(a) Violations.
(1) If City has reason to believe that Company violated any provision of this Agreement, it shall notify Company in writing, by certified mail, of the nature of such violation and the section of this Agreement which it believes has been violated.
(2) Company shall have forty-five (45) days to cure such violation after written notice is received by taking appropriate steps to comply with the terms of this Agreement. If the nature of the violation is such that it cannot be fully cured within forty-five (45) days due to circumstances outside of Company’s control, the period of time in which Company must cure the violation shall be extended by the City in writing for such additional time necessary to complete the cure, provided that Company shall have promptly commenced to cure and is diligently pursuing its efforts to cure in the reasonable judgment of the City.
(3) If the violation has not been cured within the time allowed under subsection (a)(2) above, then Company shall be liable for liquidated damages in accordance with subsection (b) below.
(b) Liquidated Damages. Because Company’s failure to comply with provisions of this Agreement will result in injury to the City and because it will be difficult to measure the extent of such injury, the City may assess liquidated damages against Company in the following amounts provided Company has had an opportunity to cure in accordance with subsection (a)(2) hereof. Such damages shall not be a substitute for specific performance by Company, but shall be in addition to such performance.
(1) For failure to comply with the requirements specified in Sections 323.05(a) and (b): Two hundred fifty dollars ($250.00) per day for each day the violation continues;
(2) For failure to provide and maintain cable service as specified in Section 323.05(c): Two hundred fifty dollars ($250.00) per day for each day the violation continues;
(3) For failure to make repairs and restorations as specified in Section 323.05(d): One hundred fifty dollars ($150.00) per day for each day the violation continues;
(4) For failure to obtain and maintain construction permits as specified in Section 323.05(e): One hundred fifty dollars ($150.00) per day for each day the violation continues;
(5) For failure to disconnect, relocate or remove equipment as specified in Section 323.05(f): One hundred fifty dollars ($150.00) per day for each day the violation continues;
(6) For failure to comply with customer service standards as specified and in accordance with Section 323.07: One hundred fifty dollars ($150.00) per violation:
(7) For failure to provide information in conformity with the City’s right to regulate as specified in Section 323.08: One hundred fifty dollars ($150.00) per day for each day the violation continues;
(8) For failure to carry all the insurance required in Section 323.09: Two hundred dollars ($200.00) per day for each day the violation continues;
(9) For failure to provide services to the community as specified in Section 323.10: Two hundred fifty dollars ($250.00) per day for each day the violation continues;
(10) For failure to comply with programming requirements as specified in Section 323.11: One hundred fifty dollars ($150.00) per day for each day the violation continues:
(11) For failure to comply with transfer or renewal provisions as specified in Section 323.12: Two hundred fifty dollars ($250.00) per day for each day the violation continues.
(12) For failure to provide a performance bond as specified in Section 323.20(b): Two hundred dollars ($200.00) per day for each day the violation continues;
(b) Performance Bond.
(1) Company shall obtain and maintain during the franchise term, at its sole cost and expense, a performance bond running to the City with a company surety satisfactory the City to ensure Company’s faithful performance of its obligations. The performance bond shall provide that the City may recover from the principal and surety any and all liquidated damages incurred by the City for Company’s violations of this Agreement, after opportunity to cure, in accordance with subsection (a)(2) above.
(2) The amount of the bond shall be one hundred dollars ($100,000). Company shall not reduce, cancel or materially change said bond from the requirement contained herein without the express prior written permission of the City.
(3) Notwithstanding subsections (b)(1) and (2) above, Company shall not be required to provide a performance bond until such time as Company commits a material breach of this Agreement or the City determines in good faith that Company is unable or may become unable to meet its financial obligations under this Agreement
(4) Upon transfer, a performance bond shall be required.
(d) Revocation.
(1) In addition to the other rights, powers and remedies retained by the City under this Agreement, the City reserves the separate and distinct right to revoke this franchise if:
A. Company practices any fraud or deceit upon the City in its operation of its Cable System or any other activities pursuant to this Agreement;
B. Company seeks, or an involuntary case is brought against Company seeking liquidation, reorganization, or other relief under any bankruptcy, insolvency or other similar law or seeking the appointment of a trustee, receiver, custodian or other similar official of a substantial part of Company’s property and such proceeding shall remain un-dismissed or un-stayed for a period of one-hundred- twenty (120) days;
C. Company transfers or assigns this franchise, the Cable System or any significant portion thereof, in violation of Section 323.12, herein;
D. Company repeatedly fails, after notice and opportunity to cure, to maintain signal quality pursuant to the standards provided for by the FCC or the technical requirements set forth in Section 323.05(a) of this Agreement;
E. Company repeatedly violates, after notice and opportunity to cure, any of the material terms or conditions of this Agreement.
(2) The foregoing shall not constitute a violation of a material term or condition if the violation occurs without the fault of Company or occurs as a result of circumstances beyond its control. Company shall not be excused from the performance of any of its obligations under this franchise by mere economic hardship or by the misfeasance of malfeasance of its directors, officers, or employees.
(3) A revocation shall be declared only by a written decision of the City Council upon recommendation of the Mayor after an appropriate public hearing which shall afford Company due process and full opportunity to be heard, to introduce evidence, to question witnesses and to respond to any notice of grounds to terminate in accordance with the standards of a fair hearing applicable to administrative hearings in the Commonwealth of Pennsylvania. All notice requirements shall be met by providing Company at least thirty (30) days prior written notice of any public hearing concerning the proposed revocation of this franchise. Such notice shall state specifically and in detail the grounds for revocation. The City Council, after a public hearing and upon finding the existence of grounds for revocation, may either declare this franchise terminated or excuse such grounds upon a showing by the Company of mitigating circumstances or good cause for the existence of such grounds.
(Ord. 11-2005. Passed 2-15-05.)