(a)
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:
(1)
The cable administrator shall informally discuss the alleged
noncompliance with the franchisee.
(2)
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:
a.
File a written statement with the cable administrator contesting,
in whole or in part, the alleged noncompliance; or
b.
Cure the alleged noncompliance and file written notification
to the cable administrator of the cure; or
c.
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.
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State Law reference — Similar provisions,
Code of Virginia § 15.2-2108.22.
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(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.
(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.
(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.
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State Law reference — Similar provisions,
Code of Virginia § 15.2-2108.22.
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(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.
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State Law reference — Similar provisions,
Code of Virginia § 15.2-2108.22.
|
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.
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State Law reference — Similar provisions,
Code of Virginia § 15.2-2108.25.
|
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.
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State Law reference — Similar provisions,
Code of Virginia § 15.2-2108.28.
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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.
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State Law reference — Similar provisions,
Code of Virginia § 15.2-2108.29.
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(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.
a.
The County may withdraw money from the letter of credit or cash
security fund in accordance with the procedures set forth in this
section.
b.
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.
c.
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.
d.
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.
(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)
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 are imposed upon, incurred by or asserted
against the indemnitees by reason of any claim or lien arising out
of work, labor, materials or supplies provided or supplied to the
franchisee, its contractors or subcontractors, for the installation,
construction, operation or maintenance of the franchisee's cable
system in the County.
(3)
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 financing or securities offering
by franchisee or its affiliates for violations of the common law or
any laws, statutes or regulations of the Commonwealth of Virginia
or of the United States, including those of the Federal Securities
and Exchange Commission, whether by the franchisee or otherwise.
(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.
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.
