§ 56-49. Default, termination, and other remedies.

(a)

Material breach of condition. The city may either terminate a franchise or impose liquidated damages not to exceed $1,000.00 a day, for cause as a result of any breach of a material condition of a franchise, including but not limited to the following:

(1)

Failure to substantially perform in accordance with the provisions of a franchise agreement.

(2)

Violation of any material provisions of this chapter or any other applicable ordinances, laws, rules, or regulations governing such franchisee.

(3)

Failure to comply with the franchise fee requirements prescribed herein.

(4)

Failure to comply with the indemnity or insurance requirements prescribed herein.

(5)

Failure to comply with the liquidated damages requirements prescribed herein.

(6)

The filing of a voluntary or involuntary petition for bankruptcy relief, or failing to pay its debts.

(7)

The commission or attempted commission of any fraud or deceit.

(8)

Any material misrepresentation in an application for any franchise, renewal, modification, extension, or transfer thereof.

(b)

Due process upon default. The city shall notify the franchisee in writing of the exact nature of the alleged violation constituting grounds for termination or imposition of liquidated damages and giving the franchisee 30 days or such greater amount of time as the city may specify, to correct such violation or to present facts and arguments to refute the alleged violation. If the city then concludes that there is a basis for termination or imposition of liquidated damages, it shall notify the franchisee. If within the designated time the franchisee does not remedy and/or put an end to the alleged violation, the city after a public hearing where all interested parties may be heard, may suspend or revoke the franchise or impose liquidated damages if it determines that such action is warranted. The franchisee shall not be held in default nor suffer any penalties where noncompliance or default is caused by an event beyond the franchisee's control. The franchisee shall have the right to review by a court of competent jurisdiction upon any determination by the city of noncompliance.

(c)

No remedies exclusive; waiver of default. No remedy conferred or reserved herein to the city is intended to be exclusive of any other available remedy, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this chapter or now or hereafter existing in law or equity. No delay or failure by the city to exercise any right or power accruing upon any event of material breach or default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed appropriate by the city.

(d)

Attorneys' fees. Unless otherwise prohibited by law, in the event the city is required to employ attorneys (whether in-house or outside counsel), or incur expenses for the purpose of enforcing a franchise agreement, or terminating a franchise, or seeking a declaration of the city's rights or duties under a franchise agreement, the franchisee shall pay the city's reasonable attorneys' fees and related costs through and including any and all appeals, but only in the event the city prevails on the merits of such action. The provisions of this subsection shall survive any termination of a franchise.

( Ord. No. 2015-9 , § 2, 3-17-2015)