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(A) Whenever the grantor has reason to believe that a grantee has violated any material provision of a franchise agreement or this chapter, the grantor shall first notify the grantee of the alleged material violation and demand correction within a reasonable time, which shall not be less than 20 days in the case of the failure of a grantee to pay any sum or other amount due the grantor under a franchise agreement, and 45 days in all other cases. If a grantee fails to correct the alleged violation within 45 days, or if a grantee is unable to correct the alleged violation and fails to commence corrective action within the time prescribed and to diligently remedy such violation thereafter, the grantee shall then be given written notice of not less than 45 days for public comment. Said notice shall indicate with reasonable specificity the violation alleged to have occurred.
(B) At the public hearing, the Board shall hear and consider all relevant evidence and thereafter render findings and a decision based upon the evidence. Any such hearing must, at a minimum, provide the grantee a full and fair opportunity to be heard by the Board.
(C) In the event the Board finds that a grantee has corrected the violation or promptly commenced correction of such violation after notice thereof from grantor and is diligently proceeding to fully remedy the violation, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.
(D) In the event the Board finds that a violation exists and that a grantee has not corrected the same in a satisfactory manner or did not promptly commence and diligently proceed to correct the violation, the Board may impose liquidated damages to be collected from the performance bond, as set out in the franchise agreement.
(E) If the Board elects to assess liquidated damages, then such election shall constitute the grantor’s exclusive remedy for a period of 60 days. Thereafter, if a grantee remains in non-compliance, the grantor may pursue any other available remedy.
(F) In the event that a franchise is cancelled or terminated by reason of the default of a grantee, the performance bond deposited pursuant to a franchise agreement shall remain in effect and available to the grantor until all pending claims or penalties are resolved or settled, after which point any remaining amounts in the performance bond shall revert to the grantee.
(G) The rights reserved to grantor with respect to the security fund are in addition to all other rights of grantor, whether reserved by a franchise agreement, this chapter or authorized by law, and no action, proceeding or exercise of a right with respect to such performance bond shall affect any other right grantor may have.
(H) In instances of repeated violations, whether remedied or not, the grantor shall serve special notice outlining additional remediation requirements. Failure to cure, as measured by repeated instances of the same violation, is evidence of an evasive practice and may lead to revocation.
(I) The grantee acknowledges that non-compliance with the provisions of the franchise agreement and this chapter will harm subscribers and the county and the amounts of actual damages will be difficult or impossible to ascertain. The county may therefore assess the following liquidated damages against grantee for unexcused non-compliance with the requirements of the franchise agreement and master ordinance. The grantee acknowledges that the liquidated damages set forth below are a reasonable approximation of actual damages and that this provision is intended to provide compensation and is not a penalty. All damages provided shall be cumulative, unless expressly stated:
(1) For failure to materially complete construction or extend service in accordance with this chapter and the franchise agreement: $50/calendar day for each day the violation continues;
(2) For failure to materially comply with requirements for access channels: $50/calendar day for each day the violation continues;
(3) For failure to comply with the material requirements of the I-Net provisions of this chapter/franchise agreement: $50/calendar day for each day the violation continues;
(4) For repeated, willful or continuing failure to submit reports, maintain records, provide documents or information: $50/calendar day for each day the violation continues;
(5) For failure to comply with the material requirements of the customer service standards: $250/calendar day for each day the violation continues;
(6) For failure to comply with the transfer provisions: $50/calendar day for each day the violation continues; and
(7) For violation of other material provisions of this chapter and the franchise agreement: up to $50/day for each day the violation continues.
(J) For the purposes of calculating the amount of liquidated damages, time periods shall be tolled for such time as the grantee is found to be diligently working to remedy such violation.
(Ord. passed 12-19-2005)