(a) In case of any material failure of Permittee's physical plant, whether due to damage, age, lack of maintenance or any other cause, the City shall, if necessary, notify such Permittee who shall, within a reasonable period of time as stipulated by the City, respond and repair such failed plant. Should the Permittee fail to act as required, or in cases where protection of public safety requires an immediate response, the City may take any required, corrective action and recover the costs of same from the Perrnittee. The cost thereof shall be a lien upon all facilities and property of the Permittee, until paid.
(b) Nothing in this chapter shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this chapter. In addition, to any rights set out elsewhere in this chapter, the City reserves the right to seek revocation of a Permit and all rights and privileges pertaining thereto, pursuant to the provisions hereof, in the event that any of the following are found to have occurred:
(1) A violation of any material provision of the Permit; or,
(2) The Permittee becomes insolvent, or is adjudged a bankrupt; or,
(3) An unauthorized sale, assignment or transfer of Permittee's Permit or a substantial interest therein; or,
(4) Misrepresentation by or on behalf of a Permittee in any application to the City; or,
(5) Abandonment of telecommunications facilities in the Rights-of-Way; or,
(6) Failure to relocate or remove facilities as required in this chapter; or,
(7) Failure to pay compensation, fees or costs when and as due the City.
(c) Upon failure of the Permittee to comply with any material term of the Permit, the City may, by ordinance, revoke the Permit in accordance with the procedures set forth in this section. Upon revocation, all rights of the Permittee shall immediately be divested without any further act upon the part of the City. At City's option and to the extent permitted or in the manner required by applicable State law, City shall either purchase Permittee's facilities in accordance with this chapter, or City shall require or seek to require, as the case may be, Permittee to remove its facilities from the Rights-of-Way. If City requires removal, the Permittee shall forthwith remove its structures or property from the Rights-of-Way and restore it to such condition as the City may require. Upon failure to do so, the City may perform the work and collect the cost thereof from the Permittee. The cost thereof shall be a lien upon all facilities and property of the Permittee, until paid. Such lien shall not attach to property of Permittee located on the poles of other utilities until removal of such property from the poles or poles.
(d) Procedures for Revocation:
(1) Upon written recommendation by the Director or upon its own motion, the City Council, by its City Attorney, shall give written notice to the Permittee of the existence of a material violation or failure to comply with the Permit. Permittee shall have a period of sixty days after receipt of such notice in which to cease such violation and comply with the terms and provisions hereof. In the event Permittee fails to cease such violation or to otherwise comply with the terms hereof, then Permittee's Permit is subject to revocation under the following provisions. Provided, however, that, if the Permittee commences work or other efforts to cure such violations within thirty days after receipt of written notice and shall thereafter prosecute such curative work with reasonable diligence until such curative work is completed, then such violations shall be deemed to cease to exist, and the Permit will not be revoked. If the curative work is not completed within ninety days of commencement of such work, Permittee and the Director shall report to Council with respect to the progress made on such curative work and the anticipated completion date.
(2) Revocation shall be declared only by a written decision from the City Council after an appropriate public proceeding whereby the Permittee is afforded the full opportunity to be heard and to respond to any such notice of violation or failure to comply. The Permittee shall be provided at least ten days prior written notice of any public hearing concerning the revocation of the Permit and, in addition, ten days notice by publication shall be given of the date, time and place of any public hearing to interested members of the public, which notice shall be paid for by the Permittee.
(3) The City Council may, in its sole discretion, after full public hearing, and upon finding a material violation or failure to comply, revoke the Permit or impose a lesser penalty than revocation of the Permit, including but not limited to a penalty of up to one thousand dollars ($1,000) per day per violation, or excuse the violation or failure to comply upon a showing by the Permittee of mitigating circumstances or upon a showing of good cause for said violation or failure to comply.
(e) Receivership. The City shall have the right to terminate the Permit 120 days after the appointment of a receiver, or trustee, to take over and conduct the business of the Permittee, whether in 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) Within 120 days after election or appointment, such receiver or trustee shall have fully complied with all the provisions of the Permit and remedied all defaults thereunder; and
(2) Such receiver or trustee, within said 120 days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of the Permit.
(Ord. 97-36. Passed 12-1-97.)