(a) Notice of Violation. The City shall provide a grantee with a detailed written notice of any franchise violation upon which it proposes to take action, and a ninety-day period within which said grantee may demonstrate that a violation does not exist or may cure an alleged violation, or, if the nature of the violation prevents its correction within ninety days, may initiate a reasonable plan of action to correct such violation and notify the City of such plan of action.
(b) Default. If a grantee fails to disprove or correct the violation within ninety days or, in the case of a violation which cannot be corrected in ninety days, if a grantee has failed to initiate a reasonable plan of corrective action and to correct the violation within the specified time frame, then the City may declare the grantee in default, which declaration must be in writing. In the event that the City declares a grantee in default, the City shall have the right to institute legal proceedings to collect damages from the date of declaration of default or to exercise any other rights and remedies afforded to the City in law or equity, provided, however, that the City may institute revocation proceedings against a grantee only after a declaration of default, pursuant to this subsection, and only on the grounds set forth in subsection (f) hereof.
(c) Hearing Available to Grantee. Within fifteen days after receipt of a written declaration of default from the City, a grantee may request, in writing, a hearing before the City or its agent, in a full public proceeding affording due process. Such hearing shall be held within thirty days of the receipt of the request therefor, and a decision shall be rendered within ten days after the conclusion of the hearing. Any decision shall be in writing and shall be based upon written findings of fact.
(d) Appeal of Default. A grantee may appeal a declaration of default to arbitration.
(e) Procedures Applicable to Arbitration. Any arbitration held pursuant to this franchise shall be conducted as follows:
(1) The grantee and the City (or such substitute party to the arbitration) shall each, within fifteen days of the decision to proceed to arbitration, appoint one arbitrator experienced in the cable television business, which arbitrators shall mutually select a third arbitrator of similar qualifications.
(2) Within thirty days after appointment of all arbitrators and upon fifteen days' written notice to the parties to the arbitration, the arbitrators shall commence a hearing on the dispute.
(3) The hearing shall be recorded and may be transcribed at the request of either the City or the grantee.
(4) At the close of the hearing, and within thirty days, the arbitrators shall prepare written findings and serve such decision upon the City and the grantee.
(5) The decision of a majority of the arbitrators shall be binding upon the parties to the arbitration.
(6) Either party may seek judicial relief to the arbitrators' decision under the following circumstances:
A. If either party fails to select an arbitrator;
B. If the arbitrators fail to select a third arbitrator;
C. If one or more than one arbitrator is unqualified;
D. If the designated time limits have been exceeded;
E. If the arbitrators have not proceeded expeditiously; or
F. If, based upon the record, the arbitrators' decision is arbitrary, capricious, unsupported by substantial evidence, an abuse of discretion or based upon a mistake of law.
(7) All costs of arbitration shall be borne equally by the parties to the arbitration, unless otherwise ordered by the arbitrators.
(f) Revocation of Franchise.
(1) The City may revoke the franchise only after a declaration of default and only for defaults by a grantee arising from the following circumstances:
A. There has been material misrepresentation by a grantee to the City with respect to information required to be provided under the franchise.
B. A grantee willfully or persistently violates any material orders or rulings of any regulatory body having jurisdiction over the franchise.
C. A grantee willfully fails to acquire the insurance required by the franchise.
(2) The procedures governing revocation of a franchise shall be as follows:
A. The City shall give written notice to a grantee of its intent to revoke the franchise and the lawful grounds therefor. The grantee shall have ninety days from the date of such notice to object, in writing, and to state its reasons for such objection. In the event the City does not receive a satisfactory response from the grantee, the City may then proceed to place its request for termination of the franchise at a Council meeting. The City shall cause to be served upon the grantee, at least thirty days prior to the time and place of such meeting, a written notice of this intent to request such termination and the time and place of the meeting, which notice shall also be published by the City at least once, ten days before such meeting, in a newspaper of general circulation within the City.
B. In addition to a grantee's right to appeal any declaration of default to arbitration under subsection (d) hereof, if the City orders the termination of this franchise, a grantee shall have the right to appeal the determination of the City within thirty days to any agency or court of competent jurisdiction for de novo review. The City's determination to terminate this franchise shall be effective pending final resolution of all appeals made under this paragraph.
C. Council may, at its sole discretion, take any other lawful action which it deems appropriate to enforce the City's rights under the franchise in lieu of revocation of the franchise.
(Ord. 95-17. Passed 9-18-95.)