§ 26-133. Penalties procedure.

(a)

Whenever grantor has reason to believe that a grantee has violated any material provision of a franchise agreement or this article, grantor shall first notify the grantee of the material violation and demand correction within a reasonable time, which shall not be less than twenty (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 thirty (30) days in all other cases. If a grantee fails to correct the violation within the time prescribed, or if a grantee is unable to correct the 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 twenty (20) days for public comment. Said notice shall indicate with reasonable specificity the violation alleged to have occurred.

(b)

At the public hearing, the council 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 council.

(c)

In the event the council 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 council 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 council may impose liquidated damages to be collected from the security fund, as set out in the franchise agreement.

(e)

If the council elects to assess liquidated damages, then such election shall constitute grantor's exclusive remedy for a period of sixty (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 security fund 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 security fund 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 article, or authorized by law, and no action, proceeding, or exercise of a right with respect to such security fund 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 under Division 8.

(i)

Grantee acknowledges that non-compliance with the provisions of the franchise agreement and the this article will harm subscribers and the city and the amounts of actual damages will be difficult or impossible to ascertain. The city may therefore assess the following liquidated damages against grantee for unexcused non-compliance with the requirements of the franchise agreement and this article. 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 the article and the franchise agreement: two hundred fifty dollars ($250.00)/calendar day for each day the violation continues;

(2)

For failure to materially comply with requirements for public access channels: two hundred fifty dollars ($250.00) calendar day for each day the violation continues;

(3)

For failure to comply with the material requirements of the I-Net provisions of the article/franchise agreement: two hundred fifty dollars ($250.00)/calendar day for each day the violation continues;

(4)

For repeated, willful or continuing failure to submit reports, maintain records, provide documents or information: two hundred fifty dollars ($250.00)/calendar day for each day the violation continues;

(5)

For failure to comply with the material requirements of the customer service standards: two hundred fifty dollars ($250.00)/calendar day for each day the violation continues;

(6)

For failure to comply with the transfer provisions: two hundred fifty dollars ($250.00)/calendar day for each day the violation continues;

(7)

For violation of other material provisions of the article and the franchise agreement: up to two hundred fifty dollars ($250.00)/calendar day for each day the violation continues.

(Ord. No. 2002-78, § 1, 12-3-02)