(a) Operation and Reporting Provisions.
(1) The city shall have the right, at its cost, of access to inspect or copy, upon not less than 72 hours written notice, at any time during normal business hours at the operator's offices or elsewhere, any and all books, records, maps, plans, revenue statements and other like materials of the operator which are reasonably necessary to monitor and audit compliance with the terms of Chapter 793 and any permit. The written notice shall contain a description of and purpose for the inspection and a description of the books, records, documents and equipment to be inspected. The operator shall cooperate with the city in the performance of any such inspection and audit.
(2) On or before April 1, 2000 and each year thereafter, the operator shall file with both Mayor and the Auditor an annual report containing the following information regarding the system:
A. A description of the basic service then being offered at the end of the prior year together with a description of any changes made in the basic service during the reported year.
B. A current list of names and addresses of each principal. For the purposes of this requirement of the term "principal" means any person, firm, corporation, partnership or joint venture, or other entity who or which owns or controls five percent or more of the voting stock (or any equivalent interest of a partnership or joint venture of the operator).
C. A certification of the gross revenues for the preceding year certified by an independent certified public accountant.
D. Such additional information with respect to its operation, affairs, transactions or property, which are requested by the Mayor and which are reasonably necessary for the administration and enforcement of this chapter.
(3) The city shall have the authority, during normal business hours, to arrange for and conduct an inspection and audit of the relevant books and records and equipment of the operator when reasonably necessary to monitor compliance with federal law or regulations, this chapter or its permit.
(b) Payment to City.
(1) The operator shall pay to the city an annual amount of up to five percent of its gross revenues. The foregoing payment shall be compensation for the costs of the city's regulation, obligations and duties hereunder and for use of streets and other public property.
(2) Payments due the city under this provision shall be known as "Franchise Permit Fees" and shall be computed at the end of each quarter year for that quarter year. Payments shall be due and payable for each quarter or a portion of a quarter year on or before May 15 for the first quarter and on or before August 15, November 15 and February 15 for the following quarters, respectively. For the initial year of any permit, such fees shall be prorated from the day on which any permit hereunder is accepted. To the extent that final data are not available from which the correct amount of the payment cannot be ascertained, the operator may utilize good faith estimates. Said estimated payments shall be reconciled as soon as actual data is available. If the payment was underestimated then the reconciling payment shall contain an interest payment at the interest rate set forth in subsection (6) hereunder. If the payment was overestimated, the operator shall receive a credit on the following quarter's payment.
(3) No acceptance of any payment 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 sum payable under the provisions of this chapter. All amounts paid shall be subject to audit and recomputation by the city.
(4) With each annual report required pursuant to Section 793.06(A), the operator shall provide the city with a certification of the gross revenues for the preceding year certified by an independent certified public accountant in accordance with generally accepted auditing standards. The certification shall be attested to by the comptroller or treasurer and president or General Manager of the operator. The calculation of the franchise permit fee shall be clearly shown as part of this certification. This certification shall be used to determine the exact amount of payments due the city and to correct any previous overpayments or underpayments by the operator.
(5) All payments to the city shall be by check, made payable to the City Treasurer, and either hand delivered or mailed to the Auditor so as to guarantee receipt by the due date or via wire transfer to the City Treasurer no later than the due date.
(6) In the event any payment is not made on the due date, interest on the amount due shall accrue from such date at the annual rate of 300% of the three month T-bill rate on the first business day of the month such payment was due.
(7) Nothing in this section shall be construed to authorize anything other than a uniform franchise permit fee applicable to all operators.
(8) The initial franchise permit fee percentage shall be set forth in the permit when issued. Said franchise permit fee for all operators holding permits may be.
(9) Unless and until modified by subsequent action of the City Council, an amount of franchise permit fees received equal to .2% of the gross revenues shall be payable to the treasurer of the school district to be earmarked for grants to each primary, middle and secondary school located within the city, such grants to be for purchase of cable television, telecommunications or information systems equipment or services, including distance learning. Similarly an amount of franchise permit fees received equal to .05% of the gross revenues shall be earmarked for similar grants to any public libraries located within the city.
(c) Penalties. In addition to any other remedies provided herein and the remedy of specific performance which may be enforced in the Franklin County Municipal Court, penalties for violations of this chapter or the operator's permit are set forth below; provided, however, in no event shall the total penalty amount payable by operator be in. excess of $10,000.00 per occurrence or $20,000.00 during any calendar year. As a result of any acts or omissions by the operator pursuant to the chapter, the following civil forfeitures payable for the benefit of the city:
(1) For failure to comply with any provision of this chapter, for which a penalty is not otherwise specifically provided, the penalty shall be up to $1,000.00 plus up to $200.00 per day for each day of the violation.
(2) For failure of the operator to comply with any provision of a permit, the penalty shall be up to $100.00 per day.
(3) Notwithstanding anything to the contrary, in the event that operator ceases to operate as a business, the amount of any penalties the city may be eligible to collect as a result of the cessation of the business shall not exceed $50,000.00.
(d) City's Right to Revoke. In addition to all other rights which the city has pursuant to law or equity, the city reserves the right to revoke, terminate or cancel any operator's permit issued pursuant to this chapter, and all rights and privileges pertaining thereto, in the event that:
(1) The operator violates any material provision of this chapter or its permit and after receipt of written notice fails to cure such violation within 30 days, or such longer period of time for those violations which cannot be reasonably cured within 30 days; or
(2) The operator attempts to evade any of the provisions of the chapter or its permit and refuses to cure it; or
(3) The operator practices any fraud or deceit upon the city or any subscriber or engages in a continuing pattern of violation of the provisions of this chapter or its permit; or
(4) The operator becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt; or
(5) The operator commits any act or fails to act in such a manner as to violate any state or federal law or regulation, which would give rise to the city's right to revoke, terminate or cancel, and after receipt of written notice fails to cure such violation within 30 days, or such longer period of time for those violations which cannot be reasonably cured within 30 days.
(e) Revocation Procedures In the event the Mayor determines that any operator may be subject to revocation for violation of the provisions of Section 793.06(d), the city may make a written demand on the operator that the operator remedy such violation and that continued violation may be cause for revocation of said operator's permit. If the violation is not remedied to the satisfaction of the Mayor within 30 days following such demand, the Mayor shall call a hearing before the Compliance Committee to determine whether there is evidence upon which the operator's permit may be revoked by the city. The Mayor shall provide the operator written notice concerning the revocation hearing. The reasons alleged to constitute cause for revocation shall be recited in the notice, with said notice affirmatively reciting the causes that need to be shown by the city to support a revocation.
(1) The Mayor, or his designate, shall convene the hearing of the Compliance Committee and establish the hearing procedures.
(2) The Compliance Committee shall determine whether or not the violation set forth in the notice has occurred, whether or not the violation by the operator is due to Force Majeure, and whether or not the violation provides cause upon which the operator's permit may be revoked. If the Compliance Committee determines there is a violation by the operator, the Compliance Committee shall direct the operator to correct or remedy the same within such reasonable time, in such manner and upon such reasonable terms and conditions as the Compliance Committee may direct.
(3) If the Compliance Committee determines that the operator's performance of any of the terms, conditions, obligations, or requirements of this chapter or the permit were prevented or impaired due to Force Majeure, such inability to perform shall be deemed to be excused to the extent caused by such Force Majeure and no penalties or sanctions shall be imposed as a result thereof, provided the operator has notified city in writing within 30 days of its discovery of the occurrence of such an event of Force Majeure.
(4) If the Compliance Committee determines there was a violation which provides cause upon which the operator's permit may be revoked, then the Compliance Committee may recommend to City Council, in writing, the permit be revoked and canceled and of no further force and effect unless there is compliance within such reasonable period as the Compliance Committee may fix provided no opportunity for compliance need be granted for fraud or misrepresentation.
(5) The issue of revocation shall be placed upon the City Council agenda no sooner than at the expiration of the time set for compliance. The operator shall be provided written notice as to when the issue of revocation will be considered by the City Council. The City Council shall review the recommendation of the Compliance Committee and the record before the Compliance Committee, along with any evidence as to the operator's remedial actions to achieve compliance which may be provided by the Mayor or the operator. After hearing, the City Council may terminate the operator's permit forthwith upon finding that there is cause upon which to revoke the operator's permit and that the operator has failed to achieve compliance, except failure to achieve compliance need not be shown where the violation involves fraud or misrepresentation, the City Council may further extend the period for compliance, at its discretion, reserving the City Council's right to terminate the operator's permit after further hearing before City Council, if compliance is not achieved by the operator.
(6) Termination of an operator's permit by City Council shall be deemed a final administrative action by the city after which the parties may pursue their remedies pursuant to this chapter or any other remedy, legal or equitable.
(Ord. 91-99. Passed 7-26-99.)