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2019-019 Municipal Broadband
Date: February 1, 2019 Report No. 2019-019 INFORMAL STAFF REPORT TO MAYOR AND CITY COUNCIL SUBJECT Provide background on high-speed broadband internet service available in the city of Denton and information on other cities in Texas offering municipal broadband service. BACKGROUND During the closing comments of the September 25, 2018 City Council meeting, Council Member Briggs requested information about the possibility of the City of Denton offering a municipal high- speed broadband service due to limited provider options and resident complaints regarding the current quality of internet service. Broadband is a high-speed connection to the internet provided through different service technologies including Digital Subscriber Lines (DSL) via phone lines, cable/fiber lines, satellite service providers, fixed wireless platforms, and mobile wireless platforms. Each service type has its advantages and disadvantages including infrastructure cost, cost to the customer, download and upload speeds, and mobility. Current Internet Service in Denton Most of the city of Denton is serviced by Charter Communications and Frontier Communications Corporation through cable and fiber lines. Nextlink Residential also offers fixed wireless services and some areas in south Denton (near Hickory Creek Rd.) have additional options available including Grande Communications. The table below shows a summary of available options according to the Federal Communication Commission (FCC) broadband map. For reference, the FCC defines high-speed as 25 megabits per second (mbps). Provider Technology Download Speeds Upload Speeds Notes Charter Communications Cable 300 mbps 20 mbps Frontier Communications Fiber 30 mbps 30 mbps Grande Communications Cable 400 mbps 20 mbps Available in south Denton HughesNet Satellite 25 mbps 3 mbps Frontier Communications DSL 30 mbps 30 mbps ViaSat, Inc. Satellite 12 mbps 3 mbps Staff is aware that are a few areas in town with internet service issues. The Preserve at Pecan Creek Section B has been identified as an area with no cable or fiber internet services available. A map showing high-speed internet availability in Denton is provided as (Attachment 1); the Preserve at Pecan Creek area is highlighted in red. Please note this map is based on information last available from the National Telecommunications and Information Administration (NTIA) from 2015. Based on changes in state law and reduced budget through NTIA, municipalities no longer receive detailed internet service coverage maps. Date: February 1, 2019 Report No. 2019-019 Unfortunately, the City does not have authority by state or federal law to control the provision of service; however, staff has tried to work on behalf of the residents and request the service providers extend service. Since January 2018, staff has reached out to various providers, including Charter, CenturyLink, Frontier, and Verizon Wireless, to inquire if this area could be serviced. Charter and Frontier, both of the major companies with infrastructure in Denton, indicated that it would require a substantial investment (Charter estimated over $140,000) to provide a connection to this neighborhood. Verizon Wireless does offer some cellular based internet options for residents, including an LTE Internet and Home Phone device. In addition to the Preserve at Pecan Creek, staff is aware of approximately 20 addresses in Denton without access to high-speed internet. This list has parcels in the 6400 block of Crapemrytle Drive, 4800 block of Crossvine Court, and the 4900-5000 block of Swisher and includes new construction and empty lots. Research of Municipal Broadband Services in TX Texas law is unsettled when it comes to municipalities providing broadband services. While the Texas Utilities Code appears to prohibit municipalities from offering such services1, the applicable sections were written at a time when communication was based on wireline telephone technology. As is often the case in this area at both the federal and state levels, the law has simply failed to keep up with the changes in technology. As shown below, other Texas cities have successfully implemented various ways to offer, or partner to offer, broadband services to its citizens. Internet Service in Other Texas Cities 1) Mont Belvieu, Texas and the Texas District Court Declaratory Ruling (Public) In February 2017, the City of Mont Belvieu, Texas, a city with a population of 5,946 located approximately 30 miles east of Houston, filed a petition for an Expedited Declaratory and Injunctive Relief with the 344th District Court in Chambers County (Attachment 2). Residents in the town experienced DSL service with 1.5 mbps speeds, and cable internet that topped out at 5 mbps. In seeking a ruling on Section 54.201 and 54.202, the City was specifically asking the court for a ruling regarding its ability to issue Certificates of Obligation in the amount of $14 million to install fiber optic cable to provide broadband internet services for its citizens. The petition claimed that because of the city’s size, private companies have been unwilling to provide broadband internet services in the city commercially. 1 Section 54.201 states that the commission may not grant to a municipality a: 1) Certificate of convenience and necessity; 2) Certificate of operating authority; or 3) Service provider certificate of operating authority. Section 54.202 lists Prohibited Municipal Services. It states that a municipality or municipal electric system may not offer for sale to the public: 1) A service for which a certificate of convenience and necessity, a certificate of operating authority, or a service provider certificate of operating authority is required; or 2) A non-switched telecommunications service used to connect a customer’s premises with a. Another customer’s premises within the exchange; or b. A long distance provider that serves the exchange. Date: February 1, 2019 Report No. 2019-019 The basic breakdown of the petition from the City is that if the City provides broadband internet service only, without voice or video service, it does not make them a “telecommunications provider” based on the state code’s definition. In particular, the petition claimed that “providing broadband internet services will not directly connect customers’ premises, nor will it connect a customer to a long-distance provider; instead, it will connect customers to the internet.” On April 20, 2017, the Chambers County District Court Judge issued a Final Judgement (Attachment 3) in favor of Mont Belvieu which allowed them to issue public securities not to exceed $14 million and begin installing fiber lines to provide their residents with high-speed internet. It is important to note that while the Chambers County District Court Judgment is persuasive, it does not establish law or a precedent for us since the City of Denton does not fall under the jurisdiction of the Chambers County District Court. After a $14 million investment into the fiber infrastructure, Mont Belvieu now offers MB Link for internet access for its residents, but no voice or video services to comply with state restrictions. MB Link offers 1000 mbps residential service for $75 per month, with a one-time $75 deposit and $75 installation fee. There are no data caps or throttling based on system demand. MB Link also provides services for small businesses at these rates: Download Speed Upload Speed Price Per Month 100 mbps 50 mbps $100 300 mbps 50 mbps $150 500 mbps 100 mbps $250 1000 mbps 100 mbps $450 2) City of Greenville (Public) Another city in the state offering municipal internet service to its residents is Greenville, TX, a city of 27,443 located about 60 miles east of Denton. The service is offered through GEUS, formerly Greenville Electric Utility System, the municipally-owned, public power electric utility. The utility currently has over 14,000 electric customers and over 7,000 cable and internet customers. After the city made multiple requests to deploy DSL and cable modem internet which were denied by local providers, voters approved GEUS as the first municipal cable TV/high speed internet service in Texas in 2000, and GEUS first offered high-speed internet and cable TV service citywide in 2002. In 2003, they installed a $10 million hybrid fiber-coaxial cable TV and internet system to serve their 4,000 subscriber base at the time. GEUS currently offers five service levels: Package Download Speed Upload Speed Price Per Month Copper 5 mbps 1 mbps $14.95 Bronze 10 mbps 1 mbps $24.95 Silver 20 mbps 2 mbps $41.95 Date: February 1, 2019 Report No. 2019-019 Gold 50 mbps 5 mbps $61.95 Platinum 100 mbps 10 mbps $95.95 The City also provides commercial rates: Package Download Speed Upload Speed Price Per Month Rapid Service 30 mbps 6 mbps $69.95 Bronze 60 mbps 8 mbps $89.95 Silver 100 mbps 10 mbps $149.95 3) City of New Braunfels (Public-Private Partnership) In 2015, the City of New Braunfels completed a Business Broadband Assessment & Feasibility Study. The study set out to give the City the information it needed to understand the various broadband technologies, the current state of broadband in New Braunfels, the demand, and viable options. Magellan Advisors, the consultant that undertook the study, laid out recommendations based on: 1) Leveraging the city’s core capabilities as a public organization, 2) Current fiber-optic infrastructure, 3) City’s ability to create policy to positively impact broadband development, 4) What is economically and financially sustainable, 5) Ability to cultivate key public and private partnerships to increase the effectiveness how the community is served, and 6) Perceived risk tolerance of the various options. The City used the study to move forward on a taxpayer funded fiber-optic system that will allow contracted providers to offer faster internet services to area businesses. In July 2018, the City issued an RFQ for a “Partnership for Delivery of Products and Services for a Fiber-Optic Broadband Network” (Attachment 4) that will install 55 miles of cable. The project is expected to cost $3.5 million and provide a minimum of 1000 mbps download speeds with at least 10,000 mbps capability in the future. The City of New Braunfels moved forward with funding the public- private partnership project, even though new technologies have been developed within the city since the study was conducted, including one provider that offers 1,000 mbps across the area. Federal Considerations Another important consideration is the possibility of changes at the Federal level that can impact state and local authority to provide internet services. For example, in February 2015 the Federal Communications Commission (“FCC”) decided that the term telecommunications included broadband. Then in May 2017, the FCC redefined broadband to not be included as a telecommunication (Attachment 5). The fact that the FCC has changed the definition for broadband twice within a few years raises concerns about possible additional changes since the FCC definition of telecommunications will trump any state or local definition. As a result, Texas state law remains unsettled on this issue and is subject to change at any time based off of future FCC decisions. Date: February 1, 2019 Report No. 2019-019 Other Municipal Internet Infrastructures Additional information on additional municipal internet infrastructures can be found at: 1. https://muninetworks.org/ 2. Fiber: The Coming Tech Revolution―and Why America Might Miss It by Susan Crawford; December 2018 Yale University Press https://yalebooks.yale.edu/book/9780300228502/fiber ATTACHMENTS 1. City of Denton High-Speed Internet Map (2015) 2. Mont Belvieu Petition 3. Mont Belvieu Declaratory Ruling 4. New Braunfels RFQ 5. Article on FCC Definition of Broadband STAFF CONTACT: Stuart Birdseye Management Analyst 940-349-8009 stuart.birdseye@cityofdenton.com Larry Collister First Assistant City Attorney 940-349-8198 larry.collister@cityofdenton.com Stephanie Neal Assistant City Attorney 940-349-8305 stephanie.neal@cityofdenton.com XY XY XY XY XY XY XY XY XY XY XY XYXYXYXYXYXYXYXYXYXYXYXY XYXYXYXY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XYXY XY XYXYXYXYXYXYXY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XYXYXYXYXYXYXYXYXYXY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XYXYXYXYXYXYXYXYXY XYXYXY XYXYXYXY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY XY The PreservePecan CreekSection BI35 FM 407 HWY 377FM 156ELMFM 2450FM 426 SHERMANFM 2164U N I V E R S I T Y FM 2449 LOOP 288 TEASLEY F M 4 5 5 FM 2499FM 2153OAK FM 1173 MILAM BELLJIM CHRISTAL COUNTRY CLUBWINDSOR MCCART ROBSON RANCH ED ROBSON CARROLLBONNIE BRAELOCUSTHICKORY EAGLE COLORADO HOBSON ROSELAWN SCRIPTURE MASCH BRANCHDALLASBERNARD SWISHERCORINTH RINEY WOODROWHIGHLAND VILLAGETURBEVILLESTUARTCRAWFORD BRAZOS OLD HWY 77 WILLOWWOOD NOTTINGHAMDENTON PENNSYLVANIAMAYHILLSHILOHLILLIAN B MILLERMORRISSCONGRESS COLLEGE HICKORYI35 LOOP 288 I35 LOOP 288BONNIE BRAEI35I 35I35I35 FM 2499UNIVERSITY I35 I35BELLBONNIE BRAE The PreservePecan CreekSection B S I-35E C H A P A R R A L D R SWISHER RDLAKEVIEW BLVDMEADOW LARK LNPHOTINIA AVE SUN RAY DR SHADY SHORES RD S I-35E NORTHBOUND SERVICE RD S I-35E SOUTHBOUND SERVICE RD CATTAIL LNMARSH RAIL DR REDBUD DRFOX SEDGE LNDOGWOOD DRPRI VATE DRGUNNISON DRHERON POND LNGREEN RIVER DRPOST OAK BLVDH A W T H O R N D R INDIAN PAINT WAYBAYTREE AVELONGMONT DR GOLDENROD DR C A R D IN A L CIR LOVELAND DR BLACK WALNUTQUAIL CIRTRUMPET VINESALIDA DR WHIPPOORWILL CIRCROSSVINE CTS I-35E Lakeview Exit BARBERRY AVEDESERT HOLLY WAY S I-35E PRIVATE DR PRIVATE DRPRI VATE DRP RIV A T E D R 4812 6404 6419 4900 4904 5100 4801 5000 5004 4805 48094813 6400 6401 4804 4808 641564116407 ² ² Legend Pecan_Creek Minimum 50 Mbps / 10 Mbps Minimum 25 Mbps / 3 Mbps CitylimitsCLASS COD NAA 8/1/20 Text List of Homes without Cable / High Speed InternetTechnology Services GIS NO. __________ IN RE § § § § § § IN THE DISTRICT COURT OF THE CITY OF MONT BELVIEU CHAMBERS COUNTY, TEXAS AND CERTAIN PUBLIC SECURITIES _________ JUDICIAL DISTRICT ORIGINAL PETITION FOR EXPEDITED DECLARATORY AND INJUNCTIVE RELIEF The City of Mont Belvieu, Texas (“the City”) files this original petition pursuant to Chapter 1205 of the Texas Government Code (the Expedited Declaratory Judgment Act), which provides an efficient method to adjudicate the validity of public securities and their associated contracts and obligations. A copy of Chapter 1205 is attached as Exhibit A. Chapter 1205 requires the Court, upon receipt of this original petition, to “immediately issue an order” that, among other things, sets this matter for trial “at 10:00 a.m. on the first Monday after the 20th day after the date of the order.” For the Court’s convenience, a proposed order under TEX. GOV’T CODE § 1205.041 is attached as Exhibit B. VII. Discovery Level 1. TEX. R. CIV. P. 190.1 requires the first numbered paragraph of petitions to state the pertinent level of discovery; however, this rule does not apply to an action brought under the Expedited Declaratory Judgment Act. See TEX. GOV’T CODE § 1205.002(a). Instead, pursuant to TEX. GOV’T CODE § 1205.064, the City’s records relating to the public securities at issue will be open to inspection at reasonable times to any person or entity that becomes a named party to this action. CV30781 344th Filed 2/22/2017 9:59:36 AM Patti L. Henry District Clerk Chambers County, Texas By:______________________ Deputy - 2 - VIII. Jurisdiction & Venue 2. The Court has jurisdiction over this matter. TEX. GOV’T CODE ANN. § 22.007; TEX. CONST. art. V, § 8. Chapter 1205 specifically vests the Court with authority to enter a declaratory judgment with respect to: (1) the City’s authority to issue public securities; . . . (3) the legality and validity of each expenditure or proposed expenditure of money relating to the public securities; and (4) the legality and validity of the public securities. TEX. GOV’T CODE § 1205.021. 3. Chambers County is an appropriate venue pursuant to TEX. GOV’T CODE § 1205.022. This action may be maintained “regardless of whether another proceeding is pending in any court relating to a matter to be adjudicated” in this lawsuit. Id. § 1205.025(4). There are no such matters pending at this time. 4. The time for bringing this action is also appropriate. As Chapter 1205 specifically authorizes an issuer like the City to bring an action before the public securities are authorized, issued, or delivered. Id. § 1205.025(2). IX. Parties & Service A. Petitioner 5. The City is an incorporated “home-rule” city that derives its power from the Texas Constitution. CITY OF MONT BELVIEU HOME RULE CHARTER § 1.02; TEX. CONST. art. XI, § 5; see also TEX. LOCAL GOV’T CODE § 54.004 (home-rule cities may “enforce ordinances necessary to protect health, life, and property . . . of municipality and its inhabitants”). Thus, the City is an “issuer” of public securities within the meaning of TEX. GOV’T CODE § 1205.001(1). - 3 - 6. Additionally, the certificates of obligation the City intends to issue and deliver are “public securities” as defined by TEX. GOV’T CODE § 1205.001(2) (defining “public security” to mean interest-bearing obligation, including a bond, bond anticipation note, certificate, note, warrant, or other evidence of indebtedness). The City is the proper party to bring this action. B. Respondents 7. Interested Parties: Pursuant to TEX. GOV’T CODE § 1205.023, this action is an in rem proceeding and mandatory class action. All persons who reside within the territory of the City, who own property located within the boundaries of the City, who are taxpayers of the City, or who have or claim a right, title, or interest in any property or money to be affected by the authorization or the issuance of the public securities at issue are “Interested Parties.” Id. § 1205.041(a). Any Interested Party may become a named party to this action by filing an answer to this original petition on or before the time set for trial, or thereafter by intervention with leave of court. Id. § 1205.062. 8. Notice to Interested Parties: According to TEX. GOV’T CODE § 1205.03, the Clerk of the Court must give notice of this action to all Interested Parties by publishing a substantial copy of the order attached as Exhibit B in a newspaper of general circulation in Chambers County, Liberty County, and Travis County, Texas. The notice must be published once a week for two consecutive weeks, and the first publication date must be at least 14 days before the date set for hearing and trial. This publication is requested at this time, as reflected in the proposed order attached as Exhibit B. Because Chapter 1205 requires expedited action, the undersigned’s office will assist the Clerk with the necessary publication by making arrangements with the newspapers upon receipt of the signed order. 9. Texas Attorney General: Under TEX. GOV’T CODE § 1205.042, the Attorney General of Texas must be served at least 20 days before trial with a copy of this original petition - 4 - (together with attached exhibits), and a copy of the Court’s order (executed copy of Exhibit B). Expedited issuance of citation is requested at this time for: Attorney General, State of Texas Attention: Jim Davis, Deputy Attorney General for Civil Litigation 209 W. 14th Street Austin, Texas 78701 As soon as possible, the citation should be emailed to Mr. Norm Wiley of Associated Litigation Services at norm.wiley@gmail.com. This private process server will serve the citation at the Attorney General’s physical address. The Attorney General’s Bond Department will be provided a courtesy copy of the applicable documents upon filing of this petition. X. Factual Allegations The City makes the following allegations in accordance with the requirements of TEX. GOV’T CODE § 1205.024. A. Factual Background 10. The City seeks to install fiber optic cable to provide broadband internet services for its citizens. Because of its size, private companies have been unwilling to provide broadband internet services in the City commercially. 11. In a 2016 study of Mont Belvieu residents, 69% of residents and 79% of businesses stated that the current internet environment was not meeting their current and future internet needs. See City of Mont Belvieu Broadband Options Study at 14-15, attached as Exhibit C. 90% of residents and 100% of business responded that reliable, high-speed internet is an essential service on the same level as electricity or water. Id. 12. The study found “Mont Belvieu has a multitude of providers, but their coverage areas are limited in area creating a patchwork of serviceable areas. There is currently no one provider who covers all of Mont Belvieu with high speed broadband.” Id. at 10. And some - 5 - addresses in Mont Belvieu could not obtain service from any provider due to saturated equipment infrastructure. Id. Even when Mont Belvieu residents and businesses are located within internet provider coverage areas, they report slow speeds with regular service disruptions. Id. at 14-15. 13. Because reliable, high-speed internet is essential for the Mont Belvieu community, the Mont Belvieu City Council plans to issue certificates of obligation so that the City can build and operate a fiber optic network to make gigabit internet service available to all residences and businesses within the City of Mont Belvieu. The City wishes to eliminate the current inequities in reliable, high-speed internet service. The Mont Belvieu City Council views gigabit internet service as a powerful economic development tool to retain existing businesses and attract new businesses to the City. 14. On December 12, 2016, the Mont Belvieu City Council adopted a resolution, authorizing the publication of notice of intention to issue certificates of obligation. See Resolution Authorizing Publication of Notice of Intention to Issue C.O.’s, attached as Exhibit D. The City Council subsequently published notices of intent to issue the certificates of obligation not to exceed $14,000,000 on December 16, 2016 and December 23, 2016 in The Baytown Sun. See Publications of Notice of Intention to Issue C.O.’s, attached as Exhibit E. On January 23, 2017, the Mont Belvieu City Council adopted an ordinance authorizing the issuance of the certificates of obligation. See Certificate of Adoption of Ordinance, attached as Exhibit F; Ordinance Authorizing the Issuance of C.O.’s, attached as Exhibit G. B. Legislative Framework 15. While cities may provide certain utilities, including internet, they are not allowed to provide others. For example, the Texas Utilities Code regulates telecommunications services. Under Section 54.001, any entity providing “local exchange telephone service, basic - 6 - telecommunications service, or switched access to service” must obtain a certificate. TEX. UTIL. CODE § 54.001. Municipalities are prohibited from obtaining the required certificates for these statutorily defined telephone services. Id. §§ 54.201, 54.202(1). More particularly: • A “local exchange telephone services” explicitly excludes “non-voice data transmission service offered as a separate service and not as a component of basic local telecommunications service.” Id. § 54.002(5). • A “basic local telecommunications service” provides core telephone functionalities such as: access to 911 services, tone dialing service, and flat rate telephone service. Id. § 54.002(1). • A “switched access” is an “[a]ccess service that is provided by CTUs [Certified Telecommunications Utilities] to access customers and that requires the use of CTU network switching or common line facilities . . . for the origination or termination of interexchange calls.” Texas Public Utilities Rules § 26.5 (236). Thus, providing a broadband internet service via fiber optic cable does not fall under these definitions. 16. Municipalities also are prohibited from offering “nonswitched telecommunications services used to connect a costumer’s premises with: (a) another customer’s premises within the exchange; or (b) a long distance provider that serves the exchange.” TEX. UTIL. CODE § 54.202. The Texas Public Utility Commission’s Rules define “long distance services” as those “furnished between customers in different local calling areas.” Texas Public Utilities Rules § 26.5 (139). Providing broadband internet services will not directly connect costumers’ premises, nor will it connect a customer to a long-distance provider; instead, it will connect costumers to the internet. - 7 - 17. Finally, the Texas Utilities Code prohibits providing local exchange telephone service, basic local telecommunications service, switched access service, or nonswitched telecommunications service directly or indirectly through a telecommunications provider. TEX. UTIL. CODE § 54.202(b). The internet is not a “telecommunications provider.” See id. § 51.002(10). Thus, a broadband internet service does not provide a prohibited service indirectly through a telecommunications provider. C. Authority to Issue Public Securities 18. As noted above, the City is a home-rule city, duly created, organized, and existing under the laws of the State of Texas. As such, the City is vested with the authority pursuant to Subchapter (c) of Chapter 271 of the Texas Local Government Code to issue, sell, and deliver certificates of obligation for public works, including municipal utilities. D. Purpose of the Public Securities 19. The Texas Government Code permits municipalities to “issue public securities and incur obligations under contracts” in connection with acquiring, purchasing, constructing, improving, renovating, or equipping infrastructure for a utility system. TEX. GOV’T CODE § 1502.051. Likewise, the City may issue certificates of obligation for “public works.” TEX. LOCAL GOV’T CODE § 271.045. Fiber optic cable is a permanent public improvement similar to public works and utilities. See Simpson v. City of Nacogdoches, 152 S.W. 858, 862 (Tex. Civ. App.—Galveston 1913, no writ) (recognizing electric light plants as municipal utilities and public improvements although not listed in the statute); Bass v. City of Clifton, 261 S.W. 795 (Tex. Civ. App.—Waco 1924, no writ) (same). 20. The Texas Legislature noted broadband internet is “important to this state” and that providing wireless services to all residents is “the policy of the state.” TEX. UTIL. CODE § 43.001(b). Accordingly, the City will issue certificates of obligation and enter into associated - 8 - contracts for the purpose of providing proceeds to finance laying fiber optic cable to provide broadband internet services to the citizens of the City. E. Certificates of Obligation 21. As noted above, this proceeding may be brought before the City issues certificates of obligation for the purpose of providing broadband internet service via fiber optic cable. TEX. GOV’T CODE § 1205.024(1). The Expedited Declaratory Judgment Act thus allows the City to avoid the public expense of actions that may become moot. 22. For the same reason, it is not necessary to append to this petition a copy of each public security authorization; the proposed public securities have not yet been authorized by the City. Id. § 1205.024(4). F. Amount of Public Securities and Interest Rate 23. Upon entry of the declaratory judgment sought by this lawsuit, the City will take the necessary steps to authorize and to issue certificates of obligation for the purpose of providing broadband internet service as explained in this petition. 24. At this time, the proposed maximum amount of the public securities is $14,000,000. See TEX. GOV’T CODE § 1205.024(5). The maximum net effective interest rate of the public securities cannot be estimated at this time but will not exceed 15%, as calculated pursuant to the provisions of Chapter 1204 of the Texas Government Code. Id. § 1205.024(6). XI. Request for Declaratory Judgment 25. The preceding paragraphs establish the existence of a justiciable controversy appropriately resolved by declaratory judgment. 26. Pursuant to TEX. GOV’T CODE § 1205.021, the City seeks a declaratory judgment that: - 9 - a. The City is an “issuer” that intends to make a valid “public securities authorization” for the issuance of “public securities,” as those terms are defined in TEX. GOV’T CODE § 1205.001; b. Each expenditure or proposed expenditure of money related to the public securities is legal and valid; c. The proposed public securities are legal and valid; d. The City may enter into all contracts, including but not limited to those necessary to issue and deliver broadband internet services. 27. The declaratory judgment will terminate for all time any claim or controversy with respect to the issuance of the public securities. In accordance with TEX. GOV’T CODE § 1205.151(b), the judgment will be binding and conclusive against the City, the Attorney General, the Comptroller of Public Accounts for the State of Texas, and any party to the action named and served with notice of the proceedings or described by TEX. GOV’T CODE § 1205.041(a), including Interested Parties described above. 28. In accordance with TEX. GOV’T CODE § 1205.151(c), the above requested declaratory judgment would constitute a permanent injunction against the filing by any person of any proceeding contesting the validity of: (a) the public securities, a public security authorization, or an expenditure of money relating to the public securities described in this petition; (b) each provision made for the payment of the public securities or of any interest on the public securities; and (c) any adjudicated matter and any matter that could have been raised in this action. The City respectfully requests that a permanent injunction be entered as described herein. XII. Request for Bond 29. Before entry of a final judgment, the City requests, pursuant to TEX. GOV’T CODE § 1205.101, that the Court require that any opposing parties and intervenors (other than the Attorney General), whether named or unnamed, post a bond with a sufficient surety, approved by - 10 - the Court, and payable to the City for all damages and costs due to delay caused by the continued participation of those parties or intervenors. 30. Likewise, after entry of a final judgment, the City requests, pursuant to TEX. GOV. CODE § 1205.101 and TEX. R. APP. P. 24, that the Court require that any opposing parties and intervenors (other than the Attorney General), whether named or unnamed, post a bond with a sufficient surety, approved by the Court, and payable to the City for all damages and costs due to delay caused by the continued participation of those parties or intervenors. XIII. Conclusion & Prayer For the reasons set forth above, the City requests that the Court grant it the declaratory judgment and other relief requested in this original petition. The City also requests that the Court give all proceedings, hearings, and trial priority over all other cases, causes, or matters pending in the Court. The City prays for all other relief to which it may be entitled. NORTON ROSE FULBRIGHT US LLP /s/ Andrew P. Price Andrew P. Price State Bar No. 24002791 andrew.price@nortonrosefulbright.com Kathleen F. McNearney State Bar No. 24088038 katie.mcnearney@nortonrosefulbright.com 1301 McKinney, Suite 5100 Houston, TX 77010 Telephone: (713) 651-5151 Facsimile: (713) 651-5246 ATTORNEYS FOR THE CITY OF MONT BELVIEU Page 1 of 14 JULY 18, 2018 CITY OF NEW BRAUNFELS Request for Qualifications Partnership for Delivery of Products and Services For a Fiber-Optic Broadband Network RFQ 18-038 Page 2 of 14 Request for Qualifications Partnership for Delivery of Products and Services For a Fiber-Optic Broadband Network Contents 1. Introduction ........................................................................................................... 4 2. RFQ Schedule ...................................................................................................... 4 3. Pre-submittal Meeting ........................................................................................... 5 4. Community at a Glance ........................................................................................ 5 5. City Assets ............................................................................................................ 5 6. Project Overview and Goals ................................................................................. 6 7. Project Requirements ........................................................................................... 7 8. Selection Criteria .................................................................................................. 8 9. RFQ Response Requirements .............................................................................. 9 10. RFQ Questions ................................................................................................... 11 11. Delivery Instructions ........................................................................................... 11 12. No Binding Commitments ................................................................................... 12 13. Clarification of Qualifications ............................................................................... 12 14. Miscellaneous Provisions .................................................................................... 13 15. Ownership and Confidentiality of Responses ...................................................... 14 Attachment 1 – Vendor Certifications Appendix A - Study Appendix B – Map Page 3 of 14 SOLICITATION AND OFFER City of New Braunfels Purchasing 550 Landa Street New Braunfels, Texas 78130 Solicitation Number: 18-038 “Partnership - For a Fiber-Optic Broadband Network” Invitation for Bid Request for Qualifications (IFB) (RFQ) Date Issued: July 18, 2018 SOLICITATION Pre-Submittal Meeting will be hosted on: August 8, 2018, 2:00 P.M. (Central Time) Questions may be submitted until close of day August 10, 2018, 5:00 P.M. (Central Time) Respondents must submit sealed SOQ containing one (1) signed original hardcopy and three (3) in electronic format (USB). Qualifications will be received at the office of the City Secretary at the address shown above until: 3:00 P.M. (CT), August 24, 2018 Qualifications received after the time and date set for submission will be returned, unopened, upon request. For information regarding this solicitation, contact: (NO collect calls, Telegraphic, Email, On-Line or Fax offers accepted) Barbara Coleman, Purchasing Manager Email: BColeman@nbtexas.org Phone: (830) 221-4389 Fax: (830) 608-2112 5% Proposal Bond Required: 100% Payment Bond Required: 100% Performance Bond Required: YES YES YES NO NO NO OFFER (This portion must be fully completed by Proposer.) Respondent will comply with the General Terms and Conditions required by the City of New Braunfels. In compliance with the above, upon contract award the undersigned offers and agrees to furnish any or all items or services awarded at the prices stipulated for each item delivered at the designated point(s) and within the time specified herein. CONTRACT AWARD SHALL INCLUDE ALL ASSOCIATED SOLICITATION DOCUMENTS, ATTACHMENTS, AND ADDENDA. SIGNATURE IS MANDATORY; MANUALLY SIGN ORIGINAL DOCUMENT AND, IF APPLICABLE, ALL REQUESTED COPIES SUBMITTED. 1) Respondent’s State of Residence: ____________________________________________ Name Name and Title of Person Authorized to Sign Offer: E-Mail Address: Phone Number: Fax Number: Address of Respondent: Signature: Date: Name, Address and Telephone Number of Person authorized to conduct negotiations on behalf of Respondent. (Applies to Request for Qualifications only) RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 4 of 14 1. Introduction The City of New Braunfels (“City”) is requesting qualifications from organizations to assist the City in the New Braunfels Broadband Project (“the Project”). The City of New Braunfels is a home-rule charter municipality located in Comal County, Texas. A study was completed in 2016 (Appendix A) which evaluated the options available to the City to improve high speed Internet access and other broadband services within core business and industrial corridors of the community. The study recommended the City pursue a public-private partnership to build and operate services within these areas of the community. The City has determined that new enterprise-grade broadband infrastructure located in the largely commercial and industrial business corridors throughout the City (Appendix B) will promote economic development in those specific areas, leading to job creation, greater commercial activity, and generate additional benefits to our businesses and property owners. Accordingly, the City and its partners (New Braunfels Utilities, the New Braunfels Chamber of Commerce, and the New Braunfels Economic Development Corporation) are interested in receiving qualifications for the development of broadband infrastructure and retail operations that can support dedicated enterprise grade broadband services offering local business speeds greater than 1 GB while ensuring the highest standards of reliability, availability, quality, and customer service. The purpose of this Request for Qualification (RFQ) is to solicit statement of qualifications from qualified telecommunication companies with appropriate experience that will allow the City and NBU to pursue the goals and objectives outlined in this project. The City and its partners are not soliciting qualifications based on any particular design, technology, business model, solution or cost at this time. 2. RFQ Schedule The tentative schedule for this Request for Qualifications is as follows: DATE STEP 1 - MILESTONES July 18, 2018 RFQ issued on http://www.bidnetdirect.com/texas and www.nbtexas.org/ August 8, 2018 Pre-Submittal Meeting August 10, 2018 Deadline for questions and requests for clarification August 24, 2018 Statement of Qualifications (“SOQ”) submission deadline September 2018 City evaluation of SOQs submitted by firms DATE STEP 2 - MILESTONES October 2018 Scoping meetings with City and top-ranked firms October 2018 Final negotiations with top-ranked firm November 2018 Anticipated timeframe for Recommendations to New Braunfels City Council, New Braunfels Utility Board and to New Braunfels Economic Development Corporation to consider award of contract RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 5 of 14 3. Pre-submittal Meeting A Pre-submittal meeting will be held at 2:00 P.M. (Central Time) on August 8, 2018 at the New Braunfels City Hall, 550 Landa Street, New Braunfels, Texas 78130. Representatives will be present to discuss the Project. Attendance is not required; however, respondents are encouraged to attend and participate in the conference. 4. Community at a Glance New Braunfels is strategically located in the Central Texas region, part of the Texas Triangle mega region, and is a city of regional significance, with a growing number of residents and jobs, a tourist mecca and an exceptional quality of life. Centered between Austin and San Antonio, each year more than three million visitors come to explore the shopping and recreational activities steeped in German and Hispanic culture and heritage. Comal County and New Braunfels are ranked as the ninth fastest growing county and the second fastest growing city in the nation and are experiencing an unprecedented growth rate – growing at an average of 4-5 percent per year or a 77 percent increase in the last decade. New Braunfels was touted as the second fastest growing city with a population over 50,000 in America in 2017. This was the fourth consecutive year which New Braunfels was listed in the top 10 nationwide. 5. City Assets The City of New Braunfels and New Braunfels Utilities (also referred to as “NBU”) own and operate approximately 55 miles of fiber optic cable with a minimum of 4 strands of fiber available for use with this project. Referenced maps in Appendix B generally depict the location of this fiber within the community. The City, through funding from the New Braunfels Economic Development Corporation, will consider funding at an amount to be determined for the expansion of existing fiber infrastructure, development of new fiber infrastructure or a combination of both in the identified commercial areas. RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 6 of 14 The City also owns and/or controls certain real estate, some underground conduit, has jurisdiction over most of the roadways and owns or in coordination with NBU may provide access to poles and towers through attachment agreements. As the City pursues capital improvement initiatives, especially along major roadways, there may be an opportunity to align scheduling of broadband infrastructure with these projects. Respondents may include assumptions about the use of City assets in proposals, so long as all assumptions are fully explained and in compliance with current regulations. However, the City makes no representation regarding the availability or suitability of these assets, and nothing in this RFQ or other material provided by the City should be interpreted to indicate otherwise. 6. Project Overview and Goals 1. Establish the infrastructure needed to support the delivery of leading-edge broadband services that provide the best internet, television and other services that the market has to offer; 2. Support the operational needs of business through a platform of high-speed internet services; 3. Establish the conditions that ensure a competitive rate structure for the products and services delivered to end users over the network; 4. Establish our community as being at the forefront of the most connected communities in America; 5. Establish an innovative, long-term partnership with a qualified Respondent that: a. Allows the community to maintain an active role in decisions related to the development and providing the best in class products and services now and in the future; b. Ensures transparency; and c. Ensures the qualified respondent is responsible for all aspects of providing and maintaining world-class products, services and a superior customer service experience. RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 7 of 14 6. Proceed as expediently as reasonably and professionally possible without compromising the integrity of the project. 7. Project Requirements The City is seeking a private or public partner that will provide enterprise-grade internet services to businesses, visitors and community organizations. The City expects that the partner will provide a full “turnkey” solution for the delivery of products and service that include funding, design, engineering, procurement, construction, operation, maintenance and repair, and regulatory compliance network, and that it will be adaptable for future growth and technology. The City desires a revenue split model or other forms of suggested revenue enhancements that both establishes a long-term payback of the original investment with interest, to cover ongoing operation and maintenance cost, some free cash flow and sustainability well into the future. If approved the City expects that construction of the network would occur over a 12 to 24-month period and services should be available in tandem with the build-out in phases. This construction timeline will depend somewhat on the partnership developed with the successful respondent; however, the respondent should be prepared to meet aggressive timelines for build- out, provisioning and activation of the network. The network will support a distribution platform that meets the needs of the community and is capable of provisioning services up to a symmetrical 1 Gigabit service and a future Ten Gigabit service to end users. The City does not consider wireless, unlicensed or fixed licensed, a suitable sole option for long-term sustainability for its community’s broadband needs nor does it believe a community equipped with wireless business services will support increasing property values and economic development opportunities. However, providing wireless offerings in conjunction with a core hardline service connection may be considered. The network will meet strong reliability and performance standards and provide redundancy throughout the backbone and trunk connectivity. The City realizes that connections to individual parcels may not be redundant. The respondent should demonstrate its ability to source sufficient backhaul capacity and backhaul redundancy to support the City’s goals for high availability of broadband services to its community. Respondents are encouraged to provide innovative technology platforms to meet the City’s core service delivery requirements, which include: • Required: Range of internet and managed point to point connections up to Gigabit speeds as a standard offering and a future roadmap to Ten Gigabit Internet services; • Required: Symmetrical and asymmetrical considerations on all Internet packages; • Optional: Expansion into residential neighborhoods • Optional: Additional value-added and over-the-top services and applications that can RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 8 of 14 demonstrate the respondent’s value to the community. The City and its partners intend to select the most responsive offer based on the requirements but reserves the right to accept or reject any and all responses at its sole discretion. The top organizations will be notified by the City at a future date and asked to provide additional information including but not limited to: • Relevant market studies • Proposed client adoption at 1, 3 and 5 years • General fiber infrastructure design and facility location • Proposed service offering inclusive of pricing • Project timeline for fiber rollout • Residential expansion capabilities and desires Full details of what is expected, and the relevant timeline will be provided at the time of notification. 8. Selection Criteria A committee will evaluate the responses submitted and will be evaluated on the following criteria: • Relevant experience and qualifications (45 points) • Financial soundness and capability or the organization (20 points) • General business model proposed (20 points) • Responses from references (15 points) The review process – A committee will evaluate submittals based upon the criteria outlined above. The committee may, at their discretion, request presentations by or meeting with any or all respondents to clarify or discuss the submittal. Response should be submitted initially on the most favorable terms which the Offeror can propose. The City anticipates the need for a negotiation period to finalize the terms of Development Agreement. Once a Provider has been selected the City and the Provider will enter into the negotiation period to refine the vision for the Project and finalize the terms of an Agreement. 8.1 Right to Accept or Reject. The City reserves the right to accept or reject any or all submissions as a result of this RFQ, to negotiate with all qualified sources, or to cancel in part or its entirety if found to be in the best interest of the City. The RFQ does not commit the City or its partners to award a contract, issue a purchase order, or pay any costs incurred in the preparation of a submission in response to this RFQ. 8.2 Solicitation to Remain Subject to Acceptance. All solicitations will remain subject to acceptance for one hundred twenty (120) days after opening without taking action. RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 9 of 14 8.3 Approval Required. The New Braunfels Economic Development Corporation, the City of New Braunfels City Council and the New Braunfels Utility Board must approve the firm selected to provide the services requested in this RFQ. The City reserves the right to authorize contract negotiations to begin without further discussion with firms submitting a response. Therefore, each SOQ should be submitted as completely and accurately as possible. The City reserves the right to request additional data, oral discussions, or presentations in support of the written SOQ. 8.4 Firm or Individual’s Obligation Regarding Evaluation: a. Submission of Information. Submitters are cautioned that it is each firm and or individual’s sole responsibility to submit information related to the evaluation categories, and the City is under no obligation to solicit such information if it is not included with the SOQ. Failure of a firm or individual to submit such information may cause an adverse impact on the evaluation of the specific SOQ. b. Submitter Review of RFQ. Submitters are responsible for examining and being familiar with all specifications, terms, conditions, provisions, and instructions of the RFQ and their responses. Failure to do so will be at the firm and/or individual’s risk and will not be a determinative factor when awarding the contract for services. 8.5 Oral Non-Binding. Any non-written representations, explanations, or instructions given by City staff or City agents are not binding and do not form a part of, or alter in any way, the RFQ, a written agreement pertinent to the RFQ, or the awarding of the contract. 8.6 Lobbying Prohibited. Proponents are prohibited from directly or indirectly communicating with City Council, NBU Board of Directors and the NBEDC members regarding the Proponent’s qualifications or any other matter related to the eventual award of a contract for the services requested under this RFQ. Proponents are prohibited from contacting city staff members regarding their qualifications or the award of a contract, unless in response to an inquiry from a staff member. Any violation will result in immediate disqualification of the proponent from the selection process. 9. RFQ Response Requirements The City is requesting the following information from interested parties that seek to develop a partnership with the City to deliver Content and Services to its community. Responses to the following items will be used for evaluation. Submittals which do not contain responses to each of the requirements items may be considered incomplete and may be rejected. To achieve a uniform review process and to obtain the greatest degree of comparability, the City of New Braunfels requires that SOQ be submitted with 1 original and 3 hard copies and 1 electronic copy of your response. 1. Tab 1 - Provide a Letter of Transmittal on company letterhead stating why the respondent is interested in developing a partnership with the City and provide a listing of any requirements listed in this RFQ that you are unable to meet. RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 10 of 14 2. Tab 2a - Provide an overview of the respondent’s organization, services and capabilities. Provide details on your company’s (or its shareholders’) knowledge, experience and operations within the broadband telecommunications industry and, if applicable, infrastructure development in the region, as well as key expertise that qualifies you to be considered in this RFQ. 3. Tab 2b - If you are a current broadband provider, provide an overview of your products and services, operations, total subscriber count, type of services (business/residential), local presence in the region and other markets served. Demonstrate any similar arrangements with municipalities, electric utilities or other public-private partnerships. 4. Tab 3 - Provide detail on the business model the respondent would utilize in developing a partnership with the City. Include relevant details including who maintains ownership of developed fiber infrastructure, what in-kind services are you open to providing the City, and what investments are you willing to make into the community. Describe how this model meets the community’s needs for services and goals and potential long-term recurring revenue opportunities. 5. Tab 4 - If the respondent is a broadband provider, provide a project organizational chart that describes the relationship between the broadband and the City including any installation or service contractors already in place in the region. 6. Tab 4 - If the respondent is a broadband enabler, provide a project organizational chart that describes the relationships between provider and the lead organizations and subordinate organizations in the proposed organizational chart including any installation or service contractors already in place in the region. 7. Tab 5 - Provide an implementation plan based on the respondent’s business model that demonstrates how you would achieve the desired results for the provisioning and activation of services. 8. Tab 6 - Describe the respondent’s operations plan for the project, detailing customer service, service calls, NOC services and provisioning, routine and emergency maintenance calls and escalation procedures. 9. Tab 7 - Define the roles and responsibilities for the respondent, the City and other partners, if any, including customer uptake or other requirements. 10. Tab 8 - Define how the respondent’s proposal will comply with local, state, and federal Regulatory requirements. 11. Tab 9 - Identify the potential financial commitments and any long-term liabilities to the City in the proposed solution. Provide a sheet that documents what financial commitments would be expected of the City, including any long- term obligations, appropriations or other financial liabilities that the City would incur in the proposed RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 11 of 14 solution. 12. Tab 10 - Provide an overview of how the respondent’s products and services would achieve the City’s goals for the community and support the marketing of products and services. 13. Tab 11 - Provide a detailed narrative explaining what barriers prevented you from entering this market in the past. e.g.: what do you need from the City that you cannot do yourself to make this a successful market for you? 14. Tab 12 - Provide a minimum of 3 industry/municipality references that demonstrate the respondent’s ability to successfully plan, implement and deploy broadband networks products and services using innovative public and/or private environments. 15. Tab 13 – Other Support Documentation: a. Provide potential conflict of interest disclosure that is a direct or indirect financial investor, partner, employee, or member of any corporation, partnership, or other legal entity making or participating in this proposal. See item 14.2 for more information. b. Provide vendor certifications - Attachment 1. 10. RFQ Questions Questions relating to definitions, interpretations, and/or requests for clarification must be in writing, on or before August 10, 2018 at 5:00 P.M. (Central Time), directed to: Purchasing Representative: Barbara Coleman, Purchasing Manager, via email bcoleman@nbtexas.org All questions and/or clarification submittals shall identify the SOQ in the subject line of the email message as follows: “Questions – RFQ 18-038 for Fiber Broadband” No questions will be accepted after the deadline for questions has passed. Responses to inquiries that directly affect an interpretation or change to this RFQ will be issued in writing by Purchasing as an addendum and posted at http://www.bidnetdirect.com/texas and the City’s website www.nbtexas.org/. All such addenda issued by the Purchasing Representative before the time that SOQs are received shall be considered part of the RFQ. 11. Delivery Instructions Responses must be submitted not later than 3:00 P.M. (Central Time), August 24, 2018. Qualifications may be mailed or delivered (in person or by Express Mail or delivery service) to: RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 12 of 14 City of New Braunfels - City Secretary’s Office ATTN: Purchasing 550 Landa Street New Braunfels, TX 78130 The outside of the envelope or package must state: RFQ 18-038 Project Name: Fiber Broadband Due: August 24, 2018 at 3:00 P.M. It is the sole responsibility of the Respondent to ensure prompt delivery of SOQ. The City of New Braunfels will not be responsible for failure of service on the part of the U.S. Post Office, courier services, or any other form of delivery service chosen by the Respondent. Qualifications may not be withdrawn after the time set for the closing, unless approved by the City Council. Your response or a modification to your response is LATE if received after the time set for solicitation opening and shall be returned unopened and shall not be considered. 12. No Binding Commitments The issuance of the RFQ and any subsequent response by a Respondent does not create a binding obligation on the part of the City to enter into any form of agreement or contract, or to pay any costs associated with the preparation of responses or submittals with the Respondent, for the development of a broadband network, delivery of products and services or otherwise. Nor shall the RFQ in any way create an association, partnership, or joint venture among Respondents and the City. The City reserves the right to waive responses to any part of this request if, in its sole judgment, it determines that it is in the best interests of the City to do so. Nothing in the RFQ shall preclude the City from obtaining relevant information from other sources or through other processes. The City may require any submitter to participate in negotiations and to submit such other information or documentation as it may deem necessary as conditions of awarding a contract. The City reserves the right to vary or waive requirements for different submitters as shall fit the City’s needs. 13. Clarification of Qualifications Notwithstanding any other provision of this RFQ, the City reserves the right to: 1. Conduct discussions with any or all potential Respondents for the purpose of clarification; 2. Cancel or amend this RFQ or issue other requests for information or requests for qualifications; 3. Use any and all concepts presented in any response to obtain the most beneficial and effective path to achieving its desired goals for the project. RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 13 of 14 14. Miscellaneous Provisions 14.1 Response Costs Respondents are responsible for all expenses they incur in preparing and submitting a response to this RFQ or any follow-up discussions with the City. 14.2 Conflict of Interest Questionnaire (Form CIQ) In accordance with Chapter 176 of the Texas Local Government Code, “Disclosure of Certain Relationships with Local Government Officers,” persons, or their agents who seek to who seek to contract for the sale or purchase of property, goods, or services with the City, shall file a Conflict of Interest Questionnaire (Form CIQ) with the City Secretary if the vendor has a business relationship as defined by Section 176.001(1-a) with the City and the vendor meets requirements under Section 176.006(a). Form CIQ is available from the Texas Ethics Commission by accessing the following web address: https://www.ethics.state.tx.us/filinginfo/conflict_forms.htm The Conflict of Interest Questionnaire (Form CIQ) is required to be filed within 7 business days of: a. Beginning of discussions or negotiations to enter into a contract with the City; or b. Submission of an application, response to a request for qualifications correspondence or other writing related to a potential agreement with the City. If requested in the solicitation document, all Respondents are to submit a completed Conflict of Interest Questionnaire (Form CIQ) with their response in addition to submitting a completed Form CIQ to the office of the City Secretary located at 550 Landa Street; New Braunfels, Texas 78130. 14.3 Certificate of Interested Parties (Form 1295) A Form 1295 will be required with the awarded partner. A proponent that will be awarded a contract that is greater than $25,000 is required to electronically create a Certificate of Interested Parties Form 1295 through the Texas Ethics Commission (“TEC”) website: https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm and submit a signed and notarized copy of the form to the City prior to the award of the contract. A contract, including a City-issued purchase order, will not be enforceable or legally binding until the City receives and acknowledges receipt of the properly completed Form 1295 from the vendor. 14.4 Errors and Omissions in the RFQ If the City becomes aware of an error or omission in the RFQ, it will post a notice on the City’s website. If it discovers an error or omission after the responses are submitted, it may in its discretion proceed or reissue the RFQ. Even if it elects to reissue the RFQ, the City will not be liable for any costs or damages incurred by any Respondent in preparing and submitting the original response. RFQ – 18-038 Partnership - For a Fiber-Optic Broadband Network Page 14 of 14 15. Ownership and Confidentiality of Responses The City will not pay for any information requested, and all responses submitted become the property of the City. Responses will not be returned and may be subject to disclosure pursuant to the federal Freedom of Information Act and/or state law or code. The City may receive information that may be confidential as part of a response. If a Respondent believes that any portion of its response includes proprietary or other confidential information, it must be clearly labeled the confidential information as such, and the Respondent must state the basis for the claim to confidential treatment. Unless otherwise required by law, the City will treat such information as confidential and will not disclose it to a third party without prior notification and authorization. RFQ 18-038 - Partnership - For a Fiber-Optic Broadband Network ATTACHMENT 1 VENDOR CERTIFICATIONS VENDOR CERTIFICATIONS The Proposer is required to submit the following information to Owner for consideration: Provide responses that are clear and comprehensive. Company name: Permanent main office address: Street City, ST ZIP Tax ID No.: 1. Provide a list of officers of the firm who, while in the employ of the firm or the employ of previous firms, were associated with contracts which resulted in law suits, contracts defaulted or filed for bankruptcy. 2. Form of ownership: Proprietorship Partnership Corporation Other (specify) DEBARMENT/SUSPENSION INFORMATION: 1. Has the Respondent or any of its principals been debarred or suspended from contracting with any public entity? Yes No If yes, identify in an attachment the public entity and the name and current phone number of a representative of the public entity familiar with the debarment or suspension, and state the reason for or circumstances surrounding the debarment or suspension, including but not limited to the period of time for such debarment or suspension. CERTIFICATIONS: 1. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract. Yes No A. “corrupt practice” means the offering, giving, receiving, or soliciting of anything of value likely to influence the action of a public official in the solicitation process or in the Contract execution; B. “fraudulent practice” means an intentional misrepresentation of facts made 1. to influence the solicitation process or the execution of the Contract to the detriment of Owner, 2. to establish Cost Estimate or Contract prices at artificial non-competitive levels, or 3 to deprive Owner of the benefits of free and open competition; C. “collusive practice” means a scheme or arrangement between two or more Respondents, with or without the knowledge of Owner, a purpose of which is to establish Cost Estimates at artificial, non-competitive levels; and D. “coercive practice” means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the solicitation process or affect the execution of the Contract. RFQ 18-038 - Partnership - For a Fiber-Optic Broadband Network ATTACHMENT 1 VENDOR CERTIFICATIONS 2. NON-COLLUSION CERTIFICATION: A. Non-Collusion Certification: Do you certify that all of the following are true and correct concerning your company’s cost estimate? Yes No 1. That you are fully informed of the contents of the solicitation and the circumstances of its preparation; 2. That your cost estimate is genuine and is not a collusive or sham cost estimate; 3. That neither you nor anyone else acting on behalf of your company has agreed, colluded, or conspired in any manner with any other respondent, firm or person to submit a collusive or sham cost estimate, or to refrain from responding, or sought by communication or conference with any other respondent, firm or person to fix the prices, overhead, profit, or any cost element in your cost estimate or in any other cost estimate, or to secure through any collusion, conspiracy, or agreement any advantage against the City of New Braunfels or any other respondent; and 4. The prices quoted in your cost estimate are fair and proper and are not affected by any collusion, conspiracy, connivance or unlawful agreement on the part of your company or anyone acting on its behalf. 3. HOUSE BILL 89 VERIFICATION A. Contractor shall verify that it’s named company, under the provisions of Subtitle F Title 10 Government Code Chapter 2270: Yes No 1. Does not boycott Israel currently; and 2. Will not boycott Israel during the term of the contract. Pursuant to Section 2270.001, Texas Government Code: 1. “Boycott Israel” means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes; and 2. “Company” means a for-profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit. SEE NEXT PAGE FOR ACKNOWLEDGEMENT RFQ 18-038 - Partnership - For a Fiber-Optic Broadband Network ATTACHMENT 1 VENDOR CERTIFICATIONS ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF COMAL I certify that I have read all of the specifications and general RFQ requirements and do here by certify that all items submitted meet specifications. I certify that my responses and the information provided are true and correct to the best of my personal knowledge and belief and that I have made no willful misrepresentations in this Questionnaire, nor have I withheld any relevant information in my statements and answers to questions. I am aware that any information given by me in this questionnaire may be investigated and I hereby give my full permission for any such investigation and I fully acknowledge that any misrepresentations or omissions in my responses and information may cause my response to this solicitation to be rejected. Bidder's full name and entity statu Company’s Name Signature, Authorized Representative of Respondent Title 2/1/2019 To kill net neutrality rules, FCC says broadband isn’t “telecommunications” | Ars Technica https://arstechnica.com/information-technology/2017/06/to-kill-net-neutrality-rules-fcc-says-broadband-isnt-telecommunications/1/7 WORD GAMES —To kill net neutrality rules, FCC says broadband isn’t “telecommunications” Bad news for Title II: Courts have let FCC define broadband however it wishes. - 6/1/2017, 12:20 PMJON BRODKIN 2/1/2019 To kill net neutrality rules, FCC says broadband isn’t “telecommunications” | Ars Technica https://arstechnica.com/information-technology/2017/06/to-kill-net-neutrality-rules-fcc-says-broadband-isnt-telecommunications/2/7 The Federal Communications Commission's plan to gut net neutrality rules and deregulate the Internet service market may hinge on the definition of the word "broadband." In February 2015, the FCC's then-Democratic leadership led by Chairman Tom Wheeler classified broadband as "telecommunications," superseding the previous treatment of broadband as a less heavily regulated "information service." This was crucial in the rulemaking process because telecommunications providers are regulated as common carriers under Title II of the Communications Act, the authority used by the FCC to impose bans on blocking, throttling, and paid prioritization. EnlargeGetty Images | Paul TaylorSUBSCRIBE SIGN IN 2/1/2019 To kill net neutrality rules, FCC says broadband isn’t “telecommunications” | Ars Technica https://arstechnica.com/information-technology/2017/06/to-kill-net-neutrality-rules-fcc-says-broadband-isnt-telecommunications/3/7 FURTHER READING Net neutrality going down in flames as FCC votes to kill Title II rules FURTHER READING Tom Wheeler defeats the broadband industry: Net neutrality wins in court Thus, when the FCC's new Republican majority voted on May 18 to start the process of eliminating the current net neutrality rules, the commission’s Notice of Proposed Rulemaking (NPRM) also proposed redefining broadband as an information service once again. To make sure the net neutrality rollback survives court challenges, newly appointed FCC Chairman Ajit Pai must justify his decision to redefine broadband less than three years after the previous change. He argues that broadband isn't telecommunications because it isn't just a simple pipe to the Internet. Broadband is an information service because ISPs give customers the ability to visit social media websites, post blogs, read newspaper websites, and use search engines to find information, the FCC's new proposal states. Even if the ISPs don't host any of those websites themselves, broadband is still an information service under Pai's definition because Internet access allows consumers to reach those websites. FCC gets benefit of the doubt Telecommunications, as defined by Congress in the Communications Act, transmits information of the user's choosing to and from endpoints specified by the user without making any changes to the user's information. Pai's claim that broadband isn't telecommunications might not make sense to consumers, who generally use their Internet connections to access websites and online services offered by companies other than their ISPs, as a TechCrunch article recently argued. But courts have granted the FCC wide latitude on how it defines broadband over the years, essentially ruling that the FCC can classify Internet service however it wants. Yes, there are plenty of instances in which courts have overturned FCC decisions, including a 2014 case that vacated an earlier attempt to impose neutrality rules. But when it comes to defining broadband as either an Join Ars Technica and Get Our Best Tech Stories DELIVERED STRAIGHT TO YOUR INBOX. Email address SIGN ME UP Will be used in accordance with our Privacy Policy 2/1/2019 To kill net neutrality rules, FCC says broadband isn’t “telecommunications” | Ars Technica https://arstechnica.com/information-technology/2017/06/to-kill-net-neutrality-rules-fcc-says-broadband-isnt-telecommunications/4/7 information service or telecommunications, judges have allowed FCC decisions to stand as long as the commission does a reasonably good job of justifying itself. That 2014 decision didn't dispute the FCC's authority to impose net neutrality rules or reclassify ISPs—rather, judges said the FCC could impose strict versions of net neutrality rules as long as it changed its classification of broadband. Wheeler relied on the court system's deference to FCC decisions on this matter when he successfully fought off a lawsuit filed by ISPs, and Pai is hoping that judges will grant the same courtesy after the FCC changes its mind. Why Pai says broadband isn't telecommunications The Communications Act specifically defines telecommunications as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” A telecommunications service is “the offering of telecommunications for a fee directly to the public.” The 2015 FCC order that turned ISPs into common carriers and imposed net neutrality rules said that the statutory definition of telecommunications applies to broadband, as evidenced by how ISPs market their services to consumers, consumers' expectations from broadband providers, and the way the networks operate. ISPs might also offer information services such as e- mail and online storage, just like any other company that offers services over the Internet. But the FCC in 2015 said that ISPs' information services are separate offerings from broadband. As a result, the Internet plan you buy from an ISP is a regulated common carrier service even though those same providers offer some services that aren't strictly telecommunications. Pai's argument that broadband isn’t telecommunications doesn't hinge on ISPs offering their own e-mail and online storage services. Instead, he says the core broadband offering itself isn't telecommunications. Landline and mobile voice service are both considered telecommunications by the FCC. But "Internet service providers do not appear to offer 'telecommunications,'" because “broadband Internet users do not typically specify the ‘points’ between and among which information is sent online,” Pai’s NPRM argues. It continues: Enlarge / FCC Chairman Ajit Pai speaks during the National Association of Broadcasters conference in Las Vegas on April 25, 2017.Getty Images | Ethan MillerInstead, routing decisions are based on the architecture of the network, not on consumers’ instructions, and consumers are often unaware of where online content is stored. Domain names must be translated into IP addresses (and there is no one-to-one correspondence 2/1/2019 To kill net neutrality rules, FCC says broadband isn’t “telecommunications” | Ars Technica https://arstechnica.com/information-technology/2017/06/to-kill-net-neutrality-rules-fcc-says-broadband-isnt-telecommunications/5/7 Under this interpretation, the fact that consumers specify which websites they want to visit isn’t the same thing as specifying the "points" they want to reach. Broadband users would have to specify the IP addresses and caching servers they want to connect to in order for broadband providers to become the dumb pipe described in the definition of telecommunications. Using search engines makes broadband an “information service” An information service, by contrast, is defined in the Communications Act as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." The information service definition "includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” The “capability” part of the definition is key, according to the FCC’s new argument, because broadband offers the capability to provide the functions described in the definition of information service. Pai’s NPRM thus argues that today’s broadband services meet the statute’s definition of an information service: between the two). Even IP addresses may not specify where information is transmitted to or from because caching servers store and serve popular information to reduce network loads. In short, broadband Internet users are paying for the access to information “with no knowledge of the physical location of the server where that information resides.” We believe that consumers want and pay for these functionalities that go beyond mere transmission— and that they have come to expect them as part and parcel of broadband Internet access service. We believe that Internet service providers offer the “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online. Whether reading a newspaper’s website or browsing the results from a search engine, a broadband Internet user is able to acquire and retrieve information online. Whether it’s an address book or a grocery list, a broadband Internet user is able to store and utilize information online. Whether uploading filtered photographs or translating text into a foreign language, a broadband Internet user is able to transform and process information online. In short, broadband Internet access service appears to offer its users the “capability” to perform each and every one of the functions listed in the definition—and accordingly appears to be an information service by definition. 2/1/2019 To kill net neutrality rules, FCC says broadband isn’t “telecommunications” | Ars Technica https://arstechnica.com/information-technology/2017/06/to-kill-net-neutrality-rules-fcc-says-broadband-isnt-telecommunications/6/7 Page: 1 2 Next → READER COMMENTS 191 SHARE THIS STORY JON BRODKIN Jon is Ars Technica's senior IT reporter, covering the FCC and broadband, telecommunications, wireless technology, and more. EMAIL jon.brodkin@arstechnica.com // TWITTER @JBrodkin ← PREVIOUS STORY NEXT STORY → Powered by The artistic mind of Glen Schofield Sledgehammer Games co-founder Glen Schofield goes through his artistic archives and explains how he got started in the gaming industry. 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