(a) All cable system franchisees shall pay to the town a franchise fee in an amount as designated in the franchise agreement, but in no event shall that fee be less than five percent (5%) of the gross annual revenues, which payments shall exclude bad debts, taxes and fees collected by the franchisee on behalf of any governmental entity. This franchise payment shall become effective on the next subscriber billing cycle after sixty (60) days from the effective date of the franchise. If applicable law, including but not limited to the Act or FCC regulations (all as amended from time to time), allows a greater franchise fee, the franchisee shall within thirty (30) days of adoption of said law or regulation forward a copy of same to the Town to the attention of the Town Manager. The parties shall meet and confer to negotiate an increased fee within ninety (90) days of notice to the franchisee by the Town, if the Town wishes to renegotiate said franchise fee. The town shall be furnished a fully certified statement of said payment by a certified public accountant, reflecting the total amounts of annual gross revenues from the town and the above charges and computations for the period covered by the payment within ninety (90) days after the end of each year.
(b) Franchise fees in addition to other taxes or payments. Payment of the franchise fee made by the franchisee to the town shall not be considered in the nature of a tax, but shall be in addition to any and all taxes of general applicability which are now or may be required hereafter to be paid by any Federal, State, or local law.
(c) Acceptance by the town. Subject to applicable law, no acceptance of any payment by the town shall be construed as a release or as an accord and satisfaction of any claim the town may have for further or additional sums payable as a franchise fee under this code or for the performance of any other obligation of the franchisee.
(d) Failure to make required payment. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, the franchisee shall pay as additional compensation an interest charge, computed from such due date, at an annualized rate equal to the commercial crime interest rate of the town's primary depository bank during the period that such unpaid amount is owed.
(e) Periodic payments to be made. The franchisee shall make fee payments of monies due hereunder within thirty (30) days of the end of each calendar quarter for franchise fees collected during the preceding quarter. Accompanying said payment, the franchisee shall also report its gross revenues for the preceding quarter's period.
(f) Town right to inspection. The town shall have the right to inspect the franchisee's gross revenue records and to audit and to recompute any fee amounts. No audit of the franchisee's records relating to gross annual revenue shall take place later than thirty-six (36) months following the close of each of the franchisee's fiscal years. Audits that result in payment of five percent (5%) or more of franchise fees during the audit period shall be at the expense of the franchisee. Any additional amount due to the town as a result of the audit shall be paid within thirty (30) days of notice by the town, unless the franchisee disputes the results of the audit. The franchisee agrees to meet with the Town and will attempt in good faith to resolve any differences. Thereafter, the additional amount due shall be subject to payment within thirty (30) days after said additional amount is determined to be due by the franchisee and the town, or the town declares an impasse in the negotiations with the franchisee.
(g) Payments due in event of termination or expiration. In the event the franchisee continues the operation of any cart or all of the cable system beyond the termination, revocation, or expiration of the franchise granted herein, it shall pay to the town the franchise fee as set forth in this franchise, at the time of such termination or expiration, and in the manner set forth in this franchise.
(h) Alternative fee contingencies. In the event that the franchisee's obligation to pay a franchise fee is held invalid by a decision of any court of competent jurisdiction or due to the actions of any legislative body, the franchisee shall negotiate with the town in good faith and shall agree, if permissible under then applicable law, to provide compensation to the town in lieu of the franchise fee. The amount of compensation shall, to the extent permitted by applicable law, as amended from time to time, be comparable to that which the franchisee would pay as the franchise fee under the terms of its franchise if such terms were still valid and shall be passed through to the subscriber in a manner similar to the franchise fee.
(i) Other fees and taxes. To the extent that any federal or state law or regulation may now forbid the town from assessing any type of fee or tax, upon repeal, modification, or judicial interpretation of said law or rule that would permit the town to assess said fee or tax, the town shall have the right to assess said fee or tax to the full extent authorized by law; provided, that the town shall first consult with the franchisee. If applicable law is modified to allow a fee or tax, the parties shall meet and confer within ninety (90) days of notice from the town to in good faith negotiate franchise provisions to implement the collection of said fee or tax.
(Ord. 94-05, passed 12-14-94)