Poway Municipal Code Art. X Franchise Violations

If the grantee fails to perform any significant and 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:

A. Assess against the grantee monetary damages up to the limits established in the franchise agreement or this chapter for material franchise violations, which the grantee agrees to pay, said assessment to be levied against the security fund, hereinabove provided and collected by the grantor immediately upon said assessment. 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 the grantee such damages, losses, costs and expenses, including reasonable attorney fees actually incurred, as may have been suffered or incurred by the 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 the grantor’s right to enforce the provisions of the construction and performance bonds provided for in Article IV of this chapter, and is intended to provide compensation to the grantor for actual damages.

B. For violations considered by the grantor to have degraded the quality of service, order and direct the grantee to issue rebates or reduce its rates and/or charges to subscribers, in amounts specified in this chapter or the franchise agreement to provide monetary relief substantially equal to the reduced quality of service resulting from the grantee’s failure to perform.

C. Terminate or shorten the franchise period, for any of the causes stated in Article II of this chapter, above or otherwise contained within this chapter or the franchise agreement.

D. No remedy shall be imposed by the grantor against the grantee for any violation of the franchise without the grantee being afforded due process of law, as provided for in PMC § 5.60.435. The grantor may, in its sole judgment and discretion, impose any of all of the above enumerated measures against the grantee, which shall be in addition to any and all other legal or equitable remedies it has under this chapter or under any applicable law.

(Ord. 129 § 12.1, 1984; Ord. 298 § 1, 1989)

In the event that the grantor determines that the grantee has violated any provision of the franchise, any rule or regulation promulgated hereto or any applicable Federal, State, or local law, the grantor may make a written demand on the grantee that it remedy such violation. If the violation, breach, failure, refusal, or neglect is not remedied to the satisfaction of the grantor within 30 days following such demand, the grantor shall determine whether or not such violation, breach, failure, refusal, or neglect by the grantee was excusable or inexcusable, in accordance with the following procedure:

A. A public hearing shall be held and the grantee shall be provided with an opportunity to be heard upon 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, the grantor determines that such violation, breach, failure, refusal, or neglect by the grantee was excusable as provided in PMC § 5.60.440, 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 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, breach, failure, refusal or neglect was inexcusable, then the grantor may assess a penalty or remedy in accordance with PMC §§ 5.60.430 and 5.60.440.

(Ord. 129 § 12.2, 1984)

In the event the 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 excused as a result thereof, provided the grantee has notified the grantor in writing within 30 days of its discovery of the occurrence of such an event. Such causes beyond the grantee’s reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God and civil emergencies.

(Ord. 129 § 12.3, 1984; Ord. 298 § 1, 1989)

Any conclusion by the grantor, pursuant to this section shall be made in writing and supported by written findings supported by evidence within the record of said proceedings.

(Ord. 129 § 12.4, 1984)