(A) As consideration for this franchise, which provides for the rental and use by the company of the rights-of-way and other public places within the boundaries of the city, which are valuable public properties acquired and maintained by the city at great expense to its taxpayers and citizens, the company shall pay to the city an amount equal to 3% of the gross revenue, as defined in § 13-4-6-2, collected by the company for the first year from the effective date of this franchise ordinance. Thereafter, for the next one-year term the company shall pay to the city an amount equal to 4% of the gross revenue collected by the company. For the remaining five-year term of this franchise, the company shall pay to the city an amount equal to 5% of the gross revenue collected by the company. Provided, however, in accordance with this section and the provisions contained in the definition of
GROSS REVENUE in § 13-4-6-2, after notice by the company to the city of the company's intent to extend its facilities, or services, outside of Bernalillo County, and upon the company's commencement of services across facilities outside Bernalillo County, the fee under this ordinance shall escalate to 5% of gross revenue. Such 5% fee shall become due the month following the month the extended facilities are placed in service. The city shall use its best efforts to ensure that any company providing services substantially similar to those provided by the company (i.e., "Lightwave") shall pay an equivalent fee measured as a percentage of gross revenues equal to or greater than that paid by the company.
(B) In consideration of the agreement of the company to make such franchise payments, the city agrees that no license, tax, or charge on the business, occupation or franchise of the company shall be imposed upon or required of the company by the city during the term of this ordinance. This provision shall not exempt the property of the company from lawful property, ad valorem taxes and local improvement district assessments. This provision shall also not exempt the company from conditions, exactions, fees and charges, which are generally applicable during the company's real property development or use as required by the city's ordinances.
(C) Commencing the month following the month this franchise ordinance becomes effective, the franchise fee shall be paid monthly on the 25th day of each month; such fee shall be for gross revenues received by the company for the preceding month. The company shall furnish to the city with each payment of compensation required by this section a written statement, showing the amount of gross revenue of the company within the city for the period covered by the payment. Upon receipt of such payment the city shall issue a receipt to the company. To facilitate the city's annual budget process, on or before December 31, 1995, and each succeeding December 31st thereafter during the term of this franchise ordinance, the company will provide the city with an estimate of the gross revenue and resultant franchise fee for the following calendar year. Nothing herein shall preclude the company and the city from agreeing to a revised payment schedule.
(D) On or before the first day of February of each succeeding year, the company shall submit to the City Treasurer a statement of the franchise fee actually due to the city based upon the actual gross revenue for the previous calendar year, together with a check for any amount due from the company or a statement for any amount due from the city. Within 30 days from the submission of the statement of franchise fee owing, or within such reasonable additional time as he may request, the Treasurer shall investigate the statement and determine the accuracy of the amounts reported. However, neither payment of the franchise 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.
(E) In the event it is claimed by the city that the amount of the franchise fee paid hereunder for any calendar year is insufficient, or in the event the company claims that the amount is excessive, and the parties cannot agree, the city and the company shall attempt to informally negotiate a resolution. In the event that negotiations fail, the dispute shall, before any other remedies are invoked, be submitted to nonbinding mediation with the assistance of and through the city's ADR Coordinator.
(F) 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 or proper authority, the company 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. This section, however, shall not constitute a waiver of any claim the company may assert against the city.
(G) Acceptance by the city of any payment due under this section shall not be deemed to be a waiver by the city of any breach of this franchise occurring prior thereto, nor shall the acceptance by the city of any such payments preclude the city from later establishing that a larger amount was actually due, or from collecting any balance due to the city.
(H) (1) In consideration of the rights and privileges hereby granted, the city shall have and the company hereby grants to it, the right and privilege at the city's expense to suspend and maintain wires and necessary control boxes on poles placed by the company in the streets and other places aforesaid, or if such wires are placed underground, to place and maintain in the pipes or conduits of company, if space therein is available, wires which the city may require for fire, police, emergency or other municipal purposes. All such wires shall be placed on the poles or in the conduits so as not to interfere with the service of the company and shall not pose a danger to the company's facilities, customers, or customers' property. However, nothing in this franchise shall limit the company's right to reserve conduit space and/or pole space which in its sole discretion it retains for purposes of assuring the safety of or servicing of the facilities. The city agrees in consideration of the establishment of this service and the furnishing of such facilities to hold the company free and harmless from all claims or liability for damage which may arise out of the city's operation of such wires and control boxes.
(2) As further consideration of the rights and privileges hereby granted, and upon reasonable request by the city and to the extent the company can reasonably do so, pursuant to its leases and agreements with other right-of-way providers, the company will grant joint use of rights-of-way which it now, or in the future, has an interest in to the city for purposes including but not limited to parks, drainage facilities, bikeways, traffic conduits, mass transit corridors, sanitary sewer lines, pedestrian area parking, open spaces and electric, cable, natural gas and water service distribution, provided that the company shall not be required to make such an offer in any circumstance where such offer would unreasonably interfere with the company's use of the rights-of-way. Compensation for such joint use shall be as negotiated by the city and the company. If the city's joint use is accepted by the company, then any improvements deemed appropriate by the city shall be made by the city at its sole expense.
(I) The company agrees that any franchise or other fee paid by the company to the city shall not be reflected as a line item or separate fee on invoices to ultimate consumers of the company. Any fee paid to the city is a cost of doing business to the company and shall be embedded in the rates charged to consumers.
(J) The compensation paid by the company for this franchise includes compensation for the rental and use of any rights-of-way and public place located within the city as authorized.
(Ord. 49-1995)