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SANTA CLARA COUNTY CODE OF ORDINANCES: Sec. B10-70. Protection of the County and residents.

Copyrighted by SANTA CLARA COUNTY CODE & Municipal Code Corporation, 1998.

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Sec. B10-70. Protection of the County and residents.

(a) No franchise shall be valid or effective until and unless the County obtains an adequate indemnity from the franchisee. The indemnity must, to the extent permitted by law:

(1) Release the County from and against any and all liability and responsibility in or arising out of the construction, operation, repair or maintenance of the cable communications system; and

(2) Indemnify and hold harmless the County, its trustees, elected and appointed officers, agents, and employees, from and against any and all claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees sustained by the County or any indemnified party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the system;

(3) Nothing in this section is intended to waive or limit any of the County's governmental immunities.

(b) Unless otherwise specified in its franchise, a franchisee (or those acting on its behalf) shall not commence construction or operation of the cable communications system without first obtaining insurance in amounts and of a type specified herein. The required insurance must be obtained and maintained for the entire period the franchisee has facilities in the public rights-of-way or on public property. If the franchisee, its contractors, or subcontractors do not have the required insurance, the County may order such persons to stop operations until the insurance is obtained and approved.

(c) Certificates of insurance, reflecting evidence of the required insurance and naming the County as an additional insured, and other proofs as the County may find necessary, shall be filed with County Executive unless otherwise designated in a Franchise. For persons issued franchises after the effective date of this chapter, certificates and other required proofs shall be filed within 30 days of the issuance of a franchise and once a year thereafter, and whenever there is any change in coverage. For persons that have facilities in the public rights-of-way as of the effective date of this chapter, the certificate shall be filed within 60 days of the effective date of this chapter, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise ordinance expressly provides for filing of certificates in a different manner. Each franchisee's insurance coverage shall be primary insurance as to the County. Any insurance or self-insurance maintained by the County shall be excess of the franchisee's insurance and shall not contribute with it.

(d) Certificates shall contain a provision that coverage afforded under these policies will not be canceled until at least 30 days' prior written notice has been given to the County. Policies shall be issued by companies authorized to do business under the laws of the State of California. Financial ratings must be no less than "A" in the latest edition of "Bests Key Rating Guide," published by A.M. Best Guide.

(e) A cable communications system operator (and those acting on its behalf to construct, operate or repair the system) shall maintain the following minimum insurance. The County shall be named as an additional insured on the general liability and automotive policies; those insurance policies shall be primary and contain a cross-liability clause.

(1) COMPREHENSIVE GENERAL LIABILITY insurance to cover liability from bodily injury and property damage. Exposures to be covered shall include: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:

(i) BODILY INJURY:

a. Each occurrence . . . . $1,000,000.00

b. Annual aggregate . . . . 3,000,000.00

(ii) PROPERTY DAMAGE:

a. Each occurrence . . . . 1,000,000.00

b. Annual aggregate . . . . 3,000,000.00

(iii) PERSONAL INJURY:

Annual aggregate . . . . 3,000,000.00

(2) Completed operations and products liability shall be maintained for as long as the franchisee owns and/or operates the cable communications system (in the case of the cable communications system owner or operator) or completion of the work for the cable communications system owner or operator (in the case of a contractor or subcontractor).

(3) Property damage liability insurance shall include coverage for the following hazards: X - explosion, C - collapse, U - underground.

(4) WORKERS' COMPENSATION insurance shall be maintained during the life of the franchise to comply with statutory limits for all employees, and in the case any work is sublet, each cable communications system operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each cable communications system operator. Each cable communications system operator and its contractors and subcontractors shall maintain during the life of this policy employer's liability insurance. The following minimum limits must be maintained:

Workers' Compensation Statutory employer's liability, per occurrence . . . . $1,000,000.00

(5) COMPREHENSIVE AUTO LIABILITY:

(i) Bodily injury:

a. Each occurrence $ 1,000,000.00

b. Annual aggregate $ 3,000,000.00

(ii) Property damage:

a. Each occurrence $ 1,000,000.00

b. Annual aggregate $ 3,000,000.00

Coverage shall include owned, hired, and non-owned vehicles.

(f) Every operator of a cable communications system shall obtain and maintain a performance bond to ensure the faithful performance of its responsibilities under this chapter and any franchise ordinance. In the case of any franchise ordinance that requires the cable communications system operator to initially build, rebuild or to upgrade a system, the amount of the bond shall be in an amount sufficient to ensure that the required construction is satisfactorily completed. The County Executive may permit the cable communications system operator to eliminate or reduce the amount of the bond upon successful completion of the required construction and after the system performs as promised for one year after completion, if the County Executive determines that (i) the operator has substantially complied with its obligations under its franchise and applicable law; and (ii) the letter of credit maintained by the operator, plus any remaining amount of the bond will be adequate to ensure performance. The amount of the performance bonds shall be set by the County Executive or may be set in a franchise ordinance in light of the nature of the work to be performed pursuant to or under the franchise, but initially shall not be less than ten percent of the estimated cost of constructing or (in the case of existing systems) upgrading the cable communications system. The bond is not in lieu of any additional bonds that may be required through any permitting process. The bond shall be in a form acceptable to the County Counsel. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise ordinance specifically provides otherwise.

(g) Every cable communications system operator shall establish and maintain a cash security fund or provide the County an irrevocable letter of credit in an amount specified in the franchise ordinance to secure the payment of fees owed, to secure any other performance promised in a franchise ordinance, and to pay any taxes, fees or liens owed to the County. The letter of credit shall be in a form and with an institution acceptable to the County's Director of Finance and in a form acceptable to the County Counsel. Should the County draw upon the cash security fund or letter of credit, the cable communications system operator shall, within 14 days, restore the fund or the letter of credit to the full required amount unless a court of competent jurisdiction has stayed this obligation. This security fund/letter of credit may be waived or reduced by the County for a franchisee where the County determines in its reasonable discretion that a particular franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The County may from time to time require a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the County and to the public, including delinquencies in taxes or other payments to the County. The cash security fund or letter of credit must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise ordinance specifically provides otherwise.

(Ord. No. NS-905, § 2, 12-13-05)