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HomeMy Public PortalAboutORD 00/05ORDINANCE NO. 0015 AN ORDINANCE OF THE TOWN OF GULF STREAM, FLORIDA ASSESSING A FEE ON TELECOMMUNICATIONS COMPANIES THAT OCCUPY MUNICIPAL RIGHTS -OF -WAY FOR TELECOMMUNICATIONS FACILITIES; PROVIDING FOR WHEN PAYMENTS ARE DUE; PROVIDING FOR INTEREST; PROVIDING FOR REVIEW OF RECORDS; PROVIDING A SAVINGS CLAUSE; PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 337.401, Florida Statutes (2000), references fees or other consideration which municipalities may require from telecommunications companies to occupy municipal rights -of -way for telecommunications facilities; and WHEREAS, it is the Town's intent to establish fees for occupation of the Town's rights -of -way for telecommunications facilities of telecommunications companies not otherwise paying a fee to the Town for occupation of the Town's rights -of -way; and WHEREAS, it is the Town's intention that any telecommunications company paying fees for the occupation of the Town's rights -of -way for telecommunications facilities as of the effective date of this Ordinance shall continue to pay fees to the Town as the company has been paying them and that any other telecommunications company occupying the Town's rights -of -way for telecommunications facilities pay the fees for occupation set forth in this Ordinance. BE IT ORDAINED BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, FLORIDA: SECTION 1. Purpose and application. The purpose of this Ordinance is to establish fees for occupation of the Town's rights -of -way for telecommunications facilities of telecommunications companies not otherwise paying a fee to the Town for occupation of the Town's rights -of -way. Any telecommunications company paying fees for the occupation of the Town's rights -of -way for telecommunications facilities as of the effective date of this Ordinance shall continue to pay fees to the Town as the company has been paying them. The fees imposed pursuant to this Ordinance shall apply to all telecommunications companies occupying the Town's rights -of -way for telecommunications facilities and not otherwise paying a fee to the Town for occupation of the Town's rights -of -way. The fees imposed pursuant to this Ordinance are a fee and not a tax as specified in Section 337.401, Florida Statutes (2000); consequently, (1) the payments to be made pursuant to this Ordinance shall not be deemed to be in the nature of a tax; (2) such payments shall be in addition to any and all taxes of a general applicability; and (3) the fee specified herein is consideration for occupation of the Town's rights -of -way, including all public easements, for the purpose of erecting, constructing and maintaining telecommunications systems. SECTION 2. Fee for telecommunications company occupation of rights -of -way. (a) (i) Any telecommunications company providing local telephone service, as defined in Section 203.012(3), Florida Statutes (2000), in the Town and that is occupying municipal streets or rights -of -way within the corporate limits of the Town with poles, wires or other fixtures shall pay to the Town a fee in the amount of one percent (1 %) of the gross receipts on recurring local service revenues for services provided within the corporate limits of the Town by such telecommunications company. Included within the fee are all taxes, licenses, fees, in -kind contributions accepted pursuant to Section 337.401, Florida Statutes (2000), and other impositions except ad valorem taxes and amounts for assessments for special benefits, such as sidewalks, street pavings, and similar improvements, and occupational license taxes levied or imposed by the Town upon the telecommunications company. (ii) In the event that a telecommunications company which provides telecommunications services defined as toll services in Section 203.012 (7), Florida Statutes (2000), occupies the Town's rights -of -way, the telecommunications company shall pay to the City annually Five Hundred Dollars per linear mile, which amount is prorated for any portion thereof, for any cable, fiber optic, or other pathway that makes physical use of the Town's rights -of -way. Such annual fee shall be prorated to reflect the expiration date of this Ordinance and shall be payable annually, in advance. If a telecommunications company that is required to pay a fee pursuant to this subparagraph (a) (ii) increases the amount of its facilities occupying the Town's rights -of -way after such advance payment has been made, but prior to the expiration date of this Ordinance, the fees due for the additional facilities shall be prorated and paid in full at the time the facilities are installed in the Town's rights -of -way. The fee or other consideration imposed pursuant to this subsection (ii) shall not apply in any manner to any telecommunications company which provides local telephone service as defined in Section 203.012(3), Florida Statutes (2000), for any services provided by such telecommunications company. (iii) Telecommunications company, as used in this Ordinance, shall have the meaning set forth in Section 364.02(12), Florida Statutes (2000). (b) The fees provided for in subsection (a)(i) shall be paid by the telecommunications company to the Town in [quarterly] installment(s). The installment payment(s) shall be based upon such gross receipts on recurring local service revenues for the immediately preceding installment period or portion thereof after the effective date of this Ordinance, and shall be made within 30 calendar days following the end of the period. Past due payments or underpayments shall bear interest accrued from the last day of the [quarter] for which the payment was due. Interest shall be paid atthe Florida statutory rate of interest on judgments as established by Section 55.03, Florida Statutes (2000). Payments shall include a statement as to how the fee amount was determined and the statement shall be certified by the telecommunications company's chief financial officer or other duly authorized representative of the company. (c) If the Town wishes to verify the payments due to the Town under this section, the telecommunications company shall permit the Town or a designated representative of the Town, upon reasonable advance written notice, and during normal business hours at the location of the telecommunications company where such records are maintained in the Town, at another location satisfactory to the Town, or elsewhere pursuant to (i) or (ii) below, to review or audit the telecommunications company's billing and payment records kept in the ordinary course of business upon which the payments were based. If a telecommunications company's records are not maintained in the Town, the telecommunications company shall either: (i) pay all reasonable expenses, including travel, following the provisions of subsections 112.061 (6), (7) and (8), Florida Statutes (2000), to the Town for the Town to have a review or audit performed; or (ii) provide the Town with access to copies of the telecommunications company's records in the Town or within 55 miles of the Town or by an electronic method satisfactory to the Town. However, without the specific written consent of a telecommunications company's audit representative, no company records may be duplicated or taken from the telecommunications company's premises, and the Town shall maintain the confidentiality of the information disclosed in these records and use the information solely for the purposes of verifying payments by the telecommunications company. No acceptance of payment shall be construed as a release or as an accord and satisfaction of any claim the Town may have for sums due and payable under this Ordinance unless the Town agrees in writing. In the event that the Town, pursuant to final audit findings, determines that there exists a difference between the amount due to the Town and the amount paid to the Town, indicating an underpayment to the Town, in excess of five percent (5 %) of the amount due, such telecommunications company shall pay all reasonable costs, fees and expenses of the audit. (d) This Ordinance is adopted consistent with the provisions of Section 337.401, Florida Statutes (2000), and other applicable provisions of law. This section shall not be construed as a waiver or limitation of the power of the Town to prescribe and enforce reasonable rules and regulations pursuant to applicable provisions of law. (e) If required by applicable Town ordinances, codes or regulations, a telecommunications company shall be registered with the Town and obtain all permits that may be required by the Town regarding occupation of the Town's public rights -of -way for telecommunications facilities. SECTION 3 . The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall, for any reason, be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses, and phrases of this Ordinance but shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. 2 SECTION 4. The effective date of this Ordinance shall be immediately upon its passage by the Town Commission. This Ordinance shall no longer be of effect as of October 1, 2001. PASSED AND ADOPTED in a regular, adjourned session on first reading this 8th day of December , 2000, and for a second and final reading on this 12th day of January 2001. VAY ZI ATTEST: 7/; 1, w t - 7, OWN CLERK TOWN COMMISSION