The following definitions shall apply unless the context clearly indicates or requires a different meaning. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; words in the singular number include the plural number; and, the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory when applied to any person, and "may" is permissive. Unless otherwise specified, references to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.
AFFILIATE.
A person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, Grantee.
CITY.
The City of Albuquerque, or its successor government with municipal powers, and all departments, divisions, and agencies thereof; except when used to describe a geographic area, the term refers to the boundaries of the City of Albuquerque, New Mexico, as they exist now or may exist in the future.
CITY COUNCIL.
The legislative body of the City, or its designee.
CONSTRUCTION, OPERATION OR REPAIR.
This and similar formulations refer to the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation, and the management of the system and its operations.
DIRECTOR OF PUBLIC WORKS
or
DIRECTOR.
The Director of the Public Works Department of the City or his or her designee charged with the administration of the Public Rights-of-Way.
FRANCHISE.
An authorization granted by the City giving the Grantee the non-exclusive right to rent and occupy the space, or use facilities upon, across, beneath, or over Public Rights-of-Way in the City, to provide specified services within a franchise area. A permit is not a franchise.
FRANCHISE AREA.
The area of the City that a Grantee is authorized to serve by the terms of this Franchise or by operation of law and being that area within the City limits, including areas that may be annexed from time to time.
GRANTEE.
PNM Gas Services, a division of Public Service Company of New Mexico, or the entity recognized by the New Mexico Public Regulation Commission as the utility responsible for the distribution of natural gas in the Franchise Area.
GROSS REVENUES.
(1) Any and all revenues, except Excluded Revenues, actually collected by Grantee during each year during the term of this Franchise for:
(a) The distribution, transmission and sale of natural gas sold and consumed within the corporate limits of the City under Grantee's approved bundled or unbundled rate schedules as in effect from time to time,
(b) Transportation service provided by Grantee to a third-party marketer for natural gas transported on the System to a delivery point within the corporate limits of the City and for ultimate sale and consumption by end users located therein; and
(c) Items that are necessary to the provision of natural gas and transportation services described in (a) and (b) above, including revenues from connecting, reading and testing meters, returned check fees, collection charges and late fees.
(2) "Excluded Revenues" means amounts collected by Grantee for (i) the sale or transportation of natural gas for use in the manufacture and production of electricity for resale to the public, (ii) the sale of natural gas by any third-party marketer, including an Affiliate, and (iii) payment of sales or gross receipts taxes and franchise fees.
(3) In the event of a dispute between the City and Grantee regarding whether a particular item is within the definition of "Gross Revenues," following written notice by one party to the other, the parties shall exercise good faith efforts to resolve the dispute. If the parties fail to resolve the dispute to their mutual satisfaction within 15 days of such notice, for a period of 30 days after the expiration of the 15-day period, each party shall have the right to require binding arbitration of the disputed item by giving written notice thereof to the other party.
(4) Grantee and the City acknowledge that as of the date of this Franchise, revenues from items described in subparagraphs (a) - (c) (excluding Excluded Revenues) ("Bundled Revenues") are not collected by any Affiliate. Unless the New Mexico Public Regulation Commission has approved Grantee's unbundling of Bundled Revenues, any Bundled Revenues hereafter collected by an Affiliate shall be included in the definition of Gross Revenues for purposes of calculating the franchise fee under § 13-4-8-7(A).
MAYOR.
The Mayor or the Mayor's designee.
PERSON.
Any person, individual, firm, organization, corporation, partnership, association, limited liability company, joint stock or other company, business or other trust, public agency, school district, the State of New Mexico, its political subdivisionsand/or instrumentalities, or any other legal entity, but not the City.
PUBLIC PROPERTY.
Any property that is owned or under the control of the City that is not a public right-of-way but may be dedicated for public use or travel, including but not limited to, buildings, parks, structures such as utility poles and light poles, or similar facilities or property located in a public right-of-way or owned by or leased to the City.
PUBLIC RIGHTS-OF-WAY.
The surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, or right-of-way or easement primarily dedicated to travel, now or hereafter existing within the City which may be properly used for the purpose of installing, maintaining, and operating a system; and any other property that a Grantee is entitled by state or federal law to use by virtue of the grant of a franchise. Reference to the Public Rights-of-Way will also include Public Property. To the extent that Grantee holds an easement granted by the City on any Public Property that permits use and occupation of such property, the terms and conditions of that easement shall govern and control the subject property.
SYSTEM.
Gas mains, pipes, boxes, reducing and regulation stations, laterals, conduits and connections, including service connections, together with all of the necessary or useful appurtenances, for purposes of supplying natural gas within the Franchise Area.
(Ord. 2-2003)