(a) Penalty Payments. In addition to any other remedies provided herein or in the Franchise Agreement, civil penalties for violations of this Chapter and/or an Operator’s Franchise Agreement are set forth below. As a result of any of the below-described penalties arising from the Operator’s violation of, or failure to perform under, this Chapter and/or the Operator’s Franchise Agreement, the Village may, at its option, assert a claim against the Performance Bond or the Operator and collect from the bonding company or the Operator the following amounts:
(1) For failure to provide data, documents, reports or any other information required under this Chapter and/or the Operator’s Franchise Agreement to the Village, the penalty shall be Two Hundred Dollars ($200.00) per day, provided three (3) business days have passed since the items were required to be delivered to the Village.
(2) For failure to test, analyze and report on the performance of the Cable System following a request by the Village pursuant to this Chapter or the Operator’s Franchise Agreement, the penalty shall be Five Hundred Dollars ($500.00) per day.
(3) For failure to comply with all conditions of any Village permits to disturb Streets, fix Streets, or other terms or conditions of the Village, the penalty shall be Three Hundred Dollars ($300.00) per day.
(4) For any other failure to comply with this Chapter and/or the Operator’s Franchise Agreement, for which a penalty is not otherwise specifically provided, the penalty shall be Two Hundred Dollars ($200.00) on occurrence and for each day thereafter such failure continues.
(b) Procedure for Imposition of Penalty Payments. Whenever the Village, through the Mayor or his or her designee, finds that an Operator has allegedly violated one (1) or more terms, conditions or provisions of this Chapter or the Franchise Agreement, a written notice shall be given to the Operator. The written notice shall describe in reasonable detail the alleged violation so as to afford the Operator an opportunity to remedy the violation.
(1) An Operator shall have thirty (30) days from receipt of the notice in which to correct the violation before the Village may seek payment directly from the Operator or resort to the Performance Bond. If the nature of the violation is such that it cannot be corrected within the thirty (30) day period, the Operator shall have fifteen (15) days in which to initiate reasonable steps to remedy such default and notify the Village of the steps being taken and the projected date by which the violation will be corrected.
(2) An Operator shall not be relieved of any of its obligations to comply promptly with any provision of the Franchise by reason of any failure of the Village to enforce prompt compliance.
(c) Impossibility of Performance. The Village shall stay or waive the imposition of any penalties upon a finding that any failure or delay is a result of an act of God or due to circumstances beyond an Operator’s reasonable control.
(d) Calculating Penalties.
(1) An Operator shall be obligated to pay the penalties set forth in Section 955.12(a) commencing from the date that the Operator was in noncompliance.
(2) It shall be a defense of the Operator against calculating penalties from the date that the Operator’s noncompliance began, that its noncompliance was inadvertent or not material or did not result in any harm to the Village, and that the Operator began compliance upon notification by the Village pursuant to subsection (b) above in which case penalties, if owed, shall be calculated from the date of such notification.
(3) The rights reserved to the Village with respect to the Performance Bond are in addition to all other rights of the Village whether reserved by this Chapter or the Operator’s Franchise Agreement or authorized by law, and no action, proceeding or exercise of a right with respect to the Performance Bond shall affect any other right the Village may have, including the procedures set forth in any of the Village’s ordinances governing customer service, public access channels, rate regulation and rights-of-way.
(e) Village’s Right to Revoke. In addition to all other rights that the Village has pursuant to law or equity, the Village reserves the right to revoke, terminate or cancel the Operator’s Franchise, and all rights and privileges pertaining thereto, in the event that:
(1) The Operator violates any material provision of this Chapter and/or the Operator’s Franchise Agreement; or
(2) The Operator practices any fraud or deceit upon the Village or any Subscriber; or
(3) The Operator denies, or fails to provide, Cable Service to any Village resident for reasons other than failure to make payments due to the Operator and intentional destruction of the Operator’s property; or
(4) The Operator becomes insolvent or unable or unwilling to pay its debts, or makes an assignment for the benefit of creditors or a preferential transfer under Ohio law; or
(5) An order for relief in the name of the Operator is entered, or a case is commenced by the Operator, under Title 11 of the United States Code, as amended from time to time (the “Bankruptcy Code”); or
(6) The Operator materially misrepresents a fact in the application for, or negotiation, renegotiation, or renewal of, the Franchise; or
(7) Any provision that is material to the intent and fulfillment of this Chapter and/or the Operator’s Franchise Agreement is held to be illegal or unenforceable and the Village determines in its sole opinion that the provision is material to the intent and fulfillment of the Operator’s Franchise.
(Ord. 2001-109. Passed 11-13-01.)