§ 90-244. Excuses for violations.

Except as hereinafter provided, violation by a franchisee of any of the provisions set forth in sections 90-228 through 90-230, the first two paragraphs of section 90-231, sections 90-232 through 90-235, 90-238 through 90-242, above, or 90-261, below, caused by circumstances beyond the control of the franchisee shall constitute good and sufficient excuse and justification for such violations precluding the franchisee from being in breach of said sections. The following are examples of acts or omissions by a franchisee or circumstances which shall be deemed not to be beyond the control of the franchisee and which shall not constitute excuses or justifications for violations:

a.

The failure at any time by a franchisee 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 actions necessary to comply or facilitate compliance with any of the provisions of sections 90-228 through 90-230, the first two paragraphs of section 90-231, sections 90-232 through 90-235, 90-238 through 90-242, above, or 90-251, below;

c.

Considerations relating to economy or cost efficiency, as respects acts or omissions by a franchisee;

d.

Delays occasioned by the failure of a franchisee 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 delay shall not constitute an excuse or justification for violation except with respect to measurable precipitation occurring on more than 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 the customary and usual time required to obtain approval to attach lines to poles owned by private or public utilities or in the attaching of cable to the poles; provided that if a franchisee submits all plans and documentation required by private or public utilities in connection with the approval to attach lines to poles, any time consumed by such approval process which is longer than 150 calendar days following the submissions of all necessary plans and documentation shall be deemed to excuse the franchisee from any violations which are proximately caused by such delay in excess of 150 calendar days;

g.

Delays occasioned by the customary and usual time required to process and secure approvals under zoning ordinances of the county and cities for the location of components of the cable television system and other installations associated therewith, given the nature of the approval required and magnitude of the project; provided that if a franchisee submits specific sites and plans for all headends, towers and transmitters to the county and requests the county to perform a single environmental analysis upon all such facilities as the lead agency, any time consumed by such environmental analysis 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 90-131 in division 3 shall be deemed to excuse the franchisee from any violations which are proximately caused by such delay in excess of 120 calendar days.

Notwithstanding the provisions of subdivisions "a" through "f," inclusive, above, a franchisee shall not be excused from any violation of the provisions of sections 90-228 through 90-230, the first two paragraphs of section 90-231, sections 90-232 through 90-235, 90-238 through 90-242, above, or 90-251, below, except for causes which are beyond the control of the franchisee, and except with respect to violations which have not been contributed to or aggravated by acts or omissions by the franchisee.

Except as otherwise provided above, violations caused exclusively by acts or omissions by the county, the cities, the cable television commission or their officers, agents or employees shall constitute an excuse and justification for failure of a franchisee to comply with the provisions of sections 90-228 through 90-235, 90-238 through 90-242, above, or 90-251, below, precluding a determination that the franchisee is in breach. However, violations as a result of such exclusive causes shall not be deemed to excuse the franchisee from other violations, shield the franchisee from a determination that it is in breach for violations, or bar any relief for damages or otherwise as a result of such breach.

(Ord. No. 97-12, § 2(5.50.434), 2-13-1997; Ord. No. 97-21, § 2, 12-10-1997)