The Township finds that the streets and public
rights-of-way of the county, state, and Township to be used by a franchisee
for the operation of a cable television system are valuable public
property acquired and maintained by the county, state, and Township
at great expense to the taxpayers. The Township further finds that
the grant of a franchise to use streets and public rights-of-way is
a valuable property right without which a franchisee would be required
to invest substantial capital.
A.
The Township shall be paid a franchise fee in an amount
no less than the greater of 5% of its gross annual revenues, or the
maximum amount permitted under applicable law. Every franchise agreement
shall specify the percentage the franchise is initially required to
pay as a percentage of gross revenues, but if the maximum amount permitted
increases, franchisee shall, simultaneously with the effective date
of any change in any law or, if later, the effective date of any regulation
required to implement the law, increase the franchise fee to the maximum
allowed by that law.
B.
The franchise fee is in addition to all other taxes
and payments that the franchisee may be required to pay under any
federal, state, or local law and to any other tax, fee, or assessment
imposed by utilities and cable operators for use of their services,
facilities or equipment.
C.
Payment of the franchise fee shall not be considered
in the nature of a tax.
D.
No acceptance of any payment by the Township shall
be construed as a release or an accord and satisfaction of any claim
the Township may have for further or additional sums payable as a
franchise fee under this chapter or for the performance of any other
obligation of the franchisee.
E.
In the event any franchise fee payment or recomputation
amount is not made on or before the date specified herein, the franchisee
shall pay additional compensation and interest charges computed from
such due date, at an annual rate equal to the commercial prime interest
rate of the Township's primary depository bank during the period such
unpaid amount is owed.
F.
The franchise fee and any other costs assessed by
the Township against a franchisee shall be paid quarterly to the Township
and shall commence as of the effective date of the franchise, unless
otherwise agreed in the franchise agreement. The Township shall be
furnished at the time of each payment with a statement verified by
the franchisee's general manager reflecting the total amount of semi-annual
gross revenues for the payment period. Quarterly payments shall be
made to the Township no later than 45 days of March 30, June 30, September
30 and December 31. Quarterly computation dates are the last days
of the months of March, June, September and December. An annual statement
of gross revenues shall be furnished to the Township by an independent,
certified public accountant approved by the Township. A franchisee
shall provide an annual complete audit statement for each calendar
year within 90 days from the end of that calendar year.
G.
The Township shall have the right to inspect and copy, subject to the provisions regarding proprietary information in § 94-35 of this chapter, the franchisee's records and the right to audit and to recompute any amounts determined to be payable under this chapter for a period of three years from the date of payment. Audits shall be at the expense of the Township unless the audit discloses an underpayment in excess of 3%, in which case the costs of the audit shall be borne by the franchisee as a cost incidental to the enforcement of the franchise. Any additional amounts due to the Township as a result of the audit shall be paid within 30 days following written notice to the franchisee by the Township of the underpayment, which notice shall include a copy of the audit report, unless written notice of disagreement is filed by the franchisee with the Township within such time period. In the case of a dispute, the issue shall be resolved through binding arbitration in accordance with the procedures of the American Arbitration Association.
H.
The franchisee shall maintain its fiscal and financial
records in such a manner as to enable the Board to determine the cost
of assets of the franchisee which are used in providing cable services
within the Township.
