If Grantee fails to perform any obligation under the franchise,
or fails to do so in a timely manner, City may at its option, and
in its sole discretion:
(a)
Assess against Grantee monetary damages up to the limits established
in the franchise agreement for material franchise violations, said
assessment to be levied against the security fund, hereinabove provided,
and collected by City immediately upon said assessment. The amount
of such assessment shall be deemed, without proof to represent liquidation
of damages actually sustained by City by reason of Grantee's failure
to perform. Such assessment shall not constitute a waiver by City
of any other right or remedy it may have been under the franchise
or under applicable law including, without limitation, its right to
recover from Grantee such additional damages, losses, costs and expenses,
including actual attorney's fees, as may have been suffered or incurred
by City by reason of or arising out of such breach of the franchise.
This provision for assessment of damages is intended by the parties
to be separate and apart from City's right to enforce the provisions
of the construction and performance bonds provided for in Sections
6.108.08.010 and 6.108.08.020, and is intended to provide compensation
to City for actual damages.
(b)
Terminate the franchise, for any of the causes stated in Section
6.108.20.040, below, or other material breach of the franchise.
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City may, in its sole judgment and discretion, impose any or
all of the above-enumerated measures against Grantee, which shall
be in addition to any and all other legal or equitable remedies it
has under the franchise or under any applicable law. No remedy shall
be imposed by City against Grantee for any violation of the franchise
without Grantee being afforded due process of law, as provided for
in Section 6.108.20.050 below.
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(Prior code § 63075; added
by Ord. No. 1407CCS, adopted 4/28/87)
City may impose the following remedies with regard to delays
in new system construction, or major system reconstruction or expansion:
(a)
Reduction in the duration of the franchise on a month-for-month basis
for each month of delay exceeding six months.
(b)
Forfeiture of construction bonds and/or assessment of monetary damages
up to the maximum per day and per incident limits specified in the
franchise agreement, levied against the security fund, for delays
exceeding one year.
(c)
Termination of the franchise within one year after award of the franchise
if Grantee has failed to initiate scheduled system construction or
reconstruction.
(d)
Termination of the franchise for delays exceeding 18 months.
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Any remedies applied shall be in accordance with procedures
contained in Section 6.108.20.050 herein.
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(Prior code § 63076; added
by Ord. No. 1407CCS, adopted 4/28/87)
In the event that City determines that Grantee has violated
any provision of the franchise, any rule or regulation promulgated
pursuant hereto or any applicable federal, state, or local law, City
may make a written demand on Grantee that it remedy such violation.
If the violation breach, failure, refusal, or neglect is not remedied
to the satisfaction of City within 30 days following such demand,
City shall determine whether or not such violation, breach, failure,
refusal, or neglect by Grantee was excusable or inexcusable, in accordance
with the following procedure:
(a)
A public hearing shall be held and Grantee shall be provided with
an opportunity to be heard upon 30 days written notice to Grantee
of the time and the place of the hearing provided and the allegations
of franchise violations.
(b)
If, after notice is given and, at Grantee's option, a full public
proceeding is held, City determines that such violation, breach, failure,
refusal, or neglect by Grantee was excusable as provided in Section
6.108.20.070 below, City shall direct Grantee to correct or remedy
the same within such additional time, in such manner, and upon such
terms and conditions as City may direct.
(c)
If, after notice is given and, at Grantee's option, a full public
proceeding is held, City determines that such violation, breach, failure,
refusal, or neglect was inexcusable, then City may impose a remedy
in accordance with Section 6.108.20.010 above.
(Prior code § 63077; added
by Ord. No. 1407CCS, adopted 4/28/87)
(a)
Grounds for Revocation. City reserves the right to revoke
any franchise granted hereunder and rescind all rights and privileges
associated with the franchise in the event of a material breach of
this ordinance or the franchise agreement. A material breach of the
franchise shall include, but not be limited to:
(1)
If Grantee should default in the performance of any of its material
obligations under this ordinance or under such documents, agreements,
and other terms and provisions entered into by and between City and
Grantee, subject to the provisions of Section 6.108.20.030.
(2)
If Grantee should fail to provide or maintain in full force and effect,
the liability and indemnification coverages or the security fund and
bonds as required herein.
(3)
If any court of competent jurisdiction, or any Federal or State regulatory
body by rules, decisions, or other action determines that any material
provision of the franchise documents, including this ordinance, the
franchise agreement, and Grantee's application is invalid or unenforceable
prior to the commencement of system construction.
(4)
If Grantee should willfully violate any orders or rulings of any
regulatory body having jurisdiction over Grantee relative to the franchise.
(5)
If Grantee ceases to provide services of the cable communications
system for any reason within Control of Grantee.
(6)
If Grantee attempts to evade any of the provisions of this ordinance
or the franchise agreement or attempts to practice any fraud or deceit
upon City.
(7)
If Grantee's construction, reconstruction, or system extension schedule
is delayed for more than 18 months later than the schedule contained
in the franchise agreement and City finds that the delay was not excusable
under the provisions of Section 6.108.20.070.
(8)
If Grantee becomes insolvent, unable, or unwilling to pay its debts,
or upon listing of an order for relief in favor of Grantee in a bankruptcy
proceeding.
(b)
Procedure Prior to Revocation.
(1)
City may make written demand that Grantee comply with any such requirement,
limitation, term, condition, rule, or regulation or correct any action
deemed cause for revocation. If the failure, refusal, or neglect of
the Grantee continues for a period of 30 days following such written
demand, City may place the issue of termination of the franchise upon
a regular City Council meeting agenda. City shall cause a written
notice of intent to request termination, including the time and place
of the meeting, to be served upon such Grantee at least 10 days prior
to the date of such meeting. Such notice shall be published in a newspaper
of general circulation within the franchise area at least once, 10
days before such meeting.
(2)
City shall hear any persons interested therein, and shall determine
whether Grantee has committed a material breach of this ordinance
or the franchise agreement, and, if so, whether such breach was willful.
(3)
If City determines that Grantee has committed a material breach,
City may, by resolution, declare that the franchise of such Grantee
shall be terminated and security fund and bonds forfeited, or the
City may, at its option and if the material breach is capable of being
cured by Grantee, direct Grantee to take appropriate remedial action
within such time and manner and upon such terms and conditions as
City shall determine are reasonable under the circumstances. The City
may place conditions on any Grantee forfeiture, including, but not
limited to, establishing the date on which such forfeiture shall become
effective.
(Prior code § 63078; added
by Ord. No. 1407CCS, adopted 4/28/87)
(a)
Disposition of Facilities. In the event a franchise
expires, is revoked, or otherwise terminated, City may order the removal
of the system facilities from the franchise area within a reasonable
period of time as determined by the City or require the original Grantee
to maintain and operate its cable system until a subsequent Grantee
is selected and a subsequent or modified cable system becomes operational.
Grantee shall promptly, upon being given 10 days notice, remove from
the streets or public places all such property such system other than
any which the General Services Director may permit to be abandoned
in place. In the event of such removal, Grantee shall promptly restore
the street or other area from which such property has been removed
to a condition satisfactory to the General Services Director.
Any property of Grantee remaining in place 30 days after the
termination or expiration of the franchise shall be considered permanently
abandoned. The General Services Director may extend such time not
to exceed a reasonable period.
(b)
Abandonment of Property. Any property of Grantee to
be abandoned in place shall be abandoned in such manner as the General
Services Director shall prescribe. Subject to the provisions of any
utility joint use attachment agreement, upon permanent abandonment
of the property of Grantee in place, the property shall become that
of City, and Grantee shall submit to the General Services Director
an instrument in writing to be approved by the City Attorney, transferring
to City the ownership of such property.
(c)
Restoration of Property. In removing its plant, structures,
and equipment, 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 Grantee's removal
of its equipment and appliances without affecting the electrical or
telephone cable wires, or attachments. The liability, indemnity and
insurance, and the security fund and bonds provided shall continue
in full force and effect during the period of removal and until full
compliance by Grantee with the terms and conditions of this Section.
(d)
Extended Operation. Upon either the expiration or revocation
of a franchise, City may require Grantee to continue to operate the
cable communications system for a defined period of time not to exceed
24 months from the date of such expiration or revocation. Grantee
shall, as trustee for its successor in interest, continue to operate
the cable communications system under the terms and conditions of
this ordinance and the franchise agreement and to provide the regular
cable service and any and all of the other services that may be provided
at that time. City shall be permitted to seek legal and equitable
relief to enforce the provisions of this Section.
(e)
Grantor's Right Not Affected. The termination and forfeiture
of any franchise shall in no way affect any of the rights of City
under the franchise or any provision of law.
(Prior code § 63079; added
by Ord. No. 1407CCS, adopted 4/28/87)
(a)
Any franchise granted shall, at the option of City, cease and terminate
120 days after the appointment of a receiver or receivers or trustee
or trustees to take over and conduct the business of Grantee whether
in a receivership, reorganization, bankruptcy, or other action or
proceeding unless such receivership or trusteeship shall have been
vacated prior to the expiration of said 120 days, or unless:
(1)
Such receivers or trustees shall have within 120 days after their
election or appointment, fully complied with all the terms and provisions
of this ordinance and the franchise granted pursuant hereto, and the
receivers or trustees within said 120 days shall have remedied all
defaults under the franchise; and,
(2)
Such receivers or trustees shall within said 120 days, execute an
agreement duly approved by the Court having jurisdiction on the premises,
whereby such receivers or trustees assume and agree to be bound by
each and every term, provision, and limitation of the franchise agreement.
(b)
In the case of a foreclosure or other involuntary sale of the plant,
property, and equipment of Grantee, or any part thereof City may serve
notice of termination upon Grantee and to the purchaser at such sale,
in which event the franchise and rights and privileges of Grantee
hereunder shall cease and terminate 30 days after service of such
notice unless:
(Prior code § 63080; added
by Ord. No. 1407CCS, adopted 4/28/87)
In the event Grantee's performance of any of the terms, conditions,
obligations, or requirements of the franchise is prevented or impaired
due to any cause beyond its reasonable control or not reasonably foreseeable,
such inability to perform shall be deemed to be excused and no penalties
or sanctions shall be imposed as a result thereof, provided Grantee
has notified City in writing within 30 days of its discovery of the
occurrence of such an event. Such causes beyond Grantee's reasonable
control or not reasonably foreseeable shall include, but shall not
be limited to, civil emergencies.
(Prior code § 63081; added
by Ord. No. 1407CCS, adopted 4/28/87)
