AT&T/DOL/PEG Agreement lift
- PEG Content Transmission Agreement between AT&T, Indiana and the City of
Carmel, Indiana
Whereas, on August 30, 2006, pursuant to IC 8-1-34, Indiana Bell Telephone
Company, Incorporated, an Indiana corporation doing business as AT&T Indiana
("AT&T Indiana"). was granted a Certificate of Franchise Authorization ("CFA") from
the Indiana Utility Regulatory Commission ("Commission") in Cause No. 43094 VSP 01
to provide video service in certain portions of Indiana including to residents within the
City of Cannel ("the City"), collectively referred to as ("the Parties"); and
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Whereas, AT&T Indiana has upgraded its existing telecommunications network
to, among other things, provide a switched, two-way, point-to-point and interactive video
service("U-verse TV"); and
Whereas. the City agrees to provide its existing noncommercial, educational and
governmental ("PEG") content to AT&T Indiana for transmission on AT&T Indiana's U-
verse TV service; and
Whereas, AT&T Indiana agrees to pay certain nonrecurring and recurring costs
associated with the provision of the City's existing government PEG content to AT&T
Indiana; and
Whereas. AT&T Indiana agrees to transmit content from the City's one existing
government PEG channel through AT&T's U-verse TV service using AT&T's Internet
Sourced PEG solution pursuant to the terms described in this agreement (the
"Agreement").
Now Therefore, in consideration of the promises and undertakings set forth
herein, and other good and valuable consideration, the receipt and the adequacy of which
is hereby acknowledged, the Parties agree as follows:
1. Definitions. Words defined in IC 8-1-34 or by applicable State or Federal law
shall be defined in accordance with such law and hereby incorporated within this
Agreement. Words otherwise not defined shall be given their normal and customary
meaning.
In addition. the following definitions shall apply:
Agreement: This PEG Content Transmission Agreement and any amendments,
exhibits or appendices hereto.
AT&T Indiana: an Indiana corporation doing business as AT&T Indiana, and its
lawful and permitted successors, assigns, and transferees, however designated.
CFA: Certificate of Franchise Authorization approved by the Indiana Utility
Regulatory Commission in Cause No. 43094 VSP 01, August 30, 2006 and any approved
amendments or changes thereto.
System: For purposes of this Agreement shall mean all physical facilities used by
AT&T Indiana for the delivery of U-verse TV services within the corporate limits of the
City provided some portion of the facilities are located in the public rights-of-way within
the City.
II-verse TV service ("Service"): For purposes of this Agreement shall mean
video programming delivered over AT&T Indiana's System within the City. U-verse TV
service does not include the following;
I. Video programming delivered by a commercial mobile service provider
defined in 47 USC § 332(d), so long as the obligations under this Agreement are
not transferred to a mobile service affiliate of AT&T Indiana.
2. Video programming provided as part of and via an Internet access
service that enables users to access content, information, electronic mail, or any
other service offered over the public Internet.
Video programming: For purposes of this Agreement shall mean programming
provided by, or generally considered comparable to programming provided by, a
television broadcast station.
2. Effective Date. This Agreement shall become effective on and after the later of
the dates listed in the signature blocks below.
3. Term. The term of this Agreement shall be five (5) years from the Effective Date
of this Agreement. The term may be extended upon mutual agreement of the Parties.
4. 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, elected
officials, offices, directors, shareholders, agents, employees, attorneys, successors and
assigns and any parents, subsidiaries or affiliated corporations or entities, as applicable.
5. PEG Transmission. Successful transmission of the City's PEG content over
AT&T's Internet Sourced PEG solution requires that the City as a content provider and
AT&T Indiana as a content transmission provider work together closely. Therefore, the
Parties agree that they will meet and exchange information in good faith, as necessary, to
effectuate the Agreement.
a. AT&T Indiana. Consistent with IC 8-1-34-25(c) and 8-1-34-27(a). AT&T
Indiana shall provide capacity on its video system for the City's existing noncommercial,
education and governmental ("PEG") channel, and AT&T Indiana shall retransmit the
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existing PEG channel to its U-verse TV subscribers in the Indianapolis Designated
Market Area.
Subject to reasonable economic and technical feasibility considerations.
additional PEG content may be provided by the City and transmitted by AT&T Indiana
pursuant to the terms of this Agreement upon the mutual agreement of the Parties or
pursuant to a final non-appealable order issued by the Commission pursuant IC 8-1-34-
26.5.
b. City of Carmel. Consistent with IC 8-1-34-27(b), the City shall ensure that all
content from its PEG channel is submitted by the City to AT&T Indiana in a manner or
form that is capable of being accepted and transmitted via AT&T's Internet Sourced PEG
solution; does not require additional alteration or change in the content by AT&T
Indiana; and is compatible with the technology or protocol used by AT&T Indiana to
deliver PEG content. As further discussed in Paragraph 6, the Parties shall identify the
equipment necessary to ensure that the City provides PEG content to AT&T Indiana in a
manner or form capable of being accepted by AT&T Indiana.
6. PEG Conversion and Transmission Costs. The Panics agree that the in-kind
payments provided in this Agreement, which consist of equipment installation and
equipment maintenance, is in full and complete satisfaction of AT&T Indiana's PEG-
related financial support to the City under IC 8-1-34, to the extent that section is
applicable.
a. Nonrecurring Costs. AT&T Indiana agrees to be solely responsible for all
nonrecurring costs associated with the purchase and upgrade of equipment, software, and
installation of equipment as described below and subject to the provisions of Section 6,
Subsection (c), below. Based upon a site inspection. the Parties agree that the equipment
listed on Attachment I hereto is necessary for the City to deliver and submit its PEG
content on its one existing PEG government channel to AT&T Indiana in the manner
required by IC 8-1-34-27(h), at an agreed upon demarcation point for transmission by
AT&T Indiana on its Internet Sourced PEG solution. The itemized list of equipment
provided as Attachment 1 hereto and all nonrecurring costs associated with the
installation of such list of equipment, shall be the sole responsibility of AT&T. AT&T
Indiana agrees to be solely responsible for the maintenance, future upgrades, and
maintenance expenses associated with the equipment listed in Attachment I hereto, in
order to ensure the highest quality of carriage available as described in Section 10, below.
The Parties agree to meet to discuss and establish terms for access to the City's location
for the purpose of installing and maintaining the equipment installed pursuant to
paragraph 6(a).
b. Recurring Costs. AT&T Indiana agrees to be solely responsible for the
transport of the content from the City's existing PEG channel from an agreed upon_
demarcation point at City Hall. One Civic Square to a point determined by AT&T
Indiana to be necessary for transmission by AT&T Indiana on its Internet Sourced PEG
solution. The Parties agree that AT&T shall not charge the City any recurring costs
tinder this Agreement.
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c. Annual Meeting. AT&T Indiana shall participate at the written request of the
City in an annual meeting to be held each calendar year, or more frequently if requested
by the City, with representatives of the City to discuss any matters related to Parties'
respective obligations under this Agreement. One of the issues to be discussed is the
establishment of an upgrade of the hardware and software identified in Attachment. Any
such upgrade would only be completed at the mutual agreement of the Parties.
7. Location of Equipment. Any equipment necessary for the City to deliver its PEG
content to AT&T Indiana for transmission on AT&T Indiana's Internet Sourced PEG
solution shall be placed at a location at City Hall, One Civic Square, Carmel, Indiana, or
a location that is mutually acceptable to the Panics after conducting a site inspection (the
"Premises").
8. Editorial Control. Except as expressly permitted by IC 8-1-34 and federal law,
AT&T Indiana shall not exercise any editorial control over the content of programming
on the designated public, educational and governmental access channels.
9. Indemnification:
a. PEG access content producers and users. The City shall secure from all
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local content producers and users of any of the PEG access facilities or channels an
agreement in writing to hold harmless AT&T Indiana, the City, and any responsible
educational institution, from any and all liability or other injury (including the reasonable
cost of defending claims or litigations) arising from or in connection with failure to
comply with applicable federal laws, rules, regulations or other requirements of local,
state or federal authorities; claims of libel, slander, invasion of privacy, or the
infringement of common law or statutory copyright; unauthorized use of any trademark,
trade name or service mark; for breach of contractual or other obligations owing to third
parties by AT&T Indiana or the City; and for any other injury or damage in law or equity,
which claims result from the use of a PEG access facility or channel.
b. In General. AT&T shall indemnify and hold harmless City and its officers,
officials, employees and agents from all losses, liabilities, claims, judgments and liens,
including, but not limited to, all damages, costs, expenses and attorney fees arising out of
any intentional or negligent act or omission of AT&T and/or any of its employees, agents
or contractors in the performance of this Agreement. Further. the City shall indemnify
and hold harmless AT&T and its officers, employees and agents from all losses,
liabilities, claims, judgments and liens, including, but not limited to, all damages, costs,
expenses and attorney fees arising out of any intentional or negligent act or omission of
AT&T and/or any of its employees, agents or contractors in the performance of this
Agreement. These indemnification obligations shall survive the termination of this
Agreement.
10. Visual Quality. Subject to the Change of Law or Circumstances provision set
forth in paragraph 19, AT&T Indiana will employ best efforts to transmit PEG content
over its Internet Sourced PEG solution in a manner that provides the subscriber with PEG
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content of a comparable visual quality from the viewing perspective of the subscriber, to
the visual quality of the same PEG content as currently displayed on PEG channels
provided by an incumbent cable television service provider within the City, subject to
reasonable economic and technical feasibility considerations.
11. Precedent. The Parties stipulate and agree that this Agreement shall not he
construed or recited as precedent by any person or deemed an admission by any party in
any other proceeding except as necessary to enforce its terms before the Commission or
• any court of competent jurisdiction on these particular issues and in this particular matter.
This Agreement is solely the result of compromise in the negotiating process and, as
provided herein, is without prejudice to and shall not constitute a waiver of any position
that any of the Parties may take with respect to any or all of the items resolved herein in
any future regulatory or other proceeding.
12. Force Majeure. Neither Party shall he deemed in default of provisions of this
Agreement or Applicable provisions of Indiana law or Commission regulations where
performance was rendered impossible by reasons out of either Party's control. which
shall include but not be limited to, strikes. acts of God, acts of public enemies, orders of
any kind of a government of the United States of America or of the State or any of their
respective departments, agencies. political subdivisions, however designated, riots.
epidemics. landslides, lightning, earthquakes, fires, hurricanes; tornadoes, volcanic
activity, storms, floods, washouts, droughts, civil disturbances, explosions, partial or
entire failure of utilities or any other cause or event not reasonably within the control of
either Party. If either Party is unable in whole or in part to carry out its obligations
hereunder, said Party shall not be deemed to be in violation or default during the
continuance or impact of such inability.
13. Governing Law. This Agreement shall he governed in all respects by the laws of
the State of Indiana, except for its conflict of laws provisions.
14. Notices. Unless otherwise expressly stated herein, notices required under this
Agreement shall be mailed first class, postage prepaid, to the addresses below. Each
party may change its designee by providing written notice to the other party, but each
party may only designate one entity to receive notice.
Notice to AT&T Indiana shall be mailed to:
William Soards. President
AT&T Indiana
240 N. Meridian
Indianapolis, IN 46204
With a copy sent to:
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Brian D. Robinson
AT&T Indiana
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240 N. Meridian, Room 1830
Indianapolis, IN'46204
Notice to the City of Carmel shall be mailed to:
Douglas C. Haney, City Attorney
City of Carmel
One Civic Square •
Cannel, Indiana 46032
15. Entire Agreement. This Agreement sets forth the entire understanding of the
Parties and supersedes any and all prior agreements, arrangements, representations or
understandings relating to the subject matter hereof. No subsequent agreement between
the City and AT&T Indiana concerning the subject matter of this Agreement, and no
modification of this Agreement, shall be effective or binding unless it is made in writing
and signed by both Parties.
16. Modification. This Agreement may be amended or modified only by a written
instrument executed by both Parties.
17. Breach of Agreement. Should either Party: (a) repudiate, breach or default under
any of the terms or conditions of this Agreement; (b) fail to provide the System or
Service as specified herein; (c) fail to make progress so as to endanger timely and proper
provision of the System or Service, and does not correct such failure to breach within five
(5) business days (or such shorter period of time as is commercially reasonable under the
circumstances) after receipt of notice specifying such failure or breach; or (d) become
insolvent, placed into receivership, make a general assignment for the benefit of creditors
or dissolve, each such event constituting an event of default hereunder, the complaining
Party shall have the right to (1) terminate all or any parts of this Agreement. without
liability to the other Party; and (2) exercise all other rights and remedies available to them
at law and/or in equity.
18. TERMINATION PROVISIONS:
- Notwithstanding the remedies stated in Paragraph 17 and/or any other provisions of this
Agreement:
a. The obligation to-provide all or any portion of the Services under this
Agreement may be terminated by City or AT&T, without cause, upon one
hundred and twenty (120) day advanced written notice; and
b. The obligation to provide all or any portion of the Services under this
Agreement may he terminated by City, for cause, immediately upon AT&T's
receipt of City's "Notice to Cease Services."; and
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C. If AT&T breaches or terminates this Agreement, for whatever reason, the
Equipment mentioned in Paragraph 7 of this Agreement. and described in
Attachment 1 of this Agreement (the "Equipment"), shall, in the City's sole
discretion, either be abandoned on site and become the property of the City, or
removed at the sole cost of AT&T; and
d. In the event the System or any portion of the System becomes the subject of
redevelopment activities, or the Equipment requires removal of the equipment
to a different location at the request of the City. AT&T shall, upon forty-five
(45) days written notice from the City, relocate all of AT&T's Equipment, at
AT&T's sole cost and expense, to other City property reasonably acceptable
to AT&T and the City. AT&T shall only bear the cost of moving equipment at
the request of the City once every twenty-four(24) months. If AT&T requests
that the equipment be moved to a different mutually agreeable location,
AT&T will move the equipment at its sole cost and expense. This Agreement
will otherwise remain in full force and effect in accordance with its terms.
18. Dispute Resolution. Except as otherwise provided in this Agreement. the Panics
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. In the event of no resolution, the Parties agree to submit
such dispute to non-binding mediation. Each Party shall bear its own costs of mediation
including reasonable attorney fees.
19. Change of Law or Circumstances. In the event of a change in applicable law or
regulation that requires AT&T to transmit PEG content in the state of Indiana differently
than AT&T's PEG content is presently transmitted, AT&T agrees to transmit PEG
content to the City in the manner so specified by the changed law or regulation. Without
limiting the general application of the foregoing, and by way of example. AT&T shall, if
required by law or regulation, transmit the City's PEG content on a lower tier broadcast
channel so that the City's PEG content is not transmitted through a drop down menu on
Channel 99.
20. Miscellaneous.
a. AT&T Indiana and the 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.
h. 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 Indiana and the City shall cooperate fully with one another in the
execution of any and all other documents and in the completion of any additional actions
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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.
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.
CITY OF CARMEL, INDIANA INDIANA BELL TELEPHONE
by and through its Board of Public COMPANY, INCORPORATED, D/B/A
Works and Safety AT&T INDIANA
By: �. By: 4JJJ9Q
J ames Brainy d, Pre. ing f icer Bill Soards
Date: S / V
t { 1,3tt..lAM L. S.nb
C"/7Q-Ct Aczt Printed Name
Mary Ann Burke, Member
Date: IiiGS - tabli4th
f Title
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ilC
Lori Sil��al's t(13'1I(
on, Member Date: I
Date: 1/ 6 //V—
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A(TTTEST:
`Pc--Lc/It-Cr'lw
Diana Cordray, IAM . Clerk-Treasurer
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Attachment 1
PEG Content Transmission Agreement
City of Carmel
€DescrlptVendosPattNumber;' Oty; ;
Router,2821 Sec Bundle,Adv Sec CISCO2B21-SEC/K9 1
C2960 Ethernet Switch-24 Port,10/100 Catalyst Switch WS-C2960-24-S 1
2-Port 2nd Gen Multillex Trunk Voice/WAN Int.Card-T1/E1 VWIC2-2MFT-T1/E1 1
VC-1 Encoder-single channel device S3000/PN.4017683 1
9 Outlet Rk MNT Powet Distribution P1D915R 1
Patch Panel single encoder model BHFT-3BNC-2XLRFM
Labor Charge-Site Survey and Engineering& Prog Mgt Telamon 1
Labor Charge-Staging,Assembly 1-4 ENCODER Telamon 1
Delivery Charge to Location Telamon 1
Labor Charge- Deployment 1-4 ENCODER Telamon 1
Miscellaneous Material-Misc Telamon 1
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