(A) Remedies for franchise violations.
(1) If the grantee fails to perform any 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 for material franchise violations, which the grantee hereby agrees to pay, the assessment to be levied against the security fund, hereinabove provided, and collected by grantor immediately upon the assessment. Grantor and grantee agree that the amount of such assessment shall be deemed, without proof, 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 §§ 115.070 through 115.074, and is intended to provide compensation to grantor for actual damages;
(b) For violations considered by grantor to have materially degraded the quality of service, order and direct grantee to issue rebates or reduce its rates and/or charges to subscribers, in an amount solely determined by grantor to provide monetary relief substantially equal to the reduced quality of service resulting from grantee’s failure to perform;
(c) Terminate the franchise, for any of the causes stated in §§ 115.025 through 115.039; and
(d) No remedy shall be imposed by grantor against grantee for any violation of this franchise without grantee being afforded due process of law, as provided for in division (B) below.
(2) The grantor may, in its sole judgment and discretion, 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 this franchise or under any applicable law.
(B) Procedure for remedying franchise violations. In the event that the grantor determines that the grantee has violated any material provision of the franchise, any rule or regulation promulgated pursuant 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 following such demand within the time period specified in the franchise agreement, 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:
(1) A public hearing shall be held and the grantee shall be provided with an opportunity to be heard upon written notice to the grantee of the time and the place of the hearing provided and the allegations of franchise violations;
(2) 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 division (C) below, 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; and
(3) 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 division (A) above.
(C) Force majeure; grantee’s inability to perform. 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 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.
(Prior Code, § 115.011) (Ord. D-1485, § 12, passed 6-3-1985, effective 6-13-1985)