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17.01.132. Procedure for remedying Franchise violations

            (1)        In the event that the City determines that Grantee has violated any provision of the Franchise, City may make a written demand on Grantee that it remedy such violation.  If the violation is not remedied, or in the process of being remedied, to the satisfaction of City within thirty (30) days following such demands, an administrative hearing shall be held to review the alleged violation.  If this hearing does not result in a satisfactory resolution, and/or Grantee requests a public hearing, then a public hearing shall be held, and Grantee shall be provided with an opportunity to be heard upon thirty (30) days written notice to Grantee of the time and the place of the hearing and the allegations of Franchise violations.

                        (a)        Any hearing held may be conducted by the City Council or, at the sole discretion of the Council, by a hearing officer appointed by the Council.  Any such hearing officer shall be an attorney licensed to practice under the laws of the State of Utah.

                        (b)        The cost of providing quarters for the hearing, compensation for the hearing officer, if any, and the per diem cost of any reporter retained to record the proceedings shall be borne by the City.  The costs incurred by the parties for attorney's fees, expert witness fees, and other expenses shall be borne solely by the party incurring the costs.

                        (c)        All witnesses testifying at any hearing held pursuant to this Section shall be sworn witnesses and shall be subject to direct and cross-examination.  However, formal rules of evidence applicable to the trial of civil and criminal proceedings in the trial courts of the State of Utah shall not be applicable to the hearing.  The provisions of the Administrative Procedures Act, commencing at Section 63-46b-1, et. seq. Utah Code (as amended), or any successor legislative enactment, shall not be applicable to any such hearing.  The hearing may be continued from time to time.

                        (d)        If the hearing is conducted by a hearing officer, the officer shall upon conclusion of the hearing, prepare a recommended decision which includes findings of fact and conclusions.  The recommended decision shall be filed with the City Recorder and mailed to the parties not later than thirty (30) calendar days after the conclusion of the hearing.  Upon receipt of such a recommended decision, the City Council may, without a hearing except as otherwise required below, either:

                                    (i)         adopt the recommended decision, including findings of fact and conclusions submitted by the hearing officer;

                                    (ii)        adopt the findings of fact and conclusions contained in the recommended decision, modify the decision, and adopt the recommended decision as so revised; or

                                    (iii)       based upon the record of the hearing, modify the findings of fact, conclusions or decisions and adopt the recommended decision as so revised;

                                    (iv)       reject the recommended decision and conduct a new hearing.

                        (e)        If the hearing is conducted by the City Council, following conclusion of the hearing, the City Council shall adopt a decision which includes findings of fact and conclusions.

            (2)        If, after notice is given and, at Grantee's option, a full public proceeding is held, City determines that such violation occurred or still exists, then Grantor may impose a remedy including, without limitation:

                        (a)        making the correction itself, and charging the cost to the Grantee;

                        (b)        commencing an action at law for monetary damages, or seeking other equitable relief;

                        (c)        requiring the filing of a financial performance instrument by the Grantee to insure future performance; or

                        (d)        in the case of a substantial default of a material provision of the Franchise, declare the Franchise terminated.

            (3)        If the decision by the City Council is that there are grounds for termination of the Franchise and that the Franchise shall be terminated, the City Council may adopt a resolution which terminates the Franchise and includes its decisions.  The effective date of termination shall be such date as is prescribed by the City Council, within its sole discretion, in the resolution.

            (4)        The Grantee shall not be held in default or non-compliance with the provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, for such non-compliance or alleged defaults that are caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control.

Ord. No.97-35, Recodified, 6/19/1997
Ord. No. 99-62, Enacted, 12/16/1999

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