[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.