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(A) The city may at its sole discretion limit the number of franchises granted at any one time based upon its consideration of all appropriate criteria which shall including but not be limited to the following:
(1) The capacity of the public rights-of-way to accommodate the facilities of any proposed additional cable systems.
(2) The advantages and disadvantages that may result from additional cable system competition.
(B) The city may require that any grantee be responsible for its own underground trenching and any associated costs if, in the city's opinion, the public rights-of-way in any area do not feasibly and reasonably accommodate the additional cables, machinery, equipment, or other items contemplated in connection with the construction, maintenance and operation of a proposed new cable system. In addition, grantee shall comply with applicable federal and state laws regarding pole attachments.
(Ord. 4315, passed 11-12-96)
(A) In connection with any application for a new franchise, a franchise renewal or a franchise transfer, each applicant shall furnish with its proposal a filing fee in the amount of $10,000, by certified or cashier's check made payable to the city. No application shall be considered without receipt of said check. All such funds received by the city will be deposited into an account of the city and will serve to pay expenses incurred by the city in connection with the processing and analysis of the application.
(B) With respect to an application for a franchise renewal, the city may, at its sole discretion, agree in writing with grantee to establish a fixed filing fee in an amount estimated to cover the costs identified in division (A) immediately above. Such fee, if applicable, may be stated in the franchise agreement or in anther written agreement and shall be in lieu of all other application costs identified in this section. In addition, grantee shall comply with applicable federal and state laws regarding pole attachments.
(C) Such application processing costs are exclusive of Grantee's obligation to pay other costs and fees required by this chapter, the franchise agreement or the franchise, including without limitation construction inspection fees, permit fees, and franchise fees.
(Ord. 4315, passed 11-12-96)
(A) As compensation for any franchise granted, and in consideration of permission to use the public right-of-way in the operation of its cable system, and because the city will incur costs (other than application fees) in regulating and administering the franchise, grantee shall pay to the city a franchise fee
in the amount equal to five percent of grantee's gross revenue, or such other amount as the City Council may set by resolution.
(B) The franchise fee assessed shall be paid quarterly, to be received by the City Treasurer not later than 45 days after the close of each quarter of grantee's fiscal year.
(C) on a quarterly basis, grantee shall provide the city a complete and accurate statement verified by a financial officer of grantee indicating gross revenues for said month, listing every revenue source, and depicting gross revenue computations.
(D) On an annual basis, grantee shall, if requested by the city in accordance with § 4.04.1102, file a complete and accurate statement certified by grantee's chief financial officer, indicating all gross revenues for said year, listing every revenue source, and depicting gross revenue computations. If the city has any concerns or issues relating to contents of said report, the city shall have 60 days to notify grantee and request additional information. Grantee shall have 60 days to provide additional input and data to resolve any concerns or issues to the city's satisfaction. Thereafter, the city may, at its sole discretion, request that said statement be certified by an independent certified public accountant, at grantee's sole cost; provided, however, that any such request shall be made within 60 days after grantee's response is received.
(E) At any time during the term of a franchise, the city shall have the right to conduct an independent audit of any and all records of grantee that are related to gross revenue reports or computations. Grantee shall cooperate with any such audit making readily available any and all information requested by the city relating to the audit. In the event that any such audit indicates a franchise fee underpayment of five percent or more, grantee shall pay all costs of said audit. Grantee shall maintain in a readily accessible place all such records for a minimum of four years after any payment period that such record pertains to.
(F) In the event that any franchise fee payment is not made on or before the applicable dates heretofore specified, interest shall be charged monthly at a monthly rate of one and one-half percent. In addition, if any franchise fee is not paid in full within 15 days after receipt of notice from the city as to the delinquency of such payment, a late fee in amount of five percent of the delinquent amount shall be assessed.
(G) In the event grantee claims to have overpaid by more than five percent the amount of franchise fee actually due during any given quarter, it shall file an application with the city within one year after said payment was made. The failure to timely and properly make such claim as required herein shall constitute a waiver by grantee of any right to such claimed overpayment, whether by refund, offset, credit or any other accommodation. All such applications shall state the amount of claimed overpayment, the reason for the claimed overpayment, and sufficient documentation to allow the city to verify grantee's claim. Upon request by the city, grantee shall provide any further information that is deemed by the city to be relevant to said claim. All such applications shall be considered by the City Council, and the City Council's decision with respect to such applications shall be final.
(Ord. 4315, passed 11-12-96)
(A) In addition to all other rights and powers retained by the city under this chapter or otherwise, the city reserves the right to terminate any franchise and all rights and privileges of grantee, or asses damages or penalties against grantee, in the event of any material breach of its terms and conditions. A material breach by grantee shall include, but not be limited to the following:
(1) Violation of any material provision of this chapter, the franchise agreement or any material rule, order, regulation or directive issued in connection with the franchise;
(2) Evasion of any material provision of this chapter or the franchise agreement, or the practice of fraud or deceit upon the city, its subscribers or customers;
(3) Material misrepresentation of fact in an application for a new franchise, renewal or transfer of a franchise, whether by act or omission;
(4) Failure to pay any franchise fee when said payment is due;
(5) Failure to restore cable service after 96 consecutive hours of interrupted cable service, except in the event that the city approves in writing a longer period of interruption after making a determination that there exists just cause for such longer period of interruption;
(6) Failure to provide at least 80% of standard cable service over all or a substantial portion of the cable system for a period of five days;
(7) Failure to substantially meet customer service standards established in the franchise over a three month period of time;
(8) Failure to initiate or complete scheduled system construction or reconstruction within the time set forth in the franchise, unless the City Council expressly approves the delay by motion or resolution, due to the occurrence of conditions beyond grantee's control;
(9) Failure to provide or maintain in full force and effect any of the liability and indemnification coverage, letter of credit or bonds required by the franchise;
(10) Violation of orders or rulings of any regulatory body having jurisdiction over grantee relative to the franchise;
(11) Failure to provide, upon written request, data, documents, reports or information; and
(12) Failure to pay debts and obligations as they mature in accordance with normal business practices; assignment of grantee or its assets for the benefit of its creditors; dissolution, liquidation or ceasing to conduct business; application by grantee for (or consent to) the appointment of a receiver, trustee, liquidator; or the sale of all or substantially all of grantee's assets.
(Ord. 4315, passed 11-12-96)
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