Citrus Heights Municipal Code Div. 5 Assignments and Remedies

Except as provided by either section 90-427 or 90-428, below, no part or element of a cable television system or any other real or personal property which is mandatorily included by section 90-143 in division 3 within a purchase which the cable television commission or its assignee is authorized to make shall be sold, transferred, assigned, mortgaged, pledged, leased, sublet or otherwise encumbered for any purpose whatsoever, nor shall title thereto, either legal or equitable, or any right or interest therein pass to or vest in any party.

Except as provided by either sections 90-427 or 90-428, below, a franchise issued pursuant to the provisions of this article shall not, either in whole or in part, be sold, transferred, assigned, mortgaged, pledged, leased, sublet, or otherwise encumbered for any purpose whatsoever; nor shall title thereto, either legal or equitable, or any right or interest therein, pass to or vest in any party.

Any such sale, transfer, assignment, mortgage, pledge, lease, sublease or other encumbrance of whatever kind or nature made in violation of the provisions of this section shall be void.

(Ord. No. 97-12, § 2(5.50.750), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Upon written application by a franchisee, the lender, and any and all signatories or guarantors upon the proposed loan, the board of directors of the cable television commission may, in its sole discretion, from time to time, consent by duly adopted resolution to the sale, transfer, assignment, mortgage, pledge, lease, sublease or other encumbrance upon real or personal property mandatorily included by section 90-143 in division 3 within a purchase which the commission or its assignee is authorized to make or upon a franchise issued pursuant to the provisions of this article, for the purpose of securing a loan of capital or constituting a purchase money security interest. Such information concerning the identity and background of the lender, terms of the transaction, intended expenditure of the capital, and other matters relating to the transaction shall be provided as is required by the board or its authorized representative. If, in its sole discretion, the board of directors elects to approve such encumbrance or encumbrances, such approval may be granted upon such terms and conditions as the board determines to be appropriate including, but not limited to, the following:

a. The purpose for which the capital to which the encumbrance relates will be utilized, including guarantees relating to expenditure or disposition of such capital;

b. The terms and conditions of encumbrance instruments relating to such matters as default, and the rights of the lender and successors in interest in relation thereto;

c. The amount of the encumbrance and types of properties encumbered;

d. Subordination of the encumbrance to the rights of the county, cities and commission under the franchise, consistent with the terms and conditions of the encumbrance approved by the board; and

e. An agreement by any party in whose name the loan secured by the encumbrance is made or any signatory or guarantor thereon to be bound by the terms, conditions, provisions and requirements of the franchise documents, in addition to the party or parties whose names the franchise is issued by the resolution offering the franchise and certificate of acceptance

The board of directors of the commission shall by resolution be authorized to delegate to its executive director power to consent in writing to such encumbrances for financing purposes of individual items of property described by section 90-143-c in division 3 subject to limitations prescribed.

(Ord. No. 97-12, § 2(5.50.752), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The board of directors of the cable television commission may, pursuant to the provisions of section 90-430, below, consent by duly adopted resolution to the sale, transfer, assignment, mortgage, pledge, lease, sublease or other transfer of right, title or interest in property mandatorily included by section 90-143 in division 3 within that authorized to be purchased or in a franchise issued pursuant to the provisions of this article, when such transfer is for a purpose other than securing a loan of capital. Any such transfer shall be subject and subordinate to the rights of the county, cities and commission under the franchise documents for the franchise, and the transferee shall acknowledge in writing such subordination and agreement to comply with and be bound by the terms, conditions, provisions and requirements of the franchise documents.

(Ord. No. 97-12, § 2(5.50.754), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Every change, transfer or acquisition of control of the franchisee or of any owner of the franchisee who is named in the resolution offering the franchise shall render the franchise subject to cancellation by the board of directors of the cable television commission unless the board of directors consents thereto by duly adopted resolution pursuant to the provisions of section 90-430, below. As used in this section, the word "control" shall mean the acquisition of sufficient dominance to determine the operational and financial policies of the franchisee, including disposition of its assets. A rebuttable presumption that a transfer of control has occurred shall arise upon: (i) the acquisition or accumulation by any party or association of parties of ten percent or more or the voting shares or stock of the franchisee or named owner of the franchisee; (ii) a change in general partners of a franchisee or named owner of the franchisee; or (iii) a merger or consolidation of the franchisee or named owner of the franchisee. The presumption is subject to rebuttal only by determination by the board of directors of the commission.

(Ord. No. 97-12, § 2(5.50.756), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

A franchisee shall file written notice with the clerk of the board of directors of the cable television commission as soon as it acquires knowledge of any impending transaction or other event consent to which by the board is required by sections 90-428 or 90-429, above. The written notice shall be filed not less than 90 calendar days in advance of the proposed effective date of the transaction or event for which consent is required.

The notice shall state the name or names and address or addresses of the party or parties who are interested in the transaction or event and describe the details of the transaction or event. In the event of a voluntary assignment, transfer, lease, sublease, mortgage or other encumbrance, a copy of the executed or proposed agreement shall be filed with the notice. Any written acknowledgement of subordination to the rights of the county, cities and commission under the franchise documents and agreement to comply with and be bound thereby required by the provisions of section 90-428, above, shall be filed with the notice.

The franchisee shall immediately submit such additional information concerning such a transaction as the board of directors or other authorized representative of the commission may request.

The board of directors of the commission shall schedule a public hearing to determine whether consent required by the provisions of sections 90-428 or 90-429, above, will be given. Notice of the hearing shall be given in the manner prescribed by section 90-38 in division 1, above. The hearing shall be commenced not later than 60 calendar days following filing of the notice of the franchisee pursuant to this section. At the conclusion of the hearing, the board shall determine whether consent will be given.

In the hearing to determine whether consent will be given, the franchisee (proposed transferor) shall have the burden of proving by clear and convincing evidence each of the following factors:

a. That the reputation, responsibility, integrity and reliability of the party or parties to whom the transfer is contemplated and of the directors, officers, employees, and agents thereof is equal to that of the parties obligated under the franchise documents;

b. That the financial capability and capacity of the party or parties to whom the transfer is contemplated is equal to that of the parties obligated under the franchise documents;

c. That the terms, conditions or other circumstances of the transfer are not likely to result in an increase in the rates or charges for services;

d. That at the time of the transfer the franchisee is in compliance with the terms, conditions and requirements of the franchise documents and any rules, regulations or determinations promulgated thereunder;

e. That installation of the cable television system has been completed in the manner and within the times prescribed by section 90-231 in subdivision II of division 4 (in the absence of extraordinary circumstances, a transfer shall not be approved in advance of such completion); and

f. That the transaction would not detrimentally affect the public interest.

The determination by the board of directors as to whether to give such consent shall be vested within the sole discretion of the board, but shall be based exclusively upon the factors prescribed above. Such consent may be given upon maintenance or operation of the cable television system, services to be provided, rates and charges for services, management of the franchise business and other requirements relating to the franchise, as the board of directors, in its sole discretion, may order.

In the event the board does not consent and the franchisee seeks judicial review of the board's decision, the franchisee agrees, by filing of the certificate of acceptance, that the decision of the board shall be upheld by a trial or appellate court if there is any substantial evidence supporting the decision of the board as to any of the prescribed factors above.

(Ord. No. 97-12, § 2(5.50.758), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The board of directors of the cable television commission shall have the right to cancel a franchise 120 calendar days after the appointment of a receiver, or trustee, to take over and conduct the business of the franchisee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 calendar days, or unless within such 120 calendar days the receiver or trustee shall both:

a. Have fully complied with all of the provisions of the franchise documents and any rules, regulations or determinations promulgated thereunder; and

b. Have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee acknowledges that its rights are subject and subordinate to those of the county, cities and cable television commission under the franchise documents for the franchise, and promising to comply with and be bound by the terms, conditions and requirements of the franchise documents and any orders, directives, rules or regulations issued thereunder.

(Ord. No. 97-12, § 2(5.50.762), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each franchisee shall execute a document in a form determined by the cable television commission evidencing the franchise documents appropriate for recording in the office of the Sacramento County Recorder, and a financing statement in a form determined by the commission for filing pursuant to the provisions of Commercial Code § 9501 et seq.

(Ord. No. 97-12, § 2(5.50.764), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Violation of the provisions of section 90-52 in division 1, section 90-124 in division 3, and section 90-305 in subdivision III of division 4, shall constitute a misdemeanor. With the foregoing exception, violation of the provisions of this article shall not constitute a misdemeanor, infraction or other crime.

(Ord. No. 97-12, § 2(5.50.800), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

At the time of issuance of any franchise under the provisions of this article, it will be impractical to reasonably ascertain the total extent of damages which may be incurred as a result of the breach by the franchisee of its obligations under the franchise documents as prescribed by section 90-458, below. The provisions of section 90-458, below, shall apply in the event of breach as liquidated damages therefor. Factors relating to the impracticality of ascertaining damages include, but are not limited to, the following:

a. The facts that: (i) the primary damage resulting from breaches by the franchisee of the schedules for construction and extension of the cable television system and provision of services prescribed by sections 90-228 through 90-235, 90-238 through 90-242 and 90-251 in subdivision II of division 4, and of the duty prescribed pursuant to section 90-308 in subdivision III of division 4, will be to members of the public who are denied services or denied quality or reliable services; (ii) such breaches cause inconvenience, anxiety, frustration and deprivation of the benefits of the franchise to individual members of the general public in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that services might be available through the cable television system which are both necessary and available at a substantially lower cost than alternative services, and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) termination of a franchise for such breaches and other remedies are, at best, a means of future correction, and not remedies which make the public whole for past breaches;

b. The fact that the failure of a franchisee to make timely reports identifying its progress in installing its cable television system within services areas will make it difficult in ways which are not measurable for the commission to administer the construction schedule, delay initiation of enforcement proceedings, and impede compliance with the periods allowed for construction; and

c. The fact that the failure of a franchisee to file timely annual reports will deny information necessary to enable the commission to expeditiously, effectively and efficiently, administer the franchise and exercise its regulatory powers in relation thereto for the promotion and protection of the public convenience, health, safety and welfare.

Without the provisions of section 90-458, below, the actual damages for which a franchise would be liable could greatly exceed the specified amount of liquidated damages. Therefore, the provisions of section 90-458, below, are of benefit to a franchisee.

(Ord. No. 97-12, § 2(5.50.802), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

In its sole discretion, the board of directors of the cable television commission may assess a franchisee and the franchisee shall be liable for liquidated damages in the amount of $1,000.00 for each calendar day on which a franchisee is in breach and for each breach of any of the provisions of any of the following: sections 90-228 through 90-232, 90-235, 90-238 through 90-242, and 90-261 in subdivision II of division 4; time limitations prescribed pursuant to section 90-247 in subdivision II of division 4; or sections 90-308 and 90-309 in subdivision III of division 4 or such other provisions of this resolution as shall expressly refer to this provision. Said liquidated damage sum shall be separately applicable to each calendar day of delay in complying with the provisions of subparagraphs "a" through "d" of said section 90-231, and separately applicable for each calendar day of delay in complying with any of the provisions in the last paragraph of said section 90-231. Said liquidated damage amount shall be separately applicable to each instance for each calendar day of delay in extending lines pursuant to the provisions of sections 90-239 or 90-240; provided that if more than one dwelling unit is subject to a particular extension from the boundaries of a service area, the total liquidated damages shall not exceed $1,000.00 for each calendar day of delay. Said liquidated damage sum shall be separately applicable to each calendar day of delay in complying with each approval or the conditions thereof issued pursuant to the provisions of said section 90-251.

In its sole discretion, the board of directors of the cable television commission may assess a franchisee and the franchisee shall be liable for liquidated damages in the amount of $500.00 for each calendar day in excess of five calendar days the franchisee is in breach of any of the provisions of any of the following: section 90-234 in subdivision II of division 4, or section 90-302 in subdivision III of division 4, or such other provisions of the resolution as shall expressly refer to this provision.

(Ord. No. 97-12, § 2(5.50.804), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

In addition to the foregoing liquidated damages, in its sole discretion, the board of directors of the cable television commission may reduce the term of any franchise one calendar month for each cumulative 30 calendar days in excess of the first 30 calendar days a franchisee is in breach of any of the provisions of subparagraph "d" or the next to last paragraph in section 90-231 in subdivision II in division 4. The purpose of this section is to authorize the commission, after a franchisee has been in breach of said provisions of said section for the first 30 calendar days, to reduce the term of the franchise for subsequent delays caused by the franchisee's breach on a month-to-month basis.

(Ord. No. 97-12, § 2(5.50.806), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The auditor of the cable television commission shall charge and transfer from the special account established pursuant to section 90-372 in subdivision V of division 4, to the credit of the commission such amounts as are assessed as liquidated damages by determinations of the board of directors pursuant to section 90-249 in subdivision II of division 4, which are not appealed to arbitration and become final, or which are affirmed by an arbitration panel under the provisions of section 90-250 in subdivision II of division 4.

With respect to breaches of any of the provisions of sections 90-302 or 90-308 or 90-309 in subdivision III of division 4, the board of directors of the commission shall determine the amount of liquidated damages to be assessed, and mail notice thereof to the franchisee. Such a notice may provide for assessments for breaches occurring in advance of the notice and for periods of breach subsequent to the issuance of the notice pending compliance by the franchisee. The determinations by the board of directors shall become final, binding and conclusive, not subject to judicial review or reversal by any authority, and judicially enforceable, unless within 30 calendar days following the date of mailing of the notice of the determination the franchisee files with the clerk of the board of directors of the commission a written notice appealing the determination to arbitration pursuant to the provisions of section 90-461, below. The notice of appeal shall specifically identify the grounds for the appeal. The auditor of the commission shall charge and transfer from the special account established pursuant to section 90-372 in subdivision V of division 4, to the credit of the commission, such amounts as are assessed as liquidated damages by determinations of the board of directors pursuant to this paragraph which are not appealed to arbitration and become final or which are affirmed by an arbitration panel under section 90-461, below.

With respect to breaches of any of the provisions of section 90-337 or 90-338 in subdivision IV of division 4, the auditor of the commission shall charge and transfer from the special account established pursuant to section 90-372 in subdivision V of division 4, to the credit of the commission such amounts as are assessed as franchise fees, interests and liquidated damages by determinations of the board of directors pursuant to section 90-342 in subdivision IV of division 4, which are not appealed to arbitration and become final or which are affirmed by an arbitration panel under section 90-342 in subdivision IV of division 4, or such amounts of franchise fees, interests and liquidated damages as are prescribed by a judgment of a court.

The auditor shall mail notice to the franchisee of each transfer from the special account. The notice shall identify the amount transferred, the balance of the account after transfer (including accumulated interest), and the total amount, if any, which the franchisee is required to pay in order to replenish the account in accordance with the requirements of section 90-372 in subdivision V of division 4.

Any amounts owing by a franchisee in excess of the current balance within the special account established pursuant to section 90-372 in subdivision V of division 4, may be recovered from the surety on the performance bond filed pursuant to the provisions of section 90-371 in subdivision V of division 4, above, or from the franchisee.

(Ord. No. 97-12, § 2(5.50.808), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

With respect to arbitration proceedings conducted pursuant to the provisions of the second paragraph in section 90-461, above, the arbitration panel shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by sections 90-469 through 90-474, inclusive, below. The questions which may be submitted to the arbitration panel and jurisdiction of the arbitration panel shall be limited to the following:

a. The interpretation of the provisions of the franchise documents solely in relation to the decision required by Subparagraph "b," below; and

b. The amount, if any, owing by the franchisee.

The franchisee shall immediately pay any amount determined to be owing by the arbitration panel.

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 grounds set forth in Code of Civil Procedure § 1286.2.

(Ord. No. 97-12, § 2(5.50.810), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Neither reduction of the term of the franchise nor liquidated damages shall be deemed to be the exclusive remedy for the types of breaches identified in section 90-458, above. Neither the right to assess liquidated damages nor the assessment of liquidated damages nor the right to reduce nor reduction of the term of the franchise shall be deemed to bar or otherwise limit the right of the cable television commission to obtain judicial enforcement of the franchisee's obligations by means of specific performance, injunctive relief, mandate or other remedies at law or in equity, other than monetary damages.

(Ord. No. 97-12, § 2(5.50.812), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The following material breaches of the obligations of a franchisee under the franchise documents shall constitute grounds for termination of a franchise by the cable television commission:

a. Cumulative unexcused delay in excess of: (i) 180 calendar days in complying with the provisions of subparagraph "b" of section 90-231 or beyond the times prescribes pursuant to section 90-247 in relation to subparagraph "b" of section 90-231 in subdivision II of division 4, or (ii) 365 calendar days in complying with the provisions of subdivision "d" of section 90-231 or beyond the times prescribed pursuant to section 90-247 in relation to subdivisions "b," "c" or "d" of section 90-231 in subdivision II of division 4, or (iii) 365 calendar days in complying with the provisions of the last paragraph in section 90-231 or pursuant to section 90-247 in relation to said last paragraph of section 90-231 in subdivision II of division 4.

b. The failure of a franchisee to make any payment to replenish the special account for security established under section 90-372 in subdivision V of division 4, above, within the time required by said section;

c. Any violation of section 90-426, 90-429 or 90-431 in subdivision II;

d. The failure to make any disclosure of fact within the application for the franchise which is required by this article or a request for proposals, or the misrepresentation of such a fact in the application;

e. The willful failure to make any payments required by sections 90-337 or 90-338 in subdivision IV of division 4; or

f. Any other act or omission by the franchisee which materially violates the terms, conditions or requirements of the franchise documents or any order, directive, rule or regulation issued thereunder and which is not corrected or remedied within 30 calendar days following mailing to the franchisee of written notice of the violation or within such period beyond the 30 calendar days as is reasonable.

(Ord. No. 97-12, § 2(5.50.818), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The board of directors of the cable television commission shall not determine that a franchise shall be terminated either upon grounds identified by section 90-463, above, or pursuant to section 90-51 in division 1, until a hearing has been conducted upon the matter. Written notice of the time, date and place of the hearing shall be mailed to the franchisee and to the franchisee's surety on the performance bond filed pursuant to section 90-371 in subdivision V in division 4, below, [sic] not later than 30 calendar days in advance of the date of commencement of the hearing. The notice shall state the reasons for the hearing, describe the basis for termination, and identify the terms, conditions or requirements with respect to which the breach has occurred, if breach is the basis for termination.

The hearing may be conducted either by the board of directors of the commission or, at the sole discretion of the board, by a hearing officer appointed by the board to conduct the hearing. Any such hearing officer shall be an attorney licensed to practice under the laws of the State of California.

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 cable television commission. The cost of preparing a transcript and record of the hearing shall be borne by the franchisee. All costs incurred by the parties for attorneys' fees, expert witness fees and other expenses shall be borne solely by the party incurring the costs.

(Ord. No. 97-12, § 2(5.50.820), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

All witnesses testifying at the hearing concerning termination 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 this state shall not be applicable to the hearing. The provisions of the Administrative Procedure Act, commencing at Government Code § 11500 or any successor legislative enactment, shall not be applicable to any such hearing. The hearing may be continued from time to time.

If the hearing is conducted by a hearing officer, the officer shall, upon conclusion of the hearing, prepare a recommended decision which includes findings of fact and conclusions. The recommended decision shall be filed with the clerk of the board of directors of the commission and mailed to the parties not later than 30 calendar days after conclusion of the hearing. Upon receipt of such a recommended decision, the board of directors may, without a hearing except as otherwise required below, either:

a. Adopt the recommended decision, including findings of fact and conclusions submitted by the hearing officer;

b. Adopt the findings of fact and conclusions contained in the recommended decision, modify the decision, and adopt the recommended decision as so revised;

c. Based upon the record of the hearing, modify the findings of fact, conclusions or decision, and adopt the recommended decision as so revised; or

d. Reject the recommended decision and conduct a new hearing.

If the hearing is conducted by the board of directors of the commission, upon conclusion of the hearing, the board of directors shall adopt a decision which includes findings of facts and conclusions.

If the decision by the board of directors is that there are grounds for termination of the franchise and that the franchise should be terminated, the board shall adopt a resolution which terminates the franchise and includes its decision. The effective date of termination shall be such date as is prescribed by the board of directors, within its sole discretion, in the resolution, and the effective date may be made variable in relation to whether an appeal to arbitration is filed pursuant to section 90-466, below.

(Ord. No. 97-12, § 2(5.50.822), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Not later than 30 calendar days following the date of mailing to the franchisee of the resolution of termination by the board of directors, the franchisee shall be authorized to appeal to arbitration the determination to terminate the franchise. The appeal shall be taken by filing a written notice thereof with the clerk of the board of directors. The notice of appeal shall state the specific reasons for appeal and shall be accompanied by a fee equal to the estimate by the clerk of the cost of preparing the transcript and record of the hearing. In the event the franchisee fails to file the notice of appeal with accompanying fee within 30 calendar days following the date on which a copy of the resolution of termination was mailed to the franchisee, the termination of the franchise shall become final, binding, conclusive and not subject to review or reversal by any authority. Judicial enforcement of the decision may be sought.

Except as otherwise provided herein, the arbitration pane [panel] shall be selected, the hearing scheduled within the time prescribed, notice given, the hearing conducted, decision made and costs divided in the manner prescribed by sections 90-469 through 90-474, inclusive, below.

The question which may be submitted to the arbitration panel and jurisdiction of the panel shall be limited to a decision as to whether the evidence received during the hearing preceding the determination by the board of directors established a basis for the termination of the franchise, and interpretation of the provisions of the franchise documents solely in relation to the question of whether there was a basis for termination. Under no circumstances shall the arbitration panel have authority or be vested with jurisdiction to review, reverse or otherwise nullify the exercise of discretion by the board of directors in terminating the franchise, if the panel determines that there are grounds for termination.

The hearing by the arbitration panel shall not be trial de novo, no new evidence shall be introduced, received, or considered, and the sole function of the panel shall be to review the record of the hearing preceding the decision by the board of directors to decide whether there was substantial evidence in the record to support the findings and to interpret the franchise documents in relation to the decision by the board of directors. The board's determination to terminate 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. In determining whether there is substantial evidence in the record to support the findings, the panel shall conduct an independent review of the evidence in the record and determine the weight of the evidence contained in the record. The panel shall not substitute its discretion for that of the board with respect to the determination to terminate. If the panel decides that the determination by the board to terminate violates the provisions of the franchise documents it shall remand the matter to the board for further determination, reserving jurisdiction to review the determination. However, such remand shall not include a duty to receive further evidence, unless such evidence was initially offered and excluded during the hearing preceding the board's decision. Objections by the franchisee which were not presented during the hearing preceding the board's decision shall be deemed to have been waived.

The decision by the board of directors as affirmed by an 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 grounds set forth in Code of Civil Procedure § 1286.2 to the extent such grounds are consistent with the express terms of this article.

(Ord. No. 97-12, § 2(5.50.824), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Upon a final determination to terminate the franchise pursuant to sections 90-465 or 90-466, above, the board of directors of the cable television commission, in its sole discretion, shall be authorized to purchase the property associated with the franchise, as defined by section 90-143 in division 3. Purchase of the property shall be made in accordance with the standards, procedures and provisions set forth in section 90-142 through 90-155, inclusive, in division 3. No compensation shall be payable by the commission or its assignee in relation either to the termination of the franchise or purchase of the property, except pursuant to and in accordance with said sections 90-142 through 90-155.

(Ord. No. 97-12, § 2(5.50.826), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

In the event a franchisee fails to operate its cable television system for seven consecutive days without prior approval by the board of directors of the cable television commission and for reasons which are not beyond its control, the commission through its officers, agents, employees or contractors may, at its option, enter upon the premises of the franchisee, occupy such premises and property constituting the cable television system, and operate the system until such time as the franchisee presents proof satisfactory to the board of directors that it is ready, willing and able to renew operation of the system. In operating the system, the commission or its contractor shall be vested with the powers of a receiver, and shall be authorized to contract in the name of the franchisee, incur expenses in the name of the franchisee, and take any and all other actions necessary to enable it to effectuate the purposes of this section. The costs incurred by the commission in undertaking such operation shall be a charge against the assets of the franchisee, and the commission or its contractor shall be authorized to reimburse itself for the costs incurred from revenues received during the period of operation.

(Ord. No. 97-12, § 2(5.50.828), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Except as otherwise provided by this article, arbitration proceedings of matters expressly made arbitrable under the provisions of this article shall be conducted in compliance with the provisions of the California Arbitration Act, commencing with Code of Civil Procedure § 1280.

(Ord. No. 97-12, § 2(5.50.830), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Each arbitration shall be conducted by a panel of three arbitrators. One arbitrator shall be appointed by the franchisee, one arbitrator shall be appointed by the cable television commission, and the third arbitrator shall be the chairperson of the panel, and shall be appointed by the other two arbitrators. If the other two arbitrators are unable to agree upon an appointment, the third arbitrator shall be appointed by the presiding judge of the superior court in Sacramento County. Each member of the arbitration panel shall be an attorney licensed to practice within the courts of the State of California. No member of the panel shall be an officer, employee or attorney of any franchisee or any affiliate thereof, the county, cities or the commission.

The franchisee and commission shall each appoint its arbitrator and mail notice to the other of its selection not later than 15 calendar days following filing of a notice of appeal to arbitration or mailing of the initiation of arbitration. The third arbitrator shall be appointed not later than 30 calendar days following filing of the notice of appeal to arbitration or mailing of the initiation of arbitration.

(Ord. No. 97-12, § 2(5.50.832), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The chairperson of the arbitration panel shall select the site of the hearing, retain a stenographic reporter to report the hearing, and, in consultation with the other members of the panel and the parties, schedule the hearing. The hearing shall be scheduled to commence not later than 75 calendar days following filing of the notice of appeal to arbitration or mailing of the initiation of arbitration. The chairperson of the panel shall mail written notice of the time, date and place of the hearing to the other two arbitrators, legal counsel to the cable television commission, the franchisee, and the franchisee's surety on the performance bond filed pursuant to the provisions of section 90-371 in subdivision V of division 4, above, not later than 20 calendar days in advance of the hearing.

(Ord. No. 97-12, § 2(5.50.834), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The compensation and expenses of the arbitrator appointed by the franchisee shall be borne and paid solely by the franchisee. The compensation and expenses of the arbitrator appointed by the cable television commission shall be borne and paid solely by the commission. The franchisee and commission shall each bear and solely pay their own costs of attorneys' fees, expert and other witness fees and other expenses incurred in preparing and prosecuting their respective cases. In proceedings where the record of a public hearing of the board of directors of the commission is to be considered by the arbitration panel, the costs of transcribing, typing and copying the record shall be borne and paid solely by the franchisee.

The compensation and expenses of the chairperson of the arbitration panel, rental, if any, for the place of the hearing, per diem costs of the stenographic reporter, costs of transcribing and typing any transcripts of the arbitration hearing, and any other costs of the arbitration proceeding not identified in the first paragraph of this section shall be divided equally between, borne and paid by the franchisee and commission. The arbitration panel shall not be empowered to order a division of costs, fees or expenses different from that prescribed by this section.

(Ord. No. 97-12, § 2(5.50.836), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The arbitration award shall be determined by a majority of the members of the arbitration panel, and shall be in writing. If it is necessary for the panel to make determinations of fact, it shall include findings of fact and conclusions with the award if requested by any party to the proceeding. The award shall be issued and mailed to the parties not later than 90 calendar days following the close of the arbitration hearing.

(Ord. No. 97-12, § 2(5.50.838), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The arbitration panel shall have no authority to add to, delete or alter any provisions of the franchise documents, but shall limit its interpretation to the express terms of the franchise documents. Under no circumstances shall an arbitration panel be vested with authority or jurisdiction to determine or award monetary damages (by way of setoff, counterclaim, directly or otherwise) or any other relief against the county, the cities, the cable television commission, or their officers, agents or employees, except with respect to proceedings under section 90-151 or 90-152 in division 3 to determine the value of property, and in such instances, any such award shall be limited to a determination of the value of the property according to the expressed terms and standards of the franchise documents.

(Ord. No. 97-12, § 2(5.50.840), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

No provision of this article shall be deemed to bar the right of the county, cities or cable television commission to seek or obtain judicial relief from a violation of any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in said article nor the exercise thereof shall be deemed to bar or otherwise limit the right of the county, cities or cable television commission to recover monetary damages (except where liquidated damages are otherwise prescribed) for such violation by the franchisee, or judicial enforcement of the franchisee's obligations by means of specific performance, injunctive relief or mandate, or any other judicial remedy at law or in equity.

(Ord. No. 97-12, § 2(5.50.842), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

No franchisee shall have any recourse whatsoever against the county, cities, cable television commission, or their officers, agents, or employees for any loss, costs, expense, or damage arising out of or resulting from any provision or requirement of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder, or because of the enforcement of any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder, or in the event any provision of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder is determined to be invalid.

(Ord. No. 97-12, § 2(5.50.844), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

A franchisee shall not be relieved of any obligation to comply with any of the provisions of the franchise documents or any rule, regulation, requirement or directive promulgated thereunder by reason of any failure of the county, cities, cable television commission or their officers, agents or employees to enforce prompt compliance.

(Ord. No. 97-12, § 2(5.50.846), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Wherever within this article II a requirement or provision is applicable to franchises issued by the commission, there is hereby delegated to the commission the power to make such requirement or provision permissive and render such requirement or provision inapplicable to a given franchisee upon a showing of good cause therefor.

(Ord. No. 97-12, § 2(5.50.848), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Subsequent to the adoption of a resolution offering a franchise to any franchisee, the commission may adopt one or more amended and restated resolutions regarding the franchise issued to such franchisee.

(Ord. No. 97-12, § 2(5.50.850), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

Except as otherwise expressly provided in any franchise issued by the county pursuant to its reserved powers under section 90-47 of this article II, all powers, rights, duties and obligations of the county pursuant to the provisions of Government Code §§ 53088—53088.2 (hereinafter the "Video Customer Service Act"), as it now exists or should hereafter be amended, are hereby delegated to and conferred upon the board of directors of the cable television commission as to any video provider included within the scope of its provisions, including without limitation those video providers who have received, or hereafter receive, a franchise issued by the commission pursuant to this article.

(Ord. No. 97-12, § 2(5.50.900), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)

The maximum monetary penalties set forth in Government Code § 53088.2(q) are hereby adopted and enacted as the applicable schedule of penalties for the material breach by a video provider of the provisions of Government Code § 53088.2(a)—(n), as it now exists or should hereafter be amended, within the jurisdiction of the county. Subject to the procedures required by Government Code § 53088.2(r), the board of directors of the commission is authorized to impose monetary penalties up to the maximum amounts so specified and subject to the terms thereof, provided that the schedule of penalties hereby adopted shall not be deemed to reduce or delimit any other or additional penalties which the commission may otherwise be authorized to impose under law.

(Ord. No. 97-12, § 2(5.50.902), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)