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ORD 518 10/10/2000ORDINANCE NO. 518 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CIBOLO, 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 OF THE AGREEMENT; AND ESTABLISHING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CIBOLO, TEXAS, THAT: Section 1. Definitions; construction. In this Agreement: 1. Basic monthly set -vice means the minimum level of cable service for which Grande charges the lowest monthly fee. 2. Cable service means: a. The one-way transmission 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 Grande makes generally available to all customers, to the extent they 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 Cibolo, a Texas municipal corporation. 4. City Council means the City Council of the City. 5. City Administrator means the franchise administrator of the City or the City Administrator's designated representative. 6. City requirements means all City charter provisions, ordinances, regulations, resolutions and 1 of 14-}4F4 policies, in effect on the effective date of this Agreement and as they may be changed from time to time during the term of this Agreement, that apply to Grande's activities under this Agreement 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, easement or similar property in which the City holds a property interest or exercises a right of management or control and which may be used for the installation and maintenance of Grande's facilities. 8. FCC means the Federal Communications Commission. 9. Grande means Grande Communications, Inc., a Delaware corporation, or any of its wholly- owned or majority interest affiliates qualified to do business in the state of Texas and authorized to provide services pursuant to this agreement. 10. Grande's facilities means Grande's cables, lines, wiring, towers, poles, underground conduits, manholes, electronic conductors, and other fixtures necessary for the maintenance and operation of Grande's cable television signal distribution system and service. 11. Person means any person, 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 Grande's customers in the City. 13. Start-up date means the date on which Grande begins distributing television signals to any customer through Grande'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 if not so defined, will have their common and ordinary meaning. Section 2. Grant of Franchise. A. The City grants to Grande a franchise to construct, erect, operate and maintain Grande's facilities in, across and above City right-of-way, subject to the terms of this Agreement. 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 Grande; 2. assume any responsibility for securing for Grande any City right-of-way the City does not already own or control; 2 or 144444 3. give to Grande any form of permission to make and maintain attachments to City utility poles, or to use any City property other than City right-of-way; 4. make the City responsible in any way for the construction, operation, maintenance, or performance of Grande's facilities, or for any other activity or obligation of Grande; 5. convey to Grande any ownership or property right in any City right-of-way occupied or used by Grande regardless of any payments made by Grande to the City, nor any other action or inaction by the City or by Grande; 6. grant to Grande any right or privilege lawfully within the jurisdiction of any other regulatory body or agency; Grande will secure and hold all necessary licenses, permits and authorizations required in order to install, operate and maintain Grande's facilities; or 7. grant to Grande the right to allow the use of Grande's facilities by another entity for any service. Grande will not allow the use of Grande's facilities by another entity to provide any service unless the entity warrants that it has obtained all authorizations required by the City for the use. 8. grant authority to use the City right-of-way to operate a telecommunications system. C. This franchise is not exclusive. The City reserves the right to make a similar grant to any person any time. Section 3. Protection of Persons and Property; Indemnification and Waiver; Insurance. A. Grande 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 Grande's facilities. If, in the City's opinion, Grande has not taken any such necessary precautions, the City may notify Grande, and Grande will correct the situation within ten (10) workdays. Grande agrees, however, that it is solely responsible for the installation, maintenance and operation of Grande'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 Grande's facilities. B. Grande 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 witnesses, arising in connection with the installation, maintenance and operation of Grande's facilities or directly related to Grande's activities under this franchise. Grande will defend at its expense all actions that may be commenced against the City in connection with the installation, maintenance and operation of Grande's facilities. The selection of legal counsel for any such defense will be at the sole discretion of the City. The specification of minimum coverage limits in this section does not limit Grande's indemnity obligations in any way C. Grandz shall_carry,._tluoughout_tlie,_term._ of this. franchise,...personal. and_.groperty__damae_liability insurance with insurance companies qualified to do business in the State of Texas. Such insurance shall show the Citv as an additional insured party. The amounts of such insurance to be carried for liability due .to_.I)roperty. damage shall Ue.�500.,000_as_to anyone occurrence and 4gainst.liability due_to_injgry 3 of 14411 or death of a person $2.000.000 as to any one person and $5,000,000 as to any one occurrence. A certificate or certificates of insurance shall be filed and maintained with the City during the term of this fi=anchise.__._Cnande arees_that,_at_the end_of the fifth and__tenth__complete fiscal years following_the Effectiv Date of thus franchise it will increase the amounts of insurance required to be maintained by Grande under this section 3.C. in accordance with an opinion of a qualified insurance consultant agreed to by the City and Grande stating that such amounts should be increased. Section 4. Facilities Construction; Service Availability. A. Grande will complete the initial construction of all of Grande's facilities by December 31, 2007. As of that date, Grande will make cable service available to every residence within the City. If Grande does not complete construction of Grande's facilities throughout the City at the same time, Grande will give written notice to the City of the date for initiation of service to each area of the City in which Grande is completing construction. B. Grande will install Grande's 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. Grande will extend Grande's facilities and make cable services available to new residential areas within the City whenever density of at least 40 residential units per cable mile is realized, as measured from Grande's facilities then existing. Measurement of cable length will not include service drops to residences. D. Grande will extend Grande's facilities and make cable services available to any residence or business where the potential customer agrees to pay the cost of the extension. Section 5. Operation and Maintenance of Grande's Facilities. A. Grande will operate and maintain Grande'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 effective date of this Agreement and throughout the term of this Agreement. B. Grande will operate and maintain Grande's facilities in compliance with all applicable laws and regulations, including the City requirements and the regulations of the FCC and the Federal Aviation Administration. Grande will install, operate and maintain Grande's facilities so that they do not cause cross -modulations in the cable or interference with other electrical or electronic systems. C. Grande will have a local listed or toll-free telephone number to receive complaints and requests for repairs or adjustments at any time, 24 hours per day, seven days per week. Grande will have sufficient employees to provide safe, adequate, and proper services for Grande's facilities. Grande will locate and correct malfunctions in Grande'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 Grande's general manager or his equally authorized designee. D. Grande will notify all customers by mail of all channel changes within seven days of the change. 4 of 141111 E. Grande will provide electronic devices for sale to customers which will allow the customer, at the customer's discretion, to prevent selected channels from reaching the customer's receiver devices, at Grande's cost plus 10%. F. Grande will employ a trained and competent staff for the installation, operation and maintenance of Grande's facilities. G. Grande will render efficient service, make repairs 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 Grande's facilities by Grande's customers. H. All installations and repairs made by Grande will be performed in a good, substantial, safe and workmanlike manner. Grande 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 vermin. I. Grande agrees to provide programming responsive to the City's needs and interest for Spanish language programming. This programming shall consist of at least two Spanish language channels or other Spanish cultural equivalents available at all times in the most popular service level offered by Grande. I Grande will not hinder the retransmission of a signal transmitted by any broadcast or non -broadcast service for the benefit of the hearing impaired. K. Effective one year after Grande completes its system build -out, Grande will provide a report to the City Administrator within 15 days after the end of each calendar quarter that includes the following for the preceding calendar quarter: 1. Grande's compliance with FCC customer service requirements, with previous one-year history, in narrative, table and graph form; 2. The total number and the total duration of significant service interruptions, which are cable service outages lasting four continuous hours or more to 1,000 or more of Grande's customers in the City, with one-year history, in narrative, table and graph form. L. Grande 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. Section 6. Provision by Grande of Facilities and Services to Public Entities. A. To the extent permitted by law, Grande agrees to install at its expense all equipment necessary to enable local emergency management officials to interrupt all television broadcasting on Grande's facilities for the purpose of making emergency management announcements. This equipment is to be installed at a location designated by the City by the start-up date. B. Grande shall provide PGE access channels to the extent that State and Federal law so require. 5 of 141J1-1 C. Grande shall provide one service connection, including cable television and/or intemet service, in each of the following locations: 1. All governmental buildings or facilities as may be now or hereinafter designated by the City Administrator or his agent; 2. All public and parochial school buildings as may be designated now or hereinafter by the chief administrator officer of each school district or parochial school system; 3. Each classroom building and dormitory building of each college or university. No charge will be made by Grande for the installation, disconnection (when reasonably requested), reconnection (when reasonably requested), monthly services, and/or maintenance of equipment on any service connection required hereinabove. A converter, if needed to provide the capability of receiving all services except "pay television" shall be provided to each location at no cost. Grande shall install and maintain return (upstream) full -channel transmission capability in each public and/or parochial school building when required by the chief administrative officer of the school district or school system. Grande shall install and maintain return (upstream) audio and/or video transmission capability in any governmental building or facility as may be now or hereinafter designated by the City Administrator or his agent, at no cost to the City. Section 7. Promulgation of Rules by Grande; Refunds. A. Grande 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 Agreement or the charter, ordinances, regulations or policies of the City, the State of Texas or the United States. B. Grande will make appropriate credits or refunds to customers for periods when Grande's facilities undergo a significant service interruption and in other circumstances in which Grande's services are not of the highest quality. Section S. Use of City Right -of -Way A. Construction Work -Regulations By City 1. The work done by the Grantee in connection with the construction, maintenance, repair, extension, betterment, permanent improvement or enlargement , of the Cable System within the Public Rights -of -Way shall be subject to and governed by all pertinent laws, rules, regulations, including City, State and Federal, both present and future, that are applicable to insuring the work done does not unduly inconvenience the public in the use of the surface of the Public Rights -of -Way. 2. All excavations and other construction in the streets shall be so carried on as to interfere as little as practicable with the use of City's Public Rights -of -Way and with the use of private property, in accordance with any lawful and reasonable direction given by or under the authority of the governing body of the City under the policy and regulatory powers of the City necessary to provide for public convenience. 6 of 14}-H-! 3. Before initiating construction on Public Rights -of -Way, the Grantee will make all reasonable efforts to attach its Cable System to existing poles and to share existing conduit space. Additionally, Grantee will negotiate in good faith to make its excess conduit space available on a nondiscriminatory basis to other authorized cable and telecommunications providers, consistent with federal, state or City regulations. 4. Grantee shall employ the use of directional boring, where feasible. In all sections of the City where the cables, wires and other like facilities of public utilities are placed underground, the Grantee shall place its cables, wires, or other like facilities underground. 5. The Grantee shall, at least 30 days prior to the construction of any portion of the transmission and/or distribution plant of the, Cable System, submit detailed plans and specifications of the distribution system to the City Administrator or his designated agent for review and approval. No construction shall start until such plans have been approved and a permit issued for the construction, provided such approval shall not be withheld unreasonably. B. Grande will submit plans for any change in Grande'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 Administrator's designated representative at least thirty days prior to the start of construction of the change. Grande will not begin construction of the change without first obtaining the approval of the plan by the City Administrator's designated representative. These requirements do not apply to bona fide emergency repairs. Grande will provide immediate verbal notice to the City Administrator's designated representative of any excavation performed within a City right-of-way in connection with an emergency repair. C. Grande will not place Grande's facilities where they will interfere with the existing lines, equipment or fixtures of any water, wastewater, gas, electric, cable television or telephone utility, or with drainage, in a City right-of-way. Grande will place any poles, equipment and fixtures set by it in any street or alley at the outer edge of the sidewalk and as close as practicable to the boundary of the 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 and telephone service lines are routed underground, Grande will route its lines underground. E. When Grande or its contractors, agents or employees disturb any pavement, sidewalk, driveway or other improved surfacing in City rights' -of -way, Grande 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. Grande will repair any settling or deterioration of the restored surface for a period of two years after the completion of the work if no other intervening causes gave rise to such deterioration. Grande will fully comply with all regulations applicable to the work, including but not limited to sawcutting, backfilling, compaction and paving standards. Grande will replace or repair all privately and publicly owned property damaged as a result of the installation, operation or maintenance of Grande's facilities. F. Grande'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, Grande will remove, relay or relocate Grande's facilities that are affected at Grande's expense upon reasonable notice by the City. The City will have the right to require Grande to change the location of any of Grande's facilities at Grande's expense when the public convenience requires the change, in the opinion of the City Administrator. In the event a City right-of- way is vacated or abandoned, Grande 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 Grande refuses or fails to remove, relay or relocate Grande's facilities after notice by the City, the City will have the right to remove, relay or relocate Grande's facilities, and charge the costs to Grande, and any resulting interruptions in service to any of Grande's customers will be the sole responsibility of Grande. Grande's failure to pay any such costs to the City will constitute a default by Grande under this Agreement. Grande will hold the City harmless for any damage to Grande's facilities located in City right-of-way in the event Grande'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. H. Grande'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, Grande will remove, relay or relocate Grande's facilities that are affected at Grande's expense upon reasonable notice by the City. If Grande refuses or fails to remove, relay or relocate Grande's facilities after notice by the City, the City will have the right to remove, relay or relocate Grande's facilities, and charge the costs to Grande, and any resulting interruptions in service to any of Grande's customers will be the sole responsibility of Grande. Grande's failure to pay any such costs to the City will constitute a default by Grande under this Agreement. Grande will hold the City and the City's agents, employees and contractors harmless for any damage to Grande's facilities located in City right-of-way in the event Grande'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. I. Grande will provide as -built maps of all or part of Grande's facilities in hard copy and computer form, compatible with the City's mapping systems. J. Grande 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 Grande facilities that requires excavation. K. Grande 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. Grande may charge to the requesting person the reasonable expense of temporary removal, raising or lowering of wires and cables, and Grande may require payment in advance. Grande may require that a request be made at least 48 hours in advance. L. Grande 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 Grande's facilities. All trimming will be done in accordance with City requirements and at Grande's expense. 8 of 14 -HP Section 9. Preferential or Discriminatory Practices Prohibited. A. Grande will not grant any preference 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 Grande from establishing a graduated scale of charges and classified rate schedules to which any customer coming within the classification would be entitled. Grande 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. Grande will provide cable service programming on an equal basis to all areas of the City. B. Grande 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. Grande will not discriminate against any person in its employment practices because of race, color, religion, national origin, age, or sex, nor will Grande discriminate in its employment practices against any qualified person because of disability. Section 10. Approval of Transfer. A. Grande will have the right to transfer this Agreement. The written approval of the City Council of the City will be secured by Grande before Grande may transfer or assign this Agreement, or any of the rights or privileges included within it, or any significant portion of its plant or system, except to the extent that such sale, merger or consolidation is to a wholly-owned subsidiary or an affiliate of which Grande owns a majority interest. B. Any successor or assignee of Grande will be bound by all the terms of the Agreement. Any transfer or assignment will be effective only when the assignee files its written acceptance and agreement to be bound by this Agreement with the City Administrator. C. The City will not unreasonably withhold approval of a transfer. The proposed assignee must show its ability to operate and maintain Grande's facilities, its financial responsibility, and its ability to comply with the terms of this Agreement. Section 11. Payment of Franchise Fee to City; Audit. A. General Compensation. The City Council finds that the City right-of-way to be used by Grande 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 Agreement, Grande would be required to undertake substantial investments and obligations in acquiring its own right- of-way and easements. Grande agrees to pay to the City as general compensation a franchise fee consisting of five percent (5%) of Grande's gross revenue derived within the City from cable service. It is the intent of the parties to include in the term "gross revenue" the value of all consideration to Grande, cash and otherwise, that Grande derives from the provision of cable service through and in connection with Grande's facilities, including: 1. all fees charged to Grande's customers for use of Grande's facilities; 2. all revenues generated from leasing channels and Grande's facilities for the provision of services 9 of 111411 governed by this franchise agreement. 3. advertising, including a prorata portion of national revenue attributable to Grande from the operation of Grande's facilities in the City; and 4. sale or rental of customer lists. 5. internet services, including internet access services provided over cable modems and as consistent with local, state, and federal law. "Gross revenue" does not include Grande's revenues from telecommunications services, nor does it include revenue not actually received. B. Calculation and Payment on a Quarterly Basis of Franchise Fee. Grande will make franchise fee payments to the City each calendar quarter. Grande will make these payments to the office designated by the City Administrator by the 30th day following the close of each respective quarter. Grande will make any necessary prorations. Each payment will be accompanied by a summary of the data and calculations to support the amount of the payment, including a breakout by month. C. The compensation 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. Grande's payment of compensation under this section does not limit or impair the privileges or rights of the City, whether under this Agreement 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. E. Grande will file with the City Administrator a statement of Grande's gross revenue for each fiscal year not later than the 120°i day after the end of Grande's fiscal year. The statement must contain a detailed description of gross revenue and uncollectible accounts for the year. F. Grande will keep complete and accurate records and books of accounts of its business and operations in the City in accordance with generally accepted accounting principles. The City will have the right to audit, inspect and copy all of Grande's books, accounts, maps and other records reasonably required by the City to determine the amounts of franchise fee payments to be made by Grande to the City. G. If the agreed franchise fee is eliminated or altered by law, regulation or judicial determination, the City and Grande reserve the right to renegotiate the franchise fee. H. In the event that any Franchise payment or recomputed amount is not made on or before the applicable dates heretofore specified, interest shall be charged from such due date at the annual rate of ten percent (10%). Section 12. Term of Grant; Forfeiture; Termination. A. This Agreement will be in full force and effect for a term of 15years beginning January, 1, 2001. 10 of I 41 ; B. The City Council may initiate a review of the performance of Grande under this Agreement at any time. To determine satisfactory performance, the City will consider Grande's technical performance, its customer service experience, and its compliance with the terms of this Agreement. If the City Council finds the performance of Grande to be unsatisfactory, the City Administrator will notify Grande in writing of the specific areas of unsatisfactory performance and give Grande a reasonable time to correct the deficiency. If Grande does not correct the deficiency within the time given, the City Council may terminate this Agreement. C. Grande commits a default under this Agreement if Grande: 1. fails to make any required payment to the City in a timely manner; 2. violates any material provision of this Agreement or any determination made by the City Administrator or City Council under this Agreement, or fails to comply with any City requirement; 3. fails to exercise diligence in commencing or completing construction of Grande's facilities; 4. fails or ceases to furnish cable services in accordance with this Agreement; or 5. attempts to evade any of the provisions of this Agreement or attempts to practice any fraud or deceit upon the City. D. In addition to all other rights of the City under this Agreement or otherwise, the City Council may terminate this Agreement on the basis of a default by Grande if Grande fails to cure the default within 30 days after receipt of written notice from the City Administrator of the default, or within a different time period set by the City Administrator for good cause in the notice of default. E. In the event the City terminates this Agreement, Grande will have 60 days from the date of receipt of notice of termination to remove all of Grande's facilities from City right-of-way. The City may remove and dispose of, or may assume ownership of and may use, any of Grande's facilities that are not timely removed by Grande. The City may charge any costs for removal and disposal of Grande's facilities to Grande. F. Any failure of the City to enforce any provision of this Agreement in one or more instances will not be construed as a waiver of the City's right to fully enforce this Agreement after that time. Section 13. Miscellaneous Provisions. A. Notices required by this Agreement 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 Administrator City of Cibolo P.O. Box 826 Cibolo, TX 78108 11 of 14141-4 Fax: (210) 658-1687 To Grande: Grande Communications, Inc. 401 Carlson Circle San Marcos, TX 78666 Fax (512) 878-4010 If a party changes its address or facsimile number for notice purposes, it will provide written notice of the new address to the other party within 10 days. 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 of this ordinance will continue in force if they can be given effect without the invalid portion. C. If Grande is rendered unable to carry out a specific obligation under this Agreement, other than an obligation to make payments to the City, because of a circumstance (an "uncontrollable circumstance") beyond Grande's control, such as a civil disturbance, unforeseeable materiel 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 Grande, or any mandates imposed by the City which have the effect of rendering Grande unable to perform under the terms of this Franchise Agreement, Grande will give prompt written notice to the City of the uncontrollable circumstance and the obligation involved, and the obligation will be suspended during the period of the uncontrollable circumstance. D. This Agreement will be in effect from and after its passage by the City Council of Cibolo, Texas and the filing of acceptance by Grande with the City Administrator. E. Grande will have 30 days after the date of the publication of notice of adoption of this ordinance to file its written acceptance with the City Administrator. The written acceptance will be in the form attached as Exhibit A. 12 of 144414 PASSED, APPROVED AND ADOPTED on first reading on Octobe� 10 , 2000 Sam Bauder, Mayor ATTEST: Ken Ro rts, Ci y Administrator 13 of 141414 ACCEPTANCE WHEREAS, the City Council of the City of Cibolo, Texas, has adopted this Agreement 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 Agreement, to become effective upon filing of this acceptance; NOW, THEREFORE, for the purpose of complying with the terms of this Agreement and for the purpose of accepting the Agreement, Grande Communications, Inc. executes this written acceptance of all the terms and provisions of the Agreement, and files this Acceptance with the City Administrator of the City ofCibolo, Texas on October 10,'2000 =OMMUMCATIONS, INC. Signature Sam Bauder, Mayor Printed name, title ACCEPTANCE filed in the office of the City Administrator of the City ofCibolo, Texas, on October 10, 2000 i en Roberts City Administrator 14 of 144414 ATTEST: U 1,0. W d4— tbnature vonne Griffin. Printed name, title City Secretary F00 : ACCEPTANCE WHEREAS, the City Council of the City of Cibolo, Texas, has adopted this Agreement 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 Agreement, to become effective upon filing of this acceptance; NOW, THEREFORE, for the purpose of complying with the terms of this Agreement and for the purpose of accepting the Agreement, Grande Communications, Inc. executes this written acceptance of all the terms and provisions of the Agreement, and files this Acceptance with the City Administrator of the City of Cibolo, Texas on gtw GRANDE COMMUNICATIONS, INC. By: a �1� M gEuz N1G v awF-S l ze--T 4w!�k9 K.. Printed name, title M 9,0 A6 Z ACCEPTANCE filed in the office of the City Administrator of the City of Cibolo, Texas, on OCTOBER 24, 2000 en Roberts , City Administrator 14 of 144-414 ATTEST: Si tore jepM j tJ I sTRftTNy, 46 s, ST. Printed name, title 5 �` CITY OF CIBOLO FAX TRANSMITTAL SHEET Office: ( 210) 658-9900 Fax: (210) 658-1687 SUBJECT: INSURANCE REQUIREMENTS TO; MR. JOHN M. SAENZ, GRANDE COMMUNICATION Number of Receiving Fag: 210-320-4010 Number of Pages, FROM: KEN ROBERTS 3 Incl. Cover Comments: JOHN, IF YOU WOULD, PLEASE ADJUST THE GRANDE FRANCHISE AGREEMENT TO "MATCH" THE VERBAGE IN... THE WIN & PARAGON AGREEMENTS AND WE"LL BE IN BUSINESS. KEN SECTION 8. Liability and Indemnification. a. The Grantee shall indemnify and hold the city harmless from any and all losses sustained by the City on account on any tax, penalty, fine, costs, expense, suit, judgment, execution, claim or demand whatsoever against the City resulting from the Grantee's construction, operation or maintenance of the Cable System and/or any other negligent actions or omissions taken or not taken by the Grantee in connection with this franchise. The Grantee may, and if requested in writing by the City, undertake the defense of any claim, action or proceeding for which the City is indemnified under this Section, and, thereafter, the Grantee shall not be liable to the City for any legal or other expenses of the City other than reasonable costs subsequently incurred by the City at the request of the Grantee in connection with the defense thereof. The Grantee shall not be liable for the settlement of any such claim, action or proceeding effected without its prior written consent. The City shall give the Grantee prompt notice of any claim, action or proceeding against it upon which the City may seek indemnity hereunder. b. The Grantee shall carry, throughout the term of this franchise, 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 any one occurrence, and against liability due to injury or death of a person $2,000,000 as to any one person and $5,000,000 as to any one occurrence. A certificate or certificates of insurance shall be filed and maintained with the City during the term of this franchise. The Grantee agrees that, at the end of the fifth and tenth complete fiscal years following the Effective Date of this franchise, it will increase the amounts of insurance required to be maintained by the Grantee under this Section 8b in accordance with an opinion of a qualified insurance consultant agreed to by the City and the Grantee stating that such amounts should be increased. SECTION 9. Performance Evaluations. The City Council shall have the right under this franchise at any time to review the performance of the Grantee hereunder and to ascertain that all provisions of this franchise are being fully and faithfully carred out. The City Council may conduct formal performance evaluations of the Grantee's Cable System and the Cable Services on or about the fifth, ninth and thirteenth anniversary of the Effective Date of this franchise. 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. 0 determined that the Grantee's annual payment to the City for the / preceding year should be increased thereby by more than three percent (3%); otherwise, the cost shall be borne by the City. C. 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 the Grantee. SECTION S. Liability and Indemnification. a. The Grantee shall indemnify and hold the City harmless from any and all loss sustained by the City on account of any suit, judgment, execution, claim or demand whatsoever against the City resulting from the Grantee's construction, operation or maintenance of the cable system and/or any other actions or omissions taken or not taken by the Grantee. b. The Grantee shall carry, throughout the term of this franchise, 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 FIVE HUNDRED THOUSAND AND NO/100ths DOLLARS ($500,000.00) as to any one occurrence; against liability due to injury to or death of a person, TWO MILLION AND NO/100ths DOLLARS ($2,000,000.00) as to any one person and FIVE MILLION AND NO/100ths ($5,000,000.00) as to any one occurrence. A certificate or certificates of insurance shall be filed and maintained with the City during the term of the franchise. SECTION 9. Performance Evaluations. The Council shall have the right under this franchise at any time to review the performance of the Grantee and to ascertain that all provisions of the franchise are being fully and faithfully carried out. The Council may conduct formal Performance Evaluations under the Franchise of the Grantee's system and services on or about the fifth, ninth, and thirteenth anniversary of the Effective Date of the franchise, the method and format of such evaluations to be agreed upon by the City and Grantee at the time of the evaluation. SECTION 10. Revocation and Termination of the Franchise. a. The City shall have the right to revoke and terminate this franchise if in the City's sole judgment, the Grantee has (1) committed a series of violations of this franchise such as to indicate that the Grantee is unable or unwilling to comply with the franchise, and the Grantee has failed to take reasonable steps to correct or desist from the violations within a reasonable time after due written notice has been given by the City or (2) if the Grantee files in any court a petition of voluntary bankruptcy or is involuntarily adjudged bankrupt in any court of competent jurisdiction or is placed in receivership or trusteeship or (3) if the Grantee's title and interest in the cable system authorized by this franchise or in the franchise itself is taken by execution in any court of competent jurisdiction or is forfeited or subject to forfeiture before any court. b. If at any time the City has reason to believe that the Grantee ACORD. CERTIFICATE OF LIABILITY INSURANCE DATE 001 PRODUCER (512)453-0031 FAX (512)453-0041 Consolidated Insurance Agency 3108 North Lamar Boulevard Austin, TX 78705-2028 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURED Grande Communications, Inc. Grande Communications Networks, Inc. 401 Carlson Circle San Marcos, TX 78666 INSURERA: American Motorists Insurance Company INSURER B: American Manufacturers Mutual Ins Co INSURER C: Lumbermen's Mutual Casualty Company INSURER D: INSURERE: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE MMlDD POLICY EXPIRATION DATE MMIDD LIMITS City Administrator GENERAL LIABILITY 3MG80255701 10/01/2000 10/01/2001 EACH OCCURRENCE S 1,000,000 FIRE DAMAGE (Any one fire) S Included X COMMERCIALGENERALLIABILITY Todd Davis/LJT CLAIMS MADE OCCUR MED EXP (Any one person) S 10,000 PERSONAL&ADV INJURY S 1,000,000 A GENERAL AGGREGATE S 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS -COMPIOPAGG S 2,000,000 POLICY PRO- LOC JECT AUTOMOBILE X LIABILITY ANY AUTO E3YO3257201 10/01/2000 10/01/2001 COMBINED SINGLE LIMB (Ea accident) S 1,000,000 BODILY INJURY (Per person) S B ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY 5 (Per accident) HIREDAUTOS - NON OWNED AUTOS PROPERTY DAMAGE S (Per accident) - GARAGE LIABILITY AUTO ONLY -FA ACCIDENT S OTHERTHAN EAACC S ANY AUTO AUTO ONLY: AGO S EXCESS LIABILITY 35X13193401 10/01/2000 10/01/2001 EACH OCCURRENCE 5 15,000,000 X OCCUR CIAIMS MAGE AGGREGATE S 15,000,000 C S S DEDUCTIBLE X RETENTION $ 10,00 g A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY 38606936001 10/01/2000 10/01/2001 X TORYSTATTILIM RS ER E.L. EACH ACCIDENT S S00,000 E.L. DISEASE, EA EMPLOYEqj$ 500,000 _ - E.L.DISEASE-POLICYLIMIT I S 500,000 OTHER DESCRIPTION OF OPERATIONSILOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS ertificate Holder is Additional Insured as respects Commercial General Liability. ,jZtRTIFICATE HOLDER I I ADDITIONAL INSURED; INSURER LETTER: CANCELLATION ACORD 25-S (7197) FAX: (210)658-1687 ©ACORD CORPORATION 1988 I•- SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL City of Cibolo 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Attn: City Administrator BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY P 0 Box 826 OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE CTbolo, TX 78108 Todd Davis/LJT ACORD 25-S (7197) FAX: (210)658-1687 ©ACORD CORPORATION 1988 I•- ,�?JRD, CERTIFICATE OF LIABILITY INSURANCE asiii�zoo PRODUCER (512)453-0031 FAX (512)453-0041 Consolidated Insurance Agency 3108 North Lamar Boulevard Austin, TX 78705-2028 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Grande Communications, Inc. 401 Carlson Circle San Marcos, TX 78666 INSURER A: Federal Insurance Company INSURERS: Hartford of the Midwest INSURERC: Hartford Underwriters INSURER D: INSURER E: COVFRAnFS THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTW ITHSTANDINI ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAD CLAIMS. INSR DD' TYPE OF INSURANCE POLICY NUMBER POLICYEFFECTIVE POLICY EXPIRATIONiu DATE (MMIDDMI LIMBS CTbolo, TX 78108 GENERAL LIABILITY 35783456 06/01/2003 10/01/2004 EACH OCCURRENCE $ 1,000 000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ Included CLAIMS MADE OCCUR MEDEXP(Any Oneperson) $ 10,000 A PERSONAL B ADV INJURY $ 1,000,000 GENERALAGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMPIOP AGG $ 2,000,000 POUCV PRO JECT OC AUTOMOBILE X LIABILITY ANY AUTO 65UENUY3847 06/01/2003 10/01/2004 COMBINED SINGLE LIMB $ (Ea accident) 1,000,000 BODILY INJURY $ (Per person) B ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY $ (Per accident) HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE $ (Per accident) GARAGE LABILfTY AUTO ONLY -EA ACCIDENT $ OTHER THAN EA ACC $ ANY AUTO AUTO ONLY: AGO $ EXCESSIUMBRELLA LABILITY 79219815 06/01/2003 10/01/2004 EACH OCCURRENCE $ 25,000,000 X OCCUR FICLAIMS MADE AGGREGATE $ 25,000,000 A $ $ DEDUCTIBLE X RETENTION $ 0 is WORKERS COMPENSATION AND 65WEGG4739 06/01/2003 10/01/2003 X I wCSTATU-0TH- - C EMPLOYERS' LABILITY- - ANY PROPRIETORIPARTNERIEXECUTIVE _ E.L. EACH ACCIDENT $ 1, OOO OOO YE $ 1,000, OUD E.L. DISEASE - EA EMPLOyes. OFFICERWEMBER EXCLUDED? 65WEGG4739 10/01/2003 10/01/2004 ascribe under SPECIAL PROVISIONS below E.L. DISEASE -POLICY LIMIT $ 1,000 000 OTHER DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECAL PROVISIONS ertificate Holder is Additional Insured as respects Commercial General Liability. CERTIFICATE HOLDER CANCELLATION ACORD 25 (2001/O6) FAX: (210)658-1687 ©ACORD CORPORATION 1988 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL City of Ci bolo 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Attn: City Administrator BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY P 0 Box 826 OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE CTbolo, TX 78108 Todd Davis/LIT ACORD 25 (2001/O6) FAX: (210)658-1687 ©ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001108) I Grande Communications, Inc. Addendum to Liability Certificate 06/11/2003 Consolidated Insurance Agency 06/01/2003 NAMED INSURED SCHEDULE: Grande Communications Holdings, Inc. Grande Communications, Inc. Grande Communications Networks, Inc. Grande Communications C1earSource, Inc. Grande Communications Houston, Inc.