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A. Within fourteen (14) days of receipt of a notice from the city of an alleged violation of this franchise, as determined by the city, grantee shall provide the city with an irrevocable letter of credit in the sum of ten thousand dollars ($10,000.00). The letter of credit shall ensure the faithful performance by the grantee of all the provisions of this franchise, and compliance with all orders, permits and directions of the city and the payment by grantee of any claim, penalties, damages, liens and taxes due the city related thereto or which arise by reason of the construction, operation or maintenance of the cable system. The letter of credit shall be provided by grantee regardless of whether grantee disputes the alleged violation. Any failure by grantee to provide the letter of credit as required herein shall constitute a breach of this franchise. Any interest on this deposit shall be paid to the grantee. Once the proceeding addressing the alleged violation has been completed the grantee shall be relieved of maintaining the letter of credit until such time as another alleged violation notification is received by grantee at which time the process shall begin again.
B. In addition to recovery of any monies owed by grantee to city or any person or damages to city or any person as a result of any acts or omissions by grantee pursuant to the franchise, city in its sole discretion may charge to and collect from the letter of credit the following penalties:
1. For failure to timely complete system upgrades as provided in this franchise unless city approves the delay, the penalty shall be two hundred fifty dollars ($250.00) per day for each day, or part thereof, such failure occurs or continues.
2. For failure to provide data, documents, reports or information or to cooperate with city during an application process or system review or as otherwise provided herein, the penalty shall be one hundred fifty dollars ($150.00) per day for each day, or part thereof, such failure occurs or continues.
3. Fifteen (15) days following notice from city of a failure of grantee to comply with construction, operation or maintenance standards, the penalty shall be two hundred fifty dollars ($250.00) per day for each day, or part thereof, such failure occurs or continues.
4. For failure to provide the services grantee has proposed, including, but not limited to, the implementation and the utilization of the access channels and the maintenance and/or replacement of the equipment and other facilities, the penalty shall be two hundred fifty dollars ($250.00) per day for each day, or part thereof, such failure occurs or continues.
5. For grantee's breach of any written contract or agreement with or to the city or its designee, the penalty shall be two hundred fifty dollars ($250.00) per day for each day, or part thereof, such breach occurs or continues.
6. For failure to comply with any of the provisions of this franchise, or other city ordinance for which a penalty is not otherwise specifically provided, the penalty shall be one hundred fifty dollars ($150.00) per day for each day, or part thereof, such failure occurs or continues.
7. For failure to comply with any of the customer service provisions of this franchise, or other city ordinance, the penalty shall be three hundred dollars ($300.00) per day for each day, or part thereof, such failure occurs or continues, provided, any damages so paid to city thereafter shall be credited by grantee to grantee's subscribers, less costs of prosecution, which shall include, but not be limited to, reasonable attorney fees.
C. Each violation of any provision of this franchise shall be considered a separate violation for which a separate penalty can be imposed.
D. Whenever city finds that grantee has violated one or more terms, conditions or provisions of this franchise, or for any other violation contemplated in subsection B of this section, a written notice shall be given to grantee informing it of such violation. At any time after thirty (30) days (or such longer reasonable time which, in the sole determination of city, is necessary to cure the alleged violation) following local receipt of notice, provided grantee remains in violation of one or more terms, conditions or provisions of this franchise, in the sole opinion of city, city may draw from the letter of credit all penalties and other monies due city from the date of the local receipt of notice.
E. Whenever the letter of credit is drawn upon, grantee may, within seven (7) days of such draw, notify city in writing that there is a dispute as to whether a violation or failure has in fact occurred. Such written notice by grantee to city shall specify with particularity the matters disputed by grantee. All penalties shall continue to accrue from the letter of credit during any appeal.
1. City shall hear grantee's dispute within sixty (60) days and render a final decision within sixty (60) days thereafter.
2. Upon the determination of city that no violation has taken place, city shall refund to grantee, without interest, all monies drawn from the letter of credit by reason of the alleged violation.
F. If city draws upon the letter of credit or any subsequent letter of credit delivered pursuant hereto, in whole or in part, grantee shall replace or replenish to its full amount the same within ten (10) days and shall deliver to city a like replacement letter of credit or certification of replenishment for the full amount stated in subsection A of this section as a substitution of the previous letter of credit. This shall be a continuing obligation for any draws upon the letter of credit.
G. If any letter of credit is not so replaced or replenished, city may draw on said letter of credit for the whole amount thereof and use the proceeds as city determines in its sole discretion. The failure to replace or replenish any letter of credit may also, at the option of the city, be deemed a default by grantee under this franchise. The drawing on the letter of credit by city, 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.
H. The collection by city of any damages, monies or penalties from the letter of credit shall not affect any other right or remedy available to city, nor shall any act, or failure to act, by city pursuant to the letter of credit, be deemed a waiver of any right of city pursuant to this franchise or otherwise. (Ord. 827, 8-5-2002, eff. 8-26-2002)