§ 30-13. Security (bonds), insurance and indemnification.

(a)

Performance security.

(1)

Each franchisee shall file with its application for a franchise, and maintain at all times thereafter until the issuance by the board of an order of completion, performance bond (security) in an amount equal to 110 percent of the franchisee's reasonable estimate of total cost of the construction of the system in the public rights-of-way, in one of the following forms:

a.

An acceptable cash bond issued by a surety authorized to do business in the state.

b.

An irrevocable letter of credit issued by an acceptable financial institution located in the state.

c.

A cash deposit with a fiduciary, according to the terms of an escrow agreement acceptable to the county.

The performance security shall be conditioned that in the event the franchisee shall materially fail to comply with any one or more of the provisions of this chapter or franchise, whether or not the franchise is terminated, then there shall be recoverable jointly and severally from the franchisee and the surety, the grantor of the letter of credit, or the holder of the escrowed deposit, any damages, delinquent fees, compensation, and costs and expenses of repairing or completing the system, and compensation, and cost of removal or abandonment of property and repair of streets and other public or private improvements, up to the full amount of the performance security. The existence of the performance security shall not limit any right of action which the county may have against the franchisee. The performance security (bond), letter of credit, or escrow agreement, shall be reasonably acceptable to the county manager and county attorney. Nothing herein shall be construed to prohibit the county from drawing on the performance security required by this section for a franchisee's failure to construct and install facilities and equipment or provide cable communications services.

(2)

Concurrently, with the acceptance of the grant of a franchise under this chapter, the franchisee shall deposit with the county and maintain in the amounts prescribed herein, performance security from or with a financial or insurance institution authorized to do business in the state, in the amount of $100,000.00, except that the performance security shall be in the amount of $25,000.00 for franchisees whose system is reasonably estimated to serve less than 1,500 subscribers. The form and content of such performance security shall be approved by the county attorney. The performance security shall be used to ensure the full and faithful performance by the franchisee of all provisions of the franchise and this chapter, compliance with all orders, permits and directions of any agency, board, department, division or officer or employee of the county having jurisdiction over the franchisee's acts or defaults under this chapter and the franchise, and the payment of any damages, fees, claims, liens and penalties due the county which arise by reason of any act or omission from or related to the construction, operation or maintenance of the system or the provision of cable services.

(3)

The ongoing performance security shall be maintained in full force and effect for the entire term of the franchise or any renewal thereof and for one year after the franchise expires, is revoked or terminated.

(4)

If the franchisee fails to pay the county within two weeks after written demand, any damages, assessments, penalties, costs or expenses which become due under this chapter, or which the county is responsible for paying by reason of any act or omission of the franchisee in connection with this chapter or franchise, or if the franchisee fails, after notice from the county manager of such failure to comply with any provision of this chapter or franchise which the county reasonably determines can be remedied by demand on the performance security, then the county manager may immediately request payment of x or draw, the amount thereof, with interest and any penalties from the performance security. Upon such request for payment the county manager shall notify the franchisee of the amount and date thereof.

(5)

Upon written application by the franchisee, the county may, at its sole option, permit the amount of the performance security to be reduced or waive the requirements for performance security. Reductions granted or denied upon application by the franchisee shall be without prejudice to the franchisee's subsequent applications or the county's right, at its sole discretion, to require the restoration of the full performance security at any time thereafter. However, no application shall be made by the franchisee within one year of any prior application.

(6)

No later than 30 days after mailing to the franchisee by certified mail notification of a withdrawal pursuant to this section, the franchisee shall replenish the performance security in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount shall constitute a violation of this chapter.

(7)

To offset the effects of consumer price inflation, the amounts of the ongoing performance security provided for in this section are subject to reasonable increases at the end of every three-year period of the franchise, applicable to the next three-year period, at the sole discretion of the county.

(8)

The rights reserved to the county with respect to the performance security are in addition to all other rights of the county whether reserved by the franchise or authorized by law. No action, proceeding or exercise of a right with respect to such performance security shall affect any other right which the county may have.

(9)

The performance security required herein shall be in a form satisfactory to the county and shall require 30 days written notice of any non-renewal, alteration or cancellation to both the county and the franchisee. The franchisee shall, in the event of any such cancellation notice obtain, pay all premiums for, and file with the county, written evidence of the issuance of replacement security within 30 days following receipt by the county or the franchisee of any notice of cancellation.

(10)

The performance security provided pursuant to this section shall become the property of the county in the event that the franchise is cancelled or terminated by reason of the default of the franchisee.

(b)

Liability and insurance.

(1)

Prior to, but in no event later than 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 franchisee shall furnish to the county certificates of insurance, approved by the county, for all types of insurance required under this section. Failure to furnish the certificates of insurance in a timely manner shall constitute a violation of this chapter. At the county's request, the franchisee shall furnish copies of all policies or certificates of insurance which are in effect from time to time. Insurers must be authorized to conduct business in the state and have a financial size and rating satisfactory to the county.

(2)

Any insurance policy or certificate of insurance obtained by the franchisee in compliance with this section shall be filed and maintained with the county manager during the term of the franchise, and from time to time the county may require, and the franchisee shall furnish changes in such policies to reflect changing liability limits and/or to compensate for inflation. The franchisee shall immediately advise the county of any litigation that may develop that would affect this insurance which could affect this franchise.

(3)

Neither the provisions of this section or any damages recovered by the county hereunder, shall be construed to or limit the liability of the franchisee for damages under any franchise issued hereunder.

(4)

All insurance policies maintained pursuant to this chapter 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 county manager of Brevard County, by registered mail, of a written notice of such intention to cancel or not to renew."

(5)

All insurance policies provided under the provisions of this chapter or the franchise shall be written by companies authorized to do business in the state.

(6)

At any time during the term of the franchise, the county may request and the franchisee shall comply with such request, to name the county as an additional named insured for all insurance policies written under the provisions of this chapter or the franchise.

(7)

To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits, and amounts of the insurance provided for in this chapter are subject to reasonable increases at the end of every three-year period of the franchise, applicable to the next three-year period, at the county's discretion but not to exceed cost of inflation as determined by the U.S. Department of Labor's "Consumer Price Index."

(8)

The franchisee 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 franchisee in the minimum of:

a.

$1,000,000.00 for property damage per occurrence;

b.

$2,000,000.00 for property damage aggregate;

c.

$2,000,000.00 for personal bodily injury or death to any one person; and

d.

$4,000,000.00 bodily injury or death aggregate per single accident or occurrence.

(9)

Such general liability insurance must include coverage for all of the following: comprehensive form, premises-operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage, and personal injury.

(10)

The franchisee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of:

a.

$1,000,000.00 for bodily injury and consequent death per occurrence;

b.

$1,000,000.00 for bodily injury and consequent death to any one person; and

c.

$1,000,000.00 for property damage per occurrence.

(11)

The franchisee shall maintain and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain throughout the term of the franchise, workers' compensation and employer's liability, valid in the state, in the minimum amount of:

a.

Statutory limit for workers' compensation; and

b.

$1,000,000.00 for employer's liability.

(12)

None of the provisions of this chapter or any insurance policy required in this chapter, or any damages recovered by the county hereunder, shall be construed to excuse the faithful performance by or limit the liability of the franchisee under this chapter or the franchise for damages either to the limits of such policies or otherwise.

(13)

The franchisee or its subcontractors shall provide coverage for any contractor or subcontractor involved in the construction, installation, maintenance or operation of its system by either obtaining the necessary endorsements to its insurance policies or requiring such contractor or subcontractor to obtain appropriate insurance coverage consistent with this section and appropriate to the extent of its involvement in the construction, installation, maintenance or operation of the franchisee's system.

(c)

Indemnification.

(1)

The franchisee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the county, its officers, boards and commissions, and employees against any and all claims for bodily injury, sickness, disease, death or personal injury or damage to property or loss of use resulting therefrom, arising out of this franchise unless such claims are a result of the county's negligence. Liability and judgments for damages (including but not limited to expenses for reasonable legal fees and disbursements and liabilities assumed by the county in connection shall be included therewith):

a.

To persons or property, in any way arising out of or through the acts or omissions of the franchisee, its agents or employees.

b.

Arising out of any claim for invasion of the right of privacy, for defamation of any person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any person, firm or corporation arising out of the award or operation of its cable system and franchise or any programming carried on the franchisee's system except for educational and governmental access channels.

c.

Arising out of the franchisee's failure to comply with the provisions of any federal, state, or local statute, ordinances or regulation applicable to the franchisee in its business hereunder.

(2)

The foregoing indemnity is conditioned upon the following:

"The county shall give the franchisee prompt notice of any claim or the commencement of any action, suit or other proceeding covered by the provision of this section. Nothing herein shall be deemed to prevent the county from cooperating with the franchisee and participating in the defense of any litigation by its own counsel at its own cost and expense."

(Code 1979, § 7-111; Ord. No. 98-45, § 13, 8-18-98; Ord. No. 02-66, § 3, 12-17-02)