(A) Before the government may assess any penalties under this section and before any sums are withdrawn from the performance bond; the government shall give the grantee written notice and an opportunity to be heard in accordance with the following procedure:

(1) The government shall notify the grantee, in writing, of an alleged failure to comply with the provisions of this chapter as set forth in this § 116.99, which notice shall specify the alleged failure.

(2) The grantee shall, within 21 days after receipt of the notice or such longer period as the government may specify in such notice, either cure the alleged failure or, in a written response to the City Council, either present facts and arguments in refutation or excuse of such alleged failure or state that the alleged failure will be cured and set forth the method and time schedule for accomplishing such cure.

(3) The City Council shall determine whether a failure to comply with a provision of the franchise has occurred; whether such failure is excusable; and whether such failure has been or will be cured by the grantee.

(4) If the City Council determines that a failure to comply with a provision of the franchise has occurred and that such failure is not excusable and has not been or will not be cured by the grantee in accordance with a schedule satisfactory to the City Council, the City Council shall hold a public hearing to determine whether the penalties specified in this section shall be imposed on the grantee. The City Council shall provide 21 days written notice of the public hearing to the grantee. During the public hearing, the grantee shall have the right to call and to cross?examine witnesses and to present evidence. If, based on the evidence presented during the public hearing, the City Council determines that such failure has not occurred, or that such failure either has been or will be cured in a manner and in accordance with a schedule satisfactory to the City Council or that the failure is excusable, such determination shall conclude the investigation.

(5) Following the public hearing and a majority vote of the City Council finding that a failure to comply with a provision of the franchise has occurred and that such failure is not excusable and has not been or will not be cured by the grantee in accordance with a schedule satisfactory to the government, the City Council may issue a written decision ordering penalties in accordance with this section. Such decision shall be served on the grantee and shall be subject to judicial review as provided by law.

(6) Any other provision of this franchise notwithstanding, the grantee shall not be held liable for a delay in the performance of, or a failure to perform, in whole or in part, its obligations pursuant to this chapter or any franchise granted hereunder due to war or act of war (regardless of whether an actual declaration of war is made), insurrection, riot, act of public enemy, accident, fire, flood or other act of God, equipment malfunction, sabotage or other events, where the grantee has exercised all due care in the prevention thereof and to the extent that such causes or other events are beyond the grantee's control. Notwithstanding the other provisions in this section, the grantee shall be held liable for equipment malfunction identifiable using standard industry testing techniques.

(B) The grantee shall replenish the performance bond within 30 days after a final decision is rendered by a court of competent jurisdiction which affirms or upholds the action taken by the City Council pursuant to this section.

(C) The grantee shall not be excused from complying with any of the terms and conditions of this chapter by any failure of the government, upon any one or more occasions, to insist upon the grantee's performance or to seek the grantee's compliance with any one or more of such terms or conditions. Payment of penalties shall not excuse non-performance under this chapter.
(Ord. 940.7A, passed - - )

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