(A) A franchise granted by the city pursuant to this subchapter is subject to revocation in the event of any substantial breach of the franchise agreement or default in performance of the company’s performance of the franchise. The following events, acts or omissions on the part of the company may be considered cause for revocation of the franchise and termination of the franchise agreement:
(1) Repeated failure, after notice and an opportunity to cure, to comply with the material provisions of this subchapter;
(2) Repeated failure, after notice and an opportunity to cure, to comply with the material terms of the franchise agreement;
(3) Repeated failure to cure material violations of this subchapter or the franchise agreement within a reasonable time after notice from the city;
(4) Material fraud or misrepresentation in obtaining the franchise;
(5) Willful failure to pay taxes, franchise fees, costs or penalties when and as due the city;
(6) Willful failure to maintain required insurance coverage;
(7) Failure to restore system wide service after 48 consecutive hours of interrupted service, provided the company’s failure to restore system wide service is not caused by circumstances or events beyond the company’s reasonable control; and
(8) Insolvency or bankruptcy of the company.
(B) Notice of substantial breach. Written notice shall be given to the company setting forth:
(1) The nature of the substantial breach or default by the company;
(2) A written demand that the company correct the violation; and
(3) Notice that any failure to correct the remedy the substantial breach or default within 30 days, or such other period of time as may be stipulated in the franchise agreement, may be cause for revocation of the franchise.
(C) Answer to notice of breach. Within 30 days after the city’s written notice to the company, the company shall respond in writing to the city, together with documentation in support of its response:
(1) That it contests the city’s notice of substantial breach and requests an opportunity to be heard as provided herein;
(2) That corrective action has been implemented by the company and the substantial breach or default has been cured; and
(3) That corrective action has been implemented by the company and is being actively and diligently pursued in accordance with a written corrective action plan to be submitted to the city.
(D) Hearing. If requested by the company, or if the city is not satisfied that sufficient corrective action is being actively and expeditiously pursued by the company to remedy the substantial breach or default, the city shall schedule a public hearing to hear and determine the issues and to consider whether sufficient cause exists to revoke the franchise. The city shall give the company not less than 14 days’ written notice specifying the city’s intent to consider the revocation of the company’s franchise pursuant to this subchapter, and the date, time and place of the public hearing to be held before the corporate authorities, or a hearing officer appointed by the corporate authorities. If a hearing officer has been designated, the hearing officer shall hear the relevant evidence and shall render a record of the administrative hearing and recommended findings and decision to the corporate authorities.
(E) Determination. After hearing the relevant evidence or considering the administrative record of the hearing, the corporate authorities shall determine whether or not a substantial breach or default by the company has occurred, whether it has been cured or a satisfactory corrective action plan has been submitted and is being actively and diligently pursued, and whether cause exists to revoke the franchise. The company shall be given an opportunity to be heard in connection with those issues. If the corporate authorities are persuaded that a substantial breach or default has occurred, the corporate authorities shall consider the nature, circumstances, extent and gravity of the substantial breach or default, as reflected by the following factors, in considering whether some lesser sanction or cure, if any, should be imposed:
(1) Whether the conduct was egregious;
(2) Whether substantial harm resulted;
(3) Whether the violation was intentional;
(4) Whether there is a history of prior violations of the same or other requirements; or
(5) Whether there is a history of overall compliance.
(F) Ordinance. If the corporate authorities determine that cause exists to revoke the franchise, it may by ordinance declare the company’s franchise to be terminated and revoked, provided that the city may grant the company an additional period of time to remedy the substantial breach or default before such ordinance is fully effective.
(Prior Code, § 122.089) (Ord. 2001-377, passed 11-13-2001)