[R.O. 1991 § 615.130; Ord. No. 1607 § 12, 3-21-1995]
A.
Discretion To Regulate Rates. The Act provides
for regulation of basic service rates, including certain equipment
necessary to receive basic service. The City reserves the right to
exercise its authority under the Act to regulate the rates charged
by operators for basic service and affiliated equipment. Should the
Act be amended, or implementing regulations or other rules or decisions
modify the authority of the City to regulate rates, the City shall
retain the greatest discretion permissible to consider implementing
Federal or State law in this area.
B.
FCC Submissions. Should the City elect
to regulate rates, it shall provide copies of its submissions to the
FCC and to the operator at the time it submits the information to
the FCC.
[R.O. 1991 § 615.140; Ord. No. 1607 § 13, 3-21-1995]
A.
Payment To City.
1.
Use Of Streets/Cost Of Regulation.
In consideration of the rights, powers, privileges, permission and
authority granted to an operator for use of the City's streets and
other public property, an operator shall pay to the City an amount
equal to five percent (5%) of its gross revenues received from the
operation of the system in the City. This amount represents compensation
for the cost of reasonable regulation permitted or mandated by Federal
law, and for the use of the streets and other public property by an
operator.
2.
Payment Of Fee. Payment of annual
franchise fees shall be in lieu of all other occupational, pole attachment
or other license fees or charges imposed by the City with respect
to the business of operating a cable communications system.
3.
Revenue Not From Operation Of System.
This franchise does not excuse the payment of any occupational license
fee, charge or tax relating to any business endeavor for which an
operator is not obligated to pay a franchise fee.
4.
Taxes Of General Applicability. Imposition
of a franchise fee does not prohibit the City from imposing on operators,
as part of a group of businesses or activities, any tax, fee or assessment
of general applicability (including any such tax, fee, or assessment
imposed on both utilities and cable operators or their services, but
not including a tax, fee or assessment which is unduly discriminatory
against cable operators or subscribers).
5.
Payment Time And Method. Franchise
fee payments shall be made within thirty (30) days after the expiration
of each quarter year ending December 31, March 31, June 30 and September
30, that is, January 30, April 30, July 30 and October 30. Each payment
shall be accompanied by a statement of gross revenues received for
the quarter in connection with the operation of the system in the
City, and a report showing the computation of the fees. For operators
providing cable service in the City on the date this Chapter becomes
effective, this shall be in two (2) parts. The first part shall set
forth the gross revenues for the period of the quarter for which any
lower franchise fee is assessed, and the second part shall set forth
the gross revenues for the period of the quarter for which a five
percent (5%) franchise fee is assessed.
6.
Acceptance Of Payment Not Accord
Or Release. No acceptance of any payment shall be construed as an
accord that the amount paid is in fact the correct amount, nor shall
such acceptance of payment be construed as a release of any claim
the City may have for further or additional sums payable under the
provisions of this Chapter or a separate franchise agreement. All
amounts paid by an operator shall be subject to audit by the City.
7.
Late Payment. In the event that any
payment is not made on or before the applicable date fixed in this
Section, an operator shall pay, as additional compensation, an interest
charge computed from such date at the annual rate equal to the commercial
prime interest rate in effect upon the due date plus two (2) percentage
points. The prime rate will be determined by the Bank of New York,
or its successor, on the effective date on which interest becomes
due.
8.
Early Termination Of Franchise. In
the event a franchise is terminated for any reason before its normal
termination date, an operator shall immediately submit to the City
a financial statement prepared within the terms of this Section showing
the operator's gross revenues for the time elapsed since the last
period for which the operator has paid to the City the required percentage
of gross revenues. An operator shall pay to the City not later than
thirty (30) days following termination of a franchise the required
percentage of gross revenues.
9.
Amendment Of The Act.
a.
Specific Federal Limit. Should the
Act be amended by changing the authorized maximum amount for a franchise
fee which may be imposed by the City to a different specific percentage
or amount, the City may, by ordinance, modify this Section to reflect
the amendment of the Act.
b.
Removal Of Federal Limit. Should
the Act be amended by removing any cap on the authorized maximum amount
for a franchise fee which may be imposed by the City, the City may
increase the franchise fee to that amount assessed against a telephone
company. However, should the amount assessed against a telephone company
be less than the amount assessed against an operator at the time the
cap is removed, the amount assessed against an operator shall not
fall below that amount assessed at the time the cap is removed.
10.
Approval Of Franchise Fee Pass-Through.
If the City's approval is required under applicable law for an operator
to pass through any portion of a franchise fee to its subscribers
in the City, an operator shall not be required to pay that portion
of any franchise fee to the City until such approval has been granted
and has become effective.
B.
Audits. The City may arrange for and conduct
audits of the necessary financial records of an operator for the purpose
of verifying franchise fees. The City shall notify an operator at
least seven (7) days prior to the date it will begin reviewing the
operator's records. At that time the City will, to the best of its
ability, describe the records and documents it wants to review, and
the operator shall make such of its books and records as may be relevant
to the determination of gross revenues and franchise fees due available
for inspection. For any record requested, but not disclosed by the
operator, the City shall be given a written explanation of why the
operator contends the record is not relevant. If requested, an operator
shall provide a copy of the written procedures used by the operator
to calculate the franchise fee base and payment to the City. An operator's
records shall be reviewed during normal business hours at a convenient
time and place made available by the operator. Notwithstanding the
foregoing, an operator shall not be required to make any portion of
its books and records available if it reasonably believes making such
books and records available would violate applicable law, including
without limitation the privacy provisions contained in the Act. If
the City or any affiliate of the City shall construct or operate a
cable communications system in the City, then any audits conducted
pursuant to this Section shall be conducted by an independent auditor
who has agreed in advance only to verify franchise fees and not to
disclose any portion of an operator's books and records or other proprietary
information to the City.
[R.O. 1991 § 615.150; Ord. No. 1607 § 14, 3-21-1995]
A.
Insurance Required.
1.
Every operator shall maintain, throughout the term of its franchise, liability insurance from a company approved by the City insuring the operator and the City against all damages described in Section 615.170 of this Chapter, in the minimum amounts of:
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$1,000,000.00 for property damage
to any one (1) person;
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$1,000,000.00 for property damage
in any one (1) accident;
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$1,000,000.00 for personal bodily
injury or death to any one (1) person or individual; and
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$1,000,000.00 for personal bodily
injury or death in any one (1) accident.
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2.
Should the General Assembly or the courts of the State of Missouri
modify the rule of sovereign immunity, as it exists on the effective
date of this Chapter, by increasing the potential liability of the
City beyond these amounts, upon notice from the City, operators will
provide liability insurance which will meet or exceed those new amounts.
B.
Certificate Of Insurance. Every operator
shall submit a certificate of insurance to the City confirming that
a satisfactory policy is in effect, which policy shall be renewed
on its anniversary throughout the term of the operator's franchise.
The policy shall contain a separate endorsement requiring the insurance
company to notify the City in writing of any change in, or cancellation
of, the policy at least ten (10) days prior to any change or cancellation.
[R.O. 1991 § 615.160; Ord. No. 1607 § 15, 3-21-1995]
A.
Indemnification.
1.
Indemnification Of City Officials.
Every operator shall, at its sole expense, fully indemnify, defend
and hold harmless the City, the members of the Board, including the
Mayor, and all other City Officials, employees, agents, boards and
commissions, when acting in its or their capacities and within the
scope of its or their official municipal duties, from and against
any and all claims, suits, and actions, liability and judgment for
damages or otherwise:
a.
Damage To Persons Or Property. For
actual or alleged injury or death to individuals, or injury to property,
including loss of use of property due to an occurrence, whether or
not such property is physically damaged or destroyed, in any way arising
out of or through, or alleged to arise out of or through, any act
or omission of the operator or its officers, agents, employees, or
contractors, or to which the operator or its officers, agents, employees
or contractors acts or omissions in any way contribute;
b.
Violation Of Rights Or Interests.
Arising out of or alleged to arise out of any claim for damages, with
respect to the operator's operation of its system, for invasion of
the right of privacy, defamation of any person, or the violation or
infringement of any copyright, trademark, trade name, service mark
or patent, or any other right of any person; or
c.
Statutory Violations. Arising out
of or alleged to arise out of the operator's failure to comply with
the provisions any Statute, regulation or ordinance of the United
States, State of Missouri, the City, or any local agency, applicable
to the operator in its business.
2.
Indemnification Of Operator. The
City shall, at its sole expense, fully indemnify, defend and hold
harmless an operator, its employees and agents, when acting in their
capacity as such, from and against any and all claims, suits, and
actions, liability and judgment for damages or otherwise in relation
to any matter in any action, suit or proceeding arising out of any
act or omission of the City or its officers, agents, employees or
representatives.
3.
Defense Of Actions. Nothing herein
shall be deemed to prevent the parties indemnified and held harmless
herein from participating in the defense of any litigation by their
own counsel at their sole expense. Such participation shall not, under
any circumstances, relieve either party from its duty of defending
against liability or paying any judgment entered against such party.
4.
Limitation On Damages. Should either
party indemnify, defend, and hold harmless the other party as provided
for in this Chapter, then that party's liability and obligations shall
be limited to the actual amount of any damages as finally agreed upon
by the operator and the City, together with reasonable expenses actually
incurred in connection with any action, suit or proceeding arising
under this Section. Neither party may increase, modify, or alter in
any way the other party's liability provided said party has indemnified,
defended, and held the other party harmless in any of these proceedings.
5.
Negligence Or Willful Misconduct.
Notwithstanding anything to the contrary contained in this Chapter,
neither party shall be so indemnified or reimbursed in relation to
any matter, in any action, suit or proceeding in which such party
is negligent, including in the performance of its obligations under
this Chapter or a separate franchise agreement, or has engaged in
willful misconduct or criminal acts. The indemnifying party shall,
however, provide a defense even though, in good faith, it believes
at the commencement of any action that the other party may have engaged
in the above-described conduct. However, if the indemnified party
is found to have engaged in willful misconduct or criminal acts, the
indemnifying party shall be reimbursed for all amounts paid and expenses
incurred in connection with such action, suit or proceeding, including
attorney's fees.
B.
Liquidated Damages. Liquidated damages
for non-performance during the construction of a system, or the upgrade
of a system shall be chargeable as follows:
1.
For failure to submit required plans
regarding the construction of a system or the upgrade: one hundred
dollars ($100.00) per day.
2.
For failure to commence the construction
of a system or the upgrade of a system in accordance with the requirements
of this Chapter or a separate franchise agreement: one hundred dollars
($100.00) per day.
3.
For failure to complete the construction
of a system or the upgrade of a system in accordance with the requirements
of this Chapter or a separate franchise agreement: one thousand dollars
($1,000.00) per day.
