[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 four and one-half percent (4.5%) of its gross revenues. This amount represents compensation for the use of streets and other public property by an operator.
[Ord. No. 23-11-06, 11-6-2023]
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.
These amounts are reviewable yearly by the City and shall be increased upon reasonable request of the City.
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.