Watsonville Municipal Code Art. 9 Franchise Violation Procedures and Remedies

(a) The material failure of Grantee to comply with the requirements of these regulations shall be a material breech of the Grantee’s Franchise Agreement to provide Cable Service.

(b) Grantor reserves the right to 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 material breach under the Franchise Agreement:

(1) If Grantee shall default in the performance of its material obligations under this Chapter or the Franchise Agreement and shall continue such default after receipt of notice and a reasonable opportunity to cure the default;

(2) If Grantee shall fail to provide or maintain in full force and effect the insurance coverage or Security Fund as required in this Chapter;

(3) If Grantee shall violate 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 by appropriate proceedings conducted in good faith;

(4) If Grantee attempts to unlawfully evade any provision of this Chapter or practices any fraud or deceit upon Grantor;

(5) If Grantee persistently fails three (3) or more times within a twelve (12) month period to remedy defaults for which lesser penalties have previously been imposed; and/or

(6) If Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt;

(c) 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 Agreement or any provision of law.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

(a) 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) Grantor shall first notify Grantee of the violation in writing by personal delivery or registered or certified mail, and demand correction within reasonable time, which shall not be less than five (5) days in the case of failure of the Grantee to pay any sum or other amount due the Grantor under this Chapter or the Grantee’s Franchise and thirty (30) days in all other cases. If Grantee fails to correct the violation within the time prescribed or if Grantee fails to commence correction of the violation within the time prescribed and diligently remedy such violation thereafter, the Grantor shall then give written notice of not less than twenty (20) days of a public hearing to be held before the Council. Such notice shall specify the violations alleged to have occurred.

(b) The Council may designate a Cable Committee to hear and consider all relevant evidence, and thereafter render findings and its decision.

(c) If the Council or appointed Cable Committee finds that Grantee has corrected the violation or has diligently commenced correction of such violation after notice thereof from Grantor and is diligently proceeding to fully remedy such violation, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

(d) If the Council or appointed Cable Committee finds that the alleged violations exist and that Grantee has not corrected the same in a satisfactory manner or has not diligently commenced corrections of such violation after notice thereof from Grantor and is not diligently proceeding to fully remedy such violation, the Council or appointed Cable Committee may impose one or more of the remedies specified in Article 9 as it, in its discretion, deems appropriate under the circumstances.

(e) Council may, at it’s discretion, hear appeals from decisions of the Cable Committee.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

(a) In the event Grantee’s performance of any of the terms, conditions or obligations required by this Chapter or a Franchise granted under this Chapter is prevented by a cause or event not within Grantee’s control, such inability to perform may be excused and penalties or sanctions may be waived or reduced by Grantor. Causes or events not within the control of Grantee shall include, without limitation, acts of God, strikes, sabotage, riots or civil disturbances, 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 of 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.

(b) At the expiration of the term for which the Franchise is granted, or upon its revocation or earlier termination, as provided for in this Chapter, in any such case without renewal, extension or transfer, the Grantor shall have the right to require Grantee to remove, at its own expense, all above-ground portions of the Cable System from all streets within the Franchise Area within a reasonable period of time, which shall not be less than one hundred eighty (180) days.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

(a) In the event that use of any Franchise Property or a portion thereof is discontinued for a continuous period of twelve (12) months, Grantee shall be deemed to have abandoned that Franchise Property. Any part of the Cable System that is intended for use only when needed because it is parallel or redundant to other parts of such system, shall not be deemed to have been abandoned because of its lack of use.

(b) Grantor, upon such terms as Grantor may impose, may give Grantee permission to abandon, without removing, any system facility or equipment laid, directly constructed, operated or maintained under the Franchise. Unless such permission is granted or unless otherwise provided in this Chapter, the Grantee shall remove all abandoned above-ground facilities and equipment upon receipt of written notice from Grantor and shall restore any affected street to its former state at the time such facilities and equipment were installed, so as not to impair its usefulness. In removing its plant, structures, and equipment, Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all streets and public ways and public places in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles, or attachments. Grantor shall have the right to inspect and approve the condition of the streets, public ways, public places, cables, wires, attachments and poles prior to and after such removal. The liability, indemnity and insurance provisions of this Chapter and the Security Fund provided in this Chapter shall continue in full force and effect during the period of removal and until full compliance by Grantee with the terms and conditions of this Section.

(c) Upon abandonment of any Franchise property in place, the Grantee, if required by the Grantor, shall submit to the Grantor an instrument, satisfactory in form to the Grantor, transferring to the Grantor ownership of the Franchise property abandoned.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

In the event of a failure by Grantee to complete any work required in this Chapter or by any other law or ordinance, and if such work is not completed within thirty (30) days after receipt of written notice thereof from Grantor or, if more than thirty (30) days are reasonably required therefor, if Grantee does not commence such work within such thirty (30) day period and diligently complete the work thereafter (except in cases of emergency constituting a threat to public health, safety or welfare), Grantor may cause such work to be done and Grantee shall reimburse Grantor for the costs thereof within thirty (30) days after receipt of an itemized list of such costs, or Grantor may recover such costs through the Security Fund provided by Grantee.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

Upon either expiration or revocation of a Franchise, the Grantor shall have discretion to permit Grantee to continue to operate the Cable System for an extended period of time not to exceed twelve (12) months from the date of such expiration or revocation, unless extended by resolution of Grantor. Grantee shall, as trustee for its successor-in-interest, continue to operate the Cable System under the terms and conditions of this Chapter and the Franchise and to provide the regular Subscriber service and any and all of the Cable Services that may be provided at that time. It shall be the right of all Subscribers to continue to receive all available Cable Services provided their financial and other obligations to Grantee are honored. The Grantee shall use reasonable efforts to provide continuous, uninterrupted Cable Service to its Subscribers, including operation of the Cable System during transitional periods following Franchise expiration or termination.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

(a) A Franchise granted under this Chapter shall, at the option of Grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of Grantee, whether in receivership or reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: (i) such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this Chapter and the Franchise granted pursuant hereto, and the receivership or trustees within said one hundred twenty (120) days shall have remedied all the faults under the Franchise or provided a plan for the remedy of such faults which plan is satisfactory to the Grantor; and (ii) such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the Franchise granted.

(b) In the case of a foreclosure or other judicial sale of the Franchise Property Cable System, or any material part thereof, Grantor may serve notice of termination upon Grantee and the successful bidder at such sale, in which event the Franchise granted and all rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless: (i) Grantor shall have approved the transfer of the Franchise, as and in the manner that this Chapter provides; and (ii) such successful bidder shall have covenanted and agreed with Grantor to assume and be bound by all terms and conditions of the Franchise.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)

If a Grantee fails to perform in a timely manner any obligation required by this Chapter or a Franchise Agreement granted under this Chapter, following notice from the Grantor and, opportunity to be heard by the Council appointed committee and an opportunity to cure such nonperformance in accordance with the provisions of Article 10 or this Chapter, and the Franchise Agreement, Grantor may at its option and in its sole discretion apply any one or more of the following remedies:

(1) Cure the violation and recover the actual costs thereof from the Security Fund established under this Chapter if such violation is not cured within thirty (30) days after prior written notice to the Grantee, and an opportunity for Grantee to be heard, of Grantor’s intention to cure and assess the Security Fund;

(2) Assess against Grantee liquidated damages in an amount or amounts set forth in the Franchise Agreement for any such violation(s) if such violation is not cured, or if Grantee has not commenced a cure, on a schedule acceptable to Grantor, within thirty (30) days after written notice to the Grantee of Grantor’s intention to assess such liquidated damages. 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 reasonable and actual attorney’s fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise agreement of this chapter.

(3) For violations of consumer service regulations of this chapter or the franchise agreement which have materially degraded the quality of service, grantor may order and direct grantee to issue rebates or credits to subscribers, in an amount to be determined by grantor to be reasonably related to the nature and extent of the degradation in service and measured by the period of the degradation, to provide monetary relief substantially equal to the reduced quality of cable service resulting from grantee’s failure to perform.

(§ 1, Ord. 1054-98 C-M, eff. July 9, 1998)