AN ORDINANCE GRANTING HOME COMMUNICATIONS, INC. (HCI), A KANSAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, A CABLE TELEVISION FRANCHISE, PRESCRIBING THE TERMS AND CONDITIONS THEREOF, AND RELATING THERETO, AND REPEALING ORDINANCES OR PARTS OF ORDINANCES TNCONSISTENT WITH OR CONFLICTING WITH THE TER.MS THEREOF.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF GAIVA, KANSAS THAT:
Home Communications, Inc. (HCI) was granted authorization by the state of Kansas to provide video service in Galva, Kansas on September 23, 2008 and hereby executes this agreement with the City of Galva, Kansas. HCI may be contacted by the City of Galva at the following telephone number 620-654-3381. HCI may be contacted by customers at the following telephone number 620-654-3381. HCI agrees to update this contact information with the City of Galva within l5 calendar days in the event that such contact information changes. HCI acknowledges and agrees to comply with the City of Galva’s local right-of-way ordinance to the extent the ordinance is applicable to HCI and not contrary to state and federal laws and regulations. HCI hereby reserves the right to challenge the lawfulness or applicability of such ordinance to HCL By entering into this agreement, neither the municipality nor HCI's present or future legal rights, positions, claims, assertions or arguments before any administrative agency or court of law are in any way prejudiced or waived. By entering into the agreement, neither the municipality nor HCI waive any rights, but instead expressly reserve any and all rights, remedies and arguments the municipality or HCI may have at law or equity, without limitation, to argue, assert and/or take any position as to the legality or appropriateness of any present or future laws, ordinances and/or rulings.
In consideration of the benefits to be derived by the City of Galva (the "City") and its inhabitants, there is hereby granted to Home Communications, Inc. a Kansas corporation, and its successors and assigns, (the "Grantee" or the "Company") the non-exclusive right, privilege and authority for a period of ten (10) years from the effective date of this Ordinance, to occupy and use the present and future skeets, avenues, alleys and other public places, and the poles, lines and other publicly owned facilities situated therein and thereon, of the City, for the placing and maintaining of cable television distribution and transmission lines, together with all necessary and desirable appurtenances, including underground conduits, poles, towers, ground level transformers, wires, and other appurtenances, necessary to carry on the business of selling and distributing cable television services to the City, its inhabitants, and persons and corporations through, within or beyond the limits thereof; and to obtain said electricity from any source available; and to do all things necessary or proper to carry on said business of selling and distributing cable television services and other related purposes.
FEE SCHEDULES
Unless subsequently negotiated between the City and the Company, the fee schedules for the cable television services shall be on display at the Company's offices. The Company will give 30 days’ notice to all residential and commercial customers of any rate changes or increases.
COMPENSATION IN LIEU OF TAX OR FEE
As further consideration for the granting of this franchise, and in lieu of any City occupation, license or revenue taxes, or other fees, the Grantee shall pay to the City during the term of this franchise three percent (3%) of its gross revenues from the sale of cable television services to all residential and commercial customers served within the corporate limits of said city, with such payment to be made annually for the preceding year period on the 31st day of March of each year, commencing March 31,2019. At the request of the City, no more than once per year, the City may perform a reasonable audit of the Grantee's calculation of the Franchise fee. Gross revenues shall not include other operating revenues received by the Grantee, which are not related to the "sale of cable television services."
Gross Revenues are limited to amounts billed to and collected from video service subscribers for the following:
(1) Recurring charges for video services;
(2) Event-based charges for video service, including, but not limited to, pay-per-view and video-on-demand charges;
(3) Rental of set top boxes and other video services equipment;
(4) Service charges related to the provision of video service, including, but not limited to, activation, installation, repair and maintenance charges; and
(5) Administrative charges related to the provision of video service, including, but not limited to, service order and service termination charges.
Gross Revenues do not include:
(l) Uncollectible fees, provided that all or part of uncollectible fees which is written off as bad debt but subsequently collected, less expenses of collection, shall be included in gross revenues in the period collected;
(2) Lafe payment fees;
(3) Amounts billed to video service subscribers to recover taxes, fees or surcharges imposed upon video service subscribers in connection with the provision of video service, including the video service provider fee authorized by this section; or
(4) Charges, other than those described in subsection (d), that are aggregated or bundled with amounts billed to video service subscribers.
OPTIONS - NEGOTIATION
In the event the Company's customers served within the area covered by this Agreement are granted the right to purchase cable television services from a provider other than the Company, either party may, upon thirty (30) days written notice to the other party, but no later than six (6) months after such grant is effective, request that the franchise fee rate provided for herein be adjusted to reflect the modifications and resolutions of franchise fee issues adopted in the legislation which created the right of customers to obtain cable television services from providers other than the Company, The parties agree that, upon the giving and receipt of such notice, they will meet in good faith to negotiate any necessary changes to this Agreement. However, if the parties are unable to reach an agreement within ninety (90) days after the receipt of notice by the receiving party, either party may terminate this franchise. The Company may terminate by giving written notice to the City; the City may exercise its option to terminate the franchise granted to the Grantee by action of the governing body repealing this Ordinance.
REASONABLE CARE REQUIRED
That the Grantee, its successors and assigns, in the construction, maintenance, and operation of its cable television services, transmission, and distribution, shall use all reasonable and proper precaution to avoid damage or injury to persons or property. The Company will obtain and maintain throughout the period of this Franchise, (a) comprehensive general liability insurance with limits of not less than the maximum liability for claims which could be asserted against the City for any number of claims arising out of a single occurrence or accident under the Kansas Tort Claims Act; (b) Automobile liability insurance in the same amounts as described in (a); and worker's compensation insurance as required by law, Upon request by the City, certificates evidencing the insurance described above will be provided by the Company.
ACCEPTANCE REQUIRED
After approval of this Ordinance by the City, the Grantee shall file with City Clerk of the City of Galva, it's unconditional written acceptance of this Ordinance. Said Ordinance shall become effective and be in force and shall be and become a binding contract between the parties hereto, their successors and assigns, from and after the expiration of sixty (60) days from its final passage, approval and publication as required by laws, and acceptance by said Grantee.
REPEAL OF PROVISIONS IN CONFLICT
That any and all ordinances or parts of ordinances in conflict with the terms hereof are hereby repealed.
ASSIGNABILITY
The franchise shall be assignable only in accordance with the laws of the State of Kansas, as the same may exist at the time when any assignment is made, provided, however, that the franchise may be assigned by the Grantee without action by the City to any creditworthy entity which succeeds to all or substantially all of the cable television business of the Grantee. In the event of such assignment to a successor, the Grantee shall be released from all obligations which are assumed in writing by such successor and the assignee shall have executed an assumption of the franchise being assigned.
ACCEPTANCE
That this Ordinance, when accepted as above provided, shall constitute the entire agreement between the City and the Grantee relating to this franchise and the same shall supersede and cancel any prior understandings, agreements, or representations regarding the subject matter hereof, or involved in negotiations pertaining thereto, whether oral or written. The Grantee will file this Ordinance with the State Corporation Commission of Kansas. Should the State Corporation Commission take any action with respect to this franchise ordinance, which would or may preclude Home Communications, Inc., a Kansas corporation, from recovering from its customers any cost provided for hereunder, the parties hereto shall renegotiate this Ordinance in accordance with the State Corporations Commissions' ruling.
(05-07-2018)