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e. Upon ten (10) days prior written notice, City shall have the right to conduct an <br /> independent audit of Grantee's records. If such audit indicates a Franchise Fee <br /> underpayment of five percent (5%) or more of the Franchise Fee due, the Grantee <br /> shall assume all of City's out-of-pocket costs associated with the conduct of such <br /> an audit. Grantee shall remit to City all applicable Franchise Fees and PEG fees <br /> due and payable together with all accrued interest as set forth in paragraph 7.1 (d) <br /> above within 30 days of receiving the audit statement. <br /> f. Grantee acknowledges and agrees that the Franchise Fees payable by Grantee to <br /> City pursuant to this section shall take precedence over all other material <br /> provisions of the Franchise and shall not be deemed to be in the nature of a tax, <br /> and shall be in addition to any and all taxes of general applicability and other fees <br /> and charges which do not fall within the definition of a Franchise Fee under 47 <br /> U.S.C. § 542. <br /> g. Grantee shall not apply or seek to apply all or any part of any taxes, fees or <br /> assessments of general applicability levied or imposed by the City or (including <br /> any such tax, fee or assessment imposed on both utilities and cable operators or <br /> their services) that do not fall within the definition of a Franchise Fee under 47 <br /> U.S.C. § 542 as a deduction or other credit from or against any of the Franchise <br /> Fees or other payments or contributions to be paid or made by Grantee to City <br /> pursuant to this Franchise which shall be deemed to be separate and distinct <br /> obligations of Grantee. <br /> (2) Periodic Evaluation, Review and Modification. City and Grantee acknowledge and agree <br /> that the field of cable television is rapidly changing and one which may see many <br /> regulatory, technical, financial, marketing, and legal changes during the term of this <br /> Franchise. Therefore, in order to provide for the maximum degree of flexibility in this <br /> Franchise, and to help achieve an advanced and modern Cable System, the following <br /> evaluation provisions will apply: <br /> a. The City reserves the right to adopt rules and regulations controlling the <br /> procedures as set forth below and the subjects for evaluation sessions. In the <br /> absence of any City action taken to exercise these rights, Grantee shall be subject <br /> to the procedures and the subjects described in this Section. <br /> b. The City may require, in its sole discretion, that the Grantee participate in <br /> evaluation sessions with the City at any time and from time to time during the <br /> term of this Franchise; provided, however, there shall not be more than one (1) <br /> evaluation session in any three (3) year period during the Term. However, <br /> nothing shall prohibit Grantee and City from mutually agreeing to have informal <br /> reviews as requested or deemed advisable by either party. <br /> c. Topics which may be discussed at any evaluation session include, but are not <br /> limited to, rates, Channel capacity, the System performance, programming, PEG <br /> Access, municipal uses of the System, Subscriber complaints, judicial rulings, <br /> FCC rulings and any other topics the City or Grantee may deem relevant. <br /> 19 <br /> 232860v1 <br />