This nonexclusive franchise authorizes only
the operation of a BTN as provided for herein, and does not take the
place of any other license or permit which might be required by law
of the grantee, its employees or agents.
A. The grantee shall at all times employ ordinary care
and shall install and maintain in use commonly accepted methods and
devices for preventing failures and accidents which are likely to
cause damage, injuries or nuisances to the public.
B. The grantee shall install and maintain its wires,
cables, fixtures and other equipment in accordance with the requirements
of the National Electrical Safety Code and the National Electrical
Code, as adopted by the City, and all applicable state and local laws,
and in such a manner that they will not interfere with any installations
of the City or of a public utility serving the City.
C. All structures and all lines, equipment, and connections
in, along, across, over, under and upon the streets, sidewalks, alleys,
or public ways or places of the City, wherever situated or located,
shall at all times be kept and maintained in a safe, suitable, substantial
condition, and in good order and repair.
It shall be the prerogative of the Council to
liberally amend this nonexclusive franchise, upon application and
consent of the grantee, when necessary to enable the grantee to take
advantage of any developments in the provision of telecommunications
services which will afford it an opportunity to service its subscribers
more effectively, efficiently or economically; provided, however,
that this section shall not be construed to require the Council to
make any amendment.
A. All transmission and distribution structures, and
equipment erected by the grantee within the City shall be so located
as to cause minimum interference with the proper use of streets, alleys,
and other public ways and places.
B. It shall be the responsibility of the grantee to obtain
the necessary pole attachment agreements from the City and/or private
utility companies using poles within the City. If requested by grantee,
the City shall assist grantee in obtaining such pole attachment agreements
from public utility companies.
(1) All pole attachment agreements with the City shall
be negotiated with the Mayor or his/her designee and approved by the
Council.
C. If, at any time during the period of this nonexclusive
franchise, the City shall lawfully elect to alter or change the grade
of any street, sidewalk, alley, or other public way, the grantee,
upon reasonable notice by the City, shall remove, relay, and relocate
its poles, wires, cables, underground conduits, manholes, and other
fixtures at its own expense.
D. Any poles or other fixtures placed in any public way
by the grantee shall be placed in such a manner as not to interfere
with the usual travel on such public way.
E. The grantee shall, on the request of any person holding
a building moving permit issued by the City, temporarily raise or
lower its wires to permit the moving of buildings. The expense of
such temporary removal or raising or lowering of wires to permit the
moving of buildings shall be paid by the person requesting the same,
and the grantee shall have the authority to require such payment in
advance. The grantee shall be given not less than 48 hours' advance
notice to arrange for such temporary wire changes.
F. The grantee shall have the authority to trim trees
upon and overhanging streets, alleys, sidewalks, and public ways and
places of the City so as to prevent the branches of such trees from
coming in contact with the wires and cables of the grantee.
G. In all sections of the City where any cables, wires
or other like facilities of public utilities are placed underground,
the grantee shall place its cables, wires, or other like facilities
underground.
Except as may be permitted by federal law or
regulation, and except as to promotional or discount packages, the
grantee shall not, as to rates, charges, service, service facilities,
rules, regulations or in any other respect, make or grant any undue
preference or advantage to any person, or subject any person to any
prejudice or disadvantage.
A. The grantee, except as required for its reasonable
financing, shall not make, execute, or enter into any deed, deed of
trust, mortgage, conditional sales contract, or any loan, lease, pledge,
sale, gift or similar agreement concerning any of the facilities and
property, real or personal, of the BTN system without prior approval
of the Council, which shall not be unreasonably withheld, upon its
determination that the transaction proposed by the grantee will not
be inimical to the rights of the City under this nonexclusive franchise;
provided, however, that this section shall not apply to the disposition
of worn out or obsolete facilities or personal property in the normal
course of carrying on the BTN system.
B. Grantee shall at all times be the full and complete owner of all facilities and property, real and personal, of the BTN system unless loaned, leased, or pledged pursuant to Council authorization under §
A366-29A.
Prior approval of the Council, which shall not
be unreasonably withheld, shall be required where ownership or control
of more than 30 percent of the right of control of grantee is acquired
by a person or group of persons acting in concert, none of whom already
own or control 30% or more of such right of control, singularly or
collectively. By its execution of the franchise agreement, the grantee
specifically grants and agrees that any such acquisition occurring
without prior approval of the Council shall constitute a violation
of this ordinance by the grantee.
A. The right is hereby reserved to the City or the Council
to adopt, in addition to the provisions contained herein and in existing
applicable ordinances, such additional regulations of general applicability
as it shall find necessary in the exercise of its lawful police powers.
However, such regulations, by ordinance or otherwise, shall be reasonable
and not in conflict with the rights herein granted.
B. The designated City official shall have the right
to inspect the books, records, maps, plans, and other like materials
pertaining directly to the nonexclusive franchise granted hereunder,
of the grantee at any time upon reasonable notice and during normal
business hours. Each party shall be responsible for its own costs
attributable to such inspection.
C. The City shall have the right, during the life of
this nonexclusive franchise, to install and maintain for a reasonable
fee upon the poles of the grantee any wire and pole fixtures that
do not interfere with the BTN operation of the grantee.
D. The City shall have the right to inspect all construction
or installation work performed subject to the provisions of this nonexclusive
franchise and other pertinent provisions of the state and local law.
In the event such inspections reveal(s) that the grantee has failed,
in the City's reasonable judgment, to fulfill its obligation under
the terms of this nonexclusive franchise, the City shall notify the
grantee, in writing, of its specific deficiencies. Absent commencement
of corrective action by the grantee within 48 hours of receipt of
said notification, the City, upon the direction of the Council, may
undertake the necessary repairs or restoration at the grantee's sole
expense.
E. At the expiration of the term for which this nonexclusive
franchise is granted, or upon its termination or cancellation, as
provided herein, and absent a franchise renewal, the Council may require
the grantee to continue operations for a period not to exceed six
months from the date of the Council's decision. In the event of such
nonrenewal, the grantee shall have two years from the date it ceases
operations to remove, at its own expense, all portions of its system
from all public ways within the City and to restore said public ways
to a condition reasonably satisfactory to the City.
F. Upon the nonrenewal or forfeiture of this franchise as provided for herein, the City, at its election and upon the payment of a sum equal to the fair market value to the grantee as provided by §
A366-31G, shall have the right to purchase and take over the system in its entirety. Upon the exercise of this option and the payment of the above sum by the City and its service of an official notice of such action upon the grantee, the grantee shall immediately transfer to the City possession and title to all facilities and property, real and personal, of the system, free from any and all liens and encumbrances not agreed to be assumed by the City in lieu of some portion of the purchase price set forth above; and the grantee shall execute such warranty deeds or other instruments of conveyance to the City as shall be necessary for this purpose.
G. Upon the exercise of the option by the City to purchase
and take over the system in its entirety, the fair market value to
the grantee of the system as a going concern shall be determined by
three disinterested parties, one of such parties to be selected by
the City, another to be selected by the grantee, and the two parties
so selected shall mutually agree upon a third party.
H. When all three parties have been selected, they shall
proceed to appraise the system and determine the fair market value
to the grantee, which determination shall be binding upon the City
and the grantee. The fair market value shall not include and the grantee
shall not receive anything for the valuation of any right or privilege
appertaining to it under the grant of the franchise. In the event
the two parties selected by the City and grantee are unable to agree
upon a third party, then the presiding district judge of Canadian
County, Oklahoma, or his designee shall serve as the third party.
The party selected by the City shall be with approval of the Council.
However, if the City no longer desires to acquire the system after
its value is determined, the City may, without penalty or waiver of
future rights to acquire the system, abandon its intention to acquire
the system. The cost of the appraisal shall be shared equally between
the City and grantee.
A. The grantee shall file with the City Clerk, upon request,
maps or plats of all existing and proposed installations. Grantee
shall, simultaneously with the execution of the franchise agreement,
file a map of the City showing the proposed construction schedule
of grantee.
B. Grantee shall file annually with the City its annual
report to shareholders.
A. The grantee shall pay to the City quarterly an amount equal to 5% of grantee's annual gross revenues received from the operation of its system to provide cable service within the City. Payment due under this provision shall be payable 45 calendar days after the end of each calendar quarter. The increase in the franchise fee from 3% to 5% of annual gross revenues shall become effective 90 days after grantee's written acceptance of this ordinance as set forth in §
A366-6.
B. The grantee shall submit with each payment a report
showing the amounts of gross revenues for the proceeding quarter on
which the franchise fee is determined. Additionally, grantee shall
submit to the City an annual revenue audit statement within three
months of the close of the fiscal year, setting forth the computation
of gross revenues for the preceding year and an explanation of the
method of computation. The annual statement shall be submitted to
the City by a nationally recognized certified public accountant firm.
The required reports shall be prepared at the expense of the grantee
on forms reasonably acceptable to the City and certified by the grantee's
chief financial officer or the certified public accountant firm.
A. In addition to all other rights and powers pertaining
to the City by virtue of this nonexclusive franchise or otherwise,
the City reserves the right to terminate and cancel this nonexclusive
franchise and all rights and privileges of the grantee hereunder in
the event that the grantee:
(1) Willfully violates any material provision of this
ordinance or any rule, order, or determination of the Council made
pursuant to this nonexclusive franchise, except where such violation
is without fault or through excusable neglect;
(2) Becomes insolvent, or unable to pay its lawful debts,
or is adjudged bankrupt;
(3) Willfully violates or attempts to evade any of the
material provisions of this nonexclusive franchise or practices any
fraud or deceit upon the City or its citizens.
B. Such termination or cancellation shall be by ordinance
duly adopted and published after 60 days' prior written notice to
grantee of its proposed adoption; provided, however, before this nonexclusive
franchise may be terminated and canceled under this section, grantee
must have been provided with at least 60 days' prior written notice
of the alleged franchise violation and an opportunity to cure or attempt
to cure such alleged violation and an opportunity to be publicly heard
before the Council. In the event that such termination or cancellation
depends upon a finding of fact, such finding of fact as made by the
Council or its representative shall be conclusive.
This franchise shall not be transferred or assigned
by the grantee without the prior written consent of the Council, which
shall not be unreasonably Withheld, provided grantee may upon 30 days'
prior written notice to the Council transfer this franchise to an
entity controlling, controlled by or under common control with grantee.
The grantee agrees to abide by all provisions
of this ordinance, and further agrees that it will not at any future
time set up, as against the City, the claim that the provisions of
this ordinance are unreasonable, arbitrary or void, except to the
extent federal or state law preempts or supersedes such provisions.
Subject to applicable federal law, grantee shall
not, under penalty of forfeiture of its nonexclusive franchise rights
and privileges, without the express prior approval of the Council,
give, sell or exchange to any person any information concerning subscribers,
subscriber viewing habits or preferences except for normal business
practices. The purpose of this section is to ensure that the right
of privacy of each subscriber shall be fully protected.
If any section, subsection, sentence, clause,
phrase, or portion of this ordinance is for any reason held invalid
or unconstitutional by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision and
such holding shall not affect the validity of the remaining portions
hereof.
Except as otherwise provided herein, all previous
ordinances or parts of ordinances in conflict with the provisions
of this ordinance are hereby repealed.
Whereas, it being immediately necessary for
the preservation of the peace, health and safety of the City of El
Reno and the inhabitants thereof that the provisions of this ordinance
be put into full force and effect, an emergency is hereby declared
to exist by reason whereof this ordinance shall take effect and be
in full force from and after its passage as provided by law.