(A) All remedies and penalties under this ordinance are cumulative and not exclusive, and the recovery or enforcement by one available remedy or imposition of any penalty is not a bar to recovery or enforcement by any other such remedy or imposition of any other penalty. The city reserves the right to enforce the penal provisions of any ordinance or resolution and to avail itself of any and all remedies available at law or in equity. Failure to enforce shall not be construed as a waiver of a breach of any term, condition or obligation imposed upon the company by or pursuant to this ordinance. A specific waiver of a particular breach of any term, condition or obligation imposed upon the company by or pursuant to this ordinance shall not be a waiver of any other or subsequent or future breach of the same or of any other term, condition or obligation, or a waiver of the term, condition or obligation itself.
(B) The company agrees that an Event of Default shall include, but shall not be limited to, any of the following acts or failure to act by the company:
(1) Failure to obtain any applicable permits from the city pursuant to this ordinance.
(2) Failure to comply with the terms of § 13-4-6-20 which limits the assignment of the franchise, or transfer of control of the franchise.
(3) Failure to supply the capital items or other support for the governmental facilities as specified in § 13-4-6-14.
(4) Failure to supply bonds, as may be required by the city to assure the proper completion of any construction performed pursuant to the franchise.
(5) Failure to comply with any local, state or federal law that prohibits discrimination in employment, or prohibits the creation of hostile working environments for an employee of the company.
(7) Failure to pay any permit fees, or failure to comply with any rules, regulations, orders or directives of the city as set forth in this ordinance.
(8) Substantial or repeated failure to comply with § 13-4-6-6 concerning installations, excavations and restorations.
(9) Refusal to renegotiate the terms and conditions of this ordinance in accordance with § 13-4-6-23.
(C) Upon the occurrence of an Event of Default, then, in accordance with the procedures provided for in this franchise, the city may:
(1) Require the company to take such actions as the city deems are appropriate; or
(2) Seek money damages from the company as compensation for such Event of Default; or
(3) Accelerate the expiration of the term of this franchise by decreasing the term of the franchise provided in § 13-4-6-4; the extent of such acceleration shall be determined by the city and may include any period of time, but not less than six months provided that six months remain under this ordinance; or
(4) As a last measure only, revoke the franchise by termination of this ordinance.
(D) The city shall exercise the rights set forth in this section in accordance with the following procedures:
(1) The Director shall notify the company, in writing, of an alleged Event of Default. This written notice shall set forth with reasonable specificity the facts the city believes are the basis for declaring that an Event of Default has occurred. The company shall, within 30 calendar days of the date the notice is postmarked, or such additional time as the Director may specify in the notice, cure the alleged Event of Default, or, in writing, present for review by the Director a reasonable time frame and method to cure the Event of Default. The company, in lieu of the cure of the Event of Default as set forth herein, may, in writing, present facts and arguments as to why the company disagrees that an Event of Default has occurred.
(2) If the company presents a written response that challenges whether an Event of Default has occurred, the Director shall within ten days review the submitted materials and determine again whether an Event of Default has occurred. If the Director reaffirms that an Event of Default has occurred, the company shall be notified in writing of this decision and shall, within 30 calendar days, cure the alleged Event of Default. The period to cure is tolled in the event one party demands mediation until such time as mediation is completed.
(3) If the company fails to cure the Event of Default so declared pursuant to this section within the time permitted by the Director, the Director shall prepare a written report to the Council and recommend action to be taken. If the Council, after consideration of this report and hearing, agrees that an Event of Default has occurred, it may order an appropriate remedy as set forth in division (C) of this section.
(E) In addition to the rights under this section, the city, upon any termination, may, at its sole discretion, direct the company to remove, at the company's sole cost and expense, any or all of the facilities from all rights-of-way and other public places within the city, subject to the following:
(1) The city may determine that removal of buried fiber optic cable, or conduit, is not necessary;
(2) In removing any part of the facilities, the company shall refill and compact, at its own expense, any excavation that shall be made by it and shall leave all rights-of-way and other public places in as good a condition as that prevailing prior to the company's removal of the facilities;
(3) The city shall have the right to inspect and approve the conditions of the streets and public property after removal has occurred;
(4) The removal shall commence within 30 days of an order to remove being issued by the Director at the direction of the Council;
(5) The company shall be responsible for all necessary removals of the facilities, and maintenance of the street area in the same manner and degree as if the facilities were in active use, and the company shall retain all liability associated with such removals;
(6) As an alternative to removal, the company may, subject to the city's approval, abandon its facilities in place and transfer ownership of the installed facilities to the city. Nothing herein shall cause the city to incur any costs related to the removal of the company's facilities or the transfer of ownership of said facilities to the city.
(Ord. 49-1995)