Chino Municipal Code Art. XII Enforcement

Notwithstanding any other provisions of this franchise to the contrary, the grantee shall at all times comply with all laws and regulations of the state and federal government or any administrative agencies thereof; provided, however, if any such state or federal law or regulation shall require the grantee to perform any service, or shall permit the grantee to perform any service, or shall prohibit the grantee from performing any service, in conflict with the terms of this franchise or of any law or regulation of the grantor, then as soon as possible following knowledge thereof, the grantee shall notify the grantor of the point of conflict believed to exist between such regulation or law and the laws or regulations of the grantor or this franchise.

(Ord. 84-37 § 14.1, 1984.)

If any provision of this title or any related agreements is held by any court or by any federal, state or local agency of competent jurisdiction to be invalid as conflicting with any federal, state or local law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, and if said provision is considered nonmaterial by the grantor, said provision shall be considered a separate, distinct and independent part of this chapter, and such holding shall not affect the validity and enforceability of all other provisions of this chapter. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which had been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provisions shall thereupon return to full force and effect and shall thereafter be binding on the parties hereto, provided that the grantor shall give the grantee thirty days written notice of such change before requiring compliance with said provision.

(Ord. 84-37 § 14.2, 1984.)

If any material section of this chapter, as determined by the grantor, is held to be invalid or preempted by federal, state or county regulations or laws, the grantor shall negotiate with the grantee appropriate modifications to the franchise to provide reasonable relief from such invalidity or preemption, including the payment of liquidated damages. If the parties are unable to reach agreement on such modifications, then the dispute shall be submitted to a mutually agreeable arbitrator, in accordance with state law, who shall determine what modifications and/or liquidated damages are appropriate. The arbitrator's decision shall be binding on the parties, provided, that no decision of the arbitrator shall require the grantor or grantee to be in violation of any federal or state law or regulation.

(Ord. 84-37 § 14.3, 1984.)

The grantee shall have no recourse whatsoever against the grantor or its officials, boards, commissions, agents or employees for any loss, costs, expense or damage arising out of any provision or requirement of the franchise or because of the enforcement of the franchise.

(Ord. 84-37 § 14.6, 1984.)

The grantee shall not be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of the grantor to enforce prompt compliance.

(Ord. 84-37 § 14.7, 1984.)

A. No person, whether or not a subscriber to the cable system may intentionally or knowingly damage or cause to be damaged any wire, cable, conduit, equipment or apparatus of the grantee, or commit any act with intent to cause such damage, or to tap, tamper with or otherwise connect any wire or device to a wire, cable, conduit, equipment and apparatus, or appurtenances of grantee with the intent to obtain a signal or impulse from the cable communications system without authorization from or compensation to the grantee, or to obtain cable television or other communications service with intent to cheat or defraud the grantee of any lawful charge to which it is entitled.

B. Any person convicted of violating any provision of this section is subject to a fine of not more than five hundred dollars for each offense. Each day's violation of this section shall be considered a separate offense.

(Ord. 84-37 § 14.8, 1984.)

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 agrees to pay, said assessment to be levied against the security fund, and collected by the grantor immediately upon said assessment. The grantor and the grantee agree that the amount of such assessment shall be deemed, without proof, to represent liquidation of damages actually sustained by the grantor by reason of the 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 the grantee such additional damages, losses, costs and expenses, including actual attorney fees, as may have been suffered or incurred by the 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 the grantor's right to enforce the provisions of the construction and performance bonds provided for in Article V, and is intended to provide compensation to the grantor for actual damages;

B. For violations considered by the grantor to have materially degraded the quality of service, order and direct the grantee to issue rebates or reduce its rates and/or charges to subscribers, in an amount solely determined by the grantor to provide monetary relief substantially equal to the reduced quality of service resulting from the grantee's failure to perform;

C. Terminate the franchise, for any of the causes stated in Article III of this chapter.

D. No remedy shall be imposed by the grantor against the grantee for any violation of this franchise without the grantee being afforded due process of law, as provided for in Section 5.44.540.

The grantor may, in its sole judgment and discretion, impose any or all of the measures enumerated in this section against the 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.

(Ord. 85-17 (part), 1985; Ord. 84-37 § 12.1, 1984.)

In the event that the grantor determines that the grantee has violated any 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 within thirty days following such demand, 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:

A. After the conclusion of the thirty-day demand period, a public hearing shall be held and the grantee shall be provided with an opportunity to be heard upon thirty 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, breach, failure, refusal or neglect by the grantee was excusable as provided in Section 5.44.545, 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.

C. 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 Section 5.44.535.

(Ord. 84-37 § 12.2, 1984.)

In the event the 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 the grantee has notified the grantor in writing within thirty days of its discovery of the occurrence of such an event. Such causes beyond the grantee's reasonable control or not reasonably foreseeable shall include, but shall not be limited to, acts of God and civil emergencies.

(Ord. 84-37 § 12.3, 1984.)