156.29 FRANCHISE VIOLATION.
(a) If the Grantor believes that the Grantee has failed to perform any obligation under this Agreement or has failed to perform in a timely manner, the Grantor may make written demand on the Grantee that it remedy the alleged failure. Grantor may order the Grantee to correct or remedy and failure or breach within the time and in the manner and on the terms and conditions that the Grantor may establish. If the alleged failure is denied or not remedied to the reasonable satisfaction of the Grantor, the Grantor may follow any procedures set forth in this Agreement.
(b) Penalties may be assessed by Grantor for purposes including and not limited to, the following:
(1) Failure of Grantee to pay Grantor sums due under the terms of this Franchise.
(2) Reimbursement of costs borne by the Grantor to correct Franchise violations not corrected by Grantee, after thirty (30) days written notice.
(3) Monetary remedies, penalties, or damages assessed against Grantee due to default or breach of Franchise requirements.
(c) Upon written notice and agreement of the Grantor and the Grantee, an informal meeting may be held at any time to review any alleged failure.
(d) If Grantee fails to perform in a timely manner any material obligation required by this chapter or a Franchise granted hereunder, following notice from the Grantor and an opportunity to cure such nonperformance, Grantor may act to remedy such violation in accordance with the following procedures:
Grantor shall notify Grantee of any alleged material violation in writing by Personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than ten (10) days in the case of the 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 either to correct the violation within the time prescribed or to commence correction of the violation within the time prescribed and thereafter diligently pursue correction of such violation, the Grantor shall then give written notice of not less than twenty (20) days of a public hearing to be held before the Council. Said notice shall specify the violations alleged to have occurred. At the public hearing, the Council shall hear and consider relevant evidence and thereafter render findings and its decision. In the event that the Council finds that a material violation exists and that Grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from Grantor and is not diligently proceeding to fully remedy such violation, the Council may revoke the Franchise or impose any other penalty permitted by the Franchise agreement and any other legal or equitable remedy available under the Franchise or applicable law.
(e) The Grantor may assess, after providing written notice to Grantee and allowing thirty (30) days or such other amount of time as is agreed between Grantee and Grantor to cure, against the Grantee monetary damages up to five hundred dollars ($500.00) per calendar day or per incident for material system upgrade/construction delays, and up to two hundred dollars ($200.00) per calendar day or per incident for any other material breaches; provided that all violations of a similar nature occurring at the same time shall be considered as one (1) incident. The Grantor may have recourse to the Performance bond for payment of such damages including the fifty dollar ($50.00) per day penalty for failure to respond to Grantor's request for information due Grantor within the time limits as specified in this chapter or the Franchise Agreement pursuant to Section156.25(g) and the one hundred dollar ($100.00) or five hundred dollar ($500.00) per day amounts for failure to timely pay the Franchise Fee pursuant to Section156.18(e), which shall not be subject to but in addition to the remedies set forth in this section. The assessment of any monetary damages shall not constitute a waiver by the Grantor of any other right or remedy it may have under the Franchise or applicable law including its right to recover from the Grantee any additional damages, losses, costs and expenses, including attorney's and/or consultant fees that are incurred by the Grantor by reason of the breach of this Agreement.
(f) In addition to revocation in accordance with other provisions of this Agreement, Grantor may revoke this Agreement and rescind all rights and privileges associated with the Franchise Agreement in the following circumstances, each of which represents a material breach of the Franchise Agreement:
(1) If the Grantee fails to perform any of its material obligations under the Franchise Agreement or under any ordinances, documents or other terms and provisions entered into by and between the Grantor and the Grantee;
(2) If there is a pattern of noncompliance with the Grantor's consumer service standards:
(3) If the Grantee willfully and deliberately fails for more than twenty-four (24) hours to provide continuous and uninterrupted Cable Service for the entire Franchise area, not subject to force majeure as defined under Section herein;
(4) If the Grantee practices any fraud or deceit upon the Grantor or any Subscriber; or
(5) If the Grantee becomes insolvent, or if there is an order for relief in favor of the Grantee in a bankruptcy proceeding.
Written notice of intent to consider revocation under this subsection shall be served on the Grantee at least thirty (30) days prior to the date of revocation. The Grantor shall hear any persons interested in the revocation, and within ninety (90) days after the hearing shall determine whether to revoke the Franchise and declare that the Franchise is revoked and the performance bond forfeited; or that the breach at issue is capable of being cured by the Grantee, direct the Grantee to take appropriate remedial action within the time and in the manner and under the terms and conditions that the Grantor determines are reasonable under the circumstances.
(Ord. 1997-25. Passed 12-9-97.)