§ 46-22. Penalties and termination.

(a)

If the provider fails to pay to the town any moneys due within the time fixed by this article, or fails to pay to the town any taxes due and unpaid, or fails to pay to the town any franchise fees owed as determined under section 46-26, or fails to pay to the town any damages, costs or expenses that arise from noncompliance with any section of this article, after ten days' written notice, thereof, the provider shall remain liable for such amounts owing and shall pay a late payment fee to the town of $250.00 per day for each day of late payment, including Saturdays, Sundays, and holidays. The provider shall pay all costs and attorney fees incurred by the town for collection of these sums, and the town shall be entitled to collection thereof in any proceeding so instituted.

(b)

A failure by the provider to permit an inspection or audit, or to pay any money owed to the town, whether franchise fee, liquidated damages, costs, fees, or other payment due under this franchise may be considered, at the town's sole discretion, to be a material breach of the franchise agreement. Thereupon, at the town's sole discretion, the town may terminate the franchise on 30 days' notice.

(c)

The town hereby makes reference to 17 NMAC 11.22.1 et seq., regarding the quality of service standards for telecommunications providers, and states that a determination made by the state public regulation commission or by a court of competent jurisdiction that there has occurred a willful violation of any or some of those standards by the franchisee contained in this article, the effect of which causes any harm, loss, or inconvenience to the town or the consumers of the franchisee's services, shall be grounds for the immediate termination of the franchise agreement entered into by the provider and withdrawal of permission to maintain itself upon the town's rights-of-way.

(d)

Enforcement of the town's rights contained in this article means the franchise shall be cumulative to all other rights and powers otherwise provided by federal and state statutes and regulations, and any rights under local ordinances, as well as rights determined to exist by the case law of the state and the United States.

(Ord. No. 1050, § 6, 4-24-2001)