(A) Procedure for remedying franchise violations.
(1) If the city reasonably believes that grantee has failed to perform any obligation under this franchise or has failed to perform in a timely manner, the city shall notify grantee in writing, stating with reasonable specificity the nature of the alleged default. Grantee shall have 30 days from the receipt of such notice to:
(a) Respond to the city, contesting the city's assertion that a default has occurred, and requesting a meeting in accordance with § 13-5-3-13 (A)(2), below;
(b) Cure the default; or,
(c) Notify the city that grantee cannot cure the default within the 30 days because of the nature of the default. In the event the default cannot be cured within 30 days, grantee shall promptly take all reasonable steps to cure the default and notify the city in writing and in detail as to the exact steps that will be taken and the projected completion date. In such case, the city may set a meeting in accordance with § 13-5-3-13(A)(2) below to determine whether additional time beyond the 30 days specified above is indeed needed and whether grantee's proposed completion schedule and steps are reasonable.
(2) If grantee does not cure the alleged default within the cure period stated above, or by the projected completion date under § 13-5-3-13(A)(1), or denies the default and requests a meeting in accordance with § 13-5-3-13(A)(1)(a), or the city orders a meeting in accordance with § 13-5-3-13(A)(1)(c), the city shall set a meeting to investigate said issues or the existence of the alleged default. The city shall notify grantee of the meeting in writing, and such meeting shall take place no less than 30 days after grantee's receipt of notice of the meeting. At the meeting, grantee shall be provided an opportunity to be heard and to present evidence in its defense.
(3) If after the meeting the city determines that a default exists, the city shall order grantee to correct or remedy the default or breach within 15 days or within such other reasonable timeframe as the city shall determine. In the event grantee does not cure within such time to the city's reasonable satisfaction, the city may:
(a) Withdraw an amount from the letter of credit as monetary damages;
(b) Recommend the revocation of this franchise pursuant to the procedures in § 13-5-3-13(B); or,
(c) Recommend any other legal or equitable remedy available under this franchise or any applicable law.
(4) The determination as to whether a violation of this franchise has occurred shall be within the discretion of the city, provided that any such final determination may be subject to appeal to a court of competent jurisdiction under applicable law.
(B) Revocation.
(1) In addition to revocation in accordance with other provisions of this franchise, the city may revoke this franchise and rescind all rights and privileges associated with this franchise in the following circumstances, each of which represents a material breach of this franchise:
(a) If grantee fails to perform any material obligation under this franchise or under any other agreement, ordinance or document regarding the city and grantee; or
(b) If grantee willfully fails for more than 48 hours to provide continuous and uninterrupted cable service; or
(c) If grantee attempts to evade any material provision of this franchise or to practice any fraud or deceit upon the city or subscribers; or
(d) If grantee becomes insolvent, or if there is an assignment for the benefit of grantee's creditors; or
(e) If grantee makes a material misrepresentation of fact in the application for or negotiation of this franchise.
(2) Following the procedures set forth in § 13-5-3-13(A) and prior to forfeiture or termination of the franchise, the city shall give written notice to grantee of its intent to revoke the franchise and set a date for a revocation proceeding. The notice shall set forth the exact nature of the noncompliance.
(3) Any proceeding under the subsection above shall be conducted by the City Council and open to the public. Grantee shall be afforded at least 45 days' prior written notice of such proceeding.
(a) At such proceeding grantee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce evidence, and to question witnesses. A complete verbatim record and transcript shall be made of such proceeding and the cost shall be shared equally between the parties. The City Council shall hear any persons interested in the revocation and shall allow grantee, in particular, an opportunity to state its position on the matter.
(b) Within 90 days after the hearing, the City Council shall determine whether to revoke the franchise and declare that the franchise is revoked and the letter of credit forfeited; or if the breach at issue is capable of being cured by grantee, direct grantee to take appropriate remedial action within the time and in the manner and on the terms and conditions that the City Council determines are reasonable under the circumstances. If the city determines that the franchise is to be revoked, the city shall set forth the reasons for such a decision and shall transmit a copy of the decision to grantee. Grantee shall be bound by the city's decision to revoke the franchise unless it appeals the decision to a court of competent jurisdiction within 15 days of the date of the decision.
(c) Grantee shall be entitled to such relief as the court may deem appropriate.
(d) The City Council may at its sole discretion take any lawful action which it deems appropriate to enforce the city's rights under the franchise in lieu of revocation of the franchise.
(C) Procedures in the event of termination or revocation.
(1) If this franchise expires without renewal after completion of all processes available under this franchise and federal law or is lawfully terminated or revoked, the city shall have the right to require grantee to remove all or any portion of the system utilized exclusively for the provision of cable services from all right-of-way and public property within the city, and may, subject to applicable law:
(a) Allow grantee to maintain and operate its cable system on a month-to-month basis or short-term extension of this franchise for not less than six months, unless a sale of the cable system can be closed sooner or grantee demonstrates to the city's satisfaction that it needs additional time to complete the sale; or
(b) Purchase grantee's cable system in accordance with the procedures set forth in § 13-5-3-13(D), below.
(2) In the event that a sale has not been completed in accordance with § 13-5-3-13(A)(1) and/or (A)(2) above, the city may order the removal of the above- ground cable system facilities and such underground facilities from the city at grantee's sole expense within a reasonable period of time as determined by the city. In removing its plant, structures and equipment, grantee shall refill, at its own expense, any excavation that is made by it and shall leave all right-of-way, public places and private property in as good condition as that prevailing prior to grantee's removal of its equipment without affecting the electrical or telephone cable wires or attachments. The indemnification and insurance provisions and the letter of credit shall remain in full force and effect during the period of removal, and grantee shall not be entitled to and agrees not to request compensation of any sort therefor.
(3) If grantee fails to complete any removal required by § 13-5-3-13(C)(2) to the city's satisfaction, after written notice to grantee the city may cause the work to be done, and grantee shall reimburse the city for the costs incurred within 30 days after receipt of an itemized list of the costs, or the city may recover the costs through the letter of credit provided by grantee.
(4) The city may seek legal and equitable relief to enforce the provisions of this franchise.
(D) Purchase of cable system.
(1) If at any time this franchise is revoked, terminated, or not renewed upon expiration in accordance with the provisions of federal law, the city shall have the option to purchase the cable system.
(2) The city may at any time thereafter offer in writing to purchase grantee's cable system. Grantee shall have 30 days from receipt of a written offer from the city within which to accept or reject the offer.
(3) In any case where the city elects to purchase the cable system, the purchase shall be closed within 120 days of the date of the city's audit of a current profit and loss statement of grantee. The city shall pay for the cable system in cash or certified funds, and grantee shall deliver appropriate bills of sale and other instruments of conveyance.
(4) For the purposes of this subsection, the price for the cable system shall be determined as follows:
(a) In the case of the expiration of the franchise without renewal, at fair market value determined on the basis of grantee's cable system valued as a going concern, but with no value allocated to the franchise itself. In order to obtain the fair market value, this valuation shall be reduced by the amount of any lien, encumbrance, or other obligation of grantee which the city would assume.
(b) In the case of revocation for cause, the equitable price of grantee's cable system.
(E) Receivership and foreclosure.
(1) At the option of the city, subject to applicable law, this franchise may be revoked 120 days after the appointment of a receiver or trustee to take over and conduct the business of grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless:
(a) The receivership or trusteeship is vacated within 120 days of appointment; or
(b) The receivers or trustees have, within 120 days after their election or appointment, fully compiled with all the terms and provisions of this franchise and have remedied all defaults under the franchise. Additionally, the receivers or trustees shall have executed an agreement duly approved by the court having jurisdiction by which the receivers or trustees assume and agree to be bound by each and every term, provision and limitation of this franchise.
(2) If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of grantee, the city may serve notice of revocation on grantee and to the purchaser at the sale, and the rights and privileges of grantee under this franchise shall be revoked 30 days after service of such notice, unless:
(a) The city has approved the transfer of the franchise, in accordance with the procedures set forth in this franchise and as provided by law; and
(b) The purchaser has covenanted and agreed with the city to assume and be bound by all of the terms and conditions of this franchise.
(F) No monetary recourse against the city. Grantee shall not have any monetary recourse against the city or its officers, officials, boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision or requirement of this franchise or the enforcement thereof, in accordance with the provisions of applicable federal, state and local law. The rights of the city under this franchise are in addition to and shall not be read to limit any immunities the city may enjoy under federal, state or local law.
(G) Alternative remedies. No provision of this franchise shall be deemed to bar the right of the city to seek or obtain judicial relief from a violation of any provision of the franchise or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this franchise nor the exercise thereof shall be deemed to bar or otherwise limit the right of the city to recover monetary damages for such violations by grantee, or to seek and obtain judicial enforcement of grantee's obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity.
(H) Assessment of monetary damages.
(1) The city may assess against grantee monetary damages:
(a) Up to $500 per day for general construction delays, violations of PEG obligations or payment obligations;
(b) Up to $250 per day for any other material breaches, or
(c) Up to $100 per day for defaults, and withdraw the assessment from the letter of credit or collect the assessment as specified in this franchise.
(2) Damages pursuant to this section shall accrue for a period not to exceed 120 days per violation proceeding. To assess any amount from the letter of credit, the city shall follow the procedures for withdrawals from the letter of credit set forth in the letter of credit and in this franchise. Such damages shall accrue beginning 30 days following grantee's receipt of the notice required by § 13-5-3-13(A)(1), or such later date if approved by the city in its sole discretion, but may not be assessed until after the procedures in § 13-5-3-13(A) have been completed.
(3) The assessment does not constitute a waiver by the city of any other right or remedy it may have under the franchise or applicable law, including its right to recover from grantee any additional damages, losses, costs and expenses that are incurred by the city by reason of the breach of this franchise.
(I) Effect of abandonment. If grantee abandons its cable system during the franchise term or fails to operate its cable system in accordance with its duty to provide continuous service, the city, at its option, may operate the cable system; designate another entity to operate the cable system temporarily until grantee restores service under conditions acceptable to the city, or until the franchise is revoked and a new franchisee is selected by the city; or obtain an injunction requiring grantee to continue operations. If the city is required to operate or designate another entity to operate the cable system, grantee shall reimburse the city or its designee for all reasonable costs, expenses and damages incurred.
(J) What constitutes abandonment. The city shall be entitled to exercise its options in § 13-5-3-13(I) if:
(1) The grantee fails to provide cable service in accordance with this franchise over a substantial portion of the franchise area for four consecutive days, unless the city authorizes a longer interruption of service; or
(2) The grantee, for any period, willfully and without cause refuses to provide cable service in accordance with this franchise.