§ 405. Miscellaneous.

405.(a). By the acceptance of this franchise, Company waives its rights, if any, to relocation costs that might otherwise be provided by law and that would otherwise be available from the City or in connection with any project in which the City is a participant.

405.(b). [Reserved for purposes of numbering]

405.(c). All remedies are cumulative and may be exercised singly or in combination, and are in addition to any other remedies available to the City at law or equity.

405.(d). Material terms are not severable.

405.(e) Competitive Equity.

405.(e).(1). The City reserves the right to grant additional franchises or similar authorizations to provide video programming services via cable systems or similar wireline systems located in the public rights-of-way. It is not the City's intent to treat competitors in a discriminatory manner and to advantage one competitor over another by regulation. If the City grants such an additional franchise or authorization to use the public rights-of-way to provide such services and Company believes the City has done so on terms materially more favorable than the obligations under this Franchise, then the provisions of this paragraph will apply.

405.(e).(2). As part of the Company's franchise, the City has agreed upon the following terms as a condition of granting the franchise which terms may place the Company at a significant competitive disadvantage if not required of a competitor: a 5% franchise fee, PEG funding, PEG channels, and customer service obligations (hereinafter "Material Obligations").

405.(e).(3). Within one year of the adoption of the competitor's franchise or similar authorization, Company must notify the City in writing of the Material Obligations in Company's franchise that exceed the Material Obligations of the competitors franchise to similar authorization. The City shall have sixty (60) days to agree to allow Company to adopt the same Material Obligations provided to the competitor, or dispute that the Material Obligations are different. In the event the City disputes the Material Obligations are different, Company may bring an action in federal or state court for a determination as to whether the Materials Obligations are different.

405.(e).(4). Nothing in this section is intended to alter the rights or obligations of either party under state law, and it shall only apply to the extent permitted under applicable FCC orders. In no event will the City be required to refund or to offset against future amounts due the value of benefits already received.

405.(e).(5). This provision does not apply if the City is ordered or required to issue a franchise on different terms and conditions, or it is legally unable to do so; and the relief is contingent on the new franchisee actually commencing provision of service in the market to its first customer. This provision does not apply to open video systems, nor does it apply to common carrier systems exempted from franchise requirements pursuant to 47 U.S.C. Section 571; or to systems that serve less than 5% (five per cent) of the geographic area of the City; or a system that only provides video services via the public Internet.

405.(f). Company agrees that any additional commitments in this franchise are not to be considered "franchise fees" within the meaning of Section 622 of the Cable Act (47 U.S.C. § 542). Company further agrees that Company shall not offset, deduct or otherwise credit in any way against any past, present or future franchise fee payments under this franchise any and all amounts related to PEG, courtesy accounts or any other obligations of Company under this franchise.

(Ord 15-55, § 1, 11-12-15)