(a) If the grantor believes that the grantee has failed to perform any obligation under the franchise agreement or this chapter or has failed to perform in a timely manner, the grantor may make written demand on the grantee that it remedy the alleged failure. The grantor may order the grantee to correct or remedy the 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 the agreement.
(b) Penalties may be assessed by the grantor for purposes including, but not limited to, the following:
(1) Failure of the grantee to pay the grantor sums due under the terms of the franchise.
(2) Reimbursement of costs borne by the grantor to correct franchise violations not corrected by the grantee, after thirty days written notice.
(3) Monetary remedies, penalties or damages assessed against the 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 the 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, the grantor may act to remedy such violation in accordance with the following procedures:
The grantor shall notify the 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 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 days in all other cases. If the 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 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 the grantee has not corrected the same in a satisfactory manner, or has not diligently commenced correction of such violation after notice thereof from the 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 against the grantee, after providing written notice to the grantee and allowing thirty days or such other period of time as is agreed upon by the grantee and the grantor to cure, monetary damages up to five hundred dollars ($500.00) per calendar day or per incident for material system upgrade or 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 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 the grantor's request for information due the grantor within the time limits as specified in this chapter or the franchise agreement pursuant to Section 712.25(g), and the one hundred dollars ($100.00) or five hundred dollars ($500.00) per day amounts for failure to timely pay the franchise fee pursuant to Section 712.18(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 the franchise agreement.
(f) In addition to revocation in accordance with other provisions of the franchise agreement, the grantor may revoke the franchise 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 hours to provide continuous and uninterrupted cable service for the entire franchise area, not subject to force majeure, as set forth in Section 712.30;
(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 days prior to the date of revocation. The grantor shall hear any persons interested in the revocation and, within ninety days after the hearing, shall determine that the franchise is to be revoked and the performance bond forfeited or that the breach at issue is capable of being cured by the grantee. In the latter case, the grantor shall direct the grantee to take appropriate remedial action within the time, in the manner and under the terms and conditions that the grantor determines are reasonable under the circumstances.
(Ord. 97-32. Passed 5-5-97.)