Mr.
Joyce stated that rather than pulling from the consent agenda item 1.e.,
approval of an appropriation from the General Fund fund balance to
operate and maintain the SAS soccer park, he would vote against the
entire consent agenda.
1.
Regular Consent Agenda (any regular consent agenda item pulled for discussion will be discussed
at the beginning of the old/new business portion of the agenda)
a.
Consideration of approval of the minutes of the regular town
council meeting held on
August
12, 2004
and the transit work session held on
August
17, 2004
.
ACTION:
Mayor Pro Tem Smith made a motion to approve the entire consent agenda.
Ms. Dorrel provided the second. Mr.
Joyce voted “no;” all others voted “aye.” The motion carried by
majority vote.
_________________________
b.
Consideration of approval of the tax report that was adopted by
the
Wake
County
Commissioners on
August 2, 2004
.
The Wake County
Board of Commissioners in regular session on
August 2, 2004
, approved and accepted the below tax report for the Town of
Cary
.
|
Refunds of taxes,
interest and penalties
|
$490.82
|
|
Relief of late
list penalty
|
2
|
|
Relief of late
filed application
|
1
|
|
Non-cash rebates
|
286
|
ACTION:
Mayor Pro Tem Smith made a motion to approve the entire consent agenda.
Ms. Dorrel provided the second. Mr.
Joyce voted “no;” all others voted “aye.” The motion carried by
majority vote.
_________________________
c.
Second reading and consideration of adoption of the proposed
amendment to the Cable TV ordinance.
With the assistance of
telecommunications attorney Keith Johnson of Poyner & Spruill, staff
has completed franchise renewal talks with Time Warner Cable, which is
resulting in a proposed new franchise agreement as well as updates to
the Town’s existing Cable Communications Ordinance, which serves as
the umbrella document on which all cable franchises are based.
Draft versions of
these two documents were the subject of a
July 16, 2004
public hearing before Town Council at which two
Cary
citizens spoke. With the exception of Council member Marla Dorrel and
these two citizens, no other comments were received by staff.
All concerns and ideas
were evaluated by Mr. Johnson, several of which he recommended action on
and Time Warner Cable agreed to. These
changes have resulted in a slightly revised Cable Ordinance for
Council’s consideration at this meeting.
Two readings
(votes) on this document are necessary.
The first took place at the
August 12, 2004
Town Council meeting. The ordinance for the second reading is below.
Time
Warner Cable’s existing extended franchise agreement expires
September 16, 2004
.
|
Staff
Recommendation:
Adopt the revised Cable Communications Ordinance as
proposed.
|
Ordinance 00-017
Chapter
6 CABLE TELEVISION SERVICES
Art.
I. In General, §§ 6-1--6-3
Art.
II. Grant of Franchise, §§ 6-4--6-25
Art.
III. Regulation of Franchise, §§ 6-26--6-29
Art.
IV. Bonds, Insurance and Indemnification, §§ 6-30--6-32
Art.
V. Design and Construction Provisions, §§ 6-33--6-40
Art.
VI. Service Provisions, §§ 6-41--6-46
Art.
VII. Books, Records and Reports, §§ 6-47--6-49
Art.
VIII. Miscellaneous Provisions, §§ 6-50--6-53
ARTICLE
I. IN GENERAL
Sec.
6-1. Purpose.
The
Town of
Cary
finds that the development of cable television systems has the potential
to provide great benefits for the people of
Cary
.
The Town finds that the public convenience, safety and general
welfare can best be served by establishing a regulatory ordinance which
delineates the principal regulatory requirements for persons operating
cable systems within the Town. It is the intent of this chapter to
provide for and specify the means to secure the interest and public
purpose in these matters and any franchise issued pursuant to this
chapter shall be deemed to include this finding as an integral part
thereof.
For
these
purposes, the following goals underlie the regulations contained herein:
(1)
Cable
television services should be made available to the maximum number of
Town residents.
(2)
Any
cable system should be capable of accommodating both the present and
reasonably foreseeable future cable television needs of residents of the
Town.
(3)
Any
cable system should be improved and upgraded during the franchise term
so that the new facilities necessary for the operation of this system
shall be integrated to the maximum extent possible with existing
facilities.
(4)
Cable
systems authorized by this chapter shall be responsive to the needs and
interests of the local community, and shall provide the widest possible
diversity of programming sources and services to the public.
(Ord.
No. 88-31, § 2,
11-17-88
)
Sec.
6-2. Title
of chapter.
This
chapter shall be known and may be cited as “Cary Cable Television
Services Ordinance,” and it shall become a part of the Ordinances of
the Town.
This
chapter shall take effect and be in force from and after its passage and
publication.
All
ordinances or parts of ordinances in conflict with the provisions of
this chapter are hereby repealed.
(Ord.
No. 88-31, § 2,
11-17-88
)
Sec.
6-3. Definitions.
For
the purpose of this chapter the following terms, phrases, words and
their derivations shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense include
the future, words in the plural number include the singular number. The
word “shall” is mandatory and “may” is permissive. Words not
defined shall be given their common and ordinary meaning.
BASIC
CABLE SERVICE means any service tier which includes the retransmission
of local television broadcast signals.
CABLE
SYSTEM, means a facility, consisting of a set of closed transmission
paths and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video
programming and which is provided to multiple subscribers within a
community, but such term does not include (A) a facility that serves
only to retransmit the television signals of one or more television
broadcast stations; (B) a facility that serves subscribers without using
any public right of way; (C) a facility of a common carrier which is
subject, in whole or in part, to the provisions of title II of the
Communications Act, except that such facility shall be considered a
cable system (other than for purposes of section 621 (c)) of the
Communications Act to the extent such facility is used in the
transmission of video programming directly to subscribers, unless the
extent of such use is solely to provide interactive on-demand services;
(D) an open video system that complies with section 653 of the
Communications Act; or (E) any facilities of any electric utility used
solely for operating its electric utility system.
CABLE
SERVICE means the one-way transmission to subscribersof
(i) video programming (ii)
other programming service; and subscriber
interaction, if any, which is required for the selection
or use of
such video programming or other programming service.
CABLECAST SIGNAL means a nonbroadcast signal that originates within the
facilities of the cable communications system.
CHANNEL means a frequency band, which is capable of carrying either one
standard video signal, a number of audio, digital or other nonvideo
signals or some combination of such signals.
CLOSED-CIRCUIT OR INSTITUTIONAL SERVICE means such video, audio, data and
other services provided to institutional users on an individual
application basis. These may include, but are not limited to, one-way
video, two-way video, audio or digital signals among institutions to
residential subscribers.
COMMERCIAL SUBSCRIBER means a subscriber who receives a service in a
place of business where the service may be utilized in connection with a
business, trade or profession.
COMMUNICATIONS ACT means the Communications Act of 1934 as it may be
amended.
CONVERTER means an electronic device which converts signals to a
frequency not susceptible to interference within the television receiver
of a subscriber, and any channel selector which permits a subscriber to
view all signals delivered at designated converter dial locations at the
set or by remote control.
COUNCIL means the council of the Town of
Cary
.
CPI shall mean the national percentum increase for the most recently
completed calendar year of the Average Consumer Price Index for all
items as published by the Bureau of Labor Statistics of the United
States Department of Labor, subject to maximum limits as may be set
forth within the franchise agreement.
DISCRETE
CHANNEL shall mean a channel which can only be received by the person
and/or institution intended to receive signals on such channel.
DOWNSTREAM SIGNAL means a signal originating from or provided by a cable
television system to a subscriber terminal or other terminal including
video, audio, or digital signals or any other type of data or
information for either programs or other uses such as security alert
services, etc.
DROP shall mean a connection from feeder cable to the subscriber/user
television set, radio or other terminal.
EDUCATIONAL ACCESS CHANNEL means any channel designated for
non-commercial educational access use.
FAIR MARKET VALUE means the price that a willing buyer would pay to a
willing seller for a going concern based on the system valuation
prevailing in the industry at the time.
FCC means the Federal Communications Commission.
FRANCHISE means the nonexclusive rights granted pursuant to this chapter
to construct, operate and maintain a cable system along the public ways
within all or a specified area in the Town. Any such authorization, in
whatever form granted, shall not mean or include any license or permit
or other nondiscriminatory charge required for the privilege of
transacting and carrying on a business within the Town as required by
other ordinances and laws of the Town.
FRANCHISE
AREA means the entire Town, or portions thereof, for which a franchise
is granted under the authority of this chapter or the franchise. If not
otherwise stated in the franchise, the franchise area shall be the
corporate limits of the Town, including all territory thereafter annexed
to the Town.
FRANCHISE FEE means the percentage, as specified by the Town, of the
franchisee’s
gross revenues in exchange for the rights granted pursuant to this
chapter and the franchise.
GOVERNMENT ACCESS CHANNEL means any channel specifically designated or
dedicated for non-commercial government access use.
GRANTEE OR FRANCHISEE means the natural person(s), partnership(s),
domestic and foreign corporation(s), association(s), joint venture(s),
or organization(s) of any kind which has been legally granted a
franchise by the Town, and its lawful successor, transferee or assignee.
GRANTOR means the Town of
Cary
as represented by the Town council acting within the scope of its
jurisdiction.
GROSS ANNUAL REVENUES OR GROSS REVENUES means all revenue received
directly or indirectly from the operation of the Cable
System to provide Cable Service in the Town by
the Grantee, its affiliates, subsidiaries or any
Person in which Grantee has a financial interest.
Gross revenue shall include, but
not be limited to: 1) all Cable Service fees, 2) franchise fees, 3)
installation and
reconnection fees, 4) upgrade and downgrade fees, 5) advertising revenue
6)
home shopping commissions, 7) converter and remote control rental fees,
8) lockout device fees, and 9) unless excluded under generally accepted
accounting principles (“GAAP”), guides and late fees.
Gross Revenues shall not include:
(A) the revenues of any entity or Person where such revenues have
been included in Grantee’s gross revenues so as to preclude double
imposition of franchise fees; (B) bad debt write-offs; or (C) any taxes
on services furnished by a Grantee which are imposed upon any Subscriber
or User by the state, Town or other governmental unit and collected by
the Grantee on behalf of said governmental unit.
INSTALLATION shall mean the connection of the system from feeder cable to
subscribers’
terminals.
LEASED ACCESS CHANNEL, OR COMMERCIAL ACCESS CHANNEL means any channel
designated or dedicated for use by persons unaffiliated with the
Grantee, at rates which are fair and reasonable.
NORMAL BUSINESS HOURS means those hours during which most similar
businesses in the community are open to serve customers.
In all cases, “normal business hours” must include some
evening hours at least one night per week and/or some weekend hours.
NORMAL OPERATING CONDITIONS means those service conditions which are
within the control of the cable operator.
Those conditions which are not within the control of the cable
operator include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe or
unusual weather conditions. Those
conditions which are ordinarily within the control of the cable operator
include, but are not limited to, special promotions, pay-per-view events
rate increases, regular peak or seasonal demand periods, and maintenance
or upgrade of the cable system.
MONITORING means observing a communications signal, or the absence of a
signal, where the observer is not a party to the communication, whether
the signal is observed by visual or electronic means, for any purpose
whatsoever.
NARROWCASTING shall mean the ability to distribute cable programming to a
particular segment or segments of the cable subscribers.
OPERATOR shall mean the entity granted a Franchise.
ORIGINATION SITE means a location capable of transmitting audio-video
television signals to the Operator’s headend or
other location as provided.
OVS shall refer to Open Video System as defined by the Federal
Communications Commission.
PERSON means an individual, partnership, association, organization,
corporation or any other legal entity including any lawful successor
transferee of said individual, or entity.
PLANT MILE means a linear mile of strand-bearing cable as measured on the
street or easement from pole to pole or pedestal to pedestal. In cases
where cable is on both sides of the street, only the cable on one side
of the street will be utilized in measuring a plant mile.
PUBLIC ACCESS CHANNEL means any channel designated or dedicated for use
by the general public or noncommercial organizations which is made
available for non-commercial access use without charge on a first-come,
first-served, nondiscriminatory basis.
PUBLIC WAY OR PUBLIC RIGHTS-OF-WAY means the surface, the air space above
the surface, and the area below the surface of any public street,
highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel,
park, parkways, waterways, utility easements or other public
right-of-way, including state and private streets, or hereafter held by
the Town which shall entitle the Town and the company to the use thereof
for the purpose of installing and maintaining the company cable
television system. No reference herein, or in any franchise, to the “public
way”
shall be deemed to be a representation or guarantee by the Town that its
title to any property is sufficient to permit its use for such purpose,
and the Grantee shall, by its use of such terms, be deemed to gain only
such rights to use property in the Town as the Town may have the
undisputed right and power to give.
REASONABLE NOTICE shall be written notice addressed to the Grantee at its
principal office within the Town or such other office as the Grantee has
designated to the Town as the address to which notice shall be
transmitted to it, which notice shall be certified and postmarked not
less than seven (7) business days prior to that day in which the party
giving such notice shall commence any action which requires the giving
of notice. In computing said seven (7) business days, Town holidays
shall be excluded.
RESIDENT means any person residing in the Town as otherwise defined by
applicable law.
RESIDENTIAL SUBSCRIBER means a subscriber who receives a service in an
individual dwelling unit where the service is not to be utilized in
connection with a business, trade or profession.
SALE
shall include any sale, exchange or barter.
SCHOOL means any state accredited public or non-profit educational
institution including primary and secondary schools, colleges and
universities.
SERVICE INTERRUPTION means the loss of picture or sound on one or more
cable channels.
STATE means the State of
North
Carolina
.
TOWN means the Town of Cary, North Carolina.
TRANSFER means the disposal of the Franchise by
the Grantee, directly or indirectly, by gift, assignment, voluntary
sale, merger, consolidation or otherwise.
“Transfer” shall also mean a sale or fundamental
corporate change of or
in Grantee, including, but not limited to, a fundamental corporate
change in Grantee’s parent corporation or any entity having a
controlling interest in Grantee, the
sale of controlling
interest in the Grantee’s assets, a merger, including a merger of a
subsidiary and parent entity, consolidation, or the creation of a
subsidiary or affiliate entity.
(Ord.
No. 88-31, § 2,
11-17-88
)
ARTICLE
II. GRANT OF FRANCHISE
Sec.
6-4. Grant.
(a)
In the event that the Town shall grant to Grantees a
nonexclusive, revocable franchise to construct, operate, and maintain a
cable system within the Town, said franchise shall constitute both a
right and an obligation to provide the services of a cable system as
regulated by the provisions of this chapter and the franchise. The
franchise shall include by reference those provisions of the Grantee’s
“application for franchise”
that are finally negotiated and accepted by the Town and Grantee.
(b)
The franchise shall be granted under the terms and
conditions contained herein, consistent with the Town’s
Charter, Code of Ordinances, and/or other applicable statutory
requirements. In the event of conflict between the terms and conditions
of this chapter, the franchise, or the terms and conditions on which the
Town can grant a franchise, the
Franchise shall control.
(c)
Any franchise granted by the Town is hereby made
subject to the generally applicable, non-discriminatory Code of
Ordinances of the Town of
Cary
as amended from time to time. Nothing in the franchise shall be deemed
to waive the requirements of the various generally applicable,
non-discriminatory codes and ordinances of the Town regarding permits,
fees to be paid, or manner of construction.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-5. Franchise
area.
The
franchise area shall be the entire Town, or portions thereof, for which
a franchise is granted.
(Ord.
No. 88-31, § 2,
11-17-88
)
Sec.
6-6. Use
of public rights-of-way.
For
the purpose of operating and maintaining a cable system in the Town, the
Grantee may erect, install, construct, repair, replace, reconstruct and
retain in, on, over, under, upon, across and within the rights-of-way
within the Town such wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary to the operation of the cable
system, provided, however, that Grantee complies with all design,
construction and safety provisions contained in this chapter, the
franchise, and other applicable state and generally applicable,
non-discriminatory local ordinances.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-8. Use
of Grantee facilities.
No poles shall be erected by the Grantee without prior
approval of the Town and as permitted by Town ordinances and
regulations. However, no location of any pole of the Grantee shall be a
vested right and such poles shall be removed or modified by the Grantee
at its own expense whenever the Town determines that the public
convenience would be enhanced thereby. The Grantee shall utilize
existing poles and conduits, where possible. The Town shall have the
right, during the life of the franchise, to install, subject to an
agreement between the parties upon the terms and conditions of such use,
upon the poles owned by the Grantee, any wire and pole fixtures that are
noninterfering and noncompetitive with the cable system operations of
the Grantee. The Town’s right to use Grantee
facilities is not transferable.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-9. Franchise
required.
No cable system shall be allowed to occupy or use the
streets of the Town or be allowed to operate without a franchise.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-10. Term
of franchise.
The term of any franchise granted pursuant to this
chapter shall be stated in the franchise.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-11. Franchise
nonexclusive.
The franchises discussed herein are nonexclusive. The
Town specifically reserves the right to grant at any time such
additional franchises for a cable system or OVS as it deems appropriate
provided, however, no such additional franchises,
taken as a whole,
shall be granted on terms or conditions more favorable or less
burdensome than in any franchise previously granted by the Town.
To the extent allowable by law, any cable franchises granted by the Town
shall contain similar terms and conditions with respect to franchise
fees, gross revenue base and service area.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-12. Time
is of the essence.
Whenever the franchise agreement shall set forth any
time for an act to be performed by or on behalf of the Grantee, such
time shall be deemed of the essence and any failure of the Grantee to
materially perform within the time allotted shall be sufficient ground
for the Town to invoke an appropriate penalty, including possible
revocation of the franchise, subject to notice and a time to cure.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-13. Law
governs.
In any controversy or dispute under this chapter, the
law of the state or federal law, as appropriate, shall apply.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-14. Severability.
If any section, subsection, sentence, clause, phrase or
portion of this chapter or the franchise is for any reason held invalid
or unconstitutional by any court of competent jurisdiction, or by any
federal, state, or local statute or regulation, such portion shall be
deemed a separate, distinct and independent provision and such holding
shall not affect the validity of the remaining portions thereof.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-15. Transfer
of ownership or control.
(a)
Transfer of franchise. Any franchise
granted hereunder cannot in any event be sold, transferred, leased,
assigned or disposed of, including but not limited to, by force or
voluntary sale, merger, consolidation, receivership or other means
without the prior consent of the Town.
(b)
The Grantee shall promptly notify
the Town of any actual or proposed change in, or transfer of, or
acquisition by any other party of, control of the Grantee. The word “control”
as used herein is not limited to major stockholders but includes actual
working control in whatever manner exercised. A rebuttable presumption
that a transfer of control has occurred shall arise upon the disposal by
the Grantee, directly or indirectly, by gift, assignment, voluntary
sale, merger, consolidation or otherwise, of fifty (50) percent or more
at one time of the ownership or controlling interest in the Grantee.
(c)
Every change, transfer, or
acquisition of control of the Grantee requiring consent of the Town
shall make the franchise subject to cancellation unless and until the
Town shall have consented thereto, which consent will not be
unreasonably withheld. For the purpose of determining whether it shall
consent to such change, transfer, or acquisition of control, the Town
may inquire into the legal, financial, and technical qualifications of
the prospective controlling party, and the Grantee shall assist the Town
in any such inquiry.
(d)
Assumption of control.
The Town agrees that any financial institution having a pledge of
the franchise or its assets for the advancement of money for the
construction and/or operation of the franchise shall have the right to
notify the Town that it or its designees satisfactory to the Town will
take control and operate the cable system.
Further, said financial institution shall also submit a plan for such
operation that will insure continued service and compliance with all
franchise obligations during the term the financial institution
exercises control over the system. The financial institution shall not
exercise control over the system for a period exceeding one year, unless
extended by the Town at its discretion and during said period of time it
shall have the right to petition for transfer of the franchise to
another Grantee. If the Town finds that such transfer, after considering
the legal, financial and technical qualifications of the applicant are
satisfactory, the Town will transfer and assign the rights and
obligations of such franchise as in the public interest. The consent of
the Town to such transfer shall not be unreasonably withheld.
(e)
The consent or approval of the Town
to any transfer of the Grantee shall not constitute a waiver or release
of the rights of the Town in and to the streets, and any transfer shall,
by its terms, be expressly subject to the terms and conditions of this
chapter and the franchise.
(f)
The Town will approve any transfer
or assignment of the franchise prior to completion of construction of
the proposed system, if guarantees for timely and quality construction
are provided by the transferee, as may be reasonably requested by the
Town.
(g)
Notwithstanding anything to the
contrary, the prior approval of the Town shall not be required for any
assignment to any Person controlling, controlled by or under the same
common control as the Grantee.
(h)
Any approval by the Town of the
assignment or transfer of the franchise shall be contingent upon the
prospective Grantee becoming a signatory to the
franchise.
(Ord.
No. 88-31, § 2,
11-17-88
)
Sec.
6-16. Franchise
renewal.
Upon completion of the term of any franchise granted
under this chapter, the Town may grant or deny renewal of the franchise
of the Grantee in accordance with the provisions of the Communications
Act. The Grantee shall own the cable system, but shall have no property
right in the public rights-of-way upon the completion of the franchise
term.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-17. Police
powers.
(a)
In accepting the franchise, the
Grantee acknowledges that its rights hereunder are subject to the police
power of the Town (as provided in GS 116A-174) to adopt and enforce
general ordinances necessary to the safety and welfare of the public;
and it agrees to comply with all applicable general laws and ordinances
enacted by the Town pursuant to such power.
(b)
Any conflict between the provisions
of this chapter or the franchise and any other present or future lawful
exercise of the Town’s police powers shall be
resolved in favor of the latter, except that any such exercise that is
not of general application in the jurisdiction or applies exclusively to
Grantee or cable systems which contains provisions inconsistent with
this chapter shall prevail only if, upon such exercise, the Town finds
an emergency exists constituting a danger to health, safety, property or
general welfare and such exercise is mandated by law.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-18. Franchise
fees.
(a)
Because the Town finds that:
(1)
The streets of the state and Town to
be used by the Grantee in the operation of its system within the
boundaries of the franchise area are valuable public properties acquired
and maintained by the state and Town at great expense to its taxpayers;
and
(2)
The grant to the Grantee to the said
streets is a valuable property right without which the Grantee would be
required to invest substantial capital in rights-of-way costs and
acquisitions; and
(3)
The administration of this chapter
or the franchise imposes upon the Town additional regulatory
responsibility and expense, a Grantee of any franchise hereunder shall
pay to the Town a franchise fee of five (5) per cent of Gross Annual
Revenues. This annual franchise payment shall be in addition to any
other generally
applicable, non-discriminatory fee and
commence as of the effective date of the franchise. The Town shall be
furnished a statement of said payment by a certified public accountant
or officer of the Grantee, reflecting the total amounts of Gross Annual
Revenues and the above charges and computations for the period of July 1
to June 30 as provided in section 6-48(9) of this chapter.
(b)
If Grantee’s subscribers are
offered what is, in effect, a discount or discounts for “bundled”
services (i.e., Cable Service and some other, non-cable goods or
service), Grantee shall not disproportionately discount the fees charged
for Cable Service, relative to the discount in the fees charged for the
other, non-cable goods or services with the intent to minimize franchise
fees payable to the Town. This
provision is only meant to apply where an overall discount on bundled
services, or discounts on both Cable Service and other, non-cable goods
or services, is offered. Therefore,
this provision does not apply when only a discount is offered on a
non-cable good or service, without any discount in the Cable Service.
This provision is also not intended to prevent Grantee from
giving reasonable discounts for Cable Service, including, but not
limited to, any discounts offered to new subscribers or to subscribers
who upgrade the Cable Service they receive.
(c)
This payment shall be in addition to
any other generally
applicable, non-discriminatory lawful
tax or payment owed to the governments or other taxing jurisdiction by
the Grantee. Payment of the franchise fee made by Grantee to the Town
shall be in addition to any and all taxes which are now or may be
required hereafter to be paid by any federal, state, or local law.
(d)
Acceptance by the Town.
No acceptance of any payment by the Town shall be construed as a
release or as an accord and satisfaction of any claim the Town may have
for further or additional sums payable as a franchise fee under this
chapter or for the performance of any other obligation of the Grantee.
(e)
Failure to make required payment.
In the event that any franchise payment or recomputed amount is
not made on or before the dates specified herein, Grantee shall pay as
additional compensation an interest charge, computed from such due date,
at the annual rate equal to the commercial prime interest rate of the
Town’s
primary depository bank during the period that such unpaid amount is
owed.
(f)
The franchise fee shall be payable
quarterly to the Town of
Cary
.
The Grantee shall file a complete and accurate statement, certified by
an officer of the Grantee, of all Gross Revenue within the Town during
the period for which said quarterly payment is made, and said statement
and payment shall be made to the Town not later than forty-five (45)
days after the expiration of each calendar quarter. Quarterly
computation dates are the last day in the months of March, June,
September and December.
(g)
The Town shall have the right to
inspect the Grantee’s books and records
pertinent to the computation of the franchise fee and the right to audit
and to recompute any amounts determined to be payable under this
chapter. Audits shall be conducted by
Town
staff or
an independent auditor chosen by the Town. If, after audit and
recomputation, an undisputed unpaid fee is owed to the Town, it shall be
paid within thirty (30) days following written notice of the Grantee by
the Town which notice shall include a copy of the audit report.
The Town’s audit expenses shall be borne
by the Town unless the audit discloses an underpayment of Franchise Fees
in an amount equal to or exceeding five
percent (5%)
of the total Franchise Fee payment for the audit period, in which case
the costs of the audit shall be borne by the Grantee as a cost
incidental to the enforcement of this Franchise.
Any additional undisputed amounts due to the Town as a result of
an audit shall be paid by the Grantee to the Town within sixty (60) days
following written notice to the Grantee by the Town of the underpayment,
which notice shall include a copy of the audit report.
(Ord. No. 88-31, § 2,
11-17-88
)
Sec.
6-19.
Forfeiture
or revocation.
(a)
Grounds for revocation.
The Town reserves the right, subject to the provisions of
subsection (b) and (c)
of this section 6-19, to revoke any franchise granted hereunder and
rescind all rights and privileges associated with the franchise in the
following circumstances, each of which shall represent a default and
breach under this chapter and the franchise grant:
(1)
If the Grantee
shall default in the performance of any of the material obligations
under this chapter or the franchise.
(2)
If the Grantee shall fail to provide
or maintain in full force and effect the liability and indemnification
coverage or the performance bond as required herein.
(3)
If the Grantee shall violate any
orders or rulings of any regulatory body having jurisdiction over the
Grantee relative to this chapter or the franchise which results in a
default of any of the material obligations under this chapter or the
franchise.
(4)
If the Grantee practices any fraud
upon the Town or pattern of fraud on cable subscribers.
(5)
The Grantee’s
construction schedule is delayed later than the schedule contained in
the franchise or beyond any extended date set by the Town or is not
remedied through liquidated damages.
(6)
The Grantee becomes insolvent,
unable or unwilling to pay its debts or is adjudged bankrupt.
(7)
Failure to restore system-wide or
area specific service after ninety-six (96) consecutive hours of
interrupted service, except when approval of such interruption is
obtained from the Town or if the Grantee ceases to operate and provide
services for any reason within the control of the Grantee.
(8)
Material misrepresentation of fact
in the application for or negotiation of the franchise or any extension
or renewal thereof.
(b)
Effect of circumstances beyond
control of Grantee. The Grantee shall not be declared at fault or be
subject to any sanction under any provision of this chapter in any case,
in which performance of any such provision is prevented for reasons
beyond the Grantee’s control. A fault shall not
be deemed to be beyond the Grantee’s control if
committed by a corporation or other business entity in which the Grantee
holds a controlling interest whether held directly or indirectly.
(c)
Procedure prior to revocation.
(1)
The Town shall make written demand
that the Grantee
comply with any such requirement,
limitation, term, condition, rule or regulation or correct any action
deemed cause for revocation. If the failure, refusal or neglect of the
Grantee continues for a period of thirty (30) days following such
written demand or, in any case where such compliance cannot reasonably
be completed within thirty (30) days, other such longer period of time
as reasonably set by the Town, the Town shall place its request for
termination of the franchise upon a regular council meeting agenda. The
Town shall cause to be served upon such Grantee at least seven (7)
business days prior to the date of such council meeting, a written
notice of this intent to request such termination, and the time and
place of the meeting, notice of which shall be published by the Town
clerk at least once, seven (7) business days before such meeting in a
newspaper of general circulation within the Town.
(2)
The council shall hear any persons
interested therein, and shall determine in its reasonable judgment,
whether or not any failure, refusal or neglect by the Grantee was with
just cause.
(3)
If such failure, refusal or neglect
by the Grantee was with just cause,
as
defined by the Town in its judgment reasonably exercised, the council
shall direct the Grantee to comply within such time and manner and upon
such terms and conditions as are reasonable.
(4)
If the council shall determine such
failure, refusal, or neglect by the Grantee was without just cause, then
the council may, by resolution, declare that the franchise of the
Grantee shall be terminated and bond forfeited unless there be
compliance by the Grantee within ninety (90) days.
(e)
Disposition of facilities. In
the event a franchise renewal is denied (and all appeals exhausted), is
revoked or otherwise terminated, the Town may require Grantee to remove
its facilities from Town rights-of-way.
(f)
Restoration of property. In
the event Grantee removes its plant, structures and equipment, the
Grantee shall refill, at its own expense, any excavation that shall be
made by it and shall leave all public property, rights-of-ways, private
property, and places in as reasonably good condition as that prevailing
prior to the Grantee’s
removal of its equipment and appliances without affecting the electrical
or telephone cable wires or attachments. The Town shall inspect and
approve the condition of the public rights-of-ways and public places and
cables, wires, attachments, and poles after removal. The liability,
indemnity, insurance and performance bond as provided herein shall
continue in full force and effect during the period of removal and until
full compliance by the Grantee with the terms and conditions of this
paragraph, this chapter and the franchise.
(g)
Restoration by Town; reimbursement of costs. In the event of a
failure by the Grantee to complete an