§ 6.5-238. Compliance and performance evaluations.

(a)

The city shall periodically monitor the compliance of service providers or system owners or operators who are subject to the requirements of this article in whole or in part. Prior to the conduct of an evaluation the city council or the administrator shall establish a procedure for such purpose and shall provide the procedure to the service provider or system owner or operator. Included in a compliance review may be an examination to determine whether a service provider or system owner or operator retains the financial, technical, legal, and character qualifications necessary to operate a system and/or offer service in the city. Such review shall also include an examination to determine if the operational, maintenance, and performance levels meet the minimum requirements of this article. Compliance reviews may be conducted every three (3) years, or more frequently if deemed necessary and appropriate due to subscriber or user complaints, or complaints from the public, or due to reasonable evidence of violations of this article or material breaches of the franchise. However, no compliance review shall occur more than once in any three hundred sixty-five (365) day period.

(b)

If, as a result of any investigation, evaluation or determination permitted under this section, the city council or the administrator determines that the service provider or system owner or operator has not complied with one (1) or more provisions of this article for which relief has not been granted, irrespective of whether or not the violation can be corrected, eliminated, remedied or cured, then the city council or the administrator may require the service provider or system owner or operator to reimburse the city for all actual fully-allocated costs incurred by the city that are necessitated by such violation(s) or act(s) of noncompliance, evasion or avoidance. Any matter of noncompliance or act of evasion or avoidance shall be deemed a violation of this article.

(c)

Notwithstanding subsection (b) of this section, the city council or the administrator shall give the service provider or system owner or operator an opportunity either to (i) correct, eliminate, remedy or cure any violation or act of noncompliance, evasion or avoidance, or (ii) submit documentation or supporting evidence that resolves any area of noncompliance, or act of evasion or avoidance to the satisfaction of the city council or the administrator, or (iii) explain the lack of effect of such to the satisfaction of the city council or the administrator.

(d)

The period of time allowed for the elimination of any violation or act of noncompliance, evasion or avoidance that can be corrected or eliminated shall be set by the city council or the administrator, which period of time may not be unreasonable taking into account whether such act of noncompliance, evasion or avoidance was one of a first occurrence or is a repeat of the same or similar act, as well as the seriousness of the situation, including but not limited to the impact or potential impact on the health, safety and welfare of the city, its residents, or both.

(e)

To serve as an incentive for compliance with this article and the intent thereof, if any violation of this article that is identified pursuant to this section cannot be eliminated due to the nature of the violation, including but not limited to the passage of time or the inability to undo an act of omission, evasion or avoidance, unless expressly prohibited by state law the inability to eliminate or undo the violation shall not relieve or eliminate the obligation of the service provider or system owner or operator to cure any violation as such cure may be reasonably determined by the city council or the administrator, including but not limited to a financial cure.

(f)

If the service provider or system owner or operator fails to correct or resolve an area of noncompliance in a timely manner, as such is determined by the city council or the administrator, which period of time may not be unreasonable taking into account (i) whether such act of noncompliance, evasion or avoidance was one of a first occurrence or is a repeat of the same or similar act of noncompliance, evasion or avoidance, and (ii) the seriousness of the situation, including but not limited to the impact or potential impact on the health, safety and welfare of the city, its residents, or both, or fails in a timely manner to provide an explanation that demonstrates the lack of culpability of the service provider or system owner or operator, then such failure may be treated as a material violation of this article and subject the service provider or system owner or operator to the appropriate sanction of the city council as permitted under this article and applicable state and federal law. Such action or sanctions may, at the discretion of the city council or the administrator, include the imposition of fines and penalties as set forth in this article, and as permitted by state law.

(g)

Notwithstanding anything contained in the preceding subsections of this section, the elimination, remedy or correction of a violation shall not de facto serve to eliminate the imposition of fines and penalties under this article. Rather, such shall serve to protect a service provider or system owner or operator from the further and continued accrual of fines and penalties under this article for the same violation.

(Ord. No. A-177, § 88, 3-13-2000)