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HomeMy WebLinkAbout085-06 RESOLUTION NO. 85-2006 APPROVING A PUBLIC BENEFITS AGREEMENT WITH AT&T CALIFORNIA (PROJECT LIGHTSPEED) WHEREAS, AT&T California desires to upgrade its existing infrastructure and add new equipment to upgrade their telephone and internet services and to offer Internet Protocol Television within Danville, all of which is part of AT&T'S' Project Lightspeed; and WHEREAS, the Town of Danville wishes to allow AT&T to proceed with Project Lightspeed in order to provide additional choice and competition for Town residents selecting cable or video services; and WHEREAS, the Town has concluded that there is no definitive legal authority in California determining whether Project Lightspeed is subject to franchising requirements under federal or state law; and WHEREAS, in order to allow Project Lightspeed to move forward, the Town and AT&T have determined that it is appropriate to enter into a Public Benefits Agreement, allowing AT&T to use the Town's right-of-way while allowing the Town to collect fees for use of the right-of-way and fees for PEG and! or I-Net uses which will directly benefit the residents of the Town; now, therefore, be it RESOLVED, that the Danville Town Council hereby approves a Public Benefits Agreement with AT&T California (Project Lightspeed) and authorizes the Town Manager to execute the agreement in substantially the form attached to this resolution. APPROVED by the Danville Town Council at a regular meeting on July 5, 2006, by the following vote: AYES: NOES: ABSTAINED: ABSENT: Stepper, Andersen, Arnerich, Doyle None Shimansky Non"e .. ~d~ ~(3_. . APPROVED AS TO FORM: ATTEST: CITY ATTORNEY 6/23/2006 DRAFf PUBLIC BENEFITS AGREEMENT THIS AGREEMENT ("Agreement") dated July -' 2006 ("Effective Date") is made by and between Pacific Bell Telephone Company, a California corporation doing business as AT&T California ("AT&T California" or "Company") and the Town of Danville, California, a general law city. ("Town"). AT&T California and Town shall sometimes be referred to separately as a "Party," and collectively as the "Parties." RECITALS A. AT&T California is an established provider of telecommunications services operating under a state franchise, and intends to provide enhanced broadband services including IP-enabled video services and programming to Town residents over its network facilities. B. AT&T California asserts that in California the franchise it has from the state pursuant to Section 7901 of the Public Utilities Code and its authority under federal law encompasses the network enhancements that AT&T California contemplates within the Town and that AT&T California may offer broadband services, including IP-enabled video services and programming, within Town without legal requirement for a franchise or license from Town; and C. AT&T California believes there is no legal authority by which it or its new broadband services to be provided over its network may be subject to a local franchise. The Town acknowledges and believes in good faith that the law is not established that AT&T California, in offering these new broadband services over its network, is subject to a local franchise requirement; and D. AT&T California believes, and Town concurs, there is no definitive authority that AT&T California, by offering IP-enabled video services and programming, over its existing and enhanced network in Town, is a "Cable Operator" as defined in Title VI of the Communications Act of 1934, as amended ("Title VI"), and, correspondingly, AT&T California believes, and Town concurs, there is no definitive authority that the network facilities and services to be offered by AT&T California over such network facilities constitute a "Cable System" or "Cable Service" under Title VI; and E. AT&T California believes, and Town concurs, that there is no definitive authority that use by AT&T California of its network to provide IP-enabled video services and programming, among other services, constitutes construction of a "community antenna television system" as set forth in Section 53066 et seq. of the California Government Code; and F. The Parties, without determining whether the system or services that AT&T California will use in Town to provide IP-enabled services are subject to Title VI or are subject to Section 53066, have entered into the Public Benefits Agreement which the - 1 - ATTACHMENT B 6/23/2006 DRAFT Parties, in good faith, intend to be binding as a matter of contract between them and believe is in accord with such obligations as might be imposed by Title VI and the state law of California, if and to the extent such are applicable; and G. Both Parties agree that the deployment ofthe IP Based Network and the provision of IP-enabled Video Services should not be delayed by possible litigation to establish the scope of Section 7901 or the application of the Town's franchise ordinance to IP-enabled Video Services; and, H. Town and AT&T California 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 Town to reach a compromise of each other's positions and claims; and, I. AT&T California intends to provide video service on a non-discriminatory basis, and without regard to the income or minority status of any resident or group of residents residing in the AT&T California Service Area. AT&T California intends to make video programming available, subject to technology or other economic infeasibility, to residential units within the general Town boundaries, by use of IP Video or other alternative video programming technology; and J. AT&T California recognizes the right of the Town to impose reasonable conditions relative to time, place and manner ofthe construction, operation and maintenance of the IP Network in the Town's ROW. NOW, THEREFORE, in consideration of and reliance upon the respective representations, promises, concessions, terms and conditions contained herein, Town and AT&T California agree as follows. 1. Term. The term of this Agreement shall be from the Effective Date of this Agreement through December 31, 2011. The term may be extended upon mutual agreement of the Parties. At least six months prior to the end of the term of the Agreement, the Parties shall consult concerning the scheduled termination of the Agreement and the actions, if any, required prior to or upon expiration of this Agreement related to AT&T California's continued provision ofIP Video services within the Town after expiration of this Agreement. a. 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 Town or Company, 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 -2- 6/23/2006 DRAFT 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. b. Either Party may request to negotiate a modification to this Agreement that shall take effect immediately after the twenty-fourth (24th) month of the term ofthis Agreement if at any time any action by a court, agency, commission, legislative body, or other authority of competent jurisdiction repeals, modifies or clarifies state or federal law with respect to the rights, duties, privileges, exemptions, immunities and or authority of either Town or AT&T California as it existed prior to the Effective Date, in whole or in part, relative to the provision of the IP-enabled Video Services product as the product is defined by AT&T which is the subject of this Agreement. In the event a Party requests modification to the Agreement as provided in this paragraph, should the Parties be unable to reach a mutually satisfactory modification within ninety (90) days of the commencement of such efforts, either Party may terminate the Agreement on the provision of thirty (30) days' written notice. c. Where any court, agency, commission, legislative body, or other authority of competent jurisdiction issues a finding or takes action described in paragraphs l.a. or l.b. above, and such finding is not final and is subject to appeal, during the interval of such appeal the Parties may agree mutually to acts taken in mitigation oflegal or administrative risks as may be presented should the finding or action be sustained upon appeal. Should the finding or action subsequently be repealed, reversed, amended or changed, Town and Company shall act to restore this Agreement to operation as preceded the finding or action, in a manner consistent with such repeal, reversal, amendment or change and Company may discontinue any or all ofthe IP-Enabled Services and terminate this Agreement in the event that it is subject to a ruling of a court or agency of competent jurisdiction that directs or requires such result or that renders the continued provision of such Services commercially impracticable as an economic matter, notwithstanding the absence of a final judgment, in which case Company shall provide not less than ten (10) days' prior written notice to Town before discontinuing such Services. Where Services have been terminated under such circumstances, Company shall have no obligation to restore Services or revive this Agreement in the event the finding later is reversed, overturned, modified or changed. 2. Compensation to Town. During the term of this Agreement, AT&T California shall pay to Town a fee of up to 5% ofthe gross revenues from subscription fees collected from each subscriber to AT&T California's IP-enabled Video Services product delivered over the IP Network in the Town's rights of way; PROVIDED, however, that in no event shall the percentage paid by AT&T California exceed the percentage of gross revenue paid by the Town's incumbent cable provider as its franchise fee to the Town. Gross revenue includes a pro rata portion of all revenue derived by the Company pursuant to compensation arrangements for advertising and Home Shopping Network sales derived from the operation of the Company's network to provide IP- - 3 - 6/23/2006 DRAFT enabled Video Services within the Town. Advertising commissions paid to third parties (excluding any refunds, rebates, or discounts the Company may make to advertisers) shall not be netted against advertising revenue included in gross revenue. The allocation shall be based on the number of subscribers in the Town divided by the total number of subscribers in relation to the relevant region or national compensation arrangement. The fee does not apply to revenues of products and services other than the IP-Enabled Video Services product, or the revenues of a bundled product containing other offerings with the IP-Enabled Video Services product. The fee will be identified and passed through on any subscriber bill by AT&T California, and all such fees collected will be forwarded to Town quarterly on the last of each quarter after collection. 3. Educational and Governmental Programming. AT&T California shall provide access for the Town's noncommercial, education and governmental ("EG") programming through AT&T California's IP-enabled Video Services (such IP-enabled Video Services product to be defined by AT&T California when it is offered to the public). Town may be required to support a change in or addition to current Town technology now in use for EG programming to make it compatible with AT&T California's IP enabled video technology. AT&T California's obligation herein will begin when its IP Video subscribers located within the municipal boundaries ofthe Town reach 1,000 subscribers. a. AT&T California will provide quarterly, within 30 days after the close of the quarter, to Town sixty cents ($0.60) per subscriber per month of AT&T California's' IP-enabled Video Service within the Town; PROVIDED, however, that in no event shall the percentage paid by AT&T California exceed the amount of PEG support, calculated on a per subscriber basis per month, by the Town's incumbent cable provider. AT&T California shall have the right to charge its subscribers for this fee. 4. Renegotiation of Paragraphs 2 & 3. In the event that Town enters into a agreement with its incumbent cable provider after the Effective Date, Town and AT&T California agree to consult and, if necessary, negotiate in good faith any modifications to Paragraphs 2 and 3, above, reasonably requested by either Party in light ofthe new agreement. 5. Service Standards. AT&T California will comply with California Government Code sections 53055,53055.1,53055.2 and 53088.2. For the avoidance of any doubt, Town shall not adopt or seek to enforce any additional or different customer service or other performance standards under ~~ 53055.3, 53088.2(q), (r), (s), or under any other authority or provision oflaw. A verified and continuing pattern of noncompliance with the customer service standards set forth above shall constitute a material breach of this Agreement. 6. Service Area. a. The Company will not deny access to its IP-enabled Video Services within the municipal boundaries of the Town because of the income or minority status of the residents within the municipal boundaries of the Town. The Company may, subject to - 4- 6/23/2006 DRAFT the terms herein, satisfy its nondiscrimination and service area obligations through the use of direct-to-home satellite service or another alternative technology that provides comparable content, service, and functionality. b. In addition to the termination rights set forth above, the Company shall have the right to terminate this Agreement and all obligations hereunder upon ninety (90) days notice to the Town, if (a) the Company concludes in its reasonable business judgment that IP Video Service in the Town is no longer technically, economically or financially consistent with the Company's business objectives; (b) Title VI or California Government Code Section 53066 et seq. obligations, or any similar obligations not expressly provided for by this Agreement, are imposed on the Company; or ( c) it becomes clear that the Company must offer or provide IP Video Service pursuant to a local franchise (cable or otherwise) and/or franchise-like requirements or other local authorization. 7. Emergency Message. AT&T California shall provide an appropriate message through AT&T California's IP-enabled Video Services in order to capture and rebroadcast any Contra Costa emergency broadcast messages, that originate at the Contra Costa County Emergency Network, over the AT&T California IP based Video facilities to residents in the AT&T California IP Video within the Town. 8. Obligations of Town. During the term of this Agreement, Town will not attempt to nor subject the provision of AT&T California's IP-enabled Video Services over the IP Network to regulation under its cable television franchise ordinance or similar ordinance unless authorized by Federal, State law or administrative regulation. In addition: a. Town agrees to subject the construction and installation of the IP Network to the process and review as set forth in Chapter 12, Article I (Encroachments) of the Danville Municipal Code, the utility trenching standards adopted by Town Council Resolution 61-99 and to impose such conditions of approval as are appropriate and reasonable to ensure compliance with these local standards. b. Town agrees not to unreasonably block, restrict, or limit the construction and installation of the IP Network. c. Town agrees to process any and all applicable permits for the installation, construction, maintenance, repair, removal, and other activities associated with the IP Video upgrades in a timely manner. 9. Indemnification. a. AT&T California agrees to indemnify, defend, and hold harmless Town, 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 California's construction, operation, or maintenance of its IP Network, provided that Town shall give - 5 - 6/23/2006 DRAFf AT&T California written notice of its obligation to indemnify Town within ten (10) days of receipt of a claim or action pursuant to this subsection. Town agrees to cooperate with AT&T California to assist in the defense against any such action. Notwithstanding the foregoing, AT&T California shall not indemnify Town for any damages, liability, or claims resulting from the negligence or willful misconduct of Town, its officers, agents, employees, attorneys, consultants, independent contractors or third parties or for any activity or programming. b. AT&T California agrees to indemnify, defend and hold harmless Town, its officers, agents and employees in accordance with the provisions of Appendix A, which is made a part of this agreement. c. With respect to AT&T California's indemnity obligations set forth above, AT&T California shall provide the defense of any claims brought against Town by selecting counsel of AT&T California's choice to defend the claim, subject to the consent of Town, which shall not be unreasonably withheld. Nothing herein shall be deemed to prevent Town from cooperating with AT&T California and participating in the defense of any litigation by its own counsel at its own cost and expense, provided, however, that after consultation with Town, AT&T California shall have the right to defend, settle or compromise any claim or action arising hereunder, and AT&T California 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 Town and Town does not consent to the terms of any such settlement or compromise, AT&T California shall not settle the claim or action, but its obligation to indemnify Town shall in no event exceed the amount of such settlement. d. Town shall hold AT&T California harmless and shall be responsible for damages, liability or claims resulting from the negligence or willful misconduct of Town. e. Town shall be responsible for its own acts of negligence or willful misconduct, or breaches of obligation committed by Town for which Town is legally responsible, subject to any and all defenses and limitations ofliability provided by law. AT&T California shall not be required to indemnify Town for acts of Town which constitute willful misconduct or negligence on the part of Town, 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 30 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. In the event of no resolution, the Parties agree to submit such dispute to binding Arbitration -6- 6/23/2006 DRAFI' in San Francisco, California before a single arbitrator in accordance with the Arbitration Procedures of the American Arbitration Association, and judgment of such Arbitrator upon such rendered decision may be entered in any court of competent jurisdiction thereof. Each Party shall bear its own costs of arbitration, including attorney fees. 12. Insurance. Upon the effective date of renewal AT&T California shall, at its sole expense, take out, and maintain during the life of this Agreement and furnish to the Town, a policy of liability insurance as required by the State of California for Workers' Compensation, and a policy of liability insurance that shall conform to the provisions of Section 12.2 of Ordinance No. 335. a. The amount of the liability insurance shall not be less than the following: Combined Single Limit Coverage applying to Bodily and Personal Injury and Property Damage: Two Million Dollars ($2,000,000) per occurrence. b. The Following endorsements shall be attached to the liability policy: (1) The policy shall cover on an "occurrence" basis, if reasonably available at comparable costs to "claims made" coverage, (2) The policy shall cover Personal Injury as well as Bodily Injury. (3) The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier's standard endorsement as to bodily injuries, personal injuries and property damage. (4) Broad Form property damage liability shall be afforded. (5) Town shall be named additional insured on the policy. (6) An endorsement shall be provided which states that the coverage is primary insurance and that no other insurance effected by the Town will be called upon to contribute to a loss under this coverage. (7) Standard form of cross-liability shall be afforded. (8) An endorsement stating that the policy shall not be cancelled without thirty (30) days notice of such cancellation given to Town. c. AT&T California shall submit to Town documentation of the required insurance including a certificate of insurance signed by the insurance agent and - 7 - 6/23/2006 DRAFf companies named, as well as all properly executed endorsements. Town will accept self- insurance in lieu of commercial insurance policies. AT&T California shall issue Town a statement of self-insurance for general liability (including bodily injury), Workers Compensation, and automobile liability. d. AT&T California herby indemnifies Town for any damage resulting to it from failure of either AT&T California or any subcontractor to comply with this paragraph. 13. 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 Town: Town ofDanville Attn: Town Manager 510 La Gonda Way Danville, California 94526 If to AT&T California: AT&T California Attn. Ken McNeely President AT&T California 525 Market Street, Rm. 1901 San Francisco, California 94101 With a copy to: Attn: William R. Drexel Senior Vice President, General Counsel & Secretary ATT West 2600 Camino Ramon 4CS 1 00 San Ramon, California 94583 14. Modification. This Agreement may be amended or modified only by a written instrument executed by both Parties. 15. Assignment. AT&T California may not assign or transfer this Agreement or any interest therein, without the prior consent of Town, which consent shall not be unreasonably withheld; except that AT&T California may assign or transfer this Agreement or any interest therein to an affiliated parent or subsidiary entity of AT&T California or other direct or indirect majority owned subsidiary of AT&T Inc. upon written notice and without prior consent of the Town. 16. Entire Agreement. This Agreement constitutes the entire agreement between Town and AT&T California with respect to the subject matter contained herein and supersedes all prior or contemporaneous discussions, agreements, and/or representations of or between Town and AT&T regarding the subject matter hereof. - 8 - 6/23/2006 DRAFf 17. 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. 18. Miscellaneous. a. AT&T California and Town 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 California and Town 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. 19. 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, Town Council members, offices, directors, shareholders, agents, employees, attorneys, successors and assigns and any parents, subsidiaries or affiliated corporations or entities, as applicable. 20. 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 the Effective Date. AT&T CALIFORNIA -9- By: Name: Title: 6/23/2006 DRAFT TOWN OF DANVILLE By: Name: Title: - 10- /"- ..-'- ~-~-; .: ' ", 0'.;:_ ; -. ~..,',-- ,,-~,' .' : i" . ;Cii;; .. .. ...)1i!4 ,C7i~')~' ATTACHMENT C