(a) Each provider shall pay to the city an annual amount equal to 5%, or an amount set by the Federal Communications Commission (FCC), of its gross revenues as compensation for rights granted under this chapter and under each provider’s respective franchise agreement or competitive video service agreement.
(b) Payments due to the city under this section shall be computed at the end of each calendar quarter. Payments shall be due and payable for each month not later than 30 days from the last day of each quarter. Each payment shall be accompanied by a brief report showing the basis for the computation and such other relevant facts as may be required by the city.
(c) 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 sums payable under the provisions of this section.
(d) The city shall have the right to audit and recompute any amounts determined to be payable in satisfaction of the fees set forth in this section. Any additional amount due the city as a result of the audit shall be paid by the provider within 30 days after the provider receives a written notice from the city. The notice which the city sends to the provider shall include a copy of the audit report. The provider shall pay the cost of the audit if the city determines that the annual payment to the city for the preceding year is thereby increased by more than 5%.
(e) In the event that payment is not made on the due date, interest on the amount due shall accrue from such date at the lesser of:
(1) The annual rate of 12%; or
(2) The maximum rate permitted by law.
(f) Any interest payments made in accordance with this section are the exclusive obligation of the provider and shall not be passed on directly or indirectly to the subscribers.
(g) No other payments or contributions made by, or the services, equipment, facilities, support, resources or other activities to be provided or performed by a provider at the direction of the city or otherwise pursuant to this chapter or the provider’s respective franchise agreement or competitive video service agreement, are chargeable against the compensation payments to be paid to the city pursuant to this section.
(h) With the exception of the fees provided for by this section, each of the payments or contributions made by, or the services, equipment, facilities, support, resources or other activities to be provided by a provider, are within the exclusions from the term “franchise fee” as set forth in § 622(g)(2) of the Cable Act (47 U.S.C. § 542(g)(2)).
(i) The fees and interest payments provided for by this section are not deemed to be in the nature of a tax, and are in addition to any and all taxes of general applicability or other fees or charges which a provider shall be required to pay to the city or any state or federal agency or authority.
(j) A provider shall not apply the compensation or other payments to be made to the city pursuant to this section as a deduction from, or a credit against, any city taxes of general applicability (other than income taxes) or other city fees or charges, each of which shall be deemed to be separate and distinct obligations of the provider.
(k) A provider shall not apply any federal, state, local or any other form of taxes, governmental fees or charges as a deduction from, or credit against, any fees or interest required pursuant to this section, each of which shall be deemed to be separate and distinct obligations of the provider.
(Ord. 2007-106, passed 5-21-2007)