San Francisco County Municipal Code Art. VII Miscellaneous Provisions

Sec. 11.54. City Reservation of Rights. Sec. 11.55. Compliance With All Applicable Law. Sec. 11.56. Liquidated Damages. Sec. 11.57. Acts at Grantee's Expense. Sec. 11.58. No Recourse for Grantee's Damages. Sec. 11.59. Insurance. Sec. 11.60. Security. Sec. 11.61. Fraud. Sec. 11.62. Local Office. Sec. 11.63. City May Perform Work. Sec. 11.64. Installation of City-Owned Communications Facilities. Sec. 11.65. Order of Precedence. Sec. 11.66. Indemnification.

Sec. 11.67. Remedies Cumulative. Sec. 11.68. Eminent Domain. Sec. 11.69. No Representations. Sec. 11.70. Reopener. Sec. 11.71. Time Is of the Essence. Sec. 11.72. Severability.

Except where rights are expressly waived by the City in a Franchise, they are reserved, whether expressly enumerated or not. The City shall have the plenary authority to regulate Grantees, UVPPs, or Facilities as may now or hereafter be lawfully permissible pursuant to its police powers and municipal powers authority. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

(a) A Grantee or UVPP shall at all times be subject to and shall comply with the provisions of this Chapter, its Franchise, and all other Applicable Law. (b) A Grantee or UVPP shall comply with 29 USC Section 151 et seq. which prohibits discrimination based on an employee's decision to form, join and/or participate in the activities of employee organizations of the employee's own choosing for the purpose of representation. A Grantee shall notify all contractors and subcontractors performing any work, labor or services on Grantee's behalf in the City and County of San Francisco that they must comply with this Section. Nothing in this section shall be interpreted or applied so as to create any duty or power in conflict with any Federal or State law. (c) A Grantee may not discriminate or take any adverse action against any of its employees or the employees of any of its contractors or subcontractors performing work, labor or services on Grantee's behalf in the City and County of San Francisco in retaliation for speaking before or filing a complaint with any government agency or Court of Law in the City and County of San Francisco regarding the employee's good faith belief that the Grantee or its contractor or subcontractor has violated Federal, State or Local Law, or this franchise, or in informing, testifying or participating in any government agency or court sponsored proceeding in the City and County of San Francisco. Accordingly any internal policies, employee handbooks, directives, or codes of conduct shall not be construed to limit employees from informing, testifying before or participating in any government agency or court sponsored proceeding in the City and County of San Francisco regarding the employee's good faith belief that the Grantee or its contractor or subcontractor has violated Federal, State or Local Law, or this franchise. Nothing in this section shall be interpreted or applied so as to create any duty or power in conflict with any Federal or State Law. (d) If any part or provision of this Section, or the application of this Section, to any person or circumstance, is held invalid, the remainder of this Section, including the application of such part or provisions to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this Section are severable. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000; Ord. 61-06, File No. 051651, App. 4/6/2006)

A Franchise granted pursuant to this Chapter shall require liquidated damages for specified breaches of the Franchise. The Franchise shall also provide that the City may withdraw any liquidated damages owed from the Grantee's security deposit pursuant to Section 11.60 below, if the Grantee has failed to secure such breach after ten (10) City business days notice from the City. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Any act that a Grantee or UVPP is or may be required to perform under this Chapter, a Franchise, or other Applicable Law shall be performed at the Grantee or UVPP's expense, unless expressly provided to the contrary in this Chapter, the Franchise, or other Applicable Law. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

No Person shall have recourse against the City for any loss, cost, expense, or damage arising out of the enforcement of any provision or requirement of this Chapter, a Franchise, or other Applicable Law. Notwithstanding the foregoing, nothing herein precludes a Person from seeking and obtaining any injunctive relief against the City. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

A Franchise granted pursuant to this Chapter shall require a Grantee to obtain insurance or self-insure as required by the City's Risk Manager. Failure to provide or maintain any required insurance shall constitute a Material Breach of a Franchise. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

(a) Security for Subscribers and the City. In addition to any bond and/or deposit requirements established by the City's Public Works Code, a Franchise granted pursuant to this Chapter shall require a Grantee to provide to the Department such cash deposits and any other security instrument(s) (including, without limitation, performance bonds and letters of credit) deemed necessary by the Risk Manager to guarantee Grantee's faithful performance of and compliance with all provisions of this Chapter, the Franchise, and other Applicable Law. A Franchise granted pursuant to this Chapter shall require separate cash deposits and other security instrument(s) to cover costs and damages incurred by the City and to cover costs and damages incurred by any Subscriber, including attorneys' fees and costs, as a result of Grantee's failure to comply with any provision of this Chapter, the Franchise, or other Applicable Law. A Grantee's failure to provide or maintain any required cash deposit and other security instrument(s) shall constitute a Material Breach of its Franchise. (b) Amount of Security Required. The City's Risk Manager shall determine the amount and type of security required pursuant to subsection (a) above. Notwithstanding the foregoing, the Franchise may contain terms permitting the value of the cash deposit and other security instrument(s) to be reduced upon completion of a substantial portion of any construction obligation contained in a Franchise. At a minimum, the Franchise shall establish procedures whereby the City may unilaterally withdraw money from the cash deposit and security instrument(s) to pay monies owed by a Grantee to the City, and shall require a Grantee to replenish the cash deposit and security instrument(s) when such withdrawals are made. Within twenty (20) City business days of a Grantee's submission of its Annual Statement of Gross Revenues, the City shall pay interest to the Grantee on any cash deposit held by the City pursuant to this Section at the rate of the City's pooled funds. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

If a Grantee defrauds or attempts to defraud the City or Subscribers, or intentionally submits false or misleading information to the City, such actions may be deemed a Material Breach of the Franchise. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Grantees providing retail Service to residential Subscribers shall maintain an office in the City to address Subscriber billing and other customer service-related issues. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Upon Grantee's failure, refusal, or neglect to perform any work or other act required by this Chapter, its Franchise, or other Applicable Law within any time prescribed therefor, the City may cause such work or other act to be completed in whole or in part, and upon so doing shall submit to Grantee an itemized statement of the costs thereof. The Grantee shall, within twenty (20) City business days after receipt of such statement, pay to the City the entire amount thereof. In event Grantee fails to make such payment, or any other payment due the City under this Chapter, the monies shall be charged against Grantee's deposit or other security instrument(s) as provided pursuant to Section 11.59 above. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Unless precluded by Applicable Law, at a City department's timely request consistent with the excavation coordination process set forth in Section 2.4.11 of the City's Public Works Code, a Grantee excavating in the Public Rights-of-Way or on other City Property shall install City-owned communications Facilities, including, without limitation, conduit, fiber, and/or hand holds, in the excavation site at a charge to the City of the incremental costs incurred for such installation, including, without limitation, any additional design costs necessary to install the City-owned Communications Facilities. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Except as precluded by Applicable Law, to the extent the provisions of this Chapter, a Franchise, or other Applicable Law are in conflict, the provisions which impose the higher or greater legal duty or obligation upon a Grantee or UVPP shall take precedence, unless a different order of precedence is expressly set forth in a Franchise. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

In addition to an indemnification provision required by the City's Risk Manager, a Franchise granted pursuant to this Chapter shall require a Grantee to indemnify the City for any costs associated with defending the award of a Franchise to Grantee. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

All remedies under this Chapter, a Franchise, or other Applicable Law are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a Grantee of its obligations to comply with this Chapter, its Franchise, or other Applicable Law. Remedies may be used singly or in combination. In addition, the City may exercise any rights it has at law or in equity. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the City's exercise of the right of eminent domain or to grant a right of eminent domain to any Person. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

No reference herein, or in any Franchise, to a "Public Rights-of-Way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a Grantee shall be deemed to gain only those rights to use as are vested in the City. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Every Franchise granted pursuant to this Chapter shall contain a provision requiring that the City and Grantee shall amend the Franchise to assure that each party receives the benefit of the bargain intended under the Franchise in the event that: (1) any provision of a Franchise is preempted by Applicable Law; or (2) the parties agree in the Franchise that any other matter will trigger such renegotiation rights. The provision shall permit either Party to request negotiations to implement the provision and shall provide for a dispute resolution process to be available to either party forty (40) City business days after a request for negotiations in the event that the parties are unable to mutually agree on how to revise the Franchise to properly redistribute the benefits of the bargain. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

Time shall be of the essence for any Franchise. A Grantee or UVPP shall not be relieved of its obligation to comply promptly with any of the provisions of a Franchise or this Chapter by any failure of the City to enforce prompt compliance. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)

If any part of this Chapter, or the application thereof to any Person or circumstance, is held invalid, the remainder of this Chapter, including the application of such part or provision to other Persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Chapter are severable. (Added by Ord. 58-00, File No. 000198, App. 4/7/2000)