§ 53.23  COMPENSATION FOR USE OF THE RIGHTS-OF-WAY.
   (A)   Use fees.
      (1)   Unless otherwise lawfully established by the City Council, or as required by applicable law, utilities shall pay to the city as monthly compensation for the use of the rights-of-way, other than for incidental uses, a monthly use fee of:
         (a)   One thousand dollars per month for the first mile of linear facilities, or part thereof, plus $0.16 per linear foot per month thereafter; and
         (b)   Two hundred dollars per month for each antenna in the rights-of-way, or such other amounts as established by the City Council.
      (2)   Linear foot fees shall be due and payable on a monthly basis within 30 calendar days of the close of each month for which the payment applies. 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 1.5% per month, unless such other maximum rate is established by law.
      (3)   Credit. The utility shall be entitled to a credit to the linear foot fee owed pursuant to division (A)(1)(a) above in the final amount of any payments owed under the Simplified Municipal Telecommunications Tax (ILCS Ch. 35, Act 636, §§ 5-1 et seq., “SMTT”) and paid to the city for the same period; provided such amount is specifically shown and documented in the applicable fee statement accompanying the linear foot payment and such credit shall not exceed the amount of linear foot fee owed for that period.
      (4)   The use see required in this section shall be paid by the utility as required herein without offset, credit, refund, or deduction except for such credit as is expressly provided for above for SMTT paid.
      (5)   Limitation. Nothing herein shall require payment of use fees described in this division (A) to the extent such use fees are prohibited by applicable law, including for placement of small wireless facilities as defined in ILCS Ch. 50, Act 840, § 10 to the extent such use fees would be prohibited or otherwise limited by federal or state law.
   (B)   Bundled services. The utility expressly acknowledges and agrees that, to the extent it markets bundled services, including a combination of goods or services that may be subject to this chapter, it will 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 the utility separates services on a subscriber’s bill, it will provide to the city notice of any such allocation sufficient for city verification. Should the utility engage in billing or payment practices that, in the reasonable determination of the city, do not fairly reflect a fair and appropriate allocation, the city may nullify such allocation and require payment applicable to the full receipts.
   (C)   Fee statement. 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 may 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 the amount as provided herein. Within 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, additional payments or credits) arising from information not known and reflected as of the payment date. Any required additional payment shall be included with the report, any credit shall be deducted from the following annual payment.
   (D)   No accord and satisfaction. 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.
   (E)   Maintain records. Utilities shall at all times maintain complete and accurate books of account, and records of the business, ownership, and operations of the utility with respect to the facilities, in a manner that allows the city to determine whether the utility 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 utility shall correct the manner in which the books and/or records are maintained so that the utility comes into compliance with this section. All financial books and records  maintained in accordance with FCC regulations and the regulations of any governmental entity  regulating utilities in Illinois, 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 five years, but nothing herein shall limit the years or scope of audit if reasonably related to determining or enforcing compliance.
   (F)   Right of inspection. The city or its designated representatives shall have the right to inspect, examine or audit, during normal business hours and upon seven-calendar-day notice, all documents, records or other information that pertains to the facilities within the ROW and/or the utility’s user fee obligations. In addition to access to the records of utility for audits, upon request, the utility shall provide reasonable access to records necessary to verify compliance with the terms of this chapter.
(Ord. 4016, passed 12-4-2017; Ord. 4090, passed 4-1-2019)