In the event that the cable administrator believes that a franchisee has not complied with the requirements of this chapter, Article 1.2 (§ 15.2-2108 et seq.) of Chapter 21 of Title 15.2 of the Virginia Code, or the applicable mandatory requirements of 47 U.S.C. §§ 521 through 573 or any regulations promulgated thereunder, the following procedures shall apply:

The cable administrator shall informally discuss the alleged noncompliance with the franchisee.

In the event that the informal discussion does not resolve the matter, the cable administrator shall notify the franchisee in writing of the exact nature of the alleged noncompliance.

(3)

Within 15 days from receipt of the cable administrator's written notice, the franchisee shall:

File a written statement with the cable administrator contesting, in whole or in part, the alleged noncompliance; or

Cure the alleged noncompliance and file written notification to the cable administrator of the cure; or

In the event the nature of the noncompliance prevents the franchisee from curing the noncompliance within 15 days, the franchisee shall initiate reasonable steps to remedy the noncompliance and file with the cable administrator a written statement setting forth the steps being taken and the projected date that they will be completed. The franchisee's cure shall be completed within 30 days of the projected date.

(b)

In the event the franchisee fails to cure the default within 15 days, fails to file a timely written response, or fails to timely complete the remediation, the cable administrator, if it wishes to continue its investigation into the default, shall schedule a public hearing before the Board. The franchisee shall be notified in writing at least 30 business days prior to the public hearing and shall be provided an opportunity to be heard at the public hearing. The notice shall specify the time, place, and purpose of the public hearing. The County shall: (1) provide public notice of the hearing in compliance with Virginia law; (2) hear any person interested in the violation under review; and (3) provide the franchisee with an opportunity to be heard.

(c)

The Board shall, within a reasonable time after the closure of the public hearing, issue findings and conclusions in writing, setting forth the basis for the findings, the proposed cure plan and time line for curing the violation, if the violation can be cured, and the penalties, damages and applicable interest, if any, owed.

(d)

Subject to applicable federal and Virginia law and the provisions of this chapter, if the Board determines pursuant to a public hearing that a franchisee is in violation of any provision of this chapter, Article 1.2 (§ 15.2-2108 et seq.) of Chapter 21 of Title 15.2 of the Code of Virginia, or the applicable mandatory requirements of 47 U.S.C. §§ 521 through 573 or any regulation promulgated thereunder, the County may apply one or a combination of the following remedies: (i) seek specific performance or other equitable relief; (ii) commence an action at law; and/or (iii) apply liquidated damages in accordance with § 28-42.

(e)

The cable administrator shall conduct the hearings and issue findings and conclusions under this subsection. The franchisee may appeal the determination of the cable administrator to the Board. Such an appeal shall be heard at a lawfully noticed public hearing.

(f)

In addition to all other rights and powers reserved or pertaining to the County, the County reserves, as an additional and as a separate and distinct remedy, the right to revoke this franchise and all rights and privileges of franchisee hereunder in any of the following enumerated events or for any of the following reasons:

(1)

Franchisee shall, by act or omission, violate any material or substantial term or condition of this franchise agreement and shall, within 30 days following written notice by the County, fail to effect such compliance or has failed to begin to take such reasonable steps as necessary to bring the franchisee into such compliance; or

(2)

Franchisee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt, or all or part of franchisee's facilities should be sold under an instrument to secure a debt and are not redeemed by franchisee within 30 days from said sale; or

(3)

Franchisee fails to restore service following 96 consecutive hours of interrupted service, except when an act of God, disaster, or other action beyond the control of the franchisee caused such service interruption; or

(4)

Franchisee attempts to or does practice any fraud or deceit or pattern of material misrepresentation in its conduct or relations with the County under this franchise.

(g)

No such revocation shall be effective unless or until the Board shall have adopted a resolution setting forth the cause and reason for the revocation and the effective date thereof, which resolution shall not be adopted without 30 days' prior written notice thereof to franchisee and an opportunity for the franchisee to be heard upon the proposed adoption of said resolution. Franchisee shall furnish to the County a written statement at least 10 days prior to the date on which the Board will convene to consider such proposed resolution setting out its position relative to the cause(s) of such revocation. In the event the revocation as proposed in said resolution depends upon findings of fact, such findings of fact as made by the Board shall be in writing, after the hearing provided for, if requested by franchisee.

(h)

In the event a franchisee submits notification of unwillingness to comply with any additional service availability requirements as contained in § 28-23 of this chapter, or fails to comply with these additional service requirements, the franchisee's franchise may be terminated after written notice and a public hearing.

State Law reference — Similar provisions, Code of Virginia § 15.2-2108.22.

§ 28-42 Liquidated damages.

(a)

If, pursuant to the public hearing required by § 28-41, the County determines that a franchisee has failed materially to comply with this Chapter, Article 1.2 (§ 15.2108 et seq.) of Chapter 21 of Title 15.2 of the Code of Virginia, or the applicable mandatory requirements of 47 U.S.C. §§ 521 through 573 or any regulation promulgated thereunder, the County may impose liquidated damages as provided in this subsection. Because a franchisee's failure to comply will result in injury to the County and subscribers and because it will be difficult to estimate the extent of such injury, the County and, by its acceptance of an ordinance franchise pursuant to this chapter, a franchisee agree to the following liquidated damages for the following material violations, which represent both parties' best estimate of the damages resulting from the specified noncompliance. The franchisee shall not be charged with multiple violations for a single act or event affecting a single subscriber or for a single act or event affecting multiple subscribers on the same day.

(1)

For failure to comply with PEG channels: $50/day for each violation for each day the violation continues after written notice has been provided to the franchisee by the County of such violation.

(2)

For failure to supply complete and accurate information, reports and filings required by the County as required by this chapter: $100/day for each unrelated material violation for each day the violation continues after written notice and an applicable cure period has been provided to the franchisee by the County of such violation.

(3)

For failure to comply with any customer service standard set forth in § 28-22 of this chapter: $50/day for each violation for each day the violation continues.

(4)

For failure to pay in full or in timely fashion any fee to support PEG access pursuant to § 28-21 of this chapter: $50/day for each violation for each day the violation continues, in addition to the balance of such fees owed and interest.

(b)

The County may reduce or waive any of the above liquidated damages if it determines, in its discretion, that such waiver is in the public interest.

(c)

If a court of competent and binding jurisdiction determines that liquidated damages cannot be imposed by this chapter rather than by contract, the foregoing liquidated damages shall be construed to be penalties to the full extent allowed and contemplated by § 15.2-2108.22(6) of the Code of Virginia.

(d)

Interest on unpaid amounts. Interest on any and all unpaid amounts owed by a franchisee to the County shall accrue at the legal rates set forth in Virginia Code § 6.1-330.53.[1]

[1]

Editor's Note: See now § 6.2-301, Code of Virginia.

(e)

Cure. Any violation or noncompliance with this chapter, Article 1.2 (§ 15.2-2108 et seq.) of Chapter 21 of Title 15.2 of the Code of Virginia, or the applicable mandatory requirements of 47 U.S.C. §§ 521 through 573 or any regulations promulgated thereunder, shall not be deemed cured until all penalties, damages and interest, if any, that are owed, are paid.

State Law reference — Similar provisions, Code of Virginia § 15.2-2108.22.

§ 28-43 Auditing.

(a)

Once every 24 months and upon 30 days' written notice to the franchisee, the County or its agent shall have the right to: (1) inspect and copy at any time during normal business hours at such location as the County may designate, all books and records of a franchisee and any other person who is a "cable operator" of the franchisee's cable system reasonably necessary to audit and confirm the franchisee's accurate payment of any fees required by this chapter; and (2) audit and recompute any amounts determined to be payable under this chapter or a franchise agreement. Such records shall include, but are not limited to: receipts, financial and accounting records, contracts, computer records, codes, programs and disks or other storage media or other material that the County reasonably deems necessary in order to monitor compliance under this section. The franchisee may request that proprietary and confidential information be kept from public disclosure, but only as permitted by the Virginia Freedom of Information Act.

(b)

The County's audit expenses shall be borne by the County unless the audit discloses an underpayment of more than 3% of any quarterly payment, but not less than $5,000, in which case the County's out-of-pocket costs of the audit shall be borne by the franchisee as a cost incidental to the enforcement of its franchise. Any additional undisputed amounts due to the County as a result of the audit shall be paid by the franchisee within 30 days following written notice to a franchisee by the County of the underpayment.

State Law reference — Similar provisions, Code of Virginia § 15.2-2108.22.

§ 28-44 Itemization.

A franchisee providing cable service may identify as a separate line item on each regular bill of each subscriber (i) the amount of the total bill assessed as a franchise fee, or any equivalent fee, that the franchisee has paid to the County; (ii) the amount of the total bill assessed to satisfy any requirements imposed on the franchisee, including those to support PEG access facilities, including institutional networks; and (iii) the amount of any other fee, tax, assessment, or charge of any kind imposed by any governmental entity on the transaction between the franchisee and the subscriber.

State Law reference — Similar provisions, Code of Virginia § 15.2-2108.25.

§ 28-45 (Reserved)

§ 28-46 Transfer.

No transfer of any franchise granted under this chapter shall occur without the prior consent of the County, provided that the Board shall not unreasonably withhold, delay, or condition such consent. No transfer shall be made to a person, group of persons or affiliate that is not legally, technically, and financially qualified to operate the cable system and satisfy the franchise obligations.

State Law reference — Similar provisions, Code of Virginia § 15.2-2108.28.

§ 28-47 Surrender.

A franchisee that receives an ordinance cable franchise under this chapter that considers, within three years after the grant of a cable franchise under this chapter, that its provision of cable services within the County is no longer economically feasible, may notify the County in writing and surrender its cable franchise for the entire County without liability to the County (other than for any fees, taxes, or payments owed for the period before the franchisee surrendered the franchise and ceased providing cable service in the County). If a franchisee so surrenders its cable service franchise, it shall not be eligible to obtain a new cable service franchise within the County until after the normal expiration date of the franchise that such franchisee surrendered.

State Law reference — Similar provisions, Code of Virginia § 15.2-2108.29.

§ 28-48 Bonding.

(a)

Within 30 days after the award of a franchise, the franchisee shall deposit with the County a performance bond or an irrevocable letter of credit from a financial institution running to the County in the amount of $50,000, or $15,000 pursuant to the following. Franchisees serving a customer base of 400 or more shall post bond or irrevocable letter of credit in the amount of $50,000. Franchisees serving a customer base of 399 or fewer shall post bond or irrevocable letter of credit in the amount of $15,000. The bond or letter of credit shall be used to insure the faithful performance by the franchisee of all of the provisions of its franchise and this chapter, § 15.2-2108.19 et seq. of the Code of Virginia, and the mandatory requirements of 47 U.S.C. §§ 521 through 573 and any rules promulgated thereunder, and compliance with all lawful orders, permits, and directions of any agency, commission, board, department, division, or office of the County or VDOT having jurisdiction over the acts of the franchisee, or defaults under a franchise or the payment by a franchisee of any penalties, liquidated damages, claims, liens, and taxes due the County which arise by reason of the construction, operation, or maintenance of franchisee's cable system in the County, including restoration of the public rights-of-way and the cost of removal or abandonment of any property of a cable operator.

(b)

Any bond obtained by a franchisee must be placed with a company which is qualified to write bonds in the Commonwealth of Virginia, such bond shall be subject to the approval of the County attorney and shall contain the following endorsement (or the substantive equivalent of such language as agreed upon by the County):

"It is hereby understood and agreed that this bond may not be cancelled without the consent of the County until 60 days after receipt by the County by registered mail, return receipt requested, of a written notice of intent to cancel or not renew."

(c)

Any letter of credit must be issued by a federally insured commercial lending institution and shall be subject to the approval of the County Attorney.

(1)

The letter of credit may be drawn upon by the County by presentation of a draft at sight on the lending institution, accompanied by a written certificate signed by the chief executive officer of the County certifying that the franchisee has failed to comply with this chapter after having been given due notice and opportunity to cure the failure to comply. Such certificate shall also state the specific reasons for the failure of compliance, and state the basis of the amount being drawn.

The County may withdraw money from the letter of credit or cash security fund in accordance with the procedures set forth in this section.

The County shall provide the franchisee with written notice informing the franchisee that such amounts are due to the County. The written notice shall describe, in reasonable detail, the reasons for the assessment. The franchisee shall have 30 days subsequent to receipt of the notice within which to cure every failure cited by the County or to notify the County that there is a dispute as to whether franchisee believes such amounts are due the County. Such notice by the franchisee to the County shall specify with particularity the basis of franchisee's belief that such monies are not due the County.

Upon the delivery of the necessary documents to the lending institution, the County has the right to immediate payment from the issuer bank of the amount from the letter of credit necessary to cure the default.

Any letter of credit shall contain the following endorsement (or the substantive equivalent of such language as agreed upon by the County):

"It is hereby understood and agreed that this letter of credit may not be canceled by the issuer bank nor the intention not to renew be stated by the issuer bank until 60 days after receipt by the County, by registered mail, return receipt requested, of a written notice of such intention to cancel or not to renew."

(d)

Any bond or letter of credit shall be recoverable by the County for all damages and costs, whether direct or indirect, resulting from the failure of a franchisee to well and faithfully observe and perform any provision of this chapter.

(e)

The bond or letter of credit shall be maintained at the amount established herein for the entire term of the franchise, even if amounts have to be withdrawn pursuant to this chapter. The franchisee shall promptly replace any amounts withdrawn from the bond or letter of credit.

§ 28-49 Indemnification and insurance.

(a)

The franchisee shall indemnify, hold harmless and defend the County, its officers, employees, and agents (hereinafter referred to as "indemnities"), from and against:

(1)

Any and all third-party claims for liabilities, obligations, damages, penalties, liens, costs, charges, losses and expenses (including, without limitation, fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or asserted against the indemnitees by reason of any act or omission of the franchisee, its personnel, employees, agents, contractors or subcontractors, resulting in personal injury, bodily injury, sickness, disease or death to any person or damage to, loss of or destruction of tangible or intangible property, libel, slander, invasion of privacy and unauthorized use of any trademark, trade name, copyright, patent, service mark or any other right of any person, firm or corporation, which may arise out of or be in any way connected with the construction, installation, operation, maintenance, use or condition of the franchisee's cable system caused by franchisee, its contractors, subcontractors or agents or the franchisee's failure to comply with any federal, state or local statute, ordinance or regulation.

(2)

(3)

(b)

Damages shall include, but not be limited to, penalties arising out of copyright infringements and damages arising out of any failure by the franchisee to secure consents from the owners, authorized distributors or licensees, or programs to be delivered by the franchisee's cable system.

(c)

The franchisee undertakes and assumes for its officers, agents, contractors and subcontractors and employees all risk of dangerous conditions, if any, on or about any County-owned or -controlled property, including streets and public rights-of-way, and the franchisee hereby agrees to indemnify and hold harmless the indemnitees against and from any claim asserted or liability imposed upon the indemnitees for personal injury or property damage to any person arising out of the installation, operation, maintenance or condition of the franchisee's cable system or the franchisee's failure to comply with any federal, state or local statute, ordinance or regulation, except for any claim asserted or liability imposed upon the indemnitees that arises or is related to wanton or willful negligence by the indemnitees.

(d)

In the event any action or proceeding shall be brought against the indemnitees by reason of any matter for which the indemnitees are indemnified hereunder, the franchisee shall, upon notice from any of the indemnitees, and at the franchisee's sole cost and expense, resist and defend the same; provided, further, however, that the franchisee shall not admit liability in any such matter on behalf of the indemnitees without the written consent of the County Attorney or his or her designee.

(e)

The County shall give the franchisee prompt notice of the making of any written claim or the commencement of any action, suit or other proceeding covered by the provisions of this section.

(f)

Nothing in this chapter or in a franchise is intended to, or shall be construed or applied to, express or imply a waiver by the County of statutory provisions, privileges or immunities of any kind or nature as set forth in the Code of Virginia, including the limits of liability of the County as exist presently or as may be increased from time to time by the legislature. Nothing in a franchise or this chapter shall constitute a waiver of the County's statutory provisions, privileges or immunities, including the County's sovereign immunity, of any kind or nature.

(g)

The franchisee shall maintain, and by its acceptance of a franchise hereunder specifically agrees that it will maintain throughout the term of the franchise, general comprehensive liability insurance insuring the franchisee. All liability insurance shall include an endorsement in a specific form which names as joint and several insureds the County and the County's officials, employees and agents, with respect to all claims arising out of the operation and maintenance of the franchisee's cable system in the County. Liability insurance mentioned hereinbelow shall be in the minimum amounts of:

(1)

Five million dollars for bodily injury or death to any one person, within the limit of $10,000,000 for bodily injury or death resulting from any one accident;

(2)

Five million dollars for property damage, including damage to the County's property, from any one accident;

(3)

Five million dollars for all other types of liability resulting from any one occurrence;

(4)

Workers compensation insurance as required by the Commonwealth of Virginia;

(5)

A franchisee shall carry and maintain in its own name automobile liability insurance with a limit of $5,000,000 for each person and $5,000,000 for each accident for property damage with respect to owned and non-owned automobiles for the operation of which the franchisee is responsible; and

(6)

Coverage for copyright infringement.

(h)

The inclusion of more than one insured shall not operate to increase the limit of the franchisee's liability, and that insurer waives any right on contribution with insurance which may be available to the County.

(i)

All policies of insurance required by this section shall be placed with companies that are qualified to write insurance in the Commonwealth of Virginia and that maintain throughout the policy term a General Rating of "A-" and a Financial Size Category of "A:X" as determined by Best Insurance Rating Services.

(j)

Certificates of insurance obtained by the franchisee in compliance with this section must be approved by the County Attorney, and such insurance policy certificate of insurance shall be filed and maintained with the office of the County Attorney during the term of the franchise. The franchisee shall immediately advise the County Attorney of any litigation that may develop that would affect this insurance.

(k)

Should the County find an insurance document to be in noncompliance, then it shall notify the franchisee, and the franchisee shall be obligated to cure the defect.

(l)

Neither the provisions of this section, nor any damages recovered by the County thereunder, shall be construed to nor limit the liability of the franchisee under any franchise issued hereunder or for damages.

(m)

The insurance policies provided for herein shall name the County, its officers, employees and agents as additional insureds, and shall be primary to any insurance or self-insurance carried by the County. The insurance policies required by this section shall be carried and maintained by the franchisee throughout the term of the franchise and such other period of time during which the franchisee operates or is engaged in the removal of its cable system. Each policy shall contain a provision providing that the insurance policy may not be canceled by the surety, nor the intention not to renew be stated by the surety, until 30 days after receipt by the County, by registered mail, of written notice of such intention to cancel or not to renew.

(n)

Nothing in this section shall require a franchisee to indemnify, hold harmless or defend the County, its officials, employees or agents, from any claims or lawsuits arising out of the County's award of a franchise to another person.

§ 28-50 Inspection of facilities.

A franchisee shall comply with all applicable federal, state and local construction and engineering codes and regulations, currently in force or hereafter applicable, to the construction, operation or maintenance of its cable system within the County. The County shall have the right to review a franchisee's construction plans and specifications to assure compliance with the required standards. After construction has been completed, the County shall have the right to inspect all construction or installation work performed pursuant to the franchise and to conduct any tests it deems necessary to ensure compliance with the terms of this chapter and all applicable federal, state and local building and engineering codes. However, the County shall not be required to review or approve construction plans and specifications or to make any inspections. The franchisee shall be solely responsible for taking all steps necessary to assure compliance with applicable standards and to ensure that its cable system is installed in a safe manner and pursuant to the terms of the franchise and applicable law.