§ 6.5-26. Franchise violations.

(a)

Procedure for remedying franchise violations.

(1)

In the event the county manager, or a designee, determines that the grantee has violated any of the terms of this chapter, the franchise agreement, representations made in the application, transfer, or renewal process, or the rules and regulations as may from time to time be lawfully adopted, the county manager shall serve upon the grantee written notice to correct the violation(s) within the number of days set forth in the notice, which time allowed shall be reasonable in light of the nature of the violation and the remedial work to be completed. In the event that the grantee shall fail to correct the violation(s), make any repair, remove or relocate any part of its system, or otherwise perform its obligations, or fails to take necessary corrective action, the commission may cause the necessary work to be completed or services to be provided or other corrective action to be taken. The grantee shall pay the county the reasonable costs thereof within forty-five (45) days of receipt of an itemized account of the same, including a reasonable charge for the necessary administrative expenses incurred by the county.

(2)

Prior to effecting any remedy, the county manager, or a designee, shall notify the grantee in writing that the cure will be effected by the county and that the grantee may request a hearing before the commission to contest allegations of violation(s), request relief, or provide evidence relating to the violations. The hearing request shall be in writing and shall specifically and in detail specify all reasons and purposes for the hearing and shall toll the time within which the remedy shall be effected, unless the violation causes imminent threat to the safety of persons or the property of others. The county manager, or a designee, shall inform the grantee if no tolling shall be permitted. The commission shall hear the matter within twenty-one (21) days of the date the written request is received by the county manager. The county manager, or a designee, shall provide written notice of the hearing to the grantee. The grantee may appear at the hearing and submit evidence in defense of itself. Any affected person shall also be notified in writing of the hearing. Failure of the grantee to submit evidence or participate in the commission hearing shall constitute a waiver of all rights of objection relating to the alleged violation.

(3)

Where the violation poses an immediate threat to the public health or safety, the violation may be cured by the county without prior notice to the grantee and adherence to the procedure set forth in this section. Where the circumstances permit, the county manager, or a designee, shall provide notice to the grantee.

(4)

No remedy pursuant to this section shall be effected by the county except upon the approval of the commission. Nothing herein, and no action hereunder, shall be deemed a waiver of other remedies available to the county.

(b)

Penalties for noncompliance.

(1)

In addition to the procedures outlined above, by acceptance of a franchise, a grantee understands and agrees with the county that failure to comply with any time and performance requirements as stipulated in the franchise agreement and/or this chapter will result in damage to the county, and that it is and will be impractical to determine the actual amount of such damage in the event of delay or nonperformance; therefore, the parties shall agree to the penalties for noncompliance specified in this chapter or the franchise agreement, but without prejudice to any of the remedies available to the parties hereto, including the grantee's right to appeal the assessment of penalties for noncompliance to a court of competent jurisdiction. The following amounts may be chargeable to the performance security for the following concerns:

a.

Failure to complete system construction or reconstruction in accordance with the franchise agreement, unless the commission specifically approves the delay by motion or resolution due to the occurrence of conditions beyond grantee's control, grantee shall pay five hundred dollars ($500.00) per day for each day, or part thereof, the delinquency continues;

b.

Failure to provide, within thirty (30) days after written request, data, documents, reports, or information reasonably related to the accuracy of the franchise fees, performance of the cable communications system, or technical compliance with this chapter or the grantee's franchise agreement, grantee shall pay fifty dollars ($50.00) per day for each day, or part thereof, that each violation occurs or continues;

c.

Failure to test, analyze and report on the performance of the system as required by the FCC or failure to test, analyze and report on the performance of the system within thirty (30) days following a written request by the county based upon a possible performance deficiency of the system that remains uncorrected during the thirty-day period, grantee shall pay to the county one hundred dollars ($100.00) per day for each day, or part thereof, that such noncompliance continues;

d.

Any unauthorized transfer of the franchise agreement or assignment of control of the grantee. For such violations, grantee shall pay five hundred dollars ($500.00) per day for each day, or part thereof, that the delinquency continues;

e.

Failure to provide in a continuing manner the types of services proposed in the accepted application, unless the commission specifically approves grantee a delay or change or the grantee has obtained modification of its obligation under Section 625 of the Cable Communications Policy Act of 1984, the grantee shall pay to the county five hundred dollars ($500.00) per day for each day, or part thereof, that each noncompliance continues;

f.

Thirty (30) days following adoption of a resolution by the commission determining a failure of grantee to comply with operational, maintenance or technical standards, grantee shall pay to the county five hundred dollars ($500.00) for each day, or part thereof, that such noncompliance continues;

g.

For breach of any service standards, grantee shall pay one hundred dollars ($100.00) per day for each day or part thereof, that such noncompliance continues. A breach shall be interpreted to mean that the county has evidence of repetitive failure to comply with the service standards;

h.

For a breach of any requirement of the franchise agreement not listed above, the grantee shall pay to the county one hundred dollars ($100.00) for each day, or part thereof, that such noncompliance continues.

(2)

If the county manager, following prior reasonable notice to grantee to cure any problem that might result in penalties for noncompliance, concludes that the grantee is in fact liable for penalties for noncompliance pursuant to this section, the county manager shall issue to grantee by certified mail a notice of intention to assess penalties for noncompliance. The notice shall set forth the basis of the assessment, and shall inform the grantee that penalties for noncompliance will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the county commission and the commission rules (a) that the violation has been corrected, or (b) that an extension of time or other relief should be granted. If the grantee desires a hearing before the commission, it shall send a written notice of appeal by certified mail to the county manager within ten (10) days of the date on which the county sent the notice of intention to assess penalties for noncompliance. The hearing on the grantee's appeal shall be within thirty (30) days of the date on which the county sent the notice of intention to assess penalties for noncompliance. After the hearing, if the commission sustains in whole or in part the county manager's assessment of penalties for noncompliance, the county manager may at any time thereafter draw upon the performance security. Unless the commission indicates to the contrary, said penalties for noncompliance shall be assessed beginning with the date on which the county sent the notice of the intention to assess penalties for noncompliance and continuing thereafter until such time as the violation ceases, as determined by the county manager.

(Ord. No. 1994-14, § 26, 10-4-94)