(A) Grounds for termination. The city may terminate or revoke this agreement, and all rights and privileges herein provided, for any of the following reasons.
(1) The provider fails to make timely payments of the franchise fee as required under § 114.51 and does not correct such failure within 60 calendar days after written notice by the city of such failure.
(2) The provider, by act or omission, materially violates a material duty herein set forth in any particular within the provider’s control, and with respect to which redress is not otherwise herein provided. In such event, the city, acting by or through its City Council, may determine, after hearing, that such failure is of a material nature, and thereupon, after written notice giving the provider notice of such determination, the provider, within 60 calendar days of such notice, shall commence efforts to remedy the conditions identified in the notice, and shall have 90 calendar days from the date it receives notice to remedy the conditions.
(3) After the expiration of such 90-day period and failure to correct such conditions, the city may declare the franchise forfeited and this agreement terminated, and thereupon, the provider shall have no further rights or authority hereunder; provided, however, that any such declaration of forfeiture and termination shall be subject to judicial review as provided by law; and provided further, that in the event such failure is of such nature that it cannot be reasonably corrected within the 90-day time period provided above, the city shall provide additional time for the reasonable correction of such alleged failure if the reason for the noncompliance was not the intentional or negligent act or omission of the provider; for an agreement with the incumbent local exchange carrier, they should be allowed to continue operation while the issue is being negotiated in good faith.
(4) The provider becomes insolvent, unable, or unwilling to pay its debts; is adjudged bankrupt; or all or part of its facilities should be sold under an instrument to secure a debt and is not redeemed by the provider within 60 days.
(B) Reserved rights. Nothing contained herein shall be deemed to preclude the provider from pursuing any legal or equitable rights or remedies it may have to challenge the action of the city.
(C) Remedies at law. In the event the provider or the city fails to fulfill any of its respective obligations under this agreement, the city or the provider, whichever the case may be, shall have a breach of contract claim and remedy against the other, in addition to any other remedy provided herein or by law; provided, however, that no remedy that would have the effect of amending the specific provisions of this agreement shall become effective without such action that would be necessary to formally amend the agreement.
(D) Third-party beneficiaries.
(1) The benefits and protection provided by this agreement shall inure solely to the benefit of the city and the provider.
(2) This agreement shall not be deemed to create any right in any person who is not a party and shall not be construed in any respect to be a contract, in whole or in part, for the benefit of any third party (other than the permitted successors and assigns of a party hereto).
(Prior Code, § 13.11.070) (Ord. 13-98, passed 5-20-1998)