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(a) Unless a license or franchise provides otherwise, as compensation for the rights and privileges herein conferred, licensee/franchisee shall pay to the city each calendar quarter during the term of this agreement a quarterly payment equal to five (5) percent of the total quarterly gross receipts (as defined below) received by the licensee/franchisee for services provided to customers within the corporate limits of the city from the provision of competitive telecommunications service within the city. During the initial fifteen (15) month buildout period or until licensee's/franchisee's core system is operational, the minimum fee payable hereunder shall be not less than three thousand dollars ($3,000.00) per quarter for the first four (4) quarters following execution of this agreement, and ten thousand dollars ($10,000.00) per quarter for every quarter thereafter. The quarterly payments required by this section shall be due and payable not later than noon of the last day of the month following the quarter for which payment is due. If the last day of the month following the quarter for which payment is due falls on a weekend or holiday, then the payment is due at noon on the last preceding business day prior to the last day of the month. The compensation set forth in this subsection (a) shall be exclusive of, and in addition to, any application fees or election costs or other costs established by the Code, chapter 7B, and all special assessments and taxes of whatever nature, including, but not limited to, business privilege, and ad valorem taxes. Notwith-standing the foregoing sentence, all license or franchise fees paid by licensee or franchisee pursuant to this section shall be credited towards the payment of the public utility tax levied pursuant to article III of chapter 19 of this Code. In the event any quarterly payment is not timely made, licensee/franchisee shall pay a late payment penalty of the greater of: (i) one hundred dollar ($100.00) per day or (ii) simple interest at ten (10) percent annual percentage rate of the total amount past due. As used in this section, gross revenues shall be as defined in section 7B-2, "gross annual revenues" of this chapter.
(b) Payment of money under this section shall not in any way limit or inhibit any of the privileges or rights of the city under any license or franchise or otherwise.
(c) Licensee/franchisee shall file annually with the city finance director, no later than four (4) months after the end of the licensee/franchisee's fiscal year, a statement of revenues (for that year) attributable to the operations of the licensee/franchisee's network within the city pursuant to this agreement. This statement shall present, in a form prescribed or approved by the city, a detailed breakdown of gross revenues and uncollectible accounts for the fiscal year. This statement shall be audited at no cost to the city by a certified public accountant chosen by licensee/franchisee whose report shall accompany the statement. The city may cause an additional audit to be performed by an auditor selected by the city not more frequently than every third year and licensee/franchisee shall reimburse the city for reasonable costs of such additional audit as determined by the city in the event the audit determines that additional revenues are due and owing to the city.
(d) Any transactions which have the effect of circumventing payment of required license or franchise fees and/or evasion of payment of license or franchise fees by noncollection or nonreporting of gross receipts, bartering, or any other means which evade the actual collection of revenues for business pursued by licensee/franchisee are prohibited.
(e) For the purpose of securing to the city the payments of license or franchise fees that may be owed, the city may require a licensee/franchisee to provide city with a bond, letter of credit or other evidence of security agreeable to city approximating the amount of license or franchise fees to be paid by licensee/franchisee for a two (2) year period. In the event of any default by licensee/franchisee in the payment of required license or franchise fees, such security shall be reviewed by city and a greater level of security agreed to and established for the remainder of the term of the license or franchise.
(f) For the further purpose of securing to the city the license or franchise fee payments that may be owed, the city shall have a lien and the same shall be a charge upon all of the property, estate, and effects of the licensee or franchisee, whatsoever, real, personal, or mixed, provided, however, that such lien shall remain inchoate until notice of default has been given by the city to the licensee or franchisee pursuant to section 7B-18 of this chapter, the licensee or franchisee has failed to take appropriate steps to remedy the default, and the city has filed an appropriate civil action to enforce such lien. Such lien shall be subordinate to any mortgage or deed of trust securing any bona fide indebtedness. The foregoing does not limit the city's rights to enforce the terms of a license and franchise as otherwise provided in chapter 7B of the Code.
(g) Nothing in this section shall be interpreted to require payment of any fee, or agreement to any franchise or license fee that the city is prohibited from enforcing under A.R.S. § 9-582.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 10, 7-10-95; Ord. No. 9911, 11-10-03)
Notwithstanding the provisions of section 7B-26, licensees for long distance competitive- access service who do not meet the twenty (20) linear mile limitation contained in section 7B-36 of this chapter but who connect only to interstate telecommunication carrier points of presence and to no other connection within the city may, as an alternative to the license fees specified in section 7B-26, pay a fee for each linear foot of installation within city rights-of-way on a basis determined by the mayor and council at the time of the granting of the license.
(Ord. No. 9444, § 1, 8-7-00; Ord. No. 10317, § 1, 9-12-06)
(a) Without limitation upon the rights which the city might otherwise have, the city does hereby expressly reserve the following rights, powers and authorities:
(1) To exercise its governmental powers now or hereafter to the full extent that such powers may be vested in or granted to the city.
(2) To determine any question of fact relating to the meaning, terms, obligations or other aspects of this chapter and the license or franchise agreement.
(3) To grant multiple nonexclusive licenses or franchises within the city to other persons for the operation of systems pursuant to this chapter.
(4) To inspect and supervise all construction or installation work performed by the licensee or franchisee.
(b) The city hereby expressly reserves the right to amend any section or part of this chapter for any reason determined to be desirable or necessary by the mayor and council in the exercise of its legislative powers, including, but not limited to, new developments in the state of the technology of the communications industry and changes in federal or state laws, rules or regulations, provided that any such amendments are reasonable. Such amendments shall be adopted only after a public hearing where the licensee or franchisee shall have received written notice at least thirty (30) days prior to the hearing and is provided an opportunity to be heard.
(c) Nothing in this chapter shall be deemed or construed to impair or affect the right of the city to exercise its power of eminent domain to acquire the property of the licensee or franchisee at a fair and just value, which shall not include any amount for the license or franchise itself or any privilege thereunder.
(d) The city reserves the right, during the term of the license or franchise agreement, to install and utilize, upon the pole attachments and conduits of the licensee or franchisee, any wire or pole fixtures required for municipal purposes, without cost to the city so long as such installation and utilization does not interfere with the operation of the system. If such utilization causes the utility to whom the licensee's or franchisee's equipment is attached to incur costs or expenses, the licensee or franchisee shall bear all such costs actually incurred by such utility.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 11, 7-10-95)
The licensee or franchisee shall not deny service, access or otherwise discriminate against subscribers, users or any resident of the city. In this regard, the licensee or franchisee shall comply with the human relations provisions of this Code, section 17-21, incorporated herein by this reference. The licensee or franchisee shall strictly adhere to the equal employment opportunity requirements of the FCC. The licensee or franchisee shall comply at all times with all other applicable federal, state and City laws, rules and regulations, and all executive and administrative orders relating to nondiscrimination.
(Ord. No. 8522, § 1, 6-12-95)
(a) Any person submitting a proposal in response to the city's request for proposals shall provide all information required by this chapter and all other information as may be solicited in the city's request for proposals or otherwise required by the city. Each proposal shall be responsive to the questions soliciting the information and shall completely, accurately and materially supply all of the information so solicited. Any misrepresentation, failure, neglect or refusal to provide any of such information may at the option of the city render a proposal invalid and it may be given no consideration. The requested information must be complete and verified as true by the applicant.
(b) All proposals received by the city from the applicants shall become the sole property of the city.
(c) The city reserves the right to reject any and all proposals and to waive all informalities where the best interest of the city may be served.
(d) Before submitting a proposal, each applicant shall be solely responsible for and must: (1) examine this chapter and the request for proposal documents thoroughly; (2) be familiar with local conditions that may in any manner affect performance under the license or franchise, including but in no event limited to relevant demographics, topographics, pole attachment policies of appropriate utility authorities, undergrounding, and subscriber and user desires; (3) be familiar with federal, state and local laws, ordinances, rules and regulations affecting performance under the license or franchise; and (4) carefully correlate all observations with the requirements of this chapter and the request for proposal documents.
(e) The city may make such investigations as it deems necessary to determine the ability of the applicant to perform under the license or franchise agreement, and the applicant shall furnish to the city all such information and date for this purpose as the city may request. The city reserves the right to reject any proposal if the evidence submitted by or investigation of such applicant fails to satisfy the city that such applicant is properly qualified to carry out the obligations of the license or franchise agreement, to comply with the provisions of this chapter, or to satisfactorily construct and operate the system. Conditional proposals shall not be accepted.
(f) Application fees.
(1) In addition to any franchise fees, and notwithstanding any other requirement of this chapter, each applicant must furnish with its proposal a nonrefundable filing fee in the amount of seventy-five hundred dollars ($7,500.00) by certified or cashiers check made payable to the city. No proposal for a license or franchise shall be considered without receipt of such check.
(2) All checks received will be deposited to an account of the city and will serve to recover all expenses incurred by the city in the preparation and granting of the license or franchise, the execution of the license or franchise agreement and regulation of the licensee or franchisee pursuant to this chapter. Such expenses shall include but not be limited to any and all publication costs, consultant's expenses and the reasonable value of services performed by the city's employees, agents or contractors.
(3) In the event that the city's expenses in connection with the application and selection process exceed the total amount of filing fees collected from the applicants, the applicant awarded the license or franchise shall pay to the city (pro rata in the event more than one (1) applicant is awarded a license or franchise) the excess amount, not to exceed fifty thousand dollars ($50,000.00) within sixty (60) days of demand by the city.
(g) Application for a license or franchise pursuant to this chapter constitutes a consent by the applicant to the surrendering of any and all preexisting licenses or franchises for the provision of any aspect of competitive telecommunications services previously granted by the city. Upon the granting of a license or franchise pursuant to this chapter, the applicant shall forthwith surrender any and all such existing licenses or franchises to the city, and any and all such licenses or franchises shall be superceded by the license or franchise granted pursuant to this chapter.
(h) Any and all decisions of the mayor and council concerning licensee or franchisee selection shall be final.
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 12, 7-10-95)
In addition to any required franchise fees, and notwithstanding any other payment required by this chapter or the license or franchise agreement, when necessary to aid in the analysis of matters relating to the system, including, but not limited to, rate investigations and regulation, technical standards, construction supervision or market surveys in the city, the city shall be entitled to employ the services of a consultant to assist and advise the city manager and the mayor and council. All reasonable fees of the consultant incurred by the city in this regard shall be shared equally by the licensee or franchisee and the city, regardless of the nature or outcome of any specific matter under consideration. The terms of this section shall not apply to any research cost incurred by the city in connection with the right of the city to purchase the system.
(Ord. No. 8522, § 1, 6-12-95)
By execution of the license or franchise agreement, the licensee or franchisee agrees that failure to comply with the provisions of this chapter and the license or franchise agreement will result in damage to the city, and that it will be impracticable to determine the actual amount of such damage; and that, in addition to any other damages suffered by the city or remedies available to it, the licensee or franchisee will pay to the city the following amounts chargeable by the city to the security deposit established in section 7B-25 ("Security Deposit") of this chapter:
(1) For failure to timely file required plans, data or reports pursuant to this chapter and the license or franchise agreement, per day . . . . . $ 50.00
(2) For failure to comply with reasonable orders of the city, per day . . . . . 50.00
(3) For failure to complete construction or commence operations pursuant to this chapter and the license or franchise agreement, per day . . . . . 350.00
(4) For failure to provide the services proposed by the licensee or franchisee pursuant to the provisions of this chapter and incorporated into the license or franchise agreement, per day . . . . . 350.00
(5) For failure to timely pay the license or franchise fee or other moneys due the city pursuant to this chapter and the license or franchise agreement, per day . . . . . 250.00
(Ord. No. 8522, § 1, 6-12-95; Ord. No. 8545, § 13, 7-10-95)
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