[R.O. 2010 §461.110; Ord. No. B2-01 §2.1, 2-19-2001]
It shall be unlawful for any person to construct, operate, own
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.
[R.O. 2010 §461.120; Ord. No. B2-01 §2.2, 2-19-2001]
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.
[R.O. 2010 §461.130; Ord. No. B2-01 §2.3, 2-19-2001]
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 shall grant the
right to use facilities owned or controlled by the City or a third
(3rd) party without the consent of such party, nor shall it excuse
licensee from obtaining appropriate access or pole attachment agreements
before locating on the facilities controlled or owned by the City
or a third (3rd) party. All agreements shall be deemed to incorporate
and be limited by the provisions of this Code and shall create rights
solely applicable to licensee.
[R.O. 2010 §461.140; Ord. No. B2-01 §2.4, 2-19-2001]
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 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.
[R.O. 2010 §461.150; Ord. No. B2-01 §2.5, 2-19-2001]
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.
[R.O. 2010 §461.160; Ord. No. B2-01 §2.6, 2-19-2001]
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.
[R.O. 2010 §461.170; Ord. No. B2-01 §2.7, 2-19-2001]
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.
[R.O. 2010 §461.180; Ord. No. B2-01 §2.8, 2-19-2001]
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.
[R.O. 2010 §461.190; Ord. No. B2-01 §2.9, 2-19-2001]
A.
Licensee
shall pay to the City as monthly compensation for the use of the rights-of-way
pursuant to an executed agreement a use fee equal to seven percent
(7%) of monthly gross receipts, if any, but in no event shall the
use fee be less than the sum of:
1.
One dollars ninety cents ($1.90) per linear foot for underground
facilities and one dollar seventy cents ($1.70) per linear foot for
above ground facilities located within the public rights-of-way, on
the close of the calendar year for which payment is calculated, with
a minimum fee of three thousand dollars ($3,000.00) per quarter. Said
annual fee shall be paid on a quarterly basis on the twenty-fifth
(25th) day of the month immediately following the close of the calendar
quarter for which payment is made. In the event any quarterly payment
is made after the close of business on the date due, licensee shall
pay compound interest at twelve percent (12%) annual percentage rate
of the total amount past due. On January 1, 2002, and each year thereafter,
the amount of the required annual payment shall be recalculated by
the City of Glendale in accordance with the latest available price
changes reflected in the latest Consumer Price Index published by
the Bureau of Labor Statistics of the United States Department of
Labor as follows: The Index number shown for the City of St. Louis,
Missouri, titled "ALL ITEMS" and under the heading of "CPI-U" for
the month of March, 2001, shall be the base index number, and the
corresponding index number for the latest available month prior to
the recalculation date shall be the current index number. From the
quotient thereof there shall be subtracted the integer one (1) and
any resulting positive number shall be multiplied by one hundred (100)
and then deemed to be the percentage increase in the cost of living.
Said percentage shall then be multiplied by the previous annual payment
rate and the resultant figures shall constitute the applicable payment
rate. All such adjustments shall be made to the nearest foot. No adjustment
shall be made hereunder so as to reduce the payment rate. If the designated
Consumer Price Index is not available for use as a "current index
number" for the months hereinabove provided, it is agreed that said
index, as issued and published for the most recent preceding month,
be used to determine such cost of living adjustments; however, in
the event that at any time prior to the termination of this agreement
the current issuance of the designated index is discontinued for a
period of six (6) months, then the City of Glendale shall use any
other appropriate standard cost of living index then issued and available
with a preference to be given to an index published under the auspices
of the U.S. Government.
2.
Fifty dollars ($50.00) for each antenna in the rights-of-way but
not less than five hundred dollars ($500.00) per month in total for
all antennas.
[R.O. 2010 §461.200; Ord. No. B2-01 §2.10, 2-19-2001]
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.
[R.O. 2010 §461.210; Ord. No. B2-01 §2.11, 2-19-2001]
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").
[R.O. 2010 §461.220; Ord. No. B2-01 §2.12, 2-19-2001]
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 (1½%)
per month unless such other maximum rate is established by law.
[R.O. 2010 §461.230; Ord. No. B2-01 §2.13, 2-19-2001]
Each use fee payment shall be accompanied by a statement showing
the manner in which the use fee was calculated and in such format
as my be required by the City. 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.
[R.O. 2010 §461.240; Ord. No. B2-01 §2.14, 2-19-2001]
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.
[R.O. 2010 §461.250; Ord. No. B2-01 §2.15, 2-19-2001]
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.
[R.O. 2010 §461.260; Ord. No. B2-01 §2.16, 2-19-2001]
The City, or a third (3rd) party designated by the City for
the purposes of determining compliance with this Section, shall have
the right to inspect, examine and copy records at a location acceptable
to the City during normal business hours and the right to audit and
to recompute any amounts determined to be payable under this Code,
whether the records are held by the licensee or any other person that
collects or receives funds related to the use fee obligations or the
provision of communications services over a licensee's communications
system in the City. Licensee shall also provide reasonable access
to records necessary to verify compliance with the terms of the agreement.
The franchisee or licensee shall pay the City's audit expenses, costs
or travel charges, including an advance payment of such costs estimated
by the City, provided that the frequency of such audits shall not
exceed one (1) per year. In addition to the annual audit, a franchisee
or licensee shall make such records available for review upon reasonable
notice by the City, provided that the City agrees to bear its own
costs for any such additional review of records. In addition to other
relevant information, the City reserves the right to request information
showing circuit account ID, billing account ID, City of origination,
City of termination within Greater St. Louis area, monthly recurring
revenue, non-recurring revenue, turn-up dates, common language location
identifier (CLLI) codes for all Greater St. Louis customers, names
of CLECs, resellers or IXCs leasing bandwidth, facilities mileage
figures necessary to substantiate licensee license fee calculations.
[R.O. 2010 §461.270; Ord. No. B2-01 §2.17, 2-19-2001]
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.
[R.O. 2010 §461.280; Ord. No. B2-01 §2.18, 2-19-2001]
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, except that licensee, unless hereinafter provided by the City, shall receive a credit in payment of use fees in the amount of any utilities tax due and paid pursuant to Chapter 615 of the City Code. 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.
[R.O. 2010 §461.290; Ord. No. B2-01 §2.19, 2-19-2001]
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.
[R.O. 2010 §461.300; Ord. No. B2-01 §2.20, 2-19-2001]
A.
Prior
to providing service within the City or transmitting communications
through facilities in the City, a reseller service provider shall
provide written notice to the City of the intent to do so and shall
include:
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. It shall be
unlawful for any provider or reseller service provider 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.
[R.O. 2010 §461.310; Ord. No. B2-01 §2.21, 2-19-2001]
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.
[R.O. 2010 §461.320; Ord. No. B2-01 §2.22, 2-19-2001]
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.
[R.O. 2010 §461.330; Ord. No. B2-01 §2.23, 2-19-2001]
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 Governing Body, 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,
and that the company did not reasonably and in the public interest
require more than thirty (30) days to cure the default, the City shall
take action by an affirmative vote of the Governing Body 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.
