|
ORDINANCE NO. 801
AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE
WHEREAS, The Mayor of the City of Lowell has received and reviewed the attached agreement and this Council has reviewed the agreement, and; WHEREAS, it is in the best interests of the citizens of the City of Lowell that the IP-Enabled Services Agreement, a copy of which is attached to this Ordinance, be signed by the Mayor. NOW, THEREFORE, BE IT RESOLVED, that the Mayor of Lowell, Arkansas, on behalf of the City of Lowell, Arkansas, is authorized to execute the attached be executed the IP-Enabled Services Agreement, more specifically described above. PASSED AND APPROVED THIS 21ST DAY OF AUGUST, 2007. AGREEMENT THIS AGREEMENT ("Agreement") dated August 21, 2007 ("Effective Date") is made by and between Southwestern Bell Telephone, L.P., a Texas limited partnership doing business as AT&T Arkansas ("AT&T Arkansas") and the City of Lowell, Arkansas, a municipal corporation ("City"). AT&T Arkansas and City shall sometimes be referred to separately as a "Party," and collectively as the "Parties." RECITALS A. As a telecommunications provider, AT&T Arkansas has statewide authority under Ark. Code Ann. § 23-17-101 to construct, operate and maintain its telecommunications facilities in the public rights of way ("ROW") throughout the state of Arkansas. Under Ark. Code Ann. § 14-200-101, the City is permitted to impose reasonable terms and conditions on AT&T Arkansas' use and occupation of the City's ROW and to collect a reasonable franchise fee for such use and occupation of its ROW. B. AT&T Arkansas is in the process of upgrading its existing telecommunications network to provide an integrated Internet Protocol ("IP") enabled broadband platform of voice, data and video services ("IP Network"), the video component of which is a switched, two-way, point-to-point and interactive service ("IP enabled Video Service"). The IP Network upgrade will involve the use of the City's ROW. C. AT&T Arkansas believes that Ark. Code Ann. § 23-17-101 covers the construction, operation and maintenance of the IP Network, and that AT&T Arkansas is not required to obtain a separate franchise or other authorization from the City to offer IP-enabled services including IP-enabled Video Services within the City over the IP Network. D. AT&T Arkansas further believes that the City's right to regulate the construction of the IP Network in the City's ROW is limited to the right to impose reasonable conditions regarding the time, place, and manner of AT&T Arkansas' use and occupation of the City's ROW. E. City believes that the provision of IP-enabled Video Services by AT&T Arkansas is beyond the scope of Ark. Code Ann. § 23-17-101 and is subject to the City's cable television franchising authority. F. Both Parties agree that the deployment of the IP Network and the provision of IP-enabled Video Services should not be delayed by litigation to establish the scope of Ark. Code Ann. § 23-17-101 or the application of the City's franchise ordinance to IP enabled Video Services. G. City and AT&T Arkansas further agree that litigation to resolve this issue would be complex and protracted, and that it is in the best interests of both Parties and the residents of the City to reach a compromise of each other's positions and claims. NOW, THEREFORE, in consideration of and reliance upon the respective representations, promises, concessions, terms and conditions contained herein, City and AT&T Arkansas agree as follows: 1. Term. The term of this Agreement shall commence on the Effective Date of this Agreement through the end of 2009. The term may be extended upon mutual agreement of the Parties. 2. Change of Law. The Parties agree to consult in the event that after the Effective Date, any court, agency, commission, legislative body, or other authority of competent jurisdiction issues a finding that limits the validity or enforceability of this Agreement, in whole or in part. Should the finding be final, non-appealable and binding upon either City or AT&T, this Agreement shall be deemed modified or limited to the extent necessary to address the subject of the finding unless either party, within thirty (30) days of receipt of the ruling, provides written notice to the other party of election to terminate, in which case this Agreement shall terminate within six (6) months or such earlier period as the parties mutually may agree. Where the effect of a finding is a modification, the parties shall enter into good faith negotiations to modify this Agreement in the manner which best effectuates its overall purposes and the intentions of the parties. Failure to reach a mutually satisfactory modification within ninety (90) days of the commencement of such efforts shall entitle either party to terminate the Agreement on the provision of thirty (30) days' written notice. 3. Compensation to City. During the term of this Agreement, AT&T Arkansas shall pay to the City a fee of up to 4% of the gross revenues from subscription fees collected from each subscriber to AT&T Arkansas' IP-enabled Video Services product delivered over the IP Network in the City's rights of way; such product to be defined by AT&T Arkansas when it is offered to the public. The fee does not apply to non-video revenues or the non-video revenues of a bundled product containing video and non-video offerings. The fee will be forwarded to the City quarterly on the last of each quarter. 4. Public, Educational and Governmental Programming. To the extent economically and technically feasible, AT&T Arkansas shall provide some form of access for the City's noncommercial, public, education and governmental ("PEG") programming through AT&T Arkansas' IP-enabled Video Services. City may be required to support a change in or addition to current City technology now in use for PEG programming to make it compatible with AT&T Arkansas' IP-enabled video technology. 5. Emergency Message. AT&T Arkansas shall carry all Federal, State and Local alerts provided over the Federal Emergency Alert System through AT&T's IP-ernabled Video Services in the event of a public safety emergency, which at a minimum will include the concurrent rebroadcast of local broadcast channels. 6. Customer Service. AT&T Arkansas will offer IP-enabled Video Services and provide customer service consistent with the requirements of 47 C.F.R. Section 76.309(c). AT&T Arkansas will respond to complaints and outages in a diligent fashion. AT&T Arkansas shall not refuse to render IP-enabled Video Services based solely upon the income or minority status of any resident or group of residents. 7. Service Area. This Agreement shall apply to AT&T's service area within the municipal boundaries of Lowell as they exist upon the date of execution of this agreement and may hereafter be extended. AT&T shall make video programming available, subject to technology or other economic feasibility, to all residential units within the service area, by use of IP-based video technology or other alternative video programming technology. 8. Obligations of City. During the term of this Agreement City will not attempt to nor subject the provision of AT&T Arkansas' IP-enabled Video Services over the IP Network to regulation under any cable television franchise ordinance or similar ordinance. In addition: (a) City agrees to subject the construction and installation of the IP Network to the same process and review as it subjects the installation and construction of AT&T Arkansas' existing telecommunications infrastructure. (b) City agrees not to unreasonably block, restrict, or limit the construction and installation of the IP Network. (c) City agrees to process any and all applicable permits for the installation, construction, maintenance, repair, removal, and other activities associated with the IP Network in a timely and prompt manner. 9. Indemnification. (a) AT&T Arkansas agrees to indemnify, defend, and hold harmless City, its officers, agents, and employees, from and against any liability for damages and for any liability or claims resulting from tangible property damage or bodily injury (including accidental death), to the extent proximately caused by AT&T Arkansas' negligent construction, operation, or maintenance of its IP Network, provided that City shall give AT&T Arkansas written notice of its obligation to indemnify City within ten (10) days of receipt of a claim or action pursuant to this subsection. Notwithstanding the foregoing, AT&T Arkansas shall not indemnify City for any damages, liability or claims resulting from the negligence or willful misconduct of City, its officers, agents, employees, attorneys, consultants, independent contractors or third parties or for any activity or function conducted by any person or entity other than AT&T Arkansas in connection with PEG programming. (b) With respect to AT&T Arkansas' indemnity obligations set forth above, AT&T Arkansas shall provide the defense of any claims brought against City by selecting counsel of AT&T Arkansas' choice to defend the claim, subject to the consent of City, which shall not be unreasonably withheld. Nothing herein shall be deemed to prevent City from cooperating with AT&T Arkansas and participating in the defense of any litigation by its own counsel at its own cost and expense, provided, however, that after consultation with City, AT&T Arkansas shall have the right to defend, settle or compromise any claim or action arising hereunder, and AT&T Arkansas shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the terms of any such settlement do not include the release of City and City does not consent to the terms of any such settlement or compromise, AT&T Arkansas shall not settle the claim or action, but its obligation to indemnify City shall in no event exceed the amount of such settlement. (c) City shall hold AT&T Arkansas harmless and shall be responsible for damages, liability or claims resulting from the negligence or willful misconduct of City. (d) City shall be responsible for its own acts of negligence or willful misconduct, or breaches of obligation committed by City for which City is legally responsible, subject to any and all defenses and limitations of liability provided by law. AT&T Arkansas shall not be required to indemnify City for acts of City which constitute willful misconduct or negligence on the part of City, its officers, employees, agents, attorneys, consultants, independent contractors or third parties. 10. Breach of Agreement. Should either party claim that a breach of any part of this Agreement has occurred, that party will provide prompt written notice to the other, specifying the nature of the breach; and upon receipt the other party shall cure such breach within 60 days. 11. Dispute Resolution. Except as otherwise provided in this Agreement, the Parties shall make diligent good faith efforts to resolve all issues and disputes that arise in the administration of this Agreement through discussions between designated representatives of the Parties, and use of a mediator when such discussions have failed. 12. Notices. Any notice to be given under this Agreement shall be in writing and may be delivered to either personally, by facsimile or by certified or registered mail with postage prepaid and return receipt requested, addressed as follows: If to City:
City of Lowell, Arkansas
If to AT&T Arkansas:
AT&T Arkansas
13. Modification. This Agreement may be amended or modified only by a written instrument executed by both Parties. 14. Assignment. AT&T Arkansas may not assign or transfer this Agreement or any interest therein without the prior consent of City except to any affiliate of AT&T Arkansas. 15. Entire Agreement. This Agreement embodies the entire agreement and understanding of City and AT&T Arkansas with respect to AT&T Arkansas' use of the City ROW in connection with the offering and provision of IP-enabled services including IP-enabled Video Services within the City using facilities constructed and placed within the City ROW. As such it merges and supersedes all prior verbal agreements, understandings and representations by either party on the matters set forth herein. 16. Waiver. Failure on the part of either Party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision. 17. Miscellaneous. (a) AT&T Arkansas and City each hereby warrants that it has the requisite power and authority to enter into this Agreement and to perform according to the terms hereof. (b) The headings used in this Agreement are inserted for convenience or reference only and are not intended to define, limit or affect the interpretation of any term or provision hereof. The singular shall include the plural; the masculine gender shall include the feminine and neutral gender. (c) AT&T Arkansas and City shall cooperate fully with one another in the execution of any and all other documents and in the completion of any additional actions including, without limitation, the processing of permits that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement. (d) Nothing contained in this Agreement is intended or shall be construed as creating or conferring any rights, benefits or remedies upon, or creating any obligations of the Parties hereto toward any person or entity not a party to this Agreement, unless otherwise expressly set forth herein. (e) Nothing contained in this Agreement is intended or shall be construed as amending, modifying or otherwise affecting any other agreements, authorizations or memoranda which City and AT&T Arkansas have now. Further, nothing contained in this Agreement is meant to change, limit, modify, restrict or limit any current rights or jurisdiction that either City or other governmental entities currently have nor is this Agreement intended to change, limit, modify, restrict or limit any rights AT&T Arkansas currently has under existing federal and state law and under existing City ordinances and existing construction permits issued by City. 18. Binding Effect. This Agreement shall be binding upon and for the benefit of each of the Parties and their respective past and present principals, managers, City Council members, offices, directors, shareholders, agents, employees, attorneys, successors and assigns and any parents, subsidiaries or affiliated corporations or entities, as applicable. 19. Counterpart Execution. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. Signature pages may be transmitted by facsimile and any signature transmitted by facsimile will be given the same force and effect as an original signature. IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement and made the same effective as of August 21, 2007 ("Effective date"). |
|
(Ord. No. 801, 8-21-2007) |