§ 25.45. Liquidated Damages.

A.

In addition to any other rights or remedies available at law or equity or as provided under this Chapter 25 or the Franchise Agreement, the City shall have the power to impose the following monetary liquidated damages in the event the Grantee violates any provision of this Chapter 25, the Franchise Agreement, or any applicable law, order, rule or regulation. Grantee is required to pay City the monetary liquidated damages within ten (10) days from the date of written notification for payment thereof in accordance with the schedule set forth below. Any such liquidated damages shall be recoverable from the performance bond, or letter of credit at the option of the City.

1.

Failure to obtain a permit for installation of facilities or equipment in the Public Way, or a violation of any permit condition - up to One Hundred Dollars ($100.00) per occurrence.

2.

Failure to commence or complete construction and installation of System within proper time - up to One Hundred Dollars ($100.00) per day.

3.

Failure to properly restore the Public Way after installation of facilities or equipment - up to One Hundred Dollars ($100.00) per day.

4.

Failure to adhere to the permitting, inspection and installation requirements - up to One Hundred Dollars ($100.00) per occurrence.

5.

Failure to remove or relocate, either temporarily or permanently, facilities or equipment as required pursuant to this Chapter 25 - up to One Hundred Dollars ($100.00) per day.

6.

Failure to correct or eliminate harmful conditions or to temporarily relocate facilities as required under subsection 25.29.K - Five Hundred Dollars ($500.00) per occurrence.

7.

Failure to move above-ground facilities or equipment to new poles or other above-ground structures as required pursuant to this Chapter 25 - up to One Hundred Dollars ($100.00) per day.

8.

Failure to provide or maintain the required insurance - up to Five Hundred Dollars ($500.00) per occurrence.

9.

Failure to supply data required under this ordinance in connection with installation, construction, customers, finances or financial reports, or rate review - up to One Hundred Dollars ($100.00) per day.

10.

Failure to respond to Subscriber complaints within the proper time, unless good cause is shown or a correlating specific dollar credit has been applied to the Subscriber's account for such failure - up to One Hundred Dollars ($100.00) per day.

11.

Failure to comply with any other material obligation contained in this Chapter 25 or the Franchise Agreement - up to One Hundred Dollars ($100) per day.

B.

The Grantee shall have thirty (30) days subsequent to receipt of notice to correct the alleged violation. If after thirty (30) days, the Grantee has failed to correct the alleged violation, the City's Chief Administrative Officer shall determine if the Grantee has actually committed the alleged violation and shall set forth with reasonable specificity the circumstances and the nature of the alleged violations(s). If a violation is found, the damages imposed above shall be deemed to have begun to accrue from the fifteenth day following the date the notice of violation was received and shall continue to accrue until such time as the violation is corrected or otherwise resolved to the satisfaction of the Chief Administrative Officer. The Grantee shall have thirty (30) days from the date of the Chief Administrative Officer's decision to file a written request with the Chief Administrative Officer petitioning the City Council for review of the violation finding(s). If the Grantee timely files such a written request, the City Council shall review the decision at a public hearing at which interested parties may be heard, and thereafter approve it, modify it, or disapprove it.

C.

It is the intent of the City to impose the applicable above referenced assessments as a reasonable estimate of the damages suffered by the City and/or the Subscribers, whether actual or potential, and may include without limitation, increased costs of administration and other damages too difficult to measure. The City Council reserves the right to amend the assessment amounts or to adopt further assessments for violations not specifically set forth in subsection 25.45A.

D.

The procedure, rights and remedies set forth in this section are not exclusive. Alternative remedies that are not set forth in this section may be pursued simultaneously or subsequently. Utilization by the City of the liquidated damages provisions set forth in this section shall not constitute a waiver of any such alternative remedies.

E.

Nothing herein shall be construed as affecting in any manner whatsoever the rights of third parties to any relief available for damages or injury suffered as a result of alleged violations of this Chapter 25.

(Ord. of 1-7-1985, Doc. #19125; Ord. of 9-23-1996, Doc. #29666; Ord. of 12-11-2000, § 2.10, Doc. #33439; Ord. of 8-13-2001, § 7, Doc. #34000)