Fort Walton Beach Ordinance — 1382 Cable Communication Franchises — reading text

evaluation sessions shall be open to the -42- public. (2) Special Evaluations. Special evaluation sessions may be held at any time during the term of the franchise at the request of the City. (3) Notice. All evaluation sessions shall be open to the public and announced in a newspaper of general circulation. Grantee shall notify subscribers of all such evaluation sessions by announcement on a local origination channel on the system between the hours of 11:00 a.m. and 9:00 p.m. for five (5) consecutive days preceding each session. (4) Topics. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to: system performance and construction, Grantee compliance with this Ordinance and the franchise, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, if applicable, franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings, and line extensions. (5) Duty to Cooperate. During the review and evaluation by the City, the Grantee shall fully cooperate with the City and shall provide such information and documents as the City may need to reasonably perform its review; provided, however, that Grantee will not be required to create any new records solely for the purpose of providing such information, if it is otherwise available. Section 39-5. Bonds, insurance, and indemnification. ~43- (a) PERFORMANCE BOND AND LETTER OF CREDIT. (1) Performance Bond. Prior to the effective date of the franchise, the Grantee shall obtain and maintain during the entire term of any franchise and any extensions and renewals thereof, at its cost and expense, and file with the City, a corporate surety bond in an amount specified in the franchise to guarantee the faithful performance of the Grantee of all its obligations provided under this Ordinance and the franchise. Failure to timely obtain, file and maintain said bond shall constitute a violation within the meaning of this section. Such bond must be issued by a surety and in a form acceptable to the City. To the extent that a franchisee has served the City for a period of ten (10) consecutive years and has faithfully and fully performed under the terms of its franchise agreement, the City reserves the right, upon approval by the City Council, to waive a performance bond. (2) Conditions. The performance bond shall be issued by a surety licensed to do business in Florida and shall provide the following conditions: (a) There shall be recoverable by the City jointly and severally from the principal and surety, any and all fines and liquidated damages due to the City and any and all damages, losses, costs, and expenses suffered or incurred by the City resulting from the failure of the Grantee to: 1. Faithfully comply with the provisions of this Ordinance and the franchise; ~44- 2. Comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; 3. Pay fees due to the City; 4. Pay any claims, liens or taxes due the City which arise by reason of the construction, operation, maintenance or repair of the cable system. Such losses, costs and expenses shall include but not be limited to: attorney's fees and other associated expenses. (b) The total amount of the bond shall be forfeited as a liquidated damage paid to the City in the event: 1. The Grantee abandons the cable system or fails to initiate or complete construction of the cable system as specified in the franchise or any extension thereto; or 2. The Grantee assigns the franchise without the express written consent of the City. (3) Reduction of Bond. Upon written application by the Grantee, the City may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond. Reductions granted or denied upon application by the Grantee shall be without prejudice to the Grantee's subsequent applications or to the City's right, at its sole discretion, to require the restoration of the full bond at any time thereafter. However, no application shall be made by the Grantee within one (1) year of any prior application. -45- (4) Letter of Credit. In lieu of, or addition to, the bond described above, and if approved by the City, the Grantee may obtain, maintain, and file with the City an irrevocable letter of credit from a financial institution acceptable to the City and licensed to do business in the State in an amount specified in the franchise, naming the City as beneficiary. The form and contents of such letter of credit shall be acceptable to the City and the letter shall be released only upon expiration of the franchise or upon the replacement of the letter of credit by a successor Grantee. Failure to obtain the letter of credit within the time specified herein shall constitute a violation within the meaning of this section. If a combination of performance bond and letter of credit is posted as security, the particular obligations or aspects of Grantee's performance being secured by each instrument shall be identified in that instrument to the satisfaction of the City. (5) Conditions. The City may draw upon the letter of credit if the Grantee fails to: faithfully comply with the provisions of this Ordinance and the franchise; comply with all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults; pay fees due to the City; or pay any claims, liens or taxes due which arise by reason of the construction, operation, maintenance or repair of the cable system. (6) Use of Performance Bond and Letter of Credit. Prior to drawing upon the letter of credit or the performance bond for the purposes described in this section, the City shall notify the -46- Grantee in writing that payment is due and the Grantee shall have ten (10) days from the receipt of such written notice to make a full and complete payment. If the Grantee does not make the payment within ten (10) days, the City may withdraw the amount thereof, with interest and penalties, from the letter of credit or the performance bond. (7) Notification. Within three (3) days of a withdrawal from the letter of credit or performance bond, the City shall send to the Grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal . (8) Replenishment of Letter of Credit and Performance Bond. No later than thirty (30) days, after mailing to the Grantee by certified mail notification of a withdrawal pursuant to paragraph (6) above, the Grantee shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a violation of this Ordinance. (9) Non-Renewal, Alteration, or Cancellation of Letter of Credit or Performance Bond. The performance bond and letter of credit required herein shall be in a form satisfactory to the City and shall require thirty (30) days written notice of any non- renewal, alteration or cancellation to both the City and the Grantee. The Grantee shall, in the event of any such cancellation -A7- notice, obtain, pay all premiums for, and file with the City, written evidence of the issuance of replacement bond or policies within thirty (30) days following receipt by the City or the Grantee of any notice of cancellation. (10) Increase in Bond and Letter of Credit Amounts. Increase in Bond and Letter of Credit Amounts. To offset the effects of consumer price inflation the amounts of the bond and letter of credit provided for herein, are subject to reasonable increases not greater than increases in the Pensacola Standard Metropolitan Statistical Area at the end of every three (3) year period of the franchise, applicable to the next three year period, at the sole discretion of the City. (b) LIABILITY AND INSURANCE. (1) Certificates of Insurance. Prior to commencement of construction, but in no event later than sixty (60) days after the effective date of the franchise and thereafter continuously throughout the duration of the franchise and any extensions or renewals thereof, the Grantee shall furnish to the City, certificates of insurance, approved by the City, for all types of insurance required under this section. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this Ordinance. At the City's request, Grantee shall furnish copies of any or all policies which are in effect from time to time. (2) Filing Requirements, Any insurance policy obtained by the -48- Grantee in compliance with this section shall be filed and maintained with the City Clerk during the term of the franchise, and from time to time the City may require, and the Grantee shall furnish, changes in such policies to reflect changing liability limits and/or to compensate for inflation. Grantee shall immediately advise the City of any litigation that may develop that would affect this insurance. (3) No Limitation of Liability. Neither the provisions of this section or any damages recovered by the City hereunder, shall be construed to or limit the liability of the Grantee for damages under any franchise issued hereunder. (4) Endorsement. All insurance policies maintained pursuant to this Ordinance or the franchise shall contain the following, or a comparable, endorsement: It is hereby understood and agreed that this insurance policy may not be modified or canceled by the insurance company nor the intention not to renew be stated by the insurance company until thirty (30) days after receipt by the City's Manager, by registered mail, of a written notice of such intention to cancel or not to renew. (5) Contractual Liability Policies. All contractual liability insurance policies maintained pursuant to this Ordinance or the franchise shall name the City as an additional insured. (6) Insurance Companies. All insurance policies provided under the provisions of this Ordinance or the franchise shall be written by companies authorized to do business in the State and approved by the State Board of Insurance. -49- (7) City As Additional Insured. At any time during the term of the franchise, the City may request and the Grantee shall comply with such request, to name the City as an additional named insured for all insurance policies written under the provisions of this Ordinance or the franchise. (8) Coverage Increases. To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for herein are subject to reasonable increases not greater than increases in the Pensacola Standard Metropolitan Statistical Area at the end of every three (3) year period of the franchise, applicable to the next three year period, at the sole discretion of the City. (9) Commercial General Liability Insurance. The Grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, general liability insurance insuring the Grantee in the minimum of: (a) $1,000,000 for property damage per occurrence; (b) $2,000,000 for property damage aggregate; (c) $5,000,000 for personal bodily injury or death to any one person; and (d) $10,000,000 bodily injury or death aggregate per single accident or occurrence. (10) Coverage. Such general liability insurance must include coverage for all of the following: comprehensive form, premises- -~50-