753.06 GENERAL FINANCIAL AND INSURANCE PROVISIONS.
(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 seventy-two hours written notice, at any time during normal business hours at the provider's offices or elsewhere, any and all books, records, maps, plans, financial statements and other like materials of the provider which are reasonably necessary to monitor and audit compliance with the terms of this chapter 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 provider shall cooperate with the City in the performance of any such inspection and audit.
(2) On or before April 1 of 1996 and each year thereafter, the provider shall prepared an annual report, verified by an duly authorized officer of Provider, showing the yearly total gross revenues from the provision of cable service or competitive video services in the Franchise territory and payments to the City.
(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 provider when reasonably necessary to monitor compliance with Federal law or regulations, this chapter or its permit.
(b) Payment to City.
(1) The Provider shall pay to the City an annual amount of five percent (5%) 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 "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. Each payment shall be accompanied by a brief report showing the basis for the computation. 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 provider 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 (b)(6) hereof. If the payment was overestimated, the provider 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 sums payable under the provisions of this chapter. All amounts paid shall be subject to audit by the City.
(4) With each annual report required pursuant to subsection (a) hereof, the provider shall provide the City with a certification of the gross revenues for the preceding year verified by a duly authorized officer of Provider. The certification shall be attested to by the comptroller or treasurer and president or general manager of the provider. 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 provider.
(5) All payments to the City shall be:
A. 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
B. 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 three hundred percent (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 permit fee applicable to all providers.
(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 provider's permit are set forth below; provided, however, in no event shall the total penalty amount payable by the provider be in excess of ten thousand dollars ($10,000) per occurrence or twenty thousand dollars ($20,000) during any calendar year. As a result of any acts or omissions by the provider pursuant to this 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 one thousand dollars ($1,000) plus up to two hundred dollars ($200.00) per day for each day of the violation.
(2) For failure of the provider to comply with any provision of a permit, the penalty shall be up to one hundred dollars ($100.00) per day.
(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 provider's permit issued pursuant to this chapter, and all rights and privileges pertaining thereto, in the event that:
(1) The provider violates any material provision of this chapter or its permit and after receipt of written notice fails to cure such violation within thirty days, or such longer period of time for those violations which cannot be reasonably cured within thirty days; or
(2) The provider attempts to evade any of the provisions of the chapter or its permit and refuses to cure it; or
(3) The provider 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 provider becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt; or
(5) The provider 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 thirty days, or such longer period of time for those violations which cannot be reasonably cured within thirty days.
(e) Revocation Procedures. In the event the Mayor determines that any provider may be subject to revocation for violation of the provisions of subsection (d) hereof, the City may make a written demand on the provider that the provider remedy such violation and that continued violation may be cause for revocation of said provider's permit. If the violation is not remedied to the satisfaction of the Mayor within thirty days following such demand, the Mayor shall call a hearing before the Compliance Committee to determine whether there is evidence upon which the provider's permit may be revoked by the City. The Mayor shall provide the provider 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 provider is due to force majeure, and whether or not the violation provides cause upon which the provider's permit may be revoked. If the Compliance Committee determines there is a violation by the provider, the Compliance Committee shall direct the provider 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 provider'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 provider has notified City in writing within thirty 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 provider's permit may be revoked, then the Compliance Committee may recommend to Council, in writing, the permit be revoked and cancelled 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 Council's agenda no sooner than at the expiration of the time set for compliance. The provider shall be provided written notice as to when the issue of revocation will be considered by Council. Council shall review the recommendation of the Compliance Committee and the record before the Compliance Committee, along with any evidence as to the provider's remedial actions to achieve compliance which may be provided by the Mayor or the provider. After hearing, Council may terminate the provider's permit forthwith upon finding that there is cause upon which to revoke the provider's permit and that the provider has failed to achieve compliance, except failure to achieve compliance need not be shown where the violation involves fraud or misrepresentation, Council may further extend the period for compliance, at its discretion, reserving Council's right to terminate the provider's permit after further hearing before Council, if compliance is not achieved by the provider.
(6) Termination of an provider's permit by 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. 30-07. Passed 4-3-07.)