If a grantee fails to perform in a timely manner any material obligation, as determined by the city, required herein, following notice from the city and an opportunity to cure the nonperformance, the city may remedy the violation in accordance with the following procedures.
(a) (1) The city will first notify a grantee of the violation in writing by delivery of registered or certified mail, and demand correction within a reasonable time.
(2) A grantee shall have 30 days from receipt of the notice to:
A. Respond to the city, contesting the assertion of noncompliance, which shall toll the running of any time frames hereunder until a grantee is afforded the public hearing required herein and a written determination of the city council has been issued;
B. Cure the default; or
C. In the event that, by the nature of default, the default cannot be cured within the 30-day period, initiate reasonable steps to remedy the default and notify the city of the steps being taken and the projected date that they will be completed.
(3) If a grantee fails to correct the violation within the time prescribed or if grantee fails to commence corrective action within the time prescribed and diligently remedy the violation thereafter, a grantee will then be given 30 days’ prior written notice of a public hearing to be held before the city council. The notice will specify the violations alleged to have occurred.
(b) At the public hearing, the city council will hear and consider all relevant evidence, and thereafter render findings and its decision. The public hearing shall be held at the next regularly scheduled meeting of the city which is scheduled at a time which is no less than five business days therefrom. The city shall notify a grantee in writing of the time and place of the meeting and provide a grantee with an opportunity to be heard.
(c) In the event the city council finds that a grantee has corrected the violation or has diligently commenced correction of the violation after notice thereof from the city and is diligently proceeding to fully remedy the violation, or that no material violation has occurred, the proceedings will terminate and no penalty or other sanction will be imposed.
(d) Subject to applicable federal and state law, in the event the city council finds that a material violation exists and that a grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of the violation, the city council may establish a date, no earlier than 30 days following notification, by which grantee must comply with the obligation or the city may thereafter seek specific performance of any franchise provision, which reasonably lends itself to the remedy. In addition, the city council may impose reasonable damages and enforce imposition of the damages by payment from the security fund as described in § 123.390. In the case of a substantial default of a material provision of the franchise, the city council may also implement the franchise termination procedures in accordance with the following:
(1) The city shall give written notice to a grantee of its intent to revoke a franchise on the basis of a pattern of noncompliance by a 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. A grantee shall have 90 days from the notice to object in writing and to state its reasons for the objection. In the event the city has not received a satisfactory response from a grantee, it may then seek termination of the franchise at a public meeting. The city shall cause to be served upon a grantee, at least ten days prior to the public meeting, a written notice specifying the time and place of the meeting and stating its intent to request the termination;
(2) A. At the designated meeting, the city shall give a grantee an opportunity to state its position on the matter, after which it shall determine whether or not a franchise shall be revoked. A grantee may appeal the determination to an appropriate court; and
B. The appeal to the appropriate court must be taken within 60 days of the issuance of the determination of the city.
(3) The city may, at its sole discretion, take any lawful action which it deems appropriate to enforce the city’s rights under a franchise in lieu of revocation of a franchise.
(e) In determining whether a violation is material, the city will take into consideration the reliability of the evidence of the violation, the nature of the violation, and the damage, if any, caused to the city or the city’s residents thereby, whether the violation was chronic, and any justifying or mitigating circumstances, and those other matters as the city may deem appropriate. The parties hereby agree that it is not the city’s intention to subject a grantee to penalties, fines, forfeitures or revocation of a franchise for so-called “technical” breach(es) or violation(s) of a franchise or local cable ordinance, which shall include, but are not limited to, the following:
(1) In instances or for matters where a violation or a breach by a grantee of a franchise or local cable ordinance was a good-faith error that resulted in no or minimal negative impact on the customers within the service area; and
(2) Where there existed circumstances reasonably beyond the control of a grantee and which precipitated a violation by a grantee of a franchise or local cable ordinance, or which were deemed to have prevented a grantee from complying with a term or condition of the franchise or local cable ordinance.
(1992 Code, § 44-93) (Ord. 104-09, passed 11-16-2009)