§ 138-73. Notice of failure to comply.

A. 

The Town shall provide notice and opportunity to cure for the failure to comply with a time or performance-related requirement, or breach of a term or condition of an MCS franchise or other agreement, license or permit, or of this chapter, or of any federal, state, or local law, rule, regulation or code which the Town deems sufficient to warrant the assessment and imposition of liquidated damages.

B. 

Notwithstanding anything to the contrary in the preceding subsection, or any other subsection of this section, for situations involving violations of safety and safety-related codes and requirements where such are deemed to create an imminent threat or danger to lives or property within the Town, and for which the MCS provider has previously been notified of a situation(s) involving noncompliance with the same or similar situations, or aspects of safety and safety-related codes and requirements, the MCS provider shall be notified, but may not be granted an opportunity to remedy or cure prior to the imposition of liquidated damages. Rather, liquidated damages may be assessed and imposed immediately, on a per-occurrence, per-day basis, until the violation(s) is/are eliminated.

C. 

Notice and the opportunity to cure shall be provided to the affected MCS provider in writing, and shall be sent by certified U.S. mail, return receipt requested, to the franchisee's or other MCS provider's local place of business. The amount of time given the franchisee or other MCS provider to cure any time or performance requirement, or breach of a term or condition of a MCS provider franchise or other agreement or permit, violation of this chapter, or violation of any federal, state, or local law, rule or regulation, shall be at the discretion of the Town, but in no event less than 48 hours, unless otherwise agreed to between the Town and the franchisee or other MCS provider, or as set forth in Subsection B of this section. Notwithstanding the preceding, or anything else in this section or this chapter, in the event of a situation in violation of the safety-related requirements of this chapter that endangers or has the reasonable possibility of endangering the health or safety of individuals or property, the forty-eight-hour cure period may be lessened and, in fact, a cure may be required the same day, depending upon the seriousness of the matter as a factor of the threat created to the public.

D. 

The Town may, in its reasonable discretion, grant extensions of time to a franchisee or other MCS provider to cure or remedy, where extraordinary circumstances not precipitated by the franchisee or other MCS provider warrant an extension.

E. 

Notwithstanding any notice and opportunity cure requirements of the applicable federal or state law, the issuance of two or more notices to cure for the same or similar time- or performance-related requirement, or breach of a term or condition of a franchise or other agreement or permit, or violation of this chapter, or violation of any federal, state, or local law, rule, regulation or code within any twelve-consecutive-month period, shall relieve the Town of any obligation to provide further notice and opportunity to cure for subsequent failures to meet any time or performance related requirements, or breaches of terms or conditions of such franchise or other agreement, license or permit, violations of this chapter, or violations of any federal, state, or local law, rule, regulation code. Evidence of subsequent failures as set forth in this subsection shall be admissible as evidence in a hearing before the Town Board on the assessment of liquidated damages, provided that the Town has provided such evidence to the franchisee or other MCS provider at least 10 days prior to the hearing and the MCS provider has an opportunity to be heard at the hearing.

F. 

A notice of intent to assess liquidated damages may be issued concurrently with a notice to cure. If a notice of intent to assess liquidated damages is issued concurrently with a notice to cure, liquidated damages, if assessed, will accrue commencing with the expiration of the time allowed for an opportunity to cure as set forth in the notice. The notice of intent to assess liquidated damages shall state the reason for the assessment and imposition, and shall inform the franchisee or other MCS provider that liquidated damages will be assessed from the date of the notice, or the end of the time allowed for an opportunity to cure, whichever is later.

G. 

If the franchisee or other MCS provider desires to appeal the Town's assessment of liquidated damages, it must file a written notice of appeal with the Town Clerk, delivered by certified U.S. mail, within 10 days of the receipt of the notice of intent to assess liquidated damages. The Town Clerk shall then place the issue of the assessment of liquidated damages before the Town Board.

H. 

The Town shall then have served upon the affected MCS provider a written notice of the date, time and place of the meeting, at least 30 days prior to the day of the meeting of the Town Board at which the matter will be heard.

I. 

Public notice shall be given of the meeting and the issue that is to be considered by the Town Board. If the franchisee or other MCS provider fails to appeal the Town's assessment of liquidated damages within the time required by this section, the Town's decision to assess liquidated damages shall be final.

J. 

The Town Board shall, at the date time and place designated for the hearing, hear and consider issues from the Town and the MCS provider and make a determination regarding the alleged violation of this chapter or any franchise, other agreement, license or permit.

(1) 

The Town Board shall hear and consider the matter, including hearing any person interested in the matter wishing to be heard, and review and consider any relevant evidence. After affording the MCS provider required rights of due process to be heard, to present relevant evidence and witnesses and to question any witnesses, the Town Board shall determine whether or not there was committed a breach or violation of a time- or performance-related requirement, or a breach of a term or condition of the MCS provider's franchise or other agreement, license or permit, or of this chapter, or of any federal, state, or local law, rule, regulation or code.

(2) 

The franchisee or other MCS provider may, at its own expense, make a transcript of any such hearing, or share the costs of obtaining a transcript of such hearing equally with the Town if the Town has a transcript made.

(3) 

Within 30 days following the completion and close of the hearing, the Town Board shall issue a written decision as regards to whether any failure to comply with any time- or performance-related requirement, or breach of a term or condition of the franchise or other agreement, license or permit, or of this chapter, or of any federal, state, or local law, rule, regulation or code occurred, based upon the record of the proceeding, stating with particularity the reasons for such decision. A copy of the Council's decision shall be provided to the franchisee or other MCS provider.

(4) 

Should the Town Board find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in Subsection B of this section, that the franchisee or other MCS provider remedied the failure prior to the end of the period allowed for cure, or that the franchisee or other MCS provider instituted substantial actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial efforts to complete such remedy, or that liquidated damages are not warranted or applicable in the instant situation, all of which shall be determined at the sole discretion of the Town Board, the proceedings shall be terminated and no penalty shall be imposed.

(5) 

The Town Board shall be required to base its decision on a preponderance of the evidence from the record established during the Town Board's hearing. If the Town Board determines that any time- or performance-related requirement, or breach of a term or condition of the franchise or other agreement, license or permit, or of this chapter, or of any federal, state, or local law, rule, regulation or code was the fault of the MCS provider, and was within its control, subsequent to the required notice and opportunity to cure and due process requirements of this chapter, the Town Board may affirm the assessment and imposition of liquidated damages. The Town Board's decision to affirm the Town's assessment of liquidated damages shall be final and no other remedies, administrative or otherwise, nor any procedures for such, are provided under this chapter.

(6) 

Prior to imposing any penalty or sanction against the MCS provider for failure to perform any of its obligations under this chapter or its franchise agreement or other agreement or permit, other than liquidated damages or termination, the Town shall provide the franchisee or other MCS provider notice and opportunity to cure such failure in accordance with the following procedures in Subsection J(7) and (8) of this section.

(7) 

The Town shall provide the franchisee or other MCS provider with written notice specifying the nature of the failure, breach or violation. The franchisee or other MCS provider shall have a period of 48 hours following the receipt of such notice to cure or satisfy the alleged failure, breach or violation, with the exception of situations addressed in Subsection B of this section.

(8) 

In the event the Town concludes that the Franchisee or other MCS provider has failed to comply with any of its obligations under this chapter or the franchise agreement or other agreement, license, or permit, and further, that the MCS provider has not remedied such failure, breach or violation within the period allowed after receiving written notice of such, the Town may impose whatever penalties or other sanctions are provided for under this chapter or the franchisee's or other MCS provider's franchise agreement or other agreement or permit.