Big Bear Lake Municipal Code Art. XXVII Sundry Provisions

The headings identified as bold text contained in this chapter and the franchise agreement are to facilitate reference only, do not form a part of this chapter or the franchise agreement, and shall not in any way affect the construction or interpretation hereof.

(Ord. 98-287 § 2, 1998)

Whenever this chapter or the franchise agreement shall set forth any time for an act to be performed by or on behalf of the franchisee, such time shall be deemed to be of the essence; and any failure of the franchisee to perform within the time allotted shall always be sufficient grounds for the city to invoke liquidated damages or initiate procedures leading toward the revocation or termination of a franchise. Time is of the essence with respect to material and substantial franchise obligations, including but not limited to, those obligations where appropriately listed in this chapter.

(Ord. 98-287 § 2, 1998)

Except as otherwise provided in this chapter or the franchise agreement, any notice, approval, consent, waiver or other communication required or permitted to be given or to be served upon any person shall be in writing. Such notice shall be personally served, or sent by facsimile, telegram, tested telex or cable, or sent by first class, registered or certified U.S. mail (first-class, postage prepaid, with return receipt requested from the addressee only) and shall be deemed given:

1. If personally served, when delivered to the person to whom such notice is addressed,

2. If given by facsimile, telegram, telex or cable, when sent, or

3. If given by mail, upon receipt by the addressee. Receipt of any notice given by facsimile, telegram, tested telex or cable must be confirmed in writing sent by registered or certified mail in the manner prescribed by this section within forty-eight hours after sent to be effective. Such notices shall be addressed to the party to whom such notice is to be given as follows: if to the franchisee, at the local offices of the franchisee; if to the city, to the cable administrator, city of Big Bear Lake. Either party may change the address to which notice is to be given by providing written notice to the other party in the manner provided in this section.

(Ord. 98-287 § 2, 1998)

All provisions of this chapter shall apply to a franchisee, its successors, and assignees as may be approved by the city in accordance with this chapter.

(Ord. 98-287 § 2, 1998)

Specific mention of the materiality of any of the provisions herein is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance hereunder is material and substantial.

(Ord. 98-287 § 2, 1998)

If any particular section, subsection or provision of this chapter or the particular application thereof, shall be held invalid, the remaining provisions and their application shall not be affected thereby.

(Ord. 98-287 § 2, 1998)

A franchisee, upon its acceptance of the franchise agreement, shall be bound by the provisions of this chapter, all matters agreed upon in the franchise agreement and all matters offered by the franchisee to the city or other inquiry from the city, which response of franchisee is accepted by the city and incorporated by reference in the franchise agreement.

(Ord. 98-287 § 2, 1998)

In the event that any provision of the Cable Act or other statute, law or regulation which is relied on herein or in the franchise agreement for any definition or requirement, is repealed, then the language of such provision at the time of such repeal shall nevertheless continue to apply for purposes of this chapter or the franchise agreement, regardless of such repeal, except as otherwise provided herein or in the franchise agreement or as prohibited by such subsequent repeal or amendment.

(Ord. 98-287 § 2, 1998)

The rights and remedies of the parties pursuant to this chapter or the franchise agreement are cumulative, except as otherwise provided in this chapter or the franchise agreement, and shall be in addition to and not in derogation of any other rights or remedies which the parties may have with respect to the subject matter of the franchise agreement or this chapter. A waiver of any right or remedy by a party at one time shall not affect the exercise of said right or remedy or any other right or other remedy by such party at any other time. The failure of the city to take any action in the event of a material breach by the franchisee shall not be construed or otherwise be deemed to constitute a waiver of the right of the city to take such action at any other time in the event that such material breach has not been cured, or with respect to any other material breach by the franchisee.

(Ord. 98-287 § 2, 1998)

In the event that, after the effective date of the franchise agreement, any court, agency, commission, legislative body, or other authority of competent jurisdiction:

1. Declares a franchise agreement invalid, in whole or in part, or

2. Requires the franchisee either to:

a. Perform any act which is inconsistent with any provision of the franchise agreement or

b. Cease performing any act required by any provision of the franchise agreement, the city shall reasonably determine whether such declaration or requirement has a material and adverse effect on the franchise agreement. If the city determines that such declaration or requirement does have a material and adverse effect on the franchise agreement, the franchisee shall, upon the city's request, enter into good faith negotiations with the city to consider amendments to the franchise agreement to eliminate any inconsistency or conflict between such declaration or requirement and the provisions of the franchise agreement and to meet the original intent of the parties as the circumstances warrant and unless prohibited by law. Neither party is required to agree to such renegotiations or amendments, and either party may terminate the franchise agreement without penalty.

(Ord. 98-287 § 2, 1998)