A. Penalties: For violation of provisions of this chapter or its franchise under this chapter, including, but not limited to, the following, penalties shall be assessable against an owner or operator and shall be chargeable to its performance bond and/or letter of credit in any amount up to the limits specified in section 1-10-2 of this code, at the city's discretion:
1. For failure to supply information, reports, or filings lawfully required under applicable law or agreements;
2. For failure to render payments due under this chapter any applicable agreement or applicable law;
3. For failure to file, obtain or maintain any required performance bond or letter of credit in a timely fashion;
4. For failure to restore damaged property.
B. Injunctive Relief: In addition to any other remedies hereunder, the city may seek an injunction to mitigate or terminate a violation, or employ any other remedy available at law or equity, including, but not limited to, imposition of penalties pursuant to subsection A of this section.
C. Timely Performance Or Compliance: Any failure of the city to insist on timely performance or compliance by any person shall not constitute a waiver of the city's right to later insist on timely performance or compliance by that person or any other person.
D. Termination On Account Of Certain Assignments Or Appointments:
1. To the extent not prohibited by the United States bankruptcy code, a franchise under this chapter shall 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 (including a debtor in possession in a reorganization) to take over the business of the owner or operator, whether in bankruptcy or under a state law proceeding; provided, however, that such franchise shall not so terminate if, within that one hundred twenty (120) day period:
a. Such assignment, receivership or trusteeship has been vacated; or
b. Such assignee, receiver, or trustee has cured any defaults and has fully complied with the terms and conditions of this chapter and any applicable agreement and has executed an agreement, approved by any court having jurisdiction, under which it assumes and agrees to be bound by the terms and conditions of this chapter and any applicable agreement.
c. In the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of an owner or operator of facilities in the public rights of way, its franchise under this chapter shall automatically terminate thirty (30) calendar days after such foreclosure or sale, unless:
(1) The city has approved a transfer 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 binding its predecessor.
d. Any mortgage, pledge or lease of facilities in the public rights of way shall be subject and subordinate to the rights of the city under this chapter any applicable agreement, and other applicable law.
2. If a franchise under this chapter is terminated for any reason, the city may, at its discretion, require the grantee to remove its facilities from the public rights of way and to restore the public rights of way to their prior condition at the owner's or operator's expense, or that of their sureties. If an owner or operator whose franchise has been terminated fails, after reasonable notice from the city, to remove its facilities from the public rights of way, such facilities shall be deemed abandoned and ownership forfeited to the city.
E. Remedies Cumulative: All remedies specified in this chapter are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve an operator of its obligations to comply with this chapter. In exercising any remedy specified in this chapter, including articles A and B, the city shall comply with any substantive and procedural requirements for exercising such remedies in an owner's or operator's franchise agreement or other authorization.
F. Time Limit For Paying Penalty: The owner or operator shall pay any penalty assessed in accordance with this section within fourteen (14) days after receipt of notice from the city of such penalty.
G. Reduce Or Waive Penalties: The city may reduce or waive any of the above listed penalties for good cause shown. (Ord. 29-05, 5-2-2005)