(A) Review. To provide for technological changes in the state of the art of communications services, to facilitate renewal procedures, and to achieve continuing, advanced, modern systems for the city, the franchisee shall comply with the following review provisions:
(1) The city may hold review sessions which shall be open to the public, and notice shall be given by advertisement in a newspaper of general circulation at least one week before each session;
(2) Either the city or the franchisee may select additional topics for discussion at any regular or special review session;
(3) Any topic proposed for discussion at any regular or special review session by a resident of the city, and supported by a petition bearing the signature of 30 city residents, shall be included in the list of topics for discussion.
(B) Termination.
(1) The city may terminate any franchise in accordance herewith in the event of the violation of any material provision hereof, or of any rule or regulation promulgated pursuant hereto, or of any
applicable federal, state, or local law, or the breach or other failure, refusal or neglect by the franchisee to perform its obligations under the material terms and conditions of this chapter, or of any ordinance or agreement awarding a franchise in accordance herewith, except when the violation, breach, failure, refusal or neglect is caused by any of the following:
(a) An act of God;
(b) A riot, insurrection, civil disturbance, sabotage or vandalism, tampering or interference, act of public enemy, accident, fire, flood, strike, unavailability of materials or equipment, war or act or war, all of which are beyond the control of the franchisee; or
(c) An emergency declared by the President of the United States of America, the Governor of the Commonwealth of Kentucky, or the Mayor.
(2) In the event that the city determines that the franchisee has violated any material provision of this chapter, any rule or regulation promulgated pursuant hereto, any applicable federal, state or local law, or any material term of an agreement or ordinance awarding a franchise, the city shall make a written demand on the franchisee that it comply with the law, agreement or ordinance. The written demand shall set forth the exact nature of the noncompliance. The franchisee shall have 60 days from such notice to either cure the alleged noncompliance or object in writing, and to state its reasons for such objections and provide any explanation. If the city has not received a satisfactory response from the franchisee, or the violation, breach, failure, refusal or neglect is not remedied to the satisfaction of the city, within 60 days following such demand, the city shall determine whether or not, in its sole discretion, any violation, breach, failure, refusal, or neglect by the franchisee was excusable or inexcusable as provided in division (B)(1).
(a) If the city determines the violation, breach, failure, refusal or neglect by the franchisee was excusable as provided in division (B)(1), it shall direct the franchisee to correct or remedy the same
within such additional time, in such manner, and upon such terms and conditions as are just and reasonable, and as the city may direct.
(b) If the city determines the violation, breach, failure, refusal, or neglect by the franchisee was inexcusable, then the City Commission/City Council, by ordinance, may seek to revoke the franchisee’s franchise at a public hearing, and/or City Commission/City Council may provide a time period for the franchisee to become compliant. If the city seeks to revoke the franchisee’s franchise, it shall provide the franchisee with at least 20 days’ written notice prior to conducting a hearing. The hearing shall be on the record and transcribed, if the franchisee so elects and at the franchisee's cost. The hearing shall provide the franchisee full due process rights, including the right to state its position on the matter, present evidence, and question witnesses. The franchisee may appeal any decision made by the city after the hearing to an appropriate court. Nothing in this chapter, including the provisions set forth in this section, shall prevent the franchisee from filing at any time a legal action in any permissible court or tribunal, seeking a declaration or enforcement of the franchisee’s rights or obligations under the franchise, this chapter, or applicable law. The franchisee may continue to operate the system until all avenues and procedures of judicial review have been fully and finally exhausted.
(3) If the city declares the agreement breached pursuant to division (B)(2)(b), and the franchisee either does not challenge the city’s decision, or city’s decision is affirmed in a final, non-appealable court order, the city may pursue any remedies available to it pursuant to this chapter , the franchise or ordinance, or any other remedy, legal or equitable, available to the city.
(C) If any franchise is cancelled by reason of the default of the franchisee, the city may exercise its option to purchase any portion of the system then connected in any manner with the rights-of-ways, public places, or other property of the city, at a cost not to exceed its then book value, less any amount for any damages incurred by the city in connection with the cancellation. Damages incurred by the city shall include, but shall not be limited to, any payment made by the city authorizing or directing the continued operation of the system.
(D) In the event that the franchise is terminated, the franchisee shall follow the procedure in § 111.062(A).
(Ord. 4, Series 2020, passed 10-8-2020)