Section 4.71.110 State of art review.

1. Subject to the provisions of this section, the City may require the Franchisee to upgrade the System to meet the cable-related needs of its subscribers. The City shall not require the Franchisee to upgrade the System until it has conducted a review of the Franchise. The review by the City shall take place not more than twice during the term of this Franchise. A review may not commence prior to the fourth (4^th) or after the tenth (10^th) anniversary of the effective date of this Franchise.

2. The following factors shall be considered in a review:

a. characteristics of the existing System;

b. the state-of-the-art (as defined below);

c. characteristics of other systems utilizing state-of-the-art;

d. the additional benefits provided to customers by requiring the installation of the state-of-the-art;

e. the marketplace demand for the state-of-the-art determined by a third party independent research company chosen by both parties;

f. any associated rate increases and the costs of any state-of-the-art upgrades or changes;

g. availability of market competition; and

h. any additional factors deemed relevant by the City or the Franchisee.

3. If the City determines after review of the factors described in this section and discussions with Franchisee that such upgrade is warranted, it will order a public hearing to consider such action and to receive public comment. Notice of such hearing shall be provided to Franchisee and the public no later than thirty (30) days prior to such hearing. If, after such hearing, the City and Franchisee reasonably determine that the upgrade is warranted and that provision has been made to allow Franchisee a fair rate of return on its investment, the City and Franchisee will negotiate in good faith to amend the Franchise as required. In examining the economic feasibility of required system improvements, the parties shall consider whether to extend the term of this Franchise to permit a lengthier recovery of the cost of the improvements in order to lessen the burden of subscribers.

4. “ state-of-the-art" shall mean:

a. Equipment that is readily available with reasonable delivery schedules from two (2) or more local or regional sources of supply; and/or

b. Equipment that is presently installed and state-of-the-art involves activation of existing capabilities; and

c. Equipment that is in widespread, regular use throughout at least three other systems operated by the Franchisee in markets with characteristics similar to the City (including, but not necessarily limited to size, population, density, demographics, infrastructure, and subscriber penetration) or other systems owned by others in the state of Iowa with characteristics similar to the City. (Ord. 99-7781, S-36880, 1978)