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172 <br />within the time requirements, One of the factual considerations would be whether or <br />not there was substantial compliance with the terms of the franchise, He added that <br />no court would uphold an attack on the bond because a nominal percentage had not <br />been performed, He advised further that there were other remedies available and other <br />methods of administering relative to complaints or failure to perform. If there has <br />been a loss suffered by the City, i.e., failure to complete the system within a <br />given time, it would be then necessary to ascertain the degree to which the City <br />suffered, supported by facts, <br />Councilman Henderson indicated that she felt there was a question whether or not the <br />installation had been completed within the specified two years. Councilman Arnett <br />noted testimony before the Council of individuals who indicated they had not had <br />service available to them by the deadline, and felt a review of the records should <br />be made to determine whether this constituted a breach of the franchise, <br />City Attorney reported that there is also on deposit with the City a $10,000 annual <br />Performance Bond which provides another avenue of remedy if it is found the franchisee <br />has failed to perform, Councilman Henderson also questioned whether under the terms <br />of the franchise, loss of revenue to the City would be part of the consideration. <br />City Attorney advised that the reference to liquidated damages relate to a franchise <br />which contemplates a 20 -year term and therefore $200,000 represents over-all loss <br />for failure to perform. <br />Councilman Keckley indicated it appeared to him the question hinged on whether there <br />was substantial compliance as to performance and completion time. Councilman Peter- <br />sen stated it was his understanding the reason for the bond was to insure a cable <br />television service and that it appears there was substantial compliance when there <br />was supposed to be, and noted the City Attorney's indication that a penalty cannot <br />be revoked simply because the City is unhappy about the service. He felt the firm <br />had accomplished what was required under the franchise. <br />Council briefly discussed the question of compliance by the required date and the <br />City Manager referred to previous records in which it had been indicated Staff had <br />satisfied itself as to "substantial compliance" within the required two year period, <br />wherein the main cable had been completed within that time, and any sections not <br />completed were minimal, and for that reason recommendation was made to approve the <br />reduction in bond. He noted also that the agreement provides the bond might have <br />been reduced during the course of installation at any time in proportion to the <br />extend of work completed. The City elected not to do this, but held total amount <br />to this time. The request now was based on the Staff's investigation and having <br />satisfied themselves that the significant portion of the installation had been <br />completed as required by December, 16, 1969. Councilman Arnett noted the problem <br />in Eden Bower Lane as an example of whether individual hookups were completed. <br />City Manager responded that in areas where utilities are required to be underground, <br />the television cable also must be placed underground, and in this area there had been <br />