§ 5.16.410. Enforcement and remedies.

A.

The City Council may revoke a franchise if it finds, after a hearing, that a cable communications system operator has violated any material provision of this chapter, has committed a material breach of its franchise ordinance or repeatedly failed to comply with its franchise ordinance; has defrauded or attempted to defraud the city or subscribers; or has attempted to evade the requirements of this chapter or its franchise ordinance. Before conducting a hearing to revoke the franchise: (1) the City Administrator must have given written notice of a claimed violation, breach, default or failure; and (2) the franchisee must have been given thirty (30) days to: (a) cure the claimed default, or (b) in the event that, by nature of the default, a cure is not feasible within such thirty (30) day period, initiate reasonable steps to remedy such default. An opportunity to cure is not required where the city finds that the defect in performance is part of a pattern of violations where the franchise has already had notice and opportunity to cure. The franchisee will be given at least thirty (30) days notice of the hearing date, and will be provided an opportunity to be heard at the hearing. Any revocation proceeding must be conducted in accordance with then applicable federal and state laws, and city shall be responsible for ensuring that franchisee is afforded due process under the law.

B.

To the extent not prohibited by the U.S. Bankruptcy Code, a franchise will terminate automatically by force of law one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the franchise may be reinstated within that one hundred twenty (120) day period, if: (1) such assignment, receivership or trusteeship has been vacated; or (2) such assignee, receiver or trustee has fully complied with the terms and conditions of this chapter and the franchise ordinance, and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and the franchise ordinance. In the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a franchisee, the city may revoke the franchise following a public hearing before the City Council, by serving notice upon the franchisee and the successful bidder at the sale, in which event the franchise and all rights and privileges thereunder will be revoked and will terminate thirty (30) calendar days after serving such notice, unless: (1) the city has approved the transfer of the franchise to the successful bidder and (2) the successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the franchise ordinance and this chapter.

C.

Upon termination or forfeiture of a franchise, whether by action of the city as provided above, or by passage of time, the city may do one or a combination of the following.

1.

The franchisee must, as the city so directs, stop using the cable communications system for the purposes authorized by the franchise.

2.

The city may require the former franchisee to remove all of a portion of its facilities and equipment at the former franchisee's expense, subject to franchisee's right to abandon property in place. If the former franchisee fails to do so within a reasonable period of time, the city may have the removal done at the former franchisee's and/or surety's expense.

3.

The city, by resolution of the City Council, may acquire ownership or effect a transfer of all or a portion of the cable communications system at the prices and under the conditions set forth in 47 U.S.C. § 547.

4.

Subsection 5.16.410(D)(3) of this section does not apply to an abandonment If a cable communications system or any part thereof is abandoned by franchisee, the city may require the franchisee to transfer title to the all of some of the abandoned portions to it at no charge, free and clear of encumbrances, and the same will become the city's property and the city may keep, sell, assign, or transfer all or part of the assets of the cable communications system, or otherwise dispose of those assets as it sees fit.

5.

Notwithstanding the foregoing, the city may not, pursuant to this section, issue an order that violates 47 U.S.C. § 541(b)(3)(C).

D.

Remedies provided for under this chapter, or under a franchise ordinance shall be cumulative and are in addition to all other remedies which may be available at law or equity. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee's duty to indemnify the city; or otherwise relieve a franchisee of its franchise obligations.

E.

Each franchise shall contain a provision specifying liquidated damages payable to the city in the event of a breach of a franchise obligation where damages would otherwise be difficult to ascertain.

(Ord. 12729 § 1 (part), 2006)