(A) During any period during which the city opts to forego collecting a franchise fee in lieu of participating in the multichannel video programming and service tax scheme under KRS 136.600 et seq., grantee shall not be required to pay franchise fees.
(B) The telecommunications excise tax distribution from the state is not a payment in lieu of any tax, fee or other assessment except as specifically provided in this chapter, or as required by applicable law. By way of example, and not limitation, permit fees and business license taxes are not waived and remain applicable as provided by law to the extent they are not franchise fees. Additionally, the city may at any time impose any fees or taxes consistent with state or federal law, including, but not limited to property taxes, and occupational license fees.
(C) If the city exercises its constitutional right to collect franchise fees, grantee shall pay a quarterly franchise fee to the city, which shall be equal to the greater of (a) the minimum annual franchise fee as defined herein and amended from time to time (“minimum annual franchise fee”); or (b) an amount equal to either (i) five percent (5%) of grantee’s gross revenues, which shall be payable quarterly and may be passed through to grantee’s customers, if grantee provides telecommunications service to customers within the city (“gross revenue-based franchise fee”), or (ii) an amount equal to $2 per lineal foot of facilities plus $3,000 per each wireless facility (other than small wireless facilities) and $270 per each small wireless facilities if grantee does not provide telecommunications service to end-users within the city (“facilities-based franchise fee”).
(D) Grantee’s first franchise fee payable under this chapter shall be paid to the city 45 days after the city gives notice to the grantee that the city has exercised its constitutional right to collect franchise fees. Such payment will be prorated for the remaining calendar year (rounded to the nearest month). Thereafter, grantee shall pay each franchise fee (as applicable) in accordance with the schedule below.
(E) Minimum annual franchise fee payments, if applicable, to the city shall be paid on or before April 15th of each calendar year during the term of the franchise.
(F) Gross revenue-based franchise fee payments, if applicable, to the city shall be computed based on grantee’s gross revenues from each calendar year quarter period (January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31) and paid on or before the forty-fifth day following each calendar quarter period during the term of the franchise.
(G) Facilities-based franchise fee payments, if applicable, to the city shall be computed based on grantee’s lienal foot of facilities in the city as of January 1 of each calendar year and paid on or before April 15th of each calendar year during the term of the franchise.
(H) Payment not received by the city by the due date shall be assessed interest equal to the lesser of (i) one percent (1%) per month, or (ii) the highest rate permitted by law. Interest shall be compounded annually. Interest shall be due on the entire late payment from the date on which the payment was due until the date on which the city receives payment.
(I) Prior to making each payment to the city, grantee shall file with the city a written report containing an accurate statement in summarized form, as well as in detail, of its calculation of the amount of the payment, verified by an officer or other authorized representative of grantee, setting forth its gross revenues according to their accounting subdivisions, and any deductions claimed for the period upon which the payment is computed. Such reports shall be in form satisfactory to the city.
(J) If any franchise fee is owed to the city, upon reasonable notice, the city shall have the right to inspect the grantee’s income records, the right to audit and to re-compute any amounts determined to be payable under any franchise granted pursuant to this chapter; provided, however, that such audit shall take place within 12 months following the close of each of the grantee’s fiscal years. If, as a result of such audit or review, the city determines that grantee has underpaid its fees to the city in any 12-month period by 10% or more, then, in addition to making full payment of the relevant obligation, grantee shall reimburse the city for all expenses incurred as a result of an audit or review and such payments shall be paid within the 30 days following written notice to the grantee by the city, which notice shall include a copy of the audit report and copies of all invoices for which the city seeks reimbursement.
(K) If any franchise fee is owed to the city, in the event that any franchise fee payment or recomputed amount is not made to the city on or before the applicable dates heretofore specified, interest shall be charged from such date as defined in this chapter.
(L) No accord and satisfaction. No acceptance by the city of any franchise fee or any other payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any franchise fee or any other payment be construed as a release of any claim of the city.
(M) The city reserves the right to require the grantee to collect any consumer or other tax or other fee that may be imposed by the city, the Commonwealth of Kentucky, or the federal government on telecommunications services.
(N) Notwithstanding any other provision of this chapter, the grantee shall be required to pay the government an amount intended to adequately compensate it for its permitting and inspection of the grantee’s construction activities in the rights-of-way pursuant to the code and all attorney’s fees that the government may incur relating to the franchising process, including but not limited to any attorneys’ fees incurred relating granting of the franchise and any transfer, renewal or modification of the franchise.
(Ord. 22-08, passed 4-12-22)