(A) Grant.
(1) The city hereby grants to grantee a nonexclusive authorization to make reasonable and lawful use of the right-of-way within the city to construct, operate, maintain, reconstruct and rebuild a cable system for the purpose of providing cable service or any other lawful service subject to the terms and conditions set forth in this franchise and in any prior utility or use agreements entered into by grantee with regard to any individual property. This franchise shall constitute both a right and an obligation to provide the cable services required by and to fulfill the obligations set forth in the provisions of this franchise.
(2) Nothing in this franchise shall be deemed to waive the lawful requirements of any generally applicable city ordinance existing as of the effective date, as set forth in subsection (E).
(3) Each and every term, provision or condition herein is subject to the provisions of state law, federal law, the Charter of the city, and the ordinances and regulations enacted pursuant thereto. The Charter and the City of Albuquerque Code of Ordinances, as they exist on the effective date of this franchise, are hereby expressly incorporated into this franchise as if fully set out herein by this reference. Grantee retains the right to challenge any city ordinance or regulation to the full extent allowed by applicable law. Notwithstanding the foregoing, the city may not unilaterally alter the material rights and obligations of grantee under this franchise. In the event of a conflict between the Albuquerque Cable and OVS Ordinance ("Cable Code") as it existed on the effective date of this franchise agreement and this franchise agreement, the franchise agreement shall control, except where expressly provided otherwise in this franchise agreement. While the exercise of rights hereunder is subject to the cable code, the cable code is not a contract. Nothing in this section shall prevent grantee from challenging a particular amendment to the cable code as an impairment to this franchise agreement.
(4) This franchise shall not be interpreted to prevent the city from imposing additional lawful conditions, including additional compensation conditions for use of the right-of-way as allowed by applicable law, should grantee provide service other than cable service, or to prevent grantee from making any other lawful uses of the cable system as permitted by applicable law.
(5) Grantee promises and guarantees, as a condition of exercising the privileges granted by this franchise, that any affiliate of grantee directly involved in the offering of cable service in the franchise area, or directly involved in the management or operation of the cable system in the franchise area, will also comply with the obligations of this franchise.
(6) No rights shall pass to grantee by implication. Without limiting the foregoing, by way of example and not limitation, this franchise shall not include or be a substitute for:
(a) Any other permit or authorization required for the privilege of transacting and carrying on a business within the city that may be required by the ordinances and laws of the city;
(b) Any permit, agreement, or authorization required by the city for right-of-way users in connection with operations on or in the right-of-way or public property including, by way of example and not limitation, street cut permits; or
(c) Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by this franchise, including without limitation permits and agreements for placing devices on poles, in conduits or in or on other structures.
(7) This franchise is intended to convey limited rights and interests only as to those rights-of-way in which the city has an actual interest. It is not a warranty of title or interest in any right-of-way; it does not provide grantee with any interest in any particular location within the right-of-way; and it does not confer rights other than as expressly provided in the grant hereof.
(8) This franchise does not authorize grantee to provide telecommunications service nor is this franchise a bar to the provision of non-cable services, or to the imposition of any lawful conditions on grantee with respect to telecommunications, whether similar, different or the same as the conditions specified herein. This franchise does not relieve grantee of any obligation it may have to obtain from the city an authorization to provide telecommunications services, or relieve grantee of its obligation to comply with any such authorizations that may be lawfully required.
(B) Use of right-of-way.
(1) Subject to the city's supervision and control, grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the right-of-way within the city such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of a cable system within the city. Grantee, through this franchise, is granted extensive and valuable rights to operate its cable system for profit using the city's right-of-way in compliance with all applicable city construction codes and procedures. As trustee for the public, the city is entitled to fair compensation as provided for in § 13-5-3-3 of this franchise to be paid for these valuable rights throughout the term of the franchise.
(2) Grantee must follow city established nondiscriminatory requirements for placement of cable system facilities in the right-of-way, including the specific location of facilities in the right-of-way, and must in any event install cable system facilities in a manner that minimizes interference with the use of the right-of-way by others, including others that may be installing communications faculties. Within limits reasonably related to the city's role in protecting public health, safety and welfare, the city may require that cable system facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to a particular right-of-way; may deny access if grantee is not willing to comply with city's requirements; and may remove or require removal of any facility that is not installed by grantee in compliance with the requirements established by the city, or that is installed without prior city approval of the time, place or manner of installation, and may charge grantee for all the costs associated with removal; and may require grantee to cooperate with others to minimize adverse impacts on the right-of-way through joint trenching and other arrangements.
(C) Effective date and term of franchise. This franchise and the rights, privileges and authority granted hereunder shall take effect on , 2019 (the "effective date"), and shall terminate on , 2029 unless terminated sooner as hereinafter provided.
(D) Franchise nonexclusive. This franchise shall be nonexclusive and subject to all prior rights, interests, easements or licenses granted by the city to any person to use any property, right-of-way, right, interest or license for any purpose whatsoever, including the right of the city to use same for any purpose it deems fit, including the same or similar purposes allowed grantee hereunder. The city may at any time grant authorization to use the right-of-way for any purpose not incompatible with grantee's authority under this franchise and for such additional franchises for cable systems as the city deems appropriate, subject to § 13-5-3-2(F) below.
(E) Police powers. Grantee's rights hereunder are subject to the home rule and police powers of the city to adopt and enforce ordinances necessary to the safety, health, and welfare of the public, and grantee agrees to comply with all laws and ordinances of general applicability enacted or hereafter enacted by the city or any other legally constituted governmental unit having lawful jurisdiction over the subject matter hereof. The city shall have the right to adopt from time to time such ordinances as may be deemed necessary in the exercise of its home rule or police power; provided that such hereinafter enacted ordinances shall be reasonable and not materially modify the terms of this franchise. Any conflict between the provisions of this franchise and any other present or future lawful exercise of the city's police powers shall be resolved in favor of the latter. Grantee reserves all rights it may have to challenge the lawfulness of any city ordinance. The city reserves all of its rights and defenses to such challenges.
(F) Competitive equity.
(1) Grantee acknowledges and agrees that the city reserves the right to grant one or more additional franchises or other similar lawful authorization to utilize the right-of-way in order to provide cable services or similar video programming service within the city. If the city grants such an additional franchise or other similar lawful authorization that permits a new entrant to utilize the right-of-way for cable services or similar video programming services containing material terms and conditions that differ from grantee's material obligations under this franchise, or declines to require such franchise or other similar lawful authorization where it has the legal authority to do so, then the parties agree that the obligations in this franchise will, pursuant to the process set forth in this section, be amended to include any material terms or conditions that it imposes upon the new entrant, or provide relief from existing material terms or conditions, so as to insure that the regulatory and financial burdens on each entity are materially equivalent. MATERIAL TERMS AND CONDITIONS include but are not limited to: franchise fees and gross revenues; complementary services; insurance; system bulld-out requirements; security instruments; public, education and government access channels and support; customer service standards; required reports and related record keeping; competitive equity (or its equivalent); audits; dispute resolution; remedies; and notice and opportunity to cure breaches. The parties agree that this provision shall not require a word-for-word identical franchise or authorization for a competitive entity so long as the regulatory and financial burdens on each entity are materially equivalent.
(2) The modification process of this franchise as provided for in § 13-5-3-2(F)(1) shall only be initiated by written notice by grantee to the city regarding specified franchise obligations. Grantee's notice shall address the following:
(a) Identifying the specific terms or conditions in the competitive cable services franchise which are materially different from grantee's obligations under this franchise;
(b) Identifying the franchise terms and conditions for which grantee is seeking amendments;
(c) Providing text for any proposed franchise amendments to the city, with a written explanation of why the proposed amendments are necessary and consistent.
(3) Upon receipt of grantee's written notice as provided in § 13-5-3-2(F)(2), the city and grantee agree that they will use best efforts in good faith to negotiate grantee's proposed franchise modifications, and that such negotiation will proceed and conclude within a 90- day time period, unless that time period is reduced or extended by mutual agreement of the parties. If the city and grantee reach agreement on the franchise modifications pursuant to such negotiations, then the city shall amend this franchise to include the modifications.
(4) In the alternative to franchise modification negotiations as provided for in § 13-5-3-2(F)(3), or if the city and grantee fail to reach agreement in such negotiations, grantee may, at its option, elect to replace this franchise by opting into the franchise or other similar lawful authorization that the city grants to another multi-channel video programming provider (with the understanding that grantee may use its current system design and technology infrastructure to meet any requirements of the new franchise), so as to insure that the regulatory and financial burdens on each entity are equivalent. If grantee so elects, the city shall immediately commence proceedings to replace this franchise with the franchise issued to the other multi-channel video programming provider.
(5) Notwithstanding anything contained in this § 13-5-3-2(F)(1) through (4) to the contrary, the city shall not be obligated to amend or replace this franchise unless the new entrant makes cable services or similar video programming service available for purchase by subscribers or customers under its franchise agreement with the city.
(6) Notwithstanding any provision to the contrary, at any time that a wireline-based entity with facilities used to deliver cable services or multiple channels of video programming located in the city's right-of-way makes available for purchase by subscribers or customers cable services or multiple channels of video programming within the franchise area without a franchise or other similar lawful authorization that permits a new entrant to utilize the right-of-way granted by the city, then:
(a) Grantee may negotiate with the city to seek franchise modifications as per § 13-5-3-2(F)(2)-(4) above; or
(i) the term of grantee's franchise shall, upon 90 days' written notice from grantee, be shortened so that the franchise shall be deemed to expire on a date 18 months from the first day of the month following the date of grantee's notice and grantee shall be deemed to have timely invoked the renewal process under 47 USC 546; or,
(ii) Grantee may assert, at grantee's option, that this franchise is rendered "commercially impracticable" and invoke the modification procedures set forth in Section 625 of the Cable Act.
(G) Familiarity with franchise. Grantee acknowledges and warrants by acceptance of the rights, privileges and agreements granted herein that it has carefully read and fully comprehends the terms and conditions of this franchise and is willing to and does accept all lawful and reasonable risks of the meaning of the provisions, terms and conditions herein. Grantee further acknowledges and states that it has fully studied and considered the requirements and provisions of this franchise and finds that the same are commercially practicable at this time and consistent with all local, state and federal laws and regulations currently in effect, including the Cable Act.
(H) Effect of acceptance. By accepting the franchise, 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 subject to applicable law; 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.