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OnFiber-AG010212T H E • C 1 T Y • O F COPPELL AGENDA REQUEST FORM r � CITY COUNCIL MEETING: February 13. 2001 TTRTf 44 9b ITEM CAPTION: Consider approval of an Interim Right -of -way Use Agreement between the City of Coppell and OnFiber Carrier Services, Inc. for use of the right -of -way to install telecommunication lines and related appurtenances; and authorizing the City Manager to sign. APPROVED BY CITY COUNCIL ' DATE SUBMITTED BY: enneth M. Griffin, P.E. TITLE: Director of Engineering /Publi orks STAFF COMME S: City Attorney, Robert E. Hager prepared this agreement and will be available to answer any questions at the Council meeting. BUDGET AMT. $ AMT. EST. $ FINANCIAL COMMENTS: ��� DIR. INITIALS: FIN. REVIEW: Agenda Request Form - Revised 5100 +\ -BID $ CITY MANAGER REVIEW: Document Name: #engl INTERIM PUBLIC RIGHT -OF -WAY USE AGREEMENT BETWEEN THE CITY OF COPPELL, TEXAS AND THE ONFIBER CARRIER SERVICES, INC., A CERTIFICATED TELECOMMUNICATIONS PROVIDER This Public Right -of -Way Use Agreement ( "Agreement ") is hereby made and entered into by and between the City of Coppell ( "City "), a home rule municipal corporation organized under the laws of the State of Texas, and acting by and through its City Manager, its duly authorized agent and the OnFiber Carrier Services, Inc. ( "Company "), a Delaware Corporation, acting by and through its authorized representative. The following statements are true and correct and constitute the basis of this Agreement: A. Company is a Certificated Telecommunications Provider ( "CTP "). A copy of Company's certificate of convenience and necessity, certificate of operating authority or service provider certificate of operating authority is attached hereto as Exhibit "A" and hereby made a part of this Agreement for all purposes. B. In accordance with Chapter 283 of the Loc. Gov't. Code, a CTP is entitled to construct conduit, cable, switches and related appurtenances and facilities and excavate within the Public Rights -of -Way in order to provide telecommunications services other than Cable Services. Company wishes to excavate in the Public Rights -of -Way in order to provide telecommunications services other than Cable Services in the City. C. In accordance with Chapter 283 of the Loc. Gov't. Code, a municipality may exercise police power -based regulations in the management of the use of its Public Rights -of- Way by a CTP in order to protect the health, safety and welfare of the public. The City wishes to set forth reasonable regulations and requirements in this Agreement for the use of the Public Rights -of -Way by Company and Company is willing to abide by such regulations. 1. DEFINITIONS Capitalized terms used in this Agreement and not otherwise defined within this Agreement shall have the following meanings: Access Line shall mean, unless the PUC adopts a different definition pursuant to Section 283.003 of the Texas Local Government Code, the same as in Local Government Code, Chapter 283. Act shall mean the Federal Communications Act of 1934, as amended by the Telecommunications Act of 1996. Affiliate shall mean any individual, partnership, association, joint stock company limited liability company, trust, corporation, or other person or entity who owns or controls, or is owned or controlled by, or is under common ownership or control with, the entity in question. 1 38059 Cable Services shall mean the same as it is defined in the Federal Communications Act of 1934, as amended by the Telecommunications Act of 1996. Cable Television System shall mean the same as it is defined in the Federal Communications Act of 1934, as amended by the Telecommunications Act of 1996. Certificated Telecommunications Provider shall mean the same as it is defined in the Local Government Code, Chapter 283. Company shall mean the OnFiber Carrier Services, Inc.. City shall mean the area within the corporate limits of the City of Coppell, Texas. Director shall mean the Director of the City's Engineering Services Department or authorized representative. Facilities shall mean all facilities placed in, on, under or above the Public Right -of -Way by or on behalf of Company, including, but not limited to, duct spaces, manholes, poles, conduit, underground and overhead passageways, and other equipment, structures and appurtenances and all associated physical devices in the Public Rights -of -Way used by Company for purposes other than the provision of Cable Services. FCC shall mean the Federal Communications Commission. Person shall mean an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust or any other form of business entity or association. Public Rights -of -Way shall mean the same as it is defined in the Local Government Code, Chapter 283. PUC shall man the Public Utility Commission of Texas. Open Video System shall mean the same as it is defined in Title 47, Code of Federal Regulations, Section 76.1500. 2. PERMIT Company shall not initiate or have initiated any kind of construction, installation, maintenance, repairs or other work that requires the excavation, lane closure, or other physical use of the Public Rights -of -Way unless company first obtains a respective permit ( "Permit ") from the Director. The City will provide the Permit to Company free of charge following (i) full compliance with the prerequisites set forth in Section 3 of this Agreement and (ii) the Director's review of Company's Permit application within a reasonable time following its submission to the Director. 2 38059 3. PREREQUISITES TO ISSUANCE OF CONSTRUCTION PERMIT 3.1 Registration. In order for the City to know which CTPs own Facilities in the City's Public Rights -of -Way, Company shall register with the City Manager and provide the following information at a minimum: (i) Company's name and (ii) the current name, address, and telephone number(s) of a contact employed by and with binding and decision - making authority for the Company and who is available twenty -four (24) hours per day. Company shall update and keep current its registration with the City at all times. 3.2 Application. Company shall submit an application for a Permit, including plan documents, to the Director at least ten (10) working days prior to the commencement of the respective use of the Public Rights -of -Way except (i) where waived by the Director in writing or (ii) in the event of an emergency response related to an existing Facility owned by Company. The Permit application shall include the following information at a minimum: (i) the name of Company; (ii) the current name, address and telephone number(s) of a contact employed by and with binding and decision - making authority for the Company and who is available twenty -four (24) hours per day; (iii) the name, address and telephone number(s) of any contractor or subcontractor that will be performing work in, on or above the Public Rights -of -Way; (iv) the proposed location of any construction and route of all Facilities that Company intends to install in, on, or above the Public Rights -of- Way; (v) the construction and /or installation methods that Company intends to employ in order to protect existing structures, fixtures and facilities within or adjacent to the portions of the Public Rights -of -Way that will be affected by Company's respective project; (vi) the dates and times that Company wishes to use the Public Rights -of -Way; (vii) shall submit detailed engineering drawings to scale, no larger than 24" x 36" which depicts the Right of Way width, street width and the location of the water, sanitary sewer and storm drainage systems currently located in such Right -of -Way; and (viii) proof of insurance and bonding requirements as required by applicable City Ordinances. Upon completion of construction, Company shall provide the Director copies of the "as built" documents for each installation in the Rights -of -Way. 3.3 Executed Public Right -of -WU Use Agreement Company shall provide the Director with a fully executed copy of this Agreement upon submission of Company's Permit application. 3.4 Compliance With All City Ordinances. Company agrees to comply with all City Ordinances on construction in the Public Rights -of -Way, and such ordinances the Company acknowledges it has either reviewed or had an opportunity to review. 3 38059 4. MUNICIPALITIES 4.1 Sunset. Company shall pay the City a quarterly fee calculated monthly and based upon the Access Line rates for the City adopted by the PUC in accordance with Section 283.055 of the Texas Local Government Code. 4.2 When Due. Company shall pay the Fee on a calendar quarterly basis to the City at the address provided in Section 7 of this Agreement. The Fee shall be due within forty -five (45) days following the last day of each quarter. 5. TERM This Agreement shall become effective on the date of its execution ( "Effective Date "), and shall terminate upon the effectiveness of a City ordinance governing the use of the Public Rights -of -Way by CTPs and other public utilities. 6. CABLE SERVICES AND OPEN VIDEO SYSTEMS PROHIBITED Unless otherwise specifically allowed by law, Company shall not provide Cable Service or an Open Video System through its Facilities or initiate construction of a Cable System or Open Video System in the Public Rights -of -Way without a franchise awarded by the City in accordance with the Act. 7. NOTICES Any notices required pursuant to the provisions of this Agreement or provided by the City or Company to the other shall be (i) hand- delivered to the other party or (ii) mailed through the United States Postal Service, postage paid, certified mail, return receipt requested, addressed as follows: TO THE CITY: Jim Witt, City Manager City of Coppell P.O. Box 478 255 Parkway Boulevard Coppell, Texas 75019 WITH A COPY TO: Robert E. Hager, City Attorney NICHOLS, JACKSON, DILLARD, HAGER & SMITH, LLP 1800 Lincoln Plaza 500 N. Akard Dallas, Texas 75201 4 38059 TO COMPANY: Mr. Kirk Wampler Vice President Network Development OnFiber Carrier Services, Inc. A Delaware Corporation 10201 Bubb Road Cupertino, California 95014 8. COMPLIANCE WITH LAWS WITH A COPY TO: Legal Department OnFiber Carrier Services, Inc. 10201 Bubb Road Cupertino, California 95014 Company agrees to comply with all federal, state and local laws; all ordinances, rules and regulations of the City, and all rules and regulations established by the Director in order to protect the public health, safety and welfare. 9. NO WAIVER The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any rights that the City may have, either under this Agreement or the law, shall not constitute a waiver of the City's rights to insist upon appropriate performance or to assert any such right on any future occasion. 10. GOVERNING LAW AND VENUE This Agreement shall be construed pursuant to and in accordance with the laws of the United States of America and the State of Texas. If any action, whether real or asserted, at law or in equity, arises out of the terms of this Agreement, venue for such action shall lie exclusively in state court located in Dallas County, Texas, or the United States District court for the Northern District of Texas, Dallas Division, unless otherwise provided by law. 11. CONFERENCES At the request of either the City or Company, the City and Company shall meet at reasonable times and upon reasonable notice to discuss any aspect of this Agreement or Company's use of the Public Rights -of -Way. 12. SEVERABILITY If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final order entered by a court of competent jurisdiction, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement, a court order shall be final only to the extent that all available legal rights and remedies pertaining to such order, including, without limitation, all available appeals, have been exhausted. 5 38059 13. HEADINGS NOT CONTROLLING Headings and titles that are used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 14. ENTIRETY OF AGREEMENT This Agreement contains the entire understanding and agreement between the City and the Company as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with the terms and conditions of this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties. C1T' M. ATTEST: By: Libby Ba City Secretary ONFIBER CARRIER SERVICES, INC. a Delaware Corporation By: NamXKN Wam pler Title: Vice President Network Development APPROVED AS TO FORM: By:r l �, M ,Attorney 38059 § PUBBLIC UTILITY COMMISSION CONSOLIDATED ORDER § § OF TEXAS DOCKET NO. 21781 Application of Central Power and Light Company fur General Land Of7ce (GLO) Local Delivery Service Tariff; PRrsuant to P.U.C. SURST. R. 25.227 0 DOCKET NO. 22321 Application of Phonoscope, 114 for a Servica,%Jro fer Certificate of Operating Authority r r f DOCKET NO. 22359 Application ofA.nnox, Inc. fora Service Provider VMWczt& rr+ C r- Operating Authority NO. 22363 x� o Application of GlobalNET for an Amendment io its S`n+ gfj p DOCKET Provider Certificate of Operating Authority L10CKET NO- 2236; Application of OnFiber Carrier Services, Mc. for a Service Provider Certxf+cate of Operating Authority DOCKET NO. 22368 Application of Diatione Depot, Inc. for a Service Provider Ceraafcate of OperatingAuthority DOCKET NO. 22373 Application of Genesis Communications Intentadon4 Ine. for a Service Provider Certi'Tcate of Operating Authority DOCKET NO. 22378 Application of acr'a Network Systems, Inc. for an Amendment to its Service Provider Certificate of Operating Authority DOCKET NO. Z2390 Application of New Connects, Fne, for a Service Provider Certificate of Operating Authority DOCKET NO. 22387 Application of Navigator Telecomrttunieations, LLC for an Amendment to its Service Provider Certkft4ate of Operating Authority DOCKW NO. 22396 Application of GCEC Technologies for a CerQkate of Operating Authority DOCKET NO. 22402 Application of Augdco Telecommunications, Z= for an Amendment to Sts Service Provider Certiftmde of Operating Authority 15 CONSOLIDATED ORDER PACE 2 The Commission adopts the attached findings of fact and conelusions, of law and issues the orders sot out therein. SICCNiED AT AUSTIN, TEXAS on the --.1/± day of A a L1 2000. pUB UTILITY CONV�LSION OF TEXAS kv� il i PNT W OD, DI, CHAIRKAW WALS , CON MXSSIONER BRETT A. PE , COMMISSIONER q :�st,a�docxe�WpenmtBS�o&nnf.doc DOCKET NO. 22365 AppLICATION OF ONFIBER CARRIER § 'PUBLIC UTILITY COMNUSSION Sr,,R`VICES, INC. FOR A SERVICE PROVIDER § OF TEXAS CERTIFICATE OF OPERATING AUTHORITY § ORDER `Phis Order grants OnR-bez Carrier Services, Inc. (rite Applicant) a service provider certificate of operating arrthority (SPCOA) to provide facilities based and resold telecommunications services within the geographic area of the entire state of Texas. The docket was processed in accordance with applicable statutes and Commission rules. The Commission provided notice of the application to interested parties. No protests, motions to intervene, or requests for hearing were filed. The Applicant and thn COMMiSSion's Office of Regulatory Affairs (ORA) are the only parties to the proceeding. ORA recommends approval of the application, as amended. The application,, as amended, is hereby approved. I. Findings of Fact Procedurar Mtory I. On April 3, 2000, OW'ber Carrier Services, Inc. (the Applicant) filed with the Pnblic Utility COMMissiOn of Texas (Commission) an application to obtain an SPCOA. 11 Amendments to the application were filed On April 4,20M, April 25, 2000, Apr1l 28, 2000, and May 3, 2400. 2, On April 5, 2040, the Comtxiissian issued an Order est3blishiiig a procedural schedule, entering a protective order, and determij:Cmg filing and service procedures. 3. On April 14, 2000►, consistent with the Office of Regulatory Affairs" recommendation, the Commission found that the Applicant, together with affiliates, had less than six percent of the total intrastate switched access minutes of use, as measured by the most recent 12 -month period for which data is available preceding the filing of the application; and certified the Applicant eligible to obtain, an SPCOA. ORA cheel ed with the Secretary of State and found that the name OnPiber Carrier Services, Inc. has been registered as of March 23, 2000. OPA also checked the certificate of operating authority (COA), SPCOA, and incumbent local exchange company ofrr ial lists, and found no sinfilar names. ORA also checked the Interexchange Carriers list and found no similar names. 4, On April 14, 2000, the Office of Customer Protection (OCP) fled its complaint history memorandum DOCK[C:T NO. 12365 ORDER PAGE Z of 6 5, On April 14, 2000, the Commission ptmvided adequate notice of this proceeding in the Texas Re&ter and through a posting on the Internet, 6. On May 4, 2000, ORA filed a recommendation stating that the Applicant is financially and technically qualified to receive the SPCOA requested, and recommending that the application be approved, as amended. 7. $y Order dated May 11, 2000, documeats relied upon in this Order were admitted into evidence. ApPlicnnf's Rerauesf g, The Applicant is a Delaware corporation formed on January 18, 2000, with authority to transact business in the state of Texas. 9. The Applicant` s patent company is OnFiber Communications, Inc. l0. The Applicant has no affiliated companies that axe public utilities or that are providing telecommunications services. 11. The Applicant proposes to serve the geographic $rea of the entire state of Texas (proposed service area }. 12. The Applicant proposes to act both as a faeilitiesbased and resale provider of telecommunications services. 13, The, Applicant proposes to provide Digital Subscriber X ine, LSDN, TI Private Line, Switch 56 KBPS, Prar= Relay, and J;raational T1 services (proposed scrvi.ces). 14. aba Applicant proposes to provide service to customers other than itself And its affiliates. 15. The Applicant has not applied for any municipal consent, franchise or permit in connection with the services and facilities for Which its is applying. M. The Applicant is not a municipality, nor will the Applicant enable a municipality or municipal electric system to offer for sale to the public, dirently or indirectly, local exchange telephone service, basic local telecommunications service, switched access service, or any non - switched telecommunications service used to provide connections between customers' premises within an exchange or between a customer's premises and a long- distance provider serving the exchange. I)OCKET NO.22365 ORDER I'A.Gk; 3 or 6 17. The Applicant does not currently hold a local telecommunications COA or certificate of convenience and necessity for any part of the proposed service area. 18. The Applicant has applied for authority to provide telecommunications services in California, the District of ColurYbia, Illinois, Maryland, New jersey, New York, Virginia and Washington. 19, The Applicant has never had a permit, license or certificate to providz telecommunications services granted, denied or revoked by any state., 20. The Applicant has never provided telecomm=Ications services in Texas or any other state. 21, OC' =d the Office of tht- Attorney General reported no complaints registered against the Applicant- 22. The Texas Comptroller's Ofi.7ce suited that the Applicant is in conViiance with its statutes and rules. The Applicant indicated through its responses to the Commission's Service Quality Questionnaire that it will meet the quality of service standards. 23. The Applicant has the requisite Weluiical ,qualifications to provide the proposed services within the proposed service area. 24. The Applicant has the requisite financial qualifications to provide the proposed services within the proposed service area, k ormal19isposftzon 25. More than 30 days Dave passed since completion of the no ca provided in this docket. 26. No protests, motions to intervene or requests for hearing have been filed. No issues of fact or law are disputed by anY party. No homing is necessary. 11. Conclusions of Law 1. The Applicant is a telecommunications provider as dei'uned in. § 51.002(10) of the Public Utility Regulatory Act, Tex. Util. Code Ann, (Vernon 1998 & Supp. 2000) (PURA). 2. The Commission bas jurisdiction and authority over the application pursuant to §§ 54.154(a) and $4.155 of PURA. DOCr-ET NO. r?365 ORDER ]PAGE 4 of 6 3. 'die application complies with S 54.154(b) of PURA. 4. The Commission provided notice of the application iii compliance with § 54.005(a) of PURA,. 5. The Applicant is eligible to obtain an SPCOA under the criterion established by PURA § 54.153. 6. The Applicant is not precluded from providing service under an SPCOA by §§ $4.201 or 54.152 of PURR. 7. The. name under which the Applicant has requested that the SPCOA be issued does not duplicate a name already being; used by sin existing SPCOA holder nor is it so similar to a name Ctxrently Ding used as to create confusion. $, The Applicant is entitled to approval of this application, having demonstrated the financial and technical qualifications to provide the proposed services, and the ability to provide the necessary quality of service to its customer's, as required by §§ 54.154(b) and 54.155(b) of PURA. 9. The Commission does not, as a result of the entry of an order granting the application, impose any additional or different service duality obligations on the incumbent local exchange companies that provide service to resellers. 10. The Commission lacks the jurisdiction or authority to determine the necessity of a franchise between, a municipality and the holder of an SPCOA. 11. This application does not constitute a major rate proceeding as defined by P.U.C. PROC. R. 22.2, 12, The requirmwnts for inforrml disposition under P.U.C. PROC. R. 22.35 have baea met in this proceeding Order: 111. Ordering Paragraphs in accordance with these fm ings of fact and conclusions of law, the Commission issues the following 1. The application of OnFiber Carrier Services, Inc. for a facilities -based and resold service provider certificate of operating authority ( SPCOA) is approved. OnP%oer Carrier Services, Inc. is granted SPCOA No. 60363 for the geograpWc area of the entire state of Texas. DOC'f&FIT No. =365 ORDER PAGE 5 of 6 2. The Applicant shall comply with pertinent provisions of the federal Telecommunications Act of 1996,1 including the procedjual requirements of § 251 (f)(1)(B), when seeking, interconnection, strviGes, or network a]ements from a rural telephone company. 3, 'The Applicant shall be bound by requirements of P.U.C, SUBST. R. 26.111. Service under this certificate shall be provided exclusively in the name under which the certificate was granted by the Commission. 4. The Applicant shall provide a copy of its application and/or a copy of the Commission's Final order, in accordance with the individual entities require'Ments, to All affected 9 -1 -1 entities prior to providing service to those entities. 5. The Applicant shall file any fixture changes in address, contact representative and/or telephone numbers in Project Number 19121, Notification of Changes in Address, Contact Repr4sentative and /or Telephone Numbers. Pursuant to P.U.C. SU'BST. X 26,107. 6, The Applicant's provision of local telephone service to end- users, whether by its own facilities, flat -rate resale, or usage sensitive loop. mast also include "9 -1 -1" emerge telephone service at a level required by the applicable xegional plan followed by local telephone service providers under Chapters 771 and 772 of the Texas Health and Safety code, Tpx. klgALTH & SA=y Coat A". § 771.001 et seq. (Vernon 1998) (tb, Code) or other applicable law, and any applicable rules and mgul,adons implementing those chapters. The Applicant shall; diligently work with the Advisory Commission on State Emergency Communications, local "9 -1 -1" entities, and any other agencies or entities authorized by Chapters 771 and 772 of the Code to ensure that all "9 -1 -1" emergency services, whether provided tkough the certificate holder's own facilities, flat rate resale, or usage sensitive loop, are provided in a manner consistent with the applicable regional plea followed by local telephone service providers under Chapters 771 or 772 of the Code or other applicable law and any applicable rules and mgulations implennenting those chapters, The Applicant shall diligently work with the "9 -1 -1" entities to pursue, in good faith, the mutually agreed goal that toe local "9 -1 -1" entities and emergency service providers experience no increase in their current level of rates and, to the extent technically feasible, no degradation in services as a result of the certification, granted I Telecoiamun►calions Act of 1996, 47 U S_C_ § §151 er seq. DOCKET NO. Z2365 ORDER PAGE 6 of 6 herein and the involvement of the certificate holder in the provision of "9 -1 -1" e=rgency service. 7. The Applicant has committed to and is bound by the quality of service requirements set forth in the Quality of Service Questionnaire. The underlying incumbent local exchange companies (r[ ECs) continue to be bound by the quality of service requirements contained in p,,U.C. SUBST. R. 23.61(c). Approval of the SPCOA application does not expand the scope of the underlying IT-EC's obligation to its own customers. 8, All other motions, To-quests for entry of specific findings of fact and conclusims of hw, and any other requests for general or specific relief, if not expressly ,granted herein, are hereby denied for wartt of merit. q lshar .ldocke5md- pmp\2n6Sna.doc