§ 7-11. Fee assessment on telecommunications companies that occupy municipal rights-of-way for telecommunications facilities.
(a)
Purpose and application.
(1)
The purpose of this section 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 for occupation of the city's rights-of-way. Any telecommunications company paying fees for the occupation of the city's rights-of-way for telecommunications facilities as of the effective date of this section shall continue to pay fees to the city as the company has been paying them.
(2)
The fees imposed pursuant to this section shall apply to all telecommunications companies occupying the city's rights-of-way for telecommunications facilities and not otherwise paying a fee to the city for occupation of the city's rights-of-way.
(3)
The fees imposed pursuant to this section 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 section 7-11 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 in consideration for occupation of the city's rights-of-way, including all public easements, for the purpose of erecting, constructing and maintaining telecommunications systems.
(b)
Fee for telecommunications company occupation of rights-of-way.
(1)
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 (1) percent 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 which 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 five hundred dollars ($500.00) 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 city's rights-of-way. Such annual fee shall be prorated to reflect the expiration date of this section and shall be payable annually, in advance. If a telecommunications company that is required to pay a fee pursuant to this subsection (b)(1)b. 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 section, 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.
The fee or other consideration imposed pursuant to this subsection (b)(1)b. 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.
c.
Telecommunications company, as used in this section, shall have the meaning set forth in section 364.02(12), Florida Statutes (2000).
(2)
The fees provided for in subsection (1)a. shall be paid by the telecommunications company to the city 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 section, and shall be made within thirty (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 at the 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.
(3)
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 subsections (b)(3)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 fifty-five (55) miles of the city or by any 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 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 city may have for sums due and payable under this section 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 (5) percent of the amount due, such telecommunications company shall pay all reasonable costs, fees and expenses of the audit.
(4)
This section 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.
(5)
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. No. O-2001-003, §§ 1, 2, 1-17-01)