APPENDIX B – FRANCHISESAPPENDIX B – FRANCHISES\ORDINANCE NO. 1367

AN ORDINANCE OF THE CITY OF MARION ACKNOWLEDGING THE GRANTING BY THE STATE OF KANSAS OF A FRANCHISE TO EAGLE COMMUNICATIONS FOR THE CONSTRUCTION AND OPERATION OF A BROADBAND CABLE SYSTEM WITHIN THE CITY LIMITS:

BE IT ENACTED AND ORDAINED by the Governing Body of the City of Marion, Kansas, and it is hereby enacted and ordained as follows:

Whereas,   Eagle Communications was granted authorization by the State of Kansas  to provide video service in the City of Marion on September 17, 2013. The previous agreement between the City of Marion and Eagle Communication is modified as set out below.  Eagle Communications is currently providing video service in the City of Marion and will continue to do so.

Whereas, both the City of Marion and Eagle Communications wish to provide access to Eagle Communications to consumers.  Further, Eagle Communications can be contacted by telephone at the  (785)625-5910 by the City of Marion and/or customers.  Eagle Communications agrees to update this contact information with the City of Marion within 15 calendar days in the event that such contact information changes.

Whereas, Eagle Communications acknowledges and agrees to comply with the City of Marion’s local right-of-way ordinance to the extent the ordinance is applicable to Eagle Communications and not contrary to state and federal laws and regulations. Eagle Communications hereby reserves the right to challenge the lawfulness or applicability of such ordinance to Eagle Communications. By entering into this agreement neither the City of Marion, nor Eagle Communications 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 this agreement, neither the City of Marion nor Eagle Communications waive any rights, but instead expressly reserve any and all rights, remedies and arguments the City of Marion or Eagle Communications 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.

Whereas, Eagle Communications shall calculate and pay the video service provider fee to the City of Marion upon the City’s written request.  The video service provider fee shall be due on a quarterly basis and shall be calculated as a percentage of gross revenues as defined herein.  Notwithstanding the date the City of Marion makes such a request, no video service provider fee shall be applicable until the first day of a calendar month that is at least 3 days after written notice of the levy is submitted by the City of Marion to Eagle Communications.  The City of Marion may not demand the use of any other calculation method.  Any video service provider fee shall be remitted to the City of Marion by Eagle communications not later than 45 days after the end of the quarter.

Whereas, Eagle Communications shall pay to the City of Marion a franchise fee equal to five percent (5%) of Gross Revenues received by Eagle Communications.  Gross Revenues are limited to amounts billed to and collected from video service subscribers for the following:  (1) recurring charges for video service; (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 service 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.

 

Whereas, for the purpose of the above calculations gross revenue does not include the following: (1) 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) late 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  K.S.A. 12-2024 and (4) any charges other than those specified as gross revenue that are aggregated or bundled with amounts billed to video service subscribers

Whereas, this agreement with Eagle Communications shall be for a period of five (5) years from the date of passage of this ordinance.

(11-20-2013)