CONTRACT 4798 OtherAgreement No. 4798
EXECUTION VERSION
CUSTOM PEG SOLUTION AGREEMENT
THIS AGREEMENT, made as of the 15th day of February, 2014, is by and between the City
of Los Angeles ("City") and Pacific Bell Telephone Company, d/b/a AT&T California, a California
corporation ("AT&T"). This Agreement concerns the development of a Custom PEG Solution and
lease of the same by City for the distribution of PEG Programming on AT&T's IPTV system serving
the Los Angeles Designated Market Area ("DMA") in the State of California. In consideration of the
mutual promises and covenants contained in this Agreement, City and AT&T agree as follows:
1. DEFINITIONS
As used throughout this Agreement, capitalized terms used and not otherwise defined herein
shall have the meanings set forth in this Section 1:
"AT&T" means Pacific Bell Telephone Company, d/b/a AT&T California,
"Affiliate" has the same meaning as in 47 U.S.C. § 153(2).
"Channel 99 PEG Solution" means the present end-to-end method for delivering PEG
channels on AT&T's U-verse video service with PEG channels accessed via a menu-based user
interface application and video programming delivered via an Internet Media Device (hereinafter
"IMD").
"City" means the City of Los Angeles, California.
"City's PEG Channels" refers to the programming streams AT&T is required to carry under
DIVCA pursuant to a request from the City of Los Angeles, without regard to whether the City, or the
City's designee is the PEG Programmer for a particular stream.
"Custom PEG Solution" means the application accessed at a specified channel number (other
than channel number 99) on the Electronic Programming Guide (hereinafter "EPG") for delivering
City's PEG channels on U-verse video service with City's PEG channels accessed via a menu-based
user interface application that has been customized for City and video programming delivered via an
IMD. This definition excludes the Channel 99 PEG Solution.
"DIVCA" means the Digital Infrastructure and Video Competition Act, Cal. Pub. Util. Code §
5 800 et seq. or any successor statute.
"DMA" means Designated Market Area.
"Extension Period" means the four-year period following the expiration of the Initial Period.
"Force Majeure Event" means an act of God, or labor dispute, beyond a party's reasonable
control.
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"Initial Period" means the period commencing on March 1, 2014 and ending February 29,
2020.
"Internet Protocol Television" or "IPTV" means a technology that utilizes an Internet protocol
to transmit video comprised of packetized data to set -top boxes, television receivers, monitors,
personal computers, or similar devices (currently branded and marketed as "AT &T U -verse TV ").
"PEG Programming" means a PEG Programmer's Public, Educational and Governmental
programming accessed by Subscriber(s) through the Custom PEG Solution on the System in the
Territory under the terms and conditions contained in this Agreement and the Settlement Agreement.
"PEG Programmer" means any entity authorized by the City to manage any of the PEG
Programming streams provided by the City to AT &T, or any entity authorized or entitled to place
programming on those streams. The City may be a PEG Programmer.
"Settlement Agreement" means the agreement entered into on February 15, 2014 by AT &T
California as defendant on the one hand, and the City of Los Angeles, the Sacramento Metropolitan
Cable Television Commission and the City of El Segundo as plaintiffs on the other hand, in that
certain action entitled City of Los Angeles, Sacramento Metropolitan olitan Cable Television. Commission
and City of El Se undo v. Pacific Bell Telephone CompanL. Case No. BC414272, Los Angeles
Superior Court, California.
" Subscriber(s)" means each person or entity that is receiving AT &T's IPTV video service in
the Territory.
"System" means AT &T's IPTV video network located in the Los Angeles DMA and
generally consisting of a video hub office, local distribution plant, and related facilities more
specifically described in Attachment 1, incorporated herein by this reference.
"Territory" means the jurisdictional boundaries of the City of Los Angeles, and the Los
Angeles DMA should AT &T opt to distribute PEG Programming outside the jurisdictional
boundaries of the City.
2. TERM
This Agreement shall be in effect during the "Initial Period" plus the "Extension Period ", if
City so elects.
3. CUSTOM PEG SOLUTION DEVELOPMENT AND USE
(a) AT &T will develop and activate a Custom PEG Solution for City within 90 days of the
date of this Agreement, subject to the tolling provisions of Section 5870(a) and (h) of
DIVCA with respect to the connection required to pick up PEG channel LA 36. The
Initial Term and Extension Period will each be extended for the period of tolling. With
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respect to LA 36, if AT &T is unable to negotiate an appropriate interconnection
agreement and begin delivery of LA 36 by July 1, 2014, City may, if and when there is an
alternative location where the LA 36 signal can be picked up, designate such alternative
location for AT &T to pick up LA 36. AT &T will notify City promptly if it is unable to
negotiate an interconnection agreement that will permit delivery of LA 36 by July 1,
2014, so that the City can take the necessary steps to designate the alternative location.
AT &T will begin delivery within 90 days of the City's designation of the alternative
location. Prototypes of screen graphics for City's Custom PEG Solution are shown on
Attachment 2. The screen graphics that will be used at the time of launch must be
approved by the City, and be acceptable to AT &T. The City and AT &T will not
unreasonably withhold approval and acceptance of the screen graphics. Operation of the
Custom PEG Solution is described in Attachment 3.
(b) The Custom PEG Solution shall be accessed on the System at channel number 35 on
the Electronic Programming Guide (" EPG "). AT &T shall not change the channel
number of the Custom PEG Solution during the Term unless agreed to by City or
required by law. Within the Territory, no other programming, other than programming
authorized by City, may be accessed via channel number 35 (or such other channel as
the parties may agree may be used instead of channel 35), and no menu, other than a
menu authorized by City, may appear upon selection of channel 35 from the EPG or
by other means. However, nothing in this Agreement gives City ownership of the
channel numbers used for the Custom PEG Solution, and City is prohibited from
reselling, sublicensing or subleasing all or any part of the Custom PEG Solution to
any other person or entity except a PEG Programmer without prior written
authorization from AT &T.
(c) City's PEG Programming consists of four (4) full -time, 24 hours a day, 7 days a week
continuous streams of public, educational and governmental programming, and over the
Term may include whatever streams the City could require AT &T to carry under
DIVCA.
(d) AT &T has only those rights to alter, manipulate or distribute the PEG Programming
delivered via that Custom PEG Solution that it has for PEG Programming delivered via
the Channel 99 PEG Solution, subject to the limitations of the Settlement Agreement or
as the City may otherwise allow.
(e) All Custom PEG Solution content provided to AT &T by a PEG Programmer shall
remain the responsibility of the PEG Programmer.
(f) Provision of content or programming to AT &T for transmission via the Custom PEG
Solution shall constitute authorization for AT &T to carry that content or programming
within the Territory on the System via the Custom PEG Solution, provided that AT &T
shall pay the City or its designee for any licensing costs arising from delivery of the
PEG Programming via the Custom PEG Solution outside the jurisdictional boundaries
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of the City to the same extent it is required to do so for PEG Programming delivered
via the Channel 99 PEG Solution.
(g) AT &T will allow the City to change the screen graphics used in the Custom PEG
Solution (see, e.g., Attachment 2) one time per year and at any other time there is a
change in the PEG channels being delivered by PEG Programmer that PEG Programmer
wishes to have displayed in the screen graphics. The cost associated with this work is
included in the Recurring Fee.
4. SERVICE STANDARDS
(a) The rights and duties of AT &T and the City with respect to the receipt and transport by
AT &T of the City's PEG channels delivered via the Custom PEG Solution shall be the
same as for the City's PEG channels delivered via the Channel 99 PEG Solution. AT &T
shall, at no cost to City or PEG Programmer, obtain the signal via interconnection with an
incumbent cable provider or provide the facilities and equipment required to receive and
deliver each of the City's PEG channels. The foregoing shall apply with respect to the
City's initial provision of PEG channels. The current locations where the signal will be
handed off from City to AT &T (except with respect to Ch. 36) are shown in Attachment
4. In addition, with respect to each of the City's PEG channels, if the hand -off location
for the PEG Programming changes after the initial location is established due to an action
of the City, AT &T will, at no cost to City or to PEG Programmer, arrange for the
necessary interconnection or facilities and equipment necessary to receive and deliver the
PEG Programming. AT &T's obligation to accommodate a change of hand -off locations
at no cost to City or PEG Programmer shall be limited to one change per channel within a
24 -month period.
(b) The rights and duties of the City with respect to the manner and form for provision of
PEG Programming by the City for delivery via the Custom PEG Solution shall be same
as for PEG channels delivered via the Channel 99 PEG Solution.
(c) AT &T's rights and duties with respect to the changes it may make in the form of
transmission for signals delivered via the Custom PEG Solution shall be the same as for
the signals delivered via the Channel 99 PEG Solution.
(d) AT &T and each PEG Programmer will provide repair contact information upon the
consummation of the Agreement. At present, AT &T's repair contact is the AT &T U-
verse Operations Center at 1- 866 -563 -7972. The Center is available 24/7. If in the
future the contact group or number changes, AT &T will so notify City.
(e) AT &T shall have responsibility for delivering the Custom PEG Solution reliably to
subscribers (including responding to and correcting service disruptions of the Custom
PEG Solution) to the same extent as its responsibility to deliver PEG channels reliably
under DIVCA or other applicable law, if any.
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(f) AT &T shall deliver to subscribers in a useable format such data or other information
embedded in the signal by a PEG Programmer, to the same extent required by DIVCA
or other applicable law, if any, for programming carried on PEG channels.
(g) The quality, accessibility and functionality of the Custom PEG Solution are otherwise
controlled by the Settlement Agreement.
5. DEVELOPMENT AND DISTRIBUTION FEES
(a) Development Fee. In consideration for the design, development and customization
costs associated with AT &T's development of the Custom PEG Solution, City shall
pay AT &T One Hundred and Seventy -Five Thousand Dollars ($175,000.00) (the
"Development Fee "). The Development Fee shall be paid within 75 days of the
execution of this Agreement, or, if later, 75 days after all payments required of AT &T
under the Settlement Agreement have been paid.
(b) Recurring Fee. In consideration for the ongoing costs, including, but not limited to
maintenance, testing, transport and support, associated with the Custom PEG Solution,
City shall pay AT &T a monthly fee of Three Thousand Dollars ($3,000.00) (the
"Recurring Fee "). The Recurring Fee shall be paid on the 15th day of each month
during the Term, except that with respect to the City, AT &T acknowledges that the
Recurring Fee has been fully satisfied pursuant to the Settlement Agreement, and no
other Recurring Fee is owed either by City, or any PEG Programmer.
(c) Disconnection/Suspension. AT &T may not charge its Subscribers for the provision of
the Custom PEG Solution in any form, and the Custom PEG Solution shall be
provided to every video Subscriber within the Territory. Nothing herein shall limit
AT &T's right to bill, collect and receive any and all service charges or fees payable to
AT &T by its Subscribers or AT &T's right to immediately disconnect or suspend
Subscribers who do not pay such charges or fees in a timely manner.
6. PROMOTION & NON - INTERFERENCE
(a) AT &T Marks. City acknowledges that the names and marks associated with AT &T
and its Affiliates are the exclusive property of AT &T and its Affiliates, and that City
has not, and will not acquire any proprietary rights therein by reason of this
Agreement: AT &T consents to use of its name, but not its mark, for purposes of
promoting the availability of PEG signals on the System.
(b) Neither party shall issue any press release regarding the business relationship of the
parties as set forth herein except with the advance written consent of the other party.
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7. REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY
(a) Mutual Representations and Warranties. Each party represents and warrants to the
other that: (i) it is duly organized, validly existing and in good standing under the laws
of the state or country under which it is organized; (ii) it has the power and authority to
enter into this Agreement and to perform fully its obligations hereunder; (iii) it is
under no contractual or other legal obligation that shall in any way interfere with its
full, prompt and complete performance hereunder; (iv) the individual executing this
Agreement on its behalf has the authority to do so; and (v) the party's obligations
created by this Agreement constitute legal, valid and binding obligations enforceable
in accordance with their terms.
(b) Survival. The representations and warranties contained in this Section shall continue
throughout the Term and shall survive the expiration or earlier termination of this
Agreement.
(c) Limitation of Liability. In the event of a breach of this Agreement, neither party shall be
liable to the other party for any consequential or special contractual damages, or punitive
damages, however caused.
8. FORCE MAJEURE
Neither AT &T nor City shall have any rights against the other party for the non - operation of
facilities, equipment, or software or the non - furnishing of the PEG Programming, or the
Custom PEG Solution if such non - operation or non - furnishing is due to a Force Majeure
Event, provided that the party asserting Force Majeure uses its best efforts to promptly correct
the cause of the non - operation or non - furnishing.
9. NOTICES
Any notice or report by the City or PEG Programmer to AT &T with respect to an outage or
other service interruption in the Custom PEG Solution shall be provided by calling the repair
center number in accordance with Section 4(d), and may also be provided in writing as
provided herein. Any other notice or report given under this Agreement shall be in writing,
shall be sent postage prepaid by certified mail, return receipt requested, or by hand delivery,
or by Federal Express or similar overnight delivery service, or by facsimile transmission, to
the other party, at the following address (unless either party at any time or times designates
another address for itself by notifying the other party pursuant to the provisions of this
Section, in which case all notices to such party thereafter shall be given at its most recently so
designated address):
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ToCit : Steve Reneker
Copies to:
Agreement No. 4798
General Manager
Information Technology Agency
City of Los Angeles
200 N. Main Street, 14th Floor
Los Angeles, CA 90012
Deputy City Attorney Mike Dundas
200 N. Main Street
City Hall East, 7th Floor
Los Angeles, CA 90012
To AT &T: AT &T Services, Inc.
1025 Lenox Park Blvd., 5th Floor, C562
Atlanta, GA 30319 -5309
Attn: IP Video Counsel
Copies to: AT &T Services, Inc.
1880 Century Park E., Ste. 1101
Los Angeles, CA 90067
Attn: Vice President Programming
Notice given under 4(d) shall be deemed given when the number is called. Notice or report
given by hand delivery shall be deemed received on delivery. Notice or report given by mail
shall be deemed received on the earlier to occur of actual receipt or on the fifth day following
mailing if sent in accordance with the notice requirements of this Section. Notice or report
given by Federal Express or similar overnight delivery service shall be deemed received, on
the next business day following delivery of the notice or report to such service with
instructions for overnight delivery. Notice or report given by facsimile transmission shall be
deemed received on the day of transmission if a business day, or on the next business day
after the day of transmission if not transmitted on a business day.
City and AT &T agree that either party may designate or substitute in writing, one or more
addressees to whom all notices and reports should be sent.
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10. MISCELLANEOUS
(a) Assignment, Binding Effect, Reorganization. This Agreement shall be binding upon
the respective transferees, successors and assigns of the parties hereto, except that
neither this Agreement nor either party's rights or obligations hereunder shall be
assigned or transferred by either party without the prior written consent of the other
party. Notwithstanding the foregoing, no consent shall be necessary in the event of. (i)
an assignment to a successor entity resulting from a merger, acquisition, or
consolidation by either party; provided the assignee agrees in writing to be bound by
the terms of this Agreement, or (ii) an assignment to an Affiliate of either party.
(b) Amendments; Waivers, Cumulative Remedies. This Agreement may not be modified
except in a writing executed by both parties and their attorneys. Any waiver of any
provision of this Agreement must be in writing and signed by the party whose rights
are being waived and by the party's attorney. No waiver of any breach of any
provision hereof shall be or be deemed to be a waiver of any preceding or subsequent
breach of the same or any other provision of this Agreement. The failure of AT &T or
City to enforce or seek enforcement of the terms of this Agreement following any
breach shall not be construed as a waiver of such breach. All remedies, whether at
law, in equity, or pursuant to this Agreement shall be cumulative.
(c) Governing Law. The obligations of AT &T and City under this Agreement are subject
to all applicable federal, state and local laws, rules and regulations. This Agreement
shall be governed by, and interpreted in accordance with, the laws of the State of
California.
(d) Relationship. Neither party shall be, or hold itself out as, the agent of the other or as
joint venturers under this Agreement.
(e) No Inference Against Author. City and AT &T each acknowledge that this Agreement
was fully negotiated by the parties. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties
and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
(f) No Third Party Beneficiaries. The provisions of this Agreement are for the exclusive
benefit of the parties hereto (and AT &T's Affiliates) and their permitted transferees,
successors and assigns under Section 10(a). Other than as provided herein, no third
party shall be a beneficiary of, or have any rights by virtue of, this Agreement
(g) Headings. The titles and headings of the sections in this Agreement are for
convenience only and shall not in any way affect the interpretation of this Agreement.
N.
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(h) Conflict with Settlement Agreement. In the event of a conflict between this
Agreement and the Settlement Agreement, the Settlement Agreement shall control.
(i) Performance By AT &T Affiliates. Nothing herein prevents AT &T from using
an Affiliate to carry out its obligations under this Agreement.
The parties hereto have executed this Agreement as of the date first above written.
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ATTACHMENT 2
Custom PEG Solution Prototype Screen Graphics
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ATTACHMENT 3
When Subscribers tune to channel 35 they will be prompted to press the "OK" button. Once a
Subscriber does so, the Subscriber will see a listing of the PEG channels available from each PEG
Programmer. The Subscriber may then select a particular PEG channel to watch. The first prototype in
Attachment 2 shows what a person who tuned to the Custom PEG Solution would see, and the second
prototype in Attachment 2 show(s) what a person who tuned to the Custom PEG Solution would see
after pressing "OK".
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ATTACHMENT 4
Channel 35 and CityText are handed -off at 120 S. San Pedro Street, Los Angeles, CA 90012 and
UCTV is handed -off at UCSD, 9500 Gilman Drive, Central Utilities Building, La Jolla, CA 92093.
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51120.00002 \8564179.2
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