§ 70-172. Franchise fees; audits; inspection of records.

(a)

The grantee shall pay monthly to the city as consideration for the privilege granted under the franchise for the use or occupancy of a communications system within the public ways of the city and the expense of regulation pursuant to the franchise incurred by the city, a sum of money equal to one percent of the gross receipts on recurring local service revenues derived directly or indirectly during each calendar month from services provided within the city limits by the grantee, including in said revenues the reasonable value of nonmonetary compensation and services.

(b)

Within 15 calendar days after the close of each calendar month, the grantee shall pay the franchise fee as provided in subsection (a) above, and file, with the city's director of finance, a statement, signed by an authorized accounting or financial representative of the grantee, of the gross receipts on recurring local service revenues derived in the proceeding month. Acceptance of any franchise fee payment shall not be deemed a waiver or release of any claims the city may have for additional sums, nor be construed as an accord that the amount paid is correct.

(c)

If such consideration is not received by the city within such period, the grantee shall pay interest on any such unpaid portion thereof at the lower of the rate of 18 percent per annum, or the highest rate allowed by law, from the first day thereafter until paid to the city, and the grantee shall reimburse the city for the actual and reasonable out-of-pocket costs, including attorney's fees, of the city associated with collecting any sums of money grantee is required to remit to the city pursuant to this chapter.

(d)

The sums of money to be paid by grantee to the city under this section are compensation and consideration for the use by grantee of the city's rights-of-way for the construction, maintenance and operation of a telecommunications system and are not taxes, as allowed by the Florida Constitution, the general or special laws of the State of Florida or any other ordinances of the city. The grantee shall at all times continue to be subject to public service taxes (F.S. § 166.231), ad valorem taxes (F.S. § 166.211), and such other taxes, charges or fees as may be lawfully authorized by the Florida Constitution, the general of special laws of the State of Florida, the provisions of the Municipal Home Rule Powers Act (F.S. ch. 166) or the ordinances of the city.

(e)

In the event the maximum franchise fee authorized by the laws of the state shall be increased beyond the current amount of one percent of the gross receipts on recurring local service revenues as prescribed by F.S. § 337.401, the city shall be authorized, upon 30 days' written notice to the grantee, to unilaterally amend this chapter and prospectively (from the effective date of such change in the laws of the state) increase the franchise fee provided for herein to the maximum franchise fee authorized by the laws of the state; provided that the city increases the franchise fees for companies offering similar services by an equal percentage.

(f)

The grantee, its employees, agents and contractors shall make available for examination by the city or the city's authorized representative or agent, during normal business hours, the books, records and accounts and other documentation of grantee (collectively referred to herein as the "reports") that, as determined by the city, are necessary to determine the accuracy of the gross receipts on recurring local service revenues upon which the franchise fee payment is based, and shall permit the city, or its authorized representative or agent, to make and remove copies of the reports, including without limitation, computer disks, computer printouts and any other customer billing data. In the event that these reports are not available to the city within the city limits, the grantee shall reimburse the city for the reasonable travel expense of the city's representatives and agents resulting from said travel to the location where the reports are maintained and shall permit the city to make and remove copies of the reports, including, without limitation, computer disks, printouts or other customer billing data. Upon request by the city, or its designated agent, the grantee shall provide a copy of any annual report filed with the PSC and a copy of all telephone service reports required to be filed with the PSC. The city, or its designated agents or representatives, shall have the right during the life of this franchise to examine the reports; provided, however, that the grantee shall be obligated to maintain its billing records only for the period of time required by the PSC (or its successor agency, or, in the event the grantee is no longer subject to the jurisdiction of the PSC, for the period of time required by the city) and that any examination conducted after such period shall be confined to the billing records then available. No later than 30 days after the request of the city, or its agent or representative, the grantee shall supply to the city, a copy of the reports. Such copy shall be in the media requested by the city provided that it is economical and practical for the grantee to do so; however, in no event shall paper copies of requested documentation be deemed uneconomical or impractical. The city shall have no obligation to prevent the disclosure of audit information to a third party where such party has properly requested the disclosure of such information from the city pursuant to applicable state law. The city shall promptly advise the grantee so that the grantee may seek such relief as it may obtain to prevent the disclosure of the information to the third party. Grantee shall indemnify and hold the city harmless for any cost and expense, including but not limited to, reasonable attorney's fees, incurred by the city as a result of this paragraph, whether or not suit is filed.

(g)

The cost of the audit will be borne by the grantee if as a result of the audit, the city determines, and such determination is upheld if challenged, the grantee has underpaid the franchise fees owed in an amount equal to or exceeding two percent of the franchise fees actually paid over the audit period.

(h)

Any transaction or arrangement which has the effect of circumventing payment of required franchise fees and/or evasion of payment of franchise fees by noncollection, nonreporting or gross receipts, collection of revenues by affiliates, bartering or any other means which evade the actual collection of gross revenues by a grantee for services is prohibited.

(Ord. No. 99-46, § 1, 8-12-99)