1. Notice of Violation. In the event that the City believes that the Grantee has not complied with the terms of the franchise, it shall notify the Grantee in writing of the exact nature of the alleged noncompliance.
2. Grantee’s Right To Cure or Respond. The Grantee shall have thirty (30) days from receipt of the notice described in subsection 1: (i) to respond to the City, contesting the assertion of noncompliance; or (ii) to cure such default; or (iii) in the event that, by the nature of default, such default cannot be cured within the 30-day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed.
3. Public Hearing. In the event that the Grantee fails to respond to the notice described in subsection 1 pursuant to the procedures set forth in subsection 2, or in the event that the alleged default is not remedied within 30 days or the date projected pursuant to subsection 2 above, the City shall schedule a public hearing to investigate the default. The City shall notify the Grantee in writing of the time and place of such meeting no less than five business days in advance and provide the Grantee with an opportunity to be heard.
4. Enforcement. Subject to applicable Federal and State law, in the event the City, after such public hearing, determines that the Grantee is in default of any provision of the franchise, the City may:
A. Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages;
B. Commence an action at law for monetary damages or seek other equitable relief; or
C. In the case of a substantial default of a material provision of the franchise, declare the Franchise Agreement to be revoked in accordance with the procedures outlined in this section.
The City shall give written notice to the Grantee of its intent to revoke the franchise on the basis of noncompliance by the 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. The Grantee shall have ninety (90) days from such notice to object in writing and to state its reasons for such objection. In the event the City has not received a response satisfactory from the Grantee, it may then seek termination of the franchise at a public meeting. The City shall cause to be served upon the Grantee, at least ten (10) days prior to such public meeting, a written notice specifying the time and place of such meeting and stating its intent to request such termination. At the designated meeting, the City shall give the Grantee an opportunity to state its position on the matter, after which it shall determine whether or not the franchise shall be revoked. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the City de novo and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the City. The City may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City’s rights under the franchise in lieu of revocation of the franchise.
5. Prompt Compliance. The Grantee shall not be relieved of its obligation to comply with this chapter by reason of the City’s failure to enforce prompt compliance.
6. Impossibility of Performance. A Grantee shall not be held in default or noncompliance with the provisions of the franchise, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by the following circumstances if reasonably beyond its control:
A. Necessary utility rearrangements, pole change-outs or obtainment of easement rights,
B. Governmental or regulatory restrictions,
7. Termination of Franchise.
A. Grounds for Revocation. The City reserves the right to revoke any franchise and rescind all rights and privileges associated with the franchise in the following circumstances:
(1) If the Grantee should default in the performance of any of its material obligations under this chapter or the franchise and fails to cure the default within sixty (60) days after receipt of written notice of the default from the City, or such longer time as specified by the City.
(2) If a petition is filed by or against the Grantee under the Bankruptcy Act or any other insolvency or creditors’ rights law, State or Federal, and the Grantee shall fail to have it dismissed.
(3) If a receiver, trustee or liquidator of the Grantee is applied for or appointed for all or part of the Grantee’s assets.
(4) If the Grantee makes an assignment for the benefit of creditors.
(5) If the Grantee violates any order or ruling of any State or Federal regulatory body having jurisdiction over the Grantee, unless the Grantee or any party similarly affected is lawfully contesting the legality or applicability of such order or ruling and has received a stay from a Court of appropriate jurisdiction.
(6) If the Grantee evades any of the provisions of this chapter or the Franchise Agreement.
(7) If the Grantee practices any intentional fraud or deceit upon the City or cable subscribers.
(8) If the Grantee materially misrepresents facts in the application for a franchise.
(9) If the Grantee ceases to provide services over the cable system for seven (7) consecutive days for any reason within the control of the Grantee.
B. Restoration of Property. In removing its plant, structures and equipment, the Grantee shall refill at its own expense any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the Grantee’s removal of its equipment and appliances, without affecting the electric or telephone cables, wires, or attachments. The City shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. Liability insurance indemnity provided in Section
113.13 and the performance bond in subsection 9 of this section shall continue in full force and effect during the period of removal.
C. Reimbursement of Costs Pursuant to Paragraphs A and B of this Subsection. In the event of a failure by the Grantee to complete any work as required above or any work required by law or ordinance within the time established and to the reasonable satisfaction of the City, after due notice and opportunity to cure, the City may cause such work to be done and the Grantee shall reimburse the City the costs thereof within thirty (30) days after receipt of an itemized list of such costs or the City may recover such costs as provided in subsection 8.
A. Within ten (10) days after execution of the Franchise Agreement, the Grantee shall deposit with the City Clerk, and maintain on deposit through the term of the franchise, the sum of $10,000.00 as security for the faithful performance by it of all the provisions of the franchise and compliance with all orders, permits, and directions of any agency of the City having jurisdiction over its acts or defaults under the franchise, and the payment by the Grantee of any claims, liens, and taxes due the City which arise by reason of the construction, operation, or maintenance of the system.
B. Within ten (10) days after notice that any amount has been withdrawn from the security fund deposited pursuant to paragraph A of this subsection, the Grantee shall pay to, or deposit with, the City Clerk a sum of money sufficient to restore such security fund to the original amount of $10,000.00.
C. If the Grantee fails to pay to the City any compensation within the time fixed herein; or fails after ten (10) days’ notice to pay to the City any taxes due and unpaid; or fails to repay to the City within such ten (10) days, any damages, costs, or expenses which the City shall be compelled to pay by reason of any act or default of the Grantee in connection with the franchise; or fails after three (3) days’ notice of such failure by the City to comply with any provision of the franchise which the City reasonably determines can be remedied by an expenditure of the security, the City Clerk may immediately withdraw the amount thereof, with interest and any penalties, from the security fund. Upon such withdrawal, the City Clerk shall notify the company of the amount and date thereof.
D. The security fund deposited pursuant to this section shall become the property of the City in the event that the franchise is canceled by reason of the default of the Grantee. The Grantee, however, shall be entitled to the return of such security fund, or portion thereof, as remains on deposit at the expiration of the term of the franchise, provided that there is then no outstanding default on the part of the Grantee. Interest earned by the investment of the security fund will accrue to the Grantee.
E. The rights reserved to the City with respect to the security fund are in addition to all other rights of the City, whether reserved by the franchise or authorized by law, and no action, proceeding, or exercise of a right with respect to such security fund shall affect any other right the City may have.
9. Faithful Performance Bond. Upon acceptance of a franchise, the Grantee shall submit and maintain throughout the term of the franchise, a faithful performance bond in the amount of $100,000.00. The bond shall insure compliance with all applicable laws, regulations, ordinances and provisions of this permit, shall provide for recoverable loss or damages, compensation, indemnification, reasonable attorney fees, cost of removal or abandonment of Grantee’s property, and shall cover penalties of $100.00 per day for failure to meet the construction requirements of any franchise agreement.
10. Violations and Penalties. If the Grantee fails to comply with the requirements of this chapter, and a cable franchise agreement, then the City may invoke and secure compliance in accordance with this Code of Ordinances and as authorized by Section 364.22 of the Code of Iowa by following the due process contained in subsections 1 through 4 of this section or as specified in the enforcement provisions of the Franchise Agreement.
