Article 12 — FRANCHISE VIOLATIONS

If grantee fails to perform in a timely manner any material obligation required by this chapter or a franchise granted in this section, following written notice from the grantor and an opportunity to cure such nonperformance in accordance with the provisions of Article 12 of this chapter, grantor may at its option and in its sole discretion:

(1)

Cure the violation and recover the actual cost thereof from the security fund established in the franchise agreement, unless grantor, in its sole discretion, has provided grantee with additional time to effectuate a cure.

(2)

Assess against grantee liquidated damages in an amount set forth in the franchise agreement for any such violations if such violation is not cured, or if grantee has not commenced a cure, on a schedule reasonably acceptable to grantor. Such assessment may be withdrawn from the security fund, and shall not constitute a waiver by grantor of any other right or remedy it may have under the franchise or applicable law, including without limitation, its right to recover from grantee such additional damages, losses, costs and expenses,

including actual attorney's fees, as may have been suffered or incurred by grantor by reason of or arising out of such material breach of the franchise.

(A)

Within three days of a withdrawal from the security fund, grantor will mail, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal to grantee.

(B)

If at the time of grantor's withdrawal, the amounts available are insufficient to provide the total payment toward which the withdrawal is directed, the balance of such payment will continue as grantee's obligation to grantor until it is paid.

(C)

Not later than thirty days after receipt of notification to grantee by certified mail, return receipt requested, of a withdrawal from the security fund, grantee will deliver to grantor for deposit in the security fund an amount equal to the amount so withdrawn.

(D)

Failure to make timely delivery of such amount to grantor or to restore the letter of credit will constitute a material violation of the cable franchise.

(Ord. 570 §1(part), 2003).

Prior to imposing any remedy or other sanction against grantee specified in this chapter, grantor shall give grantee notice and opportunity to be heard on the matter, in accordance with the following procedures:

(1)

The city administrator shall first notify grantee of the alleged violation in writing by personal delivery or registered or certified mail, and demand correction, or evidence of non-violation, within a reasonable time, which shall not be less than thirty calendar days. If grantee fails to:

(A)

Correct the alleged violation within the time prescribed;

(B)

Commence correction of the alleged violation within the time prescribed and diligently remedy such alleged violation thereafter; or

(C)

Provide evidence that there is no violation, the city administrator shall then give, by personal delivery or registered or certified mail written notice of not less than fifteen days of a hearing. Such notice shall set

forth in detail each of the violations alleged to have occurred.

(2)

Subsequent to the hearing, the city administrator shall hear and consider all other relevant evidence, and thereafter render findings and its decision.

(3)

If the city administrator finds that:

(A)

The grantee has corrected the alleged violation;

(B)

The grantee has diligently commenced correction of such alleged violation after notice thereof and is diligently proceeding to fully remedy such alleged violation; or

(C)

No material violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

(4)

If the city administrator finds that a material violation exists and that grantee:

(A)

Has not corrected the same in a satisfactory manner; or

(B)

Has not diligently commenced correction of such violation after notice thereof and is not diligently proceeding to fully remedy such violation; then the city administrator may impose one or more of the remedies provided in this chapter and the franchise agreement as the city manager, in his or her discretion, deems appropriate under the circumstances.

(5)

Grantee may appeal any findings of the city administrator to the council. The council shall schedule a hearing on the issue within thirty days of receipt by the city administrator of grantee's appeal. The hearing will provide grantee with the full opportunity to participate and present evidence.

(Ord. 570 §1(part), 2003).

(a)

Grantor may revoke any franchise granted pursuant to this chapter and rescind all rights and privileges associated with it in the following circumstances, each of which shall represent a default by grantee and a material breach under the franchise:

(1)

If grantee fails to perform any of its material obligations under this chapter or the franchise agreement and continues such failure to perform after receipt of due notice and a reasonable opportunity to cure;

(2)

If grantee fails to provide or maintain in full force and effect the insurance coverage or security fund as required in the franchise agreement;

(3)

If grantee violates any order or ruling of any regulatory body having jurisdiction over the grantee relative to the grantee's franchise, unless such order or ruling is being contested by grantee in good faith in an appropriate proceeding;

(4)

If grantee knowingly practices any material fraud or deceit upon grantor; or

(5)

If grantee becomes insolvent, unable or unwilling to pay its debts, or enters into bankruptcy dissolution.

(b)

After completing the procedures set forth in Section 5.44.505 of this chapter, the grantor shall cause to be served on grantee written notice of grantor's intent to revoke grantee's franchise. Such notice shall be served on grantee at least thirty days prior to the date of the hearing on the issue. The notice shall contain the time and place of the hearing and shall be published at least once in a newspaper of general circulation within the franchise area ten days prior to the hearing date.

(c)

The council shall hear any person(s) interested in the revocation and within ninety days after the date of the hearing shall make its determination whether the grantee has committed a material breach of the franchise.

(d)

If the grantor determines that the grantee has committed a material breach, then the grantor may:

(1)

Declare the franchise revoked and any security fund and bonds forfeited; or

(2)

If the material breach is curable by the grantee, direct the grantee to take appropriate remedial action within the time and manner and under the terms and conditions reasonably specified by the grantor.

The termination and forfeiture of the grantee's franchise shall in no way affect any right of grantor to pursue any remedy under the franchise or any provision of law.

(Ord. 570 §1(part), 2003).

The grantee may appeal any council finding made pursuant to Sections 5.44.505 and 5.44.510 to an appropriate court of jurisdiction. Any such appeal must be taken by the grantee within sixty days of the issuance of the council's written decision.

(Ord. 570 §1(part), 2003).

In the event grantee's performance of any of the terms, conditions or obligations required by this chapter or a franchise granted of this section is prevented by a cause or event not within grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof; provided, however, that such inability to perform shall not relieve a grantee from the obligations imposed by subsection 5.44.160(e) pertaining to refunds and credits for interruptions in service. For the purpose of this section, causes or events not within the control of grantee shall include without limitation acts of God, war, strikes, sabotage, riots or civil disturbances, labor disputes, restraints imposed by order of a governmental agency or court, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires, but shall not include financial inability of the grantee to perform or failure of the grantee to obtain any necessary permits or licenses from other governmental agencies or the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of grantee, or the failure of the grantee to secure supplies, services or equipment necessary for the installation, operation, maintenance or repair of the cable system where the grantee has failed to exercise reasonable diligence to secure such supplies, services or equipment.

(Ord. 570 §1(part), 2003).