(a)   Security fund. If there is an uncured breach by grantee of a material provision of this franchise or a pattern of repeated violations of any provision(s) of this franchise, then grantee shall, upon written request, establish and provide to the , as security for the faithful performance by grantee of all of the provisions of this franchise, a letter of credit from a financial institution satisfactory to the in the amount of $25,00. In no event shall grantee fail to post a $25,000 letter of credit within 30 receipt of a notice of franchise violation pursuant to this subsection (a). Failure to post said letter of credit shall constitute a separate material violation of this franchise, unless the breach is cured within such 30 period or longer period allowed under the franchise. The letter of credit shall serve as a common security fund for the faithful performance by grantee of all the provisions of this franchise and compliance with all orders, permits and directions of the and the payment by grantee of any claim, liens, costs, expenses and taxes due the which arise by reason of the construction, operation or maintenance of the . Interest on this deposit shall be paid to grantee by the bank on an annual basis. The security may be terminated by the grantee upon the resolution of the alleged noncompliance. The obligation to establish the security fund required by this paragraph is unconditional. The fund must be established in those circumstances where grantee disputes the allegation that it is not in compliance, and maintained for the duration of the dispute. If grantee fails to establish the security fund as required, the may take whatever action is appropriate to require the establishment of that fund and may recover its costs, reasonable attorneys’ fees, and an additional penalty of $2,000 in that action.
   (b)   Withdrawal of funds. Provision shall be made to permit the to withdraw funds from the security fund. Grantee shall not use the security fund for other purposes and shall not assign, pledge or otherwise use this security fund as security for any purpose.
   (c)   Restoration of funds. Within ten after notice to it that any amount has been withdrawn by the from the security fund pursuant to subsection (d) of this section, grantee shall deposit a sum of money sufficient to restore such security fund to the required amount.
   (d)   Liquidated damages. In addition to recovery of any monies owed by grantee to or damages to as a result of any acts or omissions by grantee pursuant to the franchise, in its sole discretion may charge to and collect from the security fund the following liquidated damages:
      (1)   For failure to provide data, documents, reports or information or to cooperate with during an application process or system review, the liquidated damage shall be $100 per for each , or part thereof, such failure occurs or continues.
      (2)   For failure to comply with any of the provisions of this franchise for which a penalty is not otherwise specifically provided pursuant to this subsection (d), the liquidated damage shall be $150 per for each , or part thereof, such failure occurs or continues.
      (3)   For failure to test, analyze and report on the performance of the system following a request by , the liquidated damage shall be $250 per for each , or part thereof, such failure occurs or continues.
      (4)   Forty-five following notice from of a failure of grantee to comply with construction, operation or maintenance standards, the liquidated damage shall be $200 per for each , or part thereof, such failure occurs or continues.
      (5)   For failure to provide the services grantee has proposed, including but not limited to the implementation and the utilization of the the liquidated damage shall be $150 per for each , or part thereof, such failure occurs or continues.
   (e)   Each violation a separate violation. Each violation of any provision of this franchise shall be considered a separate violation for which separate liquidated damages can be imposed.
   (f)   Maximum 120 . Any liquidated damages for any given violation shall be imposed upon grantee for a maximum of 120 . If after that amount of time grantee has not cured or commenced to cure the alleged breach to the satisfaction of the , the may pursue all other remedies.
   (g)   Withdrawal of funds to pay taxes. If grantee fails to pay to the any taxes due and unpaid; or fails to repay to the , any damages, costs or expenses which the shall be compelled to pay by reason of any act or default of the grantee in with this franchise; or fails, after 30 ’ notice of such failure by the to comply with any provision of the franchise which the reasonably determines can be remedied by an expenditure of the security, the may then withdraw such funds from the security fund. Payments are not as defined in § 20.51 of this franchise.
   (h)   Procedure for draw on security fund. Whenever the finds that grantee has allegedly violated one (1) or more terms, conditions or provisions of this franchise, a written notice shall be given to grantee. The written notice shall describe in reasonable detail the alleged violation so as to afford grantee an opportunity to remedy the violation. Grantee shall have 30 subsequent to receipt of the notice in which to correct the violation before the may require grantee to make payment of damages, and further to enforce payment of damages through the security fund. Grantee may, within ten of receipt of notice, notify the that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by grantee shall specify with particularity the matters disputed by grantee and shall stay the running of the above-described time.
      (1)    shall hear grantee’s dispute at the next regularly scheduled or specially scheduled meeting. Grantee shall have the right to speak and introduce evidence. The shall determine if grantee has committed a violation and shall make written findings of fact relative to its determination. If a violation is found, grantee may petition for reconsideration.
      (2)   If after hearing the dispute, the claim is upheld by the , then grantee shall have 30 within which to remedy the violation before the may require payment of all liquidated damages due it.
   (i)   Time for correction of violation. The time for grantee to correct any alleged violation may be extended by the if the necessary action to collect the alleged violation is of such a nature or character as to require more than 30 within which to perform provided grantee commences corrective action within 15 and thereafter uses reasonable diligence, as determined by the , to correct the violation.
   (j)   Grantee’s right to pay prior to security fund draw. Grantee shall have the opportunity to make prompt payment of any assessed liquidated damages and if grantee fails to promptly remit payment to the , the may resort to a draw from the security fund in accordance with the terms of this § 20.45 of the franchise.
   (k)   Failure to so replenish security fund. If any security fund is not so replaced, may draw on said security fund for the whole amount thereof and hold the proceeds, without interest, and use the proceeds to pay costs incurred by in performing and paying for any or all of the obligations, duties and responsibilities of grantee under this franchise that are not performed or paid for by grantee pursuant hereto, including attorneys’ fees incurred by the in so performing and paying. The failure to so replace any security fund may also, at the option of , be deemed a default by grantee under this franchise. The drawing on the security fund by , and use of the money so obtained for payment or performance of the obligations, duties and responsibilities of grantee which are in default, shall not be a waiver or release of such default.
   (l)   Collection of funds not exclusive remedy. The collection by of any damages or monies from the security fund shall not affect any other right or remedy available to , nor shall any act, or failure to act, by pursuant to the security fund, be deemed a waiver of any right of pursuant to this franchise or otherwise. Notwithstanding this section, however, should the elect to impose liquidated damages that remedy shall remain the ’s exclusive remedy for the 120 period set forth in subsection (f) above.
(Ord. 2015-36, passed 11-16-2015)