Big Bear Lake Municipal Code Art. VIII Liquidated Damages

In addition to all other rights and powers retained by the city, the city reserves the right to assess on behalf of its citizens and the franchisee's subscribers liquidated damages in the event of a failure to comply with any time or performance requirements, or breach of a term or condition of such franchise, of his cable service provider chapter, or of any federal, state or local law or regulation pertaining to the provision of cable service, which failure has not been remedied following procedures set forth in this chapter.

(Ord. 98-287 § 2, 1998)

Upon preparation and acceptance of a franchise agreement, a franchisee shall indicate it understands that failure to comply with any time and performance requirements, or breach of a term or condition of such franchise, of this cable service provider chapter, or of any federal, state or local law or regulation pertaining to the provision of cable service, as stipulated in the agreement or this chapter will result in damage to the city, and that in certain cases it is and will be impracticable to determine the actual amount of such damage in the event of delay or nonperformance of specified obligations. If the cable administrator elects to assess liquidated damages against the franchisee, such liquidated damages shall constitute the exclusive monetary remedy available to the city, and the city shall be entitled to no other monetary damages with the exception of claims sounding in fraud or tort, or defense and indemnity.

(Ord. 98-287 § 2, 1998)

By acceptance of a franchise agreement, the franchisee understands and agrees that failure to comply with any time and performance requirement as stipulated in the franchise agreement or this chapter, absent good cause, will result in damage to the city. Liquidated damages shall continue to accrue, even during the appeals process, until such day as the liquidated damages payment is actually received by the city or waived by the city, or the appeal is sustained. Failure to pay liquidated damages within the time provided shall be a violation of this chapter and cause to proceed against either the letter of credit or bond or surety provided by the franchisee under the terms of Article XXIII, Sections 5.20.910 through 5.20.930, and Article XXIV, Sections 5.20.935 through 5.20.955. The franchisee shall be charged no more than the following amounts in liquidated damages:

A. For failure to complete system construction or reconstruction in accordance with the franchise agreement; one hundred fifty dollars for each day, or part thereof, the deficiency continues, assuming the timely grant to franchisee by the city of all permits and licenses and the supplying of all utilities and other required services to be supplied by the city.

B. For failure to provide any data, documents, reports or information required by the franchise for the purpose of franchise monitoring and administration, or for failure to cooperate with the city during an application process or cable system review; fifty dollars for each day, or part thereof, the violation occurs or continues.

C. For failure to test, analyze and report on the performance of the system following a written request pursuant to this chapter or the agreement; fifty dollars for each day, or part thereof, that such noncompliance continues.

D. For failure to meet the customer service requirements of this chapter or the agreement; up to one hundred dollars for each day, or part thereof, that such noncompliance continues.

E. For failure to meet any safety requirements of this chapter or the franchise agreement; one hundred dollars, per failure, for each day, or part thereof, that such noncompliance continues; provided, however, in the case of failures, which do not, as determined by the city, pose a reasonable likelihood of causing bodily injury or property damage if not immediately repaired, the franchisee shall not be subject to the liquidated damages provided for in this subsection if the franchisee demonstrates to the city that it is working promptly, diligently and in good faith to correct such violations within a time frame to be determined by the city.

F. For failure to comply with any other section, subsection or provision of this chapter, or a franchise agreement; fifty dollars, per each instance of noncompliance, for each day, or part thereof, that such noncompliance continues.

(Ord. 98-287 § 2, 1998)