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HomeMy WebLinkAboutO-2001-001 ORDINANCE NO. 2001-001 AN ORDINANCE OF THE CITY OF DANIA BEACH, FLORIDA, ASSESSING A FEE ON TELECOMMUNICATIONS COMPANIES THAT OCCUPY MUNICIPAL RIGHTS-OF-WAY FOR TELECOMMUN- ICATIONS FACILITIES; PROVIDING FOR WHEN PAYMENTS ARE DUE; PROVIDING FOR INTEREST; PROVIDING FOR REVIEW OF RECORDS; PROVIDING FOR CONFLICTS; PROVIDING FOR, SEVERANCE; FURTHER, PROVIDING FOR AN 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 City of Dania Beach (the "City") to establish fees for occupation of the City's rights-of-way for telecommunications facilities of telecommunications companies not otherwise paying a fee to the City or having entered into an agreement with the City for occupation of the City's rights-of-way; and WHEREAS, it is the City'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 City's rights-of-way for telecommunications facilities as of the effective date of this Ordinance shall continue to pay fees to the City as the existing telecommunications company has been paying them, or pursuant to the existing agreement between the company and the City, and that any new telecommunications company occupying the City's rights-of-way for telecommunications facilities pay the fees for occupation set forth in this Ordinance. NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of Dania Beach, Florida: Section 1. That 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. That the purpose of this Ordinance is to establish fees for occupation of the City's rights-of--way for telecommunications facilities of telecommunications companies not otherwise paying a fee to the City or not otherwise having an agreement with the City for occupation of the City's rights-of-way. Any telecommunications company paying fees or having an existing agreement with the City for the occupation of the City's rights-of-way for telecommunications facilities as of the effective date of this Ordinance shall continue to pay fees to the City as the company has been paying them or pursuant to the existing agreement. Section 3. That the fees imposed pursuant to this Ordinance shall apply to all telecommunications companies occupying the City's rights-of-way for telecommunications ord telecommuncation Dania Beach Fee dec2000.doc 1 ORDINANCE NO. 2001-001 2/13/01 facilities and which are not otherwise paying a fee to the City or not under an existing agreement ® for occupation of the City's rights-of-way. Section 4. That 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 City's rights-of-way, including all public easements, for the purpose of erecting, constructing and maintaining telecommunications systems. Section 5. That the fees to be paid by telecommunications companies to the City for occupation of the City's rights-of-way shall be determined as follows: (a) any telecommunications company providing local telephone service, as defined in Section 203.012(3), Florida Statutes (2000), in the City and that is occupying municipal streets or rights-of-way within the corporate limits of the City with poles, wires or other fixtures, shall pay to the City 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 City 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 City 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 City's rights-of-way, the telecommunications company shall pay to the City, annually, at a rate of Fifty Cents ($.50) per linear foot, which amount is prorated for any portion thereof, for any cable, fiber optic, or other pathway that makes physical use of the City'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 City'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 City's rights-of-way. (c) the fee or other consideration imposed pursuant to this subsection 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. That the fees provided for in Section 5(a) of this Ordinance shall be paid by the telecommunications company to the City 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 ord telecommuncationDania Beach Fee dec2000.doc 2 ORDINANCE NO. 2001-001 2/13/01 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 City, and the company shall reimburse the City for any actual and reasonable out-of-pocket costs associated with collecting any sums required to remit to the City. 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. That if the City wishes to verify the payments due to the City under this section, the telecommunications company shall permit the City or a designated representative of the City, upon reasonable advance written notice, and during normal business hours at the location of the telecommunications company where such records are maintained in the City, at another location satisfactory to the City, or elsewhere pursuant to (a) or (b) 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 City, 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 City for the City to have a review or audit performed; or (b) provide the City with access to copies of the telecommunications company's records in the City or within 50 miles of the City or by an electronic method satisfactory to the City. 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 City 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 City may have for sums due and payable under this Ordinance unless the City agrees in writing. In the event that the City, pursuant to final audit findings, determines that there exists a difference between the amount due to the City and the amount paid to the City, indicating an underpayment to the City, in excess of five percent (5%) of the amount due, such telecommunications company shall pay all reasonable costs, fees and expenses of the audit. Section 8. That 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 City to prescribe and enforce reasonable rules and regulations pursuant to applicable provisions of law. Section 9. That if required by applicable City Ordinances, Codes or Regulations, a telecommunications company shall be registered with the City and obtain all permits that may be required by the City regarding occupation of the City's public rights-of-way for • telecommunications facilities. ord telecommuncation Dania Beach Fee dec2000.doc 3 ORDINANCE NO. 2001-001 2/13/01 Section 10. That all Ordinances or parts of Ordinances and all Resolutions or parts of Resolutions in conflict with this Ordinance are repealed to the extent of such conflict. Section 11. That if any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance that can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. Section 12. That this Ordinance shall be in force and take effect immediately upon its passage and adoption. 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). PASSED AND ADOPTED on first reading on December 12 , 2000. PASSED AND ADOPTED on second reading on January 91h , 2001. APPROVED: j l AYOR-CO`MMI-59f ONER • ATTEST: ROLL CALL: MAYOR McELYEA- YES VICE-MAYOR BERTINO- YES -�--, COMMISSIONER ETLING YES SHERYL CHAPM COMMISSIONER CALI -YES ACTING CITY CLERK COMMISSIONER MIKES -YES APPROVED AS TO FORM AND CORRECTNESS: THOMAS J.)ANS�RO CITY ATTORNEY ord telecommuncationDania Beach Fee dec2000.doc 4 ORDINANCE NO. 2001-001 2/13/01 NOTICE OF HEARING BEFORE CITY COMMISSION CITY OF DANIA BEACH, FLORIDA, REGARDING ADOPTION OF THE FOLLOWING PROPOSED ORDINANCE: NOTICE IS HEREBY GIVEN that the City Commission of the City of Dania Beach, Florida, on January 9, 2001, at 7:30 p.m. or as soon thereafter as the matter may be heard, will conduct a public hearing in the City Commission room of the Dania Beach City Hall, 100 West Dania Beach Boulevard, Dania Beach, Florida to consider the proposed adoption of the following Ordinance entitled: AN ORDINANCE OF THE CITY OF DANIA BEACH, 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 FOR CONFLICTS; PROVIDING FOR SEVERANCE; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. (FIRST READING) A copy of this proposed Ordinance is on file in the Administrative Services Department, City Hall, 100 West Dania Beach Boulevard, Dania Beach, Florida, and may be inspected by the public during normal working hours. Interested parties may appear at the aforesaid meeting and be heard with respect to the proposed. Any person who decides to appeal any decision made by the City Commission with respect to any matter considered at this hearing will need a record of the proceedings and for such purpose may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. In accordance with the American with Disabilities Act, persons needing assistance to participate in any of the proceedings should contact Sheryl Chapman, Acting City Clerk, 100 West Dania Beach Boulevard, Dania Beach, Florida 33004, (954) 924-3630 at least 48 hours prior to the meeting. /s/ Charlene Johnson, CMC Deputy City Clerk Run in Sun Sentinel: 12/29/00 MEMORANUUM TO: Mayor, City Commission, and City Manager FROM: Gary Resnick, Office of the City Attorney DATE: November 29, 2000 RE: Telecommunications Fee Ordinance This proposed Ordinance will establish the fees that new telecommunications companies will pay to the City for placing telecommunications facilities in the City's rights-of-way. Last year, the State passed the new Communications Services Tax Simplification Law, Chapter 2000-260, Laws of Florida. ("Communications Law"). Under the Communications Law, in the upcoming Legislative Session, the Legislature will pass a communications tax rate that will become effective October 1, 2001, and will apply to all telecommunications providers in the City. The Communications Law also provides that effective January 1, 2001, cities may no longer require telecommunications providers to enter into franchise agreements that provide for the compensation to be paid for access to rights-of-way. The proposed Ordinance covers this period between January 1, 2001, and October 1, 2001, to provide for the compensation telecommunications providers will pay for access to the rights-of-way. Under the Communications Law, the fee provisions of existing franchise agreements remain in place until October 1, 2001. Thus, the proposed Ordinance does not alter the fee provisions of existing franchise agreements or the amount that existing telecommunications companies occupying the rights-of-way are currently paying to the City. Rather, the proposed Ordinance will only apply to new telecommunications companies seeking access to the rights-of-way. The proposed Ordinance will expire when the new tax rate set by the Legislature becomes effective. If for some reason, the Legislature does not set a new tax rate, the fees established in the proposed Ordinance will continue to apply.