Yolo County Municipal Code Art. 12 Remedies

Violations of the provisions of Sections 11-1.413 of Article 4 of this chapter, 11-1.603 of Article 6 of this chapter, and 11-1.1314 of Article 13 of this chapter shall constitute a misdemeanor. With the foregoing exceptions, a violation of the provisions of this chapter shall not constitute a misdemeanor, infraction, or other crime. (§ 1, Ord. 961, eff. October 27, 1983)

At the time of the issuance of any franchise under the provisions of this chapter, it will be impractical to reasonably ascertain the total extent of damages which may be incurred as a result of the breach by the grantee of its obligations under the franchise documents as prescribed by Section 11-1.1203 of this article. The provisions of said Section 11-1.1203 shall apply in the event of a breach as liquidated damages therefor. Factors relating to the impracticality of ascertaining damages shall include, but are not limited to, the following:

(a) The facts that:

(1) The primary damage resulting from breaches by the grantee of the schedules for the construction and extension of the cable communications system and provision of services prescribed by Sections 11-1.1002 through 11-1.1014 of Article 10 of this chapter and Section 11-1.1101 of Article 11 of this chapter, and of the duty prescribed pursuant to said Section 11-1.1101, and of the duty prescribed pursuant to Section 11-1.817 of Article 8 of this chapter will be to members of the public who are denied services or denied quality or reliable services;

(2) 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;

(3) That services might be available through the cable communications system which are both necessary and available at a substantially lower cost than alternative services, and the monetary loss resulting from the denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and

(4) The termination of a franchise for such breaches and other remedies is, at best, a means of future correction and not a remedy which makes the public whole for past breaches;

(b) The fact that the failure of a grantee to make timely reports identifying its progress in installing its cable communications system within service areas will make it difficult in ways which are not measureable for the County to administer the construction schedule, delay initiation to enforcement proceedings, and impede compliance with the periods allowed for construction; and

(c) The fact that the failure of a grantee to file timely annual reports will deny information necessary to enable the County 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 11-1.1203 of this article, the actual damages for which a grantee would be liable could greatly exceed the specified amount of liquidated damages. Therefore, the provisions of said Section 11-1.1203 are of benefit to a grantee. (§ 1, Ord. 961, eff. October 27, 1983)

(a) The Board shall assess a grantee, and the grantee shall be liable, for liquidated damages in the amount of One Thousand and no/100ths ($1,000.00) Dollars for each calendar day on which a grantee is in breach and for each breach of any of the provisions of any of the following: Sections 11-1.1002 through 11-1.1014 of Article 10 of this chapter and Section 11-1. 1101 of Article 11 of this chapter; the time limitations prescribed pursuant to Section 11-1.1107 of Article 11 of this chapter; or Section 11-1.817 of Article 8 of this chapter. Such liquidated damage sum shall be separately applicable to each calendar day of delay in complying with the provisions of subsections (a)through (e)of said Section 11-1.1002 and separately applicable for each calendar day of delay in complying with any of the provisions of said Section 11-1.1002. Such 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 11-1.1005.

(b) The Board shall assess a grantee, and the grantee shall be liable, for liquidated damages in the amount of Five Hundred and no/100ths ($500.00) Dollars for each calendar day in excess of twenty (20) calendar days the grantee is in breach of any of the provisions of Section 11-1.1316 of Article 13 of this chapter. (§ 1, Ord. 961, eff. October 27, 1983)

In addition to the liquidated damages set forth in Section 11-1.1203 of this article, in its sole discretion, the Board may reduce the term of any franchise one calendar month for each cumulative thirty (30) calendar days in excess of the first thirty (30) calendar days a grantee is in breach of any of the provisions of Section 11-1.1002 of Article 10 of this chapter. The purpose of this section is to authorize the Board, after a grantee has been in breach of said provisions of said section for the first thirty (30) calendar days, to reduce the term of the franchise for subsequent delays caused by the grantee’s breach on a month-to-month basis. (§ 1, Ord. 961, eff. October 27, 1983)

(a) The County Auditor-Controller shall charge and transfer from the security fund established pursuant to Section 11-1.1509 of Article 15 of this chapter to the credit of the County such amounts as are assessed as liquidated damages by determinations of the Board pursuant to Section 11-1.1109 of Article 11 of this chapter which are not appealed to arbitration and become final, or which are affirmed by an arbitration panel under the provisions of Section 11-1.1110 of Article 11 of this chapter.

(b) With respect to breaches of any of the provisions of Sections 11-1.1315 of Article 13 of this chapter or 11-1.817 of Article 8 of this chapter, the Board shall determine the amount of liquidated damages to be assessed and mail notice thereof to the grantee. 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 grantee. The determinations by the Board shall become final, binding, and conclusive, not subject to judicial review or reversal by any authority, and judicially enforceable, unless, within thirty (30) calendar days following the date of the mailing of the notice of the determination, the grantee files with the Clerk of the Board a written notice appealing the determination to arbitration pursuant to the provisions of Section 11-1.1206 of this article. The notice of appeal shall specifically identify the grounds for the appeal. The County Auditor-Controller shall charge and transfer from the special account established pursuant to said Section 11-1.1509 to the credit of the County such amounts as are assessed as liquidated damages by determinations of the Board pursuant to this subsection which are not appealed to arbitration and become final or which are affirmed by an arbitration panel under said Section 11-1.1206.

(c) With respect to breaches of any of the provisions of Section 11-1.1502 or 11-1.1503 of Article 15 of this chapter, the County Auditor-Controller shall charge and transfer from the special account established pursuant to said Section 11-1.1509 to the credit of the County such amounts as are assessed as franchise fees, interests, and liquidated damages by determinations of the Board pursuant to Section 11-1.1506 of Article 15 of this chapter which are not appealed to arbitration and become final or which are affirmed by an arbitration panel under said Section 11-1.1506, or such amounts of franchise fees, interests, and liquidated damages as are prescribed by a judgment of a court.

(d) The County Auditor-Controller shall mail notice to the grantee of transfers from the special account. The notice shall identify the amount of transfer, the balance of the account after transfer (including accumulated interest), and the total amount, if any, which the grantee is required to pay in order to replenish the account in accordance with the requirements of said Section 11-1.1509.

(e) Any amount owing by a grantee in excess of the current balance within the special account established pursuant to said Section 11-1.1509 may be recovered from the surety on the performance bond filed pursuant to the provisions of Section 11-1.1508 of Article 15 of this chapter or from the grantee. (§ 1, Ord. 961, eff. October 27, 1983)

(a) With a request for arbitration proceedings conducted pursuant to the provisions of subsection (b)of Section 11-1.1205 of this article, the arbitration panel should 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 this article. 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 (b)of this section; and

(2) The amount, if any, owing by the grantee. The grantee shall immediately pay any amount determined to be owing by the arbitration panel.

(b) 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)

Neither the 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 11-1.1203 of this article. Neither the right to assess liquidated damages, nor the assessment of liquidated damages, nor the right to reduce, nor the reduction of the term of the franchise shall be deemed to bar or otherwise limit the right of the County to obtain judicial enforcement of the grantee’s obligations by means of specific performance, injunctive relief, mandate, or other remedies at law or in equity, other than monetary damages. (§ 1, Ord. 961, eff. October 27, 1983)

The following material breaches of the obligations of a grantee under the franchise documents shall constitute grounds for the termination of a franchise by the County:

(a) Cumulative unexcused delays in excess of 180 calendar days in complying with the provisions of subsection (c)of Section 11-1.1002 of Article 10 of this chapter or beyond the times prescribed pursuant to Section 11-1.1107 of Article 11 of this chapter in relation to subsection (c)of said Section 11-1.1002;

(b) The failure of a grantee to make any payment to replenish the security fund established under Section 11-1.1509 of Article 15 of this chapter within the time required by said section;

(c) Any violation of Sections 11-1.1601, 11-1.1604, or 11-1.1607 of Article 16 of this chapter;

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

(e) The willful failure to make any payment required by Section 11-1.1502 of Article 15 of this chapter; or

(f) Any other act or omission by the grantee which materially violates the terms, conditions, or requirements of the franchise documents, or any other directive, rule, or regulation issued thereunder, and which is not corrected or remedied within thirty (30) calendar days following the mailing to the grantee of written notice of the violation or within such period beyond the thirty (30) calendar days as is reasonable. (§ 1, Ord. 961, eff. October 27, 1983)

(a) The Board shall not determine that a franchise shall be terminated either upon grounds identified by Section 11-1.1208 of this article or pursuant to subsection (k)of Section 11-1.411 of Article 4 of this chapter 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 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, describe the basis for termination, and identify the terms, conditions, or requirements with respect to which the breach has occurred, if a breach is the basis for termination.

(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.

(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, and other expenses shall be borne solely by the party incurring the costs. (§ 1, Ord. 961, eff. October 27, 1983, as amended by § 11, Ord. 999, eff. March 7, 1985)

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

(2) Adopt the findings of fact and conclusions contained in the recommended decision, modify the decision, and adopt the recommended decision as so revised; or

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

(c) If the hearing is conducted by the Board, upon the conclusion of the hearing, the Board shall adopt a decision which includes findings of fact and conclusions.

(d) If the decision by the Board is that there are grounds for the 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 the termination shall be such date as is prescribed by the Board, 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 11-1.1211 of this article. (§ 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 resolution of termination by the Board, the grantee 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. The notice of appeal shall state the specific reasons for the appeal 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. In the event the grantee fails to file the notice of appeal with the accompanying fee within thirty (30) calendar days following the date on which a copy of the resolution of termination was mailed to the grantee, the termination of the franchise shall become final, binding, and conclusive and not subject to review or reversal by any authority. Judicial enforcement of the decision 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 11-1.1219 of this article.

(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 evidence received during the hearing preceding the determination by the Board 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 to be vested with jurisdiction to review, reverse, or otherwise nullify the exercise of discretion by the Board in terminating the franchise if the panel determines there are grounds for termination.

(d) The hearing by the arbitration panel shall not be trial de novo, and 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 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. 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, the panel 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 grantee 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 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 to the extent such grounds are consistent with the express terms of this chapter. (§ 1, Ord. 961, eff. October 27, 1983)

Upon the final determination to terminate the franchise pursuant to Section 11-1.1210 or 11-1.1211 of this article, the Board, in its sole discretion, shall be authorized to purchase the property associated with the franchise as defined by Section 11-1.702 of Article 7 of this chapter. The purchase of the property shall be made in accordance with the standards, procedures, and provisions set forth in Sections 11-1.701 through 11-1.714 of Article 7 of this chapter. No compensation shall be payable by the County 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 11-1.701 through 11-1.714. (§ 1, Ord. 961, eff. October 27, 1983)

In the event a grantee fails to operate its cable communications system for seven (7) consecutive days without prior approval by the Board and for reasons which are not beyond its control, the County, through its officers, agents, employees, or contractors, at its option, may enter upon the premises of the grantee, occupy such premises and property constituting the cable communications system, and operate the system until such time as the grantee presents proof satisfactory to the Board that the grantee is ready, willing, and able to renew the operation of the system. In operating the system, the County or its contractor shall be authorized to contract in the name of the grantee, incur expenses in the name of the grantee, and take any and all other actions necessary to enable it to effectuate the purposes of this section. The costs incurred by the Board in undertaking such operation shall be a charge against the assets of the grantee, and the County or its contractor shall be authorized to reimburse itself for the costs incurred from revenues received during the period of operation. (§ 1, Ord. 961, eff. October 27, 1983)

Except as otherwise provided by this chapter, arbitration proceedings of matters expressly made arbitrable under the provisions of this chapter shall be conducted in compliance with the provisions of the California Arbitration Act, commencing with Section 1280 of the Code of Civil Procedure of the State. (§ 1, Ord. 961, eff. October 27, 1983)

(a) Each arbitration panel shall be conducted by a panel of three (3) arbitrators. One arbitrator shall be appointed by the grantee, one arbitrator shall be appointed by the County, and the third arbitrator shall be the chairperson of the panel and shall be appointed by the other two (2) arbitrators. If the other two (2) arbitrators are unable to agree upon an appointment, the third arbitrator shall be appointed by the presiding judge of the Superior Court of the County. Each member of the arbitration panel shall be an attorney licensed to practice within the courts of the State. No member of the panel shall be an officer, employee, or attorney of any grantee, or any affiliate thereof, or of the County.

(b) The grantee and the Board shall each appoint its arbitrator and mail notice to the other of its selection not later than fifteen (15) calendar days following the filing of a notice of appeal to arbitration or the mailing of the initiation of arbitration. The third arbitrator shall be appointed no later than thirty (30) calendar days following the filing of the notice of the appeal to arbitration or the mailing of the initiation of arbitration. (§ 1, Ord. 961, eff. October 27, 1983)

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 seventy-five (75) calendar days following the filing of the notice of appeal to arbitration or the 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 (2) arbitrators, the grantee, and the grantee’s surety on the performance bond filed pursuant to the provisions of Section 11-1.1508 of Article 15 of this chapter not later than twenty (20) calendar days in advance of the hearing. (§ 1, Ord. 961, eff. October 27, 1983)

(a) The compensation and expenses of the arbitrator appointed by the grantee shall be borne and paid solely by the grantee. The compensation and expenses of the arbitrator appointed by the Board shall be borne and paid solely by the County. The grantee and County 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 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 grantee.

(b) 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 the typing of any transcripts of the arbitration hearing, and any other costs of the arbitration proceeding not identified in subsection (a)of this section shall be divided equally between, borne, and paid by the grantee and the County. The arbitration panel shall not be empowered to order a division of costs, fees, or expenses different from that prescribed by this section. (§ 1, Ord. 961, eff. October 27, 1983)

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, the panel 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 ninety (90) calendar days following the close of the arbitration hearing. (§ 1, Ord. 961, eff. October 27, 1983)

The arbitration panel shall have no authority to add to, delete, or alter any provision 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, or its officers, agents, or employees, except with respect to proceedings under Section 11-1.710 or 11-1.711 of Article 7 of this chapter to determine the value of property and, in such instances, any of the property according to the expressed terms and standards of the franchise documents. (§ 1, Ord. 961, eff. October 27, 1983)

No provision of this chapter shall be deemed to bar the right of the County 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 this chapter nor the exercise thereof shall be deemed to bar or otherwise limit the right of the County to recover monetary damages (except where liquidated damages are otherwise prescribed) for such violation by the grantee, or judicial enforcement of the grantee’s obligations by means of specific performance, injunctive relief, or mandate, or any other judicial remedy at law or in equity. (§ 1, Ord. 961, eff. October 27, 1983)