§ 78-297. Franchise fee.

(a)

As of the effective date hereof, the State of Florida Communications Service Tax (F.S. Ch. 202), prohibits the obligations imposed on a franchisee in this section and this section 78-297 is severable from this article and has no effect on the remaining valid portions of this article. However, if state or federal law allows the city to impose the requirements of this section, the city expressly reserves the right to do so.

(b)

If permitted by applicable law, a franchisee, as compensation for the privilege granted under a franchise pursuant to this article for the use of the city's streets to construct and operate a cable system, shall pay to the city a franchise fee in an amount up to a maximum of either (i) five percent of the franchisee's gross revenues derived from the operation of its cable system within the city during the term of its franchise; or (ii) in the event the communications act or other applicable law is amended to permit the city to assess a franchise fee of a greater amount than that specified in (i) above, the franchisee agrees to pay to the city the new amount after a public hearing in which the public and franchisee are given an opportunity to comment on the impact of the higher fee. In no event shall a franchisee pay a franchise fee greater than the maximum permitted by applicable law.

(c)

A franchisee shall pay the franchise fee due to the city on a quarterly basis. Payment for each month shall be made to the city not later than 45 calendar days after the end of each calendar month.

(d)

A franchisee shall file with the city within 60 days after the expiration of each calendar year or portion thereof during which its franchise is in force, a financial statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year or portion thereof and a detailed explanation of the method of computation. The statement shall be certified by a duly authorized corporate officer. The franchisee will bear the cost of the preparation of such financial statements.

(e)

Subject to applicable law, any acceptance by the city of any franchise fee payment shall not be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the city may have for additional sums payable.

(f)

The franchise fee payment is not a payment in lieu of any other tax, fee or assessment, subject to applicable law.

(g)

If permitted by applicable law, the city, or its representative, may from time to time but not more than once in any 12-month period, and upon reasonable notice, inspect, audit any and all books and records of the franchisee relevant to the determination of gross revenues and the computation of franchise fees due, and may re-compute any amounts determined to be payable under the franchise. In the case of any franchise granted, renewed, modified or transferred on or after the effective date hereof the cost of the audit will be borne by the franchisee if, as a result of the audit, the city determines that the franchisee has underpaid the franchise fees owed in an amount equal to or exceeding two percent of the franchise fees actually paid. A franchisee shall make all books and records necessary to satisfactorily perform the audit readily available to the auditors in Palm Beach County for inspection and copying.

(h)

In the event that a franchise fee payment is not received by the city on or before the due date set forth in subsection (c) above, or is underpaid, any franchisee granted an initial franchise, renewal, modification or transfer on or after the date hereof shall pay a late charge of 18 percent per annum of the amount of the unpaid or underpaid franchise fee payment; provided, however, that such rate does not exceed the maximum amount allowed under Florida law. Any interest and/or late charges paid by franchisee is intended to be a charge incidental to the enforcing of a franchise within the meaning of Section 622 (g)(2)(D) of the Communications Act, 47 U.S.C. § 542(g)(2)(D), and may not be deducted from the franchise fee imposed by this article or any franchise agreement.

(i)

Unless prohibited by law, when a franchise terminates for whatever reason, the franchisee shall file with the city within 90 calendar days of the date it ceases operations in the city, a financial statement, audited by an independent certified public accountant and certified by the franchisee's chief or other duly authorized financial officer, showing the gross revenues received by the franchisee since the end of the previous fiscal year. Adjustments will be made at that time for franchise fees due to the date that the franchisee's operations ceased.

(Ord. No. 3806-04, § I, 10-25-2004)