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HomeMy WebLinkAboutOrdinances - MC-97-690 - 11/05/1997 - Ch 23 add Telecommunications Infrastructure MainteORDINANCE NO. MC-97-690 An ordinance Amending the Municipal Code of the City of McHenry to Add Article V, Municipal Telecommunications Infrastructure Maintenance Fee, to Chapter 23 WHEREAS, the City of McHenry (the "City") is a municipality in accordance with the Constitution of the State of Illinois of 1970; and WHEREAS, the City has the authority to adopt ordinances and to promulgate rules and regulations that protect: the public health, safety and, welfare of its citizens; and WHEREAS, this ordinance is adopted pursuant to the provisions of the Illinois Telecommunications Municipal Infrastructure Maintenance Fee Act, Public Act 90-154 (the "Act"); and WHEREAS, the fees imposed under this Ordinance will replace the City's existing municipal franchise fees with respect to telecommunications retailers which are currently paid by the telecommunications consumer, with a different fee under the Act; and WHEREAS, this Ordinance is intended to create a uniform system for the collection of fees associated with the privilege of using Village rights -of -way and other public rights -of -way for telecommu- nications activity within the municipal boundaries of the City, including the recovery of reasonable costs for regulating the use of all public rights -of -way within its municipal boundaries for telecommunications activity. NOW, THEREFORE, BE IT ORDAINED by the CITY COUNCIL of the CITY OF McHENRY, McHenry County, Illinois, as follows: SECTION 1: The facts and statements contained in the preamble to this Ordinance are found to be true and correct and are hereby adopted as part of this Ordinance. SECTION 2: That Chapter 23 of the Municipal Code, City of McHenry, Illinois, shall be amended to add Article V, Municipal Telecommunications Infrastructure Maintenance: Fee, attached hereto and made a part hereof. SECTION 3: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain and continue in full force and effect. SECTION 4: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. SECTION 5: This Ordinance shall be in full force and effect upon its passage, approval and publication in pamphlet form (which publication is hereby authorized) as provided by law. Voting Aye: BOLGER, GLAB, MURGATROYD, Voting Nay: MC CLATCHEY, BAIRD. Absent: NONE. Abstain: NONE. APPROVED: 14 Yor Steven J. Cuda (SEAL) ATTEST City Cle k Pamo W J. Althoff Passed: NOVEMBER 5, 1997 Approved: NOVE11BER, 5, 1997 Draft October 31, 1997 Chapter 23 ARTICLE V. MUNICIPAL TELECOMMUNICATIONS INFRASTRUCTURE MAINTENANCE FEE 23-44 Definitions 23-45 Registration of Telecommunications ]Providers 23-46 Municipal Telecommunications Infrastructure Fee 23-47 Collection, Enforcement and Administration of nications Infrastructure Maintenance Fee 23-48 lCompliance with Other Laws 23-49 Existing Franchises and Licenses 23-50 Penalties 23-51 Enforcement 23-52 Severability 23-53 Conflict 23-54 Waiver and Fee Implementation 23-44 DEFINITIONS Maintenance Telecommu- In addition to the terms defined in Chapter 1 of the Municipal Code, City of McHenry, Illinois, the following terms shall have the following meanings: Gross Charges: The amount paid to a telecommunications retailer for the act or privilege of originating or receiving telecommunica- tions within the City, and for all services rendered in connection therewith, valued in money whether paid in money or otherwise, including cash, credits, services, and property of every kind or nature, and shall be determined without any deduction on account of the cost of such telecommunications, the cost of the materials used, labor or service costs, or any other expense whatsoever. In case credit is extended, the amount thereof shall be included only as and when paid. Gross charges for private line service shall include charges imposed at each channel point within the City, charges for the channel mileage between each channel point within the City, and charges for that portion of the interstate inter- office channel provided within the City. However, gross charges shall not include: 1. Any amounts added to a purchaser's bill. because of a charge made under: (i) the fee imposed by Section 23.46 herein, (ii) additional charges added to a purchaser's bill under 220 ILCS 5/9-221 or 5/9-222 (the Public Utilities Act), (iii) amounts collected under 65 ILCS 5/8-11-17, (iv) the tax imposed by the Telecommunications Excise Tax Act (35 ILCS 630/1 et seq., (v) 911 surcharges, or (vi) the tax imposed by Section 4251 of the Internal Revenue Code; Chapter 23, Article V, Page 1 Draft October 31, 1997 2. Charges for a sent collect telecommunication received outside the City; 3. Charges for leased time on equipment or charges for the storage of data or information or subsequent retrieval or the processing of data or information intended to change its form or content. Such equipment includes, but is not limited to, the use of calculators, computers, data processing equipment, tabulating equipment or accounting equipment and also includes the usage of computers under a time-sharing agreement; 4. ChargA_s for customer equipment, including such equipment that is leased or rented by the customer from any source, wherein such charges are disaggregated and separately identified from other charges; 5. Charges to business enterprises certified under 220 ILLS 5/9- 221 (Public Utilities Act) to the extent of such exemption and during the period of time specified by the City; 6. Charges for telecommunications and all services and equipment provided in connection therewith between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries, and only to the extent that the charges between the parent corporation and wholly owned subsidiaries or between wholly owned subsidiaries represent expense allocation between the corporations and not the generation of profit other than a regulatory required profit for the corporation rendering such services; 7. Bad debts (bad debt means any portion of a debt that is related to a sale at retail for which gross charges are not otherwise deductible or excludable that has become worthless or uncollectible, as determined under applicable federal income tax standards; if the portion of the debt deemed to be bad is subsequently paid, the retailer shall report and pay the tax on that portion during the reporting period in which the payment is made); 8. Charges paid by inserting coins in coin -operated telecom- munications devices; or 9. Charges for telecommunications and all services and equipment provided to the City. Public right-of-way: Any municipal street, alley, water or public right-of-way dedicated or commonly used for utility purposes, including utility easements wherein the City has acquired the right and authority to locate or permit the location of utilities consistent with telecommunications facilities. Public right-of-way Chapter 23, Article V, Page 2 Draft October 31, 1997 shall not include any real or personal City property that is not specifically described in the previous sentence and shall not include City buildings and other structures or improvements, regardless of whether they are situated in the public right-of-way. Retailer maintaining a place of business in this State (or any like term): Means and includes any retailer having or maintaining within the State, directly or by a subsidiary, an office, distribu- tion facilities, transmission facilities, sales office, warehouse or other place of business, or any agent or other representative operating within this State under the authority of the retailer or its subsidiary, irrespective of whether such place of business or agent or other representative is located here permanently or temporarily, or whether such retailer or subsidiary is licensed to do business in this State. Sale of telecommunications at retail: The transmitting, supplying or furnishing of telecommunications and all services rendered in connection therewith for a consideration, other than between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries, when the gross charge made by one such corporation to another such corporation is not greater than the gross charge paid to the retailer for their use or consumption and not for sale. Service address: The location of telecommunications equipment from which telecommunications services are originated or at which telecommunications services are received. If this is not a defined location, as in the case of wireless telecommunications, paging systems, maritime systems, air -to -ground systems, and the like, service address shall mean the location of the customer's primary use of the telecommunications equipment as defined by the location in Illinois where bills are sent. Telecommunications: Includes, but is not limited to, messages or information transmitted through use of local„ toll and wide area telephone service, channel services, telegraph services, teletype- writer service, computer exchange services, private line services, specialized mobile radio services or any other transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities. Unless the context clearly requires otherwise, telecommunications shall also include wireless telecommunications as hereinafter defined. Telecommunications shall not include value added services in which computer processing applications are used to act on the form, content, code and protocol of the information for purposes other than transmission. Telecommunications shall not include purchase of telecommunications by a telecommunications service provider fox, use as a component part of the service provided by him or her to the ultimate retail Chapter 23, Article V, Page! 3 Draft October 31, 1997 consumer who originates or terminates the end -to -end communica- tions. Retailer access charges, right of access charges, charges for use of intercompany facilities and all telecommunications resold in the subsequent provision and used as, a component of, or integrated into, end -to -end telecommunications service shall not be included in gross charges as sales for resale. Telecommunications shall not include the provision of cable services through a cable system as defined in the Cable Communications Act of 1984 (47 U.S.C. Sections 521 and following) as now or hereafter amended or cable or other programming services subject to an open video system fee payable to the City through an open video system as defined in the rules -of the Federal Communications Commission (47 C.D.F. 76.1550 and following) as now or hereafter amended. Telecommunications provider: 1. Any telecommunications retailer; and 2. Any person that is not a telecommunications retailer that installs, owns, operates or controls equipment in the public right-of-way that is used or designed to be used to transmit telecommunications in any form. Telecommunications retailer, retailer, carrier: Means and includes every person engaged in the business of making sales of telecommu- nications at retail as defined in this Section 23.44. The City may, in its discretion, upon application, authorize the collection of the fee hereby imposed by any retailer not maintaining a place of business within this State, who, to the satisfaction of the City, furnishes adequate security to ensure collection and payment of the fee. When so authorized, it shall be the duty of such retailer to pay the fee upon all of the gross charges for telecom- munications in the same manner and subject to the same requirements as a retailer maintaining a place of business within the City. Wireless telecommunications: Includes cellular mobile telephone services, personal wireless services as defined in Section 704(C) of the Telecommunications Act of 1996 (Public law No. 104-104), 42 U.S.C. §332(c)(7), as now or hereafter amended, including all commercial mobil radio services, and paging services. 23.45 Registration of Telecommunications Providers (a) Every telecommunications provider, as defined by this Chapter 23, shall register with the City within 30 days after the effective date of this Chapter 23, Article V, or becoming a telecommunications provider, whichever is later, on the Telecommu- nications Provider Registration Form, attached to this Chapter 23, Article V, as Exhibit A, provided, however, that any telecommuni- cations retailer that has filed a return pursuant to Section Chapter 23, Article V, Page: 4 Draft October 31, 1997 23.47(c) herein shall be deemed to have registered in accordance with this Section 23.45. (b) Every telecommunications provider who has registered with the City pursuant to Section 23.45 (a) herein has an affirmative duty to submit an amended registration form or current return as required by Section 23.47(c) herein, as the case may be, to the City within 30 days from the date of the occurrence of any changes in the information provided by the telecommunications provider in the registration form or most recent return on file with the City. 23.46 Municipal Telecommunications Infrastructure Maintenance Fee (a) A City telecommunications infrastructure maintenance fee is hereby imposed upon all telecommunications retailers in the amount of one percent of all gross charges charged by the telecomm- unications retailer to service addresses within the City for telecommunications originating or received in the City. (b) Upon the effective date ( ) of the infrastructure maintenance fee authorized in this Chapter 23, Article V. the City infrastructure maintenance fee authorized hereunder shall be the only fee or compensation for the use of all public rights -of -way within the City by telecommunications retailers. Imposition of the infrastructure maintenance fee provided under this Chapter 23, Article V, doer not, however, serve as a limitation on the levying of any taxes or imposition of any fees otherwise authorized by law. (c) The City telecommunications infrastructure maintenance fee authorized by this Section 23.46 shall be collected, enforced and administered as set forth in Section 23.47 herein. 23.47 Collection, Enforcement and Administration of Telecommu- nications Infrastructure Maintenance Fees (a) A telecommunications retailer shall charge to and collect from each customer an additional charge in an amount equal to the City infrastructure maintenance fee attributable to that customer's service address. (b) Unless otherwise approved by the City, the infrastructure maintenance fee shall be remitted by the: telecommunications retailer to the City not later than the last day of the month subsequent to the month in which a bill is issued to the customer, provided, however, that the telecommunications retailer may retain an amount not to exceed two percent of the City infrastructure maintenance fee collected by it to reimburse itself for expenses incurred in accounting for and remitting the fee. Chapter 23, Article V, Page 5 Draft October 31, 1997 (c) Remittance of the municipal infrastructure fee to the City shall be accompanied by a return, in a form to be prescribed by the City, which shall contain such information as the City may reasonably require. (d) Any infrastructure maintenance fee required to be collected pursuant to this Chapter 23, Article V, and any such infrastructure maintenance fee collected by such telecommunications retailer shall constitute a debt owed by the telecommunications retailer to the City. The charge imposed under Section 23.47(a) by the telecommunications retailer pursuant to this Chapter 23, Article V; shall constitute a debt of the purchaser to the telecommunications retailer who provides such services until paid and, if unpaid, is recoverable at law in the same manner as the original charge for such services. (e) If it shall appear that an amount: of infrastructure maintenance fee has been paid that was not due under the provisions of this Chapter 23, Article V, whether as a result of a mistake of fact or an error of law, then such amount shall be credited against any infrastructure maintenance fee due, or to become due, under this Chapter 23, Article V, from the telecommunications retailer who made the erroneous payment; provided, however, the City may request, and telecommunications retailer shall provide, written substantiation for such credit. However, no claim for such credit may be made more than three years after the date of the erroneous payment unless: 1. The credit is used only to offset a claim of under- payment made by the City within the applicable statutory period of limitations, and 2. The credit derives from an overpayment made by the same telecommunications retailer during the appli- cable statutory period of limitations. (f) Amounts paid under this Chapter 23, Article V, by telecommunications retailers shall not be included in the tax base under any of the following acts as described immediately below: 1. Gross charges for purposes of the Telecommunica- tions Excise Tax Act, 35 ILCS 630/1 et seq.; 2. Gross receipts for purposes of the municipal utili- ty tax as prescribed in 65 ILCS 5/8-11-2; 3. Gross charges for purposes of the municipal tele- communications tax as prescribed in 65 ILCS 5/8-11- 17; 4. Gross revenue for purposes of the tax on annual Chapter 23, Article V, Page: 6 Draft October 31, 1997 gross revenue of public utilities prescribed in 220 ILCS 5/2-202 (Public Utilities Act). (g) The City shall have the right, in its discretion, to audit the books and records of all telecommunications retailers subject to this Chapter 23, Article V, to determine whether the telecommunications retailer has properly accounted to the City for the City infrastructure maintenance fee. Any underpayment of the amount of the City infrastructure maintenance fee due to the City by the telecommunications retailer shall be paid to the City plus five percent of the total amount of the underpayment determined in an audit, }plus any costs incurred by the City in conducting the audit, in an amount not to exceed five percent of the total amount of the underpayment determined in an audit. Said sum shall be paid to the City within 21 days after the date of an invoice for same. (h) The City, or his or her designee, may promulgate such further or additional regulations concerning the administration and enforcement of this Chapter 23, Article V, consistent with its provisions, as may be required from time to time and shall notify all telecommunications retailers that are registered pursuant to Section 23.45 herein of such regulations. 23.48 Compliance with Other Laws Nothing in this Chapter 23, Article V, shall excuse any person or entity from the obligations imposed under any law, including but not limited to: 1. Generally applicable taxes; and 2. Standards for construction on, over, under or within, use of or repair of the public rights -of -way, including standards relating to free standing towers and other structures upon the public rights -of -way, as provided; and 3. Any liability imposed for the failure -to comply with such generally applicable taxes or standards governing construction on, over, under or within, use of or repair of the public rights -of -way; and 4. Compliance with any ordinance or provision of this Code concerning uses or structures not located on, over or within the right-of-way. 23.49 Existing Franchises and Licenses Any franchise, license or similar agreements between telecom- munications retailers and the City entered into before the effective date of this Chapter 23, Article V, regarding the use of Chapter 23, Article V, Page 7 Draft October 31, 1997 public rights -of -way shall remain valid according to and for their stated terms except for any fees, charges or other compensation to the extent waived. 23.50 Penalties Any telecommunications provider who violates, disobeys, omits, neglects or refuses to comply with any of the: provisions of this Chapter 23, Article V, shall be subject to fine in accordance with the general penalty provisions of this Code. 23.51 'Enforcement Nothing in this Chapter 23, Article V, shall be construed as limiting any additional or further remedies that the City may have for enforcement of this Chapter 23, Article V. 23.52 Severability If any section, subsection, sentence, clause, phrase or portion of this Chapter 23, Article V, is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof. 23.53 Conflict This Chapter 23, Article V, supersedes a]_1 ordinance or parts of ordinance adopted prior hereto which are in conflict herewith, to the extent of such conflict. 23.54 Waiver and Fee Implementation (a) The City hereby waives all fees, charges, and other compensation that may accrue, after the effective date of the waiver, to the City by a telecommunications retailer pursuant to any existing City franchise, license, or similar agreement with a telecommunications retailer during the time the City imposes the Telecommunications Infrastructure Maintenance Fee. This waiver shall only be effective during the time the Infrastructure Maintenance Fee provided for in this Chapter 23, Article V, is subject to being lawfully imposed on the telecommunications retailer and collected by the telecommunications retailer from the customer. (b) The City Clerk shall send a Fee Waiver Form, attached hereto as Exhibit B, by certified mail/return receipt requested to each telecommunications retailer with whom the City has a fran- chise. Chapter 23, Article V, Page 8 Draft October 31, 1997 (c) The City infrastructure maintenance fee provided for in this Chapter 23, Article V, shall become effective and imposed on the first day of the month not less than 90 days after the City provides written notice, using the Notice of Imposition of Infrastructure Maintenance Fee, attached hereto as Exhibit C, by certified mail to each telecommunications retailer with whom the City has an existing franchise, license or similar agreement that the City waives all compensation under such existing franchise, license or similar agreement during such time as the fee is subject to being lawfully imposed and collected by the retailer and remitted to the City. The infrastructure maintenance fee shall apply to gtoss charges billed on or after the effective date as established in the preceding sentence. Chapter 23, Article V, Page 9 Draft October 31, 1997 Chapter 23, Article V, Exhibit A City of McHenry Telecommunications Provider Registration Form Pursuant to Section 23.45 of the City of McHenry Municipal Code, all telecommunications providers are required within (insert 30 days of the effective date of the ordinance) or becoming a telecommunications provider, whichever is later, to register with the City. In addition to completing this form, applicants must comply with all City codes and ordinances including but not limited to generally applicable standards regarding the use of the public right-of-way and zoning regulations. All information must be provided, if any question does apply, please indicate "NA" I. GENERAL REGISTRANT INFORMATION NAME ADDRESS, CITY, ZIP PHONE FACSIMILE E-MAIL Registrant All Affiliates of Registrant Contact Person H. REQUIRED BUSINESS INFORMATION Federal Employee ID No. 10L Business Tax No. Property Tax No. (PIN) Business Ownership Type (Circle One) Corporation Sole Owner Partnership M. INFORMATION ABOUT THE PROVIDER'S SERVICE (attach additional sheet if necessary) 11 Describe the registrant provider's existing or proposed facilities, includ- ing the location within the City II Describe the registrant provider's I II service Draft October 31, 1997 1 IV. If you own, operate or control telecommunications equipment located in the right-of-way and lease this equipment to another telecommunications retailer or provider, please list all parties to whom you currently lease telecommunications equipment. I nc is f r ME ai A E a .hi im na sa uz em !ff a qi ins ;tr 11 NAME I ADDRESS, my, ZIP I PHONE I FACSEMME I E-MAIL I V. PLEASE SEND THE COMPLETED FORM TO: City Administrator McHENRY CITY HALL 333 South Green Street McHenry, IL 60050 VI. I HEREBY CERTIFY THE ABOVE INFORMATION IS COMPLETE, TRUE AND CORRECT Signature: Title: Date: Draft October 31, 1997 Chapter 23, Article V. Exhibit C NOTICE OF IMPOSITION OF INFRASTRUCTURE MAINTENANCE FEE 1997 [Send one to each current telecommunications retailer] RE: Noticb of Imposition of Municipal Infrastructure Maintenance Fee Dear On , 1997 the City of McHenry passed and approved Ordinance No. 1997- implementing a Municipal Telecommu- nications Infrastructure Maintenance Fee which will be effective January 1, 1998 [or ,] and during the time the City imposes a Municipal Telecommunications Infrastructure Maintenance Fee. The Infrastructure Maintenance Fee is one percent of Gross Charges as defined in Public Act 90-154 and Ordinance 1997- A copy of the ordinance is enclosed. In addition, you are hereby notified that effective January 1, 1998 or 90 days after due notice and during the time City imposes the Telecommunication Infrastructure Maintenance Fee, the City has waived all fees, charges and other compensation to be paid to the City pursuant to existing franchise agreements,, licenses or similar agreements that may become due after the effective date of the waiver. If you have any questions regarding this notice or the infrastruc- ture maintenance fee, please contact the City Administrator. CITY OF McHENRY City Clerk