The URL can be used to link to this page

Home My WebLink About78-06 Resolution RECORD OF RESOLUTIONS Dayton Legal Blank,lnc., ~2~lT1__N.2. }_O(}.':1-5 Resolution No. 78-06 Passed ,20_ A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A COMPETITIVE VIDEO SERVICE AGREEMENT WITH THE OHIO BELL TELEPHONE COMPANY (ALSO KNOWN AS AT&T) WHEREAS, it is imperative that City of Dublin residents have access to robust and reliable broadband products and Competitive Video Services; and WHEREAS, the City recognizes that the construction of telecommunication facilities capable of providing broadband products and Competitive Video Services requires the use of the public right-of-way; and WHEREAS, the City determined that in order for a Competitive Video Service Provider to occupy or use the public way for the purpose of providing Competitive Video Service it must enter into a Competitive Video Service Agreement with the City of Dublin. NOW, THEREF~E, BE IT RESOLVED by the Council of the City of Dublin, State of Ohio, of the elected members concurring that: Section 1. The City Manager is hereby authorized to enter into an Agreement with The Ohio Bell Telephone Company, attached hereto as Exhibit "A" for competitive video services and to execute all necessary documents. Section 2. This resolution is effective upon passage in accordance with Section 4.04(a) of the Revised Charter. , Passed this ). (J1h day of 7?ou~hLbcy ,2006. ATTEST: ~a~ Clerk of Council , I hereby certify that copies of this OrdinanceIResolution were posted in the City of Dublin in accordance with Section 731.25 of the Ohio Revised Code. De c} SCHOTTENSTEIN '. ZOX&DUNNco"LPA MEMORANDUM To: Dublin City Council Jane S. Brautigam, City Manager From: Stephen J. Smith, Law Director Gregory J. Dunn Re: RESOLUTION 78-06 - AT&T VIDEO COMPETITION AGREEMENT Date: November 1, 2006 The City of Dublin has made it a priority to allow the residents access to robust and reliable broadband products and services. In conjunction with this goal, the City has enacted the Competitive Video Services Ordinance, Section 100 of the Dublin Codified Ordinances. Competitive Video Service means a video program as serviced by a Competitive Video Service Provider (here AT&T) through a wireline facility located in the public right-of-way. The Ordinance presents a regulatory policy to promote technological neutrality, competition, investment, and innovation which will ensure that broadband service providers have sufficient incentive to develop and offer such products and services to the citizens of Dublin. The Ordinance also provides for a Competitive Video Service provider to occupy or use the public right-of-way after they have entered into a Competitive Video Service Agreement. The Competitive Video Service Agreement with AT&T, attached to the Resolution, completes the understanding with AT&T regarding the provision of Competitive Video Services in Dublin. After the execution of the AT&T agreement, Dublin will proceed to negotiate similar agreements with the other video and cable television operators in Dublin (Time Warner Cable and Wide Open West). In consideration for receiving right-of-way access, in addition to the necessary right-of-way fees AT&T will be submitting a franchise fee, which is 5% of their gross revenue. If you have any questions, please feel free to contact this office. EXHIBIT "A" COMPETITIVE VIDEO SERVICE AGREEMENT This COMPETITIVE VIDEO SERVICE AGREEMENT, executed the day of 2006 (the" Effective Date"), is made by and between the City of Dublin, Ohio ("City") and The Ohio Bell Telephone Company, an Ohio corporation that uses the name AT&T Ohio ("Company"). RECITALS WHEREAS, Under Chapter 100 of the City of Dublin Codified Ordinances, a . Competitive Video Service Provider must enter into a Competitive Video Service Agreement with the City before it can occupy or use the public way for the purpose of providing Competitive Video Service to the citizens of Dublin; and WHEREAS, The Company is a Competitive Video Service Provider, as defined by Section 100.02 (H), and it enters into this Competitive Video Service Agreement with the City to comply with the City's Codified Ordinances; and WHEREAS, By entering into this Competitive Video Service Agreement, the Company does not concede that the City has jurisdiction to require the Company to enter into an agreement before it may occupy or use the public way to upgrade its existing telecommunications network and provide broadband products and services, including Competitive Video Service, to the citizens of Dublin. Nor does the Company concede that the City has jurisdiction to impose Chapter 100's requirements on the Company. Rather, the Company voluntarily enters into this agreement to avoid litigation and delay. The Company, however, specifically reverses its right as a "telephone company," and thus, a "public utility" under Ohio law to access the City's public way to deploy optical fiber and associated network facilities in its existing telecommunications network to provide products and services to it customers; NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby made a part of this Agreement, the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties covenant and agree as follows: SECTION 1 A. Chapter 100 Grant and Requirements. Pursuant to Chapter 100 of the City of Dublin Codified Ordinances, the City hereby authorizes the Company to occupy or use public rights-of- way and to provide Competitive Video Services within the City. The Company agrees to comply with the requirements of Chapter 100 of the City of Dublin Codified Ordinances. B. Pursuant to Chapter 100 of the City of Dublin Codified Ordinances, the Company agrees to pay 5% of its gross revenues to the City as described is Section 100.05. C. Pursuant to Chapter 100 of the City of Dublin Codified Ordinances, the Company agrees to comply with the lawful application of Chapter 98 of the codified ordinances of the City of Dublin. EXHillIT "A" SECTION 2 Chane:e of Law. A. In the event that, after the Effective Date, any court, agency, commission, legislative body, or other authority of competent jurisdiction: (i) issues a finding that limits the validity or enforceability of this agreement, in whole or in part, or preempts provisions of this agreement, in whole or in part; (ii) reaches conclusions or requires any mechanisms or obligations that are inconsistent with, change in any way, or substitute for the factual or legal premises on which this agreement is based in whole or in part; (iii) establishes the legal basis or framework pursuant to which the Company may offer or provide Competitive Video Service; or (iv) requires the Company either to: (A) perform any act which is inconsistent with any provision of this Agreement or (B) cease performing any act required by any provision of this Agreement, then the Company shall promptly notify the City of such finding, conclusion or requirement, and the Company, at its option, may comply with such finding, conclusion or requirement to the extent permitted by law. To the extent that the Company determines that such finding, conclusion or requirement has a material adverse effect on the Company's rights under this Agreement, the Company, upon notice to the City, may require the City to enter into good faith negotiations to modify this Agreement in the manner which best effectuates the overall purpose of this Agreement and the intentions of the parties. If the parties do not reach a mutually acceptable agreement, then the Company may terminate this Agreement upon ten (10) days notice. B. In the event the finding, conclusion or requirement described in Section 2 (a) is subsequently repealed, reversed, amended or changed so that the validity or enforceability of the provisions of this Agreement is not limited in whole or in part, the offering of Competitive Video Service is not inconsistent with this Agreement or the provisions of this Agreement are not preempted in whole or in part, such provisions, at the option of the Company, shall return to full force and effect and be binding on the parties, provided that this Agreement has not been earlier terminated. C. Under no circumstances shall any finding, conclusion or requirement described in Section 2 (a) or (b) be applied retroactively or be interpreted to have any retroactive effect. D. The City may take advantage of a change in any applicable federal or state law. To the extent that the City determines that such change in law has an effect on the City's rights under this Chapter 100, the City, upon notice to the Company, may require the Company to enter into good faith negotiations to modify this Agreement in the manner which best effectuates the overall purpose of this Agreement and the intentions of the parties. SECTION 3 Term. The term of this Agreement shall be from the Effective Date of this Agreement through November 6,2009 (3 years). The term may be extended upon mutual agreement of the parties. EXHIBIT "A" IN WITNESS WHEREOF, the party of the first part, City Manager Jane Brautigam, thereunto duly authorized by the City Council of Dublin, has caused the corporate name of the City of Dublin to be signed and the corporate seal of the City of Dublin to be affixed and the Company, the party of the second part, by its officers thereunto duly authorized, has caused its name to be signed and its seal to be affixed as ofthe date and year first above written. City of Dublin, Ohio By Name: Jane Brautigam Title: City Manager Approved as to form: Stephen J. Smith City of Dublin Director of Law The Ohio Bell Telephone Company By Name: Connie Browning Title: President, AT&T Ohio Attest: