(A) Fees and charges.
(1) Municipal Authority fee. As partial compensation for the use of the Public Rights-of-Way, each Provider shall be subject to an annual fee of three percent (3%) of Gross Revenue obtained from the provision of the various Telecommunications Service. Nothing contained in this ordinance shall prohibit or otherwise prevent a Provider or other Person from passing through any Municipal Authority or Franchise Fee to the ultimate end user of Tele-communications Service.
(2) Filing fee. Each Applicant shall submit a $2,500 non-refundable application for each Municipal Authority or Franchise request.
(3) Non-monetary consideration. Upon mutual agreement between the City and Provider, each Provider shall furnish to the City, or certain communities within the City, non-monetary consideration in the form of Network capacity, conduit, equipment, or other infrastructure or services. This consideration shall be negotiated with each Provider taking into account the unique characteristics of each, and said consideration shall be valued in a nondiscriminatory manner. Further, any nonmonetary consideration furnished to the City shall be for the City's internal and noncommercial purposes, not for resale, and for the City's sole and exclusive use.
(4) Permit, inspection, and review/location charges. Each Provider shall furnish all permit and inspection charges related to a Provider's construction in the Public Rights-of-Way, as assessed by the Director of Public Works in accordance with City Requirements.
(B) Fee on gross revenue in lieu of fee on wholesale revenue. Any Provider or Person electing to pay to the City, pursuant to an agreement with the City, an annual Municipal Authority fee under § 13-4-10-4 calculated on the basis of such Person's Gross Revenue from the provision of Telecommunications Service, shall expressly acknowledge in such agreement or Municipal Authority that that Person's Network and Systems are placed in and using the Public Rights-of-Way and used to provide any Telecommunications Service.
(C) Payment of Municipal Authority fee.
(1) Commencing the month following the month any Municipal Authority or Franchise Contract becomes effective, the fee shall be paid monthly on the 25th day of each month; such fee shall be for Gross Revenues received by the Provider for the preceding month. The Provider 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 the Provider within the City limit, broken out by Provider's revenue code, for the period covered by the payment. Within such reasonable time as he/she 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.
(2) In the event that it is claimed by the City that the amount of the fee paid for any calendar year is insufficient, or in the event that the Provider claims that the amount is excessive, and the parties cannot agree, the City and the Provider 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 binding mediation with the assistance of the City's ADR (Alternative Dispute Resolution) Coordinator.
(3) In the event that the fee set forth in any Municipal Authority is declared illegal, unconstitutional, or void for any reason by any court or proper author-ity, the Provider 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 fee for the remainder of the City's current fiscal year. This section, however, shall not constitute a waiver of any claim the Provider may assert against the City.
(4) Acceptance by the City of any payment due under a Municipal Authority shall not be deemed to be a waiver by the City of any breach of the Municipal Authority 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.
(5) (a) In consideration of the rights and privileges granted by any Municipal Authority, the City shall have and Provider shall grant 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 Provider in the Public Right-of-Way 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 Provider and shall not pose a danger to the Provider's facilities, customers, or customer's property. However, nothing in the Municipal Authority or Franchise Contract shall limit the Provider'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 its facilities. City agrees, in consideration of the establishment of this service and the furnishing of such facilities, to hold the Provider 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. In no event shall the City be required to pay any pole attachment fees in connection with the exercise of the City's rights under this section.
(b) As further consideration of the rights and privileges granted by any Municipal Authority, and upon reasonable request by the City and to the extent the Provider can reasonably do so, pursuant to its leases and agreements with other right-of-way providers, the Provider 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 Provider shall not be required to make such an offer in any circumstance where such offer would unreasonably interfere with the Provider's use of the Public Rights-of-Way. If the City's joint use is accepted by the Provider, then any improvements deemed appropriate by the City shall be made by the City at its sole expense.
(6) To facilitate the City's annual budget process, on or before the 1st of November and each succeeding 1st of November thereafter during the term of any Municipal Authority granted under this Chapter, the Provider will provide the City with an estimate of the Gross Revenue and resultant fee for the following calendar year. Nothing herein shall preclude the Provider and the City from agreeing to a revised payment schedule.
(D) City's right to audit.
(1) Providers shall keep complete and accurate books of accounts and records of their business and operations pursuant to any Municipal Authority granted hereunder in accordance with generally accepted accounting principles. If required by the FCC, Providers shall use the system of accounts and the forms of books, accounts, records, and memoranda prescribed by the FCC in 47 CFR Part 32 or its successor, and as may be further described herein. The Director may require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for, and reporting Gross Revenue and uncollectibles for purposes of any Municipal Authority. Providers shall keep their books of account and records in such a way that identification of revenues by type of service within the City are available.
(2) (a) The City shall have the right to review or audit the Provider's books and records in accordance with regularly accepted accounting and audit standards regarding any amounts which may be owed under a Municipal Authority. This right includes the right to review and audit all books and records of revenue not included in the calculation of the fee paid. The City shall give written notice to the Provider of any additional amount claimed to be due to the City as a result of the City's review.
(b) If the Provider disputes the additional amount allegedly due to the City, if any, the dispute shall be determined by binding arbitration pursuant to the rules of the American Arbitration Association, with arbitration to be held in the City. The party that substantially prevails should be awarded attorneys' fees and costs for expenses incurred in resolving any dispute arising from this section.
(3) In the event of an audit, the Provider shall provide City-specific books, records, contracts, account codes, documents, and papers for its operations within the City.
(4) All such books, records, and accounts of the Provider shall be retained by the Provider for a period of six years, in accordance with § 37-1-3 NMSA 1978, or its successor. The Provider shall make such records as are necessary for the City to complete its audit and be available for inspection by the City upon 30 days notice from the City.
(5) All audits will take place on Provider premises within the City of Albuquerque. The City's auditors may review all directly relevant materials and may make copies of any materials with the approval of the Provider. Such approval will not be unreasonably withheld.
(6) Providers shall report to the City such other information relating to the Municipal Authority as the Director may reasonably require and shall comply with the City's reasonable determination of forms for reports, the time for reports, the frequency with which any reports are to be made, and if reports are to be made under oath.
(7) The Director may, at any time, make inquiries pertaining to Providers' performance under the terms and conditions of a Municipal Authority. Providers shall respond to such inquiries on a timely basis.
(8) Providers shall furnish the City:
(a) On a monthly basis, copies of any application or petition filed by Provider with the State Corporation Commission or successor agency, as well as copies of show cause orders filed by that agency; and
(b) Annually, reports filed with the Securities and Exchange Commission and relating to any matters affecting the use of City streets, alleys, and Public Rights-of-Way and/or the Telecommunications Services authorized pursuant to a Municipal Authority granted under this Chapter.
(9) The City will maintain confidentiality of information provided by Providers to the maximum extent permitted by law when Providers have notified the City of the confidential nature of the information.
(Ord. 20-1997)