A. The Grantee shall establish and provide to the County, as security for the performance by the Grantee of all provisions of this Ordinance, an irrevocable letter of credit in the amount often thousand dollars ($10,000.00).
B. The letter of credit shall be maintained at ten thousand dollars ($10,000.00) throughout the term of the Franchise notwithstanding any draws upon same by the County.
C. The letter of credit may be drawn upon by the County with respect to alleged violations of this Ordinance or breach of the Franchise Agreement, if any, for purposes including, but not limited to, the following:
1. Failure of the Grantee to pay the County sums due under the terms of this Ordinance or the Franchise Agreement, if any.
2. Reimbursement of costs borne by the County to correct violations of this Ordinance or breaches of the Franchise Agreement, if any.
3. Monetary penalties, remedies or damages assessed against the Grantee due to a violation of this breach of this Ordinance or the Franchise Agreement, if any.
D. The Grantee shall not attempt, through litigation or otherwise, to prevent or inhibit the County from drawing on the letter of credit. The Grantee shall have the right to a de novo court appeal if the Grantee believes the letter of credit has not been properly drawn upon in accordance with this Ordinance or the Franchise Agreement, if any. Any funds the County erroneously or wrongfully withdraws from the irrevocable letter of credit shall be returned to the Grantee upon a final determination by a court of competent jurisdiction that the withdrawal was in error or wrongful.
E. If the Grantee fails within thirty (30) days after the date of written notice to pay to the County any Franchise Fees, assessment or taxes lawfully due which the County determines can be remedied by a draw upon the letter of credit posted by the Grantee, the County may thereafter withdraw the amount thereof from the letter of credit. Upon such withdrawal, the County shall notify the Grantee of the amount and date thereof.
F. The letter of credit pursuant to this Section shall become the property of the County in the event that the Franchise is terminated or revoked for cause by reason of violation of this Ordinance or a material breach of the Franchise Agreement, if any, by the Grantee. The Grantee, however, shall be entitled to the return of the letter of credit in accordance with this Section, or any portion thereof remaining upon normal expiration of the Franchise.
G. 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 this Ordinance or the Franchise Agreement, if any, or authorized by law or equity, and no action, proceeding or exercise of a right with respect to such letter of credit shall constitute a waiver of any other right the County may have.
H. The County shall give the Grantee written notice of any withdrawal under this Section upon such withdrawal, specifying the amount withdrawn and the specific reason for withdrawal. Within seven (7) days following receipt by the Grantee of written notice from the County that any amount has been withdrawn from the irrevocable letter of credit, the Grantee shall restore such letter of credit to the amount required under this Ordinance or the Franchise Agreement, if any. Failure by the Grantee to so restore the letter of credit shall be considered a violation of this Ordinance or the Franchise Agreement, if any.
I. If the Grantee fails, after 10 days’ written notice, to pay to the County any Franchise Fee or taxes due and unpaid any damages, costs or expenses which the County shall be compelled to pay by reason of any act or default of the Grantee in connection with the Franchise, or penalties relative to a violation of this Ordinance, or fails after 10 days notice of such failure by the Grantee to comply with any material provision of the Franchise which the County reasonably determines can be remedied by an expenditure of the letter of credit, the County may thereafter withdraw the amount thereof with interest and any penalties, from the letter of credit. Upon such withdrawal, the County shall notify the Grantee of the amount and date thereof.
J. The rights reserved to the County with respect to the letter of credit are in addition to all other rights of the County, whether or not reserved by this § 5.28.270 or authorized by law, and no action, proceeding or exercise of a right, with respect to such letter of credit, shall constitute an election of remedies or a waiver of any other right the County may have.
(Ord. O-200203-12-002, passed 3-5-2002)