1988-1892518L
ORDINANCE NO.Fy~]W
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS,
GRANTING A FRANCHISE TO SAMMONS COMMUNICATIONS, INC., TO CON-
STRUCT, RECONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION
SYSTEM IN THE CITY OF DENTON, TEXAS AND SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANTING OF THIS FRANCHISE; PROVIDING FOR A
PENALTY FOR THE VIOLATION OF PORTIONS OF THIS ORDINANCE; PRO-
VIDING FOR A SAVINGS CLAUSE; PROVIDING FOR THE EFFECT OF THIS
ORDINANCE UPON OTHER ORDINANCES AND RESOLUTIONS; AND PROVIDING
AN EFFECTIVE DATE.
THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS:
WHEREAS, the City is authorized to grant, renew and deny
franchises for the installation, operation and maintenance of
cable television and other telecommunications systems, and
otherwise to regulate cable television within the city's
boundaries by virtue of (i) Federal and State statutes, (ii) the
City's police powers, (iii) the City's authority over its public
rights of way, and (iv) other City powers and authority; and
WHEREAS, the City has undertaken an extensive review of cable
television service in the City, including but not limited to a
review of Sammons Communications, Inc., its respective records of
service, its facilities, the cable television-related community
needs of the City and its citizens for both the present and
future, Sammons Communications, Inc.'s ability to carry out each
of its commitments as set forth herein and in related documents,
the experience and character of Sammons Communications, Inc.
management teams and Sammons' financial, legal and technical
qualifications to maintain and operate a cable television system
franchise in the City in a manner which would serve the public
interest of the citizens of the City; and
WHEREAS, the City hereby finds that it would serve the public
interest of the citizens of the City to grant a cable television
franchise to Sammons Communications, Inc., subject to the terms
and conditions hereinafter set forth, and Sammons Communications,
Inc. voluntarily agrees to such terms and conditions;
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereby agree as follows:
SECTION I TITLE
This ordinance shall be known and may be cited as "Cable TV
Franchise Ordinance "
SECTION II PREAMBLE
This ordinance was passed after a full, open and public
hearing upon prior notice and opportunity of all interested
parties to be heard and upon careful consideration of SAMMONS
COMMUNICATIONS, INC IS qualifications, including its legal,
financial and technical qualifications
SECTION III DEFINITIONS
For the purpose of this ordinance, and when not inconsistent
with context, words used herein in the present tense include the
future, the word "shall" is always mandatory The captions
supplied herein for each section are for convenience only Said
captions have no force of law, are not part of the section, and
are not to be used in construing the language of the section
The following terms and phrases, as used herein, shall be given
the meanings set forth below
(1) "City" is the CITY OF DENTON, TEXAS, a municipal corpo-
ration under the laws of the State of Texas
(2) "Grantee" is SAMMONS COMMUNICATIONS, INC , a corporation
organized and existing under the laws of the State of
Delaware, duly qualified and authorized to do business in
the State of Texas, and it is the grantee and franchisee
of rights under this franchise
(3) "City Council" is the City Council of the CITY OF DENTON,
TEXAS, or its designated representatives
As used in this document, a word shall have the meaning set
forth in Chapter 5 1/2 of the City's Municipal Code of Ordinances
(hereinafter, the "Cable Ordinance") at Article II, unless it is
apparent from the context that it has a different meaning, or
unless such word is specifically defined herein The term
"Grantee" shall refer to Sammons Communications, Inc or a
wholly-owned subsidiary of Sammons or a company under common
control with or controlling Sammons (provided that the liability
of Sammons and each affiliated entity acting as Grantee hereunder
shall be joint and several), and its successors hereunder
SECTION IV GRANT OF AUTHORITY
There is hereby granted by the City to Grantee the right and
privilege to construct, reconstruct, erect, operate and maintain,
PAGE 2
in, upon, along, across, above, over or under the streets,
alleys, easements, public ways and public places now laid out or
dedicated and all extensions thereof and additions thereto in the
City, all poles, wires, cables, underground conduits, manholes
and other conductors and fixtures necessary for the maintenance
and operation in the City of a cable television system for the
transmission of television signals and other signals, either
separately or upon or in conjunction with any public utility
maintaining the same in the City, with all of the necessary and
desirable appliances and appurtenances pertaining thereto
Without limiting the generality of the foregoing, this franchise
and grant shall and does hereby include the right in, over,
under, and upon streets, sidewalks, alleys, easements, and public
grounds and places in the City to install, erect, operate or in
any way acquire the use of, as by leasin~ or licensing, all lines
and equipment necessary to the Grantees cable system and the
right to make connections to subscribers and the right to repair,
replace, enlarge and extend said lines, equipment and connections
SECTION V POLICE POWER
Grantee shall, at all times during the term of this franchise,
be subject to all lawful exercise of the police power of the City
The right is hereby reserved to the City to adopt, in addition to
the provisions herein contained and any other existing applicable
ordinances, such additional applicable ordinances as it shall find
necessary in the exercise of its police power, provided that such
additional ordinances shall be reasonable, shall not substantially
or materially conflict with or alter in any manner the rights
granted herein, and shall not conflict with the laws of the State
of Texas, the laws of the United States of America, or the rules
of the Federal Communications Commission All terms, conditions
and provisions of the Cable Ordinance shall be deemed to be
embodied in this Agreement and Grantee does hereby agree to
comply with the terms of said Ordinance
SECTION VI SYSTEM UPGRADE AND TIMETABLE
(a) Within the time period specified in (b) of this section,
the Grantee shall have completely upgraded and initiated a Cable
System which has the capability of delivering sixty (60) video
channels over 450 MHZ Cable bandwidth (the "Cable System upgrade")
and the Grantee shall use its best efforts to maximize usage of
such capacity with non-duplicated video channels
(b) The Grantee shall exercise its best good faith efforts to
expedite construction of the Cable System Upgrade as required in
subsection above in a sound and economical manner Subject to
the provisions of Section XXV (Force Majeure) hereof, Grantee
shall meet the following schedule
PAGE 3
(1) Submission of all applications for authorizations
necessary to begin initial construction of the
cable system upgrade on or before July 1, 1990
(2) Securing all authorizations necessary to begin
initial construction of the Cable System Upgrade
on or before September 1, 1990
(3) Completion of all of the construction of the
Cable System Upgrade on or before November 1,
1993
(4) The Cable System Upgrade shall have the
capability to transmit video, voice and data
services in two directions simultaneously ("two
way services") Two-way services shall be
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 Grantee's burden to demon-
strate to the City's satisfaction, upon request
of the City at any time, that it is not econo-
mically or technically feasible to institute such
two-way services
(5) Grantee shall have completed the installation of
alternative (standby) power sources at the
headend on or before May 1, 1989 Thereafter,
Grantee shall maintain such power sources so that
all Cable System and work lines and sub-stations
ma be maintained at full power for at least two
hours beyond the time when normal power
sources serving the Cable System have ceased
(6) Grantee shall provide the capability for inser-
tion of video programming and other video, voice
and data messages into the Cable System from the
following points in the City Municipal Building,
215 E McKinney, Central Eire Station, 217 W
McKinney, Service Center, 901 Texas Street,
Police Station, 221 N Elm, Library, 502 Oakland
and Civic Center, 321 E McKinney
Grantee shall complete construction of such cable
lines not later than November 1, 1993 In
addition to the above-designated points for
insertion of video programming and other video,
voice and data messages into the Cable System
described above, Grantee shall provide a central
PAGE 4
insertion point for the Cable System within the
City, which shall be one of the points described
above and which shall include signal switching
and processing equipment as is reasonably
required to allow those utilizing the insertion
points listed above to transmit to the other
insertion points of the Cable System, or to
transmit to all subscribers, at the City's
option Prior to designating the central
insertion point for the Cable System within the
City, Grantee shall obtain the prior written
consent of the City Manager to such designation
(7) Grantee shall, not later than November 1, 1993,
provide and maintain two access channels
designated for the following uses
(a) Local Government/Denton Independent School
District (a shared channel)
(b) Education Access
(c) The Grantee shall submit its drawings and specifications
for the Cable System Upgrade to the City not later than March 1,
1990, provided, however, that the City assumes no liability or
responsibility whatsoever for the design or construction of the
Cable System Upgrade by virtue of its receipt of such drawings
and specifications, it being understood that the City's approval
of such drawings and specifications shall not be required At
the time the Grantee submits such drawings and specifications to
the City, the Grantee shall also submit a detailed plan of action
for the accomplishment of the Cable System Upgrade, including,
without limitation, performance criteria which will permit the
City to monitor the Grantee's progress toward completing the
Cable System Upgrade in a timely fashion
SECTION VII INDEMNIFICATION AND INSURANCE
Grantee shall hold the City harmless from all loss sustained
by the City on account of any suit, judgment, execution, claim or
demand whatsoever against the City resulting from any negligent
act or omission on the part of Grantee in the construction,
operation or maintenance of its Cable System in the City in
accordance with Section 5 1/2-76 of the Cable Ordinance For
this purpose, Grantee shall carry property damage and personal
injury insurance with some responsible insurance company or
companies qualified to do business in the State of Texas The
amounts of such insurance to be carried for liability shall be
not less than those amounts set forth in the Cable Ordinance and
as set forth in Exhibit 1 to this Ordinance
PAGE 5
SECTION VIII COMPLAINT PROCEDURE
(a) Grantee shall maintain a business office in Denton for
the purpose of receiving inquiries and complaints from its
customers and the general public
(b) Grantee shall establish procedures for receiving, acting
upon, and resolving subscriber complaints and complaints by the
City to the satisfaction of the City Manager and the proposed
initial procedures shall be submitted to the City Manager upon
Grantee's acceptance of this Agreement Grantee shall provide
written notice of such procedures to subscribers at least once a
year
(c) The Grantee shall respond to complaints made by the City
or subscribers of the Cable System promptly and, if possible,
shall resolve complaints made by the City or subscribers not more
than twenty-four (24) hours following receipt of the complaint by
Grantee Grantee shall maintain complete, detailed records
relating to its maintenance and operation of the Cable System
which shall be available for inspection by representatives of the
City at any time during normal business hours of the City Upon
the City's request, Grantee shall respond to City in writing
within twenty-four (24) hours following receipt of such request
by the Grantee regarding any complaint which takes longer than
one week to resolve
(d) Grantee shall provide a local, toll-free telephone
service for subscriber complaints to be answered twenty-four (24)
hours each day in accordance with the schedule set forth in
Exhibit 2 Such telephone number shall be prominently displayed
on the first page of each customer bill and in the telephone
directory of the City of Denton
(e) Grantee shall provide at least ten days (10) days written
notice prior to discontinuance of service to any subscriber of
the Cable System If Grantee has improperly disconnected Cable
System service to any subscriber, it shall provide free recon-
nection to the Cable System to such subscriber
(f) All personnel, agents and representatives of Grantee,
including subcontractors, shall wear photo-identification badges,
prominently displayed, when acting on behalf of the Grantee in
the City
(g) Grantee shall provide advance notice in writing to the
resident, of any private property within the City prior to entry
onto such property wherever the Grantee desires that any of its
personnel, agents or representatives should enter such property
This requirement shall apply only when it is reasonable under the
PAGE 6
circumstances at the time and Grantee shall not be required to
provide such notice in emergencies
(h) Grantee shall notify each subscriber of the Cable System
in advance of the expected time of any service visit to such
subscriber's premises Such notification shall specify whether
the anticipated service visit will be before or after noon
Grantee shall accommodate the subscriber with respect to the
subscriber's expressed preference for a morning or afternoon
service visit
(i) Grantee shall, not less than once a year, provide
subscribers of the Cable System, and potential subscribers, with
a complete list of service offerings, options, prices, and credit
policies associated with the Cable System
(J) Grantee shall establish and maintain sufficient telephone
lines and personnel so as to not delay unreasonably the answering
of all telephone calls The City, upon receipt of documented
complaints from more than ten subscribers during a single business
day between the hours of 8 30 a m and 6 00 p m regarding their
inability to reach a live, personal representative of Grantee
during non-emergency, non-system outage periods, may seek
liquidated damages as provided in Section 5 1/2-62 of the Cable
Ordinance
SECTION IX CONSTRUCTION AND MAINTENANCE
(a) All structures, lines and equipment erected by Grantee
within the City shall be so located as to cause minimum inter-
ference with the proper use of streets, alleys, easements, and
other public ways and places and to cause minimum interference
with the rights or reasonable convenience of property owners, and
Grantee shall comply with all reasonable, proper and lawful
ordinances of the City now or hereafter in force Existing
poles, posts, conduits, and other such structures of any electric
power system, telephone company, or other public utility located
in the City shall, when possible, be made available to Grantee
for leasing or licensing upon reasonable terms and rates and
shall be used to the extent practicable in order to minimize
interference with travel and avoid unnecessary duplication of
facilities Poles owned by City shall be made available to
Grantee for its use under the terms, conditions and provisions of
a separate Pole Rental Agreement to be negotiated between the
parties
(b) Grantee shall not open or disturb the surface of any
street, sidewalk, driveway or public place for any purpose
without first having obtained a permit to do so in accordance
with applicable ordinances, including, but not limited to,
PAGE 7
Chapter 21 of the Code of Ordinances, except that Grantee shall
not be required to post a bond prior to commencing such
disturbance Grantee specifically agrees to pay any fees in
connection herewith required by City Ordinances In case of any
disturbance by the Grantee of pavements, sidewalk, driveway, or
other surfacing, Grantee shall, at its own cost and expense and
in a manner approved by the City, replace and restore all paving,
sidewalk, driveway or surface so disturbed in as good condition
as before said work was commenced
(c) In the event that at any time during the period of this
franchise the City shall elect to alter or change any street,
alley, easement, or other public way requiring the relocation of
Grantee's facilities, then in such event, Grantee, upon
reasonable notice from the City, shall remove, relay, and
relocate the same at its own expense
(d) Grantee shall, on the request of any person holding a
building moving permit issued by the City, temporarily raise or
lower its lines to permit the moving of the building The
expense of such temporary removal shall be paid by the person
requesting the same, and Grantee shall have the authority to
require such payment in advance
(e) All poles, lines, structure or other facilities owned by
Grantee in, on, over and under the streets, sidewalks, alleys and
easements and public grounds or places of the City shall be kept
by Grantee at all times in a safe and substantial condition
SECTION X CONSTRUCTION AND EXTENSION
(a) In conjunction with submittal of its proposal for
renewal, Grantee has submitted a construction plan, a copy of
which is hereby incorporated by reference and made a part of the
franchise agreement The plan, attached hereto as Exhibit 2,
includes system design details, equipment, specifications and
design performance criteria, a map of the entire franchise area
and clearly delineates the following
(1) The areas within the franchise area where the
cable system is currently available to subscribers,
including a schedule of construction for each year
that construction or reconstruction is proposed
(2) The areas within the franchise area where the
cable system cannot reasonably be extended due to
lack of present or planned development or other
similar reasons, with the areas and the reasons
for not serving them clearly identified on the map
PAGE 8
(b) Nothing in this section shall prevent the Grantee from
constructing or reconstructing the system earlier than planned
However, any delay in the system construction beyond the times
specified in the plan report timetable must be submitted to and
approved by the City Council
(c) Extension of the Cable System into any areas not
specifically addressed in the plan shall nonetheless be required
if the terms of any of the following conditions are met
(1) Upon request of potential subscribers, a Grantee
shall extend the system to any contiguous area
not designated for initial service in the plan
when there exists a density of 35 homes per
street mile for aerial cable or 50 homes per
street mile for underground cable Extension
shall be at Grantee's cost If underground
installation is required by regulation, Grantee
must make installation at Grantee's expense
Where aerial extension is allowed by regulation
but underground installation is requested by
benefited subscribers, the cost of undergrounding
that exceeds the estimated aerial extension cost
may be charged to such benefited subscribers
(2) In areas not meeting the requirements for
mandatory extension of service Grantee shall
provide, upon the request of five (5) or more
potential subscribers desiring service, an
estimate of the costs required to extend service
to said subscribers Grantee shall then extend
service upon request of said potential subscribers
according to the rate schedule Grantee may
require advance payment or assurance of payment
satisfactory to Grantee The amount paid by sub-
scribers for early extension shall be nonrefund-
able, and in the event the area subsequently
reaches the density required for mandatory
extension, such payments shall be treated as
consideration for early extension
(d) Grantee shall construct, install, operate and maintain
its system in a manner consistent with detailed construction
standards submitted by Grantee as a part of its application
Grantee agrees to comply with the Codes, and any supplements or
amendments thereto, referenced in its proposal
PAGE 9
SECTION XI CONSTRUCTION BOND REQUIRED
Pursuant to Section 5 1/2-63 of the Cable Ordinance, the
Grantee shall file with the City a construction bond in the amount
of $1,000,000 not later than August 1, 1990 The construction
bond shall be terminated only after the City Council finds that
the Grantee has satisfactorily completed reconstruction of the
cable system pursuant to the terms of the Cable Ordinance and
this franchise agreement
SECTION XII GOVERNING LAW
This franchise is governed by and subject to all applicable
provisions of the Communications Act of 1934, as amended in 1984,
and regulations promulgated by the Federal Communications
Commission pursuant thereto as well as the laws of the State of
Texas, not inconsistent therewith
SECTION XIII FRANCHISE TERM
This franchise shall take effect and be in full force from
and after acceptance by Grantee as provided in Section XXXIII ,
and the same shall continue in full force and effect for a term
of fifteen (15) years
SECTION XIV RENEWAL PROCEDURE
This Franchise Agreement shall be subject to renewal in
accordance with the terms and conditions of Section 626 of the
Cable Communications Policy Act of 1984, 47 U S C 546, as now in
force and effect or hereafter as amended
SECTION XV PERFORMANCE REVIEW
The parties agree that the City shall have the right to con-
duct a performance evaluation with the Grantee and the citizens
of the City relating to this Franchise Agreement, commencing in
the seventh year subsequent to the date of Grantee's acceptance
of this franchise The Grantee agrees to incur the costs of the
evaluation and the City's ascertainment of the current cable-
related needs and interests of the City's residents, provided,
however, that the total payment by the Grantee shall not exceed
Twenty-Five Thousand ($25,000 00) Dollars This sum shall be
adjusted on the basis of the proportion that the then all Urban
Consumer Price Index (CPI-U) for the Dallas/Fort Worth Standard
Metropolitan Statistical Area bears to the February, 1988 index,
which was 114 0 The City shall provide Grantee with the names
of three nationally recognized independent cable television
consulting firms and the Grantee, together with the City, shall
PAGE 10
select one of the three consultants to perform the evaluation
Grantee agrees that such costs are in addition to and not to be
deducted from the franchise fees due the City
SECTION XVI SECURITY FUND
(a) Within twenty (20) days after the effective date of a
franchise agreement, the Grantee shall deposit with the City's
Executive Director of Finance, and maintain on deposit through
the term of the franchise, the sum of Sixty-Five Thousand
($65,000) Dollars in monies, as security for the faithful perfor-
mance by it of all the provisions of this franchise agreement,
and compliance with all orders, permits and directions of any
agency of the City having jurisdiction over its acts or defaults
under this contract, and the payment by the Grantee of any claims,
liens and taxes due the City which arise by reason of the con-
struction, reconstruction, operation or maintenance of the system
and the payment by the Grantee of any penalties or liquidated
damages due the City pursuant to this franchise agreement
(b) The City Manager may draw upon the security fund in the
event of any of the occurrences set forth in this Section and in
Section 5 1/2-62 of the Cable Ordinance Within ten (10) days
after notice to it that any amount has been withdrawn from the
security fund deposited pursuant to subdivision (a) of this
section in accordance with Section 5 1/2-62 (Liquidated Damages),
the Grantee shall pay to or deposit with the Executive Director
of Finance a sum of money sufficient to restore such security
fund to the original amount of Sixty-Five Thousand ($65,000
Dollars Failure to restore said security fund to the original
amount shall constitute a material breach
(c) Examples of a basis for drawing upon the security fund
include, but are not limited to the following
(1) failure of the Grantee to pay to the City any taxes
after ten (10) days written notice of delinquency,
(2) failure of the Grantee to pay to the City after
ten (10) days written notice, any amounts due and
owing the City by reason f the indemnity provision
of Section 5 1/2-78 of the Cable Ordinance,
(3) failure by the Grantee to pay to the City, any
liquidated damages due and owing to the City pur-
suant to Section 5 1/2-62 of the Cable Ordinance,
(4) failure by the Grantee to pay to the City any
amounts due pursuant o Section 5 1/2-21(g) of the
Cable Ordinance,
PAGE 11
(5) failure by the Grantee to pay, upon ten (10) days
written notice, any amounts owing as franchise
fees pursuant to Section 5 1/2-69 of the Cable
Ordinance
(d) The security fund deposited pursuant to this Section
shall become the property of the City in the event that this
contract is cancelled by reason of the default of the Grantee
The Grantee, however, shall be entitled to the return of such
security fund, or portion thereof, as remains on deposit with the
Executive Director of Finance at the expiration of the term of
the franchise agreement, provided that there is then no
outstanding default on the part of the Grantee
(e) The rights reserved to the City with respect to the
security fund are in addition to all other rights of the City
whether reserved by this contract or authorized by law, and no
action, proceeding or exercise of a right with respect to such
security fund shall affect any other right the City may have
SECTION XVII LIQUIDATED DAMAGES
(a) The parties agree to the liquidated damages specified in
Section 5 1/2-62 of the Cable Ordinance, as adopted on the 1st
day of November, 1988, but without prejudice to any other
remedies available to the parties hereto to the extent permitted
by law The parties agree that the liquidated damages set forth
in the ordinance may be greater or less than the City's actual
damages and such damages represent the best estimate by the par-
ties hereto as the likely extent of such damages The liquidated
damages are not intended to constitute a penalty, but rather, are
designed to save the parties from having to engage in costly liti-
gation with regard to the extent of such damages In addition to
the amounts set forth in the Cable Ordinance, the following
liquidated damages shall apply
For breach of any service standards adopted pursuant to
Section VIII , hereof
$200 00 per day
(b) If the City Manager determines that the Grantee is liable
for liquidated damages, he shall issue to the Grantee by certi-
fied mail a notice of intention to assess liquidated damages
The notice shall set forth the basis for the assessment, and
shall inform the Grantee that liquidated damages will be assessed
from the date of the notice unless the assessment notice is
appealed for hearing before the City Council If the Grantee
desires a hearing before the City Council, it shall send a
written notice of appeal by certified mail to the City Manager
within ten (10) days of the date on which the City sent the
PAGE 12
notice of intention to assess liquidated damages In the event
the City Manager receives such a notice from the Grantee, the
hearing on the Grantee's appeal shall be held within thirty (30)
days of the date on which the City sent the notice of intention
to assess liquidated damages unless mutually extended by the City
and the Grantee After such hearing, and based on the facts
before it, if the City Council finds (a) that an extension of
time or other relief should be granted, or (b) that there was
never a violation, then it shall waive the City Manager's
assessment of liquidated damages If the City finds that the
facts warrant the assessment of liquidated damages, or any
portion thereof, the City may at any time thereafter draw the
amount of liquid damages from the security fund established
pursuant to Section 5 1/2-61 of the Cable Ordinance up to the
full amount of accrued liquidated damages to such date In
considering whether or not to waive all or a portion of any
liquidated damages assessable against the Grantee hereunder, the
City shall consider, without limitation, the number, frequency
and magnitude of any prior breaches of this Agreement by the
Grantee and the speed with which the Grantee cured such breach or
breaches
SECTION XVIII FORFEITURE
If Grantee should violate any of the terms, conditions or
provisions of this franchise or if Grantee should fail to comply
with any reasonable provisions of any ordinance of the City regu-
lating the use by Grantee of the streets, alleys, easements or
public ways of the City, and should Grantee further continue to
violate or fail to comply with the same for a period of thirty
(30) days after Grantee shall have been notified in writing by
the City to cease and desist from any such violation or failure
to comply so specified, then Grantee may be deemed to have for-
feited and annulled and shall thereby forfeit and annul all the
rights and privileges granted by this franchise, provided that
such forfeiture shall be declared only by written decision of the
City Council after following the procedures set forth in Section
5 1/2-23 of the Cable Ordinance and an appropriate public pro-
ceeding before the City Council affording Grantee due process and
full opportunity to be heard and to respond to any such notice of
violation or failure to comply, and provided further that the City
Council may, in its discretion and upon a finding of violation or
failure to comply, impose a lesser penalty than forfeiture of this
franchise or excuse the violation or failure to comply upon a
showing by Grantee of mitigating circumstances Grantee shall
have the right to appeal any finding of violation or failure to
comply and any resultant penalty to or seek relief in any court of
competent jurisdiction In the event of any determination by the
City to revoke this Franchise Agreement, such a determination
shall be stayed during the pendency of any judicial review
thereof
PAGE 13
SECTION XIX TRANSFERS
All of the rights and privileges and all of the obligations,
duties, and liabilities created by this franchise shall pass to
and be binding upon the successors of the City and the successors
and assigns of Grantee, and the same shall not be assigned or
transferred without the prior written approval of the City
Council, which approval shall be sought and obtained in accordance
with Section 5 1/2-26 of the Cable Television Ordinance Grantee
specifically agrees to comply with the provisions of said Section
5 1/2-26
SECTION XX FRANCHISE FEE
In consideration of the terms of this franchise for the first
ten years from the date of Grantee's acceptance of the terms of
the franchise, Grantee agrees to pay to the City a sum of money
equal to five percent (5%) of Grantee's gross subscriber revenues
per year pursuant to the provisions of Article I of the Cable
Ordinance Thereafter, for the remainder of the term of the
agreement, Grantee shall pay to the City a sum of money equal to
seven percent (7%) of Grantee's gross subscriber revenues per
year If the law does not allow the City to charge Grantee a
franchise fee in this amount, Grantee shall continue to pay five
percent (5%) The Grantee shall pay to the City in quarterly
installments within forty-five (45) days after March 30, June 30,
September 30 and December 31 of each year the franchise fee
attributable to gross receipts of the Grantee during the
preceding quarter
SECTION XXI RATES
To the extent permitted by federal and state law, the City
may regulate the following rates, fees and charges
(1) Rates for the provision of basic cable service to
subscribers whether residential or commercial,
including multiple tiers of basic cable service
(2) Rates for the initial installation or the rental of
one set of the minimum equipment which is necessary
for the subscribers' receipt of basic cable service
(3) Any other rates for any type of services delivered
by the Grantee that may become subject to local
regulation
The Grantee may petition the Council for a change in rates
subject to regulation by filing a proposed rate schedule with the
City Clerk The procedures outlined in Section 5 1/2-70 of the
Cable Ordinance shall then be followed
PAGE 14
SECTION XXII ACCESS TO SERVICES AND FACILITIES
Grantee shall provide the minimum range of services required
from time to time by the FCC as its regulations presently exist
or may hereafter be amended including, without limiting the
foregoing, public, educational and governmental use channels in
accordance with the following conditions
(a) Grantee shall provide and maintain five channels for
public programming, educational programming and governmental
programming, three initially and, in the event that the conditions
of Section 5 1/2-91 of the Cable Ordinance are met, Grantee shall
provide additional access channels In any event, Grantee shall
provide and maintain at least five channels not later than
November 1, 1993
(b) The three initial channels, which are being maintained as
of the date of Grantee's acceptance of this Agreement, shall be
designated for the following use
(1) University of North Texas
(2) Texas Woman's University
(3) Public Access/Local Organization
(c) The access channels described in subsection (a) above
shall be made available for non-commercial use to qualifying
applicants without charge when requested all in accordance with
the rules hereinafter mentioned
(d) Rules shall be established by the cooperative effort of
City and the Grantee regarding access programming, priority of
use for the access channel, prohibition of lottery information,
obscene or indecent matter, and permitting public inspection of
the complete record of names and addresses of all persons or
groups requesting access time
(e) Should a dispute arise between the user of an access
channel and the Grantee relative to the quality of the audio or
visual signal, at the request of either, the dispute will be
submitted to an independent engineer to be jointly selected by
City and Grantee The party requesting that such testing be
performed shall be required to pay for the cost of testing and
analysis performed by the engineer, unless the engineer shall
find that there is a distortion of signal quality If a
distortion is found, the party responsible for causing the
distortion shall pay the cost of testing
(f) The Grantee shall provide "A/B switches" and "lock
boxes," or similar parental control devices, at a reasonable
price to any subscriber upon such subscriber's request
PAGE 15
(g) Subject to Section 5 1/2-40 of the Cable Ordinance, the
Grantee agrees to provide reasonable equipment to be used by
access cable casters with the aid of a technical and production
staff to be provided by the cable operator Equipment that can
store programs for later showing shall be provided In addition,
Grantee shall make available a centrally located studio to all
access users on a first-come, first-serve basis Grantee shall
provide, at a minimum, the production equipment and facilities
designated in Exhibit 3 All equipment shall be maintained in
good working order by Grantee and shall be replaced as needed,
consistent with good operating practice
(h) Grantee agrees to continue to maintain a local
programming studio containing the equipment specified in Exhibit
5, and shall provide adequate staffing for the local programming
studio and for training of the public in the use of production
equipment Grantee shall keep a log of inquiries by citizens
requesting such training and shall conduct free training sessions
in use of cablecasting equipment and cablecasting techniques not
less than once each three months during the term hereof
(i) Grantee also agrees to provide an instructor and the
facilities to train, without charge, once per year, potential
access users through sessions offered through the Denton
Independent School District
(j) Grantee shall establish rules and rates if necessary, to
ensure that the studio is available in an equitable manner
provided that Grantee shall not, charge for use of the public and
educational access channels unless City has approved the charging
of the proposed fee
(k) The parties hereby incorporate by reference the
provisions of 47 U S C 532, which provisions are hereby amended
to apply to the Grantee and the City, as appropriate These
provisions are incorporated herein to assure that the widest
possible diversity of information sources are made available to
the residents of the City from the Cable System in a manner
consistent with the growth and development of the Cable System
Grantee shall undertake any and all construction installation
necessary to keep current with the latest technological and
economically feasible developments in the state-of-the-art cable
television, whether with respect to increasing channel capacity,
developing new services, and instituting two-way service or any
other state-of-the-art technology Further, Grantee specifically
agrees to comply with Section 5 1/2-93 of the Cable Ordinance
PAGE 16
SECTION XXIII EMERGENCY OVERRIDE
Grantee shall provide and maintain the equipment necessary
for the City to maintain an emergency alert system to override,
by remote control, the audio and/or video signal to transmit a
message regarding a bona fide emergency over all cable video
channels simultaneously Grantee shall designate a channel which
will be used for emergency broadcasts Grantee shall provide a
remote data terminal, telephone lines, modems, cables and any
other items needed to adequately supply this service Such
equipment shall be maintained at a location designated by City
SECTION XXIV PROGRAMMING MIX
(a) Grantee agrees to provide programming that maintains the
mix of distinct and separate channels that is presently provided
and listed in Exhibit 4 In accordance with the Cable Act, the
Grantee shall, for the term of this Agreement, maintain the mix,
quality and level of programming set forth in Exhibit 4
(b) In addition to the programming mix indicated above,
Grantee will use the upgraded system to provide a wide range and
assortment of optional programming services Grantee shall
provide, at a minimum, the following additional services
(1) Provision of an additional full channel space
for films and cultural entertainment programming
(2) Provision of an additional full channel space for
children's entertainment programming
(3) Addition of a full channel space for documentary,
public broadcasting programming
(4) Addition of a full channel space devoted to
weather information service
(S) Addition of a Pay-Per-View Channel
(c) Such services shall be provided not later than November
1, 1994 Grantee agrees to produce a minimum of 400 hours of
local origination programming annually One hundred (100) hours
of such programming may be supplied from other Sammons' local
origination sources
SECTION XXV FORCE MAJEURE
In the event the Grantee's diligent performance of any of the
terms, conditions, obligations or requirements of this Agreement
is prevented or impaired due to any cause beyond its reasonable
PAGE 17
control which was not reasonably foreseeable to the parties
hereto, such inability to perform shall be deemed to be excused
for the period of such impairment, and no penalties or sanctions
shall be imposed Before invoking this Section, the Grantee must
have exercised good faith in attempting to perform such terms,
conditions, obligations or requirements Causes beyond the
Grantee's reasonable control and not reasonably foreseeable to
the parties hereto shall include, without limitation, labor
unrest and strikes Upon its best good faith efforts to obtain
all authorizations on an expedited basis, the Grantee shall also
be excused for time delays in construction requirements in
Section VI which are caused by unreasonable delays on the part of
utility companies or the City in issuing licenses, permits or
authorizations for poles and conduits or other authorizations
necessary to continue construction Where the Grantee cannot
obtain access to any individual's property, after due diligence
and a good faith effort by the Grantee to obtain access to such
property, compliance with the terms of this Agreement shall be
excused by the City as to that individual and the consequential
effects thereof only, and only for such period as the property is
inaccessible Where the cause beyond the Grantee's control is
either an act of God or civil emergency, an inability to perform
during such period shall not be an independent ground for
termination of this Franchise Agreement
SECTION XXVI NOTICES.
All notices, statements, demands, requests, consents,
approvals, authorizations, offers, agreements, appointments or
designations hereunder by any party to another shall be in
writing and shall be sufficiently given and served upon the other
party, immediately if delivered personally or by telex or
telecopy (provided with respect to telex and telecopy that such
transmissions are received on a business day during normal
business hours), on the second business day after dispatch if
sent by first class mail, registered or certified, return receipt
requested, postage prepaid and addressed as follows
The City City of Denton, Texas
215 E McKinney Street
Denton, Texas 76201
Attention City Manager
The Grantee Sammons Communications, Inc
500 South Ervay Street, Suite 200-A
Dallas, Texas 75201
Attention General Counsel
PAGE 18
SECTION XXVII SAVINGS CLAUSE
If any section, subsection, sentence, clause, phrase or
portion of this ordinance is for any reason held invalid or
unconstitutional by a federal or state court or administrative or
governmental agency of competent jurisdiction, specifically
including the Federal Communications Commission, such portion
shall be deemed a separate, distinct and independent provision,
and such holding shall not affect the validity of the remaining
portions thereof
SECTION XXVIII CONFLICTING ORDINANCES AND RESOLUTIONS
All ordinances or resolutions in conflict herewith are
expressly repealed to the extent of such conflict, except that in
the event of a conflict between the Cable Ordinance and the
franchise agreement, the ordinance shall prevail
SECTION XXIX FEES
This franchise ordinance renews and extends that Ordinance
which has previously been granted for the operation of Cable
television services in the City of Denton, Texas Grantee agrees
to pay to the City of Denton a lump sum fee of $91,027, $5,000 of
which was paid by Grantee on July 8, 1988, and the remainder of
which will be paid upon acceptance of this franchise agreement by
the Grantee The sum of Sixty Thousand Dollars ($60,000)
represents a voluntary contribution by Grantee in lieu of capital
expenditures and Grantee agrees that such payment may not be
deducted from the franchise fees provided for herein Grantee
specifically agrees, and to the extent permitted by law, waives
any rights to claim to the contrary The City agrees to use such
funds for the operation of the Local Government Channel Grantee
agrees to pay the sum of $31,027 to reimburse City for the costs
incurred in preparing, reviewing and awarding this franchise
SECTION XXX PAYMENT OF TAXES
The Grantee covenants and agrees that it will pay and
discharge, or cause to be paid and discharged, in timely fashion
all payments in lieu of taxes, service charges, assessments,
utility fees, user fees and other governmental charges which may
lawfully be imposed upon the Grantee with respect to the Grantee
or the Cable System or any portion thereof or relating thereto,
or upon the revenues and income therefrom and will pay all lawful
claims for labor, material and supplies which, if unpaid, might
become a lien or charge upon any of said properties, revenues or
income or which might impair the security interest granted by
this Agreement or the value of the Cable System or the Grantee,
provided that nothing in this Section shall require the Grantee
PAGE 19
to make any such payment so long as the Grantee in good faith
shall contest the validity thereof
SECTION XXXI NON-LIABILITY
The City shall not be liable to the Grantee or any other
person or entity for death or personal injury or for loss, damage
or destruction of property in, on or about the Cable System or
any ?art thereof by or from any cause whatsoever other than the
City s own negligence or willful misconduct, nor shall the City
be liable in any way or regard to the Grantee or to any of the
Grantee's affiliates, officers, directors, members, agents or
employees if any claim is asserted against the Grantee by any
taxing authority or other entity as the result of any election or
decision which the Grantee may make or may have made with respect
to the Cable System for purposes of filing federal or state income
or franchise tax returns or making any other type of filing what-
soever, and the Grantee shall indemnify and save harmless the City
and its officers, agents and employees from, and defend the same
against, any and all claims, liens, liabilities, expenses (includ-
ing attorneys' fees and disbursements), losses and judgments
arising from death or personal injury or from the loss, damage or
destruction of property of any person or entity resulting directly
or indirectly from any acts, omissions or negligence of the
Grantee, its officers, agents or employees with respect to the
use of, occupancy of, or operation in, on, of, or about the Cable
System or the Grantee
SECTION XXXII WAIVERS
No waiver by City of any breach, default or violation of the
terms, covenants or conditions hereof to be performed, kept and
observed by Grantee shall be construed to be or act as a waiver
of any subsequent default of any of such terms, covenants and
conditions
SECTION XXXIII APPROVAL AND ACCEPTANCE
In accordance with Section 13 02 of the City Charter, this
ordinance shall become effective twenty-one (21) days after final
approval, if, before that date, Grantee shall give its written
acceptance of this ordinance by signing as provided below, and
provided that, after final approval and before the expiration of
twenty-one (21) days, the full text of this ordinance shall be
published once each week for two (2) consecutive weeks in the
official newspaper of City, the expense of which shall be borne
by Grantee
Grantee for itself, its successors and assigns hereby accepts
this ordinance and agrees to be bound by all of its terms and
provisions
PAGE 20
(SPAS ED AND APPROVED on first reading, this the /54 day of
h Z4 ) , 1988
PASSED AND APPROVED this the ~ day of 1988
RAY S ENS, AYOR
ATTEST
JVNIFETVALTERS I , CITY S
SECRETARY
APPROVED AS TO LEGAL FORM
DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY
BY
GRANTEE
SAMMONS COMMUNICATIONS, INC
PAGE 21
Exhibit 1
INSURANCE REQUIREMENTS
(a) Grantee shall maintain, during the term of this
franchise, submit to approval by the City's Risk Manager
satisfactory evidence in the form of certificates of insurance or
their equivalent including but not limited to the following
coverage and risk areas
(1) Worker's compensation and employee's liability coverage
on all employees of the franchise as required by statute,
(2) Comprehensive general liability coverage including a
blanket contractual liability provision and a broad form damage
endorsement covering but not limited to explosion, collapse or
other underground activity,
(3) Comprehensive automobile liability coverage
(b) The minimum limits of coverage on each of the above
described coverages excepting 1) (a) above shall in no event be
less than one million dollars (1,000,000 00)
(c) All of the insurance policies described above shall be so
endorsed as to make the City of Denton a named insured under such
policy Further, each policy shall be so endorsed as to require
the carrier or carriers to give not less than sixty (60) days
notice of cancellation or nonrenewal to the City of Denton Such
policies shall further carry an endorsement providing a waiver of
any rights of subrogation in the favor of and to the City of
Denton
Exhibit 3
Production Equipment and Facilities
A minimum of one local origination studio with facilities for
public access will be provided Grantee will provide as a
minimum, the equipment (or equivalent) listed in the Production
Department Inventory submitted by Sammons Communications, Inc to
the City of Denton on January 12, 1988 This inventory, as shown
below, shall not be considered all inclusive Grantee will
provide both mobile and stationary equipment, including
designated equipment to be used by access cablecasters with the
aid of technical and production assistance to be provided by
Grantee's staff
Local Origination/Public Access Facility Equipment
2 - Hitachi FP - 20 Cameras
2 - JVC Ky - 2000 Cameras
1 - Sony M3 Camera
1 - Sony Edit System
1 - JVC Edit System
1 - Sony Portable Recorder
1 - Cross Point Latch Switcher
1 - E - 8 M150 Audio Board
1 - Panasonic VHS Recorder
1 - 1986 Ford 150 Remote Van
Equipped With 1 - Panasonic Switcher
2 - JVC Recorder
1 - Teac Tascam Audio Board
3 - Remote Lights
Exhibit 4
BASIC PROGRAMMING MIX AND CURRENT CHANNEL ALIGNMENT
Cable
Programming
Station
Affiliate
Channel
Services
KDNT
PBS
2
Public Broadcasting
ESPN
3
Sports
KDFW
4
Network Programming
KXAS
NBC
5
Network Programming
CBN
6
Family Oriented
USA Network
7
WFAA
ABC
8
Network Programming
WGN
IND
9
CNN Headline
10
24 Hour News
News
KTVT
IND
11
12
Local Weather/Radar
KERA
PBS
13
Public Broadcast
KDAF
IND
15
Independent
WTBS
IND
17
Independent
KXTX
IND
18
Independent
19
Texas Woman's Univ
Cable Value
Network
20
24 Hour Shopping
KXTA
IND
21
Independent
CNN
23
24 Hour News
25
Local Organization/
Public Access
KDFI
IND
27
Independent
FNN
29
Financial News
Univision
30
Spanish Language
C Span
31
36
University of North
Texas Access
OPTIONAL PREMIUM CHANNELS
HBO
16
Movies, Sporting
Cinemax
22
Foreign Films,
Children's Movies
Disney
24
Children's Programming
HSE
26
Sports
Showtime
28
Movies, Comedy
Specials
Lifetime
32
Health, Fitness,
Medical Information
The Nashville Network
33
Country Music, Comedy
Nickelodeon
34
Films and Cultural
Arts and
Events, Children's
Entertainment
Programming
MTV
35
24 Hour Video Music
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO Jennifer Walters, City Secretary
FROM Debra A Drayovitch, City Attorney
SUBJECT Franchise Agreement with Sammons
DATE September 4, 1991
Jennifer, as I told you last month, I have been able to obtain
copies of Exhibits 1, 3, and 4 of the above-referenced franchise
and they are attached I have been unable to locate anywhere the
plans, Exhibit 2 I know that the Public Works Department did have
copies of Exhibit 2 at one time I am~orry I cannot be of more
assistance in this regard
DAD/lkh
Attachment
xc Lloyd V Harrell, City Manager (memo only)
hum