If grantee fails to perform in a timely manner any material obligation required by this division or a franchise granted hereunder, following reasonable written notice from the grantor and a not less than thirty-day opportunity to cure such nonperformance in accordance with the provisions of Chapter
4.76 and the franchise, grantor may at its option and in its sole discretion:
A. Cure
the violation and recover the actual cost thereof from the security
fund established in the franchise agreement if such violation is not
cured within thirty days after written notice to the grantee of grantor's
intention to cure and draw upon the security fund, unless grantor
has provided grantee with additional time to effectuate a cure, the
granting of additional time not to be unreasonably withheld;
B. Assess
against grantee liquidated damages in an amount set forth in the franchise
agreement for any such violation(s) if such violation is not cured,
or if grantee has not commenced a cure, on a schedule reasonably acceptable
to grantor, within thirty days after written notice to the grantee
of grantor's intention to assess liquidated damages. Such assessment
may be withdrawn from the security fund, and shall not constitute
a waiver by grantor of any other right or remedy it may have under
the franchise or applicable law, including without limitation, its
right to recover from grantee such additional damages, losses, costs
and expenses, including actual attorney's fees, as may have been suffered
or incurred by grantor by reason of or arising out of such material
breach of the franchise.
(Ord. 960 § 2, 2000)
Prior to imposing any remedy or other sanction against grantee
specified in this division, grantor shall give grantee notice and
opportunity to be heard on the matter, in accordance with the following
procedures:
A. Grantor
shall first notify grantee of the alleged violation in writing by
personal delivery or registered or certified mail, and demand correction,
or evidence of nonviolation, within a reasonable time, which shall
not be less than thirty calendar days. If grantee fails to:
1. Correct
the alleged violation within the time prescribed; or
2. Commence
correction of the alleged violation within the time prescribed and
diligently remedy such alleged violation thereafter; or
3. Provide
evidence that there is no violation, the grantor shall then give,
by personal delivery or registered or certified mail written notice
of not less than thirty days of a public hearing to be held before
the council. Said notice shall set forth in detail each of the violations
alleged to have occurred.
B. Subsequent
to the public hearing, the council shall hear and consider all other
relevant evidence, and thereafter render findings and its decision.
C. If the
council finds that:
1. The
grantee has corrected the alleged violation; or
2. The
grantee has diligently commenced correction of such alleged violation
after notice thereof and is diligently proceeding to fully remedy
such alleged violation; or
3. No
material violation has occurred; the proceedings shall terminate and
no penalty or other sanction shall be imposed.
D. If the
council finds that material violations exist and that grantee:
1. Has
not corrected the same in a satisfactory manner; or
2. Has
not diligently commenced correction of such violation after notice
thereof and is not diligently proceeding to fully remedy such violation;
then the council may impose one or more of the remedies provided in
this division and the franchise agreement as it, in its discretion,
deems appropriate under the circumstances.
(Ord. 960 § 2, 2000)
The grantee may appeal a finding of revocation made pursuant to Section
4.76.030 to an appropriate court of jurisdiction. Any such appeal must be taken by the grantee within ninety days of the issuance of the grantor's decision to revoke the franchise.
(Ord. 960 § 2, 2000)