§ 6.5-236. Default of franchise; and revocation, termination or cancellation of franchise.

(a)

In the case of any procedure concerning or involving the default, involuntary termination, revocation, unilateral alteration, or suspension of a franchise granted or enforceable under this article, the city council shall follow the rules and procedures set forth in this section, unless expressly prohibited or pre-empted by state law or rule. Such action may be in addition to the payment of fines and/or the imposition of penalties, unless otherwise deemed impermissible under applicable law.

(b)

When an act of evasion, avoidance or omission, or the failure to comply with a time-related or performance-related requirement of this article or the franchise is committed by a service provider or system owner or operator which represents a material violation of a provision of this article or the franchise, or compromises the corporate character, or legal, financial or technical ability, integrity and/or stability of the service provider or system owner or operator to such a degree that the interests of the subscribers and users, or the city, are substantively affected in a negative manner, then such violation, breach, act of evasion, act of avoidance or omission shall be considered a material violation of this article and breach of any franchise granted or enforceable hereunder. Under such circumstances, the city shall notify the affected service provider or system owner or operator, in writing, of the specific violation or breach, and direct the service provider or system owner or operator to remedy the breach or violation in accordance with the provisions of this article.

For illustrative purposes only, violations, breaches, acts of evasions or avoidance and omissions include, but are not limited to: failure to pay taxes or pay franchise fees or the functional equivalent including a rent or right-of-way use and occupancy fee, or repeated failure to comply with the provisions of this article or a franchise after proper notice and showing a pattern of failure or refusal to abide by the terms and conditions of the franchise or the provisions of this article.

(c)

Where a service provider or system owner or operator corrects any violation or breach to the satisfaction of the city council or as required in this article or a franchise within thirty (30) days after notification by the city, and where the situation does not involve the repeat of a type of violation for which the service provider or system owner or operator has previously received notice within the past twenty-four (24) months, then the procedure provided for under this section shall cease, and the enumerated condition shall not be considered in any subsequent compliance or performance review, so long as it has not been repeated.

(d)

Notwithstanding anything to the contrary in subsection (c) of this section with respect to the thirty (30) day cure period, to protect the health and safety of the public, at the discretion of city council, violations of construction-related or safety-related requirements may be required to be corrected, eliminated or otherwise cured in less than thirty (30) days.

(e)

A copy of the notice of violation or breach may also be mailed to the surety of the system owner or operator or service provider.

(f)

Within sixty (60) days, but in no case sooner than thirty (30) days, after the written notice is mailed, the city council or the administrator may conduct a hearing on the matter.

(g)

The city council shall provide written notice of the date, time and place of the hearing to the affected service provider or system owner or operator at least thirty (30) days prior to the hearing.

(h)

At the time of the hearing, the service provider or system owner or operator may (i) present information on the current status of the alleged violation of this article or breach of the franchise; and (ii) present arguments as to why the situation is not a violation or breach, including evidence in support of such an argument, and (iii) why the service provider or system owner or operator should not be subjected to sanctions as permitted under this article and applicable state law. If the situation has been resolved, or meaningful and substantive steps are being taken to resolve the situation, then the service provider or system owner or operator shall present such information at the hearing and shall have the burden of disproving the allegation of violation.

(i)

If the service provider or system owner or operator fails to attend the hearing and has not requested and been granted a continuance of the hearing, then the service provider or system owner or operator shall be deemed to have waived its right to a further continuation of the matter, and may be declared in violation of this article or in breach and default of the franchise based on the evidence available at that time.

(j)

After the public hearing, the city council or administrator may (i) determine the service provider or system owner or operator to be in compliance and dismiss the matter, with or without prejudice; or may (ii) determine that the service provider or system owner or operator has adequately remedied and cured any violation or breach and thereby dismiss the matter; or (iii) may determine that a violation has been committed and remains unremedied and uncured.

(k)

Upon a finding that the service provider or system owner or operator violated this article or committed a breach of a material provision of the franchise that resulted in a violation of this article, and failed to remedy and adequately cure the violation of this article or material breach of the franchise, the city council or the administrator may (i) direct the service provider or system owner or operator to take corrective action to eliminate, remedy or cure the violation or breach within a specified period of time; or (ii) may for sufficient cause declare the service provider or system owner or operator in default of the franchise. Unless the service provider or system owner or operator complies with the directive or order of the city council or the administrator, or presents sufficient mitigating circumstances that, at the discretion of the city council or the administrator, warrant less severe or extreme measures, the city council, and only the city council, thereafter may revoke, terminate, or cancel the franchise pursuant to this section.

(l)

If the city council or the administrator directs corrective action to take place within a specified period of time, or declares the service provider or system owner or operator in default of the franchise, then the directive or declaration shall be committed to writing and the notice of corrective action or default shall be mailed within twenty-one (21) days of the action of the city council or the administrator to the service provider or system owner or operator.

(m)

If, within the time set forth in the order or directive, the service provider or system owner or operator has not complied with the order or directive, or submitted a plan detailing how the service provider or system owner or operator will comply with the order or directive as given, or has not paid any amount due, including proposing an alternative time frame for compliance as may be acceptable to the city council at the council's sole discretion, then the city council may impose civil penalties as set forth in this article, or in the extreme may terminate and revoke the franchise and, unless there are further mitigating circumstances, shall notify the affected service provider or system owner or operator of such action.

(n)

In the event fines are imposed, the compliance or performance security placed with the city may be used to collect the fines and the city may take such action as is required to call on or draw against the security for such purpose.

(o)

In the event of the termination and revocation of the franchise, within seven (7) days after notification of such action, the city council or the administrator shall notify the service provider or system owner or operator and its surety that any security is forfeited. The city may then take such action as is required to collect on the security.

(p)

If deemed appropriate by the city council or the administrator given the facts and circumstances the city may call the security in further settlement of the matter.

(Ord. No. A-177, § 86, 3-13-2000)