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HomeMy Public PortalAbout2001-02 Assessing a Fee on Telecommunications Companies that Occupy Village's Rights-of-WayORDINANCE NO. 2001-2 AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, ASSESSING A FEE ON TELECOMMUNICATIONS COMPANIES THAT OCCUPY VILLAGE RIGHTS -OF -WAY FOR TELECOMMUNICATIONS FACILITIES; PROVIDING FOR WHEN PAYMENTS ARE DUE; PROVIDING FOR INTEREST; PROVIDING FOR REVIEW OF RECORDS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR EFFECTIVE DATE. WHEREAS, Section 337.401, Florida Statutes (2000), references fees or other consideration that municipalities may require from telecommunications companies to occupy municipal rights -of - way for telecommunications facilities; and WHEREAS, it is the intent of the Village of Key Biscayne (the "Village") to establish fees for occupation of the Village's rights -of -way for telecommunications facilities of telecommunications companies not otherwise paying a fee to the Village or having entered into an agreement with the Village for occupation of the Village's rights -of -way; and WHEREAS, it is the Village's intention that any existing telecommunications company paying fees for the occupation or having entered into an agreement for the payment of fees for the occupation of the Village's rights -of -way for telecommunications facilities as of the effective date of this Ordinance shall continue to pay fees to the Village as the existing telecommunications company has been paying them, or pursuant to the existing agreement between the company and the Village, and that any new telecommunications company occupying the Village's rights -of -way for telecommunications facilities pay the fees for occupation set forth in this Ordinance. IT IS HEREBY ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS: Section 1. The term "telecommunications company", as used in this Ordinance, shall have the meaning set forth in Section 364.02(12), Florida Statutes (2000). Section 2. The purpose of this Ordinance is to establish fees for occupation of the Village's rights -of -way for telecommunications facilities of telecommunications companies not otherwise paying a fee to the Village or not otherwise having an agreement with the Village for occupation of the Village's rights -of -way. Any telecommunications company paying fees or having an existing agreement with the Village for the occupation of the Village's rights -of -way for telecommunications facilities as of the effective date of this Ordinance shall continue to pay fees to the Village as the company has been paying them or pursuant to the existing agreement. Section 3. The fees imposed pursuant to this Ordinance shall apply to all telecommunications companies occupying the Village's rights -of -way for telecommunications facilities and which are not otherwise paying a fee to the Village or not under an existing agreement for occupation of the Village's rights -of -way. Section 4. 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 Village's rights -of -way, including all public easements, for the purpose of erecting, constructing and maintaining telecommunications systems. Section 5. The fees to be paid by telecommunications companies to the Village for occupation of the Village's rights -of -way shall be determined as follows: 2 (a) any telecommunications company providing local telephone service, as defined in Section 203.012(3), Florida Statutes (2000), in the Village and that is occupying municipal streets or rights -of -way within the corporate limits of the Village with poles, wires or other fixtures, shall pay to the Village 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 Village 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 Village upon the telecommunications company. (b) in the event that a telecommunications company that provides telecommunications services defined as toll services in Section 203.012(7). Florida Statutes (2000), occupies the Village's rights -of -way. the telecommunications company shall pay to the Village, annually, at a rate of Five Hundred Dollars ($500) per linear mile, which amount is prorated for any portion thereof, for any cable, fiber optics or other pathway that makes physical use of the Village'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 subsection increases the amount of its facilities occupying the Village'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 Village's rights -of -way. 3 © the fee or other consideration imposed pursuant to subsection (b) shall not apply in any manner to any telecommunications company that provides local telephone service as defined in Section 203.012(3), Florida Statutes (2000), for any services provided by such telecommunications company. Section 6. The fees provided for in Section 5(a) of this Ordinance shall be paid by the telecommunications company to the Village in quarterly installments. The installment payments 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 at the rate of eighteen percent (18%) per annum from the first day after the payment period until paid to the Village, and the company shall reimburse the Village for any actual and reasonable out- of-pocket costs associated with collecting any sums required to remit to the Village. 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. Section 7. If the Village wishes to verify the payments due to the Village under this section, the telecommunications company shall permit the Village or a designated representative of the Village, upon reasonable advance written notice, and during normal business hours at the location of the telecommunications company where such records are maintained in the Village, at another location satisfactory to the Village, or elsewhere pursuant to (a) or (b) below, to review or 4 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 Village, the telecommunications company shall either: (a) pay all reasonable expenses, including travel, following the provisions of subsections 112.061 (6), (7) and (8), Florida Statutes (2000), to the Village for the Village to have a review or audit performed; or (b) provide the Village with access to copies of the telecommunications company's records in the Village or within 50 miles of the Village or by an electronic method satisfactory to the Village. 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 Village shall maintain the confidentiality of the information disclosed in these records to the extent permitted by applicable law and shall 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 Village may have for sums due and payable under this Ordinance unless the Village agrees in writing. In the event that the Village, pursuant to final audit findings, determines that there exists a difference between the amount due to the Village and the amount paid to the Village, indicating an underpayment to the Village, in excess of five percent (5%) of the amount due, such telecommunications company shall pay all reasonable costs, fees and expenses of the audit. 5 Section 8. 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 Village to prescribe and enforce reasonable rules and regulations pursuant to applicable provisions of law. Section 9. If required by applicable Village Ordinances, Codes or Regulations, a telecommunications company shall be registered with the Village and obtain all permits that may be required by the Village regarding occupation of the Village's rights -of -way for telecommunications facilities. Section 10. Severability. 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 they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. Section 11. Effective Date. That this Ordinance shall be effective immediately upon adoption on second reading. This Ordinance shall expire upon the effective date of the tax rate established pursuant to the Communications Services Tax Simplification Law, Chapter 2000-260, Laws of Florida, Section 202.20(1)(b), Florida Statutes (2000). The expiration of this Ordinance shall not affect any fees that are due and unpaid prior to its expiration. PASSED AND ADOPTED on first reading this 9th day of January , 2001. PASSED AND ADOPTED on second reading this 23rd day of January , 2001. 6 MAYOR JOE I. RASCO ST: CONCHITA H. ALVAREZ, CMC, VILLAGE C APPROVED AS TO FORM AND LEGAL SUFFI hIA\f\t/---" RICHARD JAY WEISS, VILLAGE ATTORNEY 103041\ordinances\telecommunications fee 7 MIAMI DAILY BUSINESS REVIEW Published Daily except Saturday, Sunday and Legal Holidays Miami, Miami -Dade County, Florida. STATE OF FLORIDA COUNTY OF MIAMI-DADE: Before the undersigned authority personally appeared Octelma V. Ferbeyre, who on oath says that she is the Supervisor, Legal Notices of the Miami Daily Business Review f/k/a Miami Review, a daily (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Miami - Dade County, Florida; that the attached copy of advertise- ment, being a Legal Advertisement of Notice in the matter of VILLAGE OF KEY BISCAYNE ORDINANCE ASSESSING A FEE ON TELECOMMUNICATIONS COMPANIES, JANUARY 23, 2001 in the XXXX) Court, was published in said newspaper in the issues of Jan 11, 2001 Affiant further says that the said Miami Daily Business Review is a newspaper published at Miami in said Miami - Dade County, Florida, and that the said newspaper has heretofore been continuously published in said Miami -Dade County, Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter at the post office in Miami in said Miami -Dade County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that she has n ither paid nor promised any person, firm or corpora any • iscount, rebate, com- mission or refu . • for the •' pose of ecuring this advertise- ment for pub!' atio�� said new • • per. ETC. VILLAGE OF KEY BISCAYNE PUBLIC NOTICE Notice is hereby given that the following ordinance will be considered on Second Reeling -Wire Village Council of the Village of Key Biscayne at a meeting to be held on Tuesday, January 23, 2001 -,at 6:00 p.m., in the Council Chamber, located at 85 West McIntyre Street, 'Second Floor, Key Biscayne, Florida: AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, ASSESSING A FEE ON TELECOM-MUNICATIONS COMPANIES THAT OCCUPY VILLAGE RIGHTS -OF -WAY FOR TELECOMMUNICATIONS FACILITIES; PROVIDING FOR WHEN PAYMENTS ARE DUE; PROVIDING FOR INTEREST; PROVIDING FOR REVIEW OF RECORDS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR EFFECTIVE DATE. The proposed Ordinance may be inspected by the public at the Office of the Village Clerk. Interested parties may appear at the Public Hearing and be heard with respect to the proposed Ordinance. Any person wishing to address the Village Council on any item at this Public Hearing is asked to register with the Village Clerk prior to that item being heard. In accordance with the Americans With Disabilities Act of 1990, all per- sons who are disabled and who need special accommodations to partici- pate in this proceeding because of that disability should contact the Office of the Village Clerk, 91 West McIntyre Street, Suite 203, Key Biscayne; Florida 33149, telephone number (305) 365-5506, not later than two busi- ness days prior to such proceeding. Should any person desire to appeal any decision of the Village Council with respect to any matter to be considered at this meeting, that person shall insure that a verbatim record of the proceedings is made including all testimony and evidence upon which any appeal may be based (F.S. 286.0105). Comments of any interested party relative to this matter may be submit- , ted in writing and or presented in person at the public heating. Conchita H. Alvarez, CMC Village Clerk 01-'4-43/123101M 1/11 11 (SEAL) e this 2001 dFi-=) A !'ARY SEAL Octelma V. Ferbeyre personally known tone. JA TT LLERENA NOTARY PUBLIC STATE OF FLORIDA COMMISSION NO. CC 912958 MY COMMCOMMIS.VILENT, DUNE 23,2004