A. Franchise Fee:
1. Amount; Conditions: Grantee shall pay to the franchising authority a franchise fee equal to three percent (3%) of gross revenue received by grantee from the operation of the cable system on an annual basis; provided, however, that grantee may credit against any such payments of: 1) any tax, fee or assessment of any kind imposed by franchising authority or other governmental entity on a cable operator, or subscriber, or both, solely because of their status as such; 2) any tax, fee or assessment of general applicability which is unduly discriminatory against cable operators or subscribers (including any such tax, fee or assessment imposed, both on utilities and cable operators and their services); and 3) any other special tax, assessment or fee such as a business, occupation and entertainment tax. For the purpose of this section, the twelve (12) month period applicable under the franchise for the computation of the franchise fee shall be a calendar year, unless otherwise agreed to, in writing, by the franchising authority and grantee. The franchise fee payment shall be due and payable ninety (90) days after the close of the preceding calendar year. Each payment shall be accompanied by a brief report from a representative of grantee showing the basis for the computation. In no event shall the franchise fee payments required to be paid by grantee exceed five percent (5%) of gross revenues received by grantee in any twelve (12) month period; however, the franchising authority reserves the right to negotiate the franchise fee with the grantee during the term of the franchise with any negotiated increase to take effect on an anniversary date of the franchise.
2. Limitation On Franchise Fee Actions: The period of limitation for recovery of any franchise fee payable hereunder shall be five (5) years from the date on which payment by the company is due. Unless within five (5) years from and after said payment due date, the city initiates a lawsuit for recovery of such franchise fees in a court of competent jurisdiction, such recovery shall be barred and the city shall be estopped from asserting any claims whatsoever against the company relating to any such alleged deficiencies.
B. Rates And Charges:
1. The franchising authority may not regulate the rates for the provision of cable service and other services, including, but not limited to, ancillary charges relating thereto, except as expressly provided herein and except as authorized pursuant to federal and state law, including, but not limited to, the cable act and FCC rules and regulations relating thereto. From time to time, and at any time, grantee has the right to modify its rates and charges, including, but not limited to, the implementation of additional charges and rates; provided, however, that grantee shall give notice to the franchising authority of any such modifications or additional charges thirty (30) days prior to the effective date thereof.
2. In the event that basic service rate increases are subject to approval of the franchising authority, the grantee may, at its discretion and without consent of the franchising authority, increase rates relating to the provisions of basic service by an amount which is at least equal to five percent (5%) per year.
C. Renewal Of Franchise:
1. The franchising authority and the grantee agree that any proceedings undertaken by the franchising authority that relate to the renewal of the grantee's franchise shall be governed by and comply with the provisions of section 626 of the cable act (as such existed as of the effective date of the cable act), unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of federal or state law.
2. In addition to the procedures set forth in said section 626(a), the franchising authority agrees to notify grantee of its preliminary assessments regarding the identity of future cable related community needs and interests, as well as, the past performance of grantee under the then current franchise term. The franchising authority further agrees that such a preliminary assessment shall be provided to the grantee prior to the time that the four (4) month period referred to in subsection 626(c) is considered to begin.
3. Notwithstanding anything to the contrary set forth in this subsection, the grantee and franchising authority agree that at any time during the term of the then current franchise, while affording the public appropriate notice and opportunity to comment, the franchising authority and grantee may agree to undertake and finalize negotiations regarding renewal of the then current franchise and the franchising authority may grant a renewal thereof. The grantee and the franchising authority consider the terms set forth in this section to be consistent with the express provisions of section 626 of the cable act. A reproduction of section 626 of the cable act as such existed as of the effective date of the cable act will be attached to ordinance 425 as schedule 1 and incorporated therein by this reference.
D. Conditions Of Sale:
1. Except to the extent expressly required by federal or state law, if a renewal or extension of grantee's franchise is denied or the franchise is lawfully terminated, and the franchising authority either lawfully acquires ownership of the cable system or by its actions lawfully effects a transfer of ownership of the cable system to another party, any such acquisition or transfer shall be at a fair market value, determined on the basis of the cable system valued as a going concern.
2. Grantee and franchising authority agree that in the case of a lawful revocation of the franchise, at grantee's request, which shall be made in its sole discretion, grantee shall be given a reasonable opportunity to effectuate a transfer of its cable system to a qualified third party. The franchising authority further agrees that during such a period of time, it shall authorize the grantee to continue to operate pursuant to the terms of its prior franchise; however, in no event shall such authorization exceed a period of time greater than six (6) months from the effective date of such revocation. If, at the end of that time, grantee is unsuccessful in procuring a qualified transferee or assignee of its cable system which is reasonably acceptable to the franchising authority, grantee and franchising authority may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that grantee's continued operation of its cable system during the six (6) months period shall not be deemed to be a waiver, nor an extinguishment, of any rights of either the franchising authority or the grantee. Notwithstanding anything to the contrary set forth in this subsection, neither franchising authority nor grantee shall be required to violate federal or state law.
3. A copy of section 626 of the cable act, adopted herein by reference, is on file in the office of the city clerk.
E. Transfer Of Franchise: Grantee's right, title or interest in the franchise shall not be sold, transferred, assigned or otherwise encumbered, other than to an affiliate, without the prior consent of the franchising authority, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation or by assignment of any rights, title, or interest of grantee in the franchise or cable system in order to secure indebtedness. (Ord. 425, 7-28-1992)