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(a) Procedure for Remedying Franchise Violations.

(1) If the Grantor believes that the Grantee has failed to perform any obligation under this franchise or has failed to perform in a timely manner, the Grantor shall notify the Grantee in writing, stating with reasonable specificity the nature of the alleged default. The Grantee shall have thirty (30) days from the receipt of such notice to:

a. Respond to the Grantor, contesting the Grantor’s assertion that a default has occurred;

b. Cure the default; or

c. Notify the Grantor that the Grantee cannot cure the default within the thirty (30) days, because of the nature of the default. In the event the default cannot be cured within thirty (30) days in accordance with terms of this franchise, the Grantee shall promptly take all reasonable steps to cure the default and notify the Grantor in writing and in detail as to the exact steps that will be taken and the projected completion date.

(2) Upon five (5) business days prior written notice, either the Grantor or the Grantee may call an informal meeting to discuss the alleged default.

(3) If the Grantee fails to respond to the notice described in Subparagraph (1) above or fails to cure the alleged default within the cure period stated above or by the projected completion date under Subparagraph (1)c, the Grantor shall set a public hearing to investigate said issues or the existence of the alleged default. The Grantor shall notify the Grantee of the hearing in writing and such hearing shall take place no less than thirty (30) days after the Grantee’s receipt of notice of the hearing. At the hearing, the Grantee shall be provided an opportunity to be heard and to present evidence in its defense. The determination as to whether a default or a material breach of this franchise has occurred shall be within the Grantor’s sole discretion with respect to Subsection (b) below, in accordance with law, provided that any final determination may be subject to appeal to a court of competent jurisdiction under applicable law.

(4) If, after the public hearing, the Grantor determines that a default still exists, the Grantor shall order the Grantee to correct or remedy the default or breach within fifteen (15) days or within such other reasonable timeframe as the Grantor shall determine. In the event the Grantee does not cure within such time to the Grantor’s reasonable satisfaction, the Grantor may:

a. Proceed against the security provided in Section 5.4 of this Article;

b. In the case of a substantial default of a material provision of this franchise, revoke this franchise in accordance with Subsection 5-14(c) of this Article; or

c. Pursue any other legal or equitable remedy available under this franchise or any applicable law.

(b) Assessment of Monetary Damages.

(1) Upon completion of the procedures set forth in Subsection (a) above, and from the date of said completion, the Grantor may assess against the Grantee monetary damages up to two hundred dollars ($200.00) per day for material failure to timely complete the cable system upgrade, and one hundred dollars ($100.00) per day for any other material breach of this franchise. Subject to the completion of the procedures set forth in Section 5-14(a) above, the Grantee shall pay any such damages assessment within forty-five (45) days of written demand by the Grantor. The Grantor may take such action as necessary to enforce this provision.

(2) The assessment does 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 that are incurred by the Grantor by reason of the breach of this franchise.

(c) Revocation.

(1) In addition to revocation in accordance with other provisions of this franchise, the Grantor may revoke this franchise and rescind all rights and privileges associated with this franchise in the following circumstances, each of which represents a material breach of this franchise:

a. If the Grantee substantially fails to perform any material obligations under this franchise, and the procedures for establishing a default under Subsection (a) above have been followed and completed, and the Grantor has determined that a default has occurred;

b. If the Grantee willfully fails for more than ninety-six (96) consecutive hours to provide continuous and uninterrupted cable service, subject to the provisions of Subsection 5-4(f) of this Article regarding forces majeure, unless the Grantor specifically, and in writing, authorizes a longer interruption service;

c. If the Grantee practices any fraud or deceit upon the Grantor; or

d. If the Grantee becomes insolvent, or if there is an order for relief in favor of the Grantee in a bankruptcy proceeding.

(2) The Grantor shall provide the Grantee written notice of its intent to consider revocation under this Subsection at least ninety (90) days prior to the date of the hearing in accordance with subparagraph (3), below. The Grantee may object in writing to the Grantor, stating its reasons for its objections.

(3) The Grantor shall hear any persons interested in the revocation, and shall allow the Grantee, in particular, an opportunity to state its position on the matter, subpoena witnesses on its behalf, and cross-examine the Grantor witnesses and other persons presenting testimony. The clerk of the Grantor shall have the power to administer oaths and issue subpoenas to require the presence of persons and the production of papers, books and records necessary to the determination of the hearing.

(4) Within ninety (90) days after the hearing, the Grantor shall determine whether to revoke the franchise and declare that the franchise is revoked; or, if 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 on the terms and conditions that the Grantor determines are reasonable under the circumstances. The Grantee may appeal such determination to an appropriate court, in accordance with and within the time provided by applicable law. The Grantor may, at its sole discretion, take any lawful action, which it deems appropriate to enforce the Grantor’s rights under the franchise in lieu of revocation of the franchise.

(d) Procedures in the Event of Termination or Revocation.

(1) If this franchise expires without renewal and is not extended, or is otherwise lawfully terminated or revoked, the Grantor may, subject to applicable law:

a. Allow the Grantee to maintain and operate its cable system on a month-to-month or short-term extension of this franchise for not less than six (6) months, unless a sale of the cable system can be closed sooner or the Grantee demonstrates to the Grantor’s satisfaction that it needs additional time to complete the sale; provided, however, the Grantee’s continued operation of the cable system during the six-month period, or such other period as the parties may agree, shall not be deemed a waiver or extinguishment of any rights of either the Grantor or the Grantee; or

b. Purchase the Grantee’s cable system in accordance with the procedures set forth in Subsection 5-14(e) below.

(2) In the event that a sale has not been completed in accordance with Subparagraphs (1)a or (1)b, the Grantor may order the removal of the above-ground cable system facilities and such underground facilities as required by the Grantor in order to achieve reasonable engineering or street use purposes, within the franchise area at the Grantee’s sole expense within a reasonable period of time as determined by the Grantor. In removing its plant, structures and equipment, the Grantee shall refill, at its own expense, any excavation that is made by it and shall leave all streets and private property in as good condition as that prevailing prior to the Grantee’s removal of its equipment without affecting the electrical or telephone cable wires or attachments. The indemnification and insurance provisions and the security provided in this franchise shall remain in full force and effect during the period of removal.

(3) If the Grantee fails to complete any removal required by subparagraph (2) above, after the date of the written notice and to the satisfaction of the Grantor, after thirty (30) days’ notice to the Grantee, the Grantor may cause the work to be done and the Grantee shall reimburse the Grantor for the reasonable costs incurred within thirty (30) days after receipt of an itemized list of the costs incurred by the Grantor. If the Grantee does not reimburse the Grantor within forty-five (45) days after presentation of the itemized list of costs, the Grantor may recover the costs through any security provided pursuant to Section 5.4 of this franchise.

(4) The Grantor may seek legal and equitable relief to enforce the provisions of this franchise.

(e) Purchase of Cable System.

(1) If at any time this franchise is revoked, terminated or not renewed upon expiration in accordance with the provisions of federal law, and the Grantor either lawfully acquires ownership of the cable system or by its actions lawfully effects the transfer of ownership of the cable system to another party, any such acquisition shall be at the price determined pursuant to 47 U.S.C. § 547, as may from time to time be amended.

(2) The Grantor may, at any time, offer in writing to purchase the Grantee’s cable system. The Grantee shall have thirty (30) days from receipt of a written offer from the Grantor within which to accept or reject the offer.

(3) In any case where the Grantor elects to purchase the cable system, the purchase shall be closed within sixty (60) days of the date of the Grantor’s audit of a current profit-and-loss statement of the Grantee.

(f) Receivership and Foreclosure.

(1) At the option of the Grantor, subject to applicable law, this franchise may be revoked one hundred and twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of the Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless:

a. The receivership or trusteeship is vacated within one hundred and twenty (120) days of appointment; or

b. The receivers or trustees have, within one hundred and twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this franchise, and have remedied all defaults under the franchise. Additionally, the receivers or trustees shall have executed an agreement duly approved by the court having jurisdiction, by which the receivers or trustees assume and agree to be bound by each and every term, provision and limitation of this franchise.

(2) If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of the Grantee, the Grantor may serve notice of revocation on the Grantee and to the purchaser at the sale, and the rights and privileges of the Grantee under this franchise shall be revoked thirty (30) days after service of such notice, unless:

a. The Grantor has approved the transfer of the franchise, in accordance with the procedures set forth in this franchise and as provided by law; and

b. The purchaser has covenanted and agreed with the Grantor to assume and be bound by all of the terms and conditions of this franchise.

(g) No Monetary Recourse Against The Grantor. The Grantee shall not have any monetary recourse against the Grantor or its officials, boards, commissions or employees for any loss, costs, expenses or damages arising out of any provision or requirement of this franchise or the enforcement thereof, in accordance with the provisions of federal law.

(h) Nonenforcement by Grantor. The Grantee is not relieved of its obligation to comply with any of the provisions of this franchise by reason of any failure of the Grantor to enforce prompt compliance. The Grantee’s forbearance or failure to enforce any provision of this franchise shall not serve as a basis to stop any subsequent enforcement. (Ord. 731 § 1, 2004)