[R.O. 2012 §655.290; Ord. No. 98-1-8 §1, 1-26-1998; Ord. No. 18-08-01, 8-6-2018]
A.
Notice Of Violation. Should the City determine that an operator
has violated one (1) or more terms, conditions or provisions of the
Cable and Wireless Communications Code or a separate franchise agreement,
other than payment of franchise fees, a written notice shall be given
to the operator informing it of such alleged violation. The operator
shall have fourteen (14) days subsequent to receipt of the notice
in which to inform the City in writing of the action the operator
will take to correct the violation and to begin corrective action.
Such corrective action shall be completed within thirty (30) days
of the date the notice was given by the City, unless the operator's
notice shows that the corrective action cannot be completed within
thirty (30) days with the exercise of all due speed and diligence
and such notice contains a proposed timetable for completion of the
corrective action, in which case the City shall authorize a reasonable
extension of time where extension can result in correction of the
deficiency; provided however, that the City is not required to grant
an extension in the case of recurring defaults of the same character.
If the operator disputes that a violation or failure has occurred,
it shall give written notice of the dispute to the City within fourteen
(14) days of the date the notice of violation was given by the City.
Such notice of dispute shall specify with particularity the matter
disputed by the operator. The notice of dispute shall, pursuant to
the procedure set forth below, stay the running of any performance
or corrective deadlines pertaining to the matter in dispute, and stay
any other action the City may be permitted to take under the ordinance,
a separate franchise agreement, or applicable law with respect to
the disputed matter.
B.
Dispute Resolution. The franchise administrator shall consider
the operator's dispute within thirty (30) days after receipt of the
operator's notice of dispute. The franchise administrator shall provide
written findings of fact and appropriate conclusions. Consideration
shall be given to the matters described in the operator's notification
of dispute in a public hearing.
C.
Request For City Council Hearing. If the franchise administrator
determines that a violation has not occurred, the City may, within
fourteen (14) days from the date of such decision, request, in writing,
a hearing before the City Council. If the franchise administrator
determines that a violation has occurred, operator shall have fourteen
(14) days from the date of decision to begin correction of the violation
or request in writing a hearing before the City Council. Operator's
request for a hearing before the City Council shall stay the running
of any performance or corrective deadlines pertaining solely to the
disputed matter.
D.
City Council Hearing. The City Council shall hear the disputed
matter at a regularly scheduled or specially called meeting, within
twenty (20) days after receiving the City's or operator's request
for a hearing. City and operator may present evidence in the hearing
and call witnesses for specific testimony. The City Council shall
decide the matter within seven (7) days of the hearing and written
findings of fact shall accompany its decision.
E.
Correction/Appeal. If the City Council determines that a
violation has occurred, operator shall have fourteen (14) days from
receipt of written notice of the City Council's decision to give written
notice to the City of the corrective action operator will take and
begin said corrective action. Such corrective action shall be accomplished
within thirty (30) days of the date of the decision. If, however,
operator intends to appeal the City Council's decision, or offer to
submit the matter to the arbitration of disinterested parties, such
notice of intent to appeal or arbitrate shall be presented to the
City in writing within fourteen (14) days of the date of the City
Council's decision and a final decision of a panel of arbitrators,
if used by the City and the operator, or a court of competent jurisdiction
reviewing the disputed matter determines a violation has occurred,
then such corrective action shall be accomplished within thirty (30)
days of that decision.
F.
Penalty. If an operator does not dispute that a violation
has occurred, or elects not to appeal a decision upholding a disputed
claim by either the franchise administrator or the City Council, and
subsequently fails to begin corrective action within the fourteen
(14) day period as required, and/or fails to notify the City of the
corrective action to be taken within the fourteen (14) day period
as required, or fails to correct the violation within thirty (30)
days of the date of the decision, the City shall then have the option
of charging operator with a penalty in the amount of one hundred dollars
($100.00) per day for every day or portion thereof the violation remains
uncorrected, from the date the operator receives a written notice
from the franchise administrator that the penalty will be levied.
[R.O. 2012 §655.300; Ord. No. 98-1-8 §1, 1-26-1998; Ord. No. 18-08-01, 8-6-2018]
A.
Revocation For Cause. In addition to all other rights, powers and remedies available to the City, then following compliance with the applicable procedures for Section 655.290, the City shall have the additional, separate and distinct right to revoke a franchise and all the rights, authority, power, privileges and permissions granted the operator by the Cable and Wireless Communications Code and a separate franchise agreement, as a result of and in response to, any of the following events or reasons:
1.
Fraud. The operator commits an act of fraud, as
determined by a court of competent jurisdiction, against the City
in obtaining its franchise, or upon being granted the continuation
of the franchise commits such an act against the City; or
3.
Bankruptcy. An operator is adjudged to be bankrupt.
However, should the City be prohibited from revoking the franchise
due to an operator's bankruptcy, the operator agrees, as a means of
assuring future payments of the franchise fee payable under its franchise
agreement and assuring future compliance with all other requirements
of its franchise agreement, to provide to the City within thirty (30)
days of an order of a court of competent jurisdiction adjudging the
operator to be bankrupt, and entitled to the protection of State or
Federal bankruptcy laws, a bond in the amount of the franchise fees
paid by the operator to the City the previous year.
B.
Revocation By Ordinance. Revocation of a franchise shall
be accomplished by passage of an ordinance. An ordinance revoking
a franchise shall include the reason for the revocation, and a listing
of facts found, and conclusions made, by the City Council to justify
revocation. The effective date of the revocation shall be stated in
the ordinance. An ordinance revoking a franchise shall not be passed
without thirty (30) days' written notice to the operator that an ordinance
to revoke its franchise will be considered by the City Council. An
operator shall retain the privilege to be heard by the City Council
or any City Council committee regarding the proposed revocation ordinance.
An operator may request a review of the revocation findings and conclusions
pursuant to any applicable law.
C.
Continuance Of Service After Revocation. The City may require
an operator to continue operating its system after revocation until
such time as operation of the system can be transferred to a new owner
or the City exercises its rights under the Cable and Wireless Communications
Code.
D.
Removal After Revocation.
1.
Procedure. Upon revocation of a franchise and after
a review of the revocation findings and conclusions by a court of
competent jurisdiction, if such review is sought by an operator, the
City may require the operator to remove, at the operator's expense,
any above-ground portion of its cable communications system from any
street or other public property. In removing its cable communications
system, an operator shall refill and compact, at its own expense,
any excavation that shall be made, and shall leave all streets and
other public property, and private property, in as good a condition
as that prevailing prior to the operator's removal of its cable communications
system, and without affecting, altering or disturbing in any way electric,
telephone, gas, steam, water or other utilities or other operator's
cables, wires, or attachments. The insurance, indemnity and damage
provisions of the Cable and Wireless Communications Code or separate
franchise agreement shall remain in full force and effect during the
entire term of removal.
2.
Failure to remove system. If an operator fails to
commence removal of its cable communications system, or such part
as was designated, in accordance with the Cable and Wireless Communications
Code, within one hundred eighty (180) days after written notice of
the City's demand for removal is given, or if the operator fails to
complete such removal within one (1) year after removal has begun,
the City shall have the right to exercise one (1) of the following
options:
a.
Assumption of ownership. Declare all right, title
and interest to the cable communications system to be in the City
or its designee with all right of ownership including, but not limited
to, the right to operate the cable communications system or transfer
the cable communications system to another for operation.
b.
Abandonment of system. Declare the cable communications
system abandoned and cause the above-ground portion of the cable communications
system, or such part as the City may designate, to be removed at no
cost to City. The cost of the removal shall be recoverable pursuant
to the insurance and indemnity provisions of the Cable and Wireless
Communications Code or a separate franchise agreement, or from the
operator directly.
