(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 percent of gross annual revenues. This annual franchise payment shall be in addition to any other generally applicable, nondiscriminatory 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 9-205(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, noncable 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, noncable 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, noncable goods or services, is offered. Therefore, this provision does not apply when only a discount is offered on a noncable 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, nondiscriminatory 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 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 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 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 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. 04-009, § 6-18, 8-26-2004)