2000F19- CABLE TELEVISION
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Grande Communications, Inc.
ORDINANCE NO. OO-F-19
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS, ESTABLISHING A FRANCHISE AGREEMENT WITH GRANDE
COMMUNICATIONS, INC. FOR CABLE TELEVISION AND OTHER
SERVICES; PROVIDING THE TERMS AND CONDITIONS UNDER WHICH
THE FACILITIES OF GRANDE COMMUNICATIONS, INC. WILL BE
INSTALLED, OPERATED AND MAINTAINED; ESTABLISHING A TERM
FOR THE FRANCHISE; AND ESTABLISHING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS:
Section 1. Definitions; construction.
In this Ordinance:
1. Basic monthly service means the minimum level of cable service for which Grantee
charges the lowest monthly fee.
2. "Cable service" means
a. the one-way traru>mission to customers of
(1) video programming provided by, or comparable to video
programming provided by, a television broadcast station; or
(2) other programming services, by which is meant video, audio, or data
information that Grantee makes generally available to all customers, to the extent
the services are deemed to be "cable service" under federal law; and
b. customer interactive (two-way) transmissions required for the selection or use
of video programming or other programming services (such as, for example, customers'
accessing and utilization of data bases, the Internet, video game services, or other
services), to the extent they are "cable service" under federal law .
3. "City" means the City of Schertz, a Texas municipal corporation.
4. "City Council" means the City Council ofthe City.
5. "City Manager" means the City Manager of the City or the City Manager's
designated representative.
6. "City requirements" means all City charter provisions, ordinances, regulations,
resolutions, and policies, in effect on the effective date of this Ordinance and as they may be
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changed from time to time during the term of this Ordinance, that apply to Grantee's activities
under this Ordinance.
7. "City right-of way " means the surface, the air space above the surface, and the area
below the surface of any public street, highway, alley, sidewalk, boulevard, bridge, tunnel, utility
easement, or similar property in which the City holds a property interest or exercises a right of
management or control (including property hereafter added to the territorial limits ofthe City)
and which may be used for the installation and maintenance of Grantee's facilities.
8. "FCC" means the Federal Communications Commission.
9. "Grantee" means Grande Communications, Inc., a Delaware corporation.
10. "Grantee's facilities" means Grantee's cables, lines, wiring, towers, poles,
underground conduits, manholes, electronic conductors, and other fixtures necessary for the
maintenance and operation of Grantee's cable television signal distribution system and service.
11. "Person" means any individual, firm, partnership, association, corporation,
company, or organization of any kind.
12. "Significant service interruption" means a cable service outage lasting four
continuous hours or more to 1,000 or more of Grantee's customers in the City.
13. "Start-up date" means the date on which Grantee begins distributing cable
television services to any customer through Grantee's facilities.
14. "Will" is mandatory and not merely directory.
Words and phrases that are not defined in this Section will have the meaning provided in the
federal Communications Act of 1934 as amended by the Cable Communications Policy Act of 1984,
the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications
Act of 1996, and, ifnot so defined, will have their common and ordinary meaning.
Section 2. Grant of Franchise.
A. The City hereby grants to Grantee a non-exclusive franchise to construct, erect, operate, and
maintain Grantee's facilities in, across, over, above, and under City right-of-way, subject to the terms
of this Ordinance.
B. The City grants this franchise only to the extent of the City's interest in the City right-of-way.
In granting this franchise, the City does not
1. warrant title to any City right-of-way to Grantee;
2. assume any responsibility for securing for Grantee any City right-of-way that the City
does not already own or control;
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3. give to Grantee any form of permission to make and maintain attachments to City
utility poles or to use any City property other than City rights-of-way;
4. make the City responsible in any way for the construction, operation, maintenance,
or performance of Grantee's facilities, or for any other activity or obligation of Grantee;
5. convey to Grantee any ownership or property right in any City right-of-way occupied
or used by Grantee regardless of any payments made by Grantee to the City, nor any other action
or inaction by the City or by Grantee;
6. grant to Grantee any right or privilege lawfully within the jurisdiction of any other
regulatory body or agency, it being Grantee's responsibility to secure and hold all necessary
licenses, permits, and authorizations required in order to install, operate, and maintain Grantee's
facilities; or
7. grant to Grantee the right to allow the use of Grantee's facilities by any other entity
for the provision of any service. Grantee will not allow the use of Grantee's facilities by another
entity to provide any service unless the enti.ty warrants that it has obtained all authorizations
required by the City for such use.
C. This franchise is not exclusive. The City reserves the right to make a similar grant to any
other Person at any time.
Section 3. Protection of Persons and Property; Indemnification and Waiver; Insurance.
A. Grantee will take all necessary precautions to protect all Persons and property against
personal injury or property damage that may result from the installation, maintenance, or operation of
Grantee's facilities. If, in the City's opinion, Grantee has not taken any such necessary precautions, the
City may notify Grantee in writing, and Grantee will correct the situation within a reasonable time.
Grantee agrees, however, that it is solely responsible for the installation, maintenance, and operation of
Grantee's facilities, and the City does not assume any such responsibility because of the City's actions
or inactions regarding the installation, maintenance, or operation of Grantee's facilities.
B. Grantee shall carry, throughout the term of this Ordinance, personal and property damage
liability insurance with insurance companies qualified to do business in the State of Texas. Such
insurance shall show the City as an additional insured party. The amounts of such insurance to be
carried for liability due to property damage shall be $500,000 as to anyone occurrence, and against
liability due to injury or death of a person $2,000,000 as to anyone person and $5,000,000 as to anyone
occurrence. A certificate or certificates of insurance shall be filed and maintained with the City during
the term of this Ordinance. Grantee agrees that, at the end of the fifth (5th) and tenth (10th) complete
fiscal years following the effective date of this Ordinance, it will increase the amounts of insurance
required to be maintained by Grantee under this Section 3B in accordance with an opinion of a qualified
insurance consultant agreed to by the City and Grantee stating that such amounts should be increased.
C. GRANTEE AGREES TO HOLD HARMLESS, INDEMNIFY, AND DEFEND THE
CITY AND ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ALL
CLAIMS, DAMAGES, AND LIABILITY, INCLUDING FEES OF ATTORNEYS AND EXPERT
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WITNESSES, ARISING IN CONNECTION WITH THE INSTALLATION, MAINTENANCE,
AND OPERATION OF GRANTEE'S FACILITIES. GRANTEE WILL DEFEND AT ITS
EXPENSE ALL ACTIONS THAT MAY BE COMMENCED AGAINST THE CITY IN
CONNECTION WITH THE INSTALLATION, MAINTENANCE, AND OPERATION OF
GRANTEE'S FACILITIES. The selection oflegal counsel for any such defense will be at the sole
discretion of the City. The specification of minimum coverage limits in Section 3B does not limit
Grantee's indenmity obligations in any way.
Section 4. Facilities Construction; Service Availability.
A. Grantee will complete the initial construction of all of Grantee's facilities in the City by
June I, 2006. As ofthat date, Grantee will make cable service available to 100% ofthe residences within
the City. If Grantee does not complete construction of Grantee's facilities throughout the City at the
same time, Grantee will give written notice to the City ofthe date for initiation of service to each area
of the City in which Grantee is completing construction.
B. Grantee will install its facilities in compliance with all applicable laws and regulations,
including the City requirements and the regulations of the FCC and the Federal Aviation Administration.
C. Grantee will extend its facilities and make cable services available to new residential areas
within the City whenever a density of at least 25 residential units per cable mile is realized, as measured
from Grantee's facilities then existing. Measurement of cable length will not include service drops to
residences.
D. In addition to its obligations above, Grantee will extend Grantee's facilities and make cable
services available to any residence or business where the potential customer agrees to pay the cost of the
extension.
E. If, during the term of this Ordinance, the City grants approval of plats for new developments,
the City shall notify Grantee or advise the developer to notify Grantee of the timing of construction and
location of trenching rights-of-way and give Grantee reasonable opportunity to place cable or conduit
in such trenches. The City will make available to Grantee copies of all plats for new developments
approved by the City during the term of this Ordinance.
F. Grantee shall provide a locking or electronic blocking device to any subscriber of the Cable
service, at the subscriber's request, which, when locked by a key or electronically blocked, will prevent
the television set from being tuned to any channel designated by the subscriber. Grantee shall have the
right to charge an amount equal to its cost of providing said locking device.
Section 5. Operation and Maintenance of Grantee's Facilities.
A. Grantee will operate and maintain Grantee's facilities so that they produce audio and visual
signals that are clear and undistorted, and as good as state-of-the-art cable service technology allows as
of the start-up date of this Ordinance and throughout the term ofthis Ordinance.
B. Grantee will operate and maintain Grantee's facilities in compliance with all applicable laws
and regulations, including the City requirements and the regulations of the FCC and the Federal Aviation
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Administration. Grantee will install, operate, and maintain Grantee's facilities so that they do not cause
cross-modulations in the cable or interference with other electrical or electronic systems.
C. Grantee will operate and maintain an office convenient to residents of the City that will be
open during normal business hours and will have a local listed telephone number to receive complaints
and requests forrepairs or adjustments at any time, 24 hours per day, seven days per week. Grantee will
maintain a force of one or more agents or employees specifically assigned to the City at all times and
will have sufficient employees to provide safe, adequate, and proper services for Grantee's facilities.
Grantee will locate and correct malfunctions in Grantee's facilities promptly. If a customer is not
satisfied with the resolution of a service complaint after contacting the local office twice for the same
complaint, on the third contact the complaint will be handled personally by Grantee's local office
manager or his equally authorized desiguee. On the fourth complaint, Grantee will promptly notify the
City Manager in writing, and the complaint will be promptly resolved by Grantee to the complete
satisfaction of the City Manager.
D. Grantee will notify all customers by mail of all channel changes within seven (7) days prior
to the change.
E. Grantee will employ a trained and competent staff for the installation, operation, and
maintenance of Grantee's facilities.
F. Grantee will render efficient service, make repairs promptly and properly, and interrupt
service only for good cause and for the shortest time possible. Planned service interruptions will be
preceded by notice to customers and will occur during periods of minimum use of Grantee's facilities
by Grantee's customers.
G. All installations and repairs made by Grantee will be performed in a good, substantial, safe,
and workmanlike manner. Grantee will make all connections of wires, cables, and equipment to
customers' residences and buildings in a manner that is waterproof and prevents access by insects and
vermm.
H. Grantee agrees to provide programming responsive to the City's needs and interest for
Spanish language programming. This programming shall consist of at least two (2) Spanish language
channels or other Spanish cultural equivalents available at all times in the most popular service level
offered by Grantee.
L Grantee will not hinder the retransmission of a signal transmitted by any broadcast or non-
broadcast service for the benefit of the hearing impaired.
J. Effective one (1) year after Grantee completes its system buildout as described in Section 4A,
Grantee will provide a report to the City Manager within fifteen (15) days after the end of each calendar
quarter that includes the following for the preceding calendar quarter:
1. Grantee's compliance with FCC customer service requirements, with previous one-
year history, in narrative, table, and graph form; and
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2. the total number and the total duration of significant service interruptions, in
narrative, table, and graph form.
K. Grantee will not disclose personally identifiable information concerning any customer to any
third party without the prior written consent of the customer. Personally identifiable information will
not include any record of aggregate data which does not identify particular persons.
L. The City Council shall have the right under this Ordinance at any time to review the
performance of Grantee hereunder and to ascertain that all provisions of this Ordinance are being fully
and faithfully carried out. The City Council may conduct formal performance evaluations of Grantee's
Facilities and the Cable services on or about the fifth (5th), ninth (9th), and thirteenth (13th) anniversary
of the effective date of this Ordinance. The City shall permit the Grantee to be involved in and comment
on establishing the method and format of such evaluation prior to the evaluation.
M. The City shall automatically have all of the rights, benefits and powers granted to
municipalities under federal or State of Texas cable television laws or regulations in effect and as
amended during the term of this Ordinance, including specifically all powers or rights to regulate cable
television rates, services and programming, as if such laws and regulations were incorporated herein.
Any other matters permitted by such enactments or amendments shall be negotiated in good faith by the
City and Grantee.
Section 6. Provision by Grantee of Facilities and Services to Public Entities.
A. To the extent permitted by law, Grantee agrees to install at its expense, on a regional basis,
all equipment necessary to enable local emergency management officials to interrupt all television
broadcasting on Grantee's facilities for the purpose of making emergency audio and video management
announcements and to provide that such override may be introduced from a facility easily accessible by
the City. This equipment is to be installed at a location accessible by and reasonably acceptable to the
City by the system build-out date described in Section 4A.
B. Grantee shall provide one (1) service connection, including cable television and/or internet
service through a minimum of two-pair fiber optic service to each City building or facility as may be
now or hereinafter designated by the City Manager and cable television and/or internet service in each
ofthe following locations:
I. all public and parochial school buildings as may be now or hereinafter designated by
the City Manager; and
2. each classroom building and dormitory building of each college or university.
If, during the term of this Ordinance, Grantee develops, builds, or obtains the ability to provide other
forms of cable television services not currently being provided, and such new services are offered and
provided to either residential or commercial subscribers in the City, and if such services are subscribed
to by residential or commercial subscribers, Grantee shall so inform the City Manager in writing and
shall provide at least one (1) service connection to provide such service to the City's facilities as set forth
above; however, Grantee shall be under no obligation to continue to provide such new service(s) to the
City if Grantee ceases to offer or provide such new service(s) to either resident or commercial
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subscribers in the City. No charge shall be made by Grantee for the installation, disconnection (when
reasonably requested), reconnection (when reasonably requested), monthly services, and/or maintenance
of equipment authorized by this Section; however, Grantee shall not be required to make such
installations if line extension in excess of 300 feet would be required.
C. Grantee shall advise the City with its quarterly report under Section 5J of any major changes
in federal and/or Texas law and regulation relating to the cable industry and any significant advances
in technology in the cable industry relating to the quality and quantity of services which may be
available and shall promptly inform the City in writing of the implementation of any interconnect with
another cable system.
D. Grantee shall arrange for its representatives to meet at least once each year with
representatives of the City to provide additional information which Grantee believes is useful to the City
in connection with Grantee's Facilities and to respond to inquires from the City in connection with
Grantee's Facilities and this Ordinance.
E. Grantee shall meet or exceed all local programming requirements or recommendations of the
FCC or applicable State of Texas or federal law or regulation. Grantee may produce such programming
itself or may rely on local groups to produce such programming with technical assistance from Grantee.
Grantee agrees to permit the City, as the City's option, to participate in the formation and operation of
a broadly representative advisory board to help implement community involvement in local origination
production and use of public access channels. Grantee shall provide and maintain a studio in San
Antonio, Texas or in another location at Grantee's option reasonably accessible to residents ofthe City
for the purpose oflocal program production and origination.
Section 7. Promulgation of Rules by Grantee; Refunds.
A. Grantee may promulgate rules, regulations, terms, and conditions governing the conduct of
its business. These rules, regulations, terms, and conditions must be reasonable and must not conflict
with the terms of this Ordinance or other ordinances or the charter, laws, regulations, or policies of the
City, the State of Texas, or the United States.
B. Grantee will make appropriate credits or refunds to customers for periods when Grantee's
facilities undergo a significant service interruption and in other circumstances in which Grantee's
services are not of the highest quality.
Section 8. Conditions on Occupancy of City Right-of-Way.
A. Grantee will submit plans for any change in Grantee's facilities in City right-of-way,
including but not limited to changes in the location of facilities and the extension or construction of new
facilities, to the City Manager at least five (5) days prior to the start of construction of the change.
Grantee will not begin construction of the change without fust obtaining the approval of the plan by the
City Manager. These requirements do not apply to bona fide emergency repairs. Grantee will provide
immediate verbal notice to the City Manager of any excavation performed within a City right-of-way
in connection with an emergency repair. Grantee will in all events .comply with all construction codes
and regulations and all permitting requirements of the City.
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B. Grantee shall not install additional poles where poles are already in place and shall secure all
necessary licensing agreements to utilize existing poles for its cable.
C. Grantee will not place Grantee's facilities where they will interfere with the existing lines,
equipment, or fixtures of any water, wastewater, gas, electric, other cable television, or telephone utility,
or with drainage, in a City right-of-way. Grantee will place any poles, equipment, and fixtures set by it
in any street or alley at the outer edge ofthe sidewalk and as close as practicable to the boundary ofthe
street or alley, and in a manner that does not interfere with vehicle or pedestrian travel on streets, alleys,
and rights-of-way.
D. In City right-of-way where electric, existing cable television, and telephone service lines are
routed underground, Grantee will route its lines underground.
E. When Grantee or its contractors, agents, or employees disturb any pavement, sidewalk,
driveway, or other improved surfacing in City rights-of-way, Grantee will replace and restore the
surfacing throughout the disturbed area to a condition as good or better than the condition of the surface
before work was commenced. Grantee will repair any settling or deterioration of the restored surface for
a period of one (1) year after the completion of the work. Grantee will fully comply with all regulations
applicable to such work, including but not limited to sawcutting, backfilling, compaction, and paving
standards. Grantee will replace or repair all privately and publicly owned property damaged as a result
ofthe installation, operation, or maintenance of Grantee's facilities.
F. Grantee's use of City right-of-way will be subordinate to roadway, sidewalk, and drainage
uses. If the City elects to install or alter the route, location, width, or grade of any street, alley, sidewalk,
drainage, or related facility in a City right-of-way, Grantee will remove, relay, or relocate Grantee's
facilities that are affected at Grantee's expense upon reasonable notice by the City. The City will have
the right to require Grantee to change the location of any of Grantee's facilities at Grantee's expense
when the public convenience requires the change, as determined by the City Manager. In the event a
City right-of-way is vacated or abandoned, Grantee will remove all of its facilities from the right-of-
way and restore the premises without delay or cost to the abutting owners or the City. If Grantee refuses
or fails to remove, relay, or relocate Grantee's facilities after notice by the City, the City will have the
right to remove, relay, or relocate Grantee's facilities and charge the costs to Grantee, and any resulting
interruptions in service to any of Grantee's customers will be the sole responsibility of Grantee.
GRANTEE WILL HOLD THE CITY AND THE CITY'S AGENTS, EMPLOYEES, AND
CONTRACTORS HARMLESS FOR ANY DAMAGE TO GRANTEE'S FACILITIES
LOCATED IN CITY RIGHT-OF-WAY IN THE EVENT GRANTEE'S FACILITIES ARE
DAMAGED AS A RESULT OF CONSTRUCTION OR MAINTENANCE OPERATIONS
PERFORMED ON THE CITY'S ROADWAYS, SIDEWALKS OR DRAINAGE FACILITIES
BY THE CITY OR THE CITY'S AGENTS, EMPLOYEES, OR CONTRACTORS.
G. Grantee's use of City right-of-way will be subordinate to use by City utilities. If the City
elects to install or alter the route, location, or character of any City utility facility in a City right-of-way,
Grantee will remove, relay, or relocate Grantee's facilities that are affected at Grantee's expense upon
reasonable notice by the City J'f Grantee refuses or fails to remove, relay, or relocate Grantee's facilities
after notice by the City) the City will have the right to remove, relay, or relocate Grantee's facilities and
charge the costs to Grantee, and any resulting interruptions in service to any of Grantee's customers will
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be the sole responsibility of Grantee. GRANTEE WILL HOLD THE CITY AND THE CITY'S
AGENTS, EMPLOYEES, AND CONTRACTORS HARMLESS FOR ANY DAMAGE TO
GRANTEE'S FACILITIES LOCATED IN CITY RIGHT-OF-WAY IN THE EVENT
GRANTEE'S FACILITIES ARE DAMAGED AS A RESULT OF INSTALLATION OR
MAINTENANCE OPERATIONS PERFORMED ON THE CITY'S UTILITIES BY THE CITY
OR THE CITY'S AGENTS, EMPLOYEES, OR CONTRACTORS.
H. Grantee will provide as-built maps of all or part of Grantee's facilities in hard copy and
computer form, compatible with the City's mapping systems, at the request of the City Manager.
I. Grantee will comply with all City requirements, requirements of other governmental agencies,
and industry standards for locating existing utility facilities prior to performing any maintenance work
on Grantee facilities that requires excavation.
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J. Grantee will temporarily raise or lower its wires and cables to permit the moving of buildings
at the request of any person holding a building moving permit issued by the City. Grantee may charge
to the requesting person the reasonable expense of temporary removal, raising, or lowering of wires and
cables, and Grantee may require payment in advance. Grantee may require that a request be made at least
72 hours in advance.
K. Grantee will have the authority to trim trees upon and overhanging streets, alleys, sidewalks,
and public places of the City to prevent branches from coming in contact with Grantee's facilities. All
trimming will be done in accordance with City requirements and at Grantee's expense.
Section 9. Preferential or Discriminatory Practices Prohibited.
A. Grantee will not grant any reference or advantage to any Person, nor subject any Person to
any prejudice or disadvantage as to rates, charges, service facilities, rules, regulations, or other aspects
of its business practices. This does not prohibit Grantee from establishing a graduated scale of charges
and classified rate schedules to which any customer coming within the classification would be entitled.
Grantee will not deny access to cable service to any potential residential customer because of the income
of the customer or of residents of the area in which the customer is located. Grantee will provide cable
service programming on an equal basis to all areas ofthe City.
B. Grantee will not discriminate in any way in the provision of services to customers on the
basis of race, color, religion, national origin, age, sex, or disability.
C. Grantee will not discriminate against any Person in its employment practices because of race,
color, religion, national origin, age, or sex, nor will Grantee discriminate in its employment practices
against any qualified person because of disability.
Section 10. Approval of Transfer.
A. All of the rights and privileges and all of the obligations, duties, and liabilities created by this
Ordinance shall pass to and be binding upon the successors of the City and the permitted successors and
assigns of Grantee; and the same shall not be assigned, transferred, sold, or disposed of by Grantee and
no sale, merger, consolidation, or transfer of controlling ownership interest in Grantee shall be permitted
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without the prior written approval of the City Council, which approval shall not be unreasonably
withheld; however, this Section shall not prevent Grantee's assignment or pledge of the franchise
granted by this Ordinance as security for debt without such approval; and provided further that
assignments, transfers, sales, or dispositions by Grantee of Grantee's rights, duties, and obligations under
this Ordinance or the sale, merger, consolidation, or transfer of controlling interest in Grantee to any
entity controlling, controlled by, or under the same common control as Grantee shall be permitted
without the prior written approval of the City Council; provided, further Grantee shall give written notice
to the City Manager of all such actions at last sixty (60) days prior to the effective date thereof.
B. Any permitted successor or assignee of Grantee will be bound by all the terms of this
Ordinance. Any transfer or assignment or other action will be effective only when the assignee files its
written acceptance and agreement to be bound by this Ordinance with the City Manager.
Section 11. Payment of Franchise Fee to City; Audit.
A. The City Council finds that the City rights-of-way to be used by Grantee in the provision of
services in the City is valuable public property, acquired and maintained by the City at substantial
expense and obligations to City taxpayers. Without the rights granted by this Ordinance, Grantee would
be required to undertake substantial investments and obligations in acquiring its own rights-of-way and
easements. Grantee agrees to pay to the City as general compensation a franchise fee consisting of five
percent (5%) of Grantee's gross revenue derived within the City from cable service (including but not
limited to installation fees, subscriber fees, and pay television services, but excluding taxes or fees (other
than fees payable under this Section) collected by Grantee and wholly transmitted to a governmental
authority). It is the intent of the parties to include in the term "gross revenue" the value of all
consideration to Grantee, cash and otherwise, that Grantee derives from the provision of cable service
through and in connection with Grantee's facilities, including the following:
1. all fees charged to Grantee's customers for use of Grantee's facilities;
2. revenues from leasing Grantee's facilities to third parties for provision of services
otherwise governed by the terms of this Ordinance;
3. advertising, including a prorata portion of national revenue attributable to Grantee
from the operation of Grantee's facilities in the City; and
4. sale or rental of customer lists.
"Gross revenue" does not include Grantee's revenues from telecommunications services,
nor does it include revenue not actually received.
B. Grantee will make franchise fee payments to the City computed and paid quarterly, thirty
(30) days after the close of each quarter of Grantee's fiscal year, currently ending on December 31 of
each year. Grantee will make these payments to the office of the City Manager. Each payment will be
accompanied by a summary of the data and calculations to support the amount ofthe payment, including
a breakout by month.
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C. The compensation described in this Section is in addition to all special assessments and taxes,
including, but not limited to, ad valorem taxes, right-of-way construction permits, inspection fees, and
assessments for recovery of costs incurred by the City.
D. For any quarterly payment made after noon on the date due, Grantee shall pay a late payment
charge of$100.
E. Grantee's payment of compensation under this Section does not limit or impair the privileges
or rights ofthe City, whether under this Ordinance or otherwise. The City's acceptance of payment will
not be construed as an agreement that the amount paid is correct, nor will it be construed as a release of
any claim which the City may have.
F. Grantee will file with the City Manager a statement of Grantee's gross revenue derived from
its business and operations in the City for each fiscal year not later than the 120th day after the end of
Grantee's fiscal year which is, on the effective date of this Ordinance, December 31. The statement must
contain a detailed description of gross revenue and uncollectible accounts for the year.
G. Grantee will keep complete and accurate Tecords and books of accounts of its business and
operations in the City in accordance with generally accepted accounting principles. The City shall have
the right to inspect and audit Grantee's income records and the right to recompute any amounts
determined to be payable under this Ordinance. An audit of any fiscal year may be made at any time
during the term of this Ordinance but limited only to the examination of Grantee's books for the two (2)
complete fiscal years immediately preceding the date of such audit request. Any additional amount due
as a result of such audit, together with interest at the maximum interest rate permitted by law from the
last day of the fiscal year from which such additional amount is due, shall be paid to the City within
thirty (30) days following written notice to Grantee by the City, which notice shall include a copy of the
audit report. The cost of such audit shall be borne by Grantee if it is determined that franchise fees
should be increased by three percent (3%) or more of the City's annual franchise fee received in the
immediate preceding two (2) calendar years from the date of such audit. Should there be such a
deficiency following an audit of Grantee's books, the City shall have the right during the term of this
Ordinance to conduct a second examination of Grantee's books which may, at the City's option, extend
to the time period ending with the last audit period that reflected a deficiency in the City's expense by
an independent account firm to be mutually agreed upon between the parties.
H. Acceptance of any payment by the City shall not be construed as a release or as an accord
and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee
or for the performance of any obligation of Grantee hereunder.
I. Grantee's books of accounts and records of its business and operations under and in
connection with this Ordinance shall be available at Grantee's office in San Antonio, Texas. The City
shall have access upon reasonable advance written notice and at reasonable times to review all of
Grantee's books of accounts and records of its business and operations in the City to the extent
reasonably necessary to enforce the terms ofthis Ordinance. Any intentional false entry in the books
of account or records of Grantee or any intentional false statement in the reports to the City as to a
material fact, knowingly made by Grantee shall constitute a major violation of this Ordinance.
Unintentional errors in such books and reports shall not constitute a violation.
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Section 12. Term of Franchise; Extensions; Forfeiture; Termination.
A. This Ordinance will be in full force and effect for a term of fifteen (15) years beginning
September 1, 2000.
B. Grantee will be entitled to receive one five (5)-year extension of the term of this Ordinance.
The request must be in writing and must be submitted to the City Manager no later than January I,
2012. The extension, upon timely notice to the City Manager, will be automatic if
L Grantee is in compliance with the material terms and conditions of this Ordinance;
and
2. Grantee's performance has been consistent with current overall industry technical
practices and range and level of services, and Grantee has the demonstrated ability and agrees
to perform consistently with industry practices during the extension period by implementing
improvements to Grantee's facilities that are commercially feasible.
C. The City Council may initiate a review of the performance of Grantee under this Ordinance
at any time. To determine satisfactory performance, the City will consider Grantee's technical
performance, its customer service experience, and its compliance with the terms of this Ordinance. If
the City Council finds the performance of Grantee to be unsatisfactory, the City Manager will notify
Grantee in writing of the specific areas of unsatisfactory performance and give Grantee a reasonable time
to correct the deficiency. If Grantee does not correct the deficiency within the time given, the City
Council may terminate this Ordinance.
D. Grantee commits a default under this Ordinance if Grantee
L fails to make any required payment to the City in a timely manner;
2. violates Section 3B, 3C, 6A, 6B, 8F, 8G, 11A, liB, lID, 11F, 111, or any other
material provision of this Ordinance or any determination made by the City Manager or City
Council under this Ordinance, or fails to comply with any City requirement;
3. fails to exercise diligence in commencing or completing construction of Grantee's
facilities;
4. fails or ceases to furuish cable services in accordance with this Ordinance; or
5. attempts to evade any of the provisions ofthis Ordinance or attempts to practice any
fraud or deceit upon the City.
E. In addition to all other rights of the City under this Ordinance or otherwise, the City Council
may terminate this Ordinance on the basis of a default by Grantee if Grantee fails to cure the default
within thirty (30) days after receipt of written notice from the City Manager of the default, or within a
different time period set by the City Manager for good cause in the notice of default.
F. In the event the City terminates this Ordinance, Grantee will have ninety (90) days from the
date of receipt of notice of termination to remove all of its facilities from City right-of-way. The City
633928.6 12
may remove and dispose of, or may assume ownership of and may use, any of Grantee's facilities that
are not timely removed by Grantee. The City may charge any costs for removal and disposal of
Grantee's facilities to Grantee.
G. Any failure ofthe City to enforce any provision ofthis Ordinance in one or more instances
will not be construed as a waiver of the City's right to fully enforce this Ordinance after that time.
Section 13. Equal Treatment.
If at any time during the term of this Ordinance, Grantee modifies or renews its franchise
agreement with any other franchisor located wholly or in part in Bexar County, Texas, Grantee shall
notify the City and provide the City with a copy of such modification or renewal instrument If such
franchise agreement, as modified or renewed, contains provisions relating to franchise fees, city tax
calculations or payments, or services provided to or available to the grantor of a franchise or its
residents, and the City believes such provisions to be of benefit to the City, then, at the written request
of the City, such provisions shall be incorporated into this Ordinance. The City agrees, however, that
the City shall not request inclusion of any provisions relating to (1) purchase of Grantee's facilities by
the City; (2) expenditures related to franchise renewal or modification; or, (3) public, educational, or
governmental access in excess of that required by law.
Section 14. Miscellaneous Provisions.
A. Notices required by this Ordinance will be provided by the parties to one another by certified
mail, return receipt requested, or by confirmed facsimile transmission, to the following addresses:
To the City:
City of Schertz
City of Schertz Municipal Offices
1400 Schertz Parkway
P. O. Drawer 1
Schertz, T)( 78154
Attention: City Manager
Fax: 210/658-7477
To Grantee:
Grande Communications, Inc.
1801 Lavaca, Suite 115
Austin, T)( 78701
Attention: Regional Director
Fax: 512/457-0507
If a party changes its address or facsimile number for notice purposes, it will provide written
notice of the change to the other party within ten (10) days.
633928.6
13
B. If any word, phrase, clause, sentence, or paragraph of this Ordinance is held to be
unconstitutional or invalid by a court of competent jurisdiction, the other provisions ofthis Ordinance
will continue in force ifthey can be given effect without the invalid portion.
C. If Grantee is rendered unable to carry out a specific obligation under this Ordinance, other
than an obligation to make payments to the City, because of a circumstance beyond Grantee's control
(an ''uncontrollable circumstance''), such as a civil disturbance, unforeseeable material and service
shortages, unavoidable casualty, labor dispute, severe weather, or other similar event, or an order, decree,
rule, or regulation of any court or government body having jurisdiction over Grantee, or any mandates
imposed by the City which have the effect of rendering Grantee unable to perform under the terms of
this Ordinance, Grantee will give prompt written notice to the City ofthe uncontrollable circumstance
and the obligation involved, and the obligation will be suspended during the period of the uncontrollable
circumstance.
D. This Ordinance will be in effect from and after its passage by the City Council of Schertz,
publication of notice its adoption in a newspaper of general circulation in the City as required by the City
Charter and the filing of acceptance by Grantee with the City Secretary.
E. Grantee will have thirty (30) days after the date ofthe publication of notice of adoption of
this Ordinance to file its written acceptance with the City Secretary. The written acceptance will be in
the form attached as Exhibit A.
[The remainder of this page intentionally left blank.)
633928.6
14
PASSED AND APPROVED on first reading the 12th day of July, 2000.
~4/4/&
MAY ~-/E:/1!
ATTEST:
~~
CIT SECRETARY
PASSED AND FINALLY APPROVED on the 15th day of August, 2000.
~ , &L---
MAYOR f7~ TE/VT
ATTEST:
~~-a..U
CITY SECRETARY
633928.6
S-1
EXHIBIT A
ACCEPTANCE
WHEREAS, the City Council of the City of Schertz, Texas, has adopted this Ordinance granting
to Grande Communications, Inc. a franchise to operate within the City and use the City right-of-way and
prescribing certain obligations and duties as set forth in the Ordinance, to become effective upon filing
of this acceptance;
NOW, THEREFORE, for the purpose of complying with the terms of this Ordinance and for the
purpose of accepting the Ordinance, Grande Communications, Inc. executes this written acceptance of
all the terms and provisions of the Ordinance, and files this Acceptance with the City Secretary of the
City of Schertz, Texas on August 28, ,2000.
Signa
. e President & General Manager
Printed name, title
GRANDE CO~ICATIONS, INC.
Q~ fJ:;
Administrative Ass1stant
Printed name, title
ACCEPTANCE filed in the office of the City Secretary ofthe
City of Schertz, Texas, on tl.u1J- ,;2f',2000.
By: ~~./<:1&../
Norma Althouse, City Secretary
633928.04
A-I
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