Poway Municipal Code Art. XII Miscellaneous Provisions

Notwithstanding any other provisions of the franchise to the contrary, the grantee shall at all times comply with all applicable laws and regulations of the State and Federal government or any administrative agencies thereof; provided, however, if any such State or Federal law or regulation shall require the grantee to perform any service, or shall permit the grantee to perform any service, or shall prohibit the grantee from performing any service, in conflict with the terms of the franchise or any law or regulation of the grantor, then as soon as possible following knowledge thereof, the grantee shall notify the grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the grantor or the franchise.

(Ord. 129 § 14.1, 1984; Ord. 298 § 1, 1989)

A. If any provision of this chapter or any related agreements is held by any court or by any Federal, State, or local agency of competent jurisdiction to be invalid as conflicting with any Federal, State, or local law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, and if said provision is considered nonmaterial by the grantor, said provision shall be considered a separate, distinct and independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions of this chapter.

B. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which has been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on the parties to the franchise agreement; provided, that the grantor gives the grantee 30 days’ written notice of such change before requiring compliance with said provision.

(Ord. 129 § 14.2, 1984; Ord. 298 § 1, 1989)

A. If any material section of this chapter or related franchise agreement is held to be invalid or preempted by Federal, State or County regulations or laws, the grantor shall negotiate with the grantee appropriate modifications to the franchise to provide reasonable relief from such invalidity or preemption, including the payment of compensating moneys to either party.

B. If the parties are unable to reach agreement on such modifications, then the dispute shall be submitted to a mutually agreeable arbitrator, in accordance with State law, who shall determine what modifications and/or compensating moneys are appropriate.

C. The arbitrator’s decision shall be binding on the parties; provided, that no decision of the arbitrator shall require the grantor or the grantee to be in violation of any Federal or State law or regulation.

D. If an arbitrator cannot be agreed upon, then each party shall select an arbitrator of his choice and each selected arbitrator shall agree upon a third.

E. Said panel of three arbitrators shall render a majority decision therein.

(Ord. 129 § 14.3, 1984; Ord. 298 § 1, 1989)

A. The grantee shall maintain within the franchise area or in the County throughout the term of the franchise, an address for service of notices by mail.

B. The grantee shall also maintain within the franchise area, a local office telephone number or toll free number for the conduct of matters related to the franchise during normal business hours.

(Ord. 129 § 14.4, 1984)

The captions to sections throughout this chapter are intended solely to facilitate reading and reference. Such captions shall not affect the meaning or interpretation of this chapter.

(Ord. 298 § 1, 1989)

The grantee shall have no recourse whatsoever against the grantor or its officials, boards, commissions, agents, or employees for any loss, costs, expense, or damage arising out of any provision or requirement of the franchise or because of the enforcement of the franchise except any tortious acts.

(Ord. 129 § 14.6, 1984; Ord. 298 § 1, 1989)

The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of the grantor to enforce prompt compliance.

(Ord. 129 § 14.7, 1984)

A. Except as expressly provided in the franchise, the grantee herein shall have no recourse whatsoever against the grantor for any loss, cost, or expense, for damage arising out of the provisions or requirements of the franchise or because of the enforcement thereof by the grantor, nor for the failure of the grantor to have the authority to grant all or any part of the franchise excepting any tortious acts.

B. The grantee by its acceptance of the franchise, acknowledges that it does so voluntarily and in reliance upon its own investigation and understanding of the power and authority of the grantor to grant the franchise.

C. The grantee by acceptance of the franchise acknowledges that it has not been induced to enter into the franchise by any understanding or promise, or other statement, whether verbal or written, by or on behalf of the grantor or by any other third person concerning any term or condition of the franchise not expressed herein.

D. The grantee acknowledges that it was not coerced or unlawfully induced into accepting the franchise and that any offers which it made for services or benefits under the franchise were made as a matter of its own volition without any coercion from the grantor or any agent thereof.

E. The grantee, by its acceptance of the franchise, acknowledges that it has carefully read the terms and conditions hereof and is willing to and does accept all the risks of the meaning of such terms and conditions and agrees that, in the event of any ambiguity therein or in the event of any other dispute over the meaning thereof, the same shall be construed strictly against the grantee and in favor of the grantor.

(Ord. 129 § 14.8, 1984; Ord. 298 § 1, 1989)