ORD NO 38-2011 CITY OF VAN BUREN, ARKANSAS
ORDINANCE NO.?) 0 Q 2011
BE IT ENACTED BY THE CITY COUNCIL, FOR THE CITY OP VAN BUREN,
ARKANSAS, AN ORDINANCE TO BE ENTITLED:
AN ORDINANCE GRANTING THE CITY OF VAN BUREN,
ARKANSAS THE AUTHORIZATION TO ENTER INTO AN
AGREEMENT WITH SOUTHWESTERN BELL
TELEPHONE COMPANY D /B /A/ AT &T ARKANSAS
IN REGARDS TO VIDEO PROGRAMMING, DECLARING
AN EMERGENCY; AND FOR OTHER PURPOSES.
WHEREAS, as a telecommunications provider, Southwestern Bell Telephone Company, a
Missouri Corporation doing business as AT &T Arkansas "AT &T has
statewide authority underArk. 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 of
Van Buren, Arkansas, a municipal corporation ("City is permitted to impose
reasonable terns 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; and
WHEREAS, AT &T has informed the City that it 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; and
WHEREAS, the City maintains that the services that AT &T will provide in the City over its IP
Network are "Cable Services" as defined in 47 U.S.C. Section 522 (6) and are
subject to Title VI of the Communications Act of 1934, as amended "Title VI
and AT &T disagrees with this contention; and
WHEREAS, the Parties, without determining whether the system or services that AT &T will
use in the City to provide IP- Enabled Video Service are subject to Title VI, desire
to enter into an agreement, which the 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, Arkansas law, and the Ordinances of
the City, if and to the extent such are applicable; and
1904180vI
WHEREAS, both Parties agree that the deployment of the IP Network and the provision of IP-
Enabled Video Service is in the best interests of both Parties and of the residents
of the City. Therefore, both Parties agree that such deployment and provision of
service should not be delayed by possible litigation and that it is in the best
interests of both Parties to reach a compromise of each other's positions and
claims; and
WHEREAS, the Parties recognize and acknowledge that their positions differ regarding the
jurisdiction of the City to require AT &T to enter into an agreement before it may
occupy or use the public ROW to upgrade its existing network to provide video
services to the citizens of the City; however, the Parties voluntarily enter into an
IPTV Video Services Agreement to avoid possible litigation and consequent
delay.
NOW, THEREFORE, BE IT ORDAINED AND ENACTED BY THE CITY
COUNCIL OF THE CITY OF VAN BUREN, ARKANSAS, THAT:
SECTION 1: The services that AT &T will provide to the City shall be subject to the terms and
provisions as more particularly set forth in the IPTV Video Services Agreement,
effective January 1, 2012.
SECTION 2: The Mayor is hereby authorized, by and on behalf of the City, to execute the
IPTV Video Services Agreement with AT &T and the terms and provisions
contained therein are hereby approved.
SECTION 3: This Ordinance being necessary for the financial continuity of the City of Van
Buren, Arkansas, and necessary in providing for the immediate preservation of
the public peace, health, and safety, an emergency is declared to exist and this
Ordinance shall take effect on January 1, 2012 and be in force after its passage.
IN WITNESS WHEREOF, the City of Van Buren, Arkansas, by its City Council, did
pass, approve, and adopt, by a vote of (p. for and 0 against, the foregoing Ordinance at its
regular meeting held on the 19`" day of December, 2011.
Robert D. Free
Mayor
ATTESTED: f I VEDAS TO FORM:
Rillhollil
Barbie Curtis �''c ndi A. ettle
City Clerk/Treasurer City Attorney
2
1904180v1
IPTV VIDEO SERVICES AGREEMENT
THIS AGREEMENT("Agreement") dated -toe e Z l , 2011 and effective January 1,
2012 ("Effective Date") is made by and between Southwestern Bell Telephone Company, a
Missouri Corporation doing business as AT&T Arkansas ("AT&T"), and the City of Van Buren,
Arkansas, a municipal corporation ("City"). AT&T and City shall sometimes be referred to
separately as a "Party," and collectively as the "Parties."
RECITALS •
WHEREAS, as a telecommunications provider, AT&T, 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 ; and
WHEREAS, AT&T has informed the City that it 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; and
WHEREAS,the City maintains that the services that AT&T will provide in the City over
its IP Network are "Cable Services" as defined in 47 U.S.C. Section 522 (6) and are subject to
Title VI of the Communications Act of 1934, as amended ("Title VI"), and AT&T disagrees
with this contention; and
WHEREAS, the Parties, without determining whether the system or services that AT&T
will use in the City to provide IP-Enabled Video Service are subject to Title VI, desire to enter
into this Agreement,which the 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,
Arkansas law, and the Ordinances of the City, if and to the extent such are applicable; and
WHEREAS, both Parties agree that the deployment of the IP Network and the provision
of IP-Enabled Video Service is in the best interests of both Parties and of the residents of the
City. Therefore, both Parties agree that such deployment and provision of service should not be
delayed by possible litigation and that it is in the best interests of both Parties to reach a
compromise of each other's positions and claims; and
WHEREAS, the Parties recognize and acknowledge that their positions differ regarding
the jurisdiction of the City to require AT&T to enter into an agreement before it may occupy or .
use the public ROW to upgrade its existing network to provide video services to the citizens of
the City; however, the Parties voluntarily enter into this Agreement to avoid possible litigation
and consequent delay; and
1
NOW, THEREFORE, in consideration of and reliance upon the respective
representations, promises, concessions, terms and conditions contained herein, City and AT&T
agree as follows.
1. Requirements. For the reasons set forth herein, the parties agree to enter into this
agreement for the exclusive and limited purpose of addressing the provision by AT&T of wire-
line video service within the City.
1.2. AT&T shall comply with the lawful application of all applicable provisions of the
Code of Ordinances of the City, state and federal law with respect to the location of AT&T's IP
Enabled Video Service equipment and facilities in the ROW, including generally applicable
permitting requirements that may be required under the Ordinances of the City, as it now exists
or as it may be amended from time to time.
2. Term. The term of this Agreement shall be from the Effective Date of this Agreement
through December 31, 2016. The term may be extended upon mutual agreement of the Parties in
writing.
3. Compensation to City.
3.1. During the term of this Agreement, AT&T shall pay to City a fee equal to four
percent (4%) of the Gross Revenues derived from the provision of AT&T's IP-Enabled Video
Service which fee shall be paid quarterly ("IP-Enabled Video Service Provider Fee"). AT&T
will remit the IP-Enabled Video Service Provider Fee pursuant to this Agreement irrespective of
the classification of this service under the Federal Communications Act. Such fees shall be paid
to the City within forty-five 45 days after the end of the preceding quarter for which payment is
made. The provider may designate that portion of the subscriber's bill attributable to any fees
imposed pursuant to this Agreement and recover such amount from the subscriber as a separate
line item of the bill. The IP-Enabled Video Service Provider Fee shall be in lieu of any permit
fee or other fee that could otherwise lawfully be imposed by the City on AT&T in connection
with work done in the public ROW; however, nothing in this Agreement shall restrict the right
of the City to impose ad valorem taxes, or other taxes that are lawfully imposed on a majority of
all other businesses by the City.
3.1.1 In the event, the City grants the incumbent cable provider a percentage
(%) rate for calculating the video fee that is different than the applicable Video Service Provider
Fee percentage (%) under this Agreement, this Agreement shall, on 60-days written notice,
adjust the applicable Video Service Provider Fee to the different percentage (%) rate given to
the incumbent provider, provided that such different rate does not exceed the maximum
permitted by 47 U. S. C. § 542 (b). Notwithstanding the provisions of this section, nothing
herein shall change the definitions of those items included in gross revenues subject to the
Video Service fee as defined in this Agreement.
{
3.2. Payment shall be accompanied by a report, in such form and containing sufficient
detail to determine AT&T's compliance with this Section, not later than forty-five (45) days
after the last day of each March, June, September, and December, throughout the term of this
Agreement setting forth the Gross Revenue for the quarter ending on said last day. In the event
2
that a IP-Enabled Video Service Provider Fee payment or other sum due is not received by the
City on or before the date due, AT&T shall pay in addition to the payment, or sum due, interest
from the due date at the maximum legal rate of interest set forth in State Law. The City shall
have the right to audit any such payment for a period of Four (4) years, and no acceptance of
any payment shall be deemed final until the period for audit shall have expired.
3.3. For purposes of this Agreement, Gross Revenues are limited to amounts billed to
and collected from AT&T IP Video Services product subscribers for the following:
(a) recurring charges for IP Video Services;
(b) event-based charges for IP Video Services, including but not limited to pay-per-
view and video-on-demand charges;
(c) rental of set top boxes and other IP Video Services equipment;
(d) service charges related to the provision of IP Video Services, including, but not
limited to,activation, installation, and repair;
(e) administrative charges related to the provision of IP Video Service, including, but
not limited to service order and service termination charges;
(f) IP-Enabled Video Service Provider Fees;
(g) late payment fees; and
(h) maintenance fees.
3.4. For purposes of this Agreement, Gross Revenues do not include:
(a) uncollectible fees, provided that all or part of uncollectible fees which is written
off as bad debt but subsequently collected fees, shall be included in Gross
Revenues in the period collected;
(b) discounts, refunds, and other price adjustments that reduce the amount of
compensation received by AT&T
(c) amounts billed to IP Video Services subscribers to recover taxes, fees or
surcharges imposed by any governmental authority on the transaction between
AT&T and the IP Video Services subscribers in connection with the provision of
IP Video Services; and
(d) revenue from the sale of capital assets or surplus equipment.
4. Public, Educational and Governmental Programming. Upon request, AT&T shallprovide
capacity for the City's public, educational and governmental ("PEG") programming through
AT&T's IP-Enabled Video Service, including sufficient bandwidth capacity to carry PEG
channels required by the City. AT&T's obligations herein will begin at the earlier of such time as
AT&T achieves a 10% market share of the pay TV subscriber market within City or within one
hundred eighty days from the Effective Date of this Agreement, whichever comes first.
4.1. Any operation of any PEG access channel by the City shall be the sole
responsibility of the City, and AT&T's obligation is limited to the responsibility for the
transmission of such channel. The City will be responsible to ensure that all transmissions,
retransmissions, content or programming that may be requested to be transmitted over a channel
or facility by AT&T in the future, if any, are provided or submitted to AT&T, at the AT&T
designated connection point, in a manner or form that is capable of being accepted and
3
transmitted by AT&T, without requirement for additional alteration or change in the format or
content by AT&T, over the network of AT&T, and which is compatible with the technology or
protocol utilized by AT&T to deliver IP-Enabled Video Service. The City may use a provider of
its own choosing, including self-provisioning, to deliver PEG content to AT&T's designated
connection point,provided that bandwidth and streaming specifications are followed.
4.2. AT&T shall provide City with a capital PEG grant of Five Thousand and No/100
Dollars ($5,000.00), at the earlier of such time as AT&T achieves a 10% market share of the pay
TV subscriber market within City or within one hundred eighty days from the Effective Date of
this Agreement, whichever comes first. Such grant may be used by the City to support PEG
channel facilities as allowed by federal law; further, the grant shall not be offset, deducted or
chargeable as a credit against IP-Enabled Video Service fee payments required by Section 3 of
this Agreement.
4.3. If technically and economically feasible, AT&T will, at its discretion, use
reasonable efforts to interconnect with the incumbent cable provider to provide PEG
programming.
4.4. AT&T shall, upon written request by the City, provide the City free of charge one
(1) installation and basic IPTV Video service to one location (either the City's municipal
complex, police station or fire station# 1), provided that AT&T's IP video service is available at
such location. AT&T shall not seek to offset recurring costs associated with the requirements of
this Section against the IP-Enabled Video Service fees due under Section 3.1 of this Agreement,
5. Emergency Message. AT&T shall carry all Federal, State and Local alerts provided over
the "Emergency Alert System" through AT&T's IP-enabled 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 Standards. AT&T shall comply with the customer service
requirements set forth in 47 C.F.R. Section 76.309(c), as such requirements may be amended
from time to time. The requirements of 47 C.F.R. 76.309(c)are set forth in Attachment A to this
Agreement, but are intended to be identical to the federal law and shall be deemed automatically
amended should 47 C.F.R. 76.309(c)be amended.
7. Service Area. This Agreement shall apply to AT&T's service area within the municipal
boundaries of Van Buren as they exist upon the date of execution of this Agreement and may
hereafter be extended.
8. Removal. Upon abandonment,AT&T will, at the City's written request and within a
reasonable amount of time,remove from the City ROW any visible equipment that AT&T used
exclusively for its IP-Enabled Video Service.
9. 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 sixty (60)
days.
4
10. Dispute Resolution. Except as otherwise provided in this Agreement, the Parties shall,
prior to any court action, 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.
11. Non-discrimination. AT&T shall not deny access to its•IP Video Services to any group
of potential residential customers because of the income of the residents of the local area in
which such group resides.
12. Certification of Self-Insurance and Indemnification Obligations.
12.1 AT&T is self-insured in an amount beyond which the City would normally
require under any insurance policy, including for commercial general liability, automobile
liability, and workers' compensation. Therefore, upon written request after the Effective Date of
this Agreement, AT&T shall furnish a certificate(s) or statements of self-insurance to the City
and shall inform the City if the level of self-insurance changes.
12.2 AT&T agrees to indemnify, defend, and hold harmless City, its officers, agents,
and employees ("Indemnified Parties"),from and against any lawsuits, claims, causes or action,
actions, liabilities, demands, damages, judgments, settlements, disability, losses, expenses
(including reasonable attorney's fees and disbursements) and costs, that any of the Indemnified
Parties may at any time suffer, sustain or incur arising out of, based upon or in any way
connected with AT&Ts negligent construction, operation, or maintenance of its IP Network,
provided that City shall give AT&T written notice of its obligation to indemnify City within
fifteen (15) days of receipt of a claim or action pursuant to this subsection. Notwithstanding the
foregoing, AT&T 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 in connection with PEG programming.
12.3 With respect to AT&T"s_indemnity obligations set forth above, AT&T shall
provide the defense of any claims brought against City by selecting counsel of AT&T's choice
to defend:theclaim, 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 shall have the right to defend, settle
or compromise any claim or action arising hereunder, and AT&T 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 shall not settle the claim or action,but its obligation
to indemnify City shall in no event exceed the amount of such settlement.
12.4 In the event the incumbent cable and/or video service provider(s) in the City files
a claim against the Cityin state or federal,court arising out of the fact that the City entered into
this Agreement, challenging the lawfulness of this Agreement and/or seeking to modify its
5
obligations under its existing cable franchise on the basis that the City entered into this
Agreement,AT&T shall cooperate with the City in responding to such claim.
12.5 At the City's request, AT&T will intervene in any such action and defend any
such claim. In such event, AT&T shall assume, at its expense, the sole defense of the claim
through counsel selected by AT&T and shall keep the City fully informed as to the progress of
such defense. Upon reasonable request by AT&T and at AT&T's expense, the City shall
cooperate with AT&T in the defense of the claim. At its option and expense, the City may retain
and use separate counsel to represent it, including in-house counsel.
12.6 AT&T shall maintain control of the defense and resolution or settlement of the
claim, except that if the settlement of the claim would adversely affect the City, AT&T may settle
the claim as to the City only with its written consent, which consent shall not be unreasonably
withheld or delayed.
12.7 AT&T shall pay the full amount of(i) any judgment or award issued by a court
against the City as a result of entering into this Agreement or (ii) any settlement negotiated by
AT&T with respect to the claim and all other expenses related to the resolution of the claim.
AT&T's obligation to pay excludes an incumbent cable and/or video service provider's costs,
interests and reasonable attorneys' fees in bringing such action or claim unless otherwise agreed
to by AT&T in any settlement agreement or any final judgment ordered by the court.
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 City:
Mayor, City of Van Buren
1003 Broadway
Van Buren,Arkansas 72956
If to AT&T:
AT&T Arkansas
General Attorney
1111 West Capitol, Room 1005
Little Rock, AR 72201
(501) 373-5915
14. Compliance with Laws. AT&T shall comply with all applicable federal, state and local
laws during the term of this Agreement, to the extent such laws apply to AT&T and to its
obligations under this Agreement.
16. Taxes. Nothing contained in this Agreement shall be construed to exempt AT&T's IP-
Enabled Video Service from any tax, levy or assessment which is or may later be properly
6
authorized by law; provided any tax, levy or assessment on any AT&T product is equally
applicable to all other businesses in the City.
18. Books and Records; City's Right of Inspection and Audit
18.1. AT&T shall maintain books of account and records adequate to enable AT&T to
demonstrate that it is in compliance with the obligation to pay the fees described in Section 3.1
and Section 4.2 of this Agreement with respect to its IP-Enabled Video Service. AT&T shall
also maintain books and records to demonstrate AT&T's compliance with all other terms of this
Agreement. AT&T shall not be required to maintain books and records for compliance purposes
under this Agreement for a period longer than the applicable Arkansas State Statute of
Limitations for contract matters.
18.2. The City shall have the right to audit AT&T, with respect to any payment made
under this Agreement, within the applicable Arkansas State Statute of Limitations for contract
matters. The City may recompute any amounts determined to be payable in satisfaction of the
fees described in Section 3 and 4 of this Agreement with respect to AT&T's IP-Enabled Video
Service. Any additional and valid amount due the City as a result of the audit shall be paid by
AT&T within thirty (30) days after AT&T receives a written notice from the City. The notice
that the City sends to AT&T shall include a copy of the audit report.
18.3. In the event that payment of any valid fees described in Section 3.1 of this
Agreement with respect to IP-Enabled Video Service that has been recomputed pursuant to
Section 18.2 above is not made on or before the expiration of thirty (30) days following written
notice by the City, AT&T shall be charged and shall pay, in addition to the amount due, interest
from the due date at the maximum legal rate of interest set forth in State Law.
18.4. City acknowledges that some of the records which may be provided by AT&T
may be classified as confidential or proprietary and, therefore, may subject AT&T to competitive
disadvantage if made public, City shall therefore maintain the confidentiality of any and all
records provided to it by AT&T subject, including cooperating with AT&T in protecting such
confidential or proprietary information in the event an open records or similar request is received
by the City pursuant to applicable laws. -
18.5. City and AT&T acknowledge that all notifications required pursuant to this
Agreement constitute a condition precedent that must be timely met prior to either party bringing
any claim or lawsuit arising out of this Agreement.
19. Furnishing of Information. Each Party shall cooperate to make available or cause to be
made available information requested by the other Party relating to this Agreement and each
Party's obligations under this Agreement to the extent such information may be requested in
writing by a Party and is in the possession or the control of the other Party. Any disputes
between the Parties as to any information requested pursuant to this Section shall be subject to
the dispute resolution process described in Section 10 of this Agreement.
20. Termination and Revocation of Agreement. A verified and continuing pattern of
noncompliance with any material provision of this Agreement shall constitute a material breach
of this Agreement. This Agreement may be revoked, after a full due process hearing, by a simple
7
majority vote of the City Council upon the recommendation of the City, for a material breach of
this Agreement after giving AT&T at least thirty (30) days notice in writing of intention to
revoke such Agreement, unless such violation is corrected during the period of notice, or unless
AT&T has made a reasonable attempt to correct the violation during that time and is unable to
correct such violation despite such reasonable attempts. The time for AT&T to correct any
violation or liability shall be extended by the City if the necessary action to correct such violation
is of such a nature or character as to require more than thirty (30) days within which to perform,
provided AT&T provides written notice that it requires more than thirty (30) days to correct such
violations and commences the corrective action within the thirty (30) day period and thereafter
uses reasonable diligence to correct the violation.
20.1. In addition to all other rights,powers, or remedies pertaining to the City in
connection with this Agreement or otherwise,the City reserves the right to terminate this
Agreement and all rights and privileges of AT&T under this Agreement if any of the
following events shall occur and not be cured in a timely manner.
a. Substantial failure on more than one occasion to comply with any
material provision of this Agreement or any other local, state, or Federal law or
regulation of a nature such as to prevent AT&T from carrying out all of the terms
of this Agreement for a period of more than one(1)month.
b. AT&T does not pay any undisputed portion of the fees, payments, or
contributions required under this Agreement, when due and payable under this
Agreement.
c. Any material representation or warranty made by AT&T in
connection with this Agreement shall be false in any material respect when made.
d. AT&T shall violate any other material covenant, agreement or
condition of this Agreement and such violation shall not have been corrected,
within such reasonable period of time to cure as granted to AT&T by the City
pursuant to the provisions of this Agreement.
e. AT&T attempts to evade any of the provisions of this Agreement
or practices any fraud or deceit upon the City or upon subscribers.
21. Inspection Rights.
21.1. The City shall have the right to inspect, upon reasonable prior written notice, and
at its expense, all construction and installation work performed by AT&T of IP-Enabled Video
Service specific facilities on the public rights-of-way as it shall find necessary to ensure
compliance with a specified permit. Any such inspection shall be solely for the benefit of the
City.
8
22. Amendment of this Agreement.
22.1. This Agreement may be amended or modified only by a written instrument
executed by both Parties or as otherwise provided by law or the occurrence of any condition
stated herein.
22.2. Except as provided below, the Parties agree to consult in the event that 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 the 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 Partiesshall 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 this Agreement on the provision of thirty (30)
days' written notice.
23. Assignment. AT&T may not assign or transfer this Agreement or any interest therein,
without the prior consent of the City, which consent shall not be unreasonably withheld or
delayed.
23.1. Notwithstanding anything to the contrary, no consent shall be required, however,
for (1) a transfer of an agreement or any interest therein to an Affiliate or (2) a transfer in trust,
by mortgage, hypothecation, or by assignment of any rights, title or interest of AT&T in this
Agreement or the system in order to secure indebtedness.
23.2. In the event of a transfer of this Agreement the transferee or assignee must agree,
in writing,to be bound by the terms of this Agreement subject to applicable law.
24. Entire Agreement. This Agreement constitutes the entire agreement between City and
AT&T with respect to the subject matter contained herein and supersedes all prior or
contemporaneous discussions, agreements, and/or representations of or between City and AT&T
regarding the subject matter hereof.
25. 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.
26. Miscellaneous.
26.1. AT&T 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.
26.2. 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
9
hereof. The singular shall include the plural; the masculine gender shall include the feminine
and neutral gender.
26.3. AT&T 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.
26.4. 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.
27. 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 this 7k-- day of
`.lace.rNrer. , 2011.
AT&T ARKANSAS
By:
Name: Edward D
Title: President—AT&T Arkansas
CITY 1 ` N BUREN,ARKANSAS
By: w�
Name: Bo. Freeman
Title: Mayor
10
ATTACHMENT A
Customer Service Standards as described in Section 6 of the Agreement:
6.1. AT&T will maintain a local,toll-free or collect call telephone access line that
will be available to subscribers to its IP-enabled Video Services twenty-four (24) hours a
day, seven days a week. Trained AT&T representatives will be available to respond to
customer telephone inquiries during normal business hours. After normal business hours,
the access line may be answered by a service or an automated response system, including an
answering machine. Inquiries received after normal business hours must be responded to by
a trained company representative on the next business day, except for service interruptions.
6.2. Under normal operating conditions, telephone answer time by a customer
representative, including wait time, shall not exceed thirty (30) seconds when the
connection is made. If the call needs to be transferred, transfer time shall not exceed thirty
(30) seconds. These standards shall be met no less than ninety (90) percent of the time
under normal operating conditions, measured on a quarterly basis. AT&T will not be
required to acquire equipment or perform surveys to measure compliance with the telephone
answering standards described in this Section unless an historical record of complaints
indicates a clear failure to comply.
6.3. Under normal operating conditions, an AT&T customer will receive a busy
signal less than three(3)percent of the time.
6.4. AT&T customer service center and bill payment locations will be open at
least during normal business hours and will be conveniently located.
6.5. Under normal operating conditions, each of the following four standards
related to installations, outages and service calls will be met no less than ninety-five (95)
percent of the time measured on a quarterly basis:
a. Standard installations will be performed within seven (7) business
days after an order has been placed. "Standard" installations are those that are
located up to one hundred twenty-five (125) feet from the existing distribution
system.
b. Excluding conditions beyond the control of AT&T, AT&T will begin
working on "service interruptions" promptly and in no event later than twenty-four
(24) hours after the interruption becomes known. AT&T must begin actions to
correct other service problems the next business day after notification of the service
problem.
c. The "appointment window" alternatives for installations, service
calls, and other installation activities will be either a specific time or, at maximum, a
four-hour time block during normal business hours. (AT&T may schedule service
calls and other installation activities outside of normal business hours for the express
convenience of the customer.)
d. AT&T may not cancel an appointment with a customer after the close
of business on the business day prior to the scheduled appointment.
e. If an AT&T representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the customer
will be contacted. The appointment will be rescheduled, as necessary, at a time that
is convenient for the customer.
6.6., Refund checks will be issued promptly, but no later than either (i) the
customer's next billing cycle following resolution of the request or thirty (30) days,
whichever is earlier, or (ii) the return of the equipment supplied by AT&T if service is
terminated.
6.7. Credits for service will be issued no later than the customer's next billing
cycle following the determination that a credit is warranted.
6.8. The following definitions shall apply to the terms listed below; as such terms
are used in Section 6 of the Agreement:
a. "Normal business hours" means those hours during which most
similar businesses in the City are open to serve customers. In all cases, "normal
business hours"must include some evening hours at least one night per week and/or
some weekend hours.
b. "Normal operating conditions" means those service conditions that
are within the control of AT&T. Those conditions that are not within the control of
AT&T include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages and severe or unusual weather conditions.
Those conditions that are ordinarily within the control of AT&T include, but are not
limited to, special promotions, pay-per-view events, rate increases, regular peak or
seasonal demand periods and maintenance or upgrade of the IP Network.
c. "Service interruption," means the loss of picture or sound on one or
more IP-Enabled Video Service channels.
12