§ 21-46. Forfeiture and termination.

(a)

Franchise may be terminated for material breach of terms and conditions. In addition to all other rights and powers retained by the city, the city reserves the right to terminate the franchise and all rights and privileges of the grantee in the event of a material breach of its terms and conditions. Material provisions shall include all labeled as such and any other, which, under all the facts and circumstances indicated, is a significant provision of the franchise or this article. A material breach by a grantee may include, but shall not be limited to, the following:

(1)

Violation of any material and applicable provision of this article or the franchise or any other material rule, order, regulation or determination of the city made pursuant to a franchise;

(2)

Attempt to evade any material and applicable provisions of this article and/or the franchise or practice any fraud or deceit upon the city or subscribers;

(3)

Failure to begin or complete cable system construction or reconstruction as provided under the franchise;

(4)

Failure to maintain insurance, bonds and the letter of credit required by the applicable provisions of this article or the franchise;

(5)

Failure to restore cable service after 48 consecutive hours of interrupted cable service, except when there is just cause and when approval of such interruption is obtained from the city;

(6)

Substantial failure to provide the financial information required by this article and/or the franchise;

(7)

Substantial failure to satisfy the requirements regarding cable system characteristics or repeated failure to meet the technical performance standards specified in the franchise;

(8)

Abandonment of the cable system in whole or material part without the prior written consent of the city;

(9)

Substantial failure to supply the access channels and other support and any related services, equipment and facilities as required in the franchise;

(10)

Substantial and repeated failure to comply with the customer service standards and requirements set forth in this article and the franchise;

(11)

Any material written misrepresentation, intentionally made by or on behalf of a grantee in its proposal to obtain a franchise or in connection with the negotiation or renegotiating of the franchise or any amendment or other modification to a franchise, to the extent that any such misrepresentation was relied upon by the city;

(12)

The grantee's becoming insolvent, unable or unwilling to pay its debts, or upon listing of an order for relief in favor of the grantee in a bankruptcy proceeding to the extent such insolvency, failure to pay debts or bankruptcy materially interferes with the operation of the cable system in service area; and/or

(13)

At any time where a pattern of similar actions by a grantee has led to the repeated assessment of liquidated damages for the same.

(b)

Violations that occur which are not the fault of the grantee shall not constitute a material breach. The provisions of subsection (a) of this section shall not constitute a material breach if the violation occurs but is without fault of the grantee or occurs as a result of circumstance beyond its control. A grantee shall not be excused by mere economic hardship nor any misfeasance or malfeasance of its shareholders, partners, directors, officers or employees.

(c)

Procedures outlined leading to possible termination of franchise. The city shall make a written demand that a grantee comply with any provision, rule, order or determination under or pursuant to this article or the franchise. The demand shall set forth the exact nature of the alleged noncompliance. If the violation, breach, failure, refusal or negligence by a grantee continues for a period of 30 days following such written demand without written proof that corrective action has been taken or is being actively and expeditiously pursued, and the violation is of a material franchise provision as detailed, in part, in subsection (a) of this section, the city may place the issue of termination of the franchise before the city council. The city shall cause to be served upon the grantee, at least 20 days prior to the day of such city council meeting, a written notice of intent to request such termination and the time and place of the meeting. Public notice shall be given of the meeting and the issue which the city council is to consider.

(d)

City council shall hear and consider issues and determine if a violation has occurred. The city council shall:

(1)

Hear and consider the issue of whether a material violation of this article or the franchise has occurred;

(2)

Hear any person interested therein, including the grantee; and

(3)

Determine, in its discretion, whether or not any such material violation by the grantee has occurred.

Any hearing by the city which concerns the assessment of substantial penalties or liquidated damages against a grantee, or the revocation of a franchise, will be conducted according to the state Administrative Procedures Act, V.T.C.A., Government Code § 2001.001 et seq. Specifically, the grantee will be provided with substantial due process, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the testimony of other persons as permitted by law and to question witnesses. A complete verbatim record and transcript shall be made of such proceeding and the cost of such record and transcript shall be borne by the grantee.

(e)

City council may declare franchise terminated if compliance does not occur within specified period. If the city council shall determine the material violation by a grantee was the fault of the grantee and within its control, the city council may, by ordinance, declare that the franchise of the grantee be terminated, unless there is compliance within such period as the city council may fix. Such decision to terminate a franchise shall be made in writing and transmitted to the grantee within five days of the city council's action.

(f)

Right to appeal. If a grantee is adversely affected by a decision of the city, it may appeal the action within 60 days of the city council's action to any court of competent jurisdiction. For the purposes of any action occurring in accordance with subsections (d) and (e) of this section, the parties stipulate that the record of the administrative proceeding and the decision of the city shall constitute the entire factual record.

(Ord. No. 8113, § 1(16), 10-23-97)