HomeMy Public PortalAbout05-23-2002 Budget Workshop
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Town
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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
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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.
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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.
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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
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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.
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Respectfully submitted,
Donna F. Armbrister, CMC
Town Clerk
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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.
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(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.
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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;
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(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.
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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.
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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.
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(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)
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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
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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.
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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:
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(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;
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(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.
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(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.
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(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.
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(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.
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Section 17. Additional Town Rights in Franchise.
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(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.
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(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.
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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:
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(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)
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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.
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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)
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(ill)
(b)
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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
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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.
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.
.
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
~/~
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