Lemoore Municipal Code Part V Enforcement

The Grantor shall provide the grantee with a written notice of violation(s) by the grantee of this Chapter or the franchise agreement upon which the Grantor proposes to take corrective action. The notice shall specifically describe the nature and scope of the alleged violation(s) by the grantee. The grantee shall have sixty (60) days from receipt of such written notice to respond by correcting the violation to the Grantor's satisfaction or, in the alternative, by demonstrating to the Grantor's satisfaction that such violation has not in fact occurred by submitting in writing a plan acceptable to the Grantor to correct the violation. If the Grantor fails to object in sixty (60) days after receiving the grantee's response to the notice of violation, the matter shall be deemed resolved. (Ord. 9501, 5-2-1995)

If the grantee fails to disprove or correct the violation or to submit to the Grantor a plan to correct the violation as provided for in Section 7-8-32, the Grantor may declare the grantee to be in default, which declaration of default shall be in writing and shall specify the nature of the violation and any proposed remedy sought by the Grantor as provided in Section 7-8-38. Upon receipt of the declaration of default, the grantee may request additional time in which to cure the violation, which extension of time may be granted by the Grantor at its sole discretion. (Ord. 9501, 5-2-1995)

The grantee may appeal a declaration of default by the Grantor directly to the Council pursuant to Section 7-8-37 or may elect to invoke advisory arbitration pursuant to Section 7-8-35. A notice of appeal under Section 7-8-37 or a notice of appeal to advisory arbitration under Section 7-8-35 shall be in writing and shall state the appeal, the nature of the dispute between the parties, and the remedy or relief sought by the grantee, and shall include a copy of the declaration of default. The grantee's notice of appeal shall be filed with the City Clerk within thirty (30) calendar days after receipt by the grantee of the declaration of default as provided in Section 7-8-33 of this Chapter. (Ord. 9501, 5-2-1995)

A. Within thirty (30) days after the grantee has filed a notice of appeal to advisory arbitration as provided in Section 7-8-34, the parties shall jointly select an arbitrator to hear the dispute. The parties shall use their best efforts to obtain an arbitrator who is an individual knowledgeable in the area of cable television. If the parties are unable to agree on an arbitrator within thirty (30) days, a list of three (3) arbitrators shall be obtained from the American Arbitration Association (AAA) by the grantee and each party shall have the right to strike one name within twenty (20) days of receipt of the list. The remaining arbitrator shall hear the dispute.

B. Within thirty (30) days following selection of the arbitrator, the arbitration hearing shall commence, unless the time for hearing is extended by mutual agreement of the parties. The hearing shall be conducted so as to afford the parties full due process rights, including the right to introduce evidence, call witnesses on their behalf and cross-examine adverse witnesses.

C. The hearing shall be recorded by audio taping or by a certified court reporter. Either party may request preparation of a transcript of the proceedings. Upon approval by both parties, such transcript shall be deemed to be a legally sufficient record of the arbitration hearing for any and all purposes. Cost of transcript preparation shall be borne by the requesting party.

D. Within thirty (30) days following the conclusion of the hearing, the arbitrator shall prepare and submit to the parties written findings and conclusions, including the arbitrator's recommendation for relief, remedy or resolution to the dispute.

E. The decision of the arbitrator shall be advisory only and shall not be binding upon the parties. Either party may appeal the arbitrator's decision to the Council pursuant to Section 7-8-36 below.

F. Except as provided in subsection C of this Section with respect to preparation of a transcript, the costs of the arbitration shall be borne equally by the parties. The costs of the arbitration shall include without limitation the fees of the arbitrator and the costs of the court reporter or audio recording costs. (Ord. 9501, 5-2-1995)

A. Within thirty (30) days after issuance of the arbitrator's written decision, either party may submit to the City Clerk a notice of appeal from the arbitrator's decision seeking administrative review by the Council. The notice shall be in writing, shall state the grounds for the appeal, the nature of the dispute between the parties and the remedy or relief sought by the appellant, shall include a copy of the arbitrator's findings and conclusions, and may include a transcript of the hearing. Within thirty (30) days of filing of such notice of appeal by either party, the Council shall schedule an administrative review which shall in no event occur later than sixty (60) days following the filing of the written notice of appeal from the arbitrator's decision.

B. An administrative review pursuant to this Section shall be conducted in the manner set in the franchise agreement.

C. An administrative review before the Council pursuant to this Section shall constitute the final level of administrative review by the Grantor under this Section and Section 7-8-35 of this Chapter and shall represent the exhaustion of administrative remedies by the parties. The Council's decision shall be final. The written decision of the Council shall be served by the Grantor upon the grantee by certified mail. (Ord. 9501, 5-2-1995)

A. In lieu of electing advisory arbitration, the grantee may appeal the declaration of default directly to the Council by submitting to the City Clerk a notice of appeal for a hearing before the Council. The notice of appeal shall be in writing, shall state the grounds for the appeal, the nature of the dispute between the parties and the remedy or relief sought by the grantee, and shall include a copy of the declaration of the default.

B. Within thirty (30) days after the filing of such notice of appeal, the Council shall schedule an evidentiary hearing at which the parties shall be afforded full due process rights, including the right to introduce evidence, call witnesses on their behalf and cross-examine adverse witnesses. The hearing shall be held within sixty (60) days after the filing of the notice of appeal. The parties shall receive written notice of the scheduled hearing no later than thirty (30) days in advance of the hearing date.

C. Within thirty (30) days following the conclusion of the evidentiary hearing, the Council shall issue its written findings and decision to the parties. The Council's decision shall be final. The written findings and decision shall be personally served by the Grantor upon the grantee by certified mail.

D. An evidentiary hearing before the Council pursuant to this Section shall constitute the final level of administrative review under this section and shall represent the exhaustion of administrative remedies by the parties. (Ord. 9501, 5-2-1995)

Following completion of the applicable proceedings pursuant to this Part V, the Grantor may proceed to take all necessary steps to obtain the remedy sought, which may include:

A. Liquidated Damages: Liquidated damages as provided for in the franchise agreement may be assessed against the grantee.

B. Collection From Performance Bond Or Letter Of Credit: The Grantor may proceed against the grantee's performance bond or letter of credit to collect its actual or liquidated damages.

C. Revocation Of Franchise: The Council may revoke the grantee's franchise pursuant to the Procedures set forth in this Part V only if the Council makes a specific finding that the grantee committed a material violation of this Chapter or the franchise agreement as the term "material" is defined in the franchise agreement. Upon revocation of the franchise pursuant to the appropriate action by the Council, the Grantor may require the grantee, at the Grantor's sole option:

1. To forthwith remove its structures and facilities from the Grantor's streets, public property and other public areas and ways and restore them to their prior condition within a reasonable time and comply with all applicable requirements of subsection 7-8-10E of this Chapter, all at the grantee's expense. If the grantee fails to comply with such requirements, the Grantor may cause the removal and restoration to be completed, in which case the Grantor shall be entitled to collect all costs thereof from the grantee. Any such cost shall constitute a lien upon all structures, facilities, or other property of the grantee within the franchise area;

2. To abandon its structures and facilities in place; or

3. To sell the cable system to a third party unaffiliated with the grantee.

D. Other Relief: The Grantor may initiate any action or proceeding in law or equity (including suit for injunctive relief or actual damages) which the Grantor deems appropriate to enforce the City's rights under this Chapter or franchise agreement. (Ord. 9501, 5-2-1995)

Final decisions of the Council following administrative review shall be subject to judicial review. (Ord. 9501, 5-2-1995)

A. A franchise granted hereunder shall, at the option of the Grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of the grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of the one hundred twenty (120) days, or unless: 1) such receivers or trustee(s) shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all material terms and provisions of this Chapter, the franchise and the franchise agreement and shall have remedied all material defaults under the franchise or franchise agreement or provided a plan for the remedy of such defaults which is satisfactory to the Grantor; and 2) such receiver(s) or trustee(s) shall, within one hundred twenty (120) days after election or appointment, execute an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver(s) or trustee(s) assume and agree to be bound by each and every term, provision and limitation of this Chapter, the franchise and the franchise agreement.

B. In the case of a foreclosure or other judicial sale of the system, or any material part thereof, the Grantor may serve notice of termination upon the grantee and the successful bidder at such sale, in which event the franchise and all rights and privileges of the grantee under this Chapter, the franchise and the franchise agreement shall cease and terminate thirty (30) days after service of such notice, unless: 1) the Grantor shall have approved the transfer of the franchise, as and in the manner that this Chapter provides; and 2) such successful bidder shall have covenanted and agreed with the Grantor to assume and be bound by all terms and conditions of this Chapter, the franchise and the franchise agreement. (Ord. 9501, 5-2-1995)

The Council may waive, in its sole discretion, any provision of the franchise or the franchise agreement, subject to applicable law. Any such waiver shall apply only to such provision and only in the instance in which it is given. (Ord. 9501, 5-2-1995)

A. The grantee shall not deny cable service, deny access to the cable system, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, religion, national origin, age, gender, marital status or disability, or because of the income of the residents of the local area in which such persons reside. The 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 California Government Code.

B. The grantee shall adhere to the applicable equal employment opportunity requirements of the section 634 of the Act (47 USC 554), and applicable State and City regulations, as now written or as amended from time to time. (Ord. 9501, 5-2-1995)

A. Definitions: For purposes of this Section only, the following terms shall have the following meanings:

DEVELOPER: Each party responsible for the acquisition, ownership, construction, management or operation of a residential subdivision.

EASEMENT: The streets, highways, alleys, rights of way, easements and riser paths of any subdivision which are dedicated or to be designated for public utility use, whether by formal instrument of dedication or by actual use in the delivery of utility services to residents.

SUBDIVISION:

• 1. A residential real estate development;
• 2. A condominium or cooperative mobilehome or multi-unit apartment; or
• 3. Any other multi-unit dwelling.

B. Access To Subdivisions:

1. The grantee shall have the right to use the easements of any subdivision for the construction, installation, maintenance and repair of a cable system.

2. The developer of each subdivision for which a tentative map or parcel map is required pursuant to State law shall identify on the map land dedicated or to be dedicated to public utility and cable system use so as to provide the grantee a path from which to extend cable service to each residential parcel in the subdivision.

3. Each developer shall assure that the grantee is provided timely access to:

a. Jointly-used trenches, at the time that the trenches are opened for utility and/or cable system installation. Access shall be provided on a cost shared basis, without discrimination among users; and

b. Underground easements and all riser paths used for the installation of utility and/or cable system facilities. Access shall be provided prior to the paving or sealing of any pertinent street (if within the street right of way) and shall be offered at all other locations no later than the time of installation of telephone or electrical power facilities.

C. Procedures:

1. A developer shall assure delivery of reasonable advance notice to the grantee of intended subdivision construction, and timely notice (within 14 days) after the issuance of work permits related to use of subdivision easements by utilities or the cable system.

2. A developer shall assure delivery to the grantee of thirty (30) days' advance notice of the opening of joint-use trenches by utilities and the use or underground easements and of riser paths by utilities or the cable system.

3. All notices sent to the grantee hereunder by a developer shall be sent by registered mail, return receipt requested, to the grantee's general manager or system manager, or to the address on file with the Grantor. No developer may omit notice without written confirmation from the Grantor that there is no grantee able to provide cable service to that subdivision.

4. If the grantee fails to install its conduit within a shared trench within five (5) working days of the date trenching is available, as designated in the developer's notice, the grantee shall be responsible for all costs of reopening the trench. Separate trenches created by the grantee for distribution plant shall be installed during any period of installation by multiple grantees, and as contiguous as reasonably practicable to other utility trenches.

D. Residents' Choice Of Grantee:

1. Each resident of a subdivision shall be provided with the continuing option to receive cable service from any grantee.

2. No developer shall enter into an agreement which has the purpose or effect of interfering with a resident's free and complete exercise of the rights under this subsection D or enter into any arrangement with a third party to do so.

E. Remedies: Any developer who violates this Chapter shall be subject to all remedies available to the Grantor under any development entitlement, permit or authorization received or held by developer from the Grantor. (Ord. 9501, 5-2-1995)

The franchise or the franchise agreement shall not relieve the grantee of any obligations involved in obtaining pole or conduit space from any department of the Grantor, utility company, or other persons who maintain facilities in streets or rights of way. Subject to applicable law, the grantee shall negotiate the lease of pole space and facilities from the existing pole owners for all aerial construction. The grantee shall not erect any pole on or along any street or public right of way in an area in which there are existing aerial utility facilities. If additional poles in such an area are necessary, the grantee shall negotiate with a public utility for their installation. Any such installation shall require the advance written approval of the Grantor. If poles or facilities are not made available consistent with section 767.5 of the California Public Utilities Code, the grantee may erect its own poles subject to the Grantor's approval. (Ord. 9501, 5-2-1995)

If any provision of this Chapter is held by any court or by any Federal or State agency of competent jurisdiction to be invalid as conflicting with any Federal or State 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, such provision shall be considered a separate, distinct and independent part of this Chapter, and such holding shall not affect the validity or enforceability of any other provisions hereof. (Ord. 9501, 5-2-1995)