G58-99 CITY OF ELGIN
r
ORDINANCE NO. G58-99
AN ORDINANCE
AMENDING THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED
BY ADDING CHAPTER 4.60 ENTITLED
"TELECOMMUNICATIONS INFRASTRUCTURE MAINTENANCE FEE"
ADOPTED BY THE
CITY COUNCIL OF THE
CITY OF ELGIN
ON THIS 13TH DAY OF OCTOBER, 1999
Published in pamphlet form by authority of the
City Council of the City of Elgin, Kane and
Cook Counties, Illinois, on this 15th day of
October, 1999.
STATE OF ILLINOIS )
) ss.
COUNTY OF KANE
CERTIFICATE
I, Dolonna Mecum, certify that I am the duly appointed and acting
municipal clerk of the City of Elgin, Cook and Kane Counties, Illinois.
I further certify that on October 13, 1999, the Corporate Authorities of
such municipality passed and approved Ordinance No. G58-99 entitled "Ordinance
Amending Elgin Municipal Code, 1976, as amended, by Adding Chapter 4.60 Entitled
"Telecommunications Infrastructure Maintenance Fee", which provided by its terms that
it should be published in pamphlet form.
The pamphlet form of Ordinance No. G58-99, including the Ordinance and
a cover sheet thereof, was prepared, and a copy of such Ordinance was posted in the
r municipal building commencing on October 15, 1999, and continuing for at least ten
days thereafter. Copies of such Ordinance were also available for public inspection
upon request in the office of the municipal clerk.
DATED at Elgin, Illinois, on October 15, 1999.
(it3Vt/40
Municipal Crerk
(SEAL)
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Ordinance No. G58-99
AN ORDINANCE
t AMENDING ELGIN MUNICIPAL CODE, 1976, AS AMENDED
BY ADDING CHAPTER 4 . 60 ENTITLED
"TELECOMMUNICATIONS INFRASTRUCTURE MAINTENANCE FEE"
WHEREAS, the City of Elgin is a home rule municipality in
accordance with the Constitution of the State of Illinois of
1970; and
WHEREAS, the City of Elgin has the authority to adopt
ordinances and to promulgate rules and regulations that
pertain to its government and affairs and that protect the
public health, safety and welfare of its citizens; and
WHEREAS, in addition to the City of Elgin' s power as a
home rule municipality, 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 of Elgin' 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 City of Elgin rights-of-way and other
public rights-of-way for telecommunications activity within
the municipal boundaries of the City of Elgin 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 Elgin, as follows :
Section 1 . Recitals . 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 the Elgin Municipal Code, 1976, as
amended, be and is hereby amended by adding Chapter 4 . 60
thereto entitled "Telecommunications Infrastructure
Maintenance Fee" to read as follows :
"Chapter 4 . 60 Telecommunications Infrastructure
Maintenance Fee
Section 4 . 60 . 010 Definitions .
As used in this chapter, the following terms
shall have the following meanings :
(PP. A. "Gross Charges" means the amount paid to a
telecommunications retailer for the act or privilege
of originating or receiving telecommunications
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 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 purchasers bill
because of a charge made under:
a. The fee imposed by this section;
b. Additional charges added to a
purchasers bill under Section 9-221 or
9-222 of the Public Utilities Act;
c . Amounts collected under Section 8-11-17
of the Illinois Municipal Code;
d. The tax imposed by the
Telecommunications Excise Tax Act ;
e . 911 surcharges, or;
f . The tax imposed by Section 4251 of the
Internal Revenue Code.
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 ;
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4 . Charges for customer equipment, including
such equipment that is leased or rented by the
customer from any source, wherein such charges are
removed from the aggregate charges and separately
identified from other charges;
5 . Charges to business enterprises certified
under Section 9-222 . 1 of the 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" shall mean any
portion of a debt that is related to a sale at
retail for which gross charges are not otherwise
deductible or capable of being excluded 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 telecommunications devices; or
9 . Charges for telecommunications and all
services and equipment provided to the city.
B. "Public Right-of-Way" means 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"
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.
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C. "Retailer maintaining a place of business
in this State" , or any like term, means and includes
any retailer having or maintaining within the State
of Illinois, directly or by a subsidiary, an office,
distribution 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 .
D. "Sale of telecommunications at retail"
means 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 .
E. "Service address" means the location of
eimk 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 customers primary use of the telecommunications
equipment as defined by the location in Illinois
where bills are sent .
F . "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,
teletypewriter 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
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transmission. "Telecommunications" shall not
include purchase of telecommunications by a
telecommunications service provider for use as a
component part of the service provided by him or her
to the ultimate retail consumer who originates or
terminates the end-to-end communications . 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.
G. "Telecommunications provider" means :
1 . Any telecommunications retailer, and;
2 . Any person that is not a telecommunica-
tions 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.
H. "Telecommunications retailer" or "retailer"
or "carrier" means and includes every person engaged
in the business of making sales of
telecommunications at retail as defined in this
section. 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 telecommunications in the same manner
and subject to the same requirements as a retailer
maintaining a place of business within the city.
I . "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
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amended) , including all commercial mobile radio
services, and paging services .
Section 4 . 60 . 020 Registration of Telecommunications
Providers .
A. Every telecommunications provider as
defined by this chapter shall register with the city
within 30 days after the effective date of this
chapter or becoming a telecommunications provider,
whichever is later, on a form to be provided by the
city, provided, however, that any telecommunications
retailer that has filed a return pursuant to Section
4 . 60 . 040 (C) of this chapter shall be deemed to have
registered in accordance with this section.
B. Every telecommunications provider who has
registered with the city pursuant to Section
4 . 60 . 020 (A) has an affirmative duty to submit an
amended registration form or current return as
required by Section 4 . 60 . 040 (C) 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
rthe city.
Section 4 . 60 . 030 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 (1 . 0%) of all gross charges charged by the
telecommunications retailer to service addresses
within the city for telecommunications originating
or received in the city.
B. Upon the effective date of the infrastruc-
ture maintenance fee authorized in this chapter, 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 does 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 shall be
collected, enforced, and administered as set forth
in Section 4 . 60 . 040 of this chapter.
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'Pk Section 4 . 60 . 040 Collection, Enforcement, and
Administration of
Telecommunications 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 customers
service address .
B. Unless otherwise approved by the city
manager, 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 (2%) of the city
infrastructure maintenance fee collected by it to
reimburse itself for expenses incurred in accounting
for and remitting the fee .
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 manager, which
rft- shall contain such information as the city manager
may reasonably require .
D. Any infrastructure maintenance fee required
to be collected pursuant to this chapter 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 4 . 60 . 040 (A)
by the telecommunications retailer pursuant to this
chapter 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,
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, from the telecommunications
retailer who made the erroneous payment ; provided,
however, the city manager may request, and the
telecommunications retailer shall provide, written
substantiation for such credit . However, no claim
for such credit may be made more than three years
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after the date of the erroneous payment unless the
credit is used only to offset a claim of
underpayment made by the city within the applicable
statutory period of limitations, and; the credit
derives from an overpayment made by the same
telecommunications retailer during the applicable
statutory period of limitations .
F. Amounts paid under this chapter 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
Telecommunications Excise Tax Act ;
2 . "Gross receipts" for purposes of the
municipal utility tax as prescribed in Section
8-11-2 of the Illinois Municipal Code;
3 . "Gross charges" for purposes of the
municipal telecommunications tax as prescribed in
Section 8-11-17 of the Illinois Municipal Code;
4 . "Gross revenue" for purposes of the tax
on annual gross revenue of public utilities
eft prescribed in Section 2-202 of the 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
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
(5%) 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 (5%) of the total amount of
the underpayment determined in an audit . Said sum
shall be paid to the city within twenty-one (21)
days after the date of issuance of an invoice for
same.
H. The city manager, or his or her designee,
may promulgate such further or additional
regulations concerning the administration and
enforcement of this chapter, consistent with its
provisions, as may be required from time to time and
shall notify all telecommunications retailers that
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em. are registered pursuant to Section 4 . 60 . 020 of this
chapter of such regulations .
Section 4 . 60 . 050 Compliance With Other Laws .
Nothing in this chapter shall excuse any person
or entity from obligations imposed under any law,
including but not limited to:
A. Generally applicable taxes; and
B. 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
C. 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
D. Compliance with any ordinance or provision
of this Code concerning uses or structures not
located on, over, or within the right-of-way.
Section 4 . 60 . 060 Existing Franchises and Licenses .
Any franchise, license, or similar agreements
between telecommunications retailers and the city
entered into before the effective date of this
chapter regarding the use of 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.
Section 4 . 60 . 070 Penalties .
Any person, firm or corporation violating any
of the provisions of this chapter, in addition to
other legal and equitable remedies available to the
city, shall be fined as provided in Chapter 1 . 20 of
this code. Each day during which a violation of
this chapter continues or is permitted to exist
shall be considered a separate and distinct offense .
Section 4 . 60 . 080 Enforcement .
Nothing in this chapter shall be construed as
limiting any additional or further remedies that the
em. city may have for enforcement of this chapter. The
levy and/or payment of any penalty or fine provided
in this chapter or in this code shall not be deemed
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fir., a waiver of the power of the City of Elgin to
suspend, revoke or refuse to renew any permit for
cause or to seek injunctive relief to enjoin
violations of this chapter or provisions of this
code .
Section 4 . 60 . 090 Severability.
If any provision, clause, sentence, paragraph,
section or part of this chapter or application
thereof to any person or circumstance, shall for any
reason be adjudged by a court of competent
jurisdiction to be unconstitutional or invalid, said
judgment shall not affect, impair or otherwise
invalidate the remainder of this chapter and the
application of such provision to other persons or
circumstances, but shall be confined in its
operation to the provision, clause, sentence,
paragraph, section or part thereof directly involved
with the controversy in which such judgment shall
have been rendered and to the person or
circumstances involved. It is hereby declared to be
the legislative intent of the City Council that this
Chapter would have been adopted had such
unconstitutional or invalid provisions, clause,
sentence, paragraph, section or part thereof had not
been included.
Section 4 . 60 . 100 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 Ordinance 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 notice of the
waiver by certified mail, return receipt requested,
to each telecommunications retailer with whom the
city has a franchise. "
Section 3 . That this ordinance shall be in full force
and effect from and after its passage and publication in the
manner provided by law, provided however, the city
infrastructure maintenance fee provided for in this Ordinance
shall become effective and imposed on the first day of the
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.. month not less than ninety (90) days after the city provides
written notice 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 gross charges billed on or after the effective
date as established in the preceding sentence .
Section 4 . That all ordinances or parts of ordinances in
conflict with the provisions of this ordinance be and are
hereby repealed.
Ed Schock, Mayor
Presented: October 13 , 1999
Passed: October 13 , 1999
Omnibus Vote : Yeas 7 Nays 0
Recorded: October 14 , 1999
Published: October 15, 1999
Attest :
aloo..
Dolonna Mecum, City Clerk
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