§ 114.35  VIOLATIONS, FORFEITURE AND TERMINATION.
   (A)   In addition to all other rights and powers retained by the city under this chapter or otherwise, the city reserves the right to forfeit and terminate the franchise and all rights and privileges of the grantee hereunder in the event of a substantial breach of its terms and conditions. A substantial breach by the grantee shall include, but shall not be limited to the following:
      (1)   Violation of any material provision of the franchise or any material rule, order, regulation or determination of the city made pursuant to the franchise;
      (2)   Attempt to evade any material provision of the franchise or practice any fraud or deceit upon the city or its subscribers;
      (3)   Failure to begin or complete cable system construction or cable system extension as provided under § 114.19;
      (4)   Failure to provide the cable services promised in the grantee’s application if any as incorporated herein by § 114.04;
      (5)   Failure to restore cable service after 96 consecutive hours of interrupted service to the entire cable system, except when approval of such interruption is obtained from the city; or
      (6)   Material misrepresentation of fact in the application for or negotiation of the franchise.
   (B)   The foregoing shall not constitute a major breach if the violation occurs but is without fault of the grantee or occurs as a result of circumstances beyond its control. The grantee shall not be excused by mere economic hardship or by misfeasance or malfeasance of its directors, officers or employees.
   (C)   The city may make a written demand that the grantee comply with any such specific provision, rule, order or determination under or pursuant to the franchise. If the violation by the grantee continues for a period of 30 days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the city may place the issue of the violation of the franchise before the City Council. The city shall cause to be served upon the grantee, at least 20 days prior to the date of such meeting, a written notice of the time, place and purpose of the meeting. Public notice shall be given of the meeting and the issue(s) which the city is to consider.
   (D)   The City Council shall hear and consider the issue(s), provide the grantee with an opportunity to be heard, hear any other person interested therein, and shall determine in its discretion whether or not any violation by the grantee has occurred.
   (E)   If the City Council shall determine the violation by the grantee was the fault of the grantee and was within its control to prevent, the Council may, by resolution:
      (1)   Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages;
      (2)   Commence an action at law for monetary damages or seek other equitable relief, or
      (3)   In the case of a substantial default of a material provision of the franchise, declare that the franchise of the grantee shall be forfeited and terminated unless there is compliance within such period as the Council may fix, such period shall not be less than 60 days, provided no opportunity for compliance need be granted for fraud or misrepresentation.
   (F)   The issue of forfeiture and termination shall automatically be placed upon the Council agenda at the expiration of the time set by it for compliance. The Council then may terminate the franchise forthwith upon finding that the grantee has failed to achieve compliance or may further extend the period, in its discretion.
   (G)   The grantee may appeal such determination to terminate the franchise to an appropriate court of competent jurisdiction which shall have the power to review the city’s decision de novo, and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within 60 days of the issuance of the determination of the city.
(Ord. 1846, passed 12-7-98)