(A) When any event, act or omission on the part of the franchised MCS provider occurs which represents a violation of a material provision of this chapter, or compromises the corporate character, or legal, financial or technical integrity and/or stability of the multi-channel system or the franchise MCS provider to such a degree that the interests of the subscribers and users are negatively affected, then such event, act or omission may be considered a major breach of this chapter. Under such circumstances, the Council/franchising authority shall notify the affected MCS provider in writing of the specific breach and direct such franchised MCS provider to comply with all such provisions of its proposal, franchise agreement, or this chapter.
(B) For illustrative purposes only, the events, acts and omissions include, but are not limited to, bankruptcy, insolvency, failure to pay taxes or franchise fees (including the alternative user charge if applicable), failure to receive written Council/franchising authority approval for an assignment or transfer, demonstrating a repeated pattern or practice of conscious disregard for non-material provisions of this chapter or a franchise agreement or failure to abide by the material terms and conditions of the franchise agreement, or material provisions of this chapter. For purposes of this section, “material” means a provision which either affects the ability of the customer to receive multi-channel service or affects the ability of the Council/franchising authority to evaluate an MCS provider's performance in the technical, financial, and legal aspects of the multi-channel system.
(C) Where a franchise MCS provider satisfactorily corrects any of the enumerated conditions within 45 days, then in no event shall the enumerated condition be weighed against such franchised MCS provider in any subsequent review of franchise performance.
(D) A copy of such notice of material breach or other conditions which may compel default, revocation, termination or cancellation of a franchise shall be mailed to the surety on the performance bond.
(E) Within 75 days after such written notice is mailed to a franchised MCS provider, the Council/franchising authority shall conduct a public hearing on the matter, unless state law requires a different procedure, in which the state procedure would control.
(F) The Council/franchising authority shall provide written notice to a franchised MCS provider and the surety of the time and place of the public hearing in a manner consistent with either state law or approved by the Council/franchising authority.
(G) At the time of the hearing, the affected franchised MCS provider may present information on the current status of the alleged breach of the franchise agreement. If the situation has been resolved, or steps are being taken to resolve the situation, the franchised MCS provider should present the information at the hearing.
(H) If the affected franchised MCS provider fails to attend the hearing, and has not requested and been granted a continuance of the hearing, then such franchised MCS provider shall be deemed to have waived its right to a further continuation of the matter, and may be declared in default of the franchise agreement.
(I) After the public hearing, the Council/franchising authority may determine the franchised MCS provider to be in compliance and dismiss the matter, or may determine that the MCS provider has cured any non-compliance and thereby dismiss the matter. However, the Council/franchising authority may determine that an chapter violation exists and remains uncured. Consequently, upon a finding that the MCS provider violated an material chapter provision, or failed to cure an outstanding chapter violation, the Council/franchising authority may direct the affected franchised MCS provider to take corrective action within a specified period of time, or may declare such franchised MCS provider in default of the franchise agreement, and thereafter, may revoke, terminate, or cancel the franchise, unless the franchised MCS provider presents in the opinion of the Council/franchising authority sufficient mitigating circumstances.
(J) If the Council/franchising authority directs corrective action to take place within a specified time or declares such franchised MCS provider in default of the franchise agreement, then that declara-tion shall be reduced in writing, and the notice of corrective action or default shall be mailed to such franchised MCS provider and surety within 15 days of the Council/franchising authority's action.
(K) If within 45 days the affected franchised MCS provider or surety does not take significant action to rectify the breach or submit a satisfactory plan detailing how the affected MCS provider will eliminate the breach, then the Council/franchising authority shall revoke such MCS provider's franchise, and shall notify the affected franchised MCS provider and surety forthwith, unless there are mitigating circumstances.
(L) The Council/franchising authority reserves the right to assess any charges incurred (including costs for consultants, witnesses, and hearing preparation) in a default and/or revocation proceeding to the franchised MCS provider.
(Ord. 4-1994-20, passed 4-12-94) Penalty, see § 112.999