(a) Grantee is Required to File an Irrevocable Letter of Credit. Within thirty days after the effective date of a franchise, grantee shall deposit with the County an irrevocable letter of credit in the amount set forth in the franchise agreement and issued by a local Federally insured commercial lending institution that has been approved by the County. The form and substance of said letter of credit shall be subject to approval by the County Attorney. The letter of credit shall be used to assure: the faithful performance by the grantee of all provisions of the franchise agreement and the cable chapters; compliance with all orders, permits and directions of any agency, commission, board, department, division or office of the County having jurisdiction over any aspect of the grantee's performance under a franchise and this chapter; and the payment by the grantee of any penalties, liquidated damages, claims, liens, franchise fees, taxes or other fees due to the County which arise by reason of the construction, operation or maintenance of the cable system, including cost of removal of any property of the grantee.
(b) Letter of Credit May be Drawn Upon by the County Administrator After Following Specified Procedure That Assures Due Process to Grantee.
(1) The letter of credit may be drawn upon by the County Administrator by presentation of a draft at sight on the lending institution, accompanied by a written certificate signed by the County Administrator/Designee certifying that the grantee has failed to comply with the franchise agreement and/or this chapter, stating the nature of the noncompliance and stating the amount being drawn. Examples of the nature of the noncompliance for drawing upon the letter of credit include, but are not limited to, the following:
A. Failure of the grantee to pay to the County any franchise fees, taxes, liens or other fees after written notice of delinquency;
B. Failure of the grantee to pay to the County any amounts due and owing by reason of the indemnity provisions of Section 805.06;
C. Failure of the grantee to pay to the County any liquidated damages due and owing pursuant to a franchise agreement;
D. Failure to make any payment required by an agreement within the time fixed therein;
E. Failure to pay to the County, after receipt of written notice, any damages, claims, costs or expenses which the County has been compelled to pay or has incurred by the reason of any material act or default by the grantee;
F. Failure to comply after receipt of written notice from the County Administrator, with any material provisions of an agreement or this chapter which the County Administrator reasonably determines can be remedied by an expenditure of an amount from the letter of credit or other instrument.
(2) In the event of such noncompliance, the County Administrator may order the withdrawal of the appropriate amount of liquidated damages, penalties, fees or otherwise from the letter of credit or other instrument for payment to the County, provided that, prior to each such withdrawal; (i) the grantee shall be afforded an opportunity to cure any of said failures within thirty days after written notice from the County Administrator that the withdrawal is to be made; or (ii) if such cure cannot be reasonably accomplished within such thirty days, then the grantee shall have a reasonable time to cure, provided that the grantee commences such cure within such thirty days and diligently pursues such cure to completion.
(3) A letter of credit shall be replenished to the original amount following any draw down.
The grantee shall structure the letter of credit in such a manner so that if the County at any time draws upon the letter of credit, the amount of available credit shall automatically increase to the extent necessary to replenish that portion of the available credit exhausted by the honoring of the draft. The intent of this subsection is to make available to the County at all times a letter of credit in the amount specified in the franchise agreement.
(c) County's Rights With Respect to Letter of Credit Are in Addition to Other Rights. The rights reserved to the County with respect to the letter of credit are in addition to all other rights of the County, whether reserved by a franchise agreement or authorized by law, and no action or proceeding against a letter of credit shall affect any other right the County may have.
(Ord. 98-05. Passed 4-15-98.)