Article XI — Franchise Violations

Except as provided in Section 3.16.170 regarding franchise forfeiture or revocation, if the grantee fails to perform any material obligation under the franchise, or fails to do so in a timely manner, the grantor may at its option, and in its sole discretion pursue the following remedies:

A.

Assess against the grantee monetary damages up to the limits established in the franchise agreement for material franchise violations, said assessment to be levied against the security fund, hereinabove provided, and collected by grantor after completion of the procedures specified in Section 3.16.720 of this article. The amount of such assessment shall be deemed to represent liquidation of damages actually sustained by grantor by reason of grantee's failure to perform. Such assessment shall not constitute a waiver by the grantor of any other right or remedy it may have under the franchise or under applicable law, including

without limitation, its right to recover from grantee such additional damages, losses, costs and expenses, including actual attorney fees, as may have been suffered or incurred by grantor by reason of or arising out of such breach of the franchise. This provision for assessment of damages is intended by the parties to be separate and apart from grantor's right to enforce the provisions of the construction and performance bonds provided for in Article 4 of this chapter.

B.

Bring an action on the construction or performance bonds or an action for indemnity;

C.

None of these remedies shall be imposed by grantor against grantee for any violation of the franchise without grantee being afforded the administrative procedures provided for in Section 3.16.720 of this article;

D.

Grantor may impose any or all of the above enumerated measures against grantee, which shall be in addition to any and all other legal or equitable remedies it has under the franchise or under any applicable law.

(Prior gen. code § 2-127.0)

In the event that the grantor determines that the grantee has violated any material provision of the franchise and decides to impose the remedies specified in Section 3.16.710, the grantor may make a written demand on the grantee that it remedy such violation. If the violation is not remedied, or in the process of being remedied, to the satisfaction of the grantor within thirty (30) days following such demand, the grantor shall determine whether or not such violation by the grantee was excusable or inexcusable, in accordance with the following procedure:

A.

An administrative hearing shall be held by the director of public works to review the alleged violation. If this hearing does not result in a satisfactory resolution, and/or the grantee requests a public hearing, then a public hearing before the board shall be held, and the grantee shall be provided with an opportunity to be heard upon thirty (30) days' written notice to the grantee of the time and the place of the hearing provided and the allegations of franchise violations.

B.

If, after notice is given and at the grantee's option, a full public proceeding is held, and the grantor determines that such violation by the grantee was excusable, the grantor shall direct the grantee to correct or remedy the same within such additional time, in such manner and upon such terms and conditions as the grantor may reasonably direct.

C.

If, after notice is given and, at the grantee's option, a full public proceeding is held, the grantor determines that such violation was inexcusable, then the grantor may impose a remedy in accordance with Section 3.16.710 of this article.

(Prior gen. code § 2-127.1)

In the event grantee's performance of any of the terms, conditions, obligations, or requirements of the franchise is prevented or impaired due to any cause beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof, provided grantee has notified grantor in writing within thirty (30) days of its discovery of the occurrence of such an event. Such causes beyond grantee's reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God and civil emergencies. Grantor and grantee, in the franchise agreement, may mutually define those conditions deemed subject to force majeure application.

(Prior gen. code § 2-127.2)