have chosen to implement industry standards into
the design of their products, along with differing vintages of
individual facility components and the presence of embedded
technologies predating current technical standards, some of
the individual facility components deployed within U S WEST's
network, including, without limitation, Network Elements and
associated business processes and the standards associated
with the equipment providing such Network Elements
(collectively, "Network Components"), may not adhere to all
the specifications set forth and described in the Bellcore,
ANSI, ITU and other technical and performance standards
outlined in this Agreement. Within forty-five (45) days after
the Effective Date of this Agreement, the Parties will develop
processes by which U S WEST will inform ATTI of deviations or
planned deviations, and the implementation date of such
planned deviations, from standards referenced in this
Agreement for Network Components that may be ordered by ATTI.
In addition, the Parties agree that those deviations from such
standards documented by U S WEST to ATTI shall, to the extent
permitted by FCC and Commission rules and regulations,
supersede sections of this Agreement referencing technical
standards otherwise applicable for the affected Network
Elements.
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Part A
1.3.2 US WEST agrees that in no event shall it intentionally allow
any Network Component provided by U S WEST to ATTI under this
Agreement to perform below the standards or deviations
therefrom reflected in Section 1.3.1, except where requested
by ATTI. U S WEST shall minimize any degradation to its
equipment relative to currently applicable service, where
reasonable in view of industry adopted performance standards
and technological developments. Written notice (the "Change
Notice") of any planned changes in standards for any Network
Component which could impact that Network Component will be
provided at least ninety (90) days (or at the make/buy point)
prior to the planned implementation. If ATTI notifies U S WEST
of how the proposed change may adversely impact ATTI or its
Customers within fourteen (14) calendar days after receipt of
U S WEST's Change Notice, U S WEST and ATTI will schedule
joint discussions to address and attempt to resolve the
matter, including without limitation consideration of proposed
alternatives. In addition, if U S WEST learns that any Network
Component purchased by ATTI under this Agreement has been
permitted (even if not intentionally) to fall materially below
the level or specification in effect as of the Effective Date
of this Agreement, U S WEST shall inform ATTI immediately.
1.3.3 The Parties recognize that providing a number of the services
specified in this Agreement depends upon the "technical
feasibility" of providing that service, as that term is
defined under the Act and/or by FCC or Commission rules and
decisions. If the Parties cannot agree on whether providing a
service is technically feasible, the matter, including cost
and expenses (if any), shall be resolved through good faith
negotiation or the dispute resolution process outlined in this
Agreement.
2. Most Favored Nation Terms and Treatment
2.1 Until such time as there is a final court determination interpreting
Section 252(i) of the Act, U S WEST shall make available to ATTI the
terms and conditions of any other agreement for Interconnection,
unbundled Network Elements and resale services approved by the
Commission under Section 252 of the Act, in that agreement's
entirety. After there is a final court determination interpreting
Section 252(i) of the Act, the Parties agree to revise this Section
2.1 to reflect such interpretation.
3. Payment
3.1 In consideration of the services provided by US WEST under this
Agreement, ATTI shall pay the charges set forth in Attachment 1 to
this Agreement. The billing procedures for charges incurred by ATTI
hereunder are set forth in Attachment 5 to this Agreement.
3.2 Amounts payable under this Agreement, unless reasonably disputed,
are due and payable within thirty (30) days after the date of U S
WEST's invoice or within twenty (20) days after receipt of the
invoice, whichever is later. If the payment due date is not a
Business Day, the payment shall be made the next Business Day.
3.3 A late payment charge of 1.5% applies to all billed balances, not
reasonably disputed, which are not paid within the applicable time
period set forth in Section 3.2 above. To the extent ATTI pays the
billed balance on time, but the amount of the billed balance is
reasonably disputed by ATTI, and, it is later determined that a
refund is due ATTI, interest shall be payable on the refunded amount
in the amount of 1.5% per month. To the extent ATTI pays the billed
balance on time, but the amount of the billed balance is
13
<PAGE>
Part A
reasonably disputed by ATTI, and, it is later determined that no
refund is due ATTI, no interest shall be payable on the disputed
amount.
3.4 Late payment charges shall not be used as a "credit" to a deposit,
if any, without the express approval of U S WEST.
3.5 Unless specified otherwise in this Agreement, U S WEST shall bill
all amounts due from ATTI for each resold service in accordance with
the terms and conditions as specified in the U S WEST tariff.
4. Taxes
4.1 Any federal, state or local excise, sales, or use taxes (excluding
any taxes levied on income) resulting from the performance of this
Agreement shall be borne by the Party upon which the obligation for
payment is imposed under applicable law, even if the obligation to
collect and remit such taxes is placed upon the other Party. Any
such taxes shall be shown as separate items on applicable billing
documents between the Parties. The Party so obligated to pay any
such taxes may contest the same in good faith, at its own expense,
and shall be entitled to the benefit of any refund or recovery,
provided that such Party shall not permit any lien to exist on any
asset of the other Party by reason of the contest. The Party
obligated to collect and remit taxes shall cooperate fully in any
such contest by the other Party by providing records, testimony and
such additional information or assistance as may reasonably be
necessary to pursue the contest. To the extent a sale is claimed to
be for resale tax exemption, the purchasing Party shall furnish the
providing Party a proper resale tax exemption certificate as
authorized or required by statute or regulation by the jurisdiction
providing said resale tax exemption. Failure to timely provide said
resale tax exemption certificate will result in no exemption being
available to the purchasing Party during the applicable reporting
period.
5. Intellectual Property
5.1 Obligations of Party Requesting Access. As a condition to the access
or use of patents, copyright, trade secrets, and other intellectual
property (including software) owned or controlled by a third party
to the extent necessary to implement this Agreement or specifically
required by the then applicable federal and state rules and
regulations relating to Interconnection and access to
telecommunications facilities and services ("Third Party
Intellectual Property"), the Party providing access may require the
other, upon written notice from time to time, to obtain a license or
permission for such access or use of Third Party Intellectual
Property, make all payment, if any, in connection with obtaining
such license, and provide evidence of such license.
5.2 Obligations of Party Providing Access. The Party providing access
shall provide a list of all known and necessary Third Party
Intellectual Property applicable to the other Party, and take all
necessary and appropriate steps to facilitate the negotiation of any
mandatory licenses. The treatment of third party licenses shall be
in accordance with FCC rules and regulations and/or judicial
determinations.
5.3 Any intellectual property jointly developed in the course of
performing this Agreement shall belong to both Parties who shall
have the right to grant non-exclusive licenses to third parties
except as otherwise designated in writing by one Party to another.
Any intellectual property which originates from or is developed by a
Party shall remain in the exclusive ownership of that Party. Except
for a limited license to use patents or copyrights to the extent
necessary for the Parties to use any facilities or equipment
14
<PAGE>
Part A
(including software) or to receive any service solely as provided
under this Agreement, no license in patent, copyright, trademark or
trade secret, or other proprietary or intellectual property
presently or hereafter owned, controlled or licensable by a Party,
is granted to the other Party or shall be implied or arise by
estoppel.
6. Severability
6.1 In the event that any one or more of the provisions contained herein
shall for any reason be held to be unenforceable or invalid in any
respect under law or regulation, the Parties will negotiate in good
faith for replacement language. If any part of this Agreement is
held to be invalid or unenforceable for any reason, such invalidity
or unenforceability will affect only the portion of this Agreement
which is invalid or unenforceable. In all other respects this
Agreement will stand as if such invalid or unenforceable provision
had not been a part hereof, and the remainder of this Agreement
shall remain in full force and effect.
7. Responsibility for Environmental Contamination
7.1 ATTI shall in no event be liable to U S WEST for any costs
whatsoever resulting from the presence or release of any
environmental hazard ATTI did not introduce to the affected work
location. U S WEST shall, at ATTI's request, indemnify, defend, and
hold harmless ATTI, and each of its officers, directors and
employees from and against any losses, damages, claims, demands,
suits, liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) arising out of or resulting from (a) any
environmental hazard U S WEST, its contractors or agents introduce
to the work location, or (b) the presence or release of any
environmental hazard for which U S WEST is responsible under
applicable law.
7.2 U S WEST shall in no event be liable to ATTI for any costs
whatsoever resulting from the presence or release of any
environmental hazard U S WEST did not introduce to the affected work
location. ATTI shall, at U S WEST's request, indemnify, defend, and
hold harmless U S WEST, and each of its officers, directors and
employees from and against any losses, damages, claims, demands,
suits, liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) arising out of or resulting from (a) any
environmental hazard ATTI, its contractors or agents introduce to
the work location, or (b) the presence of release of any
environmental hazard for which ATTI is responsible under applicable
law.
7.3 In the event any suspect materials within U S WEST-owned, operated
or leased facilities are identified to be asbestos-containing, ATTI
will ensure that, to the extent any activities which it undertakes
in the facility disturb such suspect materials, such ATTI activities
will be in accordance with applicable local, state and federal
environmental and health and safety statutes and regulations. Except
for abatement activities undertaken by ATTI or equipment placement
activities that result in the generation of asbestos containing
material, ATTI shall not have any responsibility for managing, nor
be the owner of not have any liability for, or in connection with,
any asbestos containing material. U S WEST agrees to immediately
notify ATTI if U S WEST undertakes any asbestos control or asbestos
abatement activities that potentially could affect ATTI equipment or
operations, including, but not limited to, contamination of
equipment.
7.4 Each Party will be solely responsible, at its own expense, for
proper handling, storing, transport and disposal of all (a)
substances or materials that it or its contractors or agents bring
to, create or assume control over at work locations, or (b) waste
resulting therefrom
15
<PAGE>
Part A
or otherwise generated in connection with its or its contractors' or
agents' activities at the work locations.
8. Branding
8.1 Where operator, call completion, or director assistance service is
part of the service or service package U S WEST offers for resale,
they should be provided upon request in an unbranded status at no
additional cost, unless U S WEST proves to the Commission that it
lacks the capability to comply with the unbranding request. If U S
WEST meets its burden of proof, U S WEST is relieved of its duty to
comply with the request for unbranding.(4)
8.2 When ATTI requests branding as its own service or unbranding of a
service other than operator, call completion, or directory
assistance service, ATTI shall pay for the cost of that branding or
unbranding, unless U S WEST proves to the Commission that it lacks
the capability to comply with the unbranding request. If U S WEST
meets its burden of proof, U S WEST is relieved of its duty to
comply with the request for branding or unbranding.(5)
8.3 For those services during the provision of which U S WEST interacts
with ATTI Customers, and which services are the subject matter of
this Agreement, U S WEST shall, at ATTI's sole discretion, brand any
and all such services at all points of subscriber contact
exclusively as ATTI service, or otherwise as ATTI may specify, or
such service shall be provided with no brand as ATTI shall
determine, except as provided below with respect to uniforms and
vehicles. U S WEST may not unreasonably interfere with branding by
ATTI.(6)
8.4 Branding includes front-end branding, back-end branding, and
unbranding to be determined by ATTI. ATTI shall have the option of
providing its own branding materials.(7)
8.5 ATTI shall provide the exclusive interface to ATTI subscribers
except as ATTI shall otherwise specify. U S WEST shall inform ATTI
Customers that resold repair and maintenance service is being
provided on behalf of ATTI.(8)
8.6 Except as otherwise specifically provided herein, all forms,
business cards or other business materials furnished by U S WEST to
ATTI subscribers shall be provided by ATTI unless otherwise agreed
by ATTI in its sole discretion, in which case, any such subscriber
materials shall be subject to ATTI's prior review and approval.(9)
- ----------
(4) Per AT&T Recommendations at pages 5-6, Issues 29-32.
(5) Per AT&T Recommendations at page 6, Issues 29-32.
(6) Per AT&T Recommendations at page 6, Issues 29-32.
(7) Per AT&T Recommendations at page 6, Issues 29-32.
(8) Per AT&T Recommendations at page 6, Issues 29-32.
(9) Per AT&T Recommendations at page 6, Issues 29-32.
16
<PAGE>
Part A
8.7 U S WEST is not required to remove the U S WEST brand from services
offered by U S WEST to its Customers except as otherwise required by
this Agreement.(10)
8.8 U S WEST will not be required to rebrand uniforms and vehicles.(11)
8.9 U S WEST shall inform ATTI customers that resold repair and
maintenance is being provided on behalf of ATTI. ATTI shall prepare
the printed material that provides information about ATTI's service
that U S WEST employees leave with ATTI customers in association
with repair and maintenance calls.(12)
8.10 US WEST shall provide, for ATTI's review, the methods and
procedures, training and approaches to be used by U S WEST to assure
that U S WEST meets ATTI's branding requirements.
8.11 This Section 8 shall confer on U S WEST no rights to the service
marks, trademarks and trade names owned by or used in connection
with services by ATTI or its Affiliates, except as expressly
permitted by ATTI.
8.12 At the request of ATTI and where technically feasible, U S WEST will
rebrand operator services and directory assistance and announcements
in ATTI's name.(13)
8.13 Until such time as the Commission determines final pricing pursuant
to its cost docket, ATTI shall pay the actual costs, if any, of
branding or unbranding in accordance with the Act or Commission
orders.(14)
9. Independent Contractor Status
9.1 Nothing contained herein shall constitute the Parties as joint
venturers, partners, employees or agents of one another, and neither
Party shall have the right or power to bind or obligate the other.
9.2 Each Party is an independent contractor, and has and hereby retains
the right to exercise full control of and supervision over its own
performance of its obligations under this Agreement and retains full
control over the employment, direction, compensation and discharge
of all employees assisting in the performance of such obligations.
Each Party will be solely responsible for all matters relating to
payment of such employees, including compliance with social security
taxes, withholding taxes, and other payroll taxes with respect to
their respective employees, as well as any taxes, contributions or
other obligations imposed by applicable state unemployment or
workers' compensation acts and all other regulations governing such
matters. Each Party has sole authority and responsibility to hire,
fire and otherwise control its employees.
- ----------
(10) Per AT&T Recommendations at page 6, Issues 29-32.
(11) Per AT&T Order at page 21, Issue 30.
(12) Per AT&T Order at page 21, Issue 30.
(13) Per AT&T Order at page 21, Issue 30.
(14) Per AT&T Recommendations at page 7, Issues 29-32.
17
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Part A
9.3 Subject to the limitations on liability and except as otherwise
provided in this Agreement, each Party shall be responsible for (a)
its own acts and performance of all obligations imposed by
applicable law in connection with its activities, legal status and
property, real or personal, and (b) the acts of its own Affiliates,
employees, agents and contractors during the performance of that
Party's obligations hereunder. Except for provisions herein
expressly authorizing one Party to act for the other, nothing in
this Agreement shall constitute a Party as a legal representative or
agent of the other Party, nor shall a Party have the right or
authority to assume, create or incur any liability or any obligation
of any kind, express or implied, against or in the name or on behalf
of the other Party unless otherwise expressly permitted by such
other Party. Except as otherwise expressly provided in this
Agreement, neither Party shall undertake to perform any obligation
of the other Party, whether regulatory or contractual, or to assume
any responsibility for the management of the other Party's business.
10. Referenced Documents
10.1 All references to Sections, Exhibits, and Schedules shall be deemed
to be references to Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Whenever any
provision of this Agreement refers to a technical reference,
technical publication, ATTI practice, U S WEST practice, any
publication of telecommunications industry administrative or
technical standards, or any other document specifically incorporated
into this Agreement, it will be deemed to be a reference to the most
recent version or edition (including any amendments, supplements,
addenda, or successors) or such document that is in effect, and will
include the most recent version or edition (including any
amendments, supplements, addenda, or successors) of each document
incorporated by reference in such a technical reference, technical
publication, ATTI practice, U S WEST practice, or publication of
industry standards, unless ATTI elects otherwise.
11. Publicity and Advertising
11.1 Neither Party shall publish or use any advertising, sales promotions
or other publicity materials that use the other Party's logo,
trademarks or service marks without the prior written approval of
the other Party.
12. Executed in Counterparts
12.1 This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but such counterparts shall
together constitute one and the same instrument.
13. Headings Not Controlling
13.1 The headings and numbering of Sections, Parts, Appendices and
Attachments in this Agreement are for convenience only and shall not
be construed to define or limit any of the terms herein or affect
the meaning or interpretation of this Agreement.
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Part A
14. Joint Work Product
14.1 This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be
fairly interpreted in accordance with its terms and, in the event of
any ambiguities, no inferences shall be drawn against either Party.
15. Survival
15.1 Any liabilities or obligations of a Party for acts or omissions
prior to the cancellation or termination of this Agreement; any
obligation of a Party under the provisions regarding
indemnification, confidential information, limitation of liability,
and any other provisions of this Agreement which, by their terms,
are contemplated to survive, or to be performed after, termination
of this Agreement, shall survive cancellation or termination
thereof.
16. Effective Date
16.1 This Agreement shall become effective upon Commission approval
pursuant to Sections 251 and 252 of the Act.(15)
17. Amendment of Agreement
17.1 Except as otherwise provided in this Agreement, no amendment or
waiver of any provision of this Agreement, and no consent to any
default under this Agreement, shall be effective unless the same is
in writing and signed by an officer of the Party against whom such
amendment, waiver or consent is claimed. If either Party desires an
amendment to this Agreement during the term of this Agreement, it
shall provide written notice thereof to the other Party describing
the nature of the requested amendment. If the Parties are unable to
agree on the terms of the amendment within thirty (30) days after
the initial request therefor, the Party requesting the amendment may
invoke the dispute resolution process under Section 27 of this Part
A of this Agreement to determine the terms of any amendment to this
Agreement. All amendments to this Agreement will be submitted to the
Commission.
18. Indemnification
18.1 Notwithstanding any limitations in remedies contained in this
Agreement, each Party (the "Indemnifying Party") will indemnify and
hold harmless the other Party ("Indemnified Party") from and against
any loss, cost, claim, liability, damage and expense, including
reasonable attorney's fees, to third parties, relating to or arising
out of the libel, slander, invasion of privacy, misappropriation of
a name or likeness, actual or alleged infringement or other
violation or breach of any patent, copyright, trademark, service
mark, trade name, trade dress, trade secret or any other
intellectual property presently existing or later created,
negligence or willful misconduct by the Indemnifying Party, its
employees, agents, or contractors in the performance of this
Agreement or the failure of the Indemnifying Party to perform its
obligations under this Agreement. In addition, the Indemnifying
Party will, to the extent of its obligations to indemnify hereunder,
defend any action or suit brought by a third party against the
Indemnified Party.
- ----------
(15) Per AT&T Approval at page 14, paragraph 2. (This footnote is not
applicable to ATTI)
19
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Part A
18.2 The Indemnified Party will notify the Indemnifying Party promptly in
writing of any written claim, lawsuit, or demand by third parties
for which the Indemnified Party alleges that the Indemnifying Party
is responsible under this Section 18 and tender the defense of such
claim, lawsuit or demand to the Indemnifying Party. Failure to so
notify the Indemnifying Party shall not relieve the Indemnifying
Party of any liability that the Indemnifying Party might have,
except to the extent that such failure prejudices the Indemnifying
Party's ability to defend such claim.
18.3 The Indemnified Party also will cooperate in every reasonable manner
with the defense or settlement of such claim, demand, or lawsuit.
The Indemnifying Party shall keep the Indemnified Party reasonably
and timely apprised of the status of the claim, demand or lawsuit.
The Indemnified Party shall have the right to retain its own
counsel, including in-house counsel, at its expense, and participate
in but not direct the defense; provided, however, that if there are
reasonable defenses in addition to those asserted by the
Indemnifying Party, the Indemnified Party and its counsel may raise
and direct such defenses, which shall be at the expense of the
Indemnifying Party.
18.4 The Indemnifying Party will not be liable under this Section 18 for
settlements or compromises by the Indemnified Party of any claim,
demand or lawsuit unless the Indemnifying Party has approved the
settlement or compromise in advance or unless the defense of the
claim, demand or lawsuit has been tendered to the Indemnifying Party
in writing and the Indemnifying Party has failed to timely undertake
the defense. In no event shall the Indemnifying Party settle or
consent to any judgment pertaining to any such action without the
prior written consent of the Indemnified Party.
19. Limitation of Liability(16)
19.1 Except as otherwise provided in the indemnity section, no Party
shall be liable to the other Party for any loss, defect or equipment
failure caused by the conduct of the other Party, the other Party's
agents, servants, contractors or others acting in aid or concert
with the other Party.
19.2 Except for indemnity obligations, each Party's liability to the
other Party for any loss relating to or arising out of any negligent
act or omission in its performance of this Agreement, whether in
contract or in tort, shall be limited to the total amount that is or
would have been charged to the other Party by such negligent or
breaching Party for the service(s) or function(s) not performed or
improperly performed.
19.3 In no event shall either Party have any liability whatsoever to the
other Party for any indirect, special, consequential, incidental or
punitive damages, including but not limited to loss of anticipated
profits or revenue or other economic loss in connection with or
arising from anything said, omitted or done hereunder (collectively,
"Consequential Damages"), even if the other Party has been advised
of the possibility of such damages; provided, that the foregoing
shall not limit a Party's obligation to indemnify, defend and hold
the other Party harmless against any amounts payable to
- ----------
(16) Per AT&T Recommendations at page 8, Issue 40. Modified per AT&T Approval
at page 13, paragraph C.
20
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Part A
a third party, including any losses, costs, fines, penalties,
criminal or civil judgments or settlements, expenses (including
attorneys' fees) and Consequential Damages of such third party.
Nothing contained in this Section 19 shall limit either Party's
liability to the other for (i) willful or intentional misconduct
(including gross negligence); (ii) bodily injury, death or damage to
tangible real or tangible personal property proximately caused by
such party's negligent act or omission or that of their respective
agents, subcontractors or employees nor shall anything contained in
this section limit the Parties' indemnification obligations, as
specified above.
20. Term of Agreement
20.1 This Agreement shall terminate on July 24, 2000 and thereafter shall
continue in force and effect unless and until a new agreement,
addressing all of the terms of this Agreement, becomes effective
between the Parties. The Parties shall commence negotiations on a
new agreement no later than one (1) year prior to the expiration of
the term of this Agreement. Either Party may request resolution of
open issues in accordance with the provisions of Section 27 of this
Part A of this Agreement, Dispute Resolution beginning nine (9)
months prior to the expiration of this Agreement. Any disputes
regarding the terms and conditions of the new interconnection
agreement shall be resolved in accordance with Section 27 of this
Agreement and the resulting agreement shall be submitted to the
Commission. This Agreement shall remain in effect until a new
interconnection agreement approved by the Commission has become
effective.
21. Governing Law
21.1 This Agreement shall be governed by and construed in accordance with
the Act and FCC or Commission rules and regulations, except insofar
as state law may control any aspect of this Agreement, in which case
the domestic laws of the State of Washington, without regard to its
conflicts of laws principles, shall govern.
22. Cancellation Charges
22.1 Except as provided pursuant to a Bona Fide Request, or as otherwise
provided in any applicable tariff or contract referenced herein, no
cancellation charges shall apply.
23. Regulatory Approvals
23.1 This Agreement, and any amendment or modification hereof, will be
submitted to the Commission for approval in accordance with Section
252 of the Act. In the event any governmental authority or agency
rejects any provision hereof, the Parties shall negotiate promptly
and in good faith such revisions as may reasonably be required to
achieve approval.
23.2 U S WEST shall provide ATTI a summary describing the proposed
change(s) to each Telecommunications Service which is available
pursuant to this Agreement. U S WEST shall also provide ATTI a
summary describing the proposed change(s) of each intrastate and
interstate tariff which provides for an Interconnection, unbundled
Network Element or Ancillary Service that is available pursuant to
this Agreement. Such summaries shall
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Part A
be available through an Internet Web page to be posted on the same
day the proposed change is filed with the Commission or the FCC or
at least thirty (30) days in advance of its effective date,
whichever is earlier.
23.3 In the event any governmental authority or agency orders U S WEST to
provide any service covered by this Agreement in accordance with any
terms or conditions that individually differ from one or more
corresponding terms or conditions of this Agreement, ATTI may elect
to amend this Agreement to reflect any such differing terms or
conditions contained in such decision or order, with effect from the
date ATTI makes such election. The other services covered by this
Agreement and not covered by such decision or order shall remain
unaffected and shall remain in full force and effect.
23.4 The Parties intend that any additional services requested by either
Party relating to the subject matter of this Agreement will be
incorporated into this Agreement by amendment.
24. Compliance
24.1 Each Party shall comply with all applicable federal, state, and
local laws, rules and regulations applicable to its performance
under this Agreement.
24.2 Each Party represents and warrants that any equipment, facilities or
services provided to the other Party under this Agreement comply
with the Communications Law Enforcement Act of 1994 ("CALEA"). Each
Party (the "Indemnifying Party") shall indemnify and hold the other
Party (the "Indemnified Party") harmless from any and all penalties
imposed upon the Indemnified Party for such noncompliance and shall,
at the Indemnifying Party's sole cost and expense, modify or replace
any equipment, facilities or services provided to the Indemnified
Party under this Agreement to ensure that such equipment, facilities
and services fully comply with CALEA.
24.3 All terms, conditions and operations under this Agreement shall be
performed in accordance with all applicable laws, regulations and
judicial or regulatory decisions of all duly constituted
governmental authorities with appropriate jurisdiction, and this
Agreement shall be implemented consistent with the FCC
Interconnection Order and any applicable Commission orders. Each
Party shall be responsible for obtaining and keeping in effect all
FCC, Commission, franchise authority and other regulatory approvals
that may be required in connection with the performance of its
obligations under this Agreement. In the event the Act or FCC or
Commission rules and regulations applicable to this Agreement are
held invalid, this Agreement shall survive, and the Parties shall
promptly renegotiate any provisions of this Agreement which, in the
absence of such invalidated Act, rule or regulation, are
insufficiently clear to be effectuated, violate, or are either
required or not required by the new rule or regulation. During these
negotiations, each Party will continue to provide the same services
and elements to each other as are provided for under this Agreement.
Provided, however, that either Party shall give ten (10) Business
Days' notice if it intends to cease any development of any new
element or service that is not at that time being provided pursuant
to this Agreement. In the event the Parties cannot agree on an
amendment within thirty (30) days from the date any such rules,
regulations or orders become effective, then the Parties shall
resolve their dispute, including liability for noncompliance with
the new clause or the cost, if any, of performing activities no
longer required by the rule or regulation during the renegotiation
of the new clause under the applicable procedures set forth in
Section 27 herein.
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Part A
25. Force Majeure
25.1 Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its
control and without its fault or negligence including, without
limitation, acts of nature, acts of civil or military authority,
embargoes, epidemics, terrorist acts, riots, insurrections, fires,
explosions, earthquakes, nuclear accidents, floods, work stoppages,
equipment failure, power blackouts, volcanic action, other major
environmental disturbances, unusually severe weather conditions,
inability to secure products or services of other persons or
transportation facilities or acts or omissions of transportation
carriers. No delay or other failure to perform shall be excused
pursuant to this Section 25 unless such delay or failure and the
consequences thereof are beyond the control and without the fault or
negligence of the Party claiming excusable delay or other failure to
perform. In the event of any such excused delay in the performance
of a Party's obligation(s) under this Agreement, the due date for
the performance of the original obligation(s) shall be extended by a
term equal to the time lost by reason of the delay. In the event of
such delay, the delaying Party shall perform its obligations at a
performance level no less than that which it uses for its own
operations. In the event of a labor dispute or strike, the Parties
agree to provide service to each other at a level equivalent to the
level they provide themselves. In the event of a labor dispute or
strike or work stoppage that continues for a period in excess of
forty-eight (48) hours, ATTI may obtain replacement services for
those services affected by such labor dispute or strike or work
stoppage, in which event any liability of ATTI for the affected
services shall be suspended for the period of the work stoppage or
labor dispute or strike. In the event of such performance delay or
failure by U S WEST, U S WEST agrees to resume performance in a
nondiscriminatory manner and not favor its own provision of
Telecommunications Services above that of ATTI.
26. Escalation Procedures
26.1 ATTI and U S WEST agree to exchange escalation lists which reflect
contact personnel including vice president-level officers. These
lists shall include name, department, title, phone number, and fax
number for each person. ATTI and U S WEST agree to exchange
up-to-date lists as reasonably necessary.
27. Dispute Resolution
27.1 If any claim, controversy or dispute between the Parties, their
agents, employees, officers, directors or affiliated agents
("Dispute") cannot be settled through negotiation, it may be
resolved by arbitration conducted by a single arbitrator engaged in
the practice of law, under the then current rules of the American
Arbitration Association ("AAA"). The Federal Arbitration Act, 9
U.S.C. Secs. 1-16, not state law, shall govern the arbitrability of
all Disputes. The arbitrator shall not have authority to award
punitive damages. All expedited procedures prescribed by the AAA
rules shall apply. The arbitrator's award shall be final and binding
and may be entered in any court having jurisdiction thereof and
shall be noticed to the Commission. The arbitrator shall determine
which Party or Parties will bear the costs of arbitration, including
apportionment, if appropriate. The arbitration shall occur in
Seattle, Washington, unless otherwise agreed to by the Parties, and
the governing law shall be in accordance with Section 21.1 above.
27.2 In the event ATTI and U S WEST are unable to agree on certain issues
during the term of this Agreement, the Parties may identify such
issues for arbitration before the Commission. Only those points
identified by the Parties for arbitration will be submitted.
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Part A
27.3 If a Dispute is submitted to arbitration pursuant to Section 27.1
above, the procedures described in this Section 27.3 shall apply,
notwithstanding the then current rules of the AAA. Discovery shall
be controlled by the arbitrator and shall be permitted to the extent
set forth below. Each Party may submit in writing to a Party, and
that Party shall so respond, to an agreed amount of the following:
interrogatories, demands to produce documents, and requests for
admission. Not less than ten (10) days prior to the arbitration
hearing, the Parties shall exchange witness and exhibit lists.
Deposition discovery shall be controlled by the arbitrator.
Additional discovery may be permitted upon mutual agreement of the
Parties or the determination of the arbitrator. The arbitration
hearing shall be commenced within thirty (30) days after a demand
for arbitration by either Party and shall be held in Seattle,
Washington, unless otherwise agreed to by the Parties. The
arbitrator shall control the scheduling so as to process the matter
expeditiously. The Parties may submit written briefs. The arbitrator
shall rule on the dispute by issuing a written opinion within seven
(7) days after the close of the hearings. The times specified in
this section may be extended upon mutual agreement of the Parties or
by the arbitrator upon a showing of good cause. The decision of the
arbitrator shall be final and binding upon the Parties and judgment
upon the award rendered by the arbitrators may be entered in a court
having jurisdiction. The decision shall also be submitted to the
Commission.
28. Nondisclosure
28.1 All information, including, but not limited to, specifications,
microfilm, photocopies, magnetic disks, magnetic tapes, drawings,
sketches, models, samples, tools, technical information, data,
employee records, maps, financial reports, and market data (a)
furnished by one Party to the other Party dealing with Customer
specific, facility specific, or usage specific information, other
than Customer information communicated for the purpose of
publication of directory database inclusion, or (b) in written,
graphic, electromagnetic, or other tangible form and marked at the
time of delivery as "Confidential" or "Proprietary", or (c) declared
orally or in writing to the Recipient at the time of delivery, or by
written notice given to the Recipient within ten (10) days after
delivery, to be "Confidential" or "Proprietary" (collectively
referred to as "Proprietary Information"), shall remain the property
of the Discloser. A Party who receives Proprietary Information via
an oral communication may request written confirmation that the
material is Proprietary Information. A Party who delivers
Proprietary Information via an oral communication may request
written confirmation that the Party receiving the information
understands that the material is Proprietary Information.
28.2 Upon request by the Discloser, the Recipient shall return all
tangible copies of Proprietary Information, whether written, graphic
or otherwise, except that the Recipient's legal counsel may retain
one (1) copy for archival purposes.
28.3 Each Party shall keep all of the other Party's Proprietary
Information confidential and shall use the other Party's Proprietary
Information only in connection with this Agreement. Neither Party
shall use the other Party's Proprietary Information for any other
purpose except upon such terms and conditions as may be agreed upon
between the Parties in writing.
28.4 Unless otherwise agreed, the obligations of confidentiality and
non-use set forth in this Agreement do not apply to Proprietary
Information that:
28.4.1 was, at the time of receipt, already known to the Recipient
free of any obligation to keep it confidential evidenced by
written records prepared prior to delivery by the Discloser;
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Part A
28.4.2 is or becomes publicly known through no wrongful act of the
Recipient;
28.4.3 is rightfully received from a third person having no direct
or indirect secrecy or confidentiality obligation to the
Discloser with respect to such information;
28.4.4 is independently developed by an employee, agent, or
contractor of the Recipient which individual is not involved
in any manner with the provision of services pursuant to this
Agreement and does not have any direct or indirect access to
the Proprietary Information;
28.4.5 is approved for release by written authorization of the
Discloser; or
28.4.6 is required by law, a court, or governmental agency, provided
that the Discloser has been notified of the requirement
promptly after the Recipient becomes aware of the
requirement, subject to the right of the Discloser to seek a
protective order as provided in Section 28.5 below.
28.5 For a period of ten (10) years from receipt of Proprietary
Information, the Recipient shall (a) use it only for the purpose of
performing under this Agreement, (b) hold it in confidence and
disclose it only to employees, authorized contractors and authorized
agents who have a need to know it in order to perform under this
Agreement, and (c) safeguard it from unauthorized use or disclosure
using no less than the degree of care with which the Recipient
safeguards its own Proprietary Information. Any authorized
contractor or agent to whom Proprietary Information is provided must
have executed a written agreement comparable in scope to the terms
of this Section. Notwithstanding the foregoing, each Party shall
provide advance notice of three (3) Business Days to the other
before providing Proprietary Information to a governmental authority
and the Parties shall cooperate with each other in attempting to
obtain a suitable protective order. The Recipient agrees to comply
with any protective order that covers the Proprietary Information to
be disclosed.
28.6 Each Party agrees that the Discloser would be irreparably injured by
a breach of this Section 28 by the Recipient or its representatives
and that the Discloser shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event
of any breach of this Section 28. Such remedies shall not be
exclusive but shall be in addition to all other remedies available
at law or in equity.
28.7 Customer Proprietary Network Information ("CPNI") related to either
Party's subscribers obtained by virtue of Local Interconnection or
any other service provided under this Agreement shall be the
Discloser's Proprietary Information and may not be used by the
Recipient for any purpose except performance of its obligations
under this Agreement, and in connection with such performance, shall
be disclosed only to employees, authorized contractors and
authorized agents with a need to know, unless the subscriber
expressly directs the Discloser to disclose such information to the
Recipient pursuant to the requirements of Section 222(c)(2) of the
Act. If the Recipient seeks and obtains written approval to use or
disclose such CPNI from the Discloser, such approval shall be
obtained only in compliance with Section 222(c)(2) and, in the event
such authorization is obtained, the Recipient may use or disclose
only such information as the Discloser provides pursuant to such
authorization and may not use
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Part A
information that the Recipient has otherwise obtained, directly or
indirectly, in connection with its performance under this
Agreement.(17)
28.8 Except as otherwise expressly provided in this Section 28, nothing
herein shall be construed as limiting the rights of either Party
with respect to its subscriber information under any applicable law,
including, without limitation, Section 222 of the Act.
28.9 Effective Date Of This Section. Notwithstanding any other provision
of this Agreement, the Proprietary Information provisions of this
Agreement shall apply to all Proprietary Information furnished by
either Party with a claim of confidentiality or proprietary nature
at any time.
29. Notices
29.1 Except as otherwise provided herein, all notices or other
communication hereunder shall be deemed to have been duly given when
made in writing and delivered in person or deposited in the United
States mail, certified mail, postage prepaid, return receipt
requested, or delivered by prepaid overnight express mail, and
addressed as follows:
To ATTI:
Richard Smith
COO
730 2nd Avenue South
Suite 1200
Minneapolis, MN 55402
Copy to:
J. Jeffery Oxley
Director of Regulatory Affairs
ATTI
730 2nd Avenue South
Suite 1200
Minneapolis, MN 55402
To U S WEST:
Director-Interconnection Compliance
1801 California, Room 2410
Denver, Colorado 80202
Copy to:
U S WEST, Inc.
Law Department -- General Counsel -- Interconnection
1801 California, 49th Floor
Denver, CO 80202
- ----------
(17) Per AT&T Order at pages 23-24, Issue 41.
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Part A
29.2 If personal delivery is selected to give notice, a receipt of such
delivery shall be obtained. The address to which notices or
communications may be given to either Party may be changed by
written notice given by such Party to the other pursuant to this
Section 29.
30. Assignment
30.1 Neither Party may assign, transfer (whether by operation of law or
otherwise) or delegate this Agreement (or any rights or obligations
hereunder) to a third party without the prior written consent of the
other Party, which consent shall not be unreasonably withheld,
provided that each Party may assign this Agreement to an Affiliate
or an entity under its common control or an entity acquiring all or
substantially all of its assets or equity by providing prior written
notice to the other Party of such assignment or transfer. Any
attempted assignment or transfer that is not permitted under the
provisions of this Section 30 is void ab initio. Without limiting
the generality of the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the Parties' respective
successors and assigns. No assignment or delegation hereof shall
relieve the assignor of its obligations under this Agreement.
30.2 If any obligation of U S WEST under this Agreement is performed by a
subcontractor or Affiliate, U S WEST shall remain fully responsible
for the performance of this Agreement in accordance with its terms
and U S WEST shall be solely responsible for payments due to its
subcontractors.
30.3 If any obligation of ATTI under this Agreement is performed by a
subcontractor or Affiliate, ATTI shall remain fully responsible for
the performance of this Agreement in accordance with its terms, and
ATTI shall be solely responsible for payments due to its
subcontractors.
31. Warranties
31.1 U S WEST shall conduct all activities and interfaces which are
provided for under this Agreement with ATTI Customers in a
carrier-neutral, nondiscriminatory manner.
31.2 U S WEST warrants that it has provided, and during the term of this
Agreement it will continue to provide, to ATTI true and complete
copies of all material agreements in effect between U S WEST and any
third party (including Affiliates) providing any services to ATTI on
behalf of or under contract to U S WEST in connection with U S
WEST's performance of this Agreement, or from whom U S WEST has
obtained licenses or other rights used by U S WEST to perform its
obligations under this Agreement, provided, however, that U S WEST
may provide such agreements under appropriate protective order.
32. Default
32.1 In the event of a breach of any material provision of this Agreement
by either Party, the non-breaching Party shall give the breaching
Party and the Commission written notice thereof, and:
32.1.1 if such material breach is for non-payment of amounts due
hereunder pursuant to this Agreement, the breaching Party
shall cure such breach within thirty (30) calendar days of
receiving such notice. The non-breaching Party shall be
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Part A
entitled to pursue all available legal and equitable remedies
for such breach. Amounts disputed in good faith and withheld
or set off shall not be deemed "amounts due hereunder" for
the purpose of this provision.
32.1.2 if such material breach is for any failure to perform in
accordance with this Agreement, which, in the sole judgment
of the non-breaching Party, adversely affects the
non-breaching Party's subscribers, the non-breaching Party
shall give notice of the breach and the breaching Party shall
cure such breach to the non-breaching Party's reasonable
satisfaction within ten (10) Business Days or within a period
of time equivalent to the applicable interval required by
this Agreement, whichever is shorter. If the breaching Party
does not cure such breach within the applicable time period,
the non-breaching Party may, at its sole option, terminate
this Agreement, or any parts hereof. The non-breaching Party
shall be entitled to pursue all available legal and equitable
remedies for such breach. Notice under this Subsection 32.1.2
may be given electronically or by facsimile, provided that a
hard copy or original of such notice is sent by overnight
delivery service.
32.1.3 if such material breach is for any other failure to perform
in accordance with this Agreement, the breaching Party shall
cure such breach to the non-breaching Party's reasonable
satisfaction within forty-five (45) calendar days, and, if it
does not, the non-breaching Party may, at its sole option,
terminate this Agreement, or any parts hereof. The
non-breaching Party shall be entitled to pursue all available
legal and equitable remedies for such breach.
32.2 ATTI may terminate this Agreement in whole at any time only for
cause upon sixty (60) calendar days' prior written notice. ATTI's
sole liability shall be payment of amounts due for services provided
or obligations assumed up to the date of termination.
32.3 In the event of any termination under this Section 32, U S WEST and
ATTI agree to cooperate to provide for an uninterrupted transition
of services to ATTI or another vendor designated by ATTI to the
extent that U S WEST has the ability to provide such cooperation.
32.4 Notwithstanding any termination hereof, the Parties shall continue
to comply with their obligations under the Act.
33. Remedies
33.1 In the event U S WEST fails to switch a subscriber to ATTI service
as provided in this Agreement, U S WEST shall reimburse ATTI in an
amount equal to all fees paid by such subscriber to U S WEST for
such failed-to-be-transferred services from the time of such failure
to switch to the time at which the subscriber switch is
accomplished. This remedy shall be in addition to all other remedies
available to ATTI under this Agreement or otherwise available.
33.2 All rights of termination, cancellation or other remedies prescribed
in this Agreement, or otherwise available, are cumulative and are
not intended to be exclusive of other remedies to which the injured
Party may be entitled at law or equity in case of any breach or
threatened breach by the other Party of any provision of this
Agreement. Use of one or more remedies shall not bar use of any
other remedy for the purpose of enforcing the provisions of this
Agreement.
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Part A
34. Waivers
34.1 No waiver of any provisions of this Agreement and no consent to any
default under this Agreement shall be effective unless the same
shall be in writing and properly executed by or on behalf of the
Party against whom such waiver or consent is claimed.
34.2 No course of dealing or failure of either Party to strictly enforce
any term, right, or condition of this Agreement in any instance
shall be construed as a general waiver or relinquishment of such
term, right or condition.
34.3 Waiver by either Party of any default or breach by the other Party
shall not be deemed a waiver of any other default or breach.
34.4 By entering into this Agreement, neither Party waives any right
granted to it pursuant to the Act.
35. No Third Party Beneficiaries
35.1 The provisions of this Agreement are for the benefit of the Parties
hereto and not for any other Person; provided, however, that this
shall not be construed to prevent ATTI from providing its
Telecommunications Services to other carriers. This Agreement shall
not provide any Person not a Party hereto with any remedy, claim,
liability, reimbursement. claim of action, or other right in excess
of those existing without reference hereto.
36. Physical Security
36.1 U S WEST shall exercise the same degree of care to prevent harm or
damage to ATTI or its employees, agents or subscribers, or property
as U S WEST provides itself. ATTI shall exercise the same degree of
care to ensure the security of its equipment physically collocated
within U S WEST's space as ATTI provides such security to itself.
36.1.1 U S WEST will restrict access to approved personnel to U S
WEST's buildings. ATTI is responsible for the action of its
employees and other authorized non-ATTI personnel; U S WEST
is responsible for the action of its employees and other
authorized non-U S WEST personnel.
36.1.2 U S WEST will furnish to ATTI the current name(s) and
telephone number(s) of those central office supervisor(s)
where a physical collocation arrangement exists. The central
office supervisor(s) will be the only U S WEST employee(s)
with access to ATTI collocation space.
36.1.3 U S WEST will comply at all times with U S WEST security and
safety procedures at the individual central office locations
where ATTI has physical collocation arrangements. The Parties
will cooperate to analyze security procedures of each company
to evaluate ways in which security procedures of US WEST may
be enhanced.
36.1.4 U S WEST will allow ATTI to inspect or observe its physical
spaces which house or contain ATTI equipment or equipment
enclosures at any time upon completion of the physical
collocation quotation. Upon completion of the build out of
the physical space, U S WEST will furnish ATTI with all keys,
entry codes, lock combinations, or other materials or
information which may be needed to gain entry via direct
access to ATTI's physical space.
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Part A
36.1.5 U S WEST agrees to logically partition any U S WEST owned
access-device systems, whether biometric or card reader, or
types which are encoded identically or mechanical coded locks
on external and or internal doors to spaces which house ATTI
equipment.
36.1.6 U S WEST agrees to limit the keys used in its keying systems
for spaces which contain ATTI equipment to the U S WEST
supervisor for the specific facility to emergency access
only. ATTI shall further have the right to change locks where
deemed necessary for the protection and security of its
physical spaces and will provide the U S WEST supervisor with
the current key.
36.1.8 U S WEST shall control unauthorized access from passenger and
freight elevators, elevator lobbies and spaces which contain
or house ATTI equipment or equipment space in the same manner
as U S WEST provides such control for itself.
36.1.9 U S WEST will provide notification to designated ATTI
personnel to indicate an actual or attempted security breach
of ATTI physical space in the same time frame as U S WEST
provides such notification to itself.
37. Network Security
37.1 U S WEST shall provide an appropriate and sufficient back-up and
recovery plan to be used in the event of a system failure or
emergency.
37.2 U S WEST shall install controls to (a) disconnect a user for a
pre-determined period of inactivity on authorized ports; (b) protect
subscriber proprietary information; and (c) ensure both ongoing
operational and update integrity.
37.3 Each Party shall be responsible for the security arrangements on its
side of the network to the Point of Interconnection. The Parties
shall jointly cooperate to analyze network security procedures and
cooperate to ensure the systems, access and devices are
appropriately secured and compatible.
38. Revenue Protection
38.1 U S WEST shall make available to ATTI all present and future fraud
prevention or revenue protection features that U S WEST provides to
itself or others. These features include, but are not limited to,
operator screening codes, call blocking of domestic, international
blocking for business and residence, 900, NPA-976, and specific line
numbers. U S WEST shall additionally provide partitioned access to
fraud prevention, detection and control functionality within
pertinent Operations Support Systems ("OSS") which include, but are
not limited to, Line Information Data Base Fraud monitoring systems.
38.2 Uncollectible or unbillable revenues resulting from, but not
confined to, provisioning, maintenance, or signal network routing
errors shall be the responsibility of the Party causing such error.
38.3 Uncollectible or unbillable revenues resulting from the accidental
or malicious alteration of software underlying Network Elements or
their subtending operational support systems by unauthorized third
parties shall be the responsibility of the Party having
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Part A
administrative control of access to said Network Element or
operational support system software.
38.4 Each Party shall be responsible for any uncollectible or unbillable
revenues resulting from the unauthorized use of facilities under its
control or services it provides, including clip-on fraud.
38.5 The Parties shall work cooperatively to minimize fraud associated
with third-number billed calls, calling card calls, and any other
services related to this Agreement.
39. Law Enforcement Interface
39.1 U S WEST shall provide all necessary assistance to facilitate the
execution of wiretap or dialed number recorder orders from law
enforcement authorities.
- --------------------------------------------------------------------------------
(The language shown below implements both language the Parties agree upon as
well as language as a result of the Commission's decision regarding collocation
service.)
- --------------------------------------------------------------------------------
40. Collocation
40.1 General Description
40.1.1. Collocation allows for the placing of telecommunications
equipment owned by ATTI within USW's Wire Centers for the
purpose of interconnection or accessing Unbundled Network
Elements (UNEs) at USW premises and/or terminating EAS/Local
and ancillary traffic or for cross connects to other
collocated parties.
40.2 Virtual Collocation
40.2.1 A Virtual Collocation arrangement requires ATTI to purchase
and deliver to USW ATTI's own equipment for USW to install
and maintain in USW's Wire Center. ATTI does not have
physical access to its equipment in the USW Wire Center.
Compliance with NEBS3 safety standards is required to the
same extent that USW complies with the same standards.
40.3 Caged Physical Collocation
40.3.1 Caged Physical Collocation allows ATTI to lease caged floor
space up to a maximum of 400 square feet within each USW Wire
Center, for placement of its telecommunications equipment
within USW's Wire Centers for the purpose of interconnecting
with USW finished services or UNEs or for cross-connects to
other collocated parties. ATTI is responsible for the
procurement, installation and on-going maintenance of its
equipment as well as the cross connections required within
the cage.
40.4 Cageless Physical Collocation
40.4.1 Cageless Physical Collocation is a non-caged area within a
USW Wire Center. Any unused space will be made available to
the extent technically feasible in standard 9 square foot,
single bay increments. ATTI will be responsible for the
procurement, installation and maintenance of the bays and
telecommunications equipment as well as the cross-connections
required within ATTI's leased
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Part A
collocation space. Compliance with NEBS3 safety standards is
required to the same extent that USW complies with the same
standards.
40.5 Shared Space Caged Physical Collocation
40.5.1. Shared Space Caged Physical Collocation offers Co-Providers
the opportunity to share a caged physical space with each
other for the purpose of interconnecting with appropriate USW
services or facilities, including, but not limited to, high
capacity private line services or UNEs or for cross-connects
to other collocated parties. Each collocator will be
responsible for ordering entrance, power and terminations from
USW at time of application. In order to address issues around
warehousing of space, the original collocator will not be
allowed to charge the shared occupant a per square foot charge
in excess of the rate that the original collocator is
presently charged by USW.
40.6 Interconnection Distribution Frame (ICDF) Collocation
40.6.1 Where ATTI does not require its equipment to be placed in a
USW Wire Center, but wishes only to combine USW UNEs, ICPF
Collocation is available. ICDFs are shared cross-connect
devices used by USW and Co-Providers alike. USW will determine
the appropriate cross-connect device upon which ATTI
terminations will be placed (DS0, DS1, DS3, and OCn).
40.7 Direct Connection to the USW Network
40.7.1 Telecommunications interconnection between ATTI's collocated
equipment and USW's network may be accomplished by a Direct
Connection. Pricing will be provided to ATTI during the quote
phase. A direct connection includes a connection to an MDF,
where technically feasible, at the same location where USW
makes an equivalent cross connection. Rates, terms and
conditions will be as determined by the WPUC unless otherwise
agreed by the parties in writing. ICB pricing will be used
where prices are otherwise not available. This element can be
at the DS-3, DS-1, DS-0, or analog line level. A Direct
Cabling Connection does not contemplate direct termination on
a COSMIC frame. However, ATTI may request, through the BFR
process, a direct termination on a COSMIC frame. When the MDF
termination is on a COSMIC frame, costs and service
availability intervals will be on an ICB basis.
- --------------------------------------------------------------------------------
(The language shown below implements the Commission's decision.)
- --------------------------------------------------------------------------------
40.8 Adjacent Physical Collocation(18)
40.8.1 Adjacent Physical Collocation includes two scenarios: (1)
where ATTI wishes to obtain space for collocation facilities
in a building or property not owned by USW nearby or across
the street from USW's premises (the "Nearby Location"), and
(2) where ATTI wishes to obtain space for collocated
facilities in a cabinet on the parking lot or grounds of USW's
premises (the "On Grounds Location"). Collocation at a Nearby
Location will be available to ATTI only if On Grounds Location
is not available because of space limitations.
- ----------
(18) This language implements the Commission's decision relating to adjacent
physical collocation. Commission Decision at 22-23.
32
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Part A
40.8.2 USW will extend facilities sufficient to establish
connectivity to USW's network and distribution frame
facilities to ATTI's Collocation space where ATTI is in a
Nearby Location. When ATTI selects the "Near By" Adjacent
Physical Collocation option, ATTI is responsible for all
expenses associated with the establishment of the Adjacent
Physical Collocation space, including but not limited to:
space construction, provision of power and the extension of
the USW facilities to the ATTI Adjacent Collocation space.
40.8.3 When ATTI selects the "On Grounds" Adjacent Physical
Collocation option, USW will provide power and extend
facilities sufficient to establish connectivity to USW's
network and distribution frame facilities to ATTI's
collocation space.
40.8.4 The Parties will meet within seven (7) days of ATTI's
specific written request for Adjacent Physical Collocation to
develop a consensual plan for accommodating that request.
Intervals for completing the work associated with such request
shall be no longer than those intervals set forth herein
applicable to Caged Collocation unless the Parties agree or
either Party, upon request, demonstrates that such longer
intervals are necessary.
40.9 COLLOCATION TERMS AND CONDITIONS - ALL COLLOCATION
40.9.1 USW shall provide Collocation in a nondiscriminatory manner
on rates, terms and conditions that are just, reasonable and
nondiscriminatory. Both parties agree to act in accordance
with applicable law and regulation including without
limitation orders of the Washington Public Utilities
Commission (WPUC) and the Federal Communications Commission
(FCC).
40.9.2 ATTI may collocate equipment that is necessary for
interconnection or access to unbundled network elements,
regardless of whether such equipment includes a switching
functionality, provides enhanced services capabilities, or
offers other functionalities. USW will permit collocation of
any equipment required by law, unless USW can establish that
the equipment will not be actually used or useful by ATTI for
the purpose of obtaining interconnection or access to
unbundled network elements
40.9.3 U S WEST may reasonably audit such telecommunications
equipment to assure that it is being utilized for local
interconnection or access to unbundled elements. USW agrees
that all audits shall be conducted in a responsible manner so
as not to impair any service capabilities of ATTI. ATTI must
identify what equipment is to be installed to allow US WEST to
use this information in engineering the power, floor loading,
heat release, environmental particulate level and HVAC.
40.9.4 If the availability of "Switch Collocation" is rescinded
pursuant to Part A, Section 19.5 (Governing Law/Compliance
With Laws) of this agreement), ATTI will be requested to
remove or disable the switching function of the equipment at
its own expense and within 30 calendar days of receiving such
notice.
40.9.5 Collocation requests require that space be provided for the
placement of ATTI telecommunications equipment within USW's
Wire Center or elsewhere as permitted under Section 2.1.7. USW
will also provide, at a WPUC approved
33
<PAGE>
Part A
price to ATTI, the structure that is necessary in support of
this equipment. This includes but is not limited to, physical
space, a cage (for Caged Physical Collocation), HVAC, any
required cabling between ATTI's telecommunications equipment
and the Distribution Frame and any other associated hardware.
40.9.6 All equipment placed will meet NEBS safety standards (to the
same extent USW equipment meets such standards) and will be
installed in accordance with USW Technical Publications 77350,
77351, 77355, and 77386 as applicable. USW shall provide
standard central office alarming pursuant to Technical
Publication 77350 within the Central Office environment, but
not to ATTI's equipment. Co-Providers are responsible for the
monitoring of their own equipment.
40.9.7 Collocation is offered on a first-come, first-served basis.
Requests for Collocation may be denied due to the lack of
sufficient space in a USW Wire Center for placement of ATTI's
equipment. If USW determines that the amount of space
requested by ATTI for Caged Physical Collocation is not
available, ATTI will be offered Collocation in the closest 100
square toot increment that is determined to be available in
relation to the original request. ATTI also will be offered
Cageless Physical Collocation (bay at a time), Virtual
Collocation or Adjacent Physical Collocation as alternatives
to Caged Physical Collocation. If ATTI accepts one of the
alternatives, a new application form will be submitted if
necessary to formalize the re-engineering involved with the
new request, but such new application will not further delay
or impede the pending request. ATTI must select its option
within ten (10) days of notice., To the extent any such
alternative is technically feasible, each shall be made
available to ATTI, and ATTI in its discretion may choose. USW
shall have the burden of demonstrating that a request for a
particular form of Collocation at a particular premises is not
technically feasible.
40.9.8 Requests for Collocation from ATTI will be prioritized by
ATTI and USW cooperatively; but in the event ATTI submits
requests for Collocation such that more than (5) five requests
per week per state are received by USW, the following
procedure shall apply:
40.9.9 USW and ATTI shall work cooperatively and in good faith to
establish a project plan and schedule to implement ATTI's
requests for Collocation. The project shall establish due
dates on both the up front and ready for service dates, and
outline responsibilities for each Party.
40.9.10 The project plan established by USW and ATTI to implement
ATTI's request for Collocation may also be used by ATTI to
prioritize implementation of Collocation requests in the event
that (5) five or fewer requests for Collocation per week, per
state submitted by ATTI are being processed by USW.
40.9.11 Should the Parties not reach agreement on the project plan,
either Party may request resolution under the Dispute
Resolution section of this agreement.
40.10 If a request for Collocation is denied due to a lack of space in a
USW Wire Center after compliance with the FCC's Collocation Order
FCC 99-48 dated 3/31/99 in the Advanced Services Docket ("FCC
Order"), USW must reclaim central office space by removing inactive
equipment and consolidating equipment that is being phased out.
Consolidation applies to equipment that is being phased out.
Consolidation applies to equipment that is experiencing declining
utilization, and not equipment with spare capacity for growth. USW
must bear the cost of performing an equipment inventory and space
assessment
34
<PAGE>
Part A
as part of its demonstration. USW must bear the cost of removing
inactive equipment ("equipment reclamation"). USW may demonstrate
that ATTI causes costs for grooming on a case-by-case basis. Costs
imposed on ATTI will be only those costs directly attributable to
ATTI and above and beyond the reasonable costs USW would face in
grooming and maintaining its network in accordance with reasonable
industry standards. To the extent USW asserts that ATTI has caused
specific grooming costs, ATTI may request USW to provide a price
quote for such costs. Quotes will be developed within twenty five
(25) calendar days including the estimated time frames for the work
that is required in order to satisfy the Collocation request. ATTI
has thirty (30) days to accept the quote. If ATTI accepts the quote,
work will begin on receipt of 50% of the quoted charges, with the
balance due on completion.
40.10.1 Reclamation may include the following:
40.10.1.1. Grooming -- The moving of circuits from working
equipment to other equipment bays with similar
functionality for the purpose of providing space for
Interconnection.
40.10.1.2. Space Reclamation -- Administrative space that can
be reconditioned, downsized or modified for the
placement of telecommunications equipment.
40.11 Out of Space
40.11.1 USW will comply with the FCC Order and provide documentation
to ATTI and the WPUC whenever a Collocation request is denied
due to insufficient space. Additionally, if ATTI's request is
denied, upon ATTI's request ,USW will furnish a marked copy of
that Wire Center floor plan to ATTI. Tours of the affected
Wire Center, in accordance with the FCC Order, when requested
by ATTI, will be completed within ten (10) days of the date of
request. USW will, within ten (10) days of ATTI's request,
provide to ATTI a report indicating available Collocation
space in any specified USW premises. The report will specify
the amount of Collocation space available at each requested
premises, the number of collocators, and any modifications
since any prior such report and any measures USW is taking to
make additional space available for Collocation.
40.11.2 ATTI reserves the right to review USW floor plans,
assignment records and other information from various USW OSS,
e.g., Trunk Integrated Record Keeping System (TIRKS) to
determine whether the existing space is being efficiently
utilized and what reassignment, grooming or other action would
be necessary to recover space for Collocation.
40.12 All equipment and installation shall meet earthquake rating
requirements applicable in the region where the equipment and
installation occur.
40.13 USW will designate the point of interconnection ("POI") for network
Interconnection for Virtual, Caged Physical, Cageless Physical, or
Adjacent Collocation arrangements, subject to ATTI's reasonable
consent and right to assert a different POI under the Dispute
Resolution section of this agreement. ATTI will be allowed access to
the POI on non-discriminatory terms.
40.14 ATTI is responsible for providing its own fiber facilities to the
POI outside USW's Wire Center. USW will extend the fiber facility
from the POI on a USW fiber cable from the POI to a Fiber
Distribution Panel (FDP). From the FDP additional fiber, conduit and
35
<PAGE>
Part A
associated riser structure will then be provided by USW to continue
the run to ATTI's telecommunications equipment or Collocation area.
40.15 The Collocation entrance facility is assumed to be fiber optic cable
and meets industry standards (GR. 20 Core). Metallic sheath cable is
not considered a standard Collocation entrance facility. Requests
for non-standard entrances will be considered on an individual case
basis including an evaluation of the feasibility of the request. All
costs and provisioning intervals will be developed on an individual
case basis.
40.16 Dual entry into a USW Wire Center will be provided only when two
entry points pre-exist and duct space is available. USW will not
initiate construction of a second, separate Collocation entrance
facility solely for Collocation. If USW requires a Collocation
entrance facility for its own use, then the needs of ATTI will also
be taken into consideration.
40.17 Where Collocation entrance facilities are not available, USW will
offer ATTI USW DS3 or DS1 Private Line Transport Services in
accordance with Tariff terms and conditions, in lieu of entrance
facilities to be terminated at ATTI's collocated equipment.
40.18 ATTI and its designated agents will have direct access to its
collocated equipment twenty-four hours per day, seven days per week
and on non-discriminatory terms. ATTI will have direct access to the
POI on non-discriminatory terms with other collocators. USW will
review the security requirements and hours of access with ATTI. This
will include issuing keys, ID cards, and explaining the access
control processes. Other than with respect to tours under this
Agreement and/or the FCC Order and unless otherwise required by ATTI
to properly maintain its collocated equipment, ATTI personnel found
outside of designated and approved areas, those being only those
areas directly adjacent to ATTI equipment or ATTI terminated
equipment will be escorted away from those non-approved areas and
reported to USW Security. Whenever USW must escort ATTI personnel
away from non-approved areas, USW will promptly provide notice to
ATTI under the "Notices" section of this agreement. Repeated
violations may result in denial of access to USW facilities for the
individual(s) repeatedly found outside of USW designated and
approved areas.
40.19 USW shall provide reasonable access to basic facilities, including
existing eyewash stations, restrooms, drinking water and available
parking while at the collocated facility on a twenty-four (24) hours
per day, seven (7) days per week basis for ATTI personnel and its
designated agents.
40.20 Unescorted ATTI representatives shall be restricted to corridors,
stairways, and elevators that provide direct access to ATTI's space,
or to the nearest restroom facility from ATTI's designated space,
and such direct access will be outlined during ATTI's orientation
meeting.
40.21 ATTI may request any alternative type of available collocation to
replace ATTI's existing virtual collocation space. The alternative
collocation request is treated as a new request. ATTI may
discontinue use of its existing virtual collocation space when the
alternative space is ready for use. USW will return any ATTI
equipment located in the virtual collocation space if ATTI
discontinues use of that space and upon submittal of the
Decommissioning Order for the virtual space.
40.22 Consistent with Section 40.10 herein, USW will remove obsolete
unused equipment from its premises where necessary and requested by
ATTI to make space available to ATTI for Collocation. USW will
expand or rearrange space or equipment where technically feasible if
necessary to accommodate ATTI's Collocation request in accordance
with the
36
<PAGE>
Part A
FCC Order. USW will inform ATTI in advance of any costs associated
with such expansion or rearrangement, that it intends to impose on
ATTI. Such costs will include a prorated amount directly
attributable to ATTI for such expansion or rearrangement. In the
event of a dispute, USW will upon receipt of the requested costs
proceed with the requested expansion or rearrangement subject to
true-up. The Parties may resolve such dispute under the Dispute
Resolution section of this agreement.
40.23 USW will provide ATTI the same connection to the network as USW uses
for provision of services to USW end users. The direct connection to
USW's network is provided to ATTI through direct use of USW's
existing cross connection network. ATTI and USW will share the same
distributing frames for similar types and speeds of equipment, where
technically feasible and space is available on the shared frame.
ATTI shall be permitted to provision cross connects from its
collocated facilities to those of other collocated parties ("CLEC
Cross Connects"). ATTI may provision such CLEC Cross Connects
itself, so long as ATTI has obtained status as an approved vendor of
USW, or ATTI may use any other vendor who has obtained status as an
approved vendor of USW. . ATTI may, at its election, use the ICDF
for CLEC Cross Connects or may directly cable between the ATTI
collocation space and the collocation space of another Co-Provider.
USW must verify cable racking capacity and availability and
establish the path through the wire center before ATTI establishes
CLEC Cross Connects or direct cables from ATTI's collocation space
to the collocation space of another Co-Provider.
40.24 COLLOCATION TERMS AND CONDITIONS - VIRTUAL COLLOCATION
40.24.1 USW is responsible for installing and maintaining Virtually
Collocated equipment for the purpose of Interconnection to
UNEs.
40.24.2 ATTI will be responsible for obtaining and providing to USW
administrative codes, and equipment information, for any
equipment provided by ATTI where such codes exist.
40.24.3 ATTI shall ensure that upon receipt of ATTI's Virtually
Collocated equipment by USW, all warranties and access to
ongoing technical support are passed through to USW, all at
ATTI's expense. ATTI shall advise the manufacturer and seller
of the virtually collocated equipment that ATTI's equipment
will be possessed, installed and maintained by USW.
40.24.4 ATTI's virtually collocated equipment must comply to the
same extent as USW's equipment with the Telcordia Technologies
Network Equipment Building System (NEBS) Generic Equipment
Requirements TR-NWT-000063, reasonable USW Wire Center
environmental and transmission standards and any statutory
(local, state or federal) and/or regulatory and safety
requirements in effect at the time of equipment installation
or that subsequently become effective. ATTI shall provide USW
interface specifications (e.g., electrical, functional,
physical and software) of ATTI's virtually collocated
equipment.
40.24.5 ATTI must specify all software options and associated
plug-ins for its virtually collocated equipment.
40.24.6 ATTI will be responsible for payment of reasonable USW
Direct Training Charges associated with training USW employees
for the maintenance, operation and installation of ATTI's
Virtually Collocated equipment when such equipment is
different than the standard equipment used by USW in that Wire
Center. This includes reasonable per diem charges (i.e.,
expenses based upon
37
<PAGE>
Part A
effective USW labor agreements) travel and lodging incurred by
USW employees attending a vendor-provided training course.
40.24.7 ATTI will be responsible for payment of WPUC approved
charges incurred in the maintenance and/or repair as requested
by ATTI for ATTI's virtually collocated equipment. Any
activity for which there is no currently applicable WPUC
approved rate shall be developed by USW and subject to
acceptance by ATTI.
40.25 COLLOCATION TERMS AND CONDITIONS - CAGED PHYSICAL COLLOCATION
40.25.1 USW shall provide Caged Physical Collocation to ATTI for
interconnection or access to UNEs and/or terminating EAS/Local
traffic, except that USW may provide for Cageless Physical or
Virtual Collocation if USW demonstrates in accordance with the
FCC Order to the Commission that Caged Physical Collocation is
not practical for technical reasons such as space limitations,
as provided in Section 251 (c)(6) of the Act. ATTI shall have
the right to select technically feasible alternatives, such as
Cageless Collocation, in lieu of Caged Collocation even where
Caged Collocation is available if ATTI so desires. USW shall
provide basic telephone service with a connection jack at the
request of ATTI for the Physical or Cageless Physical
Collocated space. Upon ATTI's request, this service shall be
available per standard USW business service provisioning
processes.
40.25.2 Caged Physical Collocation is offered in Wire Centers on a
space-available, first come, first-served basis.
40.25.2.1. The maximum standard leasable amount of floor space
for Caged Physical Collocation is 400 square feet.
Requests greater than 400 square feet will be considered
by USW on an individual case basis. ATTI must
efficiently use the leased space; meaning that no more
than 50% of the floor space may be used for storage
cabinets and work surfaces
40.25.3 ATTI's leased floor space will be separated from other
Co-Providers and USW space through a cage enclosure unless the
space is provided under a Shared Space Collocation arrangement
in which case there will not be any cage delineation. USW or
another sub-contractor selected by ATTI from the USW list of
approved subcontractors will construct the cage enclosure. All
ATTI equipment placed will meet NEBS safety standards, to the
extent USW equipment meets such standards, and will be
installed in accordance with USW Technical Publication 77350,
to the extent that such Publication is reasonably available to
ATTI and its vendors, and will comply with any local, state,
or federal regulatory and safety requirements in effect at the
time of equipment installation or that subsequently become
effective.
40.25.4 USW will designate and design the floor space within each
Wire Center, which will constitute ATTI's leased space.
40.25.5 When USW constructs the Caged Physical space, USW will
ensure that the necessary construction work (racking, ducting,
caging, grounding, terminations, environmental designs, AC and
DC power, etc.) is performed to build ATTI's leased physical
space and the riser from the vault to the leased physical
space, pursuant to Technical Publication 77350.
38
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Part A
40.25.6 ATTI owns and is responsible for the installation,
maintenance and repair of its telecommunications equipment
located within the physically collocated space rented from
USW.
40.25.7 Shared Space Caged Physical Collocation is covered in
subsequent Sections of this Agreement.
40.25.8 For Collocation entrance facilities, USW will extend
USW-provided and owned fiber optic cable from the POI to
ATTI's leased physical space. ATTI will procure, install and
maintain all fiber optic facilities up to the POI.
40.25.9 Upon completion of the construction of the collocation
project, USW will work cooperatively with ATTI in matters of
joint testing and maintenance.
40.25.10 If, during installation, USW reasonably determines ATTI
activities or equipment do not comply with the NEBS safety
standards listed in this Section with which USW equipment
complies or are otherwise unsafe, or are in violation of any
applicable safety laws or regulations with which USW equipment
complies, USW has the right, if ATTI refuses to perform
necessary corrective work after notice to ATTI, to stop
affected Collocation work until the situation is remedied. If
such conditions pose an immediate threat to the safety of USW
employees, interfere with the performance of USW's service
obligations, or pose an immediate threat to the physical
integrity of the conduit system, cable facilities or other
equipment in the Wire Center, USW may perform such work and/or
take action as is reasonably necessary to correct the
condition at ATTI's reasonable expense
40.25.11 If, at any time, USW reasonably determines that the
equipment or the installation does not reasonably meet
technical standard safety requirements which USW's equipment
does meet, ATTI will be responsible for the costs associated
with the removal, modification to, or installation of the
equipment to bring it into compliance. If ATTI fails to take
appropriate action to correct any non-compliance within
fifteen (15) calendar days of written notice of noncompliance,
USW may have the equipment removed or the condition corrected
at ATTI's expense.
40.26 COLLOCATION TERMS AND CONDITIONS - CAGELESS PHYSICAL COLLOCATION
40.26.1 ATTI owns and is responsible for the installation,
maintenance and repair of its telecommunications bays and
equipment located within the space leased from USW. ATTI may
access its own Collocated equipment.
40.26.2 Requests for multiple bay space will be provided in adjacent
bays where possible. When contiguous space is not available,
bays may be commingled with other Co-Providers' equipment
bays. ATTI may request a price quote for reasonable costs to
rearrange USW equipment to provide ATTI with adjacent space.
Such price quote will be provided within twenty-five (25)
calendar days.
40.26.3 All equipment placed will be subject to reasonable audits
conducted by USW on an as needed basis. USW agrees that all
audits shall be conducted in a responsible manner so as not to
impair any service capabilities of ATTI. These audits will
determine whether the equipment meets the standards required
by this Agreement. ATTI will be notified of the results of
this audit and shall, take action to rectify all
non-conformities within thirty (30) calendar days of
39
<PAGE>
Part A
notification. If ATTI has not taken action to rectify
non-conformities within a reasonable time, all non-conforming
items remaining may be rectified by USW and the cost assessed
to ATTI.
40.26.4 Subject only to technical feasibility and the permissible
security parameters, USW will allow ATTI to collocate in any
unused space in USW's premises, without requiring the
construction of a room, cage, or similar structure, and
without requiring the creation of separate entrance to ATTI's
Collocation space. ATTI will receive direct access to its
equipment. When space is legitimately exhausted in a
particular USW premises, USW will permit Collocation in
accordance with Section 2.1.7.
40.27 RATE ELEMENTS - ALL COLLOCATION
40.27.1 USW will recover WPUC approved Collocation costs through
both recurring and nonrecurring charges. The charges are
determined by the scope of work to be performed based on the
information provided by ATTI on the Collocation Order Form. If
USW determines space is available, a quote will then be
developed within twenty-five (25) calendar days by USW for the
work to be performed. All costs will be those costs and cost
elements approved by the WPUC, in either the ATTI Contract or,
to the extent applicable, interconnection arbitration or
generic cost dockets,. To the extent that a rate element or
rate is modified or not allowed under current WPUC rulings or
in any WPUC Cost Order, the WPUC's determination will govern.
All charges to ATTI shall be for those reasonable pro rata
marginal costs directly attributable to ATTI and shall not
include costs for (1) expenses for the benefit of USW or
required to be incurred by USW in maintaining its network in
accordance with reasonable industry standards and (2) expenses
for the benefit of other Collocation parties. Any cost for
which there is no currently applicable WPUC approved rate
shall be developed by USW and subject to acceptance by ATTI.
40.27.2 The following elements as specified in Exhibit 1 to the ATTI
Contract are used to develop a price quotation in support of
Collocation.
40.27.3 Quote Preparation Fee. A non-refundable charge for the work
required to verify space and develop a price quote for the
total costs to ATTI for its Collocation request. The QPF is
not credited against the total nonrecurring charges of the job
and recovers the engineering and processing costs of the
order.
40.27.4 Collocation Entrance Facility Charge. Depending on the
number of Entrance Facilities requested (single or dual) the
Entrance Facility charge is applied per fiber pair. To the
extent ATTI chooses to deliver fiber through an entrance
facility, at each entrance ATTI will deliver a minimum 12
strand fiber cable to the POI. The facilities from the POI to
the collocated equipment are owned, provided, engineered,
installed and maintained by USW. The Collocation Entrance
Facility includes riser, racking, fiber placement, splicing,
entrance closure, conduit/innerduct, and core drilling.
40.27.5 Cable Splicing Charge. Represents the labor and equipment to
perform a subsequent splice to ATTI provided fiber optic cable
after the initial installation splice. Includes per-setup and
per-fiber-spliced rate elements.
40.27.6 -48 Volt DC Power Charge. Provides -48 volt DC power to ATTI
collocated equipment. Charged on a per ampere capacity
specification.
40
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Part A
40.27.7 -48 Volt DC Power Cable Charge. Provides for the
transmission of -48 volt DC power to the collocated equipment.
It includes engineering, furnishing and installing the main
distribution bay power breaker, associated power cable, cable
rack and local power bay to the closest power distribution
bay. It also includes the power cable (A and B feeds) from the
local power distribution bay to the leased physical space (for
Cageless or Caged Physical Collocation) or to the collocated
equipment (for Virtual Collocation). Charged per A and B
feeder, per foot.
40.27.8 Inspector Labor Charge. Provides for USW qualified
personnel, acting as an inspector, when ATTI requires access
to the POI after the initial installation. A call-out of an
inspector after business hours is subject to a minimum charge
of three (3) hours. The minimum call-out charge shall apply
when no other employee is present in the location, and an
'off-shift' USW employee (or contract employee) is required to
go "on-shin" on behalf of ATTI.
40.27.9 Channel Regeneration Charge. Required when the distance from
the leased physical space (for Caged Physical Collocation,
Cageless Physical Collocation), or Adjacent Collocation, or
from the collocated equipment (for Virtual Collocation) to the
USW network is of sufficient length to require regeneration.
The cost associated with regeneration will be billed to the
extent permitted by WPUC rules.
40.27.10 Cross-Connect Terminations
40.27.11 If USW provides the equipment cable for ATTI, terminations
of that cable, including hardware and installation will be
provided in the following increments:
DS0 and analog lines- In blocks of 100 terminations.
DS1 - In increments of 28 terminations
D53 - In increments of 1 coax pair
OCn Level Terminations - In increments of 1 fiber pair
These elements include USW provided equipment cables,
terminating blocks, installation labor and associated racking
required between ATTI collocated equipment and the
cross-connect device where the terminations appear.
40.27.12 If ATTI elects to provide the equipment cable, rates are
applied on a per termination basis for DS0 and analog lines,
DS1, DS3s and Ocn as shown below:
DS0 and analog lines Per Termination
DS1 Per Termination
DS3 Per Termination
OCn Level Per Termination
These elements include USW provided termination blocks,
installation labor and associated racking between ATTI
collocated equipment and the cross-connect device where the
terminations appear.
40.27.13 Collocation Cable Racking. An WPUC approved charge for
cable racking required for placement of ATTI's supplied
equipment cables from its equipment to the appropriate
cross-connect device which is provided in conjunction with the
DS0 and analog lines, DSI, D53 and OCn terminations. Cable
Racking is assessed on a per foot charge based on number of
cable pairs terminated at the various cross-connect devices.
41
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Part A
40.27.14 Collocation Grounding Charge. A WPUC approved charge
associated with providing grounding for ATTI's cage enclosure
and equipment. Recurring and nonrecurring charges are assessed
per foot to ATTI's cage enclosure or common space where
required.
40.27.15 Heating and Air Conditioning Charge. Environmental
temperature control required for proper operation of
electronic telecommunications equipment.
40.27.16 Security Charge. The keys/card readers and video cameras as
may be required for ATTI access to the USW Wire Center for the
purpose of Collocation. Flat rate charges are assessed per
ATTI representative, per each USW Wire Center to which access
is required. If escort is required additional charges will
apply.
40.28 RATE ELEMENTS - VIRTUAL COLLOCATION
40.28.1 The following rate elements apply uniquely to Virtual
Collocation.
40.28.2 Maintenance Labor. Provides for the labor necessary for
repair of out of service and/or service-affecting conditions
and preventative maintenance of ATTI virtually collocated
equipment. ATTI is responsible for ordering and delivering
maintenance spares. USW will perform maintenance and/or repair
work at ATTI's request upon receipt of the replacement
maintenance spare and/or equipment from ATTI. A call-out of a
maintenance technician where requested by ATTI after business
hours is subject to a minimum charge of three (3) hours.
40.28.3 Training Labor. Provides for the billing of vendor-provided
training for USW personnel on a metropolitan service area
basis, necessary for ATTI virtually collocated equipment, that
is different from USW provided equipment. USW will require a
reasonably adequate number of USW employees to be trained per
metropolitan service area in which ATTI virtually collocated
equipment is located. If trained employees are relocated,
retired, or are no longer available, USW will not require ATTI
to provide training for additional USW employees for the same
virtually collocated equipment in the same metropolitan area.
40.28.4 Equipment Bay. Provides mounting space for ATTI virtually
collocated equipment. Each bay includes the 7 foot bay, its
installation, and all necessary environmental supports.
Mounting space on the bay, including space for the fuse panel
and air gaps necessary for heat dissipation is limited to 78
inches. The WPUC approved monthly rate is applied per shelf.
40.28.5 Engineering Labor. Provides the planning and engineering of
ATTI virtually collocated equipment at the time of
installation, change or removal.
40.28.6 Installation Labor. Provides for the installation, change or
removal of ATTI virtually collocated equipment in consultation
with ATTI.
40.29 RATE ELEMENTS - CAGED PHYSICAL COLLOCATION
40.29.1 Cage Enclosure. The Cage Enclosure element includes the
material and labor to construct the enclosure. ATTI may choose
from USW approved contractors to construct the cage, in
accordance with USW's installation Technical Publication
77350. It includes a nine foot cage enclosure available in
increments of 100, 200, 300 or 400 square feet, air
conditioning (to support
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Part A
ATTI loads specified), lighting (not to exceed 2 watts per
square foot), and convenience outlets (3 per cage or number
required by building code). Pricing for the Cage Enclosure
will be provided on an individual basis due to the uniqueness
of ATTI's requirements central office structure and
arrangements.
40.29.2 Floor Space Lease. Provides the monthly lease for the leased
physical space, property taxes and base operating cost without
-48 volt DC power. Includes convenience 110 AC, 15 amp
electrical outlets provided in accordance with local codes and
may not be used to power telecommunications equipment or -48
volt DC power generating equipment. Also includes maintenance
for the leased space; provides for the preventative
maintenance (climate controls, filters, fire and life systems
and alarms, mechanical systems, standard HVAC); biweekly
housekeeping services (sweeping, spot cleaning, trash removal)
of USW Wire Center areas surrounding the leased physical space
and general repair and maintenance. The Floor Space Lease
includes required aisle space on each side of the cage
enclosure as applicable.
40.29.3 AC Power Charge- Standard AC outlet used by ATTI for the
purpose of powering test equipment, tools etc.
40.29.4 Grounding Charge- Used to connect the Wire Center common
ground to ATTI's equipment.
40.30 RATE ELEMENTS - CAGELESS PHYSICAL COLLOCATION
40.30.1 The supporting structure and rate elements for Cageless
Physical Collocation are the same as Caged Physical
Collocation, excluding the nonrecurring cage enclosure and
grounding charge and any other costs reasonably avoided as a
result of USW not constructing a cage and ATTI occupying a
smaller space. The minimum square footage is 9 square feet per
bay. AC power outlet will be provided to every other bay in
the lineup. In those instances where single bays are requested
and placed the single bay will have its own AC outlet.
40.31 RATE CALCULATION -- SHARED SPACE AND CAGELESS COLLOCATION
40.31.1 USW will pro-rate charges for site conditioning and
preparation, by determining the total charge for site
preparation and allocating the charge to a collocating carrier
based on the percentage of the total space utilized by that
carrier. ATTI will be charged only those costs directly
attributable to ATTI.
40.32 RATE ELEMENTS - ICDF COLLOCATION
40.32.1 The nonrecurring rates for this optional cross-connect
device recover USW's investment (including engineering and
installation) for all DSO, analog lines, DS1 and DS3
terminations, including tie cables appropriate cross-connect
device terminations, and terminations on the applicable USW
frame.
40.32.2 The recurring rate element for this optional cross-connect
device recovers USW's expense for the maintenance and
administration for all DSO, analog lines, DS1 and DS3
terminations, including tie cables, appropriate cross-connect
device terminations, and termination on the applicable USW
frame.
40.33 ORDERING - VIRTUAL COLLOCATION
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Part A
40.33.1 Upon receipt of a Collocation Order Form and QPF, USW will
perform a feasibility study to determine if adequate space can
be found for the placement of ATTI's equipment within the Wire
Center. The feasibility study will be completed within ten
(10) calendar days of receipt of the QPF. If space is
available, USW will develop a price quotation within
twenty-five (25) calendar days of completion of the
feasibility study. Subsequent requests to augment an existing
Collocation also require receipt of a Change Order Form and
QPF. Adding plug-ins, e.g., DS1 or DS3 cards to existing
Virtually Collocated equipment will be processed with a
shorter interval
40.33.2 Virtual Collocation price quotes will be honored for thirty
(30) calendar days from the date the quote is provided to
ATTI. During this period the Collocation entrance facility and
space is reserved pending ATTI's approval of the quoted
charges. If ATTI agrees to terms as stated in the Collocation
Price Quote, ATTI must respond within 30 calendar days with a
signed quote, a down payment check for 50% of the quoted
charges and proof of insurance. Under normal conditions, USW
will complete the installation within ninety (90) calendar
days from receipt of ATTI's equipment provided that space and
power is available. Any portions that cannot be completed
within ninety (90) calendar days will be negotiated with ATTI
on an individual case basis. The installation of line cards
and other minor modifications shall be performed by USW on
shorter intervals and in no instance shall any such interval
exceed thirty (30) calendar days. Final Payment is due upon
completion of the work and acceptance by ATTI. Recurring
monthly charges for the Collocation commences upon completion
of the work and acceptance by ATTI.
40.34. ORDERING - CAGED PHYSICAL COLLOCATION
40.34.1 Upon receipt of a Collocation Order Form and QPF, USW will
perform a feasibility study to determine if adequate space can
be found for the placement of ATTI's equipment within the Wire
Center. The feasibility study will be provided within ten (10)
calendar days from date of receipt of the QPF. If Collocation
entrance facilities and office space are found to be
available, USW will develop a quote for the supporting
structure within twenty-five (25) calendar days of providing
the feasibility study. Caged Physical Collocation price quotes
will be honored for thirty (30) calendar days from the date
the quote is provided. Upon receipt of the signed quote, 50%
down and proof of insurance, space will be reserved and
construction of the Collocation space by USW will begin. The
cage will be available to ATTI for placement of its equipment
within ninety (90) calendar days of receipt of the 50% down
payment. Depending on specific Wire Center conditions, shorter
intervals may be available. USW agrees to notify ATTI as soon
as USW is aware that completion of the collocation space will
occur prior to the normal 90 day interval. Final payment is
due upon completion of work and acceptance by ATTI. Recurring
monthly charges for the Collocation commence upon the
completion of the Collocation and acceptance by ATTI.
40.34.2 Due to variables in equipment availability and scope of the
work to be performed, additional time in special circumstances
may be required for implementation of the structure required
to support the Collocation request. Examples of structure that
may not be completed within ninety (90) calendar days may
include additional time for placement of a POI, DC power
upgrades and space reclamation required to meet ATTI's
Collocation request. Such variables when identified by U S
WEST will be disclosed to ATTI as soon as possible.
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40.35 ORDERING - CAGELESS PHYSICAL COLLOCATION
40.35.1 Upon receipt of a Collocation Order Form and QPF, USW will
perform a feasibility study to determine if adequate space can
be found for the placement of ATTI's equipment within the Wire
Center. The feasibility study will be provided within ten (10)
calendar days from date of receipt of the Collocation Order
Form and QPF. If Collocation entrance facilities and office
space are found to be available, USW will develop a quote for
supporting structure within twenty-five (25) calendar days of
providing the feasibility study. Cageless Physical Collocation
price quotes will be honored for thirty (30) calendar days
from the date the quote is provided. If ATTI agrees to terms
as stated in the Collocation Price Quote, ATTI must respond
within thirty (30) calendar days with a signed quote, a check
for 50% of the quoted charges and proof of insurance. Upon
receipt of the signed quote, 50% payment and proof of
insurance, construction by USW will begin. The cageless,
physical space including equipment bays provided by ATTI and
associated apparatus provided by USW, will be available to
ATTI for placement of its equipment within ninety (90)
calendar days of receipt of the 50% down payment. Depending on
specific Wire Center conditions, shorter intervals may be
available. USW will identify for ATTI those Wire Centers where
such shorter intervals are available and provide an estimated
revised shorter interval. Final payment is due upon completion
of work and acceptance by ATTI. Recurring monthly charges for
the Collocation commence upon the completion of the
Collocation.
40.35.2 Due to variables in equipment availability and scope of the
work to be performed, additional time may be required for
implementation of the structures required to support the
Collocation request. Examples of structure that may not be
completed within ninety (90) calendar days may include
additional time for placement of a POI, DC power upgrades and
space reclamation required to meet ATTI's Collocation request.
Such variables will be immediately identified by U S WEST for
ATTI as soon as possible and no later than ten (10) days after
completion of the feasibility study.
40.36 ORDERING - ICDF COLLOCATION
40.36.1 Upon receipt of a Collocation Order Form, and to the extent
ATTI in its sole discretion exercises the option to use ICDF
Collocation, USW will verify if ICDF capacity is available at
the requested Wire Center. Verification of cross-connection
capacity will be completed within ten (10) calendar days. USW
will develop a cost quotation for the requested Collocation
within twenty-five (25) calendar days from verification. In
those Wire Centers where ICDFs have not been previously
placed, USW will make ICDFs available within ninety (90)
calendar days of verification. USW provides a web site
indicating those Wire Centers where collocation space is not
available.
40.36.2 Within thirty (30) calendar days of USW providing the
quotation, ATTI will accept or reject the quotation.
Acceptance shall require payment to USW of fifty percent of
the nonrecurring and construction charges provided on the
quotation.
40.36.3 As part of the ordering process, ATTI will provide at a
minimum a reasonable eighteen month forecast for each Wire
Center in which it intends to utilize the appropriate
cross-connect device. Included in this forecast will be
reasonable
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Part A
estimates of the termination type (DS0 and analog lines, DS1,
DS3) and the quantity of each termination required.
Appropriate cross-connect device terminations must be ordered
in multiples of the following quantities:
100 DS0 and analog line terminations
28 DS1 terminations
1 DS3 termination
40.37 ORDERING - ALL COLLOCATION
40.37.1 Any changes, modifications or additional engineering
requested by ATTI, subsequent to its initial order, as to the
type and quantity of equipment or other aspects of the
original Collocation request, must be submitted with a
Collocation Change Form. Such requests will not cause the
original Collocation job to vary from the committed ready for
service date. USW will respond within a reasonable time after
receipt of such request and identify any reason why ATTI's
Collocation will be delayed and, if so, for how long. A
subsequent collocation change form and QPF will only be
required for major changes, as agreed by the parties. Disputes
as to whether a change is "major" shall be resolved as
described in the Dispute Resolution section of this agreement.
In the event of a dispute, USW shall proceed to process the
request upon receipt of the requested collocation change form
and QPF, subject to true up and reimbursement back to ATTI
upon resolution of the dispute.
40.37.2 Intervals for Collocation from request date to turnover date
shall be a maximum anywhere from 147 -- 177 calendar days from
the request date (see section 40.46), depending upon when USW
receives ATTI's approval of the quote. USIA' will permit a
reasonable number of site visits during construction of a
Collocation site at the request of ATTI.
40.37.3 A request by ATTI to cross connect with another collocated
provider, with or without using ICDF Collocation, will be
considered a new Collocation request and will result in the
application of a specific "cage to cage cross connect" QPF.
Until the cost is developed for this specific QPF, the cost
will be determined on an ICB basis. In the event ATTI requests
cross connection with another collocated provider without
using ICDF Collocation, USW shall verify capacity on, and
identify, a route for the cross connection facilities within
seven (7) days of ATTI's request. USW shall then allow ATTI
thirty (30) days to construct the cross connection facilities
necessary for the cross connection or, upon ATTI's request,
USW shall provide a quote for, and complete construction of,
such facilities within the timeframes established for ICDF
Collocation.
40.37.4 Upon ATTI's request for cross connection with another
collocated provider, USW may not withhold reasonably available
cable racking or a reasonable route for the cross connection
facilities required. If USW informs ATTI that a reasonable
route or cable racking does not exist to accommodate ATTI's
request, ATTI will have the rights conferred on it in this
Agreement and by law relating to the verification of space
exhaustion.
40.38 BILLING - ALL COLLOCATION
40.38.1 Upon completion of the Collocation construction activities
and payment of the WPUC approved remaining nonrecurring
balance, USW will provide ATTI a
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Part A
completion package that will initiate the recurring
Collocation charges. USW will begin billing the WPUC approved
monthly recurring charges stated in the quote and completion
package.
40.38.2 In the event USW has completed all associated construction
activities and ATTI has not completed its associated
activities (e.g., delivering fiber to the POI, providing tie
cables for connecting to the distribution frames, etc.), USW
will begin billing for all monthly Collocation charges. When
ATTI is ready to complete its activities, final test and
turn-up will be performed under the maintenance and repair
process contained herein.
40.39 BILLING - VIRTUAL COLLOCATION
40.39.1 Virtual Collocation will be considered complete when the POI
has been constructed, the shared fiber Collocation entrance
facility has been provisioned, and the collocated equipment
has been installed. Cooperative testing between ATTI and USW
may be negotiated and performed to ensure continuity and
acceptable transmission parameters in the facility and
equipment. Any additional joint testing can be provided by
agreement of the parties under rates and terms specified in
this Agreement.
40.40 BILLING - CAGED AND CAGELESS PHYSICAL COLLOCATION
40.40.1 Upon completion of USW construction activities and ATTI
payment of the remainder of the WPUC approved nonrecurring
charges, USW will allow ATTI full and complete access to the
Collocation space. USW will activate monthly billing for the
leased space and turn over access to the space with all
security and access privileges. ATTI will sign off on the
completion of the physical space via the Caged or Cageless
Physical Collocation completion package. ATTI may then proceed
with the installation of its equipment in the Collocation
space. Such installation may commence earlier, upon payment of
the balance of the non-recurring charges and commencement of
the floor space rental and prior to final completion of the
space, if consistent with applicable safety standards and
reasonable industry practice. Once ATTI's equipment has been
installed and cable is provided for ATTI's equipment
terminations, USW will complete all remaining work activities.
40.41 MAINTENANCE AND REPAIR
40.41.1 Virtual Collocation
40.41.1.1 Maintenance Labor, Inspector Labor, Engineering
Labor and Equipment Labor business hours are considered
to be Monday through Friday, 8:00am to 5:00pm (local
time) and after business hours are after 5:00pm and
before 8:00am (local time), Monday through Friday, all
day Saturday, Sunday and holidays.
40.41.1.2 Installation and maintenance of ATTI's virtually
collocated equipment will be performed by USW or a USW
authorized vendor.
40.41.1.3 Upon failure of ATTI's virtually collocated
equipment, ATTI is responsible for transportation and
delivery of maintenance spares to USW at the Wire Center
housing the failed equipment. ATTI is responsible for
purchasing and maintaining a supply of spares.
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Part A
40.42 Caged Physical Collocation
40.42.1 ATTI is solely responsible for the maintenance and repair of
its equipment located within ATTI's caged space. If two or
more Co-Providers agree to a Shared Space Caged Physical
Collocation arrangement, such collocators are solely
responsible for any and all maintenance, security and repair
arrangements necessitated by such sharing. USW assumes no
liability for any damages relating to Shared Space Caged
Physical Collocation or related personnel disputes among the
parties to those arrangements.
40.43 Cageless Physical Collocation
40.43.1 ATTI is solely responsible for the maintenance and repair of
its equipment located within ATTI's cageless physical space.
40.44 ICDF Collocation
40.44.1 To the extent that ATTI chooses to utilize ICDF Collocation,
ATTI is responsible for block and jumper maintenance at the
appropriate cross-connect device and using correct procedures
to dress and terminate jumpers on the appropriate
cross-connect device, including using fanning strips,
retaining rings, and having jumper wire on hand, as needed.
Additionally, ATTI is required to provide its own tools for
such operations. In the event of a dispute, the Dispute
Resolution section of this agreement will be available to
either Party.
40.45 DISPUTE RESOLUTION
40.45.1 Not withstanding any provisions in this document or the
Interconnection Agreement to the contrary, the Parties hereby
agree that, in a dispute that relates to the timeliness of
USW's processing or provisioning of a request or order for
Collocation made by ATTI, either Party may immediately request
resolution using the dispute resolution section of this
agreement. In the event the Parties disagree on a price quote,
or USW's entitlement to impose such costs, USW will agree,
upon payment by ATTI of the quoted price, to proceed to
process the interconnection under this section while disputed
charges are referred for dispute resolution as stated herein.
The Parties further agree that all cost disputes may be
resolved through the dispute resolution section of this
agreement and that final decisions of the WPUC in cost docket
or other proceedings will govern the final determination of
all cost issues, including the "true-up" of costs already
billed and collected.
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40.46 CAGED AND CAGELESS COLLOCATION INTERVALS
Executed Schedule of Collocation Establishment Calendar Days
(1) Receipt of Collocation Application Form and Day 1
Co-provider Information Form from the CLEC with
Interim Collocation Agreement
(2) Feasibility Phase include determination Day 10
of the type of Collocation required and space
availability.
(3) Quote Phase includes providing dollar Day 35
quotes for the type of Collocation facilities
provided.
(4) Approval Phase allows for ATI to Day 36 - 65
review and approve the Quote.
(5) Engineering and Installation Phase Ninety (90)
days after
receipt of
ATTI's
approval and
receipt of
50% down
payment.
42. Number Portability
42.1 Interim Number Portability (INP)
42.1.1 General Terms
(a) The Parties shall provide Interim Number Portability
("INP") on a reciprocal basis to the extent technically
feasible.
(b) Until permanent number portability is implemented by the
industry pursuant to regulations issued by the FCC or
the Commission, the Parties agree to provide INP to each
other through Remote Call Forwarding, Direct Inward
Dialing, or other appropriate means as agreed to by the
Parties.
(c) Once permanent number portability is implemented
pursuant to FCC or Commission regulation, either Party
may withdraw, at any time and at its sole discretion,
its INP offerings, subject to advance notice to the
other Party with sufficient time to allow for
coordination to allow the seamless and transparent
conversion of INP Customer numbers to permanent number
portability. Upon implementation of permanent number
portability pursuant to FCC regulations, both Parties
agree to conform and provide such permanent number
portability. The Parties agree to expeditiously convert
Customers from INP to permanent number
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Part A
portability, provided that the interim service is not
removed until the Customer has been converted.
(d) U S WEST will update and maintain its Line Information
Database ("LIDB") listings for numbers retained by ATTI
and its Customer, and restrict or cancel calling cards
associated with these forwarded numbers as directed by
ATTI. Further, U S WEST will not block third party and
collect calls to those numbers unless requested by ATTI.
(e) The ordering Party shall specify, on a per telephone
number basis which method of INP is to be employed and
the providing Party shall provide such method to the
extent technically feasible.
(f) Where either Party has activated an entire NXX, or
activated a substantial portion of an NXX with the
remaining numbers in that NXX either reserved for future
use or otherwise unused, if these Customer(s) choose to
receive service from the other Party, the first Party
shall cooperate with the second Party to have the entire
NXX reassigned in the LERG (and associated industry
databases, routing tables, etc.) to an End Office
operated by the second Party. Such transfer will be
accomplished with appropriate coordination between the
Parties and subject to appropriate industry lead-times
for movement of NXXs from one switch to another.
42.1.2 Description Of Service
(a) Interim Number Portability Service ("INP") is a service
arrangement that can be provided by U S WEST to ATTI or
by ATTI to U S WEST.
(b) INP applies to those situations where an end-user
Customer elects to change service providers, and such
Customer also wishes to retain its existing or reserved
telephone number(s). INP consists of providing the
capability to route calls placed to telephone numbers
assigned to one Party's switches to another Party's
switches.
(c) INP is available as INP-Remote Call Forwarding
("INP-RCF") permitting a call to a U S WEST assigned
telephone number to be translated to ATTI's dialable
local number. ATTI may terminate the call as desired.
Additional capacity for simultaneous call forwarding is
available where technically feasible on a per path
basis. ATTI will need to specify the number of
simultaneous calls to be forwarded for each number
ported.
(d) DID is another INP method that makes use of direct
inward dialing trunks. Each DID trunk group used for INP
is dedicated to carrying DID INP traffic between the U S
WEST end office and the ATTI switch. Traffic on these
trunks cannot overflow to other trunks, so the number of
trunks shall be conservatively engineered by U S WEST.
Also, inter-switch signaling is usually limited to
multi-frequency (MF). This precludes passing Calling
Line ID to the ATTI switch.
(e) RI-PH will route a dialed call to the U S WEST switch
associated with the NXX of the dialed number. The U S
WEST switch shall then insert a prefix onto the dialed
number which identifies how the call is to be routed to
ATTI. The prefixed dialed number is transmitted to the
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Part A
U S WEST tandem switch to which ATTI is connected. Route
indexing is only available with seven (7) digit local
dialing.
(f) The prefix is removed by the operation of the tandem
switch and the dialed number is routed to ATTI's switch
so the routing of the call can be completed by ATTI.
i. DN-RI is a form of RI-PH that requires direct
trunking between the U S WEST switch to which the
ported number was originally assigned and the ATTI
switch to which the number has been ported. The
U S WEST switch shall send the originally dialed
number to the ATTI switch without a prefix.
ii. U S WEST shall provide RI-PH or DN-RI on an
individual telephone number basis, as designated
by ATTI. Where technically feasible, calls to
ported numbers are first directed to the ATTI
switch over direct trunks but may overflow to
tandem trunks if all trunks in the direct group
are occupied.
iii. For both RI-PH and DN-RI the trunks used may, at
ATTI's option, be the same as those used for
exchange of other local traffic with U S WEST. At
ATTI's option, the trunks shall employ SS7 or in
band signaling and may be one way or two way.
(g) INP is subject to the following restrictions:
i. An INP telephone number may be assigned by ATTI
only to ATTI's Customers located within U S WEST's
local calling area and toll rating area that is
associated with the NXX of the ported number. This
is to prevent the possibility of Customers using
number portability to extend the local calling
area.
ii. INP is applicable only if ATTI is engaged in a
reciprocal traffic exchange arrangement with U S
WEST.
iii. INP is not offered for NXX Codes 555, 976, 960 and
1+ sent-paid telephones, and Service Access Codes
(i.e., 500, 700, 800/888, 900). INP is not
available for FGA seven-digit numbers (including
foreign exchange (FEX), FX and FX/ONAL and foreign
Central Office service). Furthermore, INP numbers
may only be used consistent with network
efficiency and integrity, i.e., inhibitions on
mass calling events.
iv. The ported telephone number will be returned to
the switch which originally had the ported number
when the ported service is disconnected. The
normal intercept announcement will be provided by
the porting company for the period of time until
the telephone number is reassigned.
v. Within thirty (30) days after the Effective Date
of this Agreement, U S WEST shall provide ATTI a
list of those features that are not available for
INP telephone numbers due to technical
limitations.
42.1.3 Ordering and Maintenance
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Part A
(a) ATTI is responsible for all direct interactions with
ATTI's end users with respect to ordering and
maintenance.
(b) U S WEST shall exchange with ATTI SS7 TCAP messages as
required for the implementation of Custom Local Area
Signaling Services (CLASS) or other features available
in the U S WEST network.
(c) Each Party's designated INP switch must return answer
and disconnect supervision to the other Party's switch.
(d) U S WEST shall disclose to ATTI any technical or
capacity limitations that would prevent use of a
requested INP in a particular switching office.
(e) The Parties will develop and implement an efficient
deployment process to ensure call routing integrity for
toll and local calls, with the objective to eliminate
Customer downtime.
(f) For INP, ATTI shall have the right to use the existing
U S WEST 911 infrastructure for all 911 capabilities.
When RCF is used for ATTI subscribers, both the ported
numbers and shadow numbers shall be stored in the ALI
databases. ATTI shall have the right to verify the
accuracy of the information in the ALI databases via
direct connection to the SCC ALI database pursuant to
the same process and procedures SCC makes available to
U S WEST.
42.2 Permanent Number Portability (PNP)
42.2.1 Upon implementation of Permanent Number Portability (PNP)
pursuant to FCC regulations, both Parties agree to conform and
provide such Permanent Number Portability. To the extent
consistent with the FCC rules as amended from time to time,
the requirements for PNP shall include the following:
42.2.2 Subscribers must be able to change local service providers and
retain the same telephone number(s) consistent with FCC rules and
regulations.
42.2.3 The PNP network architecture shall not subject alternate
local exchange carriers to any degradation of service compared
to U S WEST in any relevant measure, including transmission
quality, switching and transport costs, increased call setup
time and post-dial delay, and ATTI shall not be required to
rely on the U S WEST network for calls completing to its
ported Customers.
42.2.4 When an office is equipped with PNP, in accordance with the
procedures specified by the North American Numbering Council,
the NXXs in the office shall be defined as portable and
translations will be changed in the Parties' switches to open
those NXXs for database queries.
42.2.5 When an NXX is defined as portable, it shall also be defined
as portable in all PNP-capable offices which have direct
trunks to the given switch.
42.2.6. Upon introduction of PNP in a Metropolitan Statistical Area
("MSA"), the applicable switches will be converted according
to a published schedule with no unreasonable delay. All
portable NXXs shall be recognized as portable, with queries
launched from these switches.
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Part A
42.2.7 Prior to implementation of PNP, the Parties agree to develop,
implement, and maintain efficient methods to maintain 911
database integrity when a subscriber ports to another service
provider. The Parties agree that the Customer should not be
dropped from the 911 database during the transition.
42.2.8 When a subscriber ports to another service provider and has
previously secured a reservation of line numbers from the
donor provider for possible activation at some future point,
these reserved but inactive numbers shall "port" along with
the active numbers being ported by the subscriber. So long as
ATTI maintains the reserved numbers, U S WEST shall not
reassign said numbers. The Parties will allocate the revenue
generated from number reservations in accordance with a
schedule to be mutually agreed upon by the Parties within
ninety (90) days of the Effective Date of this Agreement.
42.2.9 During the process of porting a subscriber, the donor service
provider shall implement the 10-Digit trigger feature when the
technology is made available in each switch in accordance with
the schedules adopted by the FCC. When the donor provider
receives the porting request, the unconditional trigger shall
be applied to the subscriber's line at the time that has been
agreed to via the Western Region LNP Operations Guidelines in
order to overcome donor network time delays in the
disconnection of the subscriber. Alternatively, when an
activation notice is sent to an NPAC to trigger a broadcast to
service provider databases, the donor switch shall have its
translations changed to disconnect the subscriber's line
within thirty (30) minutes or less after the donor network
Local SMS's has received the broadcast. Porting requests that
require coordination between service providers in accordance
with the guidelines, will be handled on a case-by-case basis
and will not be covered by the above.
42.2.10 Both ATTI and U S WEST shall:
(a) support all emergency and operator services.
(b) use scarce numbering resources efficiently and
administer such resources in a competitively neutral
manner.
(c) jointly cooperate with each other to provide the
information necessary to rate and bill all types of
calls.
(d) jointly cooperate with each other to apply PNP
consistently on a nationwide basis, and in accordance
with all FCC directives.
42.2.11 A ten-digit code, consistent with the North American
Numbering Plan, shall be used as a network address for each
switch that terminates subscriber lines, i.e., an end office.
This address shall support existing six-digit routing and may
be implemented without changes to existing switch routing
algorithms. In existing end offices, this address shall be
selected from one of its existing NPA-NXXs. New end offices
shall be assigned an address through normal administrative
processes.
42.2.12 PNP employs an "N-1" (N minus 1) Query Strategy for
interLATA or intraLATA toll calls, by which the originating
carrier will pass the call to the appropriate toll carrier who
will perform a query to an external routing database and
efficiently route the call to the appropriate terminating
local carrier either directly or through an access tandem
office.
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42.2.13 U S WEST shall furnish ATTI with the first six (6) digits of
the originating address when it supplies ATTI with the
Jurisdiction Information Parameter for the originating address
message.
42.2.14 U S WEST agrees to begin the introduction of PNP to end user
subscribers who may begin changing local service providers and
retaining their existing telephone number based on the time
line set out by the FCC in its Telephone Number Portability
Order (CC Docket No. 95-116), or in accordance with a
Commission order if such time for introduction of PNP set by
the Commission is earlier than would result under the FCC
Order.
42.2.15 The generic requirements for the PNP alternative will be
implemented in accordance with industry-standard
specifications.
42.2.16 For a local call to a ported number, the originating carrier
is the "N-1" carrier. It will perform an external database
query as soon as the call reaches the first PNP-capable switch
in the call path and pass the call to the appropriate
terminating carrier. A PNP-capable originating switch shall
query on a local call to a portable NXX as soon as it
determines that it (the originating switch) does not serve the
dialed number.
42.2.17 U S WEST shall be the default carrier for database queries
where ATTI is unable to perform its own query due to abnormal
conditions. ATTI shall be the default carrier for database
queries where U S WEST is unable to perform its own query due
to abnormal conditions.
42.2.18 U S WEST will provide ATTI PNP for subscribers moving to a
different location, or staying at the same location, within
the same rate center area.
42.2.19 U S WEST will work cooperatively with other local service
providers to establish the Western Region Number Portability
Administration Center / Service Management System (SMS). The
SMS shall be administered by a neutral third party to provide
for the efficient porting of numbers between carriers. There
must be one (1) exclusive NPAC per portability State or
region, and U S WEST shall provide all information uploads and
downloads regarding ported numbers to/from, respectively, the
exclusive NPAC. U S WEST and ATTI shall cooperate to
facilitate the expeditious deployment of PNP through the
process prescribed by the FCC, including, but not limited to,
participation in the selection of a neutral third party and
development of SMS, as well as SMS testing for effective
procedures, electronic system interfaces, and overall
readiness for use consistent with that specified for
provisioning in this Agreement.
42.3 Requirements for INP and NP
42.3.1 (Intentionally left blank for numbering consistency)
42.3.2 Cut-Over Process
The Parties shall cooperate in the process of porting numbers
from one carrier to another so as to limit service outage for
the ported subscriber. This shall include, but not be limited
to, each Party updating its respective network element
translations within fifteen (15) minutes following
notification by the industry SMS, or ported-to local service
provider, and deploying such temporary translations as may be
required to minimize service outage, e.g., unconditional
54
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Part A
triggers. In addition, ATTI shall have the right to determine
who initiates the order for INP in specific cut-over
situations. The time frames in this paragraph shall be
pursuant to Generic Requirements for SCP Application and GTT
Function for Number Portability, Issue 0.99, January 6, 1997
and subsequent versions which may be adopted from time to
time. The Parties shall cooperate to review, and, if
necessary, adjust the above time frame based on their actual
experiences.
42.3.3 Testing
U S WEST and ATTI shall cooperate in conducting ATTI's testing
to ensure interconnectivity between systems. U S WEST shall
inform ATTI of any system updates that may affect the ATTI
network and U S WEST shall, at ATTI's request, perform tests
to validate the operation of the network. Additional testing
requirements may apply as specified by this Agreement.
42.3.4 Engineering and Maintenance
(a) U S WEST and ATTI will cooperate to ensure that
performance of trunking and signaling capacity is
engineered and managed at levels which are at least the
same level of service as provided by U S WEST to its
subscribers and to ensure effective maintenance testing
through activities such as routine testing practices,
network trouble isolation processes and review of
operational elements for translations routing and
network fault isolation.
(b) Additional specific engineering and maintenance
requirements shall apply as specified in this Agreement.
42.3.5 Recording and Billing
The Parties shall provide each other with accurate billing and
subscriber account record exchange data necessary for billing
their subscribers whose numbers have been ported.
42.3.6 Operator Services and Directory Assistance
With respect to operator services and directory assistance
associated with NP for ATTI subscribers, U S WEST shall
provide the following:
(a) While INP is deployed and prior to conversion to PNP:
i. The Parties acknowledge that technology, as of the
Effective Date of this Agreement, does not permit
the provision of BLV/BLI to ported numbers. When
such becomes available in the U S WEST network,
such technology shall be made available to ATTI.
ii. U S WEST shall allow ATTI to order provisioning of
Telephone Line Number (TLN) calling cards and
Billed Number Screening (BNS), in its LIDB, for
ported numbers, as specified by ATTI, U S WEST
shall continue to allow ATTI access to its LIDB.
Other LIDB provisions are specified in this
Agreement.
iii. Where U S WEST has control of Directory Listings
for NXX codes containing ported numbers, U S WEST
shall maintain entries for
55
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Part A
ported numbers as specified by ATTI in accordance
with the Listings Section of this Agreement.
(b) When PNP is in place:
i. The provisions in Section 42.3.6 preceding, shall
apply when PNP is in place.
ii. If Integrated Services Digital Network User Part
(ISUP) signaling is used, U S WEST shall provide
the Jurisdiction Information Parameter in the SS7
Initial Address Message. (See Generic Switching
and Signaling Requirements for Number Portability,
Issue 1.0, February 12, 1996 (Editor- Lucent
Technologies, Inc.)).
iii. The Parties shall provide, when received from the
NPAC, a 10-Digit Global Title Translation (GTT)
Node for routing queries for TCAP-based operator
services (e.g., LIDB). The acquiring company will
provide the GTT to the NPAC. The NPAC will
distribute this information to the donor company
and all other parties.
iv. U S WEST OSS shall meet all requirements specified
in "Generic Operator Services Switching
Requirements for Number Portability," Issue 1.1,
June 20, 1996, as updated from time to time.
43. Dialing Parity
43.1 The Parties shall provide dialing parity to each other as required
under Section 251(b)(3) of the Act or state law or regulation as
appropriate. This Agreement does not impact either Party's ability
to default intraLATA toll via a specific dialing pattern until
otherwise required by the Act or the Commission.
43.2 U S WEST shall ensure that all ATTI Customers experience the same
dialing parity as similarly-situated Customers of U S WEST services,
such that, for example for all call types: (a) an ATTI Customer is
not required to dial any greater number of digits than a
similarly-situated U S WEST Customer; and (b) the ATTI Customer may
retain its local telephone number, so long as the Customer continues
receiving service in the same central office serving area.
44. Directory Listings
The publication of directories, Directory Listings, directory databases
and associated related services shall be governed by the terms and
conditions contained within Docket No. UT-941464 & UT-94146. To the extent
not inconsistent therewith, the following Section 44 shall apply.(19)
44.1 Directory Listings General Requirements
44.1.1 This Section 44 pertains to Directory Listings requirements
for the appearance of ATTI end user Directory Listings in
directory assistance service or directory product.
- ----------
(19) Per AT&T Order at page 32, Issues 66-67.
56
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Part A
44.1.2 U S WEST shall include in its master Directory Listing
database all list information for ATTI Customers.
44.1.3 U S WEST shall not sell or license, nor allow any third
party, the use of ATTI Customer Listings without the prior
written consent of ATTI. U S WEST shall not disclose nor allow
any third party to disclose non-listed name or address
information for any purpose other than what may be necessary
to complete directory distribution.
44.1.4 ATTI Customer Listings in the U S WEST Directory Assistance
database and Directory Listing database shall be co-mingled
with Listings of U S WEST and other CLEC Customers.
44.1.5 Each ATTI Customer Primary Listing shall be provided, at no
charge, the same white page listings that U S WEST provides
its Customers.
44.1.6 Each ATTI business Customer Primary Listing shall be
provided, at no charge, the same yellow page classified
courtesy Listings that U S WEST provides its Customers.
44.1.7 U S WEST shall also ensure that its directory publisher
publishes all types of Listings for ATTI Customers that are
available to U S WEST Customers under the same terms, and
conditions, including but not limited to:
(a) Foreign Listings
(b) Reference Listings
(c) Information Listings
(d) Alternate call Listings
(e) Multi-line Listings
(f) Multi-line/Multi-owner Listings
44.1.8 ATTI end user Listings properly identified by ATTI as Local,
State, and Federal government Listings shall be appropriately
coded in the U S WEST Directory Listing database. U S WEST
will provide government code information to ATTI.
44.1.9 The listing and handling of ATTI listed and non-listed
telephone numbers shall be at least at parity with that
provided by U S WEST to its own Customers, including ATTI
customers who have ported telephone numbers from U S WEST.
44.1.10 U S WEST shall ensure that its directory publisher publishes
ATTI sales, service, billing, and repair information for
business and residential Customers, along with the ATTI logo
in the customer information/guide pages of each directory at
no charge to ATTI.
44.1.11 U S WEST is responsible for maintaining Listings, including
entering, changing, correcting, rearranging and removing
listings in accordance with ATTI orders. Upon request, and at
least one (1) month prior to a given white page directory
close, a method of reviewing and correcting Listings will be
provided.
44.1.12 (Deleted per Arbitrator's Recommendations.)(20)
- ----------
(20) Per AT&T Recommendations at page 10, Issue 135.
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Part A
44.1.13 U S WEST will permit ATTI Customers to place orders for
Premium Listings and privacy listings. ATTI will be charged
for Premium Listings and privacy listings at U S WEST's
general exchange tariff rates less the wholesale discount
rate. The Premium and privacy listing charges will be billed
to ATTI and itemized at the telephone number sub-account
level.
44.1.14 U S WEST shall ensure a third party distributes appropriate
alphabetical and classified directories (white and yellow
pages) and recycling services to ATTI Customers at parity with
U S WEST end users, including providing directories, a) upon
establishment of new service; b) during annual mass
distribution; and c) upon Customer request.
44.1.15 At no charge, U S WEST shall ensure that its directory
publisher prominently indicates on each directory cover that
the directory includes the Listings of all Customers without
regard to which company serves them.(21)
44.1.16 U S WEST will provide the option of having Centrex users
listed when ATTI purchases Centrex-type services for resale.
44.2 Scope
44.2.1 ATTI grants U S WEST a non-exclusive license to incorporate
Listings information into its Directory Assistance database.
ATTI shall select one of two options for U S WEST's use of
Listings and dissemination of Listings to third parties.
EITHER:
a. Treat the same as U S WEST's end user Listings -- No
prior authorization is needed for U S WEST to release
Listings to directory publishers or other third parties.
U S WEST will incorporate Listings information in all
existing and future Directory Assistance applications
developed by U S WEST. ATTI authorizes U S WEST to sell
and otherwise make Listings available to directory
publishers. Listings shall not be provided or sold in
such a manner as to segregate end users by carrier.
OR:
b. Restrict to U S WEST's Directory Assistance Service --
Prior authorization required from ATTI for all other
uses. ATTI makes its own, separate agreements with U S
WEST, third Parties and directory publishers for all
uses of its Listings beyond DA. U S WEST will sell or
provide Listings to directory publishers (including U S
WEST's publisher affiliate) or other third Parties only
after the third party presents proof of ATTI's
authorization. Listings shall not be provided or sold in
such a manner as to segregate end users by carrier.
- ----------
(21) Per AT&T Recommendations at page 10, Issue 135. Modified per AT&T Approval
at page 5, paragraph 6 and page 13, paragraph D.
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Part A
c. U S WEST shall be entitled to retain all revenue
associated with any sales pursuant to subparagraphs (a)
and (b) above.(22)
44.2.2 To the extent that state tariffs limit U S WEST's liability
with regard to Listings, the applicable state tariff(s) is
incorporated herein and supersedes Section 19, "Limitation of
Liability", of this Agreement with respect to Listings only.
Nothing contained in this section shall limit either Party's
liability to the other for willful or intentional misconduct,
including gross negligence.(23)
44.3 U S WEST will take reasonable steps in accordance with industry
practices to accommodate non-published and non-listed Listings
provided that ATTI has supplied U S WEST the necessary privacy
indicators on such Listings.
44.4 ATTI Responsibilities
44.4.1 ATTI agrees to provide to U S WEST its end user names,
addresses and telephone numbers in a standard mechanized
format, as utilized by U S WEST.
44.4.2 ATTI will supply its ACNA/CIC or CLCC/OCN, as appropriate,
with each order to provide U S WEST the means of identifying
listings ownership.
44.4.3 ATTI represents the end user information provided to U S WEST
is accurate and correct. ATTI further represents that it has
reviewed all listings provided to U S WEST, including end user
requested restrictions on use such as non-published and
non-listed.
44.4.4 ATTI is responsible for dealings with and on behalf of ATTI's
end users on the following subjects:
a) All end user account activity, e.g., end user queries
and complaints.
b) All account maintenance activity, e.g., additions,
changes, issuance of orders for Listings to U S WEST.
c) Determining privacy requirements and accurately coding
the privacy indicators for ATTI's end user information.
If end user information provided by ATTI to U S WEST
does not contain a privacy indicator, no privacy
restrictions will apply.
45. Directories
The publication of directories, Directory Listings, directory databases
and associated related services shall be governed by the terms and
conditions contained within Docket No. UT-941464 & UT-94146.(24)
- ----------
(22) Per AT&T Recommendations at page 11, Issue 62.
(23) Per AT&T Recommendations at page 12, Issue 63.
(24) Per AT&T Order at page 32, Issues 66-67.
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Part A
46. U S WEST Dex Issues
U S WEST and ATTI agree that certain issues, such as yellow page
advertising, directory distribution, access to call guide pages, and
yellow page listings, will be the subject of negotiations between ATTI and
directory publishers, including U S WEST Dex. U S WEST acknowledges that
ATTI may request U S WEST to facilitate discussions between ATTI and U S
WEST Dex.
47. Access to Poles, Ducts, Conduits, and Rights of Way
47.1 U S WEST shall provide ATTI equal and non-discriminatory access to
poles, space, ducts, conduit, entrance facilities, ROW and any other
pathways on terms and conditions equal to that provided by U S WEST
to itself or to any other Person. Further, U S WEST shall not
preclude or delay allocation of these facilities to ATTI because of
the potential needs of itself or of any other Person except a
maintenance spare may be retained as described below. (25)
47.2 U S WEST warrants that it will provide to ATTI nondiscriminatory
access to poles, pole attachments, ducts, inner ducts, conduits,
building entrance facilities, building entrance links, equipment
rooms, remote terminals, cable vaults, telephone closets, building
risers, ROW, and other pathways owned or controlled by U S WEST,
using capacity currently available or that can be made available. U
S WEST shall have the full burden of proving that such access is not
technically feasible. To the extent U S WEST proves infeasibility, U
S WEST shall be required to provide to ATTI alternative suitable
access which will not impair ATTI's ability to provide its
Telecommunications Services. Such alternative access shall be
technically equivalent to the requested access and shall be subject
to the same terms, conditions and price as the requested access.(26)
47.3 Definitions
"Poles, ducts, conduits and ROW" refer to all the physical
facilities and legal rights which provide for access to pathways
across public and private property. These include poles, pole
attachments, ducts, innerducts, conduits, building entrance
facilities, building entrance links, equipment rooms, remote
terminals, cable vaults, telephone closets, building risers,
rights-of-way, or any other requirements needed to create pathways.
These pathways may run over, under, across or through streets,
traverse private property, or enter multi-unit buildings. A
Right-of-Way ("ROW") is the right to use the land or other property
owned, leased, or controlled by any means by U S WEST to place
poles, ducts, conduits and ROW or to provide passage to access such
poles, ducts, conduits and ROW. A ROW may run under, on, or above
public or private property (including air space above public or
private property) and shall include the right to use discrete space
in buildings, building complexes, or other locations.
- ----------
(25) Per AT&T Order at pages 28-29, Issues 53-54.
(26) Per AT&T Order at page 29, Issue 55.
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47.4 Requirements
47.4.1 U S WEST shall make poles, ducts, conduits and ROW available
to ATTI upon receipt of a request for use within the time
periods provided in this Section, providing all information
necessary to implement such a use and containing rates, terms
and conditions, including, but not limited to, maintenance and
use in accordance with this Agreement and at least equal to
those which it affords itself, its Affiliates and others.
Other users of these facilities, including U S WEST, shall not
interfere with the availability or use of the facilities by
ATTI.
47.4.2 Within ten (10) Business Days of ATTI's request for specific
poles, ducts, conduits, or ROW, U S WEST shall provide any
information in its possession or available to it regarding the
environmental conditions of such requested poles, ducts,
conduits or ROW route or location including, but not limited
to, the existence and condition of asbestos, lead paint,
hazardous substance contamination, or radon. Information is
considered "available" under this Agreement if it is in U S
WEST's possession or files, or the possession of an agent,
contractor, employee, lessor, or tenant of U S WEST's that
holds such information on U S WEST's behalf. If the poles,
ducts, conduits or ROW contain such environmental
contamination, making the placement of equipment hazardous, U
S WEST shall offer alternative poles, ducts, conduits or ROW
for ATTI's consideration. U S WEST shall allow ATTI to perform
any environmental site investigations, including, but not
limited to, Phase I and Phase II environmental site
assessments, as ATTI may deem to be necessary.
47.4.3 U S WEST shall not prevent or delay any third party
assignment of ROW to ATTI.
47.4.4 U S WEST shall offer the use of such poles, ducts, conduits
and ROW it has obtained from a third party to ATTI, to the
extent such agreement does not prohibit U S WEST from granting
such rights to ATTI. They shall be offered to ATTI on the same
terms as are offered to U S WEST. (27) U S WEST shall exercise
its eminent domain power and assist ATTI in obtaining licenses
when necessary to accommodate ATTI's request for access to
ROW. (28) If U S WEST exercises its eminent domain authority
on behalf of ATTI at ATTI's request, then ATTI shall reimburse
U S WEST for U S WEST's reasonable costs, if any, incurred as
a result of such exercise of its eminent domain authority.
47.4.5 (Intentionally left blank for numbering consistency)
47.4.6 U S WEST shall not attach, or permit other entities to attach
facilities on, within or overlashed to existing ATTI
facilities without ATTI's prior written consent.
47.4.7 U S WEST agrees to provide current detailed engineering and
other plant records and drawings for specific requests for
poles, ducts, conduits and ROW, including facility route maps
at a city level, and the fees and expenses incurred in
providing such records and drawings, on the earlier of twenty
(20) Business Days from ATTI's request or the time within
which U S WEST provides this information to itself or any
other Person. Such information shall be of equal type
- ----------
(27) Per AT&T Order at pages 29-30, Issue 56.
(28) Per AT&T Order at pages 29-30, Issue 56.
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Part A
and quality as that which is available to U S WEST's own
engineering and operations staff. U S WEST shall also allow
personnel designated by ATTI to jointly examine with U S WEST
personnel, at no cost to ATTI for such personnel, such
engineering records and drawings for a specific routing at U S
WEST Central Offices and U S WEST Engineering Offices upon ten
(10) days' written notice to U S WEST. U S WEST acknowledges
that the request for information and the subject matter
related to the request made under this Section shall be
treated as Proprietary Information.
47.4.8 U S WEST shall provide to ATTI a Single Point of Contact for
negotiating all structure lease and ROW Agreements.
47.4.9 U S WEST shall provide information regarding the availability
and condition of poles, ducts, conduits and ROW within five
(5) business days of ATTI' s request if the information then
exists in U S WEST's records (a records based answer) and
within twenty (20) Business Days of ATTI's request if U S WEST
must physically examine the poles, ducts, conduits and ROW (a
field based answer) ("Request"). ATTI shall have the option to
be present at the field based survey and U S WEST shall
provide ATTI at least twenty-four (24) hours' notice prior to
the start of such field survey. During and after this period,
U S WEST shall allow ATTI personnel to enter manholes and
equipment spaces and view pole structures to inspect such
structures in order to confirm usability or assess the
condition of the structure. U S WEST shall send ATTI a written
notice confirming availability pursuant to the Request within
such twenty (20) day period ("Confirmation").
47.4.10 For the period beginning at the time of the Request and
ending ninety (90) days following Confirmation, U S WEST shall
reserve such poles, ducts, conduits and ROW for ATTI and shall
not allow any use thereof by any Party, including U S WEST.
ATTI shall elect whether or not to accept such poles, ducts,
conduits and ROW within the ninety (90) day period following
Confirmation. ATTI may accept such facilities by sending
written notice to U S WEST ("Acceptance"). If ATTI requests
reservation of poles, ducts, conduits or ROW, U S WEST may
charge a reservation fee in an amount mutually agreed upon by
the Parties. ATTI's obligation to pay a reservation fee shall
begin on the date of the Confirmation. If the Parties are
unable to agree on a reasonable reservation fee, the fee shall
be established pursuant to the dispute resolution process in
Section 27 of Part A of this Agreement.(29)
47.4.11 Reservation. After Acceptance by ATTI, ATTI shall have six
(6) months to begin attachment and/or installation of its
facilities to the poles, ducts, conduits and ROW or request U
S WEST to begin make ready or other construction activities.
Any such construction, installation or make ready by ATTI
shall be completed by the end of one (1) year after
Acceptance. ATTI shall not be in default of the 6-month or
1-year requirement above if such default is caused in any way
by any action, inaction or delay on the part of U S WEST or
its Affiliates or subsidiaries.
- ----------
(29) Per AT&T Recommendations at page 16, Issue 70.
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47.4.12 Make Ready. U S WEST shall rearrange, modify and/or make
ready existing poles, ducts, conduits and ROW where necessary
and feasible to provide space for ATTI's requirements. Subject
to the requirements above, the Parties shall endeavor to
mutually agree upon the time frame for the completion of such
work within five (5) days following ATTI's request; provided,
however, that any such work required to be performed by U S
WEST shall be completed within sixty (60) days or a reasonable
period of time based on standard construction intervals in the
industry, unless otherwise agreed by ATTI in writing.
47.4.13 New Construction. After Acceptance, U S WEST shall complete
any new construction, relocation or installation of poles,
ducts, conduits or ROW required to be performed by U S WEST or
any U S WEST construction, relocation or installation
requested by ATTI within a reasonable period of time based on
standard construction intervals in the industry or sixty (60)
days after obtaining all governmental authority or permits
necessary to complete such construction, relocation or
installation. If U S WEST anticipates that construction,
relocation or installation will go beyond standard industry
intervals or the sixty (60) day period, U S WEST shall
immediately notify ATTI and the Parties shall mutually agree
on a completion date.
47.4.14 ATTI shall begin payment for the use of newly constructed
poles, ducts, conduits, and ROW upon completion of such
construction and installation and confirmation by appropriate
testing methods that the facilities are in a condition ready
to operate in ATTI's network or upon use (other than for
testing) by ATTI, whichever is earlier.
47.4.15 ATTI shall make payment for construction, relocation,
rearrangements, modifications and make ready in accordance
with Section 3.5 of Attachment 1 of this Agreement.
47.4.16 ATTI shall begin payment for the use of existing poles,
ducts, conduits and ROW upon the date of its timely
Acceptance. If ATTI fails to send a timely Acceptance, its
reservation shall be released.(30)
47.4.17 ATTI may, at its option, install its facilities on poles,
ducts, conduits and ROW and use ATTI or ATTI designated
personnel to attach its equipment to such U S WEST poles,
ducts, conduits and ROW.
47.4.18 If available, U S WEST shall provide ATTI space in manholes
for racking and storage of cable and other materials as
requested by ATTI.
47.4.19 U S WEST shall rearrange, modify and/or make ready any
conduit system or poles with retired cable by removing such
retired cable from conduit systems or poles to allow for the
efficient use of conduit space and pole space. U S WEST shall
take all reasonable steps to expand its facilities to
accommodate ATTI's request, and shall do so in accordance with
the time frames set forth in this Section 47(31) Before
denying access based on a lack of capacity, U S WEST must
explore potential accommodations with ATTI.
- ----------
(30) Per AT&T Recommendations at pages 16-17, Issue 155.
(31) Per AT&T Recommendations at page 17, Issue 156.
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47.4.20 Where U S WEST has innerducts which are not, at that time,
being used or are not reserved as emergency or maintenance
spare in accordance with FCC rules and regulations, U S WEST
shall offer such ducts for ATTI's use. U S WEST shall not
reserve more than one inner duct in any conduit cross section
for emergency purposes. Where only two inner ducts remain
available (including an emergency spare), U S WEST shall offer
ATTI the use of at least one inner duct.(32)
47.4.21 Where a spare innerduct does not exist, U S WEST shall allow
ATTI to install an innerduct in U S WEST conduit, at ATTI's
cost and expense. U S WEST must review and approve any
installation of inner duct in any U S WEST's duct prior to the
start of construction. Such approval shall not be unreasonably
delayed, withheld or conditioned. ATTI shall provide notice to
U S WEST of any work activity not less than twenty-four (24)
hours prior to the start of construction.
47.4.22 Where U S WEST has any ownership or other rights to ROW to
buildings or building complexes, or within buildings or
building complexes, U S WEST shall offer such ROW to ATTI:
(a) Subject to the approval of the building owner, if
required, the right to use any available space owned or
controlled by U S WEST in the building or building
complex to install ATTI equipment and facilities;
(b) Subject to the approval of the building owner, if
required, ingress and egress to such space; and
(c) Subject to the approval of the building owner, if
required, the right to use electrical power at parity
with U S WEST's rights to such power.
47.4.23 Whenever U S WEST intends to modify or alter any poles,
ducts, conduits or ROW which contain ATTI's facilities, U S
WEST shall provide written notification of such action to ATTI
so that ATTI may have a reasonable opportunity to add to or
modify its facilities. ATTI shall advise U S WEST, in writing,
of its intentions to add or modify the facilities within
fifteen (15) Business Days of U S WEST's notification. If ATTI
adds to or modifies its facilities according to this
paragraph, ATTI shall bear a proportionate share of the costs
incurred by U S WEST in making such facilities accessible.
47.4.24 ATTI shall not be required to bear any of the costs of
rearranging or replacing its facilities, if such rearrangement
or replacement is required as a result of an additional
attachment or the modification of an existing attachment
sought by any entity other than ATTI, including U S WEST.
47.4.25 U S WEST shall maintain the poles, ducts, conduits and ROW
at its sole cost. ATTI shall maintain its own facilities
installed within the poles, ducts, conduits and ROW at its
sole cost. In the event of an emergency, U S WEST shall begin
repair of its facilities containing ATTI's facilities within a
reasonable time frame based on industry standards or a time
frame requested by ATTI. If U S WEST cannot begin repair
within the requested time frame, upon notice and approval of U
S WEST, which approval shall not be unreasonably withheld,
ATTI may begin such repairs without the presence of U S WEST
personnel. ATTI may climb poles and enter the manholes,
handholds, conduits and equipment spaces
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containing U S WEST's facilities in order to perform such
emergency maintenance, but only until such time as qualified
personnel of U S WEST arrives ready to continue such repairs.
For both emergency and non-emergency repairs, ATTI may use
spare innerduct or conduits, including the innerduct or
conduit designated by U S WEST as emergency spare for
maintenance purposes; provided, however, that ATTI may only
use such spare conduit or innerduct for a maximum period of
ninety (90) days.
47.4.26 In the event of a relocation necessitated by a governmental
entity exercising the power of eminent domain, when such
relocation is not reimbursable, all parties shall share pro
rata in costs for relocating the base conduit or poles and
shall each pay its own cost of cable and installation of the
facilities in the newly rebuilt U S WEST poles, ducts,
conduits and ROW.
48. Bona Fide Request Process for Further Unbundling(33)
48.1 Any request for Interconnection or access to an unbundled Network
Element not already available via price lists, tariff, or as
described herein shall be treated as a "Request" under this Section.
48.2 U S WEST shall use the Bona Fide Request ("BFR") process as
described in this Section 48, to determine the technical feasibility
of the requested Interconnection or Network Element(s) and, for
those items found to be technically feasible, to provide the terms
and timetable for providing the requested items. Additionally,
elements, services and functions which are materially or
substantially different from those services, elements or functions
already provided by U S WEST to itself, its Affiliates, Customers,
or end users may, at the discretion of ATTI, be subject to this BFR
process.
48.3 A Request shall be submitted in writing and, at a minimum, shall
include: (a) a complete and accurate technical description of each
requested Network Element or Interconnection; (b) the desired
interface specifications; (c) a statement that the Interconnection
or Network Element will be used to provide a Telecommunications
Service; (d) the quantity requested; (e) the location(s) requested;
and (f) whether ATTI wants the requested item(s) and terms made
generally available. ATTI may designate a Request as Confidential.
48.4 Within forty-eight (48) hours of receipt of a Request, U S WEST
shall acknowledge receipt of the Request and review such Request for
initial compliance with Subsection 48.3 above. In its
acknowledgment, U S WEST shall advise ATTI of any missing
information reasonably necessary to move the Request to the
preliminary analysis described in Subsection 48.5 below.
48.5 Unless otherwise agreed to by the Parties, within thirty (30)
calendar days of its receipt of the Request and all information
necessary to process it,
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U S WEST shall provide to ATTI a preliminary analysis of the
Request. As reasonably requested by ATTI, U S WEST agrees to provide
status updates to ATTI. U S WEST will notify ATTI if the quote
preparation fee, if any, will exceed $5,000. ATTI will approve the
continuation of the development of the quote prior to U S WEST
incurring any reasonable additional expenses. The preliminary
analysis shall specify whether or not the requested Interconnection
or access to an unbundled Network Element is technically feasible
and otherwise qualifies as a Network Element or Interconnection as
defined under the Act.
48.5.1 If U S WEST determines during the thirty (30) day period that
a Request is not technically feasible or that the Request
otherwise does not qualify as a Network Element or
Interconnection required to be provided under the Act, U S
WEST shall so advise ATTI as soon as reasonably possible of
that fact, and promptly provide a written report setting forth
the basis for its conclusion but in no case later than ten
(10) calendar days after making such determination.
48.5.2 If U S WEST determines during the thirty (30) day period that
the Request is technically feasible and otherwise qualities
under the Act, it shall notify ATTI in writing of such
determination no later than ten (10) calendar days after
making such determination.
48.5.3 Unless otherwise agreed to by the Parties, as soon as
feasible, but no more than ninety (90) calendar days after U S
WEST notifies ATTI that the Request is technically feasible, U
S WEST shall provide to ATTI a Request quote which will
include, at a minimum, a description of each Interconnection
and Network Element, the quantity to be provided, the
installation intervals (both initial and subsequent), the
impact on shared systems software interfaces, the ordering
process changes, the functionality specifications, any
interface specifications, and either:
(a) the applicable rates (recurring and nonrecurring),
including the amortized development costs, as
appropriate pursuant to Section 48.5.4 below, of the
Interconnection or Network Element; or
(b) the payment for development costs, as appropriate
pursuant to Section 48.5.4 below, of the Interconnection
or Network Element and the applicable rates (recurring
and nonrecurring), excluding the development costs.
48.5.4 The choice of using either option (a) or (b) above shall be
at U S WEST's sole discretion. A payment for development cost,
however, is appropriate only where ATTI is the only
conceivable user of the functionality (including consideration
of U S WEST as a
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potential user) or where the requested quantity is
insufficient to provide amortization.
48.6 If U S WEST has used option (a) above in its Request quote, then,
within thirty (30) days of its receipt of the Request quote, ATTI
must indicate its nonbinding interest in purchasing the
Interconnection or Network Element at the stated quantities and
rates, cancel it Request, or seek remedy under the dispute
resolution section of this Agreement.
48.7 If U S WEST has used option (b) above in its Request quote, then,
within thirty (30) days of its receipt of the Request quote, ATTI
must either agree to pay the development costs of the
interconnection or Network Element, cancel its Request, or seek
remedy under the dispute resolution section of this Agreement.
48.8 If U S WEST has used option (b) in its Request quote and ATTI has
accepted the quote, ATTI may cancel the Request at any time, but
will pay U S WEST's reasonable development costs of the
Interconnection or Network Element up to the date of cancellation.
48.9 U S WEST will use reasonable efforts to determine the technical
feasibility and conformance with the Act of the Request within the
first thirty-two (32) days of receiving the Request. In the event U
S WEST has used option (b) above in its Request quote and U S WEST
later determines that the Interconnection or Network Element
requested in the Request is not technically feasible or otherwise
does not qualify under the Act, U S WEST shall notify ATTI within
ten (10) Business Days of making such determination and ATTI shall
not owe any compensation to U S WEST in connection with the Request.
Any quotation preparation fees or development costs paid by ATTI to
the time of such notification shall be refunded by U S WEST.
48.10 To the extent possible, U S WEST will utilize information from
previously developed BFRs to address similar arrangements in order
to shorten the response times for the currently requested BFR. In
the event ATTI has submitted a Request for an Interconnection or a
Network Element and U S WEST determines in accordance with the
provisions of this Section 48 that the Request is technically
feasible, the Parties agree that ATTI's subsequent request or order
for the identical type of Interconnection or Network Element shall
not be subject to the BFR process. To the extent U S WEST has
deployed an identical Network Element under a previous BFR, a
subsequent BFR is not required. For purposes of this Section 48.10,
an "identical" request shall be one that is materially identical to
a previous request with respect to the information provided pursuant
to Subsections (a) through (e) of Section 48.3 above.
48.11 In the event of a dispute under this Section 48, the Parties agree
to seek expedited Commission resolution of the dispute, to be
completed within twenty (20) days of U S WEST's response denying
ATTI's BFR, and in no
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event more than thirty (30) days after the filing of ATTI's
petition. Alternatively, the Parties may mutually agree to resolve
any disputes under this section through the dispute resolution
process pursuant to Section 27, Part A of this Agreement.
48.12 All time intervals within which a response is required from one
Party to another under this Section 48 are maximum time intervals.
The Parties agree that they will provide all responses to the other
Party as soon as the Party has the information and analysis required
to respond, even if the time interval stated herein for a response
is not over.
49. Audit Process
49.1 As used herein, "Audit" shall mean a comprehensive review of
services performed under this Agreement. Either Party (the
"Requesting Party") may perform up to three (3) Audits per 12-month
period commencing with the Effective Date.
49.2 Upon thirty (30) days' written notice by the Requesting Party to the
other Party (the "Audited Party"), the Requesting Party shall have
the right, through its authorized representative, to make an Audit,
during normal business hours, of any records, accounts and processes
which contain information related to the services provided and
performance standards agreed to under this Agreement. Within the
above-described 30-day period, the Parties shall reasonably agree
upon the scope of the Audit, the documents and processes to be
reviewed, and the time, place and manner in which the Audit shall be
performed. The Audited Party agrees to provide Audit support,
including appropriate access to and use of the Audited Party's
facilities (e.g., conference rooms, telephones, copying machines).
49.3 Each Party shall bear its own expenses in connection with the
conduct of the Audit. The reasonable cost of special data
extractions required by the Requesting Party to conduct the Audit
will be paid for by the Requesting Party. For purposes of this
Section 49.3, a "Special Data Extraction" shall mean the creation of
an output record or informational report (from existing data files)
that is not created in the normal course of business. If any program
is developed to the Requesting Party's specifications and at the
Requesting Party's expense, the Requesting Party shall specify at
the time of request whether the program is to be retained by the
Audited Party for reuse for any subsequent Audit. Notwithstanding
the foregoing, the Audited Party shall pay all of the Requesting
Party's external expenses (including, without limitation, the fees
of any independent auditor), in the event an Audit results in an
adjustment in the charges or in any invoice paid or payable by the
Requesting Party hereunder in an amount that is, on an annualized
basis, more than the greater of (a) one percent (1%) of the
aggregate charges for all services purchased under this Agreement or
(b) $10,000.
49.4 Adjustments, credits or payments shall be made and any corrective
action shall commence within thirty (30) days from the Audited
Party's receipt of the final audit report to compensate for any
errors or omissions which are disclosed by such Audit and are agreed
to by the Parties. The highest interest rate allowable by law for
commercial transactions shall be assessed and shall be computed by
compounding daily from the time of the original due date of the
amount of dispute.
49.5 Neither such right to examine and audit nor the right to receive an
adjustment shall be affected by any statement to the contrary
appearing on checks or otherwise.
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49.6 This Section 49 shall survive expiration or termination of this
Agreement for a period of two (2) years after expiration or
termination of this Agreement.
49.7 All transactions under this Agreement which are over thirty-six (36)
months old are no longer subject to Audit.
49.8 All information received or reviewed by the Requesting Party or the
independent auditor in connection with the Audit is to be considered
Proprietary Information as defined by this Agreement. The Audited
Party reserves the right to require any non-employee who is involved
directly or indirectly in any Audit or the resolution of its
findings as described above to execute a nondisclosure agreement
satisfactory to the Audited Party. To the extent an Audit involves
access to information of third parties, the Audited Party will
aggregate such competitors' data before release to the Requesting
Party, to insure the protection of the proprietary nature of
information of other competitors. To the extent a competitor is an
Affiliate of the Audited Party (including itself and its
subsidiaries), the Parties shall be allowed to examine such
Affiliate's disaggregated data, as required by reasonable needs of
the Audit.
49.9 An "Examination" shall mean an inquiry reasonably requested by
either Party into a specific element of or process where the
requesting Party raises a dispute concerning services performed by
the other Party under this Agreement and such dispute has not been
resolved through the escalation process described in this Agreement.
Only that information that is necessary to resolve the dispute in
issue must be provided in the course of an Examination and the total
time involved in an Examination for each Party may not exceed three
(3) people for three (3) days and no more than 10,000 pages of
documents may be reviewed. Appropriate provisions of Section 49 that
apply to Audits shall also apply to Examinations, except that either
Party may conduct only a total of nine (9) Examinations and Audits
per year, with a maximum of three (3) Audits per year.
50. Miscellaneous Services
50.1 Basic 911 and E911 General Requirements
50.1.1 Basic 911 and E911 provides a caller access to the
appropriate emergency service bureau by dialing a 3-digit
universal telephone number (911). Basic 911 and E911 access
from Local Switching shall be provided to ATTI in accordance
with the following:
50.1.2 Each Party will be responsible for those portions of the 911
System for which it has reasonable control, including any
necessary maintenance to each Party's portion of the 911
System.
50.1.3 E911 shall provide additional routing flexibility for 911
calls. E911 shall use Customer data, contained in the
Automatic Location Identification/Data Management System
("ALI/DMS"). to determine to which Public Safety Answering
Point ("PSAP") to route the call.
50.1.4 If available in the U S WEST network, U S WEST shall offer a
third type of 911 service, S911. All requirements for E911
also apply to S911 with the exception of the type of signaling
used on the interconnection trunks from the local switch to
the E911 Tandem.
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50.1.5 Basic 911 and E911 functions provided to ATTI shall be at
least at parity with the support and services that U S WEST
provides to its Customers for such similar functionality.
50.1.6 Basic 911 and E911 access from Local Switching shall be
provided to ATTI in accordance with the following:
50.1.6.1 U S WEST shall conform to all state regulations
concerning emergency services.
50.1.6.2 For E911 provided to resold lines or in association
with unbundled switching, U S WEST shall use its service
order process to update and maintain Customer
information in the ALI/DMS data base. Through this
process, U S WEST shall provide and validate Customer
information resident or entered into the ALI/DMS data
base.
50.1.7 U S WEST shall provide for overflow 911 traffic consistent
with U S WEST policy and procedure.
50.1.8 Basic 911 and E911 access from the ATTI local switch shall be
provided to ATTI in accordance with the following:
50.1.8.1 If required by ATTI, U S WEST shall interconnect
direct trunks from the ATTI network to the E911 Tandem
for connection to the PSAP. Such trunks to the E911
Tandem may alternatively be provided by ATTI.
50.1.8.2 In government jurisdictions where U S WEST has
obligations under existing agreements as the primary
provider of the 911 System to the county, ATTI shall
participate in the provision of the 911 System as
follows:
(a) Each Party shall be responsible for those portions
of the 911 System for which it has control,
including any necessary maintenance to each
Party's portion of the 911 System.
(b) U S WEST shall be responsible for maintaining the
E-911 database.
50.1.8.3 If a third party is the primary service provider to a
government agency, ATTI shall negotiate separately with
such third party with regard to the provision of 911
service to the agency. All relations between such third
party and ATTI are totally separate from this Agreement
and U S WEST makes no representations on behalf of the
third party.
50.1.8.4 If ATTI or an Affiliate is the primary service
provider to a government agency, ATTI and U S WEST shall
negotiate the specific provisions necessary for
providing 911 service to the agency and shall include
such provisions in an amendment to this Agreement.
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50.1.8.5 Interconnection and database access shall be priced
as specified in Attachment 1 to this Agreement or at any
rate charged to other interconnected carriers, whichever
is lower.
50.1.8.6 ATTI will separately negotiate with each county
regarding the collection and reimbursement to the county
of applicable Customer taxes for 911 service.
50.1.8.7 U S WEST shall comply with established, competitively
neutral intervals for installation of facilities,
including any collocation facilities, diversity
requirements, etc.
50.1.8.8 In a resale situation, where it may be appropriate
for U S WEST to update the ALI database, U S WEST shall
update such database with ATTI data in an interval no
less than is experienced by U S WEST Customers, or than
for other carriers, whichever is faster, at no
additional cost.
50.1.9 The following are Basic 911 and E911 Database Requirements:
50.1.9.1 The ALI database shall be managed by U S WEST, but is
the property of U S WEST and any participating telephone
company and CLEC for those records provided by the
company.
50.1.9.2 U S WEST, or its agent, will be responsible for
maintaining the E911 Data Base. U S WEST, or its agent,
will provide a copy of the Master Street Address Guide
("MSAG"), and periodic updates, to ATTI.
50.1.9.3 Copies of the MSAG shall be provided within
twenty-one (21) calendar days from the time requested
and shall be provided on diskette, magnetic tape, or in
a format suitable for use with desktop computers.
50.1.9.4 ATTI assumes all responsibility for the accuracy of
the data that ATTI provides to U S WEST for MSAG
preparation and E911 Database operation.
50.1.9.5 ATTI shall be solely responsible for providing ATTI
database records to U S WEST for inclusion in U S WEST's
ALI database on a timely basis.
50.1.9.6 ATTI will provide end user data to the U S WEST ALI
database that are MSAG valid.
50.1.9.7 ATTI will update its end user records provided to the
U S WEST ALI database to agree with the 911 MSAG
standards for its service areas.
50.1.9.8 U S WEST and ATTI shall arrange for the automated
input and periodic updating of the E911 database
information related to ATTI end users for resold lines
in accordance with Section 10.1 of Attachment 2 to this
Agreement. ATTI may request, through the BFR process,
similar arrangements for ATTI customers served on a
non-resale basis. U S WEST will furnish ATTI any
variations to
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NENA recommendations required for ALI data base input.
The cost of magnetic tape transfer shall be borne by
ATTI.
50.1.9.9 U S WEST and ATTI shall arrange for the automated
input and periodic updating of the E911 database
information related to ATTI end users. For resold
services, U S WEST shall work cooperatively with ATTI to
ensure the accuracy of the data transfer by verifying it
against the MSAG. For ATTI's customers served by
unbundled Network Elements or through ATTI's own
facilities, ATTI shall ensure the accuracy of its 911
data by verifying it against the MSAG.
50.1.9.10 ATTI shall assign an E911 database coordinator
charged with the responsibility of forwarding ATTI end
user ALI record information to U S WEST or via a
third-party entity, charged with the responsibility of
ALI record transfer. ATTI assumes all responsibility for
the accuracy of the data that ATTI provides to U S WEST.
50.1.9.11 The Parties shall maintain a single point of contact
to coordinate all E911 activities under this Agreement.
50.1.9.12 For resold services, ATTI shall provide information
on new Customers to U S WEST within one (1) Business Day
of the order completion. U S WEST shall update the
database within two (2) Business Days of receiving the
data from ATTI. If U S WEST detects an error in the ATTI
provided data, the data shall be returned to ATTI within
two (2) Business Days from when it was provided to U S
WEST. ATTI shall respond to requests from U S WEST to
make corrections to database record errors by uploading
corrected records within two (2) Business Days. Manual
entry shall be allowed only in the event that the system
is not functioning properly. ATTI may request, through
the BFR process, similar services from U S WEST for
their customers who are served on a non-resale basis.
50.1.9.13 The Parties will cooperate to implement the adoption
of a Carrier Code (NENA standard five-character field)
on all ALI records received from ATTI, when those
standards, NENA-02-OON, are adopted by the industry
standards process. U S WEST will furnish ATTI any
variations from NENA recommendations required for ALI
database input. The Carrier Code will be used to
identify the carrier of record in INP configurations.
50.1.9.14 ATTI will provide end user data to the U S WEST ALI
database utilizing NENA-02-001 Recommended Formats For
Data Exchange, and Recommended Standard For Street
Thoroughfare Abbreviations and Protocols For Data
Exchange and Data Quality utilizing NENA Recommended
Formats for Data Exchange document dated June, 1993.
50.1.9.15 U S WEST shall identify which ALI databases cover
which states, counties or parts thereof, and identify
and communicate a point of contact for each.
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50.1.9.16 U S WEST will provide ATTI with the identification of
the U S WEST 911 controlling office that serves each
geographic area served by ATTI.
50.1.9.17 U S WEST shall provide to ATTI, for ATTI Customers,
E911/911 call routing to the appropriate Public Safety
Answering Point ("PSAP") for resold lines. U S WEST
shall provide and validate ATTI Customer information to
the PSAP in the same fashion as it does for its own
Customers. U S WEST shall use its service order process
to update and maintain, on the same schedule that it
uses for its end users, the ATTI Customer service
information in the ALI/DMS used to support E911/911
services. ATTI may request, through the BFR process,
similar services from U S WEST for their customers who
are served on a non-resale basis.
50.1.9.18 ATTI exchanges to be included in US WEST's E911
Database will be indicated via written notice and will
not require an amendment to this Agreement.(34)
50.1.10 The following are Basic 911 and E911 Network Requirements:
50.1.10.1 U S WEST, at ATTI's option, shall provide a minimum
of two (2) E911 trunks per jurisdictional area, or that
quantity which will maintain P.01 transmission grade of
service, or the level of service provided by U S WEST to
itself, whichever is the higher grade of service. These
trunks will be dedicated to routing 911 calls from ATTI
switch to a U S WEST E911 tandem.
50.1.10.2 U S WEST shall provide ATTI a data link to the
ALI/DMS database or permit ATTI to provide its own data
link to the ALI/DMS database. U S WEST shall provide
error reports from the ALI/DMS database to ATTI
immediately after ATTI inputs information into the
ALI/DMS database. Alternately, ATTI may utilize U S WEST
or a third party entity to enter Customer information
into the database on a demand basis, and validate
Customer information on a demand basis.
50.1.10.3 U S WEST shall provide the selective routing of E911
calls received from ATTI switching office. This includes
the ability to receive the ANI of the ATTI Customer,
selectively route the call to the appropriate PSAP, and
forward the Customer's ANI to the PSAP. U S WEST shall
provide ATTI with the appropriate CLLI codes and
specifications regarding the tandem serving area
associated addresses and meet points in the network.
50.1.10.4 Copies of E911 Tandem Boundary Maps shall be
available to ATTI. Each map shows the areas served by
that E911 tandem. The map provides ATTI the information
necessary to set up its network to route E911 callers to
the correct E911 tandem.
50.1.10.5 ATTI shall ensure that its switch provides an
eight-digit ANI consisting of an information digit and
the seven-digit exchange code. ATTI shall also ensure
that its switch provides the line
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(34) Per AT&T Order at page 34, Issue 68.
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number of the calling station. In the event of a change
in industry standards, the Parties shall cooperate to
incorporate the changed standards in their respective
networks.
50.1.10.6 Each ALI discrepancy report shall be jointly
researched by U S WEST and ATTI. Corrective action shall
be taken immediately by the responsible party.
50.1.10.7 Technical specifications for E911 network interface
are available through U S WEST technical publication
77338. Technical specifications for database loading and
maintenance are available through the third party
database manager -- SCC.
50.1.10.8 U S WEST shall begin restoration of E911 and/or E911
trunking facilities immediately upon notification of
failure or outage. U S WEST must provide priority
restoration of trunks or networks outages on the same
terms/conditions it provides itself and without the
imposition of Telecommunications Service Priority (TSP).
50.1.10.9 U S WEST shall identify any special operator-assisted
calling requirements to support 911.
50.1.10.10 Trunking shall be arranged to minimize the likelihood of
central office isolation due to cable cuts or other
equipment failures. There will be an alternate means of
transmitting a 911 call to a PSAP in the event of
failures.
50.1.10.11 Circuits shall have interoffice loop and carrier
system diversity when such diversity can be achieved
using existing facilities. Circuits will be divided as
equally as possible across available carrier systems.
Diversity will be maintained or upgraded to utilize the
highest level of diversity available in the network.
50.1.10.12 Equipment and circuits used for 911 shall be
monitored at all times. Monitoring of circuits shall be
done to the individual circuit level. Monitoring shall
be conducted by U S WEST for trunks between the tandem
and all associated PSAPs.
50.1.10.13 Repair service shall begin immediately upon receipt
of a report of a malfunction. Repair service includes
testing and diagnostic service from a remote location,
dispatch of or in-person visit(s) of personnel.
Technicians will be dispatched without delay.
50.1.10.14 All 911 trunks must adhere to the Americans with
Disabilities Act requirements.
50.1.10.15 The Parties will cooperate in the routing of 911
traffic in those instances where the ALI/ANI information
is not available on a particular 911 call.
50.1.10.16 ATTI is responsible for network management of its
network components in compliance with the Network
Reliability Council Recommendations and meeting the
network standard of U S WEST for the 911 call delivery.
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50.1.11 Basic 9ll and E911 Additional Requirements
50.1.11.1 All ATTI lines that have been ported via INP shall
reach the correct PSAP when 911 is dialed. U S WEST
shall send both the ported number and the ATTI number
(if both are received from ATTI). The PSAP attendant
shall see both numbers where the PSAP is using a
standard ALI display screen and the PSAP extracts both
numbers from the data that is sent.
50.1.11.2 U S WEST shall work with the appropriate government
agency to provide ATTI the ten-digit POTS number of each
PSAP which subtends each U S WEST E911 Tandem to which
ATTI is interconnected.
50.1.11.3 U S WEST will provide ATTI with the ten-digit
telephone numbers of each PSAP agency, for which U S
WEST provides the 911 function, to be used by ATTI
operators for handling emergency calls in those
instances where the ATTI Customer dials "0" instead of
"911."
50.1.11.4 ATTI will provide U S WEST with the ten-digit
telephone numbers of each PSAP agency, .for which ATTI
provides the 911 function, to be used by U S WEST
operators for handling emergency calls in those
instances where the U S WEST Customer dials "0" instead
of "911."
50.1.11.5 U S WEST shall notify ATTI forty-eight (48) hours in
advance of any scheduled testing or maintenance
affecting ATTI 911 service, and provide notification as
soon as possible of any unscheduled outage affecting
ATTI 911 service.
50.1.11.6 ATTI shall be responsible for reporting all errors,
defects and malfunctions to U S WEST. U S WEST shall
provide ATTI with the point of contact for reporting
errors, defects, and malfunctions in the service and
shall also provide escalation contacts.
50.1.11.7 ATTI may enter into subcontracts with third parties,
including ATTI affiliates, for the performance of any of
ATTI duties and obligations stated herein.
50.1.11.8 U S WEST shall provide sufficient planning
information regarding anticipated moves to SS7 signaling
for the next twelve (12) months.
50.1.11.9 U S WEST shall provide notification of any pending
tandem moves, NPA splits, or scheduled maintenance
outages with enough time to react.
50.1.11.10 U S WEST shall provide "reverse ALI" inquiries by
public safety entities, consistent with U S WEST's
practices and procedures.
50.1.11.11 U S WEST shall manage NPA splits by populating the
ALI database with the appropriate new NPA codes,
consistent with U S WEST's practices and procedures for
resold services.
50.1.11.12 U S WEST must provide the ability for ATTI to update
the 911 database with end user information for lines
that have been ported via INP or NP.
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50.1.11.13 The data in the ALI database shall be managed by U S
WEST but is the property of U S WEST and all
participating telephone companies.
50.1.12 Performance Criteria. E911 Database accuracy shall be as set
forth below:
50.1.12.1 Accuracy of ALI (Automatic Location Identification)
data submitted by ATTI to U S WEST will be measured
jointly by the PSAPs and U S WEST. All such reports
shall be forwarded to ATTI by U S WEST and will indicate
incidents when incorrect or no ALI data is displayed. A
report regarding any inaccuracy shall be prepared by U S
WEST.
50.1.12.2 Each discrepancy report will be jointly researched
by U S WEST and ATTI. Corrective action will be taken
immediately by the responsible party.
50.1.12.3 Each party will be responsible for the accuracy of
the Customer records it provides.
50.2 Directory Assistance Service
50.2.1 U S WEST shall provide for the routing of directory
assistance calls (including but not limited to 411, 555-1212,
NPA-555-1212) dialed by ATTI Customers directly to either the
ATTI Directory Assistance Service platform or U S WEST
Directory Assistance Service platform as specified by ATTI.
50.2.2 ATTI Customers shall be provided the capability by U S WEST
to dial the same telephone numbers for access to ATTI
Directory Assistance that U S WEST Customers to access U S
WEST Directory Assistance.
50.2.3 U S WEST shall provide Directory Assistance functions and
services to ATTI for its Customers as described below until,
at ATTI's discretion, U S WEST routes calls to the ATTI
Directory Assistance Services platform.
50.2.3.1 U S WEST agrees to provide ATTI Customers with the
same Directory Assistance service available to U S WEST
Customers.
50.2.3.2 U S WEST shall notify ATTI in advance of any changes
or enhancements to its Directory Assistance Service, and
shall make available such service enhancements on a
non-discriminatory basis to ATTI.
50.2.3.3 U S WEST shall provide Directory Assistance to ATTI
Customers in accordance with U S WEST's internal
operating procedures and standards, which shall, at a
minimum, comply with accepted professional and industry
standards.
50.2.3.4 U S WEST shall provide ATTI with the same level of
support for the provisioning of Directory Assistance as
U S WEST provides itself.
50.2.3.5 Service levels shall comply, at a minimum, with State
Regulatory Commission requirements for directory
assistance.
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Part A
50.2.3.6 U S WEST agrees to maintain an adequate operator work
force based on a review and analysis of actual call
attempts and abandonment rate.
50.2.3.7 Subject to the provisions of the applicable U S WEST
collective bargaining agreements, ATTI shall participate
in all call monitoring activities available to U S WEST
and to remote call monitor as customarily practiced by
the outsource customers of call centers.
50.2.3.8 U S WEST shall provide the following minimum Directory
Assistance capabilities to ATTI Customers:
(a) A maximum of two Customer listings and/or
addresses or U S WEST parity per ATTI Customer
request.
(b) Name and address to ATTI Customers upon request,
except for unlisted numbers, in the same states
where such information is provided to U S WEST
Customers.
(c) For ATTI customers who are served exclusively
through resold U S WEST retail services ATTI may
resell U S WEST's Directory Assistance call
completion services to the extent U S WEST offers
call Directory Assistance call completion to its
own end users. For ATTI customers who are served
from an ATTI switch, ATTI may request Directory
Assistance call completion services through the
BFR process. Such BFR process shall address the
identification of the ATTI end user at the U S
WEST Directory Assistance platform for purposes of
routing and billing of intraLATA and interLATA
toll calls.
(d) The U S WEST mechanized interface with the U S
WEST subscriber Listing database is not available
for ATTI as of the Effective Date of this
Agreement. When the mechanized interface is
available, U S WEST will populate the Directory
Assistance Database in the same manner and in the
same time frame as for U S WEST Customers.
(e) Any information provided by a Directory Assistance
Automatic Response Unit (ARU) shall be repeated
the same number of times for ATTI Customers as for
U S WEST's Customers.
(f) When an ATTI Customer served on a resale or
unbundled switching basis requests a U S WEST
directory assistance operator to provide instant
credit on a directory assistance call, the U S
WEST directory assistance operator shall inform
the ATTI Customer to call an 800 number for ATTI
Customer service to request a credit. The accurate
identification of ATTI as the customer's local
service provider by the U S WEST directory
assistance operator requires the use of separate
ATTI trunks to the Directory Assistance Platform.
50.2.3.9 For resold lines and unbundled switching, U S WEST
shall provide data regarding billable events as
requested by ATTI.
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50.2.3.10 U S WEST agrees to (1) provide to ATTI operators, on
line access to U S WEST's directory assistance database
equivalent to the access provided to U S WEST operators;
(2) allow ATTI or an ATTI designated operator bureau to
license U S WEST's subscriber Listings database on terms
and conditions equivalent to the terms and conditions
upon which U S WEST utilizes such databases; and (3) in
conjunction with branded or unbranded Directory
Assistance Service pursuant to Section 8 of this Part A
of this Agreement, provide caller-optional Directory
Assistance call completion service which is comparable
in every way to the Directory Assistance call completion
service U S WEST makes available to its own users. ATTI
may, at its option, request U S WEST not to provide call
completion services to ATTI.
50.2.3.11 In addition to charges for directory assistance when
call completion for an intraLATA toll call is requested,
the applicable charge for the completion of such
intraLATA toll call will apply.
50.3 Operator Services
50.3.1 U S WEST shall provide for the routing of local Operator
Services calls (including but not limited to 0+, 0-) dialed by
ATTI Customers directly to either the ATTI operator service
platform or U S WEST operator service platform as specified by
ATTI.
50.3.2 ATTI Customers shall be provided the capability by U S WEST
to dial the same telephone numbers to access ATTI operator
service that U S WEST Customers dial to access U S WEST
operator service.
50.3.3 U S WEST shall provide Operator Services to ATTI as described
below until, at ATTI's discretion, U S WEST routes calls to
the ATTI local Operator Services platform.
50.3.3.1 U S WEST agrees to provide ATTI Customers the same
Operator Services available to U S WEST Customers. U S
WEST shall make available its service enhancements on a
non-discriminatory basis.
50.3.3.2 U S WEST shall provide the following minimum Operator
Services capabilities to ATTI Customers:
(a) U S WEST shall complete 0+ and 0- dialed local
calls, including 0-Coin, Automatic Coin Telephone
Service (ACTS) and the completion of coin calls,
the collection of coins, and the provision of coin
rates.
(b) U S WEST shall complete 0+ intraLATA and, when
offered, interLATA toll calls. The Parties will
cooperate to develop industry standards to include
the end user's PIC in operator services signaling
and the development of associated routing
procedures.
(c) U S WEST shall complete calls for ATTI's Customers
that are billed to calling cards and other
commercial cards on the same basis as provided to
U S WEST own customers and
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Part A
ATTI shall designate to U S WEST the acceptable
types of special billing.
(d) U S WEST shall complete person-to-person calls.
(e) U S WEST shall complete collect calls.
(f) U S WEST shall provide the capability for callers
to bill to a third party and complete such calls.
(g) U S WEST shall complete station-to-station calls.
(h) U S WEST shall process emergency calls.
(i) U S WEST shall process Busy Line Verify and Busy
Line Interrupt requests.
(j) U S WEST shall process emergency call trace in
accordance with its normal and customary
procedures.
(k) U S WEST shall process operator-assisted directory
assistance calls.
(l) U S WEST operators shall provide ATTI Customers
with long distance rate quotes to the extent U S
WEST provides such rate quotes to its own end
users. Based on technology available as of the
Effective Date of this Agreement the provision of
rate quotes to ATTI Customers requires a separate
ATTI trunk group to the U S WEST operator services
platform to identify the caller as an ATTI
Customer.
(m) U S WEST operators shall provide ATTI Customers
with time and charges to the extent U S WEST
provides such time and charges to its own end
users. Based on technology available as of the
Effective Date of this Agreement, the provision of
time and charges to ATTI Customers requires a
separate ATTI trunk group to the U S WEST operator
services platform to identify the caller as an
ATTI Customer.
(n) U S WEST shall route 0- traffic to a "live"
operator team.
(o) Under the circumstances that U S WEST grants
credit to its customers for a U S WEST failure to
provide directory assistance services as required
by U S WEST tariffs or as U S WEST otherwise
grants credits on a discretionary basis to U S
WEST customers, U S WEST will, on a
non-discriminatory basis, (i) in connection with
resold services, provide an equivalent credit to
ATTI or (ii) in connection with non-resold
services, provide ATTI a credit in the amount paid
by ATTI for the unbundled service.(35)
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(35) Per AT&T Recommendations at page 18, Issue 105.
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(p) U S WEST shall provide caller assistance for the
disabled in the same manner as provided to U S
WEST Customers.
(q) When available to U S WEST end users, U S WEST
shall provide operator-assisted conference calling
to ATTI.
50.3.3 U S WEST shall exercise at least the same level of fraud
control in providing Operator Service to ATTI that U S WEST
provides for its own operator service, where the ATTI fraud
control data is in U S WEST's Line Information Data Base
("LIDB").
50.3.4 U S WEST shall perform Billed Number Screening (BNS) when
handling collect, third party, and calling card calls, both
for station to station and person to person call types.
50.3.5 Subject to the provisions of the applicable U S WEST
collective bargaining agreements ATTI shall be permitted to
participate in all call monitoring activities available to U S
WEST and to remote call monitor as customarily practiced by
the outsource customers of call centers.
50.3.6 U S WEST shall direct Customer account and other similar
inquiries to the Customer service center designated by ATTI.
50.3.7 U S WEST shall provide an electronic feed of Customer call
records in "EMR" format to ATTI in accordance with the time
schedule mutually agreed between the Parties.
50.3.8 U S WEST shall update the LIDB for ATTI Customers.
Additionally, U S WEST must provide access to LIDB for
validation of collect, third party billed, and LEC card billed
calls.
50.3.9 Where INP is deployed and when a BLV/BLI request for a ported
number is directed to a U S WEST operator and the query is not
successful (i.e., the request yields an abnormal result), ATTI
may request, through the BFR process, that the operator
confirm whether the number has been ported and direct the
request to the appropriate operator.
50.3.10 U S WEST shall allow ATTI to order provisioning of Telephone
Line Number (TLN) calling cards and Billed Number Screening
(BNS), in its LIDB, for ported numbers, as specified by ATTI.
U S WEST shall continue to allow ATTI access to its LIDB.
50.3.11 Toll and Assistance ("TIA") refers to functions Customers
associate with the "0" operator. Subject to availability and
capacity, access may be provided via operator services trunks
purchased from U S WEST or provided by ATTI via collocation
arrangements to route calls to ATTI's platform.
50.3.12 Automated Branding - ability to announce the carrier's name
to the Customer during the introduction of the call.
50.3.13 Interconnection to the U S WEST Toll and Assistance Operator
Services from an end office to U S WEST T/A is technically
feasible at least at three (3) distinct points on the trunk
side of the switch. The first connection point is an operator
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Part A
services trunk connected directly to the T/A host switch. The
second connection point is an operator services trunk
connected directly to a remote T/A switch. The third
connection point is an operator services trunk connected to a
remote access tandem with operator concentration capabilities.
50.3.14 All trunk interconnections will be digital.
50.3.15 The technical requirements of operator services type trunks
and the circuits to connect the operator positions to the host
are covered in the Operator Services Switching Generic
Requirements ("OSSGR") Bellcore Document number FRNWT-0 00271.
50.3.16 Busy Line Verify and Interrupt
50.3.16.1 At the request of ATTI operators or Customers, U S
WEST operators will perform Busy Line Verify ("BLV")
and/or Busy Line Interrupt ("BLI") operations where such
capacity exists.
50.3.16.2 When possible and where consistent with the service
U S WEST provides to its own Customers and/or end users,
U S WEST shall engineer its BLV/BLI facilities to
accommodate the anticipated volume of BLV/BLI requests
during the busy hour. ATTI may, from time to time,
provide its anticipated volume of BLV/BLI requests to
U S WEST. In those instances when failures occur to
significant portions of the BLV/BLI systems and
databases and those systems and databases become
unavailable, U S WEST shall promptly Inform ATTI.
50.3.16.3 BLV is performed when one Party's Customer requests
assistance from the other Party's operator or operator
bureau to determine if the called line is in use;
provided, however, that the operator bureau will not
complete the call for the Customer initiating the BLV
inquiry. Only one (1) BLV attempt will be made per
Customer operator bureau call, and a charge shall apply
whether or not the called party releases the line.
50.3.16.4 BLI is performed when one Party's Customer requests
assistance from the other Party's operator bureau to
interrupt a telephone call in progress after BLV has
occurred. The operator bureau will interrupt the busy
line and inform the called party that there is a call
waiting. The operator bureau will only interrupt the
call and will not complete the telephone call of the
Customer initiating the BLI request. The operator bureau
will make only one (1) BLI attempt per Customer operator
telephone call and the applicable charge applies whether
or not the called party releases the line.
50.3.16.5 Each Party's operator bureau shall accept BLV and
BLI inquiries from the operator bureau of the other
Party in order to allow transparent provision of BLV/
BLI traffic between the Parties' networks.
50.3.16.6 Each Party shall route BLV/BLI Traffic inquiries
over direct trunks between the Parties' respective
operator bureaus. Unless otherwise mutually agreed, the
Parties shall configure BLV/BLI trunks over the
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Part A
Interconnection architecture defined in Attachment 4 to
this Agreement.
50.4 Directory Assistance and Listings Service Requests
50.4.1 These requirements pertain to U S WEST's Directory Assistance
and Listings Service Request process that enables ATTI to (a)
submit ATTI Customer information for inclusion in U S WEST
Directory Assistance and Directory Listings databases; (b)
submit ATTI Customer information for inclusion in published
directories; and (c) provide ATTI Customer delivery address
information to enable U S WEST to fulfill directory
distribution obligations.
50.4.1.1 (Intentionally left blank for numbering consistency)
50.4.1.2 U S WEST will accept the following Directory Listing
Migration Orders from ATTI, valid under all access
methods, including but not limited to, Resale, Unbundled
Network Elements and Facilities-Based, and will process
the orders in a mechanized format:
(a) Migrate with no Changes: Maintain all directory
listings for the Customer in both Directory
Assistance and Directory Listing. Transfer
ownership and billing for listings to ATTI.
(b) Migrate with Additions: Maintain all directory
listings for the Customer in both Directory
Assistance and Directory Listing. Incorporate the
specified additional listings order. Transfer
ownership and billing for the listings to ATTI.
(c) Migrate with Deletions: Maintain all directory
listings for the Customer in both Directory
Assistance and Directory Listing. Delete the
specified listings from the listing order.
Transfer ownership and billing for the listings to
ATTI.
50.4.1.3 The Directory Listings Migration Options should not
be tied to migration options specified for a related
service order (if any) such that a service order
specified as migration with changes may be submitted
along with a directory listing order specified as
migration with no changes.
50.4.1.4 U S WEST shall enable ATTI to electronically transmit
multi-line listing orders.
50.4.1.5 U S WEST agrees to work cooperatively with ATTI to
define specifications for, and implement a daily summary
report of, Directory Service Requests. The summary
information will include but is not limited to the
following information:
(a) White page listings text and format (name,
address, phone, title, designation, extra line
requirements)
(b) Listing Instruction codes
50.4.1.6 To ensure accurate order processing, U S WEST shall
provide to ATTI the following information, with updates
within one (1) Business Day of change and via electronic
exchange:
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(a) A matrix of NXX to central office
(b) Geographical maps, if available, of U S WEST
service area
(c) A description of calling areas covered by each
directory, including but not limited to maps of
calling areas and matrices depicting calling
privileges within and between calling areas
(d) Listing format rules
(e) Listing alphabetizing rules
(f) Standard abbreviations acceptable for use in
listings and addresses
(g) Titles and designations
50.4.1.7 Based on changes submitted by ATTI, U S WEST shall
update and maintain Directory Assistance and Directory
Listings data for ATTI Customers who:
(a) Disconnect Service
(b) Change carrier
(c) Install Service
(d) Change any service which affects Directory
Assistance information
(e) Specify Non-Solicitation
(f) Are Non-Published Non-Listed, or Listed
50.4.1.8 U S WEST shall not charge for storage of ATTI Customer
information in the Directory Assistance and Directory
Listing systems.
50.4.1.9 ATTI shall not charge for storage of U S WEST
Customer information in the Directory Assistance and
Directory Listing systems.
50.5 Directory Assistance Data
50.5.1 This Section refers to the residential, business, and
government Customer records used by U S WEST to create and
maintain databases for the provision of live or automated
operator assisted Directory Assistance. Directory Assistance
data is information that enables telephone exchange carriers
to swiftly and accurately respond to requests for directory
information, including, but not limited to, name, address and
phone numbers. Under the provisions of the Act and the FCC's
Interconnection Order, U S WEST shall provide unbundled and
non-discriminatory access to the residential, business and
government Customer records used by U S WEST to create and
maintain databases for the provision of live or automated
operator assisted Directory Assistance. ATTI may combine this
element with any other Network Element for the provision of
any Telecommunications Service.(36)
50.5.2 U S WEST shall provide an initial load of Customer records
and Customer list information to ATTI, in a mutually-agreed-to
format, via electronic transfer, within thirty (30) calendar
days of the Effective Date of this Agreement. The initial load
shall include all data resident in the U S WEST Databases
and/or systems used by U S WEST for housing Directory
Assistance data and/or
- ----------
(36) Per AT&T Order at page 32, Issue 63.
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Part A
Customer Listing data. In addition, the initial load shall be
current as of the prior Business Day on which the initial load
is provided.
50.5.3 U S WEST shall provide ATTI daily updates to the Customer
records and Customer list information in a mutually-agreed-to
format via electronic transfer.
50.5.4 U S WEST shall provide the ability for ATTI to electronically
query the U S WEST Directory Assistance Database and Listings
Database in a manner at least consistent with and equal to
that which U S WEST provides to itself or any other Person.
50.5.5 U S WEST shall provide an initial load of Customer records
and Customer list information to ATTI, in a mutually-agreed-to
format, via electronic transfer within thirty (30) calendar
days of the Effective Date of this Agreement. The initial load
shall include all data resident in the U S WEST Databases
and/or systems used by U S WEST for housing directory
assistance data and/or Customer Listing data. In addition the
initial load shall be current as of the prior Business Day on
which the initial load is provided.
50.5.6 U S WEST shall provide ATTI daily updates to the Customer
records and Customer list information in a mutually-agreed-to
format via electronic transfer.
50.5.7 U S WEST shall provide the ability for ATTI to electronically
query the U S WEST Directory Assistance Database and Listings
Database in a manner at least consistent with and equal to
that which U S WEST provides to itself or any other Person.
50.5.8 U S WEST shall provide ATTI a complete list of ILECs, CLECs,
and independent telephone companies that provided data
contained in the database.
50.5.9 On a daily basis, U S WEST shall provide updates (end user
and mass) to the Listing information via electronic data
transfer. Updates shall be current as of one business day
prior to the date provided to ATTI.
50.5.10 U S WEST shall provide ATTI access to Directory Assistance
support databases. For example, ATTI requires access to use
restriction information including but not limited to call
completion.
50.5.11 Directory Assistance data shall specify whether the Customer
is a residential business, or government Customer.
Additionally, data must include all levels of indentation and
all levels of information specified in "Directory Assistance
Data Information Exchanges and Interfaces" below.
50.5.12 Directory Assistance data shall be provided on the same
terms, conditions, and rates that U S WEST provides such data
to itself or other third parties.
50.5.13 U S WEST shall provide complete refresh of the Directory
Assistance data upon request by ATTI.
50.5.14 U S WEST and ATTI vuill cooperate in the designation of a
location at which the data will be provided.
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Part A
51. Unused Transmission Media(37)
51.1 Definitions
51.1.1 Unused Transmission Media is physical inter-office
transmission media (e.g., optical fiber, copper twisted pairs,
coaxial cable) which have no lightwave or electronic
transmission equipment terminated to such media to
operationalize transmission capabilities.
51.1.2 Dark fiber is excess fiber optic cable which has been placed
in a network and is not currently being lit by electronics
from any carrier. Dark Fiber, one type of Unused Transmission
Media, is unused strands of optical fiber. Dark Fiber also
includes strands of optical fiber which may or may not have
lightwave repeater (regenerator or optical amplifier)
equipment interspliced, but which has no line terminating
facilities terminated to such strands. Unused Transmission
Media also includes unused wavelengths within a fiber strand
for purposes of coarse or dense wavelength division
multiplexed (WDM) applications. Typical single wavelength
transmission involves propagation of optical signals at single
wavelengths (1.3 or 1.55 micron wavelengths). In WDM
applications, a WDM device is used to combine optical signals
at different wavelengths on to a single fiber strand. The
combined signal is then transported over the fiber strand. For
coarse WDM applications, one (1) signal each at 1.3 micron and
1.55 micron wavelength are combined. For dense WDM
applications, many signals in the vicinity of 1.3 micron
wavelength and/or 1.55 micron wavelength are combined.
51.2 While U S WEST is not required to provide Unused Transmission Media
other than Dark Fiber,(38) ATTI may, subject to the agreement of U S
WEST, lease copper twisted pairs, coaxial cable or other Unused
Transmission Media.
51.3 Requirements
51.3.1 Subject to Section 51.2 above, US WEST shall make available
Unused Transmission Media to ATTI under a lease agreement or
other arrangement.
51.3.2 U S WEST shall provide a single point of contact for
negotiating all Unused Transmission Media use arrangements.
51.3.3 ATTI may test the quality of the Unused Transmission Media to
confirm its usability and performance specifications.
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(37) Per AT&T Order at pages 11-12, Issue 22.
(38) Per AT&T Order at pages 11-12, Issue 22.
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51.3.4 Where Unused Transmission Media is required to be offered or
is agreed to be offered by U S WEST, U S WEST shall provide to
ATTI information regarding the location, availability and
performance of Unused Transmission Media within ten (10)
Business Days for a records-based answer and twenty (20)
Business Days for a field-based answer, after receiving a
request from ATTI ("Request"). Within such time period, U S
WEST shall send written or electronic confirmation or any
other method of notification agreed to by the Parties of
availability of the Unused Transmission Media
("Confirmation").
51.3.5 Where Unused Transmission Media is required to be offered or
is agreed to be offered by U S WEST, U S WEST shall make
Unused Transmission Media available for ATTI's use in
accordance with the terms of this Section 51 within twenty
(20) Business Days or a reasonable timeframe consistent with
industry standards after it receives written acceptance from
ATTI that the Unused Transmission Media is wanted for use by
ATTI. Splicing of ATTI fiber may be performed at the same
points that are available for U S WEST splices.
51.4 Requirements Specific to Dark Fiber
51.4.1 ATTI may test Dark Fiber leased from U S WEST using ATTI or
ATTI designated personnel subject to Section 51.2. U S WEST
shall provide appropriate interfaces to allow testing of Dark
Fiber. U S WEST shall provide an excess cable length of
twenty-five (25) feet minimum, where available, for fiber in
underground conduit. U S WEST shall provide splicing of ATTI
fiber to U S WEST Dark Fiber under normal circumstances (e.g.,
no construction) in metropolitan areas within seventeen (17)
calendar days of ATTI's request, and within thirty (30)
calendar days of a request in a non-metropolitan area. ATTI
may request expedited splicing, which shall be subject to
available U S WEST resources.
51.4.2 For WDM applications, U S WEST shall provide to ATTI an
interface to an existing WDM device or allow ATTI to install
its own WDM device (where sufficient system loss margins exist
or where ATTI provides the necessary loss compensation) to
multiplex the traffic at different wavelengths. This applies
to both the transmit and receive ends of the Dark Fiber.
51.5 For the period beginning at the time of the Request and ending
ninety (90) days following Confirmation, U S WEST shall reserve such
Dark Fiber for ATTI and shall not allow any use thereof by any
Party, including U S WEST. ATTI shall elect whether or not to accept
such Dark Fiber within the ninety (90) day period following
Confirmation. ATTI may accept such Dark Fiber
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Part A
by sending written notice to U S WEST ("Acceptance"). If ATTI
requests reservation of Dark Fiber, U S WEST may charge a
reservation fee in an amount mutually agreed upon by the Parties.
ATTI's obligation to pay a reservation fee shall begin on the date
of the Confirmation. If the Parties are unable to agree on a
reasonable reservation fee, the fee shall be established pursuant to
the dispute resolution process in Section 27 of Part A of this
Agreement. ATTI shall begin payment for the use of Dark Fiber upon
the date of its timely Acceptance. If ATTI fails to send a timely
Acceptance, its reservation shall be released. If U S WEST agrees to
provide Unused Transmission Media other than Dark Fiber to ATTI, it
shall do so on the same terms and conditions as stated in this
section.(39)
U S WEST may not reserve future capacity of its Dark Fiber for its
own use,(40) with the exception of maintenance and emergency
spare.(41)
51.6 Portions of the bandwidth of the fiber may be sectioned and ATTI may
share the bandwidth with U S WEST and other CLECs.
52. Service Standards(42)
U S WEST will provide all Local Resale, Ancillary Functions, Network
Elements or Combinations in accordance with service standards,
measurements, and performance requirements that are expressly specified in
this Agreement and Attachment 5 hereto. In cases where such performance
standards are not expressly specified, U S WEST will provide all Local
Resale, Ancillary Functions Network Elements or Combinations in accordance
with performance standards which are at least equal to the level of
performance standards and/or quality of service that U S WEST provides to
itself, its Affiliates, to other CLECs, or other quality of service
requirements imposed by the Commission, whichever is higher in providing
Local Resale, Ancillary Functions, Network Elements or Combinations to
itself, to its end-users or to its Affiliates. If ATTI requests a higher
level of service than that provided by U S WEST to itself or other
Persons, ATTI shall make the request pursuant to the BFR process.
52.1 Definitions
The following service standards may be supplanted or supplemented by
a Commission decision in a proceeding conducted for the purpose of
determining the appropriate performance standards or the
applicability of penalties relative to U S WEST's compliance with
this Agreement, the Act or the Commission's orders.(43)
52.1.1 "Specified Performance Commitment" means the commitment by
U S WEST to meet the Performance Criteria for any Specified
Activity during the Specified Review Period. The Specified
Review
- ----------
(39) Per AT&T Recommendation at pages 19-20, Issue 138.
(40) Per AT&T Order at page 11, Issue 22.
(41) Per AT&T Recommendation at page 20, Issue 138.
(42) Per AT&T Order at pages 34-36, Issue 69.
(43) Per AT&T Order at pages 34-36, Issue 69.
87
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Part A
Period shall be the same period as U S WEST provides itself
for existing Performance Criteria and shall be ninety (90)
days for new Performance Criteria. The standard of performance
for each of the measurements of performance in Washington
shall be the quality of service which U S WEST provides in
Washington to either itself, its ten largest end user
Customers in the aggregate, independent LECs in the aggregate,
other CLECs in the aggregate, or other quality of service
requirements imposed by the Commission, whichever is highest.
52.1.2 "Specified Activity" includes, but is not limited to, the
following activities:
(a) Installation Activities -- apply to resold services,
unbundled loops, unbundled switching, and interim number
portability:
(i) Installation Intervals Offered (measured from
application date to original due date);
(ii) Installation Commitments Met;
(iii) Installation Reports within seven (7) days
(percent of reports per total of new, to or change
orders).
(b) Repair Activities -- apply to resold service, unbundled
loops, unbundled switching, and interim number
portability:
(i) Out of Service Cleared in Less than Twenty-four
(24) Hours (percent of total out of service
reports);
(ii) Report Rate per 100 Access Lines;
(iii) Repair Commitments Met;
(iv) Out of Service and Service Affecting Cleared in
Less than Forty-eight (48) Hours;
(v) Repair Repeat Reports within Thirty (30) Days
(Percent of Repeats per 100 Access Lines).
(c) Trunking Activities -- includes interconnection trunks:
(i) Defects per One Million Calls (Dedicated
Facilities/Trunkside only).
52.1.3 "Performance Criteria" means, with respect to a Specified
Review Period (i.e., a calendar month or quarter), the
performance by U S WEST for each Specified Activity for ATTI
will meet or exceed U
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Part A
S WEST's overall average performance (as provided by U SWEST
to itself, to CLECs and to all other Persons) for each Resale
Service or unbundled Network Element.
52.2 Failure to Meet the Performance Criteria
If, during a Specified Review Period, U S WEST fails to meet the
Performance Criteria, U S WEST will use its best efforts to meet the
Performance Criteria for the next Specified Review Period. If U S
WEST fails to meet the Performance Criteria for two (2) consecutive
periods, the Parties agree, in good faith, to attempt to resolve
such issues through negotiation or non-binding arbitration. This
paragraph shall not be construed to waive either Party's right to
seek legal or regulatory intervention as provided by state or
federal law. ATTI may seek regulatory or other legal relief
including requests for specific performance of U S WEST's
obligations under this Agreement.
52.3 Limitations
U S WEST's failure to meet or exceed any of the Performance Criteria
cannot be as a result, directly or indirectly, of a Delaying Event.
A "Delaying Event" means (a) a failure by ATTI to perform any of its
obligations set forth in this Agreement, (b) any delay, act or
failure to act by a Customer, agent of subcontractor of ATTI, or (c)
any force majeure event. If a Delaying Event prevents U S WEST from
performing a Specified Activity, then such Specified Activity shall
be excluded from the calculation of U S WEST's compliance with the
Performance Criteria.
52.4 Records
U S WEST shall maintain complete and accurate records, for the
Specified Review Period, of its performance under this Agreement for
each Specified Activity and its compliance with the Performance
Criteria. U S WEST shall provide to ATTI such records in a
self-reporting format. The Parties agree that such records shall be
deemed Proprietary Information.
53. Entire Agreement
53.1 This Agreement shall include the Attachments, Appendices and other
documents referenced herein all of which are hereby incorporated by
reference, and constitutes the entire agreement between the Parties
and supersedes all prior oral or written agreements representations,
statements, negotiations, understandings, proposals and undertakings
with respect to the subject matter hereof.
53.2 If a provision contained in any U S WEST tariff conflicts with any
provision of this Agreement, the provision of this Agreement shall
control, unless otherwise ordered by the FCC or the Commission.
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Part A
54. Reservation of Rights
54.1 The Parties acknowledge that the terms of this Agreement were
established pursuant to an order of the Commission. Any or all of
the terms of this Agreement may be altered or abrogated by a
successful challenge to this Agreement (or the order approving this
Agreement) as permitted by applicable law. By signing this
Agreement, neither Party waives its right to pursue such a
challenge.
54.2 The Parties enter into this Agreement without prejudice to any
position they may have taken previously, or may take in the future
in any legislative, regulatory, or other public forum addressing any
matters, including matters related to the types of arrangements
prescribed by this Agreement.
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Part A
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives.
American Telephone Technology, Inc.** U S WEST Communications, Inc.**
/s/ F. Lynne Powers /s/ [Illegible]
- --------------------------------- ---------------------------------
Signature Signature
F. Lynne Powers Katherine L. Fleming
- --------------------------------- ---------------------------------
Name Printed/Typed Name Printed/Typed
Vice President - Finance Vice President - Interconnection
- --------------------------------- ---------------------------------
Title Title
3-2-00 03/03/00
- --------------------------------- ---------------------------------
Date Date
Signed as ordered by the
arbitrator/commission in Docket
No. UT-960309. Signature does not
indicate agreement with all
aspects of the arbitrator's
decision, nor does it waive any of
U S WEST's right to seek judicial
review of all or part of the
agreement, or to reform the
agreement to conform with the
Opinion of the United States Court
of Appeals for the Eighth Circuit,
or any other decision or opinion
following successful judicial
review.
** This Agreement is made pursuant to Section 252 (I) of the Act and is premised
upon the Interconnection Agreement between AT&T Communications of the Pacific
Northwest, Inc. and U S WEST Communications, Inc. (the "Underlying Agreement").
The Underlying Agreement was approved by the Commission on July 11, 1997.
With respect to this Agreement the Parties understand and agree:
i) The Parties shall request the Commission to expedite its review and approval
of this Agreement.
ii) Notwithstanding the mutual commitments set forth herein the Parties are
entering into this Agreement without prejudice to any positions they have taken
previously, or may take in the future, in any legislative, regulatory, or other
public forum addressing any matters, including those relating to the types of
arrangements contained in this Agreement. During the proceeding in which the
Commission is to review and approve the Agreement, U S WEST may point out that
it has objected, and continues to object, to the inclusion of the terms and
conditions to which it objected in the proceedings involving the approval of the
Underlying Agreement.
iii) This Agreement contains provisions based upon the decisions and orders of
the FCC and the Commission under and with respect to the Act. Currently, court
and regulatory proceedings affecting the subject matter of this Agreement are in
various stages, including the proceedings where certain of the
91
<PAGE>
Part A
of the Supreme Court's decision in AT&T Corp. et al. v. Iowa Utilities Board.
Based on that uncertainty, and the regulatory and judicial proceedings which
will occur as a result of that decision, the Parties acknowledge that this
Agreement may need to be changed to reflect any changes in law. The Agreement
has not been corrected to reflect the requirements, claims or outcomes of any of
the Proceedings, although the pricing does reflect the Commissions most current
generic order, if any. Accordingly, when a final, decision or decisions are made
in the Proceedings that automatically change and modify the Underlying
Agreement, then like changes and modifications will similarly be made to this
Agreement. In addition, to the extent rules or laws are based on regulatory or
judicial proceedings as a result of the recent Supreme Court decision, this
Agreement will be amended to incorporate such changes.
iv) Subsequent to the execution of this Agreement, the FCC or the Commission may
issue decisions or orders that change or modify the rules and regulations
governing implementing of the Act. If such changes or modifications alter the
state of the law upon which the Underlying Agreement was negotiated and agreed,
and it reasonably appears that the parties to the Underlying Agreement would
have negotiated and agreed to different term(s) condition(s) or covenant(s) than
as contained in the Underlying Agreement had such change or modification been in
existence before execution of the Underlying Agreement, then this Agreement
shall be amended to reflect such different terms(s), condition(s), or
covenant(s). Where the parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision of this Agreement.
v) This Agreement shall continue in force and effect until terminated by either
Party. The Agreement can be terminated on thirty (30) days notice, if another
Interconnection Agreement will not replace the current Agreement. If there is a
replacement Interconnection Agreement, one Party can notify the other Party that
it is requesting Section 251/252 negotiations under the Federal
Telecommunications Act of 1996 ("Act"). That notification will trigger the
timeframes and procedures contained in Section 252 of the Act. In the event of
such notice, the arrangements between our companies shall continue and be
governed by the terms of the expired agreement until the new agreement is
approved by the appropriate state commission.
92
<PAGE>
Exhibit 10.1.36
ELECTRO-TEL, INC.
and
U S WEST Communications, Inc.
INTERCONNECTION AGREEMENT
<PAGE>
TABLE OF CONTENTS
PART A
Title Page
Recitals 1
Section 1. Scope of this Agreement 1
Section 2. General Provisions 3
Section 3. Regulatory Approvals 3
Section 4. Term of Agreement 4
Section 5. Charges and Payment 5
Section 6. Assignment and Subcontracting 5
Section 7. Compliance with Laws 5
Section 8. Governing Law 6
Section 9. Independent Contractor Status 6
Section 10. No Third Party Beneficiaries 6
Section 11. Intellectual Property Rights and Indemnification 7
Section 12. Indemnification 7
Section 13. Limitation of Liability 8
Section 14. Warranties 8
Section 15. Notices 9
Section 16. Remedies 9
Section 17. Waivers 10
Section 18. Survival 10
Section 19. Force Majeure 10
Section 20. Non-Discriminatory Treatment 11
Section 21. Default and Termination 11
<PAGE>
Section 22. Confidentiality and Publicity 12
Section 23. Audits 14
Section 24. Dispute Resolution Procedures 15
Section 25. Bona Fide Request Process for Further Unbundling 15
Section 26. Branding 17
Section 27. Taxes 18
Section 28. Responsibility for Environmental Contamination 18
Section 29. Amendments and Modifications 19
Section 30. Severability 19
Section 31. Headings Not Controlling 19
Section 32. Counterparts 20
Section 33. Referenced Documents 20
Section 34. Joint Work Product 20
Section 35. Cancellation Charges 20
Section 36. Escalation Procedures 20
Section 37. Entire Agreement 20
Section 38. Reservation of Rights 21
<PAGE>
Part A
Electro-Tel, Inc./U S WEST Communications, Inc.
INTERCONNECTION AGREEMENT
This Interconnection Agreement (this "Agreement") is entered into by and
between Electro-Tel, Inc. ("CO-PROVIDER"), a Colorado corporation, and U S WEST
Communications, Inc. ("USWC"), a Colorado corporation, to establish the rates,
terms and conditions for local interconnection, local resale, and the purchase
of unbundled network elements (individually referred to as the `service" or
collectively as the "services").
W I T N E S S E T H:
WHEREAS, pursuant to this Agreement, CO-PROVIDER and USWC (collectively
the "Parties"), will extend certain arrangements to one another within each LATA
(as defined herein) in which they both operate within the state of Colorado.
This Agreement is a combination of agreed terms and terms imposed by arbitration
under Section 252 of the Communications Act of 1934, as modified by the
Telecommunications Act of 1996 (the "Act"), the Rules and Regulations of the
Federal Communications Commission ("FCC"), and the orders, rules and regulations
of the Colorado Public Utilities Commission (the "Commission"), and as such does
not necessarily represent the position of either Party on any given issue; and
WHEREAS the Parties wish to interconnect their local exchange networks in
a technically and economically efficient manner for the transmission and
termination of calls, so that subscribers of each can seamlessly receive calls
that originate on the other's network and place calls that terminate on the
other's network, and for CO-PROVIDER's use in the provision of exchange access
("Local Interconnection"); and
WHEREAS, CO-PROVIDER wishes to purchase Telecommunications Services (as
defined herein) for resale to others ("Local Resale" or "Services for Resale"),
and USWC is willing to provide such services; and
WHEREAS, CO-PROVIDER wishes to purchase on an unbundled basis network
elements, ancillary services and functions and additional features (collectively
hereinafter "Network Elements"), separately or in any Combination (as defined
herein), and to use such services for itself or for the provision of its
Telecommunications Services to others, and USWC is willing to provide such
services;
Now, therefore, in consideration or the terms and conditions contained
herein, CO-PROVIDER and USWC hereby mutually agree as follows:
PART A -- GENERAL TERMS AND CONDITIONS
Section 1. - Scope of this Agreement
A. This Agreement specifies the rights and obligations of each Party with
respect to the purchase and sale of Local Interconnection, Local Resale and
Network Elements.
B. In the performance of their obligations under this Agreement, the
Parties shall act in good faith and consistently with the intent of the Act.
Where notice, approval or similar action by a Party is
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Part A
permitted or required by any provision of this Agreement (including, without
limitation, the obligation of the Parties to further negotiate the resolution of
new or open issues under this Agreement) such action shall not be unreasonably
delayed, withheld or conditioned.
C. USWC will provide CO-PROVIDER with the same level of service quality as
USWC provides its own subscribers with respect to all Telecommunications
Services, Local Interconnection, Services for Resale and Network Elements.
D. USWC shall provide to CO-PROVIDER services for resale that are equal in
quality, subject to the same conditions (including the conditions in USWC's
effective tariffs which are not otherwise inconsistent with the terms and
conditions contained herein), within the same provisioning time intervals that
USWC provides these services to itself, its Affiliates and others, including end
users, and in accordance with any applicable Commission service quality
standards, including standards the Commission may impose pursuant to Section 252
(e)(3) of the Act.
E. Each Network Element provided by USWC to CO-PROVIDER shall be at least
equal in the quality of design, performance, features, functions, capabilities
and other characteristics, including, but not limited to, levels and types of
redundant equipment and facilities for power, diversity and security, that USWC
provides to itself, USWC's own subscribers, to a USWC Affiliate or to any other
entity.
F. The Parties agree to work jointly and cooperatively in testing and
implementing processes for pre-ordering, ordering, maintenance, provisioning and
billing and in reasonably resolving issues which result from such implementation
on a timely basis.
G. If a Party makes a change in its network which it believes will
materially affect the inter-operability of its network with that of the other
Party, the Party making the change shall provide advance notice of such change
to the other Party in accordance with applicable FCC regulations.
H. USWC shall not discontinue or refuse to provide any service provided or
required hereunder without CO-PROVIDER's prior written agreement, nor shall USWC
reconfigure, re-engineer or otherwise redeploy its network in a manner which
would impair CO-PROVIDER's ability to offer Telecommunications Services in the
manner contemplated by this Agreement, the Act or the FCC's rules and
regulations. If a Party makes a change in its network which it believes will
materially affect the inter-operability of its network with the other Party, the
Party making the change shall provide advance notice of such change to the other
party in accordance with the applicable FCC regulations.
I. USWC shall insure that all CO-PROVIDER Customers experience the same
dialing parity as similarly situated customers of USWC services, such that, for
all call types: (a) an CO-PROVIDER Customer is not required to dial any greater
number of digits than a similarly-situated USWC customer; (b) the post-dial
delay (time elapsed between the last digit dialed and the first network
response), call completion rate and transmission quality experienced by an
CO-PROVIDER Customer is at least equal in quality to that experienced by a
similarly-situated USWC customer and (c) the CO-PROVIDER Customer may retain its
local telephone number, as further provided for in Attachment 7 of this
Agreement (INP/PNP) so long as the customer continues receiving service in the
same central office serving area.
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Part A
Section 2. General Provisions
2.1 Each Party is individually responsible for providing facilities within
its network which are necessary for routing, transporting, measuring and billing
traffic from the other Party's network and for delivering such traffic to the
other Party's network in the standard format compatible with CO-PROVIDER's
network and to terminate the traffic it receives in that standard format or the
proper address on its network. The Parties are each solely responsible for
participation in and compliance with national network plans, including the
National Network Security Plan and the Emergency Preparedness Plan.
2.2 Neither Party shall impair the quality of service to other carriers or
to either Party's Customers, and each Party may discontinue or refuse service if
the other Party violates this provision. Upon such violation, either Party shall
provide the other Party notice of such violation, at the earliest practicable
time.
2.3 Each Party is solely responsible for the services it provides to its
Customers and to other telecommunications carriers.
2.3.1 The Parties recognize that equipment vendors may manufacture
telecommunications equipment that does not fully incorporate and may
deviate from industry standards referenced in this Agreement. Due to the
manner in which individual equipment manufacturers have chosen to
implement Industry Standards into the design of their products, along with
differing vintages of individual facility components and the presence of
embedded technologies pre-dating current technical standards, some of the
individual facility components deployed within USWC's network may not
adhere to all the specifications set forth and described in the Bellcore,
ANSI, ITU and other technical and performance standards outlined in this
Agreement. Within forty-five (45) days after the Effective Date of this
Agreement, the Parties will develop processes by which USWC will inform
CO-PROVIDER of deviations from standards for Network Elements (and the
business processes associated with the equipment providing such Network
Elements) that may be ordered by CO-PROVIDER. In addition, the Parties
agree that those deviations from such standards documented by USWC to
CO-PROVIDER shall, to the extent permitted by FCC and Commission rules and
regulations, supersede sections of this Agreement referencing technical
standards otherwise applicable for the affected Network Elements.
2.3.2 Notwithstanding the foregoing, USWC agrees that it shall not
allow or permit any equipment or individual facility component
specification or standard to perform at or be below the level or
specification in effect as of the Effective Date of the Agreement.
Section 3. Regulatory Approvals
3.1 This Agreement, and any amendment or modification hereof, will be
submitted to the Commission for approval in accordance with Section 252 of the
Act. In the event any governmental authority or agency rejects any provision
hereof, the Parties shall negotiate promptly and in good faith such revisions as
may reasonably be required to achieve approval.
3.2 The filing of this arbitrated Agreement with the Commission in
accordance with the Commission's Decision adopted December 2,1996 (the
"Commission's Decision") with respect to Petition for Approval of Agreement and
Arbitration of Unresolved Issues Arising Under Section 252 of the
Telecommunications Act of 1996 (Docket No. 96A-366T, Decision No. C96-1337) does
not in any way
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Part A
constitute a waiver by either Party of any right which either Party may have to
seek review of the Commission's Decision in an appropriate FCC or judicial
proceeding, or to petition the Commission for reconsideration of any
determination contained in the Commission's Decision, and the Parties
specifically reserve their rights to modify, amend or change the terms of this
Agreement as appropriate in light of any such decision by the FCC, the
Commission or a court. The Parties also specifically reserve their rights to
seek modification of any language of this Agreement which was included (or
excluded) due to mistake or inadvertence caused by the limited amount of time
given to prepare this Agreement under the Commission's rules.
3.3 In the event the FCC or the Commission promulgates rules or
regulations, or issues orders, or a court with appropriate jurisdiction issues
orders, which make unlawful any provision of this Agreement, the Parties shall
negotiate promptly and in good faith in order to amend this Agreement to
substitute contract provisions consistent with such rules, regulations or
orders. In the event the Parties cannot agree on an amendment within thirty (30)
days from the date any such rules, regulations or orders become effective, then
the Parties shall resolve their dispute under the applicable procedures set
forth in the Dispute Resolution provisions of this Agreement.
3.4 In the event USWC is required by any governmental authority or agency
to file a tariff or make another similar filing in connection with the
performance of any action that would otherwise be governed by this Agreement,
USWC shall: (a) consult with CO-PROVIDER reasonably in advance of such filing
about the form and substance of such filing, and (b) take all steps reasonably
necessary to ensure that such tariff preserves for CO-PROVIDER the full benefit
of the rights otherwise provided in this Agreement.(1)
3.5 In the event any governmental authority or agency orders USWC to
provide any service covered by this Agreement in accordance with any terms or
conditions that individually differ from one or more corresponding terms or
conditions of this Agreement, CO-PROVIDER may elect to amend this Agreement to
reflect any such differing terms or conditions contained in such decision or
order, with effect from the date CO-PROVIDER makes such election. The other
services covered by this Agreement and not covered by such decision or order
shall remain unaffected and shall remain in full force and effect.
3.6 The Parties intend that any additional services requested by either
Party relating to the subject matter of this Agreement will be incorporated into
this Agreement by amendment.
Section 4. Term of Agreement
4.1 This Agreement shall be effective upon Commission approval through
August 28, 2000, and thereafter shall continue in force and effect unless and
until a new agreement, addressing all of the terms of this Agreement, becomes
effective between the Parties. Any Party seeking revision of this Agreement
shall commence negotiations on a new agreement no later than one year prior to
the expiration of the term of this Agreement or the Agreement shall renew for a
one-year term. Such negotiations shall follow the timetable and procedure set
forth in Section 251-52 of the Act. Any arbitration shall proceed before the
Commission, and the resulting contract shall be submitted to the Commission
under Section 251. If final Commission approval does not occur prior to the
expiration of this Agreement, this Agreement shall renew automatically for three
months, or for such time as the Commission orders.
- ----------
(1) Per the Public Utilities Commission of the State of Colorado, Decision No.
C97-857; DOCKET NO, 96A-345T
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<PAGE>
Part A
Section 5. Charges and Payment
5.1 In consideration of the services provided by USWC under this
Agreement, CO-PROVIDER shall pay the charges set forth in Attachment 1. The
billing and payment procedures for charges incurred by CO-PROVIDER hereunder are
set forth in Attachment 8.
Section 6. Assignment and Subcontracting
6.1 Neither Party may assign, transfer (whether by operation of law or
otherwise) or delegate this Agreement (or any rights or obligations hereunder)
to a third party without the prior written consent of the other Party, which
consent shall not be unreasonably withheld; provided, however, that each Party
may assign this Agreement to a corporate affiliate or an entity under its common
control or an entity acquiring all or substantially all of its assets or equity
by providing prior written notice to the other Party of such assignment or
transfer. Any attempted assignment or transfer that is not permitted under the
provisions of this Section 6 is void ab initio. Without limiting the generality
of the foregoing, this Agreement shall be binding upon and shall inure to the
benefit of the Parties' respective successors and assigns. No assignment or
delegation hereof shall relieve the assignor of its obligations under this
Agreement.
6.2 If any obligation of USWC under this Agreement is performed by a
subcontractor or Affiliate, USWC shall remain fully responsible for the
performance of this Agreement in accordance with its terms and USWC shall be
solely responsible for payments due to its subcontractors.
6.3 If any obligation of CO-PROVIDER under this Agreement is performed by
a subcontractor or Affiliate, CO-PROVIDER shall remain fully responsible for the
performance of this Agreement in accordance with its terms, and CO-PROVIDER
shall be solely responsible for payments due to its subcontractors.
Section 7. Compliance with Laws
7.1 Each Party shall comply with all applicable federal, state, and local
laws, rules and regulations applicable to its performance under this Agreement.
7.2 Each Party represents and warrants that any equipment, facilities or
services provided to the other Party under this Agreement shall comply with the
Communications Law Enforcement Act of 1994 ("CALEA"). Each Party (the
"Indemnifying Party") shall indemnify and hold the other Party (the "Indemnified
Party") harmless from any and all penalties imposed upon the Indemnified Party
for such noncompliance and shall, at the Indemnifying Party's sole cost and
expense, modify or replace any equipment, facilities or services provided to the
Indemnified Party under this Agreement to ensure that such equipment, facilities
and services fully comply with CALEA.
7.3 All terms, conditions and operations under this Agreement shall be
performed in accordance with all applicable laws, regulations and judicial or
regulatory decisions of all duly constituted governmental authorities with
appropriate jurisdiction, and this Agreement shall be implemented consistent
with the FCC's First Report and Order in CC Docket No. 96-98, released August 8,
1996 (the "FCC Interconnection Order") and applicable State Commission Orders,
Each Party shall be responsible for obtaining and keeping in effect all FCC,
Commission, franchise authority and other regulatory approvals that may be
required in connection with the performance of its obligations under this
Agreement. In the event the Act or FCC and State Commission rules and
regulations applicable to this Agreement are held
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Part A
invalid, this Agreement shall survive, and the Parties shall promptly
renegotiate any provisions of this Agreement which, in the absence of such
invalidated Act, rule or regulation, are insufficiently clear to be effectuated.
In the event the Parties cannot agree on an amendment within thirty (30) days
from the date any such rules, regulations or orders become effective, then the
Parties shall resolve their dispute under the applicable procedures set forth in
the Dispute Resolution provisions of this Agreement
Section 8. Governing Law
8.1 This Agreement shall be governed by and construed in accordance with
the Act and the FCC's Rules and Regulations, except insofar as state law may
control any aspect of this Agreement, in which case the domestic laws of the
State of Colorado, without regard to its conflicts of laws principles, shall
govern.
Section 9. Independent Contractor Status
9.1 Nothing contained herein shall constitute the Parties as joint
venturers, partners, employees or agents of one another, and neither Party shall
have the right or power to bind or obligate the other.
9.2 Each Party is an independent contractor, and has and hereby retains
the right to exercise full control of and supervision over its own performance
of its obligations under this Agreement and retains full control over the
employment, direction, compensation and discharge of all employees assisting in
the performance of such obligations. Each Party will be solely responsible for
all matters relating to payment of such employees, including compliance with
social security taxes, withholding taxes or other payroll taxes with respect to
its employees, as well as any taxes, contributions or other obligations imposed
by applicable state unemployment or workers' compensation acts and all other
regulations governing such matters. Each Party has sole authority and
responsibility to hire, fire and otherwise control its employees.
9.3 Subject to the limitations on liability and except as otherwise
provided in this Agreement, each Party shall be responsible for (a) its own acts
and performance of all obligations imposed by applicable law in connection with
its activities, legal status and property, real or personal, and (b) the acts of
its own Affiliates, employees, agents and contractors during the performance of
that Party's obligations hereunder. Except for provisions herein expressly
authorizing one Party to act for the other, nothing in this Agreement shall
constitute a Party as a legal representative or agent of the other Party, nor
shall a Party have the right or authority to assume, create or incur any
liability or any obligation of any kind, express or implied, against or in the
name or on behalf of the other Party unless otherwise expressly permitted by
such other Party. Except as otherwise expressly provided in this Agreement,
neither Party shall undertake to perform any obligation of the other Party,
whether regulatory or contractual, or to assume any responsibility for the
management of the other Party's business.
Section 10. No Third Party Beneficiaries
10.1 The provisions of this Agreement are for the benefit of the Parties
hereto and not for any other person; provided, however, that this shall not be
construed to prevent CO-PROVIDER from providing its Telecommunications Services
to other carriers. This Agreement shall not provide any person not a Party
hereto with any remedy, claim, liability, reimbursement, claim of action or
other right in excess of those existing without reference hereto,
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Section 11. Intellectual Property Rights and Indemnification
11.1 Any intellectual property which originates from or is developed by a
Party shall remain in the exclusive ownership of that Party. Except for a
limited license to use patents or copyrights to the extent necessary for the
Parties to use any facilities or equipment (including software) or to receive
any service solely as provided under this Agreement, no license in patent,
copyright, trademark or trade secret, or other proprietary or intellectual
property right now or hereafter owned, controlled or licensable by a Party, is
granted to the other Party or shall be implied or arise by estoppel. It is the
responsibility of each Party to ensure, at no additional cost to the other
Party, that it has obtained any necessary licenses in relation to intellectual
property of third parties used in its network that may be required to enable the
other Party to use any facilities or equipment (including software), to receive
any service, or to perform its respective obligations under this Agreement.
11.2 The Party providing a service pursuant to this Agreement will defend
the Party receiving such service or data provided as a result of such service
against claims of infringement arising solely from the use by the receiving
Party of such service and will indemnify the receiving Party for any damages
awarded based solely on such claims in accordance with Section 12 of this
Agreement.
Section 12. Indemnification
12.1 Notwithstanding any limitations in remedies contained in this
Agreement, each Party (the "Indemnifying Party") will indemnify and hold
harmless the other Party ("Indemnified Party") from and against any loss, cost,
claim, liability, damage and expense (including reasonable attorney's fees) to
third parties, relating to or arising out of the libel, slander, invasion of
privacy, personal injury or death, property damage, misappropriation of a name
or likeness, negligence or willful misconduct by the Indemnifying Party, its
employees, agents or contractors in the performance of this Agreement or the
failure of the Indemnifying Party to perform its obligations under this
Agreement. In addition, the Indemnifying Party will, to the extent of its
obligations to indemnify hereunder, defend any action or suit brought by a third
party against the Indemnified Party.
12.2 The Indemnified Party will notify the Indemnifying Party promptly in
writing of any written claim, lawsuit or demand by third parties for which the
Indemnified Party alleges that the indemnifying Party is responsible under this
Section 12 and tender the defense of such claim, lawsuit or demand to the
Indemnifying Party. Failure to so notify the Indemnifying Party shall not
relieve the Indemnifying Party of any liability that the Indemnifying Party
might have, except to the extent that such failure prejudices the Indemnifying
Party's ability to defend such claim.
12.3 The Indemnified Party also will cooperate in every reasonable manner
with the defense or settlement of such claim, demand or lawsuit. The
Indemnifying Party shall keep the Indemnified Party reasonably and timely
apprised of the status of the claim, demand or lawsuit. The Indemnified Party
shall have the right to retain its own counsel, including in-house counsel, at
its expense, and participate in, but not direct, the defense; provided, however,
that if there are reasonable defenses in addition to those asserted by the
Indemnifying Party, the Indemnified Party and its counsel may raise and direct
such defenses, which shall be at the expense of the Indemnifying Party.
12.4 The Indemnifying Party will not be liable under this Section 12 for
settlements or compromises by the Indemnified Party of any claim, demand or
lawsuit unless the Indemnifying Party has approved the settlement or compromise
in advance or unless the defense of the claim, demand or lawsuit has been
tendered to the Indemnifying Party in writing and the Indemnifying Party has
failed to timely
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undertake the defense. In no event shall the Indemnifying Party settle or
consent to any judgment pertaining to any such action without the prior written
consent of the Indemnified Party.
Section 13. Limitation of Liability
13.1 Except as otherwise provided in the indemnity section, no Party shall
be liable to the other Party for any Loss, defect or equipment failure caused by
the conduct of the other Party, the other Party's agents, servants, contractors
or others acting in aid or concert with the other Party.
13.2 Except for Losses alleged or made by a Customer of either Party, in
the case of any Loss arising from the negligence or willful misconduct of both
Parties, each Party shall bear, and its obligations under this Section shall be
limited to, that portion (as mutually agreed to by the Parties) of the
resulting expense caused by its (including that of its agents, servants,
contractors or others acting in aid or concert with it) negligence or willful
misconduct.
13.3 Except for indemnity obligations, each Party's liability to the other
Party for any Loss relating to or arising out of any negligent act or omission
in its performance of this Agreement, whether in contract or in tort, shall be
limited to the total amount that is or would have been charged to the other
Party by such negligent or breaching Party for the service(s) or function(s) not
performed or improperly performed.
13.4 In no event shall either Party have any liability whatsoever to the
other Party for any indirect, special, consequential, incidental or punitive
damages, including but not limited to loss of anticipated profits or revenue or
other economic loss in connection with or arising from anything said, omitted or
done hereunder (collectively, "Consequential Damages"), even if the other Party
has been advised of the possibility of such damages; provided, that the
foregoing shall not limit a Party's obligation to indemnify, defend and hold the
other Party harmless against any amounts payable to a third party, including any
losses, costs, fines, penalties, criminal or civil judgments or settlements,
expenses (including attorneys' fees) and Consequential Damages of such third
party. Nothing contained in this Section shall limit either Party's liability to
the other for (i) willful or intentional misconduct (including gross
negligence); (ii) bodily injury, death or damage to tangible real or tangible
personal property proximately caused by such party's negligent act or omission
or that of their respective agents, subcontractors or employees nor shall
anything contained in this Section limit the parties' indemnification
obligations. USWC also remains subject to any applicable liquidated damages
provisions that may be adopted by the Commission.
Section 14. Warranties
14.1 Except as otherwise provided herein, each Party shall perform its
obligations hereunder at a performance level no less than the highest level
which it uses for its own operations, or those of its Affiliates, but in no
event shall a Party use less than reasonable care in the performance of its
duties hereunder.
14.2 USWC warrants that it will meet all requirements under ss.251
(b)(1), (c)(2), (c)(3), and (c)(4)(B) (non-discriminatory access to resale and
network elements and parity with respect to interconnection), ss.251(b)(4)
(access to rights of way), ss.251(b)(2) (number portability), ss.251(b)(3)
(dialing parity), ss.251(c)(3) (access to unbundled network elements), and
ss.251(c)(6) (availability of collocation) of the Act.
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Section 15. Notices
15.1 Except as otherwise provided herein, all notices or other
communication hereunder shall be deemed to have been duly given when made in
writing and delivered in person or deposited in the United States mail,
certified mail, postage prepaid, return receipt requested or delivered by
prepaid overnight express mail, and addressed as follows:
To CO-PROVIDER:
F. Lynne Powers
Vice President - Finance
J. Jeffrey Oxley - Director of Regulatory Affairs
Advanced Telecommunications, Inc.
710 Second Avenue South, Suite 1200
Minneapolis, MN 55402
Phone: (612) 519-6642
Fax: (612) 376-4414
Copy to:
Brian Robinson
ARTER & HADDEN LLP
1801 K Street, NW., Suite 400K
Washington, DC 20006
Phone: (202) 775-7126
Fax: (202) 857-0172
To USWC:
U S WEST Communications, Inc.
Director - Interconnection Compliance
1801 California Street, Suite 2410
Denver, Colorado 80202
To USWC:
U S WEST Law Department
General Counsel - Interconnection
1801 California, 51st Floor
Denver, Colorado 80202
15.2 If personal delivery is selected to give notice, a receipt of such
delivery shall be obtained. The address to which notices or communications may
be given to either Party may be changed by written notice given by such Party to
the other pursuant to this Section 15.
Section 16. - Remedies
16.1 In the event USWC fails to switch a subscriber to CO-PROVIDER service
as provided in this Agreement, USWC shall reimburse CO-PROVIDER in an amount
equal to all fees paid by such subscriber to USWC for such
failed-to-be-transferred services from the time of such failure to switch to the
time at which the subscriber switch is accomplished. This remedy shall be in
addition to all other remedies available to CO-PROVIDER under this Agreement or
otherwise available.
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16.2 All rights of termination, cancellation or other remedies prescribed
in this Agreement, or otherwise available, are cumulative and are not intended
to be exclusive of other remedies to which the injured Party may be entitled at
law or equity in case of any breach or threatened breach by the other Party of
any provision of this Agreement. Use of one or more remedies shall not bar use
of any other remedy for the purpose of enforcing the provisions of this
Agreement. The Parties agree that the remedies for performance standards
failures contained in Attachment 10 to this Agreement are not inconsistent with
any other remedy and are intended only to compensate CO-PROVIDER, partially and
immediately, for the loss in value to CO-PROVIDER for USWC's failure to meet
Performance Standards.
Section 17. Waivers
17.1 No waiver of any provisions of this Agreement and no consent to any
default under this Agreement shall be effective unless the same shall be in
writing and properly executed by or on behalf of the Party against whom such
waiver or consent is claimed.
17.2 No course of dealing or failure of either Party to strictly enforce
any term, right or condition of this Agreement in any instance shall be
construed as a general waiver or relinquishment of such term, right or
condition.
17.3 Waiver by either Party of any default or breach by the other Party
shall not be deemed a waiver of any other default or breach.
17.4 By entering into this Agreement, neither Party waives any right
granted to it pursuant to the Act.
Section 18. Survival
18.1 Any liabilities or obligations of a Party for acts or omissions prior
to the cancellation or termination of this Agreement; any obligation of a Party
under the provisions regarding Indemnification. Confidential Information,
Limitation of Liability and any other provisions of this Agreement which, by
their terms, are contemplated to survive, or to be performed after, termination
of this Agreement, shall survive cancellation or termination thereof.
Section 19. Force Majeure
19.1 Neither Party shall be liable for any delay or failure in performance
of any part of this Agreement from any cause beyond its control and without its
fault or negligence including, without limitation, acts of nature, acts of civil
or military authority, embargoes, epidemics, terrorist acts, riots.
insurrections, fires, explosions, earthquakes, nuclear accidents, floods, work
stoppages, equipment failure, power blackouts, volcanic action, other major
environmental disturbances, unusually severe weather conditions, inability to
secure products or services of other persons or transportation facilities or
acts or omissions of transportation carriers (collectively, a "Force Majeure
Event"). No delay or other failure to perform shall be excused pursuant to this
Section 19 unless such delay or failure and consequences thereof are beyond the
control and without the fault or negligence of the Party claiming excusable
delay or other failure to perform. In the event of any such excused delay in the
performance of a Party's obligation(s) under this Agreement, the due date for
the performance of the original obligation(s) shall be extended by a term equal
to the time lost by reason of the delay. In the event of such delay, the
delaying Party shall perform its obligations at a performance level no less than
that which it uses for its
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own operations. In the event of a labor dispute or strike or work stoppage, the
Parties agree to provide service to each other at a level equivalent to the
level they provide themselves. In the event of a labor dispute or strike or work
stoppage that continues for a period in excess of forty-eight (48) hours,
CO-PROVIDER may obtain replacement services for those services affected by such
labor dispute or strike or work stoppage, in which event any liability of
CO-PROVIDER for the affected services shall be suspended for the period of the
labor strike or dispute or work stoppage. In the event of such performance delay
or failure by USWC, USWC agrees to resume performance in a nondiscriminatory
manner and not favor its own provision of Telecommunications Services above that
of CO-PROVIDER.
Section 20. Non-Discriminatory Treatment
20.1 The provisions of Section 252(i) of the Act shall apply to this
Agreement, including state and federal interpretive regulations in effect from
time to time. In the event any governmental authority or agency permits USWC,
via tariff, to provide any service covered by this Agreement in accordance with
any terms or conditions that individually differ from one or more corresponding
terms or conditions of this Agreement, CO-PROVIDER may elect to amend this
Agreement to reflect any such differing terms or conditions contained in such
tariff, with effect from the date CO-PROVIDER makes such election and for the
remainder of the term of this Agreement. The other services covered by this
Agreement and not covered by such decision or order shall remain unaffected and
shall remain in full force and effect. Notwithstanding the foregoing.
CO-PROVIDER may purchase services out of an effective tariff, regardless of
prices set forth in an existing agreement. (2)
Section 21. Default and Termination
21.1 In the event of a breach of any material provision of this Agreement
by either Party, the non-breaching Party shall give the other Party written
notice thereof, and:
21.1.1 if such material breach is for non-payment of amounts due
hereunder pursuant to Section 3.1.15 of Attachment 8 to this Agreement,
the breaching Party shall cure such breach within thirty (30) days of
receiving such notice. The non-breaching Party shall be entitled to pursue
all available legal and equitable remedies for such breach. Amounts
disputed in good faith and withheld or set off shall not be deemed
"amounts due hereunder" for the purpose of this provision.
21.1.2 if such material breach is for any failure to perform in
accordance with this Agreement, which, in the sole judgment of the
non-breaching Party, adversely affects the non-breaching Party's
subscribers, the non-breaching Party shall give notice of the breach and
the breaching Party shall cure such breach to the non-breaching Party's
reasonable satisfaction within ten (10) days or within a period of time
equivalent to the applicable interval required by this Agreement,
whichever is shorter. If the breaching Party does not cure such breach
within the applicable time period, the non-breaching Party may, at its
sole option, terminate this Agreement, or any parts hereof. The
non-breaching Party shall be entitled to pursue all available legal and
equitable remedies for such breach. Notice under this Section 21.1.2 may
be given electronically or by facsimile, provided that a hard copy or
original of such notice is sent by prepaid overnight delivery service.
21.1.3 if such material breach is for any other failure to perform
in accordance with this
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No. C97-857; DOCKET NO. 96A-345T
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Agreement, the breaching Party shall cure such breach to the non-breaching
Party's reasonable satisfaction within forty-five (45) days, and if it
does not, the non-breaching Party may. at its sole option, terminate this
Agreement, or any parts hereof. The non-breaching Party shall be entitled
to pursue all available legal and equitable remedies for such breach.
21.2 In the event of any termination under this Section 21, USWC agrees to
provide for an uninterrupted transition of services to CO-PROVIDER or another
vendor designated by CO-PROVIDER.
21.3 Notwithstanding any termination hereof, the Parties shall continue to
comply with their obligations under the Act to provide interconnection.
21.4 In the event of breach of any material provision of this Agreement by
either party, the non-breaching party shall have the right to petition the
Commission for relief. This right of recourse to the Commission is in addition
to any other rights available to the parties.
Section 22. Confidentiality and Publicity
22.1 All information, including, but not limited to, specifications,
microfilm, photocopies, magnetic disks, magnetic tapes, drawings, sketches,
models, samples, tools, technical information, data. employee records, maps,
financial reports and market data, (a) furnished by one Party to the other Party
dealing with customer specific, facility specific or usage specific information,
other than customer information communicated for the purpose of publication of
directory database inclusion, or (b) in written, graphic, electromagnetic or
other tangible form and marked at the time of delivery as "Confidential" or
"Proprietary", or (c) declared orally or in writing to the Recipient at the time
of delivery, or by written notice given to the Recipient within ten (10) days
after delivery, to be "Confidential" or "Proprietary" (collectively referred to
as "Proprietary Information"), shall remain the property of the Discloser. A
Party who receives Proprietary Information via an oral communication may request
written confirmation that the material is Proprietary Information. A Party who
delivers Proprietary Information via an oral communication may request written
confirmation that the Party receiving the information understands that the
material is Proprietary Information.
22.2 Upon request by the Discloser, the Recipient shall return all
tangible copies of Proprietary Information, whether written, graphic or
otherwise, except that the Recipient's legal counsel may retain one (1) copy for
archival purposes.
22.3 Each Party shall keep all of the other Party's Proprietary
Information confidential and shall use the other Party's Proprietary Information
only in connection with this Agreement. Neither Party shall use the other
Party's Proprietary Information for any other purpose except upon such terms and
conditions as may be agreed upon between the Parties in writing.
22.4 Unless otherwise agreed, the obligations of confidentiality and
non-use set forth in this Agreement do not apply to such Proprietary Information
as:
22.4.1 was, at the time of receipt, already known to the Recipient
free of any obligation to keep it confidential evidenced by written
records prepared prior to delivery by the Discloser; or
22.4.2 is or becomes publicly known through no wrongful act of the
Recipient; or
22.4.3 is rightfully received from a third person having no direct
or indirect secrecy or
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confidentiality obligation to the Discloser with respect to such
information; or
22.4.4 is independently developed by an employee, agent or
contractor of the Recipient which individual is not involved in any manner
with the provision of services pursuant to this Agreement and does not
have any direct or indirect access to the Proprietary Information; or
22.4.5 is approved for release by written authorization of the
Discloser; or
22.4.6 required by law, a court or governmental agency, provided
that the Discloser has been notified of the requirement promptly after the
Recipient becomes aware of the requirement, and provided that the
Recipient undertakes all lawful measures to avoid disclosing such
information until the Discloser has had reasonable time to obtain a
protective order. The Recipient agrees to comply with any protective order
that covers the Confidential Information to be disclosed.
22.5 During the period of time this Agreement is in full force and effect
and for a period of ten (10) years after termination of this Agreement or from
receipt of Proprietary Information, the Recipient shall (a) use it only for the
purpose of performing under this Agreement, (b) hold it in confidence and
disclose it only to employees, authorized contractors and authorized agents who
have a need to know it in order to perform under this Agreement, and (c)
safeguard it from unauthorized use or disclosure using no less than the degree
of care with which the Recipient safeguards its own Proprietary Information. Any
authorized contractor or agent to whom Proprietary Information is provided must
have executed a written agreement comparable in scope to the terms of this
Section 22.
22.6 Each Party agrees that the Discloser would be irreparably injured by
a breach of this Section 22 by the Recipient or its representatives and that the
Discloser shall be entitled to seek equitable relief, including injunctive
relief and specific performance, in the event of any breach of this Section 22.
Such remedies shall not be exclusive, but shall be in addition to all other
remedies available at law or in equity.
22.7 CPNI related to either Party's subscribers obtained by virtue of
Local Interconnection or any other service provided under this Agreement shall
be the Discloser's Proprietary Information and may not be used by the Recipient
for any purpose except performance of its obligations under this Agreement, and
in connection with such performance, shall be disclosed only to employees,
authorized contractors and authorized agents with a need to know, unless the
subscriber expressly directs the Discloser to disclose such information to the
Recipient pursuant to the requirements of Section 222(c)(2) of the Act. If the
Recipient seeks and obtains written approval to use or disclose such CPNI from
the Discloser, such approval shall be obtained only in compliance with Section
222(c)(2) and, in the event such authorization is obtained, the Recipient may
use or disclose only such information as the Discloser provides pursuant to such
authorization and may not use information that the Recipient has otherwise
obtained, directly or indirectly, in connection with its performance under this
Agreement.
22.8 Except as otherwise expressly provided in this Section 22, nothing
herein shall be construed as limiting the rights of either Party with respect to
its subscriber information under any applicable law, including, without
limitation, Section 222 of the Act.
22.9 Unless otherwise mutually agreed upon, neither Party shall publish or
use the other Party's logo, trademark, service mark, name, language, pictures or
symbols or words from which the other
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Party's name may reasonably be inferred or implied in any product, service,
advertisement promotion or any other publicity matter.
Section 23. Audits
23.1 As used herein, "Audit" shall mean a comprehensive review of services
performed under this Agreement. Either party (the "Requesting Party") may
perform up to two (2) Audits per 12-month period commencing with the Effective
Date of this Agreement. Either party may perform examinations as such Party
deems necessary.(3)
23.2 Upon thirty (30) days' written notice by the Requesting Party to the
other Party (the "Audited Party"), the Requesting Party shall have the right
through its authorized representative to make an Audit or examination, during
normal business hours, of any records, accounts and processes which contain
information bearing upon the provision of the services provided and performance
standards agreed to under this Agreement. Within the above-described 30-day
period, the Parties shall reasonably agree upon the scope of the Audit or
examination, the documents and processes to be reviewed, and the time, place and
manner in which the Audit or examination shall be performed. The Audited Party
agrees to provide Audit or examination support, including appropriate access to
and use of the Audited Party's facilities (e.g., conference rooms, telephones,
copying machines).
23.3 Each Party shall bear its own expenses in connection with the conduct
of the Audit or examination. The reasonable cost of special data extractions
required by the Requesting Party to conduct the Audit or examination will be
paid for by the Requesting Party. For purposes of this Section 23.3, a "Special
Data Extraction" shall mean the creation of an output record or informational
report (from existing data files) that is not created in the normal course of
business. If any program is developed to the Requesting Party's specifications
and at the Requesting Party's expense, the Requesting Party shall specify at the
time of request whether the program is to be retained by the Audited Party for
reuse for any subsequent Audit or examination. Notwithstanding the foregoing,
the Audited Party shall pay all of the Requesting Party's expenses in the event
an Audit or examination results in an adjustment in the charges or in any
invoice paid or payable by the Requesting Party hereunder in an amount that is,
on an annualized basis, more than the greater of (a) one percent (1%) of the
aggregate charges for all services purchased under this Agreement or (b)
$10,000.
23.4 Adjustments, credits or payments shall be made and any corrective
action shall commence within thirty (30) days from the Audited Party's receipt
of the final audit report to compensate for any errors or omissions which are
disclosed by such Audit or examination and are agreed to by the Parties. The
highest interest rate allowable by law for commercial transactions shall be
assessed and shall be computed by compounding daily from the time of the
original due date of the amount of dispute.
23.5 Neither such right to audit nor the right to receive an adjustment
shall be affected by any statement to the contrary appearing on checks or
otherwise.
23.6 This Section 23 shall survive expiration or termination of this
Agreement for a period of two (2) years after such expiration or termination of
this Agreement.
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(3) Per the Public Utilities Commission of the State of Colorado; Decision No.
C97-857; DOCKET NO, 96A-345T
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Section 24. Dispute Resolution Procedures
24.1 The Parties recognize and agree that the Commission has continuing
jurisdiction to implement and enforce all terms and conditions of this
Agreement. Accordingly, the Parties agree that any dispute arising out of or
relating to this Agreement that the Parties themselves cannot resolve, may be
submitted to the Commission for resolution. The Parties agree to seek expedited
resolution by the Commission, and shall request that resolution occur in no
event later than sixty (60) days from the date of submission of such dispute. If
the Commission appoints an expert(s) or other facilitator(s) to assist in its
decision making, each Party shall pay half of the fees and expenses so incurred.
During the Commission proceeding, each Party shall continue to perform its
obligations under this Agreement; provided, however, that neither Party shall be
required to act in any unlawful fashion. This provision shall not preclude the
Parties from seeking relief available in any other forum.
Section 25. Bona Fide Request Process for Further Unbundling
25.1 Any request for interconnection or access to an unbundled Network
Element not already available via price lists, tariff or as described herein
shall be treated as a Request under this Section 25.
25.2 USWC shall use the Bona Fide Request ("BFR") process to determine the
technical feasibility of the requested interconnection or Network Element(s)
and, for those items found to be technically feasible and which meet the
requirements of ss. 251(d)(2) of the Act, to provide the terms and timetable
for providing the requested items. Additionally, elements, services and
functions which are materially or substantially different from those services,
elements or functions already provided by USWC to itself, its Affiliates,
customers, or end users may, at the discretion of CO-PROVIDER, be subject to
this BFR process. (4)
25.3 A Request shall be submitted in writing and, at a minimum, shall
include: (a) a complete and accurate technical description of each requested
Network Element or interconnection; (b) the desired interface specifications;
(c) a statement that the interconnection or Network Element will be used to
provide a telecommunications service; (d) the quantity requested; (e) the
location(s) requested; and (f) whether CO-PROVIDER wants the requested item(s)
and terms made generally available.
25.4 Within forty-eight (48) hours of receipt of a Request, USWC shall
acknowledge receipt of the Request and review such request for initial
compliance with Section 25.3 above and, in its acknowledgment, advise
CO-PROVIDER of any missing information reasonably necessary to move the Request
to the preliminary analysis described in Section 25.5 below.
25.5 Unless otherwise agreed to by the Parties, or pursuant to a
Commission waiver of the requirement, within twenty-one (21) calendar days of
its receipt of the Request and all information necessary to process it, USWC
shall provide to CO-PROVIDER a preliminary analysis of the Request. USWC shall
provide CO-PROVIDER notice of any USWC request for waiver of the 21-day period
at the same time that it files such request, and CO-PROVIDER reserves the option
of opposing the request. During the twenty-one (21) day period, USWC agrees to
provide weekly status updates to CO-PROVIDER. USWC will notify CO-PROVIDER if
the quote preparation fee, if any, will exceed $5,000. CO-PROVIDER will approve
the continuation of the development of the quote prior to USWC incurring any
reasonable additional expenses. The preliminary analysis shall specify whether
or not the requested
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(4) Per the Public Utilities Commission of the State of Colorado; Decision No.
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interconnection or access to an unbundled Network Element is technically
feasible and otherwise qualifies as a Network Element or interconnection as
defined under the Act.
25.5.1 If USWC determines during the twenty-one (21) day period that
a Request is not technically feasible or that the Request otherwise does
not qualify as a Network Element or interconnection required to be
provided under the Act, USWC shall so advise CO-PROVIDER as soon as
reasonably possible of that fact, and promptly provide a written report
setting forth the basis for its conclusion in no case later than ten (10)
calendar days after making such determination.
25.5.2 If USWC determines during the twenty-one (21) day period that
the Request is technically feasible and otherwise qualifies under the Act,
it shall notify CO-PROVIDER in writing of such determination in no case
later than ten (10) calendar days after making such determination.
25.5.3 Unless otherwise agreed to by the Parties, as soon as
feasible, but no more than sixty (60) calendar days after USWC notifies
CO-PROVIDER that the Request is technically feasible, USWC shall provide
to CO-PROVIDER a Request quote which will include, at a minimum, a
description of each interconnection and Network Element, the quantity to
be provided, the installation intervals (both initial and subsequent), the
impact on shared systems software interfaces, the ordering process
changes, the functionality specifications, any interface specifications
and either:
(a) the applicable rates (recurring and nonrecurring), including
the amortized development costs, as appropriate, of the
interconnection or Network Element; or
(b) the payment for development costs, as appropriate, of the
interconnection or Network Element and the applicable rates
(recurring and nonrecurring), excluding the development costs.
25.5.4 The choice of using either option (a) or (b) above shall
be at USWC's sole discretion. A payment for development cost, however,
is appropriate only where CO-PROVIDER is the only conceivable user of
the functionality (including consideration of USWC as a potential user)
or where the requested quantity is insufficient to provide amortization.
25.6 If USWC has used option (a) above in its Request quote, then, within
thirty (30) days of its receipt of the Request quote, CO-PROVIDER must indicate
its nonbinding interest in purchasing the interconnection or Network Element at
the stated quantities and rates, cancel its Request, or seek remedy under the
Dispute Resolution section of this Agreement.
25.7 If USWC has used option (b) above in its Request quote, then, within
thirty (30) days of its receipt of the Request quote, CO-PROVIDER must either
agree to pay the development costs of the interconnection or Network Element,
cancel its Request, or seek remedy under the Dispute Resolution section of this
Agreement.
25.8 If USWC has used option (b) in its Request quote and CO-PROVIDER has
accepted the quote, CO-PROVIDER may cancel the Request at any time, but will pay
USWC's reasonable development costs of the interconnection or Network Element up
to the date of cancellation.
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25.9 USWC will use reasonable efforts to determine the technical
feasibility and conformance with the Act of the Request within the first
twenty-one (21) days of receiving the Request. In the event USWC has used option
(b) above in its Request quote and USWC later determines that the
interconnection or Network Element requested in the Request is not technically
feasible or otherwise does not qualify under the Act, USWC shall notify
CO-PROVIDER within ten (10) business days of making such determination and
CO-PROVIDER shall not owe any compensation to USWC in connection with the
Request. Any quotation preparation fees or development costs paid by CO-PROVIDER
to the time of such notification shall be refunded by USWC.
25.10 To the extent possible, USWC will utilize information from
previously developed BFRs to address similar arrangements in order to shorten
the response times for the currently requested BFR. In the event CO-PROVIDER has
submitted a Request for an interconnection or a Network Element and USWC
determines, in accordance with the provisions of this Section 25, that the
Request is technically feasible and qualifies under the Act, the Parties agree
that CO-PROVIDER's subsequent request or order for the identical type of
interconnection or Network Element shall not be subject to the BFR process.(5)
25.11 CO-PROVIDER shall inform USWC if it requires the BFR request be
expedited beyond the time frames described in this section. USWC shall meet this
request if it can reasonably do so within the capabilities of its readily
available manpower and material acquisition process. USWC shall be entitled to
assess additional costs associated with such a request directly to CO-PROVIDER.
USWC shall provide an estimate of such cost to CO-PROVIDER, and CO-PROVIDER
shall pay such costs in advance of USWC expedition of the request. The amount
paid by CO-PROVIDER shall be subject to revision based on the actual costs
incurred by USWC.
25.12 To the extent USWC is not required by the terms of this Agreement to
provide CO-PROVIDER database or other network related information, and to the
extent USWC does not ordinarily provide such information to its Affiliates,
customers, other carriers or any other Person, CO-PROVIDER shall use the BFR
process to request access to such databases and/or network information. USWC
shall not deny CO-PROVIDER access to information relevant to its provision of
service to its own customers.
Section 26. Branding
26.1 In all cases in which USWC has control over handling of services
CO-PROVIDER may provide using services provided by USWC under this Agreement,
USWC shall, at CO-PROVIDER's sole discretion, brand any and all such services at
all points of customer contact exclusively as CO-PROVIDER services, or otherwise
as CO-PROVIDER may specify, or such services shall be provided with no brand at
all, as CO-PROVIDER shall determine. USWC may not unreasonably interfere with
branding by CO-PROVIDER.
26.2 CO-PROVIDER shall provide the exclusive interface to CO-PROVIDER
subscribers, except as CO-PROVIDER shall otherwise specify. In those instances
where CO-PROVIDER requires USWC personnel or systems to interface with
CO-PROVIDER subscribers, such USWC personnel shall identify themselves as
representing CO-PROVIDER, or such brand as CO-PROVIDER may specify, and shall
not identify themselves as representing USWC or any other entity.
- ----------
(5) Per the Public Utilities Commission of the State of Colorado; Decision No.
C97-857; DOCKET NO. 96A-345T
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26.3 All forms, business cards or other business materials furnished by
USWC to CO-PROVIDER subscribers shall be provided by CO-PROVIDER unless
otherwise agreed by CO-PROVIDER, in its sole discretion, in which case, any such
customer materials shall be subject to CO-PROVIDER's prior review and approval,
and shall bear no corporate name, logo, trademark or trade names other than
CO-PROVIDER or its Affiliates or such other brand as CO-PROVIDER, in its sole
discretion shall determine.
26.4 Except as specifically permitted by CO-PROVIDER, in no event shall
USWC provide information to CO-PROVIDER subscribers about CO-PROVIDER or
CO-PROVIDER's products or services.
26.5 USWC shall provide, for CO-PROVIDER's information, descriptions of
the methods and procedures, training and approaches to be used by USWC to assure
that USWC meets CO-PROVIDER's branding requirements.(6)
26.6 This Section 26 shall confer on USWC no rights to the service marks,
trademarks and trade names owned by or used in connection with services by
CO-PROVIDER or its Affiliates, except as expressly permitted by CO-PROVIDER.
Section 27. Taxes
27.1 Any federal, state or local excise, sales or use taxes (excluding any
taxes levied on income) resulting from the performance of this Agreement shall
be borne by the Party upon which the obligation for payment is imposed under
applicable law, even if the obligation to collect and remit such taxes is placed
upon the other Party. Any such taxes shall be shown as separate items on
applicable billing documents between the Parties. The Party so obligated to pay
any such taxes may contest the same in good faith, at its own expense, and shall
be entitled to the benefit of any refund or recovery, provided that such Party
shall not permit any lien to exist on any asset of the other Party by reason of
the contest. The Party obligated to collect and remit taxes shall cooperate
fully in any such contest by the other Party by providing records, testimony and
such additional information or assistance as may reasonably be necessary to
pursue the contest. To the extent a sale is claimed to be for resale tax
exemption, the purchasing Party shall furnish the providing Party a proper
resale tax exemption certificate as authorized or required by statute or
regulation by the jurisdiction providing said resale tax exemption. Failure to
timely provide said resale tax exemption certificate will result in no exemption
being available to the purchasing Party during the applicable reporting period.
Section 28. Responsibility for Environmental Contamination
28.1 CO-PROVIDER shall in no event be liable to USWC for any costs
whatsoever resulting from the presence or release of any environmental hazard
CO-PROVIDER did not introduce to the affected work location. USWC shall, at
CO-PROVIDER's request, indemnify, defend and hold harmless CO-PROVIDER, and each
of its officers, directors and employees from and against any losses, damages,
claims, demands, suits, liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) arising out of or resulting from (a) any
environmental hazard USWC, its contractors or agents introduce to the work
location, or (b) the presence or release of any environmental hazard for which
USWC is
- ----------
(6) Per the Public Utilities Commission of the State of Colorado; Decision No.
C97-857; DOCKET NO. 96A-345T
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Part A
responsible under applicable law.
28.2 USWC shall in no event be liable to CO-PROVIDER for any costs
whatsoever resulting from the presence or release of any environmental hazard
USWC did not introduce to the affected work location. CO-PROVIDER shall, at
USWC's request, indemnify, defend and hold harmless USWC, and each of its
officers, directors and employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and expenses (including reasonable
attorneys' fees) arising out of or resulting from (a) any environmental hazard
CO-PROVIDER, its contractors or agents introduce to the work location, or (b)
the presence of release of any environmental hazard for which CO-PROVIDER is
responsible under applicable law.
28.3 In the event any suspect materials within USWC-owned, operated or
leased facilities are identified to be asbestos-containing, CO-PROVIDER will
ensure that, to the extent any activities which it undertakes in the facility
disturb such suspect materials, such CO-PROVIDER activities will be in
accordance with applicable local, state and federal environmental and health and
safety statutes and regulations. Except for abatement activities undertaken by
CO-PROVIDER or equipment placement activities that result in the generation of
asbestos containing material, CO-PROVIDER shall not have any responsibility for
managing, nor be the owner of, nor have any liability for, or in connection
with, any asbestos containing material. USWC agrees to immediately notify
CO-PROVIDER if USWC undertakes any asbestos control or asbestos abatement
activities that potentially could affect CO-PROVIDER equipment or operations,
including, but not limited to, contamination of equipment.
28.4 Each Party will be solely responsible, at its own expense, for proper
handling, storing, transport and disposal of all (a) substances or materials
that it or its contractors or agents bring to, create or assume control over at
work locations, or (b) waste resulting therefrom or otherwise generated in
connection with its or its contractors' or agents' activities at the work
locations.
Section 29. Amendments and Modifications
29.1 Except as otherwise provided in this Agreement, no amendment or
waiver of any provision of this Agreement, and no consent to any default under
this Agreement, shall be effective unless the same is in writing and signed by
an officer of the Party against whom such amendment, waiver or consent is
claimed.
Section 30. Severability
30.1 In the event that any one or more of the provisions contained herein
shall for any reason be held to be unenforceable or invalid in any respect under
law or regulation, the Parties will negotiate in good faith for replacement
language. If any part of this Agreement is held to be invalid or unenforceable
for any reason, such invalidity or unenforceability will affect only the portion
of this Agreement which is invalid or unenforceable. In all other respects, this
Agreement will stand as if such invalid or unenforceable provision had not been
a part hereof, and the remainder of this Agreement shall remain in full force
and effect.
Section 31. Headings Not Controlling
31.1 The headings and numbering of Sections, Parts, Appendices and
Attachments in this Agreement are for convenience only and shall not be
construed to define or limit any of the terms herein or affect the meaning or
interpretation of this Agreement.
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Part A
Section 32. Counterparts
32.1 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but such counterparts shall together
constitute one and the same instrument.
Section 33. Referenced Documents
33.1 All references to Sections, Exhibits and Schedules shall be deemed to
be references to Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Whenever any provision of this
Agreement refers to a technical reference, technical publication, CO-PROVIDER
practice, USWC practice, any publication of telecommunications industry
administrative or technical standards or any other document specifically
incorporated into this Agreement, it will be deemed to be a reference to the
most recent version or edition (including any amendments, supplements, addenda
or successors) or such document that is in effect, and will include the most
recent version or edition (including any amendments, supplements, addenda or
successors) of each document incorporated by reference in such a technical
reference, technical publication, CO-PROVIDER practice, USWC practice or
publication of industry standards, unless CO-PROVIDER elects otherwise. Should
there be any inconsistency between or among publications or standards,
CO-PROVIDER shall elect which requirement shall apply.
Section 34. Joint Work Product
34.1 This Agreement is the joint work product of the Parties and has been
negotiated by the Parties and their respective counsel and shall be fairly
interpreted in accordance with its terms and, in the event of any ambiguities,
no inferences shall be drawn against either Party.
Section 35. Cancellation Charges
35.1 Except as provided pursuant to a Network Element, Network
Interconnection and/or Unbundled Network Element Request, or as otherwise
provided in any applicable tariff or contract referenced herein, no cancellation
charges shall apply.
Section 36. Escalation Procedures
36.1 CO-PROVIDER and USWC agree to exchange escalation lists which reflect
contact personnel including vice president-level officers. These lists shall
include name, department, title, phone number, and fax number for each person.
CO-PROVIDER and USWC agree to exchange up-to-date lists as reasonably necessary.
Section 37. Entire Agreement
37.1 - This Agreement shall include the Attachments, Appendices and other
documents referenced herein, all of which are hereby incorporated by reference,
and constitutes the entire agreement between the Parties and supersedes all
prior oral or written agreements, representations, statements, negotiations
understandings, proposals and undertakings with respect to the subject matter
hereof.
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Section 38. Reservation of Rights
38.1 The Parties acknowledge that the terms of this Agreement were
established pursuant to an order of the Commission. Any or all of the terms of
this Agreement may be altered or abrogated by a successful challenge to this
Agreement (or the order approving this Agreement) as permitted by applicable
law. By signing this Agreement, neither Party waives its right to pursue such a
challenge.
38.2 The Parties enter into this Agreement without prejudice to any
position they may have taken previously, or may take in the future in any
legislative, regulatory or other public forum addressing any matters, including
matters related to the types of arrangements prescribed by this Agreement.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed by its duly authorized representatives.
Electro-Tel, Inc. U S WEST Communications, Inc.
By: /s/ F. Lynne Powers By: /s/ Katherine L. Fleming
------------------------------ -----------------------------------
Name/Typed: F. Lynne Powers Name/Typed: Katherine L. Fleming
---------------------- ---------------------------
Title: Vice President - Finance Title: Vice President - Interconnection
--------------------------- --------------------------------
Date: 1/7/00 Date: 1/13/00
---------------------------- ---------------------------------
This Agreement is made pursuant to Section 252 (i) of the Act and is
premised upon the Interconnection Agreement between AT&T Communications of the
Mountain States, Inc. and U S WEST Communications, Inc. (the "AT&T Agreement").
The AT&T Agreement was approved by the Commission on August 28, 1997.
With respect to this Agreement, the Parties understand and agree:
i) The Parties shall request the Commission to expedite its review and approval
of this Agreement.
ii) Notwithstanding the mutual commitments set forth herein, the Parties are
entering into this Agreement without prejudice to any positions they have taken
previously, or may take in the future, in any legislative, regulatory, or other
public forum addressing any matters, including those relating to the types of
arrangements contained in this Agreement. During the proceeding in which the
Commission is to review and approve the Agreement, U S WEST may point out that
it has objected, and continues to object, to the inclusion of the terms and
conditions to which it objected in the proceedings involving the approval of the
Underlying Agreement.
iii) This Agreement contains provisions based upon the decisions and orders of
the FCC and the Commission under and with respect to the Act. Currently, court
and regulatory proceedings affecting the subject matter of this Agreement are in
various stages, including the proceedings where certain of the rules and
regulations of the FCC are being challenged In addition, there is uncertainty in
the aftermath of
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the Supreme Court's decision in AT&T Corp, et al. v. Iowa Utilities Board. Based
on that uncertainty, and the regulatory and judicial proceedings which will
occur as a result of that decision, the Parties acknowledge that this Agreement
may need to be changed to reflect any changes in law. The Agreement has not been
corrected to reflect the requirements, claims or outcomes of any of the
Proceedings, although the pricing does reflect the Commission's most current
generic order, if any. Accordingly, when a final, decision or decisions are made
in the Proceedings that automatically change and modify the Underlying
Agreement, then like changes and modifications will similarly be made to this
Agreement. In addition, to the extent rules or laws are based on regulatory or
judicial proceedings as a result of the recent Supreme Court decision, this
Agreement will be amended to incorporate such changes.
iv) Subsequent to the execution of this Agreement, the FCC or the Commission may
issue decisions or orders that change or modify the rules and regulations
governing implementing of the Act. If such changes or modifications alter the
state of the law upon which the Underlying Agreement was negotiated and agreed,
and it reasonably appears that the parties to the Underlying Agreement would
have negotiated and agreed to different term(s) condition(s) or covenant(s) than
as contained in the Underlying Agreement had such change or modification been in
existence before execution of the Underlying Agreement, then this Agreement
shall be amended to reflect such different terms(s), condition(s), or
covenant(s). Where the parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision of this Agreement.
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Part B
DEFINITIONS
Certain terms used in this Agreement shall have the meanings set forth herein or
as otherwise elsewhere defined throughout this Agreement. Other terms used but
not defined herein will have the meanings ascribed to them in the Act and the
FCC's rules and regulations.
"911 SITE ADMINISTRATOR" is a person assigned by CO-PROVIDER to establish and
maintain 911 service location information for its subscribers.
"911 SERVICE" means a universal telephone number which gives the public direct
access to the Public Safety Answering Point (PSAP). Basic 911 service collects
911 calls from one or more local exchange switches that serve a geographic area.
The calls are then sent to the correct authority designated to receive such
calls.
"ASR" (ACCESS SERVICE REQUEST) means the industry standard forms and supporting
documentation used for ordering Access Services. The ASR may be used to order
trunking and facilities between CO-PROVIDER and USWC for Local Interconnection.
"ACCESS SERVICES" refers to interstate and intrastate switched access and
private line transport services.
"Act" means the Communications Act of 1934 (47 U.S.C.ss.ss.151 et seq.), as
amended by the Telecommunications Act of 1996, and as from time to time
interpreted in the duly authorized rules and regulations of the FCC or by the
Commission.
"AIN" (ADVANCED INTELLIGENT NETWORK) is a network functionality that permits
specific conditions to be programmed into a switch which, when met, directs the
switch to suspend call processing and to receive special instructions for
further call handling instructions in order to enable carriers to offer advanced
features and services.
"AFFILIATE" is an entity that directly or indirectly owns or controls, is owned
or controlled by, or is under common ownership or control with, another entity.
For the purposes of this Agreement, "own" or "control" means to own an equity
interest (or equivalent) of at least ten percent (10%) with respect to USWC, or
the right to control the business decisions, management and policy of another
entity.
"GATEWAY" (ALI GATEWAY) is a telephone company computer facility that interfaces
with CO-PROVIDER's administrative site to receive Automatic Location
Identification (ALI) data from CO-PROVIDER. Access to the Gateway will be via a
dial-up modem using a common protocol.
"AMA" means the Automated Message Accounting structure inherent in switch
technology that initially records telecommunication message information. AMA
format is contained in the Automated Message Accounting document, published by
Bellcore as GR-1100-CORE, which defines the industry standard for message
recording.
"ALI" (AUTOMATIC LOCATION IDENTIFICATION) is a proprietary database developed
for E911 systems that provides for a visual display of the caller's telephone
number and address and the names of the
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Part B
emergency response agencies responsible for that address. The Alternative Local
Exchange Company will provide ALI record information in National Emergency
Number Association (NENA) Version #2 format The ALI also shows an Interim Number
Portability (INP) number, if applicable.
"ALI/DMS" (AUTOMATIC LOCATION IDENTIFICATION/DATA MANAGEMENT SYSTEM) means the
emergency service (E911/911) database containing subscriber location information
(including name, address, telephone number, and sometimes special information
from the local service provider) used to determine to which Public Safety
Answering Point (PSAP) to route the call.
"ANI" (AUTOMATIC NUMBER IDENTIFICATION) is a feature that identifies and
displays the number of a telephone that originates a call.
"ARS" (AUTOMATIC ROUTE SELECTION) is a service feature that provides for
automatic selection of the least expensive or most appropriate transmission
facility for each call based on criteria programmed into the system.
"BLV/BLI" (BUSY LINE VERIFY/BUSY LINE INTERRUPT) means an operator call in which
the end user inquires as to the busy status of, or requests an interruption of,
a call on an Exchange Service.
"CABS" means the Carrier Access Billing System which is defined in a document
prepared under the direction of the Billing Committee of the OBF. The Carrier
Access Billing System document is published by Bellcore in Volumes 1, 1A, 2, 3,
3A, 4 and 5 as Special Reports SR-OPT-001868 SR-OPT-0011869, SR-OPT-001871,
SR-OPT-001872, SR-OPT-001873 SR-OPT-001874, and SR-OPT-001875 respectively, and
contains the recommended guidelines for the billing of access and other
connectivity services.
"CPN" (CALLING PARTY NUMBER) is a Common Channel Signaling parameter which
refers to the number transmitted through the network identifying the calling
party.
"CCS" is Common Channel Signaling.
"CENTRAL OFFICE SWITCH" or "CENTRAL OFFICE" means a switching entity within the
public switched network, including, but not limited to, end office switches and
tandem office switches. Central office switches may be employed as combination
End Office/Tandem Office Switches (Combination Class 5/Class 4).
"CENTREX" means a Telecommunications Service that uses central office switching
equipment for call routing to handle direct dialing of calls and to provide
numerous private branch exchange-like features,
"CHARGE NUMBER" is a CCS parameter which refers to the number transmitted
through the network identifying the billing number of the calling party.
"CLASS" (Bellcore Service Mark) is a set of call-management service features
that utilize the capability to forward a calling party's number between end
offices as part of call setup. Features include Automatic Callback, Automatic
Recall, Caller ID, Call Trace, and Distinctive Ringing.
"COLLOCATION" means the right of CO-PROVIDER to place equipment of its choice in
USWC's central offices or other USWC locations. This equipment may be placed via
either a physical or virtual collocation
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Part B
arrangement. With physical collocation, CO-PROVIDER obtains dedicated space to
place and maintain its equipment. With virtual collocation, USWC will install
and maintain equipment CO-PROVIDER provides to USWC.
"COMBINATIONS" means provision by USWC of two or more currently connected
Network Elements ordered by CO-PROVIDER to provide its Telecommunication
Services in a geographic area or to a specific subscriber and that are placed on
the same or related order by CO-PROVIDER, subject to restrictions, if any,
imposed by the Commission.(1)
"COMMISSION" means the Colorado Public Utilities Commission.
"CCS" (COMMON CHANNEL SIGNALING) means a method of digitally transmitting call
set-up and network control data over a digital signaling network fully separate
from the public switched telephone network that carries the actual call.
"CLEC" means a Competitive Local Exchange Carrier.
"CONDUIT" means a tube or protected pathway that may be used to house
communication or electrical cables. Conduit may be underground or above ground
(for example, inside buildings) and may contain one or more innerducts.
"CONFIDENTIAL INFORMATION" has the meaning set forth in Section 22 of the
General Section of this Agreement.
"CONTRACT YEAR" means a twelve (12) month period during the term of this
Agreement commencing on the Effective Date and each anniversary thereof.
"CONTROL OFFICE" is an exchange carrier center or office designated as its
company's single point of contact for the provisioning and maintenance of its
portion of local interconnection arrangements.
"CUSTOM CALLING FEATURES" is a set of call-management service features available
to residential and single-line business subscribers including call-waiting,
call-forwarding and three-party calling.
"CUSTOMER" means a third-party (residence or business) that subscribes to
Telecommunications Services provided by either of the Parties.
"DBMS" (DATABASE MANAGEMENT SYSTEM) is a computer system used to store, sort,
manipulate and update the data required to provide selective routing and ALI.
"DIRECTORY ASSISTANCE DATABASE" refers to any subscriber record used by USWC in
its provision of live or automated operator-assisted directory assistance
including, but not limited to, 411, 555-1212, NPA-555-1212.
"DIRECTORY ASSISTANCE SERVICES" provides Listings to callers. Directory
Assistance Services may include the option to complete the call at the caller's
direction.
"DIRECTORY LISTINGS" refers to subscriber information, including, but not
limited to, name, address and
- ----------
(1) Per the Public Utilities Commission of the State of Colorado; Decision No.
C97-857; DOCKET NO. 96A-345T
3
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Part B
phone numbers, published in any media, including, but not limited to,
traditional white/yellow page directories, specialty directories, CD ROM, or
other electronic formats.
"DISCLOSER" means that Party to this Agreement which has disclosed Confidential
Information to the other Party.
"E911 Message Trunk" is a dedicated line, trunk or channel between two central
offices or switching devices which provides a voice and signaling path for E911
calls.
"EFFECTIVE DATE" is the date indicated in the Preamble on which this Agreement
shall become effective.
"EMERGENCY RESPONSE AGENCY" is a governmental entity authorized to respond to
requests from the public to meet emergencies.
"ESN" (EMERGENCY SERVICE NUMBER) is a number assigned to the ALI and selective
routing databases for all subscriber telephone numbers. The ESN designates a
unique combination of fire, police and emergency medical service response
agencies that serve the address location of each in-service telephone number.
"EMR" means the Exchange Message Record System used among ILECs for exchanging
telecommunications message information for billable, non-billable, sample,
settlement and study data. EMR format is contained in BR-010-200-010 CRIS
Exchange Message Record, published by Bellcore and which defines the industry
standard for exchange message records.
"E911" (ENHANCED 911 SERVICE) means a telephone communication service which will
automatically route a call dialed "911" to a designated public safety answering
point (PSAP) attendant and will provide to the attendant the calling party's
telephone number and, when possible, the address from which the call is being
placed, and the emergency response agencies responsible for the location from
which the call was dialed.
"ENHANCED DIRECTORY ASSISTANCE" refers to Directory Assistance services,
including, but not limited to, reverse search, talking yellow pages, and locator
services.
"ENHANCED WHITE PAGES" means optional features available for White Pages
Directory listings (e.g. bold, all capitals, logos).
"ENHANCED YELLOW PAGES" means optional features available for Yellow Pages
Directory listings (e.g., red type, bold, all capital, additional line of text,
indented).
"EIS" (EXPANDED INTERCONNECTION SERVICE) is the collocation arrangement which
USWC provides in its designated wire centers.
"FCC INTERCONNECTION ORDER" is the Federal Communications Commission's First
Report and Order in CC Docket No. 96-98, released August 8, 1996.
"ILEC" means the Incumbent Local Exchange Carrier.
"INTERCONNECTION" is the linking of the USWC and CO-PROVIDER networks for the
mutual exchange of traffic. Interconnection does not include the transport and
termination of traffic. Interconnection is
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Part B
provided by virtual or physical collocation, entrance facilities or meet point
arrangements.
"IXC" (INTEREXCHANGE CARRIER) means a provider of interexchange
telecommunications services
"INP" (INTERIM NUMBER PORTABILITY) is a service arrangement whereby subscribers
who change local service providers may retain existing telephone numbers without
impairment of quality, reliability, or convenience when remaining at their
current location or changing their location within the geographic area served by
the initial carrier's serving Central Office.
"IP" (INTERCONNECTION POINT) is a mutually agreed upon point of demarcation
where the networks of USWC and CO-PROVIDER interconnect for the exchange of
traffic.
"LATA" means Local Access Transport Area.
"LEC" means Local Exchange Carrier.
"LIDB" (LINE INFORMATION DATA BASE(S)) is a Service Control Point (SCP) database
that provides for such functions as calling card validation for telephone line
number cards issued by USWC and other entities and validation for collect and
billed-to-third services.
"MSAG" (MASTER STREET ADDRESS GUIDE) is a database defining the geographic area
of an E911 service. It includes an alphabetical list of the street names,
high-low house number ranges, community names, and emergency service numbers
provided by the counties or their agents to USWC.
"CO-PROVIDER 911 DATABASE RECORDS" are the CO-PROVIDER subscriber records to be
provided by CO-PROVIDER to USWC for inclusion in USWC's E911 database.
"MECAB" refers to the Multiple Exchange Carrier Access Billing (MECAB) document
prepared by the Billing Committee of the Ordering and Billing Forum (OBF), which
functions under the auspices of the Carrier Liaison Committee (CLC) of the
Alliance for Telecommunications Industry Solutions (ATIS). The MECAB document,
published by Bellcore as Special Report SR-BDS-000983, contains the recommended
guidelines for the billing of an access service provided by two or more LECs
(including a LEC and a CLEC), or by one LEC in two or more states within a
single LATA.
"MECOD" refers to the Multiple Exchange Carriers Ordering and Design (MECOD)
Guidelines for Access Services - Industry Support Interface, a document
developed by the Ordering/Provisioning Committee under the auspices of the
Ordering and Billing Forum (OBF), which functions under the auspices of the
Carrier Liaison Committee (CLC) of the Alliance for Telecommunications Industry
Solutions (ATIS). The MECOD document, published by Bellcore as Special Report SR
STS-002643, establishes recommended guidelines for processing orders for access
service which is to be provided by two or more LECs (including a LEC and a
CLEC). It is published by Bellcore as SRBDS 00983.
"NORTH AMERICAN NUMBERING PLAN" or "NANP" means the numbering plan used in the
United States that also serves Canada, Bermuda, Puerto Rico and certain
Caribbean Islands. The NANP format is a 10-digit number that consists of a
3-digit NPA code (commonly referred to as the area code), followed by a 3-digit
NXX code and 4-digit line number.
"NENA" (NATIONAL EMERGENCY NUMBER ASSOCIATION) is an association with a mission
to foster the technological advancement, availability and implementation of 911
nationwide.
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Part B
"NETWORK ELEMENT" means a facility or equipment used in the provision of a
Telecommunications Service including all features, functions and capabilities
embedded in such facility or equipment.
"NP" (NUMBER PORTABILITY) means the use of the Local Routing Number (LRN)
database solution to provide fully transparent NP for all subscribers and all
providers without limitation.
"NPA" (NUMBERING PLAN AREA) (sometimes referred to as an area code) is the three
digit indicator which is designated by the first three digits of each 10-digit
telephone number within the NANP. Each NPA contains 800 possible NXX Codes.
There are two general categories of NPA, "Geographic NPAs" and "Non-Geographic
NPAs." A "Geographic NPA" is associated with a defined geographic area, and all
telephone numbers bearing such NPA are associated with services provided within
that Geographic area. A "Non-Geographic NPA," also known as a "Service Access
Code (SAC Code)", is typically associated with a specialized telecommunications
service which may be provided across multiple geographic NPA areas; 500, 800,
900, 700, and 888 are examples of Non-Geographic NPAs.
"NXX," "NXX CODE," OR "CENTRAL OFFICE CODE, OR "CO CODE" is the three (3) digit
switch entity indicator which is defined by the fourth, fifth and sixth digits
of a ten (10) digit telephone number within the North America Numbering Plan
("NANP").
"OBF" means the Ordering and Billing Forum, which functions under the auspices
of the Carrier Liaison Committee (CLC) of the Alliance for Telecommunications
Industry Solutions (ATIS).
"OPERATOR SYSTEMS" is the Network Element that provides operator and automated
call handling with billing, special services, subscriber telephone listings, and
optional call completion services.
"OPERATOR SERVICES" provides (a) operator handling for call completion (e.g.,
collect calls); (b) operator or automated assistance for billing after the
subscriber has dialed the called number (e.g., credit card calls); and (c)
special services (e.g., BLV/BLI, Emergency Agency Call).
"P.01 TRANSMISSION GRADE OF SERVICE (GOS)" means a trunk facility provisioning
standard with the statistical probability of no more than one call in 100
blocked on initial attempt during the average busy hour.
"PLU" (PERCENT LOCAL USAGE) is a calculation which represents the ratio of the
local minutes to the sum of local and intraLATA toll minutes between exchange
carriers sent over Local Interconnection Trunks. Directory assistance, BLV/BLI,
900, 976, transiting calls from other exchange carriers and switched access
calls are not included in the calculation of PLU.
"PERSON" means, collectively, an Affiliate, subsidiary, Customer, end user and
subscriber of U S WEST.
"POINT OF INTERFACE" or "POI" means the physical point that establishes the
technical interface, the test point, and the operational responsibility hand-off
between CO-PROVIDER and USWC for the local interconnection of their networks.
"POLE ATTACHMENT" means the connection of a faculty to a utility pole. Some
examples of facilities are mechanical hardware, grounding and transmission
cable, and equipment boxes.
"POP" means an IXC's point of presence.
6
<PAGE>
Part B
"PROPRIETARY INFORMATION" shall have the same meaning as Confidential
Information.
"PSAP" (PUBLIC SAFETY ANSWERING POINT) is the public safety communications
center where 911 calls placed by the public for a specific geographic area will
be answered.
"RATE CENTER" means the geographic point and corresponding geographic area which
are associated with one or more particular NPA-NXX codes which have been
assigned to USWC or CO-PROVIDER for its provision of Basic Exchange
Telecommunications Services. The "rate center point" is the finite geographic
point identified by a specific V&H coordinate, which is used to measure
distance-sensitive end user traffic to/from the particular NPA-NXX designations
associated with the specific Rate Center. The "rate center area" is the
exclusive geographic area identified as the area within which USWC or
CO-PROVIDER will provide Basic Exchange Telecommunications Services bearing the
particular NPA-NXX designations associated with the specific Rate Center. The
Rate Center point must be located within the Rate Center area.
"REAL TIME" means the actual time in which an event takes place, with the
reporting on or the recording of the event simultaneous with its occurrence.
"RECIPIENT" means that Party to this Agreement (a) to which Confidential
Information has been disclosed by the other Party, or (b) who has obtained
Confidential Information in the course of providing services under this
Agreement.
"RESELLER" is a category of local exchange service providers who obtain dial
tone and associated telecommunications services from another provider through
the purchase of wholesale priced services for resale to their end user
subscribers.
"ROW" (RIGHT OF WAY) means the right to use the land or other property of
another party to place poles, conduits, cables, other structures and equipment,
or to provide passage to access such structures and equipment. A ROW may run
under, on, or above public or private property (including air space above public
or private property) and may include the right to use discrete space in
buildings, building complexes or other locations.
"ROUTING POINT" means a location which USWC or CO-PROVIDER has designated on its
own network as the homing (routing) point for traffic inbound to Basic Exchange
Services provided by USWC or CO-PROVIDER which bear a certain NPA-NXX
designation. The Routing Point is employed to calculate mileage measurements for
the distance-sensitive transport element charges of Switched Access Services.
Pursuant to Bellcore Practice BR 795-100-100, the Routing Point may be an "End
Office" location, or a "LEC Consortium Point of Interconnection". Pursuant to
that same Bellcore Practice, examples of the latter shall be designated by a
common language location identifier (CLLI) code with (x) KD in positions 9, 10,
11, where (x) may by any alphanumeric A-Z or 0-9. The above referenced Bellcore
document refers to the Routing Point as the Rating Point. The Rating
Point/Routing Point need not be the same as the Rate Center Point, nor must it
be located within the Rate Center Area, but must be in the same LATA as the
NPA-NXX.
"SECAB" means the Small Exchange Carrier Access Billing document prepared by the
Billing Committee of the OBF. The Small Exchange Carrier Access Billing
document, published by Bellcore as Special Report SR OPT-001856, contains the
recommended guidelines for the billing of access and other connectivity
services.
7
<PAGE>
Part B
"SELECTIVE ROUTING" is a service which automatically routes an E911 call to the
PSAP that has jurisdictional responsibility for the service address of the
telephone that dialed 911, irrespective of telephone company exchange or wire
center boundaries.
"SWITCH" - See Central Office Switch.
"TANDEM OFFICE SWITCHES" are Class 4 switches which are used to connect and
switch trunk circuits between and among end office switches and other tandems.
"TECHNICALLY FEASIBLE" refers solely to technical or operational concerns,
rather than economic, space, or site considerations.
"TELECOMMUNICATIONS" means the transmission, between or among points specified
by the user, of information of the user's choosing, without change in the form
or content of the information as sent and received.
"TELECOMMUNICATION SERVICES" means the offering of telecommunications for a fee
directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used.
"THOUSANDS BLOCK OF NUMBERS" shall mean 1000 or more consecutive numbers
beginning and ending on a digit boundary, e.g., 949-1000 to 949-1999.
"TRCO" means Trouble Reporting Control Office.
"VOLUNTARY FEDERAL SUBSCRIBER FINANCIAL ASSISTANCE PROGRAMS" are
Telecommunications Services provided to low-income subscribers, pursuant to
requirements established by the appropriate state regulatory body.
"WIRE CENTER" denotes a building or space within a building which serves as an
aggregation point on a given carrier's network, where transmission facilities
and circuits are connected or switched. Wire Center can also denote a building
in which one or more central offices, used for the provision of Basic Exchange
Services and access services, are located. For purposes of EIC service, however,
Wire Center shall mean those points eligible for such connections as specified
in the FCC Docket No. 91-141, and rules adopted pursuant thereto.
8
<PAGE>
Exhibit 10.1.37
AGREEMENT
FOR LOCAL WIRELINE NETWORK INTERCONNECTION
AND
SERVICE RESALE
BETWEEN
ADVANCED TELECOMMUNICATIONS, INC.
AND
U S WEST COMMUNICATIONS, INC.
FOR THE STATE OF UTAH
AGREEMENT NUMBER
CDS-000106-0272
[NOTE: In this Agreement, italicized language corresponds to language agreed to
by the Parties; BOLD LANGUAGE corresponds to language included to comply with
the Commissions Orders]; BOLD LANGUAGE IN ITALICs corresponds to agreed language
regarding a subject addressed in the Commission's Orders
<PAGE>
Part A
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
RECITALS ........................................................................................................1
SCOPE OF AGREEMENT...............................................................................................1
DEFINITIONS .....................................................................................................2
TERMS AND CONDITIONS............................................................................................13
1. General Provisions............................................................................13
2. Most Favored Nation Terms and Treatment.......................................................15
3. Payment.......................................................................................15
4. Taxes.........................................................................................15
5. Intellectual Property.........................................................................16
6. Severability..................................................................................16
7. Responsibility for Environmental Contamination................................................17
8. Branding......................................................................................17
9. Independent Contractor Status.................................................................18
10. Referenced Documents..........................................................................19
11. Publicity and Advertising.....................................................................19
12. Executed in Counterparts......................................................................19
13. Headings Not Controlling......................................................................19
14. Joint Work Product............................................................................20
15. Survival......................................................................................20
16. Effective Date................................................................................20
17. Amendment of Agreement........................................................................20
18. Indemnification...............................................................................20
19. Limitation of Liability.......................................................................21
20. Term of Agreement.............................................................................22
21. Governing Law.................................................................................22
22. Cancellation Charges..........................................................................22
23. Regulatory Approvals..........................................................................23
24. Compliance....................................................................................23
25. Force Majeure.................................................................................24
26. Escalation Procedures.........................................................................24
27. Dispute Resolution............................................................................25
28. Nondisclosure.................................................................................26
29. Notices.......................................................................................28
31. Warranties....................................................................................29
32. Default.......................................................................................29
33. Remedies......................................................................................30
34. Waivers.......................................................................................31
</TABLE>
Page ii
<PAGE>
Part A
<TABLE>
<S> <C>
35. No Third Party Beneficiaries..................................................................31
36. Physical Security.............................................................................31
37. Network Security..............................................................................32
38. Revenue Protection............................................................................32
39. Law Enforcement Interface.....................................................................33
40. Collocation...................................................................................33
41. Technical References - Collocation............................................................45
42. Number Portability............................................................................45
43. Dialing Parity................................................................................54
44. Directory Listings............................................................................54
46. U S WEST Dex Issues...........................................................................57
47. Access to Poles, Ducts, Conduits, and Rights of Way...........................................57
48. Bona Fide Request Process for Further Unbundling..............................................62
49. Audit Process.................................................................................65
50. Miscellaneous Services........................................................................66
51. Unused Transmission Media.....................................................................84
52. Service Standards.............................................................................85
53. Entire Agreement..............................................................................86
54. Reservation of Rights.........................................................................87
</TABLE>
ATTACHMENTS
Attachment 1 Rates and Charges
Attachment 2 Resale
Attachment 3 Unbundled Access/Elements
Attachment 4 Interconnection
Attachment 5 Business Process Requirements
Attachment 6 Electronic Interfaces(1)
Attachment 7 Implementation Schedule(2)
___________________________
(1) CO-PROVIDER/USWC Agreement Only
(2) CO-PROVIDER/USWC Agreement Only
Page iii
<PAGE>
Part A
This Interconnection Agreement (this "Agreement"), is entered into by
and between Advanced Telecommunications, Inc., a Utah Corporation, and U S WEST
Communications, Inc., a Colorado corporation, to establish the rates, terms and
conditions for local interconnection, local resale, and the purchase of
unbundled network elements (individually referred to as the "service" or
collectively as the "services").
RECITALS
WHEREAS, pursuant to this Agreement, CO-PROVIDER and U S WEST will
extend certain arrangements to one another within each LATA in which they both
operate within Utah. This Agreement is a combination of agreed terms and terms
imposed by arbitration under Section 252 of the Communications Act of 1934, as
modified by the Telecommunications Act of 1996, the rules and regulations of the
Federal Communications Commission, and the orders, rules and regulations of the
Utah Public Service Commission; and as such does not necessarily represent the
position of either Party on any given issue; and
WHEREAS, the Parties wish to interconnect their local exchange
networks in a technically and economically efficient manner for the transmission
and termination of calls, so that subscribers of each can seamlessly receive
calls that originate on the other's network and place calls that terminate on
the other's network, and for CO-PROVIDER's use in the provision of exchange
access ("Local Interconnection"); and
WHEREAS, CO-PROVIDER wishes to purchase Telecommunications Services
for resale to others, and U S WEST is willing to provide such services; and
WHEREAS, CO-PROVIDER wishes to purchase on an unbundled basis Network
Elements, Ancillary Services and Functions and additional features separately or
in any Combination, and to use such services for itself or for the provision of
its Telecommunications Services to others, and U S WEST is willing to provide
such services;
Now, therefore, in consideration of the terms and conditions contained
herein, CO-PROVIDER and U S WEST hereby mutually agree as follows:
SCOPE OF AGREEMENT
A. This Agreement specifies the rights and obligations of each Party
with respect to the purchase and sale of Local Interconnection, Local Resale and
Network Elements in the LATA in Utah where U S WEST operates.
B. In the performance of their obligations under this Agreement, the
Parties shall act in good faith and consistently with the intent of the Act.
Where notice, approval or similar action by a Party is permitted or required by
any provision of this Agreement (including, without limitation, the obligation
of the Parties to further negotiate the resolution of new or open issues under
this Agreement) such action shall not be unreasonably delayed, withheld or
conditioned.
C. U S WEST will provide CO-PROVIDER with at least the level of
service quality or performance of obligations under this Agreement as U S WEST
provides itself or any other Person with respect to all Telecommunications
Services, Local Interconnection, Services for Resale, and Network
Page 1
<PAGE>
Part A
Elements as applicable and shall provide such level of service quality or
performance of service obligations in accordance with the specific requirements
agreed to in Attachment 5.
D. U S WEST shall provide to CO-PROVIDER Services for Resale that are
equal in quality, subject to the same conditions (including the conditions in
U S WEST's effective tariffs which are not otherwise inconsistent with the terms
and conditions contained herein), within the same provisioning time intervals
that U S WEST provides these services to itself, its Affiliates and others,
including end users, and in accordance with any applicable Commission service
quality standards, including standards the Commission may impose pursuant to
Section 252 (e)(3) of the Act.
E. Each Network Element provided by U S WEST to CO-PROVIDER shall be
at least equal. in the quality of design, performance, features, functions,
capabilities and other characteristics, including, but not limited to, levels
and types of redundant equipment and facilities for power, diversity and
security, that U S WEST provides to itself, U S WEST's own subscribers, to a U S
WEST Affiliate or to any other entity.
F. The Parties agree to work jointly and cooperatively in testing and
implementing processes for pre-ordering, ordering, maintenance, provisioning and
billing and in reasonably resolving issues which result from such implementation
on a timely basis.
G. If a Party makes a change in its network which it believes will
materially affect the interoperability of its network with that of the other
Party, the Party making the change shall provide advance notice of such change
to the other Party in accordance with applicable FCC or Commission regulations.
H. In accordance with Section 251(c)(5) of the Act and the rules and
regulations established by the FCC and the Commission, the Parties shall provide
reasonable notice of changes in the information necessary for the transmission
and routing of services using that local exchange carrier's facilities or
network, as well as of any other changes that would affect the interoperability
of those facilities and networks.
I. Except as otherwise provided for in Section 8 of Attachment 2, U S
WEST shall not discontinue or refuse to provide any service required hereunder
without CO-PROVIDER'S prior written agreement in accordance with Section 17 of
this Part A, nor shall U S WEST reconfigure, reengineer or otherwise redeploy
its network in a manner which would materially impair CO-PROVIDER'S ability to
offer Telecommunications Services in the manner contemplated by this Agreement,
the Act or the FCC s rules and regulations. U S WEST agrees that all obligations
undertaken pursuant to this Agreement, including, without limitation,
performance standards, intervals, and technical requirements are material
obligations hereof and that time is of the essence.
DEFINITIONS
Certain terms used in this Agreement shall have the meanings set forth
herein or as otherwise elsewhere defined throughout this Agreement. Other terms
used but not defined herein will have the meanings ascribed to them in the Act
and the FCC's rules and regulations.
"911 Service" means a universal telephone number which gives the public direct
access to the Public Safety Answering Point (PSAP). Basic 911 service collects
911 calls from one or more local exchange switches that serve a geographic area.
The calls are then sent to the correct authority designated to receive such
calls.
Page 2
<PAGE>
Part A
"911 Site Administrator" is a person assigned by CO-PROVIDER to establish and
maintain 911 service location information for its subscribers.
"Access Services" refers to interstate and intrastate switched access and
private line transport services.
"Act" means the Communications Act of 1934 (47 U.S.C. Section 151 et seq.), as
amended by the Telecommunications Act of 1996, and as from time to time
interpreted in the duly authorized rules and regulations of the FCC or by the
Commission.
"ADSL" or "Asymmetrical Digital Subscriber Line" means a transmission technology
which transmits an asymmetrical digital signal using one of several transmission
methods (for example, carrier-less AM/PM discrete multi-tone, or discrete
wavelet multi-tone).
"Affiliate" is an entity, as defined in the Act, that directly or indirectly
owns or controls, is owned or controlled by, or is under common ownership or
control with, another entity. For the purposes of this Agreement, "own" or
"control" means to own an equity interest (or equivalent) of at least ten
percent (10%), or the right to control the business decisions, management and
policy of another entity performing any of the obligations set forth in this
Agreement.
"AIN" ("Advanced Intelligent Network") is a network functionality that permits
specific conditions to be programmed into a switch which, when met, directs the
switch to suspend call processing and to receive special instructions for
further call handling instructions in order to enable carriers to offer advanced
features and services.
"AIN Services" means architecture and configuration of the AIN Triggers within
the SCP as developed and/or offered by U S WEST to its customers.
"ALI" (Automatic Location Identification) is a database developed for E911
systems that provides for a visual display of the caller's telephone number and
address, and the names of the emergency response agencies responsible for that
address. The ALI also shows an Interim Number Portability (INP) number, if
applicable.
"ALI/DMS" (Automatic Location Identification/Data Management System) means the
emergency service (E911/911) database containing subscriber location information
(including name, address, telephone number, and sometimes special information
from the local service provider) used to determine to which Public Safety
Answering Point (PSAP) to route the call.
"AMA" means the Automated Message Accounting structure that initially records
telecommunication message information. AMA format is contained in the Automated
Message Accounting document, published by Bellcore as GR-1100-CORE, which
defines the industry standard for message recording.
"Ancillary Services" or "Ancillary Functions" means, collectively, the
following: (1) Collocation as described in Section 40; (2) access to poles,
ducts, conduits and rights of way as described in Section 47; (3) unused
transmission media as described in Section 51; (4) Directory Listings as
described in Section 44; (5) E911 as described in Section 50.1; (6) Directory
Assistance Service as described in Section 50.2; (7) Operator Services as
described in Section 50.3; (8) Directory Assistance and listings services
requests as described in Section 50.4; and (9) Directory Assistance data as
described in Section 50.5.
Page 3
<PAGE>
Part A
"ANI" (Automatic Number Identification) is a feature that identifies and
displays the number of a telephone that originates a call.
"ARS" (Automatic Route Selection) is a service feature that provides for
automatic selection of the least expensive or most appropriate transmission
facility for each call based on criteria programmed into the system.
"ASR" (Access Service Request) means the industry standard forms and supporting
documentation used for ordering Access Services. The ASR may be used to order
trunking and facilities between CO-PROVIDER and U S WEST for Local
Interconnection.
"BLV/BLI" (Busy Line Verify/Busy Line Interrupt) means an operator call in which
the end user inquires as to the busy status of, or requests an interruption of,
a telephone call.
"Business Day" means any day Monday through Friday except for mutually agreed to
holidays.
"CABS" means the Carrier Access Billing System which is defined in a document
prepared by the Billing Committee of the OBF. The Carrier Access Billing System
document is published by Bellcore in Volumes 1, lA, 2, 3, 3A, 4 and 5 as Special
Reports SR-OPT-001868, SR-OPT-0011869, SR-OPT-001871, SR-OPT-001872,
SR-OPT-001873, SR-OPT-001874, and SR-OPT-001875, respectively, and contains the
recommended guidelines for the billing of access and other connectivity
services.
"Calling Party Number or "CPN" is a CCS parameter which refers to the number
transmitted through a network identifying the calling party.
"CCS" (Common Channel Signaling) means a method of digitally transmitting call
set-up and network control data over a digital signaling network fully separate
from the public switched telephone network that carries the actual call.
"Central Office Switch" means a switch used to provide Telecommunications
Services, including, but not limited to:
a) "End Office Switches" which are used to terminate Customer
station loops for the purpose of interconnecting to each other
and to trunks;
b) "Tandem Office Switches" which are used to connect and switch
trunk circuits between and among other Central Office Switches.
Access tandems provide connections for exchange access and toll
traffic while local tandems provide connections for local/EAS
traffic; or
c) Combination End Office/Tandem Office Switches.
"Centrex", including Centrex Plus, means a Telecommunications Service that uses
central office switching equipment for call routing to handle direct dialing of
calls and to provide numerous private branch exchange-like features.
"Charge Number" is a CCS parameter which refers to the number transmitted
through the network identifying the billing number of the calling party.
Page 4
<PAGE>
Part A
"CLASS" (Bellcore Service Mark) is a set of call-management service features
that utilize the capability to forward a calling party's number between end
offices as part of call setup. Features include Automatic Callback, Automatic
Recall, Caller ID, Call Trace, and Distinctive Ringing.
"CLEC" means a Competitive Local Exchange Carrier.
"Combinations" means provision by U S WEST of two or more connected Network
Elements ordered by CO-PROVIDER to provide its Telecommunication Services in a
geographic area or to a specific subscriber and that are placed on the same or
related order by CO-PROVIDER, subject to restrictions, if any, imposed by the
Commission.
"Commission" means the Utah Public Service Commission.
"Competitive Local Exchange Carrier" or "CLEC" means an entity authorized to
provide Local Exchange Service that does not otherwise qualify as an incumbent
LEC.
"Conduit" means a tube or protected pathway that may be used to house
communication or electrical cables. Conduit may be underground or above ground
(for example, inside buildings) and may contain one or more innerducts.
"Confidential Information" has the meaning set forth in Section 28 of Part A of
this Agreement.
"Contract Year" means a twelve (12) month period during the term of this
Agreement commencing on the Effective Date and each anniversary thereof.
"Control Office" is an exchange carrier center or office designated as its
company's single point of contact for the provisioning and maintenance of its
portion of local interconnection arrangements.
"Co-Provider" means Advanced Telecommunications, Inc. and any Affiliates,
subsidiary companies or other entities performing any of the obligations of
Advanced Telecommunications, Inc. set forth in this Agreement. FOR PURPOSES OF
SECTION 47 OF THIS PART A OF THIS AGREEMENT, THE OBLIGATIONS OF ADVANCED
TELECOMMUNICATIONS, INC. SHALL BE LIMITED TO THOSE FACILITIES OF ADVANCED
TELECOMMUNICATIONS, INC. THAT ARE USED FOR THE PURPOSE OF PROVIDING LOCAL
SERVICES UNDER THE TERMS OF THIS AGREEMENT.(3)
"Custom Calling Features" is a set of call-management service features available
to residential and business subscribers including call-waiting, call-forwarding
and three-party calling.
"Customer" means a third-party (residence or business) that subscribes to
Telecommunications Services provided by either of the Parties.
"DBMS" (Database Management System) is a computer system used to store, sort,
manipulate and update the data required to provide, for example, selective
routing and ALI.
"Databases" are the Network Elements that provide the functionality for storage
of, access to, and manipulation of information required to offer a particular
service and/or capability. Databases include, but
__________________________
(3) The underlined text in the definition of CO-PROVIDER is included only
because U S WEST prevailed on the issue of reciprocal access to poles, ducts,
conduits and ROW in Section 47.1
Page 5
<PAGE>
Part A
are not limited to: Number Portability, LIDB, Toll Free Number Database,
Automatic Location Identification/Data Management System, and AIN.
"Digital Signal Level" means one of several transmission rates in the time
division multiplexing hierarchy, including, but not limited to:
"Digital Signal Level 0" or "DS-0" means the 56 or 64 Kbps zero-level
signal in the time-division multiplex hierarchy.
"Digital Signal Level 1" or "DS-1" means the 1.544 Mbps first-level
signal in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS-1 is the initial
level of multiplexing.
"Digital Signal Level 3" or "DS-3" means the 44.736 Mbps third-level
in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS-3 is defined as
the third level of multiplexing.
"Directory Assistance Database" refers to any set of subscriber records used by
U S WEST in its provision of live or automated operator-assisted Directory
Assistance including, but not limited to, 411, 555-1212, NPA-555-121 2.
"Directory Assistance Service" provides listings to callers. Directory
Assistance Services may include the option to complete the call at the caller's
direction.
"Directory Listings" or "Listings" refers to subscriber information, including,
but not limited to, name, address and phone numbers, in Directory Assistance
Services or directory products.
"Discloser" means that Party to this Agreement which has disclosed Confidential
Information to the other Party.
"E911" (Enhanced 911 Service) means a telephone communication service which will
automatically route a call dialed "911" to a designated Public Safety Answering
Point (PSAP) attendant and will provide to the attendant the calling party's
telephone number and, when possible, the address from which the call is being
placed, and the emergency response agencies responsible for the location from
which the call was dialed.
"E911 Message Trunk" is a dedicated line, trunk or channel between two central
offices or switching devices which provides a voice and signaling path for E911
calls.
"Extended Area Service" ("EAS") is intraLATA traffic treated as "local" traffic
between exchanges (rather than as "toll" traffic) as established by the
Commission and as reflected in the effective U S WEST tariffs.
"Effective Date" is the date, indicated in the Preamble, on which this Agreement
shall become effective.
"Emergency Response Agency" is a governmental entity authorized to respond to
requests from the public to meet emergencies.
"EMR" means the Exchange Message Record System used among LECs for exchanging
telecommunications message information for billable, non-billable, sample,
settlement and study data.
Page 6
<PAGE>
Part A
EMR format is contained in BR-010-200-010 CRIS Exchange Message Record,
published by Bellcore, which defines the industry standard for exchange message
records.
"ESN" (Emergency Service Number) is a number assigned to the ALI and selective
routing databases for all subscriber telephone numbers. The ESN designates a
unique combination of fire, police and emergency medical service response
agencies that serve the address location of each in-service telephone number.
"FCC" means the Federal Communications Commission.
"FCC Interconnection Order" is the Federal Communications Commission's First
Report and Order in CC Docket No. 96-98 released August 8,1996, as effective.
"Fiber-Meet" means an interconnection architecture method whereby the Parties
physically interconnect their networks via an optical fiber interface (as
opposed to an electrical interface) at a mutually agreed upon location.
"Gateway" (ALI Gateway) is a telephone company computer facility that interfaces
with CO-PROVIDER `s 911 administrative site to receive Automatic Location
Identification (ALI) data from CO-PROVIDER. Access to the Gateway will be via a
dial-up modem using a common protocol.
"HDSL" or "High-Bit Rate Digital Subscriber Line" means a two-wire or four-wire
transmission technology which typically transmits a DS-1 level signal (or,
higher level signals with certain technologies), using, for example, 2 Binary/1
Quartenary ("2B1Q").
"ILEC" means the incumbent local exchange carrier.
"Information Service Traffic" means traffic which originates on a local access
line and which is addressed to an information service provider.
"INP" (Interim Number Portability) is a service arrangement whereby subscribers
who change local service providers may retain existing telephone numbers with
minimal impairment of quality, reliability, or convenience when remaining at
their current location or changing their location within the geographic area
served by the initial carrier's serving central office.
"Integrated Digital Loop Carrier" ("IDLC") means a digital subscriber loop
carrier system which interfaces with the switch digitally at a DS-1 (1.544Mbps)
or higher level.
"Integrated Services Digital Network" or "ISDN" means a switched network service
that provides end-to-end digital connectivity for the simultaneous transmission
of voice and data. Basic Rate Interface-ISDN (BRI-ISDN) provides for a digital
transmission of two 64 Kbps bearer channels and one 16 Kbps data channel (2B+D).
Primary Rate Interface-ISDN (PRI-ISDN) provides for a digital transmission of
twenty-three (23) 64 Kbps bearer channels and one 64 Kbps data channel (23B+D).
"Interconnection" is as described in the Act and refers to the connection of
separate pieces of equipment, facilities, or platforms between or within
networks for the purpose of transmission and routing of telephone exchange
service traffic and exchange access traffic.
"IXC" (Interexchange Carrier) means a provider of interexchange
Telecommunications Services.
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Part A
"LATA" means Local Access Transport Area.
"LEC" means local exchange carrier.
"LIDB" (Line Information Data Base(s)) is an SOP database that provides for such
functions as calling card validation for telephone line number cards issued by
LECs and other entities and validation for collect and billed-to-third services.
"Local Interconnection" shall have the meaning set forth in the Recitals to this
Agreement.
"Local Resale" or "Services for Resale" or "Resale Services" means,
collectively, Telecommunications Services and service functions provided by U S
WEST to CO-PROVIDER pursuant to Attachment 2 of this Agreement.
"Local Traffic" is intraLATA traffic within an exchange that is treated as toll
free traffic as established by the Commission and as reflected in the effective
tariffs of U S WEST.
"Loop" is a transmission facility between a distribution frame, or its
equivalent, in a U S WEST central office or wire center, and the Network
Interface Device (as defined herein) or network interface at a subscriber's
premises, to which CO-PROVIDER is granted exclusive use. This includes, but is
not limited to, two-wire and four-wire analog voice-grade loops, and two-wire
and four-wire loops that are conditioned to transmit the digital signals needed
to provide ISDN, ADSL, HDSL, and DS-1 level signals. A Loop may be composed of
the following components:
Loop Concentrator/Multiplexer
Loop Feeder
Network Interface Device (NID)
Distribution
"Main Distribution Frame" or "MDF" means the distribution frame of the Party
providing the Loop used to interconnect cable pairs and line and trunk equipment
terminals on a switching system or transmission facility.
"MECAB" refers to the Multiple Exchange Carrier Access Billing (MECAB) document
prepared by the Billing Committee of the Ordering and Billing Forum, which
functions under the auspices of the Carrier Liaison Committee (CLC) of the
Alliance for Telecommunications Industry Solutions (ATIS). The MECAB document,
published by Bellcore as Special Report SR-BDS-000983, contains the recommended
guidelines for the billing of an access service provided by two or more LECs
(including a LEC and a CLEC), or by one LEC in two or more states within a
single LATA.
"MECOD" refers to the Multiple Exchange Carriers Ordering and Design (MECOD)
Guidelines for Access Services Industry Support Interface, a document developed
by the Ordering/Provisioning Committee under the auspices of the Ordering and
Billing Forum, which functions under the auspices of the Carrier Liaison
Committee (CLC) of the Alliance for Telecommunications Industry Solutions
(ATIS). The MECOD document, published by Bellcore as Special Report SR
STS-002643, establishes recommended guidelines for processing orders for access
service which is to be provided by two or more LECs (including a LEC and a
CLEC). It is published by Bellcore as SRBDS 00983.
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Part A
"Meet-Point Billing" or "MPB" refers to an arrangement whereby two LECs
(including a LEC and CO-PROVIDER) jointly provide Switched Access Service to an
Interexchange Carrier, with each LEC (or CO-PROVIDER) receiving an appropriate
share of the access element revenues.
"Mid-Span Meet" is a point of interconnection between two networks, designated
by two Telecommunications Carriers, at which one carrier's responsibility for
service begins and the other carrier's responsibility ends.
"MSAG" (Master Street Address Guide) is a database defining the geographic area
of an E91 1 service. It includes an alphabetical list of the street names,
high-low house number ranges, community names, and emergency service numbers
provided by the counties or their agents to U S WEST.
"North American Numbering Plan" or "NANP" means the numbering plan used in the
United States that also serves Canada, Bermuda, Puerto Rico and certain
Caribbean Islands. The NANP format is a 10-digit number that consists of a
3-digit NPA code (commonly referred to as the area code), followed by a 3-digit
NXX code and 4-digit line number.
"NENA" (National Emergency Number Association) is an association with a mission
to foster the technological advancement, availability and implementation of 911
nationwide.
"NETWORK ELEMENT" MEANS A FACILITY OR EQUIPMENT USED IN THE PROVISION OF A
TELECOMMUNICATIONS SERVICE INCLUDING ALL FEATURES, FUNCTIONS AND CAPABILITIES
EMBEDDED in SUCH FACILITY OR EQUIPMENT.(4)
"NP" (Number Portability) means the use of the Location Routing Number (LRN)
database solution to provide fully transparent NP for all subscribers and all
providers without limitation.
"NPA" (Numbering Plan Area) (sometimes referred to as an area code) is the three
digit indicator which is designated by the first three digits of each 10-digit
telephone number within the NANP. Each NPA contains 792 possible NXX Codes.
There are two general categories of NPA, "geographic NPAs" and "Non-Geographic
NPAs." A "Geographic NPA" is associated with a defined geographic area, and all
telephone numbers bearing such NPA are associated with services provided within
that geographic area. A "Non-Geographic NPA," also known as a "Service Access
Code (SAC Code)" is typically associated with a specialized Telecommunications
Service which may be provided across multiple geographic NPA areas; 500, 800,
900, 700, and 888 are examples of Non-Geographic NPAs.
"NXX" means the fourth, fifth and sixth digits of a ten-digit telephone number
within the North American Numbering Plan.
"OBF" means the Ordering and Billing Forum, which functions under the auspices
of the Carrier Liaison Committee (CLC) of the Alliance for Telecommunications
Industry Solutions (ATIS).
"Operator Services" includes, but is not limited to, (1) operator handling for
call completion (e.g., collect calls); (2) operator or automated assistance for
billing after the subscriber has dialed the called number (e.g., credit card
calls); and (3) special services (e.g. BLV/BLI, emergency agency call).
"Operator Systems" is the Network Element that provides operator and automated
call handling with billing, special services, subscriber telephone listings, and
optional call completion services.
__________________________
(4) AT&T Order at pg. 1, "Local Switch - Vertical Features"
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"P.01 Transmission Grade of Service (GOS)" means a trunk facility provisioning
standard with the statistical probability of no more than one call in 100
blocked on initial attempt during the average busy hour.
"PLU" (Percent Local Usage) is a calculation which represents the ratio of the
local minutes to the sum of local and intraLATA toll minutes between exchange
carriers sent over Local Interconnection trunks. Directory assistance, BLV/BLI,
900, 976, transiting calls from other exchange carriers and switched access
calls are not included in the calculation of PLU.
"Party" means either U S WEST or CO-PROVIDER and "Parties" means U S WEST and
CO-PROVIDER. "Person" means, collectively, an Affiliate, subsidiary, Customer,
end user and subscriber of U S WEST.
"Point of Interconnection" or "P01" means the physical point that establishes
the technical interface, the test point, where applicable, and the operational
responsibility hand-off between CO-PROVIDER and U S WEST for the local
interconnection of their networks for the mutual exchange of traffic.
"Point of Interface" is the physical point where CO-PROVIDER hands off
transmission media to the U S WEST provided entrance facility associated with a
Collocation arrangement for the purpose of connecting the entrance facility to
some point located within U S WEST's premises.
"Pole Attachment" means the connection of a facility to a utility pole. Some
examples of facilities are mechanical hardware, grounding and transmission
cable, and equipment boxes.
"POP" means an IXC's point of presence.
"PORT" MEANS A TERMINATION ON A CENTRAL OFFICE SWITCH THAT PERMITS CUSTOMERS TO
SEND OR RECEIVE TELECOMMUNICATIONS SERVICES OVER THE PUBLIC SWITCHED NETWORK,
INCLUDING SWITCH FEATURES OR SWITCHING FUNCTIONALITY.(5)
"PREMISES" REFERS TO U S WEST'S CENTRAL OFFICES AND SERVING WIRE CENTERS, AS
WELL AS ALL BUILDINGS OR SIMILAR STRUCTURES OWNED OR LEASED BY U S WEST THAT
HOUSE ITS NETWORK FACILITIES, AND ALL STRUCTURES THAT HOUSE U S WEST FACILITIES
ON PUBLIC RIGHTS-OF-WAY, INCLUDING, BUT NOT LIMITED TO, VAULTS CONTAINING LOOP
CONCENTRATORS OR SIMILAR STRUCTURES.(6)
"Premium Listing", such as additional, foreign, cross reference, informational,
non-listed, privacy, etc. are as described in the U S WEST general exchange
listing tariff.
"Primary Listing" (for example, main list, additional main, joint user, client
main list or answering service list) shall mean the one appearance of an end
user telephone subscriber's main telephone number and other content such as name
and address, which each CO-PROVIDER residence or business subscriber is entitled
to receive in the white pages directory published by U S WEST Dex at no charge
from U S WEST Communications. here U S WEST business end users are entitled to
receive a courtesy listing in the yellow pages section of any directory
published on U S WEST's behalf, CO-PROVIDER's business customers will receive
the same entitlement.
"Proprietary Information" shall have the same meaning as Confidential
Information.
__________________________
(5) AT&T Order at p. 1, "Local Switch - Vertical Features"
(6) MCI Order at p. 10, Issue 31
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Part A
"PSAP" (Public Safety Answering Point) is the public safety communications
center where 911 calls placed by the public for a specific geographic area will
be answered.
"Rate Center" means the geographic point and corresponding geographic area which
are associated with one or more particular NPA-NXX codes which have been
assigned to U S WEST or CO-PROVIDER for its provision of basic exchange
Telecommunications Services. The "Rate Center Point" is the finite geographic
point identified by a specific V&H coordinate, which is used to measure
distance-sensitive end user traffic to/from the particular NPA-NXX designations
associated with the specific Rate Center. The "Rate Center Area" is the
exclusive geographic area identified as the area within which U S WEST or
CO-PROVIDER will provide basic exchange Telecommunications Services bearing the
particular NPA-NXX designations associated with the specific Rate Center. The
Rate Center Point must be located within the Rate Center Area.
"Rating Point" means the point at which transport mileage is calculated for the
termination of calls. Each Party shall establish its own Rating Point(s) for its
own services.
"Real Time" means the actual time in which an event takes place, with the
reporting on or the recording of the event simultaneous with its occurrence.
"Recipient" means that Party to this Agreement (1) to which Confidential
Information has been disclosed by the other Party, or (2) who has obtained
Confidential Information in the course of providing services under this
Agreement.
"Reseller" is a category of Telecommunications Services providers who obtain
Telecommunications Services from another provider through the purchase of
wholesale priced services for resale to their end user subscribers.
"Routing Point" means a location which U S WEST or CO-PROVIDER has designated on
its own network as the homing (routing) point for traffic inbound to basic
exchange Telecommunications Services provided by U S WEST or CO-PROVIDER which
bear a certain NPA-NXX designation. The Routing Point is employed to calculate
mileage measurements for the distance-sensitive transport element charges of
Switched Access Services. Pursuant to Bellcore Practice BR 795-1 00-100, the
Routing Point may be an "End Office" location, or a "LEC Consortium Point of
Interconnection." Pursuant to that same Bellcore Practice, examples of the
latter shall be designated by a common language location identifier (CLLI) code
with (x)KD in positions 9,10,11, where (x) may by any alphanumeric A-Z or 0-9.
The Routing Point need not be the same as the Rate Center Point, nor must it be
located within the Rate Center Area, but must be in the same LATA as the NPA-NXX
"ROW" (Right of Way) means the right to use the land or other property owned,
leased, or controlled by another party to place poles, conduits, cables, other
structures and equipment, or to provide passage to access such structures and
equipment. A ROW may run under, on, or above public or private property
(including air space above public or private property) and may include the right
to use discrete space in buildings, building complexes or other locations.
"SAG" (Street Address Guide) is a database containing an alphabetical list of
street names, high-low house number ranges, descriptive addresses, community
names, tax codes, subscriber names, telephone numbers, NXXs, central office
names, CLLI and other information maintained by U S WEST.
"SECAB" means the Small Exchange Carrier Access Billing document prepared by the
Billing Committee of the OBF. The Small Exchange Carrier Access Billing
document, published by Bellcore as Special
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Part A
Report SR OPT-001856, contains the recommended guidelines for the billing of
access and other connectivity services.
"Selective Routing" is a service which automatically routes an E911 call to the
PSAP that has jurisdictional responsibility for the service address of the
telephone from which 911 is dialed, irrespective of telephone company exchange
or wire center boundaries.
"Service Control Point" or "SCP" is a specific type of Database Network Element
functionality deployed in a Signaling System 7 (SS7) network that executes
service application logic in response to SS7 queries sent to it by a switching
system also connected to the SS7 network. SCPs also provide operational
interfaces to allow for provisioning, administration and maintenance of
subscriber data and service application data (e.g., a toll free database stores
subscriber record data that provides information necessary to route toll free
calls.
"Signaling Transfer Point" or "STP" provide functionality that enable the
exchange of SS7 messages among and between switching elements, database elements
and Signaling Transfer Points.
"Switch" -- See Central Office Switch.
"Switched Access", "Switched Access Service", "Switched Exchange Access
Service" or "Switched Access Traffic" are as defined in the Parties'
applicable tariffs.
"Tandem Office Switches" are Class 4 switches which are used to connect and
switch trunk circuits between and among End Office Switches and other tandems.
"Tariff Services" as used throughout this Agreement refers to the applicable
Party's interstate tariffs and state tariffs, price lists, price schedules and
catalogs.
"Technically Feasible" refers solely to technical or operational concerns,
rather than economic, space, or site considerations, in accordance with the
rules and regulations of the FCC and the Commission.
"Telecommunications" means the transmission, between or among points specified
by the user, of information of the user's choosing, without change in the form
or content of the information as sent and received.
"Telecommunications Carrier" means any provider of Telecommunications Services,
except that such term does not include aggregators of Telecommunications
Services (as defined in Section 226 of the Act). A Telecommunications Carrier
shall be treated as a common carrier under the Act only to the extent that it is
engaged in providing Telecommunications Services, except that the FCC shall
determine whether the provision of fixed and mobile satellite service shall be
treated as common carriage.
"Telecommunications Services" means the offering of Telecommunications for a fee
directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used.
"Toll Traffic" is traffic that originates in one Rate Center and terminates in
another Rate Center with the exception of traffic that is rated as EAS.
"Transit Service" provides the ability for a Telecommunications Carrier to use
its connection to a local or access tandem for delivery of calls that originate
with a Telecommunications Carrier and terminate to a
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Part A
company other than the tandem company, such as another Competitive Local
Exchange Carrier, an existing LEC, or a wireless carrier. In these cases,
neither the originating nor terminating end user is a customer of the tandem
Telecommunications Carrier. The tandem Telecommunications Carrier will accept
traffic originated by a Party and will terminate it at a Point of
Interconnection with another local, intraLATA or interLATA network
Telecommunications Carrier. This service is provided through local and access
tandem switches.
"Transit Traffic" is any traffic, other than Switched Access Traffic, that
originates from one Telecommunications Carrier's network, transits another
Telecommunications Carrier's network, and terminates to yet another
Telecommunications Carrier's network.
"TRCO" means Trouble Reporting Control Office.
"U S WEST" means U S WEST Communications, Inc. and any Affiliates, subsidiary
companies or other entities performing any of the obligations of U S WEST set
forth in this Agreement.
"Voluntary Federal Subscriber Financial Assistance Programs" are
Telecommunications Services provided to low-income subscribers, pursuant to
requirements established by the appropriate federal or state regulatory body.
"Wire Center" denotes, for the purposes of Collocation, a building or space
within a building, that serves as an aggregation point on a given carrier's
network, where transmission facilities and circuits are connected or switched.
Wire Center can also denote a building where one or more central offices, used
for the provision of Telecommunications Services and Access Services, are
located. Wire Center shall mean those points eligible for such connections as
specified in the FCC Docket No. 91-141, and rules adopted pursuant thereto.
TERMS AND CONDITIONS
1. GENERAL PROVISIONS
1.1 Each Party is individually responsible to provide facilities
within its network which are necessary for routing, transporting,
measuring, and billing traffic from the other Party's network and
for delivering such traffic to the other Party's network in the
standard format compatible with CO-PROVIDER's network and to
terminate the traffic it receives in that standard format or the
proper address on its network. The Parties are each solely
responsible for participation in and compliance with national
network plans, including the National Network Security Plan and
the Emergency Preparedness Plan.
1.2 Neither Party shall impair the quality of service to other
carriers or to either Party's Customers, and each Party may
discontinue or refuse service if the other Party violates this
provision. Upon such violation, either Party shall provide the
other Party notice of such violation, at the earliest practicable
time.
1.3 Each Party is solely responsible for the services it provides
to its Customers and to other Telecommunications Carriers.
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Part A
1.3.1 The Parties recognize that equipment vendors may
manufacture telecommunications equipment that does not fully
incorporate and may deviate from industry standards
referenced in this Agreement. Due to the manner in which
individual equipment manufacturers have chosen to implement
industry standards into the design of their products, along
with differing vintages of individual facility components
and the presence of embedded technologies pre-dating current
technical standards, some of the individual facility
components deployed within U S WEST's network, including,
without limitation, Network Elements and associated business
processes and the standards associated with the equipment
providing such Network Elements (collectively, "Network
Components"), may not adhere to all the specifications set
forth and described in the Bellcore, ANSI, ITU and other
technical and performance standards outlined in this
Agreement. Within forty-five (45) days after a request by
CO-PROVIDER, the Parties will develop processes by which U S
WEST will inform CO-PROVIDER of deviations or planned
deviations, and the implementation date of such planned
deviations, from standards referenced in this Agreement for
Network Components that may be ordered by CO-PROVIDER. In
addition, the Parties agree that those deviations from such
standards documented by U S WEST to CO-PROVIDER shall, to
the extent permitted by FCC and Commission rules and
regulations, supersede sections of this Agreement
referencing technical standards otherwise applicable for the
affected Network Elements.(7)
1.3.2 U S WEST agrees that in no event shall it intentionally
allow any Network Component provided by U S WEST to
CO-PROVIDER under this Agreement to perform below the
standards or deviations therefrom reflected in Section
1.3.1, except where requested by CO-PROVIDER. U S WEST
shall minimize any degradation to its equipment relative
to currently applicable service, where reasonable in view
of industry adopted performance standards and
technological developments. Written notice (the "Change
Notice") of any planned changes in standards for any
Network Component which could impact that Network
Component will be provided at least ninety (90) days (or
at the make/buy point) prior to the planned
implementation. If CO-PROVIDER notifies U S WEST of how
the proposed change may adversely impact CO-PROVIDER or
its Customers within fourteen (14) calendar days after
receipt of U S WEST's Change Notice, U S WEST and
CO-PROVIDER will schedule joint discussions to address
and attempt to resolve the matter, including, without
limitation, consideration of proposed alternatives. In
addition, if U S WEST learns that any Network Component
purchased by CO-PROVIDER under this Agreement has been
permitted (even if not intentionally) to fall materially
below the level or specification in effect as of the
Effective Date of this Agreement, U S WEST shall inform
CO-PROVIDER immediately.(8)
1.3.3 The Parties recognize that providing A number of the
services specified in this Agreement depends upon the
"technical feasibility" of providing that service, as
__________________________
(7) AT&T Order at pg. 8, Technical Standards
(8) AT&T Order at pg. 8, Technical Standards
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Part A
that term is defined under the Act and/or by FCC or
Commission rules and decisions. If the Parties cannot agree
on whether providing a service is technically feasible, the
matter, including cost and expenses (if any), shall be
resolved through good faith negotiation or the dispute
resolution process outlined in this Agreement.
2. MOST FAVORED NATION TERMS AND TREATMENT
2.1 Until such time as there is a final court determination
interpreting Section 252(i) of the Act, U S WEST shall make
available to CO-PROVIDER the terms and conditions of any other
agreement for interconnection, unbundled network elements and
resale services approved by the Commission under Section 252 of
the Act, in that agreements entirety. After there is a final
court determination interpreting Section 252(i) of the Act, the
Parties agree to revise this Section 2.1 to reflect such
interpretation.
3. PAYMENT
3.1 In consideration of the services provided by U S WEST under
this Agreement, CO-PROVIDER shall pay the charges set forth in
Attachment 1 to this Agreement. The billing procedures for
charges incurred by CO-PROVIDER hereunder are set forth in
Attachment 5 to this Agreement.
3.2 Amounts payable under this Agreement, unless reasonably
disputed, are due and payable within thirty (30) days after the
date of U S WEST's invoice or within twenty (20) days after
receipt of the invoice, whichever is later. If the payment due
date is not a Business Day, the payment shall be made the next
Business Day.
3.3 A late payment charge of 1.5% applies to all billed balances,
not reasonably disputed, which are not paid within the applicable
time period set forth in Section 3.2 above. To the extent
CO-PROVIDER pays the billed balance on time, but the amount of
the billed balance is reasonably disputed by CO-PROVIDER, and, it
is later determined that a refund is due CO-PROVIDER, interest
shall be payable on the refunded amount in the amount of 1.5% per
month. To the extent CO-PROVIDER pays the billed balance on time,
but the amount of the billed balance is reasonably disputed by
CO-PROVIDER, and, it is later determined that no refund is due
CO-PROVIDER, no interest shall be payable on the disputed amount.
3.4 Late payment charges shall not be used as a "credit" to a
deposit, if any, without the express approval of U S WEST.
3.5 Unless specified otherwise in this Agreement, U S WEST shall
bill all amounts due from CO-PROVIDER for each resold service in
accordance with the terms and conditions as specified in the U S
WEST tariff.
4. TAXES
4.1 Any federal, state or local excise, sales, or use taxes
(excluding any taxes levied on income) resulting from the
performance of this Agreement shall be borne by the Party
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Part A
upon which the obligation for payment is imposed under applicable
law, even if the obligation to collect and remit such taxes is
placed upon the other Party. Any such taxes shall be shown as
separate items on applicable billing documents between the
Parties. The Party so obligated to pay any such taxes may contest
the same in good faith, at its own expense, and shall be entitled
to the benefit of any refund or recovery, provided that such
Party shall not permit any lien to exist on any asset of the
other Party by reason of the contest. The Party obligated to
collect and remit taxes shall cooperate fully in any such contest
by the other Party by providing records, testimony and such
additional information or assistance as may reasonably be
necessary to pursue the contest. To the extent a sale is claimed
to be for resale tax exemption, the purchasing Party shall
furnish the providing Party a proper resale tax exemption
certificate as authorized or required by statute or regulation by
the jurisdiction providing said resale tax exemption. Failure to
timely provide said resale tax exemption certificate will result
in no exemption being available to the purchasing Party during
the applicable reporting period.
5. INTELLECTUAL PROPERTY
5.1 Obligations of Party Requesting Access. As a condition to the
access or use of patents, copyright, trade secrets, and other
intellectual property (including software) owned or controlled by
a third party to the extent necessary to implement this Agreement
or specifically required by the then applicable federal and state
rules and regulations relating to Interconnection and access to
telecommunications facilities and services ("Third Party
Intellectual Property"), the Party providing access may require
the other, upon written notice from time to time, to obtain a
license or permission for such access or use of Third Party
Intellectual Property, make all payment, if any, in connection
with obtaining such license, and provide evidence of such
license.
5.2 Obligations of Party Providing Access. The Party providing access
shall provide a list of all known and necessary Third Party
Intellectual Property applicable to the other Party, and, take
all necessary and appropriate steps to facilitate the negotiation
of any mandatory licenses. The treatment of third party licenses
shall be in accordance with FCC rules and regulations and/or
judicial determinations.
5.3 Any intellectual property jointly developed in the course of
performing this Agreement shall belong to both Parties who shall
have the right to grant non-exclusive licenses to third parties
except as otherwise designated in writing by one Party to
another. Any intellectual property which originates from or is
developed by a Party shall remain in the exclusive ownership of
that Party. Except for a limited license to use patents or
copyrights to the extent necessary for the Parties to use any
facilities or equipment (including software) or to receive any
service solely as provided under this Agreement, no license in
patent, copyright, trademark or trade secret, or other
proprietary or intellectual property presently or hereafter
owned, controlled or licensable by a Party, is granted to the
other Party or shall be implied or arise by estoppel.
6. SEVERABILITY
6.1 In the event that any one or more of the provisions
contained herein shall for any reason be held to be
unenforceable or invalid in any respect under law or
regulation, the Parties will negotiate in good faith for
replacement language. If any part of this Agreement is held
to be invalid or unenforceable for any reason, such
invalidity or
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Part A
unenforceability will affect only the portion of this
Agreement which is invalid or unenforceable. In all other
respects this Agreement will stand as if such invalid or
unenforceable provision had not been a part hereof, and the
remainder of this Agreement shall remain in full force and
effect.
7. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
7.1 CO-PROVIDER shall in no event be liable to U S WEST for
any costs whatsoever resulting from the presence or release
of any environmental hazard CO-PROVIDER did not introduce to
the affected work location. U S WEST shall, at CO-PROVIDER's
request, indemnify, defend, and hold harmless CO-PROVIDER,
and each of its officers, directors and employees from and
against any losses, damages, claims, demands, suits,
liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) arising out of or resulting from
(a) any environmental hazard U S WEST, its contractors or
agents introduce to the work location, or (b) the presence
or release of any environmental hazard for which U S WEST is
responsible under applicable law.
7.2 U S WEST shall in no event be liable to CO-PROVIDER for
any costs whatsoever resulting from the presence or release
of any environmental hazard U S WEST did not introduce to
the affected work location. CO-PROVIDER shall, at U S WEST's
request, indemnify, defend, and hold harmless U S WEST, and
each of its officers, directors and employees from and
against any losses, damages, claims, demands, suits,
liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) arising out of or resulting from
(a) any environmental hazard CO-PROVIDER, its contractors or
agents introduce to the work location, or (b) the presence
of release of any environmental hazard for which CO-PROVIDER
is responsible under applicable law.
7.3 In the event any suspect materials within U S
WEST-owned, operated or leased facilities are identified to
be asbestos-containing, CO-PROVIDER will ensure that, to the
extent any activities which it undertakes in the facility
disturb such suspect materials, such CO-PROVIDER activities
will be in accordance with applicable local, state and
federal environmental and health and safety statutes and
regulations. Except for abatement activities undertaken by
CO-PROVIDER or equipment placement activities that result in
the generation of asbestos containing material, CO-PROVIDER
shall not have any responsibility for managing, nor be the
owner of, not have any liability for, or in connection with,
any asbestos containing material. U S WEST agrees to
immediately notify CO-PROVIDER if U S WEST undertakes any
asbestos control or asbestos abatement activities that
potentially could affect CO-PROVIDER equipment or
operations, including, but not limited to, contamination of
equipment.
7.4 Each Party will be solely responsible, at its own
expense, for proper handling, storing, transport and
disposal of all (a) substances or materials that it or its
contractors or agents bring to, create or assume control
over at work locations, or (b) waste resulting therefrom or
otherwise generated in connection with its or its
contractors' or agents' activities at the work locations.
8. BRANDING(9),(10)
__________________________
(9) MCI Order at pg. 5, Issue 23
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Part A
8.1 U S WEST WILL OFFER CO-PROVIDER UNBRANDED DIRECTORY ASSISTANCE
AND OPERATOR SERVICES.
8.2 U S WEST WILL NOT BE REQUIRED TO REBRAND UNIFORMS AND VEHICLES.
8.3 AT CO-PROVIDER'S REQUEST, U S WEST SHALL BE OBLIGATED TO PROVIDE
BRANDING AND UNBRANDING OF SERVICES PROVIDED TO CO-PROVIDER
CUSTOMERS PURSUANT TO THIS AGREEMENT IN A NONDISCRIMINATORY
MANNER CONSISTENT WITH THE BRANDING OF SUCH SERVICES TO U S WEST
CUSTOMERS.
8.4 IF CO-PROVIDER REQUESTS THAT A SERVICE PROVIDED UNDER THIS
AGREEMENT BE BRANDED AS AN CO-PROVIDER SERVICE AND U S WEST
INFORMS CO-PROVIDER THAT SUCH BRANDING IS NOT AVAILABLE OR IF IT
IS NOT PRACTICAL TO SO BRAND THE SERVICE, THEN U S WEST WILL
OFFER CO-PROVIDER THE SERVICE ON AN UNBRANDED BASIS AT
CO-PROVIDER'S REQUEST. IF CO-PROVIDER REQUESTS UNBRANDING OF A
SERVICE UNDER SUCH CIRCUMSTANCES, U S WEST MUST UNBRAND THEIR OWN
SERVICE.
8.5 WITHOUT LIMITATION OF THE PROVISIONS OF SECTION 8.1 AND 8.2, IF
U S WEST IS OFFERING A SERVICE ON AN UNBRANDED BASIS, U S WEST
MAY BRAND SUCH SERVICE WITH THE U S WEST BRAND ONLY IF U S WEST
ALSO OFFERS TO BRAND THE SERVICE WITH THE CO-PROVIDER BRAND.
8.6 U S WEST shall provide, for CO-PROVIDER's review, the methods and
procedures, training and approaches to be used by U S WEST to
assure that U S WEST meets CO-PROVIDER's branding requirements.
8.7 This Section 8 shall confer on U S WEST no rights to the service
marks, trademarks and trade names owned by or used in connection
with services by CO-PROVIDER or its Affiliates, except as
expressly permitted by CO-PROVIDER.
8.8 At the request of CO-PROVIDER, and where technically feasible,
U S WEST will rebrand Operator Services and Directory Assistance
in CO-PROVIDER's name.
9. INDEPENDENT CONTRACTOR STATUS
9.1 Nothing contained herein shall constitute the Parties as
joint venturers, partners, employees or agents of one another,
and neither Party shall have the right or power to bind or
obligate the other.
9.2 Each Party is an independent contractor, and has and
hereby retains the right to exercise full control of and
supervision over its own performance or its obligations under
this Agreement and retains full control over the employment,
direction, compensation and discharge of all employees
assisting in the performance of such obligations. Each Party
will be solely responsible for all matters relating to payment
of such employees, including compliance with social security
taxes, withholding taxes, and other payroll taxes with respect
to their respective employees, as well as any taxes,
contributions or other
__________________________
(10) Sections 8.3-8.5 pursuant to Final Arbitration Order at pg. 4, Issue A-1
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Part A
obligations imposed by applicable state unemployment or
workers' compensation acts and all other regulations
governing such matters. Each Party has sole authority and
responsibility to hire, fire and otherwise control its
employees.
9.3 Subject to the limitations on liability and except as
otherwise provided in this Agreement, each Party shall be
responsible for (a) its own acts and performance of all
obligations imposed by applicable law in connection with its
activities, legal status and property, real or personal, and
(b) the acts of its own Affiliates, employees, agents and
contractors during the performance of that Party's
obligations hereunder. Except for provisions herein
expressly authorizing one Party to act for the other,
nothing in this Agreement shall constitute a Party as a
legal representative or agent of the other Party, nor shall
a Party have the right or authority to assume, create or
incur any liability or any obligation of any kind, express
or implied, against or in the name or on behalf of the other
Party unless otherwise expressly permitted by such other
Party. Except as otherwise expressly provided in this
Agreement, neither Party shall undertake to perform any
obligation of the other Party, whether regulatory or
contractual, or to assume any responsibility for the
management of the other Party's business.
10. REFERENCED DOCUMENTS
10.1 All references to Sections, Exhibits, and Schedules
shall be deemed to be references to Sections of, and
Exhibits and Schedules to, this Agreement unless the context
shall otherwise require. Whenever any provision of this
Agreement refers to a technical reference, technical
publication, CO-PROVIDER practice, U S WEST practice, any
publication of telecommunications industry administrative or
technical standards, or any other document specifically
incorporated into this Agreement, it will be deemed to be a
reference to the most recent version or edition (including
any amendments, supplements, addenda, or successors) or such
document that is in effect, and will include the most recent
version or edition (including any amendments, supplements,
addenda, or successors) of each document incorporated by
reference in such a technical reference, technical
publication, CO-PROVIDER practice, U S WEST practice, or
publication of industry standards, unless CO-PROVIDER elects
otherwise.
11. PUBLICITY AND ADVERTISING
11.1 Neither Party shall publish or use any advertising,
sales promotions or other publicity materials that use the
other Party's logo, trademarks or service marks without the
prior written approval of the other Party.
12. EXECUTED IN COUNTERPARTS
12.1 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but
such counterparts shall together constitute one and the same
instrument.
13. HEADINGS NOT CONTROLLING
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Part A
13.1 The headings and numbering of Sections, Parts,
Appendices and Attachments in this Agreement are for
convenience only and shall not be construed to define or
limit any of the terms herein or affect the meaning or
interpretation of this Agreement.
14. JOINT WORK PRODUCT
14.1 This Agreement is the joint work product of the Parties
and has been negotiated by the Parties and their respective
counsel and shall be fairly interpreted in accordance with
its terms and, in the event of any ambiguities, no
inferences shall be drawn against either Party.
15. SURVIVAL
15.1 Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, confidential information,
limitation of liability, and any other provisions of this
Agreement which, by their terms, are contemplated to
survive, or to be performed after, termination of this
Agreement, shall survive cancellation or termination
thereof.
16. EFFECTIVE DATE
16.1 This Agreement shall become effective pursuant to
Sections 251 and 252 of the Act, on __________________.
17. AMENDMENT OF AGREEMENT
17.1 Except as otherwise provided in this Agreement, no
amendment or waiver of any provision of this Agreement, and
no consent to any default under this Agreement, shall be
effective unless the same is in writing and signed by an
officer of the Party against whom such amendment, waiver or
consent is claimed. If either Party desires an amendment to
this Agreement during the term of this Agreement, it shall
provide written notice thereof to the other Party describing
the nature of the requested amendment. If the Parties are
unable to agree on the terms of the amendment within thirty
(30) days after the initial request therefor, the Party
requesting the amendment may invoke the dispute resolution
process under Section 27 of this Part A of this Agreement to
determine the terms of any amendment to this Agreement.
18. INDEMNIFICATION
18.1 NOTWITHSTANDING ANY LIMITATIONS IN REMEDIES CONTAINED
IN THIS AGREEMENT, EACH PARTY (THE "INDEMNIFYING PARTY")
WILL INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY
("INDEMNIFIED PARTY") FROM AND AGAINST ANY LOSS, COST,
CLAIM, LIABILITY, DAMAGE AND EXPENSE, INCLUDING REASONABLE
ATTORNEY'S FEES, TO THIRD PARTIES, RELATING TO OR ARISING
OUT OF THE LIBEL, SLANDER, INVASION OF PRIVACY,
MISAPPROPRIATION OF A NAME OR LIKENESS, ACTUAL OR ALLEGED
INFRINGEMENT OR OTHER VIOLATION OR BREACH OF ANY PATENT,
COPYRIGHT, TRADEMARK, SERVICE MARK, TRADE NAME, TRADE DRESS,
TRADE SECRET OR ANY
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Part A
OTHER INTELLECTUAL PROPERTY PRESENTLY EXISTING OR LATER
CREATED, NEGLIGENCE OR WILLFUL MISCONDUCT BY THE
INDEMNIFYING PARTY, ITS EMPLOYEES, AGENTS, OR
CONTRACTORS IN THE PERFORMANCE OF THIS AGREEMENT OR THE
FAILURE OF THE INDEMNIFYING PARTY TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT. IN ADDITION, THE INDEMNIFYING PARTY
WILL, TO THE EXTENT OF ITS OBLIGATIONS TO INDEMNIFY
HEREUNDER, DEFEND ANY ACTION OR SUIT BROUGHT BY A THIRD
PARTY AGAINST THE INDEMNIFIED PARTY. THE PARTY PROVIDING
ACCESS UNDER THIS AGREEMENT SHALL HAVE NO INDEMNIFICATION
OBLIGATION HEREUNDER FOR ANY LOSS, COST, CLAIM, LIABILITY,
DAMAGE OR EXPENSE ARISING ON ACCOUNT OF THIRD PARTY
INTELLECTUAL PROPERTY AFTER HAVING GIVEN WRITTEN NOTICE TO
THE OTHER PARTY OF THE THIRD PARTY INTELLECTUAL PROPERTY
PURSUANT TO SECTION 5 ABOVE.(11)
18.2 The Indemnified Party will notify the Indemnifying Party
promptly in writing of any written claim, lawsuit, or demand
by third parties for which the Indemnified Party alleges
THAT the Indemnifying Party is responsible under this
Section 18 and tender the defense of such claim, lawsuit or
demand to the Indemnifying Party. Failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party
of any liability that the Indemnifying Party might have,
except to the extent that such failure prejudices the
Indemnifying Party's ability to defend such claim.
18.2 The Indemnified Party also will cooperate in every
reasonable manner with the defense or settlement of such
claim, demand, or lawsuit. The Indemnifying Party shall keep
the Indemnified Party reasonably and timely apprised of the
status of the claim, demand or lawsuit. The Indemnified
Party shall have the right to retain its own counsel,
including in-house counsel, at its expense, and participate
in but not direct the defense; provided, however, that if
there are reasonable defenses in addition to those asserted
by the Indemnifying Party, the Indemnified Party and its
counsel may raise and direct such defenses, which shall be
at the expense of the Indemnifying Party.
18.4 The Indemnifying Party will not be liable under this Section
18 for settlements or compromises by the Indemnified Party
of any claim, demand or lawsuit unless the Indemnifying
Party has approved the settlement or compromise in advance
or unless the defense of the claim, demand or lawsuit has
been tendered to the Indemnifying Party in writing and the
Indemnifying Party has failed to timely undertake the
defense. In no event shall the Indemnifying Party settle or
consent to any judgment pertaining to any such action
without the prior written consent of the Indemnified Party.
19. LIMITATION OF LIABILITY
19.1 Except as otherwise provided in the indemnity section, no
Party shall be liable to the other Party for any Loss,
defect or equipment failure caused by the conduct of the
other Party, the other Party's agents, servants, contractors
or others acting in aid or concert with the other Party.
19.2 [Intentionally left blank for numbering consistency]
19.3 In no event shall either Party have any liability whatsoever
to the other Party for any indirect, special, consequential,
incidental or punitive damages, including, but not limited
to, loss of anticipated profits or revenue or other economic
loss in connection with or
__________________________
(11) AT&T Order at pg. 10, "Indemnification", Final Arbitration Order at p. 6
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<PAGE>
Part A
arising from anything said, omitted or done hereunder
(collectively, "Consequential Damages"), even if the other
Party has been advised of the possibility of such damages;
provided, that the foregoing shall not limit a Party's
obligation to indemnify, defend and hold the other Party
harmless against any amounts payable to a third party,
including any losses, costs, fines penalties, criminal or
civil judgments or settlements, expenses (including attorneys'
fees) and Consequential Damages of such third party. Nothing
contained in this section shall limit either Party's liability
to the other for (i) willful or intentional misconduct
(including gross negligence); (ii) bodily injury, death or
damage to tangible real or tangible personal property
proximately caused by such party's negligent act or omission
or that of their respective agents, subcontractors or
employees; OR (III) UNDER THE CIRCUMSTANCES PRESENTED TO THE
ARBITRATOR, THE COMMISSION OR OTHER DECISION MAKER, AS THE
CASE MAY BE PURSUANT TO THE DISPUTE RESOLUTION PROCESS IN
SECTION 27, A PATTERN OF CONDUCT IS FOUND TO EXIST BY SUCH
ARBITRATOR, THE COMMISSION OR OTHER DECISION MAKER IN
VIOLATION OF A PARTY'S OBLIGATIONS UNDER THIS AGREEMENT THAT
JUSTIFIES AN AWARD OF CONSEQUENTIAL DAMAGES,(12) nor shall
anything contained in this section limit the Parties'
indemnification obligations, as specified above.
19.4 Notwithstanding the provisions of Section 19.3, to the extent
that U S WEST tariffs contain limitations on liability,
CO-PROVIDER shall submit language for inclusion in its
Intrastate retail tariffs, that is substantially similar to
the limitation of liability language contained in U S WEST's
tariffs, and such limitations of liability shall govern for
Customer claims. In addition, notwithstanding the provisions
of Section 19.3, to the extent that the Commission's quality
of service rules provide for remedies to CO-PROVIDER or its
Customers for Customer claims, then those remedies shall
govern as to such claims.
20. TERM OF AGREEMENT
20.1 This Agreement shall be effective upon Commission approval and shall
remain in effect until June 26, 2001, and thereafter shall continue in
force and effect unless and until a new agreement, addressing all of
the terms of this Agreement, becomes effective between the Parties. The
Parties shall commence negotiations on a new agreement no later than
one (1) year prior to the expiration of the term of this Agreement.
Either Party may request resolution of open issues in accordance with
the provisions of Section 27 of this Part A of this Agreement, Dispute
Resolution, beginning nine (9) months prior to the expiration of this
Agreement. Any disputes regarding the terms and conditions of the new
interconnection agreement shall be resolved in accordance with said
Section 27 and the resulting agreement shall be submitted to the
Commission. This Agreement shall remain in effect until a new
interconnection agreement approved by the Commission has become
effective.
21. GOVERNING LAW
21.1 This Agreement shall be governed by and construed in
accordance with the Act and the FCC's rules and regulations,
except insofar as state law may control any aspect of this
Agreement, in which case the domestic laws of the State of
Utah, without regard to its conflicts of laws principles,
shall govern.
22. CANCELLATION CHARGES
__________________________
(12) Final Arbitration Order at p. 7
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Part A
22.1 Except as provided pursuant to a Bona Fide Request, or as
otherwise provided in any applicable tariff or contract
referenced herein, no cancellation charges shall apply.
23. REGULATORY APPROVALS
23.1 This Agreement, and any amendment or modification hereof,
will be submitted to the Commission for approval in accordance
with Section 252 of the Act. In the event any governmental
authority or agency rejects any provision hereof, the Parties
shall negotiate promptly and in good faith such revisions as
may reasonably be required to achieve approval.
23.2 U S WEST shall provide CO-PROVIDER a summary describing
the proposed change(s) to each Telecommunication Service which
is available pursuant to this Agreement. U S WEST shall also
provide CO-PROVIDER a summary describing the proposed
change(s) of each intrastate and interstate tariff which
provides for an Interconnection, unbundled Network Element or
Ancillary Service that is available pursuant to this
Agreement. Such summaries shall be available through an
Internet Web page to be posted on the same day the proposed
change is filed with the Commission or the FCC or at least
thirty (30) days in advance of its effective date, whichever
is earlier.
23.3 In the event any governmental authority or agency orders
U S WEST to provide any service covered by this Agreement in
accordance with any terms or conditions that individually
differ from one or more corresponding terms or conditions of
this Agreement, CO-PROVIDER may elect to amend this Agreement
to reflect any such differing terms or conditions contained in
such decision or order, with effect from the date CO-PROVIDER
makes such election. The other services covered by this
Agreement and not covered by such decision or order shall
remain unaffected and shall remain in full force and effect.
23.4 The Parties intend that any additional services requested
by either Party relating to the subject matter of this
Agreement will be incorporated into this Agreement by
amendment.
24. COMPLIANCE
24.1 Each Party shall comply with all applicable federal,
state, and local laws, rules and regulations applicable to its
performance under this Agreement.
24.2 Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this
Agreement comply with the Communications Law Enforcement Act
of 1994 ("CALEA"). Each Party (the "Indemnifying Party") shall
indemnify and hold the other Party (the "Indemnified Party")
harmless from any and all penalties imposed upon the
Indemnified Party for such noncompliance and shall, at the
Indemnifying Party's sole cost and expense, modify or replace
any equipment, facilities or services provided to the
Indemnified Party under this Agreement to ensure that such
equipment, facilities and services fully comply with CALEA.
24.3 All terms, conditions and operations under this Agreement
shall be performed in accordance with all applicable laws,
regulations and judicial or regulatory decisions of all
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Part A
duly constituted governmental authorities with appropriate
jurisdiction, and this Agreement shall be implemented
consistent with the FCC Interconnection Order and any
applicable Commission orders. Each Party shall be responsible
for obtaining and keeping in effect all FCC, Commission,
franchise authority and other regulatory approvals that may be
required in connection with the performance of its obligations
under this Agreement. In the event the Act or FCC or
Commission rules and regulations applicable to this Agreement
are held invalid, this Agreement shall survive, and the
Parties shall promptly renegotiate any provisions of this
Agreement which, in the absence of such invalidated Act, rule
or regulation, are insufficiently clear to be effectuated,
violate, or are either required or not required by the new
rule or regulation. [THE FOLLOWING UNDERLINED LANGUAGE IS FOR
THE CO-PROVIDER AGREEMENT ONLY] DURING THESE NEGOTIATIONS,
EACH PARTY WILL CONTINUE TO PROVIDE THE SAME SERVICES AND
ELEMENTS TO EACH OTHER AS ARE PROVIDED FOR UNDER THIS
AGREEMENT. PROVIDED, HOWEVER, THAT EITHER PARTY SHALL GIVE TEN
(10) BUSINESS DAYS NOTICE IF IT INTENDS TO CEASE ANY
DEVELOPMENT OF ANY NEW ELEMENT OR SERVICE THAT IS NOT AT THAT
TIME BEING PROVIDED PURSUANT TO THIS AGREEMENT. In the event
the Parties cannot agree on an amendment within thirty (30)
days from the date any such rules, regulations or orders
become effective, then the Parties shall resolve their
dispute, including liability for non-compliance with the new
clause or the cost, if any, of performing activities no longer
required by the rule or regulation during the renegotiation of
the new clause under the applicable procedures set forth in
Section 27 herein.
25. FORCE MAJEURE
25.1 Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of civil
or military authority, embargoes, epidemics, terrorist acts,
riots, insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, work stoppages, equipment failure, power
blackouts, volcanic action, other major environmental
disturbances, unusually severe weather conditions, inability
to secure products or services of other persons or
transportation facilities or acts or omissions of
transportation carriers. No delay or other failure to perform
shall be excused pursuant to this Section 25 unless such delay
or failure and the consequences thereof are beyond the control
and without the fault or negligence of the Party claiming
excusable delay or other failure to perform. In the event of
any such excused delay in the performance of a Party's
obligation(s) under this Agreement, the due date for the
performance of the original obligation(s) shall be extended by
a term equal to the time lost by reason of the delay. In the
event of such delay, the delaying Party shall perform its
obligations at a performance level no less than that which it
uses for its own operations. In the event of a labor dispute
or strike, the Parties agree to provide service to each other
at a level equivalent to the level they provide themselves. In
the event of a labor dispute or strike or work stoppage that
continues for a period in excess of forty-eight (48) hours,
CO-PROVIDER may obtain replacement services for those services
affected by such labor dispute or strike or work stoppage, in
which event any liability of CO-PROVIDER for the affected
services shall be suspended for the period of the work
stoppage or labor dispute or strike. In the event of such
performance delay or failure by U S WEST, U S WEST agrees to
resume performance in a nondiscriminatory manner and not favor
its own provision of Telecommunications Services above that of
CO-PROVIDER.
26. ESCALATION PROCEDURES
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Part A
26.1 CO-PROVIDER and U S WEST agree to exchange escalation
lists which reflect contact personnel including vice
president-level officers. These lists shall include name,
department, title, phone number, and fax number for each
person. CO-PROVIDER and U S WEST agree to exchange up-to-date
lists as reasonably necessary.
27. DISPUTE RESOLUTION
27.1 If any claim, controversy or dispute between the Parties,
their agents, employees, officers, directors or affiliated
agents ("Dispute") cannot be settled through negotiation, it
may be resolved by arbitration conducted by a single
arbitrator engaged in the practice of law, under the then
current rules of the American Arbitration Association ("AAA").
The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, not state
law, shall govern the arbitrability of all Disputes. The
arbitrator shall not have authority to award punitive damages.
All expedited procedures prescribed by the AAA rules shall
apply. The arbitrator's award shall be final and binding and
may be entered in any court having jurisdiction thereof and
shall be noticed to the Commission. The arbitrator shall
determine which Party or Parties will bear the costs of
arbitration, including apportionment, if appropriate. The
arbitration shall occur in Denver, Colorado and the governing
law shall be In accordance with Section 21.1 above.(13)
27.2 In the event CO-PROVIDER and U S WEST are unable to agree on
certain issues during the term of this Agreement, the Parties
may identify such issues for arbitration before the
Commission. Only those points identified by the Parties for
arbitration will be submitted.(14)
27.3 If a Dispute is submitted to arbitration pursuant to Section
27.1 above, the procedures described in this Section 27.3
shall apply, notwithstanding the then current rules of the
AAA. Discovery shall be controlled by the arbitrator and shall
be permitted to the extent set forth below. Each party may
submit in writing to a Party, and that Party shall so respond,
to an agreed amount of the following: interrogatories, demands
to produce documents, and requests for admission. Not less
than ten (10) days prior to the arbitration hearing, the
Parties shall exchange witness and exhibit lists. Deposition
discovery shall be controlled by the arbitrator. Additional
discovery may be permitted upon mutual agreement of the
Parties or the determination of the arbitrator. The
arbitration hearing shall be commenced within thirty (30) days
after a demand for arbitration by either Party and shall be
held in Denver, Colorado. The arbitrator shall control the
scheduling so as to process the matter expeditiously. The
Parties may submit written briefs. The arbitrator shall rule
on the dispute by issuing a written opinion within seven (7)
days after the close of the hearings. The times specified in
this section may be extended upon mutual agreement of the
Parties or by the arbitrator upon a showing of good cause. The
decision of the arbitrator shall be final and binding upon the
Parties and judgment upon the award rendered by the arbitrator
may be
__________________________
(13) AT&T Order at p. 10, "Dispute Resolution"
(14) AT&T Order at p. 10, "Dispute Resolution"
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Part A
entered in a court having jurisdiction. The decision shall
also be submitted to the Commission.(15)
28. NONDISCLOSURE
28.1 All information, including, but not limited to,
specifications, microfilm, photocopies, magnetic disks,
magnetic tapes, drawings, sketches, models, samples, tools,
technical information, data, employee records, maps, financial
reports, and market data (a) furnished by one Party to the
other Party dealing with Customer specific, facility specific,
or usage specific information, other than Customer information
communicated for the purpose of publication of directory
database inclusion, or (b) in written, graphic,
electromagnetic, or other tangible form and marked at the time
of delivery as "Confidential" or "Proprietary", or (c)
declared orally or in writing to the Recipient at the time of
delivery, or by written notice given to the Recipient within
ten (10) days after delivery, to be "Confidential" or
"Proprietary" (collectively referred to as "Proprietary
Information"), shall remain the property of the Discloser. A
Party who receives Proprietary Information via an oral
communication may request written confirmation that the
material is Proprietary Information. A Party who delivers
Proprietary Information via an oral communication may request
written confirmation that the Party receiving the information
understands that the material is Proprietary Information.
28.2 Upon request by the Discloser, the Recipient shall return
all tangible copies of Proprietary Information, whether
written, graphic or otherwise, except that the Recipient's
legal counsel may retain one (1) copy for archival purposes.
28.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall use the other
Party's Proprietary Information only in connection with this
Agreement. Neither Party shall use the other Party's
Proprietary Information for any other purpose except upon such
terms and conditions as may be agreed upon between the Parties
in writing.
28.4 Unless otherwise agreed, the obligations of
confidentiality and non-use set forth in this Agreement do not
apply to such Proprietary Information that:
28.4.1 was, at the time of receipt, already
known to the Recipient free of any obligation to keep
it confidential evidenced by written records prepared
prior to delivery by the Discloser; or
28.4.2 is or becomes publicly known through
no wrongful act of the Recipient; or
28.4.3 is rightfully received from a third
person having no direct or indirect secrecy or
confidentiality obligation to the Discloser with
respect to such information; or
28.4.4 is independently developed by an
employee, agent, or contractor of the Recipient which
individual is not involved in any manner with the
provision
__________________________
(15) AT&T Order at p. 10, "Dispute Resolution"
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Part A
of services pursuant to this Agreement and does not have any
direct or indirect access to the Proprietary Information; or
28.4.5 is approved for release by written
authorization of the Discloser or
28.4.6 is required by law, a court, or
governmental agency, provided that the Discloser has
been notified of the requirement promptly after the
Recipient becomes aware of the requirement, subject
to the right of the Discloser to seek a protective
order as provided in Section 28.5 below.
28.5 For a period of ten (10) years from receipt of Proprietary
Information, the Recipient shall (a) use it only for the
purpose of performing under this Agreement, (b) hold it in
confidence and disclose it only to employees, authorized
contractors and authorized agents who have a need to know it
in order to perform under this Agreement, and (c) safeguard it
from unauthorized use or disclosure using no less than the
degree of care with which the Recipient safeguards its own
Proprietary Information. Any authorized contractor or agent to
whom Proprietary Information is provided must have executed a
written agreement comparable in scope to the terms of this
Section. Not withstanding the foregoing, each Party shall
provide advance notice of three (3) Business Days to the other
of the intent to provide Proprietary information to a
governmental authority and the Parties shall cooperate with
each other in attempting to obtain a suitable protective
order. The Recipient agrees to comply with any protective
order that covers the Proprietary Information to be disclosed.
28.6 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Section 28 by the Recipient or its
representatives and that the Discloser shall be entitled to
seek equitable relief, including injunctive relief and
specific performance, in the event of any breach of this
Section 28. Such remedies shall not be exclusive but shall be
in addition to all other remedies available at law or in
equity.
28.7 CPNI related to either Party's subscribers obtained by
virtue of Local Interconnection or any other service provided
under this Agreement shall be the Discloser's Proprietary
Information and may not be used by the Recipient for any
purpose except performance of its obligations under this
Agreement, and in connection with such performance, shall be
disclosed only to employees, authorized contractors and
authorized agents with a need to know, unless the subscriber
expressly directs the Discloser to disclose such information
to the Recipient pursuant to the requirements of Section
222(c)(2) of the Act. If the Recipient seeks and obtains
written approval to use or disclose such CPNI from the
Discloser, such approval shall be obtained only in compliance
with Section 222(c)(2) and, in the event such authorization is
obtained, the Recipient may use or disclose only such
information as the Discloser provides pursuant to such
authorization and may not use information that the Recipient
has otherwise obtained, directly or indirectly, in connection
with its performance under this Agreement.
28.8 Except as otherwise expressly provided in this Section
28, nothing herein shall be construed as limiting the rights
of either Party with respect to its subscriber information
under any applicable law, including, without limitation,
Section 222 of the Act.
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Part A
28.9 Effective Date Of This Section. Notwithstanding any other
provision of this Agreement, the Proprietary Information
provisions of this Agreement shall apply to all Proprietary
Information furnished by either Party with a claim of
confidentiality or proprietary nature at any time.
29. NOTICES
29.1 Except as otherwise provided herein, all notices or other
communication hereunder shall be deemed to have been duly
given when made in writing and delivered in person or
deposited in the United States mail, certified mail, postage
prepaid, return receipt requested, or delivered by prepaid
overnight express mail, and addressed as follows:
To CO-PROVIDER:
F. LYNNE POWERS
Vice President -Finance
J. Jeffrey Oxley - Director of Regulatory Affairs
Advanced Telecommunications, Inc.
710 Second Avenue South, Suite 1200
Minneapolis, MN 55402
Phone: (612) 376-4400
Fax: (612)376-4411
Copy to: Brian Robinson
ARTER & HADDEN LLP
1801 K Street, N.W., Suite 400K
Washington, DC 20006
Phone: (202) 775-7126
Fax: (202) 857-0172
To U S WEST:
Director-- Interconnection Compliance
1801 California Street, Room 2410
Denver, CO 80202
Copy to: U S WEST, Communications, Inc..
General Counsel, Law Dept.
1801 California, 49th Floor
Denver, Colorado 80202
29.2 If personal delivery is selected to give notice, a
receipt of such delivery shall be obtained. The address to
which notices or communications may be given to either Party
may be changed by written notice given by such Party to the
other pursuant to this Section 29.
30. ASSIGNMENT
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Part A
30.1 Neither Party may assign, transfer (whether by operation
of law or otherwise) or delegate this Agreement (or any rights
or obligations hereunder) to a third party without the prior
written consent of the other Party, which consent shall not be
unreasonably withheld, provided that each Party may assign
this Agreement to an Affiliate or an entity under its common
control or an entity acquiring all or substantially all of its
assets or equity by providing prior written notice to the
other Party of such assignment or transfer. Any attempted
assignment or transfer that is not permitted under the
provisions of this Section 30 is void AB INITIO. Without
limiting the generality of the foregoing, this Agreement shall
be binding upon and shall inure to the benefit of the Parties'
respective successors and assigns. No assignment or delegation
hereof shall relieve the assignor of its obligations under
this Agreement.
30.2 If any obligation of U S WEST under this Agreement is
performed by a subcontractor or Affiliate, U S WEST shall
remain fully responsible for the performance of this Agreement
in accordance with its terms, and U S WEST shall be solely
responsible for payments due to its subcontractors.
30.3 If any obligation of CO-PROVIDER under this Agreement is
performed by a subcontractor or Affiliate, CO-PROVIDER shall
remain fully responsible for the performance of this Agreement
in accordance with its terms, and CO-PROVIDER shall be solely
responsible for payments due to its subcontractors.
31. WARRANTIES
31.1 U S WEST shall conduct all activities and interfaces
which are provided for under this Agreement with CO-PROVIDER
Customers in a carrier-neutral, nondiscriminatory manner.
31.2 U S WEST warrants that it has provided, and during the
term of this Agreement it will continue to provide, to
CO-PROVIDER true and complete copies of all material
agreements in effect between U S WEST and any third party
(including Affiliates) providing any services to CO-PROVIDER
on behalf of or under contract to U S WEST in connection with
U S WEST's performance of this Agreement, or from whom U S
WEST has obtained licenses or other rights used by U S WEST to
perform its obligations under this Agreement, provided,
however, that U S WEST may provide such agreements under
appropriate protective order.
32. DEFAULT
32.1 In the event of a breach of any material provision of
this Agreement by either Party, the non-breaching Party shall
give the breaching Party and the Commission written notice
thereof, and:
32.1.1 if such material breach is for
non-payment of amounts due hereunder pursuant to
Section 3.2 of Part A of this Agreement, the
breaching Party shall cure such breach within thirty
(30) calendar days of receiving such notice. The
non-breaching Party shall be entitled to pursue all
available legal and equitable remedies for such
breach. Amounts disputed in good faith and withheld
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Part A
or set off shall not be deemed "amounts due
hereunder" for the purpose of this provision.
32.1.2 if such material breach is for any
failure to perform in accordance with this Agreement,
which, in the sole judgment of the non-breaching
Party, adversely affects the non-breaching Party's
subscribers, the non-breaching Party shall give
notice of the breach and the breaching Party shall
cure such breach to the non-breaching Party's
reasonable satisfaction within ten (10) calendar days
or within a period of time equivalent to the
applicable interval required by this Agreement,
whichever is shorter. If the breaching Party does not
cure such breach within the applicable time period,
the non-breaching Party may, at its sole option,
terminate this Agreement, or any parts hereof. The
non-breaching Party shall be entitled to pursue all
available legal and equitable remedies for such
breach. Notice under this Subsection 32.1.2 may be
given electronically or by facsimile, provided that a
hard copy or original of such notice is sent by
overnight delivery service.
32.1.3 if such material breach is for any
other failure to perform in accordance with this
Agreement, the breaching Party shall cure such breach
to the non-breaching Party's reasonable satisfaction
within forty-five (45) calendar days, and, if it does
not, the non-breaching Party may, at its sole option,
terminate this Agreement, or any parts hereof. The
non-breaching Party shall be entitled to pursue all
available legal and equitable remedies for such
breach.
32.2 CO-PROVIDER may terminate this Agreement in whole at any time
only for cause upon sixty (60) calendar days' prior written
notice. CO-PROVIDER's sole liability shall be payment of
amounts due for services provided or obligations assumed up to
the date of termination.
32.3 In the event of any termination under this Section 32, U
S WEST and CO-PROVIDER agree to cooperate to provide for an
uninterrupted transition of services to CO-PROVIDER or another
vendor designated by CO-PROVIDER to the extent that U S WEST
has the ability to provide such cooperation.
32.4 Notwithstanding any termination hereof, the Parties shall
continue to comply with their obligations under the Act.
33. REMEDIES
33.1 In the event U S WEST fails to switch a subscriber to
CO-PROVIDER service as provided in this Agreement, U S WEST
shall reimburse CO-PROVIDER in an amount equal to all fees
paid by such subscriber to U S WEST for such
failed-to-be-transferred services from the time of such
failure to switch to the time at which the subscriber switch
is accomplished. This remedy shall be in addition to all other
remedies available to CO-PROVIDER under this Agreement or
otherwise available.
33.2 All rights of termination, cancellation or other remedies
prescribed in this Agreement, or otherwise available, are
cumulative and are not intended to be exclusive of other
remedies to which the injured Party may be entitled at law or
equity in case of any breach or threatened breach by the other
Party of any provision of this Agreement. Use
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Part A
of one or more remedies shall not bar use of any other remedy
for the purpose of enforcing the provisions of this Agreement.
34. WAIVERS
34.1 No waiver of any provisions of this Agreement and no
consent to any default under this Agreement shall be effective
unless the same shall be in writing and properly executed by
or on behalf of the Party against whom such waiver or consent
is claimed.
34.2 No course of dealing or failure of either Party to
strictly enforce any term, right, or condition of this
Agreement in any instance shall be construed as a general
waiver or relinquishment of such term, right or condition.
34.3 Waiver by either Party of any default or breach by the
other Party shall not be deemed a waiver of any other default
or breach.
34.4 By entering into this Agreement, neither Party waives any
right granted to it pursuant to the Act.
35. NO THIRD PARTY BENEFICIARIES
35.1 The provisions of this Agreement are for the benefit of
the Parties hereto and not for any other person; provided,
however, that this shall not be construed to prevent
CO-PROVIDER from providing its Telecommunications Services to
other carriers. This Agreement shall not provide any person
not a party hereto with any remedy, claim, liability,
reimbursement, claim of action, or other right in excess of
those existing without reference hereto.
36. PHYSICAL SECURITY
36.1 U S WEST shall exercise the same degree of care to prevent
harm or damage to CO-PROVIDER or its employees, agents or
subscribers, or its property as U S WEST provides itself.
CO-PROVIDER shall exercise the same degree of care to ensure
the security of its equipment physically collocated within U S
WEST's space as CO-PROVIDER provides such security to itself.
36.1.1 U S WEST will restrict access to approved
personnel to U S WEST's buildings. CO-PROVIDER is
responsible for the action of its employees and other
authorized non-CO-PROVIDER personnel; U S WEST is
responsible for the action of its employees and other
authorized non-U S WEST personnel.
36.1.2 U S WEST will furnish to CO-PROVIDER the current
name(s) and telephone number(s) of those central
office supervisor(s) where a physical Collocation
arrangement exists. The central office supervisor(s)
will be the only U S WEST employee(s) with access to
CO-PROVIDER Collocation space.
36.1.3 U S WEST will comply at all times with U S
WEST security and safety procedures at the individual
central office locations where CO-PROVIDER has
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physical Collocation arrangements. The Parties will
cooperate to analyze security procedures of each
company to evaluate ways in which security procedures
of U S WEST may be enhanced.
36.1.4 U S WEST will allow CO-PROVIDER to inspect or observe
its physical spaces which house or contain
CO-PROVIDER equipment or equipment enclosures at any
time upon completion of the physical Collocation
quotation. Upon completion of the build out of the
physical space, U S WEST will furnish CO-PROVIDER
with all keys, entry codes, lock combinations, or
other materials or information which may be needed to
gain entry via direct access to CO-PROVIDER's
physical space.
36.1.5 U S WEST agrees to logically
partition any U S WEST owned access device systems,
whether biometric or card reader, or types which are
encoded identically or mechanical coded locks on
external and or internal doors to spaces which house
CO-PROVIDER equipment.
36.1.6 U S WEST agrees to limit the keys
used in its keying systems for spaces which contain
CO-PROVIDER equipment to the U S WEST supervisor for
the specific facility to emergency access only.
CO-PROVIDER shall further have the right to change
locks where deemed necessary for the protection and
security of its physical spaces and will provide the
U S WEST supervisor with the current key.
36.1.8 U S WEST shall control unauthorized
access from passenger and freight elevators, elevator
lobbies and spaces which contain or house CO-PROVIDER
equipment or equipment space in the same manner as U
S WEST provides such control for itself.
36.1.9 U S WEST will provide notification to
designated CO-PROVIDER personnel to indicate an
actual or attempted security breach of CO-PROVIDER
physical space in the same time frame as U S WEST
provides such notification to itself.
37. NETWORK SECURITY
37.1 U S WEST shall provide an appropriate and sufficient back-up
and recovery plan to be used in the event of a system failure
or emergency.
37.2 U S WEST shall install controls to (a) disconnect a user
for a pre-determined period of inactivity on authorized ports;
(b) protect subscriber proprietary information; and (c) ensure
both ongoing operational and update integrity.
37.3 Each Party shall be responsible for the security
arrangements on its side of the network to the Point of
Interconnection. The Parties shall jointly cooperate to
analyze network security procedures and cooperate to ensure
the systems, access and devices are appropriately secured and
compatible.
38. REVENUE PROTECTION
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Part A
38.1 U S WEST shall make available to CO-PROVIDER all present
and future fraud prevention or revenue protection features
that U S WEST provides to itself or others. These features
include, but are not limited to, operator screening codes,
information digits assigned such as information digits `29'
and `70' which indicate prison and COCOT payphone originating
line types respectively. In accordance with the requirements
established by the FCC, call blocking of domestic,
international blocking for business and residence, 900,
NPA-976, and specific line numbers. U S WEST shall
additionally provide partitioned access to fraud prevention,
detection and control functionality within pertinent
Operations Support Systems ("OSS") which include, but are not
limited to, Line Information Data Base Fraud monitoring
systems.
38.2 Uncollectible or unbillable revenues resulting from, but
not confined to, provisioning, maintenance, or signal network
routing errors shall be the responsibility of the Party
causing such error.
38.3 Uncollectible or unbillable revenues resulting from the
accidental or malicious alteration of software underlying
Network Elements or their subtending operational support
systems by unauthorized third parties shall be the
responsibility of the Party having administrative control of
access to said Network Element or operational support system
software.
38.4 Each Party shall be responsible for any
uncollectible or unbillable revenues resulting from the
unauthorized use of facilities under its control or services
it provides, including clip-on fraud.
38.5 The Parties shall work cooperatively to minimize fraud
associated with third-number billed calls, calling card calls,
and any other services related to this Agreement.
39. LAW ENFORCEMENT INTERFACE
39.1 U S WEST shall provide all necessary assistance to
facilitate the execution of wiretap or dialed number recorder
orders from law enforcement authorities.
40. COLLOCATION
40.1 GENERAL DESCRIPTION
40.1.1 "Collocation" means an arrangement whereby
CO-PROVIDER's facilities are terminated in its
equipment necessary for Interconnection or for access
to Network Elements on an unbundled basis which has
been installed and maintained at U S WEST's Premises.
Collocation may be "physical" or "virtual." In
"Physical Collocation," CO-PROVIDER installs and
maintains its own equipment U S WEST's Premises
consistent with Section 40.3 of Part A of this
Agreement. In "Virtual Collocation," U S WEST
installs and maintains its equipment in U S WEST's
Premises consistent with Section 40.3 of Part A of
this Agreement.
40.1.1.1 CO-PROVIDER MAY COLLOCATE TRANSMISSION
EQUIPMENT (INCLUDING DIGITAL CROSS CONNECT
SYSTEMS AND REMOTE SWITCHING UNITS (RSU))
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Part A
TO TERMINATE BASIC TRANSMISSION FACILITIES.
NOTHING IN THIS AGREEMENT REQUIRES U S WEST
TO PERMIT COLLOCATION OF EQUIPMENT USED TO
PROVIDE ENHANCED SERVICES. CO-PROVIDER SHALL
NOT USE RSUS TO ENABLE THE BYPASSING OF
SWITCHED ACCESS CHARGES.(16)
40.1.2 Collocation is offered for network interconnection
between the Parties. CO-PROVIDER may cross connect to
other collocated parties via facilities provided by U
S WEST, provided that CO-PROVIDER's collocated
equipment is also used for Interconnection with U S
WEST or access to U S WEST's unbundled Network
Elements.(17)
40.1.3 CO-PROVIDER is responsible for bringing its own or
leased facilities to the U S WEST-designated Point of
Interface ("P01"). U S WEST will extend CO-PROVIDER's
facilities from the P01 to the cable vault within the
wire center. If necessary, U S WEST may bring the
facilities into compliance with U S WEST internal
fire code standards and extend the facilities to the
collocated space.
40.1.4 CO-PROVIDER will be provided two (2) points of entry
into the U S WEST wire center only when there are at
least two (2) existing entry points for U S WEST
cable and when there are vacant entrance ducts in
both.
40.1.5 CO-PROVIDER must identify what equipment will be
installed, to allow for U S WEST to use this
information in engineering the power, floor loading,
heat release, environmental participant level, and
HVAC.
40.1.6 [Intentionally left blank for numbering consistency]
40.1.7 EXPANDED INTERCONNECTION CHANNEL TERMINATION (EICT).
TELECOMMUNICATIONS INTERCONNECTION BETWEEN
CO-PROVIDER'S COLLOCATED EQUIPMENT AND U S WEST'S
NETWORK MAY BE ACCOMPLISHED VIA AN EXPANDED
INTERCONNECTION CHANNEL TERMINATION (EICT). THIS
ELEMENT CAN BE AT THE DS-3, DS-1, DS-0, OR ANY OTHER
TECHNICALLY FEASIBLE LEVEL, SUBJECT TO NETWORK
DISCLOSURE REQUIREMENTS OF THE FCC, DEPENDING ON THE
U S WEST SERVICE TO WHICH IT IS CONNECTED. THE TERMS
AND CONDITIONS OF THE TARIFF FOR EICT ARE
INCORPORATED ONLY TO THE EXTENT THAT THEY ARE AGREED
TO BY THE PARTIES. WITHIN NINETY (90) DAYS (OR OTHER
ACCEPTABLE TIME AGREED TO BY THE PARTIES) AFTER A
REQUEST BY CO-PROVIDER, THE PARTIES WILL MEET TO
REVIEW THE TARIFF AND SEEK RESOLUTION ON DISAGREED
ITEMS.(18)
40.1.8 Consistent with U S WEST's internal practice, within
ten (10) Business Days of CO-PROVIDER's request for
any space, U S WEST shall provide information
available to it regarding the environmental
conditions of the space provided for placement of
equipment and interconnection, including, but not
limited to, the existence and condition of asbestos,
lead paint, hazardous substance contamination, or
radon. Information is considered "available" under
this
__________________________
(16) Per UT AT&T Order, p. 7 and UT MCIm Order, pg. 10 Issue 32
(17) MCI Order at pg. 2, "Issue 12," first sentence
(18) MCI Order at pp. 2-3, "Issue 12, second sentence. Supersedes UT
Commission Agreeement, Att. 4, Section 2.1.2
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Agreement if it is in U S WEST's possession or files,
or the possession of an agent, contractor, employee,
lessor, or tenant of U S WEST's that holds such
information on U S WEST's behalf.
40.1.9 U S WEST shall allow CO-PROVIDER to perform any
environmental site investigations, including, but not
limited to, asbestos surveys, which CO-PROVIDER deems
to be necessary in support of its Collocation needs.
CO-PROVIDER shall advise U S WEST in writing of its
intent to conduct such investigation, and shall
receive written approval from U S WEST to proceed.
CO-PROVIDER shall indemnify U S WEST according to
Section 18 of Part A to this Agreement for any loss
or claim for damage suffered by U S WEST as a result
of CO-PROVIDER's actions during any site inspection.
40.1.10 If the space provided for the placement of equipment,
interconnection, or provision of service contains
environmental contamination or hazardous material,
particularly, but not limited to, asbestos, lead
paint or radon, which makes the placement of such
equipment or interconnection hazardous, U S WEST
shall offer an alternative space, if available, for
CO-PROVIDER's consideration.
40.2 VIRTUAL COLLOCATION
40.2.1 U S WEST shall provide virtual collocation for the
purpose of Interconnection or access to unbundled
Network Elements subject to the rates, terms and
conditions of this Agreement.
40.2.2 Upon mutual agreement, CO-PROVIDER will have physical
access to the U S WEST wire center building pursuant
to a virtual collocation arrangement.
40.2.3 CO-PROVIDER will be responsible for obtaining and
providing to U S WEST administrative codes, e.g.,
common language codes, for all equipment specified by
CO-PROVIDER and installed in wire center buildings.
40.2.4 CO-PROVIDER will be responsible for payment of
training of U S WEST employees for the maintenance,
operation and installation of CO-PROVIDER's virtually
collocated equipment when that equipment is different
than the equipment used by U S WEST. Training
conditions are further described in the Virtual
Collocation Rate Element section following.
40.2.5 CO-PROVIDER will be responsible for payment of
reasonable charges incurred as a result of agreed
upon maintenance and/or repair of CO-PROVIDER's
virtually collocated equipment.
40.2.6 U S WEST does not guarantee the reliability of
CO-PROVIDER's virtually collocated equipment, but U S
WEST is responsible for proper installation,
maintenance and repair of such equipment, including
the change out of electronic cards provided by
CO-PROVIDER.
40.2.7 CO-PROVIDER is responsible for ensuring the
functionality and interoperability of virtually
collocated SONET equipment provided by different
manufacturers.
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40.2.8 CO-PROVIDER, as bailor, will transfer possession of
CO-PROVIDER's virtually collocated equipment to U S
WEST, as bailee, for the sole purpose of providing U
S WEST with the ability to install, maintain and
repair CO-PROVIDER's virtually collocated equipment.
Title to the CO-PROVIDER virtually collocated
equipment shall not pass to U S WEST.
40.2.9 CO-PROVIDER shall ensure that upon receipt by U S
WEST of CO-PROVIDER's virtually collocated equipment,
CO-PROVIDER will make available all access to ongoing
technical support to U S WEST, as available under the
equipment warranty or other terms and conditions, all
at CO-PROVIDER's expense. CO-PROVIDER shall advise
the manufacturer and seller of the virtually
collocated equipment that it will be installed,
maintained and repaired by U S WEST.
40.2.10 CO-PROVIDER's virtually collocated equipment must
comply with the Bellcore Network Equipment Building
System (NEBS) Generic Equipment Requirements
TR-NWT-000063, electromagnetic compatibility (EMC)
per GR-1 089-CORE, Company wire center environmental
and transmission standards and any statutory (local,
state or federal) and/or regulatory requirements, all
of the foregoing which may be in effect at the time
of equipment installation or which may subsequently
become effective. CO-PROVIDER shall provide U S WEST
interface specifications (e.g., electrical,
functional, physical and software) of CO-PROVIDER's
virtually collocated equipment.
40.2.11 CO-PROVIDER must specify all software options and
associated plug-ins for its virtually collocated
equipment.
40.2.12 CO-PROVIDER is responsible for purchasing and
maintaining a supply of spares. Upon failure of the
CO-PROVIDER virtually collocated equipment,
CO-PROVIDER is responsible for transportation and
delivery of maintenance spares to U S WEST at the
wire center housing the failed equipment.
40.2.13 Where CO-PROVIDER is virtually collocated in a
premises which was initially prepared for virtual
Collocation, CO-PROVIDER may elect to retain its
virtual Collocation in that premises and expand that
virtual Collocation according to the rates, terms and
conditions of this Agreement.
40.3 PHYSICAL COLLOCATION
40.3.1 U S WEST SHALL PROVIDE TO CO-PROVIDER PHYSICAL
COLLOCATION OF EQUIPMENT NECESSARY FOR
INTERCONNECTION OR FOR ACCESS TO UNBUNDLED NETWORK
ELEMENTS, EXCEPT THAT U S WEST SHALL PROVIDE FOR
VIRTUAL COLLOCATION WHERE SPACE IS AVAILABLE OR
EXPANSION OR REARRANGEMENT IS POSSIBLE IF U S WEST
DEMONSTRATES TO THE COMMISSION THAT PHYSICAL
COLLOCATION IS NOT PRACTICAL FOR TECHNICAL REASONS OR
BECAUSE OF SPACE LIMITATIONS, AS PROVIDED IN SECTION
251(C)(6) OF THE ACT.(19) CO-PROVIDER shall pay a
prorated amount for expansion of said space. U S WEST
shall provide such collocation for the purpose of
Interconnection or access to unbundled Network
Elements, except as otherwise mutually agreed to in
writing
__________________________
(19) MCI Order at pg. 10, Issue 31, first sentence
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Part A
by the Parties or as required by the FCC or the
Commission subject to the rates, terms and conditions
of this Agreement.
40.3.1.1. U S WEST shall permit CO-PROVIDER to use
vendors for all required engineering and
installation services associated with its
collocated equipment which are being
collocated by CO-PROVIDER pursuant to this
Agreement. Within one hundred and twenty
(120) days a request by CO-PROVIDER, U S
WEST and CO-PROVIDER shall compose and agree
on a list of approved vendors and/or agree
on minimum qualifications for such
contractors consistent with industry
standards, such agreement not to be
unreasonably withheld. In the event such
agreement cannot be reached and the dispute
resolution process outlined in Section 27
above has not concluded on the issue of
approved vendors, the list of approved
vendors maintained by U S WEST as of the
Effective Date of this Agreement shall be
the default list until the conclusion of the
dispute resolution process.
40.3.2 Where CO-PROVIDER is virtually collocated in a
premises which was initially prepared for virtual
Collocation, CO-PROVIDER may elect, unless it is not
practical for technical reasons or because of space
limitations, to convert its virtual Collocation to
physical Collocation at such premises in which case
CO-PROVIDER shall coordinate the construction and
rearrangement with U S WEST of its equipment (IDLC
and transmission) and circuits for which CO-PROVIDER
shall pay U S WEST at applicable rates, and pursuant
to the other terms and conditions in this Agreement.
In addition, all applicable physical Collocation
recurring charges shall apply.
40.3.3 CO-PROVIDER will be allowed access to the P01 on
non-discriminatory terms. CO-PROVIDER owns and is
responsible for the installation, maintenance and
repair of its equipment located within the space
rented from U S WEST.
40.3.4 CO-PROVIDER MUST USE LEASED SPACE AS SOON AS
REASONABLY POSSIBLE AND IN NO EVENT LATER THAN 60
(SIXTY) DAYS FROM THE COMPLETION OF CONSTRUCTION OF
THE COLLOCATED SPACE(20), and may not warehouse space
for later use or sublease to another provider.
Physical Collocation is offered on a space-available,
first-come, first-served basis.(21)
40.3.5 The minimum standard leasable amount of floor space
is one hundred (100) square feet. CO-PROVIDER must
efficiently use the leased space and no more than
fifty percent (50%) of the floor space may be used
for storage cabinets and work surfaces. CO-PROVIDER
and U S WEST may negotiate other storage arrangements
on a case-by-case basis. CO-PROVIDER may store spares
within its collocated space.
40.3.6 CO-PROVIDER's leased floor space will be separated
from other competitive providers and U S WEST space
through cages or hard walls. CO-PROVIDER
__________________________
(20) Final Arbitration Order at pg. 9
(21) AT&T Order at p. 8, 1st full paragraph
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Part A
may elect to have U S WEST construct the cage, or
choose from U S WEST approved contractors to
construct the cage, meeting U S WEST's installation
Technical Publication 77350. Any deviation to
CO-PROVIDER's request must be approved.
40.3.7 The following standard features will be provided by U
S WEST:
(a) Heating, ventilation and air conditioning.
(b) Smoke/fire detection and any other building
code requirement.
40.3.8 U S WEST Responsibilities
(a) Design the floor space within each location
which will constitute CO-PROVIDER's leased
space.
(b) Ensure that the necessary construction work
is performed on a timely basis to build
CO-PROVlDER's leased physical space and the
riser from the vault to the leased physical
space.
(c) Develop a quotation specific to
CO-PROVIDER's request.
(d) Extend U S WEST-provided and owned fiber
optic cable, from the P01 through the cable
vault and extend the cable to CO-PROVIDER's
leased physical space or place the cable in
fire retardant tubing prior to extension to
CO-PROVIDER's leased physical space.
(e) Installation and maintenance and all related
activity necessary to provide Channel
Termination between U S WEST's and
CO-PROVIDER's equipment.
(f) Work cooperatively with CO-PROVIDER in
matters of joint testing and maintenance.
40.3.9 CO-PROVIDER Responsibilities
(a) Determine the type of enclosure for the
physical space.
(b) Procure, install and maintain fiber optic
facilities up to the U S WEST designated
P01.
(c) Provide for installation, maintenance,
repair and service of all CO-PROVIDER's
equipment located in the leased physical
space.
(d) Ensure that all equipment installed by
CO-PROVIDER complies with Bellcore Network
Equipment Building System Generic Equipment
requirements, U S WEST environmental and
transmission standards, and any statutory
(local, federal, or state) or regulatory
requirements in effect at the time of
equipment installation or that subsequently
become effective.
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40.3.10 The installation of any interconnection service will
be coordinated between the Parties so that
CO-PROVIDER may utilize those services once
CO-PROVIDER has accepted its leased physical space.
40.3.11 If, at any time, U S WEST reasonably determines that
the equipment or the installation does not meet
standard industry requirements, such failure being
due to actions of CO-PROVIDER or its agents,
CO-PROVIDER will be responsible for the costs
associated with the removal, modification to, or
installation of the equipment to bring it into
compliance. If CO-PROVIDER fails to correct any
non-compliance within thirty (30) calendar days or as
soon as reasonably practical after the receipt of
written notice of non-compliance, U S WEST may have
the equipment removed or the condition corrected at
CO-PROVIDER's expense.
40.3.12 If, during installation, U S WEST reasonably
determines that CO-PROVIDER activities or equipment
are unsafe, non-industry standard or in violation of
any applicable laws or regulations, U S WEST has the
right to stop work until the situation is remedied.
If such conditions pose an immediate threat to the
safety of personnel, interfere with the performance
of U S WEST's service obligations, or pose an
immediate threat to the physical integrity of the
conduit system or the cable facilities, U S WEST may
perform such work and/or take action as is necessary
to correct the condition at CO-PROVIDER's expense.
40.3.13 U S WEST shall provide basic telephone service with a
connection jack as requested by CO-PROVIDER from U S
WEST for the collocated space. Upon CO-PROVIDER's
request and following the normal provisioning
process, this service shall be available at the
CO-PROVIDER collocated space on the day the space is
turned over to CO-PROVIDER by U S WEST.
40.3.14 Where available, U S WEST shall provide access to
eyewash stations, bathrooms, and drinking water
within the collocated facility on a twenty-four (24)
hours per day, seven (7) days per week basis for
CO-PROVIDER personnel and its designated agents.
40.3.15 U S WEST shall provide CO-PROVIDER with written
notice five (5) Business Days prior to those
instances where U S WEST or its subcontractors may be
performing work that could reasonably potentially
affect CO-PROVIDER's service. U S WEST will make
reasonable efforts to inform CO-PROVlDER by telephone
of any emergency related activity prior to the start
of the activity that U S WEST or its subcontractors
may be performing that could reasonably potentially
affect CO-PROVIDER's service, so that CO-PROVIDER can
take any action required to monitor or protect its
service.
40.3.16 U S WEST shall provide information regarding the
location, type, and cable termination requirements
(i.e., connector type, number and type of pairs, and
naming convention) for U S WEST point of termination
to CO-PROVIDER within five (5) Business Days of
CO-PROVIDER's acceptance of U S WEST's quote for
collocated space.
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40.3.17 U S WEST shall provide the dimensions for CO-PROVIDER
outside plant fiber ingress and egress into
CO-PROVIDER collocated space within five (5) Business
Days of CO-PROVIDER's acceptance of U S WEST's quote
for collocated space.
40.3.18 U S WEST shall provide the sizes and number of power
feeders for the collocated space to CO-PROVIDER
within ten (10) Business Days of CO-PROVIDE R's
acceptance of U S WEST's quote for collocated space.
40.3.19 U S WEST shall provide positive confirmation to
CO-PROVIDER when construction of CO-PROVIDER
collocated space is fifty percent (50%) completed.
This confirmation shall also include confirmation of
the scheduled completion and turnover dates.
40.3.20 [Intentionally left blank for numbering consistency]
40.3.21 With the exception of Subparagraph (b) below, U S
WEST shall provide the following information to
CO-PROVIDER within five (5) Business Days or as
reasonably necessary upon receipt of a written
request from CO-PROVlDER:
(a) additional work restriction guidelines.
(b) U S WEST or industry technical publication
guidelines that impact the design of U S
WEST collocated equipment, unless such
documents are already in the possession of
CO-PROVIDER. The following U S WEST
Technical Publications provide information
regarding central office equipment and
collocation guidelines:
77350 Central Office Telecommunications
Equipment Installation and Removal
Guidelines
77351 Central Office Telecommunications
Equipment Engineering Standards
77355 Grounding - Central Office and
Remote Equipment Environment
77386 Expanded Interconnection and
Collocation for Private Line
Transport and Switched Access
Services
CO-PROVIDER may obtain the above documents
from:
Faison Office Products Company
3251 Revere St., Suite 200
Aurora, Colorado 80011
(303) 340-3672
(c) appropriate U S WEST contacts (names and
telephone numbers) for the following areas:
Engineering
Physical & Logical Security
Provisioning
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Part A
Billing
Operations
Site and Building Managers
Environmental and Safety
(d) escalation process for the U S WEST
employees (names, telephone numbers and the
escalation order) for any disputes or
problems that might arise pursuant to
CO-PROVIDER's collocation.
40.3.22 Power as referenced in this Agreement refers to any
electrical power source supplied by U S WEST for
CO-PROVIDER equipment. U S WEST will supply power to
support CO-PROVIDER equipment at equipment specific
DC and AC voltages. At a minimum, U S WEST shall
supply power to CO-PROVIDER at parity with that
provided by U S WEST to itself. If U S WEST
performance, availability or restoration falls below
industry standards, U S WEST shall bring itself into
compliance with such industry standards as soon as
technologically feasible.
(a) Central office power supplied by U S WEST
into the CO-PROVIDER equipment area, shall
be supplied in the form of power feeders
(cables) on cable racking into the
designated CO-PROVIDER equipment area. The
power feeders (cables) shall efficiently and
economically support the requested quantity
and capacity of CO-PROVIDER equipment. The
termination location shall be mutually
agreed upon by the Parties.
(b) U S WEST power equipment supporting
CO-PROVIDER's equipment shall:
i. comply with applicable industry
standards (e.g., Bellcore, NEBS,
IEEE, UL, and NEC) or
manufacturer's equipment power
requirement specifications for
equipment installation, cabling
practices, and physical equipment
layout;
ii. have redundant power feeds with
physical diversity and battery
back-up as required by the
equipment manufacturer's
specifications for CO-PROVIDER
equipment, or, at minimum, at
parity with that provided for
similar U S WEST equipment at that
location;
iii. provide central office ground,
connected to a ground electrode
located within the CO-PROVIDER
collocated space, at a level above
the top of CO-PROVIDER equipment
plus or minus two (2) feet to the
left or right of CO-PROVIDER's
final request;
iv. provide an installation sequence
and access that will allow
installation efforts in parallel
without jeopardizing personnel
safety or existing services of
either Party;
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Part A
v. provide cabling that adheres to
Bell Communication Research
(Bellcore) Network
Equipment-Building System (NEBS)
standards TR-EOP-000063;
vi. provide Lock Out-Tag Out and other
electrical safety procedures and
devices in conformance with the
most stringent of OSHA or industry
guidelines; and
vii. ensure that installed equipment
meets Belicore specifications.
40.4 COLLOCATION RATE ELEMENTS
40.4.1 COMMON RATE ELEMENTS
The following rate elements are common to both virtual and
physical collocation:
(a) Quote Preparation Fee. This covers the work involved
in developing a quotation for CO-PROVIDER for the
total costs involved in its collocation request.
(b) Entrance Facility. Provides for fiber optic cable on
a per two (2) fiber increment basis from the point of
interconnection utilizing U S WEST owned,
conventional single mode type of fiber optic cable to
the collocated equipment (for virtual collocation) or
to the leased space (for physical collocation).
Entrance facility includes riser, fiber placement,
entrance closure, conduit/innerduct, and core
drilling.
(c) Cable Splicing. Represents the labor and equipment to
perform a subsequent splice to the CO-PROVIDER
provided fiber optic cable after the initial
installation splice. Includes a per-setup and a
per-fiber-spliced rate elements.
(d) 48 Volt Power. Provides 48 volt power to the
CO-PROVIDER collocated equipment. Charged on a per
ampere basis.
(e) 48 Volt Power Cable. Provides for the transmission of
-48 Volt DC power to the collocated equipment. It
includes engineering, furnishing and installing the
main distribution bay power breaker, associated power
cable, cable rack and local power bay to the closest
power distribution bay. It also includes the power
cable (feeders) A and B from the local power
distribution bay to the leased physical space (for
physical collocation) or to the collocated equipment
(for virtual collocation).
(f) Inspector Labor. Provides for the U S WEST qualified
personnel necessary when CO-PROVIDER requires access
to the P01 after the initial installation or access
to its physical collocation floor space, where an
escort is required. A call-out of an inspector after
business hours is subject to a minimum charge of four
(4) hours. Maintenance Labor, Inspector Labor,
Engineering Labor and Equipment Labor business hours
are considered to be Monday through Friday, 8:00 a.m.
to 5:00 p.m. and after business hours
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Part A
are after 5:00 p.m. and before 8:00 am., Monday
through Friday, all day Saturday, Sunday and
holidays.
(g) Expanded Interconnection Channel
Regeneration. Required when the distance
from the leased physical space (for physical
collocation) or from the collocated
equipment (for virtual collocation) to the U
S WEST network is of sufficient length to
require regeneration.
(h) U S WEST will provide external
synchronization when available.
(i) U S WEST will provide 20 hertz ringing
supply when available.
40.4.2 PHYSICAL COLLOCATION RATE ELEMENTS
The following rate elements apply only to physical collocation
arrangements:
(a) Enclosure Buildout. The Enclosure Buildout element, either
Cage or Hardwall, includes the material and labor to construct
the enclosure specified by CO-PROVIDER or CO-PROVIDER may
choose from U S WEST approved contractors to construct the
cage, meeting U S WEST's installation Technical Publication
77350. It includes the enclosure (cage or hardwall), air
conditioning (to support CO-PROVIDER loads specified),
lighting (not to exceed 2 watts per square foot), and
convenience outlets (3 per cage or the number required by
building code for the hardwall enclosure). Also provides for
humidification, if required. Pricing for Enclosure Buildout
will be provided on an individual basis due to the uniqueness
of CO-PROVIDER's requirements, central office structure and
arrangements.
(b) Floor Space Rental. This element provides for the rental of
the floor space provided to CO-PROVIDER pursuant to a physical
collocation arrangement.
40.4.3 VIRTUAL COLLOCATION RATE ELEMENTS
The following rate elements apply only to virtual collocation
arrangements:
(a) Maintenance Labor. Provides for the
labor necessary for repair of out of service and/or
service-affecting conditions and preventative
maintenance of the CO-PROVIDER virtually collocated
equipment. CO-PROVIDER is responsible for ordering
maintenance spares. U S WEST will perform maintenance
and/or repair work upon receipt of the replacement
maintenance spare and/or equipment for CO-PROVIDER. A
call-out of a maintenance technician after business
hours is subject to a minimum charge of four (4)
hours. Maintenance Labor, Inspector Labor,
Engineering Labor and Equipment Labor business hours
are considered to be Monday through Friday, 8:00 am.
to 5:00 p.m. and after business hours are after 5:00
p.m. and before 8:00 am., Monday through Friday, all
day Saturday, Sunday and holidays.
(b) Training Labor. Provides for the billing
of vendor-provided training for U S WEST personnel on
a metropolitan
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Part A
service area basis, necessary for CO-PROVIDER
virtually collocated equipment which is different
from equipment used by U S WEST. U S WEST will
require three (3) U S WEST employees to be trained
per metropolitan service area in which the
CO-PROVIDER virtually collocated equipment is
located. If, by an act of U S WEST, trained employees
are relocated, retired, or are no longer available, U
S WEST will not require CO-PROVIDER to provide
training for additional U S WEST employees for the
same virtually collocated equipment in the same
metropolitan area. Fifty percent (50%) of the amount
of training billed to CO-PROVIDER will be refunded to
CO-PROVIDER, should a second collocator or U S WEST
in the same metropolitan area select the same
virtually collocated equipment as CO-PROVIDER. The
second collocator or U S WEST will be charged one
half of the original amount paid by CO-PROVIDER for
the same metropolitan area.
(c) Equipment Bay. Provides mounting space for the
CO-PROVIDER virtually collocated equipment. ach bay
includes the seven (7) foot bay, its installation,
and all necessary environmental supports. Mounting
space on the bay, including space for the fuse panel
and air gaps necessary for heat dissipation is
limited to 78 inches. The monthly rate is applied per
shelf.
(d) Engineering Labor. Provides the planning and
engineering of the CO-PROVIDER virtually collocated
equipment at the time of installation, change or
removal.
(e) Installation Labor. Provides for the installation,
change or removal of the CO-PROVIDER virtually
collocated equipment.
40.5 COLLOCATION INSTALLATION INTERVALS
40.5.1U S WEST shall have a period of thirty (30) calendar
days after receipt by CO-PROVIDER of a Request for Collocation
to provide CO-PROVIDER with a written quotation containing all
nonrecurring charges and fees for the requested collocation
(the "Quotation Preparation Period"). CO-PROVIDER shall make
payment of fifty percent (50%) of the nonrecurring charges and
fees upon acceptance of the quotation (`Initial Payment") with
the remainder due upon completion of the construction. In the
event CO-PROVIDER disputes the amount of U S WEST's proposed
nonrecurring charges and fees, CO-PROVIDER shall deposit fifty
percent (50%) of the nonrecurring charges and fees into an
interest bearing escrow account prior to the commencement of
construction ("Initial Deposit"). The remainder of the
nonrecurring charges and fees shall be deposited into the
escrow account upon completion of the construction. Upon
resolution of the dispute, the escrow agent shall distribute
amounts in the account in accordance with the resolution of
such dispute and any interest that has accrued with respect to
amounts in the account shall be distributed proportionately to
the Parties. U S WEST shall complete installation pursuant to
the CO-PROVIDER Request for Collocation within a maximum of
three (3) months after the Initial Payment or Initial Deposit
for physical or virtual collocation. If there is a dispute
between U S WEST and CO-PROVIDER
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Part A
regarding the amount of any nonrecurring charges and fees,
such dispute shall be resolved in accordance with Section
27 above. The pendency of any such dispute shall not affect
the obligation of U S WEST to complete collocation within
the installation intervals described above.
41. TECHNICAL REFERENCES - COLLOCATION
Subject to Sections 1.3.1 and 1.3.2 of this Part A of this Agreement, U S WEST
shall provide collocation in accordance with the following standards:
41.1 Institute of Electrical and Electronics Engineers (IEEE)
Standard 383, IEEE. Standard for Type Test of Class 1 E
Electric Cables, Field Splices, and Connections for Nuclear
Power Generating Stations;
41.2 National Electrical Code (NEC), use most recent issue;
41.3 TA-NPL-000286, NEBS Generic Engineering Requirements for
System Assembly and Cable Distribution, Issue 2 (Bellcore,
January 1989);
41.4 TR-EOP-000063 Network Equipment-Building System (NEBS)
Generic Equipment Requirements, Issue 3, March 1988;
41.5 TR-EOP-000151, Generic Requirements for 24-, 48-, 130-,
and 140- Volt Central Office Power Plant Rectifiers, Issue 1
(Bellcore, May 1985);
41.6 TR-EOP-000232, Generic Requirements for Lead-Acid Storage
Batteries, Issue 1 (Bellcore, June 1985);
41.7 TR-NWT-000154, Generic Requirements for 24-, 48-, 130,
and 140- Volt Central Office Power Plant Control and
Distribution Equipment, Issue 2 (Bellcore, January 1992);
41.8 TR-NWT-000295, Isolated Ground Planes: Definition and
Application to Telephone Central Offices, Issue 2 (Bellcore,
July 1992);
41.9 TR-NWT-000840, Supplier Support Generic Requirements
(SSGR), (A Module of LSSGR, FR-N'ArE-000064), Issue I
(Bellcore, December 1991);
41.10 TR-NWT-001275 Central Office Environment
Installations/Removal Generic Requirements, Issue 1, January
1993; and
41.11 Underwriters' Laboratories Standard, UL 94.
42. NUMBER PORTABILITY
42.1 INTERIM NUMBER PORTABILITY (INP)
42.1.1 GENERAL TERMS
(a) The Parties shall provide Interim Number
Portability (INP) on a reciprocal basis to
the extent technically feasible.
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Part A
(b) Until permanent number
portability is implemented by the industry
pursuant to regulations issued by the FCC or
the Commission, the Parties agree to provide
INP to each other through Remote Call
Forwarding, Direct Inward Dialing, or other
appropriate means as agreed to by the
Parties.
(c) Once permanent number
portability is implemented pursuant to FCC
or Commission regulation, either Party may
withdraw, at any time and at its sole
discretion, its INP offerings, subject to
advance notice to the other Party with
sufficient time to allow. for coordination
to allow the seamless and transparent
conversion of INP Customer numbers to
permanent number portability. Upon
implementation of permanent number
portability pursuant to FCC regulations,
both Parties agree to conform and provide
such permanent number portability. The
Parties agree to expeditiously convert
Customers from interim number portability to
permanent number portability, provided that
the interim service is not removed until the
Customer has been converted.
(d) U S WEST will update and
maintain its Line Information Database
(`LIDB") listings for numbers retained by
CO-PROVIDER and its Customer, and restrict
or cancel calling cards associated with
these forwarded numbers as directed by
CO-PROVIDER. Further, U S WEST will not
block third party and collect calls to those
numbers unless requested by CO-PROVIDER.
(e) The ordering Party shall specify, on a per
telephone number basis which method of INP
is to be employed and the providing Party
shall provide such method to the extent
technically feasible.
(f) Where either Party has activated an entire
NXX, or activated a substantial portion of
an NXX with the remaining numbers in that
N)(X either reserved for future use or
otherwise unused, if these Customer(s)
choose to receive service from the other
Party, the first Party shall cooperate with
the second Party to have the entire N)(X
reassigned in the LERG (and associated
industry databases, routing tables, etc.) to
an End Office operated by the second Party.
Such transfer will be accomplished with
appropriate coordination between the Parties
and subject to appropriate industry
lead-times for movement of NXXs from one
switch to another.
42.1.2 DESCRIPTION OF SERVICE
(a) Interim Number Portability
Service ("INP") is a service arrangement
that can be provided by U S WEST to
CO-PROVIDER or by CO-PROVIDER to U S WEST.
(b) INP applies to those situations
where an end-user Customer elects to change
service providers, and such Customer
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Part A
also wishes to retain its existing or
reserved telephone number(s). INP consists
of providing the capability to route calls
placed to telephone numbers assigned to one
Party's switches to another Party's
switches.
(c) INP is available as NP-Remote
Call Forwarding ("IN-PRC F") permitting a
call to a U S WEST assigned telephone number
to be translated to CO-PROVIDER's dialable
local number. CO-PROVIDER may terminate the
call as desired. Additional capacity for
simultaneous call forwarding is available
where technically feasible on a per path
basis. CO-PROVIDER will need to specify the
number of simultaneous calls to be forwarded
for each number ported.
(d) DID is another INP method that
makes use of direct inward dialing trunks.
Each DID trunk group used for INP is
dedicated to carrying DID INP traffic
between the U S WEST end office and the
CO-PROVIDER switch. Traffic on these trunks
cannot overflow to other trunks, so the
number of trunks shall be conservatively
engineered by U S WEST. Also, inter-switch
signaling is usually limited to
multi-frequency (MF). This precludes passing
Calling Line ID to the CO-PROVIDER switch.
(e) RI-PH will route a dialed call
to the U S WEST switch associated with the
NXX of the dialed number. The U S WEST
switch shall then insert a prefix onto the
dialed number which identifies how the call
is to be routed to CO-PROVIDER. The prefixed
dialed number is transmitted to the U S WEST
tandem switch to which CO-PROVIDER is
connected. Route indexing is only available
with seven (7) digit local dialing.
(f) The prefix is removed by the operation of
the tandem switch and the dialed number is
routed to CO-PROVIDER's switch so the
routing of the call can be completed by
CO-PROVIDER.
i. DN-RI is a form of RI-PH that
requires direct trunking between
the U S WEST switch to which the
ported number was originally
assigned and the CO-PROVIDER switch
to which the number has been
ported. The U S WEST switch shall
send the originally dialed number
to the CO-PROVIDER switch without a
prefix.
ii. U S WEST shall provide
RI-PH or DN-RI on an individual
telephone number basis, as
designated by CO-PROVIDER. Where
technically feasible, calls to
ported numbers
are first directed to the
CO-PROVIDER switch over direct
trunks but may overflow to tandem
trunks if all trunks in the direct
group are occupied.
iii. For both RI-PH and DN-RI the trunks
used may, at CO-PROVIDER's option,
be the same as those used for
exchange of other local traffic
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Part A
with U S WEST. At CO-PROVIDER's
option, the trunks shall employ SS7
or in band signaling and may be one
way or two way.
(g) INP is subject to the following
restrictions:
i. An INP telephone number
may be assigned by CO-PROVIDER
only to CO-PROVIDER's Customers
located within U S WEST's local
calling area and toll rating
area that is associated with the
NXX of the ported number. This
is to prevent the possibility of
Customers using number
portability to extend the local
calling area.
ii. INP is applicable only if
CO-PROVIDER is engaged in a
reciprocal traffic exchange
arrangement with U S WEST.
iii. INP is not offered
for NXX Codes 555, 976, 960
and 1+ sent-paid telephones,
and Service Access Codes
(i.e., 500, 700, 800/888,
900). INP is not available
for FGA seven-digit numbers
(including foreign exchange
(FEX), FX and FX/ONAL and
foreign Central Office
service). Furthermore, INP
numbers may only be used
consistent with network
efficiency and integrity,
i.e., inhibitions on mass
calling events.
iv. The ported telephone
number will be returned to
the switch which originally
had the ported number when
the ported service is
disconnected. The normal
intercept announcement will
be provided by the porting
company for the period of
time until the telephone
number is reassigned.
v. Within thirty (30)
days after a request by
CO-PROVIDER, U S WEST shall
provide CO-PROVIDER a list of
those features that are not
available for INP telephone
numbers due to technical
limitations.
42.1.3 ORDERING AND MAINTENANCE
(a) CO-PROVIDER is
responsible for all direct interactions with
CO-PROVIDER's end users with respect to
ordering and maintenance.
(b) U S WEST shall exchange
with CO-PROVIDER SS7 TCAP messages as
required for the implementation of Custom
Local Area Signaling Services (CLASS) or
other features available in the U S WEST
network.
(c) Each Parties'
designated INP switch must return answer and
disconnect supervision to the other Party's
switch.
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Part A
(d) U S WEST shall
disclose to CO-PROVIDER any technical or
capacity limitations that would prevent use
of a requested INP in a particular
switching office.
(e) The Parties will
develop and implement an efficient
deployment process to ensure call routing
integrity for toll and local calls, with the
objective to eliminate Customer downtime.
(f) For INP, CO-PROVIDER
shall have the right to use the existing U S
WEST 911 infrastructure for all 911
capabilities. When RCF is used for
CO-PROVIDER subscribers, both the ported
numbers and shadow numbers shall be stored
in the ALI databases. CO-PROVIDER shall have
the right to verify the accuracy of the
information in the ALI databases via direct
connection to the SCC ALI database pursuant
to the same process and procedures SCC makes
available to U S WEST.
42.2 PERMANENT NUMBER PORTABILITY (PNP)
42.2.1 Upon implementation of Permanent
Number Portability (PNP) pursuant to FCC regulations,
both Parties agree to conform and provide such
Permanent Number Portability. To the extent
consistent with the FCC rules as amended from time to
time, the requirements for PNP shall include the
following:
42.2.2 Subscribers must be able to change
local service providers and retain the same telephone
number(s) consistent with FCC rules and regulations.
42.2.3 The PNP network architecture shall
not subject alternate local exchange carriers to any
degradation of service compared to U S WEST in any
relevant measure, including transmission quality,
switching and transport costs, increased call set-up
time and post-dial delay, and CO-PROVIDER shall not
be required to rely on the U S WEST network for calls
completing to its ported Customers.
42.2.4 When an office is equipped with PNP,
in accordance with the procedures specified by the
North American Numbering Council, the NXXs in the
office shall be defined as portable and translations
will be changed in the Parties' switches to open
those NXXs for database queries.
42.2.5 When an NXX is defined as portable,
it shall also be defined as portable in all
PNP-capable offices which have direct trunks to the
given switch.
42.2.6. Upon introduction of PNP in a
Metropolitan Statistical Area ("MSA"), the applicable
switches will be converted according to a published
schedule with no unreasonable delay. All portable
NXXs shall be recognized as portable, with queries
launched from these switches.
42.2.7 Prior to implementation of PNP, the
Parties agree to develop, implement, and maintain
efficient methods to maintain 911 database integrity
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Part A
when a subscriber ports to another service provider.
The Parties agree that the Customer should not be
dropped from the 911 database during the transition.
42.2.8 When a subscriber ports to another
service provider and has previously secured a
reservation of line numbers from the donor provider
for possible activation at some future point, these
reserved but inactive numbers shall "port" along with
the active numbers being ported by the subscriber. So
long as CO-PROVIDER maintains the reserved numbers, U
S WEST shall not reassign said numbers. The Parties
will allocate the revenue generated from number
reservations in accordance with a schedule to be
mutually agreed upon by the Parties within ninety
(90) days after a request by CO-PROVIDER. U 5. WEST
shall provide CO-PROVIDER the ability to reserve
numbers.
42.2.9 During the process of porting a
subscriber, the donor service provider shall
implement the 10-Digit trigger feature, when the
technology is made available in each switch in
accordance with the schedules adopted by the FCC.
When the donor provider receives the porting request,
the unconditional trigger shall be applied to the
subscriber's line at the time that has been agreed to
via the Western Region LNP Operations Guidelines in
order to overcome donor network time delays in the
disconnection of the subscriber. Alternatively, when
an activation notice is sent to an NPAC to trigger a
broadcast to service provider databases, the donor
switch shall have its translations changed to
disconnect the subscriber's line within thirty (30)
minutes or less after the donor network Local SMS's
has received the broadcast. Porting requests that
require coordination between service providers, in
accordance with the guidelines, will be handled on a
case-by-case basis and will not be covered by the
above.(22)
42.2.10 Both CO-PROVIDER and U S WEST shall:
(a) support all emergency and
Operator Services.
(b) use scarce numbering resources
efficiently and administer such resources in
a competitively neutral manner.
(c) jointly cooperate with each
other to provide the information necessary
to rate and bill all types of calls.
(d) jointly cooperate with each
other to apply PNP consistently on a
nationwide basis, and in accordance with all
FCC directives.
42.2.11 A ten-digit code, consistent with
the North American Numbering Plan, shall be used as
a network address for each switch that terminates
subscriber lines, i.e., an end office. This address
shall support existing six-digit routing and may be
implemented without changes to existing switch
routing algorithms. In existing end offices, this
address shall be selected from one of its existing
NPA-NXXs. New end offices shall be assigned an
address through normal administrative processes.
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(22) MCI Order at pg. 3, Issue 13 and as subsequently agreed by the Parties
<PAGE>
Part A
42.2.12 PNP employs an "N-1" (N minus 1)
Query Strategy for interLATA or intraLATA toll calls,
by which the originating carrier will pass the call
to the appropriate toll carrier who will perform a
query to an external routing database and efficiently
route the call to the appropriate terminating local
carrier either directly or through an access tandem
office.
42.2.13 U S WEST shall furnish CO-PROVIDER
with the first six (6) digits of the originating
address when it supplies CO-PROVIDER with the
Jurisdiction Information Parameter for the
originating address message.
42.2.14 U S WEST agrees to begin the
introduction of PNP to end user subscribers who may
begin changing local service providers and retaining
their existing telephone number based on the time
line set out by the FCC in its Telephone Number
Portability Order (CC Docket No. 95-116), or in
accordance with a Commission order if such time for
introduction of PNP set by the Commission is earlier
than would result under the FCC Order.
42.2.15 The generic requirements for the PNP
alternative will be implemented in accordance with
industry standard specifications.
42.2.16 For a local call to a ported number,
the originating carrier is the "N-I" carrier. It
will perform an external database query as soon as
the call reaches the first PNP-capable switch in the
call path and pass the call to the appropriate
terminating carrier. A PNP-capable originating
switch shall query on a local call to a portable NXX
as soon as it determines that it (the originating
switch) does not serve the dialed number.
42.2.17 U S WEST shall be the default
carrier for database queries where CO-PROVIDER is
unable to perform its own query due to abnormal
conditions. CO-PROVIDER shall be the default carrier
for database queries where U S WEST is unable to
perform its own query due to abnormal conditions.
42.2.18 U S WEST will provide CO-PROVIDER
PNP for subscribers moving to a different location,
or staying at the same location, within the same
rate center area.
42.2.19 U S WEST will work cooperatively
with other local service providers to establish the
Western Region Number Portability Administration
Center/Service Management System (SMS). The SMS
shall be administered by a neutral third party to
provide for the efficient porting of numbers between
carriers. There must be one (1) exclusive NPAC per
portability State or region, and U S WEST shall
provide all information uploads and downloads
regarding ported numbers to/from, respectively, the
exclusive NPAC. U S WEST and CO-PROVIDER shall
cooperate to facilitate the expeditious deployment
of PNP through the process prescribed by the FCC,
including, but not limited to, participation in the
selection of a neutral third party and development
of SMS, as well as SMS testing for effective
procedures, electronic system interfaces, and
Page 51
<PAGE>
Part A
overall readiness for use consistent with that
specified for provisioning in this Agreement.
42.3 REQUIREMENTS FOR INP AND NP
42.3.1 [Intentionally left blank for numbering consistency]
42.3.2 CUT-OVER PROCESS
THE PARTIES SHALL COOPERATE IN THE PROCESS
OF PORTING NUMBERS FROM ONE CARRIER TO ANOTHER SO AS
TO LIMIT SERVICE OUTAGE FOR THE PORTED SUBSCRIBER.
THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, EACH
PARTY UPDATING ITS RESPECTIVE NETWORK ELEMENT
TRANSLATIONS WITHIN FIFTEEN (15) MINUTES FOLLOWING
NOTIFICATION BY THE INDUSTRY SMS, OR PORTED-TO LOCAL
SERVICE PROVIDER, AND DEPLOYING SUCH TEMPORARY
TRANSLATIONS AS MAY BE REQUIRED TO MINIMIZE SERVICE
OUTAGE, E.G., UNCONDITIONAL TRIGGERS. IN ADDITION,
CO-PROVIDER SHALL HAVE THE RIGHT TO DETERMINE WHO
INITIATES THE ORDER FOR INP IN SPECIFIC CUT-OVER
SITUATIONS. THE TIME FRAMES IN THIS PARAGRAPH SHALL
BE PURSUANT TO GENERIC REQUIREMENTS FOR SCP
APPLICATION AND GTT FUNCTION FOR NUMBER PORTABILITY,
ISSUE 0.99, JANUARY 6, 1997 AND SUBSEQUENT VERSIONS
WHICH MAY BE ADOPTED FROM TIME TO TIME. THE PARTIES
SHALL COOPERATE TO REVIEW AND, if NECESSARY, ADJUST
THE ABOVE TIME FRAME BASED ON THEIR ACTUAL
EXPERIENCES.(23)
42.3.3 TESTING
U S WEST and CO-PROVIDER shall
cooperate in conducting CO-PROVIDER's testing to
ensure interconnectivity between systems. U S WEST
shall inform CO-PROVIDER of any system updates that
may affect the CO-PROVIDER network and U S WEST
shall, at CO-PROVIDER's request, perform tests to
validate the operation of the network. Additional
testing requirements may apply as specified by this
Agreement.
42.3.4 ENGINEERING AND MAINTENANCE
(a) U S WEST and
CO-PROVIDER will cooperate to ensure that
performance of trunking and signaling
capacity is engineered and managed at levels
which are at least the same level of service
as provided by U S WEST to its subscribers
and to ensure effective maintenance testing
through activities such as routine testing
practices, network trouble isolation
processes and review of operational elements
for translations, routing and network fault
isolation.
(b) Additional specific
engineering and maintenance requirements
shall apply as specified in this Agreement.
42.3.5 RECORDING AND BILLING
- ----------------
(23)MCI Order at pg. 3, Issue 13
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<PAGE>
Part A
The Parties shall provide each
other with accurate billing and subscriber account
record exchange data necessary for billing their
subscribers whose numbers have been ported.
42.3.6 OPERATOR SERVICES AND DIRECTORY ASSISTANCE
With respect to Operator Services
and Directory Assistance associated with NP for
CO-PROVIDER subscribers, U S WEST shall provide the
following:
(a) While INP is deployed and prior to
conversion to PNP:
i. The Parties acknowledge that
technology, as of the Effective Date of
this Agreement, does not permit the
provision of BLV/BLI to ported numbers.
When such becomes available in the U S
WEST network, such technology shall be
made available to CO-PROVIDER.
ii. U S WEST shall allow CO-PROVIDER to
order provisioning of Telephone Line
Number (TLN) calling cards and Billed
Number Screening (BNS), in its LIDB,
for ported numbers, as specified by
CO-PROVIDER. U S WEST shall continue to
allow CO-PROVIDER access to its LIDB.
Other LIDB provisions are specified in
this Agreement.
iii. Where U S WEST has control of directory
listings for NXX codes containing
ported numbers, U S WEST shall maintain
entries for ported numbers as specified
by CO-PROVIDER in accordance with the
Listings Section of this Agreement.
(b) When PNP is in place:
i. The provisions in Section 42.3.6
preceding, shall apply when PNP is in
place.
ii. If Integrated Services Digital Network
User Part (ISUP) signaling is used, U S
WEST shall provide the Jurisdiction
Information Parameter in the SS7
Initial Address Message. (See Generic
Switching and Signaling Requirements
for Number Portability, Issue 1.0,
February 12, 1996 (Editor - Lucent
Technologies, Inc.)).
iii The Parties shall provide, when
received from the NPAC, a 10-Digit
Global Title Translation (GTT) Node for
routing queries for TCAP-based Operator
Services (e.g., LIDB). The acquiring
company will provide the GTT to the
NPAC. The NPAC will distribute this
information to the donor company and
all other parties.
iv. U S WEST OSS shall meet all
requirements specified in "Generic
Operator Services Switching
Requirements for Number Portability,"
Issue 1.1, June 20, 1996, as updated
from time to time.
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<PAGE>
Part A
43. DIALING PARITY
43.1 The Parties shall provide dialing parity to each other as
required under Section 251(b)(3) of the Act or state law or
regulation as appropriate.
43.2 U S WEST shall ensure that all CO-PROVIDER Customers
experience the same dialing parity as similarly-situated
Customers of U S WEST services, such that, for example, for
all call types: (a) an CO-PROVIDER Customer is not required
to dial any greater number of digits than a
similarly-situated U S WEST Customer; and (b) the CO-PROVIDER
Customer may retain its local telephone number, so long as
the Customer continues receiving service in the same central
office serving area.
44. DIRECTORY LISTINGS
44.1 DIRECTORY LISTINGS GENERAL REQUIREMENTS
44.1.1 This Section 44 pertains to Directory Listings
requirements for the appearance of CO-PROVIDER end
user directory listings in Directory Assistance
service or directory product.
44.1.2 U S WEST shall include in its master directory
listing database all list information for
CO-PROVIDER Customers.
44.1.3 U S WEST shall not sell or license, nor allow any
third party, the use of CO-PROVIDER Customer
Listings without the prior written consent of
CO-PROVIDER. U S WEST shall not disclose nor allow
any third party to disclose non-listed name or
address information for any purpose other than what
may be necessary to complete directory distribution.
44.1.4 CO-PROVIDER CUSTOMER LISTINGS IN THE U S WEST
DIRECTORY ASSISTANCE DATABASE AND DIRECTORY LISTING
DATABASE SHALL BE CO-MINGLED WITH LISTINGS OF U S
WEST AND OTHER CLEC CUSTOMERS."(24)
44.1.5 EACH CO-PROVIDER CUSTOMER PRIMARY LISTING SHALL BE
PROVIDED, AT NO CHARGE, THE SAME WHITE PAGE LISTINGS
THAT U S WEST PROVIDES ITS CUSTOMERS.(25)
44.1.6 EACH CO-PROVIDER BUSINESS CUSTOMER PRIMARY LISTING
SHALL BE PROVIDED, AT NO CHARGE, THE SAME YELLOW
PAGE CLASSIFIED COURTESY LISTINGS THAT U S WEST
PROVIDES ITS CUSTOMERS.(26)
44.1.7 U S WEST SHALL ALSO ENSURE THAT ITS DIRECTORY
PUBLISHER PUBLISHES ALL TYPES OF LISTINGS FOR
CO-PROVIDER CUSTOMERS THAT ARE AVAILABLE TO U S WEST
- ------------
(24) MCI Order at pg. 11, Issue 36, first paragraph - third sentence and second
paragraph - first and second
(25) MCI Order at pg. 11, Issue 36, first paragraph - first sentence
(26) MCI Order at pg. 11, Issue 36, first paragraph - first sentence
Page 54
<PAGE>
Part A
CUSTOMERS UNDER THE SAME TERMS, AND CONDITIONS,
INCLUDING, BUT NOT LIMITED TO:(27)
(a) Foreign listings
(b) Reference listings
(c) Information listings
(d) Alternate call listings
(e) Multi-line listings
(f) Multi-line/Multi-owner listings
44.1.8 CO-PROVIDER end user listings properly identified by
CO-PROVIDER as State. Local, and Federal government
listings shall be appropriately coded in the U S
WEST Directory Listing database. U S WEST will
provide government code information to CO-PROVIDER.
44.1.9 The listing and handling of CO-PROVIDER listed and
non-listed telephone numbers shall be at least at
parity with that provided by U S WEST to its own
Customers, including CO-PROVIDER customers who have
ported telephone numbers from U S WEST.
44.1.10 U S WEST shall ensure that its directory publisher
publishes CO-PROVIDER sales, service, billing, and
repair information for business and residential
Customers, along with the CO-PROVIDER logo in the
customer information/guide pages of each directory
at no charge to CO-PROVIDER.(28)
44.1.11 U S WEST is responsible for maintaining Listings,
including entering, changing, correcting,
rearranging and removing Listings in accordance with
CO-PROVIDER orders. Upon request, and at least one
(1) month prior to a given white page directory
close, a method of reviewing and correcting Listings
will be provided.
44.1.12 CO-PROVIDER SHALL RECEIVE COMMISSIONS FROM U S
WEST'S DIRECTORY PUBLISHER BY ALL COMPENSATION
GENERATED BY SUCH ADVERTISING AT THE SAME RATE PAID,
IF ANY, TO U S WEST OR ANY OF ITS AFFILIATES AS
SPECIFIED IN THE DIRECTORY PUBLISHING AGREEMENT
BETWEEN U S WEST AND U S WEST DEX AND ANY OTHER
AFFILIATE OR IN ANY OTHER WRITTEN AGREEMENT.(29)
44.1.13 U S WEST will permit CO-PROVIDER Customers to
place orders for Premium Listings and privacy
listings. CO-PROVIDER will be charged for Premium
Listings and privacy listings at U S WEST's
general exchange tariff rates less the wholesale
discount rate. The Premium and privacy listing
charges will be billed to CO-PROVIDER and itemized
at the telephone number sub-account level.
44.1.14 U S WEST shall ensure a third party distributes
appropriate alphabetical and classified
directories (white and yellow pages) and recycling
services to CO-PROVIDER Customers at parity with U
S WEST end users, including providing
- --------------
(27) MCI Order at pg. 11, Issue 36, first paragraph - second sentence
(28) MCI Order at pg. 11, Issue 36, third paragraph
(29) Final Arbitration Order at pg. 10
Page 55
<PAGE>
Part A
directories, a) upon establishment of new service;
b) during annual mass distribution; and c) upon
Customer request.
44.1.15 [INTENTIONALLY LEFT BLANK FOR NUMBERING
CONSISTENCY.](30)
44.1.16 U S WEST will provide the option of having CENTREX
users listed when CO-PROVIDER purchases CENTREX type
services for resale.
44.1.17 [INTENTIONALLY LEFT BLANK FOR NUMBERING
CONSISTENCY.](31)
44.2 SCOPE
44.2.1 CO-PROVIDER grants U S WEST a non-exclusive license
to incorporate Listings information into its
Directory Assistance database. CO-PROVIDER shall
select one of two options for U S WEST's use of
Listings and dissemination of Listings to third
parties.
EITHER:
(a) Treat the same as U S WEST's end user
listings - No prior authorization is needed
for U S WEST to release Listings to
directory publishers or other third
parties. U S WEST will incorporate Listings
information in all existing and future
Directory Assistance applications developed
by U S WEST. CO-PROVIDER authorizes U S
WEST to sell and otherwise make Listings
available to directory publishers. Listings
shall not be provided or sold in such a
manner as to segregate end users by
carrier.
OR:
(b) Restrict to U S WEST's Directory Assistance
Services -- Prior authorization required from
CO-PROVIDER for all other uses. CO-PROVIDER
makes its own, separate agreements with U S
WEST, third Parties and directory publishers
for all uses of its listings beyond Directory
Assistance. U S WEST will sell or provide
Listings to directory publishers (including U
S WEST's publisher affiliate) or other third
Parties only after the third party presents
proof of CO-PROVIDER's authorization.
Listings shall not be provided or sold in
such a manner as to segregate end users by
carrier.
(c) U S WEST SHALL BE ENTITLED TO RETAIN ALL
REVENUE ASSOCIATED WITH ANY SALES PURSUANT TO
SUBPARAGRAPHS (a) AND (b) ABOVE.(32)
44.3 U S WEST will take reasonable steps in accordance
with industry practices to accommodate non-published
and non-listed Listings provided that
- ---------------
(30) Final Arbitration Order at pg. 11
(31) Final Arbitration Order at pg. 12
(32) Final Arbitration Order at pg. 13
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<PAGE>
PROVIDER has supplied U S WEST the necessary privacy
indicators on such Listings.
44.4 CO-PROVIDER RESPONSIBILITIES
44.4.1 CO-PROVIDER agrees to provide to U S WEST its
end user names, addresses and telephone numbers in a
standard mechanized format, as utilized by U S WEST.
44.4.2 CO-PROVIDER will supply its ACNA/CIC or CLCC/OCN, as
appropriate, with each order to provide U S WEST the
means of identifying listings ownership.
44.4.3 CO-PROVIDER represents the end user information
provided to U S WEST is accurate and correct.
CO-PROVIDER further represents that it has reviewed
all listings provided to U S WEST, including end
user requested restrictions on use such as
non-published and non-listed.
44.4.4 CO-PROVIDER is responsible for dealings with, and on
behalf of, CO-PROVIDER's end users on the following
subjects:
a) All end user account activity, e.g., end
user queries and complaints.
b) All account maintenance activity, e.g.,
additions, changes, issuance of orders for
Listings to U S WEST.
a) Determining privacy requirements and
accurately coding the privacy indicators for
CO-PROVIDER's end user information. If end
user information provided by CO-PROVIDER to
U S WEST does not contain a privacy
indicator, no privacy restrictions will
apply.
45. [Intentionally left blank for numbering consistency.]
46. U S WEST DEX ISSUES
46.1 U S WEST and CO-PROVIDER agree that certain issues, such as
yellow page advertising, directory distribution, access to
call guide pages, and yellow page listings, will be the
subject of negotiations between CO-PROVIDER and directory
publishers. U S WEST acknowledges that CO-PROVIDER may
request U S WEST to facilitate discussions between
CO-PROVIDER and U S WEST Dex.(33)
47. ACCESS TO POLES, DUCTS, CONDUITS, AND RIGHTS OF WAY
47.1 EACH PARTY SHALL PROVIDE THE OTHER PARTY NONDISCRIMINATORY
ACCESS TO POLES, DUCTS, RIGHTS-OF-WAY AND CONDUITS IT
CONTROLS ON TERMS, CONDITIONS AND PRICES AS DESCRIBED HEREIN.
WHILE THE LANGUAGE IN SECTION 47 DESCRIBES THE PROVISION OF
POLES, DUCTS, RIGHTS-OF-WAY AND CONDUITS BY U S WEST TO
CO-PROVIDER, THE LANGUAGE IN THIS SECTION SHALL APPLY
RECIPROCALLY TO THE PROVISION OF POLES, DUCTS, RIGHTS-OF-WAY
AND
- ------------
(33) Final Arbitration Order at pg. 13
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<PAGE>
Part A
CONDUITS BY CO-PROVIDER TO U S WEST ON TERMS, CONDITIONS
AND PRICES COMPARABLE TO THOSE DESCRIBED HEREIN.(34)
47.2 [Intentionally left blank for numbering consistency]
47.3 DEFINITIONS
"Poles, ducts, conduits and ROW' refer to all the physical
facilities and legal rights which provide for access to
pathways across public and private property. These include
poles, pole attachments, ducts, innerducts, conduits,
building entrance facilities, building entrance links,
equipment rooms, remote terminals, cable vaults, telephone
closets, building risers, rights-of- way, or any other
requirements needed to create pathways. These pathways may
run over, under, across or through streets, traverse private
property, or enter multi-unit buildings. A Right-of-Way
("ROW') is the right to use the land or other property owned,
leased, or controlled by any means by U S WEST to place
poles, ducts, conduits and ROW or to provide passage to
access such poles, ducts, conduits and ROW. A ROW may run
under, on, or above public or private property (including air
space above public or private property) and shall include the
right to use discrete space in buildings, building complexes,
or other locations.
47.4 REQUIREMENTS
47.4.1 U S WEST shall make poles, duct, conduits and ROW
available to CO-PROVIDER upon receipt of a request
for use within the time periods provided in this
Section, providing all information necessary to
implement such use and containing rates, terms and
conditions, including, but not limited to,
maintenance and use in accordance with this
Agreement and at least equal to those which it
affords itself, its Affiliates and others. Other
users of these facilities, including U S WEST, shall
not interfere with the availability or use of the
facilities by CO-PROVIDER.
47.4.2 Within ten (10) Business Days of CO-PROVIDER's
request for specific poles, ducts, conduits, or ROW,
U S WEST shall provide any information in its
possession or available to it regarding the
environmental conditions of such requested poles,
ducts, conduits or ROW route or location including,
but not limited to, the existence and condition of
asbestos, lead paint, hazardous substance
contamination, or radon. Information is considered
"available" under this Agreement if it is in U S
WEST's possession or files, or the possession of an
agent, contractor, employee, lessor, or tenant of
U S WEST's that holds such information on U S WEST's
behalf. If the poles, ducts, conduits or ROW contain
such environmental contamination, making the
placement of equipment hazardous, U S WEST shall
offer alternative poles, ducts, conduits or ROW for
CO-PROVIDER's consideration. U S WEST shall allow
CO-PROVIDER to perform any environmental site
investigations, including, but not limited to, Phase
I and Phase II environmental site assessments, as
CO-PROVIDER may deem to be necessary.
- --------------------
(34) Final Arbitration Order at pg. 16
Page 58
<PAGE>
Part A
47.4.3 U S WEST shall not prevent or delay any third party
assignment of ROW to CO-PROVIDER.
47.4.4 U S WEST shall offer the use of such poles, ducts,
conduits and ROW it has obtained from a third party
to CO-PROVIDER, to the extent such agreement does
not prohibit U S WEST from granting such rights to
CO-PROVIDER. They shall be offered to CO-PROVIDER on
the same terms as are offered to U S WEST.
CO-PROVIDER shall reimburse U S WEST for U S WEST's
reasonable costs, if any, incurred as a result of
the exercise of its eminent domain authority on
behalf of CO-PROVIDER in accordance with the
provisions of this paragraph.
47.4.5 U S WEST shall provide CO-PROVIDER equal and
non-discriminatory access to poles, ducts, conduit
and ROW and any other pathways on terms and
conditions equal to that provided by U S WEST to
itself or to any other Person. Further, U S WEST
shall not preclude or delay allocation of these
facilities to CO-PROVIDER because of the potential
needs of itself or of other Person, except a
maintenance spare may be retained as described
below.
47.4.6 U S WEST shall not attach, or permit other entities
to attach facilities on, within or overlashed to
existing CO-PROVIDER facilities without
CO-PROVIDER's prior written consent.
47.4.7 U S WEST AND CO-PROVIDER AGREE TO PROVIDE CURRENT
DETAILED ENGINEERING AND OTHER PLANT RECORDS AND
DRAWINGS FOR SPECIFIC REQUESTS FOR POLES, DUCTS,
CONDUIT AND ROW, INCLUDING FACILITY ROUTE MAPS AT A
CITY LEVEL, AND THE FEES AND EXPENSES INCURRED IN
PROVIDING SUCH RECORDS AND DRAWINGS ON THE EARLIER
OF TWENTY (20) BUSINESS DAYS FROM THE DATE OF
REQUEST OR THE TIME WITHIN WHICH U S WEST PROVIDES
THIS INFORMATION TO ITSELF OR ANY OTHER PERSON. SUCH
INFORMATION SHALL BE OF EQUAL TYPE AND QUALITY AS
THAT WHICH IS AVAILABLE TO U S WEST'S OR
CO-PROVIDER'S OWN ENGINEERING AND OPERATIONS STAFF.
EITHER PARTY SHALL ALSO ALLOW PERSONNEL DESIGNATED
BY THE OTHER PARTY TO JOINTLY EXAMINE, AT NO COST TO
THE OTHER PARTY FOR SUCH PERSONNEL, SUCH ENGINEERING
RECORDS AND DRAWINGS FOR A SPECIFIC LOCAL ROUTING AT
CENTRAL OFFICES AND ENGINEERING OFFICES UPON TEN
(10) DAYS' WRITTEN NOTICE. U S WEST AND CO-PROVIDER
ACKNOWLEDGE THAT THE REQUEST FOR INFORMATION AND THE
SUBJECT MATTER RELATED TO THE REQUEST MADE UNDER
THIS SECTION SHALL BE TREATED AS PROPRIETARY
INFORMATION.(35)
47.4.8 U S WEST shall provide to CO-PROVIDER a Single Point
of Contact for negotiating all structure lease and
ROW arrangements.
47.4.9 U S WEST shall provide information regarding the
availability and condition of poles, ducts, conduit
and ROW within five (5) Business Days of
CO-PROVIDER's request if the information then exists
in U S WEST's records (a records based answer) and
within twenty (20) Business Days of CO-PROVIDER's
request if U S WEST must physically examine the
poles, ducts, conduits and ROW (a field based
answer) (Request"). CO-PROVIDER shall have the
option to be present at the field based survey and
U S WEST shall provide CO-PROVIDER at least
- ----------------
(35) Final Arbitration Order at pg. 18
Page 59
<PAGE>
Part A
twenty-four (24) hours' notice prior to the start of
such field survey. During and after this period, U S
WEST shall allow CO-PROVIDER personnel to enter
manholes and equipment spaces and view pole
structures to inspect such structures in order to
confirm usability or assess the condition of the
structure. U S WEST shall send CO-PROVIDER a written
notice confirming availability pursuant to the
Request within such twenty (20) day period
("Confirmation").
47.4.10 FOR THE PERIOD BEGINNING AT THE TIME OF THE REQUEST
AND ENDING NINETY (90) DAYS FOLLOWING CONFIRMATION,
EITHER U S WEST OR CO-PROVIDER SHALL RESERVE SUCH
POLES, DUCTS, CONDUIT AND ROW FOR THE OTHER PARTY
AND SHALL NOT ALLOW ANY USE THEREOF BY ANY THIRD
PARTY, INCLUDING THE PARTY PROVIDING CONFIRMATION.
THE PARTY REQUESTING ACCESS SHALL ELECT WHETHER OR
NOT TO ACCEPT SUCH POLES, DUCTS, CONDUIT AND ROW
WITHIN THE NINETY (90) DAY PERIOD FOLLOWING
CONFIRMATION. CO-PROVIDER OR U S WEST MAY ACCEPT
SUCH FACILITIES BY SENDING WRITTEN NOTICE TO THE
PARTY PROVIDING CONFIRMATION ("ACCEPTANCE").(36)
47.4.11 Reservation. After Acceptance by CO-PROVIDER,
CO-PROVIDER shall have six (6) months to begin
attachment and/or installation of its facilities to
the poles, ducts, conduit and ROW or request U S
WEST to begin make ready or other construction
activities. Any such construction, installation or
make ready by CO-PROVIDER shall be completed by the
end of one (1) year after Acceptance. CO-PROVIDER
shall not be in default of the 6-month or 1-year
requirement above if such default is caused in any
way by any action, inaction or delay on the part of
U S WEST or its Affiliates or subsidiaries.
47.4.12 Make Ready. U S WEST shall rearrange, modify and/or
make ready existing poles, ducts, conduit and ROW
where necessary and feasible to provide space for
CO-PROVIDER's requirements. Subject to the
requirements above, the Parties shall endeavor to
mutually agree upon the time frame for the
completion of such work within five (5) days
following CO-PROVIDER's request; provided, however,
that any such work required to be performed by U S
WEST shall be completed within sixty (60) days or a
reasonable period of time based on standard
construction intervals in the industry, unless
otherwise agreed by CO-PROVIDER in writing.
47.4.13 New Construction. After Acceptance, U S WEST shall
complete any new construction, relocation or
installation of poles, ducts, conduits or ROW
required to be performed by U S WEST or any U S WEST
construction, relocation or installation requested
by CO-PROVIDER within a reasonable period of time
based on standard construction intervals in the
industry or sixty (60) days after obtaining all
governmental authority or permits necessary to
complete such construction, relocation or
installation. If U S WEST anticipates that
construction, relocation or installation will go
beyond standard industry intervals or the sixty (60)
day period, U S WEST shall immediately notify
CO-PROVIDER and the Parties shall mutually agree on
a completion date.
- -------------------
(36) Final Arbitration order at pg. 19
Page 60
<PAGE>
Part A
47.4.14 CO-PROVIDER shall begin payment for the use of newly
constructed poles, ducts, conduit, and ROW upon
completion of such construction and installation and
confirmation by appropriate testing methods that the
facilities are in a condition ready to operate in
CO-PROVIDER's network or upon use (other than for
testing) by CO-PROVIDER, whichever is earlier.
47.4.15 CO-PROVIDER shall make payment for construction,
relocation, rearrangements, modifications and make
ready in accordance with Section 3.5 of Attachment 1
of this Agreement.
47.4.16 [Intentionally left blank for numbering consistency]
47.4.17 CO-PROVIDER may, at its option, install its
facilities on poles, ducts, conduit and ROW and use
CO-PROVIDER or CO-PROVIDER designated personnel to
attach its equipment to such U S WEST poles, ducts,
conduits and ROW.
47.4.18 If available, U S WEST shall provide CO-PROVIDER
space in manholes for racking and storage of cable
and other materials as requested by CO-PROVIDER.
47.4.19 U S WEST shall rearrange, modify and/or make ready
any conduit system or poles with retired cable by
removing such retired cable from conduit systems or
poles to allow for the efficient use of conduit
space and pole space. Before denying access based on
a lack of capacity, U S WEST must explore potential
accommodations with CO-PROVIDER.
47.4.20 Where U S WEST has innerducts which are not, at that
time, being used or are not reserved as emergency or
maintenance spare in accordance with FCC rules and
regulations, U S WEST shall offer such ducts for
CO-PROVIDER's use.
47.4.21 Where a spare innerduct does not exist, U S WEST
shall allow CO-PROVIDER to install an innerduct in
U S WEST conduit, at CO-PROVIDER's cost and expense.
U S WEST must review and approve any installation of
innerduct in any U S WEST's duct prior to the start
of construction. Such approval shall not be
unreasonably delayed, withheld or conditioned.
CO-PROVIDER shall provide notice to U S WEST of any
work activity not less than twenty-four (24) hours
prior to the start of construction.
47.4.22 Where U S WEST has any ownership or other rights to
ROW to buildings or building complexes, or within
buildings or building complexes, U S WEST shall
offer such ROW to CO-PROVIDER.
(a) Subject to the approval of the building
owner, if required, the right to use any
available space owned or controlled by U S
WEST in the building or building complex to
install CO-PROVIDER equipment and
facilities;
(b) Subject to the approval of the building
owner if required, ingress and egress to
such space; and
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Part A
(c) Subject to the approval of the building
owner, if required, the right to use
electrical power at parity with U S WEST's
rights to such power.
47.4.23 Whenever U S WEST intends to modify or alter any
poles, ducts, conduits or ROW which contain
CO-PROVIDER's facilities, U S WEST shall provide
written notification of such action to CO-PROVIDER
so that CO-PROVIDER may have a reasonable
opportunity to add to or modify its facilities.
CO-PROVIDER shall advise U S WEST, in writing, of
its intentions to add or modify the facilities
within fifteen (15) Business Days of U S WEST's
notification. If CO-PROVIDER adds to or modifies its
facilities according to this paragraph, CO-PROVIDER
shall bear a proportionate share of the costs
incurred by U S WEST in making such facilities
accessible.
47.4.24 CO-PROVIDER shall not be required to bear any of the
costs of rearranging or replacing its facilities, if
such rearrangement or replacement is required as a
result of an additional attachment or the
modification of an existing attachment sought by any
entity other than CO-PROVIDER, including U S WEST.
47.4.25 U S WEST shall maintain the poles, ducts, conduits
and ROW at its sole cost. CO-PROVIDER shall maintain
its own facilities installed within the poles,
ducts, conduits and ROW at its sole cost. In the
event of an emergency, U S WEST shall begin repair
of its facilities containing CO-PROVIDER's
facilities within a reasonable time frame based on
industry standards or a time frame requested by
CO-PROVIDER. If U S WEST cannot begin repair within
the requested time frame, upon notice and approval
of U S WEST, which approval shall not be
unreasonably withheld, CO-PROVIDER may begin such
repairs without the presence of U S WEST personnel.
CO-PROVIDER may climb poles and enter the manholes,
handholds, conduits and equipment spaces containing
U S WEST's facilities in order to perform such
emergency maintenance, but only until such time as
qualified personnel of U S WEST arrives ready to
continue such repairs. For both emergency and
non-emergency repairs, CO-PROVIDER may use spare
innerduct or conduits, including the innerduct or
conduit designated by U S WEST as emergency spare
for maintenance purposes; provided, however, that
CO-PROVIDER may only use such spare conduit or
innerduct for a maximum period of ninety (90) days.
47.4.26 In the event of a relocation necessitated by a
governmental entity exercising the power of eminent
domain, when such relocation is not reimbursable,
all parties shall share pro rata in costs for
relocating the base conduit or poles and shall each
pay its own cost of cable and installation of the
facilities in the newly rebuilt U S WEST poles,
ducts, conduits and ROW.
48. BONA FIDE REQUEST PROCESS FOR FURTHER UNBUNDLING
48.1 Any request for Interconnection or access to an unbundled
Network Element not already available via price lists,
tariff, or as described herein shall be treated as a Request
under this Section.
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48.2 U S WEST shall use the Bona Fide Request Process ("BFR")
process as described in this Section 48, to determine the
technical feasibility of the requested interconnection or
Network Element(s) and, for those items found to be
technically feasible, to provide the terms and timetable for
providing the requested items. Additionally, elements,
services and functions which are materially or substantially
different from those services, elements or functions already
provided by U S WEST to itself, its Affiliates, Customers, or
end users may, at the discretion of CO-PROVIDER, be subject
to this BFR process.
48.3 A Request shall be submitted in writing and, at a minimum,
shall include: (a) a complete and accurate technical
description of each requested Network Element or
Interconnection; (b) the desired interface specifications;
(c) a statement that the Interconnection or Network Element
will be used to provide a Telecommunications Service; (d) the
quantity requested; (e) the location(s) requested; and (f)
whether CO-PROVIDER wants the requested item(s) and terms
made generally available. O-PROVIDER may designate a Request
as Confidential.
48.4 Within forty-eight (48) hours of receipt of a Request, U S
WEST shall acknowledge receipt of the Request and review such
Request for initial compliance with Subsection 48.3 above. In
its acknowledgment, U S WEST shall advise CO-PROVIDER of any
missing information reasonably necessary to move the Request
to the preliminary analysis described in Subsection 48.5
below.
48.5 Unless otherwise agreed to by the Parties, within thirty (30)
calendar days of its receipt of the Request and all
information necessary to process it, U S WEST shall provide
to CO-PROVIDER a preliminary analysis of the Request. As
reasonably requested by CO-PROVIDER, U S WEST agrees to
provide status updates to CO-PROVIDER. U S WEST will notify
CO-PROVIDER if the quote preparation fee, if any, will exceed
$5,000. CO-PROVIDER will approve the continuation of the
development of the quote prior to U S WEST incurring any
reasonable additional expenses. The preliminary analysis
shall specify whether or not the requested Interconnection or
access to an unbundled Network Element is technically
feasible and otherwise qualifies as a Network Element or
Interconnection as defined under the Act.
48.5.1 If U S WEST determines during the thirty (30) day
period that a Request is not technically feasible or
that the Request otherwise does not qualify as a
Network Element or Interconnection required to be
provided under the Act, U S WEST shall so advise
CO-PROVIDER as soon as reasonably possible of that
fact, and promptly provide a written report setting
forth the basis for its conclusion but in no case
later than ten (10) calendar days after making such
determination.
48.5.2 If U S WEST determines during the thirty (30) day
period that the Request is technically feasible and
otherwise qualifies under the Act, it shall notify
CO-PROVIDER in writing of such determination, no
later than ten (10) calendar days after making such
determination.
48.5.3 Unless otherwise agreed to by the Parties, as soon as
feasible, but no more than ninety (90) calendar days
after U S WEST notifies CO-PROVIDER that the Request
is technically feasible, U S WEST shall provide to
CO-PROVIDER a Request quote which will include, at a
minimum, a description of each Interconnection and
Network Element, the quantity to be provided, the
installation
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intervals (both initial and subsequent), the impact
on shared systems software interfaces, the ordering
process changes, the functionality specifications,
any interface specifications, and either:
(a) the applicable rates (recurring and
nonrecurring), including the amortized
development costs, as appropriate pursuant
to Section 48.5.4 below, of the
Interconnection or Network Element; or
(b) the payment for development costs, as
appropriate pursuant to Section 48.5.4
below, of the Interconnection or Network
Element and the applicable rates (recurring
and nonrecurring), excluding the
development. costs.
48.5.4 The choice of using either option (a) or (b) above
shall be at U S WEST's sole discretion. A payment
for development cost, however, is appropriate only
where CO-PROVIDER is the only conceivable user of
the functionality (including consideration of U S
WEST as a potential user) or where the requested
quantity is insufficient to provide amortization.
48.6 If U S WEST has used option (a) above in its Request quote,
then, within thirty (30) days of its receipt of the Request
quote, CO-PROVIDER must indicate its nonbinding interest in
purchasing the Interconnection or Network Element at the
stated quantities and rates, cancel it Request, or seek
remedy under the dispute resolution section of this
Agreement.
48.7 If U S WEST has used option (b) above in its Request quote,
then, within thirty (30) days of its receipt of the Request
quote, CO-PROVIDER must either agree to pay the development
costs of the Interconnection or Network Element, cancel its
Request, or seek remedy under the dispute resolution section
of this Agreement.
48.8 If U S WEST has used option (b) in its Request quote and
CO-PROVIDER has accepted the quote, CO-PROVIDER may cancel
the Request at any time, but will pay U S WEST's reasonable
development costs of the Interconnection or Network Element
up to the date of cancellation.
48.9 U S WEST will use reasonable efforts to determine the
technical feasibility and conformance with the Act of the
Request within the first thirty-two (32) days of receiving
the Request. In the event U S WEST has used option (b) above
in its Request quote and U S WEST later determines that the
Interconnection or Network Element requested in the Request
is not technically feasible or otherwise does not qualify
under the Act, U S WEST shall notify CO-PROVIDER within ten
(10) Business Days of making such determination and
CO-PROVIDER shall not owe any compensation to U S WEST in
connection with the Request. Any quotation preparation fees
or development costs paid by CO-PROVIDER to the time of such
notification shall be refunded by U S WEST.
48.10 To the extent possible, U S WEST will utilize information
from previously developed BFRs to address similar
arrangements in order to shorten the response times for the
currently requested BFR. In the event CO-PROVIDER has
submitted a Request for an Interconnection or a Network
Element and U S WEST determines in accordance with the
provisions of this Section 48 that the Request is technically
feasible, the Parties agree that CO-PROVIDER's subsequent
request or order for the identical type of
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Part A
Interconnection or Network Element shall not be subject to
the BFR process. To the extent U S WEST has deployed an
identical Network Element under a previous BFR, a subsequent
BFR is not required. For purposes of this Section 48.10, an
"identical" request shall be one that is materially identical
to a previous request with respect to the information
provided pursuant to Subsections (a) through (e) of Section
48.3 above.
48.11 In the event of a dispute under this Section 48, the Parties
agree to seek expedited Commission resolution of the dispute,
to be completed within twenty (20) days of U S WEST's
response denying CO-PROVIDER's BFR, and in no event more than
thirty (30) days after the filing of CO-PROVIDER's petition.
Alternatively, the Parties may mutually agree to resolve any
disputes under this section through the dispute resolution.
process pursuant to Section 27, Part A of this Agreement.
48.12 All time intervals within which a response is required from
one Party to another under this Section 48 are maximum time
intervals. The Parties agree that they will provide all
responses to the other Party as soon as the Party has the
information and analysis required to respond, even if the
time interval stated herein for a response is not over.
49. AUDIT PROCESS
49.1 As used herein, "Audit" shall mean a comprehensive review of
services performed under this Agreement. Either Party (the
"Requesting Party") may perform up to three (3) Audits per
12-month period commencing with the Effective Date.
49.2 Upon thirty (30) days' written notice by the Requesting Party
to the other Party (the "Audited Party"), the Requesting
Party shall have the right, through its authorized
representative, to make an Audit, during normal business
hours, of any records, accounts and processes which contain
information related to the services provided and performance
standards agreed to under this Agreement. Within the
above-described 30-day period, the Parties shall reasonably
agree upon the scope of the Audit, the documents and
processes to be reviewed, and the time, place and manner in
which the Audit shall be performed. The Audited Party agrees
to provide Audit support, including appropriate access to and
use of the Audited Party's facilities (e.g., conference
rooms, telephones, copying machines).
49.3 Each Party shall bear its own expenses in connection with the
conduct of the Audit. The reasonable cost of special data
extractions required by the Requesting Party to conduct the
Audit will be paid for by the Requesting Party. For purposes
of this Section 49.3, a "Special Data Extraction" shall mean
the creation of an output record or informational report
(from existing data files) that is not created in the normal
course of business. If any program is developed to the
Requesting Party's specifications and at the Requesting
Party's expense, the Requesting Party shall specify at the
time of request whether the program is to be retained by the
Audited Party for reuse for any subsequent Audit.
Notwithstanding the foregoing, the Audited Party shall pay
all of the Requesting Party's external expenses (including,
without limitation, the fees of any independent auditor), in
the event an Audit results in an adjustment in the charges or
in any invoice paid or payable by the Requesting Party
hereunder in an amount that is, on an annualized basis, more
than the greater of (a) one percent (1%) of the amount in
dispute or (b) $10,000.
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Part A
49.4 Adjustments, credits or payments shall be made and any
corrective action shall commence within thirty (30) days from
the Audited Party's receipt of the final audit report to
compensate for any errors or omissions which are disclosed by
such Audit and are agreed to by the Parties. The highest
interest rate allowable by law for commercial transactions
shall be assessed and shall be computed by compounding daily
from the time of the original due date of the amount of
dispute.
49.5 Neither such right to examine and audit nor the right to
receive an adjustment shall be affected by any statement to
the contrary appearing on checks or otherwise.
49.6 This Section 49 shall survive expiration or termination of
this Agreement for a period of two (2) years after expiration
or termination of this Agreement.
49.7 All transactions under this Agreement which are over
thirty-six (36) months old are no longer subject to Audit.
49.8 All information received or reviewed by the Requesting Party
or the independent auditor in connection with the Audit is to
be considered Proprietary Information as defined by this
Agreement. The Audited Party reserves the right to require
any non-employee who is involved directly or indirectly in
any Audit or the resolution of its findings as described
above to execute a nondisclosure agreement satisfactory to
the Audited Party. To the extent an Audit involves access to
information of third parties, the Audited Party will
aggregate such competitors' data before release to the
Requesting Party, to insure the protection of the proprietary
nature of information of other competitors. To the extent a
competitor is an Affiliate of the Audited Party (including
itself and its subsidiaries), the Parties shall be allowed to
examine such Affiliate's disaggregated data, as required by
reasonable needs of the Audit.
49.9 "EXAMINATION" SHALL MEAN AN INQUIRY REASONABLY REQUESTED BY
EITHER PARTY INTO SPECIFIC ELEMENT(S) OR PROCESS(ES) WHERE
THE REQUESTING PARTY RAISES A DISPUTE CONCERNING SERVICES
PERFORMED BY THE OTHER PARTY UNDER THIS AGREEMENT AND SUCH
DISPUTE HAS NOT BEEN RESOLVED THROUGH THE ESCALATION PROCESS
DESCRIBED IN THIS AGREEMENT. ONLY THAT INFORMATION THAT IS
NECESSARY TO RESOLVE THE DISPUTE IN ISSUE MUST BE PROVIDED IN
THE COURSE OF AN EXAMINATION AND THE TOTAL TIME INVOLVED IN
AN EXAMINATION FOR EACH PARTY MAY NOT EXCEED THREE (3) PEOPLE
FOR THREE (3) DAYS. APPROPRIATE PROVISIONS OF THIS SECTION 49
THAT APPLY TO AUDITS SHALL ALSO APPLY TO EXAMINATIONS, EXCEPT
THAT EITHER PARTY MAY CONDUCT ONLY A TOTAL OF NINE (9)
EXAMINATIONS AND AUDITS PER YEAR, WITH A MAXIMUM OF THREE (3)
AUDITS PER YEAR.(37)
50. MISCELLANEOUS SERVICES
50.1 BASIC 911 AND E911 GENERAL REQUIREMENTS
50.1.1 Basic 911 and E911 provides a caller access to the
appropriate emergency service bureau by dialing a
3-digit universal telephone number (911). Basic 911
and E911 access from Local Switching shall be
provided to CO-PROVIDER in accordance with the
following:
- ---------------
(37) Final Arbitration Order at pg. 21
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Part A
50.1.2 Each Party will be responsible for those portions of
the 911 System for which it has reasonable control,
including any necessary maintenance to each Party's
portion of the 911 System.
50.1.3 E911 shall provide additional routing flexibility
for 911 calls. E911 shall use Customer data,
contained in the Automatic Location
Identification/Data Management System ("ALI/DMS"),
to determine to which Public Safety Answering Point
("PSAP") to route the call.
50.1.4 If available in the U S WEST network, U S WEST shall
offer a third type of 911 service, S911. All
requirements for E911 also apply to S911 with the
exception of the type of signaling used on the
interconnection trunks from the local switch to the
E911 Tandem.
50.1.5 Basic 911 and E911 functions provided to CO-PROVIDER
shall be at least at parity with the support and
services that U S WEST provides to its Customers for
such similar functionality.
50.1.6 Basic 911 and E911 access from Local Switching
shall be provided to CO-PROVIDER in accordance with
the following:
50.1.6.1 U S WEST shall conform to all state
regulations concerning emergency
services.
50.1.6.2 For E911 provided to resold lines or in
association with unbundled switching,
U S WEST shall use its service order
process to update and maintain Customer
information in the ALI/DMS data base.
Through this process, U S WEST shall
provide and validate Customer
information resident or entered into
the ALI/DMS data base.
50.1.7 U S WEST shall provide for overflow 911 traffic
consistent with U S WEST policy and procedure.
50.1.8 Basic 911 and E911 access from the CO-PROVIDER local
switch shall be provided to CO-PROVIDER in
accordance with the following:
50.1.8.1 If required by CO-PROVIDER, U S WEST
shall interconnect direct trunks from
the CO-PROVIDER network to the E911
Tandem for connection to the PSAP. Such
trunks to the E911 Tandem may
alternatively be provided by
CO-PROVIDER.
50.1.8.2 In government jurisdictions where U S
WEST has obligations under existing
agreements as the primary provider of
the 911 System to the county,
CO-PROVIDER shall participate in the
provision of the 911 System as follows:
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Part A
(a) Each Party shall be responsible
for those portions of the 911
System for which it has control,
including any necessary
maintenance to each Party's
portion of the 911 System.
(b) U S WEST shall be responsible
for maintaining the E-911
database.
50.1.8.3 If a third party is the primary
service provider to a government
agency, CO-PROVIDER shall negotiate
separately with such third party with
regard to the provision of 911 service
to the agency. All relations between
such third party and CO-PROVIDER are
totally separate from this Agreement
and U S WEST makes no representations
on behalf of the third party.
50.1.8.4 If CO-PROVIDER or an Affiliate
is the primary service provider to a
government agency, CO-PROVIDER and U S
WEST shall negotiate the specific
provisions necessary for providing 911
service to the agency and shall include
such provisions in an amendment to this
Agreement.
50.1.8.5 Interconnection and database
access shall be priced as specified in
Attachment I to this Agreement or at
any rate charged to other
interconnected carriers, whichever is
lower.
50.1.8.6 CO-PROVIDER will separately
negotiate with each county regarding
the collection and reimbursement to the
county of applicable Customer taxes for
911 service.
50.1.8.7 U S WEST shall comply with
established, competitively neutral
intervals for installation of
facilities, including any collocation
facilities, diversity requirements,
etc.
50.1.8.8 In a resale situation, where it
may be appropriate for U S WEST to
update the ALI database, U S WEST shall
update such database with CO-PROVIDER
data in an interval no less than is
experienced by U S WEST Customers, or
than for other carriers, whichever is
faster, at no additional cost.
50.1.9 The following are Basic 911 and E911 Database
Requirements:
50.1.9.1 The ALI database shall be managed by
U S WEST, but is the property of U S
WEST and any participating telephone
company and CLEC for those records
provided by the company.
50.1.9.2 U S WEST, or its agent, will be
responsible for maintaining the E-911
Database. U S WEST, or its agent, will
provide a copy of the Master Street
Address Guide ("MSAG"), and periodic
updates, to CO-PROVIDER.
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Part A
50.1.9.3 Copies of the MSAG shall be provided
within twenty-one (21) calendar days
from the time requested and shall be
provided on diskette, magnetic tape, or
in a format suitable for use with
desktop computers.
50.1.9.4 CO-PROVIDER assumes all responsibility
for the accuracy of the data that
CO-PROVIDER provides to U S WEST for
MSAG preparation and E-911 Database
operation.
50.1.9.5 CO-PROVIDER shall be solely responsible
for providing CO-PROVIDER database
records to U S WEST for inclusion in U
S WEST's ALI database on a timely
basis.
50.1.9.6 CO-PROVIDER will provide end user data
to the U S WEST ALI database that are
Master Street Address Guide (MSAG)
valid.
50.1.9.7 CO-PROVIDER will update its end user
records provided to the U S WEST ALI
database to agree with the 911 MSAG
standards for its service areas.
50.1.9.8 U S WEST and CO-PROVIDER shall arrange
for the automated input and periodic
updating of the E911 database
information related to CO-PROVIDER end
users for resold lines in accordance
with Section 10.1 of Attachment 2 of
this Agreement. CO-PROVIDER may
request, through the BFR process,
similar arrangements for CO-PROVIDER
customers served on a non-resale basis.
U S WEST will furnish CO-PROVIDER any
variations to NENA recommendations
required for ALI database input. The
cost of magnetic tape transfer shall be
borne by CO-PROVIDER.
50.1.9.9 U S WEST and CO-PROVIDER shall arrange
for the automated input and periodic
updating of the E911 database
information related to CO-PROVIDER end
users. For resold services, U S WEST
shall work cooperatively with
CO-PROVIDER to ensure the accuracy of
the data transfer by verifying it
against the Master Street Address Guide
(MSAG). For CO-PROVIDER's customers
served by unbundled Network Elements or
through CO-PROVIDER's own facilities,
CO-PROVIDER shall ensure the accuracy
of its 911 data by verifying it against
the MSAG.
50.1.9.10 CO-PROVIDER shall assign an E911
database coordinator charged with the
responsibility of forwarding
CO-PROVIDER end user ALI record
information to U S WEST or via a
third-party entity, charged with the
responsibility of ALI record transfer.
CO-PROVIDER assumes all responsibility
for the accuracy of the data that
CO-PROVIDER provides to U S WEST.
50.1.9.11 The Parties shall maintain a single
point of contact to coordinate all
E911 activities under this Agreement.
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Part A
50.1.9.12 For resold services, CO-PROVIDER shall
provide information on new Customers to
U S WEST within one (1) Business Day of
the order completion. U S WEST shall
update the database within two (2)
Business Days of receiving the data
from CO-PROVIDER. If U S WEST detects
an error in the CO-PROVIDER provided
data, the data shall be returned to
CO-PROVIDER within two (2) Business
Days from when it was provided to U S
WEST. CO-PROVIDER shall respond to
requests from U S WEST to make
corrections to database record errors
by uploading corrected records within
two (2) Business Days. Manual entry
shall be allowed only in the event that
the system is not functioning properly.
CO-PROVIDER may request) through the
BFR process, similar services from U S
WEST for their customers who are served
on a non-resale basis.
50.1.9.13 The Parties will cooperate to implement
the adoption of a Carrier Code (NENA
standard five-character field) on all
ALI records received from CO-PROVIDER,
when those standards, NENA-02-CON, are
adopted by the industry standards
process. U S WEST will furnish
CO-PROVIDER any variations from NENA
recommendations required for ALI
database input. The Carrier Code will
be used to identify the carrier of
record in INP configurations.
50.1.9.14 CO-PROVIDER will provide end user data
to the U S WEST ALI database utilizing
NENA-02-001 Recommended Formats For
Data Exchange, and Recommended Standard
For Street Thoroughfare Abbreviations
and Protocols For Data Exchange and
Data Quality utilizing NENA Recommended
Formats for Data Exchange document
dated June 1993.
50.1.9.15 U S WEST shall identify which ALI
databases cover which states, counties
or parts thereof, and identify and
communicate a point of contact for
each.
50.1.9.16 U S WEST will provide CO-PROVIDER with
the identification of the U S WEST 911
controlling office that serves each
geographic area served by CO-PROVIDER.
50.1.9.17 U S WEST shall provide to CO-PROVIDER,
for CO-PROVIDER Customers, E911/911
call routing to the appropriate Public
Safety Answering Point ("PSAP') for
resold lines. U S WEST shall provide
and validate CO-PROVIDER Customer
information to the PSAP in the same
fashion as it does for its own
Customers. U S WEST shall use its
service order process to update and
maintain, on the same schedule that it
uses for its end users, the CO-PROVIDER
Customer service information in the
ALI/DMS used to support E911/911
services. CO-PROVIDER may request,
through the BFR process, similar
services from U S WEST for their
customers who are served on a
non-resale basis.
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Part A
50.1.9.18 CO-PROVIDER exchanges to be included in
U S WEST's E911 Database will be
indicated via written notice and will
not require an amendment to this
Agreement.
50.1.10 The following are Basic 911 and E911 Network
Requirements:
50.1.10.1 U S WEST, at CO-PROVIDER option, shall
provide a minimum of two (2) E911
trunks per jurisdictional area, or that
quantity which will maintain P.01
transmission grade of service, or the
level of service provided by U S WEST
to itself, whichever is the higher
grade of service. These trunks will be
dedicated to routing 911 calls from
CO-PROVIDER switch to a U S WEST E911
tandem.
50.1.10.2 U S WEST shall provide CO-PROVIDER a
data link to the ALI/DMS database or
permit CO-PROVIDER to provide its
own data link to the ALI/DMS
database. U S WEST shall provide
error reports from the ALI/DMS
database to CO-PROVIDER immediately
after CO-PROVIDER inputs information
into the ALI/DMS database.
Alternately, CO-PROVIDER may utilize
U S WEST or a third party entity to
enter Customer information into the
database on a demand basis, and
validate Customer information on a
demand basis.
50.1.10.3 U S WEST shall provide the selective
routing of E911 calls received from
CO-PROVIDER switching office. This
includes the ability to receive the ANI
of the CO-PROVIDER Customer,
selectively route the call to the
appropriate PSAP, and forward the
Customer's ANI to the PSAP. U S WEST
shall provide CO-PROVIDER with the
appropriate CLLI codes and
specifications regarding the tandem
serving area associated addresses and
meet points in the network.
50.1.10.4 Copies of E911 Tandem Boundary Maps
shall be available to CO-PROVIDER. Each
map shows the areas served by that E911
tandem. The map provides CO-PROVIDER
the information necessary to set up its
network to route E911 callers to the
correct E911 tandem.
50.1.10.5 CO-PROVIDER shall ensure that its
switch provides an eight-digit ANI
consisting of an information digit and
the seven-digit exchange code.
CO-PROVIDER shall also ensure that its
switch provides the line number of the
calling station. In the event of a
change in industry standards, the
Parties shall cooperate to incorporate
the changed standards in their
respective networks.
50.1.10.6 Each ALI discrepancy report shall be
jointly researched by U S WEST and
CO-PROVIDER. Corrective action shall be
taken immediately by the responsible
party.
50.1.10.7 Technical specifications for E911
network interface are available through
U S WEST technical publication 77338.
Technical specifications for database
loading and maintenance are available
through the third party database
manager -- SCC.
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Part A
50.1.10.8 U S WEST shall begin restoration of
E911 and/or E911 trunking facilities
immediately upon notification of
failure or outage. U S WEST must
provide priority restoration of
trunks or networks outages on the
same terms/conditions it provides
itself and without the imposition of
Telecommunications Service Priority
(TSP).
50.1.10.9 U S WEST shall identify any special
operator-assisted calling requirements
to support 911.
50.1.10.10 Trunking shall be arranged to minimize
the likelihood of central office
isolation due to cable cuts or other
equipment failures. There will be an
alternate means of transmitting a 911
call to a PSAP in the event of
failures.
50.1.10.11 Circuits shall have interoffice, loop
and carrier system diversity when such
diversity can be achieved using
existing facilities. Circuits will be
divided as equally as possible across
available carrier systems. Diversity
will be maintained or upgraded to
utilize the highest level of diversity
available in the network.
50.1.10.12 Equipment and circuits used for 911
shall be monitored at all times.
Monitoring of circuits shall be done to
the individual circuit level.
Monitoring shall be conducted by U S
WEST for trunks between the tandem and
all associated PSAPs.
50.1.10.13 Repair service shall begin immediately
upon receipt of a report of a
malfunction. Repair service includes
testing and diagnostic service from a
remote location, dispatch of or
in-person visit(s) of personnel.
Technicians will be dispatched without
delay.
50.1.10.14 All 911 trunks must adhere to the
Americans with Disabilities Act
requirements.
50.1.10.15 The Parties will cooperate in the
routing of 911 traffic in those
instances where the ALI/ANI information
is not available on a particular 911
call.
50.1.10.16 CO-PROVIDER is responsible for network
management of its network components in
compliance with the Network Reliability
Council Recommendations and meeting the
network standard of U S WEST for the
911 call delivery.
50.1.11 Basic 911 and E911 Additional Requirements
50.1.11.1 All CO-PROVIDER lines that have been
ported via INP shall reach the correct
PSAP when 911 is dialed. U S WEST shall
send both the ported number and the
CO-PROVIDER number (if both are
received from CO-PROVIDER). The PSAP
attendant shall see both numbers
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Part A
where the PSAP is using a standard ALI
display screen and the PSAP extracts
both numbers from the data that is
sent.
50.1.11.2 U S WEST shall work with the
appropriate government agency to
provide CO-PROVIDER the ten-digit POTS
number of each PSAP which sub-tends
each U S WEST E911 Tandem to which
CO-PROVIDER is interconnected.
50.1.11.3 U S WEST will provide CO-PROVIDER with
the ten-digit telephone numbers of each
PSAP agency, for which U S WEST
provides the 911 function, to be used
by CO-PROVIDER operators for handling
emergency calls in those instances
where the CO-PROVIDER' Customer dials
"0" instead of "911."
50.1.11.4 CO-PROVIDER will provide U S WEST with
the ten-digit telephone numbers of each
PSAP agency, for which CO-PROVIDER
provides the 911 function, to be used
by U S WEST operators for handling
emergency calls in those instances
where the U S WEST Customer dials "0,'
instead of "911."
50.1.11.5 U S WEST shall notify CO-PROVIDER
forty-eight (48) hours in advance of
any scheduled testing or maintenance
affecting CO-PROVIDER 911 service, and
provide notification as soon as
possible of any unscheduled outage
affecting CO-PROVIDER 911 service.
50.1.11.6 CO-PROVIDER shall be responsible for
reporting all errors, defects and
malfunctions to U S WEST. U S WEST
shall provide CO-PROVIDER with the
point of contact for reporting errors,
defects, and malfunctions in the
service and shall also provide
escalation contacts.
50.1.11.7 CO-PROVIDER may enter into subcontracts
with third parties, including
CO-PROVIDER affiliates, for the
performance of any of CO-PROVIDER
duties and obligations stated herein.
50.1.11.8 U S WEST shall provide sufficient
planning information regarding
anticipated moves to SS7 signaling for
the next twelve (12) months.
50.1.11.9 U S WEST shall provide notification of
any pending tandem moves, NPA splits,
or scheduled maintenance outages, with
enough time to react.
50.1.11.10 U S WEST shall provide "reverse ALI"
inquiries by public safety entities,
consistent with U S WEST's practices
and procedures.
50.1.11.11 U S WEST shall manage NPA splits by
populating the ALI database with the
appropriate new NPA codes, consistent
with U S WEST's practices and
procedures for resold services.
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Part A
50.1.11.12 U S WEST must provide the ability for
CO-PROVIDER to update 911 database with
end user information for lines that
have been ported via INP or NP.
50.1.11.13 The data in the ALI database shall be
managed by U S WEST but is the property
of U S WEST and all participating
telephone companies.
50.1.12 Performance Criteria. E-911 Database accuracy shall
be as set forth below:
50.1.12.1 Accuracy of ALI (Automatic Location
Identification) data submitted by
CO-PROVIDER to U S WEST will be
measured jointly by the PSAPs and U S
WEST. All such reports shall be
forwarded to CO-PROVIDER by U S WEST
and will indicate incidents when
incorrect or no ALI data is displayed.
A report regarding any inaccuracy shall
be prepared by U S WEST.
50.1.12.2 Each discrepancy report will be jointly
researched by U S WEST and CO-PROVIDER.
Corrective action will be taken
immediately by the responsible party.
50.1.12.3 Each party will be responsible for the
accuracy of the Customer records it
provides.
50.2 DIRECTORY ASSISTANCE SERVICE
50.2.1 U S WEST shall provide for the routing of Directory
Assistance calls, including but not limited to 411,
555-1212, NPA-555-1212 dialed by CO-PROVIDER
Customers directly to either the CO-PROVIDER
Directory Assistance service platform or U S WEST
Directory Assistance service platform as specified
by CO-PROVIDER.
50.2.2 CO-PROVIDER Customers shall be provided the
capability by U S WEST to dial the same telephone
numbers for access to CO-PROVIDER Directory
Assistance that U S WEST Customers use to access U S
WEST Directory Assistance.
50.2.3 U S WEST shall provide Directory Assistance
functions and services to CO-PROVIDER for its
Customers as described below until, at CO-PROVIDER's
discretion, U S WEST routes calls to the CO-PROVIDER
Directory Assistance Services platform.
50.2.3.1 U S WEST agrees to provide CO-PROVIDER
Customers with the same Directory
Assistance service available to U S
WEST Customers.
50.2.3.2 U S WEST shall notify CO-PROVIDER in
advance of any changes or enhancements
to its Directory Assistance Service,
and shall make available such service
enhancements on a non-discriminatory
basis to CO-PROVIDER.
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Part A
50.2.3.3 U S WEST shall provide Directory
Assistance to CO-PROVIDER Customers in
accordance with U S WEST's internal
operating procedures and standards,
which shall, at a minimum, comply with
accepted professional and industry
standards.
50.2.3.4 U S WEST shall provide
CO-PROVIDER with the same level of
support for the provisioning of
Directory Assistance as U S WEST
provides itself.
50.2.3.5 Service levels shall comply, at
a minimum, with Commission requirements
for Directory Assistance.
50.2.3.6 U S WEST agrees to maintain an
adequate operator work force based on a
review and analysis of actual call
attempts and abandonment rate.
50.2.3.7 CO-PROVIDER SHALL PARTICIPATE IN
ALL CALL MONITORING ACTIVITIES
AVAILABLE TO U S WEST AND TO REMOTE
CALL MONITOR AS CUSTOMARILY PRACTICED
BY THE OUTSOURCE CUSTOMERS OF CALL
CENTERS.(38)
50.2.3.7.1 [INTENTIONALLY LEFT BLANK FOR NUMBERING
CONSISTENCY.](39)
50.2.3.8 U S WEST shall provide the
following minimum Directory Assistance
capabilities to CO-PROVIDER Customers:
(a) A maximum of two (2) Customer
listings and/or addresses or U S
WEST parity per CO-PROVIDER
Customer request.
(b) Name and address to CO-PROVIDER
Customers upon request, except
for unlisted numbers, in the
same states where such
information is provided to U S
WEST Customers.
(c) For CO-PROVIDER customers who
are served exclusively through
resold U S WEST retail services,
CO-PROVIDER may resell U S
WEST's Directory Assistance call
completion services to the
extent U S WEST offers call
Directory Assistance completion
to its own end users. For
CO-PROVIDER customers who are
served from an CO-PROVIDER
switch, CO-PROVIDER may request
Directory Assistance call
completion services through the
BFR process. Such BFR process
shall address the identification
of the CO-PROVIDER end user at
the U S WEST Directory
Assistance platform for purposes
of routing and billing of
intraLATA and interLATA toll
calls.
- --------------------
(38) Final Arbitration Order at pg. 22
(39) Final Arbitration Order at pg. 23
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Part A
(d) The U S WEST mechanized
interface with the U S WEST
subscriber listing database is
not available for CO-PROVIDER as
of the Effective Date of this
Agreement. When the mechanized
interface is available, U S WEST
will populate the Directory
Assistance database in the same
manner and in the same time
frame as for U S WEST Customers.
(e) Any information provided by a
Directory Assistance Automatic
Response Unit (ARU) shall be
repeated the same number of
times for CO-PROVIDER Customers
as for U S WEST Customers.
(f) When an CO-PROVIDER Customer
served on a resale or unbundled
switching basis requests a U S
WEST Directory Assistance
operator to provide instant
credit on a Directory Assistance
call, the U S WEST Directory
Assistance operator shall inform
the CO-PROVIDER Customer to call
an 800 number for CO-PROVIDER
Customer service to request a
credit. The accurate
identification of CO-PROVIDER as
the customer's local service
provider by the U S WEST
Directory Assistance operator
requires the use of separate
CO-PROVIDER trunks to the
Directory Assistance Platform.
50.2.3.9 For resold lines and unbundled
switching, U S WEST shall provide data
regarding billable events as requested
by CO-PROVIDER.
50.2.3.10 U S WEST agrees to (a) provide to
CO-PROVIDER operators, on line access
to U S WEST's Directory Assistance
database equivalent to the access
provided to U S WEST operators; (b)
allow CO-PROVIDER or an CO-PROVIDER
designated operator bureau to license U
S WEST's subscriber listings database
on terms and conditions equivalent to
the terms and conditions upon which U S
WEST utilizes such databases; and (c)
in conjunction with branded or
unbranded Directory Assistance services
pursuant to Section 8 of this Part A,
provide caller-optional Directory
Assistance call completion service
which is comparable in every way to the
Directory Assistance call completion
service U S WEST makes available to its
own users. CO-PROVIDER may, at its
option, request U S WEST not to provide
call completion services to
CO-PROVIDER.
50.2.3.11 In addition to charges for Directory
Assistance, when call completion for an
intraLATA toll call is requested, the
applicable charge for the completion of
such intraLATA toll call will apply.
50.3 OPERATOR SERVICES
50.3.1 U S WEST shall provide, for the routing of local
Operator Services calls (including, but not limited,
to 0+, 0-) dialed by CO-PROVIDER Customers directly
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Part A
to either the CO-PROVIDER Operator Service platform
or U S WEST Operator Service platform as specified by
CO-PROVIDER.
50.3.2 CO-PROVIDER Customers shall be provided the
capability by U S WEST to dial the same telephone
numbers to access CO-PROVIDER Operator Service that
U S WEST Customers dial to access U S WEST Operator
Service.
50.3.3 U S WEST shall provide Operator Services to
CO-PROVIDER as described below until, at
CO-PROVIDER's discretion, U S WEST routes calls to
the CO-PROVIDER local Operator Services platform.
50.3.3.1 U S WEST agrees to provide
CO-PROVIDER Customers the. same
Operator Services available to U S WEST
Customers. U S WEST shall make
available its service enhancements on a
nondiscriminatory basis.
50.3.3.2 U S WEST shall provide the
following minimum Operator Service
capabilities to CO-PROVIDER Customers:
(a) U S WEST shall complete 0+ and
0- dialed local calls, including
0-Coin, Automatic Coin Telephone
Service (ACTS) and the
completion of coin calls, the
collection of coins and the
provision of coin rates.
(b) U S WEST shall complete 0+
intraLATA and, when offered,
interLATA toll calls. The
Parties will cooperate to
develop industry standards to
include the end user's PlC in
Operator Services signaling and
the development of associated
routing procedures.
(c) U S WEST shall complete calls
for CO-PROVIDER Customers that
are billed to calling cards and
other commercial cards on the
same basis as provided to U S
WEST own customers and
CO-PROVIDER shall designate to U
S WEST the acceptable types of
special billing.
(d) U S WEST shall complete
person-to-person calls.
(e) U S WEST shall complete collect
calls.
(f) U S WEST shall provide the
capability for callers to bill
to a third party and complete
such calls.
(g) U S WEST shall complete
station-to-station calls.
(h) U S WEST shall process emergency
calls.
(i) U S WEST shall process Busy Line
Verify and Busy Line Interrupt
requests.
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Part A
(j) U S WEST shall process emergency
call trace in accordance with
its normal and customary
procedures.
(k) U S WEST shall process
operator-assisted Directory
Assistance calls.
(l) U S WEST operators shall provide
CO-PROVIDER Customers with long
distance rate quotes to the
extent U S WEST provides such
rate quotes to its own end
users. Based on technology
available as of the Effective
Date of this Agreement, the
provision of rate quotes to
CO-PROVIDER Customers requires a
separate CO-PROVIDER trunk group
to the. U S WEST Operator
Services platform to identify
the caller as an CO-PROVIDER
Customer.
(m) U S WEST operators shall provide
CO-PROVIDER Customers with time
and charges to the extent U S
WEST provides such time and
charges to its own end users.
Based on technology available as
of the Effective Date of this
Agreement, the provision of time
and charges to CO-PROVIDER
Customers requires a separate
CO-PROVIDER trunk group to the U
S WEST Operator Services
platform to identify the caller
as an CO-PROVIDER Customer.
(n) U S WEST shall route 0- traffic
to a "live" operator team.
(o) WHEN REQUESTED BY CO-PROVIDER, U
S WEST SHALL PROVIDE INSTANT
CREDIT ON OPERATOR SERVICES
CALLS ON A NONDISCRIMINATORY
BASIS AS PROVIDED TO U S WEST
CUSTOMERS OR SHALL INFORM
CO-PROVIDER CUSTOMERS TO CALL A
TOLL FREE NUMBER FOR CO-PROVIDER
CUSTOMER SERVICE TO REQUEST A
CREDIT. U S WEST SHALL PROVIDE
ONE (1) TOLL FREE NUMBER FOR
BUSINESS CUSTOMERS AND ANOTHER
FOR RESIDENTIAL CUSTOMERS. A
RECORD OF THE REQUEST FOR CREDIT
AND THE AMOUNT OF ANY CREDIT
ACTUALLY ISSUED BY U S WEST
SHALL BE PASSED ON TO
CO-PROVIDER THROUGH THE AMA
RECORD. THE AGGREGATE VALUE OF
ANY CREDIT ISSUED TO AN
CO-PROVIDER CUSTOMER SHALL BE
SHARED EQUALLY BY EACH PARTY. U
S WEST SHALL IN THE NORMAL
COURSE OF BILLING ISSUE
CO-PROVIDER CREDIT EQUAL TO 50%
OF THE AGGREGATE VALUE OF
OPERATOR SERVICE AND DIRECTORY
ASSISTANCE CREDITS ISSUED BY U S
WEST ON CO-PROVIDER'S BEHALF.
(40)
(p) U S WEST shall provide caller
assistance for the disabled in
the same manner as provided to
US WEST Customers.
- -------------------
(40) Final arbitration Order at pg. 25
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Part A
(q) When available to U S WEST end
users, U S WEST shall provide
operator-assisted conference
calling to CO-PROVIDER.
50.3.3 U S WEST shall exercise at least the same level of
fraud control in providing Operator Service to
CO-PROVIDER that U S WEST provides for its own
Operator Service, where the CO-PROVIDER fraud
control data is in U S WEST's LIDB database.
50.3.4 U S WEST shall perform billed number screening when
handling collect, third party, and calling card
calls, both for station to station and person to
person call types.
50.3.5 CO-PROVIDER SHALL BE PERMITTED TO PARTICIPATE IN ALL
CALL MONITORING ACTIVITIES AVAILABLE TO U S WEST AND
TO REMOTE CALL MONITOR AS CUSTOMARILY PRACTICED BY
THE OUTSOURCE CUSTOMERS OF CALL CENTERS.(41)
50.3.5.1 [Intentionally LEFT BLANK.](42)
50.3.6 U S WEST shall direct Customer account and other
similar inquiries to the Customer service center
designated by CO-PROVIDER.
50.3.7 U S WEST shall provide an electronic feed of
Customer call records in "EMR" format to CO-PROVIDER
in accordance with the time schedule mutually agreed
between the Parties.
50.3.8 U S WEST shall update the Line Information Data Base
("LIDB") for CO-PROVIDER Customers. Additionally, U
S WEST must provide access to LIDB for validation of
collect, third party billed, and LEC card billed
calls.
50.3.9 Where INP is deployed and when a BLV/BLI request for
a ported number is directed to a U S WEST operator
and the query is not successful (i.e., the request
yields an abnormal result), CO-PROVIDER may request,
through the BFR process, that the operator confirm
whether the number has been ported and direct the
request to the appropriate operator.
50.3.10 U S WEST shall allow CO-PROVIDER to order
provisioning of Telephone Line Number ("TLN")
calling cards and BNS, in its LIDB, for ported
numbers, as specified by CO-PROVIDER. U S WEST shall
continue to allow CO-PROVIDER access to its LIDB.
50.3.11 Toll and Assistance ("T/A") refers to functions
Customers associate with the "0" operator. Subject
to availability and capacity, access may be provided
via Operator Services trunks purchased from U S WEST
or provided by CO-PROVIDER via collocation
arrangements to route calls to CO-PROVIDER's
platform.
- ----------------
(41) Final Arbitration Order at pg. 22
(42) Final Arbitration Order at pg. 23
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Part A
50.3.12 Automated Branding - ability to announce the
carrier's name to the Customer during the
introduction of the call.
50.3.13 Interconnection to the U S WEST Toll and Assistance
Operator Services from an end office to U S WEST T/A
is technically feasible at least at three (3)
distinct points on the trunk side of the switch. The
first connection point is an Operator Services trunk
connected directly to the T/A host switch. The
second connection point is an Operator Services
trunk connected directly to a remote T/A switch. The
third connection point is an Operator Services trunk
connected to a remote access tandem with operator
concentration capabilities.
50.3.14 All trunk interconnections will be digital.
50.3.15 The technical requirements of Operator Services type
trunks and the circuits to connect the operator
positions to the host are covered in the Operator
Services Switching Generic Requirements ("OSSGR")
Bellcore Document number FRNWT-000271.
50.3.16 BUSY LINE VERIFY AND INTERRUPT
50.3.16.1 At the request of CO-PROVIDER operators
or Customers, U S WEST operators will
perform Busy Line Verify ("BLV") and/or
Busy Line Interrupt ("BLI") operations
where such capacity exists.
50.3.16.2 When possible and where consistent with
the service U S WEST provides to its
own Customers and/or end users, U S
WEST shall engineer its BLV/BLI
facilities to accommodate the
anticipated volume of BLV/BLI requests
during the busy hour. CO-PROVIDER may,
from time to time, provide its
anticipated volume of BLV/BLI requests
to U S WEST. In those instances when
failures occur to significant portions
of the BLV/BLI systems and databases
and those systems and databases become
unavailable, U S WEST shall promptly
Inform CO-PROVIDER.
50.3.16.3 BLV is performed when one Party's
Customer requests assistance from the
other Party's operator or operator
bureau to determine if the called line
is in use; provided, however, that the
operator bureau will not complete the
call for the Customer initiating the
BLV inquiry. Only one (1) BLV attempt
will be made per Customer operator
bureau call, and a charge shall apply
whether or not the called party
releases the line.
50.3.16.4 BLI is performed when one Party's
Customer requests assistance from the
other Party's operator bureau to
interrupt a telephone call in progress
after BLV has occurred. The operator
bureau will interrupt the busy line and
inform the called party that there is a
call waiting. The operator bureau will
only interrupt the call and will not
complete the telephone call of the
Customer initiating the BLI request.
The operator bureau will make only one
(1) BLI attempt per Customer
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Part A
operator telephone call and the
applicable charge applies whether or
not the called party releases the line.
50.3.16.5 Each Party's operator bureau shall
accept BLV and BLI inquiries from the
operator bureau of the other Party in
order to allow transparent provision of
BLV/BLI traffic between the Parties'
networks.
50.3.16.6 Each Party shall route BLV/BLI Traffic
inquiries over direct trunks between
the Parties' respective operator
bureaus. Unless otherwise mutually
agreed, the Parties shall configure
BLV/BLI trunks over the Interconnection
architecture defined in Attachment 4 to
this. Agreement.
50.4 DIRECTORY ASSISTANCE AND LISTINGS SERVICE REQUESTS
50.4.1 These requirements pertain to U S WEST's Directory
Assistance and Listings Service Request process that
enables CO-PROVIDER to (a) submit CO-PROVIDER
Customer information for inclusion in U S WEST
Directory Assistance and Directory Listings
databases; (b) submit CO-PROVIDER Customer
information for inclusion in published directories;
and (c) provide CO-PROVIDER Customer delivery
address information to enable U S WEST to fulfill
directory distribution obligations.
50.4.1.1 [Intentionally left blank for numbering
consistency.]
50.4.1.2 U S WEST will accept the following
Directory Listing Migration Orders from
CO-PROVIDER, valid under all access
methods, including, but not limited to,
Resale, unbundled Network Elements and
facilities-Based, and will process the
orders in a mechanized format:
(a) Migrate with no Changes:
Maintain all directory listings
for the Customer in both
Directory Assistance and
Directory Listing. Transfer
ownership and billing for
listings to CO-PROVIDER.
(b) Migrate with Additions: Maintain
all directory listings for the
Customer in both Directory
Assistance and Directory
Listing. Incorporate the
specified additional listings
order. Transfer ownership and
billing for the listings to
CO-PROVIDER.
(c) Migrate with Deletions: Maintain
all directory listings for the
Customer in both Directory
Assistance and Directory
Listing. Delete the specified
listings from the listing order.
Transfer ownership and billing
for the listings to CO-PROVIDER.
50.4.1.3 The Directory Listings Migration
Options should not be tied to migration
options specified for a related service
order (if any) such that a service
order specified as migration with
changes may be submitted along with a
directory listing order specified as
migration with no changes.
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50.4.1.4 U S WEST shall enable CO-PROVIDER to
electronically transmit multi-line
listing orders.
50.4.1.5 U S WEST agrees to work cooperatively
with CO-PROVIDER to define
specifications for, and implement a
daily summary report of, Directory
Service Requests. The summary
information will include, but is not
limited to, the following information:
(a) White page listings text and
format (name, address, phone,
title, designation, extra line
requirements)
(b) Listing Instruction codes
50.4.1.6 To ensure accurate order
processing, U S WEST shall provide to
CO-PROVIDER the following information,
with updates within one (1) Business
Day of change and via electronic
exchange:
(a) A matrix of NXX to central
office
(b) Geographical maps, if available,
of U S WEST service area
(c) A description of calling areas
covered by each directory,
including, but not limited to,
maps of calling areas and
matrices depicting calling
privileges within and between
calling areas
(d) Listing format rules
(e) Listing alphabetizing rules
(f) Standard abbreviations
acceptable for use in listings
and addresses
(g) Titles and designations
50.4.1.7 Based on changes submitted by
CO-PROVIDER, U S WEST shall update and
maintain Directory Assistance and
Directory Listings data for CO-PROVIDER
Customers who:
(a) Disconnect Service
(b) Change carrier
(c) Install Service
(d) Change any service which affects
Directory Assistance information
(e) Specify Non-Solicitation
(f) Are Non-Published, Non-Listed, or
Listed
50.4.1.8 U S WEST shall not charge for storage
of CO-PROVIDER Customer information in
the Directory Assistance and Directory
Listing systems.
50.4.1.9 CO-PROVIDER shall not charge for
storage of U S WEST Customer
information in the Directory Assistance
and Directory Listing systems.
50.5 DIRECTORY ASSISTANCE DATA
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Part A
50.5.1 This Section refers to the residential, business,
and government Customer records used by U S WEST to
create and maintain databases for the provision of
live or automated operator assisted Directory
Assistance. Directory Assistance data is information
that enables telephone exchange carriers to swiftly
and accurately respond to requests for directory
information, including, but not limited to, name,
address and phone numbers. Under the provisions of
the Act and the FCC Interconnection Order, U S WEST
shall provide unbundled and non-discriminatory
access to the residential, business and government
Customer records used by U S WEST to create and
maintain databases for the provision of live or
automated operator assisted Directory Assistance.
50.5.2 U S WEST SHALL PROVIDE AN INITIAL LOAD OF CUSTOMER
RECORDS AND CUSTOMER LIST INFORMATION TO
CO-PROVIDER, IN A MUTUALLY-AGREED-TO FORMAT, VIA
ELECTRONIC TRANSFER, WITHIN THIRTY (30) CALENDAR
DAYS AFTER A REQUEST BY CO-PROVIDER. THE INITIAL
LOAD SHALL INCLUDE ALL DATA RESIDENT IN THE U S WEST
DATABASES AND/OR SYSTEMS USED BY U S WEST FOR
HOUSING DIRECTORY ASSISTANCE DATA AND/OR CUSTOMER
LISTING DATA. IN ADDITION, THE INITIAL LOAD SHALL BE
CURRENT AS OF THE PRIOR BUSINESS DAY ON WHICH THE
INITIAL LOAD IS PROVIDED.(43)
50.5.3 U S WEST shall provide CO-PROVIDER daily updates to
the Customer records and Customer list information
in a mutually-agreed-to format via electronic
transfer.
50.5.4 U S WEST shall provide the ability for CO-PROVIDER
to electronically query the U S WEST Directory
Assistance database and listings database in a
manner at least consistent with and equal to that
which U S WEST provides to itself or any other
Person.
50.5.5 U S WEST shall provide CO-PROVIDER a complete list
of ILECs, CLECs, and independent telephone companies
that provided data contained in the database.
50.5.6 On a daily basis, U S WEST shall provide updates
(end user and mass) to the Listing information via
electronic data transfer. Updates shall be current
as of one (1) Business Day prior to the date
provided to CO-PROVIDER.
50.5.7 U S WEST shall provide CO-PROVIDER access to
Directory Assistance support databases. For example,
CO-PROVIDER requires access to use restriction
information including, but not limited to, call
completion.
50.5.8 Directory Assistance data shall specify whether the
Customer is a residential, business, or government
Customer.
50.5.9 Directory Assistance data shall be provided on the
same terms, conditions, and rates that U S WEST
provides such data to itself or other third parties.
- --------------
(43) MCI Order at p. 12, Issue 42(a)
Page 83
<PAGE>
Part A
50.5.10 U S WEST shall provide complete refresh of the
Directory Assistance data upon request by
CO-PROVIDER.
50.5.11 U S WEST and CO-PROVIDER will cooperate in the
designation of a location at which the data will be
provided.
51. UNUSED TRANSMISSION MEDIA
51.1 DEFINITIONS
51.1.1 Unused Transmission Media is physical inter-office
transmission media (e.g., optical fiber, copper
twisted pairs, coaxial cable) which have no
lightwave or electronic transmission equipment
terminated to such media to operationalize
transmission capabilities.
51.1.2 Dark fiber is excess fiber optic cable which has
been placed in a network and is not currently being
lit by electronics from any carrier. Dark Fiber, one
type of Unused Transmission Media, is unused strands
of optical fiber. Dark Fiber also includes strands
of optical fiber which may or may not have lightwave
repeater (regenerator or optical amplifier)
equipment interspliced, but which has no line
terminating facilities terminated to such strands.
Unused Transmission Media also includes unused
wavelengths within a fiber strand for purposes of
coarse or dense wavelength division multiplexed
(WDM) applications. Typical single wavelength
transmission involves propagation of optical signals
at single wavelengths (1.3 or 1.55 micron
wavelengths). In WDM applications, a WDM device is
used to combine optical signals at different
wavelengths on to a single fiber strand. The
combined signal is then transported over the fiber
strand. For coarse WDM applications, one (1) signal
each at 1.3 micron and 1.55 micron wavelength are
combined. For dense WDM applications, many signals
in the vicinity of 1.3 micron wavelength and/or 1.55
micron wavelength are combined.
51.2 WHILE U S WEST IS NOT REQUIRED TO PROVIDE UNUSED TRANSMISSION
MEDIA, CO-PROVIDER MAY, SUBJECT TO THE AGREEMENT OF U S WEST,
LEASE COPPER TWISTED PAIRS, COAXIAL CABLE OR OTHER UNUSED
TRANSMISSION MEDIA.(44)
51.3 Requirements
51.3.1 Subject to Section 51.2 above, U S WEST shall make
available Unused Transmission Media to CO-PROVIDER
under a lease agreement or other arrangement.
51.3.2 U S WEST shall provide a single point of contact for
negotiating all Unused Transmission Media use
arrangements.
51.3.3 CO-PROVIDER may test the quality of the Unused
Transmission Media to confirm its usability and
performance specifications.
- ----------------
(44) AT&T Order at p. 8, "Dark fiber" and MCIm at p.2, Issues, 8, 9&10
Page 84
<PAGE>
Part A
51.3.4 Where Unused Transmission Media is required to be
offered or is agreed to be offered by U S WEST, U S
WEST shall provide to CO-PROVIDER information
regarding the location, availability and performance
of Unused Transmission Media within ten (10)
Business Days for a records based answer and twenty
(20) Business Days for a field based answer, after
receiving a request from CO-PROVIDER ("Request").
Within such time period, U S WEST shall send written
or electronic confirmation or any other method of
notification agreed to by the Parties of
availability of the Unused Transmission Media
("Confirmation").
51.3.5 Where Unused Transmission Media is required to be
offered or is agreed to be offered by U S WEST, U S
WEST shall make Unused Transmission Media available
for CO-PROVIDER's use in accordance with the terms
of this Section. 51 within twenty (20) Business Days
or a reasonable time frame consistent with industry
standards after it receives written acceptance from
CO-PROVIDER that the Unused Transmission Media is
wanted for use by CO-PROVIDER. Splicing of
CO-PROVIDER fiber may be performed at the same
points that are available for U S WEST splices.
51.4 REQUIREMENTS SPECIFIC TO DARK FIBER
51.4.1 CO-PROVIDER may test Dark Fiber leased from U S WEST
using CO-PROVIDER or CO-PROVIDER designated
personnel subject to Section 51.2. U S WEST shall
provide appropriate interfaces to allow testing of
Dark Fiber. U S WEST shall provide an excess cable
length of twenty-five (25) feet minimum, where
available, for fiber in underground conduit. U S
WEST shall provide splicing of CO-PROVIDER fiber to
U S WEST Dark Fiber under normal circumstances
(e.g., no construction) in metropolitan areas within
seventeen (17) calendar days of CO-PROVIDER's
request, and within thirty (30) calendar days of a
request in a non-metropolitan area. CO-PROVIDER may
request expedited splicing, which shall be subject
to available U S WEST resources.
51.4.2 For WDM applications, U S WEST shall provide to
CO-PROVIDER an interface to an existing WDM device
or allow CO-PROVIDER to install its own WDM device
(where sufficient system loss margins exist or where
CO-PROVIDER provides the necessary loss
compensation) to multiplex the traffic at different
wavelengths. This applies to both the transmit and
receive ends of the Dark Fiber.
51.5 [Intentionally left blank for numbering consistency.]
51.6 Portions of the bandwidth of the fiber may be sectioned and
CO-PROVIDER may share the bandwidth with U S WEST and other
CLECs.
52. SERVICE STANDARDS
52.1 U S WEST will provide all Local Resale, Ancillary Functions,
Network Elements or Combinations in accordance with service
standards, measurements, and performance requirements that
are expressly specified in this Agreement and Attachment 5
hereto. In cases where such performance standards are not
expressly specified, U S WEST will provide all Local Resale,
Ancillary Functions, Network Elements or Combinations in
accordance with performance standards which are at least
equal to the level of
Page 85
<PAGE>
Part A
performance standards and/or quality of service that U S WEST
provides to itself, its Affiliates, to other CLECs, or other
quality of service requirements imposed by the Commission,
whichever is higher, in providing Local Resale, Ancillary
Functions, Network Elements or Combinations to itself, to its
end-users or to its Affiliates. If CO-PROVIDER requests a
higher level of service than that provided by U S WEST to
itself, CO-PROVIDER shall make the request pursuant to the
BFR process.
52.2 [INTENTIONALLY LEFT BLANK](45)
52.3 [INTENTIONALLY LEFT BLANK](46)
52.4 METRICS AND GAP CLOSURE PLANS(47)
The metrics in this Attachment or superseding Commission rule
are tracked and measured on a monthly basis. These monthly
performance results are managed as part of the Supplier
Performance Quality Management System (SPQMS).
SPQMS requires that when the monthly results do not meet the
required performance levels described in this Attachment, Gap
Closure Plans are implemented to improve performance. These
Gap Closure Plans include:
- evaluation of the opportunity for continuous improvement,
systems enhancements and re-engineering;
- forecasted improvement to the desired level of
performance for each issue or initiative;
- evaluation of pertinent changes in periodic (monthly,
weekly) results; and
- a date for compliance with the expected performance.
The Gap Closure Plans will be reviewed monthly by
CO-PROVIDER, or more frequently as updated data and analysis
are available. U S WEST shall modify its Gap Closure plans to
accommodate CO-PROVIDER's reasonable business concerns.
53. ENTIRE AGREEMENT
53.1 This Agreement shall include the Attachments, Appendices and
other documents referenced herein all of which are hereby
incorporated by reference, and constitutes the entire
agreement between the Parties and supersedes all prior oral
or written agreements, representations, statements,
negotiations, understandings, proposals and undertakings with
respect to the subject matter hereof.
53.2 If a provision contained in any U S WEST tariff
conflicts with any provision of this Agreement, the
provision of this Agreement shall control, unless
otherwise ordered by the FCC or the Commission.
- --------------
(45) Final Arbitration Order at pg. 28
(46) Final Arbitration Order at pg. 28
(47) Final Arbitration Order at pg. 28
Page 86
<PAGE>
Part A
54. RESERVATION OF RIGHTS
54.1 The Parties acknowledge that the terms of this Agreement were
established pursuant to an order of the Commission. Any or
all of the terms of this Agreement may be altered or
abrogated by a successful challenge to this Agreement (or the
order approving this Agreement) as permitted by applicable
law. By signing this Agreement, neither Party waives its
right to pursue such a challenge.
54.2 The Parties enter into this Agreement without prejudice to
any position they may have taken previously, or may take in
the future in any legislative, regulatory, or other public
forum addressing any matters, including matters related to
the types of arrangements prescribed by this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their respective duly authorized representatives.
ADVANCED TELECOMMUNICATIONS,INC.** U S WEST COMMUNICATIONS, INC.**
/s/ F. LYNNE POWERS /s/ KATHERINE L. FLEMING
- ------------------------------------- ---------------------------------
Signature Signature
F. Lynne Powers Katherine L. Fleming
- ------------------------------------- ---------------------------------
Name Printed/Typed Name Printed/Typed
Vice President - Finance Vice President - Interconnection
- ------------------------------------- ---------------------------------
Title Title
01-14-00 01-24-00
- ------------------------------------- ---------------------------------
Date DAte
* Signed as ordered by the arbitrator/commission in Docket
Nos. U-2428-96-417, E-1051-96-417, U-3175-96-479 and E-1051-96-479. Signature
does not indicate agreement with all aspects of the arbitrator's decision, nor
does it waive any of U S WEST's right to seek judicial review of all or part of
the agreement, or to reform the agreement as the result of successful judicial
review.
** This Agreement is made pursuant to Section 252 (i) of the Act and is
premised upon the Interconnection Agreement between AT&T Communications of the
Mountain States, Inc. and U S WEST Communications, Inc. (the "Underlying
Agreement"). The Underlying Agreement was approved by the Commission on July 31,
1997.
With respect to this Agreement, the Parties understand and agree:
i) The Parties shall request the Commission to expedite its review and
approval of this Agreement.
ii) Notwithstanding the mutual commitments set forth herein, the Parties
are entering into this Agreement without prejudice to any positions they have
taken previously, or may take in the future, in any legislative, regulatory, or
other public forum addressing any matters, including those relating to the types
Page 87
<PAGE>
Part A
of arrangements contained in this Agreement. During the proceeding in which the
Commission is to review and approve the Agreement, U S WEST may point out that
it has objected, and continues to object, to the inclusion of the terms and
conditions to which it objected in the proceedings involving the approval of the
Underlying Agreement.
iii) This Agreement contains provisions based upon the decisions and orders
of the FCC and the Commission under and with respect to the Act. Currently,
court and regulatory proceedings affecting the subject matter of this Agreement
are in various stages, including the proceedings where certain of the rules and
regulations of the FCC are being challenged In addition, there is uncertainty in
the aftermath of the Supreme Court's decision in AT&T CORP, ET AL. V. IOWA
UTILITIES BOARD. Based on that uncertainty, and the regulatory and judicial
proceedings which will occur as a result of that decision, the Parties
acknowledge that this Agreement may need to be changed to reflect any changes in
law. The Agreement has not been corrected to reflect the requirements, claims or
outcomes of any of the Proceedings, although the pricing does reflect the
Commission's most current generic order, if any. Accordingly, when a final,
decision or decisions are made in the Proceedings that automatically change and
modify the Underlying Agreement, then like changes and modifications will
similarly be made to this Agreement. In addition, to the extent rules or laws
are based on regulatory or judicial proceedings as a result of the recent
Supreme Court decision, this Agreement will be amended to incorporate such
changes.
iv) Subsequent to the execution of this Agreement, the FCC or the
Commission may issue decisions or orders that change or modify the rules and
regulations governing implementing of the Act. If such changes or modifications
alter the state of the law upon which the Underlying Agreement was negotiated
and agreed, and it reasonably appears that the parties to the Underlying
Agreement would have negotiated and agreed to different term(s) condition(s) or
covenant(s) than as contained in the Underlying Agreement had such change or
modification been in existence before execution of the Underlying Agreement,
then this Agreement shall be amended to reflect such different terms(s),
condition(s), or covenant(s). Where the parties fail to agree upon such an
amendment, it shall be resolved in accordance with the Dispute Resolution
provision of this Agreement.
v) This Agreement shall continue in force and effect until terminated by
either Party. The Agreement can be terminated on thirty (30) days notice, if
another Interconnection Agreement will not replace the current Agreement. If
there is a replacement Interconnection Agreement, one Party can notify the other
Party that it is requesting Section 251/252 negotiations under the Federal
Telecommunications Act of 1996 ("Act"). That notification will trigger the
timeframes and procedures contained in Section 252 of the Act. In the event of
such notice, the arrangements between our companies shall continue and be
governed by the terms of the expired agreement until the new agreement is
approved by the appropriate state commission.
Page 88
<PAGE>
Exhibit 10.1.38
AT&T ADOPTED TERMS
<PAGE>
Washington Contract
RESALE
AND UNBUNDLING
AGREEMENT
between
GTE NORTHWEST INCORPORATED
and
AMERICAN TELEPHONE TECHNOLOGY INC.
The filing of this arbitrated Agreement with the Washington Utilities and
Transportation Commission in accordance with the Arbitrator's Report dated
December 11, 1996, the Arbitrator's Supplemental Report dated February 4,1997,
the Decision Maker's Resolution of Contract Language Disputes dated June 2,1997
and the Commission Order Approving Interconnection Agreement effective August
25, 1997 (collectively, the "Order") with respect to AT&T Communications of the
Pacific Northwest, Inc.'s Petition for Arbitration pursuant to Section 252(b) of
the Telecommunications Act of 1996 to establish an interconnection agreement
between AT&T Communications of the Pacific Northwest, Inc. and GTE Northwest
Incorporated, Docket No. UT-960307, does not in any way constitute a waiver by
either AT&T Communications of the Pacific Northwest, Inc. or GTE Northwest
Incorporated, of any right which any such Party may have to appeal to a
competent court of law, or to petition the Washington Utilities and
Transportation Commission for reconsideration of any determination contained in
the Order. or any provision included in this Agreement pursuant to the Order.
In this document the Parties attempt to comply with the Order which directs the
Parties to reduce to contractual language the substantive provisions and
directives of the Order. Nothing contained herein shall be construed or is
intended to be a concession or admission by either Party that any such provision
of the Order or the language herein complies with the duties imposed by the
Telecommunications Act of 1996, the decisions of the FCC and the Washington
Utilities and Transportation Commission, or other law and each Party thus
expressly reserves its full right to assert and pursue claims that the Order
does not comport with applicable law.
<PAGE>
Washington Contract
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
- ------- -----
<S> <C>
PREFACE...............................................................................................................1
AGREEMENT.............................................................................................................1
RECITALS..............................................................................................................1
SCOPE, INTENT AND DEFINITIONS.........................................................................................2
GENERAL TERMS AND CONDITIONS..........................................................................................3
1. PROVISION OF LOCAL SERVICE UNBUNDLED NETWORK ELEMENTS............................................................3
2. TERM OF AGREEMENT................................................................................................3
3. TERMINATION OF AGREEMENT; TRANSITIONAL SUPPORT...................................................................3
4. GOOD FAITH PERFORMANCE...........................................................................................5
5. OPTION TO OBTAIN LOCAL SERVICES OR NETWORK ELEMENTS UNDER OTHER AGREEMENTS
6. RESPONSIBILITY OF EACH PARTY.....................................................................................5
7. GOVERNMENTAL COMPLIANCE..........................................................................................6
8. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION...................................................................6
9. REGULATORY MATTERS...............................................................................................9
10. LIABILITY AND INDEMNITY........................................................................................10
11. SERVICE PARITY AND STANDARDS...................................................................................12
12. CUSTOMER CREDIT HISTORY........................................................................................12
13. FORCE MAJEURE..................................................................................................13
14. CERTAIN STATE AND LOCAL TAXES..................................................................................14
15. ALTERNATIVE DISPUTE RESOLUTION.................................................................................14
16. NOTICES........................................................................................................15
17. CONFIDENTIALITY AND PROPRIETARY INFORMATION....................................................................16
18. BRANDING.......................................................................................................18
19. DIRECTORY LISTINGS AND DIRECTORY DISTRIBUTION..................................................................19
</TABLE>
<PAGE>
Washington Contract
<TABLE>
<S> <C>
20. DIRECTORY ASSISTANCE LISTING INFORMATION.......................................................................22
21. BUSY LINE VERIFICATION AND BUSY LINE VERIFICATION INTERRUPT....................................................22
22. NUMBER ASSIGNMENT..............................................................................................22
23. MISCELLANEOUS..................................................................................................23
PART I LOCAL SERVICES RESALE.........................................................................................28
24. TELECOMMUNICATIONS SERVICES PROVIDED FOR RESALE................................................................28
25. GENERAL TERMS AND CONDITIONS FOR RESALE........................................................................28
26. REQUIREMENTS FOR SPECIFIC SERVICES.............................................................................30
27. ADVANCED INTELLIGENT NETWORK...................................................................................32
28. ROUTING TO DIRECTORY ASSISTANCE, OPERATOR AND REPAIR SERVICES..................................................32
29. SERVICE SUPPORT FUNCTIONS......................................................................................35
30. PAY PHONE LINES AND PAY PHONE SERVICES.........................................................................40
PART II: UNBUNDLED NETWORK ELEMENTS.................................................................................43
31. INTRODUCTION...................................................................................................43
32. UNBUNDLED NETWORK ELEMENTS.....................................................................................43
PART III: ANCILLARY FUNCTIONS.......................................................................................46
33. INTRODUCTION...................................................................................................46
34. GTE PROVISION OF ANCILLARY FUNCTIONS...........................................................................46
35. STANDARDS FOR ANCILLARY FUNCTIONS..............................................................................46
PART IV: DELETED, INTENTIONALL LEFT BLANK
</TABLE>
ATTACHMENTS
Attachment I Alternative Dispute Resolution
<PAGE>
Washington Contract
Attachment 2 Services Description: Unbundled Network Elements ("UNE")
Attachment 3 Service Description: Ancillary Functions
Attachment 4 Provisioning and Ordering - UNE
Attachment 5 Maintenance for Local Services Resale and UNE
Attachment 6 Local Services Resale and UNE Billing and Recording
Attachment 7 Provision of Customer Usage Data
Attachment 8 Local Number Portability
Attachment 9 Network Security
Attachment 10 Acronyms
Attachment 11 Definitions
Attachment 12 Service Quality Standards and Processes
Attachment 13 Electronic Interface for Operations Support Systems
Attachment 14 Pricing
Attachment 15 Reciprocal Compensation For Call Termination Agreement
<PAGE>
Page 1
PREFACE
AGREEMENT
This Agreement is entered into as of the ____ day of ___________ 1997, by
and between American Telephone Technology Inc. having an office at 12668
Interurban Avenue South, Seattle, WA 98168, in its capacity as a certified
provider of local dial-tone service ("ATTI"), and GTE Northwest Incorporated, a
Washington Corporation, having an office for purposes of this Agreement at 600
Hidden Ridge Drive, Irving, Texas 75038 ("GTE"), in its capacity as an incumbent
local exchange carrier. This Agreement covers services only in the state of
Washington (the "State").
RECITALS
WHEREAS, The Telecommunications Act of 1996 (the "Act") was signed into
law on February 8,1996; and
WHEREAS, the Act places certain duties and obligations upon, and grants
certain rights to, Telecommunications Carriers, with respect to the
interconnection of their networks, resale of their telecommunications services,
access to their poles, ducts, conduits and rights of way and, in certain cases,
the offering of certain unbundled network elements and physical collocation of
equipment in Local Exchange Carrier premises, and
WHEREAS, GTE is an Incumbent Local Exchange Carrier; and
WHEREAS, ATTI is a Telecommunications Carrier and has requested that
GTE negotiate an agreement with ATTI for the provision of Network Elements,
Local Services for resale, collocation and access to poles, ducts, conduits and
rights of way pursuant to the Act and in conformance with GTE's and ATTI's
duties under the Act; and
<PAGE>
Page 2
SCOPE, INTENT AND DEFINITIONS
This Agreement governs the purchase by ATTI of certain telecommunications
services provided by GTE in its service areas for resale by ATTI ,the purchase
by ATTI of certain unbundled network elements from GTE, the terms and conditions
of the collocation of certain equipment of AT&T in the premises of GTE, the
provision by GTE of access to its poles, conduits and rights of way.
The Parties agree that their entry into this Agreement is without prejudice to
any positions they may have taken previously, or may take in the future, in any
legislative, regulatory, judicial or other public forum addressing any matters,
including matters related to the same types of arrangements covered in this
Agreement.
For purposes of this Agreement, certain terms have been defined in Attachment 11
and elsewhere in this Agreement to encompass meanings that may differ from the
normal connotation of the defined word. A defined word intended to convey its
special meaning is capitalized when used. Unless the context clearly indicates
otherwise, any term defined or used in the singular shall include the plural.
The words "shall" and "will" are used interchangeably throughout this Agreement
and the use of either connotes a mandatory requirement. The use of one or the
other shall not mean a different degree of right or obligation for either Party.
Other terms that are capitalized, and not defined in this Agreement, shall have
the meaning given them in the Act. For convenience of reference only, Attachment
10 provides a list of acronyms used throughout this Agreement.
<PAGE>
Page 3
GENERAL TERMS AND CONDITIONS
1. PROVISION OF LOCAL SERVICE AND UNBUNDLED NETWORK ELEMENTS
This Agreement, which consists of these General Terms and Conditions
and Attachments 1-15 and their accompanying Appendices, sets forth the
terms conditions and prices under which GTE agrees to provide (a)
telecommunications services for resale (hereinafter referred to as
"Local Services") and (b) certain unbundled Network Elements, Ancillary
Functions and additional features to ATTI or combinations of such
Network Elements ("Combinations"), for purposes of offering
telecommunications services of any kind, including, but not limited to,
local exchange services, intrastate toll services, and intrastate and
interstate exchange access services and (c) access to GTE's poles,
conduits and rights of way. The Network Elements, Combinations or Local
Services provided pursuant to this Agreement may be connected to other
Network Elements, Combinations or Local Services provided by GTE or to
any Network Elements, Combinations or Local Services provided by ATTI
itself or by any other vendor. Subject to the requirements of this
Agreement, ATTI may, at any time add or delete the Local Services, or
Network Elements or Combinations purchased hereunder.
2. TERM OF AGREEMENT
This Agreement shall become effective in accordance with Section 23.8
(the "Effective Date"), and shall remain effective for a period of
three (3) years. This Agreement shall continue in effect for
consecutive one (1) year terms thereafter unless either Party gives the
other Party at least ninety (90) calendar days written notice of
termination, which termination shall be effective at the end of the
initial term.
<PAGE>
Page 4
3. TERMINATION OF AGREEMENT; TRANSITIONAL SUPPORT
3.1 Subject to any applicable restrictions and requirements contained
elsewhere in this Agreement, ATTI may elect at any time to terminate
this entire Agreement at ATTI's sole discretion, upon ninety (90) days
prior written notice to GTE. Unless otherwise provided in this
Agreement, in such case, ATTI's liability shall be limited to payment
of the amounts due for Local Services, Network Elements, and
Combinations provided up to and including the date of termination. The
Parties recognize that provision of uninterrupted service to customers
is vital and services must be continued without interruption. Upon the
termination or expiration of this Agreement, ATTI may itself provide or
retain another vendor to provide comparable Local Services, Network
Elements, or Combinations. GTE agrees to cooperate in an orderly and
efficient transition to ATTI or another vendor such that the level and
quality of the Local Services, Network Elements and Combinations are
not degraded and to exercise reasonable efforts to assist in an orderly
and efficient transition.
3.2 ATTI may terminate any Local Service(s), Network Element(s) or
Combination(s) provided under this Agreement upon thirty (30) days
written notice to GTE, unless a different notice period or different
conditions are specified for termination of such Local Service(s),
Network Element(s) or Combination(s) in this Agreement, in which event
such specific period and conditions shall apply.
3.3 GTE will not discontinue any unbundled Network Element, Ancillary
Function or Combination thereof during the term of this Agreement
without ATTI's written consent which consent shall not be unreasonably
withheld, except (1) to the extent required by network changes or
upgrades, in which event GTE will comply with the network disclosure
requirements stated in the Act and the FCC's implementing regulations;
or (2) if required by a final order of the Court, the FCC or the
Commission as a result of remand or appeal of the FCC's order In the
Matter of Implementation of Local Competition Provisions of the
Telecommunications Act of 1996, Docket 96-98. In the event such a final
order allows but does not require discontinuance, GTE shall make a
proposal for ATTI's approval, and if the Parties are unable to agree,
either Party may submit the matter to the Dispute resolution procedures
described in Attachment 1. GTE will not discontinue any Local Service
or Combination of Local Services without providing 45 days advance
written notice to ATTI, provided however, that if such services are
discontinued with less than 45 days notice to the regulatory authority,
GTE will notify ATTI at the same time it determines to discontinue the
service. If GTE grandfathers a Local Service or combination of Local
Services, GTE shall grandfather the service for ATTI resale customers
who subscribe to the service as of the date of discontinuance.
<PAGE>
Page 5
3.4 Either Party may terminate this Agreement at any time by giving written
notice in writing to the other Party in the event the other Party files
a petition for bankruptcy, is declared bankrupt, is insolvent, makes an
assignment for the benefit of creditors, or goes into liquidation or
receivership. In addition, either Party may terminate this Agreement in
the event of a Party's refusal or failure to pay all or any portion of
any amount required to be paid to the other Party as and when due;
provided however that the Party allegedly due payment (1) notifies the
other Party of the amounts due, (2) utilizes the ADR process set forth
in Attachment 1, (3) obtains a favorable final ruling in that process
and (4) does not receive payment within thirty (30) calendar days of
the final ruling. There shall be no other reason for the unilateral
termination of this Agreement.
4. GOOD FAITH PERFORMANCE
In the performance of their obligations under this Agreement, the
Parties shall act in accordance with the good faith requirements of the
Act. In situations in which notice, consent, approval or similar action
by a Party is permitted or required by any provision of this Agreement,
(including, without limitation, the obligation of the Parties to
further negotiate the resolution of new or open issues under this
Agreement), such action shall not be unreasonably delayed, withheld or
conditioned.
5. SECTION 252(i) ELECTION
GTE shall allow ATTI to elect terms other than those set forth in this
Agreement to the extent required by Section 252 of the Act, final
regulations thereunder and relevant court decisions.
6. RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and hereby retains the
right to exercise full control of and supervision over its own
performance of its obligations under this Agreement and retains full
control over the employment, direction, compensation and discharge of
all employees assisting in the performance of such obligations. Each
Party will be solely responsible for all matters relating to payment of
such employees, including compliance with social security taxes,
withholding taxes and all other regulations governing such matters.
Subject to the limitations on liability contained in this Agreement and
except as otherwise provided in this Agreement, each Party shall be
responsible for (i) its own acts and performance of all obligations
imposed by Applicable Law in connection with its activities, legal
status and property, real or personal and, (ii) the acts of its own
affiliates, employees,
<PAGE>
Page 6
agents and contractors during the performance of that Party's
obligations hereunder.
7. GOVERNMENTAL COMPLIANCE
ATTI and GTE each shall comply with all Applicable Law that relates to
i) its obligations under or activities in connection with this
Agreement; or ii) its activities undertaken at, in connection with or
relating to Work Locations. ATTI and GTE each agree to indemnify,
defend (at the other Party's request) and save harmless the other, each
of its officers, directors and employees from and against any losses,
damages, claims, demands, suits, liabilities, fines, penalties and
expenses (including reasonable attorneys' fees) that arise out of or
result from its failure or the failure of its contractors or agents to
so comply. Each Party will be solely responsible for obtaining from
governmental authorities, building owners, other carriers, and any
other persons or entities, all rights and privileges which are
necessary for such Party to perform its obligations under this
Agreement.
8. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
8.1 ATTI shall in no event be liable to GTE for any costs whatsoever
resulting from the presence of any Environmental Hazard that ATTI did
not introduce to the affected Work Location or the Release of any
Environmental Hazard that ATTI did not cause at the affected Work
Location. GTE shall indemnify, defend (at ATTI's request) and hold
harmless ATTI T, each of its officers, directors and employees from and
against any losses, damages, claims, demands, suits, liabilities,
fines, penalties and expenses (including reasonable attorneys' fees)
that arise out of or result from (i) any Environmental Hazard that GTE,
its contractors or agents introduce to the Work Locations or (ii) any
Environmental Hazard that GTE, its contractors or agents Releases at
the Work Locations.
GTE shall in no event be liable to ATTI for any costs whatsoever
resulting from the presence of any Environmental Hazard that GTE did
not introduce to the affected Work Location or the Release of any
Environmental Hazard that GTE did not cause at the affected Work
Location. ATTI shall indemnify, defend (at GTE's request) and hold
harmless GTE, each of its officers, directors and employees from and
against any losses, damages, claims, demands, suits, liabilities,
fines, penalties and expenses (including reasonable attorney's fees)
that arise out of or result from (i) any Environmental Hazard that
ATTI, its contractors or agents introduce to the Work Locations or (ii)
any Environmental Hazard that ATTl ,its contractor or agents Release at
the Work Locations.
8.2 GTE and ATTI agree to comply with applicable federal, state and local
environmental and safety laws and regulations including U.S.
Environmental
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Page 7
Protection Agency (EPA) regulations issued under the Clean Air Act,
Clean Water Act, Resource Conservation and Recovery Act, Comprehensive
Environmental Response, Compensation and Liability Act, Superfund
Amendments and Reauthorization Act and the Toxic Substances Control Act
and OSHA regulations issued under the Occupational Safety and Health
Act of 1970 applicable to their performance under this Agreement. Each
Party has the responsibility to notify the other if compliance
inspections occur, and/or citations are issued, at Work Locations that
impact any aspect of performance under this Agreement or involve
potential employee exposure.
8.3 GTE shall provide prompt reasonable notice to ATTI of known and
discovered physical hazards or hazardous chemicals at any portion of an
affected Work Location which ATTI uses, and ATTI shall provide prompt
reasonable notice to GTE of known and discovered physical hazards or
hazardous chemicals at any portion of an affected Work Location which
ATTI uses. This includes Material Safety Data Sheets (MSDSs), when
necessary, for materials existing at, or brought on site to, the
affected Work Location by the party with the obligation to notify the
other. Each Party is required to provide specific notice for imminent
danger conditions which could include, but is not limited to. a
defective utility pole or significant petroleum contamination in a
manhole.
8.4 ATTI and GTE will make available to each other their respective
internal environmental control or safety procedures for review in
planning work at a GTE Work Location. These practices/procedures will
represent the regular work practices required to be followed by the
employees and contractors for safety and environmental protection. ATTI
will follow its practices unless for a specific Work Location or
emergency procedure, GTE's practice provides a greater degree of safety
or environmental control.
8.5 Any materials brought to, stored at, or otherwise remaining at a Work
Location belong to the party which brought the materials to, is storing
the materials at, or is otherwise causing the materials to remain at
the Work Location. Both parties have a duty to cooperate with each
other in introducing new hazardous materials or other new environmental
hazards at a Work Location to minimize adverse impacts on safety. Each
party must demonstrate adequate emergency response capabilities for
materials it uses, stores, or causes to remain at the other party's
Work Location.
8.6 ATTI agrees to promptly notify GTE of any third-party contamination it
discovers at a GTE affected Work Location. Notification obligations to
regulatory authorities shall be the responsibility of GTE to evaluate
and act upon, unless ATTI is required by applicable law to directly
report.
8.7 ATTI agrees to obtain and use its own environmental permits, if
necessary for its performance under this Agreement. If GTE's permit or
EPA identification
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Page 8
number must be used, ATTI must comply with applicable GTE environmental
procedures, including environmental "best management practices ("BMP")
and/or selection of disposition vendors and disposal sites to the
extent provided by GTE. In the event that ATTI must use GTE's vendors
for waste disposal, GTE assumes all liability for such materials, and
GTE agrees to indemnify ATTI for any and all claims that may arise from
such waste disposal.
8.8 ATTI visitors must comply with GTE security, fire safety, safety,
environmental and building practices/codes including equivalent
employee training when working in GTE Work Locations, to the extent
provided by GTE. GTE will, to the extent possible, supply such
practices/codes to ATTI prior to ATTI's first entry into the Work
Location.
8.9 GTE and ATTI shall coordinate plans or information required to be
submitted to government agencies, such as emergency response plans and
community reporting if applicable to their performance under this
Agreement. If fees are associated with any required filing, GTE and
ATTI will develop a cost sharing procedure. GTE and ATTl will determine
for each Work Location which party has the lead responsibility for such
filings and coordination.
8.10 Activities impacting safety or the environment of a Right of Way must
be harmonized with the specific agreement and the relationship between
GTE and the private land owner. This may include limitations on
equipment access due to environmental conditions (e.g., wetland area
with equipment restrictions).
8.11 For the purposes of this Section 8 only, the following terms have the
meanings set forth in this subsection 8.11:
hazardous chemical: Means any chemical which is a health hazard or
physical hazard as defined in the U.S. Occupational Safety and Health
(OSHA) hazard communication standard (29 CFR 1910.1200).
third party contamination: Environmental pollution that is not
generated by the LEC or CLEC but results from off-site activities
impacting an affected Work Location.
8.12 SPILL AND RELEASE NOTIFICATIONS
GTE and ATTI shall promptly notify the other of any spill or release of
a Regulated Material at the facility. GTE's obligation under this
Section is limited to those spills or releases likely to impact the
portion of the facility used by ATTI, or any portion of the facility
where ATTI personnel are reasonably expected to be present. ATTI shall
be responsible for reporting any spill or release of a Regulated
Material occurring as part of or in connection with its operations that
must be reported to any
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Page 9
regulatory authority. ATTI will consult with GTE prior to making such
report, unless the time required for prior consultation would preclude
ATTI from complying with the applicable reporting requirement.
8.13 MANAGEMENT OF MANHOLE OR VAULT WATER
When conducting operations in any GTE manhole or vault area, ATTI shall
follow the ATTI or GTE practice/procedure that provides the greatest
degree of environmental control in evaluating and managing any water
present in the manhole or vault area. ATTI shall be responsible for
obtaining any permit or other regulatory approval necessary for any of
its operations involving the evaluation, collection, discharge,
storage, disposal, or other management of water present in a GTE
manhole or vault area. GTE shall not be responsible for any costs
incurred by ATTI in meeting its obligations under this Section unless
GTE placed or otherwise caused materials or substances to be present in
the manhole or vault area.
9. REGULATORY MATTERS
9.1 GTE shall be responsible for obtaining and keeping in effect all FCC,
state regulatory commission, franchise authority and other regulatory
approvals that may be required in connection with the performance of
its obligations under this Agreement. ATTI shall be responsible for
obtaining and keeping in effect all FCC, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with its offering of services to ATTI Customers
contemplated by this Agreement. ATTI shall reasonably cooperate with
GTE in obtaining and maintaining any required approvals for which GTE
is responsible, and GTE shall reasonably cooperate with ATTI in
obtaining and maintaining any required approvals for which ATTI is
responsible.
9.2 Nothing in this Agreement shall be construed to deny either Party the
right to file tariffs from time to time in the normal course of
business. If GTE files a tariff that changes the price, term or other
condition of a retail service offered for resale under Section 24
hereunder, such tariff change shall apply to modify the appropriate
price, term or condition of such retail service under this Agreement.
In the case of tariff changes affecting other prices, terms or
conditions of this Agreement other than retail services offered for
resale, the Commission shall determine on a case by case basis whether
any such tariff change will apply to modify the relevant price, term or
condition of this Agreement.
9.3 If any effective legislative, regulatory, judicial or other legal
actions, including a change in Applicable Law, materially affects any
material terms of this Agreement, or the ability of ATTI or GTE to
perform any material terms of this
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Page 10
Agreement, ATTI or GTE may, on thirty (30) days written notice
(delivered not later than 30 days following the date on which such
action has become effective) request that such term(s) be renegotiated,
and the parties agree to so negotiate in good faith such mutually
acceptable new term(s). If agreement is not achieved within thirty (30)
days, either party may request mediation, in which case the parties
shall submit to voluntary mediation.
10. LIABILITY AND INDEMNITY
10.1 LIABILITIES OF AT&T - ATTI's `s liability to GTE during any Contract
Year resulting from any and all causes under this Agreement, other than
as specified in Sections 7, 8,10.3 and 10.4 below, shall not exceed an
amount equal to the amount due and owing by ATTI to GTE under this
Agreement during the Contract Year in which such cause accrues or
arises.
10.2 LIABILITIES OF GTE - GTE's liability to ATTI during any Contract Year
resulting from any and all causes under this Agreement, other than as
specified in Sections 7, 8 and 10.4 below, shall not exceed an amount
equal to any amounts due and owing by ATTI to GTE under this Agreement
during the Contract Year in which such cause accrues or arises.
10.3 NO CONSEQUENTIAL DAMAGES - NEITHER ATTI NOR GTE SHALL BE LIABLE TO THE
OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR
SPECIAL DAMAGES SUFFERED BY SUCH OTHER PARTY (INCLUDING WITHOUT
LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS,
OR LOST PROFITS SUFFERED BY SUCH OTHER PARTIES), REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT,
INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR
PASSIVE, AND REGARDLESS OF WHETHER THE PARTIES KNEW OF THE POSSIBILITY
THAT SUCH DAMAGES COULD RESULT. EACH PARTY HEREBY RELEASES THE OTHER
PARTY AND SUCH OTHER PARTY'S SUBSIDIARIES AND AFFILIATES, AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM ANY SUCH
CLAIM.
10.4 OBLIGATION TO INDEMNIFY
Each Party shall, and hereby agrees to, defend at the other's request,
indemnify and hold harmless the other Party and each of its officers,
directors, employees and agents (each, an "Indemnitee") against and in
respect of any loss, debt, liability, damage, obligation, claim,
demand, judgment or settlement or any nature or kind, known or unknown,
liquidated or unliquidated, including without limitation all reasonable
costs and expenses incurred (legal, accounting or otherwise)
(collectively, "Damages") arising out of, resulting from or based upon
any pending or threatened claim, action, proceeding or
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Page 11
suit by any third party (a "Claim"): (i) based upon injuries or damage
to any person or property or the environment arising out of or in
connection with this Agreement, that are the result of such
Indemnifying Party's actions, breach of Applicable Law, or breach of
representations, warranties or covenants made in this Agreement, or the
actions, breach of Applicable Law or of this Agreement by its officers,
directors, employees, agents and subcontractors, or (ii) for actual or
alleged infringement of any patent, copyright, trademark, service mark,
trade name, trade dress, trade secret or any other intellectual
property right now known or later developed (referred to as
"Intellectual Property Rights") to the extent that such claim or action
arises from the Indemnifying Party's or the Indemnifying Party's
Customer's use of the Network Elements, Ancillary Functions,
Combinations, Local Services or other services provided under this
Agreement.
10.5 OBLIGATION TO DEFEND; NOTICE; CO-OPERATION - Whenever a Claim shall
arise for indemnification under this Agreement, the relevant
Indemnitee, as appropriate, shall promptly notify the Indemnifying
Party and request the Indemnifying Party to defend the same. Failure to
so notify the Indemnifying Party shall not relieve the Indemnifying
Party of any liability that the Indemnifying Party might have, except
to the extent that such failure prejudices the Indemnifying Party's
ability to defend such Claim. The Indemnifying Party shall have the
right to defend against such liability or assertion in which event the
Indemnifying Party shall give written notice to the Indemnitee of
acceptance of the defense of such Claim and the identity of counsel
selected by the Indemnifying Party. Except as set forth below, such
notice to the relevant Indemnitee shall give the Indemnifying Party
full authority to defend, adjust, compromise or settle such Claim with
respect to which such notice shall have been given, except to the
extent that any compromise or settlement shall prejudice the
Intellectual Property Rights of the relevant Indemnitees. The
Indemnifying Party shall consult with the relevant Indemnitee prior to
any compromise or settlement that would affect the Intellectual
Property Rights of any Indemnitee, and the relevant Indemnitee shall
have the right to refuse such compromise or settlement and at the
refusing Party's or refusing Parties' cost, to take over such defense,
provided that in such event the Indemnifying Party shall not be
responsible for, nor shall it be obligated to indemnify the relevant
Indemnitee against, any cost or liability in excess of such refused
compromise or settlement. With respect to any defense accepted by the
Indemnifying Party, the relevant Indemnitee shall be entitled to
participate with the Indemnifying Party in such defense to the extent
the Claim requests equitable relief or other relief that could affect
the rights of the Indemnitee and also shall be entitled to employ
separate counsel for such defense at such Indemnitee's expense. - In
the event the Indemnifying Party does not accept the defense of any
indemnified Claim as provided above, the relevant Indemnitee shall have
the right to
<PAGE>
Page 12
employ counsel for such defense at the expense of the Indemnifying
Party. Each Party agrees to cooperate and to cause its employees and
agents to cooperate with the other Party in the defense of any such
Claim and the relevant records of each Party shall be available to the
other Party with respect to any such defense.
11. SERVICE PARITY AND STANDARDS
11.1 Notwithstanding anything in this Agreement to the contrary, GTE shall
meet any service standard imposed by the FCC or by any state regulatory
authority for any Local Services, Unbundled Network Elements, and
Ancillary Functions provided by GTE to ATTI for resale.
11.2 GTE shall ensure that the quality of Local Services, network elements
and ancillary functions, provided to ATTI are at least equal in quality
to that provided by GTE to itself.
11.3 GTE and ATTI agree to implement standards to measure the quality of the
Local Services and Unbundled Network Elements supplied by GTE, in
particular with respect to pre-ordering, ordering/provisioning,
maintenance and billing. These quality standards are described in
Attachment 12. In the event of a violation of Quality Standards by
either Party, which the Complaining Party alleges constitutes a breach
of this Agreement, the Complaining Party may elect, subject to the
procedures set forth in Attachment 1, either (1) to seek such money
damages as may be available at law; or (2) to claim the penalties
specified in Attachment 12, but the Complaining Party may not seek both
(1) and (2) based on the same alleged breach; provided, however, that
nothing in this sentence shall prevent the Complaining Party from
seeking equitable relief at the same time that it pursues a claim for
money damages or a claim under Attachment 12.
11.4 [Intentionally Left Blank]
11.5 If ATTI requests a standard higher than GTE provides to itself, such
request shall be made as a Bona Fide Request pursuant to Attachment 12,
and GTE may provide such standard to the extent technically feasible.
ATTI shall pay the incremental cost of such higher standard or other
measurement of quality.
12. CUSTOMER CREDIT HISTORY
12.1 ATTI and GTE agree to make available to a designated third-party credit
bureau, on a timely basis, such of the following customer payment
history information that is available solely from internal business
records of the providing Party for each person or entity that applies
for local or IntraLATA toll Telecommunications Service(s) from either
carrier. Such information shall be
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Page 13
provided on the condition that the credit bureau will only make such
information available to the carrier to which the person or entity in
question has applied for Telecommunication Service.
Applicants name;
Applicant's address;
Applicant's previous phone number; if any; Amount, if
any, of unpaid balance in applicant's name; Whether
applicant is delinquent on payments; Length of service
with prior local or IntraLATA toll provider;
Whether applicant had local or IntraLATA toll service
terminated or suspended within the last six months with
an explanation of the reason therefor; and Whether
applicant was required by prior local or IntraLATA toll
provider to pay a deposit or make an advance payment,
including the amount of each.
Nothing contained herein shall require either Party to undertake
obligations which would subject that Party to requirements or
liabilities as a consumer reporting agency under 15 U.S.C. Section 1681
et seq. and its implementing regulations or any similar statute, order
or administrative rule of the State.
12.2 COOPERATION ON FRAUD MINIMIZATION - The Parties shall cooperate with
one another to investigate, minimize and take corrective action in
cases of fraud. The Parties' fraud minimization procedures are to be
cost effective and implemented so as not to unreasonably burden or harm
one Party as compared to the other. At a minimum, such cooperation
shall include, when permitted by law or regulation, providing the other
Party, upon reasonable request, information concerning end users who
terminate services to that Party without paying all outstanding
charges, when that Party is notified that such end user seeks service
from the other Party. If required, it shall be the responsibility of
the Party seeking the information to secure the end user's permission
(in the format required by law) to obtain the information. Although in
most circumstances the end user's current telephone number may be
retained by the end user when switching local service providers, if an
end user has past due charges associated with the account, for which
payment arrangements have not been made with one Party, the end user's
previous telephone number will not be made available to the other Party
until the end user's outstanding balance has been paid.
13. FORCE MAJEURE
13.1 Except as otherwise specifically provided in this Agreement, neither
Party shall be liable for any delay or failure in performance of any
part of this Agreement caused by any condition beyond the reasonable
control of the
<PAGE>
Page 14
Party claiming excusable delay or other failure to perform, including
acts of the United States of America or any state, territory or
political subdivision thereof, acts of God or a public enemy, fires,
floods, freight embargoes, earthquakes, volcanic actions, wars, or
civil disturbances. If any Force Majeure condition occurs, the Party
whose performance fails or is delayed because of such Force Majeure
condition shall give prompt notice to the other Party, and upon
cessation of such Force Majeure condition, shall give like notice and
commence performance hereunder as promptly as reasonably practicable,
including implementation of disaster recovery plans.
13.2 Notwithstanding subsection 1, preceding, no delay or other failure to
perform shall be excused pursuant to this Section:
(i) by the acts or omission of a Party's subcontractors, material men,
suppliers or other third persons providing products or services to such
Party unless such acts or omissions are themselves the product of a
Force Majeure condition, and
(ii) unless such delay or failure and the consequences thereof are
beyond the reasonable control and without the fault or negligence of
the Party claiming excusable delay or other failure to perform.
14. CERTAIN STATE AND LOCAL TAXES
Any state or local excise, sales, or use taxes (excluding any taxes
levied on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for payment is
imposed under applicable law, even if the obligation to collect and
remit such taxes is placed upon the other Party. The collecting Party
shall charge and collect from the obligated Party, and the obligated
Party agrees to pay to the collecting Party, all applicable taxes,
except to the extent that the obligated Party notifies the collecting
Party and provides to the collecting Party appropriate documentation
that qualifies the obligated Party for a full or partial exemption. Any
such taxes shall be shown as separate items on applicable billing
documents between the Parties. The obligated Party may contest the same
in good faith, at its own expense, and shall be entitled to the benefit
of any refund or recovery, provided that such Party shall not permit
any lien to exist on any asset of the other Party by reason of the
contest. The collecting Party shall cooperate in any such contest by
the other Party, provided that the contesting Party shall pay the
reasonable expenses of the collecting Party for any such cooperative
activities.
15. ALTERNATIVE DISPUTE RESOLUTION
All Disputes arising under this Agreement or the breach hereof, except
those arising pursuant to Attachment 6, Connectivity Billing, shall be
resolved according to the procedures set forth in Attachment 1.
Disputes involving
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Page 15
matters subject to the Connectivity Billing provisions contained in
Attachment 6, shall be resolved in accordance with the Billing Disputes
section of Attachment 6. In no event shall the Parties permit the
pendency of a Dispute to disrupt service to any customer of any Party
contemplated by this Agreement except in the case of default and
termination of this Agreement pursuant to Section 3.4. The foregoing
notwithstanding, neither this Section 15 nor Attachment 1 shall be
construed to prevent either Party from seeking and obtaining temporary
equitable remedies, including temporary restraining orders.
16. NOTICES
Any notices or other communications required or permitted to be given
or delivered under this Agreement shall be in hard-copy writing (unless
otherwise specifically provided herein) and shall be sufficiently given
if delivered personally or delivered by prepaid overnight express
service or certified mail, return receipt requested or by facsimile
(followed by a hard copy delivered by U.S. Mail or another method
specified herein) to the following (unless otherwise specifically
required by this Agreement to be delivered to another representative or
point of contact):
If to ATTI:
Richard A. Smith
Chief Operating Officer
730 Second Avenue South
Suite 1200
Minneapolis, MN 55402
If to GTE:
Lida Tong
State Director - External Affairs
GTE Northwest Incorporated
1800 41st Street
MC: WA0101RA
Everett, WA 98201
Facsimile number: 206-261-5262
and
Thomas R. Parker, Esq.
Assistant Vice President and Associate General Counsel
HQ E03J43
600 Hidden Ridge Drive
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Page 16
Irving, TX 75038
Facsimile Number: 972-718-1250
Either Party may unilaterally change its designated representative
and/or address for the receipt of notices by giving seven (7) days'
prior written notice to the other Party in compliance with this
Section. Any notice or other communication shall be deemed given when
received.
17. CONFIDENTIALITY AND PROPRIETARY INFORMATION
17.1 For the purposes of this Agreement, "Confidential Information" means
confidential or proprietary technical or business information, in
written or tangible form, given by the Discloser to the Recipient that
is stamped, labeled, or otherwise designated as "Proprietary" or
"Confidential" or that contains other words or symbols clearly
indicating that the information is intended to be secure from public
disclosure. "Confidential Information" also includes information that
is intentionally provided or disclosed orally or visually if it is
identified as proprietary or confidential when provided or disclosed
and is summarized in a writing so marked and delivered within ten (10)
days following such disclosure. "Confidential Information" also
includes information that is observed or learned by one Party while it
is on the premises (including leased collocation space) of the other
Party. Notwithstanding the foregoing, all orders for Local Services,
Network Elements or Combinations placed by ATTI pursuant to this
Agreement, and information that would constitute Customer Proprietary
Network Information of ATTI Customers pursuant to the Act and the rules
and regulations of the FCC and Recorded Usage Data as described in
Attachment 7, whether disclosed by ATTI to GTE or otherwise acquired by
GTE in the course of the performance of this Agreement, shall be deemed
Confidential Information of ATTI for all purposes under this Agreement
whether or not specifically marked or designated as confidential or
proprietary.
17.2 For the period set forth in Section 17.6, except as otherwise specified
in this Agreement, the Recipient agrees (a) to use it only for the
purpose of performing under this Agreement, (b) to hold it in
confidence and disclose it to no one other than its employees or agents
or consultants having a need to know for the purpose of performing
under this Agreement, and (c) to safeguard it from unauthorized use or
disclosure with at least the same degree of care with which the
Recipient safeguards its own Confidential Information. Any agent or
consultant must have executed a written agreement of non-disclosure and
non-use comparable in scope to the terms of this Section 17 which
agreement shall be enforceable by the Discloser.
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Page 17
17.3 The Recipient may make copies of Confidential Information only as
reasonably necessary to perform its obligations under this Agreement.
All such copies shall be subject to the same restrictions and
protections as the original and shall bear the same copyright and
proprietary rights notices as are contained on the original.
17.4 The Recipient agrees to return to the Discloser all Confidential
Information received in tangible form from the Discloser, including any
copies made by the Recipient, within thirty (30) days after a written
request is delivered to the Recipient, or to destroy or erase all such
Confidential Information and certify as to such event, except for
Confidential Information that the Recipient reasonably requires to
perform its obligations under this Agreement or as otherwise required
by applicable law. If either Party loses or makes an unauthorized
disclosure of the other Party's Confidential Information, it shall
notify such other Party as soon as is reasonably practicable after the
loss is discovered and use reasonable efforts to retrieve the lost or
wrongfully disclosed information.
17.5 The Recipient shall have no obligation to safeguard Confidential
Information: (a) which was in the possession of the Recipient free of
restriction on use or disclosure prior to its receipt from the
Discloser; (b) after it becomes publicly known or available through no
breach of this Agreement or other restriction on use or disclosure by
the Recipient; (c) after it is rightfully acquired by the Recipient
free of restrictions on its use or disclosure; or (d) after it is
proven to be independently developed by personnel of the Recipient to
whom the Discloser's Confidential Information had not been previously
disclosed. In addition, either Party shall have the right to disclose
Confidential Information to any mediator, arbitrator, state or federal
regulatory body, the Department of Justice or any court in the conduct
of any mediation, arbitration or approval of this Agreement subject to
the requirements concerning notice and other measures specified in the
last sentence of this Subsection. Additionally, the Recipient may
disclose Confidential Information if so required by law, a court of
competent jurisdiction, or governmental or administrative agency, so
long as the Discloser has been notified of the requirement promptly
after the Recipient becomes aware of the requirement, but prior to such
disclosure and so long as the Recipient undertakes all lawful measures
to avoid disclosing such information until Discloser has had reasonable
time to seek a protective order and Discloser complies with any
protective order that covers the Confidential Information to be
disclosed.
17.6 Each Party's obligations with respect to Confidential Information
disclosed prior to expiration or termination of this Agreement shall
expire three (3) years from the date of receipt of the initial
disclosure, regardless of any termination of this Agreement prior to
such expiration date; provided that the duties with
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Page 18
respect to Confidential Information that is software, protocols and
interfaces shall expire fifteen (15) years from the date of the initial
disclosure.
17.7 Except as otherwise expressly provided elsewhere in this Agreement, no
license is hereby granted under any patent, trademark, copyright or
other Intellectual Property Right, nor is any such license implied,
solely by virtue of the disclosure of any Confidential Information.
17.8 Each Party agrees that the Discloser would be irreparably injured by a
breach of this Agreement by the Recipient or its representatives and
that the Discloser shall be entitled to seek equitable relief,
including injunctive relief and specific performance, in the event of
any breach of the provisions of this Section 17. Such remedies shall
not be deemed to be the exclusive remedies for a breach of this Section
17, but shall be in addition to all other remedies available at law or
in equity.
18. BRANDING
18.1 ATTI may, at its option, use the Network Elements, Combinations and
Local Services provided in accordance with this Agreement to provide to
its customers services branded as ATTI. Except as otherwise provided in
this Agreement or specified in a separate writing by ATTI, ATTI shall
provide the exclusive interface to ATTI Customers in connection with
the marketing or offering of ATTI services. When a GTE technical
representative goes to a customer premise on behalf of ATTI, in the
event the representative has contact with the customer, the
representative will indicate to the customer that he or she works for
GTE but is at the customer premise on behalf of ATTI regarding ATTI
service. If the customer is not at the premise at the time that the
technical representative is at the premise, GTE agrees to deliver
generic material or documents to the customer, and the representative
will write ATTI's name on the document or material left for the
customer. GTE personnel acting on behalf of ATTI will not discuss,
provide, or leave information or material relative to GTE's services
and products.
18.2 Operator Services and Directory Assistance provided by GTE to ATTI
local service customers under this Agreement will be branded
exclusively as ATTI services, where technically feasible. GTE will
perform the necessary software upgrades to allow for rebranding of its
Operator Services and Directory Assistance in ATTI's name on a switch
by switch basis, subject to capability and capacity limitations; until
those upgrades have been completed, GTE will provide rebranded services
through alternate means to the extent technically feasible. Where it is
not technically feasible for GTE to provide Operator Services and
Directory Assistance as rebranded services, then GTE will provide such
services without any branding, if allowed by state laws and
regulations. Live operators handling Operator Services and Directory
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Assistance calls from ATTI local service customers will identify
themselves as ATTI operators: where such rebranding is not technically
feasible, live operator response will be provided on an unbranded
basis.
19. DIRECTORY LISTINGS AND DIRECTORY DISTRIBUTION
GTE shall offer the following to AT&T:
19.1 DIRECTORY LISTINGS (WHITE PAGES) - A basic listing for each ATTI
Customer shall be included in the GTE white pages directory for such
ATTI Customer's specific geographic area at no charge to ATTI or ATTI's
Customers. Where an ATTI Customer has two numbers for a line due to the
implementation of interim Local Number Portability, the second number
shall be considered part of the White pages basic listing. Other
listings that are made available to GTE Customers (e.g. additional
listings, non-published status, foreign listings, etc.,) will be made
available to ATTI Customers on the same rates, terms and conditions as
available to GTE Customers. ATTI Customer Government listings will be
listed in the same manner as GTE Customer Government listings.
19.2 DIRECTORY LISTINGS (YELLOW PAGES) GTE will provide ATTI Customers with
the same yellow page services on the same terms and conditions as those
provided to GTE Customers. GTE will provide each ATTI Customer within
the geographical area covered by the yellow pages directory a basic
listing in GTE "yellow pages" under the classified heading that most
accurately reflects the primary nature of the ATTI Customer's business
at no charge to ATTI or ATTI Customers for this listing. GTE will
supply ATTI with a list of authorized classified headings and will
notify ATTI of any changes to such headings. ATTI agrees to supply GTE,
on a regularly scheduled basis and in the format mutually agreed
between ATTI and GTE, with a classified heading assignment for each
ATTI Customer who wishes to receive this listing. GTE shall provide
ATTI with monthly schedules (for a rolling twelve (12) month period)
for Yellow Pages publications in the State.
19.3 LISTING INFORMATION - ATTI agrees to supply GTE, on a regularly
scheduled basis and in the format mutually agreed between ATTI and GTE,
all listing information for ATTI Customers who wish to be listed in the
white or yellow pages of the GTE published directory for that
subscriber area. Listing information will consist of names, addresses
(including city and ZIP code where provided in that directory) and
telephone numbers. GTE shall employ the listing information for the
production of GTE-published white and yellow page directories. Listing
inclusion in a given directory will be in accordance with directory
configuration, scope and schedules established by GTE which are
applicable to all GTE entities. GTE shall obtain ATTI' prior written
approval for the use of ATTl Customers' listings for any other purpose.
GTE
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will not sell or license, nor allow any third party, the use of ATTI
subscriber listing and GTE will not disclose non-listed name or address
information for any purpose without the prior written consent of ATTI,
which shall not be unreasonably withheld. GTE will charge ATTI a
reasonable service bureau extraction fee for all third party
translations and ATTI will be free to establish its own fees for direct
billing the third parties.
19.4 DIRECTORY DISTRIBUTION - Initial directories will be provided to ATTI
Customers for each ATTI Customer's specific geographic region on the
same basis as GTE Customers within the same directory area. More
specifically, GTE will not charge ATTI or ATTI Customers for annual
distribution of directories. GTE will provide secondary distributions
of directories (e.g. a new customer, requests for additional copies) to
ATTI Customers at the same price that GTE is charged for secondary
distribution by GTE Directories. ATTI shall pay GTE Directories for
such secondary distributions based on GTE's agreement that the
secondary distribution costs will be excluded from GTE's cost studies
and resulting avoided cost discounts and prices for unbundled elements.
Timing of such delivery and the determination of which Telephone
Directories shall be delivered (by customer address, NPA/NXX or other
criteria), and the number of Telephone Directories to be provided per
customer, shall be provided under the same terms that GTE delivers
Telephone Directories to GTE Customers. ATTI will supply GTE in a
timely manner with all required subscriber mailing information,
including non-listed and non-published subscriber mailing information,
to enable GTE to perform its distribution responsibilities.
19.5 CRITICAL CUSTOMER CONTACT INFORMATION - GTE will list in the
information pages of its directories at no charge to ATTI, ATTI's
critical customer contact information for business and residential
customers regarding emergency services, billing, sales and service
information, repair service and ATTI's logo. GTE shall list Competitive
Local Exchange Carrier critical customer contact information on an
alphabetical basis.
19.6 GTE shall also include, in the customer call guide page(s) of each
Telephone Directory, up to four full pages of consolidated space for
the inclusion of information about ATTI products and services,
including addresses and telephone numbers for AT&T customer service.
The form and content of such customer information shall be provided by
ATTI to GTE and shall be subject to GTE review and approval, which
approval shall not be unreasonably withheld. ATTI agrees to pay a price
per page to be determined by GTE Directories, provided that such price
shall be nondiscriminatory to GTE and ATTI.
19.7 GTE shall, at no charge to ATTI, make available recycling services for
Telephone Directories to ATTI Customers under the same terms and
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conditions that GTE makes such services available to its own local
service customers.
19.8 Notwithstanding anything to the contrary contained herein, GTE may
terminate this Section 19 as to a specific GTE exchange in the event
that GTE sells or otherwise transfers the exchange to an entity other
than a GTE Affiliate. GTE shall provide ATTI with at least ninety (90)
days' prior written notice of such termination, which shall be
effective on the date specified in the notice. Notwithstanding
termination as to a specific exchange, this Section 19 shall remain in
full force and effect in the remaining exchanges.
19.9 Notwithstanding the termination of this Section 19, the Parties'
obligations with respect to any directories whose annual publication
cycle has begun prior to the effective date of termination shall
survive such termination. For example, if a Party terminates this
Section 19 effective as of June 30, 1997, the Parties' survival
obligations shall apply as follows:
<TABLE>
<CAPTION>
Exchange Beginning of Expiration of Obligations
Publication Cycle
<S> <C> <C>
1 January 1,1997 December 31, 1997
2 June 1,1997 May 31,1998
3 August 1,1997 June 30, 1997
</TABLE>
a publication cycle begins the day following the listing activity close
date for the current year's publication.
19.10 Directory Listing criteria shall be specified by GTE. GTE shall provide
any changes to its Directory Listing Criteria thirty (30) days in
advance of such changes becoming effective. The Directory Listing
criteria shall include:
19.10.1 Classified heading information
19.10.2 Rules for White Pages and Yellow Pages listings (e.g., eligibility for
free Yellow Pages listing, space restrictions, unlisted and unpublished
listings, abbreviated listings, foreign listings, and heading
requirements);
19.10.3 Identification of Enhanced White Pages and Enhanced Yellow Pages
listings available;
19.10.4 Publication schedules for White Pages and Yellow Pages;
19.10.5 Identification of which Telephone Directories are provided to which
customers by customer address, NPA/NXX or other criteria;
19.10.6 Telephone Directory delivery schedules;
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19.10.7 Restrictions, if any, on number of Telephone Directories provided at no
charge to customer;
19.10.8 Processes and terms and conditions for obtaining foreign Telephone
Directories from GTE; and
19.10.9 Geographic coverage areas of each Telephone (by municipality and
NPA/NXX).
20. DIRECTORY ASSISTANCE LISTING INFORMATION
20.1 GTE shall include in its directory assistance database all directory
assistance listing information, which consists of name and address ("DA
Listing Information") for all ATTI Customers, including those with
nonpublished and unlisted numbers, at no charge to ATTI.
GTE shall provide to ATTI, at ATTI's request, for purposes of ATTI
providing ATTI-branded directory assistance services to its local
customers, within thirty (30) days after the Effective Date, all
published GTE DA Listing Information via magnetic tape delivered within
twenty-four (24) hours of preparation, at a the rate specified in
Attachment 14. Changes to the DA Listing Information shall be updated
on a daily basis through the same means used to transmit the initial
list. DA Listing Information provided shall indicate whether the
customer is a residence or business customer.
20.2 Neither Party will release, sell, or license DA Listing Information
that includes the other Party's end user information to third parties
without the other Party's approval. The other Party shall inform the
releasing Party if it desires to have the releasing Party provide the
other Party's DA Listing Information to the third party, in which case,
the releasing Party shall provide the other Party's DA Listing
Information at the same time as the releasing Party provides the
releasing Party's DA Listing Information to the third party. The rate
to be paid by the releasing Party to the other Party for such sales
shall be negotiated on a case-by-case basis.
21. BUSY LINE VERIFICATION AND BUSY LINE VERIFICATION INTERRUPT
Prior to the exchange of traffic under this Agreement, each Party shall
establish procedures whereby its operator bureau will coordinate with
the operator bureau of the other Party to provide Busy Line
Verification ("BLV") and Busy Line Verification Interrupt ("BLVI")
services on calls between their respective end users. Each Party shall
route BLV and BLVI inquiries over separate inward operator services
trunks. Each Party's operator assistance bureau will only verify and/or
interrupt the call and will not complete the call of the end-user
initiating the BLV or BLVI. Each Party shall charge the other for the
BLV and BLVI services on a bill-and-keep basis.
<PAGE>
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22. NUMBER ASSIGNMENT
22.1 GTE shall allocate Central Office Codes, i.e. NXXs, in a neutral manner
at parity with itself in those LATAs where GTE is the number
administrator. GTE shall not charge a fee for the allocation of NXXs to
AT&T for any costs including, but not limited to, programming expenses
incurred by GTE in their role as number administrator; provided,
however, that when responsibility for number assignment is transferred
to a neutral third party, GTE shall charge a fee for such services to
recover costs incurred that is consistent with the applicable rules and
regulations for such.
22.2 GTE shall process all ATTI NXX requests in a timely manner as per the
ICCF Code Assignment Guidelines and will provide numbers in any NPA/NXX
associated with a terminating line within the boundaries of an LSO, in
those LATAs where GTE is the number administrator.
22.3 GTE, during the interim period, will maintain its current process of
notifying public utility commissions and state regulatory bodies of
plans for NPA splits and code relief.
22.4 GTE shall treat as confidential, and solely for use in its role as Code
Administrator and for no other purpose, any and all information
received from ATTI regarding NPA/NXX forecasts. This information shall
be used only for the purposes of code administration, e.g. NPA code
relief studies.
22.5 GTE shall participate in the transition of its code administration
responsibilities to a neutral third party and will notify ATTI if there
are not sufficient numbers to meet the forecasted requirements of ATTI.
22.6 GTE shall provide ATTI with a file, or files, containing a street
address/LSO cross reference indicating which LSO serves the cross
referenced street address.
23. MISCELLANEOUS
23.1 DELEGATION OR ASSIGNMENT - Any assignment by either Party of any right,
obligation, or duty, in whole or in part, or of any interest, without
the written consent of the other Party shall be void, except that
either Party may assign all of its rights, and delegate its
obligations, liabilities and duties under this Agreement, either in
whole or in part, to any entity that is, or that was, an Affiliate of
that Party without consent, but with written notification, provided
that in the case of ATTI, such Affiliate is a certified provider of
local dial-tone service in the State to the extent such State requires
such certification. The effectiveness of an assignment shall be
conditioned upon the assignee's assumption of the rights, obligations,
and duties of the assigning Party.
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Page 24
23.2 SUBCONTRACTING - GTE may subcontract the performance of any obligation
under this Agreement without the prior written consent of ATTI,
provided that GTE shall remain fully responsible for the performance of
this Agreement in accordance with its terms, including any obligations
it performs through subcontractors, and GTE shall be solely responsible
for payments due its subcontractors. No contract, subcontract or other
Agreement entered into by either Party with any third party in
connection with the provision of Local Services or Network Elements
hereunder shall provide for any indemnity, guarantee or assumption of
liability by, or other obligation of, the other Party to this Agreement
with respect to such arrangement, except as consented to in writing by
the other Party. No subcontractor shall be deemed a third party
beneficiary for any purposes under this Agreement.
23.3 [Intentionally deleted].
23.4 BINDING EFFECT - This Agreement shall be binding on and inure to the
benefit of the respective successors and permitted assigns of the
Parties.
23.5 NONEXCLUSIVE REMEDIES - Except as otherwise expressly provided in this
Agreement, each of the remedies provided under this Agreement is
cumulative and is in addition to any remedies that may be available at
law or in equity.
23.6 NO THIRD-PARTY BENEFICIARIES - Except as specifically set forth in
Section 10.4 and 10.5, this Agreement does not provide and shall not be
construed to provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other privilege.
23.7 REFERENCED DOCUMENTS - Whenever any provision of this Agreement refers
to A technical reference, technical publication, ATTI Practice, GTE
Practice, any publication of telecommunications industry administrative
or technical standards, or any other document expressly incorporated
into this Agreement, it will be deemed to be a reference to the most
recent version or edition (including any amendments, supplements,
addenda, or successors) of such document that is in effect at the time
of the execution of this Agreement, and will include the most recent
version or edition (including any amendments, supplements, addenda, or
successors) of each document incorporated by reference in such a
technical reference, technical publication, ATTI Practice, GTE
Practice, or publication of industry standards.
23.8 REGULATORY AGENCY CONTROL - This Agreement shall at all times be
subject to changes, modifications, orders, and rulings by the FCC
and/or the applicable state utility regulatory commission to the extent
the substance of this Agreement is or becomes subject to the
jurisdiction of such agency. This Agreement is subject to approval of
the Commission in accordance with Section 252 of the Act. This
Agreement shall not become effective until five
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Page 25
(5) Business Days after receipt by the Parties of written notice of
such approval. "Business Day" shall mean Monday through Friday, except
for holidays on which the U. S. Mail is not delivered.
23.9 [Intentionally deleted].
23.10 PUBLICITY AND ADVERTISING - Any news release, public announcement,
advertising, or any form of publicity pertaining to this Agreement, or
the provision of Local Services, Unbundled Network Elements, Ancillary
Functions or Interconnection Services pursuant to it, or association
of the Parties with respect to provision of the services described in
this Agreement shall be subject to prior written approval of both GTE
And ATTI. Neither Party shall publish or use any advertising, sales
promotions or other publicity materials that use the other Party's
logo, trademarks or service marks without the prior written approval
of the other Party.
23.11 AMENDMENTS OR WAIVERS - Except as otherwise provided in this
Agreement, no amendment or waiver of any provision of this Agreement,
and no consent to any default under this Agreement, shall be effective
unless the same is in writing and signed by an officer of the Party
against whom such amendment, waiver or consent is claimed. In
addition, no course of dealing or failure of a Party strictly to
enforce any term, right or condition of this Agreement shall be
construed as a waiver of such term, right or condition. By entering
into this Agreement, neither Party waives any right granted to it
pursuant to the Act.
23.12 SEVERABILITY - If any term, condition or provision of this Agreement
is held by a governmental body of competent jurisdiction to be invalid
or unenforceable for any reason, such invalidity or unenforceability
shall not invalidate the entire Agreement. The Agreement shall be
construed as if it did not contain the invalid or unenforceable
provision or provisions, and the rights and obligations of each Party
shall be construed and enforced accordingly.
23.13 ENTIRE AGREEMENT - This Agreement, which shall include the
Attachments, Appendices and other documents referenced herein,
constitutes the entire Agreement between the Parties concerning the
subject matter hereof and supersedes any prior agreements,
representations, statements, negotiations, understandings, proposals
or undertakings, oral or written, with respect to the subject matter
expressly set forth herein.
23.14 SURVIVAL OF OBLIGATIONS - Any liabilities or obligations of a Party
for acts or omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions regarding
indemnification, Confidential Information, limitations on liability,
and any other provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination of this
Agreement, shall survive cancellation or termination thereof.
<PAGE>
Page 26
23.15 [Intentionally deleted].
23.16 HEADINGS OF NO FORCE OR EFFECT - The headings of Articles and Sections
of this Agreement are for convenience of reference only, and shall in
no way define, modify or restrict the meaning or interpretation of the
terms or provisions of this Agreement.
23.17 TRADEMARKS AND TRADE NAMES - Except as specifically set out in this
Agreement, nothing in this Agreement shall grant, suggest, or imply
any right, license or authority for one Party to use the name,
trademarks, service marks, or trade names of the other Party for any
purpose whatsoever.
23.18 NOTICE OF NETWORK AND TECHNOLOGY CHANGES - GTE shall establish
quarterly reviews of network and technologies plans. GTE shall notify
ATTI at least six (6) months in advance of changes that would impact
ATTI's provision of service.
23.19 TECHNICAL REFERENCES -
23.19.1 The technical references cited throughout this Agreement shall apply
unless GTE shall offer, within ninety (90) days following Commission
approval of this Agreement, GTE's proposed substitute technical
references, for consideration and review by subject matter experts
designated, respectively, by ATTI and GTE. Within ten (10) business
days following ATTI's receipt of true and complete copies of GTE's
proposed substitute technical references, ATTI and GTE subject matter
experts shall meet in person or via teleconference to review the
substitute reference(s) with a view toward achieving agreement on the
suitability of such references for implementation and incorporation
into this Agreement. The subject matter experts may agree to implement
and incorporate, to modify or supplement, or to replace any such
substitute technical reference proposed by GTE. Where they so agree,
the resulting substitute technical reference shall be implemented and
incorporated forthwith, by formal amendment in writing, into this
Agreement. Where they disagree with respect to the suitability or
adequacy of any such proposed substitute technical reference, the
GTE-proposed substitute technical reference shall be incorporated into
this Agreement at the conclusion of the ten business day period cited
above, by formal amendment in writing, subject to ATTI's right to
pursue the dispute and the implementation of more suitable technical
references through the ADR procedures set forth in Attachment I to
this Agreement. ATTI may initiate such ADR procedures within sixty
(60) days following the incorporation of the challenged technical
reference into this Agreement.
23.19.2 The parties recognize the possibility that some equipment vendors may
manufacture telecommunications equipment that does not fully
incorporate or may deviate from the technical references contained in
this Agreement. To
<PAGE>
Page 27
the extent that, due to the manner in which individual manufacturers
may have chosen to implement industry standards into the design of
their product, or due to the differing vintages of these individual
facility components and the presence of embedded technologies that
pre-date certain technical references, some of the individual facility
components deployed with GTE's network may not adhere to the technical
references, then, within forty-five (45) days after the Effective Date
of this Agreement:
(a) the Parties will develop processes by which GTE will
inform ATTI of any such deviations from technical standards for
Network Elements or Combinations ordered by ATTI;
(b) the Parties will develop further processes and
procedures designed, upon notice of such deviations from technical
standards, to address the treatment of GTE and ATTI customers at
parity; and
(c) the parties will take such other mutually agreed upon
actions as shall be appropriate in the circumstances.
23.20 Any figures and/or schematics used throughout this Agreement,
including, but not limited to, the figures and/or schematics used in
Attachment 2 to this Agreement, are for the convenience of reference
only, and shall in no way define, modify or restrict the meaning or
interpretation of the terms or provisions of this Agreement.
<PAGE>
Page 28
PART I LOCAL SERVICES RESALE
24. TELECOMMUNICATIONS SERVICES PROVIDED FOR RESALE
Upon request by ATTI in accordance with Section 25.1 and subject to
the restrictions contained in Section 25.3 hereunder, GTE shall make
available to ATTI at the applicable rate set forth in Attachment 14,
any Telecommunications Service that GTE currently offers or may
hereafter offer at retail to subscribers that are not
telecommunications carriers. Such Telecommunications Services provided
by GTE pursuant to this Section are collectively referred to as "Local
Services.
25. GENERAL TERMS AND CONDITIONS FOR RESALE
25.1 ORDERING
25.1.1 Orders for resale of Local Services will be placed utilizing a
standard Local Service Request ("LSR") form. A complete and accurate
LSR must be provided by ATTI before a request can be processed;
provided, however, that immaterial deviations or omissions in the LSR
will not prevent an order from being processed. Each Party shall
transfer the customer's service features and functionalities "as is"
to the other Party when requested by a customer. For purposes of this
Section 25, an "as is transfer" is the transfer of all the
telecommunications services and features available for resale that are
currently being provided for the specified account without the
requirement of a specific enumeration of the services and features on
the LSR.
25.1.2 A Letter of Authorization ("LOA") will be required before Local
Services will be provided for resale to a subscriber that currently
receives local exchange service from GTE or from a local service
provider other that ATTI. Such LOA may be a blanket letter of
authorization (Blanket LOA) or such other form as agreed upon by ATTI
and GTE. When a Blanket LOA has been provided by ATTI, GTE shall not
require an additional disconnect order, LOA or other writing from a
customer, or another LEC, in order to process an order for Local
Service. Each Party will provide the capability for customers to
retain their current phone number in the event that they change local
service providers to the extent technically feasible, allowing them to
retain all existing features and functionalities.
25.1.3 GTE shall include an ATTI Customer's listing in its Directory
Assistance database as part of the Local Service Request ("LSR")
process. GTE will honor ATTI Customer's preferences for listing
status, including non-published and unlisted, as noted on the LSR and
will enter the listing in the GTE
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Page 29
database which is used to perform Directory Assistance functions as it
appears on the LSR.
25.1.4 GTE shall accept requests for a change in the primary interexchange
carrier of a local exchange customer of ATTI only from ATTl.
25.2 PRICING
The prices to be charged to ATTI for Local Services under this
Agreement are set forth in Part V of this Agreement.
25.3 RESTRICTIONS ON RESALE
To the extent consistent with the applicable rules and regulations of
the FCC and the Commission, ATTI may resell all GTE Local Services as
defined in GTE's tariffs. The following restrictions shall apply to
the resale of Local Services, as described in Section 24 of this
Agreement by ATTI: (i) ATTI shall not resell residential services to
business customers; (ii) GTE shall not be required to offer at a
wholesale discount to ATTI any GTE promotional offering that is made
available to any GTE customer for a period of ninety (90) days or
less; (iii) and GTE shall not be required to provide to ATTI for
resale any retail service which a telecommunications carrier is by law
required to provide as a social benefit to a specially designated
class of customer. ATTI shall determine whether its customers qualify
for any such social programs and shall bear the costs associated with
the provision of such programs.
25.4 [Intentionally deleted]
25.5 DIALING AND SERVICE PARITY
25.5.1 GTE will provide the same dialing parity to ATTI Customers as
similarly-situated GTE Customers, such that, for all call types, an
ATTI Customer is not required to dial any greater number of digits
than a similarly-situated GTE Customer; provided however with respect
to intra-LATA dialing, GTE shall provide dialing parity to ATTI
customers in the State in accordance with the provisions and schedule
established by the Commission.
25.5.2 GTE will provide service levels for Local Services for resale that are
equal to service levels for similarly-situated GTE Customers, such
that there is no loss of features or functionalities including, but
not limited to: same dial tone and ringing; same capability for either
dial pulse or touch tone recognition; flat and measured services;
speech recognition as available; same extended local free calling
area; 1+ IntraLATA toll calling; InterLATA toll calling and
international calling; 500, 700, 800, 900, 976 and Dial Around (10xxx)
Services; restricted collect and third number billing; all available
speeds of
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analogue and digital private lines; off-premise extensions; CENTRANET
and ISDN.
25.6 CHANGES IN RETAIL SERVICE
GTE will notify ATTI of proposed new retail services or modifications
to existing retail services forty-five (45) days prior to the expected
date of regulatory approval of the new or modified services. If new
services or modifications are introduced with less than forty-five
(45) days notice to the regulatory authority, GTE will notify ATTI at
the same time it determines to introduce the new or modified service.
With respect to changes in prices for existing retail services or
related resale rates, GTE will notify ATTI at the same time as GTE
begins internal implementation efforts (i.e., at least at the time
that GTE's Product Management Committee is notified of the proposed
change) or obtains internal approval to make the price change,
whichever is sooner.
26. REQUIREMENTS FOR SPECIFIC SERVICES
26.1 [Intentionally deleted]
26.2 CLASS/LASS and Custom Features Requirements
ATTI may purchase the entire set of CLASS/LASS and Custom features and
functions, or a subset of any one or any combination of such features,
on a customer-specific basis, without restriction on the minimum or
maximum number of lines or features that may be purchased for any one
level of service, provided such CLASS/LASS and Custom features are
available to GTE Customers served by the same GTE Central Office. GTE
shall provide to ATTI a list of CLASS/LASS and Custom features and
functions within ten (10) business days of the Effective Date and
shall provide updates to such list when new features and functions
become available. GTE shall provide to ATTI a list of all services,
features, and products including a definition of the service (by
specific reference to the appropriate tariff sections) and how such
services interact with each other. GTE shall provide features and
services by street address guide and by switch. All features shall be
at least at parity with the GTE service offering.
26.3 This Section intentionally left blank.
26.4 INTERCEPT AND TRANSFER SERVICE
GTE shall provide intercept and transfer service to ATTI for ATTI
Customers on the same basis and for the same length of time as such
service is available to similarly-situated GTE Customers. To that end,
when an end-user customer transfers service from GTE to ATTI , or from
ATTI to GTE, and does
<PAGE>
Page 31
not retain its original telephone number, the Party formerly providing
service to the end user will provide, upon request, a referral
announcement on the original telephone number. The announcement will
provide the new number of the customer.
26.5 E911/911 SERVICES
GTE shall provide to ATTI, for ATTI Customers, E911/911 call routing
to the appropriate PSAP. ATTI shall provide ATTI Customer information
to GTE, and GTE shall validate and provide ATTI Customer information
to the PSAP. GTE shall use its service order process to update and
maintain, on the same schedule that it uses for its end users, the
ATTI Customer service information -in the ALI/DMS (Automatic Location
Identification/Location Information Database Management System) used
to support E911/911 services, pursuant National Emergency Number
Agency (NENA) standards. ATTI shall have the right to verify the
accuracy of the information regarding ATTI Customers in the ALI
database.
26.6 TELEPHONE RELAY SERVICE
GTE will provide the following information to ATTI at no additional
charge: (i) information concerning a customer's qualification for
Telephone Relay Service (TRS) on the Customer Service Record (CSR)
when that customer chooses ATTI for local service; and (ii) all usage
billing information which GTE receives from a provider of TRS for TRS
usage by an ATTI Customer.
26.7 VOICE MAIL RELATED SERVICES
Nothing in this Agreement shall limit the right of ATTI to purchase
features capabilities of voice mail services in accordance with GTE's
tariffs. In addition, nothing in this Agreement shall limit the right
of ATTI to combine features capabilities of voice mail services
purchased in accordance with GTE's tariffs with any Local Services
purchased for resale in accordance with this Agreement.
26.8 VOLUNTARY FEDERAL CUSTOMER FINANCIAL ASSISTANCE PROGRAMS
Local Services provided to low-income subscribers, pursuant to
requirements established by the appropriate state or federal
regulatory body, include programs such as Voluntary Federal Customer
Financial Assistance Programs, such as Lifeline, and Link-up America
(collectively referred to as "Voluntary Federal Customer Financial
Assistance Programs") and Directory Assistance - Exempt. When a GTE
Customer eligible for these services chooses to obtain Local Service
from ATTI , GTE shall forward to ATTI on the Customer Service Record
information regarding such customer's eligibility to participate in
such programs. If GTE under the applicable laws of the State
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Page 32
cannot provide the CSR to ATTI, GTE shall otherwise inform ATTI of
such customer's eligibility.
27. ADVANCED INTELLIGENT NETWORK
27.1 GTE will provide ATTI access to the GTE Service Creation Environment
(SCE) to design, create, test, deploy and provision AIN-based
features, equivalent to the access GTE provides to itself, providing
that security arrangements can be made. ATTI requests to use the GTE
SCE will be subject to request, review and testing procedures to be
agreed upon by the parties.
27.2 When ATTI utilizes GTE's Local Switching network element and requests
GTE to provision such network element with a technically feasible AIN
trigger, GTE will provide access to the appropriate AIN Call Related
Database for the purpose of invoking either a GTE AIN feature or an
ATTI developed AIN feature described in 27.1, above.
27.3 When ATTI utilizes its own local switch, GTE will provide access to
the appropriate AIN Call Related Database for the purpose of invoking
either a GTE AIN feature or an ATTI developed AIN feature described in
27.1, above.
27.4 Any mediation to GTE's AIN database will be performed on a
competitively neutral, nondiscriminatory basis. Any network management
controls found necessary to protect the SCP from an overload condition
must be applied on a nondiscriminatory basis for all users of that
database, including GTE. GTE and ATTI agree that any load mediation
will affect all links to the STP, including GTE's, in a like manner.
ATTI will provide the information necessary to ensure that GTE is able
to engineer sufficient capacity on the AIN SOP platform.
28. ROUTING TO DIRECTORY ASSISTANCE AND OPERATOR SERVICES
28.1 Where ATTI purchases either Local Services or Local Switching as an
Unbundled Element, unless ATTI requests otherwise, GTE will, where
technically feasible, provide the functionality and features required
to modify the ATTI Customer's line at GTE's local switch (LS) to route
all calls to the ATTI Network for local Directory Assistance and the
ATTI Platform for Operator Services.
28.2 DIRECTORY ASSISTANCE
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Upon ATTI's request, and where technically feasible GTE shall route
local Directory Assistance calls, including 411 and (NPA) 555-1212,
dialed by ATTI Customers directly to the ATTI platform, unless ATTI
requests otherwise pursuant to Section 28.7.2.
28.3 OPERATOR SERVICES
Upon ATTI's request, and where technically feasible, GTE shall route
local Operator Services calls (0+, 0-) dialed by ATTI Customers
directly to the ATTI Local Operator Services platform, unless ATTI
requests otherwise pursuant to Section 28.7.1. Such traffic shall be
routed over trunk groups specified by ATTI which connect GTE end
offices and the ATTI Local Operator Services platform, using standard
Operator Services dialing protocols of 0+ or 0-. Where intraLATA
presubscription is not available, GTE will provide the functionality
and features within its local switch (LS), to route ATTI Customer
dialed 0- and 0+ intraLATA calls to the ATTI T designated line or
trunk on the Main Distributing Frame (MDF) or Digital Cross Connect
(DSX) panel via Modified Operator Services (MOS) Feature Group C
signaling. Where intraLATA presubscription is available, ATTI Customer
dialed 0- and 0+ intraLATA calls will be routed to the intraLATA PlC
carrier's designated operator services platform. In all cases, GTE
will provide post-dial delay no greater than that provided by GTE for
its end user customers. For switches lacking the existing capacity and
capability to provide the customized rerouting described in this
Section 28, GTE shall develop alternative forms of customized routing.
28.4 REPAIR CALLS
In the event an ATTI Customer calls GTE with a request for repairs,
GTE shall provide the ATTI Customer with ATTI's repair 800-telephone
number. ATTI agrees to provide GTE with ATTI's repair 800-telephone
numbers.
In the event a GTE Customer calls ATTI with a request for repairs,
ATTI shall provide the GTE Customer with GTE's repair 800-telephone
number. GTE agrees to provide ATTI with GTE's repair 800-telephone
number.
28.5 NON-DISCRIMINATORY TREATMENT
All direct routing capabilities described herein shall permit ATTI
Customers to dial the same telephone numbers for ATTI Directory
Assistance, Local Operator and the same number of digits for Repair
Services that similarly-situated GTE Customers dial for reaching
equivalent GTE services. ATTI and GTE will use 800/888 numbers where
necessary to achieve this result.
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28.6 EMERGENCY CALLS
Within thirty (30) days of ATTI's request, GTE shall provide to ATTI
the emergency public agency (e.g., police, fire, ambulance) telephone
numbers linked to each NPA-NXX. Such data will be transmitted in a
mutually agreeable format.
28.7 OPTIONAL ROUTING
28.7.1 Operator Services: ATTI may request GTE to route ATTI Customers to GTE
Operator Services. In this case, the requirements for GTE-provided
Operator Services as part of the Total Services Resale service shall
be those requirements specified in Attachment 2, "Unbundled Elements",
Section 5.1 "Operator Services."
28.7.2 Directory Assistance: ATTI T may request GTE to route ATTI Customers
to GTE's Directory Assistance. In this case, the requirements for
GTE-provided Directory Assistance Services as part of the Total
Services Resale service shall be those requirements specified in
Attachment 2, "Unbundled Elements", Section 6, "Directory Services."
28.8 LINE INFORMATION DATABASE UPDATES
GTE shall update and maintain ATTI Customer information in the GTE
Line Information Database ("LIDB") in the same manner and on the same
schedule that it maintains information in LIDB for GTE Customers.
28.9 TELEPHONE LINE NUMBER CALLING CARDS
Upon request by an ATTI Customer or by ATTI on behalf of an ATTI
Customer, and effective as of the date of an end user's subscription
to ATTI service (or such later date as such request is received), GTE
will remove any GTE-assigned telephone line calling card number
(including area code) ("TLN") from GTE's LIDB. ATTI may issue a new
telephone calling card to such customer, utilizing the same TLN, and
ATTI shall have the right to enter such TLN in ATTI's LIDB for calling
card validation purposes.
28.10 END OFFICE FEATURES
GTE shall provide the following end-office features in those end
offices in which such features are available to GTE Customers: CLASS
features; Repeat Dial Capability; Multi-line Hunting; and trunk
connectivity to private branch exchange switches (PBX's) and Direct
Inward Dialed Services and all other end-office features that GTE
makes available to GTE Customers.
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28.11 CALL BLOCKING
Upon ATTI's `s request and when available to similarly-situated GTE
Customers, GTE will provide blocking on a line by line basis of an
ATTI Customer's access to any or all of the following call types:
900/976; bill to third and collect; and such other call types for
which GTE provides blocking to similarly situated GTE Customers.
28.12 LAW ENFORCEMENT AND SERVICE ANNOYANCE
Not later than forty-five (45) business days after the Effective Date,
GTE and ATTI will begin the process of developing procedures to handle
requests from law enforcement agencies for service termination, wire
taps and provisions of Customer Usage Data pursuant to a lawful
process as well as procedures to handle ATTI Customer complaints
concerning harassing or annoying calls. Such procedures will include,
but not be limited to, a process for ATTI to interface with GTE
regarding law enforcement and service annoyance issues on a 24 hour
per day, 7 days a week basis and otherwise on the same basis as GTE
provides access for its own customers.
29. SERVICE SUPPORT FUNCTIONS
29.1 ELECTRONIC INTERFACE
29.1.1 Until such time as GTE and ATTI are able to fully implement electronic
interfaces ("El"), GTE and ATTI agree to use interim processes for
Pre-Ordering, Ordering, Provisioning, Maintenance, Repair and Billing.
29.1.1.1 The schedule for implementing an interim electronic interface shall be
subject to the memorandum of understanding ("MOU") relating to
electronic interfaces negotiated by GTE and AT&T under the direction
of the California Commission in connection with the decision in
96-07-022.
29.1.2 In accordance with the schedule set out in the MOU, GTE shall provide
a Real Time electronic interface ("El") for sending and receiving
information on demand for Pre-Ordering, for Ordering/Provisioning data
and materials (e.g., access to Street Address Guide ("SAG") and
Telephone Number Assignment database), and for scheduling service
delivery. GTE shall provide an electronic interface ("El") for sending
and receiving information on agreed, pre-defined schedules ("batch
communications") for reports and Billing. These interfaces shall be
administered through a national ordering platform that will serve as a
single point of contact for the transmission of such data from ATTI to
GTE, and from GTE to ATTI.
29.1.3 No later than six (6) months after the Effective Date of this
Agreement, GTE will: (i) establish the national gateway standards to
be used by ATTI and all
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other carriers connecting to GTE's Operations Support Systems ("OSS");
and (ii) establish the date by which GTE will provide permanent
national gateway access to its OSS. GTE will provide this permanent
national gateway access at the earliest practical date but in no case
later than twelve (12) months after the Effective Date of this
Agreement, which shall include ensuring that all interfaces are
operational and end-to-end testing has been successfully completed.
29.1.4 [DELETED]
29.1.5 The Parties agree that the principles outlined in Attachment 13 and
related time schedules will be used as a starting point for the
development of the permanent national gateway.
29.1.6 GTE shall provide the same information, of the same quality and within
the same time frames for Pre-Ordering, Ordering/Provisioning,
Maintenance! Repairs and Billing to ATTI as GTE provides to itself.
The Parties recognize that GTE is not required to establish new
systems or processes in order to provide information to ATTI which GTE
does not provide to itself.
29.1.7 GTE shall recover its costs of creating the permanent OSS gateway and
any interim interfaces in a competitively neutral manner.
29.2 SERVICE STANDARDS
29.2.1 GTE shall ensure that all Service Support Functions used to provision
Local Service to ATTI for resale are provided at a quality level which
GTE is required to meet by its own internal procedures or by law, or
is actually meeting, in providing Local Service to itself, to its end
users or to its affiliates.
29.2.2 Not later than twenty (20) business days after the Effective Date of
this Agreement, GTE and TATTI shall begin the process of developing
mutually agreed-upon escalation and expedite procedures to be employed
at any point in the Local Service Pre-Ordering, Ordering/Provisioning,
Testing, Maintenance, Billing and Customer Usage Data transfer
processes to facilitate rapid and timely resolution of Disputes.
29.3 POINT OF CONTACT FOR THE AT&T CUSTOMER
29.3.1 Except as otherwise provided in this Agreement or as directed by ATTI,
ATTI shall be the single and sole point of contact for all ATTI
Customers with respect to ATTI Local Services.
29.3.2 GTE shall refer all questions regarding any ATTI service or product
directly to ATTI at a telephone number specified by ATTI and provided
to GTE for that purpose.
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29.3.3 GTE representatives who receive inquiries regarding ATTI services: (i)
shall refer callers who inquire about ATTI services or products to the
numbers provided; and (ii) will not in any way disparage or
discriminate against ATTl, or its products or services.
29.4 SINGLE POINT OF CONTACT
Each Party shall provide the other Party with a single point of
contact ("SPOC") for each functional area for all inquiries regarding
the implementation of this Part. Each Party shall accept all inquiries
from the other Party and provide timely responses.
29.5 SERVICE ORDER
To facilitate the ordering of new service for resale or changes to
such service to an ATTI Customer, ATI's representative will have
access to GTE Customer information to enable the ATTI representative
to perform the tasks enumerated below. Until electronic interfaces are
established, these functions will be performed with the use of an 800
number.
29.5.1 Obtain customer account information through the same nondiscriminatory
access to Operation Support Systems for pre-ordering, ordering,
provisioning, maintenance and repair, and billing as GTE provides
itself including information regarding the facilities and services
assigned to individual customers.
29.5.2 Obtain information on all features and services available, including
new services, by LSO identified by switch, NPA-NXX and customer street
address.
29.5.3 Submit the ATTI T Customer order by submitting an LSR using the agreed
upon electronic interface (the Network Data Mover or NDM) for all
desired features and services;
29.5.4 Assign a telephone number, including a vanity number, (if the ATTI
Customer does not have one assigned). As an interim step prior to the
implementation of the electronic interface specified in Section 29.1,
GTE will establish an 800 (toll-free) number for ATTI;
29.5.5 Submit the appropriate directory listing using the agreed to El;
29.5.6 Determine if a service call is needed to install the line or service;
29.5.7 Schedule dispatch and installation, if applicable;
29.5.8 Provide service availability dates to customer;
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29.5.9 Order local and intraLATA toll service and enter ATTI Customer's
choice of primary interexchange carrier on a single, unified order;
and
29.5.10 Suspend, terminate or restore service to an ATTI Customer using agreed
to methods (temporary disconnects for nonpayment may not be requested
using the LSR).
29.6 PROVISIONING
29.6.1 After receipt and acceptance of an LSR, GTE shall provision such LSR
in accordance with the following Intervals and in accordance with the
service parity standards and other performance standards specified in
Section 11 and Attachment 12.
29.6.2 GTE shall provide ATTI with service status notices, on a Real Time
basis. Such status notices shall include the following:
29.6.2.1 Firm order confirmation, including service availability date and
information regarding the need for a service dispatch for
installation;
29.6.2.2 Notice of service installation issued at time of installation,
including any additional information, such as material charges;
29.6.2.3 Changes/rejections/errors in LSRs;
29.6.2.4 Service completion;
29.6.2.5 Jeopardies and missed appointments;
29.6.2.6 Charges associated with necessary construction;
29.6.2.7 Order status at critical intervals;
29.6.2.8 Test results of the same type that GTE records for itself or its own
customers.
29.6.3 GTE shall inform ATTI of overall change order flexibility and any
changes thereto on a Real Time basis.
29.6.4 GTE shall notify ATTI prior to making any changes in the services,
features or functions specified on the LSR. If an ATTI Customer
requests a service change at the time of installation GTE shall refer
the ATTI Customer to ATTI.
29.6.5 GTE shall provide provisioning support to ATTI on the same basis that
it provides to other competitive LECs and to itself. GTE retains full
discretion to control the scheduling of its provisioning workforce.
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29.6.6 GTE shall provide training for all GTE employees who may communicate,
either by telephone or face-to-face, with ATTI Customers, during the
provisioning process. Such training shall include training on
compliance with the branding requirements of this Agreement.
29.7 PROVISION OF CUSTOMER USAGE DATA
GTE shall provide the Customer Usage Data recorded by GTE. Such data
shall include complete ATTI Customer usage data for Local Service,
(i.e., the same usage data that GTE records for billing its own
customers), in accordance with the terms and conditions set forth in
Attachment 7.
29.8 SERVICE/OPERATION READINESS TESTING
29.8.1 In addition to testing described elsewhere in this Section 29, GTE
shall test the systems used to perform the following functions at a
negotiated interval and in no event less than ten (10) business days
prior to commencement of GTE's provision of Local Service to ATTI, in
order to establish system readiness capabilities:
29.8.1.1 All interfaces between TATTI and GTE work centers for Service Order
Provisioning;
29.8.1.2 Maintenance, Billing and Customer Usage Data;
29.8.1.3 The process for GTE to provide customer profiles;
29.8.1.4 The installation scheduling process;
29.8.1.5 Network alarm reporting;
29.8.1.6 Telephone number assignment;
29.8.1.7 Procedures for communications and coordination between ATTI SPOC and
GTE SPOC;
29.8.1.8 Procedures for transmission of Customer Usage Data; and
29.8.1.9 Procedures for transmitting bills to AT&T for Local Service.
29.8.2 The functionalities identified above shall be tested in order to
determine whether GTE performance meets the service parity
requirements and other performance standards specified in Section 11.
GTE shall make available sufficient technical staff to perform such
testing. GTE technical staff shall be available to meet with ATTI as
necessary to facilitate testing. GTE and ATTI shall mutually agree on
the schedule for such testing.
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29.8.3 At ATTI's request, GTE shall provide to ATTI any results of the
testing performed pursuant to the terms of this Part. ATTI may review
such results and may notify GTE of any failures to meet the
requirements of this Agreement.
29.8.4 GTE shall provide to ATTI the same type and quality of loop testing
information that it provides to and records for itself. Where GTE
develops loop testing information as a matter of course, it will make
that information available to ATTI where such information is relevant
to ATTI's business. Where GTE maintains the internal discretion to
test loops as needed, GTE will provide similar testing discretion to
ATTI. ATTI shall pay the full cost of any such discretionary testing.
29.8.5 Within 60 days of the Effective Date of this Agreement, ATTI and GTE
will agree upon a process to resolve cooperative testing issues and
technical issues relating to GTE's provision of Local Services to
ATTI. The agreed upon process shall include procedures for escalating
disputes and unresolved issues up through higher levels of each
company s management. If ATTI and GTE do not reach agreement on such a
process within 60 days, any issues that have not been resolved by the
Parties with respect to such process shall be submitted to the ADR
procedures set forth in Section 14 and Attachment I of this Agreement
unless both Parties agree to extend the time to reach agreement on
such issues.
29.9 MAINTENANCE
GTE shall provide maintenance in accordance with the requirements and
standards set forth in Attachment 5 and in accordance with the service
parity requirements set forth in this Agreement.
29.10 BILLING FOR LOCAL SERVICE
29.10.1 GTE shall bill ATTI for Local Service provided by GTE to ATTI pursuant
to the terms of this Part, and in accordance with the terms and
conditions for Connectivity Billing and Recording in Attachment 6.
29.10.2 GTE shall recognize ATTI as the customer of record for all Local
Service and will send all notices, bills and other pertinent
information directly to ATTI.
30. PAY PHONE LINES AND PAY PHONE SERVICES
30.1 Intentionally left blank.
30.2 "Pay phone lines" are defined as the loop from the pay phone point of
demarcation to the Service Wiring Center and includes all supporting
central office functions and features.
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30.3 GTE shall make available to ATTI for resale the following classes of
pay phone lines:
30.3.1 Customer Owned Coin Operated Telephone (COCOT) Lines;
30.3.2 Coinless COCOT Lines;
30.3.3 Coin Lines in those jurisdictions where provision of such lines is
required by law
30.3.4 [This section left intentionally blank]
30.3.5 Semi Public Lines.
30.4 GTE shall also make available to ATTI for resale any future class of
pay phone lines that GTE provides at retail to subscribers other than
telecommunication carriers.
30.5 GTE shall make available pay phone line service options as follows:
30.6 When providing COCOT Lines to ATTI for resale, GTE shall offer the
following, to the extent that GTE provides such services and in those
jurisdictions and/or central offices where available: originating line
screening; billed number screening; PlC protection for all 1+ inter
and intraLATA traffic (when presubscription is authorized); one way
and/or two way service (if so provided in the applicable tariff) on
the line; detailed billing showing all 1+ traffic; ATTI's service
center phone number to all ATTI end users that contact GTE service
centers; number portability for end users; touchtone service; line
side answer supervision; GTE designated contact center as single point
of contact for customer service; provisioning of 9 1 1 service; access
to Answer Number Identifier (ANI) Information; all information
necessary to permit ATTI to bill end users for access line usage; the
same monitoring and diagnostic routines as GTE utilizes on its own
facilities; one directory for each line installed; blocking for 1+
international calls, 10XXX1+ international calls 1-900 calls, 1-976
calls DA link, any 1+ service that can be billed to the line but that
is not rated, 1-700 calls, 1-500 calls, and in bound international
calls where SS7 signalling is available.
30.7 When providing Coinless COCOT Lines to ATTI for resale, GTE shall
offer the following, to the extent that GTE provides such services and
in those jurisdictions and/or central offices where available:
originating line screening; billed number screening; PlC protection
for all 1+ inter and intraLATA traffic (where inter and intraLATA
presubscription is available); one way and/or two way service on the
line (if so provided in the tariff); flat service where flat service
is required by the applicable tariff, measured service where measured
service is required by the applicable tariff, and both flat and
measured service
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where both flat and measured service are required by the applicable
tariff; detailed billing showing all 1+ traffic; ATTI's service center
phone number to all ATTI end users that contact GTE service center;
number portability for end users; touchtone service; GTE designated
contact center as single point of contact for customer service;
provisioning of 911 service; access to ANI information; all
information necessary to permit ATTI to bill end users for access line
usage; the same monitoring and diagnostic routines as GTE utilizes on
its own facilities; one directory for each line installed; blocking
for any service that can be billed to the line but not rated and all
1+ calls except where local mandate requires access to Directory
Assistance.
30.8 [Intentionally deleted.]
30.9 When providing Customer Owned Pay Telephone (COPT) Lines to ATTI for
resale, GTE shall offer the following to the extent that GTE provides
such services and in those jurisdictions and/or central offices where
available. Access to all Central Office intelligence required to
provide COPT Line pay phone services; far end disconnect recognition;
call timing for intra- and interLATA calls; at the customer's option,
one way or two way service on the line in those jurisdictions where
available; detailed billing showing all 1+ traffic ATTI's service
center phone number to all ATTI end users; touchtone service; line
side supervision in those jurisdictions where available; GTE
designated contact center for use by ATTI only as single point of
contact for customer service; provisioning of 911 service; access to
ANI information; all information necessary to permit ATTI to bill end
users for access line usage; the same monitoring and diagnostic
routines as GTE utilizes on its own facilities; one directory for each
line installed; blocking for 1+ international calls and any 1+ service
that cannot be rated by the phone pay line or any operator service.
30.10 For any pay phone line provided to ATTI for resale, GTE shall also
make available to ATTI any future pay phone line option that GTE
provides to any of its own customers using such a pay phone line.
30.11 GTE shall adhere to the following additional requirements when
providing pay phone lines for resale:
30.11.1 GTE shall provide ATTI with the same call restrictions and fraud
protections used by GTE in connection with its pay phones;
30.11.2 GTE shall not block ATTI's existing access to [NAI] codes;
30.11.3 GTE shall forward all ATTI pay phone customers to the designated ATTI
line or trunk group for handling Operator Services or Directory
Assistance calls;
30.11.4 [Intentionally Deleted]
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PART II: UNBUNDLED NETWORK ELEMENTS
31. INTRODUCTION
This Part II sets forth the unbundled Network Elements that GTE agrees
to offer to ATTI in accordance with its obligations under Section 251
(c)(3) of the Act and 47 CFR 51.307 to 51.321 of the FCC Rules. The
specific terms and conditions that apply to the unbundled Network
Elements are described below and in Attachment 2. Prices for Network
Elements are set forth in Part V and Attachment 14 of this Agreement.
32. UNBUNDLED NETWORK ELEMENTS
32.1 GTE will offer Network Elements to ATTI on an unbundled basis at rates
set forth in Attachment 14.
32.2 GTE will permit ATTI to interconnect ATTI's facilities or facilities
provided by ATTI or by third parties with each of GTE's unbundled
Network Elements at any point designated by ATTI that is technically
feasible.
32.3 ATTI, at its option, may designate any technically feasible network
interface at a Served Premises, including without limitation, DSO,
DS-1, DS-3, and STS-1.
32.4 Pursuant to the terms of this Agreement, ATTI may use one or more
Network Elements to provide any Telecommunications Service that such
Network Element is capable of providing.
32.5 GTE shall offer each Network Element individually and in combination
with any other Network Element or Network Elements, so long as such
combination is technically feasible, in order to permit ATTI to
combine such Network Element or Network Elements with another Network
Element or other Network Elements obtained from GTE or with network
components provided by itself or by third parties to provide
telecommunications services to its customers.
32.6 For each Network Element, GTE shall provide a demarcation point (e.g.,
an interconnection point at a Digital Signal Cross-Connect or Light
Guide Cross-Connect panels or a Main Distribution Frame) and, if
necessary, access to such demarcation point, which ATTI agrees is
suitable. However, where GTE provides contiguous Network Elements to
ATTI, GTE may provide the existing interconnections and no demarcation
point shall exist between such contiguous Network Elements.
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32.7 [Intentionally deleted].
32.8 [Intentionally deleted].
32.9 Except with respect to the Loop Distribution, Loop
Concentrator/Multiplexer, and Loop Feeder elements, which shall in all
cases be subject to the bona fide request process described in
Attachment 12, set forth below is a list of Network Elements that ATTI
and GTE have identified as of the Effective Date of this Agreement and
will be offered by GTE. ATTI and GTE agree that ATTI may identify
additional or revised Network Elements that it desires. All such
additional or modified Network Elements shall be subject to the Bona
Fide Requests Procedures outlined in Attachment 12. Descriptions and
requirements for each Network Element identified below are set forth
in Attachment 2. The Network Elements described in Attachment 2
consist of:
Loop or Loop Combination
Network Interface Device (NID)
Loop Distribution, otherwise known as Distribution Media
Loop Concentrator/Multiplexer
Loop Feeder Local Switching
Operator Service
Directory Assistance Service
Common Transport
Dedicated Transport
Signaling Link Transport
Signaling Transfer Points
Service Control Points (SCPs)/Data bases
Tandem Switching
Unused Transmission Media
32.10 Standards for Network Elements
32.10.1 [Intentionally Deleted]
32.10.2 [Intentionally left blank]
32.10.3 [Intentionally Deleted]
32.10.3.1 If ATTI contends that GTE has failed to meet the requirements of this
Section 32, ATTI will provide GTE documentation of such purported
failure. Within a reasonable time period after receiving such
documentation, GTE shall provide to ATTI engineering, design,
performance and other network data that the parties mutually agree
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Page 45
is necessary and sufficient for ATTI to determine that the
requirements of this Section 32 are being met. In the event that such
data establishes that the requirements of this Section 32 are not
being met, GTE shall, within ten (10) business days, cure any design,
performance or other deficiency and provide new data that the parties
mutually agree is sufficient for ATTI to determine that such
deficiencies have been cured. To the extent that GTE is unable to meet
the above timeframe, GTE shall promptly notify ATTI prior to the
expiration of such timeframe and the Parties shall agree on a revised
completion date.
32.10.3.2 [Intentionally deleted].
32.10.4 [Intentionally Deleted].
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PART III: ANCILLARY FUNCTIONS
33. INTRODUCTION
This Part III sets forth the Ancillary Functions that GTE agrees to
offer to ATTI so that ATTI may interconnect to GTE's network and
obtain access to unbundled Network Elements to use to provide services
to its customers.
34. GTE PROVISION OF ANCILLARY FUNCTIONS
34.1 [Intentionally deleted].
34.2 GTE will permit ATTI to interconnect ATTI's equipment and facilities
or equipment and facilities provided by ATTI or by third parties for
purposes of interconnection or access to Network Elements at any point
that is technically feasible in accordance with the terms and
conditions of this Agreement.
34.3 Pursuant to the terms of this Agreement, ATTI may use any Ancillary
Function to provide any Telecommunications Service that such Ancillary
Function is capable of providing.
34.4 Set forth below is the list of the Ancillary Functions that ATTI and
GTE have identified as of the Effective Date of this Agreement. Either
Party may identify additional or revised Ancillary Functions that it
desires. All such additional or revised Ancillary Functions shall be
subject to the Bona Fide Requests procedures outlined in Attachment
12. Descriptions and requirements for each Ancillary Function are set
forth in Attachment 3. The Ancillary Functions described in Attachment
3 consist of:
Collocation
Right of Way (ROW)
Conduit
Pole attachment
35. STANDARDS FOR ANCILLARY FUNCTIONS
35.1 Subject to Section 23.19, each Ancillary Function shall meet or exceed
the requirements set forth in applicable technical references, as well
as the performance and other requirements, identified in this
Agreement.
35.2 Each Ancillary Function provided by GTE to ATTI shall be equal in the
quality of design, performance, features, functions and other
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characteristics, including, but not limited to levels and types of
redundant equipment and facilities for diversity and security, that
GTE provides in the GTE network to itself, its affiliates or any other
carrier.
35.3 If ATTI contends that GTE has failed to meet the requirements of Part
III and Attachment 3, ATTI will provide GTE documentation of such
purported failure. Within a reasonable time period after receiving
such documentation, GTE shall provide to ATTI engineering, design,
performance and other network data that the parties mutually agree is
necessary and sufficient for ATTI to determine that the requirements
of Part III and Attachment 3 of this Agreement are being met. In the
event that such data establishes that the requirements of Part III and
Attachment 3 of this Agreement are not being met, GTE shall, within 30
business days, cure any design, performance or other deficiency and
provide new data that the parties mutually agree is sufficient for
ATTI to determine that such deficiencies have been cured. To the
extent that GTE is unable to meet the above timeframe, GTE shall
promptly notify ATTI prior to the expiration of such timeframe and the
Parties shall agree on a revised completion date.
35.4 Unless otherwise designated by ATTI, each Ancillary Function provided
by GTE to ATTI shall be made available to ATTI on a priority basis
that is at least equal to the priorities that GTE provides to itself,
its affiliates or any other carrier.
35.5 (Intentionally deleted)
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35.6 911/E911 ARRANGEMENTS
35.6.1 DESCRIPTION OF SERVICE
ATTI shall have the right to utilize the existing GTE 911/E911
infrastructure (as agreed in Sections 37.10.3 and 37.10.5 below) to
provide all 911/E911 capabilities to its end users. ATTI will
install a minimum of two dedicated trunks to GTE's 911/E911
selective routers (i.e., 911 tandem offices) that serve the areas in
which ATTI provides Exchange Services, for the provision of 911/E911
services and for access to all subtending PSAPs. The dedicated trunks
shall be, at minimum, DSO level trunks configured as a 2-wire analog
interface or as part of a digital (1.544 Mbps) interface. Either
configuration shall use CAMA type signaling with multifrequency (MF)
tones that will deliver ANI with the voice portion of the call. At the
request of ATTI, GTE will provide ATTI with the appropriate CLLI codes
and specifications of the tandem office serving area. If an ATTI
Central Office serves end users in an area served by more than one GTE
911/E911 selective router, ATTI will install a minimum of two
dedicated trunks in accordance with this section to each of such
911/E911 selective routers.
35.6.2 TRANSPORT
If ATTI desires to obtain transport from its end office to the GTE 911
selective routers, ATTI may purchase such transport from GTE at the
rates set forth in GTE's intrastate switched access tariff or in GTE's
intrastate special access tariff.
35.6.3 COOPERATION AND LEVEL OF PERFORMANCE
35.6.3.1 The Parties agree to provide access to 911/E911 in a manner that is
transparent to the end user. The Parties will work together to
facilitate the prompt, reliable and efficient interconnection of
ATTI's systems to the 911/E911 platforms to ensure that 911/E911
service is fully available to ATTI's end users, with a level of
performance that will provide the same grade of service as that which
GTE provides to its own end users and that meets State requirements.
To this end, GTE will provide documentation to ATTI showing the
correlation of its rate centers to its E911 tandems.
35.6.3.2 In the event of an GTE or ATTI 911 trunk group failure, the Party
that owns the trunk group will notify, on a priority basis, the other
Party of such failure, which notification shall occur within two (2)
<PAGE>
Page 49
hours of the occurrence or sooner if required under Applicable Law.
The Parties will exchange a list containing the names and telephone
numbers of the support center personnel responsible for maintaining
the 911 Service between the Parties.
35.6.3.3 When ATTI purchases transport, GTE will provide ATTI with the order
number and the circuit identification code in advance of the service
due date.
35.6.3.4 ATTI or its third party agent will provide CNA data to GTE for use in
entering the data into the 911 data base. The initial CNA data will
be provided to GTE in a format prescribed by NENA (National Emergency
Number Association). ATTI is responsible for providing GTE updates to
the CNA data and error corrections which may occur during the entry of
CNA data to the GTE 911 Database System. GTE will confirm receipt of
such data and corrections by close of business on the next Business
Day by providing ATTI with a report of the number of items sent, the
number of items entered correctly, and the number of errors.
35.6.3.5 ATTI will monitor the 911 circuits for the purpose of determining
originating network traffic volumes. ATTI will notify GTE if the
traffic study information indicates that additional circuits are
required to meet the current level of 911 call volumes.
35.6.3.6 [Intentionally deleted.]
35.6.3.7 Inter-office trunks provided for 911 shall be engineered to assure
minimum P.01 transmission grade of service as measured during the busy
day/busy hour. A minimum of two trunks shall be provided by ATTI.
35.6.4 UPDATES TO MSAG
It shall be the responsibility of ATTI to ensure that the address of
each of its end users is included in the Master Street Address Guide
("MSAG") via information provided on ATTI's Local Service Request
("LSR") or via a separate feed established by ATTI and GTE pursuant to
section 37.10.5 of this Article. Any MSAG change that appears to be
required by ATTI must be approved by the County. Within thirty (30)
days after the Effective Date of this Agreement, GTE shall provide
ATTI with an initial electronic copy and a paper copy of the MSAG or
its equivalent. Prior to the time that updates are available
electronically, GTE will provide updates to ATTI on a monthly basis.
Thereafter, GTE will provide updates to ATTI as changes are made.
<PAGE>
Page 50
35.6.5 UPDATES TO DATABASE
GTE and ATTI will work together to develop the process by which the
911/E911 database will be updated with ATTI's end user 911/E911
information. ATTI shall have the right to verify the accuracy of the
information regarding ATTI's end users in the 911/E911 database.
35.6.6 COMPENSATION
In situations in which GTE is responsible for maintenance of the
911/E911 database and can be compensated for maintaining ATTI's
information by the municipality, GTE will seek such compensation from
the municipality. GTE will seek compensation from ATTI only if and to
the extent that GTE is unable to obtain such compensation from the
municipality.
<PAGE>
Page 51
PART V: PRICING
36. GENERAL PRINCIPLES
All services currently provided hereunder including resold Local
Services, Network Elements and Combinations, and any new and
additional services or Network Elements to be provided hereunder shall
be priced in accordance with all applicable provisions of the Act and
the rules and orders of the FCC and any state public utility
commission having jurisdiction over this Agreement.
37. PRICE SCHEDULES
37.1 LOCAL SERVICE RESALE
The prices to be charged to ATTI for Local Services shall be as
specified in Attachment 14.
37.2 UNBUNDLED NETWORK ELEMENTS
The prices charged to ATTI for Unbundled Network Elements shall be as
specified in Attachment 14 and shall be nondiscriminatory.
37.2.1 If implementation of an unbundled loop feeder supports shared used of
required unbundling facilities, the cost of such facilities shall be
allocated and prorated among all users in a non-discriminatory and
competitively neutral manner. If such implementation supports only
ATTI's use, then ATTI shall pay to GTE the incremental cost of such
implementation.
37.2.2 If implementation of an unbundled loop concentrator /mutiplexer
element supports shared used of required unbundling facilities, the
cost of such facilities shall be allocated and prorated among all
users in a non-discriminatory and competitively neutral manner. If
implementation supports only ATTI's use, then ATTI shall pay to GTE
the incremental cost of such implementation.
37.2.3 ATTI will be responsible for the costs (if any) required to create an
interface at the main distribution frame if such interface does not
already exist, such as in the case of an Integrated Digital Loop
Carrier System.
<PAGE>
Page 52
In witness whereof, the Parties have executed this Agreement through their
authorized representatives.
GTE Northwest Incorporated American Telephone Technology Inc.
By: By:
----------------------------- ----------------------------
Signature Signature
----------------------------- ----------------------------
Name Name
----------------------------- ----------------------------
Title Title
----------------------------- ----------------------------
Date Date
<PAGE>
Exhibit 10.1.39
AGREEMENT
FOR LOCAL WIRELINE NETWORK INTERCONNECTION
AND
SERVICE RESALE
BETWEEN
AMERICAN TELEPHONE TECHNOLOGY, INC.
AND
U S WEST COMMUNICATIONS, INC.
FOR THE STATE OF OREGON
CDS-991206-0204
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
PREAMBLE .................................................... 1
RECITALS AND PRINCIPLES ..................................... 1
SCOPE OF AGREEMENT .......................................... 2
PART I: GENERAL TERMS AND CONDITIONS ........................ 3
1. Term ...................................................... 3
2. Payment ................................................... 4
3. Taxes ..................................................... 5
4. Audits and Inspections .................................. 5
5. Indemnification ......................................... 6
6. Responsibility for Environmental Contamination .......... 7
7. Limitation of Liability ................................. 8
8. Remedies For Failure to Meet Service Quality Standards .. 9
9. Warranties .............................................. 9
10. Non-exclusive Remedies .................................. 12
11. Dispute Resolution ...................................... 13
12. Nondisclosure/Confidentiality and Proprietary Information 14
13. Customer Credit History ................................. 16
14. Branding ................................................ 16
15. Patents,-Trademarks ..................................... 17
16. Publicity and Advertising ............................... 17
17. Force Majeure ........................................... 17
18. Waiver .................................................. 18
19. Governing Law/Compliance with Laws ...................... 18
</TABLE>
<PAGE>
<TABLE>
<S> <C>
20. No Third Party Beneficiaries ............................ 20
21. Responsibility of Each Party ............................ 20
22. Assignment/Subcontracting ............................... 20
23. Entire Agreement ........................................ 21
24. Severability ............................................ 21
25. Amendments .............................................. 21
26. Heading of No Force or Effects .......................... 21.
27. Notices ................................................. 21
28. Joint Work Product ...................................... 22
29. Executed in Counterparts ................................ 23
30. Referenced Documents .................................... 23
31. Survival ................................................ 23
32. Successors and Assigns .................................. 23
PART II: LOCAL SERVICES RESALE
33. Introduction ............................................ 23
34. Local Services Resale ................................... 24
PART Ill: UNBUNDLED NETWORK ELEMENTS
35. Introduction ............................................ 26
36. Unbundled Network Elements .............................. 26
PART IV: ANCILLARY FUNCTIONS
37. Introduction ............................................ 34
38. ILEC Provision of Ancillary Functions ................... 35
39. Standards for Ancillary Functions ....................... 36
</TABLE>
<PAGE>
<TABLE>
<S> <C>
PART V: PRICING
40. General Principles ...................................... 37
41. Price Schedules ......................................... 38
</TABLE>
SCHEDULES
Schedule 1 Total Services Resale Pricing
Schedule 2 Unbundled Network Elements Pricing
ATTACHMENTS
Attachment 1 [intentionally deleted]
Attachment 2 Services Description: Total Services Resale
Attachment 3 Services Description: Unbundled Network Elements
Attachment 4 Services Description: Ancillary Functions
Attachment 5 Provisioning and Ordering
Attachment 6 Maintenance
Attachment 7 Connectivity Billing and Recording
Attachment 8 Provision of Customer Usage Data
Attachment 9 Local Number Portability
Attachment 10 Network Security
Attachment 11 Credit for Failure to Meet Service Quality Standards
Attachment 12 Definitions and Acronyms
<PAGE>
AGREEMENT
FOR LOCAL WIRELINE NETWORK INTERCONNECTION
AND
SERVICE RESALE
Pursuant to this Agreement for Local Wireline Network Interconnection
and Service Resale ("Agreement"), by and between American Telephone Technology,
Inc., a subsidiary of Advanced Telecommunications, Inc. (a Competitive Local
Exchange Carrier ("CLEC" or "Reseller", as applicable), on behalf of itself and
its Affiliates, and U S WEST Communications, Inc. (the lncumbent Local Exchange
Carrier or ("ILEC"), on behalf of itself and its Affiliates, (collectively, "the
Parties") will extend certain arrangements to one another within each LATA in
which they both operate within the state of Oregon.
RECITALS AND PRINCIPLES
WHEREAS, interconnection between competing Local Exchange Carriers
("LECs") is necessary for the termination of each company's originating traffic
on the other carrier's network; and
WHEREAS, The Telecommunications Act of 1996 (the "Act") was signed into
law on February 8,1996; and
WHEREAS, the Act places certain duties and obligations upon, and grants
certain rights to, Telecommunications Carriers; and
WHEREAS, ILEC is an Incumbent Local Exchange Carrier or has a majority
ownership interest in local exchange companies ("LECs") which are Incumbent
Local Exchange Carriers; and
WHEREAS, ILEC for itself and its Affiliates is willing to sell
unbundled Network Elements and Ancillary Functions and additional features, as
well as services for resale, on the terms and subject to the conditions of this
Agreement; and
WHEREAS, CLEC is a Telecommunications Carrier and has requested that
ILEC negotiate an Agreement with CLEC for the provision of interconnection, and
unbundled Network Elements (including Ancillary Functions and additional
features) pursuant to the Act and in conformance with ILEC's duties under the
Act; and
WHEREAS, the Parties have arrived at this Agreement;
NOW, THEREFORE, in consideration of the mutual provisions contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, CLEC and ILEC hereby covenant and agree as
follows:
<PAGE>
SCOPE OF AGREEMENT
A. This Agreement sets forth the terms, conditions and prices under which
ILEC agrees to provide (1) services for resale (hereinafter referred to
as "Local Services") and (2) certain unbundled Network Elements,
Ancillary Functions and additional features to CLEC (hereinafter
collectively referred to as `Network Elements") or combinations of such
Network Elements ("Combinations") for CLEC's own use or for resale to
others, and for purposes of offering voice, video, or data services of
any kind, including, but not limited to, local exchange services,
intrastate toll services, and intrastate and interstate exchange access
services.
This Agreement also sets forth the terms and conditions for the
interconnection of CLEC's network to ILEC's network and the reciprocal
compensation for the transport and termination of telecommunications.
ILEC may fulfill the requirements imposed upon it by this Agreement by
itself or may cause its Affiliated ILECs to take such actions to
fulfill the responsibilities. Unless otherwise provided in this
Agreement, ILEC will perform all of its obligations hereunder
throughout its entire service area.
The Network Elements, Combinations or Local Services provided pursuant
to this Agreement may be connected to other Network Elements,
Combinations or Local Services provided by ILEC or to any Network
Elements, Combinations or Local Services provided by CLEC itself or by
any other vendor.
Subject to the requirements of this Agreement, CLEC may, at any time
add, delete, relocate or modify the Local Services, Network Elements or
Combinations purchased hereunder. ILEC will not discontinue any Network
Element, Combination or Local Service provided hereunder without the
prior mutual agreement of the Parties or the approval of the
Commission.
B. In the performance of their obligations under this Agreement, the
Parties shall act in good faith and consistently with the intent of the
Act. Where notice, approval or similar action by a Party is permitted
or. required by any provision of this Agreement, (including, without
limitation, the obligation of the Parties to further negotiate the
resolution of new or open issues under this Agreement) such action
shall not be unreasonably delayed, withheld or conditioned.
C. ILEC shall not reconfigure, re-engineer or otherwise redeploy its
network in a manner which would impair CLEC's ability to offer
Telecommunications Services in the manner contemplated by this
Agreement, the Act or the FCC's Rules and Regulations. The Parties
agree that all obligations undertaken pursuant to this Agreement,
including without limitation, performance standards, intervals, and
technical requirements are material obligations hereof and that time is
of the essence.
<PAGE>
D. Whenever CLEC requests the use of facilities not currently in place or
when it requests services or facilities superior in quality to the
highest quality of these three items: (1) requirements of FCC rules,
(2) requirements of Commission rules or orders, or (3) the level of
quality ILEC provides to itself or its Affiliates or its end user
subscribers, CLEC must compensate ILEC fully for the additional costs
of providing the requested facilities or superior services or
facilities.
PART I: GENERAL TERMS AND CONDITIONS
1. TERM
1.1 When executed by authorized representatives of ILEC and CLEC,
this Agreement shall become effective upon Commission approval, and
shall expire on September 11, 2000, unless renewed by agreement of the
Parties or terminated earlier in accordance with the provisions of this
Agreement. Notwithstanding the foregoing sentence, the provisions for
bill and keep set forth elsewhere in this Agreement shall exist for an
interim period only and shall be coterminous with the interim period
for bill and keep established in the Commission's Order 96-021 in
Docket CP 1, including any changes thereto that may be ordered by the
Commission.
1.2 ILEC shall give CLEC notice of the impending expiration of
this Agreement (or any renewable term thereof) ninety (90) days before
such expiration. The Parties shall have the right to extend the term of
this Agreement, upon mutual agreement, for successive one-year periods
("Renewal Year") upon expiration of the initial term or any subsequent
Renewal Year. At the expiration of the term of this Agreement, or any
renewal thereof, this Agreement shall continue in effect, on a
month-to-month basis, at the same terms, conditions and prices as those
in effect at the end of the latest term or renewal.
1.3 CLEC may elect at any time to terminate this Agreement, in
whole or in part, upon sixty (60) days written notice to ILEC. In such
case, and except as provided in this paragraph, CLEC's liability shall
be limited to payment of the amounts due for Network Elements,
Combinations and Local Services provided up to and including the date
of termination. ILEC recognizes that the Network Elements, Combinations
and Local Services provided hereunder are vital to CLEC and must be
continued without interruption, and that upon the termination or
expiration of this Agreement, CLEC may itself provide or retain another
vendor to provide such comparable Network Elements, Combinations or
Local Services. ILEC agrees to cooperate in an orderly and efficient
transition to CLEC or another vendor. ILEC further agrees to
co-ordinate the orderly transition to CLEC or another vendor such that
the level and quality of the Network Elements, Combinations and Local
Services is not degraded and to exercise its best efforts to effect an
orderly and efficient transition. CLEC may terminate any Local
Service(s), Network Element(s) or Combination(~) provided under this
Agreement upon thirty (30) days written notice to ILEC, unless a
different notice period or different conditions are specified for
termination of such Local
<PAGE>
Service(s), Network Element(s) or Combination(s) in this Agreement, in
which event such specific period and conditions shall apply.
1.4 In the event of breach of any material provision of this
Agreement by either Party, the non-breaching Party shall give the other
Party written notice thereof, and:
1.4.1 If such material breach is for non-payment of amounts
due hereunder pursuant to Attachment 7, Section 13, the
breaching Party shall cure such breach within thirty (30) days
of receiving such notice. The non-breaching Party shall be
entitled to pursue all available legal and equitable remedies
for such breach. Amounts disputed in good faith and withheld
or set off shall not be deemed "amounts due hereunder" for the
purpose of this provision.
1.4.2 If such material breach is for any failure to perform in
accordance with this Agreement, which, in the sole judgment of
the non-breaching Party, adversely affects the non-breaching
Party's subscribers, the non-breaching Party shall give notice
of the breach and the breaching Party shall cure such breach
to the non-breaching Party's reasonable satisfaction within
ten (10) days or within a period of time equivalent to the
applicable interval required by this Agreement, whichever is
shorter, and if breaching Party does not, the non-breaching
Party may, at its sole option, terminate this Agreement, or
any parts hereof. The non-breaching Party shall be entitled to
pursue all available legal and equitable remedies for such
breach. For the purpose of this Subsection 1.4.2, notice may
be given electronically or by facsimile and in such case shall
be deemed received when sent.
1.4.3 If such material breach is for any other failure to
perform in accordance with this Agreement, the breaching Party
shall cure such breach to the non-breaching Party's reasonable
satisfaction within forty-five (45) days, and if the breaching
Party does not, the non-breaching Party may, at its sole
option terminate this Agreement, or any parts hereof. The
non-breaching Party shall be entitled to pursue all available
legal and equitable remedies for such breach.
1.5 In the event of such termination as described in this Section
1, for service arrangements made available under this Agreement and
existing at the time of termination, those arrangements shall continue
without interruption.
2. PAYMENT
2.1 Amounts payable under this Agreement are due and payable
within thirty (30) days after the receipt of ILEC's invoice unless
properly disputed under this Agreement or applicable Tariff.
<PAGE>
3. TAXES
3.1 Any federal, state or local excise, sales, or use taxes
(excluding any taxes levied on income) resulting from the performance
of this Agreement shall be borne by the Party upon which the obligation
for payment is imposed under applicable law, even if the obligation to
collect and remit such taxes is placed upon the other Party. Any such
taxes shall be shown as separate items on applicable billing documents
between the Parties. The Party so obligated to pay any such taxes may
contest the same in good faith, at its own expense, and shall be
entitled to the benefit of any refund or recovery, provided that such
Party shall not permit any lien to exist on any asset of the other
Party by reason of the contest. The Party obligated to collect and
remit shall cooperate in any such contest by the other Party.
4. AUDITS AND INSPECTIONS
4.1 As used herein "Audit" shall mean a comprehensive review of
services performed under this Agreement; "lnspection" shall mean an
inquiry into a specific element of or process related to services
performed under this Agreement. CLEC may perform up to four (4) Audits
per 12-month period commencing with the Effective Date. CLEC may
perform Inspections as CLEC deems necessary. Subject to ILEC's
reasonable security requirements and-except as may be otherwise
specifically provided in this Agreement, CLEC may audit ILEC's books,
records, documents, and processes, among other things, to ensure the
accuracy of ILEC's billing and invoicing and evaluating compliance with
the terms and conditions of this Agreement and ILEC performance related
thereto. CLEC may employ other persons or firms for this purpose. Such
audit shall take place at a time and place agreed on by the Parties no
later than thirty (30) days after notice thereof to ILEC.
4.2 ILEC shall promptly correct any billing error that is revealed
in an audit, including making refund of any overpayment by CLEC in the
form of a credit on the invoice for the first full billing cycle after
the Parties have agreed upon the accuracy of the audit results. Any
Disputes concerning audit results shall be resolved pursuant to the
Alternate Dispute Resolution procedures described in Section 11 below.
4.3 ILEC shall co-operate fully in any such audit, providing
reasonable access to any and all appropriate ILEC employees, ILEC
facilities (e.g., conference rooms, telephones, copying machines),
books, records and other documents reasonably necessary to assess the
accuracy of ILEC's bills.
4.4 CLEC may audit ILEC's books, records and documents more
frequently than provided in Section 4.1 preceding during any Contract
Year if the previous audit found previously uncorrected net variances
or errors in invoices in ILEC's favor with an aggregate value of at
least one percent (1%) of the amounts payable by CLEC for Local
Services, Network Elements or Combinations provided during the period
covered by the audit.
<PAGE>
4.5 Audits shall be at CLEC's expense, subject to reimbursement-
by ILEC in the event that an audit finds an adjustment in the charges
or in any invoice paid or payable by CLEC hereunder by an amount that
is, on an annualized basis, greater than one percent (1%) of the
aggregate charges for the Local Services, Network Elements and
Combinations during the period covered by the audit.
4.6 The reasonable cost of special data extractions required by
CLEC to conduct the Audit Examination will be paid for by CLEC. For
purposes of this Section 4.6, a "Special Data Extraction" shall mean
the creation of an output record or informational report (from existing
data files) that is not created in the normal course of business. If
any program is developed to CLEC's specifications and at CLEC's
expense, CLEC shall specify at the time of request. whether the program
is to be retained by ILEC for reuse for any subsequent CLEC Audit or
Examination.
4.7 Upon (a) the discovery by ILEC of overcharges not previously
reimbursed to CLEC or (b) the resolution of disputed audits, ILEC shall
promptly reimburse CLEC the amount of any overpayment times the highest
interest rate (in decimal value) which may be levied by law for
commercial transactions, compounded daily for the number of days from
the date of overpayment to and including the date that payment is
actually made. In no event, however, shall interest be assessed on any
previously assessed or accrued late payment charges.
4.8 This Section 4 shall survive expiration or termination of this
Agreement for a period of two (2) years after expiration or termination
of this Agreement.
5. INDEMNIFICATION.
5.1 Each of the Parties agrees to release, indemnify, defend and
hold harmless the other Party and each of its officers, directors,
employees and agents (each, an "Indemnitee") from and against and in
respect of any loss, debt, liability, damage, obligation, claim,
demand, judgment or settlement of any nature or kind arising out of,
resulting from or based upon any pending or threatened claim, action,
proceeding or suit by any third party known or unknown, liquidated or
unliquidated, including, but not limited to, costs and attorneys' fees,
accounting or otherwise, whether suffered, made, instituted, or
asserted by any other party or person alleging any breach of any
representation, warranty or covenant made by such indemnifying Party
(the "Indemnifying Party") in this Agreement, for invasion of privacy,
personal injury to or death of any person or persons, or for loss,
damage to, or destruction of property, whether or not owned by others,
resulting from the Indemnifying Party's performance, breach of
Applicable Law, or status or the actions, breach of Applicable Law, or
status of its employees, agents and subcontractors; for actual or
alleged infringement of any patent, copyright, trademark, service mark,
trade name, trade dress, trade secret or any other intellectual
property right, now known or later developed (referred to as
"Intellectual Property Rights"); or for failure to perform under this
Agreement, regardless of the form of action.
<PAGE>
5.2 The indemnification provided herein shall be conditioned upon:
5.2.1 Whenever a Claim shall arise for indemnification under
this Section 5, the relevant Indemnitee, as appropriate, shall
promptly notify the Indemnifying Party and request the
Indemnifying Party to defend the same. Failure to so notify
the Indemnifying Party shall not relieve the Indemnifying
Party of any liability that the Indemnifying Party might have,
except to the extent that such failure prejudices the
Indemnifying Party's ability to defend such Claim.
5.2.2 The Indemnifying Party shall have the right to defend
against such liability or assertion in which event the
lndemnifying Party shall give written notice to the
Indemnitee of acceptance of the defense of such Claim and the
identity of counsel selected by the Indemnifying Party.
Except as set forth below, such notice to the relevant
Indemnitee shall give the Indemnifying Party full authority
to defend, adjust, compromise or settle such Claim with
respect to which such notice shall have been given, except to
the extent that any compromise or settlement shall prejudice
the Intellectual Property Rights of the relevant Indemnitees.
The Indemnifying Party shall consult with the relevant
Indemnitee prior to any compromise or settlement that would
affect the Intellectual Property Rights or other rights of
any Indemnitee, and the relevant Indemnitee shall have the
right to refuse such compromise or settlement and, at the
refusing Party's or refusing Parties' cost, to take over such
defense, provided that in such event the Indemnifying Party
shall not be responsible for, nor shall it be obligated to
indemnify the relevant Indemnitee against, any cost or
liability in excess of such refused compromise or settlement.
With respect to any defense accepted by the Indemnifying
Party, the relevant Indemnitee shall be entitled to
participate with the Indemnifying Party in such defense if
the Claim requests equitable relief or other relief that
could affect the rights of the Indemnitee and also shall be
entitled to employ separate counsel for such defense at such
Indemnitee's expense. In the event the Indemnifying Party
does not accept the defense of any indemnified Claim as
provided above, the relevant Indemnitee shall have the right
to employ counsel for such defense at the expense of the
Indemnifying Party. Each Party agrees to cooperate and to
cause its employees and agents to cooperate with the other
Party in the defense of any such Claim and the relevant
records of each Party shall be available to the other party
with respect to any such defense.
6. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
6.1 Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or release of any Environmental
Hazard that the other Party introduced to the affected Work Location.
Both Parties shall defend and hold harmless the other, its officers,
directors and employees from and against any losses, damages, claims,
demands, suits, liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) that arise out of or result from
<PAGE>
(a) any Environmental Hazard that the indemnifying Partj, its
contractors or agents introduce to its Work Locations, or (b) the
presence or release of any Environmental Hazard for which the
indemnifying Party is responsible under Applicable Law.
6.2 In the event any suspect materials within ILEC-owned, operated
or leased facilities are identified to be asbestos-containing, CLEC
will ensure that to the extent any activities which it undertakes in
the facility disturb such suspect materials, such CLEC activities will
be in accordance with applicable local, state and federal environmental
health and safety statutes and regulations. Except for abatement
activities undertaken by CLEC or equipment placement activities that
result in the generation of asbestos containing material, CLEC shall
not have any responsibility for managing, nor be the owner of, not
have any liability for, or in connection with, any asbestos containing
material. ILEC agrees to immediately notify CLEC if ILEC undertakes any
asbestos control or asbestos abatement activities that potentially
could affect CLEC equipment or operations, including, but not limited
to, contamination of equipment.
7. LIMITATION OF LIABILITY
7.1 Liabilities of CLEC - CLEC's liability to ILEC during any
Contract Year resulting from any and all causes, other than as
specified in this Agreement shall not exceed the amount due and owing
by CLEG to ILEC under this Agreement during the Contract Year during
which such cause accrues or arises.
7.2 Liabilities of ILEC - ILEC's liability to CLEC during any
Contract Year resulting from any and all causes, other than as
specified below in Section 8 following, and in Section 10 shall not
exceed the total of any amounts due and owing to CLEC pursuant to
Service Parity; Service Guarantees and the Attachment related thereto,
plus any amounts due and owing by CLEC to ILEC under this Agreement
during the Contract Year during which such cause accrues or arises.
7.3 Neither Party shall be liable to the other for any indirect,
incidental, special or consequential damages arising out of or related
to this Agreement or the provision of service hereunder.
Notwithstanding the foregoing limitations, a Party's liability shall
not be limited by the provisions of this Section 7 in the event of its
willful or intentional misconduct, including gross negligence, or its
repeated breach of any one or more of its material obligations under
this Agreement. A Party's liability shall not be limited with respect
to its indemnification obligations.
7.4 The limitations set forth in Sections 7.1, 7.2 and 7.3 shall
not apply to a Party's liability in the event of its willful or
intentional misconduct, including its gross negligence, or its repeated
breach of any one or more of its material obligations under this
Agreement.
<PAGE>
FOR PURPOSES OF THIS SECTION 7, AMOUNTS DUE AND OWING TO CLEC PURSUANT
TO THE SECTION ON SERVICE PARITY, SERVIGE GUARANTEES AND THE ATTACHMENT
REFERENCED IN THAT SECTION SHALL NOT BE CONSIDERED TO BE INDIRECT,
INCIDENTAL, CONSEQUENTIAL, RELIANGE, OR SPEGIAL DAMAGES.
8. REMEDIES FOR FAILURE TO MEET SERVICE QUALITY STANDARDS
8.1 ILEC will provide all Local Services, Network Elements or
Combinations in accordance with service standards, measurements, and
performance requirements, that are expressly specified in this
Agreement and the Commission's rules. In cases where such service
quality standards are not expressly specified, ILEC will provide all
Local Services, Network Elements or Combinations in accordance with
quality standards which are at least equal or superior to the level of
service quality that ILEC is required to meet by its own internal
procedures, or by standards set forth in Oregon statutes or rules or in
FCC rules or regulations, in providing Local Service, Network Elements
or Combinations to itself, to its end-users or to its Affiliates. In
the event CLEC wants a level of service quality in excess or superior
to that provided in this paragraph, CLEC must (a) request that quality
of service through the BFR process specified herein; and (b) compensate
ILEC fully for the additional incremental costs of providing the
requested facilities or superior services or facilities.
8.2 ILEC acknowledges that remedies at law alone are inadequate to
compensate CLEC for failures to meet the service quality standards
requirements specified by this Agreement, failures to install or
provision Network Elements, Combinations or Services in accordance with
the Due Dates specified in this Agreement, or for failures to provide
Customer Usage Data in accordance with this Agreement. CLEC shall have
the right to seek injunctive relief and other equitable remedies (in
addition to remedies provided in this Agreement, at law and through
administrative process) to require ILEC (a) to cause the Network
Elements, Combinations or Services ordered by CLEC to meet the service
quality standards requirements specified by this Agreement, (b) to
install or provision the Network Elements, Combinations or Services
ordered by CLEC within the Due Dates specific in this Agreement, and
(c) to provide Customer Usage Data in accordance with this Agreement.
8.3 Service quality concerns which cannot be addressed through
informal processes may be dealt with through (a) the Dispute Resolution
procedure set forth in this Agreement; (b) the formal complaint
procedures established by the Commission; or (c) other available
forums.
9. WARRANTIES
9.1 Except as otherwise provided herein, each Party shall perform
its obligations hereunder at a performance level no less than the
highest level which
<PAGE>
it uses for its own operations, or those of its Affiliates, but in no
event shall a Party use less than reasonable care in the performance of
its duties hereunder.
9.2 ILEC warrants that Local Interconnection will be provided in a
competitively neutral fashion, at any technically feasible point within
its network at CLEC's request, and that such interconnection will
contain all the same features, functions and capabilities, and be at
least equal in quality to the highest level provided by ILEC to itself
or its Affiliates. ILEC shall have the full burden of proving that a
requested Interconnection Point ("IP") is not technically feasible. To
the extent ILEC proves infeasibility, ILEC shall be required to provide
to CLEC an alternative IP which will not impair CLEC's ability to
provide its Telecommunications Services. Such alternative P shall be
technically equivalent to the requested IP.
9.3 ILEC warrants that it will provide to CLEC on a
nondiscriminatory basis unbundled Network Elements and ancillary
services, including, but not limited to, local loop, local switching,
tandem switching/transit switching, transport, data switching,
intelligent network and advanced intelligent network, operator service,
directory assistance, 911, white and yellow pages, and repair and
maintenance, at any technically feasible points requested by CLEC, and
all operations support systems used and useful in the preordering,
ordering, provisioning, design, engineering, maintenance, repair,
tracking, management, billing and any other function or functionality
associated directly or indirectly with unbundled Network Elements and
ancillary services. ILEC further warrants that these services, or their
functional components, will contain all the same features, functions
and capabilities and be provided at a level of quality at least equal
to the highest level which it provides to itself or its Affiliates.
ILEC shall have the full burden of proving that access requested by
CLEC is not technically feasible. To the extent ILEC proves
infeasibility, ILEC shall be required to provide to CLEC an alternative
service, which will not impair CLEC's ability to provide its
Telecommunications Services. Such alternative service shall be
technically equivalent to the requested service.
9.4 ILEC warrants that it will provide to CLEC nondiscriminatory
access to poles, pole attachments, ducts, innerducts, conduits,
building entrance facilities, building entrance links, equipment rooms,
remote terminals, cable vaults, telephone closets, building risers,
rights of way, and other pathways owned or controlled by ILEC, using
capacity currently available or that can be made available. ILEC shall
take all reasonable steps to accommodate requests for access to its
facilities, including modifying or rearranging facilities to increase
capacity. ILEC shall have the full burden of proving that such access
is not technically feasible. To the extent ILEC proves infeasibility,
ILEC shall be required to provide to CLEC alternative suitable access
which will not impair CLEC's ability to provide its Telecommunications
Services. Such alternative access shall be technically equivalent to
the requested access.
9.5 ILEC warrants that it will provide to CLEC, in a competitively
neutral fashion, unbundled local loops, network interface devices or
units, loop distribution, digital loop carrier/analog cross connect,
and loop feeders, that
<PAGE>
contain all the same features, functions, and capabilities that ILEC
makes available to itself in provision of its Telecommunications
Services or to its Affiliates, with at least the same quality of
service, order processing, provisioning and installation, trouble
resolution, maintenance, customer care, and billing, as the highest
quality ILEC provides equivalent features, functions and capabilities
to itself, its Affiliates, or its own subscribers. ILEC shall have the
full burden of proving that access to the unbundled local loop or any
of its unbundled components is not technically feasible. To the extent
ILEC proves infeasibility, ILEC shall be required to provide to CLEC
alternative suitable facilities which will not impair CLEC's ability to
provide its Telecommunications Services. Such alternative facilities
shall be technically equivalent to the requested access.
9.6 ILEC warrants that it will provide to CLEC unbundled transport
and its. components, including common transport, dedicated transport,
with and without electronics, and multiplexing/digital cross connect,
with all the same features, functions and capabilities, and with at
least the same quality level which ILEC provides to itself or its
Affiliates in provision of its, or such Affiliate's, Telecommunications
Services, and that such services will be provided in a competitively
neutral fashion. ILEC shall have the full burden of proving that access
to unbundled transport or any unbundled transport components is not
technically feasible. To the extent ILEC proves infeasibility, ILEC
shall be required to provide to CLEC alternative suitable facilities
which will not impair CLEC's ability to provide its Telecommunications
Services. Such alternative facilities shall be technically equivalent
to the requested access.
9.7 ILEC warrants that it will provide unbundled local switching
and its functional components, including line port, trunk port, and
switching capacity, including all features, functions and capabilities,
and nondiscriminatory access via electronic interface to databases and
associated signaling needed for call routing, call completion, and
service creation, and to create and bill the communications path, all
at the same or better grade of service that ILEC provides to itself or
its Affiliates, unless service degradation is due to CLEC purchasing
insufficient capacity to meet its own demand. ILEC further warrants
that unbundled local switching and its functional components will be
provided in a competitively neutral fashion. ILEC shall have the full
burden of proving that access to unbundled local switching or its
functional components is not technically feasible. To the extent ILEC
proves infeasibility, ILEC shall be required to provide to CLEC
alternative suitable facilities which will not impair CLEC's ability to
provide its Telecommunications Services. Such alternative facilities
shall be technically equivalent to the requested access.
9.8 ILEC warrants that it will provide nondiscriminatory access to
telephone numbers.
9.9 ILEC warrants that it will provide to CLEC, in a competitively
neutral fashion, interim number portability with the same features,
functions and capabilities that ILEC provides to itself or its
Affiliates, and with as little impairment of functioning, quality,
reliability, and convenience as possible, and that it will provide such
service as required by the FCC in Telephone Number
<PAGE>
Portability, CC Docket No. 95-116, First Report and Order, released
July 2, 1996.
9.10 ILEC warrants that it will provide to CLEC, in a competitively
neutral fashion, dialing parity for local exchange service and
interexchange service with the same features, functions and
capabilities that ILEC provides to itself or its Affiliates, and that
it will provide such service as required by the FCC in Implementation
of the Local Competition Provisions of the Telecommunications Act of
1996, so that CLEC's subscribers experience no greater post-dial delay
than similarly-situated ILEC subscribers, and are not required to dial
any greater number of digits than similarly situated ILEC subscribers.
9.11 ILEC warrants that with respect to Local Resale, order entry,
provisioning, installation, trouble resolution, maintenance, customer
care, billing, and service quality will be provided at least as
expeditiously as ILEC provides for itself or for its own retail local
service or to others, or to its Affiliates, and that it will provide
such services to CLEC in a competitively neutral fashion and at a level
of quality which allows CLEC in turn to provide Local Resale at a level
of quality equal to the highest level of quality ILEC provides for
itself for its own retail local service or to others, or to its
Affiliates. ILEC warrants further that it will impose no restrictions
on CLEC's resale of these services unless specifically sanctioned by
the FCC or the Commission.
9.12 ILEC warrants that it will provide on a nondiscriminatory
basis space on its premises for physical or virtual collocation, as
CLEC may specify, consistent with FCC and Commission regulations and
orders, for equipment necessary for CLEC's interconnection and access
to unbundled network elements.
10. NONEXCLUSIVE REMEDIES
10.1 Except as otherwise expressly provided in this Agreement, each
of the remedies provided under this Agreement is cumulative and is in
addition to any remedies that may be available at law or in equity.
10.2 In the event ILEC fails to switch a subscriber to CLEC service
as requested through a CLEC service request, within the intervals set
forth in this Agreement, the continued provision of Telecommunications
Services by ILEC to such subscriber shall be deemed an illegal change
in subscriber carrier selection commencing with the time at which ILEC
failed to switch such subscriber. In such event ILEC shall reimburse
CLEC in an amount equal to all charges paid by such subscriber to ILEC
from the time of such failure to switch to the time at which the
subscriber switch is accomplished. This remedy shall be in addition to
all other remedies available to CLEC under this Agreement or otherwise
available.
This same remedy shall apply in the event that either CLEC or ILEC
makes an unauthorized change in the local exchange service provider of
an end user.
<PAGE>
10.3 All rights of termination, cancellation or other remedies
prescribed in this Agreement, or otherwise available, are cumulative
and are not intended to be exclusive of other remedies to which the
injured Party may be entitled at law or equity in case of any breach or
threatened breach by the other Party of any provision of this
Agreement. Use of one or more remedies shall not bar use of any other
remedy for the purpose of enforcing the provisions of this Agreement.
11. DISPUTE RESOLUTION
11.1 All disputes, claims or disagreements (collectively
"Disputes") arising under or related to this Agreement or the breach
hereof, except those arising pursuant to Attachment 7 Connectivity
Billing, shall be resolved according to the procedures set forth in
Section 11.2 below. Disputes involving matters subject to the
Connectivity Billing provisions contained in Attachment 7, shall be
resolved in accordance with the Billing Disputes section of Attachment
7. The foregoing notwithstanding, the provisions of this Section 11
shall not be construed to prevent either Party from seeking and
obtaining temporary equitable remedies, including temporary restraining
orders. A request by a Party to a court or a regulatory authority for
interim measures or equitable relief shall not be deemed a waiver of
the obligation to comply with the provisions of this Section 11.
11.2 The Parties recognize and agree that the Commission has
continuing-jurisdiction to implement and enforce all terms and
conditions of this Agreement. Accordingly, the Parties agree that any
dispute arising out of or relating to this Agreement that the Parties
themselves cannot resolve, may be submitted to the Commission for
resolution. The Parties agree to seek expedited resolution by the
Commission, and shall request that resolution occur in no event later
than sixty (60) days from the date of submission of such dispute. If
the Commission appoints an expert(s) or other facilitator(s) to assist
in its decision making, the losing party shall pay the fees and
expenses so incurred.
11.3 In cases where the Commission determines that neither Party
has, in some material respect, completely prevailed or lost in a
proceeding, the Commission shall, in its discretion, apportion expenses
to reflect the relative success of each Party. Those fees and expenses
not directly related to a particular proceeding shall be shared
equally. In the event that the Parties settle a dispute before the
Commission reaches a decision with respect to that dispute, the
Settlement Agreement must specify how the fees and expenses for the
particular proceeding will be apportioned.
11.4 During the Commission proceeding each Party shall continue to
perform its obligations under this Agreement; provided, however that
neither Party shall be required to act in any unlawful fashion. This
provision shall not preclude the Parties from seeking relief available
in any other forum.
<PAGE>
12. NONDISCLOSURE/CONFIDENTIALITY AND PROPRIETARY INFORMATION
12.1 All information which is disclosed by one Party to the other
in connection with this Agreement shall automatically be deemed
proprietary to the Discloser and subject to this Agreement, unless
otherwise confirmed in writing by the Discloser. In addition, by way of
example and not limitation, all orders for Local Services, Network
Elements or Combinations placed by CLEC pursuant to this Agreement, and
information that would constitute Customer Proprietary Network
Information of CLEC customers pursuant to the Act and the rules and
regulations of the Federal Communications Commission ("FCC"), and
Recorded Usage Data as described in Attachment 8, whether disclosed by
CLEC to ILEC or otherwise acquired by ILEC in the course of the
performance of this Agreement, shall be deemed Confidential Information
of CLEG for all purposes under this Agreement.
12.2. The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this
Agreement. All such copies shall bear the same copyright and
proprietary rights notices as are contained on the original. Upon
request by the Discloser, the Recipient shall return all tangible
copies within thirty (30) days of Proprietary Information, whether
written, graphic or otherwise, except that the Recipient may retain one
copy for archival purposes. lf either Party loses or makes an
unauthorized disclosure of the other Party's Confidential Information,
it shall notify such other-Party immediately and use reasonable efforts
to retrieve the lost or wrongfully disclosed information.
12.3. For a period of five (5) years from the receipt of
Confidential Information, each Party shall keep all of the other
Party's Proprietary Information confidential and shall use the other
Party's Proprietary Information only for performing the covenants
contained in this Agreement. Neither Party shall use the other Party's
Proprietary Information for any other purpose except upon such terms
and conditions as may be agreed upon between the Parties in writing.
12.4 Unless otherwise agreed, the obligations of confidentiality
and non-use set forth in this Agreement do not apply to such
Proprietary Information as:
12.4.1 was at the time of receipt already known to the
receiving Party free of any obligation to keep it confidential
evidenced by written records prepared prior to delivery by the
disclosing Party; or
12.4.2 is or becomes publicly known through no wrongful act
of the receiving Party; or
12.4.3 is rightfully received from a third person having no
direct or indirect secrecy or confidentiality obligation to
the disclosing Party with respect to such information; or
12.4.4. is independently developed by an employee, agent, or
contractor of the receiving Party which individual is not
involved in any manner with
<PAGE>
the provision of services pursuant to this Agreement and does
not have any direct or indirect access to the Proprietary
Information; or
12.4.5 is disclosed to a third person by the disclosing Party
without similar restrictions on such third person's rights; or
12.4.6 is approved for release by written authorization of the
disclosing Party; or
12.4.7 is required to be made public by the receiving Party
pursuant to applicable law or regulation provided that the
receiving Party shall give sufficient notice of the
requirement to the disclosing Party to enable the disclosing
Party to seek protective orders.
12.5 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration or termination of this Agreement shall
survive such expiration or termination.
12.6 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Agreement by the Recipient or its
representatives and that the Discloser shall be entitled to seek
equitable relief, including injunctive relief and specific performance,
in the event of any breach of the provisions of this Agreement. Such
remedies shall not be deemed to be the exclusive remedies for a breach
of this Agreement, but shall be in addition to all other remedies
available at law or in equity.
12.7 CPNI related to CLEC's subscribers obtained by virtue of Local
Interconnection or any other service provided under this Agreement
shall be CLEC's proprietary information and may not be used by ILEC for
any purpose except performance of its obligations under this Agreement,
and in connection with such performance, shall be disclosed only to
employees with a need to know, unless the CLEC subscriber expressly
directs CLEC to disclose such information to ILEC pursuant to the
requirements of Section 222(c)(2) of the Act. If ILEC seeks and obtains
written approval to use or disclose such CPNI from CLEC's subscribers,
such approval shall be obtained only in compliance with Section
222(c)(2) and, in the event such authorization is obtained, ILEC may
use or disclose only such information as CLEC provides pursuant to such
authorization and may not use information that ILEC has otherwise
obtained, directly or indirectly, in connection with its performance
under this Agreement. CPNI related to ILEC's subscribers obtained by
virtue of Local Interconnection shall be ILEC's proprietary information
and may not be used by CLEC for any purpose except performance of its
obligations under this Agreement, and in connection with such
performance shall be disclosed only to employees with a need to know,
unless the ILEC subscriber expressly directs ILEC to disclose such
information to CLEC pursuant to the requirements of Section 222(c)(2)
of the Act. If CLEC seeks and obtains written approval to use or
disclose such CPNI from ILEC's subscribers, such approval shall be
obtained only in compliance with Section 222(c)(2) of the Act and, in
the event such authorization is obtained, CLEC may use or disclose only
such information as ILEC provides
<PAGE>
pursuant to such authorization and may not use information that CLEC
has otherwise obtained, directly or indirectly, in connection with its
performance under this Agreement.
13. CUSTOMER CREDIT HISTORY
13.1 CLEC and ILEC agree to make available to a designated
third-party credit bureau, on a timely basis, such of the following
customer payment history information that is available for each person
or entity that applies for local or IntraLATA toll Telecommunications
Service(s) from either carrier. Such information shall be provided on
the condition that the credit bureau will only make such information
available to the carrier to which the person or entity in question has
applied for Telecommunication Service.
Applicants name;
Applicant's address;
Applicant's previous phone number; if any;
Amount, if any, of unpaid balance in applicant's name
Whether applicant is delinquent on payments;
Length of service with prior local or IntraLATA toll provider;
Whether applicant had local or IntraLATA toll service
terminated or suspended within the last six months with an
explanation of the reason therefor; and
Whether applicant was required by prior local or IntraLATA
toll provider to pay a deposit or make an advance payment,
including the amount of each.
14. BRANDING
14.1 Services offered by CLEC that incorporate Network Elements or
Combinations made available to CLEG pursuant to this Agreement, and
Local Services that CLEC offers for resale shall, at CLEC's sole
discretion, be branded exclusively as CLEC services, or otherwise, as
CLEC shall determine. CLEC shall provide the exclusive interface to
CLEC Customers in connection with the marketing, offering or provision
of CLEC services, except as CLEC shall otherwise specify. In those
instances where CLEC requires ILEC personnel to interface directly with
CLEC Customers, either orally in person or by telephone, or in writing,
such personnel shall identify themselves as representing CLEC, and
shall not identify themselves as representing ILEC. All forms, business
cards or other business materials furnished by ILEC to CLEC Customers
shall be subject to CLEC's prior review and approval, and shall bear no
corporate name, logo, trademark or trade name other than CLEC's or such
other brand as CLEC shall determine. In no event shall ILEC personnel
acting on behalf of CLEC pursuant to this Agreement provide information
to CLEG local service customers about ILEC products or services. ILEC
shall provide, for CLEC's review and approval, the methods and
procedures, training and approaches to be used by ILEC to ensure that
ILEC meets CLEC's branding requirements. No provision of this
<PAGE>
Section 15 should be interpreted to require ILEC personnel to change
placards on service vehicles or to remove uniforms bearing the ILEC
logo. -
15. PATENTS, TRADEMARKS
15.1. Except for a limited license to use patents or copyrights to
the extent necessary for the Parties to use any facilities or equipment
(including software) or to receive any service solely as provided under
this Agreement, nothing in this Agreement shall be construed as the
grant of a license, either express or implied, with respect to any
patent, copyright, logo, trademark, trade secret or any other
proprietary or intellectual property right now or hereafter owned
controlled or licensable by each Party. CLEC or Reseller may not use
any logo, trademark or other intellectual property right of ILEC
without execution of. a separate agreement between the Parties. It is
the responsibility of each Party to ensure at no additional cost to the
other Party that it has obtained any necessary licenses in relation to
intellectual property of third parties used in its network that may be
required to enable the other Party to use any facilities or equipment
(including software), to receive any service, or to perform its
respective obligations under this Agreement.
15.2 Unless otherwise mutually agreed upon, neither Party shall
publish or use the other Party's logo, trademark, service mark, name,
language, pictures, or symbols or words from which the other Party's
name may reasonably be inferred or implied in any product, service,
advertisement, promotion, or any other publicity matter.
16. PUBLICITY AND ADVERTISING
16.1 Neither Party shall publish or use any advertising, sales
promotions or other publicity materials that use the other Party's
logo, trademarks or service marks without the prior written approval of
the other Party.
17. FORCE MAJEURE
17.1 Except as otherwise specifically provided in this Agreement,
neither Party shall be responsible for any delay or failure in
performance resulting from acts or occurrences beyond the reasonable
control of such Party and without its fault or negligence, regardless
of whether such delays or failures in performance were foreseen or
foreseeable as of the date of this Agreement, including,, without
limitation: fire, explosion, power failure, acts of God, war,
revolution, civil commotion, or acts of public enemies; any law, order,
regulation, ordinance or requirement of any government or legal body;
or labor unrest, including, without limitation, strikes, slowdowns,
picketing or boycotts; or delays caused by the other Party or by other
service or equipment vendors; or any other circumstances beyond the
Party's reasonable control. In such event, the Party affected shall,
upon giving prompt notice to the other Party, be excused from such
performance on a day-to-day basis to the extent of such interference
(and the other Party shall likewise be excused from performance of its
obligations on a day-to-day basis to
<PAGE>
the extent such Party's obligations relate to the performance so
interfered with). The affected Party shall use its best efforts to
avoid or remove the cause of non-performance and both Parties shall
proceed to perform with dispatch once the causes are removed or cease.
In the event of such performance delay or failure by ILEC, ILEC agrees
to resume performance in a nondiscriminatory manner and not favor its
own provision of Telecommunications Services above that of CLEC. For
purposes of this Agreement, Force Majeure shall not include acts of any
Governmental Authority relating to environmental, health or safety
conditions at work locations.
18. WAIVER
18.1 No waiver of any provisions of this Agreement and no consent
to any default under this Agreement shall be effective unless the same
shall be in writing and properly executed by or on behalf of the Party
against whom such waiver or consent is claimed. No course of dealing or
failure of any Party to strictly enforce any term, right, or condition
of this Agreement in any instance shall be construed as a general
waiver or relinquishment on its part of any such provision, but the
same shall, nevertheless, be and remain in full force and effect.
Waiver by either Party of any default by the other Party shall not be.
deemed a waiver of any other default. By entering into this Agreement
CLEC does not waive any right granted to it pursuant to the Act.
19. GOVERNING LAW/COMPLIANCE WITH LAWS
19.1 This Agreement shall be deemed to be a contract made under and
shall be construed, interpreted and enforced in accordance with the
laws of the state of Oregon. Insofar as matters of federal law or
regulation are exclusively concerned, the Parties agree to the
exclusive jurisdiction of the federal court for the state of Oregon.
Issues or matters exclusively arising under state law or regulation may
be heard by the state court which would otherwise have jurisdiction
over such issue or matter. CLEC and ILEC each shall comply at its own
expense with all Applicable Law that relates to (a) its obligations
under or activities in connection with this Agreement; or (b) its
activities undertaken at, in connection with or relating to Work
Locations.
ILEC will be solely responsible for obtaining from governmental'
authorities, building owners, other carriers, and any other persons or
entities, all rights and privileges (including, but not limited to,
space and power), which are necessary for ILEC to provide the Network
Elements and Local Services pursuant to this Agreement.
19.2 ILEC shall be responsible for obtaining and keeping in effect
all Federal Communications Commission, state regulatory commission,
franchise authority and other regulatory approvals that may be required
in connection with the performance of its obligations under this
Agreement. CLEC shall be responsible for obtaining and keeping in
effect all Federal Communications Commission, state regulatory
commission, franchise authority and other regulatory approvals that
<PAGE>
may be required in connection with its offering of services to CLEC
Customers contemplated by this Agreement. CLEC shall reasonably
cooperate with ILEC in obtaining and maintaining any required approvals
for which ILEC is responsible, and ILEC shall reasonably cooperate with
CLEC in obtaining and maintaining any required approvals for which CLEC
is responsible.
19.3 In the event that ILEC is required by any governmental
authority to file a tariff or make another similar filing in connection
with the performance of any action that would otherwise be governed by
this Agreement, ILEG shall (a) consult with CLEC reasonably in advance
of such filing about the form and substance of such filing, (b) provide
to CLEC its proposed tariff prior to, or at the time of, such filing,
and (c) take all steps reasonably necessary to ensure that such tariff
or other filing imposes obligations upon ILEC that are identical to
those provided in this Agreement and preserves for CLEC the full
benefit of the rights otherwise provided in this Agreement.
19.4 If, subsequent to the effective date of any such tariff, ILEC
is ordered not to file tariffs with the State regulatory commission or
the Federal Communications Commission, or is permitted not to file
tariffs (and elects not to do so), either generally or for specific
Network Elements, Combinations or Local Services, the terms and
conditions of such tariffs as of the date on which the requirement to
file such tariffs was lifted shall, to the degree not inconsistent
with-this Agreement, be deemed incorporated in this Agreement by
reference.
19.5 In the event that any final and nonappealable legislative,
regulatory, judicial or other legal action materially affects any
material terms of this Agreement, or the ability of CLEC or ILEC to
perform any material terms of this Agreement, CLEC or ILEC may, on
thirty (30) days' written notice (delivered not later than thirty (30)
days following the date on which such action has become legally binding
and has otherwise become final and nonappealable) require that such
terms be renegotiated, and the Parties shall renegotiate in good faith
such mutually acceptable new terms as may be required. ln the event
that such new terms are not renegotiated within ninety (90) days after
such notice, the Dispute shall be referred to the Alternative Dispute
Resolution procedures set forth in Section 11 above.
19.6 The Parties shall incorporate into this Agreement the
Commission's decision in Docket UT 132 concerning intraLATA dialing
parity, as well as any price or contract provision modified as a result
of the Commission's reconsideration of, or an appeal of, Commission
Order No. 97-003 in ARB 3/ARB 6 (entered January, 6, 1997). The Parties
shall negotiate mutually acceptable terms for implementing each such
decision within ninety (90) days after it is entered notwithstanding
the time frames established in the preceding paragraph.
<PAGE>
20. NO THIRD-PARTY BENEFICIARIES
20.1 Except as may be specifically set forth in this Agreement,
this Agreement does not provide and shall not be construed to provide
third parties with any remedy, claim, liability, reimbursement, cause
of action, or other privilege.
21. RESPONSIBILITY OF EACH PARTY
21.1 Each Party is an independent contractor, and has and hereby
retains the right to exercise full control of and supervision over its
own performance of its obligations under this Agreement and retains
full control over the employment, direction, compensation and discharge
of all employees assisting in the performance of such obligations. Each
Party will be solely responsible for all, matters relating to payment
of such employees, including compliance with social security taxes,
withholding taxes and all other regulations governing such matters.
Each Party will be solely responsible for proper handling, storage,
transport and disposal at its own expense of all (a) substances or
materials that it or its contractors or agents bring to, create or
assume control over at Work Locations, or (b) Waste resulting therefrom
or otherwise generated in connection with its or its contractors' or
agents' activities at the Work Locations. Subject to the limitations on
liability and except as otherwise provided in this Agreement, each
Party shall be responsible for (x) its own acts and performance of all
obligations imposed by Applicable Law in connection with its
activities, legal status and property, real or personal and, (y) the
acts of its own Affiliates, employees, agents and contractors during
the performance of that Party's obligations hereunder.
22. ASSIGNMENT/SUBCONTRACTING
22.1 Neither Party may assign any of its rights or delegate any of
its obligations under this Agreement without the prior written consent
of the other Party which will not be unreasonably withheld.
Notwithstanding the foregoing, ILEC may assign its rights and benefits
and delegate its duties and obligations under this Agreement without
the consent of GLEC to a 100 percent owned affiliate company of ILEC,
provided that the performance of any such assignee is guaranteed by the
assignor. Any prohibited assignment or delegations shall be null and
void.
22.2 Neither Party may subcontract the performance of any
obligation under this Agreement without the prior written consent of
the other Party which shall not be unreasonably withheld. If any
obligation is performed through a subcontractor, ILEC shall remain
fully responsible for the performance of this Agreement in accordance
with its terms, including any obligations it performs through
subcontractors, and ILEC shall be solely responsible for payments due
its subcontractors. No contract, subcontract or other Agreement entered
into by either Party with any third Party in connection with the
provision of Local Services or Network Elements hereunder shall provide
for any indemnity, guarantee or assumption of liability by, or other
obligation of, the other Party to
<PAGE>
this Agreement with respect to such arrangement, except as consented
to in writing by the other Party. No subcontractor shall be deemed a
third party beneficiary for any purposes under this Agreement.
23. ENTIRE AGREEMENT
23.1 This Agreement which shall include the Attachments, Appendices
and other documents referenced herein constitutes the entire agreement
between the Parties and supersedes all prior oral or written
agreements, representations, statements, negotiations, understandings,
proposals and undertakings with respect to the subject matter hereof.
24. SEVERABILITY
25.1 Subject to Section 19, Governing Law/Compliance with Laws, if
any term, condition or provision of this Agreement is held to be
invalid or unenforceable for any reason, such invalidity or
unenforceability shall not invalidate the entire Agreement, unless such
construction would be unreasonable. This Agreement shall be construed
as if it did not contain the invalid or unenforceable provision or
provisions, and the rights and obligations of each Party shall be
construed and enforced accordingly; provided, however, that in the
event such invalid or unenforceable provision or provisions are
essential elements of this Agreement-and substantially impair the
rights or obligations of either Party, the Parties shall promptly
negotiate a replacement provision or provisions.
25. AMENDMENTS
25.1 Except as otherwise provided in this Agreement, no amendment
or waiver of any provision of this Agreement, and no consent to any
default under this Agreement, shall be effective unless the same is in
writing and signed by an officer of the Party against whom such
amendment, waiver or consent is claimed. In addition, no course of
dealing or failure of a Party strictly to enforce any term, right or
condition of this Agreement shall be construed as a waiver of such
term, any right granted to it pursuant to the Act, right or condition.
By entering into this Agreement CLEC does not waive any right granted
to it pursuant to the Act.
26. HEADINGS OF NO FORCE OR EFFECT
26.1 - The headings of Articles and Sections of this Agreement are
for convenience of reference only, and shall in no way define, modify
or restrict the meaning or interpretation of the terms or provisions of
this Agreement.
27. NOTICES
27.1 Any notices or other communications required or permitted to
be given or delivered under this Agreement shall be in hard-copy
writing (unless otherwise specifically provided herein) and shall be
sufficiently given if delivered personally,
<PAGE>
by certified U. S. Mail or delivered by prepaid overnight express
service to the following (unless otherwise specifically required by
this Agreement to be delivered to another representative or point of
contact):
CLEC
F. Lynne Powers
Vice President-- Finance
J. Jeffrey Oxley-- Director of Regulatory Affairs
Advanced Telecommunications, Inc.
710 Second Avenue South, Suite 1200
Minneapolis, MN 55402
Phone:(612)519--6642
Fax: (612)376-4414
Copy to: Brian Robinson
ARTER & HADDEN LLP
1801 K Street, NW., Suite 400K
Washington, DC 20006
Phone:(202) 775-7126
Fax: (202) 857-0172
ILEC
U S WEST Communications, Inc.
Director - Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
with a copy to:
U S WEST Law Department
Attention: General Counsel
Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
27.2 Either Party may unilaterally change its designated
representative and/or
address for the receipt of notices by giving seven (7) days' prior
written notice to the other Party in compliance with this Section. Any
notice or other communication shall be deemed given when received.
28. JOINT WORK PRODUCT
28.1 This Agreement is the joint work product of representatives of
the Parties. For convenience, it has been drafted in final form by one
of the Parties. Accordingly, in the event of ambiguities, no inferences
will be drawn against either Party solely on the basis of authorship of
this Agreement.
<PAGE>
29. EXECUTED IN COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original; but such counterparts shall
together constitute one and the same instrument.
30. REFERENCED DOCUMENTS
30.1 Whenever any provision of this Agreement refers to a technical
reference, technical publication, CLEC Practice, ILEC Practice, any
publication of telecommunications industry administrative or technical
standards, or any other document specifically incorporated into this
Agreement, it will be deemed to be a reference to the most recent
version or edition (including any amendments,. supplements, addenda, or
successors) of such document that is in effect, and will include the
most recent version or edition (including any amendments, supplements,
addenda, or successors) of each document incorporated by reference in
such a technical reference, technical publication, CLEC Practice, ILEC
Practice, or publication of industry standards (unless CLEC elects
otherwise). Should there be an inconsistency between or among
publications or standards, CLEC shall elect which requirement shall
apply.
31. SURVIVAL
32.1 Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this Agreement;
any obligation of a Party under the provisions regarding
indemnification, Confidential Information, limitations on liability,
and any other provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination of this
Agreement, shall survive cancellation or termination thereof.
32. SUCCESSORS AND ASSIGNS
32.1 This Agreement shall be binding upon, and inure to the benefit
of, the Parties hereto and their respective successors and permitted
assigns.
PART II: LOCAL SERVICES RESALE
33. INTRODUCTION
33.1 - At the request of CLEC, and pursuant to the requirements of
the Act, ILEC will make available to CLEC for resale any
Telecommunications Service that LEG currently provides, or may offer
hereafter. ILEC shall also provide Support Functions and Services
Functions as set forth in the Attachments to this Agreement. The
Telecommunications Services, Service Functions and Support Functions
provided by ILEC pursuant to this Agreement are collectively referred
to as "Local Service." This Part, in summary form, and Attachment 2, in
detail, describe several services which ILEC shall make available to
CLEC for resale pursuant to this Agreement. These lists are neither all
inclusive nor exclusive.
<PAGE>
34. LOCAL SERVICES RESALE
34.1 General
ILEC shall apply the principles set forth in 47 C.F.R. Section 64.1100
to the process for end-user selection of a primary local exchange
carrier. The prices charged to CLEC for Local Service shall be
wholesale rates determined on the basis of retail rates charged to
subscribers for the telecommunications service requested excluding the
portion thereof attributable to any marketing, billing, collection and
other costs that will be avoided by ILEC. Except `as limited by
Attachment 2, CLEC may resell Local Services to provide
Telecommunications Services to any and all classes of end-users except
for resale of residential service to other classes of customers if this
exception is authorized by the Commission. ILEC shall ensure that all
CLEC Customers experience the same dialing parity as similarly-situated
customers of ILEC services. ILEC will notify CLEC of any changes in the
terms and conditions under which it offers telecommunications services
at retail to subscribers who are not telecommunications service
providers or carriers.
34.2 Specific Services
(a) At CLEC's option, CLEC may purchase the entire set of
CENTREX features or a subset of any one or any combination of
such features, tariffed or non-tariffed.
(b) CLEC may purchase the entire set of CLASS and Custom
features and functions, a subset of or any combination of such
features.
(c) Local Services include certain Voluntary Federal Customer
Financial Assistance Programs.
(d) ILEC shall provide E91 I and 911 Service to CLEC, for
CLEC's customers.
(e) Where ILEC provides Telephone Relay Service, ILEC shall
make such service available to CLEC at no additional charge,
for use by CLEC Customers who are speech or hearing-impaired.
(f) CLEC may purchase the entire set of Advance Intelligent
Network ("AIN") features or functions, or a subset or any one
or any combination of such features or functions, on a
customer-specific basis subject to protection of network
reliability and security.
34.3. Support Functions
(a) Routing to Directory Assistance, Operator and Repair
Services.
(b) Busy Line Verification and Emergency Line Interrupt.
<PAGE>
(c) Access to the Line Information Database. -
(d) Telephone line number calling cards.
34.4. Service Functions
(a) ILEC shall provide an electronic interface for
transferring and receiving Service Orders and Provisioning
data and materials as outlined in the Attachments hereto on or
before January 1, 1997.
(b) Work order processes shall meet service parity
requirements.
(c) The point of contact for CLEC customers shall be CLEC.
(d) Each Party shall provide the other Party with a single
point of contact for all inquiries regarding the
implementation of this Part.
(e) CLEC's representative will have real-time access to ILEC
Customer information to enable the CLEC representative to
perform tasks outlined on Attachments 2, 5, 6, and 9.
(f) After receipt and acceptance of a Service Order, ILEC
shall provision such Service Order in accordance with the
Intervals and service quality standards referenced in
Attachment 11.
(g) Maintenance shall be provided in accordance with the
requirements and standards referenced in Attachments 6 and 11.
(h) ILEC shall provide the Customer Usage Data recorded by
ILEC in accordance with the requirements and standards set
forth in Attachment 8.
(i) In addition to testing described elsewhere in this Section
and Attachment 3, ILEC shall test the systems used to perform
the functions set forth in Attachment 2 at least sixty (60)
days prior to commencement of ILEC's provision of Local
Service, in order to establish system readiness capabilities.
(j) ILEC shall bill CLEC for Local Service provided by ILEC to
CLEC pursuant to the terms of this Part and Schedules 1 and 2.
ILEC shall recognize CLEC as the customer of record for all
Local Service and will send all notices, bills and other
pertinent information directly to CLEC.
<PAGE>
PART III: UNBUNDLED NETWORK ELEMENTS
35. INTRODUCTION
35.1 This Part III sets forth the unbundled Network Elements that
ILEC agrees to offer to CLEC in accordance with its obligations under
Section 251(c)(3) of the Act. The specific terms and conditions that
apply to the unbundled Network Elements are described below and in the
Network Elements Service Description Attachment. The price for each
Network Element is set forth in Part IV of this Agreement.
36. UNBUNDLED NETWORK ELEMENTS
ILEC will offer Network Elements to CLEC on an unbundled basis
on rates, terms and conditions that are just, reasonable, and
non-discriminatory in accordance with the terms and conditions of this
Agreement, the Oregon Statutes and Regulations and the requirements of
Section 251 and Section 252 of the Federal Act. Unbundling of subloop
Network Elements shall not be subject to the Bona Fide Request Process
set forth in Section 36.12 below because ILEC is specifically required
to provide unbundling of subloop Network Elements to CLEC by order of
the Commission.
ILEC will permit CLEC to interconnect CLEC's facilities or
facilities provided by CLEC or by third parties with each of ILEC's
unbundled Network Elements at any point designated by CLEC that is
technically feasible.
CLEC, at its option, may designate any technically feasible
network interface at a Served Premises, including without limitation,
DS-0, DS-1, DS-3, STS-1, and OC-n (where n equals I to C) interfaces,
and any other interface described in the applicable technical
references.
CLEC may use one or more Network Elements to provide any
feature, function, or service option that such Network Element is
capable of providing or any feature, function, or service option that
is described in the technical references identified herein, or as may
otherwise be determined by CLEC.
ILEC shall offer each Network Element individually and in
combination with any other Network Element or Network Elements in order
to permit CLEC to combine such Network Element or Network Elements with
another Network Element or other Network Elements obtained from ILEC or
with network components provided by itself or by third parties to
provide telecommunications services to its customers.
For each Network Element, ILEC shall provide a demarcation
point (e.g., an interconnection point at a Digital Signal Cross Connect
or Light Guide Cross Connect panel or a Main Distribution Frame) and,
if necessary, access to such demarcation point, which CLEC agrees is
suitable. However, where ILEC provides contiguous Network Elements to
CLEC, ILEC may provide the existing
<PAGE>
interconnections and no demar6ation point shall exist between such
`contiguous Network Elements.
ILEC shall not charge CLEC an interconnection fee or demand
other consideration for directly interconnecting any Network Element or
Combination to any other Network Element or Combination provided by
ILEC to CLEC if ILEC directly interconnects the same two Network
Elements or Combinations in providing any service to its own customers
or an ILEC Affiliate, including the use of intermediate devices, such
as a digital signal cross connect panel, to perform such
interconnection.
The total charge to CLEC to interconnect any Network Element
or Combination to any other Network Element or Combination provided by
ILEC to CLEC if ILEC does not directly interconnect the same two
Network Elements or Combinations in providing any service to its own
customers or an ILEC Affiliate (e.g., the interconnection required to
connect the Loop Feeder to an ILEC's collocated equipment), shall be
ILEC's total service long-run incremental cost of providing the
interconnection.
Subsections 1 through 11 below list the Network Elements that
CLEC and ILEC have identified as of the Effective Date of this
Agreement. CLEC and ILEC agree that the Network Elements identified in
this Part II are not exclusive.. Either Party may identify additional
or revised Network Elements as necessary to improve services to
customers, to improve network or service efficiencies or to accommodate
changing technologies, customer demand, or regulatory requirements.
Upon the identification of a new or revised Network Element, the Party
so identifying the new or revised Network Element shall notify the
other Party of the existence of and the technical characteristics of
the new or revised Network Element. If the Parties do not agree on the
existence of and the technical characteristics of the newly identified
or revised Network Element, any issues that have not been resolved by
the Parties within thirty days of notification shall be submitted to
the Dispute Resolution Procedures as set forth in this Agreement.
Within thirty (30) days of CLEC and ILEC agreeing on the technical
characteristics of the new or revised Network Element, the Parties will
attempt to agree on the rates, terms and conditions that would apply to
such Network Element and the effects, if any, on the price, performance
or other terms and conditions of existing Network Elements. If the
Parties do not agree on rates, terms and conditions and other matters
set forth herein, any issues that have not been resolved by the Parties
within thirty days shall be submitted to the Dispute Resolution
Procedures as set forth in this Agreement. Additionally, if ILEC
provides any Network Element that is not identified in this Agreement,
to itself, to ILEC's own customers, to an ILEC Affiliate or to any
other entity, ILEC will provide the same Network Element to CLEC on
rates, terms and conditions no less favorable to CLEC than those
provided to itself or to any other party. The Network Elements are
described below. Additional descriptions and requirements for each
Network Element are set forth in Attachment 3.
<PAGE>
36.1 Loop Distribution
"Loop Distribution" is a Network Element that is composed of
two distinct component parts: a Network Interface Device and
Distribution Media.
36.2 Network Interface Device
The "Network Interface Device (NID)" is a single-line
termination device or that portion of a multiple-line termination
device required to terminate a single line or circuit. The fundamental
function of the NID is to establish the official network demarcation
point between a carrier and its end-user customer. The NID features two
independent chambers or divisions which separate the service provider's
network from the customer's inside wiring. Each chamber or division
contains the appropriate connection points or posts to which the
service provider; and the end-user customer each make their
connections. The NID provides a protective ground connection, and is
capable of terminating cables such as twisted pair cable.
36.3 Distribution Media
"Distribution Media" provides connectivity between the NID
component of Loop Distribution and the terminal block on the
customer-side of a Feeder Distribution lnterface (FDI). The FDI is a
device that terminates the Distribution Media and the Loop Feeder, and
cross-connects them in order to provide a continuous transmission path
between the NID and a telephone company central office. For loop plant
that contains a Loop Concentrator/Multiplexer, the Distribution Media
may terminate at the FDI (if one exists), or at a termination and
cross-connect field associated with the Loop Concentrator/Multiplexer.
This termination and cross-connect field may be in the form of an
outside plant distribution closure, remote terminal or fiber node, or
an underground vault.
The Distribution Media may be copper twisted pair, coax cable,
or single or multi-mode fiber optic cable. A combination that includes
two or more of these media is also possible. In certain cases, CLEC may
require a copper twisted pair Distribution Media even in instances
where the Distribution Media for services that ILEC offers is other
than a copper facility. In such cases, CLEC must compensate ILEC for
all additional costs related to providing the copper facility.
36.4 Loop Concentrator/Multiplexer
The "Loop Concentrator/Multiplexer" is the Network Element
that: (a) aggregates lower bit rate or bandwidth signals to higher bit
rate or bandwidth signals (multiplexing); (b) disaggregates higher bit
rate or bandwidth signals to lower bit rate or bandwidth signals
(demultiplexing); (c) aggregates a specified number of signals or
channels to fewer channels (concentrating); (d) performs signal
conversion, including encoding of signals (e.g., analog to digital and
digital to analog signal conversion); and (e) in some instances
performs electrical to optical (E/O) conversion.
<PAGE>
The Loop Concentrator/Multiplexer function may be provided
through a Digital Loop Carrier (DLC) system, channel bank, multiplexer
or other equipment at which traffic is encoded and decoded, multiplexed
and demultiplexed, or concentrated.
36.5 Loop Feeder
The "Loop Feeder" is the Network Element that provides
connectivity between (a) an FDI associated with Loop Distribution and a
termination point appropriate for the media in a central office, or (b)
a Loop Concentrator/Multiplexer provided in a remote terminal and a
termination point appropriate for the media in a central office. ILEC
shall provide CLEC physical access to the FDI, and the right to connect
the Loop Feeder to the FDI.
The physical medium of the Loop Feeder may be copper twisted
pair, or single or multi-mode fiber as designated by CLEC. In certain
cases, CLEC will require a copper twisted pair loop even in instances
where the medium of the Loop Feeder for services that ILEC offers is
other than a copper facility. In such cases, CLEC must compensate ILEC
for all additional costs related to providing the copper facility.
36.6 Local Switching
"Local Switching" is the Network Element that provides the
functionality required to connect the appropriate originating lines or
trunks wired to the Main Distributing Frame (MDF) or Digital Cross
Connect (DSX) panel to a desired terminating line or trunk. Such
functionality shall include all of the features functions, and
capabilities that the underlying ILEC switch that is providing such
Local Switching function is then capable of providing, including but
not limited to: line signaling and signaling software, digit reception,
dialed number translations call screening, routing, recording, call
supervision, dial tone, switching, telephone number provisioning,
announcements, calling features and capabilities (including call
processing), Gentrex, Automatic Call Distributor (ACD), Carrier
pre-subscription (e.g. long distance carrier, intraLATA toll), Carrier
Identification Code (GIG) portability capabilities, testing and other
operational features inherent to the switch and switch software. It
also provides access to transport, signaling (ISDN) User Part (ISUP)
and Transaction Capabilities Application Part (TCAP), and platforms
such as adjuncts, Public Safety Systems (911), operator services,
directory services and Advanced Intelligent Network (AIN). Remote
Switching Module functionality is included in the Local Switching
function. The switching capabilities used will be based on the line
side features they support. Local Switching will also be capable of
routing local, intraLATA, interLATA, and calls to international
customer's preferred carrier; call features (e.g., call forwarding) and
Centrex capabilities.
<PAGE>
Local Switching also includes Data Switching, which provides:
For Asynchronous Transfer Mode (ATM) and Frame Relay Service,
data services switching functionality that is required to connect the
facilities from the User to Network Interface (UNI) to either another
UNI or to a communications path at the Network to Network Interface (NN
I). In this case, the purpose of Data Switching is to terminate,
concentrate, and switch data traffic from Customer Premises Equipment
(CPE) in the digital format consistent with the UNI specification for
the customer. Data Switching also provides connectivity for the purpose
of conveying the customer data to its final destination. The UNI and
NNI are industry standard interface specifications that contain
physical transmission layer requirements for speeds and line formats;
data link layer requirements for the format of the data units that are
passed between the user and the network; and protocol requirements for
control procedures used in managing the interface. Data Switching
provides this functionality in two distinct formats, ATM and Frame
Relay.
For ISDN Packet and Circuit Switched Data service, the data
switching functionality that is required to connect between industry
standard ISDN interfaces. In this case, the purpose of Data Switching
is to terminate, concentrate, and switch data traffic from Customer
Premises Equipment (CPE) in the digital format consistent with ISDN
standards. Data Switching also-provides connectivity for the purpose of
conveying the customer data to its final destination.
36.7 Operator Systems
"Operator Systems" is the Network Element that provides
operator and automated call handling and billing, special services,
customer telephone listings and optional call completion services. The
Operator Systems, Network Element provides two types of functions:
Operator Service functions and Directory Service functions, each of
which are described below.
Operator Service provides: (a) operator handling for call
completion (for example, collect, third number billing, and manual
credit card calls), (b) operator or automated assistance for billing
after the customer has dialed the called number (for example, credit
card calls); and (c) special services including but not limited to Busy
Line Verification and Emergency Interrupt (BLV/EI), Emergency Agency
Call, Operator-assisted Directory Assistance, and Rate Quotes.
Directory Service provides local customer telephone number
listings with the option to complete the call at the callers direction.
36.8 Transport
"Common Transport" is an interoffice transmission path between
ILEC Network Elements. Where ILEC Network Elements are connected by
intra-office wiring, such wiring is provided as a part of the Network
ELEMENTS AND IS NOT Common Transport.
<PAGE>
"Dedicated Transport" is an interoffice transmission path
between CLEC designated locations. Such locations may include ILEC
central offices or other equipment locations, CLEC network components,
other carrier network components, or customer premises. Dedicated
Transport includes the Digital Cross-Connect System (DCS) functionality
as an option.
"Signaling Link Transport" is a set of two or four dedicated
56 Kbps. transmission paths between CLEC-designated Signaling Points of
Interconnection (SPOI) that provides appropriate physical diversity.
36.9 Signaling Transfer Points
"Signaling Transfer Points" is a signaling network function
that includes all of the capabilities provided by the signaling
transfer point switches (STPSs) and their associated signaling links
which enable the exchange of SS7 messages among and between switching
elements, database elements and signaling transfer points.
36.10 Tandem Switching
"Tandem Switching" is the function that establishes a
communications path between two switching offices through a third
switching office (the tandem switch).
36.11 Standards for Network Elements
Each Network Element shall be equal to or better than the
requirements set forth in the technical references, as well as any
performance or other requirements, identified herein. If another Bell
Communications Research, Inc. ("Bellcore"), or industry standard (e.g.,
American National Standards Institute ("ANSI") technical reference or a
more recent version of such reference sets forth a different
requirement, CLEC may elect, where technically feasible, which standard
shall apply.
Each Network Element and the interconnections between Network
Elements provided by ILEC to CLEC shall be at least equal in the
quality of design, performance, features, functions and other
characteristics, including but not limited to levels and types of
redundant equipment and facilities for power, diversity and security,
that ILEC provides in the ILEC network to itself, ILEC's own customers,
to an ILEC Affiliate or to any other entity.
ILEC shall provide to CLEC, upon reasonable request, such
engineering, design, performance and other network data sufficient for
CLEC to determine that the requirements of this Section 36 are being
met. In the event that such data indicates that the requirements of
this Section 36 are not being met, ILEC shall, within 10 days, cure any
design, performance or other deficiency and provide new data sufficient
for CLEC to determine that such deficiencies have been cured.
<PAGE>
ILEC. agrees to work cooperatively with CLEC to provide
Network Elements that will meet CLEC's needs in providing services to
its customers.
Unless otherwise designated by CLEC, each Network Element and
the interconnections between Network Elements provided by ILEC to CLEC
shall be made available to CLEC on a priority basis that is equal to or
better than the priorities that ILEC provides to itself, ILEC's own
customers, to an ILEC Affiliate or to any other entity.
36.12 Bona Fide Request Process
36.12.1 Any request for interconnection or access to an
unbundled Network Element that is not already available via
price lists, tariff, or as described herein shall be treated
as a Request under this Section.
36.12.2 ILEC shall use the Bona Fide Request (BFR) Process to
determine the technical feasibility of the requested
interconnection of Network Element(s) and, for those items
found to be technically feasible, to provide the terms and
timetable for providing the requested items. Additionally,
elements, services, and functions which are materially or
substantially different from those services, elements or
functions already. provided by ILEC to itself, its Affiliates,
customers, or end users may, at the discretion of CLEC, be
subject to this BFR process.
36.12.3 A Request shall be submitted in writing and, at a
minimum, shall include: (a) a complete and accurate technical
description of each requested Network Element or
interconnection; (b) the desired interface specifications; (c)
a statement that the interconnection or Network Element will
be used to provide telecommunications service; (d) the
quantity requested; (e) the location(s) requested; and (f)
whether CLEC wants the requested item(s) and terms made
generally available.
36.12.4 Within forty-eight (48) hours of receipt of a Request,
ILEC shall acknowledge receipt of the Request and review such
request for initial compliance with 36.12.3 above and in its
acknowledgment advise CLEC of any missing information
reasonably necessary to move the Request to the preliminary
analysis described in 36.12.5 below.
36.12.5 Unless otherwise agreed to by the Parties, within
thirty (30) calendar days of its receipt of the Request and
all information necessary to process it, ILEC shall provide to
CLEC a preliminary analysis of the Request. During the thirty
(30) day period, ILEC agrees to provide weekly status updates
to CLEC. ILEC will notify CLEC if the quote preparation fee,
if any, will exceed $5,000. CLEC will approve the continuation
of the development of the quote prior to ILEC incurring any
reasonable additional expenses. The preliminary analysis shall
specify whether or not the requested interconnection or access
to an unbundled Network
<PAGE>
Element is technically feasible and otherwise qualifies as a
Network Element or interconnection as defined under the Act.
36.12.5.1 If ILEC determines during the thirty (30)
day period that a Request is not technically feasible
or that the Request otherwise does not qualify as a
Network Element or interconnection that is required
to be provided under the Act, ILEC shall so advise
CLEC as soon as reasonably possible, and promptly
provide a written report setting forth the basis for
its conclusion in no case later than ten (10)
calendar days after making such determination.
36.12.5.2 If ILEC determines during the thirty (30)
day period that the Request is technically feasible
and otherwise qualifies under the Act, it shall
notify CLEC in writing of such determination in no
case later than ten (10) calendar days after making
such determination.
36.12.5.3 Unless otherwise agreed to by the Parties,
as soon as feasible, but no more than ninety (90)
calendar days after ILEC notifies CLEC that, the
Request is technically feasible, ILEC shall provide
to CLEC a Request quote which will include, at a
minimum, a description of each interconnection and
Network Element, the quantity to be provided, the
installation intervals (both initial and subsequent),
the impact on shared systems software interfaces,
ordering process changes, functionality
specifications, any interface specifications, and
either:
36.12.5.3.1 the applicable rates (recurring
and nonrecurring) including the amortized
development costs, as appropriate, of the
interconnection or the Network Element; or
36.12.5.3.2 the payment for development
costs, as appropriate, of the
interconnection or Network Element and the
applicable rates (recurring and
nonrecurring) excluding the development
costs.
36.12.5.4 The choice of using option 36.12.5.3.1 or
36.12.5.3.2 shall be at ILEC's sole discretion.
However, a payment for development cost is
appropriate only where CLEC is the only conceivable
user of the functionality (including consideration of
ILEC as a potential user) or where the requested
quantity is insufficient to provide amortization.
36.12.6 If ILEC has used option 36.12.5.3.1 in its Request
quote, then within thirty (30) days of its receipt of the
R6quest quote, CLEC. must indicate its non-binding interest in
purchasing the interconnection or Network Element at the
stated quantities and rates, cancel its Request, or seek
remedy under the Dispute Resolution section of this Agreement.
<PAGE>
36.12.7 If ILEC has used option 36.12.5;3.2 in its Request
quote, then, within thirty (30) days of its receipt of the
Request quote CLEC must either agree to pay the development
costs of the interconnection of Network Element, cancel its
Request, or seek remedy under the Dispute Resolution section
of this Agreement.
36.12.8 If ILEC has used option 36.12.5.3.2 in its Request
quote and CLEC has accepted the quote, CLEC may cancel the
Request at any time, but will pay ILEC's reasonable
development costs of the interconnection or Network Element
up to the date of the cancellation.
36.12.9 ILEC will use reasonable efforts to determine the
technical feasibility and conformance with the Act of the
Request within the first thirty-two (32) days of receiving
the Request. In the event ILEC has used option 36.12.5.3.2 in
its Request quotes and ILEC later determines that the
interconnection or Network Element requested in the Request
is not technically feasible or otherwise does not qualify
under the Act, ILEC shall notify CLEC within ten (10)
business days of making such determination and CLEC shall not
owe any compensation to ILEC in connection with the Request.
Any quotation preparation fees or development costs paid by
CLEC to the time of that notification shall be refunded by
ILEC. -
36.12.10 To the extent possible, ILEC will utilize
information from previously developed BFRs to address similar
arrangements in order to shorten the response times for the
currently requested BFR. In the event CLEC has submitted a
Request for an interconnection or a Network Element and ILEC
determines in accordance with the provisions of this Section
36.12, that the Request is technically feasible, the Parties
agree that CLEC's subsequent request or order for the
identical type of interconnection or Network Element shall
not be subject to the BFR process.
36.12.11 In the event of a dispute under this Section 36.12,
the Parties agree to seek expedited Commission resolution of
the dispute, with a request to the Commission to be completed
within twenty (20) days of ILEC's response that declined
CLEC's BFR, and in no event more than thirty (30) days after
the filing of CLEC's petition.
PART IV: ANCILLARY FUNCTIONS
37. INTRODUCTION
This Part IV sets forth the Ancillary Functions that ILEC agrees to
offer to CLEC so that CLEC may obtain and use unbundled Network Elements or ILEC
services to provide services to its customers.
<PAGE>
38. ILEC PROVISION OF ANCILLARY FUNCTIONS
ILEC will offer Ancillary Functions to CLEC on rates, terms and
conditions that are just, reasonable, and non-discriminatory and in accordance
with the terms and conditions of this Agreement.
ILEC will permit CLEC to interconnect CLEC's equipment and facilities
or equipment and facilities provided by CLEC or by third parties at any point
designated by CLEC that is technically feasible.
CLEC may use any Ancillary Function to provide any feature, function,
or service option that such Ancillary Function is capable of providing or any
feature, function, or service option that is described in the technical
references identified herein, or as may otherwise be designated by CLEC.
Subsections 38.1 through 38.3 below list the Ancillary Functions that
CLEC and ILEC have identified as of the Effective Date of this Agreement. CLEC
and ILEC agree that the Ancillary Functions identified in this Part IV are not
exclusive. Either Party may identify additional or revised Ancillary Functions
as necessary to improve services to customers, to improve network or service
efficiencies or to accommodate changing technologies, customer demand, or
regulatory requirements. Upon the identification of a new or revised Ancillary
Function, the Party so identifying the new or revised Ancillary Function shall
notify the other Party of the existence of and the technical characteristics of
the new or revised Ancillary Function. If the Parties do not agree on the
existence of and the technical characteristics of the newly identified or
revised Ancillary Function, any issues that have not been resolved by the
Parties within thirty days of notification shall be submitted to the Dispute
Resolution Procedures as set forth in Section 11 above. Within thirty (30) days
of CLEC and ILEC agreeing on the technical characteristics of the new or revised
Ancillary Function, the Parties will attempt to agree on the rates, terms and
conditions that would apply to such Ancillary Function and the effects, if any,
on the price, performance or other terms and conditions of existing Network
Elements or Ancillary Functions. If the parties do not agree on rates, terms,
and conditions and other matters set forth herein, any issues that have not been
resolved by the Parties within thirty (30) days shall be submitted to the
Dispute Resolution Procedures as set forth in this Agreement. Additionally, if
ILEC provides any Ancillary Function that is not identified in this Agreement to
itself, to its own customers, to an ILEC Affiliate or to any other entity, ILEC
will provide the same Ancillary Function to CLEC at rates, terms and conditions
no less favorable to CLEC than those provided by ILEC to itself or to any other
party. The Ancillary Functions are described below. Additional descriptions, and
requirements for each Ancillary Function are set forth in Attachment 4.
38.1 Collocation
"Collocation" is the right of CLEC to obtain dedicated space
in the ILEC Local Serving Office (LSO) or at other ILEC locations and
to place equipment in such spaces to interconnect with the ILEC
network. Collocation also includes ILEC providing resources necessary
for the operation and economical use of collocated equipment.
<PAGE>
38.2 Right of Way (ROW), Conduits and Pole Attachments
"Right of Way (ROW)" is the right to use the land or other
property of another party to place poles, conduits, cables, other
structures and equipment, or to provide passage to access such
structures and equipment. A ROW may run under, on, or above public or
private property (including air space above public or private
property) and may include the right to use discrete space in
buildings, building complexes or other locations.
"Conduit" is a tube or protected trough that may be used to
house communication or electrical cables. Conduit may be underground
or above ground (for example, inside buildings) and may contain one or
more inner ducts..
"Pole Attachment" is the connection of a facility to a
utility pole. Some examples of facilities are mechanical hardware,
grounding and transmission cable, and equipment boxes.
38.3 Unused Transmission Media
"Unused Transmission Media" is physical inter-office
transmission media (e.g., optical fiber, copper twisted pairs, coaxial
cable) which has no lightwave or electronic transmission equipment
terminated to such media to operationalize its transmission
capabilities. This media may exist in aerial or underground structure
or within a building.
Dark Fiber, one type of unused transmission media, is unused
strands of optical fiber. Dark Fiber also includes strands of optical
fiber existing in aerial or underground structure which have Iightwave
repeater (regenerator or optical amplifier) equipment interspliced to
it at appropriate distances, but which has no line terminating
elements terminated to such strands to operationalize its transmission
capabilities. Alternately, Dark Fiber means unused wavelengths within
a fiber strand for purposes of coarse or dense wavelength division
multiplexed (WDM) applications. Typical single wavelength transmission
involves propagation of optical signals at single wavelengths (1.3 or
1.55 micron wavelengths). In WDM applications, a WDM device is used to
combine optical signals at different wavelengths on to a single fiber
strand. The combined signal is then transported over the fiber strand.
For coarse WDM applications, one signal each at 1.3 micron and 1.55
micron wavelength are combined. For dense WDM applications, many
signals in the vicinity of 1.3 micron wavelength or 1.55 micron
wavelength are combined. Spare wavelengths on a fiber strand (for
coarse or dense WDM) are considered Dark Fiber.
39. STANDARDS FOR ANCILLARY FUNCTIONS
Each Ancillary Function shall meet or exceed the requirements set forth
in the technical references, as well as the performance and other requirements,
identified herein. If another Bell Communications Research, Inc. ("Bellcore"),
or industry standard (e.g., American National Standards Institute ("ANSI"))
technical reference sets forth a
<PAGE>
different requirement, CLEC may elect, where technically feasible, which
standard shall apply.
Each Ancillary Function provided by ILEC to CLEC shall be at least
equal in the quality of design, performance, features, functions and other
characteristics, including, but not limited to levels and types of redundant
equipment and facilities for diversity and security, that ILEC provides in the
ILEC network to itself, its own customers, its Affiliates or any other entity.
ILEC shall provide to CLEC, upon reasonable request, such engineering,
design, performance and other network data sufficient for CLEC to determine that
the requirements of this Agreement are being met. In the event that such data
indicates that the requirements of this Agreement are not being met, ILEC shall,
within 30 days,. cure any design, performance or other deficiency and provide
new data sufficient for' CLEC to determine that such deficiencies have been
cured.
ILEC agrees to work cooperatively with CLEC to provide Ancillary
Functions that will meet CLEC's needs in providing services to its customers.
Unless otherwise designated by CLEC, each Ancillary Function provided
by ILEC to CLEC shall be made available to CLEC on a priority basis that is at
least equal to the priorities that ILEC provides to itself, its customers, its
Affiliates or any other entity. -
PART V: PRICING
40. GENERAL PRINCIPLES
40.1 All services currently provided hereunder (including resold Local
Services), Network Elements and Combinations and all new and
additional services or Network Elements to be provided hereunder,
shall be priced in accordance with all applicable provisions of the
Act and the rules and orders of the Federal Communications Commission
and the Commission.
40.2 All services that ILEC provides at retail to subscribers who are
not telecommunications carriers shall be provided at wholesale rates.
Wholesale rates shall be determined on the basis of retail rates
charged to subscribers for the telecommunications service requested,
excluding the portion thereof attributable to any marketing, billing,
collection, and other costs that will be avoided by ILEC.
40.3 All such charges for Network Elements and Combinations shall be
nondiscriminatory.
40.4 All charges for Network Elements, Combinations, Interconnections
and Local Services shall, as a general matter, be based on ILEC's
Total Element Long Run Incremental Cost ("TELRlC") of providing such
element or service. When ILEC incurs additional costs in fulfilling a
CLEC request to build or modify a facility, and those costs are not
included in existing charges, ILEC may recover
<PAGE>
its excess costs. ILEC may recover its economically efficient charges,
over and above those normally incurred in serving its own customers,
that result from CLEC's request to extend or expand CLEC's services.
In such a cases, ILEC bears the burden of showing that any claimed
additional costs are not already recovered through its existing
charges. ILEC shall not double recover charges. ILEC's recovery will
be limited to charges not already recovered in prices charged and will
be limited to the level of benefit that CLEC experiences as a result
of its request. If ILEC or any third party or parties also benefit
from the construction, ILEC's recovery from CLEC will be limited to a
percentage share of the total charges, based on a reasonable estimate
of CLEC's proportionate share of the benefit. Any nonrecurring costs
incurred by ILEC shall be recovered through recurring charges based on
cost.
41. PRICE SCHEDULES
41.1 Local Service Resale - Schedule 1
Retail services are subject to the greater of (a) the wholesale
discount set forth in Schedule 1 or (b) one half the discount in Schedule 1,
pIus any volume or term discount for which CLEC would be eligible if it were a
retail customer.
41.2 Unbundled Network Elements - Schedule 2
Charges for Network Elements will be based on the following: (a)
prices shall be those approved by the Commission in its Docket UM 351, Order No.
96-238. The UM351, Order No. 96-283 prices shall remain in effect until new
Unbundled Network Element prices are developed based on the revised cost
methodology approved in Docket UM-773, Order No. 96-284; and (b) where the
Commission has not yet developed prices for Unbundled Network Elements, the
applicable prices are those set forth in Schedule 2. Any price or contract
provision modified as a result of Commission reconsideration or appeal shall be
incorporated into this Agreement.
41.3 Other Pricing Matters
Within sixty (60) days after the Effective Date, the Parties shall
establish charges for the usage of Operations Support Systems (OSS). Such
charges shall be based on Total Element Long Run Incremental Costs. Such charges
shall appIy pending separate Commission action and shall be subject to true-up.
Interim Number Portability costs shall be recovered on a bill and keep
basis.
ILEC shall be entitled to recover legitimate and reasonable costs
incurred in complying with CLEC's requests for rebranding. ILEC shall have the
burden of proof in justifying any rebranding expenses it incurs on behalf of
CLEC.
Costs associated with the transport and termination of local and EAS
traffic shall be recovered on a bill and keep basis on an interim basis as
provided in Commission Order No. 96-021. CLEC may be required to share direct
transport costs under circumstances similar to those addressed by the Commission
in Order No. 96-160.
<PAGE>
With respect to conditioning charges, ILEC may charge CLEC for
conditioning of local loops in accordance with prices and terms set forth by the
Commission in Order No. 96-283.
The wholesale discount applicable to services already subject to term
or volume discounts shall equal the greater of : (a) twenty-two percent (22%),
or (b) the sum of the term/volume discount plus eleven percent (11%).
CLEC's pricing proposal for electronic interfaces shall be implemented
on an interim basis until the Commission can develop prices based on the revised
cost methodology approved in UM-773, Order No. 96-284.
The charges for virtual collocation shall be those approved by the
Commission in Docket UT-i 19, Order No. 96-079.
Pole attachment fees charged by ILEC to CLEC shall in all respects be
consistent with the provisions of 47 U.S.C. Sections 703 et seq. and any FCC
rules promulgated pursuant thereto. Pending, enactment of said FCC rules, but
not thereafter, ILEC may continue to use the fee structure developed under the
1978 Pole Attachment Act. Minimum purchase requirements shall not be imposed.
The cost of providing usable space shall be apportioned between and among all
entities according to the percentage of usable space required. Except to the
extent ILEC's fee structure, developed under the 1978 Pole Attachment Act, is
used hereunder, all applicable fees and charges shall be based on TELRIC.
To the extent modification costs for poles and/or conduit are
initiated by and incurred for the sole benefit of CLEC, CLEC shall assume the
cost of said modifications. To the extent modification costs are initiated by
and incurred for the benefit of multiple parties, including ILEC, participating
directly in said modification, including, without limitation, "piggybacking" by
various parties, said cost shall be apportioned between and among the
participating parties based upon the ratio of new space to be occupied by each.
To the extent any entities, including ILEC, subsequently obtain access to a
facility previously modified and paid for by CLEC and/or, other parties, ILEC
shall notify CLEC and/or the other parties, and provide the opportunity for
calculation and collection from the new parties of their proportionate share of
the modification costs, adjusted to reflect depreciation.
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their respective duly authorized representatives.
AMERICAN TELEPHONE TECHNOLOGY, INC.* U S WEST COMMUNICATIONS, INC.*
/s/ F. Lynne Powers /s/ Katherine Fleming
- -------------------------------- ------------------------------------
Signature Signed
F. Lynne Powers Katherine L. Fleminq
- -------------------------------- ------------------------------------
Name Printed/Typed Name Printed/Typed
Vice President - Finance Executive Director - Lnterconnection
- -------------------------------- ------------------------------------
Title Title
1-7-00 01/13/00
- -------------------------------- ------------------------------------
Date Date
* This Agreement is made pursuant to Section 252 (i) of the Act and is
premised upon the Interconnection Agreement between AT&T Corp.. and U S WEST
Communications, Inc. (the "Underlying Agreement"). The Underlying Agreement was
approved by the Commission on September 5, 1997.
With respect to this Agreement, the Parties understand and agree:
i) The Parties shall request the Commission to expedite its review and approval
of this Agreement.
ii) Notwithstanding the mutual commitments set forth herein, the Parties are
entering into this Agreement without prejudice to any positions they have taken
previously, or may take in the future, in any legislative, regulatory, or other
public forum addressing any matters, including those relating to the types of
arrangements contained in this Agreement. During the proceeding in which the
Commission is to review and approve the Agreement, U S WEST may point out that
it has objected, and continues to object, to the inclusion of the terms and
conditions to which it objected in the proceedings involving the approval of the
Underlying Agreement.
iii) The Parties agree that traffic originated by either Party and delivered to
the other Party, which in turn delivers the traffic to an enhanced service
provider is not covered by this Agreement, since such traffic is interstate in
nature and this Agreement, including the reciprocal compensation provisions,
only apply to local traffic. American Telephone Technology, Inc. is responsible
for identifying enhanced service providers and associated usage.
iv) This Agreement contains provisions based upon the decisions and orders of
the FCC and the Commission under and with respect to the Act. Currently, court
and regulatory proceedings affecting the subject matter of this Agreement are in
various stages, including the proceedings where certain of the rules and
regulations of the FCC are being challenged In addition, there is uncertainty in
the aftermath of the Supreme Court's decision in AT&T CORP. ET AL. V. IOWA
UTILITIES BOARD. Based on that uncertainty, and the regulatory and judicial
proceedings which will occur as a result of that decision, the Parties
acknowledge that this Agreement may need to be changed to reflect any changes in
law. The Agreement has not been corrected to reflect the requirements, claims or
outcomes of any of the Proceedings,
<PAGE>
although the pricing does reflect the Commission's most current generic
order, if any. Accordingly, when a final, decision or decisions are made in
the Proceedings that automatically change and modify the Underlying
Agreement, then like changes and modifications will similarly be made to this
Agreement. In addition, to the extent rules or laws are based on regulatory
or judicial proceedings as a result of the recent Supreme Court decision,
this Agreement will be amended to incorporate such changes.
v) Subsequent to the execution of this Agreement, the FCC or the Commission may
issue decisions or orders that change or modify the rules and regulations
governing implementing of the Act. lf such changes or modifications alter the
state of the law upon which the Underlying Agreement was negotiated and agreed,
and it reasonably appears that the parties to the Underlying Agreement would
have negotiated and agreed to different term(s) condition(s) or covenant(s) than
as contained in the Underlying Agreement had such change or modification been in
existence before execution of the Underlying Agreement, then this Agreement
shall be amended to reflect such different terms(s), condition(s), or
covenant(s). Where the parties fail to agree upon such an amendment, it shall be
resolved in accordance with the Dispute Resolution provision of this Agreement.
<PAGE>
Exhibit 10.1.40
AGREEMENT
FOR LOCAL WIREL1NE NETWORK INTERCONNECTION
AND
SERVICE RESALE
BETWEEN
CADY TELEMANAGEMENT, INC.
AND
U S WEST COMMUNICATIONS, INC.
<PAGE>
Contract - Part A
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
PREAMBLE I
RECITALS AND PRINCIPLES I
SCOPE OF AGREEMENT 2
PART I: GENERAL TERMS AND CONDITIONS 3
1. TERM 3
2. PAYMENT 5
3.TAXES 5
4. AUDITS AND INSPECTIONS 5
5. INDEMNIFICATION 7
6. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION 8
7. LIMITATION OF LIABILITY 8
8. REMEDIES FOR FAILURE TO MEET DMOQS 9
9. WARRANTIES 10
10. NON-EXCLUSIVE REMEDIES 13
11. DISPUTE RESOLUTION 14
12. NONDISCLOSURE/CONFIDENTIALITY AND PROPRIETARY INFORMATION 15
13. OPTION TO OBTAIN LOCAL SERVICES OR NETWORK ELEMENTS
UNDER OTHER AGREEMENT 17
</TABLE>
<PAGE>
Contract - Part A
<TABLE>
<S> <C>
14. CUSTOMER CREDIT HISTORY 17
15. BRANDING 17
16. PATENTS, TRADEMARKS 18
17. PUBLICITY AND ADVERTISING 18
18. FORCE MAJEURE 18
19. WAIVER 19
20. GOVERNING LAW/COMPLIANCE WITH LAWS 19
21. NO THIRD PARTY BENEFICIARIES 20
22. RESPONSIBILITY OF EACH PARTY 21
23. ASSIGNMENT/SUBCONTRACTING 21
24. ENTIRE AGREEMENT 22
25. SEVERABILITY 22
26. AMENDMENTS 22
27. HEADING OF NO FORCE OR EFFECTS 22
28. NOTICES 23
29. INTENTIONALLY DELETED 24
30. EXECUTED IN COUNTERPARTS 24
31. REFERENCED DOCUMENTS 24
32. SURVIVAL 24
33. SUCCESSORS AND ASSIGNS 24
</TABLE>
<PAGE>
Contract - Part A
<TABLE>
<S> <C>
PART II: LOCAL SERV1CES RESALE
34. INTRODUCTION 25
35. LOCAL SERVICES RESALE 25
PART III: UNBUNDLED NETWORK ELEMENTS
36. INTRODUCTION 27
37. UNBUNDLED NETWORK ELEMENTS 27
PART IV: ANCILLARY FUNCTIONS
38. INTRODUCTION 36
39. USWC PROVISION OF ANCILLARY FUNCTIONS 36
40. STANDARDS FOR ANCILLARY FUNCTIONS 38
PART V: PRICING
41. GENERAL PRINCIPLES 39
42. PRICE SCHEDULES 40
43. RESERVATION OF RIGHTS 41
</TABLE>
<PAGE>
Contract - Part A
ATTACHMENTS
ATTACHMENT I INTENTIONALLY DELETED
ATTACHMENT 2 SERVICES DESCRIPTION. TOTAL SERVICES RESALE
ATTACHMENT 3 SERVICES DESCRIPTION: UNBUNDLED NETWORK ELEMENTS
ATTACHMENT 4 SERVICES DESCRIPTION: ANCILLARY FUNCTIONS
ATTACHMENT 5 PROVISIONING AND ORDERING
ATTACHMENT 6 MAINTENANCE
ATTACHMENT 7 CONNECTIVITY BILLING AND RECORDING
ATTACHMENT 8 PROVISION OF CUSTOMER USAGE DATA
ATTACHMENT 9 LOCAL NUMBER PORTABILITY
ATTACHMENT 10 NETWORK SECURITY
ATTACHMENT 11 CREDIT FOR FAILURE TO MEET DMOQS
ATTACHMENT 12 DEFINITIONS AND ACRONYMS
SCHEDULES
SCHEDULE I TOTAL SERVICES RESALE PRICING
SCHEDULE 2 UNBUNDLED NETWORK ELEMENTS PRICING
SCHEDULE 3 COLLOCATION PRICING
<PAGE>
Contract - Part A
AGREEM ENT
FOR LOCAL W1RELINE NETWORK INTERCONNECTION
AND
SERVICE RESALE
Pursuant to this Agreement for Local Wireline Network Interconnection
and Service Resale (this "Agreement"), by Cady Telemanagement, Inc. ("CMTI" or
"Reseller", as applicable), on behalf of itself and its Affiliates, a
Competitive Local Exchange Carrier, and U S WEST Communications, Inc. ("USWC"),
on behalf of itself and its Affiliates, (collectively, "the Parties") will
extend certain arrangements to one another within each LATA in which they both
operate within the state of Minnesota (the "State").
RECITALS & PRINCIPLES
WHEREAS, interconnection between competing Local Exchange Carriers
("LECs") is necessary for the termination of each carrier's originating traffic
on the other carrier's network; and
WHEREAS, The Telecommunications Act of 1996 (the "Act") was signed into
law on February 8,1996; and
WHEREAS, the Act places certain duties and obligations upon, and
grants certain rights to, Telecommunications Carriers; and
WHEREAS, USWC is an Incumbent Local Exchange Carrier or has a majority
ownership interest in local exchange companies ("LEGs") which are Incumbent
Local Exchange Carriers; and
WHEREAS, USWC for itself and its Affiliates is willing to sell
unbundled Network Elements and Ancillary Functions and additional features, as
well as services for resale, on the terms and subject to the conditions of this
Agreement; and
WHEREAS, CMTI is a Telecommunications Carrier and has requested that
USWC negotiate an Agreement with CMTI for the provision of interconnection and
unbundled Network Elements (including Ancillary Functions and additional
features) pursuant to the Act and in conformance with USWC's duties under the
Act; and
WHEREAS, the USWC and AT&T had certain unresolved issues at the time
they entered into a final contract, the Minnesota Public Utilities Commission
(the "Commission"), pursuant to 47 U.S.C. Section 252(b) has arbitrated and
resolved those
<PAGE>
Contract - Part A
disputed issues. This Agreement reflects that resolution, as well as the
Parties' negotiations, and is subject to the continuing jurisdiction of the
Commission; and
WHEREAS, the Parties are subject to the laws of the State of Minnesota
and the United States with respect to the provision of telephone service,
contract terms should be interpreted to be consistent with applicable laws; and
WHEREAS, the Parties have arrived at this Agreement;
NOW, THEREFORE, in consideration of the mutual provisions contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, CMTI and USWC hereby covenant and agree as follows:
SCOPE OF AGREEMENT
A. This Agreement sets forth the terms, conditions and prices under
which USWC agrees to provide to CMTI: (i) services for resale (hereinafter
referred to as "Local Services"), and (ii) certain unbundled Network Elements,
Ancillary Functions and additional features (hereinafter collectively referred
to as "Network Elements") or combinations of such Network Elements
("Combinations") for CMTI's own use or for resale to others, and for purposes of
offering voice, video, or data services of any kind, including, but not limited
to, local exchange services, intrastate toll services, and intrastate and
interstate exchange access services.
This Agreement also sets forth the terms and conditions for the
interconnection of CMTI's network to USWC's network and the reciprocal
compensation for the transport and termination of telecommunications. USWC may
fulfill the requirements imposed upon it by this Agreement by itself or may
cause its Affiliates to take such actions to fulfill the responsibilities.
Unless otherwise provided in this Agreement, USWC will perform all of its
obligations hereunder throughout its entire service area.
The Network Elements, Combinations or Local Services provided pursuant
to this Agreement may be connected to other Network Elements, Combinations or
Local Services provided by USWC or to any Network Elements, Combinations or
Local Services provided by CMTI itself or by any other vendor.
Subject to the requirements of this Agreement, CMTI may, at any time,
add, delete, relocate or modify the Local Services, Network Elements or
Combinations purchased hereunder. USWC will not discontinue any Network Element,
Combination or Local Service provided hereunder without the prior approval of
the Commission.
<PAGE>
Contract - Part A
B. In the performance of their obligations under this Agreement, th~e
Parties shall act in good faith and consistently with the intent of the Act.
Where notice, approval or similar action by a Party is permitted or required by
any provision of this Agreement (including, without limitation, the obligation
of the Parties to further negotiate the resolution of new or open issues under
this Agreement), such action shall not be unreasonably delayed, withheld or
conditioned.
C. USWC shall not reconfigure, reengineer or otherwise redeploy its
network in a manner which would impair CMTI's ability to offer
Telecommunications Services in the manner contemplated by this Agreement, the
Act or the FCC's Rules and Regulations. USWC agrees that all obligations
undertaken pursuant to this Agreement, -including, without limitation,
performance standards, intervals, and technical requirements are material
obligations hereof and that time is of the essence.
PART I: GENERAL TERMS AND CONDITIONS
1. TERM
1.1 When executed by authorized representatives of USWC and CMTI, this
Agreement shall become effective as of the date ordered by the Commission under
47 U.S.C. Section 252(e)(1) (the "Effective Date").
1.2 USWC shall give CMTI notice of the impending expiration of this
Agreement (or any renewable term thereof) ninety (90) days before such
expiration. CMTI shall have the right to extend the term of this Agreement, upon
mutual agreement with USWC, for successive one-year periods ("Renewal Year")
upon expiration of the initial term or any subsequent Renewal Year. If the
Parties cannot agree to renewal of this Agreement, any Party can petition the
Commission for arbitration of any outstanding issues. At the expiration of the
term of this Agreement, or any renewal thereof, this Agreement shall continue in
effect, on a month-to-month basis, at the same terms, conditions and prices as
those in effect at the end of the latest term, or renewal, until terminated by
CMTI.
1.3 CMTI may elect, at any time, to terminate this entire Agreement,
at CMTI's sole discretion, upon sixty (60) days' written notice to USWC. In such
case, CMTI's liability shall be limited to payment of the amounts due for
Network Elements, Combinations and Local Services provided up to and including
the date of termination. USWC recognizes that the Network Elements, Combinations
and Local Services provided hereunder are vital to CMTI and must be continued
without interruption, and that upon the termination or expiration of this
Agreement, CMTI may itself provide or retain another vendor to provide such
comparable Network Elements, Combinations or Local Services. USWC agrees to
cooperate in an orderly and efficient transition to
<PAGE>
Contract - Part A
CMTI or another vendor. USWC further agrees to coordinate the orderly
tratisition to CMTI or another vendor such that the level and quality of the
Network Elements, Combinations and Local Services are not degraded and to
exercise its best efforts to effect an orderly and efficient transition. CMTI
may terminate any Local Service(s), Network Element(s) or Combination(s)
provided under this Agreement upon thirty (30) days' written notice to USWC,
unless a different notice period or different conditions are specified for
termination of such Local Service(s), Network Element(s) or Combination(s) in
this Agreement, in which event such specific period and conditions shall apply.
1.4 In the event of a breach of any material provision of this
Agreement by either Party, the non-breaching Party shall give the breaching
Party written notice thereof, and to the Minnesota Public Utilities Commission,
and:
and:
1.4.1 If such material breach is for non-payment of amounts
due hereunder pursuant to Attachment 7, Section 13, the breaching Party shall
cure such breach within thirty (30) days of receiving such notice. The
non-breaching Party shall be entitled to pursue all available legal and
equitable remedies for such breach. Amounts disputed in good faith and withheld
or set off shall not be deemed "amounts due hereunder" for the purpose of this
provision.
1.4.2 If such material breach is for any failure to perform in
accordance with this Agreement, which, in the sole judgment of the non-breaching
Party, adversely affects the non-breaching Party's subscribers, the
non-breaching Party shall give notice of the breach and the breaching Party
shall cure such breach to the non-breaching Party's reasonable satisfaction
within ten (10) days or within a period of time equivalent to the applicable
interval required by this Agreement, whichever is shorter, and if the breaching
Party does not, the non-breaching Party may, at its sole option, terminate this
Agreement, or any parts hereof. The non-breaching Party shall be entitled to
pursue all available legal and equitable remedies for such breach. For the
purpose of this Subsection 1.4.2, notice may be given electronically or by
facsimile and in such case shall be deemed received when sent.
1.4.3 If such material breach is for any other failure to
perform in accordance with this Agreement, the breaching Party shall cure such
breach to the non-breaching Party's reasonable satisfaction within forty-five
(45) days, and if the breaching Party does not, the non-breaching Party may, at
its sole option, terminate this Agreement, or any parts hereof. The
non-breaching Party shall be entitled to pursue all available legal and
equitable remedies for such breach.
<PAGE>
Contract - Part A
1.5 In the event of a termination as described in this Section 1, for
service arrangements made available under this Agreement and existing at the
time of termination, those arrangements shall continue without interruption.
Neither Party shall disconnect service to the other Party without first
obtaining Commission approval.
2. PAYMENT AND DEPOSIT
2.1 Amounts payable under this Agreement are due and payable within
thirty (30) days after the receipt of USWC's invoice unless properly disputed
under this Agreement or applicable Tariff.
2.2 USWC may require a suitable deposit to be held by USWC as a
guarantee for payment of USWC's charges for companies which cannot demonstrate
sufficient financial integrity based on commercially reasonable standards, which
may include a satisfactory credit rating as determined by a recognized credit
rating agency reasonably acceptable to USWC.
2.3 When the service is terminated or when CMTI has established
satisfactory credit, if required under the terms of the preceding paragraph, the
amount of the initial or additional deposit, with any interest due, will, at
CMTI's option, be either credited to CMTI's account or refunded. Satisfactory
credit for CMTI is defined as twelve (12) consecutive months' service as a
reseller without a termination for nonpayment and with no more than one (1)
notification of intent to terminate service for nonpayment. Interest on the
deposit shall be accumulated by USWC at a rate equal to the prime rate, as
published in the Wall Street Journal from time to time.
3. TAXES
3.1 Any federal, state or local excise, sales or use taxes (excluding
any taxes levied on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for payment is imposed
under applicable law, even if the obligation to collect and remit such taxes is
placed upon the other Party. Any such taxes shall be shown as separate items on
applicable billing documents between the Parties. The Party so obligated to pay
any such taxes may contest the same in good faith, at its own expense, and shall
be entitled to the benefit of any refund or recovery, provided that such Party
shall not permit any lien to exist on any asset of the other Party by reason of
the contest. The Party obligated to collect and remit the taxes shall cooperate
in any such contest by the other Party.
4. GATEWAY AUDITS AND INSPECTIONS
4.1 As used herein "Audit" shall mean a comprehensive review of
gateway services performed under this Agreement; "Examination" shall mean an
inquiry into a specific element of or process related to gateway services
performed under this
<PAGE>
Contract - Part A
Agreement. CMTI may perform up to four (4) Audits per 12-month period commencing
with the Effective Date. CMTI may perform Examinations as CMTI deems necessary.
As used herein, gateway(s) refers to data used in the billing process for
services performed and facilities provided and data relevant to the provisioning
and maintenance for services performed or facilities provided.
4.2 Upon thirty (30) days' written notice by CMTI to USWC, CMTI shall
have the right through its authorized representative to make an Audit or
Examination, during normal business hours, of any records, accounts and
processes which contain information related to the gateway services provided and
performance standards agreed to under this Agreement. Within the above described
30-day period, the Parties shall reasonably agree upon the scope of the Audit or
Examination, the documents and processes to be reviewed, and the time, place and
manner in which the Audit or Examination shall be performed. USWC agrees to
provide Audit or Examination support, including appropriate access to and use of
USWC's facilities (e.g., conference rooms, telephones, copying machines). USWC
shall have the right to assert that any books, records or other documents made
available to CMTI for the purpose of conducting an Audit are proprietary and
confidential. In the event of such an assertion, USWC shall have the right to
require CMTI to enter into a protective or non-disclosure agreement relating to
such books, records or other documents prior to their disclosure to CMTI.
4.3 Each Party shall bear its own expenses in connection with the
conduct of the Audit or Examination. The reasonable cost of special data
extractions required by CMTI to conduct the Audit or Examination will be paid
for by CMTI. For purposes of this Section 4.3, a "Special Data Extraction" shall
mean the creation of an output record or informational report (from existing
data files) that is not created in the normal course of business. If any program
is developed to CMTI's specifications and at CMTI's expense, CMTI shall specify
at the time of request whether the program is to be retained by USWC for reuse
for any subsequent CMTI Audit or Examination. Notwithstanding the foregoing,
USWC shall pay all of CMTI's expenses in the event an Audit or Examination
results in an adjustment in the charges or in any invoice paid or payable by
CMTI hereunder in an amount that is, on an annualized basis, greater than one
percent (1 %) of the aggregate charges for all gateway services purchased under
this Agreement.
4.4 Adjustments, credits or payments shall be made and any corrective
action shall commence within thirty (30) days from USWC's receipt of the final
audit report to compensate for any errors or omissions which are disclosed by
such Audit or Examination and are agreed to by the parties. The highest interest
rate allowable by law for commercial transactions shall be assessed and shall be
computed by compounding daily from the time of the overcharge to the day of
payment.
<PAGE>
Contract - Part A
4.5 Neither such right to examine and audit nor the right to receive
an adjustment shall be affected by any statement to the contrary appearing on
checks or otherwise, unless such statement expressly waiving such right appears
in writing, is signed by the authorized representative of the Party having such
right and is delivered to the other Party in a manner sanctioned by this
Agreement.
4.6 This Section 4 shall survive expiration or termination of this
Agreement shall for a period of two (2) years after expiration or termination of
this Agreement.
5. INDEMNIFICATION.
5.1 Each of the Parties agrees to release, indemnify, defend and hold
harmless the other Party and each of its officers, directors, employees and
agents (each, an "Indemnitee") from and against and in respect of any loss,
debt, liability, damage, obligation, claim, demand, judgment or settlement of
any nature or kind ("Claim") arising out of, resulting from or based upon any
pending or threatened claim, action, proceeding or suit by any third party known
or unknown, liquidated or unliquidated, including, but not limited to, costs and
attorneys' fees, accounting or otherwise, whether suffered, made, instituted or
asserted by any other party or person alleging any breach of any representation,
warranty or covenant made by such indemnifying Party (the "Indemnifying Party")
in this Agreement, for invasion of privacy, personal injury to or death of any
person or persons, or for loss, damage to, or destruction of property, whether
or not owned by others, resulting from the Indemnifying Party's performance,
breach of Applicable Law, or the actions or status of its employees, agents and
subcontractors; for actual or alleged infringement of any patent, copyright,
trademark, service mark, trade name, trade dress, trade secret or any other
intellectual property right, now known or later developed (referred to as
"Intellectual Property Rights"), or for failure to perform under this Agreement,
regardless of the form of action.
5.2 The indemnification provided herein shall be conditioned upon the
following:
Whenever a Claim shall arise for indemnification under this
Section 5, the relevant Indemnitee, as appropriate, shall promptly notify the
Indemnifying Party and request the Indemnifying Party to defend the same.
Failure to so notify the Indemnifying Party shall not relieve the Indemnifying
Party of any liability the Indemnifying Party might have, except to the extent
that such failure prejudices the Indemnifying Party's ability to defend such
Claim.
The Indemnifying Party shall have the right to defend against
such liability or assertion, in which event the Indemnifying Party shall give
written notice to the Indemnitee of acceptance of the defense of such Claim and
the identity of counsel selected by the Indemnifying Party. Except as set forth
below, such notice to the
<PAGE>
Contract - Part A
relevant Indemnitee shall give the Indemnifying Party full authority to defen~i,
adjust, compromise or settle such Claim with respect to which such notice shall
have been given, except to the extent that any compromise or settlement shall
prejudice the Intellectual Property Rights of the relevant Indemnitees. The
Indemnifying Party shall consult with the relevant Indemnitee prior to any
compromise or settlement that would affect the Intellectual Property Rights or
other rights of any Indemnitee, and the relevant Indemnitee shall have the right
to refuse such compromise or settlement and, at the refusing Party's or refusing
Parties' cost, to take over such defense, provided that, in such event, the
Indemnifying Party shall not be responsible for, nor shall it be obligated to,
indemnify the relevant Indemnitee against any cost or liability in excess of
such refused compromise or settlement. With respect to any defense accepted by
the Indemnifying Party, the relevant Indemnitee shall be entitled to participate
with the Indemnifying Party in such defense if the Claim requests equitable
relief or other relief that could affect the rights of the Indemnitee and also
shall be entitled to employ separate counsel for such defense at such
Indemnitee's expense. In the event the Indemnifying Party does not accept the
defense of any indemnified Claim as provided above, the relevant Indemnitee
shall have the right to employ counsel for such defense at the expense of the
Indemnifying Party. Each Party agrees to cooperate and to cause its employees
and agents to cooperate with the other Party in the defense of any such Claim
and the relevant records of each Party shall be available to the other Party
with respect to any such defense.
6. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
6.1 Neither Party shall be liable to the other for any costs
whatsoever resulting from the presence or Release of any Environmental Hazard
the other Party introduced to the affected Work Location. Both Parties shall
defend and hold harmless the other, its officers, directors and employees from
and against any losses, damages, claims, demands, suits, liabilities, fines,
penalties and expenses (including reasonable attorneys' fees) that arise out of
or result from: (a) any Environmental Hazard the Indemnifying Party, its
contractors or agents introduces to a Work Location, or (b) the presence or
Release of any Environmental Hazard for which the Indemnifying Party is
responsible under Applicable Law.
7. LIMITATION OF LIABILITY
7.1 Liabilities of CMTI - CMTI's liability to USWC during any Contract
Year resulting from any and all causes, other than as specified below, and in
Section 5 -Indemnification, and Section 6 - Responsibility for Environmental
Contamination, shall not exceed the amount due and owing by CMTI to USWC under
this Agreement during the Contract Year during which such cause accrues or
arises.
7.2 Liabilities of USWC - USWC's liability to CMTI during any Contract
Year resulting from any and all causes, other than as specified below in Section
8 and
<PAGE>
Contract - Part A
Section 10, and in Section 5 - Indemnification, and Section 6 - Responsibility
for Environmental Contamination, shall not exceed the total of any amounts due
and owing to CMTI pursuant to Service Parity, Service Guarantees and the
Attachment related thereto, plus any amounts due and owing by CMTI to USWC under
this Agreement during the Contract Year during which such cause accrues or
arises.
7.3 Neither Party shall be liable to the other for any indirect,
incidental, special or consequential damages arising out of or related to this
Agreement or the provision of service hereunder. Notwithstanding the foregoing
limitations, a Party's liability shall not be limited by the provisions of this
Section 7 in the event of its willful or intentional misconduct, including gross
negligence, or its repeated breach of any one or more of its material
obligations under this Agreement. A Party's liability shall not be limited with
respect to its indemnification obligations.
FOR PURPOSES OF THIS SECTION 7, AMOUNTS DUE AND OWING TO CMTI PURSUANT
TO THE SECTION ON SERVICE PARITY, SERVICE GUARANTEES AND THE ATTACHMENT
REFERENCED IN THAT SECTION SHALL NOT BE CONSIDERED TO BE INDIRECT, INCIDENTAL,
CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES.
8. Remedies for Failure to Meet DMOQs
8.1 USWC will provide all Local Services, Network Elements or
Combinations in accordance with service standards, measurements, performance
requirements, and Direct Measures of Quality (collectively referred to herein as
"DMOQs") expressly specified in this Agreement and Attachment 11 hereto. In
cases where such DMOQs are not expressly specified, USWC will provide all Local
Services, Network Elements or Combinations in accordance with DMOQs which are at
least equal or superior to the level of DMOQs that USWC is required to meet by
its own internal procedures or by law, or is actually meeting, in providing
Local Service, Network Elements or Combinations to itself, to its end-users or
to its Affiliates.
8.2 The Parties have agreed to five categories for the DMOQs: (a)
Billing, (b) Operator Assistance and Directory Assistance, (c)
Pre-Order/Order/Provisioning and Maintenance/Repair, (d) Network Quality, and
(e) Interconnection and Unbundled Elements. Each such category of DMOQ includes
metrics which focus on timeliness, accuracy and network quality. The DMOQs
categories and detailed metrics associated with the DMOQs are set forth in
Attachment 11 to this Agreement. USWC's failure to meet DMOQs may result in
credits to CMTI identified as Per Occurrence Credits and Overall Performance
Credits, which are explained in detail in Attachment 11 hereto.
8.3 CMTI shall also have the right, in its sole discretion, to obtain
an alternative Network Element, Combination or Service from USWC to replace any
Network Element(s), Combination(s) or Service(s) for which a Performance Failure
<PAGE>
Contract - Part A
Credit or Delay Credit is due, at USWC's expense, as to any amounts (4ncluding
installation charges) in excess of the otherwise applicable charges under this
Agreement for the affected Network Element, Combination or Service. If a
suitable alternative Network Element, Combination or Service is not available
from USWC, CMTI may obtain an alternative Network Element, Combination or
Service under this Subsection from another vendor or, in the case of the Delay
of an Network Element, Combination or Service that is to replace a Network
Element, Combination or Service provided to CMTI by another vendor, may continue
to use such Network Element, Combination or Service, provided that, in the event
of non-availability from USWC, the Performance Failure or Delay is reasonably
likely to last more than thirty (30) days. In ordering alternative Network
Elements, Combinations or Local Services pursuant to this Section, CMTI shall
choose the least costly Network Element, Combination or Service provided by such
vendor that reasonably meets its needs, shall subscribe to such Network Element,
Combination or Service for the minimum commercially available period and shall
move all affected traffic to the newly installed, repaired or restored Network
Element, Combination or Service as soon as possible after the end of such
period. If CMTI obtains an alternative Network Element, Combination or Service
from another vendor, CMTI may elect either to continue collecting Performance
Failure Credits or Delay Credits from USWC or require USWC to be fully
responsible for all obligations to the vendor and to pay in full all charges
associated with the cost of such replacement Network Element, Combination or
Service.
8.4 USWC acknowledges that remedies at law alone are inadequate to
compensate CMTI for failures to meet the DMOQ requirements specified by this
Agreement, failures to install or provision Network Elements, Combinations or
Services in accordance with the Due Dates specified in this Agreement, or for
failures to provide Customer Usage Data in accordance with this Agreement. CMTI
shall have the right to seek injunctive relief and other equitable remedies (in
addition to remedies provided in this Agreement, at law and through
administrative process) to require USWC: (a) to cause the Network Elements,
Combinations or Services ordered by CMTI to meet the DMOQ requirements specified
by this Agreement, (b) to install or provision the Network Elements,
Combinations or Services ordered by CMTI within the Due Dates specified in this
Agreement, and (c) to provide Customer Usage Data in accordance with this
Agreement.
9. WARRANTIES
9.1 Except as otherwise provided herein, each Party shall perform its
obligations hereunder at a performance level no less than the highest level
which it uses for its own operations, or those of its Affiliates, but in no
event shall a Party use less than reasonable care in the performance of its
duties hereunder.
9.2 USWC warrants that Local Interconnection will be provided in a
competitively neutral fashion, at any technically feasible point within its
network, at
<PAGE>
Contract - Part A
CMTI's request, and that such interconnection will contain all the same~
features, functions and capabilities, and be at least equal in quality to the
highest level provided by USWC to itself or its Affiliates. USWC shall have the
full burden of proving that a requested Interconnection Point ("IP") is not
technically feasible. To the extent USWC proves infeasibility, USWC shall be
required to provide to CMTI an alternative IP which will not impair CMTI's
ability to provide its Telecommunications Services. Such alternative IP shall be
technically equivalent to the requested IP and shall be subject to the same
terms and conditions as the requested IP. The price of the alternative IP shall
be cost-based, as provided in 47 U.S.C. Section 252(d)(1)(A)(I).
9.3 USWC warrants that it will provide to CMTI on a nondiscriminatory
basis unbundled Network Elements and ancillary services, including, but not
limited to, local loop, local switching, tandem switching/transit switching,
transport, data switching, intelligent network and advanced intelligent network,
operator service, directory assistance, 911, white and yellow pages, and repair
and maintenance, at any technically feasible points requested by CMTI, and all
operations support systems used and useful in the preordering, ordering,
provisioning, design, engineering, maintenance, repair, tracking, management,
billing and any other function or functionality associated directly or
indirectly with unbundled Network Elements and ancillary services. USWC further
warrants that these services, or their functional components, will contain all
the same features, functions and capabilities and be provided at a level of
quality at least equal to the highest level which it provides to itself or its
Affiliates. USWC shall have the full burden of proving that access requested by
CMTI is not technically feasible. To the extent USWC proves infeasibility, USWC
shall be required to provide to CMTI an alternative service, which will not
impair CMTI's ability to provide its Telecommunications Services. Such
alternative service shall be technically equivalent to the requested service and
shall be subject to the same terms, conditions and price as the requested
service.
9.4 USWC warrants that it will provide to CMTI nondiscriminatory
access to poles, pole attachments, ducts, innerducts, conduits, building
entrance facilities, building entrance links, equipment rooms, remote terminals,
cable vaults, telephone closets, building risers, rights of way, and other
pathways owned or controlled by USWC, using capacity currently available or that
can be made available. USWC shall have the full burden of proving that such
access is not technically feasible. To the extent USWC proves infeasibility,
USWC shall be required to provide to CMTI alternative suitable access which will
not impair CMTI's ability to provide its Telecommunications Services. Such
alternative access shall be technically equivalent to the requested access and
shall be subject to the same terms, conditions and price as the requested
access.
9.5 Intentionally Deleted
<PAGE>
Contract - Part A
9.6 USWC warrants that it will provide to CMTI unbundled transpoFt and
its components, including common transport, dedicated transport, with and
without electronics, and multiplexing/digital cross connect, with all the same
features, functions and capabilities, and with at least the same quality level
which USWC provides to itself or its Affiliates in provision of its, or such
Affiliate's, Telecommunications Services, and that such services will be
provided in a competitively neutral fashion. USWC shall have the full burden of
proving that access to unbundled transport or any unbundled transport components
is not technically feasible. To the extent USWC proves infeasibility, USWC shall
be required to provide to CMTI alternative suitable facilities which will not
impair CMTI's ability to provide its Telecommunications Services. Such
alternative facilities shall be technically equivalent to the requested access
and subject to the same terms and conditions as the requested access. The price
of the alternative facilities shall be cost-based, as provided in 47 U.S.C.
Section 252(d)(1)(A)(l).
9.7 USWC warrants that it will provide unbundled local switching and
its functional components, including line port, trunk port and switching
capacity, including all features, functions and capabilities, and
nondiscriminatory access via electronic interface to databases and associated
signaling needed for call routing, call completion and service creation, and to
create and bill the communications path, all at the same or better grade of
service that USWC provides to itself or its Affiliates, unless service
degradation is due to CMTI purchasing insufficient capacity to meet its own
demand. USWC further warrants that unbundled local switching and its functional
components will be provided in a competitively neutral fashion. USWC shall have
the full burden of proving that access to unbundled local switching or its
functional components is not technically feasible. To the extent USWC proves
infeasibility, USWC shall be required to provide to CMTI alternative suitable
facilities which will not impair CMTI's ability to provide its
Telecommunications Services. Such alternative facilities shall be technically
equivalent to the requested access and subject to the same terms and conditions
as the requested access. The price of the alternative facilities shall be
cost-based, as provided in 47 U.S.C. Section 252(d)(1)(A)(l).
9.8 USWC warrants that it will provide nondiscriminatory access to
telephone numbers.
9.9 USWC warrants that it will provide to CMTI, in a competitively
neutral fashion, interim number portability with the same features, functions
and capabilities that USWC provides to itself or its Affiliates, and with as
little impairment of functioning, quality, reliability and convenience as
possible, and that it will provide such service as required by the FCC in
Telephone Number Portability, CC Docket No. 95-116, First Report and Order,
released July 2,1996.
9.10 USWC warrants that it will provide to CMTI, in a competitively
neutral fashion, dialing parity for local exchange service and interexchange
service with the same features, functions and capabilities that USWC provides to
itself or its Affiliates,
<PAGE>
Contract - Part A
and that it will provide such service as required by the FCC in Implementation
of the Local Competition Provisions of the Telecommunications Act of 1996,
Second Report and Order and Memorandum Opinion and Order, FCC 96-333, released
August 8, 1996, so that CMTI's subscribers experience no greater post-dial delay
than similarly-situated USWC subscribers and are not required to dial any
greater number of digits than similarly situated USWC subscribers.
9.11 USWC warrants that, with respect to Local Resale, order entry,
provisioning, installation, trouble resolution, maintenance, customer care,
billing and service quality will be provided at least as expeditiously as USWC
provides for itself or for its own retail local service or to others, or to its
Affiliates, and that it will provide such services to CMTI in a competitively
neutral fashion and at a level of quality which allows CMTI in turn to provide
Local Resale at a level of quality at least equal to the highest level of
quality USWC provides for itself for its own retail local service or to others,
or to its Affiliates. If CMTI requires USWC to meet a standard of service higher
than the highest standard USWC provides itself, and beyond the specific mandates
in applicable Commission Orders or Rules, CMTI shall pay a reasonable portion of
USWC's additional cost of providing the higher quality of service. USWC warrants
further that it will impose no restrictions on CMTI's resale of these services
unless specifically sanctioned by the Commission.
9.12 USWC warrants that it will provide, on a nondiscriminatory basis,
space on its premises for physical or virtual collocation, as CMTI may specify,
for equipment necessary for CMTI's interconnection and access to unbundled
network elements. In order to be valid, CMTI's collocation requests must be
consistent with Commission and FCC requirements.
10. NONEXCLUSIVE REMEDIES
10.1 Except as otherwise expressly provided in this Agreement, each of
the remedies provided under this Agreement is cumulative and is in addition to
any remedies that may be available at law or in equity.
10.2 The obligations of USWC and the services offered under this
Agreement are unique. Accordingly, in addition to any other available rights or
remedies, CMTI may sue in equity for specific performance, and USWC expressly
waives the defense that a remedy in damages would be adequate.
10.3 In the event USWC fails to switch a subscriber to CMTI service as
requested through an CMTI service request, within the intervals set forth in
this Agreement, the continued provision of Telecommunications Services by USWC
to such subscriber shall be deemed an illegal change in subscriber carrier
selection commencing with the time at which USWC failed to switch such
subscriber. In such event, USWC shall reimburse CMTI in an amount equal to all
charges paid by such
<PAGE>
Contract - Part A
subscriber to USWC from the time of such failure to switch to the time at which
the subscriber switch is accomplished. This remedy shall be in addition to all
other remedies available to CMTI under this Agreement or otherwise available.
10.4 All rights of termination, cancellation or other remedies
prescribed in this Agreement, or otherwise available, are cumulative and are not
intended to be exclusive of other remedies to which the injured Party may be
entitled at law or in equity in the event of any breach or threatened breach by
the other Party of any provision of this Agreement. Use of one or more remedies
shall not bar use of any other remedy for the purpose of enforcing the
provisions of this Agreement. The Parties agree that the credits for performance
standards failures contained in Attachment 11 are not inconsistent with any
other remedy and are intended only to compensate CMTI, partially and
immediately, for the loss in value to CMTI for USWC failure to meet Performance
Standards.
10.5 While the Parties may elect remedies from those available at law,
in equity, or under the terms of this Agreement, and such remedies may in some
cases be cumulative, the Parties in no event shall use their election of
remedies to secure a double recovery of damages.
11. DISPUTE RESOLUTION
11.1 The Parties recognize and agree that the Commission has
continuing jurisdiction to implement and enforce all terms and conditions of
this Agreement. Accordingly, the Parties agree that any dispute arising out of
or relating to this Agreement that the Parties themselves cannot resolve, may be
submitted to the Commission for resolution. The Parties agree to seek expedited
resolution by the Commission, and shall request that resolution occur in no
event later than sixty (60) days from the date of submission of such dispute. If
the Commission appoints an expert(s) or other facilitator(s) to assist in its
decision making, each Party shall pay half of the fees and expenses so incurred.
During the Commission proceeding, each Party shall continue to perform its
obligations under this Agreement; provided, however, that neither Party shall be
required to act in any unlawful fashion. This provision shall not preclude the
Parties from seeking relief available in any other forum, subject to review by
the Commission. The Parties shall submit a copy of each arbitration opinion to
the Commission, the Department of Public Service, and the Office of the Attorney
General, Residential and Small Business Utilities Division. The arbitrator's
decision shall remain in effect unless the Commission acts to suspend, modify,
or reject the decision within 45 days.
<PAGE>
Contract - Part A
12. NONDISCLOSURE/CONFIDENTIALITY AND PROPRIETARY INFORMATION
To the extent permitted by applicable law, either party may disclose to the
other proprietary or confidential customer, technical, or business information.
12.1 All information which is disclosed by one Party to the other in
connection with this Agreement shall automatically be deemed proprietary to the
Discloser and subject to this Agreement, unless otherwise confirmed in writing
by the Discloser. In addition, by way of example and not limitation, all orders
for Local Services, Network Elements or Combinations placed by CMTI pursuant to
this Agreement, and information that would constitute Customer Proprietary
Network Information of CMTI customers pursuant to the Act and the rules and
regulations of the FCC, and Recorded Usage Data as described in Attachment 8,
whether disclosed by CMTI to USWC or otherwise acquired by USWC in the course of
the performance of this Agreement, shall be deemed Confidential Information of
CMTI for all purposes under this Agreement.
12.2. The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this Agreement. All
such copies shall bear the same copyright and proprietary rights notices as are
contained on the original. Upon request by the Discloser, the Recipient shall
return, within thirty (30) days of such request, all tangible copies of
Proprietary Information, whether written, graphic or otherwise, except that the
Recipient may retain one (1) copy for archival purposes. If either Party loses
or makes an unauthorized disclosure of the other Party's Confidential
Information, it shall notify such other Party immediately and use reasonable
efforts to retrieve the lost or wrongfully disclosed information.
12.3. For a period of five (5) years from the receipt of Confidential
Information, each Party shall keep all of the other Party's Proprietary
lnformation confidential and shall use the other Party's Proprietary Information
only for performing the covenants contained in this Agreement. Neither Party
shall use the other Party's Proprietary Information for any other purpose except
upon such terms and conditions as may be agreed upon between the Parties in
writing.
12.4 Unless otherwise agreed, the obligations of confidentiality and
non-use set forth in this Agreement do not apply to such Proprietary Information
that:
(a) was, at the time of receipt, already known to the Recipient free
of any obligation to keep it confidential evidenced by written records prepared
prior to delivery by the Discloser; or
(b) is or becomes publicly known through no wrongful act of the
Recipient; or
(c) is rightfully received from a third person having no direct or
indirect secrecy or confidentiality obligation to the Discloser with respect to
such information; or
<PAGE>
Contract - Part A
(d) is independently developed by an employee, agent or contractor of
the Recipient which individual is not involved in any manner with the provision
of services pursuant to this Agreement and does not have any direct or indirect
access to the Proprietary Information; or
(e) is disclosed to a third person by the Discloser without similar
restrictions on such third person's rights; or
(f) is approved for release by written authorization of the
Disclosure; or
(g) is required to be made public by the Recipient pursuant to
applicable law or regulation, provided that the Recipient shall give sufficient
notice of the requirement to the Discloser to enable the Discloser to seek
protective orders.
12.5 Notwithstanding any other provision of this Agreement, the
Proprietary Information provisions of this Agreement shall apply to all
information furnished by either Party to the other in furtherance of the purpose
of this Agreement, even if furnished before the Effective Date of this
Agreement.
12.6 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration or termination of this Agreement shall survive
such expiration or termination.
12.7 Each Party agrees that the Discloser would be irreparably injured
by a breach of this Agreement by the Recipient or its representatives and that
the Discloser shall be entitled to seek equitable relief, including injunctive
relief and specific performance, in the event of any breach of the provisions of
this Agreement. Such remedies shall not be deemed to be the exclusive remedies
for a breach of this Agreement, but shall be in addition to all other remedies
available at law or in equity.
12.8 CPNI related to CMTI's subscribers obtained by virtue of Local
Interconnection or any other service provided under this Agreement shall be
CMTI's proprietary information and may not be used by USWC for any purpose
except performance of its obligations under this Agreement, and, in connection
with such performance, shall be disclosed only to employees with a need to know,
unless the CMTI subscriber expressly directs CMTI to disclose such information
to USWC pursuant to the requirements of Section 222(c)(2) of the Act. If USWC
seeks and obtains written approval to use or disclose such CPNI from CMTI's
subscribers, such approval shall be obtained only in compliance with Section
222(c)(2) and, in the event such authorization is obtained, USWC may use or
disclose only such information as CMTI provides pursuant to such authorization
and may not use information that USWC has otherwise obtained, directly or
indirectly, in connection with its performance under this Agreement.
CPNI related to USWC's subscribers obtained by virtue of Local
<PAGE>
Contract - Part A
Interconnection shall be USWC's proprietary information and may not be used..by
CMTI for any purpose except performance of its obligations under this Agreement,
and in connection with such performance shall be disclosed only to employees
with a need to know, unless the USWC subscriber expressly directs USWC to
disclose such information to CMTI pursuant to the requirements of Section
222(c)(2) of the Act. If CMTI seeks and obtains written approval to use or
disclose such CPNI from USWC's subscribers, such approval shall be obtained only
in compliance with Section 222(c)(2) and, in the event such authorization is
obtained, CMTI may use or disclose only such information as USWC provides
pursuant to such authorization and may not use information that CMTI has
otherwise obtained, directly or indirectly, in connection with its performance
under this Agreement.
12.9 The Parties recognize and agree that the Commission may obtain
any and all records of the Parties the Commission considers necessary to fulfill
its duties under Minnesota and federal law.
13. OPTION TO OBTAIN LOCAL SERVICES OR NETWORK ELEMENTS UNDER OTHER
AGREEMENTS
13.1 The Parties agree that the provisions of 47 U.S.C. Section 252(l)
shall apply, including final state and federal interpretative regulations in
effect from time to time.
14. CUSTOMER CREDIT HISTORY
14.1 The Parties agree that they will provide service to their
customers under governing Commission rules. Issues relating to the assessment of
customer creditworthiness will be governed by Minn. Rules, part 781 0.1500,
related or successor rules, and relevant Commission Orders.
15. BRANDING
15.1 Services offered by CMTI incorporating Network Elements or
Combinations made available to CMTI pursuant to this Agreement, and Local
Services CMTI offers for resale shall, at CMTI's sole discretion, be branded
exclusively as CMTI services, or otherwise, as CMTI shall determine. CMTI shall
provide the exclusive interface to CMTI customers in connection with the
marketing, offering or provision of CMTI services, except as CMTI shall
otherwise specify. In those instances where CMTI requires USWC personnel to
interface directly with CMTI customers, either orally in person or by telephone,
or in writing, such personnel shall identify themselves as representing CMTI,
and shall not identify themselves as representing USWC. All forms, business
cards or other business materials furnished by USWC to CMTI customers shall be
subject to CMTI's prior review and approval, and shall bear no corporate name,
logo, trademark or tradename other than CMTI's or such other brand as CMTI shall
determine. In no event shall USWC personnel acting on behalf of CMTI
<PAGE>
Contract - Part A
pursuant to this Agreement provide information to CMTI's local service customers
about USWC products or services. USWC shall provide, for CMTl's review and
approval, the methods and procedures, training and approaches to be used by USWC
to ensure that USWC meets CMTI's branding requirements.
15.2 The costs of branding will be borne by the Party requesting the
branding. Rates for branding will be negotiated by the Parties or resolved by
the Commission in further proceedings.
16. PATENTS / TRADEMARKS
16.1. Nothing in this Agreement shall be construed as the grant of a
license, either express or implied, with respect to any patent, copyright, logo,
trademark, trade secret or any other proprietary or intellectual property
currently or hereafter owned, controlled or licensable by each Party. CMTI may
not use any logo, trademark or other Intellectual Property Right of USWC without
execution of a separate agreement between the Parties. The Parties will file
with the Commission any agreements between the Parties which allow one Party to
use anothers' logo, trademark, name, or other intellectual property. The filing
shall include the agreed upon compensation for such use.
17. PUBLICITY AND ADVERTISING
17.1 Neither Party shall publish or use any advertising, sales
promotions or other publicity materials that use the other Party's logo,
trademarks or service marks without the prior written approval of the other
Party.
18. FORCE MAJEURE
18.1 Except as otherwise specifically provided in this Agreement,
neither Party shall be responsible for any delay or failure in performance
resulting from acts or occurrences beyond the reasonable control of such Party
and without its fault or negligence, regardless of whether such delays or
failures in performance were foreseen or foreseeable as of the Effective Date of
this Agreement, including, without limitation: fire, explosion, power failure,
acts of God, war, revolution, civil commotion, or acts of public enemies; any
law, order, regulation, ordinance or requirement of any government or legal
body; labor unrest, including, without limitation, strikes, slowdowns, picketing
or boycotts; delays caused by the other Party or by other service or equipment
vendors; or any other circumstances beyond the Party's reasonable control. In
such event, the Party affected shall, upon giving prompt notice to the other
Party, be excused from such performance on a day-to-day basis to the extent of
such interference (and the other Party shall likewise be excused from
performance of its obligations on a day-for-day basis to the extent such Party's
obligations relate to the performance so interfered with). The affected Party
shall use its best efforts to avoid or
<PAGE>
Contract - Part A
remove the cause of non-performance and both Parties shall proceed to perform
with dispatch once the causes cease or are removed. In the event of such
performance delay or failure by USWC, USWC agrees to resume performance in a
nondiscriminatory manner and not favor its own provision of Telecommunications
Services above that of CMTI. For purposes of this Agreement, Force Majeure shall
not include acts of any Governmental Authority relating to environmental, health
or safety conditions at Work Locations.
19. WAIVER
19.1 No waiver of any provisions of this Agreement and no consent to
any default under this Agreement shall be effective unless the same shall be in
writing and properly executed by or on behalf of the Party against whom such
waiver or consent is claimed and approved by the Commission. No course of
dealing or failure of either Party to strictly enforce any term, right or
condition of this Agreement in any instance shall be construed as a general
waiver or relinquishment on its part of any such provision, but the same shall,
nevertheless, be and remain in full force and effect. Waiver by either Party of
any default by the other Party shall not be deemed a waiver of any other
default. By entering into this Agreement CMTI and USWC do not waive any right
granted to it pursuant to the Act.
20. GOVERNING LAW/COMPLIANCE WITH LAWS
20.1 This Agreement shall be deemed to be a contract made under and
shall be construed, interpreted and enforced in accordance with the laws of the
state of Minnesota. Insofar as matters of federal law or regulation are
exclusively concerned, the Parties agree to the exclusive jurisdiction of the
federal court for the state of Minnesota. Issues or matters exclusively arising
under state law or regulation may be heard by the state court which would
otherwise have jurisdiction over such issue or matter. CMTI and USWC each shall
comply, at its own expense, with all Applicable Law that relates to: (a) its
obligations under or activities in connection with this Agreement, or (b) its
activities undertaken at, in connection with, or relating to Work Locations. No
Party waives the right to pursue any constitutional objections it may have to a
federal court reviewing the Commission's decisions in this arbitration. This
provision should not be construed to mean that USWC's costs of obtaining the
rights and privileges necessary to provide the Network Elements and Local
Services pursuant to this Agreement will not be included in USWC's costs of
service to CMTI.
USWC shall accept orders for Local Service, Network Elements or
Combinations in accordance with the FCC Rules, including, but not limited to,
Sections 51 .313(c) and 51.319(F)(1). USWC, AT ITS OWN EXPENSE, WILL BE SOLELY
RESPONSIBLE FOR OBTAINING FROM governmental authorities, building owners, other
carriers, and any other persons or entities, all rights and privileges
(including, but not limited to, space and power), which
<PAGE>
Contract - Part A
are necessary for USWC to provide the Network Elements and Local Services
pursuant to this Agreement.
20.2 USWC shall be responsible for obtaining and keeping in effect all
FCC, state regulatory commission, franchise authority and other regulatory
approvals that may be required in connection with the performance of its
obligations under this Agreement. CMTI shall be responsible for obtaining and
keeping in effect all FCC, state regulatory commission, franchise authority and
other regulatory approvals that may be required in connection with its offering
of services to CMTI customers contemplated by this Agreement. CMTI shall
reasonably cooperate with USWC in obtaining and maintaining any required
approvals for which USWC is responsible, and USWC shall reasonably cooperate
with CMTI in obtaining and maintaining any required approvals for which CMTI is
responsible.
In the event USWC is required by any governmental authority to file a
tariff or make another similar filing in connection with the performance of any
action that would otherwise be governed by this Agreement, USWC shall: (a)
consult with CMTI reasonably in advance of such filing about the form and
substance of such filing, and (b) take all steps reasonably necessary to ensure
that such tariff or other filing imposes obligations upon USWC that are
identical to those provided in this Agreement and preserves for CMTI the full
benefit of the rights otherwise provided in this Agreement. In no event shall
USWC file any tariff that purports to govern Local Service, Network Elements or
Combinations that is inconsistent with the terms and conditions set forth in
this Agreement.
In the event any final and nonappealable legislative, regulatory,
judicial or other legal action materially affects any material terms of this
Agreement, or the ability of CMTI or USWC to perform any material terms of this
Agreement, CMTI or USWC may, on thirty (30) days' written notice (delivered not
later than thirty (30) days following the date on which such action has become
legally binding and has otherwise become final and nonappealable) require that
such terms be renegotiated, and the Parties shall renegotiate in good faith such
mutually acceptable new terms as may be required. In the event such new terms
are not renegotiated within ninety (90) days after such notice, the dispute
shall be referred to the Dispute Resolution procedures set forth in Section 11
herein.
21. NO THIRD-PARTY BENEFICIARIES
21.1 Except as may be specifically set forth in this Agreement, this
Agreement does not provide and shall not be construed to provide third parties
with any remedy, claim, liability, reimbursement, cause of action or other
privilege. The Commission, on behalf of the public, is a third-party beneficiary
of this Agreement and is entitled to receive notice of, and to intervene in, any
lawsuit that is filed pertaining to this Agreement.
<PAGE>
Contract - Part A
22. RESPONSIBILITY OF EACH PARTY
22.1 Each Party is an independent contractor and has and hereby
retains the right to exercise full control of and supervision over its own
performance of its obligations under this Agreement and retains full control
over the employment, direction, compensation and discharge of all employees
assisting in the performance of such obligations. Each Party will be solely
responsible for all matters relating to payment of such employees, including
compliance with social security taxes, withholding taxes and all other
regulations governing such matters. Each Party will be solely responsible for
proper handling, storage, transport and disposal, at its own expense, of all:
(a) substances or materials that it or its contractors or agents bring to,
create or assume control over at Work Locations, or (b) Waste resulting
therefrom or otherwise generated in connection with its or its contractors' or
agents' activities at the Work Locations. Subject to the limitations on
liability and except as otherwise provided in this Agreement, each Party shall
be responsible for: (x) its own acts and performance of all obligations imposed
by Applicable Law in connection with its activities, legal status and property,
real or personal, and (y) the acts of its own Affiliates, employees, agents and
contractors during the performance of that Party's obligations hereunder.
23. ASSIGNMENT/SUBCONTRACTING
23.1 USWC may not assign any of its rights or delegate any of its
obligations under this Agreement without the prior written consent of CMTI,
which consent shall not be unreasonably withheld. Notwithstanding the foregoing,
USWC may assign its rights and benefits and delegate its duties and obligations
under this Agreement without the consent of CMTI to a one hundred percent (100%)
owned affiliate company of USWC, provided that the performance of any such
assignee is guaranteed by the assignor. Any prohibited assignment or delegations
shall be null and void. The Party making e assignment shall notify the
Commission sixty (60) days in advance of the effective date of the assignment.
USWC may not subcontract the performance of any obligation under this
Agreement without the prior written consent of CMTI, which consent shall not be
unreasonably withheld. If any obligation is performed through a subcontractor,
USWC shall remain fully responsible for the performance of this Agreement in
accordance with its terms, including any obligations it performs through
subcontractors, and USWC shall be solely responsible for payments due its
subcontractors. No contract, subcontract or other agreement entered into by
either Party with any third party in connection with the provision of Local
Services or Network Elements hereunder shall provide for any indemnity,
guarantee or assumption of liability by, or other obligation of, the other Party
to this Agreement with respect to such arrangement, except as consented to in
writing by the other Party. No subcontractor shall be deemed a third party
beneficiary for any purposes under this Agreement.
<PAGE>
Contract - Part A
24. ENTIRE AGREEMENT
24.1 This Agreement, which shall include the Attachments, Appendices
and other documents referenced herein, constitutes the entire agreement between
the Parties and supersedes all prior oral or written agreements,
representations, statements, negotiations, understandings, proposals and
undertakings with respect to the subject matter hereof.
25. SEVERABILITY
25.1 Subject to the provisions of Section 20 herein, if any term,
condition or provision of this Agreement is held to be invalid or unenforceable
for any reason, such invalidity or unenforceability shall not invalidate the
entire Agreement, unless such construction would be unreasonable. This Agreement
shall be construed as if it did not contain the invalid or unenforceable
provision or provisions, and the rights and obligations of each Party shall be
construed and enforced accordingly; provided however, that in the event such
invalid or unenforceable provision or provisions are essential elements of this
Agreement and substantially impair the rights or obligations of either Party,
the Parties shall promptly negotiate a replacement provision or provisions. If
any term, condition, or provision of this Agreement, or this Agreement in its
entirety, is construed to be invalid or unenforceable pursuant to this section,
the Parties shall notify the Commission of the construction. If the Parties
negotiate a replacement provision or provisions pursuant to this section, the
Parties shall submit the new provision to the Commission for its review. If the
Parties cannot agree on a replacement provision, the Parties shall submit the
issue to the Commission for resolution.
26. AMENDMENTS
26.1 Except as otherwise provided in this Agreement, no amendment or
waiver of any provision of this Agreement, and no consent to any default under
this Agreement, shall be effective unless the same is in writing and signed by
an authorized officer of the Party against whom such amendment, waiver or
consent is claimed. In addition, no course of dealing or failure of a Party
strictly to enforce any term, right or condition of this Agreement shall be
construed as a waiver of such term, right or condition. No amendment, waiver, or
consent to default under this Agreement shall be effective without approval of
the Commission.
27. HEADINGS OF NO FORCE OR EFFECT
27.1 The headings of Articles and Sections of this Agreement are for
convenience of reference only, and shall in no way define, modify or restrict
the meaning or interpretation of the terms or provisions of this Agreement.
<PAGE>
Contract - Part A
28. NOTICES
28.1 Any notices or other communications required or permitted to be
given or delivered under this Agreement shall be in hard-copy writing (unless
otherwise specifically provided herein) and shall be sufficiently given if
delivered personally, by certified U. S. Mail or by prepaid overnight express
service to the following (unless otherwise specifically required by this
Agreement to be delivered to another representative or point of contact):
USWC
Director Interconnection Compliance
1801 California, Room 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, 51st Floor
Denver, CO 80202
COMMISSION
Executive Secretary
Minnesota Public Utilities Commission
121 Seventh Place East, Suite 350
St Paul, Minnesota 55101-2147
CMTI
Mr. Richard Smith
730 2nd Avenue South
Suite 1200
Minneapolis, MN 55402
With a copy to:
Mr. Lawrence Freedman
Arter & Hadden LLP
1801 K Street NW, Suite 400K
Washington, DC 20006-1301
Either Party may unilaterally change its designated representative
and/or address for the receipt of notices by giving seven (7) days' prior
written notice to the other Party in compliance with this Section. Any notice or
other communication shall be deemed given when received.
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Contract - Part A
29. INTENTIONALLY DELETED
30. EXECUTED IN COUNTERPARTS
30.1 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original; but such counterparts shall together
constitute one and the same instrument.
31. REFERENCED DOCUMENTS
31.1 Whenever any provision of this Agreement refers to a technical
reference, technical publication, CMTI Practice, USWC Practice, any publication
of telecommunications industry administrative or technical standards, or any
other document specifically incorporated into this Agreement, it will be deemed
to be a reference to the most recent version or edition (including any
amendments, supplements, addenda, or successors) of such document that is in
effect, and will include the most recent version or edition (including any
amendments, supplements, addenda, or successors) of each document incorporated
by reference in such a technical reference, technical publication, CMTI
Practice, USWC Practice, or publication of industry standards (unless CMTI
elects otherwise). In the event a Party finds an inconsistency between or among
publications or standards, the Parties shall attempt to negotiate a mutually
satisfactory resolution of the inconsistency. If the Parties are unable to reach
mutual agreement on the issue, they shall submit the issue to the Commission for
resolution, as provided in Part 11, Dispute Resolution, of this Agreement.
32. SURVIVAL
32.1 Any liabilities or obligations of a Party for acts or omissions
prior to the cancellation or termination of this Agreement; any obligation of a
Party under the provisions regarding indemnification, Confidential Information,
limitations on liability, and any other provisions of this Agreement which, by
their terms, are contemplated to survive (or to be performed after) termination
of this Agreement, shall survive cancellation or termination thereof.
33. SUCCESSORS AND ASSIGNS
33.1 This Agreement shall be binding upon, and inure to the benefit
of, the Parties hereto and their respective successors and permitted assigns.
<PAGE>
Contract - Part A
PART II: LOCAL SERVICES RESALE
34. INTRODUCTION
At the request of CMTI, and pursuant to the requirements of the Act,
USWC will make available to CMTI for resale any Telecommunications Service USWC
currently provides, or may offer hereafter. USWC shall also provide Support
Functions and Services Functions as set forth in the Attachments to this
Agreement. The Telecommunications Services, Service Functions and Support
Functions provided by USWC pursuant to this Agreement are collectively referred
to as "Local Service." This Part, in summary form, and Attachment 2, in detail,
describe several services which USWC shall make available to CMTI for resale
pursuant to this Agreement. These lists are neither all inclusive nor exclusive.
35. LOCAL SERVICES RESALE
35.1 General
USWC shall apply the principles set forth in 47 CFR Section 64.1100 to
the process for end-user selection of a primary local exchange carrier. The
prices charged to CMTI for Local Service shall be wholesale rates determined on
the basis of retail rates charged to subscribers for the Telecommunications
Service requested, excluding the portion thereof attributable to any marketing,
billing, collection and other costs that will be avoided by USWC. Except as
limited by Attachment 2, CMTI may resell Local Services to provide
Telecommunications Services to any and all classes of end-users. USWC shall
ensure that all CMTI customers experience the same dialing parity as
similarly-situated customers of USWC services. USWC will notify CMTI of any
changes in the terms and conditions under which it offers Telecommunications
Services at retail to subscribers who are not telecommunications service
providers or carriers.
35.2 Specific Services
(a) At CMTI's option, CMTI may purchase the entire set of CENTREX
features or a subset of any one or any combination of such features, tariffed or
non-tariffed.
(b) CMTI may purchase the entire set of CLASS and Custom features and
functions, a subset of or any combination of such features.
(c) Local Services include certain Voluntary Federal Customer
Financial Assistance Programs.
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Contract - Part A
(d) USWC shall provide E911 and 911 Service to CMTI, for CMTI's
customers.
(e) Where USWC provides Telephone Relay Service, USWC shall make such
service available to CMTI at no additional charge, for use by CMTI customers who
are speech or hearing-impaired.
(f) CMTI may purchase the entire set of Advanced Intelligent Network
("AIN") features or functions, or a subset or any one or any combination of such
features or functions, on a customer-specific basis.
35.3 Support Functions
(a) Routing to Directory Assistance, Operator and Repair Services.
(b) Busy Line Verification and Emergency Line Interrupt.
(c) Access to the Line Information Database.
(d) Telephone line number calling cards.
35.4 Service Functions
(a) USWC shall provide an electronic interface for transferring and
receiving Service Orders and Provisioning data and materials.
(b) Work order processes shall meet service parity requirements.
(c) The point of contact for CMTI customers shall be CMTI.
(d) Each Party shall provide the other Party with a single point of
contact for all inquiries regarding the implementation of this Part.
(e) CMTI's representative will have real-time access to USWC customer
information to enable the CMTI representative to perform tasks outlined on
Attachments 2, 5, 6, and 9.
(f) After receipt and acceptance of a Service Order, USWC shall
provision such Service Order in accordance with the Intervals and DMOQs
specified in Attachment 11.
(g) Maintenance shall be provided in accordance with the requirements
and standards set forth in Attachments 6 and 11.
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Contract - Part A
(h) USWC shall provide the Customer Usage Data recorded by USWC in
accordance with the requirements and standards set forth in Attachment 8.
(i) In addition to testing described elsewhere in this Section and
Attachment 3, USWC shall test the systems used to perform the functions set
forth in Attachment 2 at least sixty (60) days prior to commencement of USWC's
provision of Local Service, in order to establish system readiness capabilities.
(j) USWC shall bill CMTI for Local Service provided by USWC to CMTI
pursuant to the terms of this Part and Schedules 1 and 2. USWC shall recognize
CMTI as the customer of record for all Local Service and will send all notices,
bills and other pertinent information directly to CMTI.
PART III: UNBUNDLED NETWORK ELEMENTS
36. INTRODUCTION
36.1 This Part III sets forth the unbundled Network Elements USWC
agrees to offer to CMTI in accordance with its obligations under Section 251
(c)(3) of the Act. The specific terms and conditions that apply to the unbundled
Network Elements are described below and in the Network Elements Service
Description Attachment. The price for each Network Element is set forth in Part
IV of this Agreement.
37. UNBUNDLED NETWORK ELEMENTS
USWC will offer Network Elements to CMTI on an unbundled basis on
rates, terms and conditions that are just, reasonable and non-discriminatory in
accordance with the terms and conditions of this Agreement and the requirements
of Section 251 and Section 252 of the Act.
USWC will permit CMTI to interconnect CMTI's facilities or facilities
provided by CMTI or by third parties with each of USWC's unbundled Network
Elements at any point designated by CMTI that is technically feasible.
CMTI, at its option, may designate any technically feasible network
interface at a Served Premises, including, without limitation, DS-0, DS-1, DS-3,
STS-1, and OC-n (where n equals I to)) interfaces, and any other interface
described in the applicable technical references.
CMTI may use one or more Network Elements to provide any feature,
function or service option that such Network Element is capable of providing or
any feature, function or service option described in the technical references
identified herein, or as may otherwise be determined by CMTI.
<PAGE>
Contract - Part A
USWC shall offer each Network Element individually and in combination
with any other Network Element or Network Elements in order to permit CMTI to
combine such Network Element or Network Elements with another Network Element or
other Network Elements obtained from USWC or with network components provided by
itself or by third parties to provide Telecommunications Services to its
customers.
For each Network Element, USWC shall provide a demarcation point
(e.g., an interconnection point at a Digital Signal Cross Connect or Light Guide
Cross Connect panel or a Main Distribution Frame) and, if necessary, access to
such demarcation point, which CMTI agrees is suitable. Where USWC provides
contiguous Network Elements to CMTI, however, USWC may provide the existing
interconnections and no demarcation point shall exist between such contiguous
Network Elements.
USWC shall not charge CMTI an interconnection fee or demand other
consideration for directly interconnecting any Network Element or Combination to
any other Network Element or Combination provided by USWC to CMTI if USWC
directly interconnects the same two Network Elements or Combinations in
providing any service to its own customers or a USWC affiliate, including the
use of intermediate devices, such as a digital signal cross connect panel, to
perform such interconnection.
The total charge to CMTI to interconnect any Network Element or
Combination to any other Network Element or Combination provided by USWC to CMTI
if USWC does not directly interconnect the same two Network Elements or
Combinations in providing any service to its own customers or a USWC affiliate
(e.g., the interconnection required to connect the Loop Feeder to an ALEC's
collocated equipment), shall be USWC's total service long-run incremental cost
of providing the interconnection.
Subsections I through 11 below list the Network Elements CMTI and USWC
have identified as of the Effective Date of this Agreement. CMTI and USWC agree
that the Network Elements identified in this Part Ill are not exclusive. Either
Party may identify additional or revised Network Elements as necessary to
improve services to customers, to improve network or service efficiencies or to
accommodate changing technologies, customer demand, or regulatory requirements.
Upon the identification of a new or revised Network Element, the Party so
identifying the new or revised Network Element shall notify the other Party of
the existence of and the technical characteristics of the new or revised Network
Element. If the Parties do not agree on the existence of and the technical
characteristics of the newly identified or revised Network Element, any issues
not resolved by the Parties within thirty (30) days of notification shall be
submitted to the Dispute Resolution Procedures as set forth in this Agreement.
Within thirty (30) days of CMTI and USWC agreeing on the technical
characteristics of the new or revised Network Element, the Parties will attempt
to agree on the rates, terms and conditions that would apply to such Network
Element and the effects, if any, on the price, performance or other terms and
conditions of existing Network Elements. If the
<PAGE>
Contract - Part A
Parties do not agree on rates, terms and conditions and other matters set forth
herein, any issues not resolved by the Parties within thirty (30) days shall be
submitted to the Dispute Resolution Procedures as set forth in this Agreement.
Additionally, if USWC provides any Network Element not identified in this
Agreement, to itself, to its own customers, to a USWC Affiliate or to any other
entity, USWC will provide the same Network Element to CMTI on rates, terms and
conditions no less favorable to CMTI than those provided to itself or to any
other Party. The Network Elements are described below. Additional descriptions,
and requirements for each Network Element are set forth in Attachment 3.
37.1 Loop Distribution
"Loop Distribution" is a Network Element comprised of two (2) distinct
component parts: a Network Interface Device and Distribution Media.
37.2 Network Interface Device
The "Network Interface Device" ("NID") is a single-line termination
device or that portion of a multiple-line termination device required to
terminate a single line or circuit. The fundamental function of the NID is to
establish the official network demarcation point between a carrier and its
end-user customer. The NID features two (2) independent chambers or divisions
which separate the service provider's network from the customer's inside wiring.
Each chamber or division contains the appropriate connection points or posts to
which the service provider and the end-user customer each make their
connections. The NID provides a protective ground connection and is capable of
terminating cables such as twisted pair cable.
37.3 Distribution Media
"Distribution Media" provides connectivity between the NID component
of Loop Distribution and the terminal block on the customer-side of a Feeder
Distribution Interface (FDI). The FDI is a device that terminates the
Distribution Media and the Loop Feeder, and cross-connects them in order to
provide a continuous transmission path between the NID and a telephone company
central office. For loop plant that contains a Loop Concentrator/Multiplexer,
the Distribution Media may terminate at the FDI (if one exists), or at a
termination and cross-connect field associated with the Loop
Concentrator/Multiplexer. This termination and cross-connect field may be in the
form of an outside plant distribution closure, remote terminal or fiber node, or
an underground vault.
The Distribution Media may be copper twisted pair, coax cable, or
single or multi-mode fiber optic cable. A combination that includes two or more
of these media is also possible. In certain cases, CMTI shall require a copper
twisted pair Distribution
<PAGE>
Contract - Part A
Media even in instances where the Distribution Media for services USWC
(pound)ffers is other than a copper facility.
37.4 Loop Concentrator/Multiplexer
The "Loop Concentrator/Multiplexer" is the Network Element that: (a)
aggregates lower bit rate or bandwidth signals to higher bit rate or bandwidth
signals (multiplexing); (b) disaggregates higher bit rate or bandwidth signals
to lower bit rate or bandwidth signals (demultiplexing); (c) aggregates a
specified number of signals or channels to fewer channels (concentrating); (d)
performs signal conversion, including encoding of signals (e.g., analog to
digital and digital to analog signal conversion); and (e) in some instances
performs electrical to optical (E/O) conversion.
The Loop Concentrator/Multiplexer function may be provided through a
Digital Loop Carrier (DLC) system, channel bank, multiplexer or other equipment
at which traffic is encoded and decoded, multiplexed and demultiplexed, or
concentrated.
37.5 Loop Feeder
The "Loop Feeder" is the Network Element that provides connectivity
between: (a) an FDI associated with Loop Distribution and a termination point
appropriate for the media in a central office, or (b) a Loop
Concentrator/Multiplexer provided in a remote terminal and a termination point
appropriate for the media in a central office. USWC shall provide CMTI physical
access to the FDI, and the right to connect the Loop Feeder to the FDI.
The physical medium of the Loop Feeder may be copper twisted pair, or
single or multi-mode fiber as designated by CMTI. In certain cases, CMTI will
require a copper twisted pair loop even in instances where the medium of the
Loop Feeder for services USWC offers is other than a copper facility.
37.6 Local Switching
"Local Switching" is the Network Element that provides the
functionality required to connect the appropriate originating lines or trunks
wired to the Main Distribution Frame (MDF) or Digital Cross Connect (DSX) panel
to a desired terminating line or trunk. Such functionality shall include all of
the features, functions and capabilities the underlying USWC switch providing
such Local Switching function is then capable of providing, including, but not
limited to: line signaling and signaling software, digit reception, dialed
number translations, call screening, routing, recording, call supervision, dial
tone, switching, telephone number provisioning, announcements, calling features
and capabilities (including call processing), CENTREX, Automatic Call
Distributor (ACD), Carrier pre-subscription (e.g., long distance carrier,
intraLATA toll), Carrier ldentification Code (CIC) portability capabilities,
testing and other operational
<PAGE>
Contract - Part A
features inherent to the switch and switch software. It also provides access to
transport, signaling (ISDN User Part (ISUP) and Transaction Capabilities
Application Part (TCAP), and platforms such as adjuncts, Public Safety Systems
(911)' operator services, directory services and Advanced Intelligent Network
("AIN"). Remote Switching Module functionality is included in the Local
Switching function. The switching capabilities used will be based on the line
side features they support. Local Switching will also be capable of routing
local, intraLATA, InterLATA, and calls to international customer's preferred
carrier; call features (e.g., call forwarding) and CENTREX capabilities.
Local Switching also includes Data Switching, which provides:
For Asynchronous Transfer Mode (ATM) and Frame Relay Service, data
services switching functionality required to connect the facilities from the
User to Network Interface (UNI) to either another UNI or to a communications
path at the Network to Network Interface (NNI). In this case, the purpose of
Data Switching is to terminate, concentrate and switch data traffic from
Customer Premises Equipment (CPE) in the digital format consistent with the UNI
specification for the customer. Data Switching also provides connectivity for
the purpose of conveying the customer data to its final destination. The UNI and
NNI are industry standard interface specifications that contain physical
transmission layer requirements for speeds and line formats; data link layer
requirements for the format of the data units passed between the user and the
network; and protocol requirements for control procedures used in managing the
interface. Data Switching provides this functionality in two distinct formats,
ATM and Frame Relay.
For ISDN Packet and Circuit Switched Data service, the data switching
functionality required to connect between industry standard ISDN interfaces. In
this case, the purpose of Data Switching is to terminate, concentrate and switch
data traffic from Customer Premises Equipment (CPE) in the digital format
consistent with ISDN standards. Data Switching also provides connectivity for
the purpose of conveying the customer data to its final destination.
37.7 Operator Systems
"Operator Systems" is the Network Element that provides operator and
automated call handling and billing, special services, customer telephone
listings and optional call completion services. The Operator Systems Network
Element provides two types of functions: Operator Service functions and
Directory Service functions, each of which are described below.
Operator Service provides: (a) operator handling for call completion
(for example, collect, third number billing, and manual credit card calls), (b)
operator or automated assistance for billing after the customer has dialed the
called number (for
<PAGE>
Contract - Part A
example, credit card calls); and (c) special services including, but not limited
~o, Busy Line Verification and Emergency Interrupt (BLV/EI), Emergency Agency
Call, Operator-assisted Directory Assistance and Rate Quotes.
Directory Service provides local customer telephone number listings
with the option to complete the call at the callers direction.
37.8 Transport
"Common Transport" is an interoffice transmission path between USWC
Network Elements. Where USWC Network Elements are connected by intra-office
wiring, such wiring is provided as a part of the Network Elements and is not
Common Transport.
"Dedicated Transport" is an interoffice transmission path between CMTI
designated locations. Such locations may include USWC central offices or other
equipment locations, CMTI network components, other carrier network components,
or customer premises. Dedicated Transport includes the Digital Cross-Connect
System (DCS) functionality as an option.
"Signaling Link Transport" is a set of two (2) or four (4) dedicated
56 Kbps transmission paths between CMTI-designated Signaling Points of
Interconnection (SPOI) that provides appropriate physical diversity.
37.9 Signaling Transfer Points
"Signaling Transfer Points" is a signaling network function that
includes all the capabilities provided by the signaling transfer point switches
(STPSs) and their associated signaling links which enable the exchange of SS7
messages among and between switching elements, database elements and signaling
transfer points.
37.10 Service Control Points (SCPs)/Databases
Databases are the Network Elements that provide the functionality for
storage of, access to, and manipulation of information required to offer a
particular service or capability.
A Service Control Point (SCP) is a specific type of Database
functionality deployed in a Signaling System 7 (SS7) network that executes
service application logic in response to SS7 queries sent to it by a switching
system also connected to the SS7 network. SCPs also provide operational
interfaces to allow for provisioning, administration and maintenance of
subscriber data and service application data (e.g., an 800 database stores
customer record data that provides information necessary to route 800 calls).
<PAGE>
Contract - Part A
37.11 Tandem Switching
"Tandem Switching" is the function that establishes a communications
path between two (2) switching offices through a third switching office (the
tandem switch).
37.12 Standards for Network Elements
Each Network Element shall be equal to or better than the requirements
set forth in the technical references, as well as any performance or other
requirements identified herein. If another Bell Communications Research, Inc.
("Bellcore"), or industry standard (e.g., American National Standards Institute
("ANSI")) technical reference or a more recent version of such reference sets
forth a different requirement, CMTI may elect, where technically feasible, which
standard shall apply.
Each Network Element and the interconnections between Network Elements
provided by USWC to CMTI shall be at least equal in quality of design,
performance, features, functions and other characteristics, including, but not
limited to, levels and types of redundant equipment and facilities for power,
diversity and security, USWC provides in its network to itself, to its own
customers, to its Affiliates, or to any other entity.
USWC shall provide to CMTI, upon reasonable request, such engineering,
design, performance and other network data sufficient for CMTI to determine that
the requirements of this Section 37 are being met. In the event such data
indicates the requirements of this Section 37 are not being met, USWC shall,
within ten (10) days, cure any design, performance or other deficiency and
provide new data sufficient for CMTI to determine that such deficiencies have
been cured.
USWC agrees to work cooperatively with CMTI to provide Network
Elements that will meet CMTI's needs in providing services to its customers.
Unless otherwise designated by CMTI, each Network Element and the
interconnections between Network Elements provided by USWC to CMTI shall be made
available to CMTI on a priority basis equal to or better than the priorities
USWC provides to itself, to its own customers, to its Affiliates, or to any
other entity.
37.13 Bona Fide Request Process
37.13.1 Any request for interconnection or access to an unbund led
Network Element not already available via price lists, tariff, or as described
herein shall be treated as a Request under this Section.
37.13.2 USWC shall use the Bona Fide Request (BFR) process to
determine the technical feasibility of the requested interconnection or Network
<PAGE>
Contract- PartA
Element(s) and, for those items found to be technically feasible, to provide the
terms and timetable for providing the requested items. Additionally, elements,
services and functions which are materially or substantially different from
those services, elements or functions already provided by USWC to itself, its
Affiliates, customers, or end users may, at the discretion of CMTI, be subject
to this BFR process.
37.13.3 A Request shall be submitted in writing and, at a minimum,
shall include: (a) a complete and accurate technical description of each
requested Network Element or interconnection; (b) the desired interface
specifications; (c) a statement that the interconnection or Network Element will
be used to provide a telecommunications service; (d) the quantity requested; (e)
the location(s) requested; and (f) whether CMTI wants the requested item(s) and
terms made generally available.
37.13.4 Within forty-eight (48) hours of receipt of a Request, USWC
shall acknowledge receipt of the Request and review such request for initial
compliance with Subsection 37.13.3 above and, in its acknowledgment, advise CMTI
of any missing information reasonably necessary to move the Request to the
preliminary analysis described in Subsection 37.13.5 below.
37.13.5 Unless otherwise agreed to by the Parties, within thirty (30)
calendar days of its receipt of the Request and all information necessary to
process it USWC shall provide to CMTI a preliminary analysis of the Request.
During the thirty (30) day period, USWC agrees to provide weekly status updates
to CMTI. USWC will notify CMTI if the quote preparation fee, if any, will exceed
$5,000. CMTI will approve the continuation of the development of the quote prior
to USWC incurring any reasonable additional expenses. The preliminary analysis
shall specify whether or not the requested interconnection or access to an
unbundled Network Element is technically feasible and otherwise qualifies as a
Network Element or interconnection as defined under the Act.
37.13.5.1 If USWC determines during the thirty (30) day period that a
Request is not technically feasible or that the Request otherwise does not
qualify as a Network Element or interconnection required to be provided under
the Act, USWC shall so advise CMTI as soon as reasonably possible of that fact,
and promptly provide a written report setting forth the basis for its conclusion
in no case later than ten (10) calendar days after making such determination.
37.13.5.2 If USWC determines during the thirty (30) day period that
the Request is technically feasible and otherwise qualifies under the Act, it
shall notify CMTI in writing of such determination in no case later than ten
(10) calendar days after making such determination.
37.13.5.3 Unless otherwise agreed to by the Parties, as soon as
feasible, but no more than ninety (90) calendar days after USWC notifies CMTI
that the Request is
<PAGE>
Contract - Part A
technically feasible, USWC shall provide to CMTI a Request quote which will~
include, at a minimum, a description of each interconnection and Network
Element, the quantity to be provided, the installation intervals (both initial
and subsequent), the impact on shared systems software interfaces, the ordering
process changes, the functionality specifications, any interface specifications,
and either:
(a) the applicable rates (recurring and nonrecurring),
including the amortized development costs, as appropriate, of the
interconnection or Network Element; or
(b) the payment for development costs, as appropriate, of
the interconnection or Network Element and the applicable rates (recurring and
nonrecurring), excluding the development costs.
37.13.5.4 The choice of using either option (a) or (b) above shall be
at USWC's sole discretion. A payment for development cost, however, is
appropriate only where CMTI is the only conceivable user of the functionality
(including consideration of USWC as a potential user) or where the requested
quantity is insufficient to provide amortization.
37.13.6 If USWC has used option (a) above in its Request quote, then,
within thirty (30) days of its receipt of the Request quote, CMTI must indicate
its nonbinding interest in purchasing the interconnection or Network Element at
the stated quantities and rates, cancel its Request, or seek remedy under the
Dispute Resolution section of this Agreement.
37.13.7 If USWC has used option (b) above in its Request quote, then,
within thirty (30) days of its receipt of the Request quote, CMTI must either
agree to pay the development costs of the interconnection or Network Element,
cancel its Request, or seek remedy under the Dispute Resolution section of this
Agreement.
37.13.8 If USWC has used option (b) in its Request quote and CMTI has
accepted the quote, CMTI may cancel the Request at any time, but will pay USWC's
reasonable development costs of the interconnection or Network Element up to the
date of cancellation.
37.13.9 USWC will use reasonable efforts to determine the technical
feasibility and conformance with the Act of the Request within the first
thirty-two (32) days-of receiving the Request. In the event USWC has used option
(b) above in its Request quote and USWC later determines that the
interconnection or Network Element requested in the Request is not technically
feasible or otherwise does not qualify under the Act, USWC shall notify CMTI
within ten (10) business days of making such determination and CMTI shall not
owe any compensation to USWC in connection
<PAGE>
Contract - Part A
with the Request. Any quotation preparation fees or development costs paid by
CMTI to the time of such notification shall be refunded by USWC.
37.13.10 To the extent possible, USWC will utilize information from
previously developed BFRs to address similar arrangements in order to shorten
the response times for the currently requested BFR. In the event CMTI has
submitted a Request for an interconnection or a Network Element and USWC
determines in accordance with the provisions of this Section 37.13 that the
Request is technically feasible, the Parties agree that CMTI's subsequent
request or order for the identical type of interconnection or Network Element
shall not be subject to the BFR process.
37.13.11 In the event of a dispute under this Section 37.13, the
Parties agree to seek expedited Commission resolution of the dispute, with the
request to the Board to be completed within twenty (20) days of USWC's response
denying CMTI's BFR, and in no event more than thirty (30) days after the filing
of CMTI's petition.
PART IV: ANCILLARY FUNCTIONS
38. INTRODUCTION
This Part IV sets forth the Ancillary Functions USWC agrees to offer
to CMTI so that CMTI may obtain and use unbundled Network Elements or USWC
services to provide services to its customers.
39. USWC PROVISION OF ANCILLARY FUNCTIONS
USWC will offer Ancillary Functions to CMTI on rates, terms and
conditions that are just, reasonable and non-discriminatory and in accordance
with the terms and conditions of this Agreement.
USWC will permit CMTI to interconnect CMTI's equipment and facilities
or equipment and facilities provided by CMTI or by third parties at any point
designated by CMTI that is technically feasible.
CMTI may use any Ancillary Function to provide any feature, function
or service option such Ancillary Function is capable of providing or any
feature, function or service option described in the technical references
identified herein, or as may otherwise be designated by CMTI.
Subsections 39.1 through 39.3 below list the Ancillary Functions CMTI
and USWC have identified as of the Effective Date of this Agreement. CMTI and
USWC agree that the Ancillary Functions identified in this Part IV are not
exclusive. Either Party may identify additional or revised Ancillary Functions
as necessary to improve services to customers, to improve network or service
efficiencies, or to accommodate
<PAGE>
Contract- PartA
changing technologies, customer demand or regulatory requirements. Upon the
identification of a new or revised Ancillary Function, the Party so identifying
the new or revised Ancillary Function shall notify the other Party of the
existence of and the technical characteristics of the new or revised Ancillary
Function. If the Parties do not agree on the existence of and the technical
characteristics of the newly identified or revised Ancillary Function, any
issues not resolved by the Parties within thirty (30) days of notification shall
be submitted to the Dispute Resolution Procedures as set forth in this
Agreement. Within thirty (30) days of CMTI and USWC agreeing on the technical
characteristics of the new or revised Ancillary Function, the Parties will
attempt to agree on the rates, terms and conditions that would apply to such
Ancillary Function and the effects, if any, on the price, performance or other
terms and conditions of existing Network Elements or Ancillary Functions. If the
Parties do not agree on rates, terms and conditions and other matters set forth
herein, any issues not resolved by the Parties within thirty (30) days shall be
submitted to the Dispute Resolution Procedures as set forth in this Agreement.
Additionally, if USWC provides any Ancillary Function not identified in this
Agreement to itself, to its own customers, to its Affiliates or to any other
entity, USWC will provide the same Ancillary Function to CMTI at rates, terms
and conditions no less favorable to CMTI than those provided by USWC to itself
or to any other Party. The Ancillary Functions are described below. Additional
descriptions and requirements for each Ancillary Function are set forth in
Attachment 4.
39.1 Collocation
"Collocation" is the right of CMTI to obtain dedicated space in USWC
Local Serving Office (LSO) or at other USWC locations and to place equipment in
such spaces to interconnect with USWC's network. Collocation also includes USWC
providing resources necessary for the operation and economical use of collocated
equipment.
39.2 Right of Way (ROW), Conduits and Pole Attachments
"Right of Way" ("ROW") is the right to use the land or other property
of another Party to place poles, conduits, cables, other structures and
equipment, or to provide passage to access such structures and equipment. A ROW
may run under, on or above public or private property (including air space above
public or private property) and may include the right to use discrete space in
buildings, building complexes or other locations.
"Conduit" is a tube or protected trough that may be used to house
communication or electrical cables. Conduit may be underground or above ground
(for example, inside buildings) and may contain one or more innerducts.
<PAGE>
Contract-Part A
"Pole Attachment" is the connection of a facility to a utility pole.
Some examples of facilities are mechanical hardware, grounding and transmission
cable, and equipment boxes.
39.3 Unused Transmission Media
"Unused Transmission Media" is physical inter-office transmission
media (e.g., optical fiber, copper twisted pairs, coaxial cable) which has no
lightwave or electronic transmission equipment terminated to such media to
operationalize its transmission capabilities. This media may exist in aerial or
underground structure or within a building.
40. STANDARDS FOR ANCILLARY FUNCTIONS
Each Ancillary Function shall meet or exceed the requirements set
forth in the technical references, as well as the performance and other
requirements identified herein.
Each Ancillary Function provided by USWC to CMTI shall be at least
equal in the quality of design, performance, features, functions and other
characteristics, including, but not limited to, levels and types of redundant
equipment and facilities for diversity and security, that USWC provides in
USWC's network to itself, its own customers, its affiliates or any other entity.
USWC shall provide to CMTI, upon reasonable request, such engineering,
design, performance and other network data sufficient for CMTI to determine that
the requirements of this Agreement are being met. In the event such data
indicates the requirements of this Agreement are not being met, USWC shall,
within thirty (30) days, cure any design, performance or other deficiency and
provide new data sufficient for CMTI to determine that such deficiencies have
been cured.
USWC agrees to work cooperatively with CMTI to provide Ancillary
Functions that will meet CMTI's needs in providing services to its customers.
Unless otherwise designated by CMTI, each Ancillary Function provided
by USWC to CMTI shall be made available to CMTI on a priority basis at least
equal to the priorities USWC provides to itself, its customers, its Affiliates
or any other entity.
<PAGE>
Contract - Part A
PARTV: PRICING
41. GENERAL PRINCIPLES
41.1 All services currently provided hereunder (including resold Local
Services), Network Elements and Combinations and all new and additional services
or Network Elements to be provided hereunder, shall be priced in accordance with
all applicable provisions of the Act and the rules and orders of the Federal
Communications Commission and any state public utility commission having
jurisdiction over this Agreement.
41.2 The cost, based on prices approved by the Commission, of
providing branding of operator and directory assistance shall be borne by CMTI,
if CMTI requests such branding. Upon approval by the Commission of the pricing,
USWC may also recover the costs of branding repair and maintenance from CMTI, if
CMTI requests such branding. USWC must file its proposed rates for repair and
maintenance branding within forty-five (45) days of CMTI's specific request for
such branding.
41.3 With respect to interface costs, the Commission will project the
demand for particular interfaces over the lives of the facilities and establish
prices for each interface based on TELRIC costs plus a reasonable contribution
from all future beneficiaries of each interface, including USWC if USWC benefits
from an interface. USWC must develop such interfaces as are reasonably necessary
for efficient operations.
41.4 All services that USWC provides at retail to subscribers who are
not telecommunications carriers shall be provided at wholesale rates. Wholesale
rates shall be determined on the basis of retail rates charged to subscribers
for the telecommunications service requested, excluding the portion thereof
attributable to any marketing, billing, collection, and other costs that will be
avoided by USWC.
41.5 Special Construction Charges
When, for the purpose of reselling USWC services, CMTI asks
USWC to build a facility in an area not yet served, or to provide more facility
than USWC would otherwise provide its customers in fulfilling its
responsibilities as a public utility, USWC may recover its excess costs. In such
a case, USWC may recover its economically efficient charges, over and above
those normally incurred in serving its own customers that result from CMTI's
request to extend or expand CMTI's resold services. USWC shall not double
recover charges. USWC's recovery will be limited to charges not already
recovered in prices charged and will be limited to the level of benefit that
CMTI experiences as a result of its request. If USWC or any third party or
parties also benefit from the construction, USWC's recovery from CMTI will be
limited to a percentage share of the total charges, based on a reasonable
estimate of the benefits each party will receive.
<PAGE>
Contract - Part A
41.6 USWC has the right to recover costs, if they exist, incurred in
unbundling network elements or interconnecting with CMTI. The price will be zero
in the interim, subject to true up in the event the Commission identifies such
costs in future proceedings.
41.7 The Parties will provide for the allocation of development or
modification costs of the network based on all beneficiaries' share of the
traffic. Such cost should be TELRIC plus a reasonable contribution.
41.8 Loop conditioning charges may be recovered by USWC via a
recurring monthly TELRIC-based charge to CMTI as approved by the Commission in
the generic cost proceeding initiated in the Commission's December 2,1996 Order
in Docket No. P-442,421/M96-855, et al. In the interim, USWC shall have the
right to recover, up front, its full loop conditioning costs.
41.9 The price for custom routing will be provided on a case-by-case
basis.
41.10 If CMTI requests USWC to develop the capabilities to provide
unbundled call completion services as provided for in Attachment 3, Section
7.2.2.10 of this Agreement, CMTI shall pay USWC the reasonable costs thereof.
Prices should be TELRIC based, including development costs. USWC shall not
impose volume and term requirements with such services.
41.11 The Parties must use the FCC proxy rates in 47 CFR Section 51
3(c)(6) for collocation costs on an interim basis subject to true up. If the
Parties cannot identify an applicable proxy price, the Parties must apply the
corresponding rate approved by the Oregon Commission as the interim price.
41.12 With respect to pole attachments, USWC may continue to charge
the annual usage fee, make ready charges, labor charges and applications fees it
has charged under the provisions of the 1978 Pole Attachment Act, except as
modified by Section 703 of the Telecommunications Act of 1996 and by future FCC
regulations. USWC may not, however, charge minimum purchase requirements to a
requesting carrier.
42. PRICE SCHEDULES
42.1 Local Service Resale: The prices charged to CMTI for Local
Service are set forth in Schedule I to this Agreement, and shall be wholesale
rates determined on the basis of retail rates charged to subscribers for the
Telecommunications Service requested, excluding the portion thereof attributable
to any marketing, billing, collection and other costs that will be avoided by
USWC, as specified in the Act or by the FCC and/or the Commission. All
Telecommunications Services, including, but not limited to, promotions, pricing
plans, custom offers and discounts for volume and term
<PAGE>
Contract - Part A
commitments, shall be available to CMTI at wholesale rates and on no less
favorable terms than those USWC makes available to its end-users. In no event
shall CMTI be required to agree to volume or term commitments as a condition for
obtaining Local Service at wholesale rates.
42.2 Unbundled Network Elements - Schedule 2
(a) Prices for transport and termination are set forth in Schedule 2
to this Agreement.
(b) Based upon the Commission Order dated December 2,1996, the Parties
will charge symmetrical rates, based on an appropriate cost model, for
termination and transport to the extent the relevant CMTI switch has the
capability of serving the same geographic area as USWC's tandem switch.
(c) Charges for Network Elements will be based on a flat rate, a usage
sensitive rate, or a combination of both as follows:
- - Loop distribution: flat rate.
- - Loop concentration/multiplexer: flat rate.
- - Loop feeder: flat rate.
- - Switching: Flat rate per line; usage sensitive rate based on calling
volumes.
- - Operator systems: flat rate per message.
- - Dedicated transport: flat rate.
- - Common transport: usage sensitive rate.
- - Tandem switching: flat rate for dedicated and common trunk
interconnection plus usage sensitive rate for switching function.
- - Signaling links: flat rate per month.
- - Signal transfer point: [to be provided]
- - Service control point: flat rate per queries or data dips.
43. RESERVATION OF RIGHTS
43.1 The Parties acknowledge that the terms of this Agreement were
established pursuant to an order of the Commission. Any or all of the terms of
this Agreement may be altered or abrogated by a successful challenge to this
Agreement (or the order approving this Agreement) as permitted by applicable
law. By signing this Agreement, the Parties do not waive their right to pursue
such a challenge.
<PAGE>
Contract - Part A
IN WITNESS WHEREOF, the Parties hereto have caused this Agreerment to
be executed by their respective duly authorized representatives.
<TABLE>
<S> <C>
*CADY TELEMANAGEMENT, INC. U S WEST COMMUNICATIONS, INC.
By: /s/ Richard A. Smith By: /s/ Katherine L. Fleming
-------------------------------- ---------------------------------------
Name: Richard A. Smith Name: Katherine L. Fleming
Title: Chief Operating Officer Title: Vice President - Interconnection
Date: August 6, 1999 Date: 8/16/99
</TABLE>
*This Agreement is made pursuant to Section 252(i) of the Act and is
premised upon the interconnection agreement between AT&T Corp and USW (the
"Underlying Agreement"). The Underlying Agreement was approved by the Commission
on March 14, 1997. CTMI is adopting the terms of the Underlying Agreement,
pursuant to Section 252(i) of the Telecommunications Act of 1996 ("Act"), in its
entirety, subject to the following:
1. The Parties shall request the Commission to expedite its review and approval
of this Agreement.
2. Notwithstanding the mutual commitments set forth herein, the Parties are
entering into this Agreement without prejudice to any positions they have taken
previously, or may take in the future, in any legislative, regulatory, or other
public forum addressing any matters, including those relating to the types of
arrangements contained in this Agreement. During the MPUC's proceeding to review
and approve the Parties' Interconnection Agreement, either party may point out
that it has objected, and continues to object, to the inclusion of the terms and
conditions to which it objected in the proceedings involving the approval of the
Underlying Agreement.
3. This Agreement contains provisions based upon the decisions and orders of the
courts, the FCC, and the Commission. To the extent either Party believes a
subsequent final judicial or regulatory decision or order requires a change in
the Parties' Interconnection Agreement, such Party may negotiate such change
with the other Party in accordance with the terms of the Underlying Agreement.
<PAGE>
Contract - Part A
4. Subsequent to the execution of this Agreement, the FCC or the Commission may
issue decisions or orders that change or modify the rules and regulations
governing implementation of the Act. If a final decision or order regarding such
changes or modifications alters the state of the law upon which the Underlying
Agreement was obtained, then either Party may seek to amend this Agreement to
reflect such changes in accordance with the terms of the Underlying Agreement.
5. Where the parties fail to agree upon any amendment contemplated hereinabove,
the dispute shall be resolved in accordance with the Dispute Resolution
provision of this Agreement.
<PAGE>
Exhibit 10.1.41
AGREEMENT
BETWEEN
NEVADA BELL
AND
ATI, INC.
EFFECTIVE DATE:
1997
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Preface ............................................................................................1
Recitals ...........................................................................................1
1. Provision of Local Service and Unbundled Elements..............................................................2
2. Term of Agreement; Transitional Support........................................................................3
3. Good Faith Performance.........................................................................................3
4. Option to Obtain Local Services or Network Elements Under Other Agreements.....................................3
5. Responsibility of Each Party...................................................................................3
6. Governmental Compliance........................................................................................4
7. Responsibility For Environmental Contamination.................................................................4
8. Regulatory Matters.............................................................................................5
9. Liability and Indemnity........................................................................................5
10. Audits and Inspections........................................................................................7
11. Performance Standards and Remedies............................................................................8
12. Force Majeure.................................................................................................8
13. Certain State and Local Taxes.................................................................................9
14. Alternative Dispute Resolution................................................................................9
15. Notices.......................................................................................................9
16. Confidentiality and Proprietary Information..................................................................10
17. Branding.....................................................................................................11
18. Miscellaneous................................................................................................12
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ATTACHMENTS
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Attachment 1 Definitions
Attachment 2 Acronyms
Attachment 3 Alternative Dispute Resolution
Attachment 4 Directory Listing Requirements
Attachment 5 Local Services Resale
Attachment 6 Unbundled Network Elements
Attachment 7 Rights of Way (ROW), Conduits, Pole Attachments
Attachment 8 Pricing
Attachment 9 [Intentionally Omitted]
Attachment 10 Collocation
Attachment 11 Provisioning and Ordering
Attachment 12 Maintenance
Attachment 13 Connectivity Billing and Recording
Attachment 14 Provision of Customer Usage Data
Attachment 15 Local Number Portability and Number Assignment
Attachment 16 Security
Attachment 17 Performance Standards
Attachment 18 Interconnection
</TABLE>
<PAGE>
PREFACE
AGREEMENT
This Agreement, which shall become effective as of the 27th
day of October, 1997, is entered into by and between Advanced
Telecommunications, Inc., a Minnesota corporation, having an office at 730 2nd
Avenue South, Suite 410, Minneapolis, Minnesota, on behalf of itself and its
Affiliates (individually and collectively "ATI"), and NEVADA BELL, a Nevada
corporation, having an office at 1450 Vassar, Rena, Nevada ("NEVADA").
RECITALS
WHEREAS, The Telecommunications Act of 1996 was signed into
law on February 8, 1996 (the "Act") and substantially amends the Communications
Act of 1934 ; and
WHEREAS, the Act places certain duties and obligations upon,
and grants certain rights to, Telecommunications Carriers; and
WHEREAS, NEVADA is an Incumbent Local Exchange Carrier; and
WHEREAS, NEVADA is willing to sell Unbundled Network Elements
and kncillary Functions and additional features, as well as services for resale,
on the terms and subject to the conditions of this Agreement; and
WHEREAS, ATI is a Telecommunications Carrier and has requested
that NEVADA negotiate an Agreement with ATI for the provision of
interconnection, Unbundled Network Elements (including Ancillary Functions and
additional features), and services pursuant to the Act and in conformance with
NEVADA's duties under the Act; and
WHEREAS, the Parties have arrived at this Agreement through
voluntary negotiations undertaken pursuant to the Act,
NOW, THEREFORE, in consideration of the mutual covenants of
this Agreement, ATI and NEVADA hereby agree as follows:
DEFINITIONS AND ACRONYMS
For purposes of this Agreement, certain terms have been
defined in Attachment 1 and elsewhere in this Agreement to encompass meanings
that may differ from, or be in addition to, the normal connotation of the
defined word. Unless the context clearly indicates otherwise, any term defined
or used in the singular shall include the plural. The words "shall" and "will"
are used interchangeably throughout this Agreement and the use of either
connotes a mandatory requirement. The use of one or the other shall not mean a
different degree of right or obligation for either Party. A defined word
intended to convey its special meaning is capitalized when used. Other terms
that are capitalized, and not defined in this Agreement, shall have the meaning
in the Act, unless the context clearly indicates otherwise. For convenience of
reference only, Attachment 2 provides a list of acronyms used throughout this
Agreement.
<PAGE>
Agreement between NEVADA Bell and ATI
GENERAL TERMS AND CONDITIONS
1. PROVISION OF LOCAL SERVICE AND UNBUNDLED ELEMENTS
1.1 This Agreement and its Attachments are subject to the Act,
regulations thereunder and relevant FCC and Commission
decisions in effect on the Effective Date of this Agreement.
The effect on this Agreement of changes in the Act,
regulations thereunder and relevant FCC and Commission
decisions is set forth in Sections 8.3 and 8.4 of this
Agreement.
1.2 This Agreement, which consists of this statement of General
Terms and Conditions, and Attachments 1 through 18, inclusive,
sets forth the terms, conditions and prices under which NEVADA
agrees to provide to ATI (a) services for resale (hereinafter
referred to as "Local Services") and (b) certain Unbundled
Network Elements, Ancillary Functions and additional features
and (c) other services (hereinafter collectively referred to
as "Network Elements") or Combinations of such Local Services,
Network Elements, Ancillary Functions and other services for
ATI's own use or for resale to others, and for purposes of
offering telecommunications services of any kind. This
Agreement also sets forth the terms and conditions for the
interconnection of ATI's network to NEVADA's network and the
reciprocal compensation for the transport and termination of
telecommunications traffic. Unless otherwise provided in this
Agreement, and except where not technically feasible in a
given area, NEVADA will perform all of its obligations
hereunder throughout its entire service area where NEVADA is
the ILEC, provided; however, that NEVADA is not required,
except at ATI's request pursuant to Section 1 .6 of Attachment
6, to provide new Unbundled Network Elements or to install new
or improved facilities in areas where they do not currently
exist, except as mutually agreed to in writing by the Parties.
1.3 Subject to this Agreement and its Attachments ,the Network
Elements, Ancillary Functions, Combinations, Local Services,
or other services provided pursuant to this Agreement may be
connected, to other Network Elements, Ancillary Functions,
Combinations, Local Services, or other services provided by
NEVADA or to any Network Elements, Ancillary Functions,
Combinations, Local Services or other services provided by ATI
or by any other vendor. Subject to the requirements of this
Agreement and its Attachments, ATI may, at any time add,
delete, relocate or modify the Network Elements, Ancillary
Functions, Local Services, Combinations or other services
purchased hereunder.
1.4 NEVADA will not discontinue any Unbundled Network Element,
Ancillary Service or Combination during the term of this
Agreement without ATI's consent, except (i) to the extent
required by network changes or upgrades, in which event NEVADA
will comply with the network disclosure requirements stated in
the Act and FCC regulations thereunder; or (ii) if required by
a final order of the Court, the FCC or the Commission as a
result of remand or appeal of the FCC's order In the Matter of
Implementation of Local Competition Provisions of the
Telecommunications Act of 1996, Docket 96-98. In the event
such a final order allows but does not require discontinuance,
NEVADA may, on thirty (30) days written notice, require that
such terms be renegotiated, and the Parties shall renegotiate
in good faith such mutually acceptable new terms as may be
required or appropriate to reflect the results of such action.
In the event that such new terms are not renegotiated within
ninety (90) days after such notice, or if the Parties are
unable to agree, either Party may submit the matter to the
Alternative Dispute Resolution Process described in Attachment
3.
<PAGE>
Agreement between NEVADA Bell and ATI
1.5 NEVADA will not withdraw any generally available Local
Telecommunications Service without providing ATI at least 60
days notice prior to the effective date of such withdrawal. If
NEVADA discontinues a Local Service, NEVADA shall either (a)
limit the discdhtinuance to new customers and grandfather the
service for all ATI resale customers who subscribe to the
service as of the date of discontinuance; or (b) offer to ATI
for resale an alternative service, having substantially
similar capabilities and terms and conditions.
2. TERM OF AGREEMENT; TRANSITIONAL SUPPORT
2.1 This Agreement shall be effective until September 15, 2000,
and thereafter the Agreement shall continue in force and
effect unless and until a new agreement, addressing all of the
terms of this Agreement, becomes effective between the
Parties. The Parties agree to commence negotiations, to be
conducted pursuant to Section 252 of the Act, on a new
agreement no less than six (6) months before the end of the
three (3) years after this Agreement becomes effective. In the
event that such new terms are not renegotiated within six (6)
months after such notice, either Party may submit the matter
to the Alternative Dispute Resolution Process described in
Attachment 3. NEVADA recognizes that the Network Elements,
Ancillary Functions, Combinations, Local Services and other
services provided hereunder are vital to ATI and must be
continued without interruption, and that ATI may itself
provide or retain another vendor to provide such comparable
Network Elements, Ancillary Functions, Combinations, Local
Services or other services. NEVADA and ATI agree to cooperate
in an orderly and efficient transition to ATI or another
vendor. NEVADA and ATI further agree to cooperate in effecting
the orderly transition to ATI or another vendor such that the
level and quality of the Network Elements, Ancillary
Functions, Combinations, Local Services, and other services
are not degraded and to exercise their best efforts to effect
an orderly and efficient transition. ATI shall be responsible
for coordinating such transition.
2.2 Notwithstanding Section 2.1 above, either Party may terminate
this Agreement at any time by providing 120-days prior written
notice, subject to Section 18.12 of this Agreement.
3. GOOD FAITH PERFORMANCE
In the performance of their obligations under this Agreement, the
Parties shall act in good faith and consistently with the intent of the
Act. Where notice, approval or similar action by a Party is permitted
or required by any provision of this Agreement (including, without
limitation, the obligation of the Parties to further negotiate the
resolution of new or open issues under this Agreement), such action
shall not be unreasonably delayed, withheld or conditioned.
4. OPTION TO OBTAIN LOCAL SERVICES OR NETWORK ELEMENTS UNDER OTHER
AGREEMENTS
At ATI's request and pursuant to Section 252 of the Act, regulations
thereunder and relevant court decisions, NEVADA shall make available to
ATI, without unreasonable delay, any interconnection, service or
network element contained in any agreement to which NEVADA is a Party
that has been filed and approved by the Commission.
5. RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and hereby retains the
right to exercise full control of and supervision over its own
performance of its obligations under this Agreement and retains full
control over the employment, direction, compensation and discharge of
all employees assisting in the performance of such obligations. Each
Party will be solely responsible for all matters relating to payment of
such employees, including compliance with
<PAGE>
Agreement between NEVADA Bell and ATI
social security taxes, withholding taxes and all other regulations
governing such matters. Each Party will be solely responsible for
proper handling, storage, transport and disposal at its own expense of
all (i) substances or materials that it or its contractors or agents
bring to create or assume control over at Work Locations or, (ii)
Waste resulting therefrom or otherwise generated in connection with its
or its contractors' or agents' activities at the Work Locations.
Subject to the limitations on liability and except as otherwise
provided in this Agreement, each Party shall be responsible for (i) its
own acts and performance of all obligations imposed by Applicable Law
in connection with its activities, legal status and property, real or
personal and, (ii) the acts of its own affiliates, employees, and
agents during the performance of that Party's obligations hereunder.
6. GOVERNMENTAL COMPLIANCE
ATI and NEVADA each shall comply at its own expense with all Applicable
Law that relates to (i) its obligations under or activities in
connection with this Agreement; or (ii) its activities undertaken at,
in connection with or relating to Work Locations. ATI and NEVADA each
agree to indemnify, defend (at the other Party's request) and save
harmless the other, each of its officers, directors and employees from
and against any losses, damages, claims, demands, suits, liabilities,
fines, penalties and expenses (including reasonable attorneys' fees)
that arise out of or result from (i) its failure or the failure of its
contractors or agents to so comply or (ii) any activity, duty or status
of it or its contractors or agents that triggers any legal obligation
to investigate or remediate environmental contamination. NEVADA will be
solely responsible for obtaining from governmental authorities,
building owners, other carriers, and any other persons or entities, all
rights and privileges (including, but not limited to, space and power),
which are necessary for NEVADA to provide the Network Elements,
Ancillary Functions, Combinations, Local Services and other services
pursuant to this Agreement. To the extent necessary, ATI will cooperate
with NEVADA in obtaining such rights and privileges.
7. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
7.1 ATI shall in no event be liable to NEVADA for any costs
whatsoever resulting from the presence or release of any
environmental hazard that ATI did not introduce to the
affected work location, provided that activities of ATI or its
agents did not cause or contribute to a release. NEVADA shall
indemnify, defend (at ATI's request) and hold harmless ATI,
each of its officers, directors and employees from and against
any losses, damages, claims, demands, suits, liabilities,
fines, penalties and expenses (including reasonable attorneys'
fees) that arise out of or result from (i) any environmental
hazard that NEVADA, its contractors or agents introduce to the
work locations or (ii) the presence or release of any
environmental hazard for which NEVADA is responsible under
applicable law.
7.2 NEVADA shall in no event be liable to ATI for any costs
whatsoever resulting from the presence or release of any
environmental hazard that NEVADA did not introduce to the
affected work location, provided that actions of NEVADA or its
agents did not cause or contribute to a release. ATI shall
indemnify, defend (at NEVADA's request) and hold harmless
NEVADA, each of its officers, directors and employees from and
against any losses, damages, claims, demands, suits,
liabilities, fines, penalties and expenses (including
reasonable attorneys' fees) that arise out of or result from
(i) any environmental hazard that ATI, its contractors or
agents introduce to the work locations or (ii) the presence or
release of any environmental hazard for which ATI is
responsible under applicable law.
<PAGE>
Agreement between NEVADA Bell and ATI
8. RECIULATORV MATTERS
8.1 NEVADA shall be responsible for obtaining and keeping in
effect all FCC, Commission, franchise authority and other
regulatory approvals that may be required in connection with
the performance of its obligations under this Agreement. ATI
shall be responsible for obtaining and keeping in effect all
FCC, Commission, franchise authority and other regulatory
approvals that may be required in connection with its
obligations under this Agreement, and with its offering of
services to ATI Customers contemplated by this Agreement. ATI
shall reasonably cooperate with NEVADA in obtaining and
maintaining any required approvals for which NEVADA is
responsible, and NEVADA shall reasonably cooperate with ATI in
obtaining and maintaining any required approvals for which ATI
is responsible.
8.2 To the extent that NEVADA is required by any governmental
authority to file a tariff or make another similar filing in
connection with the performance of any action that would
otherwise be governed by this Agreement, the terms of this
Agreement shall control, unless this Agreement links a term,
condition or price in this Agreement to a specific tariff, in
which case the terms of the tariff as modified from time to
time will apply. If, subsequent to the effective date of any
tariff incorporated by reference into this Agreement, NEVADA
is ordered not to file tariffs with the Commission or the FCC,
or is permitted not to file tariffs (and elects not to do so),
either generally or for specific Network Elements, Ancillary
Functions, Combinations, Local Services or other services
provided hereunder, the terms and conditions of such tariffs
as of the date on which the requirement to file such tariffs
was lifted shall, to the degree not inconsistent with this
Agreement, be deemed incorporated in this Agreement by
reference.
8.3 In the event that any final and nonappealable legislative,
regulatory, judicial or other legal action renders this
Agreement or any Attachment hereto inoperable, materially
affects any material terms of this Agreement, or materially
affects the ability of ATI or NEVADA to perform any material
terms of this Agreement, ATI or NEVADA may, on thirty (30)
days written notice (delivered not later than 30 days
following the date on which such action has become legally
binding and has otherwise become final and nonappealable)
require that such terms be renegotiated, and the Parties shall
renegotiate in good faith such mutually acceptable new terms
as may be required. In the event that such new terms are not
renegotiated within ninety (90) days after such notice, the
Dispute shall be referred to the Alternative Dispute
Resolution procedures set forth in Section 14 and Attachment
3.
8.4 The Parties acknowledge that it may be necessary to amend this
Agreement and the Attachments hereto from time to time to
reflect changes in FCC or Commission decisions, tariffs,
rules, and requirements, including changes resulting from
judicial review of applicable regulatory decisions. If the
Parties are unable to agree on whether and/or how the
Agreement and the Attachments should be amended pursuant to
this Section 8.4, the dispute shall be referred to the
Alternative Dispute Resolution procedures set forth in Section
14 and Attachment 3
9; LIABILITY AND INDEMNITY
9.1 LIABILITIES OF ATI - ATI's liability to NEVADA during any
Contract Year resulting from any and all causes, other than as
specified in Sections 6, 7, 9.3, and 9.4 shall not exceed the
total of any amounts due and owing by ATI to NEVADA under this
Agreement during the Contract Year during which such cause
accrues or arises.
9.2 LIABILITIES OF NEVADA - NEVADA's liability to ATI during any
Contract Year resulting from any and all causes, other than as
specified in Sections 6, 7, 9.3, and 9.4 shall not
<PAGE>
Agreement between NEVADA Bell and ATI
exceed the total of any amounts due and owing by NEVADA to ATI under
this Agreement during the Contract Year during which such cause accrues
or arises. -
9.3 NO CONSEQUENTIAL DAMAGES - NEITHER ATI NOR NEVADA SHALL BE
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES SUFFERED BY SUCH
OTHER PARTY (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO
BUSINESS, LOST REVENUES, LOST SAVINGS, OR LOST PROFITS
SUFFERED BY SUCH OTHER PARTIES), REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR
TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND
WHETHER ACTIVE OR PASSIVE, AND REGARDLESS OF WHETHER THE
PARTIES KNEW OF THE POSSIBILITY THAT SUCH DAMAGES COULD
RESULT. EACH PARTY HEREBY RELEASES THE OTHER PARTY (AND SUCH
OTHER PARTY'S SUBSIDIARIES AND AFFILIATES, AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) FROM ANY
SUCH CLAIM. NOTHING CONTAINED IN THIS SECTION 9 SHALL LIMIT
NEVADA'S OR ATI'S LIABILITY TO THE OTHER FOR (i) WILLFUL OR
INTENTIONAL MISCONDUCT (INCLUDING GROSS NEGLIGENCE); (ii)
BODILY INJURY, DEATH OR DAMAGE TO TANGIBLE REAL OR TANGIBLE
PERSONAL PROPERTY PROXIMATELY CAUSED BY NEVADA'S OR ATI'S
NEGLIGENT ACT OR OMISSION OR THAT OF THEIR RESPECTIVE AGENTS,
SUBCONTRACTORS OR EMPLOYEES, NOR SHALL ANYTHING CONTAINED IN
THIS SECTION 9 LIMIT THE PARTIES INDEMNIFICATION OBLIGATIONS,
AS SPECIFIED BELOW. FOR PURPOSES OF THIS SECTION 9, AMOUNTS
DUE AND OWING TO EITHER PARTY SHALL NOT BE CONSIDERED TO BE
INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL
DAMAGES.
9.4 OBLICIATION TO INDEMNIFY - Each Party shall, and hereby agrees
to, defend at the other's request, indemnify and hold harmless
the other Party and each of its officers, directors, employees
and agents (each, an "Indemnitee") against and in respect of
any loss, debt, liability, damage, obligation, claim, demand,
judgment or settlement of any nature or kind, known or
unknown, liquidated or unliquidated, including without
limitation all reasonable costs and expenses incurred (legal,
accounting or otherwise) (collectively, "Damages") arising out
of, resulting from or based upon any pending or threatened
claim, action, proceeding or suit by any third party (a
"Claim") (i) alleging any breach of any representation,
warranty or covenant made by such Indemnifying Party (the
"Indemnifying Party") in this Agreement, (ii) based upon
injuries or damage to any person or property or the
environment arising out of or in connection with this
Agreement that are the result of the Indemnifying Party's
actions, breach of Applicable Law, or status or the actions,
breach of Applicable Law, or status of its employees, agents
and subcontractors, or (iii) for actual or alleged
infringement of any patent, copyright, trademark, service
mark, trade name, trade dress, trade secret or any other
intellectual property right, now known or later developed
(referred to as "Intellectual Property Rights") to the extent
that such claim or action arises from the Indemnifying Party's
or the Indemnifying Party's Customer's use of the Network
Elements, Ancillary Functions, Combinations, Local Services or
other services provided under this Agreement.
9.5 OBLIGATION TO DEFEND: NOTICE: COOPERATION - Whenever a Claim
shall arise for indemnification under Section 9.4, the
relevant Indemnitee, as appropriate, shall promptly notify the
Indemnifying Party and request the Indemnifying Party to
defend the same. Failure to so notify the Indemnifying Party
shall not relieve the Indemnifying Party of any liability that
the Indemnifying Party might have, except to the extent that
such failure prejudices the Indemnifying Party's ability to
defend such Claim. The Indemnifying Party shall have the right
to defend against such liability or assertion in which event
the Indemnifying Party shall give written notice to the
Indemnitee of acceptance of the defense of such Claim and the
identity of counsel selected by the Indemnifying Party.
<PAGE>
Agreement between NEVADA Bell and ATI
Except as set forth below, such notice to the relevant
Indemnitee shall give the Indemnifying Party full authority to
defend, adjust, compromise or settle such Claim with respect
to which such notice shall have been given, except to the
extent that any compromise or settlement shall prejudice the
Intellectual Property Rights of the relevant Indemnitees. The
Indemnifying Party shall consult with the relevant Indemnitee
prior to any compromise or settlement that would affect the
Intellectual Property Rights or other rights of any
Indemnitee, and the relevant Indemnitee shall have the right
to refuse such compromise or settlement and, at the refusing
Party's or refusing parties' cost, to take over such defense,
provided that in such event the Indemnifying Party shall not
be responsible for, nor shall it be obligated to indemnify the
relevant Indemnitee against, any cost or liability in excess
of such refused compromise or settlement. With respect to any
defense accepted by the Indemnifying Party, the relevant
Indemnitee shall be entitled to participate with the
Indemnifying Party in such defense if the Claim requests
equitable relief or other relief that could affect the rights
of the Indemnitee and also shall be entitled to employ
separate counsel for such defense at such Indemnitee's
expense. In the event the Indemnifying Party does not accept
the defense of any indemnified Claim as provided above, the
relevant Indemnitee shall have the right to employ counsel for
such defense at the expense of the Indemnifying Party. Each
Party agrees to cooperate and to cause its employees and
agents to cooperate with the other Party in the defense of any
such Claim and the relevant records of each Party shall be
available to the other Party with respect to any such defense.
10. AUDITS AND INSPECTIONS
10.1 Subject to NEVADA's reasonable security requirements and
except as may be otherwise specifically provided in this
Agreement, ATI may audit NEVADA's books, records, and other
documents once in each Contract Year, for the immediately
preceding twelve (12) months, for the purpose of evaluating
the accuracy of NEVADA's billing and invoicing for services
provided by NEVADA to ATI hereunder. ATI may employ other
persons or firms for this purpose. Such audit shall take place
at a time and place agreed on by the Parties no later than
thirty (30) days after notice thereof to NEVADA.
10.2 Subject to ATI's reasonable security requirements and except
as may be otherwise specifically provided in this Agreement,
NEVADA may audit ATI's books, records, and other documents
once in each Contract Year, for the immediately preceding
twelve (12) months, for the purpose of evaluating the accuracy
of ATI's billing and invoicing for services provided by ATI to
NEVADA hereunder. NEVADA may employ other persons or firms for
this purpose. Such audit shall take place at a time and place
agreed on by the Parties no later than thirty (30) days after
notice thereof to ATI.
10.3 Each Party shall promptly correct any billing or invoicing
errors that are revealed in an audit, including making refund
of any overpayment in the form of a credit, or payment of any
under payment in the form of a debit, on the invoice for the
first full billing cycle after the Parties have agreed upon
the accuracy of the audit results. Any Disputes concerning
audit results shall be resolved pursuant to the Alternate
Dispute Resolution procedures described in Attachment 3.
10.4 Each Party shall cooperate fully in any such audit, providing
reasonable access to any and all appropriate employees and
books, records and other documents reasonably necessary to
assess the accuracy of each Party's billing and invoicing.
10.5 Either Party may audit the other Party's books, records and
documents more than once during any Contract Year if the
previous audit found previously uncorrected net variances or
errors in invoices in the other Party's favor with an
aggregate value, on an annualized
<PAGE>
Agreement between NEVADA Bell and ATI
basis, of at least two percent (2%) of the amounts payable by
the Party being audited under this Agreement during the period
covered by the audit.
10.6 Audits shall be at the requesting Party's expense, subject to
reimbursement by the audited Party in the event that an audit
finds an adjustment in the charges or in any invoice paid or
payable by the requesting Party hereunder by an amount that
is, on an annualized basis, greater than two percent (2%) of
the aggregate charges to the requesting Party under this
Agreement during the period covered by the audit.
10.7 Upon (i) the discovery by a Party of overcharges not
previously reimbursed to the other Party or (ii) the
resolution of disputed audits, the audited Party shall
promptly reimburse the requesting Party the amount of any
overpayment, plus interest calculated based on the US Treasury
Bill prime rate compounded daily for the number of days from
the date of overpayment to and including the date that payment
is actually made. In no event, however, shall interest be
assessed on any previously assessed or accrued late payment
charges.
10.8 Upon (i) the discovery by either Party of underpayments not
previously paid to the other Party, or (ii) the resolution of
disputed audits, the audited Party shall promptly pay the
other Party the amount of any underpayment, plus interest
calculated based on the US Treasury Bill prime rate compounded
daily from the date of underpayment to and including the date
that payment is actually made.
11. PERFORMANCE STANDARDS AND REMEDIES
11.1 The Parties agree that customer satisfaction is a goal that
can only be achieved through cooperation of the Parties.
NEVADA agrees to measure performance, as outlined in
Attachment 17. The measurements contained in Attachment 17 may
change from time to time by mutual agreement of the Parties.
NEVADA agrees to provide to ATI a level of service that is at
parity with the service NEVADA provides to itself, its
affiliates or other, at the same terms and conditions.
11.2 Within ninety (90) days of the effective date of this
Agreement, the Parties will meet to develop and mutually agree
to performance and business process improvement procedures.
11.3 The Parties may amend, modify, delete or add business process
improvement procedures by mutual agreement and modification of
Attachment 17.
12. FORCE MAIEURE
12.1 Except as otherwise specifically provided in this Agreement,
neither Party shall be liable for any delay or failure in
performance of any part of this Agreement caused by a Force
Majeure condition, including acts of the United States of
America or any state, territory or political subdivision
thereof, acts of God or a public enemy, fires, floods, labor
disputes, freight embargoes, earthquakes, volcanic actions,
wars, civil disturbances, or other causes beyond the
reasonable control of the Party claiming excusable delay or
other failure to perform. Provided, Force Majeure shall not
include acts of any Governmental Authority relating to
environmental, health or safety conditions at Work Locations.
If any Force Majeure condition occurs, the Party whose
performance fails or is delayed because of such Force Majeure
condition shall give prompt notice to the other Party, and
upon cessation of such Force Majeure condition, shall give
like notice and commence performance hereunder as promptly as
reasonably practicable.
<PAGE>
Agreement between NEVADA Bell and ATI
12.2 Notwithstanding subsection 12.1, preceding, no delay or other
failure to perform shall be excused pursuant to this Section:
(i) by the acts or omission of a Party's subcontractors,
material men, suppliers or other third persons providing
products or services to Such Party unless such acts or
omissions are themselves the product of a Force Majeure
condition, (ii) if the delay or failure relates to
environmental, health or safety conditions at Work Locations
and, (iii) unless such delay or failure and the consequences
thereof are beyond the control and without the fault or
negligence of the Party claiming excusable delay or other
failure to perform.
13. CERTAIN STATE AND LOCAL TAXES
Any state or local excise, sales, or use taxes (excluding any taxes
levied on income) resulting from the performance of this Agreement
shall be borne by the Party upon which the obligation for payment is
imposed under applicable law, even if the obligation to collect and
remit such taxes is placed upon the other Party by mutual written
agreement of the Parties, provided, however, that the other Party has
not acted in a manner that has materially impaired the ability of the
liable Party to contest the tax or the amount of the tax (and interest
and penalties, etc.) regardless of whether the impairment was
foreseeable. If the other Party has materially impaired the ability of
the liable Party to contest the tax or the amount of the tax, the Party
causing the impairment shall be liable for the tax (interest and
penalties, etc.) caused by the Party's impairment. Any such taxes shall
be shown as separate items on applicable billing documents between the
Parties. The Party so obligated to pay any such taxes may contest the
same in good faith, at its own expense, and shall be entitled to the
benefit of any refund or recovery, provided that such Party shall not
permit any lien to exist on any asset of the other Party by reason of
the contest. The Party obligated to collect and remit shall cooperate
in any such contest by the other Party.
14. ALTERNATIVE DISPUTE RESOLUTION
All disputes, claims or disagreements (collectively "Disputes") arising
under or related to this Agreement or the breach hereof, except those
arising pursuant to Attachment 13, Connectivity Billing and Recording,
shall be resolved according to the procedures set forth in Attachment
3. Disputes involving matters subject to the Connectivity Billing and
Recording provisions contained in Attachment 13, shall be resolved in
accordance with the Billing Disputes section of Attachment 13. In no
event shall the Parties permit the pendency of a Dispute to disrupt
service to any ATI or NEVADA Customer contemplated by this Agreement.
The foregoing notwithstanding, neither this Section 14 nor Attachment 3
shall be construed to prevent either Party from (a) invoking a remedy
required by the Act, FCC, or Commission regulations thereunder or (b)
seeking and obtaining temporary equitable remedies, including temporary
restraining orders. A request by a Party to a court or a regulatory
authority for interim measures or equitable relief shall not be deemed
a waiver of the obligation to comply with Attachment 3.
15. NOTICES
Any notices or other communications required or permitted to be given
or delivered under this Agreement shall be in hard-copy writing (unless
otherwise specifically provided herein) and shall be sufficiently given
if delivered personally or delivered by prepaid overnight express
service to the following (unless otherwise specifically required by
this Agreement to be delivered to another representative or point of
contact):
If to ATI:
David Patterson
Advanced Telecommunications, Inc.
<PAGE>
Agreement between NEVADA Bell and ATI
730 2nd Avenue South, Suite 410
Minneapolis, MN 55402
If to NEVADA:
James A. Reitzel
NEVADA Bell
Vice President
Network Interconnection
1450 Vassar Street, Room 200
Reno, NV 89502
and
April Rodewald-Fout
General Counsel
Nevada Bell
645 E. Plumb Ln., Room 132
Reno, NV 89502
Either Party may unilaterally change its designated representative
and/or address for the receipt of notices by giving seven (7) days
prior written notice to the other Party in compliance with this
Section. Any notice or other communication shall be deemed given when
received.
16. CONFIDENTIALITY AND PROPRIETARY INFORMATION
16.1 For the purposes of this Agreement, "Confidential Information"
means confidential or proprietary technical or business
Information given by the Discloser to the Recipient. All
information which is disclosed by one Party to the other in
connection with this Agreement shall automatically be deemed
proprietary to the Discloser and subject to this Agreement,
unless otherwise confirmed in writing by the Discloser. In
addition, by way of example and not limitation, all orders for
Network Elements, Ancillary Functions, Combinations, Local
Services or other services placed by ATI pursuant to this
Agreement, and information that would constitute Customer
Proprietary Network Information of ATI Customer's pursuant to
the Act and the rules and regulations of the FCC, and Recorded
Usage Data as described in Attachment 14, whether disclosed by
ATI to NEVADA or otherwise acquired by NEVADA in the course of
the performance of this Agreement, shall be deemed
Confidential Information of ATI for all purposes under this
Agreement.
16.2 For a period of five (5) years from the receipt of
Confidential Information from the Discloser, except as
otherwise specified in this Agreement, the Recipient agrees
(a) to use it only for the purpose of performing under this
Agreement; (b) to hold it in confidence and disclose it to no
one other than its employees having a need to know for the
purpose of performing under this Agreement; and (c) to
safeguard it from unauthorized use or disclosure with at least
the same degree of care with which the Recipient safeguards
its own Confidential Information. If the Recipient wishes to
disclose the Discloser's Confidential Information to a third
party agent or consultant, such disclosure must be mutually
agreed to in writing by the Parties to this Agreement, and the
agent or consultant must have executed a written agreement of
non-disclosure and non-use comparable in scope to the terms of
this Section.
16.3 The Recipient may make copies of Confidential Information only
as reasonably necessary to perform its obligations under this
Agreement. All such copies shall bear the same copyright and
proprietary rights notices as are contained on the original.
<PAGE>
Agreement between NEVADA Bell and ATI
16.4 The Recipient agrees to return all Confidential Information in
tangible form received from the Discloser, including any
copies made by the Recipient, within thirty (30) days after a
written request is delivered to the Recipient, or to destroy
all such Confidential Information, except for Confidential
Information that the Recipient reasonably requires to perform
its obligations under this Agreement. If either Party loses or
makes an unauthorized disclosure of the other Party's
Confidential Information, it shall notify such other Party
immediately and use reasonable efforts to retrieve the lost or
wrongfully disclosed information.
16.5 The Recipient shall have no obligation to safeguard
Confidential Information: (a) which was in the possession of
the Recipient free of restriction prior to its receipt from
the Discloser; (b) after it becomes publicly known or
available through no breach of this Agreement by the
Recipient; (c) after it is rightfully acquired by the
Recipient free of restrictions on its disclosure; or (d) after
it is independently developed by personnel of the Recipient to
whom the Discloser's Confidential Information had not been
previously disclosed. In addition, either Party shall have the
right to disclose Confidential Information to any mediator,
arbitrator, state or federal regulatory body, the Department
of Justice or any court in the conduct of any mediation,
arbitration or approval of this Agreement or in any
proceedings concerning the provision of interLATA services by
NEVADA. Additionally, the Recipient may disclose Confidential
Information if so required by law, a court, or governmental
agency, so long as the Discloser has been notified of the
requirement promptly after the Recipient becomes aware of the
intended disclosure, and so long as the Recipient undertakes
all lawful measures to avoid disclosing such information until
Discloser has had reasonable time to seek a protective order
that covers the Confidential Information to be disclosed.
16.6 Each Party's obligations to safeguard Confidential Information
disclosed prior to expiration or termination of this Agreement
shall survive such expiration or termination.
16.7 Except as otherwise expressly provided elsewhere in this
Agreement, no license is hereby granted under any patent,
trademark, or copyright, nor is any such license implied,
solely by virtue of the disclosure of any Confidential
Information.
16.8 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Agreement by the Recipient or its
representatives and that the Discloser shall be entitled to
seek equitable relief, including injunctive relief and
specific performance, in the event of any breach of the
provisions of this Agreement. Such remedies shall not be
deemed to be the exclusive remedies for a breach of this
Agreement, but shall be in addition to all other remedies
available at law or in equity.
16.9 Nothing in this Section 16 shall prevent NEVADA from using
Recorded Usage Data for the limited purpose of network
planning and management.
17. BRANDING
Services offered by ATI that incorporate Network Elements, Ancillary
Functions or Combinations made available to ATI pursuant to this
Agreement, and Local Services that ATI offers for resale shall be
branded as stated in the Attachments to this Agreement. In no event
shall NEVADA personnel installing or repairing ATI Local Service,
Network Elements, or Combinations initiate a conversation with the end
user customer to market NEVADA product or services. NEVADA personnel
shall respond to any inquires from end users or consumers concerning
NEVADA's products or services by providing a telephone number to call
for information.
<PAGE>
Agreement between NEVADA Bell and ATI
condition of this Agreement shall be construed as a waiver of
such term, right or condition. By entering into this Agreement
neither Party waives any right granted to it pursuant to the
Act.
18.9 SEVERABILITY - If any term, condition or provision of this
Agreement is held to be invalid or unenforceable for any
reason, such invalidity or unenforceability shall not
invalidate the entire Agreement, unless such construction
would be unreasonable. The Agreement shall be construed as if
it did not contain the invalid or unenforceable provision or
provisions, and the rights and obligations of each Party shall
be construed and enforced accordingly; provided, however, that
in the event such invalid or unenforceable provision or
provisions are essential elements of this Agreement and
substantially impair the rights or obligations of either
Party, the Parties shall promptly negotiate a replacement
provision or provisions.
18.10 ENTIRE AGREEMENT - This Agreement, which shall include the
Attachments, Appendices and other documents referenced herein,
constitutes the entire Agreement between the Parties
concerning the subject matter hereof and supersedes any prior
agreements, representations, statements, negotiations,
understandings, proposals or undertakings, oral or written,
with respect to the subject matter expressly set forth herein.
18.11 DEFINITIONS: The definitions contained in Attachment 1 are
meant to accurately describe the meaning accorded the term as
required by the Act and as used in this Agreement. In the
event of any disagreement between a definition of the term in
the Act, in Attachment 1 or any other part of this Agreement
(including the Attachments), the definition in the Act shall
supersede any definition in the Agreement or Attachments and
any specific definition in an Attachment other than Attachment
1 shall supersede the definition in Attachment 1.
18.12 SURVIVAL OF OBLIGATIONS - Any liabilities or obligations of a
Party for acts or omissions prior to the cancellation or
termination of this Agreement, any obligation of a Party under
the provisions regarding indemnification, Confidential
Information, limitations on liability, and any other
provisions of this Agreement which, by their terms, are
contemplated to survive (or to be performed after) termination
of this Agreement, shall survive cancellation or termination
thereof.
18.13 EXECUTED IN COUNTERPARTS - This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original; but such counterparts shall together constitute one
and the same instrument.
18.14 HEADINGS OF NO FORCE OR EFFECT - The headings of Articles and
Sections of this Agreement are for convenience of reference
only, and shall in no way define, modify or restrict the
meaning or interpretation of the terms or provisions of this
Agreement.
In witness whereof, the Parties have executed this Agreement
through their authorized representatives.
NEVADA BELL ATI
By: By:
------------------------------------ --------------------------
Signature Signature
Name: James A. Reitzel Name: Cliff Williams
Title: Vice President Local Competition Title: President - CEO
Date: 10-1-97 Date: 10/23/97
<PAGE>
NEVADA - Attachment 1
DEFINITIONS
1. "Access Tandem Switches" are switches used to connect End Offices to
Interexchange Carrier switches. NEVADA's Access Tandem Switch is also
used to connect and switch traffic between and among Central Office
Switches.
2. "Act" means the Communications Act of 1934,47 U.S.C. 151 et seq., as
amended by the Telecommunications Act of 1996, and as interpreted from
time to time in the duly authorized rules and regulations of the FCC or
the Commission.
3. "Advanced Intelligent Network (AIN) Trigger Capability" is a network
functionality that permits specific conditions to be programmed into a
switch which, when met, directs the switch to suspend call processing
and to receive special instructions for further call handling
instructions in order to enable carriers to offer advanced features and
services.
4. "AMA" means the Automated Message Accounting structure inherent in
switch technology that initially records telecommunication message
information. AMA format is contained in the Automated Message Accounting
document, published by Bellcore as GR-1 100-CORE which defines the
industry standard for message recording.
5. "Ancillary Functions" are services or facilities that NEVADA offers to
ATI so that ATI may obtain and use unbundled Network Elements or NEVADA
services to provide telecommunications services to ATI's customers.
Ancillary Functions include collocation and rights of way, and may
include other services or facilities as mutually agreed to by the
Parties.
6. "Applicable Law" shall mean all laws, statutes, common law, regulations,
ordinances, codes, rules, guidelines, orders, permits and approvals of
any Governmental Authority, including without limitation those relating
to the environment, health and safety, which apply or relate to Work
Locations or the subject matter of this Agreement.
7. "ATI Customer" means the relationship for a specific service with any
business or residential customer to the extent such customer purchases
ATI services.
8. "Automatic Number Identification" or "ANI" means a Feature Group D
signaling parameter that refers to the number transmitted through the
network identifying the billing number of the calling party. "ANI" is
also used to identify the calling number to 911 PSAPs.
9. "Automatic Location ldentification/(ALI)" means the feature of E911
that displays at the PSAP the address of the calling telephone number.
This feature requires a data storage and retrieval system for
translating telephone numbers to the associated address. ALI information
may include Emergency Service Number (ESN), street address, room or
floor, and names of the enforcement, fire and medical agencies with
jurisdictional responsibility for the address. The Management System
(E911) database is used to update the Automatic E911 Location
Identification (ALI) databases.
10. "Automatic Route Selection (ARS)" is a service feature that provides
for automatic selection of the most appropriate outbound route for each
call based on criteria programmed into the system.
11. "Busy Line Verification" or "BLV" means a service in which an end user
requests an operator to confirm the busy status of a line.
<PAGE>
NEVADA - Attachment 1
12. "Busy Line Verification and Interrupt" or "BLVI" means a service in
which an end user requests an operator to confirm the busy status of a
line and requests an interruption of the call.
13. "CABS" means the Carrier Access Billing System.
14. "Calling Party Number (CPN)" means a Common Channel Signaling parameter
which refers to the number transmitted through the network identifying
the calling party.
15. Central Office Switch" or "Central Office" means a switching entity
within the public switched telecommunications network, including but not
limited to End Office Switches and Tandem Switches. Central Office
Switches may be employed as combination End Office/Tandem Switches.
16. "CLC Operations Handbook" means Sections 16.6 and 16.7 of the CLC
Handbook, which address NEVADA's Operations and Administration
interfaces for local interconnection and SS7.
17. "Centralized Message Distribution System (CMDS)" means the transport
system that LECs use to exchange outcollect and CABS access messages
among each other and other parties connected to CMDS.
18. "Charge Number" means a CCS signaling parameter that refers to the
number transmitted through the network identifying the billing number
of the calling party.
19. "Centrex" means a Telecommunications Service that uses central office
switching equipment for call routing to handle direct dialing of calls,
and to provide many private branch exchange-like features.
20. "CLASS (Custom Local Area Signaling Service) and Custom Calling
Features" means a grouping of optional enhancements to basic local
exchange service that offers special call handling features to end users
(e.g., call waiting, call forwarding and automatic redial).
21. "Combination" shall have the meaning set forth in 47 C.F.R. Section
51.315.
22. "Commission" means the Public Service Commission of Nevada.
23. "Common Channel Signaling" or "CCS" means a method of digitally
transmitting call set-up and network control data over a special network
fully separate from the public switched network elements that carry the
actual call. Signaling System 7 (SS7) is the CCS network presently used
by telecommunications carriers.
24. "Competitive Local Carrier (CLC)" or "Competitive Local Exchange Carrier
(CLEC)" is a carrier who competes in the provision of local exchange
telecommunications service and is not an Incumbent LEC as defined by 47
U.S.C., Section 251 (h) of the Act.
25. "Conduit" means a tube or similar enclosure that may be used to house
communication or communications-related power cables. Conduit may be
underground or above ground (for example, inside buildings) and may
contain one or more inner ducts. An inner duct means a separate tube or
enclosure within a conduit.
26. "Confidential Information" has the meaning set forth in Section 16.1 of
the General Terms and Conditions.
27. "Contract Year" means a twelve (12) month period during the term of the
contract commencing on the Effective Date and each anniversary thereof.
<PAGE>
NEVADA - Attachment I
28. "Control Office" means an exchange carrier center or office designated
as its company's single point of contact for the provisioning and
maintenance of its portion of interconnection arrangements.
29. "Cross Connection" means an intra-wire center channel connecting
separate pieces of telecommunications equipment
30. "Customer Usage Data" means the local Telecommunications Services usage
data of an ATI Customer, measured in minutes, sub-minute increments,
message units, or otherwise, that is recorded by NEVADA and forwarded to
ATI.
31. "Directory Number Call Forwarding (DNCF)" means an interim form of
Service Provider Number Portability (SPNP) which is provided through
existing and available call routing and call forwarding capabilities.
DNCF will forward calls dialed to an original telephone number to a new
telephone number on a multi-path basis. DNCF is not limited to listed
directory numbers.
32. "Discloser" means that Party to this Agreement which has disclosed
Confidential Information to the other Party.
33. "DSX Panel" means a cross-connect bay or panel used for the termination
of equipment and facilities operating at digital rates.
34. "DS-0" means a digital signal rate of 64 Kilobits per second (kbps).
35. "DS-1" means a digital signal rate of 1.544 Megabits Per Second (Mbps).
36. "DS-3" means a digital signal rate of 44.736 Mbps.
37. "E911 Management System (MS)" A system of computer programs used by
NEVADA to create store and update the data that provides Selective
Routing (SM) and / or Automatic Location Identification (ALI).
38. "E911 Management System Gateway" is a processor that can relieve the
host computer (management system) of performing certain tasks, such as
message handling, code conversion, error control and application
functions.
39. "E911 Service" is a method of routing 911 calls to a PSAP that uses
customer location data in the ALI/DMS to determine the PSAP to which a
call should be routed.
40. "Effective Date" is the date indicated in the Preface on which the
Agreement shall become effective.
41. EISCC" or "Expanded Interconnection Service Cross Connect" means the
connection between the collocation Point of Termination (POT) and the
unbundled Network Element or interconnection point to a switched or
dedicated service in NEVADA's network.
42. "Electronic File Transfer" means any system or process that utilizes an
electronic format and protocol to send or receive data files.
43. "End Office Switches" are switches from which end users' Exchange
services are directly connected and offered.
44. "Environmental Hazard" means any substance the presence, use, transport,
abandonment or disposal of which (i) requires investigation,
remediation, compensation, fine or penalty under any Applicable Law
(including, without limitation, the Comprehensive Environmental Response
<PAGE>
NEVADA - Attachment 1
Compensation and Liability Act, Superfund Amendment and Reauthorization
Act, Resource Conservation Recovery Act, the Occupational Safety and
Health Act and provisions with .similar purposes in applicable foreign,
state and local jurisdictions) or (ii) poses risks to human health,
safety or the environment (including, without limitation, indoor,
outdoor or orbital space environments) and is regulated under any
Applicable Law.
45. `Exchange Message Record" or "EM R" means the standard used for exchange
of telecommunications message information among LECs for billable,
non-billable, sample, settlement and study data. EMR format is contained
in BR-0l 0-200-010 CRIS Exchange Message Record, a Bellcore document
which defines industry standards for exchange message records.
46. "Exchange Service" is as defined in the Act.
47. "FCC" means the Federal Communications Commission.
48. "First Interconnection Order" means the First Report and Order issued
In the Matter of Implementation of the Local Competition provision in
the Telecommunications Act of 1996 (CC Docket No. 96-98, FCC 96-325)
(released August 8,1996).
49. "Governmental Authority" means any federal, state, local, foreign or
international court, government, department, commission, board, bureau,
agency, official, or other regulatory, administrative, legislative or
judicial authority with jurisdiction.
50. "ILEC" shall mean "Incumbent Local Exchange Carrier" as defined in the
Act.
51. "Interconnection" is as described in the Act.
52. "Interexchange Carrier (IEC or IXC)" means a provider of interexchange
telecommunications services.
53. "Interim Number Portability" or "INP" means the delivery of service
provider Number Portability capabilities through the use of
switch-based call routing as described in 47 C.F.R. Section 52.7.
54. "Integrated Services Digital Network" or "ISDN" means a digital switched
network service. "Basic Rate ISDN" provides for channelized (2 bearer
and 1 data) end-to-end digital connectivity for the transmission of
voice or data on either or both bearer channels and packet data on the
data channel. "Primary Rate ISDN" provides for 23 bearer and 1 data
channels.
55. "LATA-Wide Terminating Interconnection" means an interconnection
arrangement whereby one Party interconnects to a single designated
tandem switch of the other Party to terminate local and intraLATA toll.
The Party providing such termination will designate the tandem switch
where such interconnection is to occur.
56. "LEC" shall mean "Local Exchange Carrier" as defined in the Act.
57. "Line Information Data Base(s) (LIDB)" means one or all, as the context
may require, of the Line Information Databases owned individually by
ILECs and other entities which provide, among other things, calling card
validation functionality for telephone line number cards issued by ILECs
and other entities. A LIDB also contains validation data for collect and
third number-billed calls, which include billed number screening.
58. "Line Side" refers to End Office switch connections that have been
programmed to treat the circuit as a local line connected to a
terminating station ~ an ordinary subscriber's telephone station set, a
PBX, answering machine, facsimile machine or computer). Line Side
connections offer only
<PAGE>
NEVADA - Attachment 1
those transmission and signal features appropriate for a connection
between an End Office and such terminating station.
59. "Link" has the meaning set forth in Attachment 6, Section 3.
60. "Local Calls" are calls that are completed where there is no charge for
the completion of the call in NEVADA's serving territory as defined by
the Commission.
61. Local Exchange Routing Guide" or "LERG" means a Bellcore Reference
Document used by LECs and IXCs to identify NPA-NXX routing and homing
information as well as Network Element and equipment designations, and
office functionality.
62. Local Exchange Traffic" means traffic originated on the network of a LEC
in a LATA and completed directly between that LEC's network and the
network of another LEC in that same LATA, including intraLATA toll
traffic and traffic originated to or terminated from LECs not party to
this Agreement. Local Exchange Traffic does not include traffic that is
routed to or terminated from the network of an IXC.
63. "Local Interconnection Trunks/Trunk Groups" are used for the
termination of Local Exchange Traffic, using Bellcore Technical
Reference GR-317-CORE ("GR-317").
64. "Local Loop" shall have the meaning set forth in 47 C.F.R. Section
51.319(a).
65. "Local Number Portability (LNP)" means the ability of users of
telecommunications services to retain, at the same location, existing
telecommunications numbers without impairment of quality, reliability,
or convenience when switching from one telecommunications carrier to
another.
66. "Local Service" has the meaning set forth in Attachment 5, Section 1.1.
67. "Loop" has the meaning set forth in Attachment 6, Section 3.
68. "MECAB" means the Multiple Exchange Carrier Access Billing document
prepared under the direction of the Billing Committee of the Ordering
and Billing Forum "OBF", which functions under the auspices of the
Carrier Liaison Committee of the Alliance for Telecommunications
Industry Solutions (ATIS), Section 23.1 of Part 1. The MECAB document,
published by Bellcore as Special Report SR-BDS-000983, contains the
recommended guidelines for the billing of access and other connectivity
services provided by two or more LECs (including LECs and CLCs), or by
one LEC or ATI in two or more states within a single LATA.
69. "Meet Point Trunks/Trunk Groups (MPTGs)" are used for the joint
provision of Switched Access services, utilizing Bellcore Technical
References GR-394-CORE ("GR-394") and GR-317 CORE ("GR-317"). MPTGs are
those between a local End Office and an Access Tandem as described in
FSD 20-24-0000 and 20-24-0300.
70. "MECOD" means the Multiple Exchange Carriers Ordering and Design
Guidelines for Access Services - Industry Support Interface, a document
developed by the Ordering/Provisioning Committee under the auspices of
the OBF, which functions under the auspices of the Carrier Liaison
Committee of the ATIS. The MECOD document, published by Bellcore as
Special Report SR STS-002643, establishes methods for processing orders
for access and other connectivity service which is to be provided by two
or more local carriers (including a LEC and a CLC), or by one LEC or CLC
in two or more states within a single LATA.
71. "Mid-Span Meet" means an interconnection between two LEGs whereby each
provides its own cable and equipment up to the meet point of the cable
facilities. The meet point is the demarcation
<PAGE>
NEVADA - Attachment I
establishing ownership of and responsibility for each LEC's portion of
the transmission facility. -
72. "911 Service" means a universal telephone number which gives the public
direct access to the PSAP. Basic 911 service collects 911 calls from
one or more local exchange switches that serve a geographic area. The
calls are then sent to the authority designated to receive such calls.
73. "Network Element" is as defined in the Act.
74. "NEVADA" means Nevada Bell.
75. "North American Numbering Plan (NANP)" means the system of telephone
numbering employed in the United States, Canada, and certain Caribbean
countries.
76. "Numbering Plan Area (NPA)" is also sometimes referred to as an area
code and the three digit indicator that is defined by the "A", "B" and
"C" digits of each 10-digit telephone number within the NANP. Each NPA
contains 800 possible NXX Codes. There are two general categories of
NPA. "Geographic NPA" is associated with a defined geographic area, and
all telephone numbers bearing such NPA are associated with services
provided within that Geographic area. A "Non-Geographic NPA," also known
as a "Service Access Code" (SAC Code), is typically associated with a
specialized telecommunications service which may be provided across
multiple geographic NPA areas; 500, Toll Free Service NPAs, 700, and 900
are examples of Non-Geographic NPAs.
77. "Number Portability" is as defined in the Act.
78. "NXX", "NXX Code" or "Central Office Code" means the three-digit switch
entity indicator that is defined by the "D", "E" and "F" digits of a
10-digit telephone number within the NANP. Each NXX Code contains 10,000
station numbers.
79. "OBF" means the Ordering and Billing Forum (OBF), which functions under
the auspices of the Carrier Liaison Committee (CLC) of the Alliance for
Telecommunications Industry Solutions (ATIS).
80. "Originating Line Information (OLI)" is an SS7 Feature Group D
signaling parameter which refers to the number transmitted through the
network identifying the billing number of the calling party.
81. "Party" means either ATI or NEVADA. "Parties" means ATI and NEVADA.
82. "Percent Local Usage" or "PLU" means a percentage amount that represents
the ratio of the local minutes to the sum of local and intraLATA toll
minutes sent between the Parties over Local Interconnection Trunks.
Directory Assistance, BLV/BLVI, 900, transiting calls from other LECs,
WSP traffic and interLATA Switched Access calls are not included in the
calculation of PLU.
83. "Permanent Number Portability (PNP)" means a long-term solution to
provide LNP for all customers and all providers consistent with the Act
and implementing regulations.
84. "Physical Collocation" shall have the meaning set forth in 47 C.F.R.
Section 51.5.
85. "Point of Interconnection" or "POI" means a physical location at which
the Parties' networks meet for the purpose of establishing
interconnection. POls include a number of different technologies and
technical interfaces based on the Parties' mutual agreement.
86. "Pole Attachment" means the connection of a facility to a utility pole.
Some examples of facilities are mechanical hardware, grounding and
transmission cable, and equipment boxes.
<PAGE>
NEVADA - Attachment 1
99. "Service Provider Local Number Portability" shall have the same meaning
as Number Portability as defined in the Act and FCC regulations
thereunder.
100. "Signal Transfer Point" or "STP" means equipment that performs a packet
switching function that routes signaling messages among SSPs, SCPs,
Signaling Points (SPs), and other STPs in order to set up calls and to
query databases for advanced services.
101. "Special Construction" shall have the meaning set forth in NEVADA's
PSCN Tariff No. A4.2. as of the Effective Date of this Agreement and
shall not be subject to change except upon mutual agreement of the
Parties (even if the underlying tariff changes), provided that ATI will
be treated no less favorably than NEVADA treats its own end-user
customers.
102. "Switched Access" service means an offering of access to services or
facilities for the purpose of the origination or termination of traffic
from or to Exchange Service customers in a given area pursuant to a
Switched Access tariff. Switched Access services includes: Feature Group
A (FGA), Feature Group B (FGB), Feature Group C (FGC), Feature Group D
(FGD), Toll Free Service, 700 and 900 access. Switched Access service
does not include traffic exchanged between LECs for purposes of local
exchange interconnection.
103. "Switched Access Meet Point Billing" means a billing arrangement used
when two or more LECs jointly provide a Switched Access service over
Meet Point Trunks, with each LEC receiving an appropriate share of the
revenues. The access services will be billed using Switched Access rate
structures, and the LEGs will decide whether a single bill or multiple
bill will be sent. If the LECs cannot agree, multiple bills will be
sent.
104. "Tandem Switches" are switches that are used to connect and switch
trunk circuits between and among Central Office Switches.
105. "Toll Traffic" means IntraLATA traffic falling outside of the normal
free calling area as defined by the Commission.
106. "Toll Free Service" means service provided with any dialing sequence
that invokes toll-free I E., 800-like, service processing. Toll Free
Service includes calls to the Toll Free Service 800/888 NPA SAG codes.
107. "Transit Rate" is the rate that applies to local and toll calls sent
between a LEC and a CLC destined for a third-party LEG or CLC.
108. "Trunk-Side" refers to a Central Office switch connection that is
capable of, and has been programmed to treat the circuit as connecting
to another switching entity, for example, another Central Office switch.
Trunk-Side connections offer those transmission and signaling features
appropriate for the connection of switching entities and cannot be used
for the direct connection of ordinary telephone station sets.
109. "Unbundled Services Cross Connect" or "USCC" is a connection between an
unbundled link, which terminates at the distribution frame, and the
digital cross connect system, for the purpose of combining an unbundled
link and NEVADA unbundled transport when multiplexing is required.
110. "Virtual Collocation" shall have the meaning set forth in 47 C.F.R.
Section 51.5.
111. "Voluntary Federal Customer Financial Assistance Programs" are
Telecommunications Services provided to low-income subscribers, pursuant
to requirements established by the appropriate state regulatory body.
<PAGE>
NEVADA - Attachment 1
112. "Waste" means all hazardous and non-hazardous substances and materials
which are intended to be discarded, scrapped, or recycled, associated
with activities ATI or NEVADA or their respective contractors or agents
perform at Work Locations. It shall be presumed that all substances or
materials associated with such activities, that are not in use or
incorporated into structures (including without limitation damaged
components or tools, leftovers, containers, garbage, scrap, residues or
by-products), except for substances and materials that ATI, NEVADA or
their respective contractors or agents intend to use in their original
form in connection with similar activities, are Waste. Waste shall not
include substances, materials or components incorporated into structures
(such as cable routes) even after such components or structure are no
longer in current use.
113. "Wire Center" denotes a building or space within a building which serves
as an aggregation point on a given carrier's network, where transmission
facilities and circuits are connected or switched. A NEVADA Bell Wire
Center can also denote a building in which one or more Central Offices,
used for the provision of Exchange Services and access services, are
located. However, for purposes of collocation, Wire Genter shall mean
those points eligible for such connections as specified in FCC Docket
No. 91-141, and rules adopted pursuant thereto, as modified by
subsequent FCC decisions.
114. "Wireless Service Provider or "WSP" means a provider of Commercial
Mobile Radio Services (CMRS) ~ cellular service provider, Personal
Communications Services provider, or paging service provider.
115. "Work Locations" means any real estate that ATI or NEVADA, as
appropriate, owns, leases or licenses or in which it holds easements or
other rights to use, or does use, in connection with this Agreement.
<PAGE>
Exhibit 10.1.42
AGREEMENT
FOR LOCAL WIRELINE NETWORK INTERCONNECTION
AND
SERVICE RESALE
BETWEEN
ADVANCED TELECOMMUNICATIONS, INC.
AND
U S WEST COMMUNICATIONS, INC.
FOR THE STATE OF
ARIZONA
AGREEMENT NUMBER
CDS-000106-0212
<PAGE>
TABLE OF CONTENTS
PART A
<TABLE>
<S> <C>
RECITALS.......................................................................................................1
SCOPE OF AGREEMENT.............................................................................................1
DEFINITIONS....................................................................................................2
TERMS AND CONDITIONS..........................................................................................12
1. GENERAL PROVISIONS.......................................................................................12
2. MOST FAVORED NATION TERMS AND TREATMENT..................................................................13
3. PAYMENT..................................................................................................13
4. TAXES....................................................................................................14
5. INTELLECTUAL PROPERTY....................................................................................14
6. SEVERABILITY.............................................................................................15
7. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION...........................................................15
8. BRANDING.................................................................................................16
9. INDEPENDENT CONTRACTOR STATUS............................................................................17
10. REFERENCED DOCUMENTS.....................................................................................18
11. PUBLICITY AND ADVERTISING................................................................................18
12. EXECUTED IN COUNTERPARTS.................................................................................18
13. HEADINGS NOT CONTROLLING.................................................................................18
14. JOINT WORK PRODUCT.......................................................................................18
15. SURVIVAL.................................................................................................19
16. EFFECTIVE DATE...........................................................................................19
17. AMENDMENT OF AGREEMENT...................................................................................19
18. INDEMNIFICATION..........................................................................................19
19. LIMITATION OF LIABILITY..................................................................................20
20. TERM OF AGREEMENT........................................................................................21
21. GOVERNING LAW............................................................................................21
22. CANCELLATION CHARGES.....................................................................................21
23. REGULATORY APPROVALS.....................................................................................21
24. COMPLIANCE...............................................................................................22
25. FORCE MAJEURE............................................................................................23
26. ESCALATION PROCEDURES....................................................................................23
27. DISPUTE RESOLUTION.......................................................................................23
28. NONDISCLOSURE............................................................................................24
29. NOTICES..................................................................................................26
30. ASSIGNMENT...............................................................................................27
31. WARRANTIES...............................................................................................27
32. DEFAULT..................................................................................................27
33. REMEDIES.................................................................................................28
34. WAIVERS..................................................................................................29
35. NO THIRD PARTY BENEFICIARIES.............................................................................29
</TABLE>
<PAGE>
<TABLE>
Part A
<S> <C>
36. PHYSICAL SECURITY........................................................................................29
37. NETWORK SECURITY.........................................................................................30
38. REVENUE PROTECTION.......................................................................................30
39. LAW ENFORCEMENT INTERFACE................................................................................31
40. COLLOCATION..............................................................................................31
41. TECHNICAL REFERENCES - COLLOCATION.......................................................................42
42. NUMBER PORTABILITY.......................................................................................43
43. DIALING PARITY...........................................................................................50
44. DIRECTORY LISTINGS.......................................................................................50
45. [INTENTIONALLY LEFT BLANK FOR NUMBERING CONSISTENCY].....................................................53
46. U S WEST DEX ISSUES......................................................................................53
47. ACCESS TO POLES, DUCTS, CONDUITS, AND RIGHTS OF WAY......................................................53
48. BONA FIDE REQUEST PROCESS FOR FURTHER UNBUNDLING.........................................................58
49. AUDIT PROCESS............................................................................................61
50. MISCELLANEOUS SERVICES...................................................................................62
51. UNUSED TRANSMISSION MEDIA................................................................................78
52. SERVICE STANDARDS........................................................................................80
53. ENTIRE AGREEMENT.........................................................................................82
54. RESERVATION OF RIGHTS....................................................................................82
</TABLE>
ATTACHMENTS
ATTACHMENT 1 RATES AND CHARGES
ATTACHMENT 2 RESALE
ATTACHMENT 3 UNBUNDLED ACCESS/ELEMENTS
ATTACHMENT 4 INTERCONNECTION
ATTACHMENT 5 BUSINESS PROCESS REQUIREMENTS
ATTACHMENT 6 ELECTRONIC INTERFACES
ATTACHMENT 7 IMPLEMENTATION SCHEDULE
<PAGE>
Part A
This Interconnection Agreement (this "Agreement"), effective upon
Commission approval (the "Effective Date"), is entered into by and between
Advanced Telecommunications, Inc. ("CO-PROVIDER"), an Arizona corporation, and
U S WEST Communications, Inc., ("U S WEST") a Colorado corporation, to establish
the rates, terms and conditions for local interconnection, local resale, and the
purchase of unbundled network elements (individually referred to as the
"service" or collectively as the "services").
RECITALS
WHEREAS, pursuant to this Agreement, CO-PROVIDER and U S WEST will
extend certain arrangements to one another within each LATA in which they both
operate within Arizona. This Agreement is a combination of agreed terms and
terms imposed by arbitration under Section 252 of the Communications Act of
1934, as modified by the Telecommunications Act of 1996, the rules and
regulations of the Federal Communications Commission, and the orders, rules and
regulations of the Arizona Corporation Commission; and as such does not
necessarily represent the position of either Party on any given issue; and
WHEREAS, the Parties wish to interconnect their local exchange networks
in a technically and economically efficient manner for the transmission and
termination of calls, so that subscribers of each can seamlessly receive calls
that originate on the other's network and place calls that terminate on the
other's network, and for CO-PROVIDER's use in the provision of exchange access
("Local lnterconnection");and
WHEREAS, CO-PROVIDER wishes to purchase Telecommunications Services for
resale to others, and U S WEST is willing to provide such services; and
WHEREAS, CO-PROVIDER wishes to purchase on an unbundled basis Network
Elements, Ancillary Services and Functions and additional features separately or
in any Combination, and to use such services for itself or for the provision of
its Telecommunications Services to others, and U S WEST is willing to provide
such services;
Now, therefore, in consideration of the terms and conditions contained
herein, CO-PROVIDER and U S WEST hereby mutually agree as follows:
SCOPE OF AGREEMENT
A. This Agreement specifies the rights and obligations of each
Party with respect to the purchase and sale of Local Interconnection, Local
Resale and Network Elements in the LATAs in Arizona where U S WEST operates.
B. In the performance of their obligations under this Agreement,
the Parties shall act in good faith and consistently with the intent of the Act.
Where notice, approval or similar action by a Party is permitted or required by
any provision of this Agreement (including, without limitation, the obligation
of the Parties to further negotiate the resolution of new or open issues under
this Agreement) such action shall not be unreasonably delayed, withheld or
conditioned.
C. U S WEST will provide CO-PROVIDER with at least the level of
service quality or performance of obligations under this Agreement as U S WEST
provides itself or any other Person with respect to all Telecommunications
Services, Local Interconnection, Services for Resale, and Network Elements as
applicable and shall provide such level of service quality or performance of
service obligations in accordance with the specific requirements agreed to in
Attachment 5.
D. U S WEST shall provide to CO-PROVIDER Services for Resale that
are equal in quality, subject to the same conditions (including the conditions
in U S WEST's effective tariffs which are not
<PAGE>
Part A
otherwise inconsistent with the terms and conditions contained herein), within
the same provisioning time intervals that U S WEST provides these services to
itself, its Affiliates and others, including end users, and in accordance with
any applicable Commission service quality standards, including standards the
Commission may impose pursuant to Section 252(e)(3) of the Act.
E. Each Network Element provided by U S WEST to CO-PROVIDER shall
be at least equal in the quality of design, performance, features, functions,
capabilities and other characteristics, including, but not limited to, levels
and types of redundant equipment and facilities for power, diversity and
security, that U S WEST provides to itself, U S WEST's own subscribers, to a U S
WEST Affiliate or to any other entity.
F. The Parties agree to work jointly and cooperatively in testing
and implementing processes for pre-ordering, ordering, maintenance, provisioning
and billing and in reasonably resolving issues which result from such
implementation on a timely basis.
G. If a Party makes a change in its network which it believes
will materially affect the interoperability of its network with that of the
other Party, the Party making the change shall provide advance notice of such
change to the other Party in accordance with applicable FCC or Commission
regulations.
H. In accordance with Section 251(c)(5) of the Act and the rules
and regulations established by the FCC and the Commission, the Parties shall
provide reasonable notice of changes in the information necessary for the
transmission and routing of services using that local exchange carrier's
facilities or network, as well as of any other changes that would affect the
interoperability of those facilities and networks.
I. Except as otherwise provided for in Section 8 of Attachment 2,
U S WEST shall not discontinue or refuse to provide any service required
hereunder without CO-PROVIDER'S prior written agreement in accordance with
Section 17 of this Part A of this Agreement, nor shall U S WEST reconfigure,
reengineer or otherwise redeploy its network in a manner which would materially
impair CO-PROVIDER's ability to offer Telecommunications Services in the manner
contemplated by this Agreement, the Act or the FCC's rules and regulations. U S
WEST agrees that all obligations undertaken pursuant to this Agreement,
including, without limitation, performance standards, intervals, and technical
requirements are material obligations hereof and that time is of the essence.
DEFINITIONS
Certain terms used in this Agreement shall have the meanings set forth
herein or as otherwise elsewhere defined throughout this Agreement. Other terms
used but not defined herein will have the meanings ascribed to them in the Act
and the FCC's rules and regulations.
"911 Service" means a universal telephone number which gives the public direct
access to the Public Safety Answering Point (PSAP). Basic 911 service collects
911 calls from one or more local exchange switches that serve a geographic area.
The calls are then sent to the correct authority designated to receive such
calls.
"911 Site Administrator" is a person assigned by CO-PROVIDER to establish and
maintain 911 service location information for its subscribers.
"Access Services" refers to interstate and intrastate switched access and
private line transport services.
"CO-PROVIDER" means Advanced Telecommunications, Inc. and any Affiliates,
subsidiary companies or other entities performing any of the obligations of
CO-PROVIDER set forth in this Agreement.
"Act" means the Communications Act of 1934 (47 U.S.C. Section 151 et seq.), as
amended by the Telecommunications Act of 1996, and as from time to time
interpreted in the duly authorized rules and regulations of the FCC or by the
Commission.
<PAGE>
Part A
"ADSL" or "Asymmetrical Digital Subscriber Line" means a transmission technology
which transmits an asymmetrical digital signal using one of several transmission
methods (for example, carrier-less AM/PM discrete multi-tone, or discrete
wavelet multi-tone).
"Affiliate" is an entity, as defined in the Act, that directly or indirectly
owns or controls, is owned or controlled by, or is under common ownership or
control with, another entity. For the purposes of this Agreement, "own" or
"control" means to own an equity interest (or equivalent) of at least ten
percent (10%), or the right to control the business decisions, management and
policy of another entity performing any of the obligations set forth in this
Agreement.
"AIN" ("Advanced Intelligent Network") is a network functionality that permits
specific conditions to be programmed into a switch which, when met, directs the
switch to suspend call processing and to receive special instructions for
further call handling instructions in order to enable carriers to offer advanced
features and services.
"AIN Services" means architecture and configuration of the AIN Triggers within
the SCP as developed and/or offered by U S WEST to its customers.
"ALI" (Automatic Location Identification) is a database developed for E911
systems that provides for a visual display of the caller's telephone number and
address, and the names of the emergency response agencies responsible for that
address. The ALI also shows an Interim Number Portability (INP) number, if
applicable.
"ALI/DMS" (Automatic Location Identification/Data Management System) means the
emergency service (E91 1/911) database containing subscriber location
information (including name, address, telephone number, and sometimes special
information from the local service provider) used to determine to which Public
Safety Answering Point (PSAP) to route the call.
"AMA" means the Automated Message Accounting structure that initially records
telecommunication message information. AMA format is contained in the Automated
Message Accounting document, published by Bellcore as GR-1100-CORE, which
defines the industry standard for message recording.
"Ancillary Services" or "Ancillary Functions" means, collectively, the
following: (1) Collocation as described in Section 40; (2) access to poles,
ducts, conduits and rights of way as described in Section 47; (3) unused
transmission media as described in Section 51; (4) Directory Listings as
described in Section 44; (5) E911 as described in Section 50.1; (6) Directory
Assistance Service as described in Section 50.2; (7) Operator Services as
described in Section 50.3; (8) Directory Assistance and Listings services
requests as described in Section 50.4; and (9) directory assistance data as
described in Section 50.5.
"ANI" (Automatic Number Identification) is a feature that identifies and
displays the number of a telephone that originates a call.
"ARS" (Automatic Route Selection) is a service feature that provides for
automatic selection of the least expensive or most appropriate transmission
facility for each call based on criteria programmed into the system.
"ASR" (Access Service Request) means the industry standard forms and supporting
documentation used for ordering Access Services. The ASR may be used to order
trunking and facilities between CO-PROVIDER and U S WEST for Local
Interconnection.
"BLV/BLI" (Busy Line Verify/Busy Line Interrupt) means an operator call in which
the end user inquires as to the busy status of, or requests an interruption of,
a telephone call.
<PAGE>
Part A
"Business Day" means any day Monday through Friday except for mutually agreed to
holidays.
"CABS" means the Carrier Access Billing System which is defined in a document
prepared by the Billing Committee of the OBF. The Carrier Access Billing System
document is published by Bellcore in Volumes 1, lA, 2, 3, 3A, 4 and 5 as Special
Reports SR-OPT-001868, SR-OPT-0011869, SR-OPT-001871, SR-OPT001872,
SR-OPT-001873, SR-OPT-001874, and SR-OPT-001875, respectively, and contains the
recommended guidelines for the billing of access and other connectivity
services.
"Calling Party Number" or "CPN" is a CCS parameter which refers to the number
transmitted through a network identifying the calling party.
"CCS" (Common Channel Signaling) means a method of digitally transmitting call
set-up and network control data over a digital signaling network fully separate
from the public switched telephone network that carries the actual call.
"Central Office Switch" means a switch used to provide Telecommunications
Services, including, but not limited to:
(a) "End Office Switches" which are used to terminate Customer
station loops for the purpose of interconnecting to each other
and to trunks;
(b) "Tandem Office Switches" which are used to connect and switch
trunk circuits between and among other Central Office
Switches. Access tandems provide connections for exchange
access and toll traffic while local tandems provide
connections for local/EAS traffic; or
(c) Combination End Office/Tandem Office Switches.
"Centrex", including Centrex Plus, means a Telecommunications Service that uses
central office switching equipment for call routing to handle direct dialing of
calls and to provide numerous private branch exchange-like features.
"Charge Number" is a CCS parameter which refers to the number transmitted
through the network identifying the billing number of the calling party.
"CLASS" (Bellcore Service Mark) is a set of call-management service features
that utilize the capability to forward a calling party's number between end
offices as part of call setup. Features include Automatic Callback, Automatic
Recall, Caller ID, Call Trace, and Distinctive Ringing.
"Combinations" means provision by U S WEST of two or more connected Network
Elements ordered by CO-PROVIDER to provide its Telecommunication Services in a
geographic area or to a specific subscriber and that are placed on the same or
related order by CO-PROVIDER, subject to restrictions, if any, imposed by the
Commission.
"Commission" means the Arizona Corporation Commission.
"Competitive Local Exchange Carrier" or "CLEC" means an entity authorized to
provide Local Exchange Service that does not otherwise qualify as an incumbent
LEC.
"Conduit" means a tube or protected pathway that may be used to house
communication or electrical cables. Conduit may be underground or above ground
(for example, inside buildings) and may contain one or more innerducts.
"Confidential Information" has the meaning set forth in Section 28 of Part A of
this Agreement.
<PAGE>
Part A
"Contract Year" means a twelve (12) month period during the term of this
Agreement commencing on the Effective Date and each anniversary thereof.
"Control Office" is an exchange carrier center or office designated as its
company's single point of contact for the provisioning and maintenance of its
portion of local interconnection arrangements.
"Custom Calling Features" is a set of call-management service features available
to residential and business subscribers including call-waiting, call-forwarding
and three-party calling.
"Customer" means a third-party (residence or business) that subscribes to
Telecommunications Services provided by either of the Parties.
"DBMS" (Database Management System) is a computer system used to store, sort,
manipulate and update the data required to provide, for example, selective
routing and ALI.
"Databases" are the Network Elements that provide the functionality for storage
of, access to, and manipulation of information required to offer a particular
service and/or capability. Databases include, but are not limited to: Number
Portability, LIDB, Toll Free Number Database, Automatic Location
Identification/Data Management System, and AIN.
"Digital Signal Level" means one of several transmission rates in the time
division multiplexing hierarchy, including, but not limited to:
"Digital Signal Level 0" or "DS-0" means the 56 or 64 Kbps zero-level
signal in the time-division multiplex hierarchy.
"Digital Signal Level 1" or "DS-1" means the 1.544 Mbps first-level
signal in the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS-1 is the initial
level of multiplexing.
"Digital Signal Level 3" or "DS-3" means the 44.736 Mbps third-level in
the time-division multiplex hierarchy. In the time-division
multiplexing hierarchy of the telephone network, DS-3 is defined as the
third level of multiplexing.
"Directory Assistance Database" refers to any set of subscriber records used by
U S WEST in its provision of live or automated operator-assisted directory
assistance including, but not limited to, 411, 555-1212, NPA 555-1212.
"Directory Assistance Service" provides Listings to callers. Directory
Assistance Service may include the option to complete the call at the caller's
direction.
"Directory Listings" or "Listings" refers to subscriber information, including,
but not limited to, name, address and phone numbers, in Directory Assistance
Service or directory products.
"Discloser" means that Party to this Agreement which has disclosed Confidential
Information to the other Party.
"E911" (Enhanced 911 Service) means a telephone communication service which will
automatically route a call dialed "911" to a designated Public Safety Answering
Point (PSAP) attendant and will provide to the attendant the calling party's
telephone number and, when possible, the address from which the call is being
placed, and the emergency response agencies responsible for the location from
which the call was dialed.
<PAGE>
Part A
"E911 Message Trunk" is a dedicated line, trunk or channel between two central
offices or switching devices which provides a voice and signaling path for E911
calls.
"Extended Area Service" ("EAS") is intraLATA traffic treated as "local" traffic
between exchanges (rather than as "toll" traffic) as established by the
Commission and as reflected in the effective U S WEST tariffs.
"Effective Date" is the date, indicated in the Preamble, on which this Agreement
shall become effective.
"Emergency Response Agency" is a governmental entity authorized to respond to
requests from the public to meet emergencies.
"EMR" means the Exchange Message Record System used among LECs for exchanging
telecommunications message information for billable, non-billable, sample,
settlement and study data. EMR format is contained in BR-010-200-010 CRIS
Exchange Message Record, published by Bellcore, which defines the industry
standard for exchange message records.
"ESN" (Emergency Service Number) is a number assigned to the ALI and selective
routing databases for all subscriber telephone numbers. The ESN designates a
unique combination of fire, police and emergency medical service response
agencies that serve the address location of each in-service telephone number.
"FCC" means the Federal Communications Commission.
"FCC Interconnection Order" is the Federal Communications Commission's First
Report and Order in CC Docket No. 96-98 released August 8, 1996, as effective.
"Fiber-Meet" means an interconnection architecture method whereby the Parties
physically interconnect their networks via an optical fiber interface (as
opposed to an electrical interface) at a mutually agreed upon location.
"Gateway" (ALI Gateway) is a telephone company computer facility that interfaces
with CO-PROVIDER's 911 administrative site to receive Automatic Location
Identification (ALI) data from CO-PROVIDER. Access to the Gateway will be via a
dial-up modem using a common protocol.
"HDSL" or "High-Bit Rate Digital Subscriber Line" means a two-wire or four-wire
transmission technology which typically transmits a DS-1-level signal (or,
higher level signals with certain technologies), using, for example, 2 Binary/1
Quartenary ("2B1Q").
"ILEC" means the incumbent local exchange carrier.
"Information Service Traffic" means traffic which originates on a local access
line and which is addressed to an information service provider.
"INP" (Interim Number Portability) is a service arrangement whereby subscribers
who change local service providers may retain existing telephone numbers with
minimal impairment of quality, reliability, or convenience when remaining at
their current location or changing their location within the geographic area
served by the initial carrier's serving central office.
"Integrated Digital Loop Carrier" ("IDLC") means a digital subscriber loop
carrier system which interfaces with the switch digitally at a DS-1 (1.544Mbps)
or higher level.
"Integrated Services Digital Network" or "ISDN" means a switched network service
that provides end-to-end digital connectivity for the simultaneous transmission
of voice and data. Basic Rate Interface-ISDN (BRI-ISDN) provides for a digital
transmission of two 64 Kbps bearer channels and one 16 Kbps data
<PAGE>
Part A
channel (2B+D). Primary Rate lnterface-ISDN (PRI-ISDN) provides for a digital
transmission of twenty-three (23) 64 Kbps bearer channels and one 64 Kbps data
channel (23B+D).
"Interconnection" is as described in the Act and refers to the connection of
separate pieces of equipment, facilities, or platforms between or within
networks for the purpose of transmission and routing of telephone exchange
service traffic and exchange access traffic.
"IXC" (Interexchange Carrier) means a provider of Interexchange
Telecommunications Services.
"LATA" means Local Access Transport Area.
"LEC" means local exchange carrier.
"LIDB" (Line Information Data Base(s)) is a SCP database that provides for such
functions as calling card validation for telephone line number cards issued by
LECs and other entities and validation for collect and billed-to-third services.
"Local Interconnection" shall have the meaning set forth in the Recitals to this
Agreement.
"Local Resale," "Services for Resale" or "Resale Services" means, collectively,
Telecommunications Services and service functions provided by U S WEST to
CO-PROVIDER pursuant to Attachment 2 of this Agreement.
"Local Traffic" is intraLATA traffic within an exchange that is treated as toll
free traffic as established by the Commission and as reflected in the effective
tariffs of U S WEST.
"Loop" is a transmission facility between a distribution frame, or its
equivalent, in a U S WEST central office or wire center, and the Network
Interface Device (as defined herein) or network interface at a subscriber's
premises, to which CO-PROVIDER is granted exclusive use. This includes, but is
not limited to, two-wire and four-wire analog voice-grade loops, and two-wire
and four-wire loops that are conditioned to transmit the digital signals needed
to provide ISDN, ADSL, HDSL, and DS-1 level signals. A Loop may be composed of
the following components:
Loop Concentrator/Multiplexer
Loop Feeder
Network Interface Device (NID)
Distribution
"Main Distribution Frame" or "MDF" means the distribution frame of the Party
providing the Loop used to interconnect cable pairs and line and trunk equipment
terminals on a switching system or transmission facility.
"MECAB" refers to the Multiple Exchange Carrier Access Billing (MECAB) document
prepared by the Billing Committee of the Ordering and Billing Forum, which
functions under the auspices of the Carrier Liaison Committee (CLC) of the
Alliance for Telecommunications Industry Solutions (ATIS). The MECAB document,
published by Bellcore as Special Report SR-BDS-000983, contains the recommended
guidelines for the billing of an Access Service provided by two or more LECs
(including a LEC and a CLEC), or by one LEC in two or more states within a
single LATA.
"MECOD" refers to the Multiple Exchange Carriers Ordering and Design (MECOD)
Guidelines for Access Services Industry Support Interface, a document developed
by the Ordering/Provisioning Committee under the auspices of the Ordering and
Billing Forum, which functions under the auspices of the Carrier Liaison
Committee (CLC) of the Alliance for Telecommunications Industry Solutions
(ATIS). The MECOD document, published by Bellcore as Special Report SR
STS-002643, establishes recommended guidelines for
<PAGE>
Part A
processing orders for Access Service which is to be provided by two or more LECs
(including a LEC and a CLEC). It is published by Bellcore as SRBDS 00983.
"Meet-Point Billing" or "MPB" refers to an arrangement whereby two LECs
(including a LEC and CO-PROVIDER) jointly provide Switched Access Service to an
lnterexchange Carrier, with each LEC (or CO-PROVIDER) receiving an appropriate
share of the access element revenues.
"Mid-Span Meet" is a point of interconnection between two networks, designated
by two Telecommunications Carriers, at which one carrier's responsibility for
service begins and the other carrier's responsibility ends.
"MSAG" (Master Street Address Guide) is a database defining the geographic area
of an E911 service. It includes an alphabetical list of the street names,
high-low house number ranges, community names, and emergency service numbers
provided by the counties or their agents to U S WEST.
"North American Numbering Plan" or "NANP" means the numbering plan used in the
United States that also serves Canada, Bermuda, Puerto Rico and certain
Caribbean Islands. The NANP format is a 10-digit number that consists of a
3-digit NPA code (commonly referred to as the area code), followed by a 3-digit
NXX code and 4-digit line number.
"NENA" (National Emergency Number Association) is an association with a mission
to foster the technological advancement, availability and implementation of 911
nationwide.
"NETWORK ELEMENT" MEANS A FACILITY OR EQUIPMENT USED IN THE PROVISION OF A
TELECOMMUNICATIONS SERVICE INCLUDING ALL FEATURES, FUNCTIONS AND CAPABILITIES
EMBEDDED IN SUCH FACILITY OR EQUIPMENT.(1)
"NP" (Number Portability) means the use of the Location Routing Number (LRN)
database solution to provide fully transparent NP for all subscribers and all
providers without limitation.
"NPA" (Numbering Plan Area) (sometimes referred to as an area code) is the three
digit indicator which is designated by the first three digits of each 10-digit
telephone number within the NANP. Each NPA contains 792 possible NXX Codes.
There are two general categories of NPA, "geographic NPAs" and "Non-Geographic
NPAs." A "Geographic NPA" is associated with a defined geographic area, and all
telephone numbers bearing such NPA are associated with services provided within
that geographic area. A "Non-Geographic NPA," also known as a "Service Access
Code (SAC Code)" is typically associated with a specialized Telecommunications
Service which may be provided across multiple geographic NPA areas; 500, 800,
900, 700, and 888 are examples of Non-Geographic NPAs.
"NXX" means the fourth, fifth and sixth digits of a ten-digit telephone number
within the North American Numbering Plan.
"OBF" means the Ordering and Billing Forum, which functions under the auspices
of the Carrier Liaison Committee (CLC) of the Alliance for Telecommunications
Industry Solutions (ATIS).
"Operator Services" includes, but is not limited to, (1) operator handling for
call completion (e.g., collect calls); (2) operator or automated assistance for
billing after the subscriber has dialed the called number (e.g., credit card
calls); and (3) special services (e.g., BLV/BLI, emergency agency call).
"Operator Systems" is the Network Element that provides operator and automated
call handling with billing, special services, subscriber telephone listings, and
optional call completion services.
- ----------
(1) AT&T Order, page 11, Issue 18 and MCIm Order at p.24.
<PAGE>
Part A
"P.01 Transmission Grade of Service (GOS)" means a trunk facility provisioning
standard with the statistical probability of no more than one call in 100
blocked on initial attempt during the average busy hour.
"PLU" (Percent Local Usage) is a calculation which represents the ratio of the
local minutes to the sum of local and intraLATA toll minutes between exchange
carriers sent over Local Interconnection trunks. Directory assistance, BLV/BLI,
900 , 976, transiting calls from other exchange carriers and switched access
calls are not included in the calculation of PLU.
"Party" means either U S WEST or CO-PROVIDER and "Parties" means U S WEST and
CO-PROVIDER.
"Person" means, collectively, an Affiliate, subsidiary, Customer, end user and
subscriber of U S WEST.
"Point of Interconnection or "P0I" means the physical point that establishes the
technical interface, the test point, where applicable, and the operational
responsibility hand-off between CO-PROVIDER and US WEST for the local
interconnection of their networks for the mutual exchange of traffic.
"Point of Interface" is the physical point where CO-PROVIDER hands off
transmission media to the U S WEST provided entrance facility associated with a
collocation arrangement for the purpose of connecting the entrance facility to
some point located within U S West's premises.
"Pole Attachment" means the connection of a facility to a utility pole. Some
examples of facilities are mechanical hardware, grounding and transmission
cable, and equipment boxes.
"POP" means an IXC's point of presence.
"PORT" MEANS A TERMINATION ON A CENTRAL OFFICE SWITCH THAT PERMITS CUSTOMERS TO
SEND OR RECEIVE TELECOMMUNICATIONS SERVICES OVER THE PUBLIC SWITCHED NETWORK,
INCLUDING SWITCH FEATURES OR SWITCHING FUNCTIONALITY.(2)
"Premium Listing", such as additional, foreign, cross reference, informational,
non-listed, privacy, etc. are as described in the U S WEST general exchange
Listing tariff.
"Primary Listing" (for example, main list, additional main, joint user, client
main list or answering service list) shall mean the one appearance of an end
user telephone subscriber's main telephone number and other content such as name
and address, which each CO-PROVIDER residence or business subscriber is entitled
to receive in the white pages directory published by U S WEST Dex at no charge
from U S WEST Communications. Where U S WEST business end users are entitled to
receive a courtesy Listing in the yellow pages section of any directory
published on U S WEST's behalf, CO-PROVIDER's business customers will receive
the same entitlement.
"Proprietary Information" shall have the same meaning as Confidential
Information.
"PSAP" (Public Safety Answering Point) is the public safety communications
center where 911 calls placed by the public fora specific geographic area will
be answered.
"Rate Center" means the geographic point and corresponding geographic area
which are associated with one or more particular NPA-NXX codes which have
been assigned to U S WEST or CO-PROVIDER for its provision of basic exchange
Telecommunications Services. The "Rate Center Point" is the finite geographic
point identified by a specific V&H coordinate, which is used to measure
distance-sensitive end user traffic to/from the particular NPA-NXX
designations associated with the specific Rate Center. The "Rate Center Area"
is the exclusive geographic area identified as the area within which U S WEST
or CO-PROVIDER will
- ----------
(2) AT&T Order, page 11, Issue 18 and MCIm Order at p. 24.
<PAGE>
Part A
provide basic exchange Telecommunications Services bearing the particular
NPA-NXX designations associated with the specific Rate Center. The Rate Center
Point must be located within the Rate Center Area.
"Rating Point" means the point at which transport mileage is calculated for the
termination of calls. Each Party shall establish its own Rating Point(s) for its
own services.
"Real Time" means the actual time in which an event takes place, with the
reporting on or the recording of the event simultaneous with its occurrence.
"Recipient" means that Party to this Agreement (1) to which Confidential
Information has been disclosed by the other Party, or (2) who has obtained
Confidential Information in the course of providing services under this
Agreement.
"Reseller" is a category of Telecommunications Services providers who obtain
Telecommunications Services from another provider through the purchase of
wholesale priced services for resale to their end user subscribers.
"Routing Point" means a location which U S WEST or CO-PROVIDER has designated on
its own network as the homing (routing) point for traffic inbound to basic
exchange Telecommunications Services provided by U S WEST or CO-PROVIDER which
bear a certain NPA-NXX designation. The Routing Point is employed to calculate
mileage measurements for the distance-sensitive transport element charges of
Switched Access Services. Pursuant to Bellcore Practice BR 795-100-100, the
Routing Point may be an "End Office" location, or a "LEC Consortium Point of
Interconnection." Pursuant to that same Bellcore Practice, examples of the
latter shall be designated by a common language location identifier (CLLI) code
with (x)KD in positions 9,10, 11, where (x) may by any alphanumeric A-Z or 0-9.
The Routing Point need not be the same as the Rate Center Point, nor must it be
located within the Rate Center Area, but must be in the same LATA as the
NPA-NXX.
"ROW' (Right of Way) means the right to use the land or other property owned,
leased, or controlled by another party to place poles, conduits, cables, other
structures and equipment, or to provide passage to access such structures and
equipment. A ROW may run under, on, or above public or private property
(including air space above public or private property) and may include the right
to use discrete space in buildings, building complexes or other locations.
"SAG" (Street Address Guide) is a database containing an alphabetical list of
street names, high-low house number ranges, descriptive addresses, community
names, tax codes, subscriber names, telephone numbers, NXXs, central office
names, CLLI and other information maintained by U S WEST.
"SECAB" means the Small Exchange Carrier Access Billing document prepared by the
Billing Committee of the OBF. The Small Exchange Carrier Access Billing
document, published by Bellcore as Special Report SR OPT-001856, contains the
recommended guidelines for the billing of access and other connectivity
services.
"Selective Routing" is a service which automatically routes an E911 call to the
PSAP that has jurisdictional responsibility for the service address of the
telephone from which 911 is dialed, irrespective of telephone company exchange
or wire center boundaries.
"Service Control Point" or "SCP" is a specific type of Database Network Element
functionality deployed in a Signaling System 7 (SS7) network that executes
service application logic in response to SS7 queries sent to it by a switching
system also connected to the SS7 network. SCPs also provide operational
interfaces to allow for provisioning, administration and maintenance of
subscriber data and service application data (e.g., a toll free database stores
subscriber record data that provides information necessary to route toll free
calls).
<PAGE>
Part A
"Signaling Transfer Points" or "STPs" provide functionality that enable the
exchange of SS7 messages among and between switching elements, database elements
and Signaling Transfer Points.
"Switch" -- See Central Office Switch.
"Switched Access", "Switched Access Service", "Switched Exchange Access Service"
or "Switched Access Traffic" are as defined in the Parties' applicable tariffs.
"Tandem Office Switches" are Class 4 switches which are used to connect and
switch trunk circuits between and among End Office Switches and other tandems.
"Tariff Services" as used throughout this Agreement refers to the applicable
Party's interstate tariffs and state tariffs, price lists, price schedules and
catalogs.
"Technically Feasible" refers solely to technical or operational concerns,
rather than economic, space, or site considerations, in accordance with the
rules and regulations of the FCC and the Commission.
"Telecommunications" means the transmission, between or among points specified
by the user, of information of the user's choosing, without change in the form
or content of the information as sent and received.
"Telecommunications Carrier" means any provider of Telecommunications Services,
except that such term does not include aggregators of Telecommunications
Services (as defined in Section 226 of the Act). A Telecommunications Carrier
shall be treated as a common carrier under the Act only to the extent that it is
engaged in providing Telecommunications Services, except that the Commission
shall determine whether the provision of fixed and mobile satellite service
shall be treated as common carriage.
"Telecommunications Services" means the offering of Telecommunications for a fee
directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used.
"Toll Traffic" is traffic that originates in one Rate Center and terminates in
another Rate Center with the exception of traffic that is rated as EAS.
"Transit Service" provides the ability for a Telecommunications Carrier to use
its connection to a local or access tandem for delivery of calls that originate
with a Telecommunications Carrier and terminate to a company other than the
tandem company, such as another Competitive Local Exchange Carrier, an existing
LEC, or a wireless carrier. In these cases, neither the originating nor
terminating end user is a customer of the tandem Telecommunications Carrier. The
tandem Telecommunications Carrier will accept traffic originated by a Party and
will terminate it at a Point of Interconnection with another local, intraLATA or
interLATA network Telecommunications Carrier. This service is provided through
local and access tandem switches.
"Transit Traffic" is any traffic, other than Switched Access Traffic, that
originates from one Telecommunications Carrier's network, transits another
Telecommunications Carrier's network, and terminates to yet another
Telecommunications Carrier's network.
"TRCO" means Trouble Reporting Control Office.
"U S WEST" means U S WEST Communications, Inc. and any Affiliates, subsidiary
companies or other entities performing any of the obligations of U S WEST set
forth in this Agreement.
"Voluntary Federal Subscriber Financial Assistance Programs" are
Telecommunications Services provided to low-income subscribers, pursuant to
requirements established by the appropriate federal or state regulatory body.
<PAGE>
Part A
"Wire Center"" denotes, for the purposes of collocation, a building or space
within a building, that serves as an aggregation point on a given carrier's
network, where transmission facilities and circuits are connected or switched.
Wire Center can also denote a building where one or more central offices, used
for the provision of Telecommunications Services and Access Services, are
located. Wire Center shall mean those points eligible for such connections as
specified in the FCC Docket No. 91-141, and rules adopted pursuant thereto.
TERMS AND CONDITIONS
1. GENERAL PROVISIONS
1.1 Each Party is individually responsible to provide facilities
within its network which are necessary for routing,
transporting, measuring, and billing traffic from the other
Party's network and for delivering such traffic to the other
Party's network in the standard format compatible with
CO-PROVIDER's network and to terminate the traffic it receives
in that standard format or the proper address on its network.
The Parties are each solely responsible for participation in
and compliance with national network plans, including the
National Network Security Plan and the Emergency Preparedness
Plan.
1.2 Neither Party shall impair the quality of service to other
carriers or to either Party's Customers, and each Party may
discontinue or refuse service if the other Party violates this
provision. Upon such violation, either Party shall provide the
other Party notice of such violation, at the earliest
practicable time.
1.3 Each Party is solely responsible for the services it provides
to its Customers and to other Telecommunications Carriers.
1.3.1 The Parties recognize that equipment vendors may
manufacture telecommunications equipment that does
not fully incorporate and may deviate from industry
standards referenced in this Agreement. Due to the
manner in which individual equipment manufacturers
have chosen to implement industry standards into the
design of their products, along with differing
vintages of individual facility components and the
presence of embedded technologies pre-dating current
technical standards, some of the individual facility
components deployed within U S WEST's network,
including, without limitation, Network Elements and
associated business processes and the standards
associated with the equipment providing such Network
Elements (collectively, "Network Components"), may
not adhere to all the specifications set forth and
described in the Bellcore, ANSI, ITU and other
technical and performance standards outlined in this
Agreement. Within forty-five (45) days after the
Effective Date of this Agreement, the Parties will
develop processes by which U S WEST will inform
CO-PROVIDER of deviations or planned deviations, and
the implementation date of such planned deviations,
from standards referenced in this Agreement for
Network Components that may be ordered by
CO-PROVIDER. In addition, the Parties agree that
those deviations from such standards documented by
U S WEST to CO-PROVIDER shall, to the extent
permitted by FCC and Commission rules and
regulations, supersede sections of this Agreement
referencing technical standards otherwise applicable
for the affected Network Elements.
1.3.2 U S WEST agrees that in no event shall it
intentionally allow any Network Component provided by
U S WEST to CO-PROVIDER under this Agreement to
perform below the standards or deviations therefrom
reflected in Section 1.3.1, except where requested by
CO-PROVIDER. U S WEST shall minimize any
<PAGE>
Part A
degradation to its equipment relative to currently
applicable service, where reasonable in view of
industry adopted performance standards and
technological developments. Written notice (the
"Change Notice") of any planned changes in standards
for any Network Component which could impact that
Network Component will be provided at least ninety
(90) days (or at the make/buy point) prior to the
planned implementation. If CO-PROVIDER notifies U S
WEST of how the proposed change may adversely impact
CO-PROVIDER or its Customers within fourteen (14)
calendar days after receipt of U S WEST's Change
Notice, U S WEST and CO-PROVIDER will schedule joint
discussions to address and attempt to resolve the
matter, including, without limitation, consideration
of proposed alternatives. In addition, if U S WEST
learns that any Network Component purchased by
CO-PROVIDER under this Agreement has been permitted
(even if not intentionally) to fall materially below
the level or specification in effect as of the
Effective Date of this Agreement, U S WEST shall
inform CO-PROVIDER immediately.
1.3.3 The Parties recognize that providing a number of the
services specified in this Agreement depends upon the
"technical feasibility" of providing that service, as
that term is defined under the Act and/or by FCC or
Commission rules and decisions. If the Parties cannot
agree on whether providing a service is technically
feasible, the matter, including cost and expenses (if
any), shall be resolved through good faith
negotiation or the dispute resolution process
outlined in this Agreement.
2. MOST FAVORED NATION TERMS AND TREATMENT
2.1 UNTIL SUCH TIME AS THERE IS A FINAL COURT DETERMINATION
INTERPRETING SECTION 252(i) OF THE ACT, U S WEST SHALL MAKE
AVAILABLE TO CO-PROVIDER THE TERMS AND CONDITIONS OF ANY OTHER
AGREEMENT FOR INTERCONNECTION, UNBUNDLED NETWORK ELEMENTS AND
RESALE SERVICES APPROVED BY THE COMMISSION UNDER SECTION 252
OF THE ACT, IN THAT AGREEMENT'S ENTIRETY. AFTER THERE IS A
FINAL COURT DETERMINATION INTERPRETING SECTION 252(i) OF THE
ACT, THE PARTIES AGREE TO REVISE THIS SECTION 2.1 TO REFLECT
SUCH INTERPRETATION.(3)
3. PAYMENT
3.1 In consideration of the services provided by U S WEST under
this Agreement, CO-PROVIDER shall pay the charges set forth in
Attachment 1 to this Agreement. The billing procedures for
charges incurred by CO-PROVIDER hereunder are set forth in
Attachment 5 to this Agreement.
3.2 Amounts payable under this Agreement, unless reasonably
disputed, are due and payable within thirty (30) days after
the date of U S WEST's invoice or within twenty (20) days
after receipt of the invoice, whichever is later. If the
payment due date is not a Business Day, the payment shall be
made the next Business Day.
3.3 A late payment charge of 1.5% applies to all billed balances,
not reasonably disputed, which are not paid within the
applicable time period set forth in Section 3.2 above. To the
extent CO-PROVIDER pays the billed balance on time, but the
amount of the billed balance is reasonably disputed by
CO-PROVIDER, and, it is later determined that a refund is due
CO-PROVIDER, interest shall be payable on the refunded amount
in the amount of 1.5% per
- ----------
(3) MCIm Order, p. 29 and AT&T Order, p. 35.
<PAGE>
Part A
month. To the extent CO-PROVIDER pays the billed balance on
time, but the amount of the billed balance is reasonably
disputed by CO-PROVIDER, and, it is later determined that no
refund is due CO-PROVIDER, no interest shall be payable on the
disputed amount.
3.4 Late payment charges shall not be used as a "credit" to a
deposit, if any, without the express approval of U S WEST.
3.5 Unless specified otherwise in this Agreement, U S WEST shall
bill all amounts due from CO-PROVIDER for each resold service
in accordance with the terms and conditions as specified in
the U S WEST tariff.
4. TAXES
4.1 Any federal, state or local excise, sales, or use taxes
(excluding any taxes levied on income) resulting from the
performance of this Agreement shall be borne by the Party upon
which the obligation for payment is imposed under applicable
law, even if the obligation to collect and remit such taxes is
placed upon the other Party. Any such taxes shall be shown as
separate items on applicable billing documents between the
Parties. The Party so obligated to pay any such taxes may
contest the same in good faith, at its own expense, and shall
be entitled to the benefit of any refund or recovery, provided
that such Party shall not permit any lien to exist on any
asset of the other Party by reason of the contest. The Party
obligated to collect and remit taxes shall cooperate fully in
any such contest by the other Party by providing records,
testimony and such additional information or assistance as may
reasonably be necessary to pursue the contest. To the extent a
sale is claimed to be for resale tax exemption, the purchasing
Party shall furnish the providing Party a proper resale tax
exemption certificate as authorized or required by statute or
regulation by the jurisdiction providing said resale tax
exemption. Failure to timely provide said resale tax exemption
certificate will result in no exemption being available to the
purchasing Party during the applicable reporting period.
5. INTELLECTUAL PROPERTY
5.1 Obligations of Party Requesting Access. As a condition to the
access or use of patents, copyright, trade secrets, and other
intellectual property (including software) owned or controlled
by a third party to the extent necessary to implement this
Agreement or specifically required by the then applicable
federal and state rules and regulations relating to
Interconnection and access to telecommunications facilities
and services ("Third Party Intellectual Property"), the Party
providing access may require the other, upon written notice
from time to time, to obtain a license or permission for such
access or use of Third Party Intellectual Property, make all
payment, if any, in connection with obtaining such license,
and provide evidence of such license.
5.2 Obligations of Party Providing Access. The Party providing
access shall provide a list of all known and necessary Third
Party Intellectual Property applicable to the other Party, and
take all necessary and appropriate steps to facilitate the
negotiation of any mandatory licenses. The treatment of third
party licenses shall be in accordance with FCC rules and
regulations and/or judicial determinations.
5.3 Any intellectual property jointly developed in the course of
performing this Agreement shall belong to both Parties who
shall have the right to grant non-exclusive licenses to third
parties except as otherwise designated in writing by one Party
to another. Any intellectual property which originates from or
is developed by a Party shall remain in the exclusive
ownership of that Party. Except for a limited license to use
patents or copyrights to the
<PAGE>
Part A
extent necessary for the Parties to use any facilities or
equipment (including software) or to receive any service
solely as provided under this Agreement, no license in patent,
copyright, trademark or trade secret, or other proprietary or
intellectual property presently or hereafter owned, controlled
or licensable by a Party, is granted to the other Party or
shall be implied or arise by estoppel.
6. SEVERABILITY
6.1 In the event that any one or more of the provisions contained
herein shall for any reason be held to be unenforceable or
invalid in any respect under law or regulation, the Parties
will negotiate in good faith for replacement language. If any
part of this Agreement is held to be invalid or unenforceable
for any reason, such invalidity or unenforceability will
affect only the portion of this Agreement which is invalid or
unenforceable. In all other respects this Agreement will stand
as if such invalid or unenforceable provision had not been a
part hereof, and the remainder of this Agreement shall remain
in full force and effect.
7. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
7.1 CO-PROVIDER shall in no event be liable to U S WEST for any
costs whatsoever resulting from the presence or release of any
environmental hazard CO-PROVIDER did not introduce to the
affected work location. U S WEST shall, at CO-PROVIDER's
request, indemnify, defend, and hold harmless CO-PROVIDER, and
each of its officers, directors and employees from and against
any losses, damages, claims, demands, suits, liabilities,
fines, penalties and expenses (including reasonable attorneys'
fees) arising out of or resulting from (a) any environmental
hazard U S WEST, its contractors or agents introduce to the
work location, or (b) the presence or release of any
environmental hazard for which U S WEST is responsible under
applicable law.
7.2 U S WEST shall in no event be liable to CO-PROVIDER for any
costs whatsoever resulting from the presence or release of any
environmental hazard U S WEST did not introduce to the
affected work location. CO-PROVIDER shall, at U S WEST's
request, indemnify, defend, and hold harmless U S WEST, and
each of its officers, directors and employees from and against
any losses, damages, claims, demands, suits, liabilities,
fines, penalties and expenses (including reasonable attorneys'
fees) arising out of or resulting from (a) any environmental
hazard CO-PROVIDER, its contractors or agents introduce to the
work location, or (b) the presence of release of any
environmental hazard for which CO-PROVIDER is responsible
under applicable law.
7.3 In the event any suspect materials within U S WEST-owned,
operated or leased facilities are identified to be
asbestos-containing, CO-PROVIDER will ensure that, to the
extent any activities which it undertakes in the facility
disturb such suspect materials, such CO-PROVIDER activities
will be in accordance with applicable local, state and federal
environmental and health and safety statutes and regulations.
Except for abatement activities undertaken by CO-PROVIDER or
equipment placement activities that result in the generation
of asbestos containing material, CO-PROVIDER shall not have
any responsibility for managing, nor be the owner of, not have
any liability for, or in connection with, any asbestos
containing material. U S WEST agrees to immediately notify
CO-PROVIDER if U S WEST undertakes any asbestos control or
asbestos abatement activities that potentially could affect
CO-PROVIDER equipment or operations, including, but not
limited to, contamination of equipment.
7.4 Each Party will be solely responsible, at its own expense, for
proper handling, storing, transport and disposal of all (a)
substances or materials that it or its contractors or agents
<PAGE>
Part A
bring to, create or assume control over at work locations, or
(b) waste resulting therefrom or otherwise generated in
connection with its or its contractors' or agents'
activities the work locations.
8. BRANDING
8.1 (4) EXCEPT AS PROVIDED IN THIS AGREEMENT, AT CO-PROVIDER'S
REQUEST, U S WEST SHALL BE OBLIGATED TO PROVIDE BRANDING AND
UNBRANDING OF SERVICES PROVIDED TO CO-PROVIDER CUSTOMERS
PURSUANT TO THIS AGREEMENT IN A NONDISCRIMINATORY MANNER
CONSISTENT WITH THE BRANDING OF SUCH SERVICES TO U S WEST
CUSTOMERS.
8.2 (5) IF CO-PROVIDER REQUESTS THAT A SERVICE PROVIDED UNDER THIS
AGREEMENT BE BRANDED AS AN CO-PROVIDER SERVICE AND U S WEST
INFORMS CO-PROVIDER THAT SUCH BRANDING IS NOT AVAILABLE OR IF
IT IS NOT PRACTICAL TO SO BRAND THE SERVICE, THEN U S WEST
WILL OFFER CO-PROVIDER THE SERVICE ON AN UNBRANDED BASIS AT
CO-PROVIDER'S REQUEST.
8.3 (6) WITHOUT LIMITATION OF THE PROVISIONS OF SECTION 8.1 AND 8.2,
IF U S WEST IS OFFERING A SERVICE ON AN UNBRANDED BASIS, U S
WEST MAY BRAND SUCH SERVICE WITH THE U S WEST BRAND ONLY IF
U S WEST ALSO OFFERS TO BRAND THE SERVICE WITH THE CO-PROVIDER
BRAND.
8.4 [Intentionally left blank for numbering consistency]
8.5 (7) U S WEST WILL NOT BE REQUIRED TO REBRAND UNIFORMS AND
VEHICLES. THE UNIFORMS OF U S WEST'S REPAIR AND MAINTENANCE
PERSONNEL SHALL BEAR THE SAME OR LESS U S WEST BRANDING THAN
WAS PRESENT AS OF FEBRUARY 8, 1996.
8.6 COMPUTERIZED PROGRAMMING
8.6.1 REPAIR BILLS OR RECEIPTS HANDED TO THE END USER AT
THE TIME SERVICE IS RENDERED MAY BEAR THE U S WEST
BRAND. IF THE COMPUTERIZED PROGRAMMING WHICH EITHER
INFORMS THE REPAIR EMPLOYEES OF THE ADDRESS AND
SERVICE NEEDED, OR PRINTS THE RECEIPTS, CAN BE
MODIFIED, AT A REASONABLE COST, TO USE THE BRAND OF A
SELECTION OF CO-PROVIDER, THEN U S WEST SHALL PROVIDE
THAT CUSTOMIZED PROGRAMMING. OTHERWISE, THE RECEIPT
MAY BEAR THE BRAND OF U S WEST'S REPAIR AND
MAINTENANCE, AND WILL ADD THAT IT PROVIDES AUTHORIZED
REPAIR AND MAINTENANCE FOR, AND LIST THE CLECS FOR
WHICH U S WEST IS CONTRACTED TO PROVIDE SERVICE. IF
U S WEST'S COMPUTERIZED PROGRAMMING CAN BE MODIFIED
TO INFORM U S WEST'S EMPLOYEE FOR WHICH CLEC SERVICE
IS BEING RENDERED, THE REPAIR EMPLOYEE MAY BE
REQUIRED TO CIRCLE OR OTHERWISE INDICATE THE NAME OF
THE APPROPRIATE CLEC ON THE RECEIPT OR OTHER FORM.
- ----------
(4) Arizona Bench Order, May 29, 1997 Hearing, pp. 1582-3; Procedural Order,
July 14, 1997 at page 2-3.
(5) Id.
(6) Id.
(7) Bolded language in Sections 8.5 and 8.6 included per MCIm Order, pp.
13-14 at Issue 23 and AT&T Order at Issue 30.
<PAGE>
Part A
8.6.2 IF U S WEST CHOOSES TO USE ITS LOGO ON THE ABOVE
FORMS, IT MAY ONLY DO SO IF IT ALSO USES THE LOGOS OF
THE CLECS. IF U S WEST'S CUSTOMERS ARE SERVED BY ITS
OWN REPAIR AND MAINTENANCE, U S WESTS NAME SHOULD BE
LISTED WITH THE OTHER CLECS.
8.6.3 TYPEFACE, FONT, AND APPEARANCES OF THE NAMES, SIZE
AND APPEARANCE OF THE LOGOS OF THE CLECS AND U S WEST
IN ALL LOCATIONS MUST BE THE SAME.
8.6.4 U S WEST WILL NOT BE HELD LIABLE FOR ANY
UNINTENTIONAL ERRORS THAT OCCUR IN THE BRANDING
PROCESS.
8.6.5 THE FOREGOING STEPS TO REBRAND REPAIR AND MAINTENANCE
SERVICE NEED ONLY BE TAKEN BY U S WEST WHERE
TECHNICALLY FEASIBLE.
8.7 U S WEST shall provide, for CO-PROVIDER's review, the methods
and procedures, training and approaches to be used by U S WEST
to assure that U S WEST meets CO-PROVIDER's branding
requirements.
8.8 This Section 8 shall confer on U S WEST no rights to the
service marks, trademarks and trade names owned by or used in
connection with services by CO-PROVIDER or its Affiliates,
except as expressly permitted by CO-PROVIDER.
8.9 AT THE REQUEST OF CO-PROVIDER AND WHERE TECHNICALLY FEASIBLE,
U S WEST WILL REBRAND OPERATOR SERVICES AND DIRECTORY
ASSISTANCE IN CO-PROVIDER'S NAME.(8)
8.10 THE EXPENSE OF REBRANDING OPERATOR SERVICES AND DIRECTORY
ASSISTANCE, IF REQUIRED BY CO-PROVIDER, SHALL BE INCLUDED AS A
FORWARD LOOKING ECONOMIC COST, SUCH COST TO BE RESOLVED IN THE
FUTURE ARBITRATION TO BE CONDUCTED BY THE COMMISSION AS IT
CONSIDERS COST STUDIES.(9)
9. INDEPENDENT CONTRACTOR STATUS
9.1 Nothing contained herein shall constitute the Parties as joint
venturers, partners, employees or agents of one another, and
neither Party shall have the right or power to bind or
obligate the other.
9.2 Each Party is an independent contractor, and has and hereby
retains the right to exercise full control of and supervision
over its own performance or its obligations under this
Agreement and retains full control over the employment,
direction, compensation and discharge of all employees
assisting in the performance of such obligations. Each Party
will be solely responsible for all matters relating to payment
of such employees, including compliance with social security
taxes, withholding taxes, and other payroll taxes with respect
to their respective employees, as well as any taxes,
contributions or other obligations imposed by applicable state
unemployment or workers' compensation acts and all other
regulations governing such matters. Each Party has sole
authority and responsibility to hire, fire and otherwise
control its employees.
9.3 Subject to the limitations on liability and except as
otherwise provided in this Agreement, each Party shall be
responsible for (a) its own acts and performance of all
obligations
- ----------
(8) AT&T Order, p. 31 at Issue 62.
(9) AT&T Order, p.18 at Issue 30.
<PAGE>
Part A
imposed by applicable law in connection with its activities,
legal status and property, real or personal, and (b) the acts
of its own Affiliates, employees, agents and contractors
during the performance of that Party's obligations hereunder.
Except for provisions herein expressly authorizing one Party
to act for the other, nothing in this Agreement shall
constitute a Party as a legal representative or agent of the
other Party, nor shall a Party have the right or authority to
assume, create or incur any liability or any obligation of any
kind, express or implied, against or in the name or on behalf
of the other Party unless otherwise expressly permitted by
such other Party. Except as otherwise expressly provided in
this Agreement, neither Party shall undertake to perform any
obligation of the other Party, whether regulatory or
contractual, or to assume any responsibility for the
management of the other Party's business.
10. REFERENCED DOCUMENTS
10.1 All references to Sections, Exhibits, and Schedules shall be
deemed to be references to Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall
otherwise require. Whenever any provision of this Agreement
refers to a technical reference, technical publication,
CO-PROVIDER practice, U S WEST practice, any publication of
telecommunications industry administrative or technical
standards, or any other document specifically incorporated
into this Agreement, it will be deemed to be a reference to
the most recent version or edition (including any amendments,
supplements, addenda, or successors) or such document that is
in effect, and will include the most recent version or edition
(including any amendments, supplements, addenda, or
successors) of each document incorporated by reference in such
a technical reference, technical publication, CO-PROVIDER
practice, U S WEST practice, or publication of industry
standards, unless CO-PROVIDER elects otherwise.
11. PUBLICITY AND ADVERTISING
11.1 Neither Party shall publish or use any advertising, sales
promotions or other publicity materials that use the other
Party's logo, trademarks or service marks without the prior
written approval of the other Party.
12. EXECUTED IN COUNTERPARTS
12.1 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but such
counterparts shall together constitute one and the same
instrument.
13. HEADINGS NOT CONTROLLING
13.1 The headings and numbering of Sections, Parts, Appendices and
Attachments in this Agreement are for convenience only and
shall not be construed to define or limit any of the terms
herein or affect the meaning or interpretation of this
Agreement.
14. JOINT WORK PRODUCT
14.1 This Agreement is the joint work product of the Parties and
has been negotiated by the Parties and their respective
counsel and shall be fairly interpreted in accordance with its
terms and, in the event of any ambiguities, no inferences
shall be drawn against either Party.
<PAGE>
Part A
15. SURVIVAL
15.1 Any liabilities or obligations of a Party for acts or
omissions prior to the cancellation or termination of this
Agreement; any obligation of a Party under the provisions
regarding indemnification, confidential information,
limitation of liability, and any other provisions of this
Agreement which, by their terms, are contemplated to survive,
or to be performed after, termination of this Agreement, shall
survive cancellation or termination thereof.
16. EFFECTIVE DATE
16.1 This Agreement shall become effective pursuant to Sections 251
and 252 of the Act, upon Commission approval, or direction
from the Commission that Interconnection ought to take place
pending Commission approval.
17. AMENDMENT OF AGREEMENT
17.1 Except as otherwise provided in this Agreement, no amendment
or waiver of any provision of this Agreement, and no consent
to any default under this Agreement, shall be effective unless
the same is in writing and signed by an officer of the Party
against whom such amendment, waiver or consent is claimed. If
either Party desires an amendment to this Agreement during the
term of this Agreement, it shall provide written notice
thereof to the other Party describing the nature of the
requested amendment. If the Parties are unable to agree on the
terms of the amendment within thirty (30) days after the
initial request therefor, the Party requesting the amendment
may invoke the dispute resolution process under Section 27 of
this Part A of this Agreement to determine the terms of any
amendment to this Agreement.
18. INDEMNIFICATION
18.1 Notwithstanding any limitations in remedies contained in this
Agreement, each Party (the "Indemnifying Party") will
indemnify and hold harmless the other Party ("Indemnified
Party") from and against any loss, cost, claim, liability,
damage and expense, including reasonable attorney's fees, to
third parties, relating to or arising out of the libel,
slander, invasion of privacy, misappropriation of a name or
likeness, actual or alleged infringement or other violation or
breach of any patent, copyright, trademark, service mark,
trade name, trade dress, trade secret or any other
intellectual property presently existing or later created,
negligence or willful misconduct by the Indemnifying Party,
its employees, agents, or contractors in the performance of
this Agreement or the failure of the Indemnifying Party to
perform its obligations under this Agreement. In addition, the
Indemnifying Party will, to the extent of its obligations to
indemnify hereunder, defend any action or suit brought by a
third party against the indemnified party. IF, AFTER THE PARTY
PROVIDING ACCESS UNDER THIS AGREEMENT GIVES WRITTEN NOTICE TO
THE OTHER PARTY PURSUANT TO SECTION 5.1, THE OTHER PARTY FAILS
TO OBTAIN A LICENSE OR PERMISSION FOR ACCESS OR USE OF THIRD
PARTY INTELLECTUAL PROPERTY, THE PARTY PROVIDING ACCESS SHALL
HAVE NO INDEMNIFICATION OBLIGATION HEREUNDER FOR ANY LOSS,
COST, CLAIM, LIABILITY, DAMAGE AND EXPENSE, INCLUDING
REASONABLE ATTORNEY'S FEES, TO THIRD PARTIES, RELATING TO OR
ARISING OUT OF THE FAILURE OF THE OTHER PARTY TO OBTAIN SUCH
LICENSE OR PERMISSION.(10)
- ----------
(10) Procedural Order, July 14, 1997, pages 4-5.
<PAGE>
Part A
18.2 The Indemnified Party will notify the Indemnifying Party
promptly in writing of any written claim, lawsuit, or demand
by third parties for which the Indemnified Party alleges that
the Indemnifying Party is responsible under this Section 18
and tender the defense of such claim, lawsuit or demand to the
Indemnifying Party. Failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any
liability that the Indemnifying Party might have, except to
the extent that such failure prejudices the Indemnifying
Party's ability to defend such claim.
18.3 The Indemnified Party also will cooperate in every reasonable
manner with the defense or settlement of such claim, demand,
or lawsuit. The Indemnifying Party shall keep the Indemnified
Party reasonably and timely apprised of the status of the
claim, demand or lawsuit. The Indemnified Party shall have the
right to retain its own counsel, including in-house counsel,
at its expense, and participate in but not direct the defense;
provided, however, that if there are reasonable defenses in
addition to those asserted by the Indemnifying Party, the
Indemnified Party and its counsel may raise and direct such
defenses, which shall be at the expense of the Indemnifying
Party.
18.4 The Indemnifying Party will not be liable under this Section
18 for settlements or compromises by the Indemnified Party of
any claim, demand or lawsuit unless the Indemnifying Party has
approved the settlement or compromise in advance or unless the
defense of the claim, demand or lawsuit has been tendered to
the Indemnifying Party in writing and the Indemnifying Party
has failed to timely undertake the defense. In no event shall
the Indemnifying Party settle or consent to any judgment
pertaining to any such action without the prior written
consent of the Indemnified Party.
19. LIMITATION OF LIABILITY
19.1 Except as otherwise provided in the indemnity section, no
Party shall be liable to the other Party for any Loss, defect
or equipment failure caused by the conduct of the other Party,
the other Party's agents, servants, contractors or others
acting in aid or concert with the other Party.
19.2 [Intentionally left blank for numbering consistency]
19.3 In no event shall either Party have any liability whatsoever
to the other Party for any indirect, special, consequential,
incidental or punitive damages, including, but not limited to,
loss of anticipated profits or revenue or other economic loss
in connection with or arising from anything said, omitted or
done hereunder (collectively, "Consequential Damages"), even
if the other Party has been advised of the possibility of such
damages; provided, that the foregoing shall not limit a
Party's obligation to indemnify, defend and hold the other
Party harmless against any amounts payable to a third party,
including any losses, costs, fines penalties, criminal or
civil judgments or settlements, expenses (including attorneys'
fees) and Consequential Damages of such third party. Nothing
contained in this section shall limit either Party's liability
to the other for (i) willful or intentional misconduct
(including gross negligence); (ii) bodily injury, death or
damage to tangible real or tangible personal property
proximately caused by such party's negligent act or omission
or that of their respective agents, subcontractors or
employees, OR (III) UNDER THE CIRCUMSTANCES PRESENTED TO THE
ARBITRATOR, THE COMMISSION OR OTHER DECISION MAKER, AS THE
CASE MAY BE PURSUANT TO THE DISPUTE RESOLUTION PROCESS IN
SECTION 27, A PATTERN OF CONDUCT IS FOUND TO EXIST BY SUCH
ARBITRATOR, THE COMMISSION OR OTHER DECISION MAKER IN
VIOLATION OF A PARTY'S OBLIGATIONS UNDER THIS AGREEMENT THAT
JUSTIFIES AN AWARD OF CONSEQUENTIAL
<PAGE>
Part A
DAMAGES,(11) nor shall anything contained in this section
limit the Parties indemnification obligations, as specified
above.
19.4 NOTWITHSTANDING THE PROVISIONS OF SECTION 19.3, TO THE EXTENT
THAT U S WEST TARIFFS CONTAIN LIMITATIONS ON LIABILITY,
CO-PROVIDER SHALL SUBMIT LANGUAGE FOR INCLUSION IN ITS
INTRASTATE RETAIL TARIFFS, THAT IS SUBSTANTIALLY SIMILAR TO
THE LIMITATION OF LIABILITY LANGUAGE CONTAINED IN U S WEST'S
TARIFFS, AND SUCH LIMITATIONS OF LIABILITY SHALL GOVERN FOR
CUSTOMER CLAIMS. IN ADDITION, NOTWITHSTANDING THE PROVISIONS
OF SECTION 19.3, TO THE EXTENT THAT THE COMMISSION'S QUALITY
OF SERVICE RULES PROVIDE FOR REMEDIES TO CO-PROVIDER OR ITS
CUSTOMERS FOR CUSTOMER CLAIMS, THEN THOSE REMEDIES SHALL
GOVERN AS TO SUCH CLAIMS.(12)
20. Term of Agreement
20.1 This Agreement shall be effective upon Commission approval and
shall remain in effect until July 30, 2000, and thereafter
shall continue in force and effect unless and until a new
agreement, addressing all of the terms of this Agreement,
becomes effective between the Parties. The Parties shall
commence negotiations on a new agreement no later than one (1)
year prior to the expiration of the term of this Agreement.
Either Party may request resolution of open issues in
accordance with the provisions of Section 27 of this Part A of
this Agreement, Dispute Resolution, beginning nine (9) months
prior to the expiration of this Agreement. Any disputes
regarding the terms and conditions of the new interconnection
agreement shall be resolved in accordance with said Section 27
of this Agreement and the resulting agreement shall be
submitted to the Commission. This Agreement shall remain in
effect until a new interconnection agreement approved by the
Commission has become effective.
21. GOVERNING LAW
21.1 This Agreement shall be governed by and construed in
accordance with the Act and the FCC's rules and regulations,
except insofar as state law may control any aspect of this
Agreement, in which case the domestic laws of the State of
Arizona, without regard to its conflicts of laws principles,
shall govern.
22. CANCELLATION CHARGES
22.1 Except as provided pursuant to a Bona Fide Request, or as
otherwise provided in any applicable tariff or contract
referenced herein, no cancellation charges shall apply.
23. REGULATORY APPROVALS
23.1 This Agreement, and any amendment or modification hereof, will
be submitted to the Commission for approval in accordance with
Section 252 of the Act. In the event any governmental
authority or agency rejects any provision hereof, the Parties
shall negotiate promptly and in good faith such revisions as
may reasonably be required to achieve approval.
- ----------
11 Procedural Order, July 14, 1997, page 5-6.
12 Arizona Bench Order, May 29, 1997 Hearing, p. 1610.
<PAGE>
Part A
23.2 U S WEST shall provide CO-PROVIDER a summary describing the
proposed change(s) to each Telecommunications Service which is
available pursuant to this Agreement. U S WEST shall also
provide CO-PROVIDER a summary describing the proposed
change(s) of each intrastate and interstate tariff which
provides for an Interconnection, unbundled Network Element or
Ancillary Service that is available pursuant to this
Agreement. Such summaries shall be available through an
internet Web page to be posted on the same day the proposed
change is filed with the Commission or the FCC or at least
thirty (30) days in advance of its effective date, whichever
is earlier.
23.3 In the event any governmental authority or agency orders U S
WEST to provide any service covered by this Agreement in
accordance with any terms or conditions that individually
differ from one or more corresponding terms or conditions of
this Agreement, CO-PROVIDER may elect to amend this Agreement
to reflect any such differing terms or conditions contained in
such decision or order, with effect from the date CO-PROVIDER
makes such election. The other services covered by this
Agreement and not covered by such decision or order shall
remain unaffected and shall remain in full force and effect.
23.4 The Parties intend that any additional services requested by
either Party relating to the subject matter of this Agreement
will be incorporated into this Agreement by amendment.
24. COMPLIANCE
24.1 Each Party shall comply with all applicable federal, state,
and local laws, rules and regulations applicable to its
performance under this Agreement.
24.2 Each Party represents and warrants that any equipment,
facilities or services provided to the other Party under this
Agreement comply with the Communications Law Enforcement Act
of 1994 (CALEA"). Each Party (the "Indemnifying Party") shall
indemnify and hold the other Party (the "Indemnified Party")
harmless from any and all penalties imposed upon the
Indemnified Party for such noncompliance and shall, at the
Indemnifying Party's sole cost and expense, modify or replace
any equipment, facilities or services provided to the
Indemnified Party under this Agreement to ensure that such
equipment, facilities and services fully comply with CALEA.
24.3 All terms, conditions and operations under this Agreement
shall be performed in accordance with all applicable laws,
regulations and judicial or regulatory decisions of all duly
constituted governmental authorities with appropriate
jurisdiction, and this Agreement shall be implemented
consistent with the FCC Interconnection Order and any
applicable Commission orders. Each Party shall be responsible
for obtaining and keeping in effect all FCC, Commission,
franchise authority and other regulatory approvals that may be
required in connection with the performance of its obligations
under this Agreement. In the event the Act or FCC or
Commission rules and regulations applicable to this Agreement
are held invalid, this Agreement shall survive, and the
Parties shall promptly renegotiate any provisions of this
Agreement which, in the absence of such invalidated Act, rule
or regulation, are insufficiently clear to be effectuated,
violate, or are either required or not required by the new
rule or regulation. During these negotiations, each Party will
continue to provide the same services and elements to each
other as are provided for under this Agreement. Provided,
however, that either Party shall give ten (10) Business Days
notice if it intents to cease any development of any new
element or service that is not at that time being provided
pursuant to this Agreement. In the event the Parties cannot
agree on an amendment within thirty (30) days from the date
any such rules, regulations or orders become effective, then
the Parties shall resolve their dispute, including liability
for non-compliance with the new clause or the cost, if any, of
performing activities no longer required
<PAGE>
Part A
by the rule or regulation during the renegotiation of the new
clause under the applicable procedures set forth in Section 27
herein.
25. FORCE MAJEURE
25.1 Neither Party shall be liable for any delay or failure in
performance of any part of this Agreement from any cause
beyond its control and without its fault or negligence
including, without limitation, acts of nature, acts of civil
or military authority, embargoes, epidemics, terrorist acts,
riots, insurrections, fires, explosions, earthquakes, nuclear
accidents, floods, work stoppages, equipment failure, power
blackouts, volcanic action, other major environmental
disturbances, unusually severe weather conditions, inability
to secure products or services of other persons or
transportation facilities or acts or omissions of
transportation carriers. No delay or other failure to perform
shall be excused pursuant to this Section 25 unless such delay
or failure and the consequences thereof are beyond the control
and without the fault or negligence of the Party claiming
excusable delay or other failure to perform. In the event of
any such excused delay in the performance of a Party's
obligation(s) under this Agreement, the due date for the
performance of the original obligation(s) shall be extended by
a term equal to the time lost by reason of the delay. In the
event of such delay, the delaying Party shall perform its
obligations at a performance level no less than that which it
uses for its own operations. In the event of a labor dispute
or strike, the Parties agree to provide service to each other
at a level equivalent to the level they provide themselves. In
the event of a labor dispute or strike or work stoppage that
continues for a period in excess of forty-eight (48) hours,
CO-PROVIDER may obtain replacement services for those services
affected by such labor dispute or strike or work stoppage, in
which event any liability of CO-PROVIDER for the affected
services shall be suspended for the period of the work
stoppage or labor dispute or strike. In the event of such
performance delay or failure by U S WEST, U S WEST agrees to
resume performance in a nondiscriminatory manner and not favor
its own provision of Telecommunications Services above that of
CO-PROVIDER.
26. ESCALATION PROCEDURES
26.1 CO-PROVIDER and U S WEST agree to exchange escalation lists
which reflect contact personnel including vice president-level
officers. These lists shall include name, department, title,
phone number, and fax number for each person. CO-PROVIDER and
U S WEST agree to exchange up-to-date lists as reasonably
necessary.
27. DISPUTE RESOLUTION
27.1(13) IF ANY CLAIM, CONTROVERSY OR DISPUTE BETWEEN THE PARTIES,
THEIR AGENTS, EMPLOYEES, OFFICERS, DIRECTORS OR AFFILIATED
AGENTS ("DISPUTE") CANNOT BE SETTLED THROUGH NEGOTIATION, IT
MAY BE RESOLVED BY ARBITRATION CONDUCTED BY A SINGLE
ARBITRATOR ENGAGED IN THE PRACTICE OF LAW, UNDER THE THEN
CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA").
THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECS. 1-16, NOT STATE
LAW, SHALL GOVERN THE ARBITRABILITY OF ALL DISPUTES. THE
ARBITRATOR SHALL NOT HAVE AUTHORITY TO AWARD PUNITIVE DAMAGES.
ALL EXPEDITED PROCEDURES PRESCRIBED BY THE AAA RULES SHALL
APPLY. THE ARBITRATOR'S AWARD SHALL BE FINAL AND BINDING AND
MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF AND
SHALL BE NOTICED TO THE COMMISSION. THE ARBITRATOR SHALL
DETERMINE WHICH PARTY OR PARTIES WILL BEAR THE COSTS OF
ARBITRATION, INCLUDING APPORTIONMENT, IF APPROPRIATE. THE
ARBITRATION SHALL OCCUR IN
- ----------
(13) AT&T Order, p. 33 at Issue 76.
<PAGE>
Part A
DENVER, COLORADO, AND THE GOVERNING LAW SHALL BE IN ACCORDANCE
WITH SECTION 21.1 ABOVE.
27.2(14) IN THE EVENT CO-PROVIDER AND U S WEST ARE UNABLE TO AGREE ON
CERTAIN ISSUES DURING THE TERM OF THIS AGREEMENT, THE PARTIES
MAY IDENTIFY SUCH ISSUES FOR ARBITRATION BEFORE THE
COMMISSION. ONLY THOSE POINTS IDENTIFIED BY THE PARTIES FOR
ARBITRATION WILL BE SUBMITTED.
27.3 If a Dispute is submitted to arbitration pursuant to Section
27.1 above, the procedures described in this Section 27.3
shall apply, notwithstanding the then current rules of the
AAA. Discovery shall be controlled by the arbitrator and shall
be permitted to the extent set forth below. Each party may
submit in writing to a Party, and that Party shall so respond,
to an agreed amount of the following: interrogatories, demands
to produce documents, and requests for admission. Not less
than ten (10) days prior to the arbitration hearing, the
Parties shall exchange witness and exhibit lists. Deposition
discovery shall be controlled by the arbitrator. Additional
discovery may be permitted upon mutual agreement of the
Parties or the determination of the arbitrator. The
arbitration hearing shall be commenced within thirty (30) days
after a demand for arbitration by either Party and shall be
held in Denver, Colorado. The arbitrator shall control the
scheduling so as to process the matter expeditiously. The
Parties may submit written briefs. The arbitrator shall rule
on the dispute by issuing a written opinion within seven (7)
days after the close of the hearings. The times specified in
this section may be extended upon mutual agreement of the
Parties or by the arbitrator upon a showing of good cause. The
decision of the arbitrator shall be final and binding upon the
Parties and judgment upon the award rendered by the arbitrator
may be entered in a court having jurisdiction. The decision
shall also be submitted to the Commission.
28. NONDISCLOSURE
28.1 All information, including, but not limited to,
specifications, microfilm, photocopies, magnetic disks,
magnetic tapes, drawings, sketches, models, samples, tools,
technical information, data, employee records, maps, financial
reports, and market data (a) furnished by one Party to the
other Party dealing with Customer specific, facility specific,
or usage specific information, other than Customer information
communicated for the purpose of publication of directory
database inclusion, or (b) in written, graphic,
electromagnetic, or other tangible form and marked at the time
of delivery as "Confidential" or "Proprietary", or (c)
declared orally or in writing to the Recipient at the time of
delivery, or by written notice given to the Recipient within
ten (10) days after delivery, to be "Confidential" or
"Proprietary" (collectively referred to as "Proprietary
Information"), shall remain the property of the Discloser. A
Party who receives Proprietary Information via an oral
communication may request written confirmation that the
material is Proprietary Information. A Party who delivers
Proprietary Information via an oral communication may request
written confirmation that the Party receiving the information
understands that the material is Proprietary Information.
28.2 Upon request by the Discloser, the Recipient shall return all
tangible copies of Proprietary Information, whether written,
graphic or otherwise, except that the Recipient's legal
counsel may retain one (1) copy for archival purposes.
28.3 Each Party shall keep all of the other Party's Proprietary
Information confidential and shall use the other Party's
Proprietary Information only in connection with this
Agreement.
- ----------
(14) AT&T Order, p. 33 at Issue 76.
<PAGE>
Part A
Neither Party shall use the other Party's Proprietary
Information for any other purpose except upon such terms and
conditions as may be agreed upon between the Parties in
writing.
28.4 Unless otherwise agreed, the obligations of confidentiality
and non-use set forth in this Agreement do not apply to such
Proprietary Information that:
28.4.1 was, at the time of receipt, already known to the
Recipient free of any obligation to keep it
confidential evidenced by written records prepared
prior to delivery by the Discloser; or
28.4.2 is or becomes publicly known through no wrongful act
of the Recipient; or
28.4.3 is rightfully received from a third person having no
direct or indirect secrecy or confidentiality
obligation to the Discloser with respect to such
information; or
28.4.4 is independently developed by an employee, agent, or
contractor of the Recipient which individual is not
involved in any manner with the provision of services
pursuant to this Agreement and does not have any
direct or indirect access to the Proprietary
Information; or
28.4.5 is approved for release by written authorization of
the Discloser; or
28.4.6 is required by law, a court, or governmental agency,
provided that the Discloser has been notified of the
requirement promptly after the Recipient becomes
aware of the requirement, subject to the right of the
Discloser to seek a protective order as provided in
Section 28.5 below.
28.5 For a period of ten(10) years from receipt of Proprietary
Information, the Recipient shall (a) use it only for the
purpose of performing under this Agreement, (b) hold it in
confidence and disclose it only to employees, authorized
contractors and authorized agents who have a need to know it
in order to perform under this Agreement, and (c) safeguard it
from unauthorized use or disclosure using no less than the
degree of care with which the Recipient safeguards its own
Proprietary Information. Any authorized contractor or agent to
whom Proprietary Information is provided must have executed a
written agreement comparable in scope to the terms of this
Section. Not withstanding the foregoing, each Party shall
provide advance notice of three (3) Business Days to the other
of the intent to provide Proprietary information to a
governmental authority and the Parties shall cooperate with
each other in attempting to obtain a suitable protective
order. The Recipient agrees to comply with any protective
order that covers the Proprietary Information to be disclosed.
28.6 Each Party agrees that the Discloser would be irreparably
injured by a breach of this Section 28 by the Recipient or its
representatives and that the Discloser shall be entitled to
seek equitable relief, including injunctive relief and
specific performance, in the event of any breach of this
Section 28. Such remedies shall not be exclusive but shall be
in addition to all other remedies available at law or in
equity.
28.7 CPNI related to either Party's subscribers obtained by virtue
of Local Interconnection or any other service provided under
this Agreement shall be the Discloser's Proprietary
Information and may not be used by the Recipient for any
purpose except performance of its obligations under this
Agreement, and in connection with such performance, shall be
disclosed only to employees, authorized contractors and
authorized agents with a need to know, unless the subscriber
expressly directs the Discloser to disclose such information
to the Recipient pursuant to the requirements of Section
222(c)(2) of the Act. If the Recipient seeks and
<PAGE>
Part A
obtains written approval to use or disclose such CPNI from the
Discloser, such approval shall be obtained only in compliance
with Section 222(c)(2) and, in the event such authorization is
obtained, the Recipient may use or disclose only such
information as the Discloser provides pursuant to such
authorization and may not use information that the Recipient
has otherwise obtained, directly or indirectly, in connection
with its performance under this Agreement.
28.8 Except as otherwise expressly provided in this Section 28,
nothing herein shall be construed as limiting the rights of
either Party with respect to its subscriber information under
any applicable law, including, without limitation, Section 222
of the Act.
28.9 Effective Date Of This Section. Notwithstanding any other
provision of this Agreement, the Proprietary Information
provisions of this Agreement shall apply to all Proprietary
Information furnished by either Party with a claim of
confidentiality or proprietary nature at any time.
29. NOTICES
29.1 Except as otherwise provided herein, all notices or other
communication hereunder shall be deemed to have been duly
given when made in writing and delivered in person or
deposited in the United States mail, certified mail, postage
prepaid, return receipt requested, or delivered by prepaid
overnight express mail, and addressed as follows:
To CO-PROVIDER:
F. Lynne Powers
Vice President-- Finance
J. Jeffrey Oxley -- Director of Regulatory Affairs
Advanced Telecommunications,lnc.
710 Second Avenue South, Suite 1200
Minneapolis, MN 55402
Phone: (612) 376-4400
Fax: (612)376-4411
Copy to: Brian Robinson
ARTER & HADDEN LLP
1801 K Street, N.W., Suite 400K
Washington, DC 20006
Phone: (202) 775-7126
Fax: (202) 857-0172
To U S WEST:
Director-- Interconnection Compliance
1801 California Street, Room 2410
Denver, CO 80202
Copy to: U S WEST, Communications, Inc..
General Counsel, Law Dept.
1801 California, 49th Floor
Denver, Colorado 80202
<PAGE>
Part A
29.2 If personal delivery is selected to give notice, a receipt of
such delivery shall be obtained. The address to which notices
or communications may be given to either Party may be changed
by written notice given by such Party to the other pursuant to
this Section 29.
30. ASSIGNMENT
30.1 Neither Party may assign, transfer (whether by operation of
law or otherwise) or delegate this Agreement (or any rights or
obligations hereunder) to a third party without the prior
written consent of the other Party, which consent shall not be
unreasonably withheld, provided that each Party may assign
this Agreement to an Affiliate or an entity under its common
control or an entity acquiring all or substantially all of its
assets or equity by providing prior written notice to the
other Party of such assignment or transfer. Any attempted
assignment or transfer that is not permitted under the
provisions of this Section 30 is void AB INITIO. Without
limiting the generality of the foregoing, this Agreement shall
be binding upon and shall inure to the benefit of the Parties'
respective successors and assigns. No assignment or delegation
hereof shall relieve the assignor of its obligations under
this Agreement.
30.2 If any obligation of U S WEST under this Agreement is
performed by a subcontractor or Affiliate, U S WEST shall
remain fully responsible for the performance of this Agreement
in accordance with its terms, and U S WEST shall be solely
responsible for payments due to its subcontractors.
30.3 If any obligation of CO-PROVIDER under this Agreement is
performed by a subcontractoror Affiliate, CO-PROVIDER shall
remain fully responsible for the performance of this Agreement
in accordance with its terms, and CO-PROVIDER shall be solely
responsible for payments due to its subcontractors.
31. WARRANTIES
31.1 U S WEST shall conduct all activities and interfaces which are
provided for under this Agreement with CO-PROVIDER Customers
in a carrier-neutral, nondiscriminatory manner.
31.2 U S WEST warrants that it has provided, and during the term of
this Agreement it will continue to provide, to CO-PROVIDER
true and complete copies of all material agreements in effect
between U S WEST and any third party (including Affiliates)
providing any services to CO-PROVIDER on behalf of or under
contract to U S WEST in connection with U S WEST's performance
of this Agreement, or from whom U S WEST has obtained licenses
or other rights used by U S WEST to perform its obligations
under this Agreement, provided, however, that U S WEST may
provide such agreements under appropriate protective order.
32. DEFAULT
32.1 In the event of a breach of any material provision of this
Agreement by either Party, the non-breaching Party shall give
the breaching Party and the Commission written notice thereof,
and:
32.1.1 if such material breach is for non-payment of amounts
due hereunder pursuant to this Agreement, the
breaching Party shall cure such breach within thirty
(30) calendar days of receiving such notice. The
non-breaching Party shall be entitled to pursue all
available legal and equitable remedies for such
breach. Amounts
<PAGE>
Part A
disputed in good faith and withheld or set off shall
not be deemed "amounts due hereunder" for the purpose
of this provision.
32.1.2 if such material breach is for any failure to perform
in accordance with this Agreement, which, in the sole
judgment of the non-breaching Party, adversely
affects the non-breaching Party's subscribers, the
non-breaching Party shall give notice of the breach
and the breaching Party shall cure such breach to the
non-breaching Party's reasonable satisfaction within
ten (10) calendar days or within a period of time
equivalent to the applicable interval required by
this Agreement, whichever is shorter. If the
breaching Party does not cure such breach within the
applicable time period, the non-breaching Party may,
at its sole option, terminate this Agreement, or any
parts hereof. The non-breaching Party shall be
entitled to pursue all available legal and equitable
remedies for such breach. Notice under this
Subsection 32.1.2 may be given electronically or by
facsimile, provided that a hard copy or original of
such notice is sent by overnight delivery service.
32.1.3 if such material breach is for any other failure to
perform in accordance with this Agreement, the
breaching Party shall cure such breach to the
non-breaching Party's reasonable satisfaction within
forty-five (45) calendar days, and, if it does not,
the non-breaching Party may, at its sole option,
terminate this Agreement, or any parts hereof. The
non-breaching Party shall be entitled to pursue all
available legal and equitable remedies for such
breach.
32.2 CO-PROVIDER may terminate this Agreement in whole at any time
only for cause upon sixty (60) calendar days' prior written
notice. CO-PROVIDER's sole liability shall be payment of
amounts due for services provided or obligations assumed up to
the date of termination.
32.3 In the event of any termination under this Section 32, U S
WEST and CO-PROVIDER agree to cooperate to provide for an
uninterrupted transition of services to CO-PROVIDER or another
vendor designated by CO-PROVIDER to the extent that U S WEST
has the ability to provide such cooperation.
32.4 Notwithstanding any termination hereof, the Parties shall
continue to comply with their obligations under the Act.
33. REMEDIES
33.1 In the event U S WEST fails to switch a subscriber to
CO-PROVIDER service as provided in this Agreement, U S WEST
shall reimburse CO-PROVIDER in an amount equal to all fees
paid by such subscriber to U S WEST for such
failed-to-be-transferred services from the time of such
failure to switch to the time at which the subscriber switch
is accomplished. This remedy shall be in addition to all other
remedies available to CO-PROVIDER under this Agreement or
otherwise available.
33.2 All rights of termination, cancellation or other remedies
prescribed in this Agreement, or otherwise available, are
cumulative and are not intended to be exclusive of other
remedies to which the injured Party may be entitled at law or
equity in case of any breach or threatened breach by the other
Party of any provision of this Agreement. Use of one or more
remedies shall not bar use of any other remedy for the purpose
of enforcing the provisions of this Agreement.
<PAGE>
Part A
34. WAIVERS
34.1 No waiver of any provisions of this Agreement and no consent
to any default under this Agreement shall be effective unless
the same shall be in writing and properly executed by or on
behalf of the Party against whom such waiver or consent is
claimed.
34.2 No course of dealing or failure of either Party to strictly
enforce any term, right, or condition of this Agreement in any
instance shall be construed as a general waiver or
relinquishment of such term, right or condition.
34.3 Waiver by either Party of any default or breach by the other
Party shall not be deemed a waiver of any other default or
breach.
34.4 By entering into this Agreement, neither Party waives any
right granted to it pursuant to the Act.
35. NO THIRD PARTY BENEFICIARIES
35.1 The provisions of this Agreement are for the benefit of the
Parties hereto and not for any other person; provided,
however, that this shall not be construed to prevent
CO-PROVIDER from providing its Telecommunications Services to
other carriers. This Agreement shall not provide any person
not a party hereto with any remedy, claim, liability,
reimbursement, claim of action, or other right in excess of
those existing without reference hereto.
36. PHYSICAL SECURITY
36.1 U S WEST shall exercise the same degree of care to prevent
harm or damage to CO-PROVIDER or its employees, agents or
subscribers, or its property as U S WEST provides itself.
CO-PROVIDER shall exercise the same degree of care to ensure
the security of its equipment physically collocated within U S
WEST's space as CO-PROVIDER provides such security to itself.
36.1.1 U S WEST will restrict access to approved personnel
to U S WEST's buildings. CO-PROVIDER is responsible
for the action of its employees and other authorized
non-CO-PROVIDER personnel; U S WEST is responsible
for the action of its employees and other authorized
non-U S WEST personnel.
36.1.2 U S WEST will furnish to CO-PROVIDER the current
name(s) and telephone number(s) of those central
office supervisor(s) where a physical collocation
arrangement exists. The central office supervisor(s)
will be the only U S WEST employee(s) with access to
CO-PROVIDER collocation space.
36.1.3 U S WEST wiII comply at all times with U S WEST
security and safety procedures at the individual
central office locations where CO-PROVIDER has
physical collocation arrangements. The Parties will
cooperate to analyze security procedures of each
company to evaluate ways in which security procedures
of US WEST may be enhanced.
36.1.4 U S WEST will allow CO-PROVIDER to inspect or observe
its physical spaces which house or contain
CO-PROVIDER equipment or equipment enclosures at any
time upon completion of the physical collocation
quotation. Upon completion of the build out of the
physical space, U S WEST will furnish CO-PROVIDER
with all keys,
<PAGE>
Part A
entry codes, lock combinations, or other materials or
information which may be needed to gain entry via
direct access to CO-PROVIDER's physical space
36.1.5 U S WEST agrees to logically partition any U S WEST
owned access device systems, whether biometric or
card reader, or types which are encoded identically
or mechanical coded locks on external and or internal
doors to spaces which house CO-PROVIDER equipment.
36.1.6 U S WEST agrees to limit the keys used in its keying
systems for spaces which contain CO-PROVIDER
equipment to the U S WEST supervisor for the specific
facility to emergency access only. CO-PROVIDER shall
further have the right to change locks where deemed
necessary for the protection and security of its
physical spaces and will provide the U S WEST
supervisor with the current key.
36.1.7 U S WEST shall control unauthorized access from
passenger and freight elevators, elevator lobbies and
spaces which contain or house CO-PROVIDER equipment
or equipment space in the same manner as U S WEST
provides such control for itself.
36.1.8 U S WEST will provide notification to designated
CO-PROVIDER personnel to indicate an actual or
attempted security breach of CO-PROVIDER physical
space in the same time frame as U S WEST provides
such notification to itself.
37. NETWORK SECURITY
37.1 U S WEST shall provide an appropriate and sufficient back-up
and recovery plan to be used in the event of a system failure
or emergency.
37.2 U S WEST shall install controls to (a) disconnect a user for a
pre-determined period of inactivity on authorized ports; (b)
protect subscriber proprietary information; and (c) ensure
both ongoing operational and update integrity.
37.3 Each Party shall be responsible for the security arrangements
on its side of the network to the Point of Interconnection.
The Parties shall jointly cooperate to analyze network
security procedures and cooperate to ensure the systems,
access and devices are appropriately secured and compatible.
38. REVENUE PROTECTION
38.1 U S WEST shall make available to CO-PROVIDER all present and
future fraud prevention or revenue protection features that
U S WEST provides to itself or others. These features include,
but are not limited to, operator screening codes, information
digits assigned such as information digits `29' and `70' which
indicate prison and COCOT pay phone originating line types
respectively, in accordance with the requirements established
by the FCC, call blocking of domestic, international blocking
for business and residence, 900, NPA-976 and specific line
numbers. U S WEST shall additionally provide partitioned
access to fraud prevention, detection and control
functionality within pertinent Operations Support Systems
("OSS") which include, but are not limited to, Line
Information Data Base Fraud monitoring systems.
38.2 Uncollectible or unbillable revenues resulting from, but not
confined to, provisioning, maintenance, or signal network
routing errors shall be the responsibility of the Party
causing such error.
<PAGE>
Part A
38.3 Uncollectible or unbillable revenues resulting from the
accidental or malicious alteration of software underlying
Network Elements or their subtending operational support
systems by unauthorized third parties shall be the
responsibility of the Party having administrative control of
access to said Network Element or operational support system
software.
38.4 Each Party shall be responsible for any uncollectible or
unbillable revenues resulting from the unauthorized use of
facilities under its control or services it provides,
including clip-on fraud.
38.5 The Parties shall work cooperatively to minimize fraud
associated with third-number billed calls, calling card calls,
and any other services related to this Agreement.
39. LAW ENFORCEMENT INTERFACE
39.1 U S WEST shall provide all necessary assistance to facilitate
the execution of wiretap or dialed number recorder orders from
law enforcement authorities.
40. COLLOCATION
40.1 General Description
40.1.1 COLLOCATION IS THE RIGHT OF CO-PROVIDER TO OBTAIN
DEDICATED SPACE IN U S WEST LOCAL SERVING OFFICE
(LSO) OR OTHER U S WEST LOCATIONS, INCLUDING, BUT NOT
LIMITED TO, U S WEST SERVING WIRE CENTER AND TANDEM
OFFICES, AS WELL AS ALL BUILDINGS OR SIMILAR
STRUCTURES OWNED OR LEASED BY U S WEST, WHETHER OR
NOT ON PUBLIC RIGHTS-OF WAY, THAT HOUSE U S WEST
NETWORK FACILITIES, INCLUDING, BUT NOT LIMITED TO,
VAULTS CONTAINING LOOP CONCENTRATORS OR SIMILAR
STRUCTURES, AND THE RIGHT TO PLACE EQUIPMENT IN SUCH
SPACES FOR THE PURPOSES OF INTERCONNECTION WITH U S
WESTS NETWORK OR ACCESS TO U S WEST'S UNBUNDLED
NETWORK ELEMENTS. COLLOCATION ALSO INCLUDES U S WEST
PROVIDING RESOURCES NECESSARY FOR THE OPERATION AND
ECONOMICAL USE OF COLLOCATED EQUIPMENT. (15)
40.1.2 Collocation is offered for network interconnection
between the Parties. CO-PROVIDER may cross connect to
other collocated parties via facilities provided by U
S WEST, provided that CO-PROVIDER's collocated
equipment is also used for interconnection with U S
WEST or access to U S WEST's unbundled Network
Elements.
40.1.3 CO-PROVIDER is responsible for bringing its own or
leased facilities to the U S WEST-designated Point of
Interface ("P0I"). U S WEST will extend CO-PROVIDER's
facilities from the P0I to the cable vault within the
wire center. If necessary, U S WEST may bring the
facilities into compliance with U S WEST internal
fire code standards and extend the facilities to the
collocated space.
40.1.4 CO-PROVIDER will be provided two (2) points of entry
into the U S WEST wire center only when there are at
least two (2) existing entry points for U S WEST
cable and when there are vacant entrance ducts in
both.
- ----------
(15) MCIm Order, p. 19 at Issue 31 and AT&T Order Issue 10.
<PAGE>
Part A
40.1.5 CO-PROVIDER MAY COLLOCATE TRANSMISSION EQUIPMENT
(INCLUDING DIGITAL CROSS CONNECT SYSTEMS AND REMOTE
SWITCHING UNITS (RSU)) to TERMINATE BASIC
TRANSMISSION FACILITIES. CO-PROVIDER MAY NOT
COLLOCATE EQUIPMENT USED TO PROVIDE ENHANCED
services. CO-PROVIDER must identify what equipment
will be installed, to allow for U S WEST to use this
information in engineering the power, floor loading,
heat release, environmental participant level, and
HVAC. CO-PROVIDER shall not USE RSUS TO ENABLE THE
BYPASSING OF SWITCHED ACCESS CHARGES. U S WEST WILL
BE PERMITTED TO AUDIT CO-PROVIDER'S REPORTING OF
LOCAL AND TOLL CALLS. AT CO-PROVIDER'S EXPENSE,
CO-PROVIDER WILL BE REQUIRED TO BLOCK THE ABILITY OF
RSUS TO BYPASS SWITCHED ACCESS CHARGES, IF IT BECOMES
FEASIBLE TO DO SO.(16)
40.1.6 CO-PROVIDER MAY COLLOCATE THE AMOUNT AND TYPE OF
EQUIPMENT IT DEEMS NECESSARY IN ITS COLLOCATED SPACE
IN ACCORDANCE WITH FCC RULES AND REGULATIONS.(17)
40.1.7 Expanded Interconnection Channel Termination (EICT).
Telecommunications interconnection between
CO-PROVIDER's collocated equipment and U S WEST's
network may be accomplished via an Expanded
Interconnection Channel Termination (EICT). This
element can be at the DS-3, DS-1, DS-0, or any other
technically feasible level, subject to network
disclosure requirements of the FCC, depending on the
U S WEST service to which it is connected. The terms
and conditions of the tariff for EICT are
incorporated only to the extent that they are agreed
to by the Parties. Within ninety (90) days (or other
acceptable time agreed to by the Parties) of the
Effective Date of this Agreement, the Parties will
meet to review the tariff and seek resolution on
disagreed items.
40.1.8 Consistent with U S WEST's internal practice, within
ten (10) Business Days of CO-PROVIDER's request for
any space, U S WEST shall provide information
available to it regarding the environmental
conditions of the space provided for placement of
equipment and interconnection, including, but not
limited to, the existence and condition of asbestos,
lead paint, hazardous substance contamination, or
radon. Information is considered "available" under
this Agreement if it is in U S WEST's possession or
files, or the possession of an agent, contractor,
employee, lessor, or tenant of U S WEST's that holds
such information on U S WEST's behalf.
40.1.9 U S WEST shall allow CO-PROVIDER to perform any
environmental site investigations, including, but not
limited to, asbestos surveys, which CO-PROVIDER deems
to be necessary in support of its collocation needs.
CO-PROVIDER shall advise U S WEST in writing of its
intent to conduct such investigation, and shall
receive written approval from U S WEST to proceed.
CO-PROVIDER shall indemnify U S WEST according to
Section 18 of Part A of this Agreement for any loss
or claim for damage suffered by U S WEST as a result
of CO-PROVIDER's actions during any site inspection.
40.1.10 If the space provided for the placement of equipment,
Interconnection, or provision of service contains
environmental contamination or hazardous material,
particularly, but not limited to, asbestos, lead
paint or radon, which makes the placement of such
- ----------
(16) MCIm Order, p. 20 at Issue 32 and AT&T Order Issue 9.
(17) MCIm Order, p. 20 at Issue 32 and AT&T Order Issue 9.
<PAGE>
Part A
equipment or interconnection hazardous, U S WEST
shall offer an alternative space, if available, for
CO-PROVIDER's consideration
40.2 VIRTUAL COLLOCATION
40.2.1 U S WEST shall provide virtual collocation for the
purpose of Interconnection or access to unbundled
Network Elements subject to the rates, terms and
conditions of this Agreement.
40.2.2 Upon mutual agreement, CO-PROVIDER will have physical
access to the U S WEST wire center building pursuant
to a virtual collocation arrangement.
40.2.3 CO-PROVIDER will be responsible for obtaining and
providing to U S WEST administrative codes, e.g.,
common language codes, for all equipment specified by
CO-PROVIDER and installed in wire center buildings.
40.2.4 CO-PROVIDER will be responsible for payment of
training of U S WEST employees for the maintenance,
operation and installation of CO-PROVIDER's virtually
collocated equipment when that equipment is different
than the equipment used by U S WEST. Training
conditions are further described in the Virtual
Collocation Rate Element section following.
40.2.5 CO-PROVIDER will be responsible for payment of
reasonable charges incurred as a result of agreed
upon maintenance and/or repair of CO-PROVIDER's
virtually collocated equipment.
40.2.6 U S WEST does not guarantee the reliability of
CO-PROVIDER's virtually collocated equipment, but U S
WEST is responsible for proper installation,
maintenance and repair of such equipment, including
the change out of electronic cards provided by
CO-PROVIDER.
40.2.7 CO-PROVIDER is responsible for ensuring the
functionality and interoperability of virtually
collocated SONET equipment provided by different
manufacturers.
40.2.8 CO-PROVIDER, as bailor, will transfer possession of
CO-PROVIDER's virtually collocated equipment to U S
WEST, as bailee, for the sole purpose of providing
U S WEST with the ability to install, maintain and
repair CO-PROVIDER's virtually collocated equipment.
Title to the CO-PROVIDER virtually collocated
equipment shall not pass to U S WEST.
40.2.9 CO-PROVIDER shall ensure that upon receipt by U S
WEST of CO-PROVIDER's virtually collocated equipment,
CO-PROVIDER will make available all access to ongoing
technical support to U S WEST, as available under the
equipment warranty or other terms and conditions, all
at CO-PROVIDER's expense. CO-PROVIDER shall advise
the manufacturer and seller of the virtually
collocated equipment that it will be installed,
maintained and repaired by U S WEST.
40.2.10 CO-PROVIDER's virtually collocated equipment must
comply with the Bellcore Network Equipment Building
System (NEBS) Generic Equipment Requirements
TR-NWT-000063, electromagnetic compatibility (EMC)
per GR-1089-CORE, Company wire center environmental
and transmission standards and any statutory (local,
state or federal) and/or regulatory requirements, all
of the foregoing which may be in effect at the time
of equipment installation or which may subsequently
become effective. CO-PROVIDER shall provide U S WEST
interface specifications
<PAGE>
Part A
(e.g., electrical, functional, physical and software)
of CO-PROVIDER's virtually collocated equipment.
40.2.11 CO-PROVIDER must specify all software options and
associated plug-ins for its virtually collocated
equipment.
40.2.12 CO-PROVIDER is responsible for purchasing and
maintaining a supply of spares. Upon failure of the
CO-PROVIDER virtually collocated equipment,
CO-PROVIDER is responsible for transportation and
delivery of maintenance spares to U S WEST at the
wire center housing the failed equipment.
40.2.13 Where CO-PROVIDER is virtually collocated in a
premises which was initially prepared for virtual
collocation, CO-PROVIDER may elect to retain its
virtual collocation in that premises and expand that
virtual collocation according to the rates, terms and
conditions of this Agreement.
40.3 PHYSICAL COLLOCATION
40.3.1 U S WEST shall provide to CO-PROVIDER physical
collocation of equipment necessary for
Interconnection or for access to unbundled Network
Elements, except that U S WEST shall provide for
virtual collocation where space is available or
expansion or rearrangement is possible if U S WEST
demonstrates to the Commission that physical
collocation is not practical for technical reasons or
because of space limitations, as provided in Section
251(c)(6) of the Act. CO-PROVIDER shall pay a
prorated amount for expansion of said space. U S WEST
shall provide such collocation for the purpose of
Interconnection or access to unbundled Network
Elements, except as otherwise mutually agreed to in
writing by the Parties or as required by the FCC or
the Commission, subject to the rates, terms and
conditions of this Agreement.
40.3.1.1 U S WEST SHALL PERMIT CO-PROVIDER TO USE VENDORS FOR
ALL REQUIRED ENGINEERING AND INSTALLATION SERVICES
ASSOCIATED WITH ITS COLLOCATED EQUIPMENT WHICH ARE
BEING COLLOCATED BY CO-PROVIDER PURSUANT TO THIS
AGREEMENT. WITHIN ONE HUNDRED AND TWENTY (120) DAYS
AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, U S WEST
AND CO-PROVIDER SHALL COMPOSE AND AGREE ON A LIST OF
APPROVED VENDORS AND/OR AGREE ON MINIMUM
QUALIFICATIONS FOR SUCH CONTRACTORS CONSISTENT WITH
INDUSTRY STANDARDS, SUCH AGREEMENT NOT TO BE
UNREASONABLY WITHHELD. IN THE EVENT SUCH AGREEMENT
CANNOT BE REACHED AND THE DISPUTE RESOLUTION PROCESS
OUTLINED IN SECTION 27 ABOVE HAS NOT CONCLUDED ON THE
ISSUE OF APPROVED VENDORS, THE LIST OF APPROVED
VENDORS MAINTAINED BY U S WEST AS OF THE EFFECTIVE
DATE OF THIS AGREEMENT SHALL BE THE DEFAULT LIST
UNTIL THE CONCLUSION OF THE DISPUTE RESOLUTION
PROCESS.(18)
40.3.2 Where CO-PROVIDER is virtually collocated in a
premises which was initially prepared for virtual
collocation, CO-PROVIDER may elect, unless it is not
practical for technical reasons or because of space
limitations, to convert its virtual collocation to
physical collocation at such premises in which case
CO-PROVIDER shall coordinate the construction and
rearrangement with U S WEST of its equipment (IDLC
and transmission) and circuits for which CO-PROVIDER
shall pay U S WEST at applicable rates, and pursuant
to the other terms and
- ----------
(18) AT&T Order, p. 8 at Issue 9c.
<PAGE>
Part A
conditions in this Agreement. In addition, all
applicable physical collocation recurring charges
shall apply.
40.3.3 CO-PROVIDER will be allowed access to the P0I on
non-discriminatory terms. CO-PROVIDER owns and is
responsible for the installation, maintenance and
repair of its equipment located within the space
rented from U S WEST.
40.3.4 CO-PROVIDER must use leased space as soon as
reasonably possible and may not warehouse space for
later use or sublease to another provider. Physical
collocation is offered on a space-available,
first-come, first-served basis.
40.3.5 The minimum standard leasable amount of floor space
is one hundred (100) square feet. CO-PROVIDER must
efficiently use the leased space and no more than
fifty percent (50%) of the floor space MAY BE USED
FOR STORAGE CABINETS AND WORK SURFACES. CO-PROVIDER
AND U S WEST MAY NEGOTIATE OTHER STORAGE ARRANGEMENTS
ON A CASE-BY-CASE BASIS.(19) CO-PROVIDER MAY STORE
SPARES WITHIN ITS COLLOCATED SPACE.
40.3.6 CO-PROVIDER's leased floor space will be separated
from other competitive providers and U S WEST space
through cages or hard walls. CO-PROVIDER may elect to
have U S WEST construct the cage, or choose from U S
WEST approved contractors to construct the cage,
meeting U S WEST's installation Technical Publication
77350. Any deviation to CO-PROVIDER's request must be
approved.
40.3.7 The following standard features will be provided by
U S WEST:
(a) Heating, ventilation and air conditioning.
(b) Smoke/fire detection and any other building
code requirement.
40.3.8 U S WEST Responsibilities
(a) Design the floor space within each location
which will constitute CO-PROVIDER's leased
space.
(b) Ensure that the necessary construction work
is performed on a timely basis to build
CO-PROVIDER's leased physical space and the
riser from the vault to the leased physical
space.
(c) Develop a quotation specific to
CO-PROVIDER's request.
(d) Extend U S WEST-provided and owned fiber
optic, copper OR COAXIAL(20) cable,
whichever is more efficient, from the P01
through the cable vault and extend the cable
to CO-PROVIDER's leased physical space or
place the cable in fire retardant tubing
prior to extension to CO-PROVIDER's leased
physical space.
- ----------
(19) AT&T Order, p. 10 at Issue 10(a).
(20) AT&T Order, p. 10, Issue 10(a).
<PAGE>
Part A
(e) Installation and maintenance and all related
activity necessary to provide Channel
Termination between U S WEST's and
CO-PROVIDER's equipment.
(f) Work cooperatively with CO-PROVIDER in
matters of joint testing and maintenance.
40.3.9 CO-PROVIDER Responsibilities
(a) Determine the type of enclosure for the
physical space.
(b) Procure, install and maintain fiber optic,
copper or COAXIAL(21) facilities up to the
U S WEST designated P01
(c) Provide for installation, maintenance,
repair and service of all CO-PROVIDER's
equipment located in the leased physical
space.
(d) Ensure that all equipment installed by
CO-PROVIDER complies with Bellcore Network
Equipment Building System Generic Equipment
requirements, U S WEST environmental and
transmission standards, and any statutory
(local, federal, or state) or regulatory
requirements in effect at the time of
equipment installation or that subsequently
become effective.
40.3.10 The installation of any Interconnection service will
be coordinated between the Parties so that
CO-PROVIDER may utilize those services once
CO-PROVIDER has accepted its leased physical space.
40.3.11 If, at any time, U S WEST reasonably determines that
the equipment or the installation does not meet
standard industry requirements, such failure being
due to actions of CO-PROVIDER or its agents,
CO-PROVIDER will be responsible for the costs
associated with the removal, modification to, or
installation of the equipment to bring it into
compliance. If CO-PROVIDER fails to correct any
noncompliance within thirty (30) calendar days or as
soon as reasonably practical after the receipt of
written notice of non-compliance, U S WEST may have
the equipment removed or the condition corrected at
CO-PROVIDER's expense.
40.3.12 If, during installation, U S WEST reasonably
determines that CO-PROVIDER activities or equipment
are unsafe, non-industry standard or in violation of
any applicable laws or regulations, U S WEST has the
right to stop work until the situation is remedied.
If such conditions pose an immediate threat to the
safety of personnel, interfere with the performance
of U S WEST's service obligations, or pose an
immediate threat to the physical integrity of the
conduit system or the cable facilities, U S WEST may
perform such work and/or take action as is necessary
to correct the condition at CO-PROVIDER's expense.
40.3.13 U S WEST shall provide basic telephone service with a
connection jack as requested by CO-PROVIDER from U S
WEST for the collocated space. Upon CO-PROVIDER's
request and following the normal provisioning
process, this service shall be available at the
CO-PROVIDER collocated space on the day the space is
turned over to CO-PROVIDER by U S WEST.
- ----------
(21) AT&T Order, p. 10, Issue 10(a).
<PAGE>
Part A
40.3.14 Where available, U S WEST shall provide access to
eyewash stations, bathrooms, and drinking water
within the collocated facility on a twenty-four (24)
hour per day, seven (7) day per week basis for
CO-PROVIDER personnel and its designated agents.
40.3.15 U S WEST shall provide CO-PROVIDER with written
notice five (5) Business Days prior to those
instances where U S WEST or its subcontractors may be
performing work that could reasonably potentially
affect CO-PROVIDER's service. U S WEST will make
reasonable efforts to inform CO-PROVIDER by telephone
of any emergency related activity prior to the start
of the activity that U S WEST or its subcontractors
may be performing that could reasonably potentially
affect CO-PROVIDER's service, so that CO-PROVIDER can
take any action required to monitor or protect its
service.
40.3.16 U S WEST shall provide information regarding the
location, type, and cable termination requirements
(i.e., connector type, number and type of pairs, and
naming convention) for U S WEST point of termination
to CO-PROVIDER within five (5) Business Days of
CO-PROVIDER's acceptance of U S WEST's quote for
collocated space.
40.3.17 U S WEST shall provide the dimensions for CO-PROVIDER
outside plant fiber ingress and egress into
CO-PROVIDER collocated space within five (5) Business
Days of CO-PROVIDER's acceptance of U S WEST's quote
for collocated space.
40.3.18 U S WEST shall provide the sizes and number of power
feeders for the collocated space to CO-PROVIDER
within ten (10) Business Days of CO-PROVIDER's
acceptance of U S WEST's quote for collocated space.
40.3.19 U S WEST shall provide positive confirmation to
CO-PROVIDER when construction of CO-PROVIDER
collocated space is fifty percent (50%) completed.
This confirmation shall also include confirmation of
the scheduled completion and turnover dates.
40.3.20 [Intentionally left blank for numbering consistency]
40.3.21 With the exception of Subparagraph (b) below, U S
WEST shall provide the following information to
CO-PROVIDER within five (5) Business Days or as
reasonably necessary upon receipt of a written
request from CO-PROVIDER:
(a) additional work restriction guidelines.
<PAGE>
Part A
(b) U S WEST or industry technical publication
guidelines that impact the design of U S
WEST collocated equipment, unless such
documents are already in the possession of
CO-PROVIDER. The following U S WEST
Technical Publications provide information
regarding central office equipment and
collocation guidelines:
77350 Central Office
Telecommunications
Equipment I Installation
and Removal Guidelines
77351 Central Office
Telecommunications
Equipment Engineering
Standards
77355 Grounding - Central Office
and Remote Equipment
Environment
77386 Expanded Interconnection
and Collocation for
Private Line Transport and
Switched Access Services
CO-PROVIDER may obtain the above documents
from:
Faison Office Products Company
3251 Revere St., Suite 200
Aurora, Colorado 80011
(303) 340-3672
(c) appropriate U S WEST contacts (names and
telephone numbers) for the following areas:
Engineering
Physical & Logical Security
Provisioning
Billing
Operations
Site and Building Managers
Environmental and Safety
(d) escalation process for the U S WEST
employees (names, telephone numbers and the
escalation order) for any disputes or
problems that might arise pursuant to
CO-PROVIDER's collocation.
40.3.22 Power as referenced in this Agreement refers to any
electrical power source supplied by U S WEST for
CO-PROVIDER equipment. U S WEST will supply power to
support CO-PROVIDER equipment at equipment specific
DC and AC voltages. At a minimum, U S WEST shall
supply power to CO-PROVIDER at parity with that
provided by U S WEST to itself. If U S WEST
performance, availability or restoration falls below
industry standards, U S WEST shall bring itself into
compliance with such industry standards as soon as
technologically feasible.
(a) Central office power supplied by U S WEST
into the CO-PROVIDER equipment area, shall
be supplied in the form of power feeders
(cables) on cable racking into the
designated CO-PROVIDER equipment area. The
power feeders (cables) shall efficiently and
economically support the requested quantity
and capacity of CO-PROVIDER equipment. The
termination location shall be mutually
agreed upon by the Parties.
(b) U S WEST power equipment supporting
CO-PROVlDER's equipment shall:
<PAGE>
Part A
i. comply with applicable industry
standards (e.g., Bellcore, NEBS,
IEEE, UL, and NEC) or
manufacturer's equipment power
requirement specifications for
equipment installation, cabling
practices, and physical equipment
layout;
ii. have redundant power feeds with
physical diversity and battery
back-up as required by the
equipment manufacturer's
specifications for CO-PROVIDER
equipment, or, at minimum, at
parity with that provided for
similar U S WEST equipment at that
location;
iii. provide central office ground,
connected to a ground electrode
located within the CO-PROVIDER
collocated space, at a level above
the top of CO-PROVIDER equipment
plus or minus two (2) feet to the
left or right of CO-PROVIDER's
final request;
iv. provide an installation sequence
and access that will allow
installation efforts in parallel
without jeopardizing personnel
safety or existing services of
either Party;
v. provide cabling that adheres to
Bell Communication Research
(Bellcore) Network
Equipment-Building System (NEBS)
standards TR-EOP-000063;
vi. provide Lock Out-Tag Out and other
electrical safety procedures and
devices in conformance with the
most stringent of OSHA or industry
guidelines; and
vii. ensure that installed equipment
meets Bellcore specifications.
40.4 COLLOCATION RATE ELEMENTS
40.4.1 COMMON RATE ELEMENTS
The following rate elements are common to both
virtual and physical collocation:
(a) Quote Preparation Fee. This covers the work
involved in developing a quotation for
CO-PROVIDER for the total costs involved in
its collocation request.
(b) Entrance Facility. Provides for fiber optic
cable on a per two (2) fiber increment basis
from the point of interconnection utilizing
U S WEST owned, conventional single mode
type of fiber optic cable to the collocated
equipment (for virtual collocation) or to
the leased space (for physical collocation).
Entrance facility includes riser, fiber
placement, entrance closure,
conduit/innerduct, and core drilling.
(c) Cable Splicing. Represents the labor and
equipment to perform a subsequent splice to
the CO-PROVIDER provided fiber optic cable
after the initial installation splice.
Includes a per-setup and a per-fiber-spliced
rate elements.
<PAGE>
Part A
(d) 48 Volt Power. Provides 48 volt power to the
CO-PROVIDER collocated equipment. Charged on
a per ampere basis.
(e) 48 Volt Power Cable. Provides for the
transmission of -48 Volt DC power to the
collocated equipment. It includes
engineering, furnishing and installing the
main distribution bay power breaker,
associated power cable, cable rack and local
power bay to the closest power distribution
bay. It also includes the power cable
(feeders) A and B from the local power
distribution bay to the leased physical
space (for physical collocation) or to the
collocated equipment (for virtual
collocation).
(f) Inspector Labor. Provides for the U S WEST
qualified personnel necessary when
CO-PROVIDER requires access to the P01 after
the initial installation or access to its
physical collocation floor space, where an
escort is required. A call-out of an
inspector after business hours is subject to
a minimum charge of four (4) hours.
Maintenance Labor, Inspector Labor,
Engineering Labor and Equipment Labor
business hours are considered to be Monday
through Friday, 8:00 am to 5:00 pm and after
business hours are after 5:00 pm and before
8:00 am, Monday through Friday, all day
Saturday, Sunday and holidays.
(g) Expanded Interconnection Channel
Regeneration. Required when the distance
from the leased physical space (for physical
collocation) or from the collocated
equipment (for virtual collocation) to the
U S WEST network is of sufficient length to
require regeneration.
(h) U S WEST will provide external
synchronization when available.
(i) U S WEST will provide 20 hertz ringing
supply when available.
40.4.2 PHYSICAL COLLOCATION RATE ELEMENTS
The following rate elements apply only to physical
collocation arrangements:
(a) Enclosure Buildout. The Enclosure Buildout
element, either Cage or Hardwall, includes
the material and labor to construct the
enclosure specified by CO-PROVIDER or
CO-PROVIDER may choose from U S WEST
approved contractors to construct the cage,
meeting U S WEST's installation Technical
Publication 77350. It includes the enclosure
(cage or hardwall), air conditioning (to
support CO-PROVIDER loads specified),
lighting (not to exceed 2 watts per square
foot), and convenience outlets (3 per cage
or the number required by building code for
the hardwall enclosure). Also provides for
humidification, if required. Pricing for
Enclosure Buildout will be provided on an
individual basis due to the uniqueness of
CO-PROVIDER's requirements, central office
structure and arrangements.
(b) Floor Space Rental. This element provides
for the rental of the floor space provided
to CO-PROVIDER pursuant to a physical
collocation arrangement.
<PAGE>
Part A
40.4.3 VIRTUAL COLLOCATION RATE ELEMENTS
The following rate elements apply only to virtual
collocation arrangements:
(a) Maintenance Labor. Provides for the labor
necessary for repair of out of service
and/or service-affecting conditions and
preventative maintenance of the CO-PROVIDER
virtually collocated equipment. CO-PROVIDER
is responsible for ordering maintenance
spares. U S WEST will perform maintenance
and/or repair work upon receipt of the
replacement maintenance spare and/or
equipment for CO-PROVIDER. A call-out of a
maintenance technician after business hours
is subject to a minimum charge of four (4)
hours. Maintenance Labor, Inspector Labor,
Engineering Labor and Equipment Labor
business hours are considered to be Monday
through Friday, 8:00 am to 5:00 pm and after
business hours are after 5:00 pm and before
8:00 am, Monday through Friday, all day
Saturday, Sunday and holidays.
(b) Training Labor. Provides for the billing of
vendor-provided training for U S WEST
personnel on a metropolitan service area
basis, necessary for CO-PROVIDER virtually
collocated equipment which is different from
equipment used by U S WEST. U S WEST will
require three (3) U S WEST employees to be
trained per metropolitan service area in
which the CO-PROVIDER virtually collocated
equipment is located. If, by an act of U S
WEST, trained employees are relocated,
retired, or are no longer available, U S
WEST will not require CO-PROVIDER to provide
training for additional U S WEST employees
for the same virtually collocated equipment
in the same metropolitan area. Fifty percent
(50%) of the amount of training billed to
CO-PROVIDER will be refunded to CO-PROVIDER,
should a second collocator or U S WEST in
the same metropolitan area select the same
virtually collocated equipment as
CO-PROVIDER. The second collocatoror US WEST
will be charged one half of the original
amount paid by CO-PROVIDER for the same
metropolitan area.
(c) Equipment Bay. Provides mounting space for
the CO-PROVIDER virtually collocated
equipment. Each bay includes the seven (7)
foot bay, its installation, and all
necessary environmental supports. Mounting
space on the bay, including space for the
fuse panel and air gaps necessary for heat
dissipation is limited to 78 inches. The
monthly rate is applied per shelf.
(d) Engineering Labor. Provides the planning and
engineering of the COPRO VIDER virtually
collocated equipment at the time of
installation, change or removal.
(e) Installation Labor. Provides for the
installation, change or removal of the
CO-PROVIDER virtually collocated equipment.
40.5. COLLOCATION INSTALLATION INTERVALS
40.5.1 U S WEST shall have a period of thirty (30) calendar
days after receipt by CO-PROVIDER of a Request for
Collocation to provide CO-PROVIDER with a written
quotation containing all nonrecurring charges and
fees for the requested collocation (the "Quotation
Preparation Period"). CO-PROVIDER shall make payment
of fifty percent (50%) of the nonrecurring charges
and fees upon acceptance of the
<PAGE>
Part A
quotation ("Initial Payment") with the remainder due
upon completion of the construction. In the event
CO-PROVIDER disputes the amount of U S WEST's
proposed nonrecurring charges and fees, CO-PROVIDER
shall deposit fifty percent (50%) of the nonrecurring
charges and fees into an interest bearing escrow
account prior to the commencement of construction
("Initial Deposit"). The remainder of the
nonrecurring charges and fees shall be deposited into
the escrow account upon completion of the
construction. Upon resolution of the dispute, the
escrow agent shall distribute amounts in the account
in accordance with the resolution of such dispute and
any interest that has accrued with respect to amounts
in the account shall be distributed proportionately
to the Parties. U S WEST shall complete installation
pursuant to the CO-PROVIDER Request for Collocation
within a maximum of three (3) months after the
Initial Payment or Initial Deposit for physical or
virtual collocation. If there is a dispute between
U S WEST and CO-PROVIDER regarding the amount of any
nonrecurring charges and fees, such dispute shall be
resolved in accordance with Section 27 above. The
pendency of any such dispute shall not affect the
obligation of U S WEST to complete collocation within
the installation intervals described above.
41. TECHNICAL REFERENCES - COLLOCATION
Subject to Sections 1.3.1 and 1.3.2 of this Part A of this Agreement,
U S WEST shall provide collocation in accordance with the following standards:
41.1 Institute of Electrical and Electronics Engineers (IEEE)
Standard 383, IEEE Standard for Type Test of Class 1 E
Electric Cables, Field Splices, and Connections for Nuclear
Power Generating Stations;
41.2 National Electrical Code (NEC), use most recent issue;
41.3 TA-NPL-000286, NEBS Generic Engineering Requirements for
System Assembly and Cable Distribution, Issue 2 (Bellcore,
January 1989);
41.4 TR-EOP-000063 Network Equipment-Building System (NEBS) Generic
Equipment Requirements, Issue 3, March 1988;
41.5 TR-EOP-000151, Generic Requirements for 24-, 48-, 130-, and
140- Volt Central Office Power Plant Rectifiers, Issue 1
(Bellcore, May 1985);
41.6 TR-EOP-000232, Generic Requirements for Lead-Acid Storage
Batteries, Issue 1 (Bellcore, June 1985);
41.7 TR-NWT-000154, Generic Requirements for 24-, 48-, 130, and
140- Volt Central Office Power Plant Control and Distribution
Equipment, Issue 2 (Bellcore, January 1992);
41.8 TR-NWT-000295 Isolated Ground Planes: Definition and
Application to Telephone Central Offices, Issue 2 (Bellcore,
July 1992);
41.9 TR-NWT-000840, Supplier Support Generic Requirements (SSGR),
(A Module of LSSGR, FR-NWT-000064), Issue 1 (Bellcore,
December1991);
41.10 TR-NWT-001 275 Central Office Environment
Installations/Removal Generic Requirements, Issue 1, January
1993; and
<PAGE>
Part A
41.11 Underwriters' Laboratories Standard, UL 94.
42. NUMBER PORTABILITY
42.1 INTERIM NUMBER PORTABILITY (INP)
42.1.1 GENERAL TERMS
(a) The Parties shall provide Interim Number
Portability (INP) on a reciprocal basis to
the extent technically feasible.
(b) Until permanent number portability is
implemented by the industry pursuant to
regulations issued by the FCC or the
Commission, the Parties agree to provide INP
to each other through Remote Call
Forwarding, Direct Inward Dialing, or other
appropriate means as agreed to by the
Parties.
(c) Once permanent number portability is
implemented pursuant to FCC or Commission
regulation, either Party may withdraw, at
any time and at its sole discretion, its INP
offerings, subject to advance notice to the
other Party with sufficient time to allow
for coordination to allow the seamless and
transparent conversion of NP Customer
numbers to permanent number portability.
Upon implementation of permanent number
portability pursuant to FCC regulations,
both Parties agree to conform and provide
such permanent number portability. The
Parties agree to expeditiously convert
Customers from interim number portability to
permanent number portability, provided that
the interim service is not removed until the
Customer has been converted.
(d) U S WEST will update and maintain its Line
Information Database ("LIDB") listings for
numbers retained by CO-PROVIDER and its
Customer and restrict or cancel calling
cards associated with these forwarded
numbers as directed by CO-PROVIDER. Further,
U S WEST will not block third party and
collect calls to those numbers unless
requested by CO-PROVIDER.
(e) The ordering Party shall specify, on a per
telephone number basis, which method of INP
is to be employed and the providing Party
shall provide such method to the extent
technically feasible.
(f) Where either Party has activated an entire
NXX, or activated a substantial portion of
an NXX with the remaining numbers in that
NXX either reserved for future use or
otherwise unused, if these Customer(s)
choose to receive service from the other
Party, the first Party shall cooperate with
the second Party to have the entire NXX
reassigned in the LERG (and associated
industry databases, routing tables, etc.) to
an End Office operated by the second Party.
Such transfer will be accomplished with
appropriate coordination between the Parties
and subject to appropriate industry
lead-times for movement of NXXs from one
switch to another.
42.1.2 DESCRIPTION OF SERVICE
(a) Interim Number Portability Service ("INP")
is a service arrangement that can be
provided by U S WEST to CO-PROVIDER or by
CO-PROVIDER to U S WEST.
<PAGE>
Part A
(b) INP applies to those situations where an
end-user Customer elects to change service
providers, and such Customer also wishes to
retain its existing or reserved telephone
number(s). INP consists of providing the
capability to route calls placed to
telephone numbers assigned to one Party's
switches to another Party's switches.
(c) INP is available as INP-Remote Call
Forwarding ("INP-RCF") permitting a call to
a U S WEST assigned telephone number to be
translated to CO-PROVIDER's dilatable local
number. CO-PROVIDER may terminate the call
as desired. Additional capacity for
simultaneous call forwarding is available
where technically feasible on a per path
basis. CO-PROVIDER will need to specify the
number of simultaneous calls to be forwarded
for each number ported.
(d) DID is another INP method that makes use of
direct inward dialing trunks. Each DID trunk
group used for INP is dedicated to carrying
DID INP traffic between the U S WEST end
office and the CO-PROVIDER switch. Traffic
on these trunks cannot overflow to other
trunks, so the number of trunks shall be
conservatively engineered by U S WEST. Also,
inter-switch signaling is usually limited to
multi-frequency (MF). This precludes passing
Calling Line ID to the CO-PROVIDER switch.
(e) RI-PH will route a dialed call to the U S
WEST switch associated with the NXX of the
dialed number. The U S WEST switch shall
then insert a prefix onto the dialed number
which identifies how the call is to be
routed to CO-PROVIDER. The prefixed dialed
number is transmitted to the U S WEST tandem
switch to which CO-PROVIDER is connected.
Route indexing is only available with seven
(7) digit local dialing.
(f) The prefix is removed by the operation of
the tandem switch and the dialed number is
routed to CO-Provider's switch so the
routing of the call can be completed by
CO-PROVIDER.
i. DN-RI is a form of RI-PH that
requires direct trouncing between
the U S WEST switch to which the
ported number was originally
assigned and the CO-PROVIDER switch
to which the number has been
ported. The U S WEST switch shall
send the originally dialed number
to the CO-PROVlDER switch without a
prefix.
ii. U S WEST shall provide RI-PH or
DN-RI on an individual telephone
number basis, as designated by
CO-PROVIDER. Where technically
feasible, calls to ported numbers
are first directed to the
CO-PROVIDER switch over direct
trunks but may overflow to tandem
trunks if all trunks in the direct
group are occupied.
iii. For both RI-PH and DN-RI the trunks
used may, at CO-PROVIDER's option,
be the same as those used for
exchange of other local traffic
with U S WEST. At CO-PROVIDER's
option, the trunks shall employ SS7
or in band signaling and may be one
way or two way.
(g) INP is subject to the following
restrictions:
<PAGE>
Part A
i. An INP telephone number may be
assigned by CO-PROVIDER only to
CO-PROVIDER's Customers located
within U S WEST's local calling
area and toll rating area that is
associated with the NXX of the
ported number. This is to prevent
the possibility of Customers using
number portability to extend the
local calling area.
ii. INP is applicable only if
CO-PROVIDER is engaged in a
reciprocal traffic exchange
arrangement with U S WEST.
iii. INP is not offered for NXX Codes
555, 976, 960 and 1+ sent-paid
telephones, and Service Access
Codes (i.e., 500, 700, 800/888,
900). INP is not available for FGA
seven-digit numbers (including
foreign exchange (FEX), FX and
FX/ONAL and foreign Central Office
service).. Furthermore, INP numbers
may only be used consistent with
network efficiency and integrity,
i.e., inhibitions on mass calling
events.
iv. The ported telephone number will be
returned to the switch which
originally had the ported number
when the ported service is
disconnected. The normal intercept
announcement will be provided by
the porting company for the period
of time until the telephone number
is reassigned.
v. Within thirty (30) days after the
Effective Date of this Agreement,
U S WEST shall provide CO-PROVIDER
a list of those features that are
not available for INP telephone
numbers due to technical
limitations.
42.1.3 ORDERING AND MAINTENANCE
(a) CO-PROVIDER is responsible for all direct
interactions with CO-PROVIDER's end users
with respect to ordering and maintenance.
(b) U S WEST shall exchange with CO-PROVIDER SS7
TCAP messages as required for the
implementation of Custom Local Area
Signaling Services (CLASS) or other features
available in the U S WEST network.
(c) Each Party's designated INP switch must
return answer and disconnect supervision to
the other Party's switch.
(d) U S WEST shall disclose to CO-PROVIDER any
technical or capacity limitations that would
prevent use of a requested INP in a
particular switching office.
(e) The Parties will develop and implement an
efficient deployment process to ensure call
routing integrity for toll and local calls,
with the objective to eliminate Customer
downtime.
(f) For INP, CO-PROVIDER shall have the right to
use the existing U S WEST 911 infrastructure
for all 911 capabilities. When RCF is used
for CO-PROVIDER subscribers, both the ported
numbers and shadow numbers shall be stored
in the ALI databases. CO-PROVIDER shall have
the right to verify the accuracy of the
information in the ALI databases via direct
<PAGE>
Part A
connection to the SCC ALI database pursuant
to the same process and procedures SCC makes
available to U S WEST.
42.2 Permanent Number Portability (PNP)
42.2.1 UPON implementation of Permanent Number Portability
(PNP) pursuant to FCC regulations, both Parties agree
to conform and provide such Permanent Number
Portability. To the extent consistent with the FCC
rules as amended from time to time, the requirements
for PNP shall include the following:
42.2.2 Subscribers must be able to change local service
providers and retain the same telephone number(s)
consistent with FCC rules and regulations.
42.2.3 The PNP network architecture shall not subject
alternate local exchange carriers to any degradation
of service compared to U S WEST in any relevant
measure, including transmission quality, switching
and transport costs, increased call set-up time and
post-dial delay, and CO-PROVIDER shall not be
required to rely on the U S WEST network for calls
completing to its ported Customers.
42.2.4 When an office is equipped with PNP, in accordance
with the procedures specified by the North American
Numbering Council, the NXXs in the office shall be
defined as portable and translations will be changed
in the Parties' switches to open those NXXs for
database queries.
42.2.5 When an NXX is defined as portable, it shall also be
defined as portable in all PNPcapable offices which
have direct trunks to the given switch.
42.2.6. Upon introduction of PNP in an Metropolitan
Statistical Area ("MSA"), the applicable switches
will be converted according to a published schedule
with no unreasonable delay. All portable NXXs shall
be recognized as portable, with queries launched from
these switches.
42.2.7 Prior to implementation of PNP, the Parties agree to
develop, implement, and maintain efficient methods to
maintain 911 database integrity when a subscriber
ports to another service provider. The Parties agree
that the Customer should not be dropped from the 911
database during the transition.
42.2.8 When a subscriber ports to another service provider
and has previously secured a reservation of line
numbers from the donor provider for possible
activation at some future point, these reserved but
inactive numbers shall "port" along with the active
numbers being ported by the subscriber. So long as
CO-PROVIDER maintains the reserved numbers, U S WEST
shall not reassign said numbers. The Parties will
allocate the revenue generated from number
reservations in accordance with a schedule to be
mutually agreed upon by the Parties within ninety
(90) days of the Effective Date of this Agreement.
42.2.9 During the process of porting a subscriber, the donor
service provider shall implement the 10-Digit trigger
feature, when the technology is made available in
each switch in accordance with the schedules adopted
by the FCC. When the donor provider receives the
porting request, the unconditional trigger shall be
applied to the subscriber's line at the time that has
been agreed to via the Western Region LNP Operations
Guidelines in order to overcome donor network time
delays in the disconnection of the subscriber.
Alternatively, when an activation notice is sent to
an NPAC to trigger a broadcast to service provider
databases, the donor
<PAGE>
Part A
switch shall have its translations changed to
disconnect the subscriber's line within thirty (30)
minutes or less after the donor network Local SMS's
has received the broadcast. Porting requests that
require coordination between service providers, in
accordance with the guidelines, will be handled on a
case-by-case basis and will not be covered by the
above.
42.2.10 Both CO-PROVIDER and U S WEST shall:
(a) support all emergency and operator services.
(b) use scarce numbering resources efficiently
and administer such resources in a
competitively neutral manner.
(c) jointly cooperate with each other to provide
the information necessary to rate and bill
all types of calls.
(d) jointly cooperate with each other to apply
PNP consistently on a nationwide basis, and
in accordance with all FCC directives.
42.2.11 A ten-digit code, consistent with the North American
Numbering Plan, shall be used as a network address
for each switch that terminates subscriber lines,
i.e., an end office. This address shall support
existing six-digit routing and may be implemented
without changes to existing switch routing
algorithms. In existing end offices, this address
shall be selected from one of its existing NPA-NXXs.
New end offices shall be assigned an address through
normal administrative processes.
42.2.12 PNP employs an "N-1" (N minus 1) Query Strategy for
interLATA or intraLATA toll calls, by which the
originating carrier will pass the call to the
appropriate toll carrier who will perform a query to
an external routing database and efficiently route
the call to the appropriate terminating local carrier
either directly or through an access tandem office.
42.2.13 U S WEST shall furnish CO-PROVIDER with the first six
(6) digits of the originating address when it
supplies CO-PROVIDER with the Jurisdiction
Information Parameter for the originating address
message.
42.2.14 U S WEST agrees to begin the introduction of PNP to
end user subscribers who may begin changing local
service providers and retaining their existing
telephone number based on the time line set out by
the FCC in its Telephone Number Portability Order (CC
Docket No. 95-116), or in accordance with a
Commission order if such time for introduction of PNP
set by the Commission is earlier than would result
under the FCC Order.
42.2.15 The generic requirements for the PNP alternative will
be implemented in accordance with industry-standard
specifications.
42.2.16 For a local call to a ported number, the originating
carrier is the "N-1" carrier. It will perform an
external database query as soon as the call reaches
the first PNPcapable switch in the call path and pass
the call to the appropriate terminating carrier. A
PNP-capable originating switch shall query on a local
call to a portable NXX as soon as it determines that
it (the originating switch) does not serve the dialed
number.
<PAGE>
Part A
42.2.17 U S WEST shall be the default carrier for database
queries where CO-PROVIDER is unable to perform its
own query due to abnormal conditions. CO-PROVIDER
shall be the default carrier for database queries
where U S WEST is unable to perform its own query due
to abnormal conditions.
42.2.18 U S WEST will provide CO-PROVIDER PNP for subscribers
moving to a different location, or staying at the
same location, within the same rate center area.
42.2.19 U S WEST will work cooperatively with other local
service providers to establish the Western Region
Number Portability Administration Center/Service
Management System (SMS). The SMS shall be
administered by a neutral third party to provide for
the efficient porting of numbers between carriers.
There must be one (1) exclusive NPAC per portability
State or region, and U S WEST shall provide all
information uploads and downloads regarding ported
numbers to/from, respectively, the exclusive NPAC. U
S WEST and CO-PROVIDER shall cooperate to facilitate
the expeditious deployment of PNP through the process
prescribed by the FCC, including, but not limited to,
participation in the selection of a neutral third
party and development of SMS, as well as SMS testing
for effective procedures, electronic system
interfaces, and overall readiness for use consistent
with that specified for provisioning in this
Agreement.
42.3 REQUIREMENTS FOR INP AND NP
42.3.1 [Intentionally left blank for numbering consistency]
42.3.2 CUT-OVER PROCESS
The Parties shall cooperate in the process of porting
numbers from one carrier to another so as to limit
service outage for the ported subscriber. This shall
include, but not be limited to, each Party updating
its respective network element translations within
fifteen (15) minutes following notification by the
industry SMS, or ported-to local service provider,
and deploying such temporary translations as may be
required to minimize service outage, e.g.,
unconditional triggers. In addition, CO-PROVIDER
shall have the right to determine who initiates the
order for INP in specific cut-over situations. The
time frames in this paragraph shall be pursuant to
Generic Requirements for SCP Application and GTT
Function for Number Portability, Issue 0.99, January
6,1997 and subsequent versions which may be adopted
from time to time. The Parties shall cooperate to
review and, if necessary, adjust the above time frame
based on their actual experiences.
42.3.3 TESTING
U S WEST and CO-PROVIDER shall cooperate in
conducting CO-PROVIDER's testing to ensure
interconnectivity between systems. U S WEST shall
inform CO-PROVIDER of any system updates that may
affect the CO-PROVIDER network and U S WEST shall, at
CO-PROVIDER's request, perform tests to validate the
operation of the network. Additional testing
requirements may apply as specified by this
Agreement.
42.3.4 ENGINEERING AND MAINTENANCE
(a) U S WEST and CO-PROVIDER will cooperate to
ensure that performance of trunking and
signaling capacity is engineered and managed
at levels which are at least the same level
of service as provided by U S WEST to its
<PAGE>
Part A
subscribers and to ensure effective
maintenance testing through activities such
as routine testing practices, network
trouble isolation processes and review of
operational elements for translations,
routing and network fault isolation.
(b) Additional specific engineering and
maintenance requirements shall apply as
specified in this Agreement.
42.3.5 RECORDING AND BILLING
The Parties shall provide each other with accurate
billing and subscriber account record exchange data
necessary for billing their subscribers whose numbers
have been ported.
42.3.6 OPERATOR SERVICES AND DIRECTORY ASSISTANCE
With respect to operator services and directory
assistance associated with NP for CO-PROVIDER
subscribers, U S WEST shall provide the following:
(a) While INP is deployed and prior to
conversion to PNP:
i. The Parties acknowledge that
technology, as of the Effective
Date of this Agreement, does not
permit the provision of BLV/BLI to
ported numbers. When such becomes
available in the U S WEST network,
such technology shall be made
available to CO-PROVIDER.
ii. U S WEST shall allow CO-PROVIDER to
order provisioning of Telephone
Line Number (TLN) calling cards and
Billed Number Screening (BNS), in
its LIDB, for ported numbers, as
specified by CO-PROVIDER. U S WEST
shall continue to allow CO-PROVIDER
access to its LIDB. Other LIDB
provisions are specified in this
Agreement.
iii. Where U S WEST has control of
Directory Listings for NXX codes
containing ported numbers, U S WEST
shall maintain entries for ported
numbers as specified by CO-PROVIDER
in accordance with the Listings
Section of this Agreement.
(b) When PNP is in place:
i. The provisions in Section 42.3.6
preceding, shall apply when PNP is
in place.
ii. If Integrated Services Digital
Network User Part (ISUP) signaling
is used, U S WEST shall provide the
Jurisdiction Information Parameter
in the SS7 Initial Address Message.
(See Generic Switching and
Signaling Requirements for Number
Portability, Issue 1.0, February
12, 1996 (Editor - Lucent
Technologies, Inc.)).
iii.The Parties shall provide, when
received from the NPAC, a 10-Digit
Global Title Translation (GTT) Node
for routing queries for TCAP based
operator services (e.g., LIDB). The
acquiring company will provide the
GTT to the NPAC. The NPAC will
distribute this information to the
donor company and all other
parties.
<PAGE>
Part A
IV. U S WEST OSS shall meet all
requirements specified in "Generic
Operator Services Switching
Requirements for Number
Portability", Issue 1.1, June 20,
1996, as updated from time to time.
43. DIALING PARITY
43.1 The Parties shall provide dialing parity to each other as
required under Section 251(b)(3) of the Act or state law or
regulation as appropriate.
43.2 U S WEST shall ensure that all CO-PROVIDER Customers
experience the same dialing parity as similarly-situated
Customers of U S WEST services, such that, for example, for
all call types: (a) an CO-PROVIDER Customer is not required to
dial any greater number of digits than a similarly-situated U
S WEST Customer; and (b) the CO-PROVIDER Customer may retain
its local telephone number, so long as the Customer continues
receiving service in the same central office serving area.
44. DIRECTORY LISTINGS
44.1 DIRECTORY LISTINGS GENERAL REQUIREMENTS
44.1.1 This Section 44 pertains to Directory Listings
requirements for the appearance of CO-PROVIDER end
user Directory Listings in directory assistance
service or directory product.
44.1.2 U S WEST shall include in its master Directory
Listing database all list information for CO-PROVIDER
Customers.
44.1.3 U S WEST shall not sell or license, nor allow any
third party, the use of CO-PROVIDER Customer Listings
without the prior written consent of CO-PROVIDER. U S
WEST shall not disclose nor allow any third party to
disclose non-listed name or address information for
any purpose other than what may be necessary to
complete directory distribution.
44.1.4 CO-PROVlDER Customer Listings in the U S WEST
Directory Assistance database and Directory Listing
database shall be co-mingled with Listings of U S
WEST and other CLEC Customers.
44.1.5 Each CO-PROVIDER Customer Primary Listing shall be
provided, at no charge, the same white page listings
that U S WEST provides its Customers.
44.1.6 Each CO-PROVIDER business Customer Primary Listing
shall be provided, at no charge, the same yellow page
classified courtesy Listings that U S WEST provides
its Customers.
<PAGE>
Part A
44.1.7 U S WEST shall also ensure that its directory
publisher publishes all types of Listings for
CO-PROVIDER Customers that are available to U S WEST
Customers under the same terms, and conditions,
including, but not limited to: -
(a) Foreign listings
(b) Reference listings
(c) Information listings
(d) Alternate call listings
(e) Multi-line listings
(f) Multi-line/Multi-owner listings
44.1.8 CO-PROVIDER end user Listings properly identified by
CO-PROVIDER as State, Local, and Federal government
Listings shall be appropriately coded in the U S WEST
Directory Listing database. U S WEST will provide
government code information to CO-PROVIDER.
44.1.9 The listing and handling of CO-PROVIDER listed and
non-listed telephone numbers shall be at least at
parity with that provided by U S WEST to its own
Customers, including CO-PROVIDER customers who have
ported telephone numbers from US WEST.
44.1.10 U S WEST shall ensure that its directory publisher
publishes CO-PROVIDER sales, service, billing, and
repair information for business and residential
Customers, along with the CO-PROVIDER logo in the
customer information/guide pages of each directory at
no charge to CO-PROVIDER.
44.1.11 US WEST is responsible for maintaining Listings,
including entering, changing, correcting, rearranging
and removing listings in accordance with CO-PROVIDER
orders. Upon request, and at least one (1) month
prior to a given white page directory close, a method
of reviewing and correcting Listings will be
provided.
44.1.12 FOR WHITE PAGES AND YELLOW PAGES ADVERTISING, U S
WEST SHALL ENSURE THAT (a) U S WEST'S DIRECTORY
PUBLISHER SELL SUCH ADVERTISING ON A
NONDISCRIMINATORY BASIS TO CO-PROVIDER CUSTOMERS, (b)
CHARGES FOR SUCH ADVERTISING WILL BE BILLED BY U S
WEST'S DIRECTORY PUBLISHER IN THE SAME MANNER AS IT
BILLS FOR U S WEST'S CUSTOMERS' ADVERTISEMENTS, AND
(c) CO-PROVIDER SHALL RECEIVE COMMISSIONS OR OTHER
COMPENSATION FROM U S WEST'S DIRECTORY PUBLISHER ON
ALL COMPENSATION GENERATED BY SUCH ADVERTISING AT NO
LESS THAN THE COMMISSION OR COMPENSATION RATE PAID TO
U S WEST OR ANY OF ITS AFFILIATES.(22)
44.1.13 U S WEST will permit CO-PROVIDER Customers to place
orders for Premium Listings and privacy listings.
CO-PROVIDER will be charged for Premium Listings and
privacy listings at U S WEST's general exchange
tariff rates less the wholesale discount rate. The
Premium and privacy listing charges will be billed to
CO-PROVIDER and itemized at the telephone number
sub-account level.
44.1.14 U S WEST shall ensure a third party distributes
appropriate alphabetical and classified directories
(white and yellow pages) and recycling services to
CO-PROVIDER Customers at parity with U S WEST end
users, including providing directories, a) upon
establishment of new service; b) during annual mass
distribution; and c) upon Customer request.
- ----------
(22) Procedural Order, July 14,1997, pages 6-8.
<PAGE>
Part A
44.1.15 AT NO CHARGE, USWEST SHALL ENSURE THAT EACH DIRECTORY
COVER INDICATES INCLUSION OF CO-PROVIDER CUSTOMER
LISTINGS.(23)
44.1.16 U S WEST will provide the option of having CENTREX
users listed when CO-PROVIDER purchases CENTREX type
services for resale.
44.1.17 CO-PROVIDER SHALL RECEIVE THE SAME TREATMENT AS U S
WEST RECEIVES WITH RESPECT TO WHITE AND YELLOW PAGE
MATTERS.(24)
44.2 SCOPE
44.2.1 CO-PROVIDER grants U S WEST a non-exclusive license
to incorporate Listings information into its
Directory Assistance database. CO-PROVIDER shall
select one of two options for U S WEST's use of
Listings and dissemination of Listings to third
parties.
EITHER:
(a) Treat the same as U S WEST's end user
listings - No prior authorization is needed
for U S WEST to release Listings to
directory publishers or other third parties.
U S WEST will incorporate Listings
information in all existing and future
Directory Assistance applications developed
by U S WEST. CO-PROVIDER authorizes U S WEST
to sell and otherwise make Listings
available to directory publishers. Listings
shall not be provided or sold in such a
manner as to segregate end users by carrier.
OR:
(b) Restrict to U S WEST's Directory Assistance
services -- Prior authorization required
from CO-PROVIDER for all other uses.
CO-PROVIDER makes its own, separate
agreements with U S WEST, third Parties and
directory publishers for all uses of its
listings beyond DA. U S WEST will sell or
provide Listings to directory publishers
(including U S WEST's publisher affiliate)
or other third Parties only after the third
party presents proof of CO-PROVIDER's
authorization. Listings shall not be
provided or sold in such a manner as to
segregate end users by carrier.
(c) U S WEST SHALL BE ENTITLED TO RETAIN ALL
REVENUE ASSOCIATED WITH ANY SALES PURSUANT
TO SUBPARAGRAPHS (a) AND (b) ABOVE.(25)
44.3 U S WEST will take reasonable steps in accordance with
industry practices to accommodate non-published and non-listed
Listings provided that CO-PROVIDER has supplied U S WEST the
necessary privacy indicators on such Listings.
- ----------
(23) Arizona Bench Order, May 29, 1997, p. 1600, Procedural Order, July 14,
1997 at page 9.
(24) Arizona Bench Order, May 29, 1997, p. 1600, Procedural Order, July 14,
1997 at page 9.
(25) Procedural order, July 14, 1997 at page 10.
<PAGE>
Part A
44.4 CO-PROVIDER RESPONSIBILITIES
44.4.1 CO-PROVIDER AGREES TO PROVIDE TO U S WEST ITS end
user names, addresses and telephone numbers in a
standard mechanized format, as utilized by U S WEST.
44.4.2 CO-PROVIDER will supply its ACNA/CIC or CLCC/OCN, as
appropriate, with each order to provide U S WEST the
means of identifying listings ownership.
44.4.3 CO-PROVIDER REPRESENTS THE END USER information
provided to U S WEST is accurate and correct.
CO-PROVIDER further represents that it has reviewed
all listings provided to U S WEST, including end user
requested restrictions on use such as non-published
and non-listed.
44.4.4 CO-PROVIDER is responsible for dealings with, and on
behalf of, CO-PROVIDER's end users on the following
subjects:
a) All end user account activity, e.g., end
user queries and complaints.
b) All account maintenance activity, e.g.,
additions, changes, issuance of orders for
Listings to U S WEST.
c) Determining privacy requirements and
accurately coding the privacy indicators for
CO-PROVIDER's end user information. If end
user information provided by CO-PROVIDER to
U S WEST does not contain a privacy
indicator, no privacy restrictions will
apply.
45. [INTENTIONALLY LEFT BLANK FOR NUMBERING CONSISTENCY]
46.(26) U S WEST DEX ISSUES
U S WEST AND CO-PROVIDER AGREE THAT CERTAIN ISSUES, SUCH AS YELLOW PAGE
ADVERTISING, DIRECTORY DISTRIBUTION, ACCESS TO CALL GUIDE PAGES, AND
YELLOW PAGE LISTINGS, WILL BE THE SUBJECT OF NEGOTIATIONS BETWEEN
CO-PROVIDER AND DIRECTORY PUBLISHERS, INCLUDING U S WEST DEX. U S WEST
ACKNOWLEDGES THAT CO-PROVIDER MAY REQUEST U S WEST TO FACILITATE
DISCUSSIONS BETWEEN CO-PROVIDER AND U S WEST DEX.
47. ACCESS TO POLES, DUCTS, CONDUITS, AND RIGHTS OF WAY
47.1(27) EACH PARTY SHALL PROVIDE THE OTHER PARTY NONDISCRIMINATORY
ACCESS TO POLES, DUCTS, RIGHTS-OF-WAY AND CONDUITS IT CONTROLS
ON TERMS, CONDITIONS AND PRICES AS DESCRIBED HEREIN. WHILE THE
LANGUAGE IN SECTION 47 DESCRIBES THE PROVISION OF POLES,
DUCTS, RIGHTS-OF-WAY AND CONDUITS BY U S WEST TO CO-PROVIDER,
THE LANGUAGE IN THIS SECTION SHALL APPLY RECIPROCALLY TO THE
PROVISION BY CO-PROVIDER TO U S WEST OF POLES, DUCTS,
RIGHTS-OF-WAY AND CONDUITS NOT USED BY CO-PROVIDER TO PROVIDE
EXCLUSIVELY LONG DISTANCE SERVICES.(28)
47.2 [Intentionally left blank for numbering consistency]
- ----------
(26) MCIm Order, p. 23 at Issue 36 and AT&T Order Issue 70.
(27) MOIm Order, p. 22 at Issue 35.
(28) MCIm Order, p.22 at Issue 35; Procedural Order, July 14,1997 at pages
10-11.
<PAGE>
Part A
47.3 DEFINITIONS
"Poles, ducts, conduits and ROW' refer to all the physical
facilities and legal rights which provide for access to
pathways across public and private property. These include
poles, pole attachments, ducts, innerducts, conduits, building
entrance facilities, building entrance links, equipment rooms,
remote terminals, cable vaults, telephone closets, building
risers, rights-of-way, or any other requirements needed to
create pathways. These pathways may run over, under, across or
through streets, traverse private property, or enter
multi-unit buildings. A Right-of-Way ("ROW") is the right to
use the land or other property owned, leased, or controlled by
any means by U S WEST to place poles, ducts, conduits and ROW
or to provide passage to access such poles, ducts, conduits
and ROW. A ROW may run under, on, or above public or private
property (including air space above public or private
property) and shall include the right to use discrete space in
buildings, building complexes, or other locations.
47.4 REQUIREMENTS
47.4.1 U S WEST shall make poles, duct, conduits and ROW
available to CO-PROVIDER upon receipt of a request
for use within the time periods provided in this
Section providing all information necessary to
implement such use and containing rates, terms and
conditions, including, but not limited to,
maintenance and use in accordance with this Agreement
and at least equal to those which it affords itself,
its Affiliates and others. Other users of these
facilities, including U S WEST, shall not interfere
with the availability or use of the facilities by
CO-PROVIDER.
47.4.2 Within ten (10) Business Days of CO-PROVIDER's
request for specific poles, ducts, conduits, or ROW,
U S WEST shall provide any information in its
possession or available to it regarding the
environmental conditions of such requested poles,
ducts, conduits or ROW route or location including,
but not limited to, the existence and condition of
asbestos, lead paint, hazardous substance
contamination, or radon. Information is considered
"available" under this Agreement if it is in U S
WEST's possession or files, or the possession of an
agent, contractor, employee, lessor, or tenant of U S
WEST's that holds such information on U S WEST's
behalf. If the poles, ducts, conduits or ROW contain
such environmental contamination, making the
placement of equipment hazardous, U S WEST shall
offer alternative poles, ducts, conduits or ROW for
CO-PROVIDER's consideration. U S WEST shall allow
CO-PROVIDER to perform any environmental site
investigations, including, but not limited to, Phase
I and Phase II environmental site assessments, as
CO-PROVIDER may deem to be necessary.
47.4.3 U S WEST shall not prevent or delay any third party
assignment of ROW to CO-PROVIDER.
47.4.4 U S WEST shall offer the use of such poles, ducts,
conduits and ROW it has obtained from a third party
to CO-PROVIDER, to the extent such agreement does not
prohibit U S WEST from granting such rights to
CO-PROVIDER. They shall be offered to CO-PROVIDER on
the same terms as are offered to U S WEST. U S WEST
SHALL EXERCISE ITS EMINENT DOMAIN AUTHORITY WHEN
NECESSARY TO EXPAND AN EXISTING ROW OVER PRIVATE
PROPERTY IN ORDER TO ACCOMMODATE A REQUEST FROM
CO-PROVIDER FOR ACCESS TO SUCH ROW.(29) CO-PROVIDER
shall
- ----------
(29) AT&T Order, p. 30 at Issue 55.
<PAGE>
Part A
reimburse U S WEST for U S WEST's reasonable costs,
if any, incurred as a result of the exercise of its
eminent domain authority on behalf of CO-PROVIDER in
accordance with the provisions of this paragraph.
47.4.5 U S WEST shall provide CO-PROVIDER equal and
non-discriminatory access to poles, ducts, conduit
and ROW and any other pathways on terms and
conditions equal to that provided by U S WEST to
itself or to any other Person. Further, U S WEST
shall not preclude or delay allocation of these
facilities to CO-PROVIDER because of the potential
needs of itself or of any other Person, except a
maintenance spare may be retained as described below.
47.4.6 U S WEST shall not attach, or permit other entities
to attach facilities on, within or overlashed to
existing CO-PROVIDER facilities without CO-PROVIDER's
prior written consent.
47.4.7 U S WEST AGREES TO PROVIDE CURRENT DETAILED
ENGINEERING AND OTHER PLANT RECORDS AND DRAWINGS FOR
SPECIFIC REQUESTS FOR POLES, DUCTS, CONDUIT AND ROW,
INCLUDING FACILITY ROUTE MAPS AT A CITY LEVEL, AND
THE FEES AND EXPENSES INCURRED IN PROVIDING SUCH
RECORDS AND DRAWINGS, ON THE EARLIER OF TWENTY (20)
BUSINESS DAYS FROM CO-PROVIDER'S REQUEST OR THE TIME
WITHIN WHICH U S WEST PROVIDES THIS INFORMATION TO
ITSELF OR ANY OTHER PERSON.(30) Such information
shall be of equal type and quality as that which is
available to U S WEST's own engineering and
operations staff. U S WEST shall also allow personnel
designated by CO-PROVIDER to jointly examine with U S
WEST personnel, at no cost to CO-PROVIDER for such
personnel, such engineering records and drawings for
a specific routing at U S WEST Central Offices and U
S WEST Engineering Offices upon ten (10) days'
written notice to U S WEST. U S WEST acknowledges
that the request for information and the subject
matter related to the request made under this Section
shall be treated as Proprietary Information.
47.4.8 U S WEST shall provide to CO-PROVIDER a Single Point
of Contact for negotiating all structure lease and
ROW arrangements.
47.4.9 U S WEST shall provide information regarding the
availability and condition of poles, ducts, conduit
and ROW within five (5) Business Days of
CO-PROVIDER's request if the information then exists
in U S WEST's records (a records based answer) and
within twenty (20) Business Days of CO-PROVIDER's
request if U S WEST must physically examine the
poles, ducts, conduits and ROW (a field based answer)
("Request"). CO-PROVIDER shall have the option to be
present at the field based survey and U S WEST shall
provide CO-PROVIDER at least twenty-four (24) hours'
notice prior to the start of such field survey.
During and after this period, U S WEST shall allow
CO-PROVIDER personnel to enter manholes and equipment
spaces and view pole structures to inspect such
structures in order to confirm usability or assess
the condition of the structure. U S WEST shall send
CO-PROVIDER a written notice confirming availability
pursuant to the Request within such twenty (20) day
period ("Confirmation").
47.4.10 RESERVATION. FOR THE PERIOD BEGINNING AT THE TIME OF
THE REQUEST AND ENDING NINETY (90) DAYS FOLLOWING
CONFIRMATION, U S WEST SHALL RESERVE SUCH POLES,
DUCTS, CONDUIT AND ROW FOR CO-PROVIDER THAT
CO-PROVIDER MAY
- ----------
(30) MCIm Order, p. 22, Issue 35.
<PAGE>
Part A
REASONABLY REQUEST. CO-PROVIDER SHALL PAY AN
APPROPRIATE RESERVATION FEE MUTUALLY AGREED UPON BY
THE PARTIES FOR SUCH RESERVATION AND SHALL ELECT
WHETHER TO ACCEPT THE POLES, DUCTS, CONDUITS, OR ROW
WITHIN THE NINETY (90) DAY PERIOD FOLLOWING
CONFIRMATION. CO-PROVIDER MAY ACCEPT SUCH FACILITIES
BY SENDING WRITTEN NOTICE TO U S WEST ("ACCEPTANCE").
47.4.10.1 RIGHT OF FIRST REFUSAL. DURING THE
RESERVATION PERIOD, IF ANOTHER PARTY,
INCLUDING U S WEST, MAKES A BONA FIDE AND
GOOD FAITH REQUEST FOR THE USE OF ANY
POLES, DUCTS, CONDUITS OR ROW THAT
CO-PROVIDER HAS PREVIOUSLY RESERVED,
CO-PROVIDER SHALL HAVE A "RIGHT OF FIRST
REFUSAL" OVER THESE FACILITIES. IF
CO-PROVIDER CHOOSES TO EXERCISE ITS RIGHT
OF FIRST REFUSAL, IT SHALL DO SO BY
PROVIDING U S WEST WRITTEN NOTICE OF SAME
WITHIN TEN (10) BUSINESS DAYS FOLLOWING
RECEIPT OF WRITTEN NOTICE FROM U S WEST
ADVISING CO-PROVIDER, OF THE BONA FIDE
AND GOOD FAITH REQUEST.
47.4.10.2 EXERCISE OF RIGHT OF FIRST
REFUSAL/RESERVATION. TO ENSURE PROPER USE
OF RESERVED FACILITIES, AFTER THE
EXPIRATION OF THE RESERVATION PERIOD OR
UPON EXERCISE OF ITS RIGHT OF FIRST
REFUSAL, WHICHEVER OCCURS EARLIER,
CO-PROVIDER MUST BEGIN PAYING THE
APPROVED RATE FOR ACCESS (WHETHER OR NOT
IT HAS ACTUALLY INSTALLED CONDUIT OR
CABLE) AND SHALL BEGIN CONSTRUCTION ON
THE FACILITY WITHIN SIX (6) MONTHS, OR
RELEASE ITS RESERVATION.
47.4.11 RESERVATION. AFTER ACCEPTANCE BY CO-PROVIDER,
CO-PROVIDER SHALL HAVE SIX (6) MONTHS TO BEGIN
ATTACHMENT AND/OR INSTALLATION OF ITS FACILITIES TO
THE POLES, DUCTS, CONDUIT AND ROW OR REQUEST U S WEST
TO BEGIN MAKE READY OR OTHER CONSTRUCTION ACTIVITIES.
ANY SUCH CONSTRUCTION, INSTALLATION OR MAKE READY BY
CO-PROVIDER SHALL BE COMPLETED BY THE END OF ONE (1)
YEAR AFTER ACCEPTANCE. CO-PROVIDER SHAII NOT BE IN
DEFAULT OF THE 6-MONTH OR 1-YEAR REQUIREMENT ABOVE IF
SUCH DEFAULT IS CAUSED IN ANY WAY BY ANY ACTION,
INACTION OR DELAY ON THE PART OF U S WEST OR ITS
AFFILIATES OR SUBSIDIARIES.
47.4.12 Make Ready. U S WEST shall rearrange, modify and/or
make ready existing poles, ducts, conduit and ROW
where necessary and feasible to provide space for
CO-PROVIDER's requirements. Subject to the
requirements above, the Parties shall endeavor to
mutually agree upon the time frame for the completion
of such work within five (5) days following
CO-Provider's request; provided, however, that any
such work required to be performed by U S WEST shall
be completed within sixty (60) days or a reasonable
period of time based on standard construction
intervals in the industry, unless otherwise agreed by
CO-PROVIDER in writing.
47.4.13 New Construction. After Acceptance, U S WEST shall
complete any new construction, relocation or
installation of poles, ducts, conduits or ROW
required to be performed by U S WEST or any U S WEST
construction, relocation or installation requested by
CO-PROVIDER within a reasonable period of time based
on standard construction intervals in the industry or
sixty (60) days after obtaining all governmental
authority or permits necessary to complete such
construction relocation or installation. If U S WEST
anticipates that construction, relocation or
installation will go beyond standard industry
intervals or the sixty (60) day period, U S WEST
shall immediately notify CO-PROVIDER and the Parties
shall mutually agree on a completion date.
<PAGE>
Part A
47.4.14 CO-PROVIDER shall begin payment for the use of newly
constructed poles, ducts, conduit, and ROW upon
completion of such construction and installation and
confirmation by appropriate testing methods that the
facilities are in a condition ready to operate in
CO-PROVIDER's network or upon use (other than for
testing) by CO-PROVIDER, whichever is earlier.
47.4.15 CO-PROVIDER shall make payment for construction,
relocation, rearrangements, modifications and make
ready in accordance with Section 3.5 of Attachment 1
of this Agreement.
47.4.16 CO-PROVIDER SHALL BEGIN PAYMENT FOR THE USE OF
EXISTING POLES, DUCTS, CONDUIT AND ROW WITHIN NINETY
(90) DAYS FOLLOWING CONFIRMATION. (31)
47.4.17 CO-PROVIDER may, at its option, install its
facilities on poles, ducts, conduit and ROW and use
CO-PROVIDER or CO-PROVIDER designated personnel to
attach its equipment to such US WEST poles, ducts,
conduits and ROW.
47.4.18 If available, US WEST shall provide CO-PROVIDER space
in manholes for racking and storage of cable and
other materials as requested by CO-PROVIDER.
47.4.19 U S WEST shall rearrange, modify and/or make ready
any conduit system or poles with retired cable by
removing such retired cable from conduit systems or
poles to allow for the efficient use of conduit space
and pole space. U S WEST SHALL TAKE ALL REASONABLE
STEPS TO EXPAND ITS FACILITIES TO ACCOMMODATE
CO-PROVIDER'S REQUEST, AND SHALL DO SO IN ACCORDANCE
WITH THE TIME FRAMES SET FORTH IN THIS SECTION
47O(32) Before denying access based on a lack of
capacity, U S WEST must explore potential
accommodations with CO-PROVIDER.
47.4.20 Where U S WEST has innerducts which are not, at that
time, being used or are not reserved as emergency or
maintenance spare in accordance with FCC rules and
regulations, U S WEST shall offer such ducts for
CO-PROVIDER's use.
47.4.21 Where a spare innerduct does not exist, U S WEST
shall allow CO-PROVIDER to install an innerduct in U
S WEST conduit, at CO-PROVIDER's cost and expense. U
S WEST must review and approve any installation of
innerduct in any U S WEST's duct prior to the start
of construction. Such approval shall not be
unreasonably delayed, withheld or conditioned.
CO-PROVIDER shall provide notice to U S WEST of any
work activity not less than twenty-four (24) hours
prior to the start of construction.
47.4.22 Where U S WEST has any ownership or other rights to
ROW to buildings or building complexes, or within
buildings or building complexes, U S WEST shall offer
such ROW to CO-PROVIDER.
(a) Subject to the approval of the building
owner, if required, the right to use any
available space owned or controlled by U S
WEST in the building or building complex to
install CO-PROVIDER equipment and
facilities;
- ----------
(31) MCIm Order, p. 22 at Issue 35.
(32) AT&T Order, Issue 54.
<PAGE>
Part A
(b) Subject to the approval of the building
owner, if required, ingress and egress to
such space; and
(c) Subject to the approval of the building
owner, if required, the right to use
electrical power at parity with U S WEST's
rights to such power.
47.4.23 Whenever U S WEST intends to modify or alter any
poles, ducts, conduits or ROW which contain
CO-PROVIDER's facilities, U S WEST shall provide
written notification of such action to CO-PROVIDER so
that CO-PROVIDER may have a reasonable opportunity to
add to or modify its facilities. CO-PROVIDER shall
advise U S WEST, in writing, of its intentions to add
or modify the facilities within fifteen (15) Business
Days of U S WEST's notification. If CO-PROVIDER adds
to or modifies its facilities according to this
paragraph, CO-PROVIDER shall bear a proportionate
share of the costs incurred by U S WEST in making
such facilities accessible.
47.4.24 CO-PROVIDER shall not be required to bear any of the
costs of rearranging or replacing its facilities, if
such rearrangement or replacement is required as a
result of an additional attachment or the
modification of an existing attachment sought by any
entity other than CO-PROVIDER, including U S WEST.
47.4.25 U S WEST shall maintain the poles, ducts, conduits
and ROW at its sole cost. CO-PROVIDER shall maintain
its own facilities installed within the poles, ducts,
conduits and ROW at its sole cost. In the event of an
emergency, U S WEST shall beg in repair of its
facilities containing CO-PROVIDER's facilities within
a reasonable time frame based on industry standards
or a time frame requested by CO-PROVIDER. If U S WEST
cannot begin repair within the requested time frame,
upon notice and approval of U S WEST, which approval
shall not be unreasonably withheld, CO-PROVIDER may
begin such repairs without the presence of U S WEST
personnel. CO-PROVIDER may climb poles and enter the
manholes, handholds, conduits and equipment spaces
containing U S WEST's facilities in order to perform
such emergency maintenance, but only until such time
as qualified personnel of U S WEST arrives ready to
continue such repairs. For both emergency and
non-emergency repairs, CO-PROVIDER may use spare
innerduct or conduits, including the innerduct or
conduit designated by U S WEST as emergency spare for
maintenance purposes; provided, however, that
CO-PROVIDER may only use such spare conduit or
innerduct for a maximum period of ninety (90) days.
47.4.26 In the event of a relocation necessitated by a
governmental entity exercising the power of eminent
domain, when such relocation is not reimbursable, all
parties shall share pro rata in costs for relocating
the base conduit or poles and shall each pay its own
cost of cable and installation of the facilities in
the newly rebuilt U S WEST poles, ducts, conduits and
ROW.
48. BONA FIDE REQUEST PROCESS FOR FURTHER UNBUNDLING
48.1(33) Any request for Interconnection or access to an unbundled
Network Element not already available via price lists, tariff,
or as described herein shall be treated as a "Request" under
this Section.
- ----------
(33) The MCIm Order, p. 9 at Issue 10, sets forth a stricter time line for U S
WEST to follow in responding to BFRs than does the following agreed-upon
language. The Parties have subsequently agreed to the time frames as set
forth in this Section.
<PAGE>
Part A
48.2 U S WEST shall use the Bona Fide Request ("BFR")process as
described in this Section 48, to determine the technical
feasibility of the requested Interconnection or Network
Element(s) and, for those items found to be technically
feasible, to provide the terms and timetable for providing the
requested items. Additionally, elements, services and
functions which are materially or substantially different from
those services, elements or functions already provided by U S
WEST to itself, its Affiliates, Customers, or end users may,
at the discretion of CO-PROVIDER, be subject to this BFR.
process.
48.3 A Request shall be submitted in writing and, at a minimum,
shall include: (a) a complete and accurate technical
description of each requested Network Element or
Interconnection; (b) the desired interface specifications; (c)
a statement that the Interconnection or Network Element will
be used to provide a Telecommunications Service; (d) the
quantity requested; (e) the location(s) requested; and (f)
whether CO-PROVIDER wants the requested item(s) and terms made
generally available. CO-PROVIDER may designate a Request as
Confidential.
48.4 Within forty-eight (48) hours of receipt of a Request, U S
WEST shall acknowledge receipt of the Request and review such
Request for initial compliance with Subsection 48.3 above. In
its acknowledgment, U S WEST shall advise CO-PROVIDER of any
missing information reasonably necessary to move the Request
to the preliminary analysis described in Subsection 48.5
below.
48.5 Unless otherwise agreed to by the Parties, within thirty (30)
calendar days of its receipt of the Request and all
information necessary to process it, U S WEST shall provide to
CO-PROVIDER a preliminary analysis of the Request. As
reasonably requested by CO-PROVIDER, U S WEST agrees to
provide status updates to CO-PROVIDER. U S WEST will notify
CO-PROVIDER if the quote preparation fee, if any, will exceed
$5,000. CO-PROVIDER will approve the continuation of the
development of the quote prior to U S WEST incurring any
reasonable additional expenses. The preliminary analysis shall
specify whether or not the requested Interconnection or access
to an unbundled Network Element is technically feasible and
otherwise qualifies as a Network Element or Interconnection as
defined under the Act.
48.5.1 IF U S WEST determines during the thirty (30) day
period that a Request is not technically feasible or
that the Request otherwise does not qualify as a
Network Element or Interconnection required to be
provided under the Act, U S WEST shall so advise
CO-PROVIDER as soon as reasonably possible of that
fact, and promptly provide a written report setting
forth the basis for its conclusion but in no case
later than ten (10) calendar days after making such
determination.
48.5.2 If U S WEST determines during the thirty (30) day
period that the Request is technically feasible and
otherwise qualifies under the Act, it shall notify
CO-PROVIDER in writing of such determination, no
later than ten (10) calendar days after making such
determination.
48.5.3 Unless otherwise agreed to by the Parties, as soon as
feasible, but no more than ninety (90) calendar days
after U S WEST notifies CO-PROVIDER that the Request
is technically feasible, U S WEST shall provide to
CO-PROVIDER a Request quote which will include, at a
minimum, a description of each Interconnection and
Network Element, the quantity to be provided, the
installation intervals (both initial and subsequent),
the impact on shared systems software interfaces, the
ordering process changes, the functionality
specifications, any interface specifications, and
either:
<PAGE>
Part A
(a) the applicable rates (recurring and
nonrecurring), including the amortized
development costs, as appropriate pursuant
to Section 48.5.4 below, of the
Interconnection or Network Element; or
(b) the payment for development costs, as
appropriate pursuant to Section 48.5.4
below, of the Interconnection or Network
Element and the applicable rates (recurring
and nonrecurring), excluding the development
costs.
48.5.4 The choice of using either option (a) or (b) above
shall be at U S WEST's sole discretion. A payment for
development cost, however, is appropriate only where
CO-PROVIDER is the only conceivable user of the
functionality (including consideration of U S WEST as
a potential user) or where the requested quantity is
insufficient to provide amortization.
48.6 If U S WEST has used option (a) above in its Request quote,
then, within thirty (30) days of its receipt of the Request
quote, CO-PROVIDER must indicate its nonbinding interest in
purchasing the Interconnection or Network Element at the
stated quantities and rates, cancel it Request, or seek remedy
under the dispute resolution section of this Agreement.
48.7 If U S WEST has used option (b) above in its Request quote,
then, within thirty (30) days of its receipt of the Request
quote, CO-PROVIDER must either agree to pay the development
costs of the Interconnection or Network Element, cancel its
Request, or seek remedy under the dispute resolution section
of this Agreement.
48.8 If U S WEST has used option (b) in its Request quote and
CO-PROVIDER has accepted the quote, CO-PROVIDER may cancel the
Request at any time, but will pay U S WEST's reasonable
development costs of the Interconnection or Network Element up
to the date of cancellation.
48.9 US WEST wiII use reasonable efforts to determine the technical
feasibility and conformance with the Act of the Request within
the first thirty-two (32) days of receiving the Request. In
the event U S WEST has used option (b) above in its Request
quote and U S WEST later determines that the Interconnection
or Network Element requested in the Request is not technically
feasible or otherwise does not qualify under the Act, U S WEST
shall notify CO-PROVIDER within ten (10) Business Days of
making such determination and CO-PROVIDER shall not owe any
compensation to U S WEST in connection with the Request. Any
quotation preparation fees or development costs paid by
CO-PROVIDER to the time of such notification shall be refunded
by U S WEST.
48.10 To the extent possible, U S WEST will utilize information from
previously developed BFRs to address similar arrangements in
order to shorten the response times for the currently
requested BFR. In the event CO-PROVIDER has submitted a
Request for an Interconnection or a Network Element and U S
WEST determines in accordance with the provisions of this
Section 48 that the Request is technically feasible, the
Parties agree that CO-PROVIDER's subsequent request or order
for the identical type of Interconnection or Network Element
shall not be subject to the BFR process. To the extent U S
WEST has deployed an identical Network Element under a
previous BFR, a subsequent BFR is not required. For purposes
of this Section 48.10, an "identical" request shall be one
that is materially identical to a previous request with
respect to the information provided pursuant to Subsections
(a) through (e) of Section 48.3 above.
48.11 In the event of a dispute under this Section 48, the Parties
agree to seek expedited Commission resolution of the dispute,
to be completed within twenty (20) days of
<PAGE>
Part A
U S WEST's response denying CO-PROVIDER's BFR, and in no event
more than thirty (30) days after the filing of CO-PROVIDER's
petition. Alternatively, the Parties may mutually agree to
resolve any disputes under this section through the dispute
resolution process pursuant to Section 27, Part A of this
Agreement.
48.12 All time intervals within which a response is required from
one Party to another under this Section 48 are maximum time
intervals. The Parties agree that they will provide all
responses to the other Party as soon as the Party has the
information and analysis required to respond, even if the time
interval stated herein for a response is not over.
49. AUDIT PROCESS
49.1 As used herein, "Audit" shall mean a comprehensive review of
services performed under this Agreement. Either Party (the
"Requesting Party") may perform up to three (3) Audits per
12-month period commencing with the Effective Date.
49.2 Upon thirty (30) days' written notice by the Requesting Party
to the other Party (the "Audited Party"), the Requesting Party
shall have the right, through its authorized representative,
to make an Audit, during normal business hours, of any
records, accounts and processes which contain information
related to the services provided and performance standards
agreed to under this Agreement. Within the above-described
30-day period, the Parties shall reasonably agree upon the
scope of the Audit, the documents and processes to be
reviewed, and the time, place and manner in which the Audit
shall be performed. The Audited Party agrees to provide Audit
support, including appropriate access to and use of the
Audited Party's facilities (e.g., conference rooms,
telephones, copying machines).
49.3 Each Party shall bear its own expenses in connection with the
conduct of the Audit. The reasonable cost of special data
extractions required by the Requesting Party to conduct the
Audit will be paid for by the Requesting Party. For purposes
of this Section 49.3, a "Special Data Extraction" shall mean
the creation of an output record or informational report (from
existing data files) that is not created in the normal course
of business. If any program is developed to the Requesting
Party's specifications and at the Requesting Party's expense,
the Requesting Party shall specify at the time of request
whether the program is to be retained by the Audited Party for
reuse for any subsequent Audit. Notwithstanding the foregoing,
the Audited Party shall pay all of the Requesting Party's
external expenses (including, without limitation, the fees of
any independent auditor), in the event an Audit results in an
adjustment in the charges or in any invoice paid or payable by
the Requesting Party hereunder in an amount that is, on an
annualized basis, more than the greater of (a) one percent
(1%) of the amount in dispute or (b) $10,000.
49.4 Adjustments, credits or payments shall be made and any
corrective action shall commence within thirty (30) days from
the Audited Party's receipt of the final audit report to
compensate for any errors or omissions which are disclosed by
such Audit and are agreed to by the Parties. The highest
interest rate allowable by law for commercial transactions
shall be assessed and shall be computed by compounding daily
from the time of the original due date of the amount of
dispute.
49.5 Neither such right to examine and audit nor the right to
receive an adjustment shall be affected by any statement to
the contrary appearing on checks or otherwise.
49.6 This Section 49 shall survive expiration or termination of
this Agreement for a period of two (2) years after expiration
or termination of this Agreement.
<PAGE>
Part A
49.7 All transactions under this Agreement which are over
thirty-six (36) months old are no longer subject to Audit.
49.8 All information received or reviewed by the Requesting Party
or the independent auditor in connection with the Audit is to
be considered Proprietary Information as defined by this
Agreement. The Audited Party reserves the right to require any
non-employee who is involved directly or indirectly in any
Audit or the resolution of its findings as described above to
execute a nondisclosure agreement satisfactory to the Audited
Party. To the extent an Audit involves access to information
of third parties, the Audited Party will aggregate such
competitors' data before release to the Requesting Party, to
insure the protection of the proprietary nature of information
of other competitors. To the extent a competitor is an
Affiliate of the Audited Party (including itself and its
subsidiaries), the Parties shall be allowed to examine such
Affiliate's disaggregated data, as required by reasonable
needs of the Audit.
49.9 AN "EXAMINATION" SHALL MEAN AN INQUIRY REASONABLY REQUESTED BY
EITHER PARTY INTO A SPECIFIC ELEMENT OF OR PROCESS WHERE THE
REQUESTING PARTY RAISES A DISPUTE CONCERNING SERVICES
PERFORMED BY THE OTHER PARTY UNDER THIS AGREEMENT AND SUCH
DISPUTE HAS NOT BEEN RESOLVED THROUGH THE ESCALATION PROCESS
DESCRIBED IN THIS AGREEMENT. ONLY THAT INFORMATION THAT IS
NECESSARY TO RESOLVE THE DISPUTE IN ISSUE MUST BE PROVIDED IN
THE COURSE OF AN EXAMINATION AND THE TOTAL TIME INVOLVED IN AN
EXAMINATION FOR EACH PARTY MAY NOT EXCEED THREE (3) PEOPLE FOR
THREE (3) DAYS. APPROPRIATE PROVISIONS OF THIS SECTION 49 THAT
APPLY TO AUDITS SHALL ALSO APPLY TO EXAMINATIONS, EXCEPT THAT
EITHER PARTY MAY CONDUCT ONLY A TOTAL OF NINE (9) EXAMINATIONS
AND AUDITS PER YEAR, WITH A MAXIMUM OF THREE (3) AUDITS PER
YEAR.(34)
50. MISCELLANEOUS SERVICES
50.1 Basic 911 and E91 1 General Requirements
50.1.1 Basic 911 and E911 provides a caller access to the
appropriate emergency service bureau by dialing a
3-digit universal telephone number (911). Basic 911
and E911 access from Local Switching shall be
provided to CO-PROVIDER in accordance with the
following:
50.1.2 Each Party will be responsible for those portions of
the 911 System for which it has reasonable control,
including any necessary maintenance to each Party's
portion of the 911 System.
50.1.3 E911 shall provide additional routing flexibility for
911 calls. E911 shall use Customer data, contained in
the Automatic Location Identification/Data Management
System ("ALI/DMS"), to determine to which Public
Safety Answering Point (PSAP) to route the call.
50.1.4 If available in the U S WEST network, U S WEST shall
offer a third type of 911 service, S911. All
requirements for E911 also apply to S911 with the
exception of the type of signaling used on the
interconnection trunks from the local switch to the
E911 Tandem.
- ----------
(34) Arizona Bench Order, May 29, 1997 Hearing, p.1613.
<PAGE>
Part A
50.1.5 Basic 911 and E911 functions provided to CO-PROVIDER
shaII be at least at parity with the support and
services that U S WEST provides to its Customers for
such similar functionality.
50.1.6 Basic 911 and E911 access from Local Switching shall
be provided to CO-PROVIDER in accordance with the
following:
50.1.6.1 U S WEST shall conform to all state
regulations concerning emergency
services.
50.1.6.2 For E911 provided to resold lines or in
association with unbundled switching, U S
WEST shall use its service order process
to update and maintain Customer
information in the ALI/DMS data base.
Through this process, U S WEST shall
provide and validate Customer information
resident or entered into the ALI/DMS data
base.
50.1.7 US WEST shall provide for overflow 911 traffic
consistent with US WEST policy and procedure.
50.1.8 Basic 911 and E91 1 access from the CO-PROVIDER local
switch shall be provided to CO-PROVIDER in accordance
with the following:
50.1.8.1 If required by CO-PROVIDER, U S WEST
shall interconnect direct trunks from the
CO-PROVIDER network to the E911 Tandem
for connection to the PSAP. Such trunks
to the E91 1 Tandem may alternatively be
provided by CO-PROVIDER.
50.1.8.2 In government jurisdictions where U S
WEST has obligations under existing
agreements as the primary provider of the
911 System to the county, CO-PROVIDER
shall participate in the provision of the
911 System as follows:
(a) Each Party shall be responsible for
those portions of the 911 System
for which it has control, including
any necessary maintenance to each
Party's portion of the 911 System.
(b) U S WEST shall be responsible for
maintaining the E-91 1 database.
50.1.8.3 If a third party is the primary service
provider to a government agency,
CO-PROVIDER shall negotiate separately
with such third party with regard to the
provision of 911 service to the agency.
All relations between such third party
and CO-PROVIDER are totally separate from
this Agreement and U S WEST makes no
representations on behalf of the third
party.
50.1.8.4 If CO-PROVIDER or an Affiliate is the
primary service provider to a government
agency, CO-PROVIDER and U S WEST shall
negotiate the specific provisions
necessary for providing 911 service to
the agency and shall include such
provisions in an amendment to this
Agreement.
<PAGE>
Part A
50.1.8.5 Interconnection and database access shall
be priced as specified in Attachment 1 to
this Agreement or at any rate charged to
other interconnected carriers, whichever
is lower.
50.1.8.6 CO-PROVIDER will separately negotiate
with each county regarding the collection
and reimbursement to the county of
applicable Customer taxes for 911
service.
50.1.8.7 U S WEST shall comply with established,
competitively neutral intervals for
installation of facilities, including any
collocation facilities, diversity
requirements, etc.
50.1.8.8 In a resale situation, where it may be
appropriate for U S WEST to update the
ALI database, U S WEST shall update such
database with CO-PROVIDER data in an
interval no less than is experienced by
U S WEST Customers, or than for other
carriers, whichever is faster, at no
additional cost.
50.1.9 The following are Basic 911 and E911 Database
Requirements:
50.1.9.1 The ALI database shall be managed by U S
WEST, but is the property of U S WEST and
any participating telephone company and
CLEC for those records provided by the
company.
50.1.9.2 US WEST, or its agent, will be
responsible for maintaining the E-911
Data Base. U S WEST, or its agent, will
provide a copy of the Master Street
Address Guide ("MSAG"), and periodic
updates, to CO-PROVIDER.
50.1.9.3 Copies of the MSAG shall be provided
within twenty-one (21) calendar days from
the time requested and shall be provided
on diskette, magnetic tape, or in a
format suitable for use with desktop
computers.
50.1.9.4 CO-PROVIDER assumes all responsibility
for the accuracy of the data that
CO-PROVIDER provides to U S WEST for MSAG
preparation and E-91 1 Database
operation.
50.1.9.5 CO-PROVIDER shall be solely
responsible for providing CO-PROVIDER
database records to U S WEST for
inclusion in U S WEST's ALI database
on a timely basis.
50.1.9.6 CO-PROVIDER will provide end user data to
the U S WEST ALI database that are Master
Street Address Guide (MSAG) valid.
50.1.9.7 CO-PROVIDER will update its end user
records provided to the U S WEST ALI
database to agree with the 911 MSAG
standards for its service areas.
50.1.9.8 U S WEST and CO-PROVIDER shall arrange
for the automated input and periodic
updating of the E911 database
information related to CO-PROVIDER end
users for resold lines in accordance with
Section 10.1 of Attachment 2 to this
Agreement. CO-PROVIDER may request,
through the BFR process, similar
arrangements for CO-PROVIDER customers
served on a non-resale basis. U S WEST
will furnish CO-
<PAGE>
Part A
PROVIDER any variations to NENA
recommendations required for ALI database
input. The cost of magnetic tape transfer
shall be borne by CO-PROVIDER.
50.1.9.9 U S WEST and CO-PROVIDER shall arrange
for the automated input and periodic
updating of the E91 1 database
information related to CO-PROVIDER end
users. For resold services, U S WEST
shall work cooperatively with CO-PROVIDER
to ensure the accuracy of the data
transfer by verifying it against the
Master Street Address Guide (MSAG). For
CO-PROVIDER's customers served by
unbundled Network Elements or through
CO-PROVIDER's own facilities, CO-PROVIDER
shall ensure the accuracy of its 911 data
by verifying it against the MSAG.
50.1.9.10 CO-PROVIDER shall assign an E911 database
coordinator charged with the
responsibility of forwarding CO-PROVIDER
end user ALI record information to U S
WEST or via a third-party entity, charged
with the responsibility of ALI record
transfer. CO-PROVIDER assumes all
responsibility for the accuracy of the
data that CO-PROVIDER provides to U S
WEST.
50.1.9.11 The Parties shall maintain a single point
of contact to coordinate all E911
activities under this Agreement.
50.1.9.12 For resold services, CO-PROVIDER shall
provide information on new Customers to
U S WEST within one (1) Business Day of
the order completion. U S WEST shall
update the database within two (2)
Business Days of receiving the data from
CO-PROVIDER. If U S WEST detects an error
in the CO-PROVIDER provided data, the
data shall be returned to CO-PROVIDER
within two (2) Business Days from when it
was provided to U S WEST. CO-PROVIDER
shall respond to requests from U S WEST
to make corrections to database record
errors by uploading corrected records
within two (2) business days. Manual
entry shall be allowed only in the event
that the system is not functioning
properly. CO-PROVIDER may request,
through the BFR process, similar services
from U S WEST for their customers who are
served on a non-resale basis.
50.1.9.13 The Parties will cooperate to implement
the adoption of a Carrier Code (NENA
standard five-character field) on all ALI
records received from CO-PROVIDER, when
those standards, NENA-02-OON, are adopted
by the industry standards process. U S
WEST will furnish CO-PROVIDER any
variations from NENA recommendations
required for ALI database input. The
Carrier Code will be used to identify the
carrier of record in INP configurations.
50.1.9.14 CO-PROVIDER will provide end user data to
the U S WEST ALI database utilizing
NENA-02-001 Recommended Formats For Data
Exchange, and Recommended Standard For
Street Thoroughfare Abbreviations and
Protocols For Data Exchange and Data
Quality utilizing NENA Recommended
Formats for Data Exchange document dated
June 1993.
<PAGE>
Part A
50.1.9.15 U S WEST shall identify which ALI
databases cover which states, counties or
parts thereof, and identify and
communicate a point of contact for each.
50.1.9.16 U S WEST will provide CO-PROVIDER with
the identification of the U S WEST 911
controlling office that serves each
geographic area served by CO-PROVIDER.
50.1.9.17 U S WEST shall provide to CO-PROVIDER,
for CO-PROVIDER Customers, E911/911 call
routing to the appropriate Public Safety
Answering Point ("PSAP") for resold
lines. U S WEST shall provide and
validate CO-PROVIDER Customer information
to the PSAP in the same fashion as it
does for its own Customers. U S WEST
shall use its service order process to
update and maintain, on the same schedule
that it uses for its end users, the
CO-PROVIDER Customer service information
in the ALI/DMS used to support E91 1/911
services. CO-PROVIDER may request,
through the BFR process, similar services
from U S WEST for their customers who are
served on a non-resale basis.
50.1.9.18 CO-PROVIDER exchanges to be included in
U S WEST's E911 Database will be
indicated via written notice and will
not require an amendment to this
Agreement.
50.1.10 The following are Basic 9lI and E911 Network
Requirements:
50.1.10.1 U S WEST, at CO-PROVlDER option, shall
provide a minimum of two (2) E911 trunks
per jurisdictional area, or that quantity
which will maintain P0I transmission
grade of service, or the level of service
provided by U S WEST to itself, whichever
is the higher grade of service. These
trunks will be dedicated to routing 911
calls from CO-PROVIDER switch to a U S
WEST E911 tandem.
50.1.10.2 U S WEST shall provide CO-PROVIDER a data
link to the ALI/DMS database or permit
CO-PROVIDER to provide its own data link
to the ALI/DMS database. U S WEST shall
provide error reports from the ALI/DMS
database to CO-PROVIDER immediately after
CO-PROVIDER inputs information into the
ALI/DMS database. Alternately,
CO-PROVIDER may utilize U S WEST or a
third party entity to enter Customer
information into the database on a demand
basis, and validate Customer information
on a demand basis.
50.1.10.3 U S WEST shall provide the selective
routing of E911 calls received from
CO-PROVIDER switching office. This
includes the ability to receive the ANI
of the CO-PROVIDER Customer, selectively
route the call to the appropriate PSAP,
and forward the Customer's ANI to the
PSAP. U S WEST shall provide CO-PROVIDER
with the appropriate CLLI codes and
specifications regarding the tandem
serving area associated addresses and
meet points in the network.
50.1.10.4 Copies of E911 Tandem Boundary Maps shall
be available to CO-PROVIDER. Each map
shows the areas served by that E91
tandem. The map provides CO-PROVIDER the
information necessary to set up its
network to route E911 callers to the
correct E911 tandem.
<PAGE>
Part A
50.1.10.5 CO-PROVIDER shall ensure that its switch
provides an eight-digit ANI consisting of
an information digit and the seven-digit
exchange code. CO-PROVIDER shall also
ensure that its switch provides the line
number of the calling station. In the
event of a change in industry standards,
the Parties shall cooperate to
incorporate the changed standards in
their respective networks.
50.1.10.6 Each ALI discrepancy report shall be
jointly researched by U S WEST and
CO-PROVIDER. Corrective action shall be
taken immediately by the responsible
party.
50.1.10.7 Technical specifications for E911 network
interface are available through U S WEST
technical publication 77338. Technical
specifications for database loading and
maintenance are available through the
third party database manager-- SCC.
50.1.10.8 U S WEST shall begin restoration of E911
and/or E911 trunking facilities
immediately upon notification of failure
or outage. U S WEST must provide priority
restoration of trunks or networks outages
on the same terms/conditions it provides
itself and without the imposition of
Telecommunications Service Priority
(TSP).
50.1.10.9 U S WEST shall identify any special
Operator-assisted calling requirements to
support 911.
50.1.10.10 Trunking shall be arranged to minimize
the likelihood of central office
isolation due to cable cuts or other
equipment failures. There will be an
alternate means of transmitting a 911
call to a PSAP in the event of failures.
50.1.10.11 Circuits shall have interoffice, loop and
carrier system diversity when such
diversity can be achieved using existing
facilities. Circuits will be divided as
equally as possible across available
carrier systems. Diversity will be
maintained or upgraded to utilize the
highest level of diversity available in
the network.
50.1.10.12 Equipment and circuits used for 911 shall
be monitored at all times. Monitoring of
circuits shall be done to the individual
circuit level. Monitoring shall be
conducted by U S WEST for trunks between
the tandem and all associated PSAPs.
50.1.10.13 Repair service shall begin immediately
upon receipt of a report of a
malfunction. Repair service includes
testing and diagnostic service from a
remote location, dispatch of or in-person
visit(s) of personnel. Technicians will
be dispatched without delay.
50.1.10.14 All 911 trunks must adhere to the
Americans with Disabilities Act
requirements.
50.1.10.15 The Parties will cooperate in the routing
of 911 traffic in those instances where
the ALI/ANI information is not available
on a particular 911 call.
<PAGE>
Part A
50.1.10.16 CO-PROVIDER is responsible for network
management of its network components in
compliance with the Network Reliability
Council Recommendations and meeting the
network standard of U S WEST for the 911
call delivery.
50.1.11 Basic 911 and E911 Additional Requirements
50.1.11.1 All CO-PROVIDER lines that have been
ported via INP shall reach the correct
PSAP when 911 is dialed. U S WEST shall
send both the ported number and the
CO-PROVIDER number (if both are received
from CO-PROVIDER). The PSAP attendant
shall see both numbers where the PSAP is
using a standard ALI display screen and
the PSAP extracts both numbers from the
data that is sent.
50.1.11.2 US WEST shall work with the appropriate
government agency to provide CO-PROVIDER
the ten-digit POTS number of each PSAP
which sub-tends each U S WEST E91 1
Tandem to which CO-PROVIDER is
interconnected.
50.1.11.3 U S WEST will provide CO-PROVIDER with
the ten-digit telephone numbers of each
PSAP agency, for which U S WEST provides
the 911 function, to be used by
CO-PROVIDER operators for handling
emergency calls in those instances where
the CO-PROVIDER Customer dials "0"
instead of "911."
50.1.11.4 CO-PROVIDER will provide U S WEST with
the ten-digit telephone numbers of each
PSAP agency, for which CO-PROVIDER
provides the 911 function, to be used by
U S WEST operators for handling emergency
calls in those instances where the U S
WEST Customer dials "0" instead of "911."
50.1.11.5 U S WEST shall notify CO-PROVIDER
forty-eight (48) hours in advance of any
scheduled testing or maintenance
affecting CO-PROVIDER 911 service, and
provide notification as soon as possible
of any unscheduled outage affecting
CO-PROVIDER 911 service.
50.1.11.6 CO-PROVIDER shall be responsible for
reporting all errors, defects and
malfunctions to U S WEST. U S WEST shall
provide CO-PROVIDER with the point of
contact for reporting errors, defects,
and malfunctions in the service and shall
also provide escalation contacts.
50.1.11.7 CO-PROVIDER may enter into subcontracts
with third parties, including CO-PROVIDER
affiliates, for the performance of any of
CO-PROVIDER duties and obligations stated
herein.
50.1.11.8 U S WEST shall provide sufficient
planning information regarding
anticipated moves to SS7 signaling for
the next twelve (12) months.
50.1.11.9 U S WEST shall provide notification of
any pending tandem moves, NPA splits, or
scheduled maintenance outages, with
enough time to react.
50.1.11.10 U S WEST shall provide "reverse ALI"
inquiries by public safety entities,
consistent with U S WEST's practices and
procedures.
<PAGE>
Part A
50.1.11.11 U S WEST shall manage NPA splits by
populating the ALI database with the
appropriate new NPA codes, consistent
with U S WEST's practices and procedures
for resold services.
50.1.11.12 US WEST must provide the ability for
CO-PROVIDER to update 911 database with
end user information for lines that have
been ported via INP or NP.
50.1.11.13 The data in the ALI database shall be
managed by US WEST but is the property of
U S WEST and all participating telephone
companies.
50.1.12 Performance Criteria. E-91 1 Database accuracy shall
be as set forth below:
50.1.12.1 Accuracy of ALI (Automatic Location
Identification) data submitted by
CO-PROVIDER to U S WEST will be measured
jointly by the PSAPs and U S WEST. All
such reports shall be forwarded to
CO-PROVIDER by U S WEST and will indicate
incidents when incorrect or no ALI data
is displayed. A report regarding any
inaccuracy shall be prepared by U S WEST.
50.1.12.2 Each discrepancy report will be jointly
researched by U S WEST and CO-PROVIDER.
Corrective action will be taken
immediately by the responsible party.
50.1.12.3 Each party will be responsible for the
accuracy of the Customer records it
provides.
50.2 DIRECTORY ASSISTANCE SERVICE
50.2.1 U S WEST shall provide for the routing of directory
assistance calls (including, but not limited to, 411,
555-1212, NPA-555-1212) dialed by CO-PROVIDER
Customers directly to either the CO-PROVIDER
Directory Assistance service platform or U S WEST
Directory Assistance service platform as specified by
CO-PROVIDER.
50.2.2 CO-PROVIDER Customers shall be provided the
capability by U S WEST to dial the same telephone
numbers for access to CO-PROVIDER Directory
Assistance that U S WEST Customers use to access U S
WEST Directory Assistance.
50.2.3 U S WEST shall provide Directory Assistance functions
and services to CO-PROVIDER for its Customers as
described below until, at CO-PROVIDER's discretion,
U S WEST routes calls to the CO-PROVIDER Directory
Assistance Services platform.
50.2.3.1 U S WEST agrees to provide CO-PROVIDER
Customers with the same Directory
Assistance service available to U S WEST
Customers.
50.2.3.2 U S WEST shall notify CO-PROVIDER in
advance of any changes or enhancements to
its Directory Assistance service, and
shall make available such service
enhancements on a non-discriminatory
basis to CO-PROVIDER.
50.2.3.3 U S WEST SHALL PROVIDE DIRECTORY
ASSISTANCE to CO-PROVIDER Customers in
accordance with U S WEST's internal
operating
<PAGE>
Part A
procedures and standards, which shall, at
a minimum, comply with accepted
professional and industry standards.
50.2.3.4 U S WEST shall provide CO-PROVIDER with
the same level of support for the
provisioning of Directory Assistance as
U S WEST provides itself.
50.2.3.5 Service levels shall comply, at a
minimum, with Commission requirements for
Directory Assistance.
50.2.3.6 U S WEST AGREES TO maintain an adequate
operator work force based on a review and
analysis of actual call attempts and
abandonment rate.
50.2.3.7 SUBJECT TO THE APPLICABLE PROVISIONS OF
THE APPLICABLE COLLECTIVE U S WEST
BARGAINING AGREEMENTS, CO-PROVIDER SHALL
BE PERMITTED TO PARTICIPATE IN ALL CALL
MONITORING ACTIVITIES AVAILABLE TO U S
WEST AND TO REMOTE CALL MONITOR AS
CUSTOMARILY PRACTICED BY THE OUTSOURCE
CUSTOMERS OF CALL CENTERS.(35)
50.2.3.8 U S WEST shall provide the following
minimum Directory Assistance capabilities
to CO-PROVIDER Customers:
(a) A maximum of two (2) Customer
listings and/or addresses or U S
WEST parity per CO-PROVIDER
Customer request.
(b) Name and address to CO-PROVIDER
Customers upon request, except for
unlisted numbers, in the same
states where such information is
provided to U S WEST Customers.
(c) For CO-PROVIDER customers who are
served exclusively through resold
U S WEST retail services,
CO-PROVIDER may resell U S WEST's
Directory Assistance call
completion services to the extent
U S WEST offers call Directory
Assistance completion to its own
end users. For CO-PROVIDER
customers who are served from an
CO-PROVIDER switch, CO-PROVIDER may
request Directory Assistance call
completion services through the BFR
process Such BFR process shall
address the identification of the
CO-PROVIDER end user at the U S
WEST Directory Assistance platform
for purposes of routing and billing
of intraLATA and interLATA toll
calls.
(d) The U S WEST mechanized interface
with the U S WEST subscriber
listing database is not available
for CO-PROVIDER as of the Effective
Date of this Agreement. When the
mechanized interface is available,
U S WEST will populate the
Directory Assistance Database in
the same manner and in the same
time frame as for U S WEST
Customers.
(e) Any information provided by a
Directory Assistance Automatic
Response Unit (ARU) shall be
repeated the same number of
- ----------
(35) Arizona Bench Order, May 29, 1997 Hearing, pp. 1613-1614.
<PAGE>
Part A
times for CO-PROVIDER Customers as
for U S WEST Customers.
(f) When an CO-PROVIDER Customer served
on a resale or unbundled switching
basis requests a U S WEST directory
assistance operator to provide
instant credit on a directory
assistance call, the U S WEST
directory assistance operator shall
inform the CO-PROVIDER Customer to
call an 800 number for CO-PROVIDER
Customer service to request a
credit. The accurate identification
of CO-PROVIDER as the customer's
local service provider by the U S
WEST directory assistance operator
requires the use of separate
CO-PROVIDER trunks to the Directory
Assistance Platform.
50.2.3.9 For resold lines and unbundled switching,
U S WEST shall provide data regarding
billable events as requested by
CO-PROVIDER.
50.2.3.10 U S WEST agrees to (a) provide to
CO-PROVIDER operators, on line access to
U S WEST's directory assistance database
equivalent to the access provided to U S
WEST operators; (b) allow CO-PROVIDER or
an CO-PROVIDER designated operator bureau
to license U S WEST's subscriber listings
database on terms and conditions
equivalent to the terms and conditions
upon which U S WEST utilizes such
databases; and (c) in conjunction with
branded or unbranded directory assistance
services pursuant to Section 8 of this
Part A, provide caller-optional directory
assistance call completion service which
is comparable in every way to the
directory assistance call completion
service U S WEST makes available to its
own users. CO-PROVIDER may, at its
option, request U S WEST not to provide
call completion services to CO-PROVIDER.
50.2.3.11 In addition to charges for directory
assistance, when call completion for an
intraLATA toll call is requested, the
applicable charge for the completion of
such intraLATA toll call will apply.
50.3 OPERATOR SERVICES
50.3.1 U S WEST shall provide, for the routing of local
Operator Services calls (including, but not limited
to, 0+, 0-) dialed by CO-PROVIDER Customers directly
to either the CO-PROVIDER operator service platform
or U S WEST operator service platform as specified by
CO-PROVIDER.
50.3.2 CO-PROVIDER Customers shall be provided the
capability by U S WEST to dial the same telephone
numbers to access CO-PROVIDER operator service that
U S WEST Customers dial to access U S WEST operator
service.
50.3.3 U S WEST shall provide Operator Services to
CO-PROVIDER as described below until, at
CO-PROVIDER's discretion, U S WEST routes calls to
the CO-PROVIDER local Operator Services platform.
50.3.3.1 U S WEST AGREES TO PROVIDE CO-PROVIDER
CUSTOMERS THE same Operator Services
available to U S WEST Customers. U S WEST
shall make available its service
enhancements on a non-discriminatory
basis.
<PAGE>
Part A
50.3.3.2 U S WEST shall provide the following
minimum Operator Service capabilities to
CO-PROVIDER Customers:
(a) U S WEST shall complete 0+ and 0-
dialed local calls, including
0-Coin, Automatic Coin Telephone
Service (ACTS) and the completion
of coin calls, the collection of
coins, and the provision of coin
rates.
(b) U S WEST shall complete 0+
intraLATA and, when offered,
interLATA toll calls. The Parties
will cooperate to develop industry
standards to include the end user's
PlC in operator services signaling
and the development of associated
routing procedures.
(c) U S WEST shall complete calls for
CO-PROVIDER's Customers that are
billed to calling cards and other
commercial cards on the same
basis as provided to U S WEST own
customers and CO-PROVIDER shall
designate to U S WEST the
acceptable types of special
billing.
(d) U S WEST shall complete
person-to-person calls.
(e) U S WEST shall complete collect
calls.
(f) U S WEST shall provide the
capability for callers to bill to a
third party and complete such
calls.
(g) U S WEST shall complete
station-to-station calls.
(h) U S WEST shall process emergency
calls.
(i) U S WEST shall process Busy Line
Verify and Busy Line Interrupt
requests.
(j) U S WEST shall process emergency
call trace in accordance with its
normal and customary procedures.
(k) U S WEST shall process
operator-assisted directory
assistance calls.
(l) U S WEST operators shall provide
CO-PROVIDER Customers with long
distance rate quotes to the extent
U S WEST provides such rate quotes
to its own end users. Based on
technology available as of the
Effective Date of this Agreement,
the provision of rate quotes to
CO-PROVIDER Customers requires a
separate CO-PROVIDER trunk group to
the U S WEST operator services
platform to identify the caller as
an CO-PROVIDER Customer.
(m) U S WEST operators shall provide
CO-PROVIDER Customers with time and
charges to the extent U S WEST
provides such time and charges to
its own end users. Based on
technology available as of the
Effective Date of this Agreement,
the
<PAGE>
Part A
provision of time and charges to
CO-PROVIDER Customers requires a
separate CO-PROVIDER trunk groi.~
to the U S WEST operator services
platform to identify the caller as
an CO-PROVIDER Customer.
(n) U S WEST shall route 0- traffic to
a "live" operator team.
(O)(36) AT THE ELECTION OF CO-PROVIDER,
WHEN AN CO-PROVIDER CUSTOMER
REQUESTS A U S WEST OPERATOR TO
PROVIDE INSTANT CREDIT ON AN
OPERATOR SERVICES CALL, THE U S
WEST OPERATOR SHALL EITHER INFORM
THE CO-PROVLDER CUSTOMER THAT A
CREDIT WILL BE GRANTED, OR SHALL
INFORM THE CO-PROVIDER CUSTOMER TO
CALL A TOLL FREE NUMBER FOR
CO-PROVIDER CUSTOMER SERVICE TO
REQUEST A CREDIT. U S WEST SHALL
PROVIDE ONE (1) TOLL FREE NUMBER
FOR BUSINESS CUSTOMERS AND ANOTHER
FOR RESIDENTIAL CUSTOMERS.
(i) FOR RESOLD OPERATOR
SERVICES, U S WEST SHALL
CREDIT THE CO-PROVIDER
ACCOUNT IN ACCORDANCE WITH
THE SAME CREDIT PROCEDURES
WHICH ARE APPLIED TO U S
WEST'S OWN RETAIL
CUSTOMERS;
(ii) FOR OPERATOR SERVICES
OFFERED AS AN UNBUNDLED
NETWORK ELEMENT, U S WEST
SHALL CREDIT THE
CO-PROVIDER ACCOUNT FOR 50
PERCENT OF THE CHARGES,
EXCEPT WHERE A GREATER
CREDIT IS REQUIRED BY THE
COMMISSION'S SERVICE
QUALITY RULES AND
REGULATIONS.
(p) U S WEST shall provide caller
assistance for the disabled in the
same manner as provided to U S WEST
Customers.
(q) When available to U S WEST end
users, U S WEST shall provide
operator-assisted conference
calling to CO-PROVIDER.
50.3.3 U S WEST shall exercise at least the same level of
fraud control in providing Operator Service to
CO-PROVIDER that U S WEST provides for its own
operator service, where the CO-PROVIDER fraud control
data is in U S WEST's LIDB database.
50.3.4 U S WEST SHALL PERFORM billed number screening when
handling collect, third party, and calling card
calls, both for station to station and person to
person call types.
50.3.5 SUBJECT TO THE APPLICABLE PROVISIONS OF THE
APPLICABLE COLLECTIVE U S WEST BARGAINING AGREEMENTS,
CO-PROVIDER SHALL BE PERMITTED TO PARTICIPATE IN ALL
CALL MONITORING ACTIVITIES AVAILABLE TO U S WEST AND
TO REMOTE CALL MONITOR AS CUSTOMARILY PRACTICED BY
THE OUTSOURCE CUSTOMERS OF CALL CENTERS.(37)
50.3.6 U S WEST shall direct Customer account and other
similar inquiries to the Customer service center
designated by CO-PROVIDER.
- ----------
(36) Procedural Order, July 14,1997, page 11-12.
(37) Arizona Bench Order, May 29, 1997 Hearing, p. 1617.
<PAGE>
Part A
50.3.7 U S WEST shall provide an electronic feed of Customer
call records in "EMR" format to CO-PROVIDER in
accordance with the time schedule mutually agreed
between the Parties.
50.3.8 U S WEST shall update the Line Information Data Base
("LIDB") for CO-PROVIDER Customers. Additionally, U S
WEST must provide access to LIDB for validation of
collect, third party billed, and LEC card billed
calls.
50.3.9 Where INP is deployed and when a BLV/BLI request for
a ported number is directed to a U S WEST operator
and the query is not successful (i.e., the request
yields an abnormal result), CO-PROVIDER may request,
through the BFR process, that the operator confirm
whether the number has been ported and direct the
request to the appropriate operator.
50.3.10 U S WEST shall allow CO-PROVIDER to order
provisioning of Telephone Line Number ("TLN") calling
cards and BNS,, in its LIDB, for ported numbers, as
specified by CO-PROVIDER. U S WEST shall continue to
allow CO-PROVIDER access to its LIDB.
50.3.11 Toll and Assistance ("T/A") refers to functions
Customers associate with the "0" operator. Subject to
availability and capacity, access may be provided via
operator services trunks purchased from U S WEST or
provided by CO-PROVIDER via collocation arrangements
to route calls to CO-PROVIDER's platform.
50.3.12 Automated Branding - ability to announce the
carrier's name to the Customer during the
introduction of the call.
50.3.13 Interconnection to the U S WEST Toll and Assistance
Operator Services from an end office to U S WEST T/A
is technically feasible at least at three (3)
distinct points on the trunk side of the switch. The
first connection point is an operator services trunk
connected directly to the T/A host switch. The second
connection point is an operator services trunk
connected directly to a remote T/A switch. The third
connection point is an operator services trunk
connected to a remote access tandem with operator
concentration capabilities.
50.3.14 All trunk interconnections will be digital.
50.3.15 The technical requirements of operator services type
trunks and the circuits to connect the operator
positions to the host are covered in the Operator
Services Switching Generic Requirements ("OSSGR")
Bellcore Document number FR-NWT-000271.
50.3.16 BUSY LINE VERIFY AND INTERRUPT
50.3.16.1 At the request of CO-PROVIDER operators
or Customers, U S WEST operators will
perform Busy Line Verify ("BLV") and/or
Busy Line Interrupt ("BLI") operations
where such capacity exists.
50.3.16.2 When possible and where consistent with
the service U S WEST provides to its own
Customers and/or end users, U S WEST
shall engineer its BLV/BLI facilities to
accommodate the anticipated volume of
BLV/BLI requests during the busy hour.
CO-PROVIDER may, from time to time,
provide its anticipated volume of BLV/BLI
requests to
<PAGE>
Part A
U S WEST. In those instances when
failures occur to significant portions of
the BLV/BLI systems and databases and
those systems and databases become
unavailable, U S WEST shall promptly
Inform CO-PROVIDER.
50.3.16.3 BLV IS PERFORMED WHEN ONE PARTY'S
Customer requests assistance from the
other Party's operator or operator bureau
to determine if the called line is in
use; provided, however, that the operator
bureau will not complete the call for the
Customer initiating the BLV inquiry. Only
one (1) BLV attempt will be made per
Customer operator bureau call, and a
charge shall apply whether or not the
called party releases the line.
50.3.16.4 BLI is performed when one Party's
Customer requests assistance from the
other Party's operator bureau to
interrupt a telephone call in progress
after BLV has occurred. The operator
bureau will interrupt the busy line and
inform the called party that there is a
call waiting. The operator bureau will
only interrupt the call and will not
complete the telephone call of the
Customer initiating the BLI request. The
operator bureau will make only one (1)
BLI attempt per Customer operator
telephone call and the applicable charge
applies whether or not the called party
releases the line.
50.3.16.5 Each Party's operator bureau shall accept
BLV and BLI inquiries from the operator
bureau of the other Party in order to
allow transparent provision of BLV/ BLI
traffic between the Parties' networks.
50.3.16.6 Each Party shall route BLV/BLI Traffic
inquiries over direct trunks between the
Parties' respective operator bureaus.
Unless otherwise mutually agreed, the
Parties shall configure BLV/BLI trunks
over the Interconnection architecture
defined in Attachment 4 to this
Agreement.
50.4 DIRECTORY ASSISTANCE AND LISTINGS SERVICE REQUESTS
50.4.1 These requirements pertain to U S WEST's Directory
Assistance and Listings Service Request process that
enables CO-PROVIDER to (a) submit COPRO VIDER
Customer information for inclusion in U S WEST
Directory Assistance and Directory Listings
databases; (b) submit CO-PROVIDER Customer
information for inclusion in published directories;
and (c) provide CO-PROVIDER Customer delivery address
information to enable U S WEST to fulfill directory
distribution obligations.
50.4.1.1 [Intentionally left blank for numbering
consistency]
50.4.1.2 U S WEST will accept the following
Directory Listing Migration Orders from
CO-PROVIDER, valid under all access
methods, including, but not limited to,
Resale, Unbundled Network Elements and
Facilities-Based, and will process the
orders in a mechanized format:
(a) Migrate with no Changes: Maintain
all directory listings for the
Customer in both Directory
Assistance and Directory Listing.
Transfer ownership and billing for
listings to CO-PROVIDER.
<PAGE>
Part A
(b) Migrate with Additions: Maintain
all directory listings for the
Customer in both Directory
Assistance and Directory Listing.
Incorporate the specified
additional listings order. Transfer
ownership and billing for the
listings to CO-PROVIDER.
(c) Migrate with Deletions: Maintain
all directory listings for the
Customer in both Directory
Assistance and Directory Listing.
Delete the specified listings from
the listing order. Transfer
ownership and billing for the
listings to CO-PROVIDER.
50.4.1.3 The Directory Listings Migration Options
should not be tied to migration options
specified for a related service order (if
any) such that a service order specified
as migration with changes may be
submitted along with a directory listing
order specified as migration with no
changes.
50.4.1.4 U S WEST shall enable CO-PROVIDER to
electronically transmit multi-line
listing orders.
50.4.1.5 U S WEST agrees to work cooperatively
with CO-PROVIDER to define specifications
for, and implement a daily summary report
of, Directory Service Requests. The
summary information will include, but is
not limited to, the following
information:
(a) White page listings text and format
(name, address, phone, title,
designation, extra line
requirements)
(b) Listing Instruction codes
50.4.1.6 To ensure accurate order processing, U S
WEST shall provide to CO-PROVIDER the
following information, with updates
within one (1) Business Day of change and
via electronic exchange:
(a) A matrix of NXX to central office
(b) Geographical maps, if available, of
U S WEST service area
(c) A description of calling areas
covered by each directory,
including, but not limited to, maps
of calling areas and matrices
depicting calling privileges within
and between calling areas
(d) Listing format rules
(e) Listing alphabetizing rules
(f) Standard abbreviations acceptable
for use in listings and addresses
(g) Titles and designations
50.4.1.7 Based on changes submitted by
CO-PROVIDER, U S WEST shall update and
maintain Directory Assistance and
Directory Listings data for CO-PROVIDER
Customers who:
(a) Disconnect Service
(b) Change carrier
(c) Install Service
(d) Change any service which affects
Directory Assistance information
(e) Specify Non-Solicitation
(f) Are Non-Published, Non-Listed, or
Listed
<PAGE>
Part A
50.4.1.8 U S WEST shall not charge for storage of
CO-PROVIDER Customer information in the
Directory Assistance and Directory
Listing systems.
50.4.1.9 CO-PROVIDER shall not charge for storage
of U S WEST Customer information in the
Directory Assistance and Directory
Listing systems.
50.5 DIRECTORY ASSISTANCE DATA
50.5.1 This Section refers to the residential, business, and
government Customer records used by U S WEST to
create and maintain databases for the provision of
live or automated operator assisted Directory
Assistance. Directory Assistance data is information
that enables telephone exchange carriers to swiftly
and accurately respond to requests for directory
information, including, but not limited to, name,
address and phone numbers. Under the provisions of
the Act and the FCC's Interconnection Order, U S WEST
shall provide unbundled and non-discriminatory access
to the residential, business and government Customer
records used by U S WEST to create and maintain
databases for the provision of live or automated
operator assisted Directory Assistance. CO-PROVIDER
MAY COMBINE THIS ELEMENT WITH ANY OTHER NETWORK
ELEMENT FOR THE PROVISION OF ANY TELECOMMUNICATIONS
SERVICE. (38)
50.5.2 U S WEST SHALL PROVIDE AN INITIAL load of Customer
records and Customer list information to CO-PROVIDER,
in a mutually-agreed-to format, via electronic
transfer, within thirty (30) calendar days of the
Effective Date of this Agreement. The initial load
shall include all data resident in the U S WEST
Databases and/or systems used by U S WEST for housing
Directory Assistance data and/or Customer listing
data. In addition, the initial load shall be current
as of the prior Business Day on which the initial
load is provided.
50.5.3 U S WEST shall provide CO-PROVIDER daily updates to
the Customer records and Customer list information in
a mutually-agreed-to format via electronic transfer.
50.5.4 U S WEST SHALL PROVIDE THE ABILITY for CO-PROVIDER to
electronically query the U S WEST Directory
Assistance Database and listings Database in a manner
at least consistent with and equal to that which U S
WEST provides to itself or any other Person.
50.5.5 U S WEST shall provide CO-PROVIDER a complete list of
ILECs, CLECs, and independent telephone companies
that provided data contained in the database.
50.5.6 On a daily basis, U S WEST shall provide updates (end
user and mass) to the listing information via
electronic data transfer. Updates shall be current as
of one (1) Business Day prior to the date provided to
CO-PROVIDER.
50.5.7 U S WEST shall provide CO-PROVIDER access to
Directory Assistance support databases. For example,
CO-PROVIDER requires access to use restriction
information including, but not limited to, call
completion.
50.5.8 Directory Assistance data shall specify whether the
Customer is a residential, business, or government
Customer.
- ----------
(38) MCIm Order, p.11, Issue 14; CO-PROVIDER Order, p. 13, Issue 25.
<PAGE>
Part A
50.5.9 Directory Assistance data shall be provided on the
same terms, conditions, and rates that U S WEST
provides such data to itself or other third parties.
50.5.10 U S WEST shall provide complete refresh of the
Directory Assistance data upon request by
CO-PROVIDER.
50.5.11 US WEST and CO-PROVIDER will cooperate in the
designation of a location at which the data will be
provided.
51. UNUSED TRANSMISSION MEDIA(39)
51.1 DEFINITIONS
51.1.1 Unused Transmission Media is physical inter-office
transmission media (e.g., optical fiber, copper
twisted pairs, coaxial cable) which have no lightwave
or electronic transmission equipment terminated to
such media to operationalize transmission
capabilities.
51.1.2 DARKFIBERIS EXCESS FIBER OPTIC CABLE WHICH HAS BEEN
PLACED IN A NETWORK AND IS NOT CURRENTLY BEING LIT BY
ELECTRONICS FROM ANY CARRIER. Dark Fiber, one type of
Unused Transmission Media, is unused strands of
optical fiber. Dark Fiber also includes strands of
optical fiber which may or may not have Iightwave
repeater (regenerator or optical amplifier) equipment
interspliced, but which has no line terminating
facilities terminated to such strands. Unused
Transmission Media also includes unused wavelengths
within a fiber strand for purposes of coarse or dense
wavelength division multiplexed (WDM) applications.
Typical single wavelength transmission involves
propagation of optical signals at single wavelengths
(1.3 or 1.55 micron wavelengths). In WDM
applications, a WDM device is used to combine optical
signals at different wavelengths on to a single fiber
strand. The combined signal is then transported over
the fiber strand. For coarse WDM applications, one
(1) signal each at 1.3 micron and 1.55 micron
wavelength are combined. For dense WDM applications,
many signals in the vicinity of 1.3 micron wavelength
and/or 1.55 micron wavelength are combined.
51.2 WHILE U S WEST IS NOT REQUIRED TO PROVIDE UNUSED TRANSMISSION
MEDIA, OTHER THAN DARK FIBER,(40) CO-PROVIDER MAY, SUBJECT TO
THE AGREEMENT OF U S WEST, LEASE COPPER TWISTED PAIRS, COAXIAL
CABLE OR OTHER UNUSED TRANSMISSION MEDIA.
51.3 REQUIREMENTS
51.3.1 Subject to Section 51.2 above, U S WEST shall make
available Unused Transmission Media to CO-PROVIDER
under a lease agreement or other arrangement.
51.3.2 U S WEST shall provide a single point of contact for
negotiating all Unused Transmission Media use
arrangements.
- ----------
(39) All bolded language in this Section is included per MCIm Order, pp. 8-9
at Issue 9c and CO-PROVIDER Order Issue 22.
(40) MCIm Order, pp. 8-9 at Issue 9c and AT&T Order Issue 22.
<PAGE>
Part A
51.3.3 CO-PROVIDER MAY test the quality of the Unused
Transmission Media to confirm its usability and
performance specifications.
51.3.4 Where Unused Transmission Media is required to be
offered or is agreed to be offered by U S WEST, U S
WEST shall provide to CO-PROVIDER information
regarding the location, availability and performance
of Unused Transmission Media within ten (10) Business
Days for a records based answer and twenty (20)
Business Days for a field based answer, after
receiving a request from CO-PROVIDER ("Request").
Within such time period, U S WEST shall send written
or electronic confirmation or any other method of
notification agreed to by the Parties of availability
of the Unused Transmission Media ("Confirmation").
51.3.5 Where Unused Transmission Media is required to be
offered or is agreed to be offered by U S WEST, U S
WEST shall make Unused Transmission Media available
for CO-PROVIDER's use in accordance with the terms of
this Section 51 within twenty (20) Business Days or a
reasonable time frame consistent with industry
standards after it receives written acceptance from
CO-PROVIDER that the Unused Transmission Media is
wanted for use by CO-PROVIDER. Splicing of CO-
PROVIDER fiber may be performed at the same points
that are available for U S WEST splices.
51.4 REQUIREMENTS SPECIFIC TO DARK FIBER
51.4.1 CO-PROVIDER may test Dark Fiber leased from U S WEST
using CO-PROVIDER or CO-PROVIDER designated personnel
subject to Section 51.2. U S WEST shall provide
appropriate interfaces to allow testing of Dark
Fiber. U S WEST shall provide an excess cable length
of twenty-five (25) feet minimum, where available,
for fiber in underground conduit. U S WEST shall
provide splicing of CO-PROVIDER fiber to U S WEST
Dark Fiber under normal circumstances (e.g., no
construction) in metropolitan areas within seventeen
(17) calendar days of CO-PROVIDER's request, and
within thirty (30) calendar days of a request in a
non-metropolitan area. CO-PROVIDER may request
expedited splicing, which shall be subject to
available U S WEST resources.
51.4.2 For WDM applications, U S WEST shall provide to
CO-PROVIDER an interface to an existing WDM device or
allow CO-PROVIDER to install its own WDM device
(where sufficient system loss margins exist or where
CO-PROVIDER provides the necessary loss compensation)
to multiplex the traffic at different wavelengths.
This applies to both the transmit and receive ends of
the Dark Fiber.
51.5 U S WEST MAY NOT RESERVE FUTURE CAPACITY OF ITS DARK FIBER FOR
ITS OWN USE, WITH THE exception of maintenance or emergency
spare. Maintenance and emergency spare ALSO WILL BE FOR THE
BENEFIT OF ANY CLEC WHICH HAS LEASED DARK FIBER FROM U S WEST.
FIBER WHICH U S WEST HAS INCLUDED AS PART OF ITS LOCAL SERVICE
RATE BASE, AND UPON WHICH IT RECEIVES A RATE OF RETURN, BUT
WHICH IS USED FOR OTHER THAN LOCAL SERVICE WILL BE SUBJECT TO
RECLAIM BY CLECS IN SUPPORT OF THEIR PROVISIONING OF LOCAL
SERVICE.(41)
51.6 PORTIONS OF THE BANDWIDTH OF THE FIBER MAY BE SECTIONED AND
CO-PROVIDER MAY SHARE THE BANDWIDTH WITH U S WEST AND OTHER
CLECS.
- ----------
(41) Procedural Order, July 14, 1997 at pages 12-13.
<PAGE>
Part A
51.7 THE FIBER SHOULD BE USED EFFICIENTLY AND TO A REASONABLE LEVEL
OF CAPACITY. CO-PROVIDER'S REQUEST TO LEASE DARK FIBER MUST
ESTABLISH THAT ANOTHER NETWORK ELEMENT OF COMPARABLE EXPENSE
CANNOT SATISFY CO-PROVIDER'S NEEDS. AT ITS DISCRETION,
CO-PROVIDER MAY SHARE FIBER CAPACITY WITH OTHER PARTIES, AND
SUCH SHARED-USE MAY JUSTIFY CO-PROVIDER'S NEED FOR THE FIBER.
51.8 U S WEST MAY REVOKE THE LEASE OR OTHER USE ARRANGEMENT AND
RECLAIM ITS FIBER OR BANDWIDTH WITH TWELVE (12) MONTHS NOTICE
TO CO-PROVIDER, IF U S WEST CAN ESTABLISH THAT THE FIBER IS
NECESSARY TO MEET ITS BANDWIDTH REQUIREMENTS OR THOSE OF
ANOTHER REQUESTING CLEC, PROVIDED THAT THE ORIGINAL CLEC'S
TRANSPORTATION IS PROVIDED FOR BY ALTERNATIVE MEANS AND AT
COMPARABLE PRICES AND QUALITY. THE CONVERSION TO THE
ALTERNATIVE MEANS SHALL BE AT THE EXPENSE OF THE NEW USER OF
THE DARK FIBER, WHETHER THAT BE U S WEST OR ANOTHER CLEC. ONE
OF THE ALTERNATIVES MEANS TO BE CONSIDERED BY U S WEST WILL BE
THE SHARING OF BANDWIDTH.
51.9 IF CO-PROVIDER OBTAINS ACCESS TO U S WEST'S DARK FIBER,
CO-PROVIDER SHALL MAKE ITS DARK FIBER AVAILABLE TO U S WEST ON
A COMPARABLE AND RECIPROCAL BASIS. THIS SECTION 51.9 SHALL NOT
TAKE EFFECT UNTIL CLECS (OTHER THAN WIRELESS CLECS) OPERATING
WITHIN U S WEST'S ARIZONA SERVICE TERRITORY PROVIDE SERVICE TO
AT LEAST 200,000 ACCESS LINES.
52. SERVICE STANDARDS(42)
U S WEST will provide all Local Resale, Ancillary Functions, Network
Elements or Combinations in accordance with service standards,
measurements, and performance requirements that are expressly specified
in this Agreement and Attachment 5 hereto. In cases where such
performance standards are not expressly specified, U S WEST will
provide all Local Resale, Ancillary Functions, Network Elements or
Combinations in accordance with performance standards which are at
least equal to the level of performance standards and/or quality of
service that U S WEST provides to itself, its Affiliates, to other
CLECs, or other quality of service requirements imposed by the
Commission, whichever is higher, in providing Local Resale, Ancillary
Functions, Network Elements or Combinations to itself, to its end-users
or to its Affiliates. If CO-PROVIDER requests a higher level of service
than that provided by U S WEST to itself, CO-PROVIDER shall make the
request pursuant to the BFR process.
52.1 DEFINITIONS
PENDING ADOPTION OF SERVICE STANDARDS RULES BY THE COMMISSION,
THE FOLLOWING INTERIM PROVISIONS SHALL APPLY.
52.1.1 "SPECIFIED PERFORMANCE COMMITMENT" MEANS THE
COMMITMENT BY U S WEST TO MEET THE PERFORMANCE
CRITERIA FOR ANY SPECIFIED ACTIVITY DURING THE
SPECIFIED REVIEW PERIOD. THE SPECIFIED REVIEW PERIOD
SHALL BE THE SAME PERIOD AS U S WEST PROVIDES ITSELF
FOR EXISTING PERFORMANCE CRITERIA AND SHALL BE NINETY
(90) DAYS FOR NEW PERFORMANCE CRITERIA. THE STANDARD
OF PERFORMANCE FOR EACH OF THE MEASUREMENTS OF
PERFORMANCE IN ARIZONA SHALL BE THE QUALITY OF
SERVICE WHICH U S WEST PROVIDES IN ARIZONA TO EITHER
ITSELF, ITS TEN LARGEST END USER CUSTOMERS IN THE
AGGREGATE, INDEPENDENT LECS IN THE AGGREGATE, OTHER
CLECS IN THE AGGREGATE, OR OTHER QUALITY OF SERVICE
REQUIREMENTS IMPOSED BY THE COMMISSION, WHICHEVER IS
HIGHEST. NEITHER
- ----------
(42) Section added per MCIm Order, p.17 at Issue 28 and AT&T Order, p.20 at
Issues 36, 73, and 74.
<PAGE>
Part A
PERFORMANCE PENALTIES NOR CREDITS WILL BE IMPOSED FOR
FAILURE TO COMPLY WITH SERVICE STANDARDS.
52.1.2 "SPECIFIED ACTIVITY" INCLUDES, BUT IS NOT LIMITED TO,
THE FOLLOWING ACTIVITIES:
(a) INSTALLATION ACTIVITIES -- APPLY TO RESOLD
SERVICES, UNBUNDLED LOOPS, UNBUNDLED
SWITCHING, AND INTERIM NUMBER PORTABILITY:
(i) INSTALLATION INTERVALS OFFERED
(MEASURED FROM APPLICATION DATE TO
ORIGINAL DUE DATE);
(ii) INSTALLATION COMMITMENTS MET;
(iii) INSTALLATION REPORTS WITHIN SEVEN
(7) DAYS (PERCENT OF REPORTS PER
TOTAL OF NEW, TO OR CHANGE ORDERS).
(b) REPAIR ACTIVITIES -- APPLY TO RESOLD
SERVICE, UNBUNDLED LOOPS, UNBUNDLED
SWITCHING, AND INTERIM NUMBER PORTABILITY:
(i) OUT OF SERVICE CLEARED IN LESS THAN
TWENTY-FOUR (24) HOURS (PERCENT OF
TOTAL OUT OF SERVICE REPORTS);
(ii) REPORT RATE PER 100 ACCESS LINES;
(iii) REPAIR COMMITMENTS MET;
(iv) OUT OF SERVICE AND SERVICE
AFFECTING CLEARED IN LESS THAN
FORTY-EIGHT (48) HOURS;
(v) REPAIR REPEAT REPORTS WITHIN THIRTY
(30) DAYS (PERCENT OF REPEATS PER
100 ACCESS LINES).
(c) TRUNKING ACTIVITIES-- INCLUDES
INTERCONNECTION TRUNKS:
(i) DEFECTS PER ONE MILLION CALLS
(DEDICATED FACILITIES/TRUNKSIDE
ONLY).
52.1.3 "PERFORMANCE CRITERIA" MEANS, WITH RESPECT TO A
SPECIFIED REVIEW PERIOD (I.E., A CALENDAR MONTH OR
QUARTER), THE PERFORMANCE BY U S WEST FOR THE
SPECIFIED ACTIVITIES FOR CO-PROVIDER WILL MEET OR
EXCEED THE AVERAGE PERFORMANCE BY U S WEST FOR EACH
RESOLD OR UNBUNDLED NETWORK ELEMENT THE TOTAL
UNIVERSE OF FOR EACH SPECIFIED ACTIVITY.
52.2 FAILURE TO MEET THE PERFORMANCE CRITERIA
IF, DURING A SPECIFIED REVIEW PERIOD, U S WEST FAILS TO MEET
THE PERFORMANCE CRITERIA, U S WEST WILL USE ITS BEST EFFORTS
TO MEET THE PERFORMANCE CRITERIA FOR THE NEXT SPECIFIED REVIEW
PERIOD. IF U S WEST FAILS TO MEET THE PERFORMANCE CRITERIA FOR
TWO (2) CONSECUTIVE PERIODS, THE PARTIES AGREE, IN GOOD FAITH,
TO ATTEMPT TO RESOLVE SUCH ISSUES THROUGH NEGOTIATION OR
NON-BINDING ARBITRATION. THIS PARAGRAPH SHALL NOT BE CONSTRUED
TO WAIVE EITHER PARTY'S RIGHT TO SEEK LEGAL OR REGULATORY
INTERVENTION AS PROVIDED BY STATE OR FEDERAL LAW. CO-PROVIDER
MAY SEEK REGULATORY OR OTHER LEGAL RELIEF INCLUDING REQUESTS
FOR SPECIFIC PERFORMANCE OF U S WEST'S OBLIGATIONS UNDER THIS
AGREEMENT.
<PAGE>
Part A
52.3 Limitations
U S WEST'S FAILURE TO MEET OR EXCEED ANY OF THE PERFORMANCE
CRITERIA CANNOT BE AS A RESULT, DIRECTLY OR INDIRECTLY, OF A
DELAYING EVENT. A "DELAYING EVENT" MEANS (A) A FAILURE BY
CO-PROVIDER TO PERFORM ANY OF ITS OBLIGATIONS SET FORTH IN
THIS AGREEMENT, (B) ANY DELAY, ACT OR FAILURE TO ACT BY A
CUSTOMER, AGENT OF SUBCONTRACTOR OF CO-PROVIDER, OR (C) ANY
FORCE MAJOR EVENT. IF A DELAYING EVENT PREVENTS U S WEST FROM
PERFORMING A SPECIFIED ACTIVITY, THEN SUCH SPECIFIED ACTIVITY
SHALL BE EXCLUDED FROM THE CALCULATION OF U S WEST'S
COMPLIANCE WITH THE PERFORMANCE CRITERIA.
52.4 RECORDS
U S WEST SHALL MAINTAIN COMPLETE AND ACCURATE RECORDS, FOR THE
SPECIFIED REVIEW PERIOD, OF ITS PERFORMANCE UNDER THIS
AGREEMENT FOR EACH SPECIFIED ACTIVITY AND ITS COMPLIANCE WITH
THE PERFORMANCE CRITERIA. U S WEST SHALL PROVIDE TO
CO-PROVIDER SUCH RECORDS IN A SELF-REPORTING FORMAT. THE
PARTIES AGREE THAT SUCH RECORDS SHALL BE DEEMED PROPRIETARY
INFORMATION.
52.5 COST RECOVERY
U S WEST RESERVES THE RIGHT TO ATTEMPT TO RECOVER THE COSTS,
IF ANY, ASSOCIATED WITH THE CREATION OF THE ABOVE REPORTS AND
STANDARDS THROUGH A FUTURE PROCEEDING BEFORE A REGULATORY
BODY.
52.6 CO-PROVIDER AND U S WEST ACKNOWLEDGE AND UNDERSTAND THAT THE
PERFORMANCE AND QUALITY OF SERVICE STANDARDS OUTLINED IN THIS
SECTION MAY BE SUPPLANTED OR SUPPLEMENTED BY THE GENERIC
PROCEEDING TO BE HELD BY THE COMMISSION TO DETERMINE PERMANENT
QUALITY OF SERVICE MEASUREMENTS/LIQUIDATED DAMAGES.(43)
53. Entire Agreement
53.1 This Agreement shall include the Attachments, Appendices and
other documents referenced herein all of which are hereby
incorporated by reference, and constitutes the entire
agreement between the Parties and supersedes all prior oral or
written agreements, representations statements, negotiations,
understandings, proposals and undertakings with respect to the
subject matter hereof.
53.2 If a provision contained in any U S WEST tariff conflicts with
any provision of this Agreement, the provision of this
Agreement shall control, unless otherwise ordered by the FCC
or the Commission.
54. RESERVATION OF RIGHTS
54.1 The Parties acknowledge that the terms of this Agreement were
established pursuant to an order of the Commission. Any or all
of the terms of this Agreement may be altered or abrogated by
a successful challenge to this Agreement (or the order
approving this Agreement) as permitted by applicable law. By
signing this Agreement, neither Party waives its right to
pursue such a challenge.
- ----------
(43) MCIm Order, p. 17 at Issue 28 and AT&T Order, p. 20 at Issues 36, 73,
& 74.
<PAGE>
Part A
54.2 The Parties enter into this Agreement without prejudice to any
position they may have taken previously, or may take in the
future in any legislative, regulatory, or other public forum
addressing any matters, including matters related to the types
of arrangements prescribed by this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives.
ADVANCED TELECOMMUNICATIONS, LNC.** U S WEST COMMUNICATIONS, LNC.**
- ----------------------------------- ---------------------------------------
Signature *Signature
F. LYNNE POWERS KATHERINE L. FLEMING
- ----------------------------------- ---------------------------------------
Name Printed/Typed Name Printed/Typed
VICE PRESIDENT- FINANCE VICE PRESIDENT- INTERCONNECTION
- ----------------------------------- ---------------------------------------
Title Title
- ----------------------------------- ---------------------------------------
Date Date
* Signed as ordered by the arbitrator/commission in Docket Nos.
U-2428-96-417, E-1051-96-417, U- 3175-96-479 and E-1 051-96-479. Signature
does not indicate agreement with all aspects of the arbitrator's decision,
nor does it waive any of U S WEST's right to seek judicial review of all or
part of the agreement, or to reform the agreement as the result of
successful judicial review.
** This Agreement is made pursuant to Section 252 (i) of the Act and is
premised upon the Interconnection Agreement between AT&T Communications of
the Mountain States, Inc. and U S WEST Communications, Inc. (the
"Underlying Agreement"). The Underlying Agreement was approved by the
Commission on July 31, 1997.
With respect to this Agreement, the Parties understand and agree:
i) The Parties shall request the Commission to expedite its review and
approval of this Agreement.
ii) Notwithstanding the mutual commitments set forth herein, the Parties
are entering into this Agreement without prejudice to any positions they have
taken previously, or may take in the future, in any legislative, regulatory, or
other public forum addressing any matters, including those relating to the types
of arrangements contained in this Agreement. During the proceeding in which the
Commission is to review and approve the Agreement, U S WEST may point out that
it has objected, and continues to object, to the inclusion of the terms and
conditions to which it objected in the proceedings involving the approval of the
Underlying Agreement.
iii) This Agreement contains provisions based upon the decisions and orders
of the FCC and the Commission under and with respect to the Act. Currently,
court and regulatory proceedings affecting the subject matter of this Agreement
are in various stages, including the proceedings where certain of the rules and
regulations of the FCC are being challenged In addition, there is uncertainty in
the aftermath of the Supreme Court's decision in AT&T CORN, ET AL. V. IOWA
UTILITIES BOARD. Based on that uncertainty, and the regulatory and judicial
proceedings which will occur as a result of that decision, the Parties
acknowledge that this Agreement may need to be changed to reflect any changes in
law. The Agreement
<PAGE>
Part A
has not been corrected to reflect the requirements, claims or outcomes of any of
the Proceedings, although the pricing does reflect the Commission's most current
generic order, if any. Accordingly, when a final, decision or decisions are made
in the Proceedings that automatically change and modify the Underlying
Agreement, then like changes and modifications will similarly be made to this
Agree~1ent. In addition, to the extent rules or laws are based on regulatory or
judicial proceedings as a result of the recent Supreme Court decision, this
Agreement will be amended to incorporate such changes.
iv) Subsequent to the execution of this Agreement, the FCC or the
Commission may issue decisions or orders that change or modify the rules and
regulations governing implementing of the Act. If such changes or modifications
alter the state of the law upon which the Underlying Agreement was negotiated
and agreed, and it reasonably appears that the parties to the Underlying
Agreement would have negotiated and agreed to different term(s) condition(s) or
covenant(s) than as contained in the Underlying Agreement had such change or
modification been in existence before execution of the Underlying Agreement,
then this Agreement shall be amended to reflect such different terms(s),
condition(s), or covenant(s). Where the parties fail to agree upon such an
amendment, it shall be resolved in accordance with the Dispute Resolution
provision of this Agreement.
v) This Agreement shall continue in force and effect until terminated by
either Party. The Agreement can be terminated on thirty (30) days notice, if
another Interconnection Agreement will not replace the current Agreement. If
there is a replacement Interconnection Agreement, one Party can notify the other
Party that it is requesting Section 25 1/252 negotiations under the Federal
Telecommunications Act of 1996 ("Act"). That notification will trigger the
timeframes and procedures contained in Section 252 of the Act. In the event of
such notice, the arrangements between our companies shall continue and be
governed by the terms of the expired agreement until the new agreement is
approved by the appropriate state commission.
