(a) Remedies. Upon the occurrence of any as described in § 806.12, shall be entitled to exercise any and all of the following remedies:
(1) The commencement of an action against
at law for monetary damages;
(2) The assessment of liquidated damages as set forth herein except that
shall not recover both liquidated damages and actual damages for an
either under this section or any other provision of this
;
(3) The commencement of an action in equity seeking injunctive relief or the specific performance of any of the provisions which, as a matter of equity, are specifically enforceable; and
(4)
shall have the right to forfeit and terminate the
and upon the forfeiture and termination thereof the franchise shall be automatically deemed null and void and have no force or effect,
shall remove the
from municipality as and when requested by municipality and municipality shall retain any portion of the
and other fees or payments paid to it, or which are due and payable to it, to the date of the forfeiture and termination. Municipality’s right to forfeit and terminate the grant of the franchise pursuant to this section shall use the procedures of division (c) below and is not a limitation on municipality’s right of revocation.
(b) Liquidated damages. Liquidated damages in the amounts set forth below may be awarded (individually and on behalf of subscribers) from . Company acknowledges that the amounts of actual damages for the violations and uncured events of default set forth below will be difficult or impossible to ascertain; that the liquidated damages set forth below are a reasonable approximation of actual damages; that the actual damages are often incurred by municipality and subscribers and, while cumulatively large, are too small to be worth while for individual subscribers to pursue; and that this division (b) is intended to provide compensation to municipality and its subscribers and is not a penalty. The amount of the liquidated damages are as follows:
(c) Procedures. Liquidated damages may be awarded (and this cable forfeited or terminated) in accordance with the following procedure.
(1) Following notice from
, which notice, at municipality’s election may be combined with the notice described in division (c)(2) below,
shall meet with municipality to attempt to resolve the issue of what liquidated damages, if any, shall be awarded (or forfeiture or termination of this cable
). If there is no resolution of such issue within 20 days of the mailing of the notice described in the first sentence, then municipality’s legislative body may assess liquidated damages (or forfeit or terminate this franchise) as described below.
(2)
shall be given notice of municipality’s intent to assess liquidated damages (or forfeit or terminate this
) at least 20 days in advance of the meeting of the legislative body at which such damages are assessed (or cable franchise forfeiture or termination considered).
(3)
may appear at the meeting of the legislative body at which such damages are assessed (or cable
forfeiture or termination considered) either in person, by agent, or by letter (or other writing) to submit its views with respect to the proposed assessment (or the proposed forfeiture or termination) or company may request a hearing. The legislative body may conduct the hearing or, in its sole discretion, may by resolution appoint a committee or subcommittee of the legislative body or a hearing officer to conduct the hearing and submit a proposal for decision to it, pursuant to procedures established by resolution. The hearing shall afford company appropriate due process. The commission may, by resolution, establish other procedural matters in connection with the hearing.
(4) The legislative body may then assess liquidated damages in amounts not exceeding those set forth above (or forfeit or terminate the cable
).
(5) Any such assessment by
shall be a monetary obligation of
to municipality in the amount determined by the legislative body; and shall be paid in full by company within 15 business days of the date of assessment by the legislative body unless such payment is stayed by agreement or court order. Any forfeiture or termination shall be effective 15 days from the date of the legislative body decision to forfeit or terminate unless stayed by agreement or court order.
(6) Only after assessment of liquidated damages (or forfeiture or termination) may
appeal such assessment (or forfeiture or termination) to an appropriate state or federal court or agency, but only if such assessment, forfeiture or termination is arbitrary, capricious or an abuse of discretion.
(d) Remedies not exclusive. The rights and remedies of set forth in this shall be in addition to and not in limitation of, any other rights and remedies provided by law or in equity. Municipality and understand and intend that such remedies shall be cumulative to the maximum extent permitted by law and the exercise by municipality of any one or more of such remedies shall not preclude the exercise by municipality, at the same or different times, of any other such remedies for the same .
(Ord. passed 9-5-2001)