Alameda County Municipal Code Art. IV General Financial and Insurance Provisions

A. Within thirty (30) days after the granting of a new franchise, or after a renewal which requires significant system construction, and prior to the commencement of any construction work by the grantee, the grantee shall file with the grantor a construction bond in the amount specified in the franchise agreement in favor of the grantor and any other person who may claim damages as a result of the breach of any duty by the grantee.

B. Such bond as contemplated herein shall be in the form approved by the grantor and shall, among other matters, cover the cost of removal of any structures installed by the grantee in the event said grantee shall default in the performance of its franchise construction obligation.

C. In no event shall the amount of said bond be construed to limit the liability of the grantee for damages.

D. Grantor, at its sole option, may waive this requirement, or permit consolidation of the construction bond with the performance bond and security fund specified respectively in Sections 3.16.300 and 3.16.310 of this article.

E. Upon completion of construction, any construction bonds then in force shall be released.

(Prior gen. code § 2-122.0)

A. In addition to the construction bond set forth in Section 3.16.290, the grantee may be required, at least thirty (30) days prior to the commencement of operation, to file with the grantor a performance bond in the amount specified in the franchise agreement in favor of the grantor and any other person who may claim damages as a result of any occurrence in the operation or termination of the cable communications system operated under the franchise agreement and covering the payments required to be made to the grantor hereunder.

B. Such bond as contemplated herein shall be in the form approved by the grantor and shall among other matters cover the cost of removal of any structures installed by the grantee in the event said grantee shall default in the performance of its franchise.

C. In no event shall the amount of said bond be construed to limit the liability of the grantee for damages.

(Prior gen. code § 2-122.1)

A. Within thirty (30) days after the effective date of the franchise, the grantee may be required by the grantor to deposit into a bank account, established by the grantor, and shall maintain on deposit through the term of this franchise, the sum specified in the franchise agreement, as security for the faithful performance by it of all the provisions of the franchise, for compliance with all orders, permits and directions of any agency of the grantor having jurisdiction over its acts or defaults under this chapter, and for the payment by the grantee of any claims, liens and taxes due the grantor which arise by reason of the construction, operation or maintenance of the system.

Subject to the provisions of subsection D of this section, and the Section 3.16.720 or otherwise in accordance with terms of the franchise agreement, the security fund may be assessed by the grantor for the following purposes including but not limited to:

1. Failure of grantee to pay grantor sums due under the terms of the franchise;

2. Reimbursement of costs borne by the grantor to correct franchise violations not corrected by grantee after due notice;

3. Monetary remedies or damages assessed against grantee due to default or violation of franchise requirements.

B. At grantor's sole option, some portion of the security fund may be provided in the acceptable form of an irrevocable letter of credit, in lieu of cash deposit.

C. Within thirty (30) days after notice to it that any amount has been withdrawn by the grantor from the security fund pursuant to this section, the grantee shall deposit a sum of money sufficient to restore such security fund to the amount required by the franchise agreement.

D. If the grantee fails, after thirty (30) days' written notice, to pay to the grantor any franchise fee or taxes due and unpaid, or to pay to the grantor any damages, costs of expenses which the grantor shall be compelled to pay by reason of any substantial deficiency or default of the grantee in connection with the franchise, or to comply with any material provision of the franchise which the grantor reasonably determines can be remedied by an expenditure of the security fund, the grantor may thereafter withdraw an appropriate amount, with interest and any penalties, from the security fund. Upon such withdrawal, the grantor shall notify the grantee of the amount and date thereof.

E. The security fund deposited pursuant to this section shall become the property of the grantor in the event that the franchise is revoked for cause by reason of the default of the grantee in accordance with the procedures of Section 3.16.170 of this chapter. The grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit no later than ninety (90) days after the expiration of the term of the franchise, provided that there is then no outstanding default on the part of the grantee. The grantee shall be entitled to any interest accrued on the cash portion of the security fund.

F. The rights reserved to the grantor with respect to the security fund are in addition to all other rights of the grantor whether reserved by this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall constitute an election of remedies or a waiver of any other right the grantor may have.

(Prior gen. code § 2-122.2)

A. The grantee shall by acceptance of any franchise indemnify, defend and hold harmless the grantor, its officers, boards, commissions, agents, and employees from any and all claims, suits, judgments for damages or other relief, costs and attorneys' fees in any way arising out of or through or alleged to arise out of or through:

1. The act of the grantor in granting the franchise;

2. The acts or omissions of grantee, its servants, employees, or agents including, but not limited to, any failure or refusal by grantee, its servants, employees or agents to comply with any obligation or duty imposed on grantee by this chapter or the franchise agreement;

3. The exercise of any right or privilege granted or permitted by this chapter or the franchise agreement, excepting any system repair or construction performed by grantor or its designated agents.

Such indemnification shall include, but not be limited to, all claims arising in tort, contracts, infringements of copyright, violations of statutes, ordinances or regulations or otherwise.

B. In the event any such claims shall arise, the grantor or any other indemnified party shall be defended by the grantee. Provided, however, that the grantor in its sole discretion may participate in the defense of such claims at its expense, and in such event, grantee shall not agree to any settlement of claims without grantor's approval.

C. The grantee shall not be required to indemnify the grantor for negligence or willful misconduct on the part of grantor's officials, boards, commissions, agents or employees.

(Prior gen. code § 2-122.3)

A. The grantee shall maintain throughout the term of the franchise insurance in amounts at least as follows:

1. Worker's Compensation Insurance. In such coverage as may be required by the worker's compensation insurance and safety laws of the state and amendments thereto;

2. Comprehensive General Liability. Comprehensive general liability insurance, including, but not limited to, coverage for bodily injury and property damage shall be maintained at the sum(s) specified in the franchise agreement;

3. Comprehensive Automobile Liability. Comprehensive automobile liability including, but not limited to, nonownership and hired car coverage as well as owned vehicles with coverage for bodily injury and property damage shall be maintained at the sum(s) specified in the franchise agreement.

B. The grantee shall furnish the grantor with copies of such insurance policies or certificates of insurance.

C. Such insurance policies provided for herein shall name the grantor, its officers, boards, commissions, agents, and employees as additional insured, and shall be primary to any insurance or self insurance carried by grantor, and shall contain the following endorsement:

It is hereby understood and agreed that this insurance policy may not be cancelled or terminated by the surety until thirty (30) days after receipt by the County by registered mail of written notice of such intention to cancel or not renew.

D. The minimum amounts set forth in the franchise agreement for such insurance shall not be construed to limit the liability of the grantee to the grantor under the franchise issued hereunder to the amounts of such insurance.

E. All insurance carriers providing coverage under subsection A of this section shall be duly licensed to operate in the state. (Prior gen. code § 2-122.4)