(A) Because a grantee's failure to comply with material provisions of its franchise may result in injury to the city, and because it will be difficult to estimate the extent of such injury, the city may impose the following liquidated damages for the following violations, if the grantee has been served written notice and the violation continues after the appropriate notice and opportunity to cure. Unless otherwise specifically provided in the franchise, the liquidated damages represent both parties' best estimate of the damages to the city resulting from the specified injury. To maintain that estimate, the liquidated damage amounts are in 2002 dollars and may be increased once after every five years of the franchise term by an amount equal to the increase in the U.S. City average of the Consumer Price Index for that period. The damages specified are to the city, and are recoverable by the city. Damages accrue from the date of the violation; provided that, nothing herein prevents a grantee from contesting the alleged violation or raising a defense to the imposition of liquidated damages from the date of violation based upon laches, waiver, statute of limitations, or any other defense. Liquidated damages are not franchise fees.
(1) For failure to complete construction of the subscriber network in accordance with the franchise and / or within the time provided: $1,000 for each day the violation continues until the construction is completed.
(2) For failure to complete upgrade of the subscriber network in accordance with the franchise within the time provided: $1.00/day for each affected subscriber (to a maximum of $1,000) for each day the violation continues until the upgrade is completed.
(3) For transferring the franchise without required approval: $1,000/day for each violation for each day the violation continues.
(4) For failure to comply with requirements for PEG access use of the cable system for which damages to the city are not readily ascertainable: $250/day for each violation for each day the violation continues.
(5) For violation of customer service standards: $500 per quarter for any quarter during which an audit establishes that the grantee failed to substantially comply with applicable performance standards where compliance is not measured in terms of its response to an individual subscriber; and
(6) For all other categories of material violations of the franchise for which actual damages may not be ascertainable: $500/day for each violation for each day the violation continues after written notice to grantee and at least 10 days opportunity to cure. A violation which affects more than one subscriber or user shall be considered a single violation, notwithstanding the number of subscribers or users affected.
(B) The City Council may impose liquidated damages as provided above. Before doing so, the city must provide the grantee notice of the alleged violation, and provide the grantee with an opportunity to be heard, to show either that a violation has not occurred or that damages should not be imposed. The city shall take all reasonable measures to expedite the resolution of any dispute involving the transfer of the franchise, and shall forfeit any liquidated damages which are attributable to the city's delay in resolving a transfer dispute resulting in liquidated damages. A grantee reserves all rights to contest and / or adjudicate alleged violations. The city is not entitled to recover damages for the same injury under two separate sections where doing so would result in a double recovery. If the grantee is subject to liquidated damages pursuant to a franchise, it shall not be fined for a violation of the any other ordinance for the same violation.
(Ord. 24-2002)