(A) Grant, term and effective date.
(1) A franchise is hereby granted to Grantee, subject to the conditions set forth in this ordinance. This Franchise grants the right, subject to conditions, to rent the Public Rights-of-Way and to construct, maintain, operate and repair the system in, over, along and under the Public Rights-of-Way within the franchise area commencing on the effective date of the franchise through the date of expiration pursuant to § 13-4-8-10, unless terminated prior to that date in accordance with the franchise or applicable law.
(2) The grant shall become effective 30 days after final passage of this ordinance except as provided herein.
(3) The grant shall not become effective unless and until Grantee has:
(a) Filed an unconditional acceptance of the grant made by this ordinance; and
(b) Made all payments and supplied all information that it is required to supply, that are related to this Franchise, prior to or upon the effective date of the Franchise.
(B) Relation to other provisions of law.
(1) The Franchise issued by the City is subject to, and Grantee must exercise all rights granted to it in accordance with applicable law. This Franchise does not confer rights upon the Grantee other than as expressly provided herein. No privilege or power of eminent domain is bestowed upon Grantee by this grant. The Franchise does not convey title, equitable or legal, in the Public Rights-of-Way or public property. Any right granted to Grantee by this franchise shall not be subdivided or subleased to any other person or Affiliate. Nothing passes by implication under this Franchise.
(2) This Franchise and all rights granted under the Franchise are subject to the exercise of the police and other powers the City now has or may later obtain, and are further subject to the exercise of the City's rights as a property owner under state and federal laws. Neither the granting of this Franchise or any provision herein shall constitute a waiver or bar to the exercise of any governmental right or power of the City, including without limitation the right to grant additional franchises. Notwithstanding the foregoing, this Franchise is a contract and the City may not, through the exercise of police, governmental and other powers or otherwise, change, modify or amend any terms or conditions of this Franchise except by an amendment mutually agreed upon by City and Grantee, adopted pursuant to § 13-4-8-22.
(3) The Franchise shall be interpreted to convey limited rights and interests only as to those City Rights-of-Way in which the City has an actual interest and only to the extent and for the purposes set out in the Franchise. The grant of the Franchise is not a warranty of title or interest in any Right-of-Way; it does not provide the Grantee any interest in any particular location within the Rights-of-Way. The issuance of the Franchise does not deprive the City of any powers, rights or privileges it now has or may later acquire in the future to use, perform work on, construct, maintain, operate or repair facilities or systems in, or regulate the use of the Rights-of-Way.
(4) The Franchise issued and the franchise fee paid hereunder are not in lieu of barricade fee, excavation fee, road restoration fee, drive pad fee, sidewalk fee, valley gutter fee, curb cut fee, or any other fees or top soil disturbance permit, electrical permit, or any other required permit, authorization, fee, charge or tax that may be required of all franchisees in the Public Right-of-Way. Without limiting the foregoing, the City, among other things, does not waive the requirements of, or the Grantee's duty to obtain, all applicable permits, and to comply with the conditions thereof; to comply with zoning laws; or to comply with codes, ordinances and regulations governing the construction of the system.
(C) Interpretation. The provisions of this Franchise shall be liberally construed in favor of the public interest in order to effectuate its purposes.
(D) Affiliates must comply. If Grantee delegates any right under this Franchise to an Affiliate, joint venture or partner of the Grantee involved in the management or operation of the System in the City, Grantee shall require that such entity agree to be subject to the limitations of, and comply with the terms and conditions of the Franchise. The Grantee shall be fully liable for any act or omission of any affiliate that is responsible in any manner for the management or operation of the system that results in a breach of this Franchise, as if the act or omission was the Grantee's act or omission.
(E) Relation to prior franchise. As of the effective date of this Franchise, the rights granted under Albuquerque City Ordinance No. 17-1973 are superseded and of no further force and effect. Subject to any applicable statute of limitations, nothing in this paragraph shall be deemed to release the Grantee from any liability arising under the prior franchise during the time it was in effect.
(F) Validity. Both parties waive any claim or defense that any provision of this Franchise is unenforceable or otherwise invalid or void. Neither party waives the right to challenge the validity of any other applicable law.
(G) Effect of franchise acceptance. By accepting the Franchise, the Grantee:
(1) Acknowledges and accepts the City's legal right to issue and enforce the Franchise;
(2) Accepts and agrees to comply with each and every provision of this Franchise; and
(3) Agrees that the Franchise was granted pursuant to processes and procedures consistent with applicable law, and that it will not raise any claim to the contrary after Grantee accepts and agrees to comply with this Franchise in accordance with § 13-4-8-5(G)(2).
(H) Grantee bears its own costs. Unless otherwise expressly provided in this Franchise, all acts that the Grantee is required to perform under this Franchise must be performed at its own expense, including but not limited to protection, support, disconnection, relocation or removal of its property when required by the City.
(I) No waiver.
(1) The failure of the City, upon one or more occasions, to exercise a right or to require compliance or performance under this Franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing; no course of dealing between a Grantee and the City shall operate as a waiver of any such rights.
(2) A waiver of one right shall not be deemed a waiver of any other right, similar or dissimilar.
(J) No recourse. Without limiting such immunities as the City or other persons may have under applicable law, neither Grantee nor City shall have any monetary recourse whatsoever against the other party's officials, boards, commissions, agents or employees for any loss, costs, expense or damage arising out of any provision or requirement of this Franchise, unless the same shall be caused by criminal acts or by willful or gross negligence.
(K) Public purpose. All of the requirements provided in this ordinance are hereby declared to be for a public purpose and the health, safety, and welfare of the general public and to ensure proper management of the Public Rights-of-Way. Any member of the governing body or City official or employee charged with the enforcement of this ordinance, acting for the City in the discharge of his duties, shall not thereby render himself personally liable; and he is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his said duties. Neither the City nor Grantee waives its rights to seek all appropriate legal and equitable remedies as allowed by law upon violation of the terms of this Franchise including seeking injunctive relief in a court of competent jurisdiction. Such right to injunctive relief is expressly reserved and all terms and provisions hereof shall be enforceable through injunctive relief.
(L) No fixtures. As between the City and Grantee, all facilities and equipment owned, operated, maintained or installed by Grantee within the Rights-of-Way are, and at all times shall remain, the property of Grantee. No such facilities or equipment shall be characterized as "fixtures," whether during the term of this Franchise, upon its expiration or termination or thereafter.
(Ord. 2-2003)