(A) Fee and rental. As consideration for this franchise, which provides for the rental and use by NMUI of the rights-of-way within the boundaries of the city and the Public Regulation Commission approved service area, which are valuable public properties acquired and maintained by the city at great expense to its taxpayers and citizens, NMUI shall pay to the city a franchise fee in the amount of 4% of the annual gross revenue within the city limits, as defined in § 13-4-4-3 of this franchise ordinance. The franchise fee provided for herein shall constitute partial consideration by NMUI to the city for NMUI's use and occupancy of the rights-of-way within the boundaries of the city. Said payments shall be in lieu of any and all other franchise fee, license, privilege, occupation, excise or revenue taxes, except special assessments of general applicability for local improvements, standby charges, fees for barricade and excavation permits, sidewalk permits, curb and gutter permits or other city-required permitting fees, generally imposed by the city upon the business, revenue, property, facilities or other appurtenances of NMUI or any part thereof in the city during the term of this franchise ordinance. As additional consideration for this franchise, NMUI and the city agree to the following:
(1) NMUI shall maintain all current fire protection waterline connections at the main waterline and allow for all required new fire protection connections at the main waterline for city facilities;
(2) NMUI shall provide water for fire suppression at no cost to the city. The parties further agree to establish a methodology or process for estimating water usage for fire suppression;
(3) NMUI shall maintain all fire hydrants to operable condition, including periodic painting, for use by the city and the city will inspect, lubricate and flow the hydrants within the limits of the city annually. The city will notify NMUI of any defects observed at the time of the inspection. NMUI will notify the city when they receive the documentation of observed defects and when those defects have been corrected. At least quarterly, NMUI will notify the city of the location of all new or relocated hydrants.
(B) Payment terms. Commencing the month following the month this franchise ordinance becomes effective, the franchise fee shall be paid monthly on the twenty-fifth day of each month; such fee shall be for gross revenues received by NMUI for the preceding month. Nothing herein shall preclude NMUI and the city from agreeing to a revised payment schedule.
(C) Reconciliation. NMUI shall furnish to the city with each payment of compensation required by this section a detailed written statement showing the amount of gross revenue received by NMUI within the city limit, broken out by NMUI's revenue accounts, for the period covered by the payment. Within such reasonable time as he may require, the Treasurer shall determine the accuracy of the amounts reported. However, neither payment of the fee nor failure to make such investigation shall estop the city in any way or prevent subsequent investigation, collection or return of any amount properly due and not barred by any applicable statute of limitations. In addition to paying all fees owed plus interest, in the event that the city reviews NMUI's franchise fee payments, and finds that NMUI has underpaid the fee owed for any year in an amount exceeding 5% of the franchise fees actually paid, NMUI shall pay the reasonable cost of the city's review.
(D) Claims. In the event it is claimed by the city that the amount of the franchise fee paid hereunder is insufficient, or in the event NMUI claims that the amount is excessive, and the parties cannot agree, the city and NMUI shall attempt to informally negotiate a resolution. In the event that negotiations fail, the dispute shall be submitted to non-binding mediation pursuant to the Commercial Mediation Rules of the AAA in effect at the time or as otherwise agreed to by the parties.
(E) Contract payment. In the event that the franchise fee set forth in this franchise ordinance is declared illegal, unconstitutional or void for any reason by any court, NMUI shall be contractually bound to pay the city, at the same times and in the same manner as provided for herein, an aggregate amount equal to the amount which would have been paid as a franchise fee.
(Ord. 1-1994; Am. Ord. 32-2007)