West Sacramento Municipal Code Art. II Completion

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;

4. Any community use programming which the grantee has proposed pursuant to the provisions of Sections 4.20.290 through 4.20.330 shall be ready for commencement in compliance with the franchise documents; and

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;

2. Unanticipated cost increases or insufficiency of capital with which to take the actions necessary to comply or facilitate compliance with any of the provisions of Sections 4.12.020 through 4.12.150;

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:

1. Determination of whether there has been a violation of any of the terms, conditions or requirements set forth in Sections 4.12.020 through 4.12.150 or any requirements in relation thereto established pursuant to previously conducted enforcement proceedings;

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

4. With respect to any finding of breach, determination of the remedy therefor authorized by Sections 4.44.030 and 4.44.040.

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.

B. Except as otherwise provided in this section, 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 4.44.180.

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)