[Ord. No. 1681 §1(2.1), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]
It shall be unlawful for any person to construct, operate or
maintain communications facilities or to provide communications services
by use of facilities in the rights-of-way in the City without a valid,
unexpired rights-of-way use agreement from the City, unless otherwise
specifically authorized under applicable Federal or State law or otherwise
provided by ordinance. Unless otherwise provided hereinafter by City
ordinance, a reseller service provider shall not be required to obtain
an agreement. It shall be unlawful for any person not having its own
franchise or agreement authorizing such communications to transmit
communications for commercial purposes through any facility owned
by a provider that does not have a valid franchise or agreement with
the City authorizing the use of such facilities.
[Ord. No. 1681 §1(2.2), 12-17-2001]
The authority granted by the City in any agreement shall be
for non-exclusive use of the rights-of-way. The grantor specifically
reserves the right to grant, at any time, such additional agreements
or other rights to use the rights-of-way for any purpose and to any
other person, including itself, as it deems appropriate, subject to
all applicable law.
[Ord. No. 1681 §1(2.3), 12-17-2001]
Agreements shall not convey title, equitable or legal, in the
rights-of-way and shall give only the right to occupy rights-of-way
for the purposes and for the period stated in this Code and as may
be further limited by the agreement. No agreement may excuse licensee
from obtaining appropriate access or pole attachment agreements before
locating its facilities on another person's facilities. All agreements
shall be deemed to incorporate and be limited by the provisions of
this Code and shall create rights for the sole and exclusive use of
licensee.
[Ord. No. 1681 §1(2.4), 12-17-2001]
Any person seeking to use the rights-of-way for any communications
service, or seeking renewal of an existing agreement, shall submit
a completed application on such form as approved by the City. Such
application shall be accompanied by a non-refundable application fee
in an amount as may be hereinafter established by the City to compensate
the City and defray in whole or part the City's costs in review, negotiation
and administration of any application filed under this Code. On request
of the City, the applicant shall provide such additional information
that is deemed necessary or appropriate to the City in reviewing the
application and proposed use of the rights-of-way. Licensee shall
be responsible for payment of any reasonable costs incurred by City
in processing these applications or in adapting or executing the agreement
for use by licensee to the extent such costs exceed the application
fees paid. The City may provide for the waiver of these application
fees and/or of use fees for use of the rights-of-way by other governmental
entities where such waiver is deemed by the City to be lawful and
in the public interest. The information provided by licensee shall
be certified as true and correct and licensee shall be responsible
to certify to the City any material changes to the information provided
in such completed application during the term of any agreement.
[Ord. No. 1681 §1(2.5), 12-17-2001]
The City shall authorize agreements or renewals to any eligible
licensee for the right and privilege to construct, operate and maintain
facilities in, through and along the City's rights-of-way for the
purposes of supplying communications services on a non-exclusive basis
within the City subject however, to the standards, terms and conditions
herein set forth within this Code, which shall be deemed incorporated
therein, and any special conditions as may be provided for in the
agreement. All licensees shall be required to obtain and maintain
any necessary and lawful permit, license, certification, grant, registration
or any other authorization required by any appropriate governmental
entity including, but not limited to, the City, the FCC or the Missouri
Public Service Commission. In reviewing an application, the City may
consider prior conduct of the licensee in performance of its obligations
or compliance with the City's ordinances in the past or the existence
of any outstanding violations or deficiencies. The City may deny or
condition any agreement where the proposed use would interfere with
the public use of the rights-of-way or otherwise conflict with the
legitimate public interests of the City or as otherwise provided by
law. The City may establish standard agreements setting forth the
minimum requirements for all licensees. Applications for agreements
may be approved, denied or approved with conditions consistent with
applicable requirements of the Telecommunications Act or other applicable
requirements as may be necessary to fulfill the requirements and objectives
of this Code.
[Ord. No. 1681 §1(2.6), 12-17-2001]
An agreement for communications service shall not provide licensee
the right to provide cable service as a cable operator (as defined
by 47 U.S.C. Section 522(5)) within the City. Upon licensee's request
for a franchise to provide cable service as a cable operator (as defined
by 47 U.S.C. Section 522(5)) within the City, the City shall timely
negotiate such cable television services franchise in good faith with
licensee. A communications services agreement shall also not permit
licensee to operate an open video system, except where otherwise expressly
provided in the agreement or by separate agreement and licensee remits
the maximum fees permitted by 47 U.S.C. Section 573(c)(2)(B) and where
licensee otherwise complies with FCC regulations promulgated pursuant
to 47 U.S.C. Section 573. Absent such applicable agreement from the
City, licensee shall be prohibited from offering OVS service and any
such service shall be considered a breach of the agreement. Unless
otherwise specified, any such new agreement or amendment to an agreement
shall obligate licensee to pay a use fee of five percent (5%) on all
gross revenues directly or indirectly attributable to the provision
of OVS service within the City. The City may, at its option, negotiate
with licensee to exchange all or a part of the use fees for capacity
or facilities used for City or other public purposes. Any such exchange
shall be negotiated based on the licensee's cost of providing capacity
or facilities to the City and shall be credited towards the calculation
of applicable use fees.
[Ord. No. 1681 §1(2.7), 12-17-2001]
The licensee shall construct and maintain its facilities in
accordance with all applicable Federal, State and local laws, including
all permit requirements and fee payments, and all other City Codes
and ordinances in effect as of the date of an agreement or hereinafter
adopted to the extent not in contravention of State or Federal law.
The grant of an agreement does not in any way impact the continuing
authority of the City through the proper exercise of its home rule
or statutory powers to adopt and enforce ordinances necessary to provide
for the health, safety and welfare of the public. The City makes no
express or implied representation or warranty regarding its rights
to authorize the installation or construction of facilities on any
particular segment of rights-of-way. The burden and responsibility
for making all such determinations in advance of construction or installation
shall be entirely upon the licensee. The use of the rights-of-way
authorized by any agreement shall in all matters be subordinate to
the City's use and rights therein.
[Ord. No. 1681 §1(2.8), 12-17-2001]
An agreement shall be effective for a term of five (5) years
from its effective date, unless the City reasonably determines that
a shorter term is warranted under the circumstances.
[Ord. No. 1681 §1(2.9), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]
To the extent permitted by applicable law, a fee for the use
of the rights-of-way for purposes other than cable television facilities
shall be imposed on a linear foot base as may be established from
time to time by the Governing Body, or such other basis as may be
established by the Governing Body in light of the type of use, circumstances
and applicable regulatory requirements, if any.
[Ord. No. 1681 §1(2.10), 12-17-2001]
To the extent licensee markets "bundled" services, including
combinations of services that may be subject to an agreement and also
a cable services franchise, licensee shall fairly reflect to the City
an appropriate and reasonable division of services among the various
services offered based on the actual value of each separate service.
Whether or not licensee separates services on a subscriber's bill,
it will provide to the City the amounts upon which it will pay the
communications services use fee and any applicable taxes or fees based
on the provision of communications service and the amounts upon which
it will pay the franchise fee. Should licensee engage in billing practices
that, in the determination of the City, do not fairly reflect an appropriate
split of communications services and cable services, the City will
notify licensee in writing of its determination. The parties will
meet and discuss in good faith whether the billing practices result
in an unfair payment of fees to the City. If the parties do not agree
on an appropriate method of determining which charges are subject
to communications services use fees and which are subject to the franchise
fee, the parties may subject the dispute to arbitration or may resort
to other methods of dispute resolution, including litigation. Fees
or taxes which are not paid on the appropriate division of bundled
services receipts, when ultimately paid, will be subject to all interest
and penalties provided by the applicable agreements. If licensee holds
a cable service franchise, any fee that could be lawfully attributed
to gross receipts or alternatively "gross revenues" under this Code
shall be deemed to be subject to the higher fee.
[Ord. No. 1681 §1(2.11), 12-17-2001]
Unless otherwise agreed to in writing, all use fees shall be
due and payable on a monthly basis within sixty (60) calendar days
of the close of each month for which the payment applies (the "due
date").
[Ord. No. 1681 §1(2.12), 12-17-2001]
If any use fee, or any portion thereof, is not postmarked or
delivered on or before the due date, interest thereon shall accrue
from the due date until received at the rate of one and one-half percent
(1.5%) per month, unless such other maximum rate is established by
law.
[Ord. No. 1681 §1(2.13), 12-17-2001]
Each use fee payment shall be accompanied by a statement showing
the manner in which the use fee was calculated. If any fee statement
is determined to understate the fee owed, then such additional amount
owed shall be made with a corrected statement, including interest
on said amount as provided herein. Within ninety (90) calendar days
following the end of the calendar year, each licensee shall submit
a statement, certified as true, setting forth its gross revenues,
the amount of linear foot and antennae within the facilities, and
describing what revenues or receipts (including each type of services)
were included and excluded in the fee calculations for the calendar
year, and describing any adjustments made in determining the use fee.
[Ord. No. 1681 §1(2.14), 12-17-2001]
No acceptance by the City of any use fee shall be construed
as an accord that the amount paid is in fact the correct amount, nor
shall acceptance of any use fee payment be construed as a release
of any claim of the City.
[Ord. No. 1681 §1(2.15), 12-17-2001]
Licensee shall at all times maintain complete and accurate books
of account and records of the business, ownership and operations of
the licensee with respect to the system in a manner that allows the
City to determine whether the licensee has properly calculated its
use fee in compliance with this Chapter. Should the City reasonably
determine that the records are not being maintained in such manner,
the licensee shall correct the manner in which the books and/or records
are maintained so that the licensee comes into compliance with this
Section. All financial books and records which are maintained in accordance
with FCC regulations and the regulations of any governmental entity
that regulates utilities in Missouri and generally accepted accounting
principles shall be deemed to be acceptable under this Section. Such
books and records shall be maintained for a period of at least three
(3) years. The failure to provide information or maintain records
as required herein shall be grounds for forfeiture or revocation of
an agreement.
[Ord. No. 1681 §1(2.16), 12-17-2001]
The City or its designated representatives shall have the right
to inspect, examine or audit, during normal business hours and upon
reasonable notice, all documents, records or other information that
pertains to the system and/or licensee's use fee obligations under
the agreement. In addition to access to the records of licensee for
audits, upon request, licensee shall provide reasonable access to
records necessary to verify compliance with the terms of the agreement.
If any audit or review by the City results in a determination by the
City that licensee has underpaid any amount due by more than five
percent (5%) of the total due, licensee shall, in addition to other
amounts due, also pay any audit costs incurred by the City in determining
or identifying such underpayment.
[Ord. No. 1681 §1(2.17), 12-17-2001]
Franchisee shall on an annual basis provide the City with a
description of new local communications services offered within the
City during the prior six (6) month period. The first (1st) annual
report shall also provide a listing of each separate type of service
or bundled service offered during the initial annual period. Any individual
or bundled service or item for which the provider has a separate charge
shall be considered a separate service under this paragraph.
[Ord. No. 1681 §1(2.18), 12-17-2001]
The use fees required herein shall be in addition to, not in
lieu of, all taxes, charges, assessments, licenses, fees and impositions
otherwise applicable that are or may be imposed by the City. The use
fee is compensation for use of the rights-of-way and shall in no way
be deemed a tax of any kind. Licensee shall be fully responsible for
the payment of all applicable taxes.
[Ord. No. 1681 §1(2.19), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]
Within thirty (30) days of the licensee carrying any communications
of any reseller service provider through licensee's facilities, licensee
shall notify the City of the name and address of such reseller service
provider, the reseller rates or tariffs to be paid to licensee relating
to such reseller, and provide to City any written commitment, if any,
as to the payment of use fees for the revenues attributable to such
reseller service provider. Thereafter, each licensee shall provide
the City on at least an annual basis the identity of entities with
which the rights-of-way user has entered into an interconnection and/or
resale agreement within the State of Missouri, or those providing
service within the City, if that information is available. This notice
will not relieve the reseller service provider from its own obligation
to register and obtain any necessary agreement with the City. Nothing
in this Code shall prevent a facility based service provider from
providing to any reseller service provider the use of the facility
based service provider's facilities in the rights-of-way as authorized
by Federal or State law. A reseller service provider shall pay all
applicable taxes, licenses or fees of the City and may not lawfully
do business in the City or use the facilities in the rights-of-way,
or capacity therein, if it is in default of such obligations.
[Ord. No. 1681 §1(2.20), 12-17-2001; Ord. No. 1981 §1, 2-17-2004]
Prior to providing service within the City, a reseller service
provider shall first register with the City and obtain any necessary
permit, business license, certification, grant or any other authorization
required by any appropriate governmental entity, including, but not
limited to, the City, the Federal Communications Commission or the
Missouri Public Service Commission. Reseller service provider shall
include a statement under oath by the registrant setting forth (1)
the certification of the applicable regulatory approval necessary
to undertake such service or communications, (2) the name of the provider(s)
owning the facilities within the City through which the communications
shall be transmitted, (3) the commencement date for providing any
service within the City, (4) the name, address (physical and electronic
mail) and phone number of a designated representative of the registrant
accountable for compliance with City regulations and taxes, and (5)
the type of services offered or expected to be offered in the following
annual period. Such registration shall, among other reasons, be available
for use by the City to determine applicability and compliance of the
registrant with applicable City taxes. The reseller service provider
shall report any changes in its registration information within thirty
(30) days.
[Ord. No. 1681 §1(2.21), 12-17-2001]
Except as otherwise may be provided by law or agreement, licensee
shall not lease, sell or otherwise transfer possession or control
of the facilities, or any portion thereof, for any purpose to any
person that has not obtained a duly issued agreement or other grant
by the City to use the rights-of-way and which includes the authority
to use or maintain such leased or transferred facilities. Licensee
shall provide the City at least thirty (30) days' prior notice of
such intended sale, lease or transfer of possession or control.
[Ord. No. 1681 §1(2.22), 12-17-2001]
The licensee shall not sell, transfer, lease, assign, sublet
or dispose of in whole or in part, either by forced or voluntary sale
or by ordinary sale, consolidation or otherwise, an agreement or any
of the rights or privileges granted by an agreement without the prior
written consent of the City; provided that such transfer may occur
without written consent of the City to a wholly owned parent or subsidiary,
or between wholly owned subsidiaries, upon thirty (30) days' prior
notice to the City. Such consent shall not be unreasonably withheld.
The City reserves the right to be reimbursed for its reasonable costs
relating to a transfer of ownership. Licensee shall not change its
name under which it does business with the public without providing
at least thirty (30) days' prior notice to the City.
[Ord. No. 1681 §1(2.23), 12-17-2001]
In case of failure on the part of the licensee, its successors
and assigns to comply with any of the provisions of this Code or an
agreement, or if the licensee, its successors and assigns should do
or cause to be done any act or thing prohibited by or in violation
of this Code or the terms of an agreement, the licensee, its successors
and assigns shall forfeit all rights and privileges permitted by this
Code and any agreement, and all rights hereunder shall cease, terminate
and become null and void, provided that said forfeiture shall not
take effect until the City shall carry out the following proceedings:
Before the City declares the forfeiture or revocation of an agreement,
it shall first serve a written notice upon the company, setting forth
in detail the neglect or failure complained of, and the company shall
have thirty (30) days thereafter, or such other reasonable period
established by the Board of Aldermen, in which to cure the default
by complying with the conditions of an agreement and fully remedying
any default or violation. If at the end of such thirty (30) day period
the City determines that the conditions have not been complied with,
the City shall take action by an affirmative vote of the Board of
Aldermen present at the meeting and voting to terminate the agreement
setting out the grounds upon which said agreement is to be forfeited
or revoked. Nothing herein shall prevent the City from invoking any
other remedy or from declaring immediate forfeiture where the default
is incapable of being cured by licensee, including where such defaults
or violations have repeatedly occurred.
