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HomeMy Public PortalAbout05-23-2002 Budget Workshop 450 . Town of HUlt gh MINUTES HILLSBOROUGH TOWN BOARD May 23, 2002 7:00 PM, Town Barn The Hillsborough Town Board held a Budget Workshop on May 23, 2002 at 7:00 PM in the Hillsborough Town Barn. Present for the Budget Work Session were Mayor Joe Phelps and Commissioners Frances Dancy, Evelyn Lloyd, Mark Sheridan, and Mike Gering. Absent was Commissioner Kenneth Chavious. Staff present were Town Manager Eric Peterson, Town Clerk Donna Armbrister, Finance Director Sherry Carter, Town Engineer Kenny Keel, and Public Works Director/Assistant Town Manager Demetric Potts. Mayor Joe Phelps called the Budget Workshop to order at 7:02 PM. 1. PUBLIC CHARGE Mayor Joe Phelps did not read the Public Charge, but stated that it would be followed and that he expected the Board and Audience to conduct themselves with courtesy and respect. 2. AGENDA CHANGES AND APPROVAL . Commissioner Gering requested to add a discussion ofthe Adequate Public Facilities Ordinance, and a discussion regarding the Town Clock to the Agenda. By consensus, the Adequate Public Facilities Ordinance was added as the first Item after the Public Hearing, and the Town Clock was added as the second Item. Mayor Phelps requested to add a Closed Session for the purpose of discussing potential property purchase. By consensus the Closed Session was added as Item 6.A. 3. CONSIDER APPROVAL OF DUMPSTER COLLECTION FRANCHISE ORDINANCE (Second Reading) Assistant Town Manager/Public Works Director Demetric Potts presented the Ordinance to the Board for the second vote. Upon a motion by Commissioner Sheridan, seconded by Commissioner Dancy, the Board moved to approve the Dumpster Collection Franchise Ordinance as presented by a vote of 4-0. The motion was declared passed. A copy of the Ordinance is hereby made a part of these official Minutes as an Attachment. Assistant Manager Potts updated the Board on the Dumpster Collection Contract stating that the bids have been received and the Commercial Garbage Collection Committee has conducted an evaluation of all the Bids. Potts stated that he would be bringing a recommendation to award the . contract to the Board for consideration at their June meeting. . . . 451 4. PUBLIC HEARING A. Public Hearing to receive public comment on the Proposed FY03 Annual Budget and FY03-FY05 Financial Plan Mayor Phelps opened the Public Hearing. There was no one from the public present to speak. Mayor Phelps closed the Public Hearing. ADDED ITEM ADEQUATE PUBLIC FACILITIES ORDINANCE Commissioner Gering updated the Board on the status of the Ordinance and stated that the County has offered to have their Planning Director attend a Town Board Meeting to discuss the Ordinance if the Board wishes. Commissioner Sheridan stated that he would be interested in seeing what changes Chapel Hill and Carrboro have made to the Ordinance. By consensus, the Board agreed to add the Adequate Public Facilities Ordinance to their June Agenda for consideration. By consensus, the Board agreed to cancel their Regular Workshop scheduled for Monday, June 24th. By consensus, the Board agreed to add to their Meeting Schedule a meeting for Tuesday, June 25th to be held in the Town Barn beginning at 7:00 PM. From 7:00-8:00 the Board will address the adoption of the Town Budget, and beginning at 8:00 there will be a question and answer session with the developers of the proposed Waterstone development. The officials from Orange County have been invited to attend this question and answer session. ADDED ITEM TOWN CLOCK Commissioner Gering requested direction from the Board whether or not the Town Clock Committee should go to the County to request they encumber the funds allocated in this year's budget to repair the clock tower and begin the process so that it would be repaired by the time the Town Clock is ready to be remounted. Mayor Phelps stated he would work on obtaining private funding to assist in the Clock repairs. He indicated that he was not optimistic the Clock could be repaired for the amount ofthe verbal quote. Assistant Town Manager Potts stated that he expected to have the written quote by early next week. Commissioner Gering stated he felt the repairs could be done for not much over $25,000. Commissioner Lloyd stated that the Alliance for Historic Hillsborough might also be able to obtain private funding. 2 . . . 452 By consensus, the Board committed to provide $15,000 of the Town's Budget toward the Town Clock repairs. Town Manager Eric Peterson informed the Board that using both Town funds and private funds can be done, but he is working with the Town Attorney to assure legal compliance. 5. WORKSHOP ON PROPOSED FY02-03 WATER/SEWER FUND BUDGET Mayor Phelps commended the Town Manager on his Budget recommendations, and the staff on their departmental budget requests. He indicated his pleasure with the recommended budget compared to many other municipalities in the state. The Manager reviewed Line Item Details for Engineering/Utilities Administration, Billing & CollectionlMeter Reading, Water Treatment Plant, Water Distribution, Wastewater Collection, and the Wastewater Treatment Plant. Town Manager Peterson reviewed three options for the Board's consideration on In-Town v. Out-of- Town Water/Sewer Rates. Option #1 No rate increase in FY03 for in-town or out-of-town customers. (Manager stated that if this option is adopted by the Board, yet they are still inclined to lower the current "double rate" or 100% greater rates for out-of-town customers, they may choose to only raise in-town rates the next time an increase is necessary. This approach would allow the Board to incrementally decrease the "gap" between rates until they reached a pre-set point or goal established by the Board of Commissioners. ) Option #2 Out-of- Town Water and Sewer rates decline by 2.5%. In- Town Rates are increased by 3.5% for water and 1.5% for sewer to make- up for the lost revenue of reducing the out-of-town rates. Option #3 Out-of- Town Water and Sewer rates decline by 5.0%. In- Town Rates are increased by 6.75% for water and 3.0% for sewer to make-up for the lost revenue of reducing the out-of-town rates. After some discussion, the Board indicated their option preferences as: Commissioner Dancy (Option #1), Commissioner Sheridan (First preference Option #3 & Second preference Option #2), Commissioner Lloyd (Option #1), and Commissioner Gering (Option #1). Manager Peterson compared the current Water & Sewer Capital Facility Fees for the various meter sizes to the Capital Facility Fees recommended in the Raftelis Study. Peterson made the following recommendations: Water Capital Facility Fees: Maintain the current rates for the Water CFFs, since the amount of current water service obligations will almost completely exhaust the Town's current "peak demand" supply in 4-7 years. The additional 1.2 mgd of capacity to be added as Phase 2 of the Reservoir expansion and the accompanying expansion of the water plant will require that CFFs for Water be re-calculated in approximately two 3 . . . 453 fiscal years. Preliminary calculations indicate that the new fees should be substantially higher than the current rate recommended by Raftelis. Thus, the recommendation of maintaining the current rate structure for Water CFFs, with the exception that the double rate for out-of-town connections be eliminated based on the recommendations of Raftelis. Sewer Capital Facility Fees: Adopt the CFF structure recommended by Raftelis. While this means a substantial decrease in Sewer CFFs, the calculations provided in the Raftelis Study show that revenues generated under this structure should be sufficient to reimburse the Town for the investment/remaining capacity that new development will use between now and when the plant reaches capacity. From July I SI forward, a financial justification cannot be provided to support substantially higher rates than those recommended in the Raftelis Study. Important Note Regarding Future Development/Annexations: Capital Facility Fees are philosophically intended to be a "break-even" revenue source to pay for use of plant capacity. So, a reduction in rates is not necessarily a loss of revenue. Key Point: If developers are required to pay less in Capital Facility Fees this should free up funds that they may otherwise pay to help offset/assist with "real world" costs/pressures that their developments place on the General Fund's operation (e.g., fire stations, recreation need, public safety demand, etc.) Town Manager Peterson reported that he would place a "Budget Update" on the Agenda for the June Regular Board Meeting. 6. OTHER There was no other business. ADDED CLOSED SESSION FOR THE PURPOSE OF DISCUSSING POTENTIAL PURCHASE OF REAL PROPERTY Upon a motion by Commissioner Dancy, seconded by Commissioner Gering, the Board moved to go into Closed Session for the Purpose of Discussing Potential Purchase of Real Property by a vote of 4-0. The motion was declared passed. 7. ADJOURN Upon returning to Open Session, and upon a motion by Commissioner Gering, seconded by Commissioner Lloyd, the Board move to Adjourn the meeting at approximately 9:45 PM by a vote of 4-0. The motion was declared passed. ~~~ Respectfully submitted, Donna F. Armbrister, CMC Town Clerk 4 . . . 454 AN ORDINANCE AUTHORIZING THE TOWN OF HILLSBOROUGH TO ENTER INTO A FRANCHISE AGREEMENT FOR THE COLLECTION AND DISPOSAL OF COMMERCIAL SOLID WASTE WITHIN THE TOWN OF HILLSBOROUGH THE BOARD OF COMMISSIONERS OF THE TOWN OF IDLLSBOROUGH ORDAINS: Section 1. Purpose. The purpose of this ordinance is to authorize the Town of Hillsborough Board of Commissioners to approve and enter into franchise agreements, including exclusive franchise agreements, with other local governments and/or private entities for the collection of solid waste generated by non-residential establishments located within the Town of Hillsborough's corporate limits. Section 2. Definitions. Unless otherwise specifically provided, or unless clearly required by the context, the words and phrases defined in this section shall have the meaning indicated when used in this chapter. (1) Commercial Solid Waste. Solid waste generated by or as a result of non- residential activity within the Town of Hillsborough, including but not limited to the solid waste generated by commercial and industrial establishments and excluding solid waste generated at residences situated within the Town of Hillsborough. (2) Franchise. Any authorization granted hereunder in the terms of a franchise, privilege, permit or license to collect commercial solid waste in the Town of Hillsborough. (3) Grantee. The person to whom a franchise is granted by the Town of Hillsborough for Board of Commissioners, and the lawful successor, trustee or assignee of this person (so long as the transfer is approved in accordance with Section _ of this Ordinance). (4) Limited Area Grantee. A Grantee that is granted a franchise to operate within a limited area of the Town of Hills borough. (5) Limited Purpose Grantee. A Grantee that is granted a franchise to provide commercial solid waste collection services to certain specified locations within the Town of Hillsborough. (6) Business Hours. Agreement. Business hours shall be established ill the Franchise (7) Service Area or Franchise Area. The entire geographic area of the Town of Hillsborough, unless otherwise specified in the Franchise Agreement. 455 . (8) Street or Road. The surface of any space above and below any publicly or privately owned or maintained property or right-of-way, street, road, highway, freeway, land, path, alley, sidewalk, parkway or drive, now or hereafter existing within the incorporated area of the Town of Hillsborough. (9) Subscriber. Any person who or which lawfully elects to contract directly with Grantee for the collection of commercial solid waste and who pays charges to the Grantee for such service. Section 3. Franchise Required. (a) Except as provided in this Section or in Section _ no person may engage in the collection of commercial solid waste within the corporate limits of the Town of Hillsborough unless such person or the person for whom such action is being taken obtains and currently holds a franchise granted pursuant to this Chapter. It shall be unlawful for any person to collect commercial solid waste within the Town of Hillsborough unless such person obtains and currently holds a valid franchise granted pursuant to the provisions of this Chapter. (b) As provided herein, the Town may grant a franchise to limited area grantee or to a limited purpose grantee, and no person providing commercial solid waste collection services within the Town of Hillsborough on the effective date of this Ordinance, or on the effective date of annexation of an area in the Town of Hillsborough may continue to provide such services after the effective date of annexation unless a franchise has been granted under this Chapter. . Section 4. Conflict Between this Chapter and Franchise. To the extent that there is any conflict between provisions of this chapter and the provisions of any franchise granted pursuant to this Chapter, the provisions of the franchise shall be contro lling. Section 5. Initial Franchise Applications. (a) Any person desiring an Initial Franchise to collect commercial solid waste within the Town of Hillsborough shall file an application with the Town in accordance with the provisions of this Section. (b) An application for an Initial Franchise to provide commercial solid waste collection services shall contain, where applicable: (i) A statement as to the proposed franchise and service area; (ii) A resume of the prior history of the applicant, including the legal, technical and financial expertise of the applicant in the commercial solid waste business; . 2 4 r. f'\ ~0 . (iii) A list of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned and controlled by each shareholder, if a corporation; (iv) A list of the officers, directors and managing employees of the applicant, together with the description of the background of each such person; (v) The names and addresses of any parent or subsidiary of the applicant or any other business entity owning or controlling the applicant in whole or in part, or owned or controlled in whole or in part by the applicant; (vi) A current financial statement of the applicant verified by a certified public accountant's audit or otherwise certified to be complete and correct to the reasonable satisfaction of the Town; (vii) A proposed service schedule, including a schedule of fees which the applicant proposes to charge to customers within the Town; (viii) Any additional information the Town deems reasonably necessary whether the applicant is qualified to provide commercial solid waste collection services in accordance with the provisions of this Chapter. . Section 6. Acceptance of Franchise; Effective Date. (a) Upon receipt of an application for a franchise in accordance with the provisions of the preceding Section, the Town Board shall determine the applicant's qualifications to provide commercial solid waste collection services in accordance with the provisions of this Chapter. If the Board determines that the applicant is not so qualified, it may refuse to grant the requested franchise. If the Board determines that the applicant is so qualified, it may, by ordinance, grant a franchise to such applicant to be effective as provided in this Section. No provision of this Chapter may be deemed or construed to require the granting of a franchise when the Board determines not to do so would not be in the public interest; (b) Within thirty (30) days after the Board has taken final action to approve the granting of a franchise, the grantee shall file with the Town Clerk a written acceptance of the conditions required for the franchise, acknowledged before a notary public. Such acceptance shall acknowledge that the grantee agrees to be bound by and to comply with the provisions of this Chapter and the franchise shall be in the form approved by the Town Attorney. (c) Concurrently with the filing of the written acceptance, the grantee shall file with the Town Clerk the bond, letter of credit, and insurance policies required by Sections 20 and 21 of this Chapter. . 3 . (d) 457 The effective date of any franchise granted shall be the date on which the grantee files the acceptance, bond and proofs of insurance as required herein. However, if any of the material required to be filed with the acceptance or the acceptance itself is defective or fails to meet with approval, the franchise shall not be effective until such defect is cured or such approval is obtained. (e) If the grantee fails to accept the franchise and file the information required under this Section under the time limits set forth in subsection (b), the Town Board may, at any time thereafter before acceptance, summarily revoke the franchise. Written notice of such revocation shall be sent to the grantee forthwith. Section 7. Franchise Term. A franchise granted may be for a term of up to ---2 years from the Town Board takes final action to approve such franchise. The term of the franchise shall be specified in the franchise. Section 8. Exclusive/NonExclusive Franchise. Any franchise granted may be either exclusive or non-exclusive, in the sole discretion of the Town Board. The Town specifically reserves the right to grant, at any time, such additional franchise for the provision of commercial solid waste collection services as it deems appropriate, subject to applicable State or federal law. Section 9. . (a) Multiple Franchises. The Town may grant one or more franchises for a service area. The Town may, in its sole discretion, limit the number of franchises granted based, upon, but not necessarily limited to, the requirements of applicable law and specific local considerations such as: (i) The impact on the community of having multiple franchises; (ii) The disadvantages that may result from competition; (Ui) The financial capability of the applicant and its guaranteed commitment to make the necessary financial investment and to maintain and competently operate the proposed commercial solid waste system for the duration of the franchise term. Section 10. Transfer or Assignment of Commercial Solid Waste Collection Service. (a) . The transfer of control of a franchise or assignment of a franchise to operate a commercial solid waste collection service, other than a pro forma transfer or assignment to a parent or wholly owned subsidiary corporation or other form of organization, shall not take place whether by force or voluntary sale, lease, mortgage, assignment, encumbrance, foreclosure, attachment or merger or other form of disposition, without prior notice to and approval by the Town Board. The notice shall include full identifying particulars of the proposed transaction, and 4 . (b) (c) (d) 458 the Town Board shall act by resolution. The Town Board shall have one hundred twenty (120) days after the receipt of the notice and all supporting documents within which to approve or disapprove a transfer of control or assignment of the franchise. If the proposed transfer or assignment is not acted upon within one hundred twenty (120) days, approval shall be deemed to have been given. Notice of any such proposed transfer or assignment, together with copies of all documents pertaining thereto, shall be in writing and filed with the Town Clerk. The proposed transferee or assignee shall agree in writing to comply with all provisions of this ordinance, the franchise and such other provisions and requirements as the Town Board might require. For the purpose of this section, the term "control" is not limited to majority stock ownership but includes actual working control in whatever manner exercised. A rebuttable assumption that a transfer of control has occurred shall arise upon the acquisition or accumulation by any person or group of persons of ten percent (10%) of the voting shares of the grantee. In the absence of extraordinary circumstances, the Town Board will not approve any transfer or assignment of a franchise within the first two (2) years of operation. . Section 11. Termination and Expiration of Franchise. (a) The Town Board may terminate at any time any franchise granted hereunder and rescind all rights and privileges associated therewith in the event that: . (i) Grantee has not complied in some material respect with any provision of this Chapter, or of any supplemental written agreement entered into by and between the Town and the grantee, or of any terms and conditions or any franchise or permit issued hereunder; (ii) Grantee has made a material, false statement in the application for the franchise, knowing it to be false; (iii) Grantee, contrary to the best interests of public convenience and welfare, is not providing subscribers with regular, adequate and proper service, consistent with the terms of any franchise granted hereunder; (iv) Grantee becomes insolvent, enters into receivership or liquidation, files for bankruptcy, or for composition of creditors, is unable or unwilling to pay a debt as they mature or is in financial difficulty of sufficient consequence so as to jeopardize the continued operation of the commercial solid waste collection service, unless the grantee is in due process of contesting such debt; 5 4t."'9 ~ '- . (v) Grantee violates any order or ruling of any governmental body having jurisdiction over the grantee, unless the grantee is lawfully contesting the legality or applicability of such order; (vi) The operation of the commercial solid waste collection servIces IS discontinued for a period of thirty (30) consecutive days. (b) If the Town proposes to terminate for cause a franchise granted hereunder, it shall give the grantee sixty (60) days written notice of the intention to terminate and stipulate the cause. If during the sixty (60) days, the cause shall be cured to the satisfaction of the Town, the Town shall declare the notice to be null and void. In any event, before a franchise may be terminated, the grantee must be provided with an opportunity to be heard before the Town Board in accordance with due process procedures. If a grantee's franchise is terminated, the decision shall be subject to a judicial review as provided by law. Section 12. Continuation of Service. (a) Upon expiration or termination of a franchise, the Town may require the grantee to continue to provide service for a reasonable period (not to exceed three (3) months) in order to ensure uninterrupted service to subscribers. . (b) Upon expiration or termination of a franchise and for so long as the grantee continues to provide commercial solid waste collection services thereafter, the grantee shall remain subject to the provisions of the expired or terminated franchise, unless and until a new franchise is issued to such grantee. Section 13. Franchise Renewal; Process of Succession. (a) Franchise renewals shall be in accordance with applicable law. The Town and the grantee may, by mutual consent, enter into renewal negotiations at any time during the term of the franchise. (b) Upon the expiration or termination of a franchise, the Town Board may advertise and seek another grantee to provide commercial solid waste collection services within the Town. The Town Board, in seeking a new grantee, shall use essentially the same methods and procedures as are required to grant the initial franchise. Section 14. Limited Area Franchise. (a) The Town may grant a franchise to a limited area grantee to authorize such grantee to provide, or continue to provide, commercial solid waste collection services to subscribers served by grantee's commercial solid waste collection service on the effective date of annexation. . 6 460 . (b) Within ten (10) days after the effective date of annexation of an area, a limited area grantee shall file with the Town a map showing the locations of all subscribers within the area where the grantee was providing service on the effective date of annexation. The grantee shall also furnish such other information as is reasonably requested by the Town to document the grantee's contention that service was being provided to such subscribers on the effective date of annexation. (c) A limited area grantee shall be subject to all of the provisions of this Chapter applicable to other grantees except those specifically made not applicable to such limited area grantees. (d) Nothing in this section is intended to prevent a company providing commercial solid waste collection services to an annexed area from seeking a franchise to serve all other areas within the Town. Section 15. Limited Purpose Franchise. (a) The Town may grant a franchise to a limited purpose grantee to authorize such grantee to provide specific types of commercial solid waste collection service to specific subscribers located within the Town. . (b) A limited purpose grantee shall be subject to those provisions of this Chapter except those that are patently not applicable to the circumstances of a limited purpose grantee. Section 16. Limitations of Franchise. (a) In addition to the limitations otherwise appearing herein, the franchise is subject to the limitations and restrictions set forth in this section. (b) The grantee shall at all times during the life of any franchise comply with any and all ordinances that the Town has adopted or shall adopt, shall be subject to all laws of the State of North Carolina and the United States. (c) Time shall be of the essence of any franchise granted hereunder. The grantee shall not be relieved of its obligations to comply promptly by the failure of the Town to enforce prompt compliance. Failure of the Town to enforce any breach by the grantee shall not constitute a waiver by the Town. (d) Any franchise granted hereunder shall not relieve the grantee of any obligation under any pre-existing agreements with the Town concerning commercial solid waste collection services. . Section 17. Additional Town Rights in Franchise. 7 461 . (a) The Town may from time to time add to, modify, or delete provisions of this ordinance as it shall deem necessary in the exercise of its regulatory powers, so long as additional or revised provisions are reasonable and in keeping with the public interest and welfare. Such additions or revisions shall be made only after a public hearing for which the grantee shall have received at least ten (10) days prior written notice. (b) If the grantee fails to perform any of the services required by the franchise or any work required by Town ordinance at the times established and to the satisfaction of the Town, the Town may cause such service to be provided or work to be done, and the grantee shall reimburse the Town the costs thereof within thirty (30) days after receipt of an itemized list of such costs. (c) The Town reserves the right during the life of any franchise granted hereunder, reasonably to inspect grantee's equipment used in the Town and its operations to ensure compliance with the terms ofthis Chapter and the franchise. (d) The Town reserves the right, in the event of an emergency or disaster to require the grantee to suspend or alter its service schedule. (e) Neither the granting of any franchise or any governing provision of such franchise shall constitute a waiver or bar to the exercise of any governmental right of power or power of the Town, including without limitation the power to provide commercial solid waste collection services. . (f) The Town reserves all rights not specifically granted herein, and the enumeration of the rights herein shall not be construed to be a limitation of any right or power the Town may otherwise have. Section 18. Liability and Indemnification. (a) The grantee shall save the Town and its officials and employees harmless from all loss sustained by them on account of any suit, judgment, execution, claim or demand which they may legally be required to pay as a result of the enactment of this Chapter and the award of a franchise hereunder, or as a result of the exercise of any franchise granted to the grantee. (b) The grantee shall save the Town and its officials and employees harmless from all loss sustained by them on account of any suit, judgment, execution, claim or demand whatsoever based upon any injuries sustained arising out of the provision of commercial solid waste collection services authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this ordinance or any franchise granted hereunder. . 8 . (c) 462 The grantee shall pay all expenses incurred by the Town and its officials and employees defending themselves with regard to all damages and penalties mentioned in subsections (a) and (b) above. These expenses shall include all out- of-pocket expenses, such as consultants or attorneys fees, and shall also include the reasonable value of any services rendered by the Town Attorney or any other employee of the Town. Section 19. Insurance. (a) Concurrently with the filing of a written acceptance of any franchise issued hereunder, the grantee shall file with the Town Clerk and at all times thereafter maintain in full force and effect for the term of such franchise or any renewal thereof: . (b) (i) Comprehensive general liability providing coverage for personal injuries and property damage. The amount of such coverage shall be provided in the franchise. The Town shall be named as an additional insured on such policy. (ii) Business auto liability policy providing coverage for personal injuries and property damage. The amount of coverage shall be provided in the franchise. The insurance coverage necessary to comply with this section shall be approved by the Town (such approval not be unreasonably withheld or delay) and copies of such insurance polices (or certificates of insurance) shall be filed with the Town. Section 20. Performance, Security. (a) Within thirty (30) calendar days following the award of a franchise, the grantee shall deposit with the Town the performance bond, letter of credit from a financial institution, or other form of financial security approved by the Town Attorney and the Town Finance Director or designated representative as to form and amount, in the amount to be specified in the franchise. The performance security shall be used to insure the faithful performance by the grantee of all provisions of the franchise, and compliance with all orders, permits and directions of any agency commission, board, department, division or office of the Town exercising jurisdiction over the grantee's acts or defaults, a payment by the grantee of any penalties, claims, liens, liquidated damages, or fees due to Town. (b) . If the grantee fails to pay the Town any compensation, not in dispute, due the Town within the time fixed herein, or fails, after thirty (30) calendar days to pay the Town any penalties, claims, liens, liquidated damages, fees due to the Town, such failure by the grantee can be remedied by demand on the performance security. Upon such request for payment, the Town shall notify the grantee of the amount and date hereof. 9 . (c) 463 The performance security shall be maintained at the amount indicated in subsection (a) during the entire term of the franchise unless modified in accordance with procedures provided for in the franchise. In the event the amounts are withdrawn against the performance security pursuant to this section, the grantee shall take any required action to restore the letter of credit to the original amount within ten (10) business days of notification by the Town of its withdrawal against the performance security. (d) The rights reserved to the Town with respect to the performance security are in addition to all other rights of the Town, whether reserved by the franchise, or authorized by law, and no action, proceeding, or exercise of a right with respect to such letter shall effect any other right the Town may have. Section 21. Inspection of Books and Records. (a) The Town may inspect the books, records, maps, plans and other documents, including financial documents, in the control or possession of the grantee, affiliates or any other person that constitutes an operator of the grantee's commercial solid waste collection service: (i) . (ii) (ill) (b) . To enforce the Town's right to evaluate compliance with the franchise and applicable law, or In the exercise of any lawful regulatory power, or As may be convenient in connection with any proceeding the Town may or must conduct under applicable law in accordance with the terms of this franchise. The material may be duplicated at the Town's facilities unless the grantee agrees to make inspection copying at some other place. Materials that the Town requires the grantee to produce under this section shall be produced upon reasonable notice, no later than thirty (30) calendar days after the request for production. Requests for extensions of time to respond shall not be unreasonably denied. The grantee may request that the Town treat any books, records, maps, plans and other documents of the grantee containing trade secrets or proprietary information as confidential under the North Carolina Public Records Law. To the extent authorized by such law and other applicable State and federal laws, the Town shall maintain the confidentiality of the information designated "proprietary" by any grantee. Should the Town receive a request to review the grantee's records or books under the North Carolina Public Records Law, it will promptly notify the grantee and provide an opportunity for the grantee to raise an objection, demonstrate why the requested information is proprietary and, if necessary, seek a court order to protect its proprietary information. However, any action taken by 10 '484 . the grantee to protect its records or information shall be done at no cost or liability to the Town. Section 22. Reports to the Town. (a) The grantee shall provide to the Town: (i) Within ninety (90) calendar days after the close of the grantee's fiscal year, a written annual report setting forth gross revenues received by the grantee from subscribers within the Town during the fiscal year, certified by an official of the grantee; (ii) Upon request of the Town, a copy of the most recent annual report including a financial statement, of the grantee or its parent entity; (iii) A copy of any notice of deficiency, forfeiture, or other document issued by any state or federal agency which has instituted any investigation or civil or criminal proceeding naming the grantee; and . (iv) A copy of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the grantee, any affiliate which controls or manages the grantee. Section 23. Miscellaneous Provisions. (a) If any section, sentence, clause or phrase of this Chapter or the franchise is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity of this Chapter or the franchise. However, if any such provision is determined to be invalid and a subsequent change in law renders such provision lawful, then such provision shall thereafter be fully enforceable. (b) The grantee shall not be relieved of its obligation to comply promptly with any of the provisions of the franchise by any failure of the Town to enforce prompt compliance. ( c) This Chapter and any dispute arising from its adoption, or pursuant thereto shall be governed by the laws ofthe State of North Carolina. ( d) This Ordinance shall apply to all franchises granted or renewed after the effective date of this Ordinance. . (e) This Chapter shall not be deemed conclusive as to the terms and conditions of any franchise issued hereunder. The final terms and conditions of such franchise shall be determined by the franchise ordinance. 11 . . . 465 Section 24. Penalties and Remedies. (a) As provided in Section 11, violations of this Chapter (or ofa franchise) by a grantee may result in termination of the franchise. (b) A violation of any of the provisions of this chapter or a failure to abide by any of the provisions of a franchise issued pursuant to this Chapter shall subject the offender to a civil penalty of Five Hundred ($500.00) Dollars. If a person fails to pay this penalty within ten (10) days after being cited for a violation, the Town may seek to recover the penalty by filing a civil action in the nature of debt. (c) The Town may seek to enforce this Chapter in any franchise granted to any appropriate equitable action. (d) Each day that a violation continues after the offender has been notified of the violation shall constitute a separate offense. (e) The Town may seek to enforce this Chapter by using anyone or combination of the foregoing remedies. Section 25. All provisions of any town ordinance in conflict with this ordinance are repealed. Section 26. This ordinance shall become effective upon adoption. The foregoing ordinance, having been submitted to a vote, received the following that was duly adopted this~ay of IYJIJf ' 2002. Ayes: i Noes: ./ Absent or Excused: I ~/~ ~dkd 12