§ 78-305. Franchise violations.

(a)

In addition to any other remedies available at law or equity, the city may apply any one or combination of the following remedies in the event a franchisee violates a provision of this article or a franchise agreement after following the procedures set forth in subsections (d) through (h) below.

(1)

Impose liquidated damages in an amount of not less than $250.00 per day or part thereof per individual violation, or as otherwise expressly provided in this article or in a franchise agreement. Payment of liquidated damages by the franchisee will not relieve the franchisee of its obligation to comply with the franchise agreement and the requirements of this article, provided, however, that cure of the alleged violation and payment of liquidated damages pursuant to this section shall be considered full and final resolution of the alleged violation and may not be considered as an event of noncompliance for such period.

(2)

Revoke the franchise pursuant to the procedures specified in section 78-306 hereof.

(3)

In addition to or instead of any other remedy provided herein, the city may seek equitable relief from any court of competent jurisdiction.

(b)

In determining which remedy or remedies are appropriate, the city shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the city determines are appropriate to the public interest.

(c)

Failure of the city to enforce any requirements of a franchise agreement or this article shall not constitute a waiver of the city's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.

(d)

If the city (or the city administrator or designee with respect to section 78-299 of this article) believes that franchisee has failed to perform any obligation under this article or a franchise agreement or has failed to perform in a timely manner, the city shall notify franchisee in writing, stating with reasonable specificity the nature of the alleged default. Franchisee shall have 30 days from the receipt of such notice to:

(1)

Respond to the city, contesting the city's assertion that a default has occurred, and requesting a meeting in accordance with subsection (e), below; or

(2)

Cure the default (except franchisee shall have 90 days with respect to customer service standards measured on a quarterly basis); or

(3)

Notify the city that franchisee cannot cure the default within the 30 days (or 90 days where applicable), because of the nature of the default. In the event the default cannot be cured within the applicable time frame, franchisee shall promptly take all reasonable steps to cure the default and notify the city in writing and in detail as to the exact steps that will be taken and the projected completion date. In such case, the city shall set a meeting in accordance with subsection (e) below to determine whether additional time beyond the time specified above is indeed needed, and whether franchisee's proposed completion schedule and steps are reasonable.

(e)

If franchisee does not cure the alleged default within the cure period stated above, or by the projected completion date under subsection (d)(3), or denies the default and requests a meeting in accordance with (d)(1), or the city orders a meeting in accordance with subsection (d)(3), the city shall set a meeting to investigate said issues or the existence of the alleged default. The city shall notify franchisee of the meeting in writing and such meeting shall take place no less than 30 days after franchisee's receipt of notice of the meeting. At the meeting, franchisee shall be provided an opportunity to be heard and to present evidence in its defense.

(f)

If, after the meeting, the city determines that the franchisee has corrected the violation or promptly commenced correction of such violation after notice thereof from the city 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.

(g)

If, after the meeting, the city determine that a violation exists and that franchisee has not corrected the same in a satisfactory manner or did not promptly commence and diligently process to correct the violation, the city may:

(1)

Impose penalties and/or liquidated damages in accordance with subsection (a) above and withdraw such amount from the security fund required in this article or a franchise agreement as monetary damages;

(2)

Recommend the revocation of this franchise pursuant to the procedures in section 78-306 below; or

(3)

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

(h)

If the city (or the city administrator or designee in the case of fines assessed in accordance with section 78-299 of this article) elects to assess liquidated damages in accordance with this section 78-305, then such election shall bar the city from instituting revocation proceedings for a period of 120 days. Thereafter, if the franchisee remains in noncompliance with the requirements of this article or a franchise agreement, the city may institute revocation proceedings against the franchisee in accordance with the provisions of section 78-306 below.

(1)

Notwithstanding anything to the contrary, any fines/liquidated damages imposed herein shall be calculated as accruing from the date of written notice to the franchisee of the violation.

(2)

The determination as to whether a violation of this franchise has occurred shall be within the discretion of the city commission, provided that any final determination may be subject to appeal to a court of competent jurisdiction under applicable law.

(Ord. No. 3806-04, § I, 10-25-2004)