A. Notice Of Violation: In the event that the franchising authority believes that the grantee has not complied with the terms of the franchise, it shall notify the grantee in writing of the exact nature of the alleged noncompliance.
B. Grantee's Right To Cure Or Respond: The grantee shall have thirty (30) days from receipt of the notice described in subsection A above:
1. To respond to the franchising authority, contesting the assertion of noncompliance; or
2. To cure such default; or
3. In the event that, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the franchising authority of the steps being taken and the projected date that they will be completed.
C. Public Hearing: In the event that the grantee fails to respond to the notice described in subsection A above pursuant to the procedures set forth in subsection B above, or in the event that the alleged default is not remedied within thirty (30) days or the date projected pursuant to subsection B3 above, the franchising authority shall schedule a public hearing to investigate the default. The franchising authority shall notify the grantee in writing of the time and place of such meeting no less than five (5) business days in advance and provide the grantee with an opportunity to be heard.
D. Enforcement:
1. In the event the franchising authority, after such public hearing, determines that the grantee is in default of any provision of the franchise, the franchising authority, subject to applicable Federal law, may:
a. Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages;
b. Commence an action at law for monetary damages or seek other equitable relief; or
c. In the case of the substantial default of a material provision of the franchise, declare the franchise agreement to be revoked in accordance with the procedures outlined in this Section.
2. The franchising authority shall give written notice to the grantee of its intent to revoke the franchise on the basis of noncompliance by the grantee, including one or more instances of substantial noncompliance with a material provision of the franchise. The notice shall set forth the exact nature of the noncompliance. The grantee shall have forty five (45) days from such notice to object in writing and to state its reasons for such objection. In the event the franchising authority has not received a response satisfactory from the grantee, it may then seek termination of the franchise at a public meeting. The franchising authority shall cause to be served upon the grantee, at least five (5) business days prior to such public meeting, a written notice specifying the time and place of such meeting and stating its intent to request such termination.
3. At the designated meeting, the franchising authority shall give the grantee an opportunity to state its position on the matter, after which it shall determine whether of not the franchise shall be revoked. The grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the franchising authority "de novo" and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the franchising authority.
4. The franchising authority may, at its sole discretion, take any lawful action which it deems appropriate to enforce the franchising authority's rights under the franchise in lieu of revocation of the franchise.
E. Closing Of Streets: The grantee shall not be entitled to damages from the City sustained by the virtue of the closing, vacation, or relocation of any streets or alleys.
F. Reservation Of Rights: The grantee shall not be relieved of its obligation to comply with this Chapter by reason of the City's failure to enforce prompt compliance.
G. Impossibility Of Performance: The grantee shall not be held in default or noncompliance with the provisions of the franchise, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by the following circumstances if reasonably beyond its control:
1. Governmental or regulatory restrictions;
2. War;
3. National emergencies;
4. Fire;
5. Acts of God.
H. Termination Of Franchise:
1. Grounds For Revocation: The City reserves the right to revoke any franchise and rescind all rights and privileges associated with the franchise in the following circumstances:
a. If the grantee should default in the performance of a material obligation under this Chapter or the franchise, and fails to cure the default subject to the provisions of this Section.
b. If a petition is filed by or against the grantee under the Bankruptcy Act or any other insolvency or creditors' rights laws, (State or Federal), and the grantee shall fail to have it dismissed.
c. If a receiver, trustee or liquidator of the grantee is applied for or appointed for all or part of its assets, subject to the provisions of subsection 7-4-9E of this Chapter.
d. If the grantee should violate any orders or ruling of any regulatory body having jurisdiction over the grantee, unless the grantee is lawfully contesting the legality or applicability of such order or ruling.
e. If the grantee makes an assignment for the benefit of creditors.
f. If any court of competent jurisdiction, the FCC or any State regulatory body, by rules, decision or other action, determines that any material provisions of the franchise documents, including this Chapter, are invalid or unenforceable. If a provision is found to be invalid or unenforceable, the grantor will notify the grantee and allow thirty (30) days to renegotiate the provision prior to revocation proceedings.
g. If the grantee should fail to provide or maintain in full force and effect liability and indemnification coverages as required in subsection 7-4-9B of this Chapter.
2. Restoration Of Property: In removing its plant, structures and equipment, the grantee shall refill at its own expense any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the grantee's removal of its equipment and appliances, without affecting the electric or telephone cables, wires or attachments. The City shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. Liability insurance indemnity provided in subsection 7-4-9B of this Chapter shall continue in full force and effect during the removal period.
I. Violations And Penalties: The imposition of penalties pursuant to this subsection shall not preclude the City from exercising the other enforcement provisions of this Chapter, including revocation, or other statutory or judicially imposed penalties. Penalties pursuant to this subsection may be imposed as follows:
1. For failure to complete construction or extend service in accordance with franchise, one hundred dollars ($100.00) per day for each day the violation continues;
2. For failure to comply with requirements for public, educational and government access, one hundred dollars ($100.00) per day for each day the violation continues;
3. For failure to submit reports, maintain records, provide documents or information, one hundred dollars ($100.00) per day for each day the violation continues;
4. For violation of customer service standards required by the franchise agreement, and this Chapter, or by FCC regulation, one hundred dollars ($100.00) per day per standard violated;
5. For violation of the books and financial records provisions of the franchise agreement and this Chapter, up to one hundred fifty dollars ($150.00) per day for each day the violation continues;
6. For violations of other material provisions of the franchising agreement or this Chapter, up to one hundred dollars ($100.00) per day for each day the violation continues. (Ord. 96-1, 2-5-1996)