A.
Within
thirty days after the acceptance of a franchise, the grantee shall
proceed with due diligence to obtain all necessary permits and authorizations
which are required in the conduct of its business, including, but
not limited to, any utility joint use attachment agreements, encroachment
permits, microwave carrier licenses and any other permits, licenses
and authorizations to be granted by duly constituted regulatory agencies
having jurisdiction over the operation of cable television/communications
systems or associated microwave transmission facilities.
B.
In connection with subsection A of this section, copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting the grantee's cable communications operations, and any and all actions taken thereon by each commission or agency, shall also be submitted simultaneously to the city manager. Upon determining that the grantee has obtained all necessary permits, licenses and authorizations, including rights of access to poles and conduits, the city manager shall issue the notice to proceed.
C.
The
city shall be authorized to establish special fees payable by a grantee
to defray the costs incurred by the city public works department in
supervising and regulating the installation of a cable communications
system within the streets of the respective agencies. The public works
director shall be authorized to formulate reasonable schedules for
the installation of a cable communications system within the streets
of the city for the purpose of promoting safety, reducing inconvenience
to the public and ensuring adequate restoration and repair of the
streets, and a grantee and its officers, agents, contractors and subcontractors
shall comply with any and all such schedules.
(County code § 11-1.1001)
A.
Within
thirty days after the issuance of a notice to proceed the grantee
shall commence the construction and installation of the cable communications
system.
B.
Within
one hundred eighty days after the commencement of the construction
and installation of the system, the grantee shall proceed to render
service to subscribers, and the completion of the installation and
construction shall be pursued with reasonable diligence thereafter
so that service to all of the areas designated and scheduled on the
map and plan of construction made a part of the franchise shall be
provided as set forth in this chapter.
C.
The construction and installation of the cable communications system shall be complete and ready for the issuance of a final order of completion in accordance with Section 4.12.010 at the time set forth in the ordinance offering a franchise.
D.
Failure
on the part of the grantee to commence and diligently pursue each
of the requirements of this section and to complete each of the matters
set forth in this section shall be grounds for the termination of
such franchise. By resolution, the city council, in its discretion
may extend the time for the commencement and completion of the installation
and construction for additional periods in the event the grantee,
acting in good faith, experiences delays by reason of circumstances
beyond his or her control.
E.
The
city shall have the right, free of charge, to make additional use
for any public or municipal purpose, whether governmental or proprietary,
of any poles, conduits or other similar facilities erected, controlled
or maintained exclusively by or for the grantee in any street provided
such use by the city does not interfere with the use by the grantee.
(County code § 11-1.1002)
A.
No franchise
shall expressly or impliedly authorize the grantee to construct or
install poles or wire-holding structures within streets for the purpose
of placing cables, wires, lines or otherwise without the written consent
of the city. Such consent shall be given or withheld in the sole discretion
of the city and may be given upon such terms and conditions as the
city, in its sole discretion, may prescribe, which shall include a
requirement that the grantee perform, at its sole expense, all tree
trimming required to maintain the poles clear of obstructions.
B.
With
respect to any poles or wire-holding structures which a grantee is
authorized to construct and install within streets, the city reserves
the privilege of utilizing such poles or wire-holding structures,
if such use would enhance the public convenience and would not unduly
interfere with the grantee's operations, with the condition that the
city, public utility or public utility district pay to the grantee
any or all actual and necessary costs incurred by the grantee in permitting
such use.
(County code § 11-1.1003)
A.
Unless
otherwise authorized by the city council, in those areas and portions
of the city where transmission and/or distribution facilities of the
public utility providing telephone service, and those of the utility
providing electric service, are underground or hereafter may be placed
underground or are to be placed underground by a builder, developer
or subdivider as a part of a development or subdivision, then the
grantee shall likewise construct, operate and maintain all of its
transmission and distribution facilities underground to the maximum
extent that existing technology reasonably permits the grantee to
do so.
B.
In new
developments or subdivisions, the builder, developer or subdivider
shall be responsible for the performance of all necessary trenching
and backfilling of main line and service trenches, including the furnishing
of any imported backfill material required. The grantee shall be responsible
for the conduct of the engineering and labor to put the cable conduit
in the trench. Prewiring of new dwellings to franchise specifications
while under construction shall be mandatory. The grantee shall be
responsible for pulling in the cable and providing the plant electronics
and drops to individual homes after occupancy.
C.
In those
areas and portions of the city where utility service facilities are
currently located underground, the grantee shall be responsible for
the undergrounding of cable facilities, including the performance
of all necessary trenching, and the furnishing of any imported backfill
material required.
D.
Previously
installed aerial cable shall be undergrounded in concert, and on a
cost-sharing basis, with other utilities pursuant to the general laws
of the city or applicable state laws or in the event such action shall
be taken by all other utilities on a voluntary basis.
E.
Subject
to approval by the city council, incidental appurtenances, such as
amplifier boxes and pedestal-mounted terminal boxes, may be placed
aboveground but shall be of such size and design and shall be so located
as not to be unsightly or hazardous to the public.
(County code § 11-1.1004)
A.
The
grantee shall be required to extend the subscriber network and, upon
an order by the city, the institutional network to any new developments
or general areas within the imposed service area and is authorized
to do so within the remainder of the franchise area pursuant to the
following requirements:
1.
The
grantee shall extend and make cable communications service available
to every dwelling unit within any area reaching the minimum density
of at least forty dwelling units per street mile or five dwelling
units within six hundred sixty feet, as measured from existing feeder
cable;
2.
The
grantee shall extend and make cable communications service available
to every dwelling unit in all unserved, developing areas having at
least forty dwelling units planned per street mile, as measured from
the existing system, and shall extend its system simultaneously with
the installation of utility lines;
3.
The
grantee shall extend and make cable communications service available
to any isolated resident requesting a connection at the standard connection
charge if the connection to the isolated resident would require no
more than a standard one hundred fifty foot aerial drop line;
4.
With
respect to requests for connections requiring an aerial drop line
in excess of one hundred fifty feet, the grantee shall extend and
make available cable television service to such residents at a connection
charge not to exceed the actual installation costs incurred by the
grantee for the distance exceeding one hundred fifty feet;
5.
Whenever
the grantee shall have received written requests for services from
at least fifteen assured subscribers within one thousand three hundred
cable feet of its aerial trunk cable, the grantee shall extend its
system to such subscribers solely for the usual connection and service
fees for all subscribers, provided such extension is technically and
economically feasible. The one thousand three hundred cable feet shall
be measured in extension length of the grantee's cable required for
service located within a public way or easement and shall not include
the length of necessary drop to the subscriber's house or premises.
B.
Nothing
set forth in this section shall be construed to prevent the grantee
from serving areas not covered by this section upon an agreement with
developers, property owners or residents.
C.
Any
violation of this section shall be considered a breach of the terms
of this title.
(County code § 11-1.1005)
A.
Each
cable communications system, including wires and appurtenances, shall
be located and installed and maintained so that none of the facilities
endanger or interfere with the lives or safety of persons or interfere
with any improvements the city or state may deem proper to make or
unnecessarily hinder or obstruct the free use of the streets or other
public property.
B.
All
transmission and distribution structures, lines and equipment erected
or installed by a grantee within the city shall be so located as to
cause minimum interference with the proper use of streets and other
public property and to cause minimum interference with the rights
and reasonable convenience of property owners who adjoin any of the
streets or other public property.
(County code § 11-1.1006)
A.
All
disturbances by the grantee of pavement, sidewalks, driveways, landscaping
or other surfacing of streets shall be restored, repaired or replaced
by the grantee at its sole cost in a manner approved by the public
works director and in compliance with generally applicable standards
of the agency vested with jurisdiction thereover, and in as good condition
as before the disturbance occurred.
B.
To the
extent practicable and reasonable, each grantee shall accommodate
the desires of any property owner respecting location within easements
or rights-of-way traversing private appurtenances constituting a part
of the cable communications system. Any disturbance of landscaping,
fencing or other improvements upon private property, including private
property traversed by easements or rights-of-way utilized by a grantee,
at the sole expense of the grantee, shall be promptly repaired or
restored (including the replacement of such valuables as shrubbery
and fencing) to the reasonable satisfaction of the property owner
as soon as possible. Each grantee, through authorized representatives,
shall make a reasonable attempt to personally contact the occupants
of all private property in advance of entering such property for the
purpose of commencing any installation of elements of the system within
the easements or rights-of-way traversing such property. As used in
this subsection, the terms "easements" and "rights-of-way" shall not
include easements or rights-of-way for roadway purposes.
(County code § 11-1.1007)
A.
Upon
any failure of the grantee to commence, pursue or complete any work
required by it by law or by the provisions of a franchise to be done
in any street, the city council, at its option and according to law,
may cause such work to be done, and the grantee shall pay to the city
the cost thereof in the itemized amounts reported by the city council
to the grantee within thirty days after the receipt of such itemized
report.
B.
In the
event that:
1.
Any
part of such system has been installed in any street or other area
without complying with the requirements of this title and/or the franchise
ordinance; or
2.
The
use of any part of the system of the grantee is discontinued for any
reason for a continuous period of thirty days without prior written
notice to and approval by the city; then the grantee, at the option
of the city, and at the expense of the grantee and at no expense to
the city, and upon the demand of the city, shall promptly remove from
any street or other area all property of the grantee, and the grantee
shall promptly restore the street or other area from which such property
has been removed to such condition as the public works director shall
approve.
(County code § 11-1.1008)
If during the term of a franchise the city, a community services
district, a city service area, a reclamation district, a public drainage
district or any other special public district elects to alter, repair,
realign, abandon, improve, vacate, reroute or change the grade of
any street or to replace, repair, install, maintain or otherwise alter
any aboveground to underground cable, wire, conduit, pipe, line, pole,
wire-holding structure, structure or other facility utilized for the
provision of utility or other services or the transportation of drainage,
sewage or other liquids, the grantee, except as otherwise provided
in this section, at its sole expense, shall remove or relocate as
necessary its poles, wires, cables, underground conduits, manholes
and any other facilities which the grantee has installed. If such
removal or relocation is required within a subdivision in which all
utility lines, including those for the cable communications system,
were installed at the same time, the entities may decide among themselves
who is to bear the cost of relocation; provided, however, the city
shall not be liable to a grantee for such costs. Regardless of who
bears the costs, a grantee shall take action to remove or relocate
at such time or times as are directed by the agency or company undertaking
the work. Reasonable advance written notice shall be mailed to the
grantee advising the grantee of the date or dates removal or relocation
is to be undertaken.
(County code § 11-1.1009)
The grantee shall not remove or trim, and shall prohibit any
officer, agent, employee, contractor or subcontractor which it retains
from removing or trimming any tree or portion thereof (either above,
at or below ground levels) which is located within a street, unless
the removal or trimming is done in accordance with a specific tree
trimming plan or general tree trimming policy which has the prior
written approval of the city public works director. Such approval
may be given or withheld upon such terms and conditions as the city
public works director deems appropriate. Any such plan or policy shall
set forth standards governing tree trimming/removal and shall provide
for regulating in special circumstances, including actions taken in
violation of the plan or policy. Each grantee shall be responsible
for and shall indemnify, defend and hold harmless the city and its
officers, agents and employees, from and against any and all damages
arising out of or resulting from the removal, trimming, mutilation
of or any injury to any tree proximately caused by the grantee or
its officers, agents, employees, contractors or subcontractors.
(County code § 11-1.1010)
Each grantee, upon a request by any person holding a building
moving permit, license or other approval issued by the city or state,
shall temporarily remove, raise or lower its wires to permit the movement
of buildings. The expense of such removal, raising or lowering shall
be paid by the person requesting the same, and a grantee shall be
authorized to require such payment in advance. A grantee shall be
given not less than forty-eight hours' oral or written notice to arrange
for such temporary wire changes.
(County code § 11-1.1011)
A.
Upon
the expiration or termination of a franchise, if the franchise is
not renewed and if neither the city nor an assignee purchases the
cable communications system, the grantee may remove any underground
cable from the streets without trenching or other opening of the streets
along the extension of cable to be removed. The grantee shall not
remove any underground cable or conduit which requires trenching or
other opening of the streets along the extension of cable to be removed,
except as provided in this section. The grantee shall remove, at its
sole cost and expense, any undergrounded cable or conduit by trenching
or opening the streets along the extension thereof or otherwise which
is ordered to be removed by the city council based upon a determination,
in the sole discretion of the city council, that removal is required
in order to eliminate or prevent a hazardous condition or promote
future utilization of the streets for public purposes. Any order by
the city council to remove cable or conduit shall be mailed to the
grantee not later than ninety calendar days following the date of
the expiration of the franchise. A grantee shall file written notice
with the city clerk not later than sixty calendar days following the
date of the expiration or termination of the franchise of its intention
to remove cable authorized by this section to be removed. The notice
shall specify the location of all cable intended to be removed and
a schedule for removal by location. The schedule and timing of removal
shall be subject to approval and regulation by the city public works
director. Removal shall be completed not later than twelve months
following the date of the expiration or termination of the franchise.
Underground cable and conduit in the streets which are not removed
shall be deemed abandoned, and title thereto shall be vested in the
city.
B.
Upon
the expiration or termination of a franchise, if the franchise is
not renewed and if neither the city nor an assignee purchases the
system, the grantee, at its sole expense, unless relieved of the obligation
by the city, shall remove from the streets all aboveground elements
of the cable communications system, including, but not limited to,
amplifier boxes, pedestal-mounted terminal boxes and cable attached
to or suspended from poles which are not purchased by the city or
its assignee.
C.
The
grantee shall apply for and obtain such encroachment permits, licenses,
authorizations or other approvals and pay such fees and deposit such
security as required by applicable general laws of the city, shall
conduct and complete the work of removal in compliance with all such
applicable laws, and shall restore the streets to the same condition
they were in before the work of removal commenced. The work of removal
shall be completed not later than one year following the date of the
expiration of the franchise.
(County code § 11-1.1012)
A.
In the
event the use of any franchise property is permanently discontinued
or no franchise has been obtained therefor, upon the expiration of
or within twelve months after any termination of a franchise, the
grantee shall promptly remove from the streets all property involved,
other than any the city council, at its sole option, may permit to
be abandoned in place.
B.
A permit
to abandon in place shall first be obtained from the city public works
director. Nothing set forth in this section shall be deemed a taking
of the property of the grantee, and the grantee shall be entitled
to no surcharge by reason of anything set forth in this section.
C.
Franchise
property to be abandoned in place shall be abandoned in such manner
as the city council shall prescribe. Upon the abandonment of any franchise
property in place, the grantee shall submit to the city council an
instrument, satisfactory to the city attorney, transferring to the
city the ownership of such property.
(County code § 11-1.1013)
Throughout the life of a grantee's franchise, and in addition
to other service regulations adopted by the city council, and excepting
circumstances beyond the grantee's control, such as acts of God, riots
and civil disturbances, and in providing such services, a grantee
shall:
A.
Maintain
all parts of its system in good condition and in accordance with standards
generally observed by the cable television industry. The system shall
serve individual residents, but also serve as a broad based communications
source for city government, other public facilities, including hospitals,
public libraries and schools, and industrial and commercial business
users;
B.
Retain
sufficient employees to provide safe, adequate and prompt service
for all such residential subscribers, institutional facilities and
business users; and
C.
List
system failures to minimum time duration by locating and correcting
malfunctioning as promptly as is reasonably possible, irrespective
of holidays or other nonbusiness hours.
(County code § 11-1.1014)
A.
A final
order of completion shall be issued by the city council when:
1.
The
construction of the cable communications system has been completed
within the entirety of the service area in compliance with the construction
standards set forth in Article I of this chapter and the design and
other requirements of the franchise documents;
2.
Basic service and other services identified pursuant to the provisions of Section 4.20.030 have been made available to one hundred percent of the dwelling units within the service area;
3.
Any
and all studio facilities, equipment, channels and other services,
resources or benefits required by the franchise documents have been
completed and made available;
5.
A
notice of completion has been filed by the grantee as provided in
this section.
B.
For the purposes of Section 4.12.020 and this section, basic service and other services identified pursuant to the provisions of Section 4.20.030 shall be made available when the basic service (at rates and charges in amounts proposed within the application for the franchise and as permissibly adjusted pursuant to this title or, if none are included in the application, at rates and charges in amounts customarily offered by the grantee) and other services identified pursuant to the provisions of Section 4.20.030 (at rates and charges in amounts customarily offered by the grantee) are offered for immediate provision to the owner or legal representative of the owner empowered to consent to the use of the property of such individual dwelling units.
C.
For
the purpose of determining completion under this section, the total
number of dwelling units within the service area shall be the actual
number of units available for occupancy as of a date forty-five calendar
days in advance of the date of the filing by the grantee of the notice
of completion; provided, the grantee files the notice of completion
with a good faith belief that it has in fact achieved completion as
of the date of filing. Otherwise, the total number shall be determined
as of the date on which the city council makes a final decision as
to whether a final order of completion will be adopted.
D.
A grantee who asserts completion shall file a written notice of completion with the city clerk. The notice of completion shall state the total number of dwelling units available for occupancy within the service area forty-five calendar days in advance of the filing of the notice, the total number of dwelling units to which basic service and other services have been made available within the service area as of the date of filing, and shall otherwise certify completion as set forth in subsection A of this section. Neither the notice of completion nor the statements, assertions or certifications contained therein shall be binding upon the city council.
E.
During
the period of construction of the cable communications system or during
the sixty-day period following the filing of the notice of completion,
all elements and components thereof, and all equipment and studio
facilities required by the franchise documents, shall be subject to
inspection by the city or employees or authorized agents or representatives
thereof, for the purpose of determining whether the system and related
facilities comply with the franchise documents. The grantee shall
authorize such inspection and provide such information and cooperation
if required in order to permit an adequate investigation to determine
the existence or nonexistence of such compliance.
(County code § 11-1.1101)
A.
No later than forty-five calendar days following the filing of the notice of completion, the city council shall commence a public hearing with respect to the notice of completion. Written notice of the time, date and place of the hearing shall be mailed to the concerned grantee. Notice of the time, date, place and purpose of the hearing shall be publicized in the manner prescribed by Section 4.08.060.
B.
During
the hearing, any interested person may appear and comment upon the
question of whether completion has occurred and a final order of completion
should be issued. The public hearing may be continued from time to
time. While the hearing is pending, the city council may direct such
investigations of issues or questions raised during the hearing as
it deems appropriate.
C.
During
the public hearing, the city council, by resolution, may identify
specific deficiencies respecting completion and decline to adopt a
final order of completion pending the correction or elimination of
the deficiencies so identified. If, at the conclusion of the public
hearing, a final order of completion is not issued, the city council,
by resolution, shall identify specific deficiencies respecting completion
which shall be corrected in advance of the issuance of a final order
of completion.
D.
The final order of completion shall certify completion in compliance with the terms and conditions of the franchise documents. The order shall also designate the actual date when all elements set forth in Section 4.12.150 (A) have been completed. The issuance of such a final order of completion shall constitute a determination of completion which shall be conclusive for all purposes of this chapter.
(County code § 11-1.1102)
A.
At any
time on or after one hundred twenty calendar days following the date
of the filing by a grantee of the notice of completion, the grantee,
if a final order of completion has not been adopted by the city council,
may make a written request for arbitration. If a final order of completion
has been issued, and the grantee disagrees with the actual date of
completion stated therein, the grantee, within thirty calendar days
following the mailing to the grantee of the order, may make a written
request for arbitration. The request shall be in writing, shall state
the grounds therefor, and shall be filed with the city clerk.
B.
If arbitration is requested, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, a decision made and the costs divided in the manner prescribed by Sections 4.44.140 through 4.44.190. The discovery provisions of the California Arbitration Act (Sections 1280, et seq., of the Code of Civil Procedure of the state) shall be applicable to the arbitration proceedings under this section. The questions which may be submitted to the arbitration panel and the jurisdiction of the arbitration panel shall be limited to the following:
1.
The
interpretation of the provisions of the franchise documents solely
in relation to the decision required by subparagraph 2 of this subsection;
and
2.
Whether a final order of completion should be issued and, if so, the actual date of completion, or if an order has been issued, the actual date of completion. The jurisdiction of the arbitration panel shall not include questions of enforcement, breach or remedies, and any such determination concerning enforcement, breach or remedies shall be inadmissible in and without force or effect in relation to the proceedings conducted pursuant to Sections 4.12.210 through 4.12.240.
C.
If ordered
by the arbitration panel, the city council shall issue a final order
of completion not later than ten calendar days following the receipt
of the arbitration award. The arbitration award may be judicially
enforced, shall be final, binding and conclusive upon the parties,
and shall not be subject to judicial review or vacation except on
the grounds set forth in Section 1286.2 of the Code of Civil Procedure
of the state.
(County code § 11-1.1103)
Any citizen who asserts there has been a violation of any of the provisions of Sections 4.12.020 through 4.12.140 may file a written complaint asserting such violation with the city clerk.
(County code § 11-1.1104)
A.
Except as provided in this section, the violation by a grantee of any of the provisions set forth in Sections 4.12.020 through 4.12.150 caused by circumstances beyond the control of the grantee shall constitute good and sufficient excuse and justification for such violations precluding the grantee from being in breach of the sections. The following are examples of acts or omissions by a grantee or circumstances which shall be deemed not to be beyond the control of the grantee and which shall not constitute excuses or justifications for violations:
1.
The
failure at any time by a grantee or its officers, agents or employees
to exercise diligence in planning, organizing, arranging for or prosecuting
the work of construction and installation or in taking any other action
necessary to permit or facilitate the work of construction and installation;
3.
Considerations
relating to economy or cost efficiency as respects acts or omissions
by a grantee;
4.
Delays
occasioned by the failure of the grantee to diligently apply for and
prosecute any request for a required certificate, approval or consent
from the FCC;
5.
Delays
occasioned by seasonal changes in weather or climatic conditions,
such as rain (exclusive of catastrophic conditions in the nature of
"acts of God") (rain delays shall not constitute an excuse or justification
for violations except with respect to measurable precipitation occurring
on more than fifty-nine days during any period commencing July 1st
and ending the next following June 30th; and only if such is the proximate
cause of the violation);
6.
Delays
occasioned by failure to obtain approval to attach lines to poles
owned by private or public utilities or in the attachment of cable
to the poles provided such failure is the result of an act or omission
of the grantee; and
7.
Delays occasioned by the customary and usual time required to process and secure approvals under the zoning laws of the city for the location of components of the cable communications system and other installations associated therewith, given the nature of the approval required and magnitude of the project; provided, however, if a grantee submits specific sites and plans for all headends, towers and transmitters to the city and analyses upon all such facilities as the lead agency, any time consumed by such environmental analyses which is longer than one hundred twenty calendar days during a period subsequent to the filing of the certificate of acceptance of the franchise pursuant to Section 4.08.180 shall excuse the grantee from any violations which are proximately caused by such delay in excess of one hundred twenty calendar days.
B.
Notwithstanding the provisions of subsection A(1) through (6) of this section, a grantee shall not be excused from any violation of the provisions of Sections 4.12.020 through 4.12.150, except for causes which are beyond the control of the grantee, and except with respect to violations which have not been contributed to or aggravated by acts or omissions by the grantee.
C.
Except as otherwise provided in this section, violations caused exclusively by acts or omissions by the city or its officers, agents or employees, shall constitute an excuse and justification for the failure of a grantee to comply with the provisions of Sections 4.12.020 through 4.12.150 precluding a determination that the grantee is in breach. However, violations as a result of such exclusive causes shall not excuse the grantee from other violations, shield the grantee from a determination that it is in breach for violations or bar any relief for damages or otherwise as a result of such breach.
(County code § 11-1.1105)
Examples of circumstances beyond the control of a grantee which excuse a grantee from violation and being in breach of the provisions of Sections 4.12.020 through 4.12.150, when such violations are caused thereby, include the following: strikes, acts of public enemies, orders by military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, floods, civil disturbances, explosions and the partial or entire failure of utilities.
(County code § 11-1.1106)
A.
At any
time and from time to time, proceedings may be commenced by the city
council.
B.
The
purpose of such proceedings shall be, and the powers of the city council
shall include, the following:
2.
Establishment
of new or revised schedules for compliance with any of the terms,
conditions or requirements which are determined to have been violated;
3.
Determination of whether the grantee is in breach of any of the terms, conditions or requirements set forth in Sections 4.12.020 through 4.12.150 or of the franchise documents with respect to the violation of any such terms, conditions or requirements and, if so, the nature and extent of any such breach; and
C.
In connection with determinations by the city council that there has been a violation of any time limit prescribed by Sections 4.12.020 through 4.12.150, the city council shall be authorized to establish new time schedules and time limitations based upon the circumstances, which shall supersede those set forth in those sections. Future enforcement proceedings pursuant to this section and Sections 4.12.220 and 4.12.230 may be undertaken in relation to time schedules and time limitations established pursuant to prior enforcement proceedings. In the event the city council finds that a grantee has breached any of the time limitations set forth in Sections 4.12.020 through 4.12.150, or established pursuant to prior enforcement proceedings, the city council shall determine and assess the amount of liquidated damages, if any, which the grantee shall be required to pay as a result of such breach, and whether and if so, the extent to which the term of the grantee should be reduced with respect to any such breach. Such determinations, without an appeal to arbitration or as affirmed by arbitration, shall be self-executing.
D.
In the
event the city council determines that the cable communications system
fails to comply with any of the requirements of the franchise documents
or that the grantee has failed to provide any of the facilities or
services (including those relating to community use) required by the
franchise documents, the city council may determine the specific deficiencies
and order the correction thereof. Such determinations, without an
appeal to arbitration or as affirmed by arbitration, shall be self-executing.
(County code § 11-1.1107)
A.
The city council shall commence enforcement proceedings by scheduling a hearing for the purpose of inquiring into the matters specified in Section 4.12.210. Written notice of the time, date and place of the hearing shall be mailed to the grantee and to the grantee's surety on the performance bond filed pursuant to Section 4.28.080 not later than thirty calendar days in advance of the date of the commencement of the hearing. The notice shall state the reasons for the hearing, identify the terms, conditions or requirements alleged to be violated, and generally describe the areas or subject matter with respect to which the violations are alleged to have been committed.
B.
The
hearing may be conducted either by the city council or, at the sole
discretion of the city council, by a hearing officer appointed by
the city council to conduct the hearing. Any such hearing officer
shall be an attorney licensed to practice under the laws of the state
who shall not be an officer or employee either of a grantee or the
city.
C.
The
cost of providing quarters for the hearing, the compensation for the
hearing officer, if any, and the per diem cost of any reporter retained
to record the proceedings shall be borne by the city. The cost of
preparing a transcript and record of the hearing shall be borne by
the grantee. All costs incurred by the parties for attorneys' fees,
expert witness fees or other expenses shall be borne solely by the
party incurring the costs.
(County code § 11-1.1108)
A.
All
witnesses testifying at the enforcement hearing shall be sworn. Witnesses
shall be subject to direct and cross examination. However, formal
rules of evidence applicable to the trial of civil or criminal proceedings
in the trial courts of the state shall not be applicable to the hearing.
The provisions of the Administrative Procedure Act, commencing at
Section 11500 of the Government Code of the state or any successor
legislative enactment, shall not be applicable to any such hearing.
The burden of proving violations by the grantee of the franchise documents
shall be borne by the party presenting the charges, and the burden
of proving excuses from performance shall be borne by the grantee.
The hearing may be continued from time to time.
B.
If the hearing is conducted by a hearing officer, the officer, upon the conclusion of the hearing, shall prepare a recommended decision which includes findings of fact, conclusions and all determinations authorized by Section 4.12.210. The recommended decision shall be filed with the city clerk and mailed to the parties not later than thirty calendar days after the conclusion of the hearing. Upon the receipt of such a recommended decision, the city council, without a hearing except as otherwise required as follows, may either:
1.
Adopt
the findings of fact, conclusions and determinations contained in
the recommended decision;
2.
Adopt
the findings of fact and conclusions contained in the recommended
decision, modify the determinations and adopt the recommended decision
as so revised;
3.
Based
upon the record of the hearing, modify the findings of fact, conclusions
or determinations and adopt the recommended decision as so revised;
or
4.
Reject
the recommended decision and conduct a new hearing.
C.
If the hearing is conducted by the city council, upon the conclusion of the hearing the city council shall adopt a decision which includes the findings of fact, conclusions and determinations authorized by Section 4.12.210. Copies of the decision adopted by the city council shall be mailed to the parties.
(County code § 11-1.1109)
A.
Not
later than thirty calendar days following the date of the mailing
to the grantee of the decision by the city council, the grantee shall
be authorized to appeal the decision or any portion thereof to arbitration
by filing a written notice of appeal with the city clerk. The notice
of appeal shall specifically identify the determination or determinations
from which the appeal is taken, and the grounds therefor, and shall
be accompanied by a fee equal to the estimate by the city clerk of
the cost of preparing the transcript and record of the hearing or
hearings. In the event the grantee fails to file the notice of appeal
within the time and in compliance with the requirements prescribed
in this section, the determinations by the city council shall become
final, binding and conclusive and not subject to review or reversal
by any authority. Judicial enforcement of such determinations may
be sought.
C.
The
questions which may be submitted to the arbitration panel and the
jurisdiction of the panel shall be limited to a decision as to whether
the findings of fact by the city council are supported by substantial
evidence in the record and whether the conclusions by the city council
are consistent with the provisions of the franchise documents as interpreted
by the arbitration panel. The powers of the arbitration panel shall
be limited to a conclusion as to whether the decision by the city
council from which the appeal is taken should be affirmed or reversed
and remanded to the city council for further determination and interpretation
of the provisions of the franchise documents solely in relation to
the review of the decision by the city council.
D.
The
hearing by the arbitration panel shall not be a trial de novo, and
the sole function of the panel shall be to review the record of the
hearing preceding the decision by the city council to decide whether
there was substantial evidence in the light of the whole record to
support the findings and to interpret the franchise documents in relation
to the decision by the city council. No new evidence shall be introduced,
received or considered by the arbitration panel; provided, that where
the panel finds there is relevant evidence which, in the exercise
of reasonable diligence, could not have been produced or which was
improperly excluded at the hearing preceding the arbitration, the
panel may remand the matter to the city council to be reconsidered
in the light of such evidence. The determination by the city council
shall be sustained by the arbitration panel if it finds that there
is substantial evidence in the record to sustain the determination
and that the conclusions are consistent with the provisions of the
franchise documents. The panel shall not substitute its discretion
for that of the city council with respect to the determinations made
by the city council or reweigh or otherwise judge the credibility
of the evidence presented during the hearing preceding the city council's
decision. If the panel decides that the determinations by the city
council violate the provisions of the franchise documents, the panel
shall remand the matter to the city council for further determinations,
reserving jurisdiction to review the determinations. Objections by
the grantee to the determinations by the city council which were not
presented during the hearing preceding the city council's decision
shall be deemed to have been waived.
E.
The
decision by the city council as affirmed by an arbitration award may
be judicially enforced and shall not be subject to judicial review
or vacation, except on the grounds set forth in Section 1286.2 of
the Code of Civil Procedure of the state to the extent such grounds
are consistent with the express terms of this title.
(County code § 11-1.1110)
