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.
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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