If the Grantee fails to perform any obligation under this Ordinance or the Franchise Agreement, if any, and any other relevant regulations of the County, or fails to do so in a timely manner, the County may at its option:
A. Assess against the Grantee monetary damages and/or penalties, as the case may be, up to the limits established herein for Ordinance violations or breach of the Franchise Agreement, if any, and collected by the County after completion of the procedures specified herein.
B. Direct the Grantee to issue credits to Subscribers in the bill next generated by the Grantee after the County’s determination. The affected bills shall clearly indicate the amount and basis for such credit.
C. The penalties for certain violations of this Ordinance shall be as set forth below with each day constituting a separate violation, until such violation is cured. No penalty shall be assessed until the Grantee receives written notice from the County specifying the violation.
1. Failure to furnish, maintain or offer all Cable Services to any potential Subscriber within the County upon order of the County consistent with the provisions of this Ordinance: $50.00 per day, per violation, for each day that such failure occurs or continues;
2. Failure to obtain or file evidence of required insurance, construction bonds, or letter of credit: $100.00 per day, per violation, for each day such failure occurs or continues;
3. Failure to provide access to data, documents, records or reports to the County as required: $100.00 per day, per violation, for each day such failure occurs or continues;
4. Failure to comply with applicable construction, operation or maintenance standards: $300.00 per day, per violation, for each day such failure occurs or continues;
5. Failure to comply with a rate decision or refund order: $500.00 per day, per violation, for each day such a violation occurs or continues;
6. Failure to comply with § 5.28.110 (Consumer Service Standards) of this Ordinance: $250.00 per day, per violation, for each day such violation occurs or continues; and
7. Any other violation of this Ordinance not set forth above in paragraphs 1. - 6.: $150.00 per day, per violation, for each day such violation occurs or continues.
D. Such assessment shall not constitute a waiver by the County of any other right or remedy it may have under this Ordinance, the Franchise Agreement, if any, or under applicable law including, without limitation, its right to recover from the Grantee such additional damages, losses, costs and expenses, including actual attorney fees, as may have been suffered or incurred by the County by reason of or arising out of such violation of this Ordinance or a breach of the Franchise Agreement, if any. This provision for assessment of penalties or damages, as the case may be, is intended by the County to be separate and apart from the County’s right to enforce the provisions of the construction bonds provided for in County ordinances or the Franchise Agreement, if any,
E. A repeated and verifiable pattern of non-compliance with this Ordinance, after the Grantee’s receipt of a notice of such non-compliance, may be termed a violation of this Ordinance subject to any and all remedies prescribed in this Ordinance, the Franchise Agreement, if any, the Cable Act and applicable law.
F. Revocation of the Franchise.
1. Grounds for Revocation. The County reserves the right to revoke the Franchise granted hereunder and rescind all rights and privileges associated with the Franchise upon any violation of this Ordinance or material breach of the Franchise Agreement by the Grantee, including but not limited to the following circumstances:
a. If the Grantee shall default in the performance of any of its material obligations under this Ordinance, the Franchise Agreement, if any, or under such other documents, agreements and other terms and provisions entered into by and between the County and the Grantee.
b. If the Grantee should fail to provide or maintain in full force and effect, the liability and indemnification coverages, insurance policies and certificates, bonds or letter of credit as required herein or by other County ordinance.
c. If the Grantee ceases to provide Cable Service for a period exceeding five days for any reason within the control of the Grantee over the Cable System, or abandons the management and/or operation of the System.
d. If the Grantee willfully violates any of the material provisions of this Ordinance or attempts to practice or engages in any fraud upon the County.
e. If the Grantee becomes insolvent, or upon issuance of an order for relief in favor of the Grantee in a bankruptcy proceeding under Chapter 11 of the U.S. Bankruptcy Code, or if any bankruptcy proceeding is initiated by the Grantee or against the Grantee.
f. If the Grantee transfers a controlling interest of the Franchise without the prior approval or consent of the County as required in § 5.28.080 herein.
2. Procedure Prior to Revocation.
a. The County shall make a written demand that the Grantee comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed a cause for revocation. Such written demand shall detail the exact nature of the alleged noncompliance.
b. The County shall conduct a public hearing and hear any persons interested therein, and shall determine, within 90 days, based upon the preponderance of the evidence, whether the Grantee has committed a violation of this Ordinance or a material breach of the Franchise Agreement, if any.
c. If the County determines that the Grantee violated this Ordinance or committed a material breach of the Franchise Agreement, if any, then the County may, by resolution or written order, declare that the Franchise of such Grantee shall be terminated and the Grantee’s letter of credit shall be applied to the payment of any penalties with respect to the violations of this Ordinance or liquidated damages or damages pursuant to the Franchise Agreement, if any; or the County may, in its sole and unfettered discretion and if violation of this Ordinance or the material breach of the Franchise Agreement, if any, is capable of being cured by the Grantee, direct the Grantee to take appropriate remedial action within such time and manner and upon such terms and conditions as the County shall determine are reasonable under the circumstances.
G. Termination Procedures.
1. Disposition of Facilities. Subject to federal, state and local laws, in the event the Franchise expires, is revoked or otherwise terminated, the County may order the removal, at the Grantee’s sole expense, of the above-ground or underground System facilities and any other of the Grantee’s equipment or goods from the Service Area within a reasonable period of time as determined by the County or, in its sole discretion require the Grantee to maintain and operate its Cable System for a period not to exceed 24 months.
2. Restoration of Property. In removing its plant, structures and equipment, the Grantee shall, at its own expense, restore any excavation that shall be made by it and shall leave all Streets and places the same condition as that which prevailed prior to the Grantee’s removal of its plant, structures and equipment without affecting the electrical or telephone cable wires or attachments. The Grantee’s insurance, indemnity obligations, bonds, and letter of credit required by this Ordinance, any other County ordinance, or the Franchise Agreement, if any, shall continue in full force and effect during the period of removal and until full compliance by the Grantee with the terms and conditions of this § 5.28.170.
3. Restoration by the County and Reimbursement of Costs. In the event of a failure by the Grantee to complete any work required by this § 5.28.170, or any other work required by the County, within 15 days after receipt of written notice, and to the satisfaction of the County, the County may cause such work to be done and the Grantee shall reimburse the County the cost thereof within 15 days after receipt of an itemized list of such costs or the County may recover such costs through the letter of credit or bonds provided by the Grantee. The County shall be permitted to seek legal and equitable relief to enforce the provisions of this § 5.28.170.
4. Extended Operation. Subject to federal, state and local law, upon either the expiration or revocation of the Franchise, the County may require the Grantee to continue to operate the Cable System for a defined period of time not to exceed 24 months from the date of such expiration or revocation. The 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, if any, and to provide the regular Cable Service and any of the other services that may be provided at that time in accordance with this Ordinance or the Franchise Agreement, if any.
5. The County’s Rights Not Affected. The termination and forfeiture of a Franchise shall in no way affect any of the rights of the County under any provision of law.
H. The County may impose any or all of the above enumerated measures against a Grantee, which shall be in addition to any and all other legal or equitable remedies it has under the Franchise Agreement, if any, or under any applicable law, including the right to commence an action against the Grantee at law or in equity (including specific performance) or both.
(Ord. O-200203-12-002, passed 3-5-2002)