(a) Performance bond. Prior to the effective date of the franchise, a franchisee shall obtain and maintain during the entire term of any franchise and any extensions and renewals thereof, at its cost and expense, and file with the Town a corporate surety bond in the amount of $50.000 to guarantee the faithful performance by the franchisee of all of its obligations provided under this agreement and the Town Code. Such bond must be issued by a surety acceptable to the Town. Alternatively, the franchisee shall obtain and continuously maintain an unexpired irrevocable letter of credit which shall at all times be in the possession of the Town. The form and contents of such performance bond or letter of credit shall be acceptable to the Town. The letter of credit shall be released only upon expiration of the franchise or upon the replacement of the letter of credit by a successor franchisee.
(b) Conditions. The performance bond or letter of credit shall be issued upon the following conditions:
(1) The performance bond shall be issued by a surety, located within this State, and licensed and authorized by the State of Florida to do business as a surety in Florida. The irrevocable letter of credit shall be issued by a bank or savings and loan association acceptable to the Town, located in this State, and authorized to do business in this State by either the State of Florida Comptroller or the United States government. The letter of credit shall name the town as the beneficiary.
(2) There shall be recoverable by the town jointly and severally from the principal and surety or the financial institution that has issued the letter of credit, any and all fines and liquidated damages due to the town and any and all damages, losses, costs, and expenses suffered or incurred by the town resulting from the failure of the franchisee to: faithfully comply with the provisions of this code and the franchise; comply with all orders, permits and directives of any town agency or body having jurisdiction over its acts or defaults; pay any claims, liens, fees, or taxes due the town which arise by reason of the construction, operation, maintenance or repair of the cable system. Such losses, costs and expenses shall include but not be limited to attorney's fees and other associated expenses.
(3) The total amount of the bond or letter of credit shall be forfeited as a liquidated damage paid to the town in the event:
(A) The franchisee abandons the cable system or fails to initiate or complete construction of the cable system as specified in any franchise agreement or any extension thereto;
(B) The franchisee assigns the franchise without the express written consent of the town; or
(C) The franchise is terminated by reason of the default of the franchisee.
(c) Reduction of bond/letter of credit. Upon written application by the franchisee, the Town may, at its sole option, permit the amount of the bond or letter of credit to be reduced or waived for the term of the franchise or periods of time, when it is determined by the Town Commission to be in the public interest. Upon written application by the franchisee, the Town may, at its sole option, permit the terms of the requirements of the performance bond/letter of credit to be altered or waived for the term of the franchise or periods of time, when it is determined by the Town Commission to be in the public interest.
(d) Use of performance bond and letter of credit. Prior to drawing upon the letter of credit or the performance bond for the purposes described in this section, the town shall notify the franchisee in writing that payment is due, and the franchisee shall have thirty (30) days from the receipt of such written notice to make a full and complete payment. If the franchisee does not make the payment within thirty (30) days or demonstrate reason acceptable to the Town why such action should not be taken, the town may withdraw the amount thereof, with interest and penalties, from the letter of credit or the performance bond. Within three (3) days of a withdrawal from the letter of credit or performance bond, the town shall send to the franchisee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal.
(e) Replenishment of letter of credit and performance bond. No later than thirty (30) days, after mailing to the franchisee by certified mail notification of a withdrawal pursuant to paragraph (d) above, the franchisee shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or performance bond shall constitute a failure of the franchisee to faithfully comply with the provisions of this code and the franchise.
(f) Non-renewal, alteration, or cancellation of letter of credit or performance bond. The performance bond and letter of credit required herein shall be in a form satisfactory to the town which approval shall not be unreasonably withheld and shall require thirty (30) days written notice of any non-renewal, alteration or cancellation to both the town and the franchisee. The franchisee shall, in the event of any such cancellation, alteration, or non-renewal notice, obtain, pay all premiums for, and file with the town, written evidence of the issuance of replacement bond or policies within thirty (30) days following receipt by the town or the franchisee of any notice of cancellation, alteration, or non-renewal.
(g) Inflation. To offset the effects of inflation, the amount of the bond or letter of credit provided for herein, is subject to a reasonable increase at the end of every three (3) year period of the franchise, applicable to the next three year period, at the sole discretion of the town.
(h) Default. The performance bond and letter of credit provided pursuant to this section shall become the property of the town in the event that the franchise is cancelled or terminated by reason of the default of the franchisee.
(i) Right to require replacement of bonds or letter of credit. If the town becomes aware of the financial condition of any bonding or financial institution issuing a performance bond or letter of credit as required herein and said financial condition is deemed by the town to jeopardize the collateral posted with the town, the town may, at any time, require that any such bond or letter of credit be replaced with such other bond or letter of credit consistent with the requirements set forth in this section.
(j) Insurance for contractor and subcontractors. The franchisee, or its subcontractors, shall provide coverage for any contractor or subcontractor involved in the construction, installation, maintenance, removal, or operation of the cable 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 code and appropriate to the extent of its involvement in the construction, installation, maintenance, removal, or operation of franchisee's cable system,
(Ord. 94-05, passed 12-14-94)