(a) Entire agreement. This , including Appendices A through E, contains the entire agreement between the parties and all prior franchises, negotiations and agreements are merged herein and hereby superseded, except that any obligation of to indemnify under a prior or agreement shall be continuing as to those matters (if any) occurring during the term of said prior franchise or agreement on which was obligated to indemnify municipality.
(b) Notices.
(1) Except as otherwise specified herein, all notices, consents, approvals, requests and other communications (herein collectively “notices”) required or permitted under this
shall be given in writing and mailed by registered or certified first-class mail, return receipt requested addressed as follows:
If to
: City Manager
City of Grand Blanc
203 E. Grand Blanc Road
Grand Blanc, MI 48439
Attorney
Varnum, Riddering, Schmidt & Howlett, LLP
Box 352
Grand Rapids, MI 49501-0352
If to
: Vice President, Regulatory Affairs
Comcast Cable Communications, Inc.
29777 Telegraph Road, Suite 4400B
Southfield, MI 48034.
Vice President and General Manager
Comcast Cable Communications
3008 Airpark Drive South
Flint, MI 48507
(2) All notices shall be deemed given on the day of mailing. Either party to this
may change its address for the receipt of notices at any time by giving notice thereof to the other as provided in this section. Any notice given by a party hereunder must be signed by an authorized representative of such party.
(c) Conferences. The parties hereby agree to meet at reasonable times on reasonable notice to discuss any aspect of this , the provision of or the during the term of this franchise agreement.
(d) Governing law. This shall be construed pursuant to the laws of the state and the United States of America.
(e) Waiver of compliance. No failure by either party to insist upon the strict performance of any covenant, agreement, term or condition of this , or to exercise any right, term or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or such covenant, agreement, term or condition. No waiver of any breach shall affect or alter this franchise agreement, but each and every covenant, agreement, term or condition of this franchise agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.
(1)
may waive any obligation of
under this
, in whole or in part, at any time. This includes, but is not limited to, instances of a claim or showing by company that the costs associated with the provision being waived would increase the rates company is legally allowed to charge subscribers, such as a claim that such costs are an “external cost” which allow company to increase its rates under the
rules.
(2)
grants this
solely for a
and for transaction of a
.
may assert claims to the effect that once its facilities have been placed in the streets and
it will be entitled under federal law to use them for other purposes without the consent or authorization of municipality and without necessarily paying compensation therefore. Municipality disputes any such claim. Municipality further asserts that if any such claims by company were to be sustained there would be, among other things, an unconstitutional taking of municipality’s property in violation of the Fifth Amendment of the United States Constitution. Company disputes this claim. Neither the issuance nor the acceptance of this franchise constitutes or will be claimed to constitute a waiver or relinquishment of any rights or defenses of either municipality or company in connection with these disputed issues. Municipality and company acknowledge that this section is not intended to be a comprehensive statement of their respective claims and positions and that they intend to defer all disputes that may arise out of or relate to use by company of its facilities in the streets and public ways for purposes other than a cable system.
(3)
asserts that municipality’s
are limited by federal statute to 5% of revenues from “
,” all as defined in § 622 of the Telecommunications Act of 1934, 47 U.S.C. § 542.
asserts that any such limit is unconstitutional, among other things an unconstitutional taking of municipality’s property in violation of the Fifth Amendment of the United States Constitution. Company disputes this claim. Neither the issuance nor the acceptance of this
constitutes or will be claimed to constitute a waiver or relinquishment of any rights or defenses of either municipality or company in connection with these disputed issues. Municipality and company acknowledge that this section is not intended to be a comprehensive statement of their respective claims and positions and that they intend to defer all disputes that may arise out of or relate to statutory limits on franchise fees.
(f) Independent contractor relationship. The relationship of to is and shall continue to be an independent contractual relationship, and no liability or benefits, such as worker’s compensation, pension rights or liabilities, insurance rights or liabilities or other provisions or liabilities, arising out of or related to a contract for hire or employer/employee relationship, shall arise or accrue to either party or either party’s agents or employees as a result of the performance of this , unless expressly stated in this franchise agreement.
(g) Severability. If any section, paragraph or provision of this shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this franchise agreement.
(h) . This shall be effective as of September 1, 2001 (“effective date”). Any prior shall terminate as of midnight of the day immediately preceding the effective date of this franchise agreement, except as provided in division (a) above.
(i)
Rules. A copy of the FCC customer service rules as modified above and in effect on the date of this are shown in Appendix A. A copy of FCC Rule 76.501 as in effect on the date of this franchise agreement is shown in Appendix C.
(j) Captions. All captions are for convenience of use and have no substantive effect, except for those captions in § 806.02 of this .
(k) Conflicts. In the event of a conflict between this and the provisions of any prior or any franchise, permit, consent agreement or other agreement with , the provisions of this franchise agreement shall control.
(l) Force majeure. In the event company’s performance of any of the terms, conditions or obligations required by this is prevented by a cause or event, not within company’s reasonable control, it shall be deemed excused for the period of such inability and no penalties or sanctions shall be imposed as a result thereof. Causes or events not within the control of shall include acts of God, strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions, acts of public enemies and natural disasters.
(m) accepted. further acknowledges by acceptance of this franchise agreement that it has carefully read the terms and conditions of this franchise agreement and accepts the lawful obligations imposed thereby. As of the , and without waiving any rights company may have to challenge the lawfulness or enforceability of the franchise agreement in the future, company does not contend that any provision of the franchise agreement is unlawful or unenforceable.
(n) Waiver of compliance. No failure by either party to insist upon the strict performance of any covenant, agreement, term or condition of this , or to exercise any right, term or remedy upon a breach thereof shall constitute a waiver of any such breach or such covenant, agreement, term or condition. No waiver of any breach shall affect or alter this franchise agreement, but each and every covenant, agreement, term or condition of this franchise agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.
(o) Reserved rights. reserves all rights and powers under its police powers or conferred by federal, state or local law. In particular, municipality reserves the right to amend its municipal code and cable ordinance as it determines shall be conducive to the health, safety, welfare and accommodation of the public. Municipality agrees that by accepting this has not waived its right to object to the application to it of actions by municipality pursuant to its reserved rights or police powers.
(Ord. passed 9-5-2001)