Yolo County Municipal Code Art. 11 Completion

(a) A final order of completion shall be issued by the Board 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 10 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 11-1.1303 of Article 13 of this chapter have been made available to 100 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 11-1.901 through 11-1.905 of Article 9 of this chapter 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 11-1.1002 of Article 10 of this chapter and this section, basic service and other services identified pursuant to the provisions of Section 11-1.1303 of Article 13 of this chapter shall be deemed to 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 Section 11-1.1403 of Article 14 of this chapter 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 said Section 11-1.1303 (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 deemed to be the actual number of units available for occupancy as of a date forty-five (45) 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 Board 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 Clerk of the Board. The notice of completion shall state the total number of dwelling units available for occupancy within the service area forty-five (45) 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 deemed to be binding upon the Board.

(e) During the period of construction of the cable communications system or during the sixty (60) 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 County, 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. (§ 1, Ord. 961, eff. October 27, 1983)

(a) No later than forty-five (45) calendar days following the filing of the notice of completion, the Board 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 11-1.406 of Article 4 of this chapter.

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 Board may direct such investigations of issues or questions raised during the hearing as it deems appropriate.

(b) During the public hearing, the Board, 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 Board, by resolution, shall identify specific deficiencies respecting completion which shall be corrected in advance of the issuance of a final order of completion.

(c) 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 subsection (a)of Section 11-1.1101 of this article 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. (§ 1, Ord. 961, eff. October 27, 1983)

(a) At any time on or after 120 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 Board, 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 (30) 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 Clerk of the Board.

(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 11-1.1214 through 11-1.1219 of Article 12 of this chapter. 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 subsection (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 11-1.1107 through 11-1.1110 of this article.

(c) If ordered by the arbitration panel, the Board shall issue a final order of completion not later than ten (10) 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. (§ 1, Ord. 961, eff. October 27, 1983)

Any citizen who asserts there has been a violation of any of the provisions of Sections 11-1.1002 through 11-1.1014 of Article 10 of this chapter may file a written complaint asserting such violation with the Clerk of the Board. (§ 1, Ord. 961, eff. October 27, 1983)

Except as provided in this section, the violation by a grantee of any of the provisions set forth in Sections 11-1.1002 through 11-1.1014 of Article 10 of this chapter and Section 11-1.1101 of this article 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 said 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:

(a) 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;

(b) 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 said Sections 11-1.1002 through 11-1.1014 and 11-1.1101;

(c) Considerations relating to economy or cost efficiency as respects acts or omissions by a grantee;

(d) 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;

(e) 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 (59) days during any period commencing July 1 and ending the next following June 30; and only if such is the proximate cause of the violation);

(f) 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

(g) Delays occasioned by the customary and usual time required to process and secure approvals under the zoning laws of the County 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 County and analyses upon all such facilities as the lead agency, any time consumed by such environmental analyses which is longer than 120 calendar days during a period subsequent to the filing of the certificate of acceptance of the franchise pursuant to Section 11-1.605 of Article 6 of this chapter shall be deemed to excuse the grantee from any violations which are proximately caused by such delay in excess of 120 calendar days.

Notwithstanding the provisions of subsections (a)through (f)of this section, a grantee shall not be excused from any violation of the provisions of said Sections 11-1.1002 through 11-1.1014 and 11-1.1101, 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.

Except as otherwise provided in this section, violations caused exclusively by acts or omissions by the County, or its officers, agents, or employees, shall constitute an excuse and justification for the failure of a grantee to comply with the provisions of said Sections 11-1.1002 through 11-1.1014 and 11-1.1101 precluding a determination that the grantee is in breach. However, violations as a result of such exclusive causes shall not be deemed to 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. (§ 1, Ord. 961, eff. October 27, 1983)

Examples of circumstances beyond the control of a grantee which excuse a grantee from violation and being in breach of the provisions of Sections 11-1.1002 through 11-1.1014 of Article 10 of this chapter and Section 11-1.1101 of this article, 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. (§ 1, Ord. 961, eff. October 27, 1983)

(a) At any time and from time to time, proceedings may be commenced by the Board.

(b) The purpose of such proceedings shall be, and the powers of the Board 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 11-1.1002 through 11-1.1014 of Article 10 of this chapter and Section 11-1.1101 of this article 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 said Sections 11-1.1002 through 11-1.1014 and 11-1.1101, 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 11-1.1203 and 11-1.1204 of Article 12 of this chapter.

(c) In connection with determinations by the Board that there has been a violation of any time limit prescribed by said Sections 11-1.1002 through 11-1.1014 and 11-1.1101, the Board shall be authorized to establish new time schedules and time limitations based upon the circumstances, which shall supersede those set forth in said sections. Future enforcement proceedings pursuant to this section and Sections 11-1.1108 and 11-1.1109 of this article may be undertaken in relation to time schedules and time limitations established pursuant to prior enforcement proceedings. In the event the Board finds that a grantee has breached any of the time limitations set forth in said Sections 11-1.1002 through 11-1.1014 and 11-1.1101, or established pursuant to prior enforcement proceedings, the Board 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 Board 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 Board 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. (§ 1, Ord. 961, eff. October 27, 1983)

(a) The Board shall commence enforcement proceedings by scheduling a hearing for the purpose of inquiring into the matters specified in Section 11-1.1107 of this article. 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 11-1.1508 of Article 15 of this chapter not later than thirty (30) 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 Board 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 who shall not be an officer or employee either of a grantee or the County.

(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 County. 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. (§ 1, Ord. 961, eff. October 27, 1983)

(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 11-1.1107 of this article. The recommended decision shall be filed with the Clerk of the Board and mailed to the parties not later than thirty (30) calendar days after the conclusion of the hearing. Upon the receipt of such a recommended decision, the Board, 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 Board, upon the conclusion of the hearing the Board shall adopt a decision which includes the findings of fact, conclusions, and determinations authorized by Section 11-1.1107 of this article. Copies of the decision adopted by the Board shall be mailed to the parties. (§ 1, Ord. 961, eff. October 27, 1983)

(a) Not later than thirty (30) calendar days following the date of the mailing to the grantee of the decision by the Board, the grantee shall be authorized to appeal the decision or any portion thereof to arbitration by filing a written notice of appeal with the Clerk of the Board. 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 Clerk of the Board 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 subsection, the determinations by the Board 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 11-1.1214 through 11-1.1218 of Article 12 of this chapter.

(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 Board are supported by substantial evidence in the record and whether the conclusions by the Board 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 Board from which the appeal is taken should be affirmed, or reversed and remanded to the Board for further determination, and interpretation of the provisions of the franchise documents solely in relation to the review of the decision by the Board.

(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 Board 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 Board. 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 Board to be reconsidered in the light of such evidence. The determination by the Board 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 Board with respect to the determinations made by the Board or reweigh or otherwise judge the credibility of the evidence presented during the hearing preceding the Board’s decision. If the panel decides that the determinations by the Board violate the provisions of the franchise documents, the panel shall remand the matter to the Board for further determinations, reserving jurisdiction to review the determinations. Objections by the grantee to the determinations by the Board which were not presented during the hearing preceding the Board’s decision shall be deemed to have been waived.

(e) The decision by the Board 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 chapter. (§ 1, Ord. 961, eff. October 27, 1983)