§ 30-52. Termination and renewal.

(a)

Termination.

(1)

In addition to any rights set out elsewhere in this Act, in particular subsections 30-46(f) and 30-52(g), the grantor reserves the right to seek termination of a franchise pursuant to subsection (a)(3) hereof, and all rights and privileges pertaining thereto, in the event that:

a.

Violation of provisions. The grantee violates any material provision of the franchise; or

b.

Construction delays. The grantee's construction schedule is delayed for over 18 months; or

c.

Insolvency. The grantee becomes insolvent, or is adjudged a bankrupt; or

d.

Fraud. The grantee is found by grantor to have practiced any fraud or deceit upon the grantor or subscribers.

(2)

Upon failure of the grantee to comply with the material terms of the franchise, the grantor may by ordinance terminate the franchise in accordance with the procedures set forth in this section. Upon termination, all rights of the grantee shall immediately be divested without further act upon the part of the grantor. At grantor's option, grantor shall either purchase grantee's equipment and plant in accordance with subsection 30-51(a), or grantor shall require grantee to remove its equipment and plant from the public property and rights-of-way. If grantor requires removal, the grantee shall forthwith remove its structures or property from the rights-of-way and restore it to such condition as the grantor may require. Upon failure to do so, the grantor may perform the work and collect the cost thereof from the grantee. The cost thereof shall be a lien upon all equipment and plant and property of the grantee. Such lien shall not attach to property of grantee located on poles of other utilities until removal of such property from the pole or poles.

(3)

Procedures for termination.

a.

Upon written recommendation by the director or upon its own motion, the city council shall give written notice to the grantee of the existence of a material violation or failure to comply with the franchise. Grantee shall have a period of 60 days after receipt of such notice from the grantor in which to cease such violation and comply with the terms and provisions hereof. In the event grantee fails to cease such violation or to otherwise comply with the terms hereof, then grantee's franchise is subject to termination under the following provisions. Provided, however, that, if the grantee commences work or other efforts to cure such violations within 30 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 cease to exist, and the franchise will not be terminated. If the curative work is not completed within 90 days of commencement of such work, grantee and the department shall report to grantor with respect to the progress made on such curative work and the anticipated completion date.

b.

Termination shall be declared only by a written decision of the city council after an appropriate public proceeding whereby the grantee is afforded the full opportunity to be heard and to respond to any such notice of violation or failure to comply. The grantee shall be provided at least ten days' prior written notice of any public hearing concerning the termination of the franchise 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 grantee.

c.

The city council, after full public hearing, and upon finding a material violation or failure to comply, may at its discretion terminate the franchise, or impose a lesser penalty than termination of the franchise, including but not limited to a penalty of up to $1,000.00 per day per violation, or excuse the violation or failure to comply upon a showing by the grantee of mitigating circumstances or upon a showing of good cause of such violation or failure to comply as may be determined by the city council.

(b)

Receivership. The grantor shall have the right to terminate the franchise 120 days after the appointment of a receiver, or trustee, to take over and conduct the business of the grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of the 120 days or unless:

(1)

Trustee compliance. Within 120 days after his/her election or appointment, such receiver or trustee shall have fully complied with all the provisions of the franchise and remedied all defaults thereunder; and

(2)

Agreement to be Bound. Such receiver or trustee, within such 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 Franchise.

(c)

Renewal or Extension. Upon expiration of the initial term of the Franchise, the Grantor may, at its election renew or not renew the Franchise. A Franchise may be renewed by the Grantor, upon application by the Grantee, in accordance with the then existing rules, the New Orleans City Charter, and applicable law. Nothing in this provision shall be construed to require such renewal.

(M.C.S., Ord. No. 17,560, § 1, 6-6-96)