(a) Franchise May be Terminated for Material Breach of Terms and Conditions. Subject to the grantee's right to cure in Section 805.15(b), and in addition to all other rights and powers retained by the County, the County reserves the right to terminate a franchise and all rights and privileges of the grantee in the event of a material breach of this chapter or a franchise agreement. A material breach by a grantee shall include, but shall not be limited to, the following:
(1) Substantial and/or repeated violations of any material provision of this chapter or the franchise agreement or any material rule, order, regulation or determination of the County made pursuant to a franchise;
(2) Attempt to evade any material provision of this chapter or a franchise agreement, or practice any fraud or deceit upon the County or the subscribers of the cable system;
(3) Failure to begin or complete cable system construction, reconstruction or cable system extension as provided under a franchise agreement;
(4) Failure to provide cable service for ninety-six consecutive hours, except when there is just cause and/or when approval of such interrupted service is obtained from the County;
(5) Substantial failure to provide the financial information required by this chapter and/or the franchise agreement;
(6) Substantial failure to satisfy the requirements regarding system characteristics or repeated failure to meet the technical performance standards specified in a franchise agreement;
(7) Abandonment of the system, in whole or in material part, without the prior written consent of the County;
(8) Substantial and/or repeated failure to comply with the leased access requirements of Section 612 [47 U.S.C. 532], Title VI, of the Communications Act of 1934;
(9) Substantial failure to supply the access channels and other support and any related services, equipment and facilities as required in a franchise agreement;
(10) Repeated imposition of any fee, charge, deposit, or associated term or condition, for any service which is not consistent with the provisions of a franchise agreement, or of which there has repeatedly and unjustifiably been no notification to the County;
(11) Substantial and/or repeated failure to comply with the consumer service standards and requirements set forth in this chapter and a franchise agreement;
(12) The taking of any material action which requires the approval or consent of the County without having first obtained said approval or consent;
(13) Any material misrepresentation, made by or on behalf of a grantee in its proposal to obtain a franchise, or in connection with the negotiation or re-negotiation of, or any amendment or other modification to a franchise agreement, to the extent that any such misrepresentation was relied upon by the County;
(14) There is made an assignment for the benefit of creditors or an appointment of a receiver or trustee to take over the business of the grantee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or a foreclosure or other action or proceeding, unless the applicable conditions set forth in subsections (i) and (j) hereof are fulfilled.
(b) Procedures Outlined Leading to Possible Termination of Franchise. Upon determining that a material breach has occurred, the County Administrator/Designee may make a written demand that a grantee correct such a material breach. If the violation, breach, failure, refusal or neglect by a grantee continues for a period of ninety days following such written demand without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the Board of Supervisors shall hold a public hearing, with public notice as required by Section 15.2-1427 of the Code of Virginia, on the issue of termination of a franchise. The County Administrator/Designee shall cause to be served upon the grantee, at least twenty days prior to the date of such Board meeting, a written notice of intent to request such termination and the time and place of the meeting.
(c) County Board of Supervisors Shall Hear and Consider Issues and Determine if a Violation Has Occurred. The County Board of Supervisors shall hear and consider the issue and shall hear any person interested therein, and shall determine, whether or not any violation by a grantee has occurred. If, after considering the County Administrator's request for termination of the franchise and hearing all interested parties, the Board determines that the noncompliance of the grantee was with just cause, it shall direct the grantee to comply within such time, in such manner and on such terms and conditions as are reasonable.
(d) County Board of Supervisors May Declare Franchise Terminated. If, after holding a public hearing, the County Board of Supervisors shall determine that a violation by a grantee exists, and the Board makes findings that such violation was without just cause and was the fault of the grantee and within its control, the County Board of Supervisors, may declare that the franchise of the grantee be terminated, and instruct the grantee to promptly remove from the public way all of its cable television facilities in accordance with Section 805.08 of this chapter. The Board may seek legal and equitable relief in order to ensure compliance with this provision. In the alternative, the Board may adopt a resolution which invokes the County's right to purchase the assets of the grantee's cable television system at a price not to exceed its fair market value adjusted downward for the harm to the County or subscribers, if any, resulting from the grantee's breach of its franchise agreement or violation of this chapter and as further adjusted to account for other equitable factors that may be considered consistent with 47 U.S.C. 547. Such purchase must be consummated one year from the date of the franchise revocation, unless challenged in Court, in which case such year shall run from the date of entry of a final Court Order. The termination of the franchise shall in no way affect any of the rights of the County under the franchise agreement or any provision of law.
(e) Summary Revocation. If the grantee arbitrarily or capriciously discontinues all cable service to some or all of its subscribers, the Board of Supervisors may, by resolution, after at least ten days notice to the Grantee and an opportunity for the grantee to be heard, declare the grantee's franchise immediately terminated and the County may seek appropriate judicial injunctive relief and may proceed to exercise its rights and powers as provided for in this chapter.
(f) Transfer of Ownership to County.
(1) If, in lieu of termination and as provided in subsection (d) hereof, the County elects to purchase the grantee's cable television system and the fair market value adjusted downward for the harm to the County or subscribers, if any, resulting from the grantee's breach of its franchise agreement or violation of this chapter and as further adjusted to account for other equitable factors that may be considered consistent with 47 U.S.C. 547, cannot be agreed upon, the final price shall be determined by a panel of arbitrators following the Federal guidelines established in 47 U.S.C. 547. The panel shall be composed of one member appointed by the County, one member appointed by the grantee and a third member chosen by the first two. The expenses of the arbitration, including the fees of the arbitrators, shall be borne by the parties in such manner as the arbitrators provide in their award, provided, however, that the County shall not be obligated for more than one-half of the expenses. If the County does not accept the award of the arbitrators within ninety days after the rendering of the decision, the rights of the County to purchase the cable television system shall expire.
(2) Upon payment of the purchase price, the grantee shall immediately transfer to the County possession and title to all facilities and property, real and personal, related to the cable television system, free of all liens and encumbrances not agreed to be assumed by the County in lieu of some form of the purchase price.
(g) County Assignment of Purchase Rights. The County may assign its purchase rights to a successor grantee, selected by the County, in a manner not inconsistent with this chapter.
(h) Grantee's Obligation as Trustee.
(1) Until the grantee transfers to the County, or to a new grantee, possession and title to all assets, real and personal, related to its cable television system, the grantee shall, as trustee for its successors in interest, continue to operate the cable television system under this chapter and the franchise agreement and to provide the regular subscriber service and any and all of the services that may be provided at that time. During such interim period, the grantee shall not sell any of the system assets or make any physical, material, administrative or operational change that would tend to degrade the quality of service to the subscribers, decrease income or materially increase expenses, without the express written permission of the County or its assignee. The County may seek legal and equitable relief to enforce the provisions of this subsection.
(2) For its management services during such interim period, the grantee is entitled to receive, as compensation, the net profit, as deemed by generally accepted accounting principles, generated during the period between the date the grantee received written notice from the County of its intent to purchase the grantee's cable television system or the expiration date of the franchise, whichever is earlier, and the payment of the purchase price. Such management services shall not be continued without the grantee's consent for more than thirty-six months. This section does not limit the County's right to forthwith terminate the grantee's franchise and have the system removed, pursuant to this chapter.
(i) Franchise May Cease and Terminate 120 Days After Appointment of Receivers. Any franchise granted shall, at the option of County, 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 the 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 chapter and a 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 have within 120 days executed an agreement duly approved by the Court having jurisdiction, whereby such receivers or trustees assume and agree to be bound by each and every term, provision, and limitation of the franchise agreement.
(j) Procedure if a Foreclosure Occurs. In the case of a foreclosure or other involuntary sale of the plant, property, and equipment of the grantee, or any part thereof, County may serve notice of termination upon the grantee and to the purchaser at such sale, in which event the franchise and rights and privileges of the grantee shall cease and terminate thirty days after service of such notice unless:
(1) The County has approved the transfer of the franchise, as and in the manner in this chapter provided; and
(2) Such successful purchaser shall have covenanted and agreed with County to assume and be bound by all the terms and conditions of the franchise agreement.
(Ord. 98-05. Passed 4-15-98.)