§ 70-165. Authority to grant; terms and conditions of granting.

(a)

A franchise granted pursuant to this chapter is a nonexclusive franchise granting the right to lay, erect, construct, operate, repair and maintain in, on or upon any and all of the public rights-of-way of the city, as they now exist or may be hereafter constructed, opened, laid out or extended within the present limits of the city or as otherwise limited by law, or in such territory as may be hereafter added to, consolidated, or annexed to the city, any and all conduits, cables, poles, wires, supports and other structures and appurtenances constructed or installed by the telecommunications company as may be reasonably necessary for the construction, maintenance and operation of a telecommunications system ("system") to be used by the telecommunications company to provide for the local transport of voice, data and video signals over a network as permitted by the telecommunications company's state and federal certifications, subject to the terms, conditions and exceptions contained herein.

(b)

A franchise may be revoked if the franchisee does not abide by and perform in accordance with the provisions of this chapter, including any amendments to this chapter, the franchise, and such rules and regulations as the city may adopt. Any franchise granted pursuant to this chapter shall be consistent with federal laws and regulations and state general laws and regulations. If a conflict occurs between the terms and conditions of the franchise and the terms and conditions on which the city can grant a franchise, the general law or statutory requirements shall, without exception, control. Any franchise granted is hereby made subject to the general ordinance provisions in effect in the proper exercise of the city's police power.

(c)

Neither this chapter as a whole, nor any of its parts, portions or terms, shall be construed as granting or intending to grant to any franchisee a franchise to use the city's rights-of-way or any portion of the system therein for cable television, including, but not limited to, interactive and pay-per-view television, or any other uses not specified herein; but nothing herein shall preclude the franchisee from entering into a contract for the use of any portion of the system with any person, firm, partnership or corporation, provided that said person, firm, partnership or corporation first obtains an appropriate franchise from the city. A franchisee shall include revenues derived from leasing any portion of its system to any person, firm, partnership or corporation as recurring local service revenues for the purpose of calculating franchise fees to the extent consistent with applicable law. Any person, firm, partnership or corporation, whether lessee or not, if placing cable or facilities in the right-of-way must first obtain an appropriate franchise from the city and obtain all required certifications from the state prior to utilizing the right-of-way.

(d)

Neither this chapter as a whole, nor any of its parts, portions or terms, shall be construed as granting or intending to grant to any franchisee the right to use the city's rights-of-way to provide cable services to its cable service subscribers within the city limits via an open video system without obtaining city commission approval for recovery of a percentage of gross revenues as provided for in Section 653(c)(2)(B) of the Telecommunications Act of 1996.

(e)

Nothing in this chapter or a franchise granted hereunder shall vest in the franchisee any property rights in city-owned property, nor shall the city be compelled to maintain any of its property any longer than, or in any fashion other than, in the city's sole judgment its own business needs may require.

(f)

In granting a franchise, the city does not warrant or represent as to any particular street or portion of a street that it has the right to authorize grantee to install or maintain portions of its system therein, and in each case the burden and responsibility for making such determination in advance of the installation shall be upon the grantee. Upon request, the city shall make available to the grantee such information regarding a particular property as it may have with respect to such reservations or other impediments.

(g)

The city, in the proper exercise of its municipal powers and duties with respect to its public rights-of-way, shall have access to all manholes of the grantee in such public right-of-way. The city will provide grantee reasonable prior notice and an opportunity to be present unless it is determined by the city, in its sole discretion, to be an emergency situation.

(h)

All grantees shall abide by and perform in accordance with the provisions of this chapter, including any amendments to this chapter and such additional rules and regulations as the city may adopt. In accepting the franchise, the grantee acknowledges that at all times during the term of this franchise, its rights shall be subject to all lawful exercise of the police power of the city, and to such reasonable regulation of its rights-of-way as the city shall hereafter by resolution or ordinance provide in the interests of health, safety and welfare of the public. Any inconsistency or ambiguity between the provisions of this article and the lawful exercise of the city's police power shall be resolved in favor of the latter.

(Ord. No. 99-46, § 1, 8-12-99)