[R.O. 2012 §655.240; Ord. No. 98-1-8 §1, 1-26-1998]
The City reserves the right to exercise its authority under
the Act to regulate the rates charged by operators to the fullest
extent allowable as further set forth in a franchise agreement between
the City and an operator. 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.
[R.O. 2012 §655.250; Ord. No. 98-1-8 §1, 1-26-1998; Ord. No. 18-08-01, 8-6-2018]
A.
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. This amount represents compensation for
the use of streets and other public property by an operator.
B.
Payment Of Fee. Except as otherwise provided, payment of
annual franchise fees shall be in lieu of all pole attachment charges
imposed by the City in connection with the operation of the system.
C.
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 operators or their services, but not
including a tax, fee or assessment which is unduly discriminatory
against operators or subscribers).
D.
Payment Time And Method. Franchise fee payments shall be
made quarterly as follows: For the quarter ending December thirty-first
(31st), the payment shall be made by the following January thirty-first
(31st); for the quarter ending March thirty-first (31st), the payment
shall be made by the following April thirtieth (30th); for the quarter
ending June thirtieth (30th), the payment shall be made by the following
July thirty-first (31st); and for the quarter ending September thirtieth
(30th), the payment shall be made by the following October thirty-first
(31st). Each payment shall be accompanied by a statement of gross
revenues received for the quarter, and a report showing the computation
of the fees in a form approved by the franchise administrator.
E.
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 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 Cable and Wireless
Communications Code or a separate franchise agreement. All amounts
paid by an operator shall be subject to audit by the City.
F.
Late Payment. In the event that any franchise fee payment
is not made on or before the application due date, an operator shall
pay interest, computed from the due date, at the annual rate equal
to the prime rate in effect on the due date plus two percentage (2%)
points. The prime rate will be the commercial prime interest rate
charged by the Bank of New York, or its successor.
G.
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 in accordance with 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 franchise fees to the City. An operator
shall pay the required franchise fees to the City not later than thirty
(30) days following termination of a franchise.
H.
Amendment Of The Act.
1.
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 increase the franchise
fee to that percentage or amount reflected in the amendment of this
Act without the consent of the operator.
2.
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 an amount that shall not exceed seven percent (7%) of gross
revenues.
3.
Removal of franchise fee. Should the Act be amended
or any other law enacted to prohibit the imposition of a franchise
fee, each operator will pay to the City an amount equal to the franchise
fee for and in consideration of any right to use public property.
I.
Approval Of Franchise Fee Pass-Through. To the extent applicable
law expressly provides for the operator to pass through any portion
of a franchise fee to is subscribers and City's approval is required
under applicable law for such operator to pass through such portion
of a franchise fee to its subscribers, an operator shall not be required
to pay that portion of any franchise fee to the City until that approval
has been granted and has become effective; provided, that operator
diligently pursues such approval.
[R.O. 2012 §655.260; Ord. No. 98-1-8 §1, 1-26-1998]
The City may arrange for and conduct audits of the financial
records of an operator for the purpose of verifying gross revenues
and franchise fees. Audits may be conducted by any person designated
by the franchise administrator. 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 record shall be reviewed in Excelsior Springs,
Missouri, during normal business hours at a convenient time and place
made available by the operator.
[R.O. 2012 §655.270; Ord. No. 98-1-8 §1, 1-26-1998]
A.
Insurance Required. 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 655.280, in the minimum amounts of:
1.
One million dollars ($1,000,000.00) for property damage as to any
one (1) person;
2.
Two million dollars ($2,000,000.00) for property damage as to any
one (1) occurrence;
3.
One million dollars ($1,000,000.00) for personal bodily injury or
death as to any one (1) person;
4.
Two million dollars ($2,000,000.00) for personal bodily injury or
death as to any one (1) occurrence; and
5.
One million dollars ($1,000,000.00) for automobile bodily injury
or death and property damage as to one (1) occurrence.
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These amounts are reviewable yearly by the City and shall be
increased upon reasonable request of the City.
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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. All of the foregoing
insurance contracts shall be in form satisfactory to the City's Attorney,
with deductibles reasonably acceptable to the City, and shall be issued
and maintained with companies acceptable to the City. Each policy
shall require thirty (30) days' prior written notice of any cancellation
or non-renewal to both the City and operators. The approval of the
City or City Attorney to the form of insurance contract and the insurance
company providing coverage shall not be unreasonably withheld.
C.
Liability Not Limited. Neither the provisions of this Section
nor any damages recovered by the City hereunder shall be construed
to or limit the liability of an operator hereunder.
[R.O. 2012 §655.280; Ord. No. 98-1-8 §1, 1-26-1998]
A.
Indemnification Of City And City Officials. Every operator
shall, at its sole expense, fully indemnify, defend and hold harmless
the City, members of the Board (including the Mayor), and all other
officials, employees, and agents of the City, when acting in their
capacity as municipal officials, employees, or agents, from and against
the following claims, suits, actions, liability and judgments:
1.
Damage to persons or property. For actual or alleged
injury to persons or damage 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 related to operator's
cable communications system;
2.
Violation or rights of 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, but the operator shall have no duty
to indemnify the City against any claims arising from the operation
of any channel by the City; or
3.
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.
B.
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
the operator from its duty of defending against liability or paying
any judgment entered against such party.
C.
City's Willful Misconduct. Operator shall provide a defense
for the City in any action, suit or proceeding alleging the City has
engaged in willful misconduct or criminal acts; provided however,
that notwithstanding any provision to the contrary contained in this
Section, the City shall not be indemnified nor reimbursed in relation
to any matter in said action, suit or proceeding where the City is
found, pursuant to final non-appealable order of a court of competent
jurisdiction, to have engaged in willful misconduct or criminal misconduct
or criminal acts, and thereupon the operator shall be reimbursed by
the City for all reasonable amounts paid and expenses incurred by
operator in connection with such action, suit or proceeding, including
reasonable attorney's fees.
