Ruby Ranch Internet Cooperative Association Petition for Arbitration
Petitioner: The petitioner is the Ruby Ranch Internet Cooperative Association, and Carl Oppedahl, a member of the Board of Directors, is authorized to represent the Coop:
Carl Oppedahl Ruby Ranch Internet Cooperative Association c/o Oppedahl & Larson LLP P.O. Box 5088 Dillon, CO 80435-5088 970-468-6600 carl@rric.net
Respondent: The respondent is Qwest Communications, the dominant incumbent local exchange carrier in Colorado:
Qwest Corporation 1801 California, Room 2410 Denver, CO 80202
The "lead" Qwest negotiator has been Nancy J. Donahue (303-965-3887 or ndonahu@qwest.com). The attorney representing Qwest during the "negotiating" ses-sions was Martin Willard of Perkins Coie (willm@perkinscoie.com) and in later session, Richard Corbetta, an in-house lawyer. However, the Qwest attorney representing the company before the FCC was Blair A. Rosenthal (303-672-2974).
All relevant documents pertaining to the discussions held between Qwest and the Coop are available at http://www.rric.net/exhibits.htm. Below are key dates:
This contract for the rental of certain subloops ("Agreement") is entered into by and between Qwest Corporation ("Qwest") and the Ruby Ranch Internet Cooperative As-sociation ("RRICA"), collectively, "the Parties," entered into and effective this ___th day of ________ 2001 ("Effective Date"), for a three year term.
Whereas, RRICA was formed to provide high-speed, "always on" Internet access services to residents of Ruby Ranch in Summit County, Colorado because such access is not available to most Ranch residents today;
Whereas, there are approximately 40 homes on Ruby Ranch and at full built out there will be a maximum of 60 homes; and
Whereas, RRICA seeks to interconnect at Qwest's junction box located at the corner of Ruby and Emerald Roads on Ruby Ranch and to lease Qwest unbundled subloops between the Qwest junction box and Ranch residents that purchase RRICA's Internet access services;
Now, therefore, in consideration of the terms and conditions contained herein, Qwest and the RRICA mutually agree as follows:
1. Term and Renewal. The term of this Agreement shall be for three years and shall expire on __________, 2004. The term of the Agreement will be renewed auto-matically for an additional one-year period unless either Party provides notice to the other 90 days before the end of the then current term
2. Governing Law. This Agreement shall be governed by the Communications Act of 1934, as amended, the rules and orders adopted by the Federal Communications Commission ("FCC"), the rules and orders adopted by the Colorado Public Utilities Commission ("CoPUC") and so far as applicable, the general laws of the State of Colo-rado.
3. Use of Qwest Subloops
3.1 Interconnection Point. The point where the RRICA will interconnect its fa-cilities with Qwest's facilities is the Qwest junction box ("Qwest Junction Box") at the corner of Ruby and Emerald Roads on Ruby Ranch in Summit County, Colorado. Qwest shall install a Field Connection Point ("FCP") within this junction box, and this FCP shall act as the point of demarcation separating the Parties' respective networks. The Coop will pay Qwest $100 to prepare a price quote for the installation of the FCP, and the price of the FCP shall be based on Qwest's actual time and materials. Qwest shall give the RRICA the option of either a 25-line or 50-line FCP. Qwest is responsible for providing and installing in its Junction Box any other equipment (e.g., protectors) that it deems necessary.
3.2 Unbundled Subloops. The RRICA may order from Qwest unbundled subloops from the Qwest Junction Box to Ranch residents that order RRICA's Internet access services. The price of these subloops shall be $8.33 monthly
3.3 Service Quality. Qwest will provide to RRICA facilities that at least equal in quality to that provided to itself, to any subsidiary, affiliate, or to other non-Qwest inter-connecting parties.
3.4 Other. It is not envisioned that the Parties will exchange any traffic with each other. Nor will the RRICA install any equipment in the Qwest Junction Box or in any other Qwest facility or equipment.
4. Ordering of Facilities. RRICA may order subloops either via telephone or facsimile. Qwest shall designate a specific employee(s) with whom the RRICA shall deal. Qwest shall also provide a customer authorization form that the RRICA may use with its member-subscribers.
5. Installation of Facilities. Qwest shall attempt to activate orders within three business days of the order, and in any event, will install such orders within one week of the order. The RRICA shall pay Qwest a non-recurring fee of $27.00 for activating each subloop.
6. Maintenance and Repair. The RRICA is responsible for attempting to re-solve any service trouble reports from its customers, and it will perform trouble isolation on the unbundled loops before reporting the trouble to Qwest. Qwest will work coopera-tively with the RRICA to resolve trouble reports when the trouble condition has been iso-lated and found to be within a portion of Qwest's network. When the trouble is not in Qwest's network, RRICA shall be assessed the applicable time and materials charges. In contrast, if the trouble is within Qwest's network, Qwest will assume the costs of repair
7. Changes in Qwest Equipment or Equipment Location. If Qwest moves its Junction Box on Ruby Ranch or installs a different piece of equipment for use of connecting to subloops on the Ranch (e.g., digital loop carrier terminal), Qwest will assume the obligation and cost of moving the RRICA's cable to the new location or equipment, so that RRICA's service is not interrupted (other than during the time of installation). Qwest shall provide 30 days notice to the RRICA before making any change in the demarcation point.
8. Standard Contract Terms and Conditions
8.1 Billing and Payment. Qwest shall submit its statements monthly, and the RRICA shall pay non-disputed amounts within 30 days of receipt of such statements. The RRICA shall also identify disputed amounts within 30 days.
8.2 Taxes. Each Party purchasing services hereunder shall pay or otherwise be responsible for all federal, state, or local sales, use, excise, gross receipts, transaction or similar taxes, fees or surcharges levied against or upon such purchasing Party (or the pro-viding Party when such providing Party is permitted to pass along to the purchasing Party such taxes, fees or surcharges), except for any tax on either Party's corporate existence, status or income. Whenever possible, these amounts shall be billed as a separate item on the invoice.
8.3 Force Majeure. Neither Party shall be liable for any delay or failure in per-formance of any part of this Agreement from any cause beyond its control and without its fault or negligence. The Party affected by a Force Majeure Event shall give prompt no-tice to the other Party, shall be excused from performance of its obligations hereunder on a day to day basis to the extent those obligations are prevented by the Force Majeure Event, and shall use reasonable efforts to remove or mitigate the Force Majeure Event. In the event of a labor dispute or strike the Parties agree to provide service to each other at a level equivalent to the level they provide themselves.
8.4 Limitations of Liability. Neither Party shall be liable to the other for indirect, incidental, consequential, or special damages, including (without limitation) damages for lost profits, lost revenues, lost savings suffered by the other Party regardless of the form of action, whether in contract, warranty, strict liability, tort, including (without limitation) negligence of any kind and regardless of whether the Parties know the possibility that such damages could result. Nothing contained in this Section shall limit either Party's liability to the other for willful or intentional misconduct.
8.5 Indemnity. Except for claims made by end users of one Party against the other Party, which claims are based on defective or faulty services provided by the other Part to the one Party, each of the Parties agrees to release, indemnify, defend and hold harmless the other Party and each of its officers, directors, employees and agents from and against and in respect of any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliqui-dated, including, but not limited to costs and attorneys' fees, whether suffered, made, in-stituted, or asserted by any other party or person, for invasion of privacy, personal injury to or death of any person or persons, or for loss, damage to, or destruction of property, whether or not owned by others, resulting from the indemnifying Party's performance, breach of applicable law, or status of its employees agents and subcontractors, or for fail-ure to perform under this Agreement, regardless of the form of action.
8.6. Warranties. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE PARTIES AGREE THAT NEITHER PARTY HAS MADE, AND THAT THERE DOES NOT EXIST, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THAT ALL PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS," WITH ALL FAULTS.
8.7. Disputes. The Parties intend to resolve disputes through ordinary business channels, using escalation and mediation as appropriate. If a dispute is not resolved within 60 days of the notice of the dispute to the other, either Party may invoke arbitra-tion pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16. The arbitrator shall not have authority to award punitive damages. All expedited procedures prescribed by the AAA rules shall apply. The arbitrator's award shall be final and binding and may be en-tered in any court having jurisdiction thereof. Each Party shall bear its own costs and at-torneys' fees, and shall share equally in the fees and expenses of the arbitrator. The arbi-tration proceedings shall occur in Summit County or in another mutually agreeable loca-tion. It is acknowledged that the Parties, by mutual, written agreement, may change any of these arbitration practices for a particular, some, or all Dispute(s). No Dispute, regard-less of the form of action, arising out of this Agreement, may be brought by either Party more than two (2) years after the cause of action accrues.
8.8. Notices. Any notices required by or concerning this Agreement shall be in writing and sent by certified mail, return receipt requested, to Qwest and the RRICA at the addresses shown below:
Qwest Corporation Director Interconnection 1801 California, Room 2410 Denver, CO 80202
With copy to: Qwest Law Department Attention: Corporate Counsel, Interconnection 1801 California Street, 38th Floor Denver, CO 80202
Ruby Ranch Internet Cooperative Association c/o Oppedahl & Larson, LLP P.O. Box 6088 Dillon, CO 80435-5088
7.9 Responsibility of Each Party. Each Party is an independent contractor, and has and hereby retains the right to exercise full control of and supervision over its own performance of its obligations under this Agreement and retains full control over the em-ployment, direction, compensation and discharge of all employees assisting in the per-formance of such obligations. Subject to the limitations on liability and except as other-wise provided in this Agreement, each Party shall be responsible for (i) its own acts and performance of all obligations imposed by applicable law in connection with its activi-ties, legal status and property, real or personal, and (ii) the acts of its own affiliates, em-ployees, agents and contractors during the performance of that Party's obligations here-under.
7.9. No Third Party Beneficiaries. This Agreement does not provide and shall not be construed to provide third parties with any remedy, claim, liability, reimburse-ment, cause of action, or other privilege.
8. Special Circumstances. The RRICA recognizes that Qwest has agreed to execute this simplified Agreement and procedures because the RRICA is a very small non-profit cooperative whose customer base will never exceed 60 customers.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized representatives.
Qwest Corporation
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Ruby Ranch Internet Cooperative Association
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