Loading...
The Grantee shall have thirty (30) days from receipt of the notice described in Section 112.21 to: (i) respond to the City contesting the assertion of noncompliance; or (ii) to cure such default; or (iii) in the event that, by the nature of the default, such default cannot be cured within the thirty-day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed.
In the event that the Grantee fails to respond to the notice as described in Section 112.30 pursuant to the procedures set forth in Section 112.31, or in the event that the alleged default is not remedied within thirty (30) days or the date projected pursuant to Section 112.31(iii) above, if it intends to continue its investigation into the default, then the City shall schedule a public hearing. The City shall provide the Grantee at least ten (10) days’ prior written notice of such hearing, which specifies the time, place and purpose of such hearing and provide the Grantee the opportunity to be heard.
Subject to applicable Federal and State law, in the event the City, after the hearing set forth in 112.32, determines that the Grantee is in default of any provision of the franchise, the City may:
1. Commence an action at law for monetary damages or seek other equitable relief; or
2. In the case of repeated or ongoing substantial noncompliance with a material term or terms of the franchise, seek to revoke the franchise in accordance with Section 112.34.
Should the City seek to revoke the franchise after following the procedures set forth in Sections 112.30 – 112.33, the City shall give written notice to the Grantee of its intent. The notice shall set forth the exact nature of the repeated or ongoing substantial noncompliance with a material term or terms of the franchise. The Grantee shall have 60 days from such notice to object in writing and to state its reasons for such objection. In the event the City has not received a satisfactory response from the Grantee, it may then seek termination of the franchise at a public meeting. The City shall cause to be served upon the Grantee, at least thirty (30) days prior to such public meeting, a written notice specifying the time and place of such meeting and stating its intent to revoke the franchise. At the designated hearing, Grantee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to require the production of evidence, to compel the relevant testimony of the officials, agents, employees or consultants of the City, 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 hearing. Following the hearing, the City shall determine whether or not the franchise shall be revoked. If the City determines that the franchise shall be revoked, the City shall promptly provide Grantee with its decision in writing. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the City de novo. Grantee shall be entitled to such relief as the court finds appropriate. Such appeal must be taken within sixty (60) days of the Grantee’s receipt of the determination of the City. The City may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City’s rights under the franchise in lieu of revocation of the franchise.
The Grantee shall not be held in default under or in noncompliance with the provisions of the franchise or suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control. This provision includes work delays caused by waiting for utility providers to service or monitor their utility poles to which Grantee’s cable system is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary. Furthermore, the parties hereby agree that it is not the City’s intention to subject the Grantee to penalties, fines, forfeitures or revocation of the franchise for violations of the franchise where the violation was a good faith error that resulted in no or minimal negative impact on the subscriber within the service area, or where strict performance would result in practical difficulties and hardship to the Grantee which outweigh the benefit to be derived by the City and/or subscribers.
Loading...