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Home My WebLink AboutORD NO 4444 ." '! ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 5.48 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO VIDEO SERVICE PROVIDERS, AMENDING SECTION 12.16.060 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO CONSTRUCTION WORK IN STREETS AND AMENDING SECTION 12.20.020 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO ENCROACHMENTS. WHEREAS, Section 116 of the City Charter sets forth that the City can grant cable television franchises; and WHEREAS, pursuant to the Charter, the City entered into franchise agreements with two cable operators; and WHEREAS, in 2006, the California Legislature enacted Assembly Bill 2987 (AB 2987) which eliminated local video service franchising authority and created a state- wide video programming franchise process; and WHEREAS, AB 2987 allows current franchise holders to continue operating under the local franchise until the franchise expires or is terminated; and WHEREAS, pursuant to AB 2987, potential video service providers apply to the California Public Utilities Commission for state-wide video service franchises and, if granted, can provide video programming services anywhere in the State; and WHEREAS, AB 2987 requires local entities to enforce regulations regarding such programming services and to adopt penalties for violations of the regulations; and WHEREAS, additionally, AB 2987 requires local entities to have a mechanism in place whereby video service providers can appeal the decision of the Public Works Department to deny an encroachment permit or a permit allowing work in city streets or rights-of-way; and WHEREAS, AB 2987 requires that such appeal be heard by the City Council. BE IT ORDAINED by the Council of the City of Bakersfield as follows: -- Page 1 of 7 Pages -- ~ fQf1..KC'-9 <:) % .:.. - I- m - r- g QI ORIGINAL.. S:\COUNCIL\Ords\06-07 Ords\5.48.statevideofranchisesmend2.Fnl.doc SECTION 1. Chapter 5.48 is hereby amended to read as follows: Chapter 5.48 VIDEO SERVICE PROVIDERS 5.48.010 Definitions 5.48.020 Grant of franchise to Time Warner EntertainmentAdvance/Newhouse, a general partnership under the laws of the state of New York. 5.48.030 Grant of franchise to Cebridge Acquisitions, L.P., a Delaware limited partnership doing business in California as Cebridge Connections. 5.48.040 Regulations 5.48.050 Notice of Violation 5.48.060 Penalties 5.48.010 Definitions. (a) "Cable Operator" means any person, group of persons, or business entity providing cable television service in the city limits pursuant to a franchise agreement with the City entered into prior to January 1, 2007. (b) "State Franchise Holder" means any person, group of persons or business entity providing video programming service pursuant to a franchise granted by the State of California through the Public Utilities Commission after January 1,2007. (c) "Video Service Provider" means both a Cable Operator and a State Franchise Holder. 5.48.020 Grant of franchise to Time Warner Entertainment-Advance/Newhouse, a general partnership under the laws of the state of New York. Pursuant to Charter Section 116 the city of Bakersfield hereby grants to Time Warner Entertainment-Advancel Newhouse, a general partnership under the laws of the state of New York the nonexclusive right, privilege and franchise to lay and use lines, wires, coaxial cable and appurtenances for transmitting, distributing and supplying radio and television antenna service along, across and upon the public streets, ways, alleys and places within the city of Bakersfield effective upon the execution of a franchise agreement as approved by the city council of the city of Bakersfield and subject to all the terms and conditions contained in such franchise agreement approved by the city council of the city of Bakersfield. -- Page 2 of 7 Pages -- ~ fQMc;$> o ~ >- fii t: G t;> ORIGINAL S:\COUNCll\Ord8\~7 Ords\5.48.etatevideofranchi88smend2.Fnl.doc 5.48.030 Grant of franchise to Cebridge Acquisitions, L.P., a Delaware limited partnership doing business in California as Cebridge Connections. Pursuant to Charter Section 116, the city of Bakersfield grants to Cebridge Acquisitions, L.P., a Delaware limited partnership doing business in California as Cebridge Connections the nonexclusive right, privilege and franchise to lay and use lines, wires, coaxial cable and appurtenances for transmitting, distributing and supplying radio and television antenna service along, across and upon the public streets, ways, alleys and places within the city of Bakersfield effective upon the execution of an amendment to a franchise agreement as approved by the city council of the city of Bakersfield and subject to all the terms and conditions contained in such franchise agreement approved by the city council of the city of Bakersfield. 5.48.040 Regulations. All Video Service Providers must comply with the provisions of Section 53055, 53055.1, 53055.2 and 53088.2 of the California Government Code, Section 637.5 of the California Penal Code and 47 U.S.C. 551 et. seq. All Video Service Providers must comply with customer service standards pertaining to the provision of video service established by federal law or regulation or adopted by subsequent enactment of the California Legislature. Additionally, Cable Operators must comply with all terms of their franchise agreements until such agreements are terminated or expires. 5.48.050 Notice of Violation. If the City determines that a Video Service Provider is in violation of any laws set forth in Section 5.48.040 or, in the case of a Cable Operator, the terms of the franchise agreement, City shall notify the Video Service Provider of the violation(s) in writing. The Video Service Provider shall have thirty (30) days to correct the violation. If the violation is not corrected, a fine or other penalty shall be imposed pursuant to Section 5.48.060. 5.48.060 Penalties. A violation of any law or regulation referenced in Section 5.48.040 or any other law cited in any amendment to the Digital Infrastructure and Video Competition Act of 2006 (California Public Utilities Code section 5800 et. seq) shall result in a fine of $500.00 per day for each day the violation continues, not to exceed $1,500.00. A second violation occurring and not corrected in a 12-month period shall result in a fine of $1,000.00 per day for each day the violation continues, not to exceed $3,000.00. A third or subsequent violation in that same 12-month period shall result in a fine of $2,500.00 per day for each day the violation continues, not to exceed $7,500.00. City shall notify the Video Service Provider of the fine(s) in writing and the Video Service Provider shall pay such fine(s) to the City within ten (10) days of the mailing of the notice by City or file a written request for an appeal of the fine with the City Clerk. Upon timely receipt of a written request for an appeal, the City Clerk shall schedule the matter for hearing with the City Manager or designee within sixty (60) days of receipt of request for appeal. -- Page 3 of 7 Pages -- ~ fOf1..KS'~ <:) ~ :... - I- m - l"- I,,) c ORIGINAL S:\CQUNCIL\Ords\06-07 Ords\5.48.statevidaofranchiseamend2.Fnl,doc After the time for appeal has run or if the City Manager or designee upholds of the fine, the City may take any action allowed by law to recover an unpaid fine. Additionally, failure to pay the fine shall be reported to the Public Utilities Commission. Nothing in this section precludes the City from terminating a franchise agreement with a Cable Operator for breaching the terms of the franchise agreement. One half of any fine collected by City shall be submitted to the Digital Divide Account established in Section 280.5 of the Public Utilities Code. SECTION 2 Section 12.16.060C of the Bakersfield Municipal Code is hereby amended to read as follows: 12.16.060 Action on applications for perm its to excavate. C. If the application is denied, the department shall advise the applicant in writing of the basis for denial. The applicant shall have ten (10) days from the mailing of such denial by City to appeal. The written request for appeal must be received by the City Clerk within such time period. Upon timely receipt of a written request for an appeal, the City Clerk shall schedule the matter for hearing with the City Manager or designee within sixty (60) days of receipt of the request. If the applicant is a Video Service Provider as defined in Section 5.48.010 of this Code, pursuant to Section 5885 of the Public Utilities Code, the applicant shall have ten (10) days from the mailing of such denial by City to appeal. The written request for appeal must be received by the City Clerk within such time period. Upon timely receipt of a written request for an appeal, the City Council shall schedule the matter for hearing at the next available City Council meeting. SECTION 3. Section 12.20.020B of the Bakersfield Municipal Code is hereby amended to read as follows: 12.20.020 Permit requirements-Revocation. B. Any person, firm or corporation desiring to place, erect or maintain any such encroachment as defined in Section 12.20.010 shall make application for a permit at the office of the city engineer. Such application shall contain the name and address of the applicant, a description of the proposed encroachment and the proposed location thereof, the period of time for which such encroachment is proposed to be maintained, and such other information as may be required by the city engineer. Such application shall further contain an agreement on the part of the applicant that if such application is granted, the applicant will indemnify and save and hold harmless the city, its agents, officers and employees against and from all damages, judgments, claims, demands, expenses, costs and expenditures, and against all loss or liability which the city or such -- Page 4 of 7 Pages -- ~ fQf1..K~1> o % ,)... - I- m - r- (,) C) ORIGINAL S:\CQUNCll\Ords\06-07 Ords\5.48.etatevideofranchiseamend2.Fnl.doc officers, agents or employees may suffer, or which may be recovered from or obtainable against the city or such officers, agents or employees, legally caused by, growing out of, or in any way connected with, the placing, erection or maintenance of such encroachment, and upon the expiration of such permit or the revocation thereof, the applicant will, at his own cost and expense, remove the same from the public property or right-of-way where the same is located and restore such public property or right-of- way to the condition as nearly as that in which it was before the placing, erection, maintenance or existence of such encroachment. Such application shall also contain an agreement on the part of the applicant to keep all liability insurance required by the city manager in full force and effect for however long the encroachment remains. Upon the receipt of such application, the city engineer shall make an investigation to determine if the maintenance of such encroachment will substantially interfere with the use of the public property, right-of-way or other public place where the same is proposed to be placed, erected or maintained, and whether the placing, erection or maintenance of such encroachment will constitute a hazard to persons using such public property, right- of-way or other public place. Upon the completion of such investigation, the city engineer shall, at his discretion, either grant or deny the applicant a permit to place, erect and/or maintain such encroachment. Such permit, if granted, may be granted for a definite time or for annual renewal, and the city engineer may impose such conditions to the granting of the same as in his discretion will best serve the public interest. In any event, a permit granted by the city engineer pursuant to this section is revocable at any time by the city engineer. If the application is denied, the department shall advise the applicant in writing of the basis for denial. The applicant shall have ten (10) days from the mailing of such denial by City to appeal. The written request for appeal must be received by the City Clerk within such time period. Upon timely receipt of a written request for an appeal, the City Clerk shall schedule the matter for hearing with the City Manager or designee within sixty (60) days of receipt of the request. If the applicant is a Video Service Provider as defined in Section 5.48.010 of this Code, pursuant to Section 5885 of the Public Utilities Code, the applicant shall have ten (10) days from the mailing of such denial by City to appeal. The written request for appeal must be received by the City Clerk within such time period. Upon timely receipt of a written request for an appeal, the City Council shall schedule the matter for hearing at the next available City Council meeting. Upon the revocation of any such permit, the city engineer shall give notice in the form and manner specified in Section 12.20.030 to the applicant for such permit or to the person maintaining such encroachment. It is unlawful for a person, firm or corporation to place, erect or maintain or to permit the placing, erection, maintenance or existence of an encroachment upon, over or under any street, avenue, lane, alley, sidewalk, court, place, public way, property or right-of-way after his permit has expired, after his permit has been revoked and the time specified in the notice from the city engineer for removal of the same has expired, or after required insurance has expired, lapsed, been reduced or revoked. An encroachment permit may be granted in the Central Business Zone and Commercial Center Zone for restaurants or other establishments serving food or beverages in the encroachment area; however, all the requirements of Sections -- Page 5 of 7 Pages -- ~ fQf1..KS'-9 <:) ~ ~ - f--, m ,... C -,.'lIGINAl S:\CQUNCIL\Orda\06-07 Ords\5.48.stalevideofranchiseamend2.Fnl.doc 12.20.020(c) and (D) shall be followed in addition to all other requirements of this chapter. Fees or charges for the issuance of any permit under this chapter may be imposed by resolution or ordinance of the city council. SECTION 4. This Ordinance shall be posted in accordance with the provISions of the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. -----00000----- -- Page 6 of 7 Pages -- ~ fQf1..KC'''9 C) % ;:... - I- m - r- (.) (;:) ORIGINAL S:\CQUNCIL\Ords\06-07 Ords\5.48.statevideofranchisesmend2.FnI.doc I HERESY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on .IUL 1 8 2007 , by the following vote: ~ NOES: ABSTAIN: ABSENT: ~ L..---' I.--- <-- c..-- L-- c....-- COUNCILMEMBER CARSON. BENHAM. WEIR. COUCH. HANSON. SULLIVAN. SCRIVNER COUNCILMEMBER COUNCILMEMBER COUNCILMEMBER ~ fl. tl1d'U^~ CITY CLERK and EX OFFICIO of th Council of the City of Bakersfield APPROVED: JUl 1 8 2007 By: HA VE L. HALL, Mayor CITY OF BAKERSFIELD APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney ( tt!au f;2. /--/ JANICE SCANLAN Assistant City Attorney S:ICOUNCIL IOrdsl06-07 Ords\5.48 .statevideofranchiseamend2.F nl.doc -- Page 7 of 7 Pages -- ~ fQf1..KS'-9 <:) % .:.. - I- m - r-- c..:> c ORIGINAL S:\CQUNCIL\Ords\06-07 Ords\5.48.slatevideofranchiseamend2.Fnl.doc AFFIDAVIT OF POSTING DOCUMENTS STATE OF CALIFORNIA) ) ss. County of Kern ) PAMELA A. McCARTHY, being duly sworn, deposes and says: That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and that on the 19th day of Julv. 2007 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 4444 passed by the Bakersfield City Council at a meeting held on the 18th day of Julv. 2007 and entitled: AN ORDINANCE AMENDING CHAPTER 5.48 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO VIDEO SERVICE PROVIDERS, AMENDING SECTION 12.16.060 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO CONSTRUCTION WORK IN STREETS AND AMENDING SECTION 12.20.020 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO ENCROACHMENTS. PAMELA A. McCARTHY City Clerk and Ex Officio of the Council of the City of Bakersfield By:~QO~ ~~t' DEPU Y Cit Clerk S:\DOCUMENT\FORMS\AOP .ORD.wpd ~ ~~/(~-9 c ~ .:.... - I- rn - r- o 0 ORIGINAL