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1.
Quarterly Franchise Payment. A Grantee shall pay to the Grantor a fee in an amount as designated in the franchise agreement, which amount shall not be less than five percent (5%) of Grantee’s gross subscriber receipts or such other maximum amount as allowed by applicable law. Such payment shall commence as of the effective date of the franchise or any renewal date. The Grantor shall be furnished, on an annual basis, a statement within one hundred twenty (120) days of the close of the calendar year, either audited and certified by an independent certified public accountant or certified by a financial officer of the Grantee, reflecting the total amount of the revenue and all payments, deductions and computations for the period covered by the payment. Upon ten (10) days’ prior written notice, Grantor shall have the right to conduct an independent audit of Grantee’s records, in accordance with generally accepted accounting procedures, and if such audit indicates a franchise fee underpayment of five percent (5%) or more, the Grantee shall assume all reasonable costs of such an audit.
2.
Acceptance by Grantor. No acceptance of any payment by the Grantor shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligations of the Grantee.
3.
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, Grantee shall pay an additional compensation:
A.
An interest charge, computed from such due date, at an annual rate equal to the average rate of return on invested funds of the Grantor during the period for which payment was due.
B.
If the payment is late by forty-five (45) days or more, a sum of money equal to five percent (5%) of the amount due in order to defray those additional expenses and costs incurred by the Grantor by reason of delinquent payment.
4.
Payment Schedule. The franchise fee shall be paid on a quarterly basis according to the following schedule: Revenues for January through March shall be reflected in a May 15
th
payment; revenues for April through June shall be reflected in an August 15
th
payment; revenues for July through September in an October 15
th
payment; and revenues for October through December in a February 15
th
payment.
5.
Pass Through. Any Grantee “pass through” or itemization of franchise fee costs on subscribers’ bills shall be in accordance with Federal law.
1.
Grounds For Revocation. If the Grantee has been given due notice and a reasonable opportunity to cure, the Grantor reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default under this chapter and a material breach of the franchise.
A.
If the Grantee shall default in the performance of any of its material obligations under this chapter or under such documents, agreements and other terms and provisions entered into by and between the Grantor and the Grantee, subject to the provisions on cure.
B.
If the Grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages or the security fund or bonds as required herein.
C.
If any court of competent jurisdiction, or any Federal or State regulatory body by rules, decisions or other action determines that any material provision of the franchise documents, including this chapter, the franchise agreement and Grantee’s proposal is invalid or unenforceable prior to the commencement of initial system construction.
D.
If the Grantee ceases to provide service for a period exceeding thirty (30) days for any reason within the control of the Grantee over the cable system, or abandons the management and/or operation of the system.
E.
If the Grantee willfully violates any of the material provisions of this chapter or the franchise agreement or attempts to practice any fraud or deceit upon the Grantor.
F.
If the Grantee becomes insolvent, or upon listing of an order for relief in favor of the Grantee in a bankruptcy proceeding.
G.
If the Grantee transfers a controlling interest of the franchise without the prior approval or consent of the Grantor as required in Section 113.07.
2. Procedure Prior To Revocation.
A.
The Grantor may make a written demand that the Grantee comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. Such written demand shall detail the exact nature of the alleged noncompliance. In the event the stated violation is not reasonably curable within thirty (30) days, the franchise shall not be terminated or revoked, or damages assessed, if the Grantee provides within the said thirty (30) days a plan, satisfactory to the Grantor, to remedy the violation. If the failure, refusal or neglect of the Grantee continues for a period exceeding thirty (30) days following receipt of such written demand by the Grantee, the Grantor may terminate the franchise agreement in accordance with the procedures set forth in Section 113.11.
B.
The Grantor shall hear any persons interested therein, and shall determine, within ninety (90) days, based upon the preponderance of the evidence, whether the Grantee has committed a material breach of this chapter or the franchise agreement, and if so, whether such breach was willful.
C.
If the Grantor determines that the Grantee has willfully committed a material breach, then the Grantor may, by resolution, declare that the franchise of such Grantee shall be terminated and security fund and bonds forfeited, or the Grantor may, at its option and if the material breach is capable of being cured by the Grantee, direct the Grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as the Grantor shall determine are reasonable under the circumstances.
1.
Disposition of Facilities. Subject to Federal, State and local laws, in the event a franchise expires, is revoked, or otherwise terminated, the Grantor may order the removal of the above-ground system facilities from the franchise area within a reasonable period of time as determined by the Grantor or require the original Grantee to maintain and operate its cable system for a period not to exceed twenty-four (24) months as indicated in subsection 4.
2.
Restoration of Property. In removing its plant, structures, and equipment, the Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the Grantee’s removal of its plant, structures and equipment without affecting the electrical or telephone cable wires, or attachments. The Grantee’s insurance, indemnity obligations, performance bond(s) and security fund(s) required by this chapter and by the franchise agreement shall continue in full force and effect during the period of removal and until full compliance by the Grantee with the terms and conditions of this chapter.
3.
Restoration by Grantor; Reimbursement of Costs. In the event of a failure by the Grantee to complete any work required by subsection 1 and/or subsection 2 above, or any other work required by Grantor by law or ordinance, within thirty (30) days after receipt of written notice, and to the satisfaction of the Grantor, the Grantor may cause such work to be done and the Grantee shall reimburse the Grantor the cost thereof within thirty (30) days after receipt of an itemized list of such costs or the Grantor may recover such costs through the security fund or bonds provided by Grantee. The Grantor shall be permitted to seek legal and equitable relief to enforce the provisions of this chapter.
4.
Extended Operation. Subject to Federal, State and local law, upon either the expiration or revocation of a franchise, the Grantor may require the Grantee to continue to operate the cable system for a defined period of time not to exceed twenty-four (24) months from the date of such expiration or revocation. The Grantee shall, as trustee for its successor in interest, continue to operate the cable communications system under the terms and conditions of this chapter and the franchise agreement and to provide the regular cable service and any of the other services that may be provided at that time.
5.
Grantor’s Right Not Affected. The termination and forfeiture of any franchise shall in no way affect any of the rights of the Grantor under any provision of law.
1.
Operation by Receiver. Any franchise granted shall, at the option of the Grantor, cease and terminate one hundred twenty (120) days after the appointment of a receiver or receivers or trustee or trustees designated to take over and conduct the business of the Grantee, whether in a receivership, reorganization, condemnation, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:
A.
Such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this chapter and the franchise granted pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have remedied all defaults under the franchise; and
B.
Such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the Court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise agreement.
2.
Involuntary Sale. In the case of a foreclosure or other involuntary sale of the plant, property and equipment of the Grantee, or any part thereof, the Grantor may serve notice of termination upon the Grantee and to the purchaser at such sale, in which event the franchise and rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless:
A.
The Grantor shall have approved the transfer of the franchise, as and in the manner in this chapter provided; and
B.
Such successful purchaser shall have covenanted and agreed with the Grantor to assume and be bound by all the terms and conditions of the franchise agreement.
1.
New Franchises. For a new franchise awarded, the costs to be borne by the Grantee shall include, but shall not be limited to, all costs of publication of notices prior to any public meeting, publication of relevant ordinances and franchise agreements, incurred by the Grantor in its study, preparation of proposal solicitation documents, evaluation of all applications.
2.
Franchise Renewal. For a franchise renewal, the Grantee shall reimburse the Grantor cost of publication of notices, publication of relevant ordinances and franchise agreements.
3.
Franchise Transfer. For a franchise transfer, Grantee shall reimburse the Grantor cost of publication of notices, publication of relevant ordinances and franchise agreements.
4.
Other Costs. The processing costs provided for in this section shall be in addition to any other inspection or permit fee or other fees due to Grantor under any other ordinance.
1.
Use of Streets. For the purposes of operating and maintaining a system in City, Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, across and along the streets within the City lines, cables, conductors, ducts, conduits, vaults, maintenance holes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the system, provided that all applicable permits are applied for and granted, all fees paid and all other City codes and ordinances otherwise complied with. However, no rights hereunder may be transferred by Grantee to any other entity except Grantee’s construction agents.
2.
Filing Plans. Prior to construction or alteration, Grantee shall in each case file plans with all appropriate City departments and receive written approval of such plans, which approval shall not be unreasonably withheld. Grantee shall provide in writing a monthly progress report to Grantor through the completion of construction or alteration.
3.
Noninterference. Grantee shall construct and maintain the system so as not to interfere with other uses of streets. Grantee shall make use of existing poles and other facilities available to Grantee whenever practicable. Grantee shall notify all residents directly affected by proposed construction prior to the commencement of that work.
4.
Denial Of Use By Grantor. Notwithstanding the above grant to use the streets, no street shall be used by Grantee if Grantor, in its sole opinion, determines that such use is inconsistent with the conditions or provisions by which such street was created or dedicated or presently used.
1.
Limit Interference. All transmission and distribution structures, lines and equipment erected by Grantee within the City shall be so located as to cause minimum interference with the proper use of streets and other public places and the rights and reasonable convenience of property owners who adjoin such streets and other public places.
2.
Restoration of Streets. In case of disturbance of any street or public place, the Grantee shall, at its own cost and expense and in a manner approved by the City Engineer, replace and restore such area in as good a condition as before the work involving such disturbance was done.
3.
Tree Trimming. The Grantee shall comply with the provisions of Chapter 151 of this Code of Ordinances. Each Grantee shall be responsible for, shall indemnify, defend and hold harmless the Grantor and its officers, agents and employees from and against any and all damages arising out of or resulting from the removal, trimming, mutilation of or injury to any tree or trees proximately caused by the Grantee or its officers, agents, employees, contractors or sub-contractors.
1.
Consent of Erection of Poles. No franchise shall be deemed to include an authorization, either express or implied, for the Grantee to construct or install poles or wire-holding structures within streets for the purpose of placing cables, wires, lines or otherwise without the written consent of the Grantor. Such consent shall be given upon such terms and conditions as the City Engineer may prescribe, which shall include a requirement that the Grantee perform, at its sole expense, all tree trimmings required to maintain the poles clear of obstructions.
2.
Access to Poles. With respect to any poles or wire holding structures which a Grantee is authorized to construct and install within streets, a public utility serving the Grantor may, if denied the privilege of utilizing such poles or wire-holding structures by the Grantee, apply for such permission to the City Engineer. If the City Engineer finds that such use would enhance the public convenience and would not unduly interfere with the Grantee’s operations, the City Engineer may authorize such use subject to such terms and conditions as the City Engineer deems appropriate. Such authorization shall include the condition that the public utility pay to the Grantee any and all actual and necessary costs incurred by the Grantee in permitting such use. Nothing herein shall be construed as a right for the Grantee to utilize public utility property.
1.
Underground Installation Required. Except as hereinafter provided, in all areas of the City where the cables, wires and other like facilities of a public utility are placed underground, each Grantee shall construct and install its cables, wires and other facilities underground. Amplifier boxes and pedestal mounted terminal boxes may be placed aboveground if existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe. In any area of the City where there are certain cables, wires and other like facilities of a public utility underground and at least one (1) operable cable, wire or like facility of a public utility is suspended above the ground from poles, a Grantee may construct and install its cables, wires and other facilities from the same pole with permission of the utility company which owns the poles.
2.
Relocation Underground. With respect to any cables, wires and other like facilities constructed and installed by a Grantee aboveground, the Grantee shall, at its sole expense reconstruct and reinstall such cables, wires, or other facilities underground pursuant to any project under which the cables, wires or other like facilities of all like utilities are placed underground within an area.
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