[R.O. 1991 § 615.170; Ord. No. 1607 § 16, 3-21-1995]
A.
Notice Of Violation. Should the City find
that an operator has violated one (1) or more provisions of this Chapter
or a separate franchise agreement, a written notice shall be given
to the operator informing it of such a violation (a "Violation Notice").
The operator shall have fourteen (14) working days subsequent to receipt
of the Violation Notice in which to inform the City in writing:
1.
Of the action the operator will take
to correct the violation (a "Correction Notice");
2.
That there is a dispute as to whether
a violation or failure has, in fact, occurred (a "Notice of Dispute");
or
3.
That an extension of time beyond
fourteen (14) working days is required to cure the violation (a "Request
for Extension of Time").
B.
Dispute Resolution. If the operator shall
provide a Notice of Dispute or Request for Extension of Time, the
City shall hear the operator's dispute or request at its next regularly
scheduled meeting. The City shall supplement its decision with written
findings of fact.
C.
Operator's Options. If after a hearing
about the dispute or request the claim is upheld or the request is
denied by City, the operator shall have thirty (30) days from such
determination to remedy the violation or failure, subject to the operator's
pursuit of arbitration or appeal to a court with respect to such determination.
The operator's pursuit of arbitration or appeal to a court shall stay
the running of the above-described thirty-day period.
[R.O. 1991 § 615.180; Ord. No. 1607 § 17, 3-21-1995]
A.
Revocation For Cause. In addition to all other rights, powers and remedies available to the City, then following compliance with the applicable procedures of Section 615.170 hereof, 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 this Chapter and a separate franchise agreement as a result of and in response to any of the following events or reasons:
1.
Fiscal Defects. The operator becomes
fiscally unable or unwilling to pay it debts;
2.
Bankruptcy. The operator is adjudged
to be bankrupt. However, should the City be prohibited from revoking
a franchise due to the operator's bankruptcy, an operator must, as
a means of assuring future payments of the franchise fee and assuring
future compliance with all other requirements of this Chapter and
a separate franchise agreement, 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;
3.
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
4.
Failure To Correct Defect. The operator
substantially fails to correct a material violation of this Chapter
within thirty (30) days following:
a.
Written demand by the City to effect
such compliance, unless such decision is stayed by a court of competent
jurisdiction or agreed to by the City; or
b.
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.
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 Board 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 Board. An operator
shall retain the privilege to be heard by the Board or any Board 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
this Chapter.
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 system from any street or other public
property. In removing its 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 system, and without affecting, altering or disturbing in any way
electric, telephone, gas, steam, or water utilities or other operator's
cables, wires or attachments. The insurance, indemnity and damage
provisions of this Chapter 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 system, or such part as was designated,
in accordance with this Chapter, 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 system to be in the City or its
designee with all right of ownership, including, but not limited to,
the right to operate the system or transfer the system to another
for operation.
b.
Abandonment Of System. Declare the
system abandoned and cause the system, or such part as the City may
designate, to be removed at no cost to the City. The cost of the removal
shall be recoverable pursuant to the insurance and indemnity provisions
of the ordinance or a separate franchise agreement, or from the operator
directly.
