O-2362-1-05ORDINANCE NO. 2362-1-05
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN
COUNTY, TEXAS, GRANTING TO GRANDE COMMUNICATIONS NETWORKS,
INC., A NON-EXCLUSIVE FRANCHISE TO USE PUBLIC RIGHTS-OF-WAY OF THE
CITY OF ALLEN, TEXAS, FOR THE PURPOSES OF CONSTRUCTING AND
OPERATING A CABLE TELEVISION SYSTEM IN THE CITY OF ALLEN; SETTING
FORTH TERMS AND CONDITIONS TO GOVERN THE FRANCHISE; PROVIDING
FOR REGULATION AND USE OF SUCH SYSTEM PROVIDING A REPEALING
CLAUSE, A SEVERABILITY CLAUSE, A SAVINGS CLAUSE AND AN EFFECTIVE
DATE.
WHEREAS, pursuant to the Cable Communications Policy Act of 1984, 47 U.S.C. §§521 et sea., as amended,
the City may grant or renew a franchise to construct, operate and maintain a cable television system; and,
WHEREAS, pursuant to state law and City ordinance, the City is empowered to grant cable television franchises
and to regulate cable television systems in the public interest; and,
WHEREAS, on July 20, 1995, the City Council of the City of Allen, Texas ("Council') adopted Ordinance No.
1340-6-95, the City of Allen, Texas Cable Communications Ordinance, governing the granting and regulation of
cable television franchises for, and the installation, construction and operation of, cable television systems within
the City (the "Ordinance"); and,
' WHEREAS, on January 17, 2002, the Council adopted Ordinance No. 2019-1-02, amending Section 18 of the
Cable Communications Ordinance pertaining to customer service requirements; and,
WHEREAS, Grande Communications Networks, Inc., has applied to the City for a franchise to construct, install,
maintain and operate a cable system in the City; and,
WHEREAS, the construction, installation, maintenance, and operation of such a system involves the use the
Public Rights -of -Way, over which the City exercises governmental control; and,
WHEREAS, the Council has evaluated Grande Communications Networks, Inc., application in light of the
requirements of federal and state law and the ordinance; and,
WHEREAS, the Council has relied on Grande Communications Networks. Inc., representations and has
considered all information presented to it by Grande Communications Networks, Inc., by City staff, by its
consultants, and by the public and finds that Franchisee has the legal, financial and technical qualifications to
provide the residents of Allen with cable service; and,
WHEREAS, based on said representations, the Council has determined that a grant of a nonexclusive franchise to
Grande Communications Networks, Inc., to construct, install, maintain and operate a cable system in the City,
subject to the terms and conditions set forth herein and in the ordinance, is consistent with the public interest; and,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ALLEN,
COLLIN COUNTY, TEXAS, THAT:
SECTION 1. Definitions. For the purpose of this ordinance the following terms, phrases, words,
abbreviations and their derivations shall have the meaning given herein. When not inconsistent with the context,
words used in the present tense include the future tense, words in the plural number include the singular number,
and words in the singular number include the plural number.
1.1 "Cable Ordinance" shall mean City Ordinance No. 1340-6-95, governing the granting and regulation of
cable television franchises for, and the installation, construction and operation of, cable television systems
within the City as it may be amended from time to time. It also shall mean City Ordinance No. 2019-1-02,
amending Section 18 of the Cable Communications Ordinance pertaining to customer service requirements
as it may be amended from time to time.
1.2 "City" shall mean the City of Allen, Texas, and includes the territory that currently is or may in the
future be included within the boundaries of the City.
1.3 "Effective Date" shall be as provided for in Section 3.
1.4 "Franchise" shall mean the non-exclusive permission granted to Franchisee to use the Public Rights -of -
Way for its Cable System.
1.5 "Franchisee" shall mean Grande Communications Networks, Inc., a Texas corporation, and its lawful
and permitted successors, assigns and transferees pursuant to Sections 24 and 25 of this Agreement and
Sections 8 and 24 of the Ordinance.
1.6 "Franchise Fee" shall mean the total franchise fees due from Franchisee as set forth in Section 21, herein
and Section 2 (q) of the Cable Ordinance.
1.7 "Gross Revenues" shall mean the Gross Revenues as set forth in Section 2(q) of the Cable Ordinance
and also the following:
A. If Company bundles, ties or combines Cable Services (which are subject to the Franchise Fee
under this Franchise) with non -Cable Services (which are not subject to the Franchise Fee under
this Franchise) and assesses a subscriber only one fee, the combined revenue therefrom shall be
allocated to Cable Services to the full extent which would have been charged by Company if the
subscriber had received only Cable Services. In no event shall the amount allocated to Cable
Services under the foregoing calculation exceed (1) the total amount of combined revenue
actually received by Company (in which case (B) shall apply) or (2) the net revenue derived when
mandatory tariff rates (if any) imposed by a governmental authority for components of the
bundled, tied or combined services are deducted from the combined revenue. Notwithstanding
any interpretation to the contrary, this Franchise does not authorize Company to vary or alter any
payments or amounts of compensation to the City which may be dictated by another franchise,
ordinance, agreement or by applicable law and are related to use of the Public Rights -of -Way in
the provision of non -Cable Services in the City.
B. In the event that Company bundles services that are included in the definition of Gross Revenue
with other services not included, the computation of Gross Revenue under this franchise shall be
the greater of the amount noted on the bill for Cable Services or the amount that includes a
proportional discount no greater than any of the other services included on the bundled billing.
Franchisee shall make a clear showing that services offered pursuant to this Franchise were
discounted along with an accounting of the amount of said discount for Cable Services and each
of the other services included in the bundled billing.
Franchisee commits that it will not unlawfully or unfairly allocate revenue to the non -Cable
Services for the purpose of avoiding franchise fee payment under this Franchise. The City shall
have the right to audit all records related to the allocation of revenue to Cable Services and non -
Cable Services.
During any period that the City and Franchisee are in dispute concerning the bundling of services
and resulting franchise fee computations, the Franchisee agrees to continue to pay franchise fees
based on a proportionately applied discount to Cable Services and each of the non -Cable Services
included in the bundled billing. In the event that the final determination by a court of competent
jurisdiction concerning the allocation methodology is different from such proportionately applied
discount, the City agrees that all franchise fees rendered pursuant this provision shall be re-
computed in accordance with the applicable ruling.
Notwithstanding any interpretation to the contrary, this Franchise does not authorize Franchisee
to vary or alter any payments or amounts of compensation to the City that may be dictated by
another franchise, ordinance, agreement or by applicable law and are related to the use of the
Public Rights -of -Way in the provision of non -Cable Services in the City.
C. The parties intend for the definition of Gross Revenue to be as inclusive as possibly consistent
with existing applicable law. If there is a change in federal law subsequent to the effective date
of this Franchise, such change shall not impact this Gross Revenues definition in such a way to
reduce Gross Revenues unless the change specifically preempts the affected portion of the
definition above.
1.7 "Laws" shall mean any and all applicable statutes, constitutions, ordinances, resolutions, regulations,
judicial decisions, tales, tariffs, administrative orders, certificates, orders, or other requirements of the
City or other governmental agency having jurisdiction of the parties to this Franchise Agreement, in effect
during the term of the Franchise Agreement.
1.8 "Public Right -O( --Way" means the area of land within the City that is acquired by, dedicated to, or
claimed by the City in fee simple, by easement, or by prescriptive right and that is expressly or impliedly
accepted or used in fact or by operation of law as a public roadway, highway, street, sidewalk, alley, or
utility access easement. The term includes the area on, below, and above the surface of the Public Right -
of -Way. The term applies regardless of whether the Public Right -cif -Way is paved or unpaved.
1.9 "Right -of -Way Management Ordinance" shall mean Ordinance No. 1950-6-01 codified as Article 3,
Chapter 13 of Code of Ordinances as amended.
SECTION 2. Grant of Authority.
2.1 Permission. Subject to the terms of this Franchise Agreement and of the Cable Ordinance, the City
hereby grants Franchisee a non-exclusive permission to own, construct, install, maintain and operate a
Cable System in, over, under, along and across the Public Rights -of -Way.
2.2 Additional Services. By granting this Franchise, the City does not waive, and specifically retains, any
' right to regulate and receive compensation as allowed by law for services offered over the Cable System
which are not Cable Services. Franchisee shall not use the Public Rights -of -Way for any use or purpose
other than its use of a Cable System, without obtaining, separate, written authorization from the City for
the ancillary service. Within five business (5) days of City's request, Franchisee shall inform the City of
any non -Cable Service offered over the Cable System of which Franchisee is aware and provide a list of
each person, firm or corporation that has attached facilities on Franchisee's facilities within the City.
Such notification shall include the name and address of the person, firm or corporation as reflected in the
Franchisee's contract with such person, firm or corporation. Nothing in this Franchise shall be construed
to limit any lawful authority of the City to impose a tax, fee, or other assessment of any kind on any
Person (other than the Franchisee, its Affiliates, or other Persons which are cable operators of the Cable
System pursuant to Section 602(5) of the Communications Act), with respect to Cable Service or other
communications service provided by such Person over the Cable System for which charges are assessed
to Subscribers but not received by the Franchisee, its Affiliates or other Persons who are cable operators
of the Cable System pursuant to Section 602(5). Upon request, Franchisee shall inform the City of any
uses of which Franchisee is aware of the Cable System by Persons who are not Cable Operators.
2.3 Area Of The City Affected. This Franchise shall extend to and include any and all territory that is
within the corporate limits of the City. Additionally, this franchise shall extend to any and all territory
that is annexed by the City during the term of this Franchise. In the event of disannexation, this Franchise
shall be reduced to the territory that continues to be in the City.
2.4 City's Rights In Public Rights -Of -Way. Franchisee acknowledges that by this Franchise it obtains no
rights to, or further use, of the Public Rights -of -Way other than those expressly granted herein.
Franchisee acknowledges and accepts at its own risk, provided that the City has the legal authority for the
use, or uses in question, that the City may use future Public Rights -of -Way in which Franchisee's Cable
System is located in a manner inconsistent with Franchisee's use of such Public Rights -of -Way and, in
that event, Franchisee shall not be entitled to compensation or reimbursement from City.
' 2.5 Continued Obligations. This Franchise does not relieve Franchisee of the obligation to comply with
applicable municipal codes and ordinances and to obtain permits, licenses and other approvals from City
or other units of government that are required for the construction, repair or maintenance of the Cable
System.
2.6 Right Of Condemnation Reserved. Nothing in this Franchise Agreement shall limit any right the City
may have to acquire by eminent domain any property of the Franchisee.
2.7 Fees. Franchisee shall pay franchise fees in accordance with Section 21 of this Franchise Agreement.
However, nothing in this Franchise shall be construed to limit the authority of the City to impose a tax,
fee, or other assessment of any kind on any person. Subject to the City's Right -of -Way Management
Ordinance as it may be amended from time to time and any other applicable local, state and Federal law
and/or regulation„ Franchisee shall pay all fees necessary to obtain all applicable local, state, and Federal
licenses, permits, and authorizations required for the construction, installation, maintenance, or operation
of its Cable System.
2.8 Conflicts. In the event of a conflict or ambiguity between the Cable Act and the Franchise Agreement,
the Franchise Agreement shall control except to the extent preempted by federal law and regulation. As
stated in Section 7 of the Cable Ordinance, in the event of a conflict or ambiguity between the Cable
Ordinance and the Franchise Agreement, the Franchise Agreement shall prevail.
2.9 Use, Rental, or Lease of Utility Poles and Facilities. There is hereby granted to Franchisee the authority to
contract with the City or with the holder or owner of any utility franchise in the City for the use, rental, or
lease of its or their poles, underground conduits, and other structures and facilities for the purpose of
extending, carrying, or laying Franchisee's wires, cables, electronic conductors, and other facilities and
appurtenances necessary or desirable in conjunction with the operation of its Cable System. The City agrees
that any public utility owning or controlling such poles or underground conduits may, without amendment to
its Franchise, allow, and is encouraged to allow, Franchisee to make such use thereof pursuant to any
agreement reached between such utility and Franchisee. Nothing in this Franchise shall authorize Franchisee
to attach any part of its Cable System to any City -owned conduits or facilities until Franchisee has entered
into a separate agreement with the City, supported by independent consideration, for such rights of
attachment or use.
2.10 Responsibility for Costs. Except as expressly provided otherwise, any act that Franchisee is required to
perform under this Franchise shall be performed at its cost. If Franchisee fails to perform work that it is
required to perform within the time provided for performance, the City may perform the work and bill the
Franchisee for documented costs. The Franchisee shall pay the amounts billed within thirty (30) days.
The parties agree that any amounts paid pursuant to this Section are not Franchise fees and fall within one
or more of the exceptions to the definition of Franchise fee under federal law. Nothing in this section is
intended to affect in any way (by expansion or contraction) Franchisee's rights under applicable law
governing rates.
SECTION 3. Term and Acceptance of Franchise. This Ordinance shall become effective on8,
2005, after its final passage, provided that Franchisee has filed with the City Secretary its written acceptanct of
this Ordinance prior to the Effective Date. This Franchise shall terminate on July 20, 2010, unless earlier
terminated by either party in accordance with the provisions herein. Upon mutual agreement of the parties, the
term of this Franchise Agreement may be renewed for two additional terms of five (5) years each on the same
terms and conditions as set forth herein or as agreed to by the parties. Franchisee and City agree that the Cable Act,
or other law applicable shall govem Franchise renewal proceedings at the time of renewal.
SECTION 4. Non -Exclusive Franchise. The Franchisee's right to use and occupy the Public Rights -of -
Way shall not be exclusive, and the City reserves the right to grant a similar or other use of said Public Rightsof-
Way, or any portions thereof, to any person, or to make such use itself, at any time during the term of this
Franchise Agreement.
SECTION 5. Franchise Subject to Cable Act the Ordinance. Other Laws and Police Power.
5.1 Subject to Applicable Law. This Franchise is subject to, and shall be governed by, all terms,
conditions and provisions of the Cable Act and all other applicable local, state and Federal laws, including
the rules and regulations of any and all agencies thereof, whether presently in force or whether enacted or
adopted at any time in the future in constructing and maintaining its Cable System.
5.2 Subject to Cable Ordinance. The Franchise is subject to, and hereby agrees that it will comply with, the
Cable Ordinance as in effect on the date that Franchisee accepts this Franchise Agreement, provided,
however, that if any term of this Agreement conflicts with a provision of the Cable Ordinance, the
Franchise Agreement shall control.
5.3 Subject to Police Power. The Franchisee shall at all times be subject to all lawful exercise of the police
power of the City, and this Agreement is not intended to limit the City's lawful exercise of such power in
any way.
SECTION & Liability Insurance. Franchisee shall obtain, maintain, and provide insurance in the amounts,
types and coverages in accordance with Section 10 of the Cable Ordinance, except during construction periods in
which the types and coverages must be in accordance with the City's Right -of -Way Management Ordinance.
SECTION 7. Indemnification of the City. Franchisee agrees to indemnify the City, its officials, officers,
boards commissions, commissioners, and employees pursuant to Section 10 of the Cable Ordinance.
SECTION 8. Construction Bond. Pursuant to Section 12 of the Cable Ordinance, Franchisee shall furnish a
construction bond in favor of the City in the amount of Fifty Thousand Dollars ($50,000). The construction bond
shall be famished to the City within thirty (30) days of the commencement of construction to build the Cable
' System. The construction bond shall be maintained for three (3) months after City Manager has determined in
writing that the cable system construction required by Section I 1 hereof is completed. Such determination by the
City shall not be unreasonably withheld. Expansion of the cable system beyond that initially required in Section
11 shall be bonded in accordance with the Right -Of -Way Management Ordinance.
SECTION 9. Security Fund.
9.1 Security Fund Required. Pursuant to Section I l of the Ordinance, Franchisee shall, within forty-five
(45) days of the effective date of this Franchise Agreement, post a security fund composed a cash security
deposit in the amount of Twenty Five Thousand Dollars ($25,000). The Security Fund shall serve as
security for Franchisee's faithful performance of all provisions of this Franchise Agreement.
9.1 City's Right to Drawdown of the Fund. If after thirty (30) calendar days written notice Franchisee fails
to pay to the City any fees or taxes due and unpaid, or any liquidated damages, damages, costs or
expenses that the City has incurred by reason of any act, omission or default of Franchisee in connection
with this Franchise Agreement; or fails after thirty (30) days notice of such failure by City, to comply
with any provision of the Franchise Agreement which the City reasonably determines can be remedied by
demand on the Franchisee, the City may immediately, at its sole election, either withdraw such amount
from the Security Fund. Upon such withdrawal or request for payment, the City shall notify Franchisee in
writing of the amount and date thereof.
9.2 Disposition of Fund on Revocation. The Security Fund shall become the property of the City in the
event the franchise is lawfully revoked. Franchisee is entitled to return of the balance of the Security
Fund that remains following any other form of expiration of the franchise, provided that there is no
outstanding default of unpaid amounts owed to the City by Franchisee.
9.3 Disposition of Fund on Other Termination. If the franchise terminates for reasons other than
revocation, any Security Fund remaining will be returned to Franchisee within one (1) year of the
termination date of the franchise, provided there is no outstanding default or unpaid amounts owed to the
City by Franchisee.
9.4 City's Rights Reserved. The rights reserved to the City under this Section are in addition to all other
rights of the City, whether reserved in this Franchise Agreement or in the Ordinance, or authorized by
other law, and no action, proceeding or exercise of a right with respect to the Security Fund will affect
any other right the City may have.
SECTION 10. Use of Public Rights -of -Way. Franchisee's use of the Public Rights -of -Way shall be subject to
the Right -of -Way Management Ordinance.
10.1 Underground Installation. In those portions of the City having telephone lines and electric utility lines
underground, whether required by ordinance or not, any and all of Franchisee's lines, cables, and wires shall
also be underground. Franchisee's lines, cables, wires, and similar facilities located above ground prior to the
effective date of this Franchise shall be relocated underground by Franchisee at the same time that other
above -ground utility lines (e.g., electric and telecommunications lines) located within the immediate vicinity
of Franchisee's facilities are placed underground. Franchisee shall pay the cost of such relocation unless there
are funds allocated to affected users of the Public Right -of -Way, including Franchisee, for the reimbursement
of such costs. If the funds are controlled by another governmental entity, the City shall make application for
such funds on behalf of the Franchisee upon request of Franchisee if Franchisee cannot make such
application itself It shall be the policy of the City that existing poles for electric and communications
purposes be utilized by Franchisee whenever possible and that underground installation, even when not
required, is preferable to the placing of additional poles.
10.2 New Subdivision Construction. Franchisee understands that it is the desire of the City that utilities and
other infrastructure, including Franchisee's, be placed into new subdivisions prior to the City's acceptance of
such subdivisions. The City will hold pre-eonstruction meetings as needed to discuss new subdivision
activity, and will provide Franchisee notice of such meetings. Franchisee shall have a representative present
at such pre -construction meetings to provide the City Manager or designee with detailed subdivision plans. It
will be the responsibility of the Franchisee to obtain pre -construction plans and provide comment to the City
Manager or designee within twenty-four (24) hours of the pre -construction meeting. Any deviation from the
pre -construction plans as finalized will require approval from the City Manager or designee. If the City
incurs any cost related to such deviation, the costs will be reimbursed by the Franchisee.
SECTION 11. System Construction.
11.1 Initial System Construction. Franchisee shall construct its initial cable system so that, within twelve
(12) months of the effective date of this Franchise Agreement, the initial system will be capable of
delivering a minimum of seventy-eight (78) activated channels of video programming to each subscriber,
and the initial system shall at no time be capable of providing less than one -hundred (100) channels of
video programming to subscribers, as described in the construction schedule and map provided in Exhibit
A.
At such time as the Franchisee has completed construction of the initial cable system as described in
Exhibit A the Franchisee shall send written notice to the City Manager. The City Manager shall have one
(1) year from receipt of such notice to verify the completion of the Cable System and complete such field
inspections as may be reasonably necessary to verify that all of the components of the cable system
design have been completed. If the City Manager believes that a consultant is necessary to assist the City
in its assessment, the Franchisee shall reimburse the City up to Five Thousand Dollars ($5,000) for such
costs incurred. Additionally, the Franchisee may review the City's request for proposals and provide
input as to the selection criteria for the consultant. Such payment will be made by the Franchisee within
thirty (30) days of receipt of an itemized invoice from the City. Upon its completion of this review and
inspection, the City shall notify the Franchisee in writing of the City's findings concerning the completion
of the construction. Further the City shall not release the construction bond described in Section 8 until
the City is satisfied that the construction and inspection is complete in accordance with this section.
11.2 Maps and Plans. Franchisee shall submit a construction plan and schedule which is part of Exhibit A
attached hereto and made a part of this Ordinance for all purposes. The plan shall consist of a map, in
both electronic (as specified by City) and hard copy format, of the entire initial cable system service area
and clearly delineate the following:
I) The timing of service availability by subdivision noted in the initial cable system service
area;
2). "As -Built" maps for each subdivision as construction is completed. Such maps shall have
the following characteristics:
A. CAD drawings must be submitted in Awg format.
B. Drawings must be submitted digitally on either CD ROM or floppy diskette.
C. Drawings must be referenced in real world coordinates.
3) Franchisee shall file annually by January I" of each year of this Franchise Agreement
with the City updated "as -built" maps, in both electronic and hard copy format, showing
' the location of Franchisee's trunk lines, feeder lines, all strand and trench routings in the
City.
4) Fmnchisee shall expand its initial cable system in accordance with Section 20 of this
Franchise Agreement. With respect to such expansion, the Franchisee will provide City
copies of any new or revised maps for any portion of the Cable System that is expanded
or modified, within ninety (90) days after construction and activation of any portion of
the Cable System. All maps will have the same characteristics as identified in 2) above.
5) In addition to the maps required in this section, the Franchisee shall also keep maps
which shall include at a minimum all Cable System routings and the location of
appurtenant structures, such as nodes, amplifiers and power supplies at a local office.
Such maps shall be available to the City Manager for inspection at the Franchisee's office
during normal business hours and upon reasonable advance notice.
11.3 No Limitation on Construction. Nothing in this Section shall prevent Franchisee from completing the
construction of the cable system earlier than required in this Franchise Agreement or from providing more
channels or greater capacity than the minimum specified in this Franchise Agreement.
11.4 Limitation of Cost Pass-Throughs. No cost associated with the construction, required by this Section, or
any subsequent upgrade, shall be passed through to subscribers of the system, unless that cost pass-through
is approved by FCC rules and regulations, and is also passed through to subscribers of other Metroplex
communities served by systems of Franchisee.
SECTION 12. Minimum Facilities and Services.
12.1 Channel Capacity. As of the effective date of this Franchise, the Cable System shall have the potential
of providing no fewer than one hundred (100) Channels. At no time during the term of this Franchise
shall Franchisee offer fewer than seventy-eight (78) Channels to each Subscriber. Cable system shall
have the capability to transmit video, voice and data services in two directions simultaneously ("two way
services"). Two way services shall he instituted at such time as it is consistent with federal and state laws
and regulations and it is economically and technically feasible; provided, however, it shall be
Franchisee's burden to demonstrate to the City at any time, that it is not economically or technically
feasible to institute such two-way services.
The initial channel lineup to any Subscriber within the City shall have at least three channels dedicated to
public, educational or governmental access use; and be addressable. One of the initial channels shall be
designated as Channel 15 for government access.
12.2 Free Service to Certain Facilities. Franchisee agrees to provide one outlet of the most common service
level tier of cable subscribed to, including installation and service and converter boxes, without charge, to
all current City facilities and all school facilities that are within one hundred fifty feet (150') of the
Franchisee's initial cable system. All other such office's and schools that exist as of the effective date of
this Franchise Agreement or that may be constructed or opened within the City during the term of this
Franchise Agreement and that are passed by the Franchisee's cable system as it is expanded will also be
provided the same service at no charge. Such connection shall be completed by Franchisee within 90
days of written request from City. The outlets of the most common service tier shall not be used to
distribute or sell services in or throughout such buildings. Users of such outlets shall take reasonable
precautions to prevent any use of the Franchisees system and such outlets in any manner that results in
inappropriate use of the system or outlets or loss or damage to the System or that results in Violation of
applicable laws and regulations governing such use, including but not limited to, copyright laws. Except
as otherwise required herein, if additional outlets of the most common service tier are provided to such
buildings, the building owner shall pay the usual outlet installation fees associated therewith, including,
but not limited to, labor and materials.
12.3 Closed Captioned Signals. All video signals received for transmission over the system to subscribers
that contain closed circuit captioning information for the hearing impaired shall contain such information
in the form received when transmitted over the system to subscribers.
12.4 New Construction. Any area of the City where Franchisee constructs new Cable System facilities shall
be build, at a minimum, to the same technical specifications as the initial Cable System required by
Section 11.
12.5 Cable System Capabilities. The Cable System will have the following attributes during the term of this
Franchise:
A. Activated return capability from Subscriber locations
B. Emergency standby power rated at a minimum of twelve (12) hours at the headend, four (4) hours
at each fiber optic node located throughout the Cable System with at least 100 subscribers, and
one and one-half (1'h) hours at any other power supply on the distribution portion of the Cable
System
12.6 Comparability of City Cable System to Others in Metroplex. Franchisee shall install and employ in its
system at all times during the tern of this Agreement, any state-of-the-art broadcast, system facilities,
programming, transmission, security and other system technology (exclusive of pilot tests and/or
demonstration projects) as defined, identified and installed by Franchisee in its (or its Affiliates) cable
systems throughout the Dallas/Fort Worth Metroplex area. Franchisee shall install -and employ digital
compression, fiber technology, and additional activated channels throughout it system in the City no later
than any such technology or additional channels are installed and employed by Franchisee (or its
Affiliates) in the first fifty percent (50) of their cable systems (franchise areas) throughout the Dallas/Fort
Worth Metroplex area.
SECTION 13. Technical Standards. Franchisee shall maintain and operate its cable system, at a minimum, in
full compliance with the terms of Section 14 of the Cable Ordinance and with all FCC technical, signal quality
and system compatibility standards.
SECTION 14. Signals to be Carried.
14.1 Required Programming Categories. Franchisee shall, at a minimum, carry programming classified under
each of the following broad categories so long as such programming remains commercially and reasonably
available:
A. News and Information
B. Arts, Culture, Performing Arts
C. Movies
D. Sports
E. General Entertainment
F. Children and Family
G. Science
H. Religious
1. Educational
J. Governmental
K. Ethnic
L. Weather
M. Music
14.2 Service for the Hearing -Impaired. Franchisee shall comply with any FCC or other lawful and applicable
federal, state or local requirements regarding altering or adapting programming for the hearing impaired.
Franchisee shall not take any action to remove or alter closed captioning provided for the hearing impaired as
a part of any programming. Franchisee shall deliver intact such closed captioning in the manner in which it
arrives at the headend or fromanotherorigination source to the Cable System.
14.3 Interconnection. Franchisee's Subscriber Cable System in the City shall be interconnected with
contiguous cable systems that are owned and operated by Franchisee or an Affiliate to the extent that such
interconnection is technically feasible. In the event that the Franchisee determines that it will not
interconnect the Cable System within the City to contiguous systems, and such interconnection is
technically feasible, the Franchisee will be required to provide a written explanation of such decision. At
such time, the City may perform a community needs assessment as to whether such interconnection is
warranted, and Franchisee shall respond to the results of such assessment. In the event that there is clear
evidence of a community need , the interconnection is technically feasible, and the interconnection is not
economically detrimental to the Franchisee, the Franchisee shall affect the interconnection in a timely
manner
14.4 Use of Cable System to Provide Internet Access by Multiple Providers. The City believes that
nondiscriminatory access to the Cable System for multiple providers of Internet service may be a benefit
to Subscribers. Therefore, the City reserves the right to adopt requirements for such access to the Cable
System, subject to applicable law. Prior to such action, the City shall notify the Franchisee in writing at
' least forty-five (45) days in advance of its intent to impose such a requirement, and hold a hearing, which
affords the Franchisee and other interested members of the public the right to be heard. By approval and
acceptance of this Franchise, neither the City nor the Franchisee has waived any rights, obligations,
claims, defenses or remedies regarding the City's authority to impose such conditions.
SECTION 15. Proof of Performance Tests. Franchisee shall comply with Section 14 of Ole Ordinance and all
applicable FCC rules governing proof -of -performance testing of cable systems.
SECTION 16. Access Channels and Facilities
16.1 Access Channels.
A. As of the effective date of this Franchise Agreement, Franchisee shall provide to the City,
voluntarily and without charge, three (3) access channels. Such channel space will be available
prior to the provision of service to any subscriber within the City. The access channel used to
cablecast the government and educational access programming will be capable of both
downstream and upstream programming.
B. At the time that the Franchisee obtains at least two thousand (2,000) subscribers, and upon six (6)
months written notice and demand by the City, Franchisee shall provide additional access channels
("Additional Access Channels") up to a maximum of two (2) Additional Access Channels during
the tens of this franchise on the following basis: Whenever the initial Channels (and, where
applicable, any Additional Access Channel(s) already in use for access purposes) are in use for
' access purposes, with first -run programming, during 50 percent of the hours between 10:00 am
and 10:00 p.m. during any consecutive 5 weeks running, or when the City otherwise reasonably
demonstrates that there is demand for use of an Additional Access Channel, Franchisee shall
provide an Additional Access Channel.
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C. The City reserves the right to designate or establish one or more Designated Access Organizations
("DAO") for the purpose of developing, managing, administering or using all or any part of any
access channel or access channels.
16.2 Access Channel Location. The access channels to be provided to the City as set forth in Sections 16.1
(A) — (B) hereof may be allocated by the City to any or all of the three categories of access use (public,
educational or governmental) at the sole discretion of the City, provided that the City will ensure that at
least one channel is dedicated to educational access. The Franchisee shall designate Channel 15 for
government access.
16.3 Routing of PEG Channel Content.
A. The Franchisee shall provide two transmission connections/drops in designated buildings or
facilities for use by the City as a government access channel, at Allen City Hall located at 305
Century Parkway, Allen, TX 75013; and for use by the Allen Independent School District as an
educational access channel, at Allen High School located at 300 Rivercrest Drive and/or public
access use (such two locations hereafter referred to as "Designated Locations"). The City
understands that the Fmnchisce may be able to accomplish this requirement by means of an
agreement with other cable providers required to provide the same upstream capability.
B. The Franchisee shall provide PEG Channel capability at the Designated Locations within 180
days of the effective date of this Agreement. Failure to meet this deadline will result in
Enforcement Remedies as defined in Section 31 of this Agreement. The Franchisee shall provide
all the necessary equipment to ensure that the two Designated Locations for PEG access are
capable of transmitting video and audio signals to the headend for live distribution over the
System to Subscribers.
C. The cost for any additional transmission connection/drop sites beyond the two Designated
Locations shall be incurred by the requesting entity. Necessary trunk and distribution cables will
be routed by Franchisee near the two Designated Locations, and drops will be extended by
Franchisee to a service point inside the Designated Locations.
D. At the point that the Franchisee obtains at least two thousand (2,000) subscribers, and upon
written request from the City, Franchisee shall provide one additional connection/drop in a
designated building or facility for live distribution of governmental, educational and/or public
access use.
E. Franchisee must provide the Collin County Community College with the ability to broadcast
programming on a one of the PEG channels by providing the necessary equipment to ensure a
quality broadcast of programming is displayed on the designated channel. All uses of the Access
Channels by Franchisee must comply with Section 611 of the Cable Act and with any guidelines
established thereunder by the City or by public, educational, or governmental agencies authorized
to use such Access Channels.
16.4 Management and Control of PEG Channels. The City agrees to hold Franchisee harmless from any
damage or liability arising out of use of its access channel provided that Franchisee exercises no editorial
control over the programming giving rise to any such damage or liability. City shall take reasonable
precautions to prevent use of the channel's) in any manner that results in inappropriate use of the cable
' system, or any loss or damage to the cable system. The City or its designee shall at its discretion manage
the use of all PEG Channels and facilities and allocate and reallocate the PEG Channels amongst Public,
Educational and Government Access Programming. The City or its designee may formulate rules for the
operation of PEG Channels consistent with this Franchise and federal law.
16.5 PEG Availability. Franchisee agrees that all PEG access channels will be provided to subscribers on the
system as a part of basic service and that, if Franchisee publishes any program listing or guide or controls
the content of any cablecast of any programming listing or guide, and provided further that such
information is supplied to Fmncbiwe, Franchisee will publicize programming on the access channels as a
part of any ordinary printed program listings it provides or will include access channel programming
listings in any monthly program guide Franchisee controls and sends to subscribers, provided that
information concerning access channel programming is provided to Franchisee within the time that other
programmers are required to provide such information for inclusion in such program listings or program
guide.
16.6 Technical Assistance. Within one (1) hour of a request from the City and/or its designee, identifying a
problem and requesting assistance from the Franchisee regarding a PEG Channel, Franchisee will respond
by telephone to address the problem. Within four (4) hours, Franchisee shall provide technical assistance
or diagnostic services to determine whether or not a problem with a PEG Channel is the result of matters
for which Franchisee is responsible and, if so, Fmnchiwe will take prompt corrective action. Such
assistance will be at no charge to the City.
1. During those hours that an Access Channel is not being utilized for access purposes, the City -may
permit the Franchisee to utilize unused Access Channel capacity under rules and procedures
established by the City. An Access Channel permitted by the City for "interim" use hereunder is to
be restored to its original use whenever the demand for use, as reasonably demonstrated by the
City, indicates that an excessive number of people or programs are being denied access due to lack
of channel capacity availability. -
16.7 Access Facilities and Equipment.
A. Within one hundred eighty (180) days of the effective date of this Franchise, Franchisee shall
provide all on-site cabling necessary to permit both live and delayed cablecast from the Designated
Locations stated in Section 16.3.
B. The upstream system electronic and distribution facilities and equipment and cabling provided by
Franchisee shall be of sufficient quality and performance specifications to enable all material
cablecast on the access channels provided pursuant to this Agreement to meet all video and audio
signal quality standards adopted by the FCC when transmitted downstream to subscribers,
including any such standards as may be adopted or amended during the term of this Franchise
Agreement to the extent the Franchise is required to comply with such additional or amended
standards.
C. In lieu of providing capital equipment and studio availability, Franchisee shall, within six (6)
months of the effective date of this Agreement, provide the City with an initial grant of two
thousand five hundred dollars ($2,500) at such time as the City requests it during the first year of
this Franchise for PEG Capital. At such time that the Franchisee obtains at least one thousand
(1,000) subscribers, and within sixty -days (60) of a written request from the City, the Franchisee
shall provide an additional seven thousand five hundred dollars ($7,500) for PEG Capital. At the
time the Franchisee obtains at least two thousand (2,000) subscribers and within sixty (60) days of
a written request from the City, the Franchisees shall provide an additional ten thousand dollars
($10,000) for PEG Capital. At such time that Franchisee obtains at least one thousand (1,000)
' subscribers, the Fmnchisee shall be allowed to pass-through this payment to Subscribers over the
term of this Franchise Agreement.
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' I6.8 Franchisee's Agreement to Bill, Collect and Remit Any Access Support Charge. When the
Franchisee begins providing the PEG channels to its subscribers, or no later than 180 days from the
Effective Date of this Agreement, whichever occurs first, Franchisee shall implement a PEG Access
Support Charge of $0.35 per cable subscriber per month, as a pass-through fee, to be collected by
Franchisee and remitted to the City of Allen on a quarterly basis as a separate item in the franchise fee
collections. The Access Support Charge allows for the development and continuation of providing local
government access programming to the citizens of Allen. Such an Access Support Charge, if increased,
will not exceed fifty cents ($0.50) per subscriber per month; and shall be imposed equally on all
subscribers of any and all cable operators franchised by the City. Franchisee further agrees that if
imposed, such an Access Support Charge would not constitute a franchise fee within the meaning of
Section 622 of the Cable Act, 47 U.S.C. § 542, state law, the Cable Ordinance or this Franchise
Agreement; and Franchisee hereby waives any claim to the contrary. Any Access Support Charge
collected by Franchisee shall not constitute, nor be included in, Franchisee's Gross Revenues for purposes
of calculating franchise fees owed the City.
SECTION 17. Commercial Leased Access. Franchisee shall provide commercial leased access channels as
required by federal law.
SECTION 18. Emereencv Use of Facilities.
18.1 Emergency Interrupt System. In accordance with and at the time required by the provisions of FCC
Regulations Part 11, Subpart D, Section 11, and as such provisions may from time to time be amended,
Franchisee shall install and maintain an Emergency Alert System (EAS) for use in transmitting pursuant to
such regulations in the event of an emergency. Franchisee shall provide the City with the ability to activate
the EAS from multiple locations to override both audio and video of all programming services
simultaneously during a period of emergency or disaster. Such emergency alert capability shall be
operational throughout the term of this Franchise. Franchisee shall provide the appropriate training to City
personnel as may be necessary to operate the equipment and facilities necessary to satisfy this provision of
the Franchise.
18.2 Interconnection of EAS. Franchisee shall interconnect to existing EAS of other cable providers to create a
system and/or procedure to simultaneously activate the EAS over all cable systems operating in the City.
18.3 Implementation Plan. Upon the effective date of this Franchise Agreement, Franchisee shall furnish to
the City a written plan setting forth the procedures for implementing and using the audio override
capability set forth in subsection (a) of this Section. The implementation plan should clearly state when
the emergency interrupt system is fully operational, which should be within the first three months of this
agreement.
18.4 Emergency Standby Power. Franchisee shall provide standby power generating capacity at the cable
system headend, capable of providing at least four (4) hours of emergency power supply throughout the
trunk and distribution networks. In addition, throughout the tern of this Agreement, Franchisee shall have
a plan in place, along with all resources necessary for implementing such plan, for dealing with outages of
more than two (2) hours. This outage plan and evidence of requisite implementation resources shall be
presented to City no later than ninety (90) days following the effective date of this Agreement.
SECTION 19. Lock -out Devices. Franchisee shall make available at reasonable charge to any residential
subscriber, upon the request of such subscriber, n "parental guidance" or "lock -out" device which shall permit the
subscriber, at his or her option, to eliminate the audio and visual transmissions from any channel reception.
Franchisee shall advise all residential subscribers at least annually of the availability of such devices.
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SECTION 20. Line Extension Policy.
20.1 Required Extensions of Service. Franchisee shall extend its initial trunks and distribution lines required
in Section I 1 to subscribers outside of the initial service area, that are continuous to the initial service or
additional service area required by this section. Such extension shall be in any area of the City having a
density of at least 15 residences within 5280 cable -bearing strand feet (one cable mile), or proportionate
fraction thereof, of Franchisee's trunk or distribution cable; provided that such extension is technically
feasible, and if it will not adversely affect the operation, financial condition, or market development of the
System, or as otherwise provided for under this Section 20. Such extension shall also be at no cost to said
subscribers other than the usual installation charges
20.2 Subscriber Charges for Extensions of Service. No subscriber shall be refused service arbitrarily.
However, where (1) a subscriber requests to locate his cable drop underground where other utilities are
not so located; or (2) the distance from distribution cable to connection of service to a subscriber is more
than 150 feet; or (3) density in the area is less than 15 residences per 5280 cable -bearing strand feet (one
cable mile) of trunk or distribution cable, Franchisee may make service available on the basis of a capital
contribution in aid of construction, including cost of material, labor, and easements. For the purpose of
determining the amount of capital contribution in aid of construction to be home by the Franchisee and
Subscribers in the area in which service may be expanded the Franchisee will contribute an amount equal
to the construction and materials cost per mile multiplied by a fraction whose numerator equals the actual
number of residences per 5280 cable hewing strand feet of its trunks or distribution cable, and whose
denominator equals 15 residences or a proportional number of subscribers for fractions of a mile.
Potential subscribers who request service hereunder will bear the remainder of the construction and other
costs on a pro rata basis. The Franchisee may require that the payment of the capital contribution in aid of
construction borne by such potential subscribers be paid in advance. In the event that any portion of the
extension for which a Subscriber has provided contribution in aid of construction ultimately meets the
extension requirements in subsection 20.03, Franchisee shall reimburse all Subscribers that have made such
contributions in aid of construction, provided that such Subscribers provide evidence of having made such
contributions to Franchisee.
20.3 Cooperation with Developer. For the extension of service into areas which are in the process of being
developed, the Franchisee will cooperate with the developer to install cable for a capital contribution paid
by the developer and upon such terms and conditions as agreed between the developer and the Franchisee.
The amount of capital contribution to be paid by the developer for installation of future service provisions
for reimbursement of such contribution shall be in accordance with the terms and conditions of the
agreement between the Franchisee and the developer. Franchisee agrees that it will reimburse the
developer for contributions made by the developer on an annual basis over a period of not less than three
(3) years.
20.4 Location of Drops. Except as federal regulations may otherwise require, in any area where Franchisee
would be entitled to install a drop above ground, Franchisee will provide the Subscriber the option to
have the drop installed underground, but may charge the homeowner the difference between the rate for
the above -ground installation and the rate for the underground installation.
20.5 Time for extension. Franchisee must extend service to any person within the service area who requests it
(1) within five (5) business days of the request, where service can be provided by activating or installing a
drop; (2) within thirty (30) days of the request where an extension of one-half mile or less is required; or
(3) within six (6) months where an extension of one-half mile or more is required.
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' SECTION 21, Franchise Fee.
21.1 Franchise Fee Payment Required. In consideration of the privilege granted herein to use and occupy
the Public Rights -of -Way to own, construct, install, maintain and operate its cable system, Franchisee
shall pay to the City a franchise fee equal to five percent (5%) of its Gross Revenues as defined in Section
2 (q) of the Ordinance.
21.2 Procedures for Making Franchise Fee Payments. Franchisee shall pay the franchise fee to the City in
full compliance, with the requirements set forth in Section 16 of the Ordinance.
21.3 Acceptance of Payment Not Accord and Satisfaction. The acceptance by the City of any payment
from Franchisee of the franchise fee shall not constitute a release or an accord and satisfaction of any
claim the City may have against Franchisee for performance of any of its obligations under the ordinance,
this Franchise Agreement, or local, state or federal law, including, without limitation, Franchisees
obligation to pay the proper franchise fee amount owed.
21.4 Payment on Termination. Following the expiration and non -renewal or the lawful termination for any
reason of its franchise, Franchisee shall pay the franchise fee owed as of the date that its operations
ceased within ninety (90) calendar days of ceasing such operations. Such payment shall be accompanied
by a certified Gross Revenues statement prepared by a certified public accountant showing the revenues
received by Franchisee since the end of the previous fiscal year.
21.5 Franchisee Fee Not In Lieu of Other Lawful Charges. Franchisee expressly agrees that: (i) franchise
fee payments shall be in addition to any and all other taxes and fees of a general nature and not applicable
' solely to cable television operations within the City; and (ii) Franchisee shall not have or make any claim
for any deduction or other credit of all or any part of the amount of said franchise fee payments from or
against any of said City taxes or other fees or charges which Franchisee is required to pay to the City,
except as agreed herein or required -by law.
21.6 Late Payment Charge. Franchisee shall pay a late charge in an amount which is the greater of one hundred
dollars ($100.110) or 10% per annum, compounded daily, on franchise fee payments, or portions thereof, that
are paid subsequent to the payment dates specified in Section 16 of the Cable Ordinance. The City shall
provide written notice to the Franchisee that such payments have not been received in accordance with the
dates specified in Section 16 of the Cable Ordinance, but such notice does not negate any late charge owed to
the City beginning on the day following the required date of receipt under Section 16 of the Cable Ordinance.
In the event the City identifies, as a result of an audit, amounts owed by the Franchisee farm prior periods, the
Franchisee shall pay a late charge of eight percent (8%) per annum, compounded quarterly, on the amounts
identified, calculated from the date each portion of the underpayment was originally due until the date
Franchisee remits the underpayment to the City. In the event that any audit or re -computation of fees results
in an underpayment of greater than five percent (5%) (prior to the late charge) for the audit period, Franchisee
shall reimburse the City for its costs to conduct the audit or re -computation.
SECTION 22. Reports and Records. Franchisee shall furnish the City with all of the information as required
under Sections 17 and 18 of the Cable Ordinance including Ordinance No. 2019-1-02, amending Section 18 of the
Cable Communications Ordinance pertaining to customer service requirements
SECTION 23. Rieht to Insaect Financial Records and Facilities.
23.1 Maintenance of Books and Records. Franchisee shall maintain a complete set of books and records,
including plans, contracts, engineering, accounting, financial, statistical, and customer service records
reasonably necessary for the enforcement of the franchise as required under Sections 17 and 18 of the
Ordinance.
IN
23.2 City Inspection of Books and Records. The City shall have the right to inspect, at Franchisee's local
office, the books and records necessary and pertinent to the enforcement of the franchise and as may be
required by the City to perform its regulatory responsibilities under this Franchise and applicable state
and federal law. The City agrees to carry out any such inspection during Franchisee's normal business
hours and upon reasonable notice. Access by the City to those books and records of Franchisee necessary
to the enforcement of the franchise and as required by the City to perform its regulatory responsibilities
shall not be denied on grounds that such books and records contain proprietary or confidential
information.
23.3 Confidential Treatment. Upon the Franchisee's written request, the City shall accord all books and
records that it inspects under this Section the degree of confidentiality such books and records are entitled
to under federal and state law.
23.4 City Inspection of Facilities. The City shall have the right to inspect Franchisees facilities and property
during Franchisee's normal business hours and upon reasonable notice.
SECTION 24. Customer Service Requirements. Franchisee agrees to comply with each of the customer
service requirements set forth in the Cable Ordinance. Where the Customer Service Requirements in the Cable
Ordinance refer to days it shall mean business days.
SECTION 25. Transfer of Franchise.
25.1 Prior City Approval Required. Except as provided in Section 24 of the Ordinance, Franchisee shall not
' assign, sell or transfer its franchise, or any right, title, or interest in same, this Franchise Agreement, or its
cable system, nor shall control of Franchisee or any lawful successor be transferred, or assigned, without
prior written notice to and approval of the City, and only then upon such terms and conditions as the City
deems necessary and proper, such consent by the City not to be unreasonably withheld.
25.2 Transfer Application Required. Franchisee shall file an application to transfer its franchise or to
transfer control of Franchisee in full compliance with Sections 9 and 24 of the Ordinance.
25.3 Unauthorized Transfers. In the event of an unauthorized transfer in violation of this Section or of the
Ordinance, and after the City gives the Franchisee notice and opportunity to be heard or to cure, the entire
amount of the security fund established pursuant to Section l I hereof shall revert to the City, and
Franchisee shall be subject to all applicable sanctions set forth in this Agreement and the Cable
Ordinance, including without limitation Sections 22 and 25 of the Cable Ordinance, and Section 29 of this
Franchise Agreement.
SECTION 26. Procedures for Reguestine Approval of Transfer. Franchisee shall comply with the provisions
of Section 8 and 24 of the Cable Ordinance conceming transfers of franchises.
SECTION 27. Renewal of Franchise. Renewal of the Franchise shall he governedby and comply with the
provisions of Section 626 of the Cable-act as amended unless preempted and superseded by subsequent provisions
of federal or state law.
SECTION 28. Arbitration. No dispute between the City and Franchisee under this Franchise Agreement shall
be arbitrable.
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' SECTION 29. Rates.
29.1 City Regulation of Franchisee's Rates. The City Council shall be empowered to regulate, by ordinance, the
rates for any and all of those Cable Services and related installations and equipment of Franchisee subject to
regulation by the City, consistent with FCC rules governing rate regulation and the provisions of the
Communications Act. In such event the City Council shall first prescribe by ordinance the procedure and
standards to be followed and the extent and scope of such rate regulations, all of which matters shall be
consistent with due process and shall conform to any and all of those federal and state laws, rules, and
regulations then applicable. Subject to its authority to regulate rates the City shall have access to all books
and records related to Franchisee's rates including bulk contract rate information, subject to applicable law.
29.2 Notice of Rates. Franchisee shall provide written notice of its then current rates and charges for any and
all of its Cable Services in the City in compliance with any timing requirements prescribed in FCC
regulations.
SECTION 30. Valuation. If the Franchise is revoked for cause and the parties agree that the City may purchase the
Cable System, the City may purchase the Cable System at an equitable price. If renewal of the Franchise is lawfully
denied and the parties agree that the City may purchase the Cable System, the City may purchase the Cable System at
fair market value, determined on the basis of the Cable System valued as a going coneem but with no value allocated
to the Franchise itself. Should the parties fail to agree upon the then current fair market value, the same shall be
determined in an appropriate proceeding filed in any court having jurisdiction.
SECTION 31. Enforcement Remedies.
31.1 Liquidated Damages. Because the City will suffer damages from any violation by Franchisee of this
Agreement, which damages may be difficult to quantify, the City and Franchisee agree to the following
schedule of liquidated damages:
A. For failure to substantially complete the system construction as required by Section I 1 hereof or
to substantially complete line extensions and offer service as required by Section 19 hereof,
unless the City specifically approves a delay caused by the occurrence of conditions beyond
Franchisee's control, Franchisee shall pay Five Hundred Dollars ($500) per day for each day, or
part thereof, the deficiency continues.
B. For failure to provide PEG Channel capability at the Designated Locations as required by Section
16.3(8), unless City specifically approves a delay caused by the occurrence of conditions beyond
Franchisee's control, within thirty (30) days of receipt of notice of such non-compliance,
Franchisee shall pay One Hundred Dollars ($100) per day for each day, or part thereof, the
deficiency continues.
C. For material failure to provide data, documents, reports or information in a timely manner as
required by this Franchise Agreement, Franchisee shall pay Fifty Dollars ($50) per day, or part
thereof, that each violation occurs or continues.
D. For material failure to provide signal quality consistent with and as required by this Franchise
Agreement, or FCC rules, Franchisee shall pay Fifty Dollars ($50) per day for each day, or part
thereof, that such noncompliance continues.
' E. For failure to comply with any other material provision of this Franchise Agreement or the Cable
Ordinance within thirty (30) days of receipt of notice of such non-compliance, Franchisee shall
pay One Hundred Fifty Dollars ($150) per day for each day, or part thereof, that such
non-compliance continues.
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' F. For failure to substantially comply with reasonable and lawful orders of the City within its -police
powers, Franchisee shall pay Fifty Dollars ($50) per day for each day, or part thereof, that
noncompliance continues.
31.2 Procedures for Assessing Liquidated Damages. Before assessing liquidated damages against
Franchisee, the City shall give Franchisee written notice of its intention to assess such damages.
Following receipt of such notice, Franchisee and the City shall have a thirty (30) day period during which
time Franchisee and the City shall make good faith reasonable efforts to resolve the dispute in question or
cum the noncompliance. If the dispute is not resolved in that thirty (30) day period, the City may collect
liquidated damages owed, either through drawdown of the Security Fund as provided in Section I I of the
ordinance and in Section 9 of this Agreement, or through any other means allowed by law.
31.3 Revocation or Termination of Franchise. In the event the City lawfully revokes or terminates the
franchise, the procedures set forth in Section 2S of the Cable Ordinance shall apply.
SECTION 32. Riebt Of Reneeotiation.
32.1 Should either Franchisee or the City have cause to believe that a change in circumstances relating to the
terms of this franchise may exist, it may request that the other party provide it with a reasonable amount of
information to assist in determining whether a change in circumstances has taken place.
32.2 Should either party hereto determine that based on a change in circumstances, it is in the best interest to
renegotiate all or some of the provisions of this Franchise, then the other party agrees to enter into good
faith negotiations. Said negotiations shall involve reasonable, diligent, and timely discussions about the
pertinent issues and a resolute attempt to settle those issues. The obligation to engage in such negotiations
does not obligate either party to agree to an amendment of the Franchise as a result of such negotiations.
A failure to agree does not show a lack of good faith. If, as a result of renegotiation, the Franchisee and
Company agree to a change in a provision of this Franchisee, the change shall become effective upon
passage of an Ordinance by the City in accordance with the City Charter and acceptance of the amendment
by Company.
SECTION 33. Severability. In the event that a court or agency of competent jurisdiction declares that any
nonmaterial provision of this Franchise Agreement is unenforceable according to its terms or is otherwise void, or
in the event a nonmaterial provision is preempted by federal or state laws, rules or regulations, said provision
shall be considered a separate, distinct, and independent part of this Agreement, and such declaration shall not
affect the validity and enforceability of all other provisions of this Agreement. In the event that a court or agency
of competent jurisdiction declares that any material provision of this Agreement is unenforceable according to its
terms or is otherwise void, or in the event a material provision is preempted by federal or state laws, mles or
regulations, the City and the Franchise shall negotiate in good faith to agree to a revised provision that is mutually
acceptable, and which is enforceable. By way of illustration and not limitation, the following provisions shall be
considered material for purposes of this Section 32: Sections 5(c) (Franchise Subject to Exercise of Police
Powers), 11 (System Construction), 12 (Minimum Facilities and Services), 15 (Access Channels and Facilities),
and 20 (Franchise Fee).
SECTION 34. Notices.
34.1 All notices required by this Franchise Agreement shall be in writing and delivered personally or
transmitted (a) through the United States mail, by registered or certified mail, postage prepaid; (b) by
means of prepaid overnight delivery service; or (c) by facsimile or email transmission, if a bard copy of
the same is followed by delivery through the U.S. mail or by overnight delivery service as just described,
addressed as follows:
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With a Copy to:
City of Allen
Atm: City Attorney's Office
1800 Lincoln Plans
500 North Akard Street
Dallas, TX 75201
If to Company:
Grande Communications Networks, Inc.
Atm: General Manager
7701 South Stemmons — Suite 210
Corinth, TX 76210
With a Cony to:
Grande Communications Networks, Inc.
Atm: Legal & Regulatory Department
401 Carlson Circle
San Marcos, TX 78666
34.2 Date of Notices; Changing Notice Address. Notices shall be deemed given: (a) upon receipt in the case
of personal delivery; (b) three (3) days after deposit in the mail; or (c) the next day in the case of facsimile
or overnight delivery. From time to time, either party may designate another address for this purpose by
written notice to the other party delivered in the manner set forth above.
SECTION 35. Miscellaneous.
35.1 Amendment Of Franchise Agreement. This Franchise Agreement may not be amended except pursuant
to an Ordinance adopted by the City and agreed to by Company.
35.2 Governing Law. The laws of the State of Texas shall govern the interpretation validity, performance and
enforcement of this Franchise Agreement.
35.3 Force Majeure. In the event that the performance by either party of any of its obligations or
undertakings hereunder shall be interrupted or delayed by an act of God or the result of war, riot, civil
commotion, sovereign conduct, or the act or conduct of any person or persons not parry or privy hereto,
then such party shall be excused from performance for a period of time as is reasonably necessary after
such occurrence to remedy the effects thereof, and each parry shall bear the cost of any expense it may
incur due to the occurrence.
35.4 Exhibits. All exhibits referred to in this Franchise and any addenda, attachments, and schedules which
' may from time to time be referred to in any duly executed amendment to this Franchise are by such
reference incorporated in this Franchise and shall be deemed a part of this Franchise.
35.5 Successors and Assigns. This Franchise is binding upon the successors and permitted assigns of the
parties.
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If to the City:
City of Allen
Atm: City Manager's Office
305 Century Parkway
Allen, TX 75013
With a Copy to:
City of Allen
Atm: City Attorney's Office
1800 Lincoln Plans
500 North Akard Street
Dallas, TX 75201
If to Company:
Grande Communications Networks, Inc.
Atm: General Manager
7701 South Stemmons — Suite 210
Corinth, TX 76210
With a Cony to:
Grande Communications Networks, Inc.
Atm: Legal & Regulatory Department
401 Carlson Circle
San Marcos, TX 78666
34.2 Date of Notices; Changing Notice Address. Notices shall be deemed given: (a) upon receipt in the case
of personal delivery; (b) three (3) days after deposit in the mail; or (c) the next day in the case of facsimile
or overnight delivery. From time to time, either party may designate another address for this purpose by
written notice to the other party delivered in the manner set forth above.
SECTION 35. Miscellaneous.
35.1 Amendment Of Franchise Agreement. This Franchise Agreement may not be amended except pursuant
to an Ordinance adopted by the City and agreed to by Company.
35.2 Governing Law. The laws of the State of Texas shall govern the interpretation validity, performance and
enforcement of this Franchise Agreement.
35.3 Force Majeure. In the event that the performance by either party of any of its obligations or
undertakings hereunder shall be interrupted or delayed by an act of God or the result of war, riot, civil
commotion, sovereign conduct, or the act or conduct of any person or persons not parry or privy hereto,
then such party shall be excused from performance for a period of time as is reasonably necessary after
such occurrence to remedy the effects thereof, and each parry shall bear the cost of any expense it may
incur due to the occurrence.
35.4 Exhibits. All exhibits referred to in this Franchise and any addenda, attachments, and schedules which
' may from time to time be referred to in any duly executed amendment to this Franchise are by such
reference incorporated in this Franchise and shall be deemed a part of this Franchise.
35.5 Successors and Assigns. This Franchise is binding upon the successors and permitted assigns of the
parties.
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' 35.6 Consent Criteria. In any case where the approval or consent of one party hereto is required, requested or
otherwise to be given under this Franchise, such parry shall not unreasonably delay or withhold consent.
35.7 Waiver of Breach. The waiver by either party of any breach or violation of any Provision of this
Franchise shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or violation
of the same or any other Provision of this Franchise.
35.8 All ordinances of the City of Allen, Collin County, Texas, in conflict with the provisions of this ordinance
be, and the same are hereby, repealed; provided, however that all other provisions of said ordinances not
in conflict with the provisions of this ordinance shall remain in full force and effect.
35.9 Should any word, sentence, paragraph, subdivision, clause, phrase or section of this ordinance, as
amended hereby, be adjudged or held to be void or unconstitutional, the same shall not affect the validity
of the remaining portions of said ordinance, which shall remain in full force and effect.
35.10 An offense committed before the effective date of this ordinance is governed by prior law and the Code of
Ordinances of the City of Allen, as previously amended, in effect when the offense was committed and
the former law is continued in effect for this purpose.
SECTION 36. Effective Date. This Ordinance shall become effective on J_dAyA* .0, 2005, after its
final passage by City Council.
DULY PASSED AND APPROVED ON THE FIRST ' READING BY THE CII CTOUNCIL OF THE CITY OF ALLEN, COLLy
IN COUNTY, TEXAS, ON THIS THE 1L DAY OF 2005.
DULY PASSED AND APPROVED ON THE SECOND READING Y THE C COUNCIL OF THE
CITY OF ALLEN, COI.LIN COUNTY, TEXAS, ON THIS THE .ZAY OF'
, 2005.
DULY PASSED AND APPROVED ON THE THIRD READING BY THE CITY COUNCIL OF THE
CITY OF ALLEN, COLLIN COUNTY, TEXAS, ON THIS THE .,L& DAY OF 2005.
APPROVED:
Stepfied Terrell, MAYOR
APPROVED AS TO FORM: ATTEST:
Peter
S�
Peter G. Smith, CITY ATTORNEY Shelley BShelley B. G�, TRMC, CI SECRETARYTRMC, CI SECRETARY
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EXIIA
INITIAL CABLE SYSTEM AREA AND
CONSTRUCTION SCHEDULE
Cable Installation
Completion Dates
Benton Point Apartments
3-22-05
Country Brook
3-29-05
Stec Ride
4-07-05
Summerfield
4-15-05
Reid Farm
4-22-05
Custer Meadow
5-05-05
Spring Meadow
5-19-05
Lost Creek Ranch
6-03-05
Country Brook Estates
6-17-05
Woodland Park Addition
6-30-05
Abbey Hill Park
7-14-05
Arbor Lakes Addition
7-28-05
City Hall Connection — PEG
8-01-05
Allen High School Connection - PEG
8-01-05
Bridgewater Crossing8-12-05
Glendover Park
8-26-05
Waterford Crossing
9-09-05
Waterford Park
9-23-05
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