IRU AGREEMENT
DATED AS OF FEBRUARY 26, 1996
BY AND BETWEEN
QWEST COMMUNICATIONS CORPORATION ("QWEST")
AND
WORLDCOM NETWORK SERVICES, INC. ("WORLDCOM")
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I. GRANT OF IRU IN QWEST SYSTEM. . . . . . . . . . . . .1
ARTICLE II. CONSIDERATION FOR GRANT . . . . . . . . . . . . . . .7
ARTICLE III. CONSTRUCTION OF THE QWEST SYSTEM. . . . . . . . . . .9
ARTICLE IV. ACCEPTANCE AND TESTING OF WORLDCOM FIBERS . . . . . 11
ARTICLE V. WORLDCOM CONDUIT SYSTEM . . . . . . . . . . . . . . 12
ARTICLE VI. DOCUMENTATION . . . . . . . . . . . . . . . . . . . 14
ARTICLE VII.
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NEGOTIATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII. TERM. . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IX. SYSTEM CONNECTION . . . . . . . . . . . . . . . . . 16
ARTICLE X. OPERATIONS. . . . . . . . . . . . . . . . . . . . . 17
ARTICLE XI. MAINTENANCE AND REPAIR OF THE QWEST SYSTEM
AND THE QWEST CONDUIT . . . . . . . . . . . . . . . 17
ARTICLE XII. PERMITS: PHYSICAL PLANT AND REQUIRED RIGHTS . . . . 18
ARTICLE XIII. USE OF QWEST SYSTEM . . . . . . . . . . . . . . . . 19
ARTICLE XIV. INDEMNIFICATION . . . . . . . . . . . . . . . . . . 20
ARTICLE XV. LIMITATION OF LIABILITY . . . . . . . . . . . . . . 22
ARTICLE XVI. INSURANCE . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE XVII. TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS. . . 24
ARTICLE XVIII. NOTICE. . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE XIX. CONFIDENTIALITY . . . . . . . . . . . . . . . . . . 29
ARTICLE XX. DEFAULT . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE XXI. TERMINATION . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XXII. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . 32
ARTICLE XIII. ARBITRATION . . . . . . . . . . . . . . . . . . . . 32
ARTICLE XXIV. WAIVER. . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE XXV. GOVERNING LAW . . . . . . . . . . . . . . . . . . . 33
ARTICLE XXVI. RULES OF CONSTRUCTION . . . . . . . . . . . . . . . 33
ARTICLE XXVII. ASSIGNMENT AND DARK FIBER TRANSFERS . . . . . . . . 34
ARTICLE XXVIII. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . 35
ARTICLE XXIX. ENTIRE AGREEMENT- AMENDMENT . . . . . . . . . . . . 38
ARTICLE XXX. NO PERSONAL LIABILITY . . . . . . . . . . . . . . . 38
ARTICLE XXXI. CONFLICTS OF INTEREST . . . . . . . . . . . . . . . 38
ARTICLE XXXII. RELATIONSHIP OF THE PARTIES . . . . . . . . . . . . 38
ARTICLE XXXIII. LATE PAYMENTS . . . . . . . . . . . . . . . . . . . 39
ARTICLE XXXIV. SEVERABILITY. . . . . . . . . . . . . . . . . . . . 39
ARTICLE XXXV. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . 39
ARTICLE XXXVI. CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . 39
ARTICLE XXXVII. THIRD PARTY WARRANTIES. . . . . . . . . . . . . . . 41
EXHIBITS
Exhibit A: QWEST System Description
Segment I
Segment 2
Segment 2A
Segment 3
Segment 4
Segment 5
Segment 6
Segment 7
Exhibit B: Construction Specifications
Exhibit C: QWEST Construction Detail Drawings
Exhibit D: Fiber Cable Splicing, Testing, and Acceptance Procedures
Exhibit E: WORLDCOM Fiber Specifications
Exhibit F: Exceptions to Warranty
Exhibit G: Existing Regenerator Site Locations
Exhibit H: WORLDCOM Conduit System Description and Map
Exhibit I: Maintenance Agreement
Exhibit J: Contract Price/Payment Schedule
Exhibit K: As-Built Requirements
IRU AGREEMENT
THIS IRU AGREEMENT (this "Agreement") is made and entered into as
of the 26th day of February, 1996, by and between QWEST COMMUNICATIONS
CORPORATION, a Delaware corporation ("QWEST"), and WORLDCOM NETWORK
SERVICES, INC., a Delaware corporation ("WORLDCOM").
RECITALS
A. QWEST has constructed or is planning to construct a fiber
optic communication system as set forth in Exhibit A attached hereto
(the "QWEST System").
B. WORLDCOM desires to be granted the right to use certain
optical fibers in the WEST System.
C. QWEST desires to grant WORLDCOM an exclusive, indefeasible
right to use certain fibers in the QWEST System, all upon the terms
and conditions set forth below.
D. WORLDCOM has constructed or is planning to construct a fiber
optic conduit system along a route extending from a point near Pevely,
Missouri to a point near Indianapolis, Indiana as set forth on Exhibit
H attached hereto (the "WORLDCOM Conduit System").
E. QWEST desires to be granted the right to use one conduit
within the WORLDCOM Conduit System.
F. WORLDCOM desires to grant to QWEST an exclusive, indefeasible
right to use one conduit within the WORLDCOM Conduit System, all upon
the terms and conditions set forth below.
Accordingly, in consideration of the mutual promises set forth
below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree
as follows:
ARTICLE I.
GRANT OF IRU IN QWEST SYSTEM
1.1 (a) Effective as of the Acceptance Date (as defined in
Section 4.3) for each particular Segment (as defined below in this
Section 1. 1) delivered hereunder, and subject to the provisions of
Sections 1.2 and 1.3 below, QWEST hereby grants to WORLDCOM (i) an
exclusive, Indefeasible Right of Use (as defined in Section 36.1(f)),
for the purposes described herein, in twenty-four (24) "Dark Fibers"
(as defined in Section 36.1(c)), to be specifically identified, in the
QWEST System between each of the city pairs identified below under
"Basic Segments," "QWEST Optional Segments," and "WORLDCOM Optional
Segments" (each being referred to as a "Segment"), and (ii) an
associated and non-exclusive Indefeasible Right of Use, for the
purposes described herein, in the tangible and intangible property
needed for the operation of such Dark Fibers, including, but not
limited to, the associated QWEST System rights-of-way, easements and
conduit, subject to underlying real property and contractual
limitations and restrictions, but in any event excluding any
electronic or optronic equipment (collectively, the "QWEST Associated
Property"), for the Term defined in Section 8.1, all on the terms and
subject to the conditions set forth herein (collectively with the IRUs
granted or to be granted under clauses (b) and (c) below, the
"WORLDCOM IRU"). The Dark Fibers subject to the WORLDCOM IRU are
referred to collectively as the "WORLDCOM Fibers."
Basic Segments:
1: Dallas - Houston
2: Denver - El Paso
2A: Lamy - Santa Fe
3: Salt Lake City - Santa Clara
QWEST Optional Segments:
4: Oakland - Portland
5: Cleveland - Boston
6: Portland - Seattle
WORLDCOM Optional Segment:
7: Kansas City, Missouri - St. Louis
(b) If, pursuant to Section 1.2, QWEST elects to construct
Segment 4, QWEST hereby grants to WORLDCOM an option, exercisable at
any time and from time to time until 5:00 p.m. Central Standard Time
on the day that is five (5) business days following the date WORLDCOM
receives QWEST's notice of its election to construct Segment 4, to
acquire an Indefeasible Right of Use in up to an additional
twenty-four (24) Dark Fibers, to be specifically identified (including the
applicable QWEST Associated Property), in the QWEST System on that
portion of Segment 3 between Santa Clara and Oakland, California for
the Term and on the terms and subject to the conditions set forth
herein (which, if fully exercised, will result in WORLDCOM having an
IRU in a total of forty-eight (48) fibers along such portion of
Segment 3). In consideration for such grant, WORLDCOM shall pay to
QWEST an amount equal to the incremental cost to QWEST, as described
in Exhibit J, of such twenty-four (24) additional fibers, including
splicing and testing, payable pursuant to the payment schedule set
forth in Section 2.1(b) with respect to Segment 4. WORLDCOM shall
notify QWEST in writing by such time whether it has elected to
exercise such option. Failure to notify QWEST by such time shall be
deemed a waiver of all WORLDCOM's rights in such option, to the extent
not theretofore exercised. If and to the extent that WORLDCOM
exercises such option, notwithstanding that such Dark Fibers
constitute a portion of Segment 3, the IRU in the Dark Fibers and
QWEST Associated Property as to which the option is exercised
automatically thereupon, effective as of the Acceptance Date of
Segment 4, shall be granted hereunder without any further action by
the parties, and shall be considered part of the WORLDCOM IRU for all
purposes of this Agreement.
(c) If, pursuant to Section 1.2, QWEST elects to construct
Segment 6, effective as of the Acceptance Date for such Segment, QWEST
hereby grants to WORLDCOM an Indefeasible Right of Use in an
additional two (2) Dark Fibers (including the applicable QWEST
Associated Property) on the portion of such Segment from WORLDCOM's
"POP" (as defined in Section 36.1) in Portland to the point on the
QWEST System right-of-way that passes closest to the Union Pacific
Railroad Albina Yard (the "Portland/U.P. Fibers") at the Incremental
Cost to QWEST of such two (2) Dark Fibers, including splicing and
testing, payable according to the same payment schedule applicable to
Segment 6 described in Section 2. 1 (b).
1.2 QWEST will have (i) until 5:00 p.m. Central Standard Time on
June 19,1996 in which to determine whether or not it will construct
either of Segments 4 or 5, and (ii) until __ 5:00 p.m. Central
Standard Time on March 3, 1996 to decide whether or not it will
construct Segment 6. QWEST shall notify WORLDCOM in writing by such
relevant times whether it has elected to construct such Segment.
Failure of QWEST to notify WORLDCOM of QWEST's intent within such
times shall be deemed an election by QWEST not to undertake the
obligation to proceed with construction. The election of QWEST not to
construct any one of Segments 4, 5, or 6 shall not affect its
obligations with respect to Segments 1, 2, 2A or 3 or any other
Segment which it elects to construct.
1.3 WORLDCOM shall have an option exercisable until 5:00 p.m.
Central Standard Time on June 19, 1996 to elect to obtain an
Indefeasible Right of Use in twenty-four (24) Dark Fibers, to be
specifically identified (including the applicable QWEST Associated
Property), in the existing QWEST System Segment between Kansas City,
Missouri and St. Louis, Missouri (Segment 7) at a price of $
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per route mile, payable as set forth in Exhibit J. WORLDCOM shall
notify QWEST in writing by such time whether it has elected to
exercise such option. Failure to notify QWEST by such time shall be
deemed a waiver of all WORLDCOM's rights in such option. Not more
than ten (IO) days following WORLDCOM's receipt of written notice from
QWEST of QWEST's intent to order fiber for Segment 7, WORLDCOM shall
notify QWEST of the end points within the existing QWEST System for
Segment 7. The construction schedule and delivery dates for this
Segment shall be subject to the mutual agreement of the parties, which
agreement (i) shall be entered into not later than September 3, 1996,
(ii) shall provide for a delivery date that is not prior to the date
that is 180 days after the date of such agreement and not more than
three hundred sixty (360) days after the date of such agreement, and
(W) otherwise shall be subject to the terms, conditions, and
specifications of this Agreement.
1.4 Subject to extension for delays described in Article XXII, the
Scheduled Delivery Date for completion of all construction,
installation, Fiber Acceptance Testing and hand-over to WORLDCOM of
the WORLDCOM Fibers on each of the following Segments shall be as set
forth below:
Segment Scheduled Delivery Date
1: Dallas -Houston April 30, 1996
2: Denver -El Paso July 19, 1996
2A: Lamy -Santa Fe July 19, 1996
3: Salt Lake City - Santa Clara July 19, 1996
4: Oakland - Portland Within 540 days following
QWEST's decision required
pursuant to Section 1.2 above.
5: Cleveland - Boston Within 540 days following the
QWEST decision required
pursuant to Section 1.2 above.
6: Portland - Seattle January 31, 1997
1.5 (a) Subject to extension for delays described in Article XXII,
QWEST shall use reasonable commercial efforts to complete all
construction and testing obligations with respect to each Segment by
the applicable Scheduled Delivery Date. In the event QWEST does not
deliver a Segment by the respective Scheduled Delivery Date, during
the first ten (10) days of the cure period with respect to such
default provided in Section 20.2, a designated senior representative
with decision-making authority of each of QWEST and WORLDCOM shall
meet to discuss the status of construction, the reason(s) for the
failure to meet the Scheduled Delivery Date, and possible mutual
efforts that could be undertaken in order to complete the construction
of the relevant Segment in the most expeditious manner feasible under
the circumstances. If such representatives, using their best efforts,
are unable within such period to mutually agree upon the manner in
which construction of such Segment is to be completed, and such
default is not otherwise cured within the period permitted under
Section 20.2, then WORLDCOM shall have the option, at its sole
discretion, to take over the design, engineering, installation,
construction, splicing and testing (including, without limitation, all
the activities referred to in Articles III and IV) of such Segment.
In the event WORLDCOM takes over such activities on any Segment as
permitted hereunder, QWEST will cooperate fully with WORLDCOM to
finish such Segment and shall directly pay WORLDCOM, when due, for all
Costs of WORLDCOM associated with, or incurred in connection with, the
completion of such Segment.
(b) If the Scheduled Delivery Date for any Segment has been
extended as the result of a Force Majeure delay described in Article
XXII for a period of six (6) months (the "Six-Month Force-Majeure
Period"), and at the end of such Six-Month Force Majeure Period there
is no reasonably apparent probability of the cessation, termination or
resolution of the event or occurrence causing such Force Majeure delay
within ninety (90) days after the end of the Six-Month Force Majeure
Period, then (i) if the Segment or Segments affected by such Force
Majeure event include any of Segments 1, 2, 3 or 7, WORLDCOM shall
have the right, in its sole discretion, to terminate this Agreement
with respect to such Segment or Segments, in which case all rights and
obligations of WORLDCOM with respect to such Segment or Segments shall
terminate, and QWEST shall repay to WORLDCOM any and all amounts
previously paid hereunder with respect to such Segment or Segments
(which repayment shall be WORLDCOM's sole and exclusive remedy in the
event it exercises such right to terminate) and (ii) if the Segment or
Segments affected by such Force Majeure event include any other
Segment to be delivered hereunder, each of QWEST and WORLDCOM shall
designate one or more senior representatives with decision-making
authority who shall promptly and, thereafter during a period of not
less than sixty (60) days after the Six-Month Force Majeure Period,
(A) meet to discuss in good faith and (B) use their mutual best
efforts to implement, all possible and practical means by which such
delay might be terminated, avoided or resolved, including, without
limitation, possible modifications to the route or manner of
construction of the affected Segment. If, by the end of such sixty-day
discussion period the parties determine that there is no
reasonably possible course of action available that would serve to
terminate, avoid or resolve the Force Majeure delay, then the
provisions of this Agreement with respect to the affected Segment, and
all rights and obligations of the parties with respect to such
Segment, shall terminate, subject to the provisions of Section 21.3;
provided that the amount of consideration, if any, to be paid in
respect of such termination shall be negotiated by the parties in good
faith based upon the applicable facts and circumstances at the time,
including, without limitation, the percentage completion of the
affected Segment, the cities or POPs to which connectivity has been
established prior to such delay, and the resultant commercial value or
potential commercial value of the completed portion of the affected
Segment, and the particular facts and circumstances of the delay
event.
1.6 QWEST shall have an option, exercisable until 5:00 p.m.
Central Standard Time on June 19, 1996, to elect to obtain an
Indefeasible Right of Use in twelve (12) Dark Fibers in WORLDCOM's
existing fiber optic cable between San Jose and San Francisco,
California, including the applicable WORLDCOM Associated Property (as
defined in Section 5.1) (the "Optional QWEST IRU"). QWEST shall
notify WORLDCOM in writing by such time whether it has elected to
exercise such option. Failure to notify WORLDCOM by such time shall
be deemed a waiver of all QWEST's rights in such option. If such
option is exercised, the Optional QWEST IRU shall be for a term of
forty-eight (48) months, or until such earlier time as QWEST, at its
sole option and discretion, shall have constructed, installed and
activated its own fiber optic cable system along such route; provided
that QWEST shall give WORLDCOM not less than six (6) months prior
written notice of the earlier date on which the Optional QWEST IRU
shall terminate. As consideration for the grant to QWEST of the
Optional QWEST IRU, QWEST shall grant to WORLDCOM, for a term running
concurrently with the term of the Optional QWEST IRU, (i) an
assignment of, or other equivalent access interest in, the right to
use twelve (12) Dark Fibers in the CalTrans fiber optic cable system
spanning the Bay Bridge (the "CalTrans Fibers"), (ii) an Indefeasible
Right-of Use in twelve (12) Dark Fibers in QWEST's fiber optic system
from each of the end points of the CalTrans Fibers to WORLDCOM's POP
located at 274 Brannon Street in San Francisco, on the one hand, and
WORLDCOM's POP in Oakland identified in Exhibit A with respect to
Segment 4, on the other, including the applicable QWEST Associated
Property (the "Connective IRU'), and (iii) an Indefeasible Right of
Use in twelve (12) Dark Fibers in the QWEST System in that portion of
Segment 3 from Oakland to Santa Clara, including the applicable QWEST
Associated Property (the "O/SC IRU"); provided that, to the extent the
aggregate route miles of the CalTrans Fibers, the Connective IRU and
the O/SC IRU exceed the route miles of the Optional QWEST IRU,
WORLDCOM shall pay to QWEST an amount equal to the incremental Cost to
QWEST, as indicated in Exhibit J, of the twelve (12) Dark Fibers
subject to the O/SC IRU, including splicing and testing, for the
number of route miles by which the aggregate route miles of the
CalTrans Fibers, the Connective IRU and the O/SC IRU exceed the route
miles of the Optional QWEST IRU. Upon the expiration of the term of
the Optional QWEST IRU, all rights of WORLDCOM in, to and under the
CalTrans Fibers, the Connective IRU and the O/SC IRU shall terminate;
provided that if QWEST elects to terminate the Optional QWEST IRU
earlier than forty-eight (48) months from the date hereof, WORLDCOM
may elect, by written notice to QWEST, to extend and continue its
rights in the CalTrans Fibers for the remainder of such forty-eight
(48) months, in which case WORLDCOM shall pay to QWEST any and all
costs incurred by QWEST in maintaining its rights in and to the
CalTrans Fibers during such period; and provided further that WORLDCOM
may elect, by written notice to QWEST, to extend and continue the
Connective IRU and the O/SC IRU for the remaining Term of the WORLDCOM
IRU (in which case, from and after such time the Connective IRU and
the O/SC IRU shall be part of the WORLDCOM IRU hereunder). In
consideration of any such extension of the O/SC IRU, WORLDCOM shall
pay to QWEST an amount equal to the difference between (A) the payment
made by WORLDCOM pursuant to the proviso in the preceding sentence,
and (B) QWEST's total incremental Cost of the twelve (12) Dark Fibers
subject to the Connective IRU and the O/SC IRU, including splicing and
testing. If QWEST elects to exercise its option to acquire the
Optional QWEST IRU, all of the foregoing shall be memorialized in a
separate definitive agreement, incorporating the foregoing provisions
and generally providing for the same rights and obligations of the
parties as are provided herein with respect to the WORLDCOM IRU.
1.7 If, pursuant to Section 1.2, QWEST does not elect to build
Segment 6, WORLDCOM hereby grants QWEST an option, exercisable at any
time until 5:00 p.m. Central Standard Time on March 3, 1996, to
acquire from WORLDCOM an Indefeasible Right of Use in forty-eight (48)
Dark Fibers, to be specifically identified (including applicable
WORLDCOM Associated Property), in any fiber optic communications
system along substantially the same route as that of Segment 6 that
WORLDCOM may elect to build (the "WORLDCOM Portland/Seattle System"),
for the Term and on the terms and subject to the conditions set forth
herein. QWEST shall notify WORLDCOM in writing by such date whether
it has elected to exercise such option, and failure to notify WORLDCOM
by such date shall be deemed a waiver of all QWEST's rights in such
option. In consideration of the grant of such IRU, QWEST shall pay to
WORLDCOM (i) with respect to twenty-four (24) of the Dark Fibers
subject to such IRU, an amount equal to the route miles of the
WORLDCOM Portland/Seattle System multiplied by $
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per route mile, and (ii) with respect to twenty-four (24) of the Dark
Fibers subject to such IRU, an amount equal to the incremental cost
to WORLDCOM of such twenty-four (24) Dark Fibers, including
installation, splicing and testing as set forth in Exhibit J; provided
that, with respect to the twenty-four (24) Dark Fibers subject to the
foregoing clause (ii), the grant of the IRU in, and the delivery to
QWEST of, such Dark Fibers shall be subject to and conditioned upon
QWEST's prior written notification to WORLDCOM that QWEST has
commenced construction of the Optional Phoenix/Los Angeles Segment, as
that term is defined in Section 1.8. All such amounts shall be
payable according to the payment methodology applicable under Section
2.2(b).
1.8 If, after the date hereof, QWEST shall notify WORLDCOM in
writing that it has determined, in its sole discretion, to design,
engineer, construct and install a fiber optic communications system
between the cities of Phoenix, Arizona and Los Angeles, California
(the route of which system includes San Diego, California) (the
"Optional Phoenix/Los Angeles Segment"), then WORLDCOM shall have the
option, exercisable at any time until 5:00 p.m. Central Standard Time,
or the date that is thirty (30) days after WORLDCOM's receipt of such
notice from QWEST, to acquire from QWEST an IRU in twenty-four (24)
Dark Fibers, to be specifically identified, in the Optional
Phoenix/Los Angeles Segment for the remaining Term of this Agreement.
WORLDCOM shall notify QWEST in writing by such time whether it has
elected to exercise the option with respect to the Optional
Phoenix/Los Angeles Segment, and failure to notify QWEST by such time
shall be deemed a waiver of all of WORLDCOM's rights in such option.
If QWEST elects to construct the Optional Phoenix/Los Angeles Segment,
then (i) the end points and construction and delivery schedule for the
Optional Phoenix/Los Angeles Segment shall be as the parties shall
mutually agree at the time of such exercise of the option and (H) in
consideration of the grant by QWEST of the IRU in the Optional
Phoenix/Los Angeles Segment, WORLDCOM shall pay to QWEST an amount
equal to the route miles of the Optional Phoenix/San Diego Segment
multiplied by $
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per route mile.
ARTICLE II.
CONSIDERATION FOR GRANT
2.1 In addition to the amounts required to be paid pursuant to
Sections 1.1(b) and 1.1(c) as full and complete payment for the grant
of the WORLDCOM IRU as contemplated in Article I, and subject to
performance by QWEST of its obligations hereunder, WORLDCOM agrees to
pay to QWEST (i) the aggregate amount of $
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for Segments 1, 2 and 3 (the "Segment 1-3 Contract Price"), allocated
among such Segments as set forth in Exhibit J and payable according to
the schedule set forth in clause (a) below, (ii) the aggregate amount
of
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for Segments 4, 5 and 6 (the "Segment 4-6 Contract Price"), allocated
among such Segments as set forth in Exhibit J and payable according to
the schedule set forth in clause (b) below, (iii) $
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for Segment 2A (the "Segment 2A Contract Price"), payable according to
the schedule set forth in clause (a) below, and (iv) $
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per route mile for Segment 7 (in the aggregate, the "Segment 7
Contract Price"), payable according to the schedule set forth in
clause (b) below.
(a) The Segment 1-3 Contract Price and the Segment 2A
Contract Price shall be paid as follows:
(i) An initial deposit of (A)
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% of the Segment 1-3 Contract Price and (B)
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% of the Segment 2A Contract Price is due and payable ten (10) days
after execution hereof.
(ii) The prorated cost of the WORLDCOM Fiber to be
incorporated in each of Segments 1, 2, 2A and 3, including any and all
taxes thereon (the aggregate cost of which for each Segment is as set
forth in Exhibit J), is due and payable ten (10) days after each
submission by QWEST to WORLDCOM of an invoice it has received from the
fiber vendor for such WORLDCOM Fiber.
(iii)
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% of the remaining balance of (A) the Segment 1-3 Contract Price
attributable to each of Segments 1, 2 and 3, as indicated in Exhibit
J, and (B) the Segment 2A Contract Price, in each case after taking
into account the foregoing payments under clauses (i) and (ii) above
(with respect to each such Segment, the "Remaining Balance"), is
payable ten (10) days after QWEST notifies WORLDCOM in writing that
such Segment is
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% completed, based on percentage installation of the fiber in such
Segment.
(iv)
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% of the Remaining Balance is payable ten (10) days after QWEST
notifies WORLDCOM in writing that the Segment is
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% completed, based on percentage installation of the fiber in such
Segment.
(v)
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% of the Remaining Balance is payable ten (10) days after QWEST
notifies WORLDCOM in writing that the Segment is
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% completed, based on percentage installation of the fiber in such
Segment.
(vi)
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% of the Remaining Balance is payable ten (10) days after the
Acceptance Date of such Segment.
(vii) A final payment of
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% of the Remaining Balance is due and payable ten (10) days after the
delivery of final As-Builts for such Segment.
(b) The Segment 4-6 Contract Price and the Segment 7 Contract
Price shall be paid as follows:
(i) An initial deposit of
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% of (A) the Segment 4-6 Contract Price attributable to each of
Segments 4, 5 and 6, as indicated in Exhibit J, is due and payable ten
(10) days after notification by QWEST that it has elected to construct
any such Segment and (B) the Segment 7 Contract Price is due and
payable ten (10) days after notification by WORLDCOM that it has
exercised its option with respect to such Segment.
(ii) The prorated cost of the WORLDCOM Fiber to be
incorporated in each of Segments 4, 5, 6 and 7, including any and all
taxes thereon (the aggregate cost of which for each Segment is as set
forth in Exhibit J), is due and payable within ten (10) days after
each submission by QWEST to WORLDCOM of an invoice it has received
from the fiber vendor for such WORLDCOM Fiber.
(iii) Monthly progress payments shall be made with
respect to each such Segment as it is being constructed, such that,
after taking into account the foregoing payments under clauses (i) and
(ii) above, and the reserve required to be paid pursuant to clause
(iv) below, the remaining balance is paid on a pro rata basis
according to the progress payment schedule described in Exhibit J.
(iv) A final payment of
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% of (A) the Segment 4-6 Contract Price attributable to each of
Segments 4, 5 and 6, as indicated in Exhibit J, and (B) the Segment 7
Contract Price is due and payable within ten (10) days after the
delivery of final As-Builts for each such Segment.
2.2 In addition to the amounts payable under Section 2. 1,
WORLDCOM shall be responsible to pay directly or reimburse QWEST for
the pass-through expenses required to be paid pursuant to Article
XVII.
2.3 All payments to QWEST set forth in this Article II shall be
made by wire transfer of immediately available funds to the account or
accounts designated by QWEST.
ARTICLE III.
CONSTRUCTION OF THE QWEST SYSTEM
3.1 To the extent any Segment is not completed as of the date
hereof, subject to the provisions of Sections 1.2 and 1.3, as
applicable, QWEST shall design, engineer, install, construct, and test
the QWEST System comprised of such Segments on the terms and subject
to the conditions set forth herein.
3.2 Subject to the provisions of Sections 1.2 and 1.3, as
applicable, QWEST shall engineer and design Segments 4, 5 and 6 (and
any other Segment if and to the extent that conduit construction is
not completed on the date hereof) consistent with the construction
specifications set forth in Exhibit B, including preparation of
construction drawings, bills of materials, materials specifications
and materials requisitions. The specifications covering the
construction and testing of such Segments shall be as set forth in
Exhibit C and Exhibit D, respectively.
3.3 Subject to the provisions of Sections 1.2 and 1.3, as
applicable, with respect to Segments 4, 5 and 6 (and any other Segment
if and to the extent that conduit construction is not completed on the
date hereof), QWEST shall perform, in accordance with QWEST's standard
engineering practices, all necessary engineering, design and
construction activities necessary to install, test and deliver the
WORLDCOM Fibers in accordance with the provisions hereof.
3.4 Subject to the provisions of Sections 1.2 and 1.3, as
applicable, with respect to Segments 4, 5 and 6 (and any other Segment
if and to the extent that conduit construction is not completed on the
date hereof), QWEST shall perform, in accordance with QWEST's standard
commercial practices and as deemed necessary or appropriate in QWEST's
reasonable business judgment, all necessary right-of-way, easement and
land acquisition activities necessary to install, test and deliver the
WORLDCOM Fibers in accordance with the provisions hereof, free from
interference by, or infringement of the rights of, third parties.
3.5 QWEST shall procure all materials to be incorporated in and to
become a permanent part of the QWEST System with respect to the
Segments delivered hereunder.
3.6 Subject to the provisions of Sections 1.2 and 1.3, as
applicable, QWEST shall perform, in accordance with its standard
commercial practices, all supervisory and inspection services relating
to the construction of Segments 4, 5 and 6 (and any other Segment if
and to the extent that conduit construction is not completed on the
date hereof), including, without limitation:
(a) Performing construction inspection prior to completion of
each such Segment to assure that all construction shall be in
accordance with the specifications, drawings, easement provisions,
provisions of this Agreement, and applicable codes. WORLDCOM shall
have the right, but not the obligation, to inspect all right-of-way
documents pertinent to each such Segment (to the extent that the terms
of each such document permits disclosure to WORLDCOM), and the
installation, splicing and testing of the WORLDCOM Fiber incorporated
in such Segments during the course and at the time of the relevant
design, construction and installation periods for each portion of such
Segment.
(b) Preparing bimonthly engineering progress reports and
construction progress reports.
3.7 Upon WORLDCOM's written request, QWEST shall make available
for inspection by WORLDCOM copies of all information, documents,
reports, permits, drawings and specifications generated, obtained or
acquired by QWEST in performing its duties pursuant to this Article
III (to the extent that the terms of each such document or the legal
restrictions applicable to such information or document permits
disclosure to WORLDCOM).
3.8 Exhibit G ("Existing Regeneration Sites") sets forth the
existing sites along the QWEST System right-of-way at which
regeneration facilities currently are located on that portion of
Segment 3 between Santa Clara and Salt Lake City. In the event that
WORLDCOM desires to locate and construct or share regeneration
facilities at any of such sites, or at any additional potential sites
along the QWEST System that QWEST may make available, assuming (i) the
availability of adequate and sufficient real property rights, space,
and right-of-way access, and (ii) the receipt of all requisite
permits, approvals and authorizations, either (A) QWEST shall grant to
WORLDCOM an IRU for the purpose of permitting WORLDCOM to locate and
construct regeneration facilities at such sites, or (B) if the parties
desire to share regeneration facilities, and further assuming that the
parties are able to agree upon the specific location, specifications
and costs applicable thereto, QWEST and WORLDCOM shall enter into a
separate Regeneration Sharing Agreement setting forth the terms and
conditions with respect thereto.
3.9 Except for such portions of the Segments that are already so
constructed, no aerial construction or installation of the Segments
shall be allowed, except for discrete short pieces of Segments for
which QWEST presents to WORLDCOM its proposed design for WORLDCOM's
review and approval, which approval shall not be unreasonably
withheld.
3.10 With the exception of those existing fibers on that portion of
Segment 3 between Santa Clara, California and Roseville, California
(which are Coming SNT-DS), all fiber included in the WORLDCOM Fibers
and all fibers incorporated in the WORLDCOM Portland/Seattle System
shall be Coming SNT-LS non-zero dispersion-shifted or equivalent, and
shall meet or exceed the fiber specifications set forth in Exhibit E.
The fibers subject to the Optional QWEST IRU shall be the equivalent
of Coming SMR-28. Wherever feasible, other than the Portland/U.P.
Fibers, all such fibers shall be contained in discrete buffer tubes
that are not shared with any other third party.
ARTICLE IV.
ACCEPTANCE AND TESTING OF WORLDCOM FIBERS
4.1 QWEST shall test all WORLDCOM Fibers in accordance with the
procedures specified in Exhibit D ("Fiber Acceptance Testing") to
verify that the WORLDCOM Fibers are installed and operating in
accordance with the specifications described in Exhibits D and E.
Fiber Acceptance Testing shall progress span by span along each
Segment to be constructed hereunder as cable splicing progresses, so
that test results may be reviewed in a timely manner. QWEST shall
provide WORLDCOM reasonable advance notice of the date and time of
each Fiber Acceptance Testing (each of which shall take place during
normal business hours) such that WORLDCOM shall have the right, but
not the obligation, to have a person or persons present to observe
QWEST's Fiber Acceptance Testing. QWEST shall promptly provide
WORLDCOM with a copy of the test results.
4.2 In the event the results of the tests of the WORLDCOM Fibers
show the WORLDCOM Fibers not to be operating within the parameters of
the applicable specifications, WORLDCOM shall notify QWEST in writing
that some or all portions of the WORLDCOM Fibers are unacceptable.
Thereupon, QWEST shall expeditiously take such action as shall be
reasonably necessary, with respect to such portion of the WORLDCOM
Fibers as do not operate within the parameters of the applicable
specifications, to bring the operating standards of such portion of
the WORLDCOM Fibers within such parameters.
4.3 If and when QWEST notifies WORLDCOM that the test results of
the Fiber Acceptance Testing are within the parameters of the
specifications in Exhibits D and E with respect to an entire Segment,
WORLDCOM shall provide QWEST with a written notice accepting the
WORLDCOM Fibers. If WORLDCOM fails to notify QWEST of its acceptance
or rejection of the final test results with respect to the WORLDCOM
Fibers comprising a Segment within ten (10) days after WORLDCOM's
receipt of notice of such test results, WORLDCOM shall be deemed to
have accepted such Segment. The date of such notice of acceptance (or
deemed acceptance) of all WORLDCOM Fibers for each Segment shall be
the "Acceptance Date" for such Segment.
ARTICLE V.
WORLDCOM CONDUIT SYSTEM
5.1 QWEST is hereby granted the option, exercisable until 5:00
p.m. Central Standard Time on March 3, 1996, to elect to obtain from
WORLDCOM (i) an exclusive, Indefeasible Right of Use, for the purposes
described herein, in an installed, empty innerduct fiber optic conduit
between Pevely, Missouri and Indianapolis, Indiana (the "QWEST
Conduit"), and (ii) the associated non-exclusive Indefeasible Right of
Use, for the purposes described herein, in the tangible and intangible
property needed for the operation of such conduit, including, but not
limited to, the associated WORLDCOM Conduit System rights-of-way,
easements and conduit, subject to underlying real property and
contractual limitations and restrictions, but in any event excluding
any electronic or optronic equipment (collectively, the "WORLDCOM
Associated Property"), for the Term defined in Section 8.1 and for the
consideration described in Section 5.6 below. QWEST shall notify
WORLDCOM in writing by such time whether it has elected to exercise
such option. Failure to notify WORLDCOM by such time shall be deemed
a waiver of all QWEST's rights in such option. In the event QWEST
exercises this option, WORLDCOM shall install in the QWEST Conduit a
fiber optic cable to be supplied by QWEST. Such cable supplied by
QWEST shall be sufficient to meet the Cable Installation
specifications set forth in Exhibit B. QWEST shall be responsible for
its own splicing and testing of such cable. QWEST shall reimburse
WORLDCOM for WORLDCOM's actual cost of such installation and any
related inspection and supervision (not to exceed WORLDCOM's actual
contract cost for installation plus up to $
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per mile for supervision costs, provided that such supervision costs
shall not be duplicative of the maintenance fee payable with respect
to the QWEST Conduit under the Maintenance Agreement (to be entered
into pursuant to Article XI). Such installation shall be made at such
time as QWEST shall notify WORLDCOM in writing, but in any event not
later than two (2) years after the date hereof.
5.2 If QWEST exercises the option as set forth in Section 5.1,
WORLDCOM shall design, engineer, install and construct the WORLDCOM
Conduit System and the QWEST Conduit, including preparation of
necessary construction drawings, bills of materials, materials
specifications and materials requisitions, and the performance of all
necessary surveying, mapping and permitting, all in accordance with
the specifications and drawings set forth in Exhibits B and H.
5.3 WORLDCOM shall perform, in accordance with WORLDCOM's standard
commercial practices and as deemed necessary or appropriate in
WORLDCOM's reasonable business judgment, all right-of-way, easement,
and other land acquisition activities necessary to install, test and
deliver the QWEST Conduit in accordance with the provisions hereof,
free from interference by, or infringement of the rights of, third
parties.
5.4 WORLDCOM shall procure all materials to be incorporated in and
to become a permanent part of the WORLDCOM Conduit System.
5.5 WORLDCOM shall perform all supervisory and inspection
services, including, without limitation:
(a) Performing construction inspection prior to completion of
the WORLDCOM Conduit System to assure that all construction shall be
in accordance with the specifications, drawings, easement provisions,
provisions of this Agreement, and applicable codes. QWEST shall have
the right, but not the obligation, to inspect all right-of-way
documents pertinent to the WORLDCOM Conduit System (to the extent that
the terms of such documents permit such disclosure) and to inspect the
construction and installation of the WORLDCOM Conduit System and the
subsequent installation of the QWEST cable installed therein.
(b) Preparing bimonthly construction progress reports.
5.6 As full and complete payment for the grant of an IRU in the
QWEST Conduit, QWEST, if it exercises the option set forth in Section
5.1, shall pay to WORLDCOM an amount equal to $
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multiplied by the total route miles of the QWEST Conduit as shown by
WORLDCOM's drawings, which aggregate amount shall be payable according
to the following schedule: (i)
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% shall be due and payable ten (10) days after QWEST's exercise of the
option;
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% shall be due and payable ten (10) days after WORLDCOM notifies QWEST
in writing that the QWEST Conduit is
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% completed; (iii)
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% shall be due and payable ten (10) days after WORLDCOM notifies QWEST
in writing that construction of the QWEST Conduit has been
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% completed in accordance with the specifications set forth in Exhibit
B (which payment by QWEST shall constitute QWEST's acceptance of the
QWEST Conduit as of such date (the "QWEST Conduit Acceptance Date"));
and (iv) a final payment of
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% shall be due and payable ten (10) days after the delivery of final
As-Builts for the QWEST Conduit. All payments to WORLDCOM set forth
in this Section 5.6 shall be made by wire transfer of immediately
available funds to the account or accounts designated by QWEST.
5.7 QWEST acknowledges and agrees that the QWEST Conduit may only
be used as a conduit for fiber optic or other telecommunications
cable. WORLDCOM acknowledges and agrees that it has no right to use
the QWEST Conduit during the Term hereof, and that WORLDCOM shall keep
the QWEST Conduit free from any liens, rights or claims of any third
party attributable to WORLDCOM that adversely affects or impairs
QWEST's exclusive use of the QWEST Conduit hereunder.
ARTICLE VI
DOCUMENTATION
6.1 Not later than one hundred eighty (180) days after the
Acceptance Date for each Segment, QWEST shall provide WORLDCOM with
the following documentation with respect to such Segment:
(a) As-built drawings in accordance with the requirements
described in Exhibit K ("As-Builts").
(b) Technical specifications of the optical fiber cable and
associated splices and other equipment placed in the Segment.
6.2 Not later than one hundred eighty (180) days after the QWEST
Conduit Acceptance Date, WORLDCOM shall provide QWEST with As-Built
drawings in accordance with the requirements described in Exhibit K.
ARTICLE VII
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NEGOTIATION
7.1 WORLDCOM and QWEST shall commence promptly hereafter, and
thereafter participate together in good faith negotiations with
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Corporation, in order to remove with respect to QWEST the existing
exclusivity provisions contained in WORLDCOM's existing right-of-way
agreement with
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. This negotiation would include issues related to the consideration
to be received by WORLDCOM for relief of such exclusivity provisions
(the sufficiency of which shall be determined solely by WORLDCOM), the
terms and conditions of QWEST's right to construct on such portions of
the
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right-of-way, as well as the operational limitations to be applied in
the event of any construction by QWEST on
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right-of-way subject to such exclusivity provisions. The parties
acknowledge that it is their objective to reach a definitive agreement
with
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within one hundred eighty (180) days after the date hereof and shall
use their mutual best efforts to meet such goal; provided that if for
any reason no agreement has been reached within one year after the
date hereof, the parties shall have no further obligation under this
Section 7.1. If such negotiations prove to be successful, the parties
agree to negotiate in good faith the terms and conditions on which
QWEST would construct a fiber optic system on the
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right-of-way, the definitive agreement for which in any event shall
provide that (i) QWEST shall be responsible for the cost of any and
all damage to any WORLDCOM property or facilities on
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right-of-way as a result of QWEST's activities thereon and (ii) QWEST
shall be responsible for the cost of all reasonable construction
oversight and inspection undertaken by WORLDCOM with respect to
QWEST's construction activities. If such negotiations are
unsuccessful, there shall be no effect on the IRUs granted hereunder.
ARTICLE VIII.
TERM
8.1 The term of this Agreement shall begin on the date hereof and,
subject to the provisions of Sections 8.2 and 8.3, terminate with
respect to the QWEST System and the WORLDCOM Conduit System at the end
of the economically useful life of the WORLDCOM Fibers and the QWEST
Conduit, respectively (the "Term").
8.2 In any event, unless the parties otherwise agree to the
contrary in writing with respect to either, the end of the
economically useful life of the WORLDCOM Fibers and the QWEST Conduit
shall not be earlier than
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years, nor later than the date of the expiration or termination of
the real property rights-of-way and/or easements underlying the QWEST
System and the WORLDCOM Conduit System, respectively (subject to the
obligations of QWEST and WORLDCOM under Sections 12.1 and 12.3,
respectively, to maintain such underlying real property rights for a
period of not less than
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years from the date hereof).
8.3 In the event that WORLDCOM determines that any one or more of
the Segments has reached the end of its economically useful life and
desires to not retain the IRU with respect to any such Segment or
Segments, WORLDCOM shall have the right to abandon its IRU with
respect to such Segment(s), in which event all rights to the use
thereof shall revert to QWEST without reimbursement of any fees or
other payments previously made with respect thereto, and from and
after such time WORLDCOM shall have no further rights or obligations
hereunder with respect to such abandoned Segment(s). In the event
that QWEST determines that the QWEST Conduit or any portion thereof
has reached the end of its economically useful life and desires to no
longer operate or maintain all or any portion of the QWEST Conduit,
QWEST shall have the right to abandon its IRU with respect thereto, in
which event all rights to the use thereof shall revert to WORLDCOM
without reimbursement of any fees or other payments previously made
with respect thereto and, from and after such time, QWEST shall have
no further rights or obligations hereunder with respect to such
abandoned portion of the QWEST Conduit.
8.4 It is understood and agreed by the parties that QWEST must and
does maintain legal title to the entire QWEST System subject to the
WORLDCOM IRU. Notwithstanding this, it is understood and agreed that
the grant of the WORLDCOM IRU shall be treated for accounting and
federal and all applicable state income tax purposes as the sale and
purchase of the WORLDCOM Fibers and the WEST Associated Property, and
that on and after the Acceptance Date for each particular Segment,
WORLDCOM shall be treated as the owner of the WORLDCOM Fibers and the
QWEST Associated Property associated with such Segment for such
purposes. Similarly, WORLDCOM shall retain legal title to any and all
of the WORLDCOM Conduit System, subject to the IRU granted to QWEST in
the QWEST Conduit hereunder. However, it is understood and agreed
that the grant of the IRU in the QWEST Conduit and the WORLDCOM
Associated Property shall be treated for accounting and federal and
all state income tax purposes as the sale and purchase of the QWEST
Conduit, and that on and after the QWEST Conduit Acceptance Date,
QWEST shall be treated as the owner of the QWEST Conduit for such
purposes. The parties agree to file their respective income tax
returns and other returns and reports for their respective Impositions
on such basis and, except as otherwise required by law, not to take
any positions inconsistent therewith.
ARTICLE IX.
SYSTEM CONNECTION
9.1 Subject to the provisions herein, QWEST shall be responsible
for all costs to construct and pull the WORLDCOM Fibers to the
WORLDCOM POP at each of the end point and intermediate point locations
designated in Exhibit A, at which points QWEST shall hand off the
WORLDCOM Fibers to WORLDCOM and at which points WORLDCOM may access
the WORLDCOM Fibers. It shall be the responsibility of WORLDCOM to
(i) obtain all location, occupancy and other necessary access rights,
permits and approvals to permit QWEST to construct and install the
Cable from the manhole nearest each POP location to the POP, and (H)
provide riser conduits to each POP. Where WORLDCOM has conduit
available from the manhole nearest to the POP or another location
adjacent to the POP that would assist in connecting the WORLDCOM
Fibers from the QWEST System right-of-way to a particular WORLDCOM POP
location, WORLDCOM agrees to make such conduit available for such
purpose at no charge to QWEST, including, without limitation, in the
specific locations described in Exhibit A, and in all other
circumstances QWEST shall be responsible for providing the conduit
from the manhole nearest to the POP to the bottom of the riser.
WORLDCOM further agrees that, if it has conduit, housed in steel pipe,
that has not been committed or reserved for other use from another
location and that would assist in connecting the WORLDCOM Fibers from
the QWEST System right-of-way to a particular POP location, it will,
subject to existing permits, approvals and authorizations, grant to
QWEST an IRU in such conduit for such purpose at a price of $
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per conduit foot. QWEST may install, maintain and route the WORLDCOM
Fibers within QWEST facilities at its sole discretion. Unless the
parties otherwise expressly agree, in no event will WORLDCOM's
equipment be located in QWEST facilities.
9.2 WORLDCOM may, at its sole option and at any time during the
Term, connect its telecommunications system with the WORLDCOM Fibers
at WORLDCOM's sole cost, at any point along the Segments delivered
hereunder which is specifically identified in Exhibit A or which
otherwise is approved by QWEST in writing, which approval shall not be
unreasonably withheld (each a "Connecting Point"); provided, however,
any such connection will be performed by QWEST, in accordance with
QWEST's applicable specifications and operating procedures, and shall
be subject to applicable contractual, underlying real property and
other third-party limitations and restrictions, and WORLDCOM shall pay
QWEST's Costs for each such connection within thirty (30) days of the
date of WORLDCOM's receipt of QWEST's invoice therefor. In order to
schedule a connection of this type, WORLDCOM shall request and
coordinate such work not less than thirty (30) days in advance of the
date the connection is requested to be completed. Such work will be
restricted to a Planned System Work Period ("'PSWP"), as defined in
Section 36. 1, unless otherwise agreed to in writing for specific
projects. Subject to QWEST's underlying real property rights and
applicable restrictions, WORLDCOM shall also be provided reasonable
access by QWEST to any Connecting Point during the term of this
Agreement. WORLDCOM shall have no limitations on the types of
electronics or technologies employed to utilize the WORLDCOM Fibers,
subject to mutually agreeable safety procedures and so long as such
electronics or technologies do not interfere with the use of or
present a risk of damage to any portion of the QWEST System.
ARTICLE X.
OPERATIONS
10.1 Each party shall have full and complete control and
responsibility for determining any network and service configuration
or designs, routing configurations, regrooming, rearrangement or
consolidation of channels or circuits and all related functions with
regard to the use of that party's fiber.
10.2 Neither party hereto is supplying or is obligated to supply to
the other party any optronics, or electronics or optical or electrical
equipment or other facilities, including without limitation,
generators, batteries, air conditioners, fire protection and
monitoring and testing equipment, nor is either party responsible for
performing any work other than as specified in this Agreement.
10.3 At any time during the term of this Agreement, by not less
than 120 days' written notice from QWEST to WORLDCOM, QWEST may, with
WORLDCOM's prior written approval (which approval shall not be
unreasonably delayed or withheld) substitute for the WORLDCOM Fibers
on the QWEST System, or any Segment or Segments comprising a portion
of said QWEST System, an equal number of alternative fibers along an
alternative route, as determined by QWEST in its sole discretion;
provided that in any such event, such substitution (i) shall be
without unreasonable interruption of service and use by WORLDCOM, (H)
shall be at the sole cost of QWEST, including, without limitation, all
disconnect and reconnect costs, fees and expenses, (iii) shall be
constructed and tested in accordance with the specifications and
drawings set forth in Exhibits B, C and D, and incorporate fiber
meeting the specifications set forth in Exhibit E, and (iv) shall not
result in an adverse change to the operations, performance, connection
points with the network of WORLDCOM, or endpoints of any Segment
included in the QWEST System.
ARTICLE XI
MAINTENANCE AND REPAIR OF THE QWEST SYSTEM AND THE QWEST CONDUIT
11.1 Upon the execution of this Agreement, WORLDCOM and QWEST shall
enter into and execute the Maintenance Agreement in the form of
Exhibit I hereto, providing for the maintenance of (i) the WORLDCOM
Fibers by QWEST and WORLDCOM, as set forth therein, and (ii) if QWEST
exercises the option as set forth in Section 5.1, the QWEST Conduit,
including the cable installed therein, by WORLDCOM.
11.2 Maintenance of and QWEST's access to, the QWEST Conduit, and
maintenance of, and WORLDCOM's access to, the QWEST System, shall be
on the terms and subject to the conditions set forth in the
Maintenance Agreement to be entered into by the parties pursuant to
Section 11.1; provided that if the Maintenance Agreement expires or
terminates prior to the end of the Term with respect to the QWEST
Conduit or the QWEST System, those provisions of the Maintenance
Agreement relating to access by QWEST to the QWEST Conduit, or by
WORLDCOM to the QWEST System, for purposes of maintenance thereof
shall survive the termination or expiration thereof and continue to
apply for the remaining Term hereof.
ARTICLE XII
PERMITS: PHYSICAL PLANT AND REQUIRED RIGHTS
12.1 Except as provided in Section 9.1, QWEST shall obtain (and
cause to remain effective for a period of not less than
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years from the date hereof) all rights, licenses, authorizations,
rights-of-way and other agreements necessary for the use of conduit,
cable or other physical plant facilities, as well as any other such
rights, licenses, authorizations (including any necessary state,
tribal or federal authorizations such as environmental permits),
rights-of-way and other agreements necessary for the installation and
use of the WORLDCOM Fibers hereunder (all of which are referred to as
"QWEST Required Rights"); provided that if the WORLDCOM Fibers are the
only fibers to be located in the Cable from the point where the Cable
leaves the QWEST System right-of-way to the POP, and WORLDCOM
previously has obtained any of the necessary rights, licenses,
authorizations, rights-of-way and other agreements with respect
thereto, WORLDCOM agrees, to the extent permitted by the terms
thereof, to assign or otherwise make such rights available to QWEST
upon reimbursement by QWEST of WORLDCOM's costs incurred in obtaining
such rights. To the extent permitted by the terms of such documents,
WORLDCOM shall have the right to review all documents reflecting the
QWEST Required Rights.
12.2 If, for any reason, QWEST determines in its reasonable
business judgment, or is required by a third party with legal
authority to so require, to relocate any of the facilities used or
required in providing the WORLDCOM IRU, QWEST shall have the right to
proceed with such relocation, including but not limited to the right
to determine the extent of, the timing of, and methods to be used for
such relocation; provided that any such relocation (i) shall be
constructed and tested in accordance with the specifications and
drawings set forth in Exhibits B, C and D and incorporate fiber
meeting the specifications set forth in Exhibit E, and (ii) if such
relocation is at the determination of QWEST, shall not result in an
adverse change to the operations, performance, connection points with
the network of WORLDCOM, or end points of any Segment included in the
QWEST System. QWEST shall give WORLDCOM sixty (60) days' prior notice
of any such relocation, if possible. QWEST shall relocate the
affected portion of the QWEST System and, so long as such relocation
is not necessitated by a breach of QWEST's obligations under this
Agreement, including, without limitation, under Section 12.1, and
except as otherwise expressly provided in this Section 12.2, WORLDCOM
shall reimburse QWEST for its proportionate share of (i) all Costs of
fiber acquisition, splicing and testing, prorated based on the total
fiber count in the affected fiber cable as so relocated, and (ii) all
other Costs associated with the relocation of the Cable, prorated
based on the total number of owners and holders of an IRU or
equivalent interest in the affected Segment as so relocated. QWEST
shall deliver to WORLDCOM updated As-Builts with respect to a
relocated Segment not later than one hundred eighty (180) days
following the completion of such relocation.
12.3 WORLDCOM shall obtain (and cause to remain effective for a
period of not less than
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CONFIDENTIAL TREATMENT##
years from the date hereof) all rights, licenses, authorizations,
rights-of-way and other agreements necessary for the use of poles,
conduit, cable, wire or other physical plant facilities, as well as
any other such rights, licenses, authorizations (including any
necessary state, tribal or federal authorizations such as
environmental permits), rights-of-way and other agreements necessary
for the installation and use of the QWEST Conduit hereunder (all of
which are referred to as "WORLDCOM Required Rights"). To the extent
permitted by the terms of such documents, QWEST shall have the right
to review all documents reflecting the WORLDCOM Required Rights.
12.4 If for any reason, WORLDCOM determines in its reasonable
business judgment, or is required by a third party with legal
authority to so require, to relocate any of the facilities used or
required in providing the QWEST Conduit or any portion thereof,
WORLDCOM shall have the right to proceed with such relocation,
including but not limited to the right to determine the extent of, the
timing of, and methods to be used for such relocation; provided that
any such relocation (i) shall be constructed in accordance with the
specifications and drawings set forth in Exhibits B and H, and (ii) if
such relocation is at the determination of WORLDCOM, shall (A)
incorporate fiber meeting the specifications set forth in Exhibit E
(at WORLDCOM's sole cost and expense, including splicing and testing
in accordance with the specifications set forth in Exhibit D) and (B)
not result in an adverse change to the operations, performance,
connection points with the QWEST System network, or end points of the
QWEST Conduit. WORLDCOM shall give QWEST sixty (60) days' prior
notice of any such relocation, if possible. WORLDCOM shall relocate
the affected portion of the QWEST Conduit and, so long as such
relocation is not necessitated by a breach of WORLDCOM's obligations
under this Agreement, including, without limitation, under Section
12.3 and, except as otherwise expressly provided in this Section 12.4,
QWEST shall reimburse WORLDCOM for its proportionate share (based on
the ratio that the QWEST Conduit bears to the total number of conduits
in use in the WORLDCOM Conduit System) of the Costs of the relocation
of such conduit, but not including any costs attributable to the
replacement of cable or fibers within the other conduits in the
affected portion of the WORLDCOM Conduit System. WORLDCOM shall
deliver to QWEST updated As-Builts with respect to the QVT-ST Conduit
not later than one hundred eighty (180) days following the completion
of any such relocation.
ARTICLE XIII.
USE OF QWEST SYSTEM
13.1 WORLDCOM warrants that its use of the QWEST System shall
comply with all applicable government codes, ordinances, laws, rules,
regulations and/or restrictions.
13.2 In addition to the other rights provided hereunder, but
subject to the provisions of Article IX, the WORLDCOM IRU shall
include the right to install additional equipment, or replace existing
equipment, at any point where WORLDCOM is permitted to access the
WORLDCOM Fibers under the provisions of this Agreement.
13.3 Subject to the provisions of Article XXVII, WORLDCOM may use
its IRU for any lawful purpose. QWEST agrees and acknowledges that it
has no right to use the WORLDCOM Fibers during the Term hereof, and
that QWEST shall keep the WORLDCOM Fibers free from any liens, rights
or claims of any third party attributable to QWEST that adversely
affects or impairs WORLDCOM's exclusive use of the WORLDCOM Fibers
hereunder.
13.4 WORLDCOM and QWEST shall promptly notify each other of any
matters pertaining to any damage or impending damage to or loss of the
QWEST System WORLDCOM Conduit System, respectively, that are known to
such party.
13.5 Each party shall take all reasonable precautions against, and
shall assume liability, subject to the terms herein, for, any damage
caused by such party to the other's fibers within the Cable. WORLDCOM
shall not use the WORLDCOM Fibers, and QWEST shall not use the QWEST
Conduit, in a way which physically interferes in any way with or
adversely affects the use of the fibers or cable of any other person
using the QWEST System or the WORLDCOM Conduit System, respectively.
13.6 WORLDCOM and QWEST each agree to cooperate with and support
the other in complying with any requirements applicable to their
respective rights and obligations hereunder by any governmental or
regulatory agency or authority.
13.7 Except as otherwise explicitly set forth in this Agreement, in
the Maintenance Agreement or in any Regeneration Sharing Agreement,
neither party shall charge the other party any maintenance or right-of-
way charges.
ARTICLE XIV
INDEMNIFICATION
14.1 Subject to the provisions of Article XV, QWEST hereby releases
and agrees to indemnify, defend, protect and hold harmless WORLDCOM,
its employees, officers, directors, agents, shareholders and
affiliates, from and against, and assumes liability for:
(a) Any injury, loss or damage to any person, tangible
property or facilities of any person or entity (including reasonable
attorneys' fees and costs) to the extent arising out of or resulting
from the acts or omissions, negligent or otherwise, of QWEST, its
officers, employees, servants, affiliates, agents, contractors,
licensees, invitees or vendors in connection with its performance
under this Agreement;
(b) Any claims, liabilities or damages arising out of any
violation by QWEST of regulations, rules, statutes or court orders of
any local, state or federal governmental agency, court or body in
connection with its performance under this Agreement; and
(c) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third party as
a result of WORLDCOM's use of the WORLDCOM IRU and the WORLDCOM Fibers
in accordance with the provisions of this Agreement.
14.2 Subject to the provisions of Article XV, WORLDCOM hereby
releases and agrees to indemnify, defend, protect and hold harmless
QWEST, its employees, officers, directors, agents, shareholders and
affiliates, from and against, and assumes liability for:
(a) Any injury, loss or damage to any person, tangible
property or facilities of any person or entity (including reasonable
attorneys' fees and costs) to the extent arising out of or resulting
from the acts or omissions, negligent or otherwise, of WORLDCOM, its
officers, employees, servants, affiliates, agents, contractors,
licensees, invitees or vendors in connection with its performance
under this Agreement;
(b) Any claims, liabilities or damages arising out of any
violation by WORLDCOM or regulations, rules, statutes or court orders
of any local, state or federal governmental agency, court or body in
connection with its performance under this Agreement; and
(c) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third party as
a result of QWEST's use of the QWEST Conduit in accordance with the
provisions of this Agreement.
14.3 The parties hereby expressly recognize and agree that each
party's said obligation to indemnify, defend, protect and save the
other harmless is not a material obligation to the continuing
performance of the-parties' other obligations, if any, hereunder. In
the event that a party shall fail for any reason to so indemnify,
defend, protect and save the other harmless, the injured party hereby
expressly recognizes that its sole remedy in such event shall be the
right to bring an arbitration proceeding pursuant to the terms of this
Agreement against the other party for its damages as a result of the
other party's said failure to indemnify, defend, protect and save
harmless. These obligations shall survive the expiration or
termination of this Agreement.
14.4 Nothing contained herein shall operate as a limitation on the
right of either party hereto to bring an action for damages against
any third party, including indirect, special or consequential damages,
based on any acts or omissions of such third party as such acts or
omissions may affect the construction, operation or use of the
WORLDCOM Fibers or the QWEST System, or the WORLDCOM Conduit System or
the QWEST Conduit, as the case may be; provided, however, that each
party hereto shall assign such rights or claims, execute such
documents and do whatever else may be reasonably necessary to enable
the other party to pursue any such action against such third party.
ARTICLE XV.
LIMITATION OF LIABILITY
15.1 Notwithstanding any provision of this Agreement to the
contrary, in no event shall either party be liable to the other party
for any special, incidental, indirect, punitive or consequential
damages, whether foreseeable or not, arising out of, or in connection
with, transmission interruptions or problems, or any interruption or
degradation of service, including, but not limited to, damage or loss
of property or equipment, loss of profits or revenue, cost of capital,
cost of replacement services, or claims of customers, whether
occasioned by any construction, reconstruction, relocation, repair or
maintenance performed by, or failed to be performed by, the other
party or any other cause whatsoever, including, without limitation,
breach of contract, breach of warranty, negligence, or strict
liability all claims for which damages are hereby specifically waived.
ARTICLE XVI.
INSURANCE
16.1 During the term of this Agreement, each party shall obtain and
maintain, and shall require any of its permitted subcontractors to
obtain and maintain, the following insurance, naming the other party
as an additional insured:
(a) Not less than $5,000,000 combined single limit liability
insurance, on an occurrence basis, for personal injury and property
damage, including, without limitation, injury or damage arising from
the operation of vehicles or equipment and liability for completed
operations;
(b) Worker's Compensation Insurance in amounts required by
applicable law and Employer's Liability insurance with a limit of at
least One Million Dollars ($1,000,000.00) per occurrence;
(c) Automobile liability insurance covering death or injury
to any person or persons, or damage to property arising from the
operation of vehicles or equipment, with limits of not less than One
Million Dollars ($1,000,000.00) per occurrence;
(d) "All Risk" property insurance in an amount equal to the
replacement cost of the property of such party subject to the IRUs
granted hereunder; and
(e) Any other insurance coverages required pursuant to
QWEST's right-of-way agreements with railroads or other third parties,
16.2 Both parties expressly acknowledge that a party shall be
deemed to be in compliance with the provisions of this Article if it
maintains an approved self-insurance program providing for a retention
of up to One Million Dollars ($1,000,000.00). If either party
provides any of the foregoing coverages on a claims made basis, such
policy or policies shall be for at least a three (3) year extended
reporting or discovery period.
16.3 Unless otherwise agreed, WORLDCOM's insurance policies shall
be obtained and maintained with companies rated A or better by Best's
Key Rating Guide and QWEST shall be expressly named as an additional
insured on all of WORLDCOM's insurance policies providing the required
coverage, or any portion thereof, described in this Article, and
WORLDCOM shall provide QWEST with an insurance certificate confirming
compliance with this requirement for each policy providing such
required coverage. The insurance certificate shall indicate that the
additional insured party shall be notified not less than thirty (30)
days prior to any cancellation or material change in coverage.
16.4 Unless otherwise agreed, QWEST's insurance policies shall be
obtained and maintained with companies rated A or better by Best's Key
Rating Guide and WORLDCOM shall be expressly named as an additional
insured on all of QWEST's insurance policies providing the required
coverage, or any portion thereof, described in this Article, and QWEST
shall provide WORLDCOM with an insurance certificate confirming
compliance with this requirement for each policy providing such
required coverage. The insurance certificate shall indicate that the
additional insured party shall be notified not less than thirty (30)
days prior to any cancellation or material change in coverage.
16.5 In the event either party fails to obtain the required
insurance or to obtain the required certificates from any contractor
and a claim is made or suffered, such party shall indemnify and hold
harmless the other party from any and all claims for which the
required insurance would have provided coverage. Further, in the
event of any such failure which continues after seven (7) days'
written notice thereof by the other party, such other partly, may, but
shall not be obligated to, obtain such insurance and will have the
right to be reimbursed for the cost of such insurance by the party
failing to obtain such insurance.
16.6 In the event coverage is denied or reimbursement of a properly
presented claim is disputed by the carrier for insurance provided
above, the party carrying such coverage shall make good faith efforts
to pursue such claim with its carrier.
16.7 WORLDCOM and QWEST shall each obtain from the insurance
companies providing the coverages required by this Agreement, the
permission of such insurers to allow such party to waive all rights of
subrogation and such party does hereby waive all rights of said
insurance companies to subrogation against the other party, its parent
corporation, affiliates, subsidiaries, assignees, officers, directors
and employees or any other party entitled to indemnity under this
Agreement.
ARTICLE XVII.
TAXES, FEES AND OTHER GOVERNMENTAL IMPOSITIONS
17.1 The parties acknowledge and agree that it is their mutual
objective and intent to (i) minimize, to the extent feasible, the
aggregate Impositions payable with respect to the QWEST System and the
WORLDCOM Conduit System and (ii) share such Impositions according to
their respective interests in each of the QWEST System and the
WORLDCOM Conduit System, and that they will cooperate with each other
and coordinate their mutual efforts to achieve such objectives in
accordance with the provisions of this Article XVII.
17.2 QWEST shall be responsible for and shall timely pay any and
all "Impositions" (as defined in Section 3 6. 1 ) with respect to the
construction or operation of each Segment of the QWEST System which
Impositions are (i) imposed or assessed prior to the Acceptance Date
with respect to such Segment or (ii) imposed or assessed (regardless
of the time) with respect to such Segment in exchange for the approval
of construction in or the original agreement which resulted in the
granting of an interest in public property or a public right-of-way
relating to the QWEST System. WORLDCOM shall be responsible for and
shall timely pay any and all Impositions imposed with respect to the
construction or operation of the WORLDCOM Conduit System which
Impositions are (iii) imposed or assessed prior to the QWEST Conduit
Acceptance Date or (iv) imposed or assessed (regardless of the time)
in exchange for the approval of construction in or the original
agreement which resulted in the granting of an interest in public
property or public right-of-way relating to the QWEST Conduit.
Notwithstanding the foregoing obligations, QWEST and WORLDCOM,
respectively, shall have the right to challenge any such Impositions
so long as the challenge of such Impositions does not adversely affect
the title, rights or property to be delivered pursuant hereto.
17.3 Except as to Impositions described in paragraph (ii) of
Section 17.2, following the Acceptance Date with respect to each
Segment delivered hereunder, QWEST shall timely pay any and all
Impositions imposed upon or with respect to such Segment to the extent
such Impositions may not feasibly be separately assessed or imposed
upon or against the respective ownership interests of QWEST and
WORLDCOM in the QWEST System; provided that, upon receipt of a notice
of any such Imposition, QWEST shall promptly notify WORLDCOM of such
Imposition and following payment of such Imposition by QWEST, WORLDCOM
shall promptly reimburse QWEST for its proportionate share of such
Impositions, which share shall be determined (i) to the extent
possible, based upon the manner and methodology used by the particular
authority imposing such Impositions (e.g., on the cost of the relative
property interests, historic or projected revenue derived therefrom,
or any combination thereof) or (ii) if the same cannot be so
determined, based on the relative number of WORLDCOM Fibers in the
affected Segment compared to the total number of fibers in such
Segment during the relevant tax period. Any reimbursement made under
this Section 17.3 shall be in an amount that, after deduction of all
Impositions required to be paid by QWEST in respect of the receipt or
accrual of such reimbursement and after consideration of any deduction
to which QWEST may be entitled with respect to the payment or accrual
of the Impositions which have been reimbursed, shall be equal to the
amount otherwise required to be paid by QWEST hereunder.
17.4 Except as to Impositions described in paragraph (iv) of
Section 17.2, following QWEST's acceptance of the QWEST Conduit
delivered hereunder, WORLDCOM shall timely pay any and all Impositions
imposed upon or with respect to the QWEST Conduit to the extent such
Impositions may not feasibly be separately assessed or imposed upon or
against the respective ownership interests of WORLDCOM and QWEST in
the QWEST Conduit; provided that upon receipt of a notice of any such
Imposition, WORLDCOM shall promptly notify QWEST of such Imposition
and following payment of such Imposition by WORLDCOM, QWEST shall
promptly reimburse WORLDCOM for its proportionate share of such
Impositions, which share shall be determined (i) to the extent
possible, based upon the manner and basis upon which the particular
authority imposed such Impositions (e.g., based on the cost of
relative property interests, historic or projected revenue derived
therefrom, or any combination thereof) or (ii) if the same cannot be
so determined, based on the ratio that the QWEST Conduit bears to the
total number of conduits in use in the WORLDCOM Conduit System during
the relevant tax period. Any reimbursement made under this Section
17.4 shall be in an amount that, after deduction of all Impositions
required to be paid by WORLDCOM in respect of the receipt or accrual
of such reimbursement and after consideration of any deduction to
which WORLDCOM may be entitled with respect to the payment or accrual
of the Impositions which have been reimbursed, shall be equal to the
amount otherwise required to be paid by WORLDCOM hereunder.
17.5 Notwithstanding any provision herein to the contrary, QWEST
shall have the right to, and, subject to the following provisos, at
WORLDCOM's request QWEST shall, contest any Imposition described in
Section 17.3, above, (including by non-payment of such Imposition);
provided that notwithstanding any such request by WORLDCOM (i) if the
aggregate amount of any such Imposition imposed by a single public
authority for any single tax year does not exceed $30,000.00, then
QWEST shall not have the obligation to protest such Imposition
(although it may do so in its own discretion), and (ii) if QWEST
determines, in its sole discretion, not to contest any such
Impositions other than those described in the foregoing clause (i),
QWEST shall be solely responsible for the payment thereof. The out-
of-pocket costs and expenses (including reasonable attorneys' fees)
incurred by QWEST in any such contest shall be shared by QWEST and
WORLDCOM in the same proportion as to which the parties would have
shared in such Impositions, as they were originally assessed. Any
refunds or credits resulting from a contest brought pursuant to this
Section 17.5 shall be divided between QWEST and WORLDCOM in the same
proportion as to which such refunded or credited Impositions were
borne by QWEST and WORLDCOM. In any such event, QWEST shall provide
timely notice of such challenge to WORLDCOM and QWEST shall have
determined, in good faith, that such contest and/or nonpayment does
not adversely affect the title, property or rights of WORLDCOM to the
WORLDCOM Fibers.
17.6 Notwithstanding any provision herein to the contrary, WORLDCOM
shall have the right to, and, subject to the following provisos, at
QWEST's request WORLDCOM shall, contest any Imposition described in
Section 17.4, above, (including by non-payment of such Imposition);
provided that, notwithstanding any such request by QWEST (i) if the
aggregate amount of any such Imposition imposed by a single public
authority for any single tax year does not exceed $30,000.00, then
WORLDCOM shall not have the obligation to protest such Imposition
(although it may do so in its own discretion), and (ii) if WORLDCOM
determines, in its sole discretion, not to contest any such
Impositions other than those described in the foregoing clause (i),
WORLDCOM shall be solely responsible for the payment thereof. The
out-of-pocket costs and expenses (including reasonable attorneys'
fees) incurred by WORLDCOM in any such contest shall be shared by
WORLDCOM and QWEST in the same proportion as to which the parties
would have shared in such Impositions, as they were originally
assessed. Any refunds or credits resulting from a contest brought
pursuant to this Section 17.6 shall be divided between WORLDCOM and
QWEST in the same proportion as to which such refunded or credited
Impositions were borne by WORLDCOM and QWEST. WORLDCOM shall provide
timely notice of such challenge to QWEST and WORLDCOM shall have
determined, in good faith, that such contest and/or non-payment does
not adversely affect the title, property or rights of QWEST to the
QWEST Conduit.
17.7 Except as to Impositions described in paragraphs (ii) and (iv)
of Section 17.2 following the Acceptance Date with respect to each
Segment delivered hereunder on the one hand, and following the
acceptance by QWEST of the QWEST Conduit on the other hand, QWEST and
WORLDCOM, respectively, shall be separately responsible for any and
all Impositions (i) expressly or implicitly imposed upon, based upon,
or otherwise measured by the gross receipts, gross income, net
receipts or net income received by or accrued to such party due to its
respective ownership or use of the QWEST System, the WORLDCOM Fibers,
the WORLDCOM Conduit System, or the QWEST Conduit or (ii) which have
been separately assessed or imposed upon the respective ownership
interest of such party in the QWEST System, the WORLDCOM Fibers, the
WORLDCOM Conduit System, or the QWEST Conduit. If the WORLDCOM Fibers
are the only fibers to be located in the Cable from the point where
the Cable leaves the QWEST System right-of-way to the POP, WORLDCOM
shall be solely responsible for any and all Impositions imposed on or
with respect to such portion of any Segment.
17.8 Notwithstanding any provision herein to the contrary, WORLDCOM
shall have the right to protest by appropriate proceedings any
Imposition described in Section 17.7, above. In such event, WORLDCOM
shall indemnify and hold QWEST harmless from any expense, legal action
or cost, including reasonable attorneys' fees, resulting from
WORLDCOM's exercise of its rights hereunder. In the event of any
refund, rebate, reduction or abatement to WORLDCOM of any such
Imposition imposed upon and/or paid by WORLDCOM, WORLDCOM shall be
entitled to receive the entire benefit of such refund, rebate,
reduction or abatement attributable to WORLDCOM's use of the QWEST
System. In the event WORLDCOM has exhausted all its rights of appeal
in protesting any Imposition and has failed to obtain the relief
sought in such proceedings or appeals ("Finally Determined Taxes and
Fees"), WORLDCOM and QWEST may jointly agree, at a cost to be shared
proportionately based on respective fiber counts, or either WORLDCOM
or QWEST may at its sole option and cost, agree to relocate a portion
of the fiber optic system so as to bypass the jurisdiction which had
imposed or assessed such Finally Determined Taxes and Fees. If
WORLDCOM and QWEST, or either of them, do not determine to relocate
the fiber optic system, WORLDCOM shall have the right to terminate its
use of the WORLDCOM Fibers in any Segment. Such termination shall be
effective on the date specified by WORLDCOM in a notice of
termination, which date shall be at least ninety (90) days after the
notice. Upon such termination, WORLDCOM's IRU in the affected Segment
shall immediately terminate, and the WORLDCOM Fiber in the affected
Segment shall revert to QWEST without reimbursement of any IRU fees or
other payments previously made with respect thereto.
17.9 Notwithstanding any provision herein to the contrary, QWEST
shall have the right to protest by appropriate proceedings any
Imposition described in Section 17.7, above. In such event, QWEST
shall indemnify and hold WORLDCOM harmless from any expense, legal
action or cost, including reasonable attorneys' fees, resulting from
QWEST's exercise of its rights hereunder. In the event of any refund,
rebate, reduction or abatement to QWEST of any such Imposition imposed
upon and/or paid by QWEST, QWEST shall be entitled to receive the
entire benefit of such refund, rebate, reduction or abatement
attributable to QWEST's use of the WORLDCOM Conduit System. In the
event QWEST has exhausted all its rights of appeal in protesting any
Imposition and has failed to obtain the relief sought in such
proceedings or appeals ("Finally Determined Taxes and Fees"), WORLDCOM
and QWEST may jointly agree, at a cost to be shared proportionately
based on respective fiber counts, or either WORLDCOM or QWEST may at
its sole option and cost, agree to relocate a portion of the fiber
optic system so as to bypass the jurisdiction which had imposed or
assessed such Finally Determined Taxes and Fees. If WORLDCOM and
QWEST, or either of them, do not determine to relocate the fiber optic
system, QWEST shall have the right to terminate its use of the QWEST
Conduit in any Segment. Such termination shall be effective on the
date specified by QWEST in a notice of termination, which date shall
be at least ninety (90) days after the notice. Upon such termination,
QWEST's IRU in the affected Segment shall immediately terminate, and
the QWEST Conduit in the affected Segment shall revert to WORLDCOM
without reimbursement of any fees or other payments previously paid.
17.10 Notwithstanding the provisions of Section 17.8, with
respect to any Impositions relating to the Segments of the QWEST
System which are imposed upon both QWEST and WORLDCOM (or both of
their respective interests therein), QWEST, at its option and at its
own expense, shall have the right to direct and manage any such
contest; subject, however, to reasonable and appropriate consultation
with WORLDCOM which hereby agrees to cooperate with QWEST in any such
contest. Notwithstanding the provisions of Section 17.9, with respect
to any Impositions relating to the WORLDCOM Conduit which are imposed
upon both WORLDCOM and QWEST (or both of their respective interests
therein), WORLDCOM, at its option and at its own expense, shall have
the right to direct and manage any such contest; subject, however, to
reasonable and appropriate consultation with QWEST which hereby agrees
to cooperate with WORLDCOM in any such contest. 'Me individual rights
of QWEST and WORLDCOM to contest any Imposition pursuant to this
Section 17.10 shall be contingent upon reasonable and appropriate
assurances that any such contest will not adversely affect the title,
property or right of the other party in the QWEST System or WORLDCOM
Conduit System.
17.11 QWEST and WORLDCOM agree to cooperate fully in the
preparation of any returns or reports relating to the Impositions.
QWEST and WORLDCOM further acknowledge and agree that the provisions
of this Article XVII are intended to allocate the Impositions expected
to be assessed against or imposed upon the parties with respect to the
QWEST System and the WORLDCOM Conduit System based upon the procedures
and methods of computation by which Impositions generally have been
assessed and imposed to date, and that material changes in the
procedures and methods of computation by which such assessments are
assessed and imposed could significantly alter the fundamental
economic assumptions underlying the transactions hereunder to the
parties. Accordingly, the parties agree that, if in the future the
procedures or methods of computation by which Impositions are assessed
or imposed against the parties change materially from the procedures
or methods of computation by which they are imposed as of the date
hereof (e.g., by the imposition or assessment of a right-of-way fee
that is in substance a "tax" because it substantially exceeds the fair
market value of the right-of-way rights), the parties will negotiate
in good faith an amendment to the provisions of this Article XVII in
order to preserve, to the extent reasonably possible, the economic
intent and effect of this Article XVII as of the date hereof.
ARTICLE XVIII.
NOTICE
18.1 Unless otherwise provided herein, all notices and
communications concerning this Agreement shall be addressed to the
other party as follows:
If to QWEST: QWEST Communications Corporation
ATTENTION: President
555 Seventeenth Street
Denver, Colorado 80202
Telephone No.: (303) 291-1400
Facsimile No.: (303) 291-1724
with a copy to: QWEST Communications Corporation
ATTENTION: General Counsel
555 Seventeenth Street
Denver, Colorado 80202
Telephone No.: (303) 291-1400
Facsimile No.: (303) 291-1724
If to WORLDCOM: WORLDCOM, Inc.
c/o WORLDCOM Network Services, Inc.
ATTENTION: Vice President - Network Operations
One Williams Center
Tulsa, Oklahoma 74172
Facsimile No.: (918)590-5598
and to: WORLDCOM Network Services, Inc.
ATTENTION: Contract Administration
One Williams Center
Tulsa, Oklahoma 74172
Facsimile No.: (918) 590-3293
and, if claiming
an event of default,
with a copy to: Michael D. Cooke
Hall, Estill, Hardwick, Gable, Golden & Nelson
320 S. Boston Avenue, Suite 400
Tulsa, Oklahoma 74105
Facsimile No.: (918) 594-0505
or at such other address as may be designated in writing to the other
party.
18.2 Unless otherwise provided herein, notices shall be hand
delivered, sent by registered or certified U.S. Mail, postage prepaid,
or by commercial overnight delivery service, or transmitted by
facsimile, and shall be deemed served or delivered to the addressee or
its office when received at the address for notice specified above
when hand delivered, upon confirmation of sending when sent by fax, on
the day after being sent when sent by overnight delivery service, or
three (3) days after deposit in the mail when sent by U.S. mail.
ARTICLE XIX.
CONFIDENTIALITY
19.1 If the parties to this Agreement have entered into (or later
enter into) a Confidentiality Agreement, the terms of such an
agreement shall control and Section 19.1 of this Article shall not
apply; however, if any such Confidentiality Agreement expires or is no
longer effective at any time during the Term of this Agreement, this
Section 19.1 shall be in effect during those periods.
19.2 In the absence of a separate Confidentiality Agreement between
the parties, if either party provides confidential information to the
other in writing and identified as such, the receiving party shall
protect the confidential information from disclosure to third parties
with the same degree of care accorded its own confidential and
proprietary information. Neither party shall be required to hold
confidential any information which (i) becomes publicly available
other than through the recipient; (ii) is required to be disclosed by
a governmental or judicial order, rule or regulation; (iii) is
independently developed by the disclosing party; or (iv) becomes
available to the disclosing party without restriction from a third
party. These obligations shall survive expiration or termination of
this Agreement
19.3 Notwithstanding Sections 19.1 and 19.2 of this Article,
confidential information shall not include information disclosed by
the receiving party as required by applicable law or regulation;
provided that the information disclosed is limited to the existence
and general nature of the relationship between the parties, including,
as required, the scope, approximate revenues, purposes and
expectations related to such relationship and a description of any
disputes relating thereto. Notwithstanding the foregoing, this
Agreement may be provided to any governmental agency or court of
competent jurisdiction to the extent required by applicable law.
ARTICLE XX.
DEFAULT
20.1 With respect to all payments required to be made by WORLDCOM
hereunder, WORLDCOM shall be in default hereunder if such payment is
not paid on the date due and payable hereunder, and from and after
such date such unpaid amount shall bear interest until paid at a rate
equal to the rate set forth in Article XXVII. With respect to all
non-payment obligations, WORLDCOM shall be in default under this
Agreement thirty (30) days after QWEST shall have given WORLDCOM
written notice of such default unless WORLDCOM shall have cured such
default or such default is otherwise waived within such thirty (30)
days; provided, however, that where such default cannot reasonably be
cured within such thirty (30) day-period, if WORLDCOM shall proceed
promptly to cure the same and prosecute such curing with due
diligence, the time for curing such default shall be extended for such
period of time as may be necessary to complete such curing. Events of
default also shall include, but not be limited to, the making by
WORLDCOM of a general assignment for the benefit of its creditors, the
filing of a voluntary petition in bankruptcy or the filing of a
petition in bankruptcy or other insolvency protection against WORLDCOM
which is not dismissed within ninety (90) days thereafter, or the
filing by WORLDCOM of any petition or answer seeking, consenting to,
or acquiescing in reorganization, arrangement, adjustment composition,
liquidation, dissolution, or similar relief. Any event of default by
WORLDCOM may be waived under the terms of this Agreement at QWEST's
option. Upon the failure by WORLDCOM to timely cure any such default
after notice thereof from QWEST, QWEST may (i) take such action as it
determines, in its sole discretion, to be necessary to correct the
default, and (ii) pursue any legal remedies it may have under
applicable law or principles of equity relating to such breach.
Notwithstanding the above, if WORLDCOM certifies in good faith to
QWEST in writing that a default has been cured, such default shall be
deemed to be cured unless QWEST otherwise notifies WORLDCOM in writing
within fifteen (15) days of receipt of such notice from WORLDCOM.
20.2. With respect to all payments required to be made by QWEST
hereunder, QWEST shall be in default hereunder if such payment is not
paid on the date due and payable hereunder, and from and after such
date such unpaid amount shall bear interest until paid at a rate equal
to the rate set forth in Article XXXIII With respect to its obligation
to deliver the various Segments by the respective Scheduled Delivery
Dates, QWEST shall be in default under this Agreement sixty (60) days
after WORLDCOM shall have given QWEST written notice of its failure to
deliver a Segment by the relevant Scheduled Delivery Date unless QWEST
shall have cured such default or such default is otherwise waived
within such sixty (60) days. With respect to all other non-payment
obligations, QWEST shall be in default under this Agreement thirty
(30) days after WORLDCOM shall have given QWEST written notice of such
default unless QWEST shall have cured such default or such default is
otherwise waived within thirty (30) days; provided, however, that
where such default cannot reasonably be cured within such thirty (30)
day-period, if QWEST shall proceed promptly to cure the same and
prosecute such curing with due diligence, the time for curing such
default shall be extended for such period of time as may be necessary
to complete such curing. Events of default also shall include, but
not be limited to, the making by QWEST of a general assignment for the
benefit of its creditors, the filing of a voluntary petition in
bankruptcy or the filing of a petition in bankruptcy or other
insolvency protection against QWEST which is not dismissed within
ninety (90) days thereafter, or the filing by QWEST of any petition or
answer seeking, consenting to, or acquiescing in reorganization,
arrangement, adjustment, composition, liquidation, dissolution, or
similar relief. Any event of default by QWEST may be waived under the
terms of this Agreement at WORLDCOM's option. Upon the failure by
QWEST to timely cure any such default after notice thereof from
WORLDCOM, WORLDCOM may (i) take such action as it determines, in its
sole discretion, to be necessary to correct the default, and (ii)
pursue any legal remedies it may have under applicable law or
principles of equity relating to such breach. Notwithstanding the
above, if QWEST certifies in good faith to WORLDCOM in writing that a
default has been cured, such default shall be deemed to be cured
unless WORLDCOM otherwise notifies QWEST in writing within fifteen
(15) days of receipt of such notice from QWEST.
ARTICLE XXI.
TERMINATION
21.1 Upon the expiration of this Agreement, QWEST's IRU in the
WORLDCOM Conduit System shall immediately terminate and all rights of
QWEST to use the QWEST Conduit, or any part thereof, shall cease and
WORLDCOM shall owe QWEST no additional duties or consideration with
respect to the QWEST Conduit. QWEST shall remove all electronics and
equipment from any WORLDCOM facilities at its sole cost under
WORLDCOM's supervision.
21.2 Upon the expiration of this Agreement, WORLDCOM's IRU in the
QWEST System shall immediately terminate and all rights of WORLDCOM to
use the QWEST System, or any part thereof, shall cease and QWEST shall
owe WORLDCOM no additional duties or consideration with respect to the
QWEST System. WORLDCOM shall remove all electronics, equipment and
regeneration facilities from any QWEST facilities at its sole cost
under QWEST's supervision.
21.3 Notwithstanding the foregoing, no termination or expiration of
this Agreement shall affect the rights or obligations of any party
hereto (i) with respect to any then existing defaults or the
obligation to make any payment hereunder for services rendered prior
to the date of termination or expiration or (ii) pursuant to
Article XIV, Article XV, Article XVII or Article XIX herein, which
shall survive the expiration or termination hereof.
ARTICLE XXII.
FORCE MAJEURE
22.1 Neither party shall be in default under this Agreement to the
extent that any delay in such party's performance is caused by any of
the following conditions, and such party's performance shall be
excused and extended during the period of any such delay: act of God;
fire; flood; fiber, Cable, or other material shortages or
unavailability or other delay in delivery not resulting from the
responsible party's failure to timely place orders therefor (it being
expressly acknowledged that the fiber optic cable that is being
acquired for and installed in the QWEST System and that will include
the WORLDCOM Fiber must include higher fiber counts than that
necessary solely for the WORLDCOM Fiber in order to permit completion
of the entire QWEST System); lack of or delay in transportation;
government codes, ordinances, laws, rules, regulations or restrictions
(collectively, "Regulations") (but not to the extent the delay caused
by such Regulations could be reasonably avoided by rerouting the
Cable); war or civil disorder; failure of a third party to grant a
required permit easement, or other required authorization for use of
the intended right-of-way (provided that such required authorization
was sought and pursued on a timely and reasonable best efforts basis),
or any other cause beyond the commercially reasonable control of such
party, provided that the party claiming relief under this Article
shall promptly notify the other in writing of the existence of the
event relied on and the cessation or termination of said event. The
party claiming relief under this Article shall exercise reasonable
efforts to minimize the time for any such delay.
ARTICLE XIII.
ARBITRATION
23.1 Any dispute or disagreement arising between QWEST and WORLDCOM
in connection with this Agreement which is not settled to the mutual
satisfaction of QWEST and WORLDCOM within thirty (30) days from the
date that either party informs the other in writing that such dispute
or disagreement exists, shall be settled by arbitration in Kansas
City, Missouri, in accordance with the Commercial Arbitration Rules of
the American Arbitration Association in effect on the date that such
notice is given. If the parties are unable to agree on a single
arbitrator within fifteen (15) days, each party shall select an
arbitrator and the two (2) arbitrators shall mutually select a third
arbitrator, the three of whom shall serve as an arbitration panel.
The decision of the arbitrator(s) shall be final and binding upon the
parties and shall include written findings of law and fact, and
judgment may be obtained thereon by either party in a court of
competent jurisdiction. Each party shall bear the cost of preparing
and presenting its own case. The cost of the arbitration, including
the fees and expenses of the arbitrator(s), shall be shared equally by
the parties hereto unless the award otherwise provides.
23.2 The obligation herein to arbitrate shall not be binding upon
any party with respect to requests for preliminary injunctions,
temporary restraining orders or other similar temporary procedures in
a court of competent jurisdiction to obtain interim relief when deemed
necessary by such court to preserve the status quo or prevent
irreparable injury pending resolution by arbitration of the actual
dispute. It is not the intention of the parties that such injunctive
procedures shall be in lieu of, or cause substantial delay to, any
arbitration proceeding commenced under Section 23.1 above.
ARTICLE XXIV.
WAIVER
24.1 The failure of either party hereto to enforce any of the
provisions of this Agreement, or the waiver thereof in any instance,
shall not 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.
ARTICLE XXV.
GOVERNING LAW
25.1 This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Colorado, without
reference to its choice of law principles.
ARTICLE XXVI.
RULES OF CONSTRUCTION
26.1 The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement
or as amplifying or limiting any of its content. Words in this
Agreement which import the singular connotation shall be interpreted
as plural, and words which import the plural connotation shall be
interpreted as singular, as the identity of the parties or objects
referred to may require.
26.2 Unless expressly defined herein, words having well known
technical or trade meanings shall be so construed. All listing of
items shall not be taken to be exclusive, but shall include other
items, whether similar or dissimilar to those listed, as the context
reasonably requires.
26.3 Except as set forth to the contrary herein, any right or
remedy of WORLDCOM or QWEST shall be cumulative and without prejudice
to any other right or remedy, whether contained herein or not.
26.4 Nothing in this Agreement is intended to provide any legal
rights to anyone not an executing party of this Agreement.
26.5 This Agreement has been fully negotiated between and jointly
drafted by the parties.
26.6 In the event of a conflict between the provisions of this
Agreement and those of any Exhibit, the provisions of this Agreement
shall prevail and such Exhibits shall be corrected accordingly. In
the event of any conflict between the provisions of Exhibit B and
those of Exhibit C, the provisions of Exhibit B shall prevail and
Exhibit C shall be corrected accordingly.
26.7 All actions, activities, consents, approvals and other
undertakings of the parties in this Agreement shall be performed in a
reasonable and timely manner, it being expressly acknowledged and
understood that time is of the essence in the performance of
obligations required to be performed by a date expressly specified
herein. Except as specifically set forth herein, for the purpose of
this Article the normal standards of performance within the
telecommunications industry in the relevant market shall be the
measure of whether a party's performance is reasonable and timely.
ARTICLE XXVII.
ASSIGNMENT AND DARK FIBER TRANSFERS
27.1 Except as provided below, QWEST shall not assign, encumber or
otherwise transfer this Agreement or its rights or obligations
hereunder to any other party without the prior written consent of
WORLDCOM, which consent will not be unreasonably withheld or delayed.
QWEST shall have the right, without WORLDCOM's consent, to assign or
otherwise transfer this Agreement (i) as collateral to any
institutional lender to QWEST (or to any permitted transferee or
assignee of QWEST) subject to the prior rights and obligations of the
parties hereunder, (ii) to any parent, subsidiary or affiliate of
QWEST, (iii) to any person, firm or corporation which shall control,
be under the control of or be under common control with QWEST, or (iv)
any corporation or other entity into which QWEST may be merged or
consolidated or which purchases all or substantially all of the assets
of QWEST; provided that the assignee or transferee in any such
circumstance shall continue to be subject to all of the provisions of
this Agreement, including without limitation, this Section 27.1
(except that any lender referred to in clause (i) above shall not
incur any obligations under this Agreement nor shall it be restricted
from exercising any right of enforcement or foreclosure with respect
to any related security interest or lien, so long as the purchaser in
foreclosure is subject to the provisions of this Agreement, including,
without limitation, this Section 27. 1); provided further that
promptly following any such assignment or transfer QWEST shall give
WORLDCOM written notice identifying the assignee or transferees and
provided further that any such assignment or transfer shall be
conditioned upon the corresponding assignment or transfer of QWEST's
rights and obligations under the Maintenance Agreement. In the event
of any permitted partial assignment of any rights hereunder, QWEST
shall remain the sole point of contact with WORLDCOM.
27.2 Except as provided below, WORLDCOM shall not assign, encumber
or otherwise transfer this Agreement or its rights or obligations
hereunder to any other party without the prior written consent of
QWEST, which consent will not be unreasonably withheld or delayed.
Subject to the provisions of Section 27.3 (which provision shall be
binding upon any permitted assignee or transferee hereunder), WORLDCOM
shall have the right, without QWEST's consent, to assign or otherwise
transfer this Agreement (i) as collateral to any institutional lender
to WORLDCOM (or to any permitted transferee or assignee of WORLDCOM)
subject to the prior rights and obligations of the parties hereunder,
(ii) to any parent, subsidiary or affiliate of WORLDCOM, (iii) to any
person, firm or corporation which shall control, be under the control
of or be under common control with WORLDCOM, or (iv) any corporation
into which WORLDCOM may be merged or consolidated or which purchases
all or substantially all of the assets of WORLDCOM; provided that the
assignee or transferee in any such circumstance shall continue to be
subject to all of the provisions of this Agreement, including without
limitation this Section 27.2 and the following Section 27.3 (except
that any lender referred to in clause (i) above shall not incur any
obligations under this Agreement nor shall it be restricted from
exercising any right of enforcement or foreclosure with respect to any
related security interest or lien, so long as the purchaser in
foreclosure is subject to the provisions of this Agreement, including,
without limitation, this Section 27.1 and the following Section 27.3);
provided further that, promptly following any such assignment or
transfer, WORLDCOM shall give QWEST written notice identifying the
assignee or transferee; and provided further that any such assignment
or transfer shall be conditioned upon the corresponding assignment or
transfer of WORLDCOM's rights and obligations under the Maintenance
Agreement. In the event of any permitted partial assignment of any
rights hereunder, WORLDCOM shall remain the sole point of contact with
QWEST.
27.3 Notwithstanding the provisions of Article XIII, without the
prior written consent of QWEST, which consent may be withheld in
QWEST's sole discretion, WORLDCOM, for a period of
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from the date of this Agreement, shall not sell, lease, grant an IRU with
respect to, exchange, or otherwise in any manner transfer or make
available in any manner to any third party the ownership, right to
use, use of, or access in any manner to any of the whole and discrete
WORLDCOM Fibers (other than the Portland/U.P. Fibers) as Dark Fibers,
or otherwise engage in a similar transaction with respect to WORLDCOM
Fibers in a manner designed or intended to circumvent the foregoing
limitations; provided that the foregoing restriction shall not apply
to the single partial assignment by WORLDCOM of the right to use one
of the WORLDCOM Fibers as a Dark Fiber for video and radio
transmission services and/or related applications, including, without
limitation, graphic, visual, imaging, interactive and multimedia
applications.
27.4 This Agreement and each of the parties' respective rights and
obligations under this Agreement, shall be binding upon and shall
inure to the benefit of the parties hereto and each of their
respective permitted successors and assigns.
ARTICLE XXVIII.
REPRESENTATIONS AND WARRANTIES
28.1 Each party represents and warrants that:
(a) It has the full right and authority to enter into,
execute, deliver and perform its obligations under this Agreement;
(b) It has taken all requisite corporate action to approve
the execution, delivery and performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding
obligation enforceable against such party in accordance with its
terms, subject to bankruptcy, insolvency, creditors' rights and
general equitable principles; and
(d) Its execution of and performance under this Agreement
shall not violate any applicable existing regulations, rules, statutes
or court orders of any local, state or federal government agency,
court or body.
28.2 QWEST warrants and represents that the Segments of the QWEST
System that it has constructed or will construct either have been or
shall be designed, engineered, installed, and constructed in material
compliance with any and all applicable building, construction and
safety codes for such construction and installation, as well as any
and all other applicable governmental laws, codes, ordinances,
statutes and regulations.
28.3 With respect to Segments 1, 2, 2A, 3 and 7, QWEST represents
and warrants that (i) such Segments, when constructed, generally were
constructed substantially in accordance with the specifications set
forth in Exhibit B hereto, and (ii) except as set forth on Exhibit F
hereto, QWEST has no actual knowledge on the date hereof of any
material deviation in the construction of such Segments from such
specifications. With respect to Segment 3, QWEST represents and
warrants that, other than as set forth in Exhibit F, it has no actual
knowledge on the date hereof of any material deviation in the
construction thereof from the As-Builts provided with respect thereto.
If, within twenty-four (24) months from the respective Acceptance Date
for each of Segments 1, 2, 2A, 3 and 7, there is an event or
occurrence that is caused by a material deviation in the construction
or installation of any of such Segments from such specifications, and
which has a material adverse effect on the operation or performance of
the WORLDCOM Fibers in such Segment, then QWEST, at its sole cost and
expense (including Impositions with respect thereto), shall repair the
affected portion of such Segment to the relevant specifications.
28.4 With respect to Segments 4, 5 and 6, subject to the provisions
of Sections 1.2 and 1.3, QWEST represents and warrants that such
Segments shall be constructed in all material respects in accordance
with the specifications set forth in Exhibit B hereto; provided that
WORLDCOM's sole rights and remedies with respect to any failure to so
construct such Segments shall be (i) to inspect the construction,
installation and splicing, and participate in the acceptance testing,
of the WORLDCOM Fiber incorporated in such Segments, during the course
and at the time of the relevant construction, installation and testing
periods for each portion of such Segment, as provided in Articles III
and IV, (ii) if, during the course of such construction, installation
and testing of a Segment any material deviation from the
specifications set forth in Exhibit B is discovered, the construction
or installation of the affected portion of such Segment shall be
repaired to such specification by QWEST at QWEST's sole cost and
expense, and (iii) if, at any time prior to the date that is twelve
(12) months after the Acceptance Date for a particular Segment,
WORLDCOM shall notify QWEST in writing of its discovery of a material
deviation from the specifications set forth in Exhibit B with respect
to such Segment (which notice shall be given promptly following the
date of such discovery, but in any event not later than the last day
of such 12-month period) the construction or installation of the
affected portion of such Segment shall be repaired to such
specification by QWEST at QWEST's sole cost and expense. For purposes
hereof, "material deviation" means a deviation which is reasonably
likely to have a material adverse affect on the operation or
performance of the WORLDCOM Fibers affected thereby.
28.5 WORLDCOM warrants and represents that the WORLDCOM Conduit
System shall be designed, engineered, installed and constructed in
material compliance with any and all applicable building, construction
and safety codes for such construction and installation, as well as
any and all other applicable governmental laws, codes, ordinances,
statutes and regulations.
28.6 WORLDCOM represents and warrants that the QWEST Conduit shall
be constructed in all material respects in accordance with the
specifications set forth in Exhibit B hereto; provided that QWEST's
sole rights and remedies with respect to any failure to so construct
the QWEST Conduit shall be (i) to inspect the construction and
installation of the QWEST Conduit and the subsequent installation of
the cable installed therein during the course and the time of their
construction and installation as provided in Article V, (ii) if,
during the course of such construction and installation any material
deviation from the specifications set forth in Exhibit B is
discovered, the construction or installation of the affected portion
of the QWEST Conduit shall be repaired to such specification by
WORLDCOM at WORLDCOM's sole cost and expense, and (iii) if, at any
time prior to the date that is twelve (12) months after the QWEST
Conduit Acceptance Date, QWEST shall notify WORLDCOM in writing of its
discovery of a material deviation from the specifications set forth in
Exhibit B (which notice shall be given promptly following the date of
such discovery, but in any event not later than the last day of such
12-month period) the construction or installation of the affected
portion of the QWEST Conduit shall be repaired to such specification
at WORLDCOM's sole cost and expense. For purposes hereof, "material
deviation" means a deviation which is reasonably likely to have a
material adverse affect on the operation or performance of QWEST
Conduit or QWEST's fiber optic cable housed therein.
28.7 EXCEPT AS SET FORTH IN THE FOREGOING PARAGRAPHS 28.2, 28.3 AND
28.4, QWEST MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
WORLDCOM FIBERS OR THE SEGMENTS OF THE QWEST SYSTEM DELIVERABLE
HEREUNDER, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED.
28.8 EXCEPT AS SET FORTH IN THE FOREGOING PARAGRAPHS 28.5 AND 28.6,
WORLDCOM MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
WORLDCOM CONDUIT, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED.
ARTICLE XXIX.
ENTIRE AGREEMENT- AMENDMENT
29.1 This Agreement, together with the Maintenance Agreement, any
Regeneration Sharing Agreement, and any Confidentiality Agreement
entered into in connection herewith, constitutes the entire and final
agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior agreements relating to
the subject matter hereof (including, without limitation that certain
letter agreement between the parties dated February 2, 1996), which
are of no further force or effect. The Exhibits referred to herein
are integral parts hereof and are hereby made a part of this
Agreement. This Agreement may only be modified or supplemented by an
instrument in writing executed by a duly authorized representative of
each party.
ARTICLE XXX.
NO PERSONAL LIABILITY
30.1 Each action or claim against any party arising under or
relating to this Agreement shall be made only against such party as a
corporation, and any liability relating thereto shall be enforceable
only against the corporate assets of such party. No party shall seek
to pierce the corporate veil or otherwise seek to impose any liability
relating to, or arising from, this Agreement against any shareholder,
employee, officer or director of the other party. Each of such
persons is an intended beneficiary of the mutual promises set forth in
this Article and shall be entitled to enforce the obligations of this
Article.
ARTICLE XXXI.
CONFLICTS OF INTEREST
31.1 Neither party shall use any funds received under this
Agreement for illegal purposes. Neither party shall pay any
commission, fees or rebates to any employee of the other party, or
favor any employee of such other party with gifts or entertainment of
significant cost or value intended to influence the actions of such
employee in a manner inconsistent with that employee's duty of loyalty
to its employer. If either party has reasonable cause to believe that
one of the provisions in this Article has been violated, it, or its
representative, may audit the relevant books and records of the other
party for the sole purpose of establishing compliance with such
provisions.
ARTICLE XXXII.
RELATIONSHIP OF THE PARTIES
32.1 The relationship between WORLDCOM and QWEST shall not be that
of partners, agents, or joint venturers for one another, and nothing
contained in this Agreement shall be deemed to constitute a
partnership or agency agreement between them for any purposes,
including but not limited to federal income tax purposes. WORLDCOM
and QWEST, in performing any of their obligations hereunder, shall be
independent contractors or independent parties and shall discharge
their contractual obligations at their own risk.
ARTICLE XXXIII.
LATE PAYMENTS
33.1 In the event a party shall fail to make any payment under this
Agreement when due, such amounts shall accrue interest, from the date
such payment is due until paid, including accrued interest, at an
annual rate equal to
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of the prime rate of interest published by The Wall Street Journal as
the base rate on corporate loans posted by a percentage of the
nation's largest banks on the date any such payment is due or, if
lower, the highest percentage allowed by law.
ARTICLE XXXIV.
SEVERABILITY
34.1 If any term, covenant or condition contained herein shall, to
any extent, be invalid or unenforceable in any respect under the laws
governing this Agreement, the remainder of this Agreement shall not be
affected thereby, and each term, covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent
permitted by law.
ARTICLE XXXV.
COUNTERPARTS
35.1 This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one and the same
instrument.
ARTICLE XXXVI.
CERTAIN DEFINITIONS
36.1 The following terms hall have the stated definitions in this
Agreement.
(a) "Cable" means the fiber optic cable and the fibers
contained therein, and associated splicing connections, splice boxes
and vaults, and conduit, to be installed by QWEST as part of the QWEST
System.
(b) "Costs" means actual, direct costs paid or payable in
accordance with the established accounting procedures generally used
by WORLDCOM or QWEST, as the case may be, and which it utilizes in
billing third parties for reimbursable projects which costs shall
include, without limitation, the following: (i) labor costs, including
wages and salaries, and benefits and overhead allowable to such labor
costs (overhead allocation percentage shall not exceed the lesser of
(x) the percentage QWEST or WORLDCOM, as applicable, allocates to its
internal projects or (y)
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, and (ii) other direct costs and out-of-pocket expenses on a pass-
through basis (e.g., equipment, materials, supplies, contract
services, etc.).
(c) "Dark Fiber" means fiber provided without electronics or
optronics, and which is not "lit" or activated; provided that such
fiber may be used in any manner and for any purpose permitted under
Article XIII.
(d) "Final Acceptance Date" means the last date on which
WORLDCOM has accepted the latest of the Segments to be accepted.
(e) "Impositions" means all taxes, fees, levies, imposts,
duties, charges or withholdings of any nature (including, without
limitation, franchise, license and permit fees), together with any
penalties, fines or interest thereon arising out of the transactions
contemplated by this Agreement and imposed upon the QWEST System or
the WORLDCOM Conduit System by any federal, state or local government
or other public taxing authority.
(f) "Indefeasible Right of Use" or "IRU" means (i) an
exclusive, indefeasible right of use, for the purposes described
herein, in the WORLDCOM Fibers or the QWEST Conduit, as applicable, as
granted in Article II or Article V, as applicable, and (ii) an
associated non-exclusive, indefeasible right of use, for the purposes
described herein, in the QWEST Associated Property or the WORLDCOM
Associated Property, as applicable; provided that, IRUs granted
hereunder do not provide the grantee with any ownership interest in or
other rights to physical access to, control of, modification of,
encumbrance in any manner of, or other use of the WORLDCOM Conduit
System or the QWEST System except as expressly set forth herein.
(g) "POP" means the point of presence at each of the end
point and intermediate point locations identified in Exhibit A.
(h) "PSWP" means Planned System Work Period, which is a
prearranged period of time reserved for performing certain work on the
System that may potentially impact traffic. Generally, this will be
restricted to weekends, avoiding the first and last weekend of each
month and high-traffic weekends.
(i) "QWEST System" shall have the meaning ascribed thereto in
Recital A.
(j) "Scheduled Delivery Date" for the completion of the
installation of any Segment shall mean the applicable date shown in
Section 1.4, as extended to the extent of any delay described in
Article XXII.
(k) "Segment" means any one of those city pairs identified in
Article II.
(l) "WORLDCOM Conduit System" shall have the meaning ascribed
thereto in Recital D.
ARTICLE XXXVII.
THIRD PARTY WARRANTIES
37.1 In the event any maintenance or repairs to the QWEST System
are required as a result of a breach of any warranty made by any
manufacturers, contractors or vendors, QWEST, as applicable, shall
pursue any remedies it may have against such manufacturers,
contractors or vendors, and QWEST shall reimburse WORLDCOM's costs for
any maintenance WORLDCOM has incurred as a result of any such breach
of warranty to the extent the manufacturer, contractor or vendor has
paid such costs. In the event any maintenance or repairs to the
WORLDCOM Conduit System are required as a result of a breach of any
warranty made by any manufacturers, contractors or vendors, WORLDCOM,
as applicable, shall pursue any remedies it may have against such
manufacturers, contractors or vendors, and WORLDCOM shall reimburse
QWEST's costs for any maintenance QWEST has incurred as a result of
any such breach of warranty to the extent the manufacturer, contractor
or vendor has paid such costs.
In confirmation of their consent and agreement to the terms and
conditions contained in this IRU Agreement and intending to be legally
bound hereby, the parties have executed this IRU Agreement as of the
date first above written.
"QWEST":
QWEST COMMUNICATIONS CORPORATION, a Delaware
corporation
By:/s/
Name: Douglas H. Hanson
Title: President and Chief Executive Officer
"WORLDCOM":
WORLDCOM NETWORK SERVICES, INC., a Delaware
corporation
By:/s/
Name: Scott Sullivan
Title: Chief Financial Officer
EXHIBIT A
QWEST System
Description
EXHIBIT A
Segment 1
DALLAS-HOUSTON
Dallas - 1201 Main Street End Point
Houston - the existing WorldCom cable at the End Point
intersection of Hardy and Lyons Street
DALLAS, TX. TO HOUSTON, TX.
REQUIRES STREET BUILD OF 7,550' FROM 1201 MAIN STREET TO
EXISTING DUCT SYSTEM AT INTERSECTION OF HALL STREET AND
D.A.R.T. PROPERTY. USE EXISTING FIBER PLACED ON QWEST PROPERTY AT 777
WALKER STREET IN HOUSTON. REQUIRES 850' STREET BUILD OR USE OF
WORLDCOM DUCT FROM 777 WALKER STREET TO INTERSECTION OF LYONS & HARDY STREET IN
HOUSTON.
DALLAS
(1201 MAIN STREET)
TOTAL LENGTH OF SEGMENT APPROX. 269 MILES
MEXIA
BRYAN
EUREKA
HOUSTON
(INTERSECTION OF LYONS & HARDY STREET)
EXHIBIT A
Segment 2
DALLAS-EL PASO
Denver - 910 15th Street End Point
Albuquerque - 200 Lomas Boulevard Intermediate Point
El Paso - 201 East Main Street End Point
Colorado Springs Connecting Point
Pueblo Connecting Point
DENVER, CO TO EL PASO, TX
PULL CABLE FROM 910 15TH STREET IN DENVER TO 200 LOMAS BLVD. IN
ALBUQUERQUE AND FROM 200 LOMAS BLVD. TO 201 E. MAIN STREET IN
EL PASO. THIS WILL REQUIRE A 3,500' STREET BUILD IN DENVER, AN
ADDITIONAL 13.8 MILE RAILROAD BUILD FROM DENVER TO LITTLETON,
THE USE OF EXISTING CONDUIT FROM LITTLETON TO ALBUQUERQUE,
A 700' STREET BUILD TO LOMAS BLVD., AND THE USE OF EXISTING
CONDUIT FROM ALBUQUERQUE TO 201 E. MAIN STREET IN EL PASO.
DENVER
(910 15TH ST.)
3,500' STREET BUILD
TOTAL LENGTH OF SEGMENT APPROX. 749 MILES
LAMY, NM
ALBUQUERQUE
200 E. LOMAS BLVD.
700' STREET BUILD
EL PASO
(201 E. MAIN ST.)
EXHIBIT A
Segment 2A
LAMY, NM - SANTA FE, NM
Lamy - Qwest System Handhole on Right-of-Way End Point
Santa Fe - Qwest System Terminus on Right-of-Way End Point
LAMY, NM. TO SANTA FE, NM.
USE EXISTING QWEST CONDUIT SYSTEM
BETWEEN LAMY AND SANTA FE
TOTAL LENGTH OF SEGMENT APPROX. 17 MI.
SANTA FE
LAMY NM.
EXHIBIT A
Segment 3
SANTA CLARA, CALIFORNIA - SALT LAKE CITY, UTAH
Santa Clara - 2300 Walsh Street, Building K End Point
Sacramento - 770 L Street Intermediate Point
Salt Lake City - 136 E. South Temple Street End Point
Reno Connecting Point
Oakland Connecting Point
SANTA CLARA, CA. TO SALT LAKE CITY, UT.
PULL CABLE FROM 2300 WALSH STREET (SANTA CLARA) TO JULIAN STREET
(SAN JOSE). USE EXISTING FIBER FROM JULIAN STREET TO ROSEVILLE, CA. (SOUTHERN
PACIFIC RAILROAD PROPERTY). IN SACRAMENTO USE EXISTING FIBER ON 6,600'
STREET BUILD TO 770 L STREET. FROM ROSEVILLE TO RENO PULL CABLE THRU
EXISTING DUCT ON SOUTHERN PACIFIC PROPERTY. FROM RENO TO WELLS PULL
CABLE THRU EXISTING DUCT ON SOUTHERN PACIFIC PROPERTY. FROM WELLS
TO SALT LAKE CITY PULL CABLE THRU EXISTING DUCT ON UNION PACIFIC
PROPERTY. IN SALT LAKE CITY AN ADDITIONAL STREET BUILD WILL BE
REQUIRED FROM THE EXISTING CONDUIT ON RAILROAD PROPERTY TO 136 E. SOUTH TEMPLE
(7,450')
TOTAL LENGTH OF SEGMENT APPROX. 871 MILES
RENO SALT LAKE
CITY
MP 242.7 (136 E. SOUTH TEMPLE)
7,450' STREET BUILD
ROSEVILLE
MP 106.6
SACRAMENTO
MP 89.86 (A)
770 L STREET
SANTA CLARA
JULIAN STREET
(SAN JOSE)
MP 47.36 (DA)
EXHIBIT A
Segment 4
OAKLAND - PORTLAND
Oakland - 290 5th Street End Point
Portland - 707 SW Washington Street End Point
OAKLAND, CA. TO PORTLAND, ORE.
USE EXISTING FIBER PREVIOUSLY PULLED FROM SANTA CLARA TO
SAN JOSE, EXISTING CALFIBER CABLE FROM JULIAN STREET (SAN JOSE)
TO ROSEVILLE. IN SACRAMENTO USE EXISTING FIBER ON 6,600' STREET
BUILD TO 770 L STREET. FROM ROSEVILLE TO PORTLAND FINAL
DETERMINATION HAS NOT BEEN MADE ON ROUTE.
TOTAL LENGTH OF SEGMENT APPROX. 752 MILES
PORTLAND
(707 SW WASHINGTON STREET)
ROSEVILLE
MP 108.6
SACRAMENTO
MP 89.86 (A)
770 L STREET
OAKLAND
MP 6.23 (D)
EXHIBIT A
Segment 5
CLEVELAND - BOSTON
Cleveland - 1150 West 3rd Street End Point
Boston - 800 Boylston Street End Point
CLEVELAND, OHIO TO BOSTON, MASS.
CLEVELAND - 1150 W 3RD STREET
BUILD TO BE DETERMINED
BOSTON - 800 BOYLSTON STREET
BUILD TO BE DETERMINED
TOTAL LENGTH OF SEGMENT APPROX. 691 MILES
CLEVELAND BOSTON
(1150 W 3RD STREET) (800 BOYLSTON STREET)
EXHIBIT A
Segment 6
PORTLAND - SEATTLE
Portland - 707 SW Washington Street End Point
Seattle - 2001 6th Avenue End Point
PORTLAND, OR. TO SEATTLE, WA.
PORTLAND 707 SW. WASHINGTON STREET
BUILD AND RIGHT OF WAY TO BE DETERMINED
SEATTLE 2001 6TH AVE.
SEATTLE
(2001 6TH AVE)
TOTAL LENGTH OF SEGMENT APPROX. 182 MILES
PORTLAND
(707 SW WASHINGTON STREET)
EXHIBIT A
Segment 7
KANSAS CITY - ST. LOUIS
Kansas City - location to be determined along route of existing
conduit system
St. louis - location to be determined along route of existing conduit
system
KANSAS CITY, MO. TO ST. LOUIS, MO
USE EXISTING QWEST CONDUIT SYSTEM
BETWEEN KANSAS CITY AND ST. LOUIS
TOTAL LENGTH OF SEGMENT APPROX. 300 MI.
KANSAS CITY
ST. LOUIS
EXHIBIT H
WORLDCOM CONDUIT SYSTEM DESCRIPTION
ROUTE DESCRIPTION: THE ROUTE BEGINS AT A POINT NEAR PEVELY,
MISSOURI, AND PROCEEDS IN A NORTHEASTERLY DIRECTION TO A POINT APPROXIMATELY 10
MILES SOUTHEAST OF INDIANAPOLIS, INDIANA
NEAR INDIANAPOLIS, IN.
APPROX. 245 MILES
PEVELY, MO.
EXHIBIT B
Construction Specifications
Outside Plant Buried Cable Specifications
Summary
1.0 General.
The intent of this document is to outline the specifications for
construction of a fiber optic cable system. In all cases, the
standards contained in this document or the standards of the
federal, state, local or private agency having jurisdiction,
whichever is stricter, shall be followed.
2.0 Material.
Steel or PVC conduit shall be minimum schedule
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wall thickness.
Any exposed steel conduit, brackets or hardware (i.e., bridge
attachments) shall be
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.
Handholes shall have a minimum
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loading rating or
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with
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inches of cover.
Manholes shall have a minimum
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loading rating.
Innerducts used shall be
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or
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.
Buried cable warning tape shall be
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wide and display "
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.
Warning signs will display
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Fiber optic cable shall be
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. All cable shall have a
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; no
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cable will be used except to enter buildings. Cable will be
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construction with
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fibers per tube.
Splice cases will be
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; splice trays shall be
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or equivalent, and heat shrinks shall be
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or equivalent.
3.0 Minimum Depths.
Minimum cover required in the placement of conduit/cable shall be
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inches, except in the following instances:
(a) The minimum cover in borrow ditches adjacent to roads,
highways, railroads, and interstate highways is
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inches below the cleanout line or existing grade, whichever is
greater.
(b) The minimum cover across streams, river washes and other
waterways is
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inches below the cleanout line or existing grade, whichever is
greater.
(c) At locations where fiber optic cable crosses other subsurface
utilities or other structures, the fiber optic cable/conduit shall
be installed to provide a minimum of
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inches of vertical clearance and applicable minimum depth can be
maintained; otherwise the fiber optic cable/conduit will be installed
under the existing utility or other structure. If, however,
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inches cannot be obtained, the cable shall be encased in steel pipe.
(d) In rock, the conduit/cable shall be placed to provide a
minimum of
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inches below the surface of the solid rock, or provide a minimum of
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inches of total cover, whichever requires the least rock excavation.
(e) In the case of the use/conversion of existing steel pipelines
or salvaged conduit systems, the existing depth shall be considered
adequate.
4.0 Buried Cable Warning Tape.
All cable/conduit will be installed with buried cable warning tape
except where existing steel pipelines or salvaged conduit systems
are used. The warning tape shall generally be placed at a depth of
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inches below grade and directly above the cable/conduit.
5.0 Conduit Construction.
Conduits may be placed by means of trenching, plowing, jack and
bore, mini-directional bore or directional bore. Conduits will
generally be placed on a level grade parallel to the surface, with
only gradual changes in grade elevation.
Steel conduit will be joined with
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is the preferred method).
All paved city, state, federal and interstate highways and railroad
crossings will be encased in steel conduit. If the crossing is at
grade, steel is not required if the cable is placed with
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feet of cover or more.
All longitudinal cable runs under paved streets will be placed in
steel or concrete encased PVS conduit or buried with a minimum of
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feet of cover, except that the system in Dallas has
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installed at
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inches of cover.
Metro areas shall be defined as areas where at least one of the
following conditions exist:
(a) There are more than three paved public road crossings per
mile;
(b) There are more than six utility crossings per mile;
(c) Developed and improved areas;
(d) High growth areas.
Construction within railroad right-of-way, however, is not
considered to be metro.
All crossings of major streams, rivers, bays and navigable
waterways will be placed in
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conduit.
At all foreign utility/underground obstacle crossings,
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conduit will be placed and will extend at least
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feet beyond the outer limits of the obstacle in both directions.
All jack and bores will use steel conduit.
All directional or mini-directional bores will use
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conduit.
Any cable placed in rock will be placed in
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conduit.
Any cable placed in swamp or wetland areas will be placed in
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conduit.
All conduits placed on bridges will be
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.
All conduits placed on bridges shall have expansion joints placed
at
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or at least every
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, whichever is the shorter distance.
6.0 Innerduct Installation.
Innerduct(s) shall be installed in all steel conduits. No cable
will be placed directly in any split/solid steel conduit without
innerduct.
Innerduct(s) shall extend beyond the end of all conduits a minimum
of
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inches.
7.0 Cable Installation.
The fiber optic cable shall be installed using a powered pulling
winch and hydraulic-powered assist pulling wheels. The maximum
pulling force to be applied to the fiber optic cable shall be
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pounds. Sufficient pulling assists will be available and used to
insure the maximum pulling force is not exceeded at any point along
the pull.
The cable shall be lubricated.
A pulling swivel break-away rated at
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pounds shall be used at all times.
All splices will be contained in a handhole or manhole.
A minimum of
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meters of slack cable will be left in all intermediate handholes or
manholes.
A minimum of
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meters of slack cable will be left in all splice locations.
A minimum of
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meters of slack cable will be left in all facility locations (i.e.,
POP sites, switch sites, regens or CEVs).
8.0 Manholes and Handholes.
Manholes shall be laced in traveled surface streets and shall have
locking lids.
Handholes shall be placed in all other areas and be installed with
a minimum of
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inches of soil-covering lid.
9.0 EMS Markers.
EMS markers shall be placed
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inches directly above the lid of all buried handholes and assist
points. EMS markers fabricated into the lids of handholes are
acceptable.
10.0 Cable Markers (Warning Signs).
Cable markers shall be installed at all changes in cable running
line direction, splices, pullboxes, assist pulling locations and at
both sides of street, highway or railroad crossings. At no time
shall any markers be spaced more than
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feet apart in metro areas and
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feet apart in non-metro areas. Markers shall be positioned so that
they can be seen from the location of the cable and generally set
facing perpendicular to the cable running line.
Splices, pullboxes and assists shall be marked on the cable marker
post. At splice points an
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will be mounted to cable marker for termination of splice grounding
or
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system (see attached).
11.0 Safety and Environmental.
All work will be done in strict accordance with federal, state,
local and applicable private rules and laws regarding safety and
environmental issues, including those set forth by OSHA and the
EPA.
12.0 Field Cable Splicing and Testing.
All cables entering the splice cases shall be on the same side of
the case; no "inline" splices are allowed.
Only splices from one buffer tube will be housed in any splice
tray. No jumpers from tray to tray will be allowed. Splices shall
match up color-to-color in both the buffer tube and cladding; no
frogs are allowed.
All splices shall be made with a profile alignment fusion splicing
machine. All splices shall be housed and protected in heat
shrinks.
13.0 Fiber Termination.
WORLDCOM Fibers will not appear at any bulkhead outside of
WORLDCOM's facilities.
EXHIBIT C
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EXHIBIT D
Fiber Cable Splicing, Testing and Acceptance Procedures
1. QWEST will perform all tests as laid out in Paragraphs 2, 3
and 4. The tests should follow the requirements and meet the criteria
as laid out in Paragraphs 5 and 6. QWEST will use the test equipment
and follow the testing standards as laid out in Paragraph 7. QWEST
will provide test data to WORLDCOM according to the standards as laid
out in Paragraph 8.
2. QWEST will perform two states of testing during the
construction of a new fiber cable route. Initially, OTDR tests will
be taken from one direction because both ends of the cable may not
have connectors. As son as fiber connectivity has been achieved to
both regen sites. QWEST will verify and record the continuity of all
fibers. During this time, QWEST will take and record power level
readings on all fibers at both wave lengths in both directions. QWEST
will then begin bi-directional OTDR testing of all fibers. When
requested in the following Paragraphs, QWEST will provide WORLDCOM
with copies of the OTDR traces on diskette recorded according to the
standards in Paragraph 8.
3. During the initial construction, it is only possible to
measure the fiber from one direction. Because of this, splices will
be qualified during initial construction by being measured with an
OTDR from only one direction. The pigtails will also be qualified at
this stage using an OTDR and a 1 km launch reel. All measurements at
this stage in construction will be taken at
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nm.
a. A 1 km launch reel will be attached between the OTDR and
the pigtail. The loss of the pigtail splice and connector will be
measured and recorded. QWEST will provide WORLDCOM with a copy of the
OTDR trace of the pigtail stored on diskette.
b. As splice points are completed, OTDR measurements of the
splice losses will be made and recorded. These measurements MUST BE
MADE AFTER THE SPLICE HANDHOLE OR MANHOLE IS CLOSED in order to check
for macro-bending problems.
c. When pigtails are attached to the opposite side of the
cable, the pigtail test will be performed for that site.
4. After QWEST has provided end-to-end connectivity on the
fibers, bi-directional end-to-end testing will be done. Continuity
tests will e done to verify that no fibers have been "frogged" or
crossed in any of the splice points. Loss measurements will be
recorded using a laser source and a power meter. OTDR traces will be
taken and splice loss measurements will be recorded. QWEST will also
store OTDR traces on diskette.
a. It is imperative to verify that all fibers have one-to-one
continuity on the new cable. This should be done at the fiber
level, not just the pigtail level. For each pigtail, an HE-NE laser
will be used to verify fiber color and buffer tube color. Once the
fiber color and buffer tube color have been recorded, a laser light
course will be attached and a power meter reading will be taken at the
far end. Then, at the far end, an HE-NE laser should be used to
verify the fiber color and the buffer tube color of the fiber
receiving the light. Then power level readings should be taken in the
opposite direction. The power measurements should be made at both
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nm and
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nm.
b. OTDR traces should be taken in both directions at both
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nm and
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. Loss measurements for each splice point should be measured and
recorded in both directions. These loss values should then be
averaged. The traces for all fibers should be recorded on diskette
and provided to WORLDCOM.
5. The test requirements for the initial uni-directional testing
are as follows (for all testing, it is critical that all test
connections are clean during all testing procedures):
a. The loss value of the pigtail connector and its
associated splice will not exceed
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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dB. For values greater than this, the splice will be broken and
respliced until an acceptable loss value is achieved. If, after five
attempts, QWEST is not able to produce a loss value less than
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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dB, the splice will be marked as Out-of-Spec ("OOS") and will be
initialed by WORLDCOM representative on the data sheet. WORLDCOM will
then make a decision as to how to act upon this condition.
b. The objective for each splice is a loss of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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dB. Since this may not always be achievable, when measured in one
direction with an OTDR, a loss of less than
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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dB will be acceptable. If, after three attempts, QWEST is not able
to produce a loss value of less than
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dB, then
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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dB will be acceptable. If, after two additional attempts, a value of
less than
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dB is not achievable, then the splice will be marked as OOS and
initiated by WORLDCOM representative on the data sheet. It should be
noted that final acceptance of a splice is made based on bi-directional
OTDR data. Since this data is not available until
construction is complete, and a gauge for performance is needed during
construction, the value of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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dB will be satisfactory during this initial phase. If bi-directional
OTDR data proves to be unacceptable, QWEST will have to take measures
to remedy the situation.
6. The test requirements for the final bi-directional testing are
as follows (for all testing, it is critical that all test connections
are clean during all testing procedures):
a. The continuity test should prove that there is a one-to-
one correspondence of all fibers. Any "frogs" or fibers that cross in
route will be remedied by QWEST.
b. Bi-directional OTDR data will be the tool used to make
final acceptance of the fibers. The average loss of each splice
should not exceed
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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dB. Any splice points that exceed this value
will be marked OOS and initialed by WORLDCOM representative on the
data sheet. WORLDCOM will then make a decision as to how to act upon
this condition.
7. The OTDRs that are acceptable for testing are the
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or compatible. These must have a floppy disk drive for storing the
trace files. Again, it should be noted that it is vital that during
all tests (OTDR, power meter, etc.) that all connectors are clean.
This can dramatically affect results if this is not resolved. The
following settings should be used during the various tests:
For all OTDRs, the following index of refraction settings should be
used:
for AT&T fiber
for Corning
SMF-21
for Corning
SMF-28
for Sumitomo
fiber
for Corning
SMF-LS
TD1000A
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
Pigtail
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CONFIDENTIAL TREATMENT##
Uni-Directional
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Bi-Directional
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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For spans which are longer than
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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km between regens, a
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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will be required set at
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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km range setting. Bi-directional data will only
be required at
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
nm.
8. On the attached data sheets, all cable information must be
filled in by QWEST and verified by WORLDCOM representative. These
three forms are to contain the following information:
a. Form #RLA-1-101995 is used to verify fiber continuity
from end-to-end. In addition, the power level readings taken with a
laser source and power meter must be recorded for every fiber on this
sheet. In the column marked "fiber," the fiber color must be
recorded. In the buffer column, the buffer tube or ribbon color must
be recorded. The pigtail column is for recording the pigtail number
which is attached to that particular fiber. On the opposite side of
the page the corresponding values at the far end of the cable must be
recorded. Each fiber between two sites should fill up both sides of
the page, so that a total of 24 fibers will fit on each sheet.
Additional sheets may be used if needed. The laser source power at
both
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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nm and
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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nm must be recorded, followed by the received power at the far end of
the cable.
b. Form #RLA-2-101995 is for recording the loss at each
splice point during initial construction, as well as the bi-directional
test data taken as a final measurement on a cable
installation. One sheet should be used for each fiber. The distance
from site A must be recorded for all splice points. Each attempt made
on a particular splice point must be noted with the value measured by
the OTDR in one direction. OOS splices will be initiated by WORLDCOM
representative. For the bi-directional OTDR testing, distance from
site A must be recorded for each splice point. The loss at each
splice point must be recorded at both wave lengths in both directions
on the spaces provided. QWEST must then average these numbers to
obtain the average splice loss at each splice point for the fiber.
Again, OOS splices will be initialed by WORLDCOM representative.
c. Form #RLA-3-10995 is used to record information about the
fiber cable between two sites. One sheet should be used for each pair
of sites. Cable manufacturer, cable type (buffer/ribbon), glass type,
cable reel number, number of fibers, and number of fibers per tube
must be recorded for each section of cable between splice points. The
distance from site A must be recorded for each splice point. The
distance value may be written in at the same time the OTDR data is
being accumulated.
d. OTDR traces taken for bi-directional testing and the OTDR
traces of the pigtail launch splice must be recorded on floppy
diskette. The eight-character file name, plus three-character file
extension name should follow this example:
For bi-directional trade data, assume an OTDR reading is being
taken from Los Angeles to Lemon.
(i) Look up the four-letter alpha abbreviation for the site
the OTDR is shooting from; i.e., Los Angeles = LSAN. Filename = LSAN;
(ii) Look up the four-letter alpha abbreviation for the site
the OTDR is shooting from; i.e., Lemon = LMAN. Only use the first two
in the file name. Filename = LSANLM;
(iii) The next character indicates the cable number. For
sites where there is only one cable, this will be the number one (1).
If there are multiple cables, then the second cable will be number two
(2), etc. Assuming there is only one cable between Los Angeles and
Lemon, the file name is: Filename = LSANLM1;
(iv) The next character indicates the wave length the trace is
being shot at. If the trace is at
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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nm, the number will be three (3). If the trace is a
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
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nm, this
number will be a five (5). Assuming that the reading between Los
Angeles and Lemon is being taken at
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
nm, the file name is: Filename = LSANLM13;
(v) The three-digit file extension is used to indicate the
fiber number that trace is being shot on. Fiber number one (1) is
noted as "001." Fiber number 23 is noted as "023." Assuming that the
trace is being taken on fiber number six (6), we now have a complete
file name. Filename = LSANLM13.006.
For a trace being taken from Lemon to Los Angeles at
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
on
fiber 17, the filename would be: Filename = LMONLS15.017.
For pigtail/launch trade data, assume an OTDR reading is being
taken from Los Angeles.
(i) Look up the four-letter alpha abbreviation for the site
the OTDR is shooting from; i.e., Los Angeles = LSAN. Filename = LSAN;
(ii) The next three characters of the file name will be "PIG"
to indicate that this is a trace of the pigtail. Filename = LSANPIG;
(iii) The next character indicates the cable number. For
sites where there is only one cable, this will be the number one (1).
If there are multiple cables, then the second cable will be number two
(2), etc. Assuming there is only one cable between Los Angeles and
Lemon, the file name is: Filename = LSANPIG1;
(iv) The three-digit file extension is used to indicate the
fiber number that race is being shot on. Fiber number one (1) is
noted as "001." Fiber number 23 is noted as "023." Assuming that the
trace is being taken on fiber number six (6), we now have a complete
file name. Filename = LSANPIG1.006.
For trace being taken from Lemon to Los Angeles on fiber 17,
the filename would be: Filename = LMONPIG.017.
EXHIBIT E
WorldCom Fiber Specifications
[This exhibit contains product specification information that is
largely set forth in graphic format]
EXHIBIT F
Exceptions to Warranty
None
EXHIBIT G
EXISTING REGENERATOR SITE LOCATIONS
Existing regenerator site locations on railroad right-of-way San Jose
to Salt Lake City.
SITE
MP LOCATION
FACILITY OWNER
RAILROAD
1 Niles
40.60 DA
MCI
Southern
Pacific
2 Richmond
13.96 A
MCI
Southern
Pacific
3 Benecia
34.98 A
MCI
Southern
Pacific
4 El Mira
60.68 A
MCI
Southern
Pacific
5 Sacramento
86.37 A
MCI
Southern
Pacific
6 Loomis
114.20 A
MCI
Southern
Pacific
7 New
England
137.47 A
MCI
Southern
Pacific
8 Blue
Canyon
165.33 A
MCI
Southern
Pacific
9 Norden
190.76 A
MCI
Southern
Pacific
10 Floriston
222.55 A
MCI
Southern
Pacific
11 Vista
248.97 A
MCI
Southern
Pacific
12 Gilpin
269.29 A
MCI
Southern
Pacific
13 Hazen
287.00 A
MCI
Southern
Pacific
Parran
313.34 A
MCI
Southern
Pacific
Lovelock
340.20 A
MCI
Southern
Pacific
Ry Patch
366.07 A
MCI
Southern
Pacific
Mill City
388.38 A
MCI
Southern
Pacific
Winnemucca
413.53 A
MCI
Southern
Pacific
Preble
439.09 A
MCI
Southern
Pacific
Mote
466.84 A
MCI
Southern
Pacific
Argenta
488.98 A
MCI
Southern
Pacific
Beowawe
510.40 A
MCI
Southern
Pacific
Carlin
536.97 A
MCI
Southern
Pacific
Osino
562.07 A
MCI
Southern
Pacific
Deeth
589.21 A
MCI
Southern
Pacific
Wells
717.03
MCI
Southern
Pacific
Ventosa
740.32
MCI
Union Pacific
Shafter
766.04
MCI
Union Pacific
Pilot
795.30
MCI
Union Pacific
Salduro
820.77
MCI
Union Pacific
Knolls
845.51
MCI
Union Pacific
Low
870.11
MCI
Union Pacific
Burmester
896.78
MCI
Union Pacific
EQ
911.45=766.42
MCI
Union Pacific
Saltair
776.10
MCI
Union Pacific
Salt Lake
City
MCI
Union Pacific
Note: Between Wells and Wendover, Nevada there are several US Sprint
regenerators. They are at same locations as MCI because power sources
are very limited.
EXHIBIT H
WORLDCOM CONDUIT SYSTEM DESCRIPTION
ROUTE DESCRIPTION: THE ROUTE BEGINS AT A POINT NEAR PEVELY, MISSOURI,
AND PROCEEDS IN A NORTHEASTERLY DIRECTION TO A POINT APPROXIMATELY 10
MILES SOUTHEAST OF INDIANAPOLIS, INDIANA
NEAR INDIANAPOLIS, IN.
APPROX. 245 MILES
PEVELY, MO.
EXHIBIT I
MAINTENANCE AGREEMENT
THIS MAINTENANCE AGREEMENT (this "Agreement") is entered into this
____ day of February, 1996 by and between QWEST COMMUNICATIONS
CORPORATION, a Delaware corporation ("QWEST"), and WORLDCOM NETWORK
SERVICES, INC., a Delaware corporation ("WORLDCOM").
RECITALS
A. QWEST and WORLDCOM are party to that certain IRU Agreement
dated February ___, 1996, providing, among other things, (i) a grant
by QWEST to WORLDCOM of an indefeasible right of use ("IRU") in
certain fibers in the QWEST System; and (ii) a grant by WORLDCOM to
QWEST of an option to elect to obtain an IRU in an installed, empty
innerduct fiber optic conduit between Pevely, Missouri and
Indianapolis, Indiana (the "QWEST Conduit") in the WORLDCOM Conduit
System. Capitalized terms used herein and not otherwise defined shall
have the meaning set forth in the IRU Agreement.
B. QWEST and WORLDCOM have agreed in the IRU Agreement to enter
into this reciprocal Agreement to provide for the maintenance of
(i) Segments of the QWEST System and (ii) the QWEST Conduit.
Accordingly, in consideration of the mutual promises set forth
below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I.
GENERAL
1.1 QWEST or WORLDCOM shall provide Scheduled and Unscheduled
Maintenance, as defined in Section 1.2 herein, on Segments 1 through 7
on the QWEST System on the terms and conditions set forth herein. The
party responsible for operating and maintaining certain Segments of
the QWEST System or the QWEST Conduit shall be referred to herein as
the "Service Provider." The party receiving benefit from the Service
Provider shall be referred to herein as the "Service Recipient."
QWEST shall be the Service Provider and WORLDCOM shall be the Service
Recipient for Segments 1, 2, 2A and 3. Subject to Sections 1.2 and
1.3 of the IRU Agreement and upon completion thereof, QWEST shall be
the Service Provider and WORLDCOM shall be the Service Recipient for
Segments 4, 6 and 7. Subject to Section 1.2 of the IRU Agreement and
upon completion thereof, WORLDCOM shall be the Service Provider and
QWEST shall be the Service Recipient for Segment 5. Subject to
Section 5.1 of the IRU Agreement, WORLDCOM shall be the Service
Provider and QWEST shall be the Service Recipient for the QWEST
Conduit.
1.2 (a) Routine maintenance and repair of the QWEST System or
QWEST Conduit, as the case may be, shall be performed by or under the
direction of Service Provider ("Scheduled Maintenance"), at Service
Provider's reasonable discretion. Scheduled maintenance shall include
the following activities:
(i) Patrol of Segments of QWEST System route on a
regularly scheduled basis;
(ii) Maintenance of a "Call-Before-You-Dig" program and
all required and related cable locates;
(iii) Sign postings along the QWEST System or QWEST
Conduit, as the case may be, right-of-way with the number of the local
"Call Before You Dig" organization and the 800 number for Service
Provider's "Call Before You Dig" program; and
(iv) Assignment of fiber maintenance technicians to
locations along the route of the QWEST System or QWEST Conduit, as the
case may be.
(b) Maintenance and repair of the QWEST System or QWEST
Conduit, as the case may be, which is not Scheduled Maintenance
("Unscheduled Maintenance"), shall be performed by or under the
direction of Service Provider. Notwithstanding Service Provider's
obligation with respect to the QWEST Conduit, Service Recipient shall
have the right to perform restoration and splicing of its cable (the
"QWEST Cable") and/or fibers contained in the QWEST Conduit. If
Service Recipient elects to perform restoration and splicing on the
QWEST Cable and/or fibers, Service Provider shall open the steel
conduit and provide access to the QWEST Cable to Service Recipient.
Such opening of the steel conduit and access to the QWEST Cable shall
be done by Service Provider expeditiously. Service Recipient agrees
that WORLDCOM shall be in control of any restoration scene involving
the QWEST Conduit. Unscheduled Maintenance shall consist of:
(i) "Emergency Unscheduled Maintenance" in response to
an alarm identification by Service Provider's NCC (as defined in
Section 1.4 below), notification by Service Recipient or notification
by any third party of any failure, interruption or impairment in the
operation of the QWEST System or QWEST Conduit, as the case may be, or
any event imminently likely to cause the failure, interruption or
impairment in the operation of the QWEST System or the QWEST Conduit,
as the case may be.
(ii) "Non-Emergency Unscheduled Maintenance" in response
to any potential service-affecting situation to prevent any failure,
interruption or impairment in the operation of the QWEST System or
QWEST Conduit, as the case may be.
Service Recipient shall immediately report the need for Unscheduled
Maintenance to Service Provider in accordance with procedures
promulgated by Service Provider from time to time. Service Provider
will log the time of Service Recipient s report, verify the problem
and will dispatch personnel as early as possible to take corrective
action.
1.3 It is understood that Service Provider's maintenance and
repair duties under this Agreement shall not include maintenance of
Service Recipient's electronics, nor do maintenance and repair duties
include replacement of equipment, materials or facilities. The
maintenance of electronics and the cost of replacement of equipment,
materials and facilities shall be borne by Service Recipient.
1.4 Service Provider shall operate and maintain a Network Control
Center ("NCC") staffed twenty-four (24) hours a day, seven (7) days a
week by trained and qualified personnel. Service Provider's
maintenance employees shall be available for dispatch twenty-four (24)
hours a day, seven (7) days a week. Service Provider will use
reasonable efforts to have its first maintenance employee at the site
requiring Emergency Unscheduled Maintenance activity within
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
hours after the time Service Provider becomes aware of an event
requiring Emergency Unscheduled Maintenance. Service Provider shall
maintain a toll-free telephone number to contact personnel at the NCC.
Service Provider's NCC personnel shall dispatch maintenance and repair
personnel along the system to handle and repair problems detected in
the QWEST System or QWEST Conduit, as the case may be, (i) through the
NCC's remote surveillance equipment, (ii) through the Service
Recipient's remote surveillance equipment and upon notification by
Service Recipient to Service Provider, or (iii) upon notification by a
third party.
1.5 Service Recipient shall utilize an Operations Escalation List,
as updated from time to time to report and seek immediate initial
redress of exceptions noted in the performance of Service Provider in
meeting maintenance service objectives.
1.6 Service Recipient will, as necessary, arrange for unescorted
access for Service Provider to all sites of the QWEST System or the
QWEST Conduit, as the case may be, subject to applicable contractual,
underlying, real property and other third-party limitations and
restrictions.
1.7 In performing its services hereunder, Service Provider shall
take workmanlike care to prevent impairment to the signal continuity
and performance of the QWEST System or QWEST Conduit, as the case may
be. The precautions to be taken by Service Provider shall include
notification to Service Recipient. In addition, Service Provider
shall reasonably cooperate with Service Recipient in sharing
information and analyzing the disturbances regarding the Cable or the
QWEST Cable, as the case may be, and/or fibers. In the event that any
Scheduled or Unscheduled Maintenance hereunder requires a traffic roll
or reconfiguration involving cable, fiber, electronic equipment, or
regeneration or other facilities of the Service Recipient, then
Service Recipient shall, at Service Provider's reasonable request,
make such personnel of Service Recipient available as may be necessary
in order to accomplish such maintenance, which personnel shall
coordinate and cooperate with Service Provider in performing such
maintenance as required of Service Provider hereunder.
1.8 Service Provider shall use its best effort to notify Service
Recipient ten (10) days prior to the date of any Scheduled
Maintenance. In the event that Scheduled Maintenance is canceled or
delayed for whatever reason as previously notified, Service Provider
shall notify Service Recipient at Service Provider's earliest
opportunity, and will comply with the provisions of the previous
sentence to reschedule any delayed activity.
ARTICLE II.
FACILITIES
2.1 Service Provider shall maintain Segment(s) in a manner which
will permit normal operation of the equipment associated with each
Segment.
2.2 Service Provider shall perform appropriate Scheduled
Maintenance on the Cable and QWEST Cable in accordance with Service
Provider's then current preventative maintenance procedures, which
shall not substantially deviate from industry practice.
2.3 Service Recipient will perform all maintenance on Service
Recipient equipment.
2.4 In no event shall Service Recipient attempt to open the
pipeline or other facility in which the QWEST Conduit is encased.
ARTICLE III.
CABLE/FIBERS
3.1 Subject to the provisions of Section 3.2 hereof, Service
Provider shall maintain the Cable and the QWEST Cable, as the case may
be, in good and operable condition and shall repair the Cable and
QWEST Cable, as the case may be, in a workmanlike manner pursuant to
Section 3.4 hereof.
3.2 Service Provider shall have qualified representatives on site
any time Service Provider has knowledge that another person or entity
is crossing the Cable or QWEST Cable, as the case may be, or digging
within five (5) feet of the Cable or QWEST Cable, as the case may be.
3.2 Service Provider maintenance employees shall be responsible
for correcting or repairing cable discontinuity or damage, including
but not limited to, Emergency Unscheduled Maintenance of the Cable or
QWEST Cable, as the case may be. Service Provider shall use
reasonable efforts to repair cable traffic-affecting discontinuity
within four (4) hours after the Service Provider maintenance
employee's arrival at the problem site. Service Provider shall
maintain sufficient capability to teleconference with Service
Recipient during an Emergency Unscheduled Maintenance in order to
provide continuous communication. Within twenty-four (24) hours after
completion of an Emergency Unscheduled Maintenance, Service Provider
shall commence its planning for permanent repair, shall notify Service
Recipient of such plans, and shall implement such permanent repair
within an appropriate time thereafter. Restoration of open fibers on
fiber strands not immediately required for service shall be completed
on a mutually-agreed-upon schedule. If the fiber is required for
immediate service, the repair shall be scheduled for the next
available Planned Service Work Period (PSWP) weekend.
3.4 Service Provider shall comply with the Splicing Specifications
as provided in Exhibit D to the IRU Agreement. Service Provider shall
provide to Service Recipient any modifications to these Specifications
for Service Recipient's approval, which shall not be unreasonably
withheld.
3.5 Service Provider's representatives that are responsible for
initial restoration of a cut cable shall carry on their vehicles the
appropriate equipment to be able to quickly put the cut cable back
together using a temporary splice. The objective is to get the cut
cable back in an operating condition in as little time as possible.
Service Provider shall also maintain an inventory of spare cable in
storage facilities supplied and maintained by Service Provider at
strategic locations to facilitate timely restoration; provided that
such inventory of cable shall be as provided on cable reel trailers by
QWEST to the Service Provider at QWEST's initial cost, subject to
subsequent reimbursement to QWEST to the extent that the cost of such
fiber is allocated to other Interest Holders (as that term is defined
in Section 7.2 below) in connection with the allocation of the Costs
associated with Unscheduled Maintenance pursuant to Section 7.2.
ARTICLE IV.
PLANNED SERVICE WORK PERIOD (PSWP)
4.1 Scheduled Maintenance which is reasonably expected to produce
any signal discontinuity must be coordinated between the parties.
Generally, this work should be scheduled after midnight and before
6:00 a.m. local time. Major system work such as fiber rolls and hot
cuts will be scheduled for PSWP weekends. A calendar showing approved
PSWP weekends will be agreed upon in the last quarter of every year
for the year to come. The intent is to avoid jeopardy work on the
first and last weekends of the month and high traffic holidays.
ARTICLE V.
RESTORATION
5.1 Service Provider shall use its best efforts to respond to any
interruption of service or a failure of the fibers to perform in
accordance with the specifications in Exhibit D (in any event, an
"Outage") as quickly as possible in accordance with the procedures set
forth herein. In the event the Outage is not cured within twelve (12)
hours, Emergency Unscheduled Maintenance may be performed by Service
Recipient ("Service Recipient Emergency Unscheduled Maintenance"),
provided that the parties have agreed in writing prior to such Outage
as to the emergency operational procedures, notifications and other
limitations applicable to such Service Recipient Emergency Unscheduled
Maintenance. The written agreement regarding Service Recipient
Unscheduled Emergency Maintenance shall provide, among such other
terms as the parties may agree upon, that (i) Service Recipient may
access any part of the QWEST System or QWEST Conduit, as the case may
be, to perform such service subject to underlying real property or
other contractual rights applicable to any such location; (ii) in the
event Service Recipient requires Service Provider personnel to unlock
any facility, Service Provider shall cooperate fully with Service
Recipient to allow Service Recipient access; and (iii) in those parts
of the QWEST System or QWEST Conduit, as the case may be, that Service
Recipient does not require Service Provider personnel to enter Service
Provider facilities, Service Recipient shall provide Service Provider
with oral notification of those parts of the QWEST System or QWEST
Conduit, as the case may be, that were entered as soon as possible.
Service Recipient shall only use the preceding rights to enter the
QWEST System or QWEST Conduit, as the case may be, to the extent
necessary for the emergency situation and in a manner consistent with
the written agreement of the parties pertaining thereto. Service
Provider shall reimburse Service Recipient its Costs, as defined in
Section 7.3 ) hereof, of providing such Service Recipient Emergency
Unscheduled Maintenance. Service Recipient shall provide supporting
documentation for such Costs.
5.2 (a) When restoring a cut Cable in the QWEST System, the
parties agree to work together to restore all traffic as quickly as
possible. Service Provider, immediately upon arriving on the site of
the cut, shall determine the course of action to be taken to restore
the Cable and shall begin restoration efforts. Service Provider shall
initially splice the lit fibers in a buffer tube of its choice. Once
continuity is established in such lit fibers allowing transmission
systems to come back on line, Service Provider shall then begin
splicing a buffer tube chosen by Service Recipient to restore all lit
fibers in such buffer tube. Thereafter, Service Provider will
alternate this process between Service Provider and Service Recipient
chosen buffer tubes until all lit fibers in all buffer tubes are
spliced and all traffic restored.
(b) When working on the WORLDCOM Conduit System, Service
Provider immediately upon arriving on the site of the cut shall
determine the course of action to be taken to restore the cables
(including the QWEST Cable) therein and shall begin restoration
efforts. Service Provider will lay out the restoration cables and
shall initially splice the lit fibers in the Service Provider's
cables. Once all of Service Provider's lit fibers are restored,
Service Provider will immediately begin splicing and restoration of
the lit fibers in the QWEST Cable: provided that throughout the
restoration process QWEST shall be permitted to participate in the
restoration of the QWEST Cable as provided in Section 1.2(b).
5.3 Emergency restoration splicing has as its goal to get service
up as quickly as possible. This requires the use of some type of
mechanical splice, such as the "3M Fiber Lock" to complete the
temporary restoration. Permanent restorations will take place as soon
as possible after the temporary splice is complete.
5.4 If at any time it becomes apparent that an Outage is going to
extend beyond eight (8) hours, the corresponding Vice President of
each company will work together to determine a plan to restore the
Cable or QWEST Cable, as the case may be.
5.5 Subject to the provisions of Article XXVIII of the IRU
Agreement, in the event all or any part of the QWEST System or QWEST
Conduit, as the case may be, shall require replacement as a result of
the negligent acts or omissions of a party (without contribution to
such negligence by the other party) or intentional misconduct of
either party, its agents or subcontractors. Such replacement shall be
made by Service Provider at the earliest possible time, at the sole
cost of the party hereto which is responsible, directly or by
delegation, for such negligence or intentional misconduct. In the
event all or any part of the QWEST System or QWEST Conduit, as the
case may be, shall at any time during the term be found to have not
been designed, built, installed or constructed in material accordance
with the provisions of the IRU Agreement and Service Recipient
reasonably demonstrates that such noncompliance materially and
adversely affects the expected economic life of or operating
specifications of the fibers, then Service Provider shall within
ninety (90) days after such discovery, at its sole cost and expense,
correct such defect.
ARTICLE VI.
SUBCONTRACTING
6.1 Service Provider may subcontract for maintenance and
restoration services hereunder. Notwithstanding any other provisions
of this Agreement, Service Provider shall require the subcontractor(s)
to meet maintenance and repair standards for the QWEST System or QWEST
Conduit, as the case may be, which shall be at least as high as those
standards utilized by Service Provider for the maintenance and repair
of other portions of its communications systems. The use of any such
subcontractor shall not relieve Service Provider of any of its
obligations hereunder. In the event Service Provider determines to
subcontract for a period exceeding sixty (60) days any substantial
portion of its maintenance or restoration work on the QWEST System or
QWEST Conduit, as the case may be, it shall give Service Recipient the
opportunity to perform such work if Service Recipient agrees to match
the rates offered for such work by a mutually approved qualified
vendor.
ARTICLE VII.
FEES AND COSTS
7.1. Scheduled Maintenance Fees. Subsequent to the Acceptance Date
for each Segment, Service Recipient shall pay to Service Provider for
performing Scheduled Maintenance an annual fee of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per route mile for each of Segments 1, 2, 2A and 3 during the Initial
Term. Subject to Sections 1.2 and 1.3 of the IRU Agreement and
subsequent to the Acceptance Date for each Segment, Service Recipient
shall pay to Service Provider for performing Scheduled Maintenance an
annual fee of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per route mile for each of Segments 4, 6 and 7 during the Initial
Term. Subject to Section 1.2 of the IRU Agreement and subsequent to
the Acceptance Date for each Segment, Service Recipient shall pay to
Service Provider for performing Scheduled Maintenance an annual fee of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per route mile for Segment 5 during the Initial Term. Subject to
Section 5.1 of the IRU Agreement and subsequent to the QWEST Conduit
Acceptance Date, Service Recipient shall pay to Service Provider for
performing Scheduled Maintenance an annual fee of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per route mile for the QWEST Conduit. A quarter of the first such
fees for Segments 1 through 7 hereunder will be due and payable thirty
(30) days after the Acceptance Date for each Segment. A quarter of
the first such fee for the QWEST Conduit will be due thirty (30) days
after the QWEST Conduit Acceptance Date. Thereafter, one quarter of
each such fee shall be due quarterly during the Initial Tenn. All
fees shall be paid by Service Recipient within thirty (30) days of
receipt of invoice therefor. Fees hereunder may be adjusted annually,
at Service Provider's sole discretion, beginning with the first
anniversary date, for increases in the United States Bureau of Labor
Statistics, CPI-U All Services Index (unadjusted), as originally
published. Said adjustment shall be hereinafter referred to as "CPI-U
Adjustment". Each fee, as adjusted by the CPI-U Adjustment, shall be
equal to the product of the fee specified herein multiplied by the
fraction (i) whose numerator is the CPI-U All Services for March of
the previous calendar year for which the adjustment to the fee is
being made, and (ii) whose denominator is the CPI-U All Services for
March of the preceding year. The adjusted fee shall remain in effect
until the next annual fee is due, when a new adjusted fee fixed
pursuant to this provision shall become effective. In no event shall
the amount of the fee as adjusted pursuant to this provision be less
than the amount of fee in effect for the immediately-preceding year.
The parties agree that the Index for March 1995 is defined as 151.4.
In the event that the Bureau of Labor Statistics (or any successor
organization) changes the current base of the CPI-U from
1982-84 = 100, the calculation of a fee under this provision shall be
adjusted to ensure that Service Provider receives the same amount as
it would have had, had the base not been changed. In the event the
Bureau of Labor Statistics or any successor organization no longer
publishes the CPI-U, QWEST shall, subject to WORLDCOM's agreement
(which shall not be unreasonably withheld), designate the statistical
index it deems most appropriate for calculation of adjustments to a
fee and, from the date the CPI-U ceased to be published, such index
shall be used to make adjustments in a fee under this provision.
7.2 Unscheduled Maintenance Fees If the aggregate amount of the
Costs of Unscheduled Maintenance required as a result of any single
event or multiple, closely related events is less than
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
, such Costs shall be borne by Service Provider. For any other
Unscheduled Maintenance, the Costs thereof shall be allocated among
the various owners and holders of an IRU or equivalent interest (each,
an "Interest Holder") in the conduit, cable and/or fibers affected
thereby as follows: (i) Costs of Unscheduled Maintenance solely to or
affecting a conduit or cable which houses fibers of a single Interest
Holder shall be borne 100% by such Interest Holder; (ii) Costs of
Unscheduled Maintenance to or affecting a conduit which houses
multiple innerduct conduits, not including such Costs attributable to
the repair or replacement of fiber therein, shall be borne
proportionately by the Interest Holders in each of the affected
innerduct conduits based on the ratio that such affected conduit bears
to the total number of affected innerduct conduits, and (iii) Costs of
Unscheduled Maintenance attributable to the repair or replacement of
fiber, including the acquisition, installation, inspection, testing
and splicing thereof, shall be borne proportionately by the Interest
Holders in the affected fiber, based on the ratio that the number of
affected fibers subject to the interest of each such Interest Holder
bears to the total number of affected fibers. All such Costs which
are allocated to Service Recipient pursuant to the foregoing
provisions shall be the responsibility of and paid by Service
Recipient within thirty (30) days after receipt from Service Provider
of an invoice therefor.
7.3 Costs. "Costs" means the actual, direct costs paid or payable
in accordance with the established accounting procedures generally
used by WORLDCOM or QWEST, as the case may be, and which it utilizes
in billing third parties for reimbursable projects, which costs shall
include, without limitation, the following: (i) labor costs,
including wages and salaries, and benefits and overhead allocable to
such labor costs (overhead allocation percentage shall not exceed the
lesser of (x) the percentage QWEST or WORLDCOM, as applicable,
allocates to its internal projects or (
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
, and (ii) other direct costs and out-of-pocket expenses on a pass-
through basis (e.g., equipment, materials, supplies, contract
services, etc.).
ARTICLE VIII.
INDEMNIFICATION
8.1 Subject to the provisions of Article IX, QWEST hereby releases
and agrees to indemnify, defend, protect and hold harmless WORLDCOM,
its employees, officers, directors, agents, shareholders and
affiliates. from and against and assumes liability for:
(a) Any injury, loss or damage to any person, tangible
property or facilities of any person or entity (including reasonable
attorneys' fees and costs), to the extent arising out of or resulting
from the acts or omissions, negligent or otherwise, of QWEST, its
officers, employees, servants, affiliates, agents, contractors,
licensees, invitees or vendors in connection with its performance
under this Agreement;
(b) Any claims, liabilities or damages arising out of any
violation by QWEST of regulations, rules, statutes or court orders of
any local, state or federal governmental agency, court or body in
connection with its performance under this Agreement; and
(c) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third party as
a result of WORLDCOM's use of the WORLDCOM IRU and the WORLDCOM Fibers
in accordance with the provisions of this Agreement.
8.2 Subject to the provisions of Article IX, WORLDCOM hereby
releases and agrees to indemnify, defend, protect and hold harmless
QWEST, its employees, officers, directors, agents, shareholders and
affiliates, from and against, and assumes liability for:
(a) Any injury, loss or damage to any person, tangible
property or facilities of any person or entity (including reasonable
attorneys' fees and costs), to the extent arising out of or resulting
from the acts or omissions, negligent or otherwise, of WORLDCOM, its
officers, employees, servants, affiliates, agents, contractors,
licensees, invitees or vendors in connection with its performance
under this Agreement;
(b) Any claims, liabilities or damages arising out of any
violation by WORLDCOM or regulations, rules, statutes or court orders
of any local, state or federal governmental agency, court or body in
connection with its performance under this Agreement; and
(c) Any claims, liabilities or damages arising out of any
interference with or infringement of the rights of any third party as
a result of QWEST's use of the QWEST Conduit accordance with the
provisions of this Agreement.
8.3 The parties hereby expressly recognize and agree that each
party's said obligation to indemnify, defend, protect and save the
other harmless is not a material obligation to the continuing
performance of the parties' other obligations, if any, hereunder. In
the event that a party shall fail for any reason to so indemnify,
defend, protect and save the other harmless, the injured party hereby
expressly recognizes that its sole remedy in such event shall be the
right to bring an arbitration proceeding pursuant to the terms of this
Agreement against the other party for its damages as a result of the
other party's said failure to indemnify, defend, protect and save
harmless. These obligations shall survive the expiration or
termination of this Agreement.
8.4 Nothing contained herein shall operate as a limitation on the
right of either party hereto to bring an action for damages against
any third party, including indirect, special or consequential damages,
based on any acts or omissions of such third party as such acts or
omissions may affect the construction, operation or use of the
WORLDCOM Fibers or the QWEST System or the WORLDCOM Conduit System or
the QWEST Conduit, as the case may be; provided, however, that each
party hereto shall assign such rights or claims, execute such
documents and do whatever else may be reasonably necessary to enable
the other party to pursue any such action against such third party.
ARTICLE IX.
LIMITATION OF LIABILITY
9.1 Notwithstanding any provision of this Agreement to the
contrary, in no event shall either party be liable to the other party
for any special, incidental, indirect, punitive or consequential
damages, whether foreseeable or not, arising out, of or in connection
with transmission interruptions or problems, or any interruption or
degradation of service, including, but not limited to, damage or loss
of property or equipment, loss of profits or revenue, cost of capital,
cost of replacement services, or claims of customers, whether
occasioned by any construction, reconstruction, relocation, repair or
maintenance performed by, or failed to be performed by the other party
or any other cause whatsoever, including, without limitation, breach
of contract, breach of warranty, negligence or strict liability all
claims for which damages are hereby specifically waived.
ARTICLE X
NOTICE
10.1 Except as provided in the Operations Escalation List, all
notices and communications concerning this Agreement shall be
addressed to the other party as follows:
If to QWEST: QWEST Communications Corporation
ATTENTION: President
555 Seventeenth Street
Denver, Colorado 80202
Telephone No.: (303) 291-1400
Facsimile No.: (303) 291-1724
with a copy to: QWEST Communications Corporation
ATTENTION: General Counsel
555 Seventeenth Street
Denver, Colorado 80202
Telephone No,: (303) 291-1400
Facsimile No.: (303) 291-1724
If to WORLDCOM: WORLDCOM, Inc.
c/o WORLDCOM Network Services, Inc.
ATTENTION: Vice President - Network
Operations
One Williams Center
Tulsa, Oklahoma 74172
Facsimile No.: (918) 590-5598
and to: WORLDCOM Network Services, Inc.
ATTENTION: Contract Administration
One Williams Center
Tulsa, Oklahoma 74172
Facsimile No.: (918) 590-3293
and, if claiming
an event of default,
with a copy to: Michael D. Cooke
Hall, Estill, Hardwick, Gable, Golden & Nelson
310 S. Boston Avenue, Suite 400
Tulsa, Oklahoma 74105
Facsimile No.: (918) 594-0505
or at such other address as may be designated in writing to the other
party.
10.2 Unless otherwise provided herein, notices shall be hand
delivered, sent by registered or certified U.S. Mail, postage prepaid,
or by commercial overnight delivery service, or transmitted by
facsimile, and shall be deemed served or delivered to the addressee or
its office when received at the address for notice specified above
when hand delivered, upon confirmation of sending when sent by fax, on
the day after being sent when sent by overnight delivery services or
three (3) days after deposit in the mail when sent by U.S. mail.
ARTICLE XI.
CONFIDENTIALITY
11.1 If the parties to this Agreement have entered into (or later
enter into) a Confidentiality Agreement, the terms of such an
agreement shall control and Section 11.1 of this Article shall not
apply; however, if any such Confidentiality Agreement expires or is no
longer effective at any time during the Term of this Agreement, this
Section 11.1 shall be in effect during those periods.
11.2 In the absence of a separate Confidentiality Agreement
between the parties, if either party provides confidential information
to the other in writing and identified as such, the receiving party
shall protect the confidential information from disclosure to third
parties with the same degree of care accorded its own confidential and
proprietary information. Neither party shall be required to hold
confidential any information which (i) becomes publicly available
other than through the recipient; (ii) is required to be disclosed by
a governmental or judicial order, rule or regulation; (iii) is
independently developed by the disclosing party; or (iv) becomes
available to the disclosing party without restriction from a third
party. These obligations shall survive expiration or termination of
this Agreement.
11.3 Notwithstanding Sections 11.1 and 11.2 of this Article,
confidential information shall not include information disclosed by
the receiving party as required by applicable law or regulation;
provided that the information disclosed is limited to the existence
and general nature of the relationship between the parties, including,
as required, the scope, approximate revenues, purposes and
expectations related to such relationship and a description of any
disputes relating thereto. Notwithstanding the foregoing, this
Agreement may be provided to any governmental agency or court of
competent jurisdiction to the extent required by applicable law.
ARTICLE XII.
FORCE MAJEURE
12.1 Neither party shall be in default under this Agreement to
the extent that any delay in such party's performance is caused by any
of the following conditions, and such party's performance shall be
excused and extended during the period of any such delay: act of God;
fire; flood; fiber, cable or other material shortages or
unavailability or other delay in delivery not resulting from the
responsible party's failure to timely place orders therefor (it being
expressly acknowledged that the fiber optic cable that is being
acquired for and installed in the QWEST System and that will include
the WORLDCOM Fiber must include higher fiber counts than that
necessary solely for the WORLDCOM Fiber in order to permit completion
of the entire QWEST System), lack of delay in transportation"
government codes, ordinances, laws, rules, regulations or restrictions
(collectively, "Regulations") (but not to the extent the delay caused
by such Regulations could be reasonably avoided by rerouting the
Cable); war or civil disorder; failure of a third party to grant a
required permit, easement or other required authorization for use of
the intended right-of-way (provided that such required authorization
was sought and pursued on a timely and reasonable best efforts basis)
or any other cause beyond the commercially-reasonable control of such
party, provided that the party claiming relief under this Article
shall promptly notify the other in writing of the existence of the
event relied on and the cessation or termination of said event. The
party claiming relief under this Article shall exercise reasonable
efforts to minimize the time for any such delay.
ARTICLE XIII.
ARBITRATION
13.1 Any dispute or disagreement arising between QWEST and
WORLDCOM in connection with this Agreement which is not settled to the
mutual satisfaction of QWEST and WORLDCOM within thirty (30) days from
the date that either party informs the other in writing that such
dispute or disagreement exists, shall be settled by arbitration in
Kansas City, Missouri, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association in effect on the date
that such notice is given. If the parties are unable to agree on a
single arbitrator within fifteen (15) days, each party shall select an
arbitrator and the two (2) arbitrators shall mutually select a third
arbitrator, the three of whom shall serve as an arbitration panel.
The decision of the arbitrator(s) shall be final and binding upon the
parties and shall include written findings of law and fact, and
judgment may be obtained thereon by either party in a court of
competent Jurisdiction. Each party shall bear the cost of preparing
and presenting its own case. The cost of the arbitration, including
the fees and expenses of the arbitrator(s), shall be shared equally by
the parties hereto unless the award otherwise provides.
13.2 The obligation herein to arbitrate shall not be binding upon
any party with respect to requests for preliminary injunctions,
temporary restraining orders or other similar temporary procedures in
a court of competent jurisdiction to obtain interim relief when deemed
necessary by such court to preserve the status quo or prevent
irreparable injury pending resolution by arbitration of the actual
dispute. It is not the intention of the parties that such injunctive
procedures shall be in lieu of, or cause substantial delay to, any
arbitration proceeding commenced under Section 13.1 above.
ARTICLE XIV.
WAIVER
14.1 The failure of either party hereto to enforce any of the
provisions of this Agreement, or the waiver thereof in any instance,
shall not 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.
ARTICLE XV.
ASSIGNMENT
15.1 Except as provided in Section 6.1, QWEST shall not assign,
encumber or otherwise transfer this Agreement or its rights or
obligations hereunder to any other party without the prior written
consent of WORLDCOM, which consent will not be unreasonably withheld
or delayed. QWEST shall have the right, without WORLDCOM's consent,
to assign or otherwise transfer this Agreement (i) as collateral to
any institutional lender to QWEST subject to the prior rights and
obligations of the parties hereunder, (ii) to any parent, subsidiary
or affiliate of QWEST, (iii) to any person, firm or corporation which
shall control, be under the control of or be under common control with
QWEST, or (iv) any corporation or other entity into which QWEST may be
merged or consolidated or which purchases all or substantially all of
the assets of QWEST; provided that the assignee or transferee in any
such circumstance shall continue to be subject to all of the
provisions of this Agreement, including without limitation, this
Section 15.1; and provided further that, promptly following any such
assignment or transfer, QWEST shall give WORLDCOM written notice
identifying the assignee or transferee; and provided further that any
such assignment or transfer shall be conditioned upon the
corresponding assignment or transfer of QWEST's rights and obligations
under the IRU Agreement. In the event of any permitted partial
assignment of any rights hereunder, QWEST shall remain the sole point
of contact with WORLDCOM.
15.2 Except as provided in 6.1, WORLDCOM shall not assign,
encumber or otherwise transfer this Agreement or its rights or
obligations hereunder to any other party without the prior written
consent of QWEST, which consent will not be unreasonably withheld or
delayed. WORLDCOM shall have the right, without QWEST's consent, to
assign or otherwise transfer this Agreement (i) as collateral to any
institutional lender to WORLDCOM subject to the prior rights and
obligations of the parties hereunder, (ii) to any parent, subsidiary
or affiliate of WORLDCOM, (iii) to any person, firm or corporation
which shall control, be under the control of or be under common
control with WORLDCOM, or (iv) any corporation into which WORLDCOM may
be merged or consolidated or which purchases all or substantially all
of the assets of WORLDCOM; provided that the assignee or transferee in
any such circumstance shall continue to be subject to all of the
provisions of this Agreement, including without limitation this
Section 15.2; and provided further that, promptly following any such
assignment or transfer, WORLDCOM shall give written notice identifying
the assignee or transferee; and provided further that any such
assignment or transfer shall be conditioned upon the corresponding
assignment or transfer of WORLDCOM's rights and obligations under the
IRU Agreement. In the event of any permitted partial assignment of
any rights hereunder, WORLDCOM shall remain the sole point of contact
with QWEST.
15.3 This Agreement and each of the parties' respective rights
and obligations under this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and each of their
respective permitted successors and assigns.
ARTICLE XVI.
GOVERNING LAW
16.1 This Agreement shall be governed by, and construed in
accordance with the domestic laws of the State of Colorado, without
reference to its choice of law principles.
ARTICLE XVII.
RULES OF CONSTRUCTION
17.1 The captions or headings in this Agreement are strictly for
convenience and shall not be considered in interpreting this Agreement
or as amplifying or limiting any of its content. Words in this
Agreement which import the singular connotation shall be interpreted
as plural, and words which import the plural connotation shall be
interpreted as singular, as the identity of the parties or objects
referred to may require.
17.2 Unless expressly defined herein, words having well known
technical or trade meanings shall be so construed. All listing of
items shall not be taken to be exclusive, but shall include other
items, whether similar or dissimilar to those listed, as the context
reasonably requires.
17.3 Except as set forth to the contrary herein, any right or
remedy of WORLDCOM or QWEST shall be cumulative and without prejudice
to any other right or remedy, whether contained herein or not.
17.4 Nothing in this Agreement is intended to provide any legal
rights to anyone not an executing party of this Agreement.
17.5 This Agreement has been fully negotiated between and jointly
drafted by the parties.
17.6 In the event of a conflict between the provisions of this
Agreement and those of any Exhibit, the provisions of this Agreement
shall prevail and such Exhibits shall be corrected accordingly.
17.7 All actions, activities, consents, approvals and other
undertakings of the parties in this Agreement shall be performed in a
reasonable and timely manner, it being expressly acknowledged and
understood that time is of the essence in the performance of
obligations required to be performed by a date expressly specified
herein. Except as specifically set forth herein, for the purpose of
this Article the normal standards of performance within the
telecommunications industry in the relevant market shall be the
measure of whether a party's performance is reasonable and timely.
ARTICLE XVIII.
ENTIRE AGREEMENT; AMENDMENT
18.1 This Agreement, together with the IRU Agreement, any
Regeneration Sharing Agreement, and any Confidentiality Agreement
entered into in connection herewith, constitutes the entire and final
agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior agreements relating to
the subject matter hereof (including, without limitation that certain
letter agreement between the parties dated February 2, 1996) which are
of no further force or effect. The Exhibits referred to herein are
integral parts hereof and are hereby made a part of this Agreement.
This Agreement may only be modified or supplemented by an instrument
in writing executed by a duly authorized representative of each party.
ARTICLE XIX.
NO PERSONAL LIABILITY
19.1 Each action or claim against any party arising under or
relating to this Agreement shall be made only against such party as a
corporation and any liability relating thereto shall be enforceable
only against the corporate assets of such party. No party shall seek
to pierce the corporate veil or otherwise seek to impose any liability
relating to, or arising from, this Agreement against any shareholder,
employee, officer or director of the other party. Each of such
persons is an intended beneficiary of the mutual promises set forth in
this Article and shall be entitled to enforce the obligations of this
Article.
ARTICLE XX.
CONFLICTS OF INTEREST
20.1 Neither party shall use any funds received under this
Agreement for illegal purposes. Neither party shall pay any
commission, fees or rebates to any employee of the other party, or
favor any employee of such other party with gifts or entertainment of
significant cost or value intended to influence the actions of such
employee in a manner inconsistent with that employee's duty of loyalty
to its employer. If either party has reasonable cause to believe that
one of the provisions in this Article has been violated, it, or its
representative, may audit the relevant books and records of the other
party for the sole purpose of establishing compliance with such
provisions.
ARTICLE XXI.
RELATIONSHIP OF THE PARTIES
21.1 The relationship between WORLDCOM and QWEST shall not be
that of partners, agents or joint venturers for one another, and
nothing contained in this Agreement shall be deemed to constitute a
partnership or agency agreement between them for any purposes,
including but not limited to federal income tax purposes. WORLDCOM
and QWEST, in performing any of their obligations hereunder, shall be
independent contractors or independent parties and shall discharge
their contractual obligations at their own risk.
ARTICLE XXII.
DEFAULT
22.1 With respect to all payments required to be made by WORLDCOM
hereunder, WORLDCOM shall be in default hereunder if such payment is
not paid on the date due and payable hereunder, and from and after
such date such unpaid amount shall bear interest until paid at a rate
equal to the rate set forth in Article XXIV. With respect to all non-
payment obligations, WORLDCOM shall be in default under this Agreement
thirty (30) days after QWEST shall have given WORLDCOM written notice
of such default unless WORLDCOM shall have cured such default or such
default is otherwise waived within such thirty (30) days; provided,
however, that where such default cannot reasonably be cured within
such thirty (30) day period, if WORLDCOM shall proceed promptly to
cure the same and prosecute such curing with due diligence, the time
for curing such default shall be extended for such period of time as
may be necessary to complete such curing. Events of default also
shall include, but not be limited to, the making by WORLDCOM of a
general assignment for the benefit of its creditors, the filing of a
voluntary petition in bankruptcy or the filing of a petition in
bankruptcy or other insolvency, protection against WORLDCOM which is
not dismissed within ninety (90) days thereafter, or the filing by
WORLDCOM of any petition or answer seeking, consenting to, or
acquiescing in reorganization, arrangement, adjustment, composition,
liquidation, dissolution or similar relief. Any event of default by
WORLDCOM may be waived under the terms of this Agreement at QWEST's
option. Upon the failure by WORLDCOM to timely cure any such default
after notice thereof from QWEST, QWEST may (i) take such action as it
determines, in its sole discretion, to be necessary to correct the
default and (ii) pursue any legal remedies it may have under
applicable law or principles of equity relating to such breach.
Notwithstanding the above, if WORLDCOM certifies in good faith to
QWEST in writing that a default has been cured, such default shall be
deemed to be cured unless QWEST otherwise notifies WORLDCOM in writing
within fifteen (15) days of receipt of such notice from WORLDCOM.
22.2. With respect to all payments required to be made by
QWEST hereunder, QWEST shall be in default hereunder if such payment
is not paid on the date due and payable hereunder, and from and after
such date such unpaid amount shall bear interest until paid at a rate
equal to the rate set forth in Article XXIV. With respect to all non-
payment obligations, QWEST shall be in default under this Agreement
thirty (30) days after WORLDCOM shall have given QWEST written notice
of such default unless QWEST shall have cured such default or such
default is otherwise waived within such thirty (30) days; provided,
however, that where such default cannot reasonably be cured within
such thirty (30) day period, if QWEST shall proceed promptly to cure
the same and prosecute such curing with due diligence, the time for
curing such default shall be extended for such period of time as may
be necessary to complete such curing. Events of default shall also
include, but not be limited to, the making by QWEST of a general
assignment for the benefit of its creditors, the filing of a voluntary
petition in bankruptcy or the filing of a petition in bankruptcy or
other insolvency protection against QWEST which is not dismissed
within ninety (90) days thereafter, or the filing by QWEST of any
petition or answer seeking, consenting to or acquiescing in
reorganization, arrangement, adjustment, composition, liquidation,
dissolution or similar relief. Any event of default by QWEST may be
waived under the terms of this Agreement at WORLDCOM's option. Upon
the failure by QWEST to timely cure any such default after notice
thereof from WORLDCOM, WORLDCOM may (i) take such action as it
determines, in its sole discretion, to be necessary to correct the
default, and (ii) pursue any legal remedies it may have under
applicable law or principles of equity, relating to such breach.
Notwithstanding the above, if QWEST certifies in good faith to
WORLDCOM in writing that a default has been cured, such default shall
be deemed to be cured unless WORLDCOM otherwise notifies QWEST in
writing within fifteen (15) days of receipt of such notice from QWEST.
ARTICLE XXII.
TERM
23.1 The initial term of this Agreement shall begin on the date
hereof and terminate on a date
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
years from the date hereof (the
"Initial Term"). This Agreement shall be renewable for three
succeeding additional
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
year terms (each, an "Additional Term") at
the election of Service Recipient for the maintenance of each Segment
of the QWEST System or the QWEST Conduit, as the case may be, provided
by Service Provider hereunder. Any fees to be made under any such
Additional Term shall be negotiated in good faith by both parties at
the time of such renewal.
23.2 If this Agreement expires or terminates prior to the end of
the Term of the IRU Agreement with respect to the QWEST Conduit or the
QWEST System, the provisions of this Agreement relating to access by
QWEST to the QWEST Conduit, or by WORLDCOM to the QWEST System for
purposes of maintenance thereof, shall survive the expiration or
termination hereof and continue to apply for the remaining Term of the
IRU Agreement with respect to the QWEST Conduit and the QWEST System,
respectively.
ARTICLE XXIV.
LATE PAYMENTS
24.1 In the event a party shall fail to make any payment under
this Agreement when due, such amounts shall accrue interest, from the
date such payment is due until paid, including accrued interest, at an
annual rate equal to
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
of the prime rate of interest published by The Wall Street Journal as
the base rate on corporate loans posted by a percentage of the
nation's largest banks on the date any such payment is due or, if
lower, the highest percentage allowed by law.
ARTICLE XXV.
SEVERABILITY
25.1 If any term, covenant or condition contained herein shall,
to any extent, be invalid or unenforceable in any respect under the
laws governing this Agreement, the remainder of this Agreement shall
not be affected thereby and each term, covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent
permitted by law.
ARTICLE XXVI.
THIRD PARTY WARRANTIES
26.1 In the event any maintenance or repairs to the QWEST System
are required as a result of a breach of any warranty made by any
manufacturers, contractors or vendors, QWEST, as applicable, shall
pursue any remedies it may have against such manufacturers,
contractors or vendors, and QWEST shall reimburse WORLDCOM's costs for
any maintenance WORLDCOM has incurred as a result of any such breach
of warranty to the extent the manufacturer, contractor or vendor has
paid such costs. In the event any maintenance or repairs to the
WORLDCOM Conduit System are required as a result of a breach of any
warranty made by any manufacturers, contractors or vendors, WORLDCOM,
as applicable, shall pursue any remedies it may have against such
manufacturers, contractors or vendors. and WORLDCOM shall reimburse
QWEST's costs for any maintenance QWEST has incurred as a result of
any such breach of warranty to the extent the manufacturer, contractor
or vendor has paid such costs.
27.1 This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one and the same
instrument.
In confirmation of their consent and agreement to the terms and
conditions contained in this Maintenance Agreement and, intending to
be legally bound hereby, the parties have executed this Maintenance
Agreement as of the date first above written.
"QWEST":
QWEST COMMUNICATIONS CORPORATION, a
Delaware corporation
By:
Name: Douglas H. Hanson
Title: President and Chief Executive
Officer
"WORLDCOM":
WORLDCOM NETWORK SERVICES, INC., a
Delaware corporation
By:
Name: Scott Sullivan
Title: Chief Financial Officer
EXHIBIT J
Contract Pricing/Payment Schedule
A. Allocated Segment Pricing (Segments 1, 2, 3, 4, 5 and 6)
Distance Segment City Pairs Price
269 miles Segment 1 Dallas-Houston $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
749 miles Segment 2 Denver-El Paso $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
871 miles Segment 3 Santa Clara -
Salt Lake City $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
1,889 miles Segments 1,2,3 $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
752 miles Segment 4 Oakland-Portland $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
691 miles Segment 5 Cleveland-Boston $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
182 miles Segment 6 Portland-Seattle $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
1,625 miles Segments 4,5,6 $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
3,514 miles Segments 1,2,3,4,5,6 $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
B. Payment Schedule
SEGMENT 1: DALLAS TO HOUSTON
Assumed Distance: 269 miles
Allocated Contract Price: $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
Payment
1. Initial deposit of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% of Segment 1 Contract Price $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
2. Total Segment 1 fiber cost* $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
3. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
4. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
5. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
6. Due upon Acceptance Date of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
7. Due upon delivery of final "As-Builts" for Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
TOTAL $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
SEGMENT 2: DENVER TO EL PASO
Assumed Distance: 749 miles
Allocated Contract Price: $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
1. Initial deposit of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% of Segment 2 Contract Price $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
2. Total Segment 2 fiber cost* $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
3. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
4. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
5. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
6. Due upon Acceptance Date of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
7. Due upon delivery of final "As-Builts" for Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
TOTAL $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
SEGMENT 2A: LAMY TO SANTA FE
Assumed Distance: 17 miles
Allocated Contract Price: $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
1. Initial deposit of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% of Segment 2A Contract Price $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
2. Total Segment 2A fiber cost* $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
3. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
4. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
5. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
6. Due upon Acceptance Date of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
7. Due upon delivery of final "As-Builts" for Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
TOTAL $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
SEGMENT 3: SANTA CLARA TO SALT LAKE CITY
Assumed Distance: 871 miles
Allocated Contract Price: $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
1. Initial deposit of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% of Segment 3 Contract Price $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
2. Total Segment 3 fiber cost* $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
3. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
4. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
5. Due upon
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% completion of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
6. Due upon Acceptance Date of Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
7. Due upon delivery of final "As-Builts" for Segment $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
TOTAL $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
SEGMENT 4: OAKLAND TO PORTLAND
Assumed Distance: 752 miles
Allocated Contract Price: $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
Payment
1. Initial deposit of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% of Segment 4 Contract Price $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
2. Total Segment 4 fiber cost* $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
3. Aggregate monthly progress payments**:
(a) $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per foot of cable ready conduit $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
(b) $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per foot of cable installed and spliced $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
4.
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% As-Built Reserve $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
TOTAL $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
SEGMENT 5: CLEVELAND TO BOSTON
Assumed Distance: 691 miles
Allocated Contract Price: $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
Payment
1. Initial deposit of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% of Segment 5 Contract Price $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
2. Total Segment 5 fiber cost* $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
3. Aggregate monthly progress payments**:
(a) $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per foot of cable ready conduit $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
(b) $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per foot of cable installed and spliced $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
4.
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% As-Built Reserve $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
TOTAL $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
SEGMENT 6: PORTLAND TO SEATTLE
Assumed Distance: 182 miles
Allocated Contract Price: $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
Payment
1. Initial deposit of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% of Segment 6 Contract Price $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
2. Total Segment 6 fiber cost* $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
3. Aggregate monthly progress payments**:
(a) $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per foot of cable ready conduit $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
(b) $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per foot of cable installed and spliced $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
4.
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% As-Built Reserve $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
TOTAL $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
SEGMENT 7: KANSAS CITY TO ST. LOUIS
Contract Price: $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per mile
Payment
1. Initial deposit of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% of Segment 7 Contract Price $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per mile
2. Total Segment 7 fiber cost* $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per mile
3. Monthly progress payments: $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per foot of
cable installed and spliced $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per mile
4.
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% As-Built Reserve $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per mile
TOTAL $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per mile
_________________________
* All payments for the cost of the WORLDCOM Fiber to be incorporated
in each Segment are based on an assumed cost of
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per fiber foot, or $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per 24 fiber foot, and assume
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
% excess fiber for slack. Fiber cost for each Segment will be billed
as QWEST receives invoices from the fiber vendor, but in no event
shall the invoices to be paid by WORLDCOM for the WORLDCOM Fiber
incorporated in any Segment exceed the amount reflected for each
Segment as the total fiber cost for such Segment.
** Monthly progress payments not to be invoiced until construction
starts between Roseville and Portland
C. Incremental Fiber Cost Under Section 1.1(b).
The incremental Cost to WORLDCOM of the additional twenty-four
(24) Dark Fibers (Corning SMF-DS) on that portion of Segment 3 between
Santa Clara and Oakland pursuant to Section 1.1(b) shall be $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per 24 fiber foot.
D. Incremental Fiber Cost Under Section 1.7(ii).
The incremental Cost to QWEST of the twenty-four (24) Dark Fibers
(Corning SMF-LS) described in Section 1.7(ii) in the WORLDCOM
Portland/Seattle System shall be $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per 24 fiber foot.
E. Incremental Fiber Cost Under Section 1.6.
The incremental Cost to WORLDCOM of the twelve (12) Dark Fibers
(Corning SMF-DS) subject to the Connective IRU and the O/SC IRU shall
be $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per 12 fiber foot.
EXHIBIT K
As-Built Drawing Specifications
As Built Alignment Sheets.
Survey information (either from existing date or new information)
will be put on drawings.
Drawings will contain cable information, splice locations, assist
point locations with permanent structures, landowner information,
conduit information, regen locations and optical distances to each
regen from each splice location. Railroad mile posts are used as
fixed points for stationing.
Drawings will be updated with actual field data during and after
construction.
Metro areas scale shall not exceed 1 inch = 200 feet.
Rural areas scale shall not exceed 1 inch = 500 feet.
Cable information shall include manufacturer and type of fiber,
and manufacturer and style of cable.
Red line drawings will be provided at the time of acceptance.
Final as-builts will be provided within 180 days after
acceptance.
FIRST AMENDMENT TO IRU AGREEMENT
This FIRST AMENDMENT TO IRU AGREEMENT (this "Amendment") is made
and entered into as of the ___ day of June, 1996, by and between QWEST
COMMUNICATIONS CORPORATION, a Delaware Corporation ("QWEST"), and
WORLDCOM NETWORK SERVICES, INC., a Delaware corporation ("WORLDCOM").
RECITALS
A. QWEST and WORLDCOM are parties to that certain IRU Agreement
dated February 26, 1996, providing, among other things, for the grant
by QWEST to WORLDCOM of an exclusive IRU in certain Dark Fibers in the
QWEST System. All capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the IRU Agreement.
B. QWEST and WORLDCOM desire to amend the IRU Agreement to
include twelve (12) additional Dark Fibers on a portion of Segment 2
of the QWEST System.
Accordingly, in consideration of the mutual promises set forth
below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree
to amend the IRU Agreement as follows:
1. Section 1.1(a) of the IRU Agreement is hereby amended by
adding at the end of such Section the following:
Effective as of the Acceptance Date for Segment 2 delivered
hereunder, QWEST hereby grants to WORLDCOM an Indefeasible Right
of Use, for the purposes described herein, in twelve (12) Dark
Fibers (the "Additional Fibers"), to be specifically identified,
in the QWEST System between the WORLDCOM POP in Denver and the
point on the QWEST System right-of-way where the MCI
Telecommunications Corporation cable leaves the right-of-way in
the downtown area of Colorado Springs, Colorado (the "Additional
IRU"), for the Term, all on the terms and subject to the
conditions set forth herein. Each reference in this Agreement to
the "WORLDCOM Fibers" shall include the Additional Fibers, and
each reference in this Agreement to the "WORLDCOM IRU" shall
include the Additional IRU.
2. Section 2.1 of the IRU Agreement is hereby amended to
increase the Segment 1-3 Contact Price to $
ATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
, to reflect the aggregate price of the Additional Fibers of $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
(based on $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per route mile for approximately 75 miles; the "Additional Segment 2
Contract Price"). The Additional Segment 2 Contract Price ;shall be
due and payable in accordance with Section 2.1(a)(ii), i.e. ten (10)
days after submission by QWEST to WORLDCOM of the invoice(s) QWEST
receives from the fiber vendor for the Cable including the Additional
Fibers. Exhibit J to the IRU Agreement is hereby amended to reflect
the foregoing by (i) amending Part A thereof to increase (A) the
Contract Price allocated to Segment 2 from $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
to $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
and (B) the total Contract Price for Segments 1, 2 and 3 from $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
to $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
and (ii) amending Part B thereof to increase (A) the total Allocated
Contract Price from $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
to $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
and (B) the amount of the total Segment 2 fiber cost from $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
to $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
.
3. On and after the execution of this Amendment, each reference
in the IRU Agreement to "this Agreement," "hereunder," "hereof," or
words of like import referring to the IRU Agreement and each reference
in the Maintenance Agreement dated February 26, 1996 by and between
QWEST and WORLDCOM to the "IRU Agreement," "thereunder," "thereof" or
words of like import referring to the IRU Agreement shall mean the IRU
Agreement as amended and modified by this Amendment. The IRU
Agreement as amended and modified by this Amendment is and shall
continue to be in full force and effect.
4. This Amendment may be executed in one or more counterparts,
all of which taken together shall constitute one and the same
instrument.
In confirmation of their consent and agreement to amend the IRU
Agreement and intending to be legally bound hereby, the parties have
executed this Amendment to the IRU Agreement as of the date first
above written.
"QWEST"
QWEST COMMUNICATIONS CORPORATION, a Delaware
corporation
By:/s/
Name: Douglas H. Hanson
Title: President and Chief Executive
Officer
"WORLDCOM"
WORLDCOM NETWORK SERVICES, INC., a
Delaware corporation
By:/s/
Name: Gary V. Shaw
Title: V.P. Network Planning and
Operations
SECOND AMENDMENT TO IRU AGREEMENT
This SECOND AMENDMENT TO IRU AGREEMENT (this "Amendment") is made
and entered into as of the ___ day of July, 1996, by and between QWEST
COMMUNICATIONS CORPORATION, a Delaware Corporation ("QWEST"), and
WORLDCOM NETWORK SERVICES, INC., a Delaware corporation ("WORLDCOM").
RECITALS
A. QWEST and WORLDCOM are parties to that certain IRU Agreement
dated February 26, 1996, as amended by the First Amendment to IRU
Agreement dated as of June 13, 1996 (the "IRU Agreement"), providing,
among other things, for the grant by QWEST to WORLDCOM of an exclusive
IRU in certain Dark Fibers in the QWEST System. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to such
terms in the IRU Agreement.
B. QWEST and WORLDCOM desire to amend the IRU Agreement to,
among other things, provide for the acquisition by QWEST of an IRU
with respect to twenty-four (24) additional Dark Fibers on the
WORLDCOM Portland/Seattle System.
Accordingly, in consideration of the mutual promises set forth
below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree
to amend the IRU Agreement as follows:
1. The last sentence of Section 1.7 of the IRU Agreement is
hereby amended to change the Section referred to therein from "Section
2.2(b)" to "Section 2.1(b)."
2. The IRU Agreement is hereby amended to add a new Section 1.9
to such Agreement, which Section will read in its entirety as follows:
1.9 WORLDCOM hereby acknowledges QWEST'S timely exercise of the
option set forth in Section 1.7 above and, in addition to the IRU
in forty-eight (48) Dark Fibers to be acquired by QWEST thereunder,
hereby grants to QWEST an Indefeasible Right of Use in twenty-four
(24) Dark Fibers, to be specifically identified (including WORLDCOM
Associated Property), in the WORLDCOM Portland/Seattle System, for
the Term and on the terms and subject to the conditions set forth
herein; provided that the grant of the foregoing IRU in, and the
delivery to QWEST of, such twenty-four (24) Dark Fibers shall be
subject to and conditioned upon QWEST's prior written notification
to WORLDCOM that QWEST has commenced construction of the Optional
Phoenix/Los Angeles Segment, as that term is defined in
Section 1.8. In consideration of the grant of such IRU, QWEST
shall pay to WORLDCOM an amount equal to the route miles of the
WORLDCOM Portland/Seattle multiplied by $
##MATERIAL OMITTED AND SEPARATELY FILED UNDER AN APPLICATION FOR
CONFIDENTIAL TREATMENT##
per route mile, which amount shall be payable according to the payment
methodology applicable under Section 2.1(b).
3. The IRU Agreement is hereby amended to add a new
Section 1.10 to such Agreement, which Section will read in its
entirety as follows:
1.10 Each grant of an IRU by WORLDCOM to QWEST under this IRU
Agreement is governed by the same terms and subject to the same
conditions as the IRUs granted by QWEST to WORLDCOM hereunder,
except, for purposes of the IRUs granted by WORLDCOM to QWEST,
the references in such terms and conditions to "QWEST" shall
refer to "WORLDCOM" and the references to "WORLDCOM" shall refer
to "QWEST."
4. On and after the execution of this Amendment, each reference
in the IRU Agreement to "this Agreement," "hereunder," "hereof," or
words of like import referring to the IRU Agreement and each reference
in the Maintenance Agreement dated February 26, 1996 by and between
QWEST and WORLDCOM to the "IRU Agreement," "thereunder," "thereof," or
words of like import referring to the IRU Agreement shall mean the IRU
Agreement as amended and modified by this Amendment. The IRU
Agreement as amended and modified by this Amendment is and shall
continue to be in full force and effect.
5. This Amendment may be executed in one or more counterparts,
all of which taken together shall constitute one and the same
instrument.
[Signature page follows]
In confirmation of their consent and agreement to amend the IRU
Agreement and intending to be legally bound hereby, the parties have
executed this Amendment to the IRU Agreement as of the date first
above written.
"QWEST"
QWEST COMMUNICATIONS CORPORATION, a Delaware
corporation
By:/s/
Name: Douglas H. Hanson
Title: President and Chief Executive
Officer
"WORLDCOM"
WORLDCOM NETWORK SERVICES, INC., a
Delaware corporation
By: /s/
Name:
Title: