§ 6.5-234. Right-of-way use and occupancy fee rent.

(a)

Pursuant to section 253(c) of the Telecommunications Act of 1996, the city reserves and preserves the right to assess, impose and collect rent or a right-of-way use and occupancy fee from any service provider or system owner or operator occupying and using the city's property and the city's rights-of-way for commercial purposes.

(b)

If assessed, and to the extent permitted by law, the city shall impose rent or a right-of-way use and occupancy fee on a nondiscriminatory and competitively neutral basis.

(c)

The amount of rent or the right-of-way use and occupancy fee shall not exceed the fair market value of the city's property and rights-of-way that are used and occupied for commercial purposes, as determined by the city council; nor shall the amount of rent or the right-of-way use and occupancy fee exceed the fair market value of the city's property and rights-of-way that are used and occupied by a service provider or system owner or operator for commercial purposes, as determined by the council.

(d)

An assessment pursuant to this section may be based upon (i) the fair market value of like or similar property adjacent to the city's property or rights-of-way that are used and occupied by the service provider or system owner or operator serving that portion of the city, or (ii) the average fair market value of commercially zoned property within the city that is used and occupied for commercial purposes as determined by ascertaining the average or mean value for the preceding three (3) years, or (iii) up to five (5) per cent of the gross revenue of the service provider or system owner or operator as gross revenue is defined in section 5 of this article, whichever is greater. The city council shall make the determination which of the alternatives set forth in this subsection it chooses to use, but the city may use only one (1) of the alternatives and never a combination.

(e)

Notwithstanding anything to the contrary in this section, the city may negotiate with a service provider or system owner or operator for the in-kind provision of services or other valuable consideration in lieu of all or a portion of the amount that would otherwise be required to be paid. However, the city shall not be obligated to grant this option to any service provider or system owner or operator, so long as it applies this authority in a manner among like or similar service providers that is nondiscriminatory and competitively neutral in effect with respect to the value received by the city.

(f)

In the event the city elects to determine rent or a right-of-way use and occupancy fee using a percentage of gross revenue, the requirements of subsections (j) through (y) of the previous section shall apply.

(g)

All payments of rent or a right-of-way use and occupancy fee shall be quarterly on a calendar year basis, unless otherwise expressly set forth in the franchise.

(Ord. No. A-177, § 84, 3-13-2000)