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HomeMy WebLinkAboutContract 26118 CITY SECRETARY ( ( g CONTRACT NO. PUBLIC RIGHT-OF-WAY USE AGREEMENT This PUBLIC RIGHT-OF-WAY USE AGREEMENT ("Agreement") is hereby made and entered into by and between the CITY OF FORT WORTH, a home rule municipal corporation organized under the laws of the State of Texas and acting by and through Charles Boswell, its duly authorized Assistant City Manager, and NEXTLINK Texas, Inc., a Texas corporation acting by and through R. Gerard Salemme, its duly authorized Senior Vice President. The following statements are true and correct and constitute the basis of this Agreement: A. Company is a Certificated Telecommunications Provider. A copy of Company's certificate of convenience and necessity, certificate of operating authority or special 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 Texas Local Government Code, a Certificated Telecommunications Provider is entitled to erect poles or 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 Texas Local Government Code, a municipality may exercise police power-based regulations in the management of the use of its public rights-of-way by a Certificated Telecommunications Provider 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. Agreement 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, a unit of measurement representing (i) each switched transmission path of the Transmission Media (a) that is physically within a Public Right-of-Way extended to the end-use customer's premises within the City; (b) that allows the delivery of local exchange telephone services within the City; and (c) that is provided by means of owned Facilities, unbundled network elements or leased Facilities, or resale; or (ii) each Page I of 11 Public Right-of- Use Agreement iJ KKNA f- L EIC000 between City of Fort Worth and NEXTLINK Texas,Inc. CM WIr,ppn y FYI 100 R0 termination point or points of a nonswitched telephone or other circuit consisting of Transmission Media located within a Public Right-of-Way connecting specific locations identified by, and provided to, the end-use customer for delivery of nonswitched telecommunications services within the City; or (iii) each switched transmission path within a Public Right-of-Way used to provide central office- based PBX-type services for systems of any number of stations within the City (and in that instance, one path shall be counted for every ten (10) stations served). "Access Line" shall not mean and shall not include (i) interoffice transport or other Transmission Media that do not terminate at an end-use customer's premises or (ii) duplicate or multiple assessments of Access Line rates on the provision of a single service. 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. Cable Services shall mean only: • The one-way transmission to subscribers of (i) Video Programming or (ii) other programming services, such as digital audio, by which is meant information which Company makes available generally to all subscribers of Company's Cable Services, such as digital cable radio service; and • Subscriber interaction, if any, including, but not limited to, that which is used for the selection or use of(i) Video Programming or other programming services; (ii) various on-screen options; (iii) game channels; and (iv) interactive services, such as the ordering of merchandise and the downloading of programs or data access Cable Television System shall mean a facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide Cable Services which are provided to multiple subscribers within the City, but shall not include (i) a facility that serves only to re-transmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without occupying any portion of the Public right-of-way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Act, except that, other than for purposes of Section 621(c) of the Act, such a facility shall be considered a Cable Television System to the extent that such facility is used in the transmission of Video Programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (iv) an open video system that complies with Section 653 of the Act; or (v) any facilities of any electric utility used solely for operating its electric utility systems. Page 2ofll _ fl Public Right-of-Way Use Agreement �C(� between City of Fort Worth and NEATLINK Texas,Inc. TV E r, n nM Certificated Telecommunications Provider shall mean a Person to whom the PUC has issued a (i) certificate of convenience and necessity; (ii) certificate of operating authority or (iii) service provider certificate of operating authority, as those terms are defined in Title 2, Subtitle C of the Texas Utilities Code. Company shall mean NEXTLINK Texas, Inc. City shall mean the area within the corporate limits of the City of Fort Worth, Texas. Director shall mean the Director of the City's Transportation/Public Works Department or authorized representative. Facilities shall mean all facilities placed in, on, under or above the Public Rights-of-Way by or on behalf of Company, including, but not limited to, duct spaces, manholes, poles, conduits, underground and overhead passageways, and other equipment, structures and appurtenances and all associated Transmission Media in the Public Rights-of-Way used by Company for purposes other than the provision of Cable Services or Open Video System Services. FCC shall mean the Federal Communications Commission. Open Video System shall mean a facility consisting of a set of transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within the City and that has been certified by the FCC as an Open Video System in accordance with 47 C.F.R. §§ 76.1500 et seq. Person shall mean an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a join venture, a business trust or any other form or business entity or association. Public Right-of-Way shall mean the area on, below or above a public roadway, highway, street, public sidewalk, alley, waterway or utility easement in which the City has an interest, but shall not include (i) the airwaves above such Public Rights-of-Way with regard to wireless telecommunications or (ii) any other property of the City. PUC shall mean the Public Utility Commission of Texas. Supervisor shall mean the City's Public Utilities Supervisor. Video Programming shall mean programming provided by, or generally considered comparable to programming provided by, a television broadcast station. Page 3 of l l �� `J �C: Public Right-of--Way Use Agreement between City of Fort Worth and NEATL/NK Texas, Inc. 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. 3. PREREQUISITES TO ISSUANCE OF CONSTRUCTION PERMIT. 3.1. Registration. In order for the City to know which Certificated Telecommunications Providers own Facilities in the City's Public Rights-of-Way, Company shall register with the Supervisor and provide the following information at a minimum: (i) Company's name; (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; and (iii) proof of insurance in accordance with this Agreement. 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 to the Director at least ten (10) working days prior to the commencement of the respective use of the Public Right-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 of any contractor or subcontractor that will be performing work in, on or above the Public Right- 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 Right-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 Right-of- Way that will be affected by Company's respective project; and (vi) the dates and times that Company wishes to use the Public Right-of-Way. 3.3. Executed Public Right-of-Way Use Agreement. Company shall provide the Director with a fully executed copy of this Agreement upon submission of Company's Permit application. Page 4 of 11 _ Public Right-of-Way Use Agreement p p Wil °t ([�(� ro� between City of Fort Worth and NEATLINK Texas,Inc. �� io,E( O'"© 3.4. Bond. Prior to the commencement of any work in the Public Rights-of-Way in the City that requires a cut, opening or other excavation, Company shall deliver to the City a bond executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the amount of Twenty-five Thousand Dollars ($25,000.00) or an amount sufficient to restore the Public Rights-of-Way affected by the cut, opening or other excavation if such amount is readily discernible and acceptable to the Director. The bond shall guarantee that Company shall (i) restore the Public Rights-of-Way affected by such cut, opening or other excavation in a satisfactory and workmanlike manner (ii) maintain such restoration work in a state of repair satisfactory to the City for a period of two (2) years following the date of restoration; and (iii) fully comply with the terms and conditions of the Permit and the City's ordinances governing excavations in the Public Rights-of-Way. 4. AS-BUILT PLANS AND DRAWINGS. Company shall provide the Director with as-built plans and drawings of Company's Facilities within ten (10) calendar days following the completion of such Facilities and annually thereafter. As-built plans and drawings shall be new drawings or redlined changes to drawings previously provided to the Director. Company shall supply the textual documentation of such as-built plans and drawings in computer format as requested by the City. 5. MUNICIPAL FEE. Company shall pay the City a quarterly Public Right-of-Way use fee ("Fee") calculated monthly and based on the then-current Access Line rates for the City adopted by the PUC in accordance with Section 283.055 of the Texas Local Government Code. Company shall pay the Fee on a calendar quarterly basis to the Supervisor at the address provided in Section 12 of this Agreement. The Fee shall be due within forty-five (45) days following the last day of each quarter. 6. 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 Certificated Telecommunications Providers and other public utilities. Page 5 of 11 Public Right-of-Way Use Agreement between O�� ^J��� between City of Fort Worth and NEATLINK Texas,Inc. ��� G �� �� F� IGO • G 7. USE OF PUBLIC RIGHTS-OF-WAY. 7.1. Minimal Interference. Company's Facilities shall be erected and maintained in a manner that causes minimal interference with the public's use of the Public Rights-of-Way and with the rights or reasonable convenience of the owners of property which adjoins any of the Public Rights-of-Way. Prior to the undertaking of 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, Company shall provide at least twenty-four (24) hours' advance written notice to the owners of property adjacent to the Public Rights-of-Way that will be affected. Company shall comply with all applicable rules, regulations and requirements of the City, including, but not limited to, those related to permissible hours of construction, operations during peak traffic hours, barricading requirements and any other construction rules or regulations that may be promulgated from time to time. In addition, during any such work, Company shall provide construction and maintenance signs and sufficient barricades at work sites to protect the public. The application of such traffic control devices shall be consistent with the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control Devices. Company shall utilize appropriate warning lights at all construction and maintenance sites where one or more traffic lanes are obstructed during nighttime conditions. 7.2. Underground Facilities. Company shall bury or have buried any of its underground Facilities at least three (3) feet below the surface of the Public Rights-of-Way and shall place signs at intervals reasonably, requested by the City that alert the general public of the presence of such Facilities. In any area of the City where the City currently or may in the future require public utilities to place their Facilities underground, then Company shall also place its Facilities underground. 7.3. Joint Use. In order to avoid an undue burden on the infrastructure of the Public Right-of- Way and an unnecessary proliferation of Facilities above the Public Rights-of-Way Company shall, consistent with federal and state law, permit the joint use or co-location of its poles, conduits and Facilities located in the Public Rights-of-Way by other utilities and entities, provided that Company may require any such users to pay a reasonable fee and enter into a reasonable agreement with Company for such use or co-location. 7.4. Relocation of Facilities. Company, at Company's sole cost and expense, shall protect, support, disconnect, relocate or remove from the Public Rights-of-Way any portion of its Facilities when Page 6 of I I Public Right-of-Way Use Agreement between City of Fort Worth and NEATLINK Texas,Inc. C'I�IC^ItiL�UW �,U V Ua 17V�`t��Iy,Q��L'1n required by the City due to street or other public excavation, construction, repair, grading, regrading or traffic conditions; the installation of sewers, drains, water pipes or municipally-owned facilities of any kind; the vacation, construction or relocation of streets or any other type of structure or improvement of a public agency; or any other type of improvement necessary for the public health, safety or welfare. 7.5. Temporary Relocation of Facilities. Upon advance notice of at least forty-eight (48) hours, Company shall temporarily raise or lower its wires, cables or other similar Facilities upon the reasonable request of any person or entity, including, but not limited to, a person or entity with a building moving permit issued by the City. Company may charge a reasonable fee for this service, but such fee shall not exceed the actual and direct costs incurred by Company in the temporary relocation of such Facilities. 7.6. Compliance with Master Thoroughfare Plan. Before Company constructs, installs or locates any of its Facilities along or adjacent to any existing or proposed Public Right-of-Way, Company shall contact the Director and verify that Company's proposed construction, installation or location of its Facilities will not conflict or interfere with a proposed expansion of an existing Public Right-of-Way or construction of a new Public Right-of-Way as shown on a then-current master thoroughfare plan. If the Director determines that Company's proposed construction, installation or location of its Facilities will constitute a conflict or interference with such a plan, the Director shall notify Company of the conflict or interference and Company shall work with the City in good faith to resolve the conflict or interference. 8. CABLE AND OPEN VIDEO SYSTEM SERVICES PROHIBITED. Company shall not provide Cable Services 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. 9. INSURANCE. 9.1. Required of Company. Company shall provide the Director with proof insurance of the types and limits as follows: 0 Commercial General Liability: $5,000,000 per occurrence; Page 7 of/I 15I5 pp r Public Right-of-Way Use Agreement IJ�U�� G '� G�IG(JIJ(tV between City of Fort Worth and NEXTLINK Texas,Inc. ^ J N e M VY,,,,, Ra F�.HW �ISWo • Property Damage Liability: $1,000,000 per occurrence; • Automobile Liability: $1,000,000 per accident, including, but not limited to, all owned, hired or non-owned motor vehicles used in conjunction with Company's use of the Public Rights-of-Way Company's insurance shall be underwritten by entities authorized to do business in the State of Texas and who are acceptable to the City in terms of solvency and financial strength. Company's insurance policy or policies shall name the City as an additional insured and cover all public risks related to Company's use the Public Rights-of-Way. Deductible or self-insured retention limits on any line of coverage required herein shall not exceed $25,000 in the annual aggregate unless the limit per occurrence, or per line of coverage, or aggregate is otherwise approved by the City. 9.2. Required of Company's Contractors. Company shall require any contractors who undertake construction, installation, maintenance, repairs or other work that requires the excavation, lane closure, or other physical use of the Public Rights-of-Way to maintain insurance of the same types and limits and on the same conditions as provided by Section 9.1 of this Agreement. 10. INDEMNITY. In accordance with Section 283.057 of the Texas Local Government Code, Company shall indemnify and hold the City and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorneys' fees and costs of defense), proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought that is found by a court of competent jurisdiction to be caused solely by the negligent act, error, or omission of Company or any agent, officer, director, representative, employee, affiliate or subcontractor of Company, or their respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining Facilities in a Public Right-of-Way. The indemnity provided under Section 283.057 of the Texas Local Government Code and this Section 10 does not apply to any liability resulting from the negligence of the City, its officers, employees, contractors or subcontractors. If Company and the City are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of the State of Texas without, however, waiving any governmental immunity available to the City under Texas law and without waiving any defenses of the parties under Texas law. This Section 10 is solely for the benefit of the City and Company and does not create or grant any rights, contractual or otherwise, to any other Person or entity. Company and the City shall promptly advise the other in writing of any known claim or demand against Company or the City related to or arising out of the Company's activities in the Public Rights-of-Way. Page 8 of 11 .Public Right-of-Way Use Agreement between City of Fort Worth and NEMINK Texas,Inc. � ��Uu�CuLs1,l� Ui��'vUU?DD 11. COMPANY AS INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor as to all rights and privileges granted by this Agreement, and not as an agent, representative or employee of the City. Company acknowledges that the doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, employees, contractors and subcontractors. Company further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Company. 12. 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 prepaid, return receipt requested, addressed as follows: To THE CITY: To COMPANY: City of Fort Worth NEXTLINK Texas, Inc. Attn: Public Utilities Supervisor Attn: Director, Regulatory and External Affairs 1000 Throckmorton 1300 W. Mockingbird Lane, Suite 200 Fort Worth, TX 76102 Dallas,TX 75247 with a copy to: City of Fort Worth Department of Law Attn: Attorney for Telecommunications 1000 Throckmorton Fort Worth, TX 76102 13. COMPLIANCE WITH LAWS. 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. Company agrees that if the PUC adopts any kind of order, rule or regulation that excepts all or any portion of Company's Facilities from governance by Chapter 283 of the Texas Local Government Code ("Excepted Facilities"), Company shall obtain a separate written agreement, consent or franchise from the City and pay the City reasonable and non-discriminatory compensation for Company's use of the Public Rights-of-Way with respect to the Excepted Facilities. Page 9 of 11Di D ���-�t�r� a�f JG�D Public Right-of-Way Use Agreement V 5 ` ` between City of Fort Worth and NEMINK Texas, Inc. ^' '•� "��� r'GD?"� 14. 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 right to insist upon appropriate performance or to assert any such right on any future occasion. 15. 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. Unless the PUC asserts jurisdiction pursuant to and in accordance with § 283.058 of the Texas Local Government Code, venue for any action, whether real or asserted, at law or in equity, that arises out of the terms of this Agreement shall lie exclusively in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 16. 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 Public Rights-of-Way. 17. 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 and 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. 18. 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. 19. ENTIRETY OF AGREEMENT. This Agreement contains the entire understanding and agreement between the City and 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. Page 10 of IPublic Right-of- Way Use Agreement ORY: �!i�f V between Cit o Fort Worth and NEXTL/NK Texas,Inc. l/ r "i` " D City f ��r c�C��G?�GV �1H 517 1 CITY OF FORT WORTH: NEXTLINK TEXAS, INC., a Texas cor oration: By: 046,& By: Charles Boswell R. Gerard Salemme Assistant C* Manger Senior Vice President pq�c: ATTEST: ATTEST: By: By: City Secretary APPROVED AS TO FORM AND LEGALITY: By: d�� Assistant City Att#ley M& C: C-18156 7-25-00 Page 11 of/I -'- Public Right-of-Way Use Agreement between City of Fort Worth and NEXTLlNK Texas, Inc. Aug . B . 2000 10 : 14AM NEXTLINK TEXAS No . 3203 P . 2110 '" s O U T N w ■ s T Nancy Road KrsbUl Director of Regulatory and fbaornal Affair: Mr. James Galloway Filings Division. Public Utility Commission Of Texas 1701 N. Contress Ave,,Rm. 113-A Austin,'Texas 78701 RE: Registration of Nondominant Carriers Pursuant to PUC S,R. 23.61(i) Dear Mr. Galloway: NEXTLINK Texas is certificated to provide service in Texas(SPCOA 60173). I am writing to update our registration with the following information pursuant to Substantive Rule 23.61 subsections(i)and 0). The following items have changed since our filing November 10, 1998. The identifying letters and numerals-here correspond to the subsections of Commission Substantive Rule 23.61 (i): (i) (2) address and telephone number of prin4al office: NEXTLINK Texas,Inc, 1300 W. Mockingbird, Suite 200 Dallas,TX 75247 (214)237-7700 (i) (3) date service commenced in Texas; NEXTLINK Texas commenced service December 14, 1998. (i) (6) name, address and telephone number of registered agent or designated person who can be contacted by the commission; Nancy Reed Krabill Director—Regulatory and External Affairs NEXTLINK Texas, Inc. 1300 W.Mockingbird La., Suite 200 Dallas, Texas 75247 (214-.237-7883) Please contact me at(214)237-7883 if you have any questions regarding this registration. Sincerely, A9, 300 W.flockinaDir4 Lsne Nancmeed Krabill Nancy Dallae.TX 15247 Director—Regulatory and External Affairs Nt"'E"'C; )G°?�/e�CO)� x14.237.7993 Y/dUl�/ 21-.231,7e06 0 ' Aug . 8 . 2000 10 : 15AM--- NEXTLINK TEXAS N o . 3 2 0 3 P . 3/ 10 10004 DOCKET NO. 19028 APPLICATION OF NEXTLINK TEXAS, § PUBLIC UTILITY COMMISSION INC_,D/B/A NEXTLM TEXAS, FOR-A § SERVICE PROVIDER CERTIFICATE OF § OF TEXAS OPERATING AUTHORITY § ORDER This Order grants NEXTLINK Texas, Inc_, d/b/a NEXTLINK Texas, a service prodder certificate of operating authority (SPCOA) to provide facilities-based telecornmunications services within, the geographic area of Texas currently served by Southwestern Bell Telephone Company and GTE Southwest, Inc. The docket was processed ip-accordance uxeh applicable statutes aaa Cormaission rules. The Commission provided notice of the application to interested parties. No protests, motions to intervene, or requests for hearmwg were filed. The Commission's General Counsel and Staff recommend approval of the application, as amended. The application, as amended, is hereby approved. I_ Findings of Fact Procedural History 1. On March. 16, 1998, NEXTLTNK Texas, Inc-, d!b/a NEXTLR-K Texas, (the Applicant) filed with the Public Utility Commission of Texas (Commission) an application to obtain an SPCOA. Amendments to rhe application were filed on April 2, 1998, and April 27, 1938. 2_ On March 19, 1998, the Commission issued an Order establishing a procedural schedule, entering a protective order, anal deterrnbt g filing and service procedures. 3. On March 30, 1998, consistent with the General Counsel's recommendation, the Commission found that the Applicant, together with affiliates, had less th= six percent of the total intrastate switched access minutes of use, as measured by the most r=nt twelve-month period for which data is available preceding the Tiling of the application; and certified the Applicant eligible to obtain an SPCOA. 4_ On Apia-] 3, 1998, the Commission provided adequate notice of this proceeding in the Texas Regisrer and through a posting on the Internet. It'lJ `^ S eu—Ua V AE . 2000. .10 : 15 ANI_ NEXTLINK TEXAS No . 3203 r • 4/10 zoos DOCKET NO. 1.9028 ORDER PAGE 2 of 6 5_ On April 9, 1998, the General Counsel filed a recommendation, stating that the Applicant is financially and techrtically qualified to receive the SPCOA. requested, and recommending that the application be approved, as amended. Applicant's Request 6. The Applicant is a Washington corporation formed on October 22, 1997, with authority to transact busincss in the state of Texas. 7. The Applicant's parent company is NEXTLINK Communications, Inr,., a .public company formed in 1994 by Craig McCaw to provide local facilities-based telecommunications services. S. The Applicant has the following affiliates: NEXTLINK Washington, L.L-C.; NEXTLINK California, L.L.C.; Telecommunications of Nevada,' L_L.C_; NEXTLINK Utah, L.L.C_; NEXTLINK Illinois, Inc_; NEXTLINK, Ohio, L.L.C.; NEXTLINK Pennsylvania, L.P.; NEXTLINK Tennessee, LI-C.; ITC; NEXT LJNK Pennsylvania Merger Company II, Inc.; NEXTLINK Solutions, L_L.C.; and NEXTL NK One, Inc. 9. The Applicant proposes to serve the geographic area of Texas served by Soothwestem Bell Telephone Company and GTE Southwest Inc_ (proposed service area). 10. The Applicant proposes to act both as a facilities-based provider and a reseller of telecommunications services. 11. The Applicant proposes to provide a full range of local exchange telecommunications services and exchange access tcl.ecommunications services over a combination of its own facilities and/or by means of leased facilities. The Applicant will focus on basic telecommunications services which include: standard dial tone, touch toile dialing, 911, operator assisted calling, multi-trunk services, direct inward dialing, direct outward dialing, toll-free and operator services, 1+ long distance service and directory listings and assistance (proposed services). r ElI ,a Q0Q1f 615Wo i Au.g B . 2000- 10 : 15AM_ NEXTLINK TEXAS No . 3203 P . 5/10 4006 DOCKET NO, 19028 ORDER PAGE 3 of 6 12. ' .The Applicant proposes to provide service to customers other than its itself and its affiliates. 13. The Applicant filed a statement that it requested and is in the process of filing franchise applications with the cities of Addison, Austin, Dallas, Farmers Branch, Irving, Ft. Worth, Plano, and Richardson. 14_ The Applicaat is not a municipality, nor will the Applicant enable a municipality or municipal electric system to offer for sale to the public, directly or indirectly, local exchange telephone service, basic local tciccommutsczricns serv:e, sem?=_ched ac7_-ess servic:., o-r any n0a-sw7Whed wlecommuni cations service used to provide connections between customers' premises within an exchange of between a customer's premises and a long-distance provider serving the exchange. 15. The Applicant does not currently hold a certificate of operating authority or certificate of convenience and necessity for any part of the proposed service area. 16. The Applicant has never applied for a permit, license or certificate to provide telecommunications services in any other state other than Texas. 17. The Applicant has never had a pctrait, license or certificate to provide telecommunications services granted, denied or revoked by any state. 18, The Applicant has never provided telecommunications services in Texas or any other state. 19. The Commission's Office of Customer Protection and the Office of the Texas Attorney General report no complaints registered agairsst the Applicant or its affiliates. 20_ The states of Arizona, California, 111inois, Nevada, New Mexico, Oregon, Pennsylvania, Tennessee, Utah or Washington report no significant history of complaints a rrIIf_. affiliates. '�i�UJL U '• ���`r "�'�;�u a ���21. The Texas Cozztpbroller's Office states that the Applicant is in coxmplian ° U�`. talcs. A-ug . 8 . 200DJ 0 : 15AM, NEXTLINK TEXAS No . 3203 P . 6/10 10007 ]DOCKET NO. 19028 ORDER PAGE 4 of 6 22. - the Applicant has the requisite technical qualifications to provide the proposed strvices within the proposed service area- 23. rea23. Because the Applicant will rely on its parent company, it has the requisite financial qualifications to provide the proposed services withia the proposed service area. In orma(Duposidon 24. More than 30 days have passed since completion of the notice provided in this docket- 25. No protests, motions to intervene or requests for hearing have been filed. No issues of fact or law are disputed by any party. No hearing is necessary. 11. Conclusions of Law 1. The Applicant is a telecommunications provider as defined in §51.002(10) of the Public Utility Regulatory Act(PURA.).' 2. The Commission has jurisdiction and authority over the application pursuant to §§ 54.154(a) and 54.155 of PURA. 3. The application complies with § 54.154(b) of PURA_ 4. The Commission,provided notice of the application in compliance with § 54.005(a) of PURA. 5. The Applicant is eligible to obtain an SPCOA under the criterion established by PURR § 54.153. 6, The Applicant is not precluded from providing se ice under an SPCOA by §§ 54.201 or 54.152 of PURA. vli6 9 d� � �� �57 Tx.t14CODE A.NN. §§ 1 t.00163.063(Vernon 1998 . �(: C�'lJ�ir�il�P Flo u aIIO ,1 I A�? . E • 2000 .10 : 160— NEXTLINK TEXAS No . 3203 P . 7/10 boos DOCKET NO- 19028 ORDER PAGE 5 of 6 7. ' 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 customers, as required by §§ 54.154(b) and 54.155(b) of PURA- $. The Commission does not, as a result of the entry of an order granting the application, impose any additional or different service quality obligations on the incumbent local exchange companies that provide service to resellers. 9. Tile..-Commission.lacks the jurisdiction or authority to determine the nezessity of a fi=chise between a municipality and the holder of an SPCQA- 10. This application does not constitute a major rate proceeding as defined by P.U.C_PROC..R. 22.2. 11. The requirements for informal disposition under P.U.C. PRoc_ R. 22.35 have been met in this proceeding. M. Ordering Paragirnphs In accordance with these findings of fact and conclusions of law, the Commission issues the following Order: 1. The application of NEXTLTNK Texas, Inc., d/b/a NEXTLINK Texas, for a service provider certificate of operating authority (SPCOA) is approved. N-EXTI.LN-K Texas, Inc., d/bfa NT-XYLNK Texas, is grain SPCOA No_ 60173 in the name of NEXTLINK Texas, Inc., for the geographic areas of Texas currently served by Southwestern Bell Telephone Company and GTE Southwest, Inc. 2. The Applicant's provision of local telephone service to end-users, whether by its own facilities, flat-rate resale, or usage sensitive loop, must also include "9-1-1" emergency telephone service at a level required by the applicable regional plan followed by local telephone service providers under Chapters 771 and,772 of Texas Health and Safety Code, TEX, HEALTH & SAFETY CODEIANN;:�� 77I { Zt r A+iS . 2000..10 : 16AM., NEXTL 1 NK TEXAS No . 3203 P - 8/1 U Zona DOCKET NO. 19028 ORDER PAGE 6 of 6 et seq. (Vernon 1998) (the Code) or other applicable law, and any applicable rules and regulations implementit►g those chapters. The Applicant shall diligently work with the Advisory Commission on State Emergency Communications, local "9-1- I" 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 through the certificate holder's own facilities, flat-rate resale, or usage sensitive loop, axe provided in a manner consistent with the applicable regional plan followed by local telephone service providers under Chapters 771 or 772 of the Code or other applicable law and atiy- applicable rules and regulations implemeating those chapters. The Applicant shall diligently work with the "9-1-1" entities to pursue, in good faith, the mutually agreed goal that the 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 herein and the involvement of the certificate holder in the provision of"9-1-1"emergency service. 3. 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 (ILECs) continue to be bound by the quality of service requirements contained in P.U.C. SMST. R_23.61. Approval of the SPCOA application does not expand the scope of the underlying ILEC's obligation to its own customers. 4, All other motions, requests for entry of specific findings of fact and conclusions of law, and any other requests for general or specific relief, if not expressly granted herein, are hereby denied for want of merit q A-sharzWockcikord-p mp1I9028po.doc b55 4uB • 8 . 2000 10 : 16AM--- NEXTLINK TEXAS No . 3203 N • 9/i0 16002 § PUBLIC UTILITY COMMr CONSOLIDATED ORDER § "� § OF•TEXAS << cJ /��� g o DOCKET NO. 17777 Application of TransAmerican Telephone, In r-, for a Service Provider Certificate of Operating Authority DOCKET NO. 18579 Application of Quick-Tel Comm unications, Inc., for a Service Provider Certificate of Operating Authority DOCKET NO. 18754 Application of Southwest Texas Telephone Company to Amend Certificate of Convenience and Necessity within, ,Kinney County DOCKET NO. 18796 Joint Application of Diamond Communications International, and GTE Southwest Incorporated, for Approval of Interconnection Agreement Under PURA and the Telecommunications Art of 1996 DOCKET NO.18804 Joint Application[ of United Telephone Company of Texas, far-, d/b/a Sprint, and Central Telephone Company of Texas "la Sprint, and U.S Telco Incorporated,for Approval of Interconnection Agreement Under PURA and the Telecommunications Act of 1996 DOCKET NO. 1.8805 Joint Application of Local Telephone Service Company, and GTE Southwest, Inc_, for Approval of Interconnection Agreement Under PURA and the Telecommunications Act of 1996 DOCKET NO. 18940 Application of American Local Telecommunications, L.L.C, d/bla ALT Communications, L.L.C,for a Service Provider Certificate of Operating Authority DOCKET NO. 18962 Application of ADN Enterprises, Inc-, d!b/a Trinity Telephone, for an Amrerrdrnernt to its ,Service Provider Certificate of Operating A uthority DOCKET NO. 18972 Applications of Panhandle Telecommunications Systems, Inc.,for a Certificate of Operating Authority Au, . 8 . 2000 10 : 16AM- NEXTLINK TEXAS N o . 3 2 0 3 P - 10/10 19003 ,PROPOSED CONSOLIDATED ORDER ,PAGE 2 DOCKET NO. 19976 ,A,pplicatlon of Interech, LG, to Amend a Service Provider Certifxale of Operating Authoriry DOCKET NO- 18984 Application of Belffouth BSE,Inc-for a Service Provider Certificate of OperattngAuthority DOCKET NO. 18998 Application of MSN Communirntions, Inc-, for an Amendment to its Service Provider Cert frcate of Operating Authority DOCKET NO. 19428 Application of AEXILINK Teras, Inc, d/b/a.NEXTMYK Teras,-for a Service Provider 'Certificale of Operating Authority PROPOSED CONSOLIDATED ORDER The Commission adopts the attached fundings of fact and conclusions of law and issues the orders set out therein„ SIGNED AT AUSTIN, TEXAS on the G=day of /!! 1998. PUBLIC UTILITY CONWISSION OF TEXAS PAT W OD,III, CHAIRMAN ALSH OMM SSIONER PATRICIA A. CAN,COMMISSIONER q.4-shua�doel:ctbpcnrntgska-final,hoc City of Fort Worth, Texas "afor and couni"'ICommunication DATE REFERENCE NUMBERLOG NAME PAGE 7/25/00 **C-18156 02NEXTLINK 1 of 1 SUBJECT PUBLIC RIGHT-OF-WAY USE AGREEMENT WITH NEXTLINK TEXAS, INC. RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a Public Right-of-Way Use Agreement with NEXTLINK Texas, Inc. DISCUSSION: As of September 1, 1999, any provider of local telephone services (Provider) who receives one of three types of certificates from the Texas Public Utility Commission (PUC) has the statutory right to use the City of Fort Worth's public rights-of-way. The City does not have the authority to require a franchise for that use or to impose requirements on the Provider except those that are directly related to the municipality's management of the public right-of-way for the benefit of the public health and safety. The PUC has established levels of compensation that are payable by each Provider to the City. The City has traditionally managed the use of public rights-of-way by public utilities through the terms and provisions of its franchises. Because the City now cannot govern Providers of local telephone services in that manner, City staff is drafting a comprehensive Public Right-of-Way Use Ordinance. Until the City Council adopts such an Ordinance, the City needs to have an interim instrument to govern the use of the public rights-of-way by these Providers. This Public Right-of-Way Use Agreement will fulfill that need. The Agreement sets forth essentially the same terms and conditions related to the City's management of the public rights-of-way as those historically contained in the City's franchise agreements. The Agreement will become effective on the date of its execution and terminate on the date that a comprehensive Public Right-of-Way Use Ordinance becomes effective. NEXTLINK Texas, Inc. will pay the City a quarterly fee calculated monthly and based on (i) $1.09 for each residential access line that it has in Fort Worth and (ii) $3.52 for each non-residential access line that it has in Fort Worth. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that Revenue Management will be responsible for the collection and deposit of funds due the City under this agreement. CB:k Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY Office by: (to) GG01 421342 0134010 APPROVED Charles Boswell 8511 CITY COUNCIL. Originating Department Head: JUL 25 2000 Charles Boswell 8511 (from) Additional Information Contact: ' . City Secretary of the City of Fort Worth,Texas Danny Reed 6145