The city shall provide grantee with a detailed written notice of any franchise violation upon which it proposes to take action, and a ninety-day period within which grantee may demonstrate that a violation does not exist or to cure an alleged violation or, if the violation cannot be corrected in ninety days, to submit a plan satisfactory to the city to correct the violation. In the event that the franchise violation involves one that the city, in the exercise of its reasonable discretion, believes to be material, the time periods in Sections
5.30.320 and
5.30.330 shall be changed from ninety days to thirty days.
(Ord. 993 § 1, 1994)
If grantee fails to disapprove or correct the violation within ninety days or, in the case of a violation which cannot be corrected in ninety days and grantee has not timely submitted a satisfactory plan, then city may declare the grantee in default, which declaration must be in writing. Grantee will not be deemed in default if it has notified grantor of a failure or inability to cure and grantor fails to object within a reasonable time after such notice. In the event that the city declares grantee in default, the city shall have the right to institute legal proceedings to collect damages from the date of the violation, or to exercise any other rights and remedies afforded the city in law or equity, provided however, that the city may institute such legal proceedings only after the hearing has been held and the written decision issued pursuant to Section
5.30.340 and the grantee opts not to appeal the Section
5.30.340 written decision to arbitration pursuant to Sections
5.30.350 and
5.30.360, and provide
d further that the city may institute revocation proceedings against grantee only after declaration of default, pursuant to Section
5.30.370 below and only on the grounds set forth therein.
(Ord. 993 § 1, 1994)
Within fifteen days after receipt of a written declaration of
default from the city, grantee may request, in writing, a hearing
before the city or its agent, in a full public proceeding affording
due process. Such hearing shall be held within thirty days of the
receipt of the request therefor and a decision rendered within fifteen
days after the conclusion of the hearing. The time frame for decision
may be extended only upon a clear and convincing showing of good cause.
Any decision shall be in writing and shall be based upon written findings
of fact.
(Ord. 993 § 1, 1994)
Grantee may appeal a declaration of default to arbitration.
(Ord. 993 § 1, 1994)
Any arbitration help pursuant to the franchise or this chapter
shall be conducted as follows:
A. Grantee
and the city (or such substitute party to the arbitration) each shall,
within fifteen days of the decision to proceed with arbitration, appoint
one arbitrator experienced in the cable television business, which
arbitrators shall mutually select a third arbitrator of similar qualifications.
B. Within
thirty days after appointment of all arbitrators and upon fifteen
days written notice to the parties to the arbitrator, the arbitrators
shall commence a hearing on the dispute.
C. The
hearing shall be recorded and may be transcribed at the request of
either city or grantee.
D. At the
close of the hearings, and within thirty days, the arbitrators shall
prepare written findings and serve such decision upon city and grantee.
E. The
decision of the majority of the arbitrators, which may include assessments
of damages, shall be binding upon the parties to the arbitration.
F. Either
party may seek judicial relief to the arbitrator's decision under
the following circumstances:
1. Either
party fails to select an arbitrator;
2. The
arbitrators fail to select a third arbitrator;
3. One
or more arbitrators is unqualified;
4. Designated
time limits have been exceeded;
5. The
arbitrators have not proceeded expeditiously; or
6. Based
upon the record, the arbitrator's decision is arbitrary, capricious,
unsupported by substantial evidence, an abuse of discretion, or based
upon a mistake of law.
G. All
costs of arbitration shall be borne equally by the parties to the
arbitration unless otherwise ordered by the arbitrators.
(Ord. 993 § 1, 1994)
The city may revoke the franchise only after a declaration of
default has been affirmed by a written decision of the arbitrators
pursuant to Section 5.6, and only for defaults by grantee arising
from the following circumstances:
A. Material
misrepresentation by grantee to city in information required to be
provided under the franchise.
B. Wilful
and substantial violation of any material term of this franchise.
(Ord. 993 § 1, 1994)
It is unlawful for any person to establish, operate or to carry
on the business of distributing to any persons in the service area
any video programming by means of a system unless a franchise therefor
has first been obtained, and unless such franchise is in full force
and effect.
(Ord. 993 § 1, 1994)
The grantor shall have the right to waive any provision of the
franchise, except those required by federal or state regulation, if
the grantor determines (1) that it is in the public interest to do
so, and (2) that the enforcement of such provision will impose an
undue hardship on the grantee or the subscribers.
(Ord. 993 § 1, 1994)
A. Grantee
shall not deny service, deny access, or otherwise discriminate against
subscribers, channel users, or general citizens on the basis of race,
religion, creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex, age or
sexual orientation. Grantee shall comply at all times with all other
applicable federal and state laws and regulations, and all executive
and administrative orders, relating to nondiscrimination, including
without limitation Section 51 of the California
Civil Code and Section
53066.2 of the
Government Code.
B. Grantee
shall adhere to the applicable equal employment opportunity requirements
of the FCC and applicable state regulations, as now written or as
amended from time to time.
(Ord. 993 § 1, 1994; Amended during 2009 republication)
All poles and conduits installed within the city shall be made
available for attachment or use by grantee, at just and reasonable
rates applied to public utilities under the formula presently established
in Section 767.5 of the
Public Utilities Code. If such poles or facilities
are not made so available, grantee may erect its own poles.
(Ord. 993 § 1, 1994)