A. Franchise Violations: Whenever the grantor believes that the grantee has allegedly violated one or more terms, conditions or provisions of this franchise, a written notice shall be given to the grantee. The written notice shall describe in reasonable detail the alleged violation so as to afford the grantee an opportunity to remedy the violation. The grantee shall have thirty (30) days subsequent to receipt of the notice in which to either correct the violation or, if the violation cannot be corrected within the thirty (30) day period, to have commenced and be diligently pursuing corrective action. The grantee may, within ten (10) business days of receipt of notice, notify the grantor that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by the grantee to the grantor shall specify with particularity the matters disputed by the grantee and shall stay the running of the above described time.
1. The grantor shall hear the grantee's dispute at a regularly or specially scheduled meeting. The grantee shall have the right to subpoena and cross examine witnesses. The grantor shall determine if the grantee has committed a violation and shall make written findings of fact relative to its determination. If a violation is found, the grantee may petition for reconsideration.
2. If, after hearing the dispute, the claim is upheld by the grantor, the grantee shall have thirty (30) business days from such a determination to remedy the violation or failure.
The time for the grantee to correct any alleged violation shall be extended by the grantor if the necessary action to correct the alleged violation is of such a nature or character to require more than thirty (30) days within which to perform, provided the grantee commences the corrective action within the thirty (30) day period and thereafter uses reasonable diligence to correct the violation. Notwithstanding the above provisions, the grantee does not waive any of its rights under federal law.
B. Franchise Revocation: In addition to all other rights which the grantor has pursuant to law or equity, the grantor reserves the right to revoke, terminate or cancel this franchise, and all rights and privileges pertaining thereto in accordance with the following procedures and applicable federal law, in the event that:
1. The grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged as bankrupt and grantee's creditors or trustee in bankruptcy do not agree to fulfill and be bound by all requirements of this franchise; or
2. The grantee violates a material provision of this franchise after being notified of such violation and being given time to cure or refute the alleged violation in accordance with subsection A of this section.
C. Revocation Procedures: In the event that the grantor determines as set forth above that the grantee has violated any material provision of the franchise, the grantor may make a written demand on the grantee that it remedy such violation and that continued violation may be cause for revocation. If the violation, breach, failure, refusal, or neglect is not remedied within thirty (30) days following such demand or such other period as is reasonable, the grantor shall determine whether or not such violation, breach, failure, refusal or neglect by the grantee is due to acts of God or other causes which result from circumstances beyond the grantee's control. Such determination shall not unreasonably be withheld.
1. A public hearing shall be held and the grantee shall be provided with an opportunity to be heard upon fourteen (14) days' written notice to the grantee of the time and the place of the hearing. The causes for pending revocation and the reasons alleged to constitute such cause shall be recited in the written notice. Said notice shall affirmatively recite the causes that need to be shown by the grantor to support a revocation.
2. If notice is given and, at the grantee's option, after a full public proceeding is held, the grantor determines there is a violation, breach, failure, refusal or neglect by the grantee which is not an event of force majeure, the grantor shall direct the grantee to correct or remedy the same within such reasonable additional time, in such manner and upon such reasonable terms and conditions as the grantor may direct.
3. If, after a public hearing, it is determined that the grantee's performance of any of the terms, conditions, obligations, or requirements of the franchise was 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 the grantee has notified the grantor in writing within thirty (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, civil emergencies and labor strikes.
4. If, after notice is given and, at the grantee's option, a full public proceeding is held, the grantor determines there was a violation, breach, failure, refusal or neglect, which is not an event of force majeure, then the grantor may declare, by resolution, the franchise revoked and canceled and of no further force and effect unless there is compliance within such period as the grantor may fix, such period not to be less than thirty (30) days.
5. If the grantor, after notice is given and, at the grantee's option, a full public proceeding is held and appeal is exhausted, declares the franchise breached, the parties may pursue their remedies pursuant to franchise or any other remedy, legal or equitable. The grantee may continue to operate the system until all legal appeals procedures have been exhausted.
6. Notwithstanding the above provisions, the grantee does not waive any of its rights under federal law or regulation. (Ord. 255, 10-6-2003)