(a) Liquidated Damages. In addition to any other remedies provided at law or equity or provided herein, liquidated damages for violations of this franchise are set forth below. As a result of any Franchisee violations or breach by a term or condition of its franchise of this Ordinance, the City may charge to and collect from the Franchisee and Franchisee hereby agrees to pay the following liquidated damages:
(1) For failure to complete the System Upgrade in accordance with this franchise unless the City approves the delay, the damage shall be Six Hundred Dollars ($600.00) per day for each day, or part thereof, for as long as such failure occurs or continues.
(2) For failure to provide data, documents, reports or information or to participate with the City during a System review and evaluation, the damage shall be Two Hundred Fifty Dollars ($250.00) per day.
(3) For failure of the Franchisee to comply with the construction or technical standards required by this Ordinance, the damage shall be Three Hundred Dollars ($300.00) per day.
(4) For failure to comply with any of the provisions of this franchise or Ordinance, or for failure to comply with applicable provisions of Federal, State or City law or Ordinance, without limitation of City Ordinance governing for which a penalty is not otherwise specifically provided, the damage shall be Three Hundred Dollars ($300.00) per day.
(b) Procedure for Imposing Liquidated Damages.
(1) Notice. Whenever the City believes that the Franchisee has violated one (l) or more terms, conditions, or provisions of this franchise, and wishes to impose liquidated damages, a written notice shall be given to the Franchisee informing it of such alleged violation or liability. The written notice shall describe in reasonable detail the specific violation so as to afford the Franchisee an opportunity to remedy the violation. The Franchisee shall have thirty (30) days subsequent to receipt of the notice in which to correct the violation before the City may impose liquidated damages unless the violation is of such a nature so as to require more than thirty (30) days and the Franchisee proceeds diligently within the thirty (30) days to cure the violation in which case the Franchisee must proceed diligently within the thirty (30) days to correct the violation, or as promptly as possible thereafter to correct the violation. In any case where the violation is not cured within sixty (60) days of notice from the City, the City may proceed to impose liquidated damages.
(2) Dispute of violation. The Franchisee may, within ten (10) days of receipt of notice, notify the City that there is a dispute as to whether a violation or failure has in fact, occurred. Such notice by the Franchisee to the City shall specify with particularity the matters disputed by the Franchisee and shall stay the running of the thirty (30) day cure period pending Council decision as required below.
A. The City Council shall hear the Franchisee's dispute. Franchisee must be given at least ten (10) days notice of the hearing. At the hearing, the Franchisee shall be entitled to the right to present evidence and the right to be represented by counsel. After the hearing, the Clerk of Council shall provide Franchisee with a copy of the City Council's action, along with supporting documents.
B. In the event the City upholds the finding of the violation, the Franchisee shall have thirty (30) days subsequent, or such other time period as the Franchisee and the City may mutually agree upon, to correct the alleged violation.
(3) Reservation of Rights. The rights reserved to the City under this section are in addition to all other rights of the City whether reserved by this franchise or authorized by law or equity, and no action, proceeding or exercise of a right with respect to liquidated damages shall affect any other right the City may have. In addition, any payments made to the City pursuant to this Section shall not be considered franchise fees under the Cable Act or any other applicable law, nor shall such payments be offset against the payments required pursuant to Section 731.13.
(c) Violation of Federal, State, or Local Law. If the Franchisee violates any federal, state, or local law, other than the Franchise Agreement or Ordinance, then the City may either proceed against the Franchisee under Oxford Code Section 731.24 hereof or may proceed to take action against the Franchisee under the appropriate provisions of the federal, state, or local ordinance. In the event the City decides to take action under such other ordinance, rule, or regulation, then it need not follow the procedures outlined herein.
(Ord. 2439. Passed 1-2-96.)