Fort Walton Beach Ordinance — 1382 Cable Communication Franchises — reading text

of the purchase price set forth above; and the Grantee shall execute such warranty, deeds or other instruments of conveyance to the City as shall be necessary for this purpose. (e) Arbitration. In the event the City and Grantee are unable to agree upon the value of the cable communications system within the time limits set forth above, either party may require by written notice to the other that the value of cable communications system be submitted to arbitration in the following manner: 1. The City and the Grantee shall each within fifteen (15) days after such written notice select an arbitrator who shall be a disinterested person with reasonable knowledge and experience relative to cable system valuation. The two arbitrators thus selected shall immediately thereafter select -25- a third arbitrator who shall likewise be a disinterested person having reasonable knowledge and experience relative to cable system valuation. 2. Within thirty (30) days after appointment of all arbitrators and upon ten (10) days written notice to the parties, the panel of arbitrators shall commence a hearing on the issue of valuation and shall receive all relevant information from the parties. 3. The hearing shall be recorded and may be transcribed at the request of either party. 4. If renewal of a franchise is denied, the value of the system for purposes of this Subsection (n) (1) (e) shall be the fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the franchise itself. If a franchise is revoked, the value of the system, for purposes of this Subsection (n) (1) (e) shall be an equitable price within the meaning of Section 627 of the Cable Act. 5. Within thirty (30) days after the close of the hearing, the panel of arbitrators shall prepare findings and decision agreed upon by a majority of the panel which shall be filed with the City and served by mail upon the Grantee. The decision of the panel regarding the value of the system shall be final and binding upon the parties. Should there be no majority decision, the proceedings shall become null and void -~26- and shall be started anew, unless the parties extend by mutual agreement the time which the panel of arbitrators has to make a decision. 6. Either party may seek judicial relief in the following circumstances: (a) (b) (c) (d) (e) (f) (g) (h) (i) 7. a party fails to select an arbitrator; the arbitrators fail to select aie third arbitrator; one or more arbitrators is unqualified; designated time limits have been exceeded; the panel has not proceeded expeditiously; the decision was procured by corruption, fraud or undue means; there was evident partiality on the part of one or more arbitrators; the arbitration panel exceeded its authority hereunder; or based upon the record, the panel abused its discretion. In the event a court of competent jurisdiction determines that judicial relief is appropriate to the circumstances set forth above, the court in its discretion may order the arbitration procedure repeated and issue findings, orders and directions. 8. The expenses of the arbitrators shall be borne by -27- the party appointing each, and the expenses of the third arbitrator and those expenses incurred by the panel as a whole shall be borne equally by the parties. (o) FRANCHISE RENEWAL. Upon completion of the term of any franchise granted under this Ordinance, the City shall proceed with the renewal process in accordance with the provisions of Section 626 of the Cable Act. (p) FRANCHISE FEES (1) Intent. Because the City finds that: (a) The public rights of way to be used by the Grantee in the operation of its system within the boundaries of the franchise area are valuable public properties acquired and maintained by the County, State, and City at great expense to its taxpayers, and (b) The grant to the Grantee to the said streets is a valuable property right without which the Grantee would be required to invest substantial capital in right-of-way costs and acquisitions, and (c) The administration of this Ordinance or the franchise imposes upon the City additional regulatory responsibility and expense, the Grantee of any franchise hereunder shall pay to the City a franchise fee in an amount as designated in the franchise. This franchise fee shall he in addition to any other fee and commence as of the effective date of the franchise. In addition to other financial reports and statements required hereby, the City shall be furnished a statement at the end of each calendar year, -28- certified by the chief financial officer of the Grantee, reflecting total amounts of gross revenue, by revenue source; all other charges; and computation of the fee payable for each such annual period. (2) Payment. This payment shall be in addition to any and all fees or assessments of general applicability which are now or may be required hereafter to be paid pursuant to any Federal, State, or Local law. (3) Acceptance. Except as otherwise provided by law, no acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee under this Ordinance or for the performance of any other obligation of the Grantee. (4) Additional Compensation. In the event that any franchise payment or recomputed amount is not made on or before the dates specified herein, Grantee shall pay as additional compensation an interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate of the City primary depository bank during the period that such unpaid amount is owed. (5) Payments. The franchise fee and any other cost or damages assessed shall be payable monthly to the City of Fort Walton Beach. The Grantee shall file a complete and accurate verified statement of all gross revenue within the City during the period for which said monthly payment is made, and said payment ~29- shall be made to the City not later than fifteen (15) days after the expiration of each calendar month. (6) Right of Inspection. The City shall have the right to inspect the Grantee's income records and the right to audit and to recompute any amounts determined to be payable under this Ordinance. Audits shall be at the expense of the City unless the audit discloses an underpayment which equals or exceeds seven and one-half percent (7.5%) of the payments made, in which case the costs of the audit shall be borne by the Grantee. Any additional amount due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the Grantee by the City which notice shall include a copy of the audit report unless written notice of disagreement if filed with the City within that time, (q) FORFEITURE OR REVOCATION. (1) Grounds for Revocation. The City 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 and breach under the Ordinance and the franchise grant: (a) If the Grantee shall default in the performance of any of the material obligations under this Ordinance or under such documents, contracts and other terms and provisions entered into by and between the City and the Grantee. -30- (b) If the Grantee shall fail to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond as required herein. (c) If the Grantee shall knowingly violate any lawful orders or rulings of any regulatory body having jurisdiction over the Grantee relative to this Ordinance or the franchise. (d) If the Grantee is convicted, by a court of competent jurisdiction, of any fraud or deceit upon the City, fraud or deceit on cable subscribers as a whole, or fraud or deceit on any class or group of subscribers (e.g. senior citizens, basic subscribers, premium subscriber, etc.). (e) The Grantee's construction schedule is delayed later the schedule contained in the franchise or beyond any extended date set by the City. (f) The Grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt. (g) Failure to restore service after ninety-six (96) consecutive hours of total system outage interrupted service, except when approval for such interruption is obtained from the City Manager. Failure of the Grantee to restore service which is the direct result of strikes, acts of nature, or other matters beyond the control of Grantee shall be exempted from the computation of the ninety-six consecutive hours of total system outage interrupted service time. -31- (h) Material misrepresentation of fact in the application for or negotiation of the franchise or any extension or renewal thereof. (i) If the Grantee ceases to operate the cable communications system for any reason within the control of the Grantee. (j) Failure by Grantee to fully comply with a pole use agreement or other appropriate agreement with the City of Fort Walton Beach and/or any other necessary parties for usage of poles or other appropriate facilities necessary to the satisfactory operation of the cable television system. (k) Failure by Grantee to comply with access provisions of this Ordinance or the franchise. (2) Effect of Circumstances Beyond Control of Grantee. The Grantee shall not be declared at fault or be subject to any sanction under any provision of this Ordinance in any case, in which performance of any such provision is prevented due to acts of God and other reasons beyond the Grantee's control. A fault shall not be deemed to be beyond the Grantee's control if committed by a corporation or other business entity in which the Grantee holds a controlling interest whether held directly or indirectly. (3) Effect of Pending Litigation. Except where permitted by law, pending litigation or any appeal to any regulatory body or court having jurisdiction over the Grantee shall not excuse the -32- Grantee from the performance of its obligations under this Ordinance or the franchise. Failure of the Grantee to perform such obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section. (4) Procedure Prior to Revocation. (a) The City shall make written demand that the Grantee comply with any such requirement, limitation, term condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the Grantee continues for a period of thirty (30) days following such written demand, the City may place its request for termination of the franchise upon a regular City Council meeting agenda. The City shall cause to be served upon such Grantee at least fourteen (14) days prior to the date of such Council meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published by the City Clerk at least once, seven (7) days before such meeting in a newspaper of general circulation within the City. (b) The Council shall hear any persons interested therein, and shall determine in its discretion, whether or not any failure, refusal or neglect by the Grantee was with just cause. (c) If such failure, refusal or neglect by the Grantee was -33- with just cause, as determined by the Council, the Council shall direct the Grantee to comply within such time and manner and upon such terms and conditions as are reasonable. (d) If the Council shall determine such failure, refusal, or neglect by the Grantee was without just cause, then the Council shall, by resolution, declare that the franchise of the Grantee shall be terminated and bond forfeited unless corrective action is completed or undertaken by the Grantee within ninety (90) days. (5) Disposition