§ 138-72. Liquidated damages.

A. 

In addition to all other rights and powers vested in and possessed by the Town, the Town specifically reserves the right to assess liquidated damages for and on behalf of both the Town and subscribers whose interests have been harmed or damaged by the failure of an MCS provider to comply with any time or performance-related requirements, or any breach of a term or condition of a franchise, other agreement, license or permit, or of this chapter, or for the violation or breach of any federal, state, or local law, rule or regulation, in the event such failure has not been remedied pursuant to procedures set forth in this chapter.

B. 

Upon acceptance of a franchise agreement or other agreement, license or permit, or the renewal of any franchise agreement or other agreement, license or permit, a franchisee or other MCS provider shall indicate that it clearly understands that a failure to comply with any time- or any performance-related requirements, or any breach of a term or condition of such franchise, other agreement, license or permit or of this chapter, or of any federal, state, or local law, rule, regulation, or code as set forth any agreement or this chapter, will result in damage to the Town, and that in certain situations it will be impractical and impracticable to determine the actual amount of such damage in the event of the delay or nonperformance of specified obligations. If the Town elects to assess liquidated damages against the franchisee or other MCS provider, said liquidated damages shall constitute the sole financial remedy available to the Town, and the Town shall not be entitled to any other financial or monetary damages, excepting claims based in fraud or tort, or defense and indemnity.

C. 

By acceptance of a franchise agreement or other agreement, license or permit, absent good and just cause and the provision of evidence of good faith efforts to comply, the failure to comply with any time and performance-related requirement stipulated in the franchise agreement or other agreement, license or permit, or this chapter, will result in damage to the Town. Liquidated damages shall continue to accrue, including during any appeals process, until such time as the liquidated damages payment is received by the Town, or is otherwise waived by the Town. Failure to pay liquidated damages within the time provided shall be a material violation of this chapter, and the franchise agreement or other agreement, license or permit, and shall be cause to proceed against either a letter of credit or bond or other surety as provided by the franchisee or other MCS provider. It shall also constitute cause to pursue revocation of the franchise or other agreement, license or permit. The franchisee or other MCS provider shall be charged, and shall pay to the Town, the following amounts in liquidated damages for the violations listed:

(1) 

For failure to complete any system construction, reconstruction or upgrade, pursuant to the franchise agreement or other agreement or permit: $500 for each day, or part thereof, that the violation or breach continues.

(2) 

For failure to provide any data, documents, reports or information required by the franchise or other agreement, license or permit needed to monitor compliance and administer said franchise or other agreement, license or permit, or for failure to cooperate with the Town during an application process or system review: $100 for each day, or part thereof, the violation occurs or continues.

(3) 

For failure to test, analyze and report on the performance of the system following a written request pursuant to this chapter or a franchise, other agreement, license or permit: $200 for each day, or part thereof, that such noncompliance continues.

(4) 

For failure to meet the customer service requirements of this chapter or a franchise, other agreement, license or permit: up to $100 for each day, or part thereof, that such noncompliance continues.

(5) 

For failure to comply with any consumer protection requirements of this chapter or a franchise, other agreement, license or permit: $100 for each day, or part thereof, that such noncompliance continues.

(6) 

For failure to comply with any requirements regarding deposits and the return of deposits as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

(7) 

For failure to comply with any requirements regarding the improper or impermissible discontinuance or disconnection of a subscriber's service as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

(8) 

For failure to comply with any requirements regarding connections and disconnections as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

(9) 

For failure to comply with any requirements regarding disconnection and downgrade fees as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

(10) 

For failure to comply with any requirements regarding charges for repair of equipment or service disconnection as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

(11) 

For failure to comply with any requirements regarding the three-day right of rescission as set forth in state law, or a franchise, other agreement, license or permit: $500 per day per incident for each day or part thereof that such noncompliance continues.

(12) 

For failure to comply with any requirements regarding the use and display or identification passes and badges as set forth in this chapter or a franchise, other agreement, license or permit: $50 per day per incident for each day or part thereof that such noncompliance continues.

(13) 

For failure to comply with any requirements regarding cleanup and proper installation as set forth in this chapter or a franchise, other agreement, license or permit: $100 per day per incident for each day or part thereof that such noncompliance continues.

(14) 

For failure to comply with any requirements regarding subscribers being advised in writing of specific services and procedures as set forth in this chapter or a franchise, other agreement, license or permit: $50 per day per incident for each day or part thereof that such noncompliance continues.

(15) 

For failure to meet any safety-related requirements of this chapter or a franchise, other agreement, license or permit, including fire and electrical codes: up to $500, per failure, for each day, or part thereof, that such noncompliance continues.

(16) 

For failure to pay the full and complete amount of any money owed the Town: up to $100 per day, for each day, or part thereof, that such underpayment continues as measured from the date the original payment was due.

(17) 

For failure to comply with any other section, subsection, or provision of this chapter, or a franchise agreement or other agreement, license or permit: $50, for each instance of noncompliance or violation, for each day, or part thereof, that such noncompliance continues.

D. 

Notwithstanding anything in the preceding, or any other section of this chapter, after the initial 48 hours following notification by the Town to the franchisee or other MCS provider that a violation exists, each day that a violation continues shall constitute and be deemed a separate violation and may be treated as a separate violation.

E. 

In the event of an appeal arising out of the enforcement of this section, or in the event of litigation arising out of a dispute regarding the enforceability of any action taken by the Town under this section during the course of such proceeding, the franchisee or other MCS provider shall not be excused from the prompt and timely payment of liquidated damages as set forth in this section. Payment of liquidated damages in such an instance shall be placed in an escrow account by the Town, pending the resolution and decision of the adjudicating entity.

F. 

Notwithstanding anything in this section, or any other section of this chapter, a franchisee or other MCS provider may not use the payment of liquidated damages, or other fines or penalties as may permitted and assessed, to evade or avoid compliance with this chapter or any section of this chapter. An attempt to do so shall subject the franchisee or other MCS provider to termination and loss of the franchise or other agreement, license or permit or other operating authority.