Sec. 4.01. Material Breach of Franchise. In addition to all rights and powers of the City by virtue of this franchise or otherwise, the City reserves as an additional and as a separate and distinct power the right to take any of the actions described in Section 4.02 in accordance with the procedures specified therein if any of the following events occur or for any of the following reasons:

A.

Grantee, by act or omission, violates any material term, condition, or provision of this franchise;

B.

Grantee knowingly or willingly attempts to evade any material provision of this Ordinance; or

C.

Grantee attempts to or does practice any fraud or deceit in its conduct or relations under this franchise with the City, customers or potential customers.

Sec. 4.02. Notice of Default: Opportunity to Remedy.

A.

Notice of Default. The City Council shall exercise the rights provided in Section 4.02(B) hereof in accordance with the procedures set forth below:

1.

The City shall notify Grantee, in writing, of an alleged failure to comply with a material provision of this Ordinance, which notice shall specify the alleged failure with reasonable particularity. Grantee shall, within thirty (30) days after receipt of such notice or such longer period of time as the City may specify in such notice, either remedy such alleged failure or, in a written response to the City, either present facts and arguments in refutation or excuse of such alleged failure or state that such alleged failure will be remedied and set forth the method and time schedule for accomplishing such remedy.

2.

The City shall determine (i) whether a failure to comply with a material provision has occurred; (ii) whether such failure is excusable; and (iii) whether such failure has been remedied or will be remedied by the Grantee. The Grantee shall make available to the City, if requested, any records, documents or other information necessary to make the determination.

3.

If the City determines that a failure to comply with a material provision has occurred and that such failure is not excusable and has not been or will not be remedied by the Grantee in a manner and in accordance with a schedule reasonably satisfactory to the City, then the City may take any actions provided in Section 4.02(B) thereof, provided that if the City acts on its own motion it shall follow the procedural steps set forth in Section 4.02 (A, 1-3) hereof.

B.

City Council Action in Event of Breach. In the event that grounds exist which give the City reason to believe that the Grantee has failed to comply with a material provision of this Ordinance, as provided in Section 4.01 hereof, then, in accordance with the procedures provided in Section 4.02(A) hereof, the City Council may, at any time during the term of this Ordinance, to the extent lawful: (i) Seek monetary damages from the Grantee as compensation for such material breach; and/or (ii) in the event that Grantee does not cure the breach of the franchise agreement, or the City Council does not elect to seek monetary damages from Grantee or Grantee does not agree to pay such damages, then, as an alternative to taking the action referred to above, the City Council may revoke the franchise granted pursuant to this Ordinance by termination of this Ordinance.

Sec. 4.03. Liquidated Damages. In addition to any other remedies provided herein, liquidated damages for violations of this franchise are set forth below. Such sums of money shall be considered and treated not as a penalty, but as liquidated damages due the City by Grantee by reason of inconvenience to the public and because of public works supervision and maintenance and other City administrative time and involvement which resulted in the expenditure of public funds due to Grantee's failure to comply with certain provisions in this franchise. If as a result of any acts or omissions by the Grantee pursuant to the franchise and, after notice and opportunity to cure, the Grantee has failed to remedy the act or omission, if it can be remedied, pursuant to Section 4.04 of this franchise the City may charge to and collect from the Grantee the following liquidated damages.

A.

For failure to provide data, documents, reports or information or to participate with the City during a review and evaluation, the damage shall be Twenty-Five Dollars ($25.00) per day.

B.

For failure of Grantee to comply with the construction, operational, or customer service standards required by this Ordinance, the damage shall be Twenty-Five Dollars ($25.00) per day.

C.

For failure to comply with any of the provisions of this franchise for which a penalty is not otherwise specifically provided, the damage shall be Twenty-Five Dollars ($25.00) per day.

To the extent and only to the extent that Grantee is finally found to have violated this franchise and is required to pay liquidated damages pursuant to this Section 4.03, then Grantee shall reimburse the City for its reasonable costs, fees, and expenses, including attorneys' fees, court costs, expert fees, and other reasonable costs incident to the investigation and enforcement of the violation. If a violation by Grantee is found to have been the result of Grantee's malice or fraud, then the liquidated damages set forth above shall be increased from Twenty-Five Dollars ($25.00) per day to Two Hundred Fifty Dollars ($250.00) per day.

Sec. 4.04. Procedure for Imposing Liquidated Damages.

A.

Notice. Whenever the city believes that the Grantee has violated one (1) or more terms, conditions or provisions of this franchise, and liquidated damages will be sought, a written notice shall be given to the Grantee informing it of such alleged violation or liability. The written notice shall describe in reasonable detail the specific violation so as to afford the Grantee an opportunity to remedy the violation, if it can be remedied. The Grantee shall have thirty (30) days subsequent to receipt of the notice in which to remedy the violation, if it can be remedied, before the City may impose liquidated damages unless the violation is of such a nature so as to require more than thirty (30) days and the Grantee proceeds diligently within the thirty (30) days to remedy the violation and maintains its diligence until the violation is remedied.

B.

Dispute of Violation. The Grantee may, within ten (10) days of receipt of notice, notify the City that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by the Grantee to the City shall specify with particularity the matters disputed by the Grantee.

The City Council shall hear the Grantee's dispute. Grantee shall be given at least ten (10) days notice of the hearing. At the hearing, the Grantee shall be entitled to all the rights of due process consistent with City procedures, including but not limited to, the right to present evidence and the right to be represented by counsel. After the hearing, Grantee will be provided with a copy of the City Council's action, along with supporting documents.

If after hearing the dispute the claim is upheld by the City Council, the City may impose damages against the Grantee after the Grantee has had a reasonable period of time, not less than (30) days, to remedy the alleged violation, if it can be remedied.

C.

Reservation of Rights. The rights granted the City by this section are in addition to all other rights of the City whether reserved by this franchise or authorized by law, and no action, proceeding or exercise of a right with respect to liquidated damages shall affect any other right the City may have.

Sec. 4.05. Force Majeure. Other than its failure, refusal, or inability to pay its debts and obligations, including, specifically, the payments to the City required by this franchise, Grantee shall not be declared in default or be subject to any sanction under any provision of this franchise in those cases in which performance of such provision is prevented by reasons beyond its control.