(A) In the event the grantee should violate any of the terms of this chapter, any federal or state law or regulation, or any provision of their franchise agreement, the town government shall give the grantee written notice of the violation, breach, default, or noncompliance.
(1) The grantee shall, within 30 days of receipt of written notice from the town government, substantially undertake and promptly correct the default, breach, violation, or noncompliance and certify the same to the Clerk-Treasurer.
(2) In the event that the grantee fails to substantially undertake the corrective action within 30 days of receipt of the written notice and promptly complete the corrective action, the town government may:
(a) Make the correction itself and charge the cost of the same to the grantee; and/or
(b) Secure the proceeds from any financial performance instrument posted by the grantee or impose the sum of $100 per day for each day breach or violation following the cure date that the grantee fails to meet agreed upon limits for the activity or its contractual or legal obligations.
(B) In the case of a material breach of this chapter or the franchise agreement, the town government may declare the grantee in default and terminate the franchise and rights granted under the franchise.
(C) Notwithstanding anything to the contrary in this chapter, the town government shall not impose any penalty upon the grantee where either the violation or failure to cure the same result from force majeure, labor dispute, declaration of war or other hostilities, act of God, or any other reason beyond the control of the grantee.
(D) By acceptance of a franchise, a grantee understands and shall agree that failure to comply with any time and performance requirements as stipulated in this chapter and the franchise agreement will, after notice and an opportunity to cure have been provided, result in damage to the town, and that it is and will be impracticable to determine the actual amount of the damage in the event of delay or nonperformance. This chapter shall include provisions for liquidated damages to be paid by the grantee to the town government, chargeable to the grantee’s performance/corporate surety bond, in the amounts set forth as follows.
(1) For failure to complete system construction or reconstruction in accordance with § 111.078, unless the Town Council specifically approves the delay by motion or resolution due to the occurrence of conditions beyond the grantee’s control, a grantee shall pay $500 per day for each day, or part thereof, the deficiency continues.
(2) For failure to provide, upon written request, data, documents, reports, or information pursuant to § 111.145, or to cooperate with the town government, a grantee shall pay $50 per instance or per day, or part thereof, each violation occurs or continues.
(3) For failure to provide in a continuing manner the types of services proposed in the accepted application or specified in a franchise agreement, unless the Town Council specifically approves the grantee a delay or change, a grantee shall pay up to $500 per instance or per day for each day, or part thereof, that each noncompliance continues.
(4) Nothing in this section shall preclude further liquidated damages as agreed upon by parties in the franchise agreement.
(5) If the town government concludes that a grantee is liable for liquidated damages pursuant to this section, it shall issue to the grantee by certified mail a notice of intention to assess liquidated damages. The notice shall set forth the basis for the assessment, and shall inform the grantee that liquidated damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the Town Council, and the Town Council rules that the violation has been corrected, or that an extension of time or other relief should be granted.
(E) A grantee desiring a hearing before the Town Council shall send a written notice of appeal by certified mail to the Clerk-Treasurer within ten days of the date on which the town government sent the notice of intention to assess liquidated damages. The hearing on the grantee’s appeal shall be within 30 days of the date on which the town government sent the notice of intention to assess liquidated damages. Unless the Council indicates to the contrary, the liquidated damages shall be assessed beginning with the date on which the town sent the notice of the intention to assess liquidated damages, and continuing thereafter until the time the violation ceases, as determined by the Council.
(2011 Code, § 111.999) (Ord. 2000-4, passed 7-17-2000)