Albany Municipal Code § 6-13 Franchise Violations

[Ord. #89-07]

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, subject to the procedures of subsection 6-13.2:

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 or bonds, hereinabove provided, and collected by Grantor after completion of the procedures specified in subsection 6-13.2. 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 Section 6-6, and is intended to provide compensation to Grantor or subscribers for actual damages.

b. Require Grantee to give credits to subscribers when subscribers have not received the service(s) contracted and paid for.

c. Terminate the franchise, for any of the causes stated in Section 6-4, above.

d. No remedy shall be imposed by Grantor against Grantee for any violation of the franchise without Grantee being afforded due process of law, as provided for in subsection 6-13.2, below.

[Ord. #89-07]

In the event that the Grantor determines 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. If the violation is not remedied, or in the process of being remedied, to the reasonable satisfaction of the Grantor within fifteen (15) 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 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 shall be held, and the Grantee shall be provided with an opportunity to be heard upon ten (10) 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 by the Grantee was excusable as provided in subsection 6-13.3 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 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 subsection 6-13.1 above.

[Ord. #89-07]

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 ten (10) 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.