(A) Failure of a Provider to abide by the requirements of § 13-4-10-6, regarding the Public Rights-of-Way: $50 per day for each day such violation occurs.
(B) Failure of a Provider to abide by the requirements of § 13-4-10-4, regarding compensation for use of the Public Rights-of-Way, and the City's right to perform audits: $50 per day for each day such violation occurs.
(C) Default and termination of Municipal Authorities:
(1) The Provider 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 Provider:
(a) Failure to obtain any applicable permits from the City pursuant to this Chapter or the Municipal Authority or Franchise Contract.
(b) Failure to comply with the assignment of or transfer of control provisions of this Chapter or the Municipal Authority or Franchise Contract.
(c) Failure to supply any required non-monetary consideration.
(d) Failure to supply bonds as may be required by the City to assure the proper completion of any construction performed.
(e) Failure to make any of the payments set forth in this Chapter or as required in any Municipal Authority or Franchise Contract.
(f) 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 Chapter or any Municipal Authority or Franchise Contract.
(2) Upon the occurrence of an Event of Default, in accordance with the procedures provided for in this Chapter or any Municipal Authority or Franchise Contract, the City may:
(a) Require the Provider to take such actions as the City deems are appropriate; or
(b) Seek money damages from the Provider as compensation for such Event of Default; or
(c) Accelerate the expiration of the term of any Municipal Authority or Franchise Contract by decreasing the term of the Municipal Authority or Franchise Contract. 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 the Municipal Authority; or
(d) As a last measure only, terminate the Municipal Authority or Franchise Contract.
(3) The City shall exercise the rights set forth in this section in accordance with the following procedures:
(a) The Director shall notify the Provider, 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 Provider 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 Provider, 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 Provider disagrees that an Event of Default has occurred.
(b) If the Provider 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 Provider 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.
(c) If the Provider 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 herein.
(4) In addition to the rights under this section, the City, upon any termination, may, at its sole discretion, direct the Provider to remove, at the Provider's sole cost and expense, any or all of the facilities from all Public Rights-of-Way within the City, subject to the following:
(a) The City may determine that removal of facilities is not necessary;
(b) In removing any part of the facilities, the Provider shall refill and compact, at its own expense, any excavation that shall be made by it and shall leave all Public Rights-of-Way in as good a condition as that prevailing prior to the Provider's removal of the facilities;
(c) The City shall have the right to inspect and approve the conditions of Public Rights-of-Way after removal has occurred;
(d) The removal shall commence within 30 days of an order to remove being issued by the Director at the discretion of the Council;
(e) The Provider 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 Provider shall retain all liability associated with such removals.
(f) As an alternative to removal, the Provider 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 Provider's facilities or the transfer of ownership of said facilities to the City.
(D) Remedies and penalties not exclusive. All remedies and penalties granted pursuant to this Chapter and any Municipal Authority or Franchise Contract 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 Provider by or pursuant to this ordinance or any Municipal Authority. A specific waiver of a particular breach of any term, condition, or obligation imposed upon the Provider by or pursuant to this ordinance or any Municipal Authority 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.
(Ord. 20-1997)