§ 10-92. Liquidated damages; administrative hearings.

(a)

A license agreement shall contain provisions for assessing liquidated damages, at the discretion of the city, in lieu of or in addition to any other non-monetary remedy for a licensee's failure to comply with the terms of this chapter or the license. Such provisions shall include liquidated damages to be paid by a licensee in specified amounts chargeable to the security fund for the following:

(1)

Failure to complete system construction or reconstruction within the time frames specified in the license, unless the city council formally approves the delay;

(2)

Failure to provide a cable connection in a line extension area within the time(s) set forth in the license;

(3)

Failure to properly restore the streets and public ways or to correct related violations of specifications, codes or standards after having been notified to correct such defects;

(4)

Failure to comply with customer service standards as required by the license;

(5)

Failure to test and report on the performance of the cable system as required by the license;

(6)

Failure to cure any violation of the license, following notice and an opportunity to cure.

(b)

The city shall give written notice of its intention to assess liquidated damages to the licensee, which notice shall contain the reasons for and the amount of such assessment. Such notice shall either be personally served on the licensee or mailed to the licensee's last known address pursuant to the terms of the license.

(c)

A licensee may request an informal hearing on a notice of intent to assess liquidated damages or a notice of intent to make a withdrawal from the security fund pursuant to section 10-43 by submitting a written request to the city manager within thirty (30) days after the notice is given. An informal hearing before the city manager shall be held within thirty (30) days after the request for the same is received by the city. If a licensee does not request a hearing within said thirty (30) day period, the assessment of liquidated damages shall be considered final, and the city may exercise all remedies provided in this chapter and the license to collect such damages. If a hearing is requested, the assessment shall not take effect until after the informal hearing and the service of a new notice from the city manager on the licensee setting forth the city manager's final decision. Such notice shall be personally served on the licensee or mailed to the licensee's last known address pursuant to the terms of the license.

(d)

A licensee against whom liquidated damages have been assessed after an informal hearing with the city manager may appeal such decision to a hearing officer. The appeal shall be requested within thirty (30) days from the date on which such licensee is given notice of the city manager's final decision pursuant to subsection (c). The request shall be in writing, shall be filed with the city manager and shall set forth specifically the grounds for the appeal.

(e)

The city manager shall appoint a hearing officer to conduct a hearing in accordance with this section. The hearing officer shall not be a regular employee of the city. Upon conclusion of the hearing, the hearing officer may:

(1)

Find that the licensee is not in violation of the terms of this chapter or the license;

(2)

Find that the licensee is in violation but that such violation was with just cause, waive or reduce any liquidated damages that could be imposed, and permit the city to foreclose on the security fund provided pursuant to section 10-43 to the extent liquidated damages are not waived; or

(3)

Find that the licensee is in violation without just cause, impose the specified liquidated damages and permit the city to foreclose on the security fund provided pursuant to section 10-43.

(f)

The burden of proof at the hearing shall be:

(1)

On the city to establish, by a preponderance of the evidence, that the licensee is in violation of term(s) of this chapter or the license authorizing the assessment of liquidated damages; and

(2)

On the licensee to establish, by a preponderance of the evidence, that any violation was with just cause for purposes of reducing or waiving assessment of liquidated damages.

(g)

The hearing officer shall hear such testimony and consider such evidence as is relevant to the determination of the issues specified in subsection (f). The hearing officer shall not be bound by technical rules of evidence or procedure in conducting the hearing.

(h)

The hearing officer shall render a written decision within thirty (30) days after the hearing is concluded based on the evidence presented by the city and the licensee. The decision of the hearing officer shall be final.

(Ord. No. 2053, § 1, 12-8-98)