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(D)

After the effective date of this Agreement, as necessary in the analysis of all matters relative to the Franchise, the City shall be entitled to employ the services of technical, financial or legal consultants and advisors.  Except as otherwise expressly provided herein, all reasonable fees of any such consultants or advisors incurred by the City in this regard shall be borne equally by the Franchisee and the City, regardless of the outcome of any specific matter under consideration, except that such fees incurred by the City in connection with renewal or transfer of the Franchise shall be borne solely by the Franchisee.  Any such payment shall be deemed to be a charge incidental to the enforcement of the Franchise and shall not be subject to the limitations on franchise fees contained in 47 U.S.C. § 542.

(E)

No acceptance by the City of any payment from Franchisee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the provisions of this Agreement.  All amounts paid shall be subject to auditing and recomputation by the City.

(F)

Franchisee acknowledges and agrees that the franchise fees payable by Franchisee to City pursuant to this section shall take precedence over all other payments, contributions, services, equipment, facilities, support, resources or other activities to be provided or performed by Franchisee pursuant to this Franchise and that the franchise fees provided for in this section of this Franchise shall not be deemed to be in the nature of a tax, and shall be in addition to any and all taxes of general applicability and other fees and charges which Franchisee shall be required to pay to City and/or to any other governmental authority, all of which shall be separate and distinct obligations of Franchisee.  Franchisee shall not apply or seek to apply or make any claim that all or any part of the franchise fees together with any municipal excise tax or other payments or contributions to be made by Franchisee to City pursuant to this Franchise shall be deducted from or credited or offset against any taxes, fees or assessments or general applicability levied or imposed by City except those otherwise provided by Ordinance or any other governmental authority, including any such tax, fee or assessment imposed on both utilities and cable operators or their services.

(G)

The City and Franchisee agree that 47 U.S.C. § 542, which authorizes franchising authorities to collect franchise fees in an amount equal to five percent (5%) of Franchisee’s annual Gross Revenues, supersedes any inconsistent state or local law by virtue of the Supremacy Clause of the United States Constitution.  Franchisee agrees that it will continue to pay a franchise fee equal to five percent (5%) of its annual Gross Revenues even if a future judicial or administrative decision makes such a franchise fee provision legally unenforceable, unless the payment of such franchise fee would subject Franchisee to an administrative or judicial fine or penalty.

(H)

In the event the collection of a franchise fee of five percent (5%) of annual Gross Revenues as provided herein is unenforceable in whole or in part, the City has the absolute right to declare the Franchise Agreement null and void and to solicit proposals for a new Franchise Agreement except that the City may not declare the Franchise Agreement null and void in the event Franchisee continues to pay to the City voluntarily a five percent (5%) franchise fee.  Franchisee covenants that it will not, at any time, proceed against the City in any claim

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